.Clark v. Wilson

PRISON LAW OFFICE
DONALD SPECTER #83 925 HEATHER MacKAY #161434 General Delivery San Quentin, CA 94964 Telephone: (415) 457-9144

II II II Mil I I II II | | | |
PC-CA-005-001

PILLSBURY MADISON & SUTRO LLP SHAWN HANSON #109321 CAROLINE N. MITCHELL #143124 ADAM E. SAK #184522 235 Montgomery Street San Francisco, CA 94120-7880 Telephone: (415) 983-1000

[Listing of counsel for plaintiffs continues on signature page]

10

Attorneys for Plaintiffs

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

14 DERRICK CLARK, LARRY DIXON, JR., JACK
VON GUNTEN, MARK MITCHELL MORINO, JAMES
15 SIMMONS, ELBERT GANTER, JR., ESTELLA
HOLLOWAY, YVETTE YARBROUGH, WILLIAM EARL
16 FOWLER, TORIANO LOWE, individually and
on behalf of all others similarly
17 situated,

18

Plaintiffs,

vs. 19
STATE OF CALIFORNIA, CALIFORNIA 20 DEPARTMENT OF CORRECTIONS, PETE WILSON,

Governor of the State of California, 21 THOMAS MADDOCK, Secretary of Youth and

Corrections Agency, C A . TERHUNE, 22 Director of the Department of

Corrections, SUSAN STEINBERG, Deputy 23 Director for Health Care Services, NADIM

KHOURY, M.D., Assistant Deputy Director 24 for Medical Services, MARJORIE
TAVOULARIS, Chief, Psychiatric Services, 25

Defendants. 26

No. C-96-1486 FMS
CIVIL RIGHTS CLASS ACTION
SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE REHABILITATION ACT, THE AMERICANS WITH DISABILITIES ACT, THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND UNDER 5 1983 FOR VIOLATIONS OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION

27

28

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1

Plaintiffs, by their attorneys, bring this action

2 for injunctive and declaratory relief on behalf of them-

3 selves and all others similarly situated (collectively,

4 "plaintiffs"). Plaintiffs hereby complain of the defendants

5 and allege as follows:

6

7

PRELIMINARY STATEMENT

8

1. This is a class action for injunctive and declara-

9 tory relief stating claims against all defendants under '

10 section 504 of the Rehabilitation Act, codified at 29 U.S.C.

11 § 794, for discrimination based on plaintiffs' disabilities;

12 against defendants State of California, California

13 Department of Corrections, Wilson, Maddock and Terhune under

14 the Individuals with Disabilities Education Act, codified at

15 20 U.S.C. section 1400 et seq. , amended by Pub. L. No. 105-

16 17 (1997), for discrimination based on plaintiffs'

17 disabilities; against defendants Wilson, Maddock, Terhune,

18 Steinberg, Khoury and Tavoularis under Title II of the

19 Americans with Disabilities Act, codified at 42 U.S.C.

20 §§ 12131-12133 for discrimination based on plaintiffs'

21 disabilities; and against defendants Wilson, Maddock,

22 Terhune, Steinberg, Khoury and Tavoularis under 42 U.S.C.

23 § 1983 for denial of plaintiffs' rights as secured by the

24 United States Constitution under the Eighth and Fourteenth

25 Amendments.

2 6

2. Plaintiffs and the class they represent are

27 developmentally disabled prisoners confined at various

28

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1 correctional facilities operated by the California Depart-

2 ment of Corrections.

.

3

3. Plaintiff Toriano Lowe and the subclass he

4 represents are developmentally disabled inmates under 22

5 years of age confined at various correctional facilities

6 ' operated by the California Department of Corrections.

7

4. Upon information and belief, more than 1,500

8 prisoners incarcerated in correctional facilities operated

9 by the State of California are developmentally disabled.

10

5. Plaintiffs bring this action because they cannot

11 obtain necessary and adequate accommodations, protection and

12 services necessitated by their disabilities as required by

13 federal law and are being denied rights secured by the

14 United States Constitution.

15

6. Plaintiffs ask the Court to compel defendants to

IS furnish them and other similarly situated prisoners with the

17 accommodations, protection and services required by federal

18 law and the rights secured by the United States Constitution

19 of which they have been deprived by defendants.

20

7. Developmentally disabled individuals are unable to

21 adapt to prison conditions without the accommodations,

22 protection and services required by federal law.

23

8. These prisoners are more likely than non-

24 developmentally disabled prisoners to be beaten or raped,

25 are more likely than non-developmentally disabled prisoners

2 6 to be manipulated by other prisoners, are less able to

27 comprehend and to comply with prison rules and procedures

28 than non-developmentally disabled prisoners, and do not have

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No. C-96-1486 FMS

1 access to the full range of services and privileges

2 available to non-developmentally disabled prisoners.

3

9. These plaintiffs, because of their developmental

4 disabilities, are deprived of their constitutionally

5 protected liberty interests because they are improperly

6 deprived of good time credits, with the result that they

7 serve longer sentences than they otherwise would.

8

10. This already deplorable situation will worsen in

9 the coming years as the prison population grows.

10

11. Defendants exercise responsibility for, and

11 complete control over, all aspects of plaintiffs' day-to-day

12 lives, including living conditions, access to prison

13 programs, discipline and enforcement of rules, medical and

14 mental health care, and plaintiffs' safety.

15

12. Although defendants have known for a number of

16 years that a significant number of inmates incarcerated in

17 California prisons suffer from developmental disabilities,

18 they have not yet effected, nor have they made adequate

19 plans for, the accommodation, protection, and provision of

20 services to these vulnerable prisoners.

21

13. Defendants lack policies and procedures to meet

22 the constitutional and statutory needs of developmentally

23 disabled prisoners. This failure, coupled with the inappro-

24 priateness and inadequacy of the policies defendants do

25 have, has caused plaintiffs and the class they represent to

2 6 endure discrimination that has resulted in unnecessary and

27 extreme physical and psychological pain. 28

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ACTION COMPLAINT--Case No. C-96-1486 FMS

1

14. By their actions defendants not only endanger the

2 well-being of the developmentally disabled inmates, but the

3 well-being of all other inmates, who are required to

4 interact with developmentally disabled inmates.

5

15. Without the accommodations, protection and

6 services required by federal law and as a result of their

7 deprivation of constitutional rights, many of these inmates

8 are more likely to behave impulsively and violently while in

9 prison than they would have had their disabilities

10 reasonably been accommodated. The result is that they are

11 more likely than non-disabled inmates to be forced into

12 isolation or segregation, to be deprived of good-time

13 credits toward their release and to be deprived of other

14 services, benefits and privileges that are available at the

15 prisons.

16

16. Defendants exacerbate the difficulties plaintiffs

17 have adapting to life in prison by discriminating against

18 plaintiffs and refusing to make available the accommoda-

19 tions, protection and services needed by the developmentally

20 disabled to function in the prison setting as required by

21 federal law and secured by the prisoners' rights under the

22 United States Constitution.

23

17. Plaintiffs contend that defendants' deliberate

24 policy of confining prisoners with developmental disabili-

25 ties in state prisons without offering sufficient protection

26 from the general prison population constitutes cruel and

27 unusual punishment.

28

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No. C-96-1486 FMS

1

18. Defendants are aware of the tremendous gap between

2 plaintiffs' needs and the existing level of accommodation,

3 protection and due process protection provided to plain-

4 tiffs, but, under color of state law, have repeatedly and

5 persistently denied plaintiffs the required accoiranodation,

6 protection and services, including due process protection,

7 thereby subjecting them to severe and unnecessary physical

8 and emotional pain and injury and the loss of those rights

9 that are secured by due process, including deprivation of

10 their liberty interest as a result of deprivation of good

11 time credits. This denial of due process imposes atypical

12 and significant hardship on plaintiffs in relation to the

13 ordinary incidents of prison life.

14

19. Accordingly, plaintiffs seek declaratory and

15 injunctive relief to remedy the unconstitutional and illegal

16 conditions to which they are perpetually subjected during

17 incarceration.

18

19

JURISDICTION

20

20. This Court has jurisdiction over this action under

21 28 U.S.C §§ 1331 and 1343, and 20 U.S.C. § 1415(i) (3) (A) .

22 Defendants State of California and California Department of

23 Corrections have no immunity to this Court's exercise of

24 jurisdiction for the claims brought against them, pursuant

25 to 42 U.S.C. § 2000d-7 and 20 U.S.C. § 1403.

26

27

28

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1

VENUE

2

21. Venue lies in the Northern District of California

3 pursuant to 28 U.S.C. § 1391(b)(2) in that four correctional

4 facilities, including the facilities at which plaintiffs

5 Jack Von Gunten (San Quentin) and William Earl Fowler

6 (Pelican Bay State Prison) are confined, are located within

7 the Northern District, and are locations where wrongful acts

8 complained of herein occurred, making this a judicial

9 district in which a substantial part of the events giving

10 rise to the claim occurred.

•11

12

INTRADISTRICT ASSIGNMENT

13

22. Actions giving rise to venue of this case in the

14 Northern District of California occurred in Marin and Del

15 Norte Counties. Accordingly, pursuant to Local Rule 3-2(c),

16 this case arises in San Francisco Headquarters and Oakland

17 Division.

18

19

PLAINTIFFS

20

23. Plaintiffs are citizens of the United States who

21 are confined in prisons throughout California, including

22 Pelican Bay State Prison, California Rehabilitation Center,

23 Valley State Prison for Women, California Correctional

24 Women's Facility, Mule Creek State Prison, Ironwood State

25 Prison, California Men's Colony, Salinas Valley State

26 Prison, San Quentin State Prison and Richard J. Donovan

27 State Prison. These prisons are operated by and are under

28 the control of the California Department of Corrections.

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1

24. All plaintiffs are developmentally disabled and

2 each is therefore an "individual with a disability" as that

3 term is defined in 29 U.S.C § 706(8)(B) and a "qualified

4 individual with a disability" as that term is defined in

5 42 U.S.C. § 12131.

6

25. Plaintiff Toriano Lowe and the subclass he

7 represents are persons under the age of 22, are

.8 developmentally disabled, and were diagnosed as being

9 developmentally disabled prior to their incarceration in the

10 California prison system. Each is therefore a "child with a

11 disability" as that term is defined in 20 U.S.C.

12 § 1401(3)(A).

13

26. Plaintiff Derrick Clark is a 32-year-old inmate

14 who is developmentally disabled and has an I.Q. less than

15 60. Mr. Clark is currently incarcerated at Mule Creek State

16 Prison in Amador County. Prior to being transferred to Mule

17 Creek, Mr. Clark was incarcerated at Pelican Bay State

18 Prison. Mr. Clark also has been previously incarcerated at

19 San Quentin State Prison,in Marin County, California State

2 0 Prison, Solano; Correctional Training Facility (Soledad);

21 and Mule Creek State Prison. Mr. Clark attended special

22 education classes as a child and did not progress beyond the

23 fifth grade. Mr. Clark cannot read or write, without

24 assistance, other than to sign his name. Mr. Clark was

25 unable to read Title 15 containing prison rules and relies

26 on his cellmate to read written prison information for him. 27 Defendants have denied Mr. Clark access to meaningful 28 education. Mr. Clark has been housed continuously with

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1 prisoners who are not developmentally disabled and has been 2 the subject of abuse by such prisoners. Mr. Clark was 3 previously referred by medical personnel at San Quentin for 4 an evaluation to determine whether he should be placed in

5 Category K, a designation for prisoners with mental retarda-

6 tion. The evaluation was performed and Mr. Clark was 7 recommended for inclusion in a Category K program. Despite 8 this recommendation, nothing was done and Mr. Clark 9 continued to be housed in the general prison population. As 10 a result of the failure of defendants to provide reasonable

11 accommodations for Mr. Clark's developmental disabilities,

12 Mr. Clark has been deprived of good time credits and the

13 ability to regain them, with the result that he is required

14 to serve a longer sentence.

15

27. Larry Dixon, Jr. is a 39-year-old inmate who is

16 developmentally disabled, with a low I.Q. and a Global

17 Assessment Function ("GAF") score of 4 5 . M r . Dixon attended

18 special education classes through the eighth grade. Mr.

19 Dixon is currently incarcerated at Salinas Valley State 2 0 Prison in Monterey County. He has previously been

21 incarcerated at California Medical Facility, California

22 Correctional Institute, in Kern County, Wasco State Prison,

23 in Kern County and Mule Creek State Prison in Amador County.

24 Because of his developmental disability, Mr. Dixon is

25 regarded as prey and is the victim of verbal torment, sexual

26 harassment and physical assault by other prisoners.

27 Defendants have not taken the reasonable steps necessary to

28 accommodate Mr. Dixon's developmental disabilities and to

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SECOND AMENDED CLASS ACTION COMPLAINT—Case NO. C-96-1486 FMS

1 allow him to participate safely in prison life. In June

2 1996, during the course of one violent assault, Mr. Dixon's

3 knee was injured by a guard breaking up the altercation.

4 Because of his developmental disabilities he was unable to

5 understand the seriousness of his injury, which was not

6 explained to him. As a result, treatment was delayed and

7 surgery eventually required. Both prison guards•and

8 prisoners have seized upon Mr. Dixon's developmental

9 disabilities and have exploited him as an object of derision

10 and abuse. As a result of his developmental disabilities,

11 Mr. Dixon has been deprived of good time credits, with the

12 result that he is required to serve a longer sentence.

13

28. Jack Von Gunten is a 46-year-old inmate who is

14 developmentally disabled, diagnosed moderately mentally

15 retarded with an I.Q. of 48, and performs at a second grade

16 level. He attended special education classes as a child

17 before dropping out of school in the ninth grade. Before

18 his arrest in 1979, Mr. Von Gunten received disability

19 payments relating to his mental retardation. Mr. Von Gunten

20 has been serving a life term since 1979, with the

21 possibility of parole and the benefit of good time credits.

22 He was originally sent to San Quentin, but was transferred

23 to CMC, in San Luis Obispo County. Mr. Von Gunten was

24 classified Category K until the mid-1980's, when he was

25 reclassified to General Population. Mr. Von Gunten remained

26 at CMC until 1993, when he was transferred back to San •

27 Quentin, where he is currently incarcerated. As a result of 28 his developmental disabilities, Mr. Von Gunten has been

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SECOND AMENDED CLASS ACTION COMPLAINT--Case .No. C-96-1486 FMS

1 denied access to vocational programs which he would be able 2 to participate in if defendants afforded him reasonable 3 accommodations. Mr. Von Gunten was told by prison officials 4 that because he did not qualify for particular vocational 5 training he could not remain at CMC and would be transferred 6 to San Quentin. At San Quentin, Mr. Von Gunten, because of 7 his developmental disabilities, is a target for other 8 prisoners who extort money and property from him. He is 9 frequently verbally and physically harassed and abused by 10 other prisoners. Defendants have not taken the reasonable 11 steps necessary to accommodate Mr. Von Gunten's 12 developmental disabilities and to allow him to participate 13 safely in prison life. Mr. Von Gunten has sought to obtain 14 psychiatric counseling at San Quentin, but has been told by 15 prison officials that such treatment is not available to 16 him. Because of his developmental disability, he is unable 17 to understand rules that are posted and he is punished for 18 rule infractions when he has been given no reasonable 19 opportunity to know or understand the rules. Mr. Von Gunten 20 also fails to keep appointments because the times are 21 written on ducats he is given by prison authorities and he 22 is unable to read these ducats. The defendants take no 23 reasonable steps to offer Mr. Von Gunten the reasonable 24 accommodations necessary to allow him to participate in 25 programs for which appointments are required. Because 26 defendants have not taken adequate measures to accommodate 27 Mr. Von Gunten's developmental disability, Mr. Von Gunten 28

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 has been deprived of good time credits, causing him to serve 2 a longer sentence.

3

29. Mark Mitchell Morino is a 28-year-old inmate who

4 is developmentally disabled, with an I.Q. that has been

5 measured at 54. Mr. Morino attended special education

6 classes throughout his childhood and adolescence. Before

7 his most recent conviction, Mr. Morino received social

8 security benefits relating to his developmental disability. •

9 Mr. Morino is incarcerated at Mule Creek State Prison. Mr. 10 Morino was the object of verbal harassment and violent

11 assaults by other inmates, including an incident in March 12 1996 in which another inmate slashed Mr. Morino's throat 13 with a razor blade. As a result of his developmental 14 disabilities, prison officials dismissed attempts by Mr.

15 Morino to articulate concerns about his safety and exposed 16 him to a cellmate who preyed on his disabilities. Over the 17 course of a 2-week period, that cellmate repeatedly raped

18 and assaulted him. Defendants failed to provide Mr. Morino 19 with the reasonable accommodations for his developmental 20 disabilities necessary to allow him to participate safely in

21 prison life.

22

30. James Simmons is a 45-year-old inmate at the

23 California Men's Colony East. He is developmentally

24 disabled and illiterate, with an I.Q. of 49. CDC

25 psychologists have described Mr. Simmons as "gullible, easy

26 prey to more sophisticated criminals, . . . afflicted with a

27 profuse mental deficiency, dependent and childlike." As a

28 symptom of his developmental disability, Mr. Simmons moves

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 and talks slowly. Because of this, he is frequently 2 interrogated by correctional officers who claim to believe 3 incorrectly that Mr. Simmons is under the influence of drugs 4 or alcohol. These interrogations, often conducted by 5 correctional officers who have known Mr. Simmons for years, 6 involve strip searches and drug testing. Mr. Simmons is 7 also frequently harassed by fellow inmates because of his 8 developmental disability. In addition, Mr. Simmons' 9 developmental disability has adversely affected his attempts 10 to be released on parole. According to a psychiatric 11 evaluation for one of his five reviews by the Board of 12 Prison terms, Mr. Simmons did not appear to comprehend that 13 his Board appearance "ha[d] anything to do with whether or 14 not he [was] considered suitable for parole." Mr. Simmons' 15 psychiatric evaluations have also relied heavily upon his 16 developmental disability in support of their negative 17 evaluations. Yet, the Department of Corrections has done 18 little or nothing to help Mr. Simmons cope with his 19 developmental disability. The prison in which he is

20 incarcerated offers no education services designed to

21 accommodate the needs of developmentally disabled inmates,

22 no specialized vocational training, and no counseling geared

23 toward the needs of persons with mental retardation.

24

31. Elbert Ganter, Jr., is a 28-year-old inmate at

25 Ironwood State Prison. He has been diagnosed variously as

26 being mildly or moderately retarded, and his I.Q. has been

27 measured at 49. He attended special education classes in

28 school from kindergarten until he dropped out in the 11th

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 grade, and he received social security benefits as a result

2 of his developmental disability. Other inmates and

3 correctional officers ridicule Mr. Ganter because of his

4 developmental disability and attempt to trick him into

5 fights and other trouble. As a consequence, Mr. Ganter

6 spends almost all his time in his cell or at education or

7 work assignments. Mr.Ganter's academic ability has been 8 measured at the first grade level. He desires to learn to

9 read and was assigned to an Adult Basic Education class.

10 Although his teacher described him as possessing "an

11 excellent attitude in class," Mr. Ganter was eventually

12 removed from the class because he was unable to. learn.

13 Educational services designed to accommodate inmates

14 possessing Mr. Ganter's cognitive abilities are not

15 available in the CDC system.

16

32. . Estella Holloway is a 33-year-old inmate of Valley

17 State Prison for Women ("VSPW"). Ms. Holloway has been

18 diagnosed as moderately mentally retarded and has a GAF

19 score of 52. She attended school through the ninth grade,

2 0 where she was in special education classes. Prior to Ms.

21 Holloway's incarceration, she received Social Security

22 benefits for her developmental disability. While 23 incarcerated, Ms. Holloway has been attacked by other

24 inmates, removed from an education program, and ridiculed

25 because of her developmental disability. She cannot read or

26 write and does not understand rules or procedures at VSPW.

27 Ms. Holloway was recently transferred from her eight-person

28 dormitory living quarters after other inmates repeatedly

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1 attacked and ridiculed her because of her developmental

2 disability. Other inmates have also taken her canteen and

3 threatened to cause her physical harm if she reported her

4 problems to correctional officers. Ms. Holloway has

5 received 115s and 128as (disciplinary notations which can

6 result in loss of good time credit) for failure to program

7 in education and at her work assignment. Defendants have

8 not provided Ms. Holloway reasonable accommodations for her

9 developmental disabilities to allow her to participate

10 safely in prison life. Defendants' failure to accommodate

11 Ms. Holloway's developmental disability has resulted in

12 abuse, both inside her housing unit and throughout VSPW, a

13 lack of educational and vocational programming, and a loss

14 of good time credit.

15

33. Yvette Yarbrough is a 34-year-old inmate at the

16 California Correctional Women's Facility who is

17 developmentally disabled. Ms. Yarbrough attended school

18 through the ninth grade, where she was in special education

19 classes. Prior to Ms. Yarbrough's incarceration, she

20 received Social Security for her developmental disability.

21 While incarcerated, Ms. Yarbrough has been diagnosed as

22 "slow," and tests administered by the Department of 23 Corrections reflect that she is a "Basic Non-Reader." 24 Defendants have not provided Ms. Yarbrough with reasonable 25 accommodations for her developmental disability, and this

26 has precluded her from participating successfully in prison 27 life. For example, Ms. Yarbrough's work supervisor cut Ms.

28 Yarbrough's pay because the work supervisor mistook Ms.

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1466 FMS

1 Yarbrough's limited cognitive abilities for laziness and 2 intentional unproductiveness. Prior to taking this action, 3 Ms. Yarbrough's work supervisor had inadequate information

4 regarding Ms. Yarbrough's developmental disability, received 5 inadequate training on how to recognize Ms. Yarbrough's 6 developmental disability, and had no effective screening

7 method to identify Ms. Yarbrough's disability.

8

34. William Earl Fowler is a 31-year-old inmate at

9 Pelican Bay State Prison. His prison medical records 10 describe him as "mildly retarded." Because of his 11 developmental disability, Mr. Fowler has difficulty reading

12 and writing. He consequently is unable to understand the 13 written rules and procedures that are distributed to inmates 14 upon arrival in prisons within the CDC system. Upon 15 informing the correctional officers distributing the rules 16 of his inability to read them, Mr. Fowler has been told to 17 pay his cellmate to read the rules to him. Because of his 18 inability to understand prison rules and procedures without 19 help, Mr. Fowler has, for example, missed meals because of 20 his ignorance of the institution rule at Pelican" Bay

21 requiring inmates to turn on their cell lights to receive

22 breakfast. Mr. Fowler is routinely required to pay other 23 inmates to read his mail to him and write letters for him. 24 Mr. Fowler has been harassed and degraded by members of the

25 prison staff because of his developmental disability. For

26 example, one staff member has called Mr. Fowler a "fucking

27 retardo." Prison staff members have also accused Mr. Fowler

28 of feigning developmental disability. When he complained

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 that he could not understand the big words used in a 115

2 proceeding, Mr. Fowler was told by a member of the prison

3 staff to "stop playing games." In spite' of his inability to

4 fully comprehend that proceeding, Mr. Fowler was not

5 provided a Staff Assistant to help him prepare his defense.

6

35. Hugh Romestan is a 29-year-old inmate at

7 California Rehabilitation Center in Riverside County who is

8 developmentally disabled. His prison records describe him

9 as mildly mentally retarded with a GAF score of 55. Mr.

10 Romestan has been previously incarcerated at California

11 Men's Colony, Mule Creek State Prison, Richard J. Donovan

12 State Prison and Soledad State Prison. Mr. Romestan

13 attended special education, and prior to his incarceration,

14 he collected Social Security because of his mental

15 retardation. Mr. Romestan does not understand prison rules

16 and procedures, and is unable to file grievances because of

17 his developmental disability. In addition, Mr. Romestan has

18 been unable to program successfully in education and has

19 been denied substance abuse treatment at R.J. Donovan State

2 0 Prison based, in part, on his academic level. Mr. Romestan

21 has also been harassed by other inmates because of his

22 developmental disability. Mr. Romestan has suffered these

23 harms because defendants do not adequately screen for

24 developmental disabilities and do not provide reasonable

25 accommodations for developmentally disabled prisoners.

2 6

36. Toriano Lowe is a 20-year-old inmate at Mule Creek

27 State Prison who was born on March 10, 1977. Mr. Lowe is 28 developmental ly disabled, with an I.Q. that has been

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1 measured at 61. Prior to his incarceration, Mr. Lowe

2 attended special education classes in school, received

3 services from a Regional Center for the Developmentally

4 Disabled, and participated in individualized educational

5 programs (IEPs) prior to his incarceration. Tests

6 administered by the California Department of Corrections

7 indicate that Mr. Lowe functions academically at the first

8 grade level. Since entering the prison system, Mr. Lowe has

9 received no special education services of any kind. Mr.

10 Lowe is unable to receive such services because no such

11 services are available to inmates in the California

12 Department of Corrections system. Instead, Mr. Lowe has

13 been placed in regular Adult Basic Education classes, in

14 which he is unable to learn because the materials are too

15 difficult for someone with his intellectual limitations.

16 Mr. Lowe has been victimized by other inmates who prey upon

17 his low level of intellectual ability by cajoling him into

18 giving them his canteen.

19

37. Plaintiffs' disabilities make them more vulnerable

20 to physical violence while in prison. For example, they are

21 likely to be preyed upon and physically and sexually abused

22 by other prisoners.

23

38. Plaintiffs' disabilities render them susceptible

24 to becoming unwitting pawns at the hands of other prisoners,

25 who use them to violate prison rules and regulations. This

26 exposes them to retaliation from both other prisoners and 27 correctional officers. 28

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1

39. When plaintiffs are involved in disciplinary,

2 grievance, parole or other administrative proceedings,

3 plaintiffs' disabilities are not accommodated to guarantee

4 them due process. As a result, they are deprived of good

5 time credit of which they would not be deprived if they were

6 not developmentally disabled. This denial of due process

7 imposes atypical and significant hardship on .the inmates in

8 relation to the ordinary incidents of prison life in that

9 they are more harshly disciplined than non-developmentally

10 disabled prisoners, they must serve longer prison terms as a

11 result of the deprivation of good time credits and do not

12 have equal access to privileges and programs afforded non-

13 developmentally disabled prisoners.

14

40. Plaintiffs' disabilities result in low-level

15 skills, or no skills, in reading and comprehension. As a

16 result, plaintiffs are unable to read and comprehend prison

17 regulations, yet are punished for violations of the

18 regulations. This results in the deprivation of good time

19 credits of which plaintiff would not be deprived if

20 reasonable accommodations were made to allow them to

21 participate in prison life.

22

41. Defendants know of, but have taken no effective

23 steps to protect plaintiffs from, the discrimination,

24 violence and deprivation of due process rights they suffer 25 as a result of their disabilities, with the result that

26 plaintiffs suffer atypical and significant hardship in the 27 form of the deprivation of good time credits. Plaintiffs

28 also are deprived of the reasonable accommodations necessary

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1 because of their developmental disabilities to allow them to

2 participate in programs that would result in the restoration

3 of lost good time credits.

4

. DEFENDANTS

5

42. Defendant State of California owns and operates

6 the correctional facilities that are the subject of the

7 claims against it for violation of section 504 of the

8 Rehabilitation Act and the Individuals with Disabilities

9 Education Act. Defendant California has the responsibility

10 to take action to remedy the violations of the

11 Rehabilitation Act and the Individuals with Disabilities

12 Education Act set forth in this complaint, but has not done

13 so.

14

43. Defendant California Department of Corrections

15 operates the correctional facilities that are the subject of

16 the claims against it for violation of Section 504 of the

17 Rehabilitation Act and the Individuals with Disabilities

18 Education Act. Defendant California Department of

19 Corrections has the responsibility to take action to remedy

20 the violations of the Rehabilitation Act and the Individuals

21 with Disabilities Education Act set forth in this complaint,

22 but has not done so.

23

44. Defendant Pete Wilson is Governor of the State of

24 California and the Chief Executive of the state government.

25 He is sued in his official capacity. As Governor he is

26 obligated under state law to supervise the official conduct

27 of all executive and ministerial officers and to see that 2 8 all offices are filled and their duties lawfully performed.

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1 Defendant Wilson has the authority to appoint and remove the

2 subordinate defendants named herein. Governor Wilson

3 retains the ultimate state authority over all the prison

4 conditions and procedures to which plaintiffs' causes of

5 action relate. Defendant Wilson has the authority and

6 responsibility to take action to remedy the violations of

7 law set forth in this complaint, but has not done so.

8

45. Defendant Thomas Maddock is Secretary of the Youth

9 and Corrections Agency of the State of California and is

10 sued in this capacity. The Youth and Corrections Agency

11 supervises the operation of the California Department of

12 Corrections. Defendant Maddock has the authority and

13 responsibility to take action to remedy the violations of

14 law set forth in this complaint, but has not done so.

15

46. Defendant C.A. Terhune is the.Director of the

16 California Department of Corrections and is sued in that

17 capacity. The Department of Corrections is responsible for

18 the operation of the California state prison system,

19 including the provision of constitutionally adequate condi-

20 tions and procedures for plaintiffs. Defendant Terhune has

21 the authority and responsibility to take action to remedy

22 the violations of law set forth in this complaint, but has

23 not done so.

24

47. Defendant Susan Steinberg is the Deputy Director

25 for Health Care Services for the California Department of

2 6 Corrections and is sued in that capacity. As Deputy 27 Director, defendant Steinberg is responsible for supervising 2 8 the development and implementation of a system of individual

12632345

.

-21-

SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1 assessment of a prisoner's disabilities, including his or

2 her ability to perform daily living tasks. Defendant

3 Steinberg has the authority and responsibility to take

4 action to remedy the violations of law set forth in this

5 complaint, as to which she is a named defendant but lias not

6 done so.

7

48. Defendant Nadim Khoury, M.D. is the Assistant

8 Deputy Director of Medical Services for the California

9 Department of Corrections and is sued in that capacity. As

10 Assistant Deputy Director, Dr. Khoury has responsibility for

11 supervising the provision of medical and health care for all

12 prisoners in the custody of the Department of Corrections.

13 Defendant Khoury has the authority and responsibility to

14 take action to remedy the violations of law set forth, in

15 this complaint as to which he is a named defendant, but has

16 not done so.

17

49. Defendant Marjorie Tavoularis, M.D. is Chief of

18 Psychiatric Services. Dr. Tavoularis is responsible for

19 supervising the provision of psychiatric care for all

20 prisoners within the custody of the Department. Defendant

21 Tavoularis has the authority and responsibility to take

22 action to remedy the violations of law set forth in this

23 complaint, as to which she is a named defendant, but has not

24 done so.

25

26

27

28

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1

CLASS ACTION ALLEGATIONS

2

50. Plaintiffs bring this action on their own behalf

3 and, pursuant to Rule 23(b)(1) and Rule 23(b)(2) of the

4 Federal Rules of Civil Procedure, on behalf of all develop-

5 mentally disabled persons who are now, or will in the future

6 be, confined within the California Department of Corrections

7 and under the control of defendants.

8

(a) Upon information and belief, more than 1,500

9 prisoners incarcerated in correctional facilities operated

10 by the State of California are developmentally disabled.

11 Accordingly, the class is so numerous that joinder of all

12 its members is impracticable.

13

(b) The conditions, practices and omissions that form

14 the basis of this complaint are common to all members of the

15 class and the relief sought will apply to all of them.

16

(c) The claims of the plaintiffs are typical of the

17 claims of the entire class.

18

(d) The prosecution of separate actions b y individual

19 members of the class would create a risk of inconsistent and

2 0 varying adjudications which would establish incompatible

21 standards of conduct for defendants.

22

(e) The prosecution of separate actions b y individual

23 members of the class would create a risk of adjudications

24 with respect to individual members which would, as a 25 practical matter, substantially impair the ability of other

26 members to protect their interests.

27

(f) Defendants have acted or refused to act on grounds

28 generally applicable to the class, making appropriate

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 injunctive and declaratory relief with respect to the class

2 as a whole.

3

(g) There are questions of law and fact common, to the

4 members of the class, including defendants' violations of

5 the United States Constitution, section 504 of the Rehabili-

6 tation Act, and sections 12131-12133 of the Americans with

7 Disabilities Act by failing to provide adequate accommoda-

8 tions, protection and services.

9

(h) The named plaintiffs are capable, through counsel,

10 of fairly and adequately representing the class and

11 protecting its interests because they are prisoners confined

12 within the California Department of Corrections who are

13 developmentally disabled but are not receiving adequate

14 accommodations, protection and services in violation of

15 42 U.S.C. § 1983, the United States Constitution,

16 section 504 of the Rehabilitation Act, and sections 12131-

17 12133 of the Americans with Disabilities Act.

18

51. Toriano Lowe and other similarly situated

19 plaintiffs meet the requirements for certification as a

20 subclass pursuant to Fed. R. Civ. P. Rule 23(c)(4).

21

(a) Upon information and belief, more than 100

22 developmentally disabled inmates are eligible for special

23 education services under the Individuals with Disabilities

24 Education Act. Accordingly, the class is so numerous that

25 joinder of all its members is impracticable.

26 •

(b) The conditions, practices and omissions that form

27 the basis of this complaint are common to all members of the

28 subclass and the relief sought will apply to all of them.

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1

(c) The claims of Toriano Lowe are typical of the

2 claims of the entire subclass.

3

(d) The prosecution of separate actions by individual

4 members of the subclass would create a risk of inconsistent

5 and varying adjudications which would establish incompatible

6 standards of conduct for defendants.

7

(e) The prosecution of separate actions by individual

8 members of the subclass would create a risk of adjudications

9 with respect to individual members which would, as a

10 practical matter, substantially impair the ability of other

11 members to protect their interests.

12

(f) Defendants have acted or refused to act on grounds

13 generally applicable to the subclass, making appropriate

14 injunctive and declaratory relief with respect to the

15 subclass as a whole.

16

(g) There are questions of law and fact common to the

17 members of the subclass, including defendants' violations of

18 the Individuals with Disabilities Education Act by failing

19 to provide special education and related services to the

20 plaintiffs.

21

(h) Toriano Lowe is capable, through counsel, of

22 fairly and adequately representing the subclass and

23 protecting its interests because he is a prisoner confined

24 within the California Department of Corrections who is

25 developmentally disabled but is not receiving adequate

26 accommodations, protection and services in violation of the

27 Individuals with Disabilities Education Act. 28

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1

GENERAL ALLEGATIONS

2

52. The policies of the State of California have led

3 to a direct and foreseeable increase in the number of

4 persons with developmental disabilities in prison. There

5 are now over 150,000 prisoners in California's prisons, more

6 than 1,500 of whom are developmental ly disabled.. The

7 increase in the absolute number of prisoners who are

8 developmentally disabled is concurrent with the growth of

9 the general prison population as a result of longer and

10 mandatory sentences and more frequent parole revocations.

11

53. The increase in the number of prisoners with

12 developmental disabilities under defendants' custody and

13 control is the result of other state policies as well.

14 California has delegated the prime responsibility for the

15 accommodation and habilitation of developmentally disabled 16 persons to its 58 counties, while at the same time sharply 17 reducing the funds available to counties for providing 18 necessary services. This fact, coupled with a trend toward 19 deinstitutionalization of developmentally disabled persons, 2 0 has led to a striking rise in the number of persons with

21 developmental disabilities who live on the streets and in

22 shelters. Because of their developmental disabilities,

23 these persons are more likely to be subject to arrest and 24 conviction when not properly treated or supervised. Tougher 25 and mandatory sentencing laws make it more difficult for

26 developmentally disabled offenders to avoid a state prison

27 sentence. The net result has been an increase in the number 28 of persons with developmental disabilities in state prison.

12632345

.

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1

GENERAL ALLEGATIONS

2

52. The policies of the State of California have led

3 to a direct and foreseeable increase in the number of

4 persons with developmental disabilities in prison. There

5 are now over 150,000 prisoners in California's prisons, more

6 than 1,500 of whom are developmentally disabled. The

7 increase in the absolute number of prisoners who are

8 developmentally disabled is concurrent with the growth of

9 the general prison population as a result of longer and

10 mandatory sentences and more frequent parole revocations.

11

53. The increase in the number of prisoners with

12 developmental disabilities under defendants' custody and

13 control is the result of other state policies as well.

14 California has delegated the prime responsibility for the

15 accommodation and habilitation of developmentally disabled

16 persons to its 58 counties, while at the same time sharply

17 reducing the funds available to counties for providing

18 necessary services. This fact, coupled with a trend toward

19 deinstitutionalization of developmentally disabled persons,

20 has led to a striking rise in the number of persons with

21 developmental disabilities who live on the streets and in

22 shelters. Because of their developmental disabilities,

23 these persons are more likely to be subject to arrest and

24 conviction when not properly treated or supervised. Tougher

25 and mandatory sentencing laws make it more difficult for

2 6 developmentally disabled offenders to avoid a state prison

27 sentence. The net result has been an increase in the number

28 of persons with developmental disabilities in state prison.

12632345

.

' -26 ~

SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1

54. By increasing the population of offenders with

2 developmental disabilities through the policies described

3 above, defendants have greatly expanded the class of

4 prisoners requiring the accommodations, protection and

5 services provided for by federal law and the United States

6 Constitution.

7

55. Defendants have no plans, nor have they allocated

8 any funds, to provide the legally required accommodations,

9 protection and services to the rising population of develop-

10 mentally disabled prisoners under their control. At the

11 same time they have discriminated against this population by

12 failing to provide the accommodations required by law to

13 meet the critical needs of plaintiffs and to allow them the

14 same benefits and program participation opportunities

15 afforded to non-developmentally disabled prisoners.

16

56. Defendants' intentional and deliberate indiffer-

17 ence to the needs of developmentally disabled prisoners and

18 its institution of policies and practices that result in

19 great hardships for developmentally disabled prisoners have

20 deprived plaintiffs of accommodations, protection and ser-

21 vices essential to their continued well-being. Plaintiffs

22 also have been deprived, because of their developmental

23 disabilities, of good time credits. Plaintiffs and the

24 class they represent are now and will continue to be denied

25 necessary accommodation, protection and services in numerous

26 ways, including, but not limited to, the following:

27

a. Inadequate professional staffing and training and

28 a lack of proper procedures and protections prevent defen-

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 dants from properly identifying prisoners with developmental

2 disabilities.

3

b. Inadequate professional staffing and training and

4 a lack of proper procedural protections deprive plaintiffs

5 of reasonable accommodations that would allow them to

6 understand prison rules, regulations and disciplinary,

7 grievance, parole and administrative proceedings.

8

c. Inadequate professional staffing and training and

9 a lack of proper protections deprive plaintiffs of reason-

10 able safety from physical and mental abuse at the hands of

11 correctional staff and other prisoners.

12

d. Inadequate professional staffing and training and

13 a lack of proper protections deprive plaintiffs of the

14 minimal, constitutionally required assistance they need.in

15 daily living skills to participate in prison life.

16

e. Inadequate professional staffing and training

17 deprive plaintiffs of the reasonable accommodations their

18 disabilities require to allow them to participate fully in

19 programs that are available to other inmates, including

20 work, education and health care programs.

21

f. All prisons, including those built within the last

22 five years, lack the space and physical facilities necessary

23 to provide accommodation, protection and services for

24 prisoners with developmental disabilities.

25

g. Additionally, the dearth of appropriate services

26 contributes to the unnecessary emotional and physical 27 suffering of the plaintiff class. Defendants' failure to 28 plan and budget for appropriate accommodations, protection

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1 and services for prisoners with developmental disabilities

2 is inconsistent with proven, acceptable practice in the

3 community and in other prison systems.

4

5

FIRST CLAIM FOR RELIEF

6

Violations of Section 504 of the Rehabilitation Act

7

Against All Defendants

8

57. Plaintiffs reallege and incorporate herein by

9 reference paragraphs 1 through 55, as if fully set forth

10 below.

11

58. The actions of defendants, as set forth in this

12 Complaint, constitute a violation of plaintiffs' rights

13 under section 504 of the Rehabilitation Act, codified at

14 29 U.S.C. § 794.

15

59. Plaintiffs, because of their developmental

16 disabilities, qualify as individuals with disabilities as

17 that term is used in 29 U.S.C. § 794.

18

60. The State of California and California Department

19 of Corrections are the recipients of federal financial

20 assistance as that term is used in 29 U.S.C § 794.

21

61. All of the operations of the California Department

22 of Corrections constitute a program or activity as those

23 terms are used by 29 U.S.C. § 794.

24

62. Plaintiffs, solely by reason of their

25 disabilities, have been and continue to be excluded from

2 6 participation in, denied the benefits of, and subjected to

27 discrimination under the programs and activities of the

28

12632345

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SECOND AMENDED CLASS
ACTION COMPLAINT—Case No. C-96-148S FMS

1 California Department of Corrections as controlled and

2 overseen by all defendants.

3

63. Plaintiffs are entitled to reasonable attorneys'

4 fees and expenses for maintaining this claim pursuant to

5 29 U.S.C. § 794a.

6

7

SECOND CLAIM FOR RELIEF

8 Violations of. the Individuals With Disabilities Education

9

Act

10

Against Defendants State of California, California

11 Department of Corrections, Wilson, Maddock, and Terhune

12

64. Plaintiffs reallege and incorporate herein by

13 reference paragraphs 1 through 62, as if fully set forth

14 below.

15

65. Defendant State of California is a recipient of

16 federal funds under the IDEA, 20 U.S.C. § 1401 et sea.,

17 which are used to educate "children with disabilities" as

18 defined by 20 U.S.C. § 1412(3)(A). Defendant State of

19 California has designated the California Department of

20 Corrections as the agency with the responsibility of

21 ensuring that the requirements of the IDEA are met with

22 respect to children with disabilities who are convicted as

23 adults under State law and incarcerated in adult prisons.

24 The acceptance of such federal funds obligates defendants

25 State of California, California Department of Corrections,

26 Wilson, Maddock, and Terhune to comply with the conditions

27 imposed by the IDEA, including providing special education 28 services as part of a free appropriate public education to

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1 qualifying inmates in correctional institutions as defined

2 20 U.S.C. § 1401 et sea, and Pub.L. 105-17 § 612(11) (C),

3 part of the 1997 Amendments to the IDEA.

4

66. The actions of defendants, as set forth in this

5 Complaint, constitute a violation of the rights of Toriano

6 Lowe and the subclass he represents to a free appropriate

7 public education under the Individuals With Disabilities

8 Education Act, codified at 20 U.S.C. § 1400. et seq., and as

9 amended, Pub. L. No. 105-17 (1997).

10 '

67. These subclass members, because of their

11 disabilities, qualify as children with disabilities as that

12 term is used in 20 U.S.C. § 1401(3)(A).

13

a. These subclass members are under 22 years of age.

14

b. These subclass members have a qualifying

15 disability as that term is used in 20 U.S.C. § 1401(3)(A).

16

c. These subclass members were identified as

17 "disabled" under 20 U.S.C. § 1401(3)(A) prior to their

18 incarceration.

19

d. These subclass members had individualized

20 education programs as required by 20 U.S.C. § 1401 et seq.

21 prior to their incarceration.

22

68. The State of California is a recipient of federal

23 financial assistance for special education and related

24 services pursuant to 20 U.S.C. § 1411.

25

69. The California Department of Corrections is a

26 public agency responsible for ensuring that the requirements

27 of the Individuals with Disabilities Education Act are met

28 as the term "public agency" is used in 20 U.S.C. § 1412(11).

12632345

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SECOND AMENDED CLASS ACTION COMPIAINT--Case No. C-96-1486 FMS

1

70. Since at least January 12, 1994, the California

2 Department of Corrections has been aware of its

3 responsibility to provide special education services to

4 inmates identified as children with disabilities.

5

71. Plaintiffs are entitled to reasonable attorneys'

6 fees, litigation expenses and costs for maintaining this

7 action pursuant to 20 U.S.C. § 1415(i) (3) (B).

8

9

THIRD CLAIM FOR RELIEF

10

Violations of the Americans with Disabilities Act

11 Against Defendants Wilson, Maddock, Terhune, Steinberg,

12

Khoury and Tavoularis

13

72. Plaintiffs reallege and incorporate herein by

14 reference paragraphs 1 through 69, as if fully set forth

15 below.

16

73. The actions of defendants, as set forth in this

17 Complaint, constitute a violation of plaintiffs' rights

18 under Title II of the Americans with Disabilities Act,

19 codified at 42 U.S.C. §§ 12131-12133.

20

74. Plaintiffs are qualified individuals with

21 disabilities within the meaning of 42 U.S.C. § 12131 because

22 with reasonable modification of rules, policies and prac-

23 tices of the California Department of Corrections and with

24 the provision of reasonable auxiliary services, plaintiffs

25 could meet the eligibility requirements for the receipt of

26 services and participation in programs and activities

27 provided by the California Department of Corrections to non-

28 developmentally disabled prisoners.

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C - 9 6 - 1 4 8 6 FMS

1

75. The California Department of Corrections, as

2 operated and overseen.by defendants Wilson, Maddock,

3 Terhune, Steinberg, Khoury and Tavoularis is a public entity

4 within the meaning of 42 U.S.C. § 12131 because it is a

5 department and instrumentality of the State of California.

6

76. Plaintiffs are entitled to reasonable attorneys'

7 fees, litigation expenses and costs for maintaining this

8 claim pursuant to 42 U.S.C. § 12133 and 29 U.S.C. § 794a.

9

10

FOURTH CLAIM FOR RELIEF

11

Violations of 42 U.S.C. § 1983

12 • Against Defendants Wilson, Maddock, Terhune, Steinberg,

13

Khoury and Tavoularis

14

77. Plaintiffs reallege and incorporate herein by

15 reference paragraphs 1 through 74, as if-fully set forth

16 below.

17

78. The conduct described herein has been and

18 continues to be performed by defendants and their agents or

19 employees in their official capacities and is the proximate

2 0 cause of plaintiffs' ongoing deprivation of rights secured

21 by the United States Constitution under the Eighth and

22 Fourteenth Amendments.

23

79. The constitutional deprivations described herein

24 are the proximate result of the official policies, customs

25 and pervasive practices of the California Department of

2 6 Corrections and defendants. Defendants are aware of all of 27 the unconstitutional conduct complained of herein and have

2 8 condoned or been deliberately indifferent to such conduct.

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1

80. Defendants' provision of accommodations, services

2 and protection to plaintiffs is constitutionally deficient

3 in a number of respects, including without limitation:

4

a. Defendants subject plaintiffs to disciplinary,

5 grievance, parole and administrative proceedings which the

6 plaintiffs, whose I.Q.s are very low,•lack the ability to

7 understand or to participate meaningfully in without

8 assistance;

.

9

b. Defendant subject plaintiffs to administrative

10 procedures by means of written documentation when plain-

11 tiffs, whose I.Q.s are very low, lack the ability to read

12 and write adequately enough to understand, or to respond to

13 the written documentation without assistance, which is not

14 provided;

15

c. Defendants subject plaintiffs to prison rules and

16 regulations by dissemination of written materials when plain-

17 tiffs, whose I.Q.s are very low, lack the ability adequately

18 to read, understand or comply with the prison rules and

19 regulations without assistance, which is not provided;

20

d. Defendants discriminate against plaintiffs by

21 excluding them, based on their disabilities, from prison

22 work, education and medical programs in numbers dispropor-

23 tionate to their population in the prison.

24

e. Defendants subject plaintiffs to cruel and unusual

25 punishment in the form of physical and emotional damage as a

26 result of their disabilities.

27

f. Defendants take no effective steps to protect

28 plaintiffs from physical and emotional exploitation and

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 abuse by other prisoners, despite defendants' knowledge that

2 because of their disabilities, plaintiffs are particularly

3 susceptible to such abuse.

4

g. Defendants discriminate against plaintiffs by

5 effectively excluding them from participation in certain

6 prison programs and administrative procedures and depriving

7 them of good time credit, with the result that developmen-

8 tally disabled prisoners must serve, longer sentences and

9 therefore suffer atypical and significant hardship as a

10 result of their developmental disabilities. Such a result

11 constitutes cruel and unusual punishment and a denial of

12 equal protection and due process.

13

h. Defendants discriminate against plaintiffs by

14 effectively depriving them of habilitation services that are

15 essential to their ability to function in prison. Such

16 deprivation constitutes cruel and unusual punishment and a

17 denial of equal protection and due process.

18

81. Plaintiffs are entitled to reasonable attorneys'

19 fees, litigation expenses and costs for maintaining this

20 claim pursuant to 42 U.S.C. § 1988.

21

22

PRAYER FOR RELIEF

23

82. Plaintiffs and the class they represent have no

2 4 adequate remedy at law to redress the wrongs suffered as set

25 forth in this complaint. Plaintiffs have suffered and will

2 6 continue to suffer irreparable injury as a result of the

27 unlawful acts, omissions, policies and practices of the

28

12632345

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SECOND AMENDED CLASS ACTION COMPLAINT—Case No. C-96-1486 FMS

1 defendants as alleged herein, unless plaintiffs are granted

2 the relief they request.

3

WHEREFORE, plaintiffs, on behalf of themselves and the

4 class they represent, request that this Court grant them the

5 following relief:

6

(a) certify the subclass of all prisoners who have

7 qualifying disabilities under the Individuals With

8 Disabilities Education Act, 20 U.S.C.A. § 1400 et seq., and

9 as amended, Pub. L. No. 105-17 (1997), who are now or in the

10 future will be in custody of any correctional facility

11 operated by the California Department of Corrections, other

12 than the California Medical Facility at Vacaville;

13

(b) adjudge and declare that the acts, omissions,

14 policies and practices of the defendants and their agents,

15 officials and employees violate plaintiffs' rights under the

16 Rehabilitation Act;

17

(c) adjudge and declare that the acts, omissions,

18 policies and practices of defendants State of California,

19 California Department of Corrections, Wilson, Maddock and

20 Terhune and their agents, officials and employees violate

21 plaintiffs' rights under the Individuals with Disabilities

22 Education Act.

23

(d) adjudge and declare that the acts, omissions,

24 policies and practices of defendants Wilson, Maddock,

25 Terhune, Steinberg, Khoury and Tavoularis and their agents,

26 officials and employees violate plaintiffs' rights under the 27 Americans With Disabilities Act; 28

12632345

,

_36—

SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1

(e) adjudge a n d declare that the acts, omissions,

2 policies and practices of defendants Wilson, Maddock,

3 Terhune, Steinberg, Khoury and Tavoularis and their agents,

4 officials and employees violate the Eighth and Fourteenth

5 Amendments, which grant constitutional protection to plain-

6 tiffs and the class that plaintiffs represent;

7

(f) order defendants, their agents, officials,

8 • employees and all persons acting in concert with them under

9 color of state law or otherwise to provide the accommoda-

10 tions, services and protections to which plaintiffs are

11 entitled under federal law and the United States

12 Constitution;

13

(g) enjoin defendants, their agents, officials,

14 employees and all persons acting in concert with them under

15 color of state law or otherwise from continuing the unlawful

16 and unconstitutional acts, conditions and practices

17 described in this Complaint;

18

(h) eliminate unreasonable risk of harm to prisoners

19 who are developmentally disabled from other prisoners or

2 0 correctional facility personnel;

21

. (i) remedy conditions that deprive prisoners of their

22 basic human needs;

23

(j) retain jurisdiction in this case until the

24 unlawful and unconstitutional conditions and practices as

25 alleged herein no longer exist and the Court is satisfied

26 that they will no longer occur;

27

(k) grant plaintiffs their reasonable attorneys' fees,

28 litigation expenses and costs for maintaining this action

12 632345

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SECOND AMENDED CLASS ACTION COMPLAINT--Case No. C-96-1486 FMS

1 pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12133, 29 U.S.C.

2 § 794a, and 20 U.S.C. § 1415(i)(3)(B).

3

(1) grant such further relief as the Court may deem

4 just and proper.

5

Dated: January , 1998.

6

PRISON LAW OFFICE

DONALD SPECTER

V

HEATHER MacKAY

General Delivery

8

San Quentin, CA 94964

9

CHAVEZ & GERTLER

MARK A. CHAVEZ

10

"

One Market Plaza

Steuart Street Tower, Suite 1475

11

San Francisco, CA 94105

12

DISABILITY RIGHTS AND EDUCATION

DEFENSE FUND

13

ARLENE MAYERSON

DIANE LIPTON

14

2216 Sixth Street

Berkeley, CA 94710

15

PILLSBURY MADISON & SUTRO LLP

16

SHAWN HANSON

CAROLINE N. MITCHELL

17

ADAM E. SAK

235 Montgomery Street

18

Post Office Box 7880

San Francisco, CA 94120-7880 19

20

By

21

Caroline N. Mitchell

Attorneys for Plaintiffs

22

23

24

25

26

27

28

12632345

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SECOND AMENDED CLASS
ACTION COMPLAINT--Case No. C-96-1486 FMS

 
 Clark v. Wilson

1 PRISON LAW OFFICE DONALD SPECTER #83925
2 HEATHER MacKAY #161434 SARA NORMAN #189536
3 General Delivery San Quentin, CA 94964
4 Telephone: (415)457-9144

5 CHAVEZ & GERTLER MARK A. CHAVEZ #90858
6 One Market Plaza Steuart Street Tower, Suite 1475
7 San Francisco, CA 94105 Telephone: (415) 777-5515
8 PILLSBURY MADISON & SUTRO LLP
9 SHAWN HANSON #109321 CAROLINE N. MITCHELL #143124
10 225 Bush Street San Francisco, CA 94120-7880
11 Telephone: (415) 983-1000

12

Attorneys for Plaintiffs

V*«

H

HH

HH

•• •

H

PC-CA-005-002

13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA
15

16 DERRICK CLARK, et al.,

17 Plaintiffs,

18

vs.

No. C 96-1486 FMS
INTERIM AGREEMENT AND STIPULATION

19 STATE OF CALIFORNIA, et al.,

20

Defendants.

21

22 A. Introduction

23

1.

On April 22, 1996, two prisoners with developmental disabilities incarcerated

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

1 within the California Department of Corrections filed this action against the State of 2 California, the Governor, the California Department of Corrections and various prison 3 officials alleging that defendants were discriminating against them on the basis of their 4 disability in violation of the Equal Protection Clause, the Americans with Disabilities Act 5 (ADA), 42 U.S.C. § 12131 etseq.. and § 504 of the Rehabilitation Act (§504), 29 U.S.C. 6 § 794, that defendants were depriving them of due process in violation of the Fourteenth 7 Amendment, and that plaintiffs were living under conditions that were cruel and unusual

8 punishment in violation of the Eighth Amendment. The Court denied defendants' motion to

9 dismiss and certified the case as a class action. Plaintiffs filed an Amended Complaint

10 adding additional plaintiffs. The parties engaged in extensive discovery, conducting more

11 than 175 depositions and producing tens of thousands of pages of documents. The Court

12 denied defendants' motion for summary judgment, except for the equal protection claim,

13 which was dismissed with prejudice. The case was set for a two month trial on June 29,

14 1998. Prior to trial the parties engaged in settlement negotiations under the supervision of

15 Judge Eugene Lynch, which produced the framework for this agreement. Further

16 negotiations between the parties produced this document.

17

B. Parties

18

2. The parties to this Interim Agreement and Stipulation (Stipulation) are

19 plaintiffs Derrick Clark, Larry Dixon, Jr., Jack von Gunten, Mark Mitchell Morino, James

20 Simmons, Estella Holloway and the class of plaintiffs that they represent, and defendants

21 State of California, California Department of Corrections, Pete Wilson, Governor,

22 Thomas M. Maddock, Secretary of the Youth and Adult Corrections Agency, Cal Terhune,

23 Director of the California Department of Corrections, Susann Steinberg, M.D., Deputy

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

1 Director for Health Care Services, Nadim Khoury, M.D., Assistant Deputy Director for

2 Medical Services, and Marjorie TaVoularis, M.D., Chief, Mental Health Care Services.

•3 The plaintiff class consists of all present and future individuals with developmental

4 disabilities*' who are under the control of the California Department of Corrections.

5

3. Each party to this Stipulation was represented by counsel during its negotiation

6 and execution. Plaintiffs and the plaintiff class are represented by Donald Specter, Prison

7 Law Office, Caroline Mitchell, Pillsbury Madison & Sutro LLP, and Mark Chavez,

8 Chavez & Gertler, et al. Cal Terhune and the other defendants are represented by Peter

9 Siggins and William Jenkins of the Office of the Attorney General of California.

10

4. Defendants waive their right to contest liability. The Supreme Court has held

11 that the ADA and §504 of the Rehabilitation Act apply to state prisons (Penn. Dept. of

12 Corrections v. Yeskev. U.S. , 1998 WL 309065 (1998)) and the petition for

13 certiorari in this case has been denied. Therefore, defendants intend to remedy the 14 constitutional and statutory violations, and have agreed to develop a screening process to 15 identify developmentally disabled prisoners and to develop and implement a policy to ensure

16
1. For purposes of the class definition, a developmental disability is defined as a 17 "disability which originates before an individual attains age 18, continues, or can be
expected to continue, indefinitely, and constitutes a substantial disability for that 18 individual. . . . [T]his term shall include mental retardation, cerebral palsy, epilepsy, and
autism. This term shall also include disabling conditions found to be closely related to 19 Mental Retardation or to require treatment similar to that required for mentally retarded
individuals, but shall not include other handicapping conditions that are solely physical in 20 nature." Cal. Welfare and Institutions Code § 4512(a). Mental Retardation means
"[significantly subaverage intellectual functioning: an IQ of approximately 70 or below on 21 an individually administered IQ test . . . [with] [concurrent deficits or impairments in
present adaptive functioning (i.e., the person's effectiveness in meeting the standards 22 expected for his or her age by his or her cultural group) in at least two of the following
areas: communication, self-care, home living, social/interpersonal skills, use of community 23 resources, self-direction, functional academic skills, work, leisure, health and safety. . . .
The onset is before age 18 years." DSM-IV at 46.

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

1 the provision of necessary supportive services to prisoners with developmental disabilities.

2

C. Interim Remedial Plan

3

1. Screening

4

5. Defendants shall develop and begin to implement a reliable method to identify

5 prisoners who are developmental^ disabled by September 15, 1998. Any such method shall

6 include an assessment of new prisoners and those currently incarcerated.

7

6. If defendants adopt an initial screening instrument that already has been

3 validated by scientific study, they may use that instrument immediately. If defendants

9 develop their own initial screening instrument or adopt one that has not been validated, they

10 shall perform a statistically valid study to determine whether it is reliable and report the

H results to plaintiffs by September 1, 1998. The methodology of any such study and the

12 criteria for determining whether it is reliable and valid will be approved by the Court's

12 Experts prior to the study. If the study determines that the instrument is unreliable,

14 defendants shall immediately use an instrument diat is recommended by the Court's Experts.

15

7. Defendants shall develop a plan to identify those prisoners already incarcerated

16 who are developmentally disabled by September 1, 1998.

17

2. Other Programs

18

8. Defendants agree to develop a plan to ensure the provision of necessary

19 supportive services and remedy the violations of the ADA, §504, and the Constitution.

20 Defendants' plan shall take into account the opinions expressed by plaintiffs' expert witnesses

21 and the factual bases therefor, and shall include:

22

a. Training. Adequate and reliable training of all custodial, clinical and

departmental staff that identify, interact widi and have responsibility for

23

inmates with developmental disabilities.

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

1

b. Education. Appropriate education for eligible inmates with developmental

disabilities. Such education shall include, but is not limited to, class size that is

2

. appropriate for educating inmates with developmental disabilities, curriculum

based testing, a basic literacy program and individually tailored education

3

programs as they may be required under the ADA or §504.

4

c. Programs. Reasonable access to work, vocational and other programs

available to non-disabled inmates. Reasonable access shall include, but is not

5

limited to, eligibility criteria that do not screen out or tend to screen out inmates with developmental disabilities who have the ability to participate in

6

the programs being offered. Reasonable access also shall include graduated supervision and training Other programs include, but are not limited to,

7

religious services, meals, recreation, substance abuse, anger management, libraries, telephones, emergency procedures, visiting, orientation, sick call,

8

mail and other written documents, and exercise.

9

d. Medical Care. Reasonable access to medical, psychiatric and dental care.

Reasonable access shall include, but is not limited to, assistance in obtaining

10

and getting to a medical appointment, and the availability of clinical staff who

are trained to elicit information from inmates with developmental disabilities.

11 e. Protection, Housing and Classification. Appropriate housing and

12

classification of prisoners with disabilities to assure that they are not exposed

to a significant risk of harm, abuse or harassment from staff or other inmates.

13 f. Staff Assistance. Appropriate assistance by properly trained staff to enable

14

inmates with developmental disabilities to understand and to participate in to

the best of their ability disciplinary, classification and other administrative

15

hearings, and to complete any forms or documents, such as administrative

appeals and credit restoration applications, necessary to secure any rights or

16

benefits available to non-disabled inmates.

17

g. Internal Reviews and Audits. An adequate internal mechanism to review and

audit compliance with the plan developed pursuant to this Stipulation to ensure

18

that defendants are effectively identifying and meeting the needs of inmates

with developmental disabilities.

19 h. Limitation. The plan need not include more than is required to remedy the

20

violations of the ADA, §504 and the Constitution.

21

9. Defendants' plan shall be developed in stages. Defendants shall provide drafts

22 of their plan to plaintiffs at least every 90 days. The parties shall meet at least every 60

23 days, from July 1, 1998, to December 31, 1999, to discuss defendants' plan. Defendants

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

1 shall provide the complete draft of their remedial plan to plaintiffs by February 1, 1999.

2

D. Final Remedial Plan

3

10. Defendants shall submit their final plan to plaintiffs by December 31, 1999.

4 Such plan shall be consistent with any orders issued by the Court. After all components of

5 the final plan have been accepted by plaintiffs or approved by die Court, the plan shall be

6 attached to the Settlement Agreement described below and shall be enforceable by me Court.

7

11. Defendants shall make all reasonable efforts to implement the plan as soon as

8 reasonably possible and shall undertake their best efforts to secure promptly the funding

9 necessary to implement the plan.

10

E. Implementation of Remedial Plan

11

12. If necessary to implement the plan, defendants shall seek from die California

12 legislature funds sufficient to implement their remedial plan in the Fiscal Year 1999/2000.

13 Defendants shall provide a copy of any budget request to plaintiffs at the time it is submitted

14 to die legislature, and shall inform plaintiffs of any other funds that are being redirected or

15 otherwise used to implement their plan. Defendants shall use all available measures and

16 make their best efforts to ensure enactment of any budget request. If defendants fail to

17 secure or redirect die funds necessary to implement their plan, plaintiffs may move die court

18 for an injunction requiring defendants to implement their plan.

19

13. With the exception of initial screening, which is to begin to be implemented by

20 September 15, 1998, defendants agree to begin implementation of dieir remedial plan

21 immediately after the FY 1999/2000 budget is enacted.

22

14. During the first 6 mondis of the implementation process defendants may

23 propose modifications to their plan to provide a more effective remedy or one diat will

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

1 provide effective relief at less cost. Any proposed modifications shall be provided to

2 plaintiffs by November 1, 1999.

3

F. Monitoring and Access to Information

4

15. Defendants shall provide plaintiffs' counsel with reasonable access to

5 information sufficient to monitor defendants' compliance with this Stipulation and to evaluate

6 the adequacy and implementation of defendants' proposed plan. Access to such information

7 shall be provided in the ordinary course of business from the date this Stipulation is executed

g until the Settlement Agreement is approved by the Court. Such information shall include,

9 but is not limited to, the following documents:

10

a. A monthly report of the identity and location of all identified members of the

11 plaintiff class;

12

b. The complete medical, psychiatric and non-confidential central files of the

13 plaintiff class;

14

c. All internal reviews or audits of defendants' plan and programs;

15

d. All budget change proposals to implement defendants' plan or programs;

16

e. All evaluations of whether prisoners are developmentally disabled;

17

f. All analyses and reports concerning the reliability of defendants' screening

18 instruments; and

19

g. Documents maintained at individual institutions that are relevant to assessing

20 the state of defendants' compliance.

21

16. Plaintiffs shall be able to conduct 33 tours of institutions per year (including

22 multiple tours of the same institutions), with or without their expert consultants. Such tours

23 shall include access to institutional programs and classification and disciplinary hearings,

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

1 housing facilities, recreational yards, and all other areas of the institution normally used by

2 inmates. Defendants shall make available for interview departmental, custodial, clinical and

3 program staff that have responsibility for the care, treatment, safety, classification, housing,

4 discipline and programming of class members. Plaintiffs' counsel shall be able to have brief

5 discussions with inmates during the tours and shall be able to provide prison staff with

g counsel's name and address for distribution to specific inmates. Defendants also shall

7 provide plaintiffs' counsel access to confidential interviews with inmates before or after the

g tours, as arranged among counsel, during regular business hours without regard to regular

9 visiting hours and days. Plaintiffs reserve their right to depose departmental, custodial,

10 clinical, and program staff members.

H

G. Independent Court Experts

12

17. The parties agree that they will jointly request that the Court appoint two

12 experts pursuant to Federal Rules of Evidence, Rule 706 to advise the Court on the adequacy

14 of defendants' plan and any other matter that appropriately may be the subject of the experts'

15 testimony. The parties shall propose to the Court that the experts' duties specified in Exhibit

16 A shall be provided to the experts pursuant to Rule 706(a). The experts shall be entitled to

17 reasonable compensation in an amount approved by the Court and shall be paid by the

lg California Department of Corrections.

19

18. The parties agree that the Court should appoint Peter Leone, Ph.D. and

20 Melissa Warren, Ph.D. as the Rule 706 experts. In the event that one or both of these

21 experts can no longer serve, the parties shall attempt to agree on a replacement(s) within 30

22 days. If the parties do not agree, defendants and plaintiffs shall each nominate one

23 replacement, and one of those nominated shall be jointly selected by the existing experts. In

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS
,8

1 the event the experts cannot agree, each expert shall submit one name to the Honorable

2 Eugene Lynch, who shall chose one and recommend that person's appointment by the Court.

3

19. The Court experts shall have access to all parts of any institution, with or

4 without notice, all relevant documents, all individuals (including confidential interviews with

5 staff or inmates) and all institutional meetings, proceedings and programs to the extent that

6 such access is needed to fulfill his or her obligations.

7

H. Negotiation. Evaluation and Judicial Review of Defendants' Plan

8

20. Upon receipt of any plan or modifications thereof required by this Stipulation,

9 plaintiffs shall notify defendants within 30 days of receipt whether they are acceptable. If

10 the plan or any component thereof is not acceptable, plaintiffs shall provide defendants with a

11 brief description of the perceived deficiencies and a request that the parties enter into

12 negotiations about the adequacy of the plan. Upon receipt of plaintiffs' request for

13 negotiations, any party may inform the Court's Experts of the area of disagreement and

14 request that the experts evaluate the issue and prepare a report. At the option of any party,

15 the negotiations shall include the Court's Experts, and any unresolved issues shall be

16 mediated by the Honorable Eugene Lynch, or, if he is not available, any other person

17 satisfactory to the parties.

18

21. If negotiation and mediation fail to resolve any issue, plaintiffs shall have the

19 option of seeking injunctive relief from the Court on any unresolved issues. The substance

20 of the mediation and any statements made by a party are confidential and not admissible in

21 any subsequent proceeding. The Experts' report(s) shall be admissible as evidence at the

22 request of any party. Defendants waive their right to oppose injunctive relief on the grounds

23 that they are not liable under the ADA, §504, or the Constitution; that plaintiffs lack

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

standing or lack proof of pervasive or widespread injury; that plaintiffs have not exhausted

2 their administrative remedies in this case; and that plaintiffs' claims are barred by the statute

3 of limitations and the laches doctrine. Defendants reserve all other defenses to injunctive

4 relief, including, but not limited to, any defenses occasioned by future changes in the

5 statutory or decisional law addressing the ADA, the Rehabilitation Act or the constitutional

rights of the plaintiff class, or the jurisdiction or powers of the court. All parties reserve

7 their right to appeal the Court's decision to grant or deny the injunction,

g I

I. Liability for Injunctive Relief

9

22. With the exception of the equal protection claim, defendants waive all their

10 rights to contest liability in any manner for any of the causes of action set forth in the

Amended Complaint and agree that they have violated the same rights of plaintiffs and some

12 members of the plaintiff class. Defendants acknowledge that this Stipulation will be a

13 complete, final and binding waiver of their rights to a trial, to present evidence, to cross-

14 examine witnesses and to make arguments on the issue of liability. This Stipulation shall be

15 admissible in this case as conclusive evidence of defendants' liability in any proceeding for

injunctive relief. Defendants reserve their right to assert that the substance of any particular

17 injunction that plaintiffs might seek is not an appropriate remedy under existing law, and the

18 defenses as set forth in \2\, above.

19

J. Settlement Agreement

20

23. After the final plan has been accepted by plaintiffs or approved by the Court a

21 Settlement Agreement in the form set forth in Exhibit B shall be submitted to the Court for

22 approval pursuant to Federal Rules of Civil Procedure, Rule 23(e).

23

INTERIM AGREEMENT AND STIPULATION NO. C96-U86 FMS
10

1

K. Alternative Relief

2

25. If at any time before the Settlement Agreement is approved by the Court

3 plaintiffs believe that defendants are not in substantial compliance with this Stipulation, they

4 may seek any form of injunctive relief permitted by law.

5

L. Transfer and Evaluation of Plaintiffs and Class Members

6

26. Within 30 days after the date this Stipulation becomes effective defendants

7 shall evaluate the named plaintiffs and the 19 class members listed in Exhibit C to determine

8 whether in order to satisfy defendants' obligations under existing law the identified inmates

9 need any further supportive or habilitative services to obtain access to defendants' programs,

10 services, or activities; whether they need placement in protective housing to protect them

11 from a significant risk of harm; or whether they should be transferred to the California

12 Men's Colony, the California Medical Facility, the California Institution for Women, or any

13 other facility for provision of such services and protection. Defendants shall provide

14 plaintiffs' counsel with a statement of the actions defendants intend to take with respect to

15 each named plaintiff and class member listed in Exhibit C. Defendants' decision shall be

16 subject to the negotiation and mediation process set forth in Section H of this Stipulation and

17 shall be one of the subjects of the first meeting between the parties.

18

M. Trial

19

27. The parties will request that the trial of this case be continued until June 1999.

20 Plaintiffs reserve the right to move for any earlier date to be set no less than 60 days from

21 the date they notify defendants of their intention to seek a trial date. Defendants agree not to

22 oppose such a request.

23

INTERIM AGREEMENT AND STIPULATION

, ...1 1

1

N. Attorney Fees and Costs

2

28. Plaintiffs are the prevailing party and are entitled to reasonable attorneys fees "'

3 . and $500,000.00 in litigation expenses and costs as provided by 42 U.S.C. § 12205, 29

4 U.S.C. § 794a for all work performed in this matter prior to the date this Stipulation is

5 executed. Defendants shall pay to plaintiffs' counsel $500,000.00 in expenses within 45 days

6 of the date that this Stipulation is executed.

7

29. The amount of attorneys fees shall be subject to negotiation between the

8 parties. Plaintiffs will provide to defendants' counsel detailed time runs by July 2, 1998.

9 These time runs and the previously provided expense statements shall be confidential; they

10 shall not be disclosed by defendants' counsel or their agents to any other persons; and the

11 detailed time runs shall not be used by defendants' counsel for any purpose other than

12 negotiating or arbitrating plaintiffs' fee award in this case. The disclosure of plaintiffs' time

13 runs shall not be deemed a waiver of their work-product or attorney-client privileges.

14

30. The parties shall meet on or before August 31, 1998, to negotiate plaintiffs'

15 fees. If this negotiation is unsuccessful the parties agree to participate in binding arbitration

16 in the manner set forth below before the Honorable Edward Stern (retired) of

17 JAMS/ENDISPUTE. Each party shall pay one half of Judge Stern's fees. The arbitration

18 shall be conducted at JAMS/ENDISPUTE in San Francisco, California. It shall be

19 completed in a one-day proceeding to occur no later than September 30, 1998.

20

31. One week prior to die hearing date, the parties shall exchange their arbitration

21 statements and provide a copy to Judge Stern. These statements may be accompanied by

22 supporting exhibits and declarations and shall include the parties' positions on the total dollar

23 amount of fees to be awarded by the arbitrator. Defendants shall not propose an amount less

INTERIM AGREEMENT AND STIPULATION NO. C96-14S6 FMS
12

1 than $1.8 million (one million eight hundred thousand dollars) and plaintiffs shall not propose 2 an amount in excess of $3 million (three million dollars).

3

32. At the hearing, each side shall have two hours to make a presentation to Judge

4 Stern regarding that party's position on the amount of fees to be awarded. The presentation

5 may include the testimony of witnesses, documents, and/or other evidence, whether or not it

6 would be admissible in a court of law. At the conclusion of a party's presentation, the other

7 side shall be entitled to conduct no more than thirty minutes of cross-examination of the

8 opposing party's witnesses, if any. At the conclusion of the presentation, Judge Stern may

9 pose whatever questions he deems appropriate to the parties or witnesses.

10

33. Within ten (10) days of the arbitration hearing, Judge Stern shall issue his

11 arbitration award, which shall accept one of the parties' positions on the amount of attorneys'

12 fees to be paid by defendants to plaintiffs' counsel. More specifically, Judge Stern shall

13 select and award the dollar amount proposed by one of the parties and may not award any

14 i other amount. In this respect, the arbitration will be conducted in the manner of baseball

15 j arbitration. The parties shall accept Judge Stern's award on the amount of fees as final,

16 binding, and non-appealable. The award shall be entered as a judgment of the Court and

17 shall be paid within 45 days of the date judgment is entered. If the award is not paid within

18 45 days, interest shall accrue starting on the 46th day at the legal rate set forth in 28 U.S.C.

19 § 1961.

20

31. Defendants shall pay plaintiffs for all work performed in connection with this

21 Stipulation in an amount not to exceed $360,000 in fees per year plus reasonable expenses,

22 expert witness fees and costs. Plaintiffs shall submit a detailed invoice for their services and

23 expenses at the end of every quarter and defendants shall pay the amount requested by

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS
13

1 plaintiffs within 45 days of receipt of each invoice, provided that defendants need not pay

2 . any fees that exceed $360,000 per year. If plaintiffs' counsel take additional steps to .

3 enforce this Stipulation through litigation they shall be entitled to seek a reasonable award of

4 attorneys fees, notwithstanding the monetary limits set forth above.

5

O. Construction of Stipulation.

6

32. This Stipulation and the Appendices attached hereto reflect the entire

7 agreement of the parties and supersede any prior written or oral agreements between them.

8 No extrinsic evidence whatsoever may be introduced in any judicial proceeding to provide

9 the meaning or construction of this Stipulation. Any modification to the terms of this

10 Stipulation must be in writing and be signed by a representative of the Department of

11 Corrections and attorneys for the plaintiffs to be effective or enforceable.

12

33. This Stipulation shall be governed by and be construed according to California

13 law. The parties waive any common law or statutory rule of construction that ambiguity

14 should be construed against the drafter of this Stipulation, and agree that the language in all

15 parts of this Stipulation shall in all cases be construed as a whole, according to its fair

16 meaning.

17

34. This Stipulation shall be valid and binding upon, and faithfully kept, observed,

18 performed and be enforceable by and against the parties, their successors and assigns and the

19 plaintiff class.

20

35. The obligations governed by this Stipulation are severable. If for any reason a

21 part of this Stipulation is determined to be invalid or unenforceable, such a determination

22 shall not affect the remainder.

23

36. The waiver by one party of any provision or breach of this Stipulation shall

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS
14

not be deemed a waiver of any other provision or breach of this Stipulation. 37. This Stipulation shall become effective upOn its execution by all of the
undersigned. This Stipulation may be executed in counterparts, and execution of counterparts shall have the same force and effect as if 411 parties had signed the same instrument.
IT IS SO STIPULATED AND AGREED.

8 Dated: 9 10 11 12 Dated: 13 14 15
Dated: 16 17 18 19
Dated: 20 21 22 23

July 20,1998 July 20, 1998 July 20, 1998 July 27, 1998

INTERIM AGREEMENT AND STIPULATION NO. C96-1486 FMS

DONAUD SPECTER Prison Law Office Attorney ror plaintiffs
7\ y hA
ROLINE N. MITCHELL Pillsbury Madison & Sutro LLP
- <£*<•—v\
PETER SIOGINS^eiior Assistant Attorney Qeneral on behalf of all defendants
CAL A. T^RHUNE, Bfrector California department of Corrections
15

EXHIBIT A

PRISON LAW OFFICE DONALD SPECTER #83925
2 HEATHER MacKAY #161434
SARA NORMAN #189536
3 General Delivery
San Quentin, CA 94964
4 Telephone: (415)457-9144
CHAVEZ & GERTLER MARK A. CHAVEZ #90858 One Market Plaza Steuart Street Tower, Suite 1475
7 San Francisco, CA 94105
Telephone: (415) 777-5515
8
PILLSBURY MADISON & SUTRO LLP
9 SHAWN HANSON #109321
CAROLINE N. MITCHELL #143124 10 225 Bush Street
San Francisco, CA 94120-7880 Telephone: (415) 983-1000

12

Attorneys for Plaintiffs

13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA
15

16 DERRICK CLARK, et al.,

17 Plaintiffs,

18

vs.

No. C 96-1486 FMS
ORDER APPOINTING EXPERTS AND PRESCRIBING DUTIES

19 STATE OF CALIFORNIA, et al.,

)

20

Defendants.

)

21

22 At the request of the parties and good cause appearing therefor, the Court hereby
23 appoints, with their consent, Peter Leone, Ph.D. and Melissa G. Warren, Ph.D. as court

Order Appointing Expert] NO. C96-M86 FMS

1 experts pursuant to Federal Rules of Evidence, Rule 706. Compensation for these experts

2 shall be approved by the Court and paid by the California Department of Corrections.

3

Pursuant to Rule 706(a) the Court hereby informs the experts that their duties shall be

4 as follows:

5

1. At the request of any party or the Court the experts shall evaluate defendants'

plans to determine whether they are sufficient to satisfy defendants' obligations set forth in

7 part C of the Interim Agreement and Stipulation.

g

2. At the request of any party or the Court the experts shall evaluate any

9 modifications proposed by defendants to determine whether those modifications in

10 combination with die rest of the plans are sufficient to satisfy defendants' obligations set

forth in part C of the Interim Agreement and Stipulation.

3. At die request of any party or the Court the experts shall evaluate any

13 modifications proposed by plaintiffs to determine whether those modifications are necessary

14 to satisfy defendants' obligations set forth in part C of the Interim Agreement and

15 Stipulation.

4. At the request of any party or the Court the experts shall evaluate defendants'

17 compliance with their plans.

13

5. Any evaluations by the experts shall be transmitted to the parties in a written

19 report(s). Such reports shall contain the experts' conclusions and shall specify the

20 information upon which any conclusions are based.

21

6. At the request of any party or the Court the experts shall attend any negotiations,

22 mediation sessions or court hearings.

23

7. The experts shall be available to meet with the parties in person or by phone in

Order Appointing Experts NO. C96-1486 FMS

such a manner as is reasonable and convenient. The experts shall be available to meet with

2 the plaintiffs or defendants separately or jointly as the occasion may warrant.

3

8. The experts shall have access to all parts of any institution, with or without notice,

4 all relevant documents, all persons (including confidential interviews with staff or inmates)

5 and all institutional meetings, proceedings and programs to the extent that such access is

needed to fulfill their obligations.

7

IT IS SO

g

Dated: July _ , 1998

9

FERN M. SMITH UNITED STATES DISTRICT COURT

10

11

12

13

14

15

16

17

18

19

20

21

22

23

Order Appointing Experts N O . C96-14«6 FMS

EXHIBIT B

PRISON LAW OFFICE DONALD SPECTER #83925
2 HEATHER MacKAY #161434
SARA NORMAN #189536
3 General Delivery •
San Quentin, CA 94964
4 Telephone: (415)457-9144

CHAVEZ & GERTLER MARK A. CHAVEZ #90858 One Market Plaza Steuart Street Tower, Suite 1475
7 San Francisco, CA 94105
Telephone: (415) 777-5515
8
PILLSBURY MADISON & SUTRO LLP
9 SHAWN HANSON #109321
CAROLINE N. MITCHELL #143124
10 225 Bush Street
San Francisco, CA 94120-7880
11 Telephone: (415) 983-1000

12

Attorneys for Plaintiffs

13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15

16
DERRICK CLARK, et al.,

17
Plaintiffs,

18

vs-

No. C 96-1486 FMS
SETTLEMENT AGREEMENT AND ORDER

19 STATE OF CALIFORNIA, et al.,

20

Defendants.

21

22

23

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

1

A. Introduction

2

• 1- On April 22, 1996,. two prisoners with developmental disabilities incarcerated

3 within the California Department of Corrections filed this action against the State of

4 California, the Governor, the California Department of Corrections and various prison

5 officials alleging that defendants were discriminating against them on the basis of their

6 disability in violation of the Equal Protection Clause, the Americans with Disabilities Act

7 (ADA), 42 U.S.C. § 12131 etseq.. and § 504 of the Rehabilitation Act (§504), 29 U.S.C. § 8 794, that defendants were depriving them of due process in violation of the Fourteenth

9 Amendment, and that plaintiffs were living under conditions that were cruel and unusual

10 punishment in violation of the Eighth Amendment. The Court denied defendants' motion to

H dismiss and certified the case as a class action. Plaintiffs filed an Amended Complaint

12 adding additional plaintiffs. The parties engaged in extensive discovery, conducting more

13 than 175 depositions and producing tens of thousands of pages of documents. The Court

14 denied defendants' motion for summary judgment, except for the equal protection claim,

15 which was dismissed with prejudice. The case was set for a two month trial on June 29,

16 1998. Prior to trial the parties engaged in settlement negotiations under the supervision of

17 Judge Eugene Lynch, which produced the framework for this agreement. Further

18 negotiations between the parties produced an Interim Agreement and Stipulation that was

19 filed with the Court on July 20, 1998.

20

Pursuant to the Interim Agreement and Stipulation defendants proposed a plan to

21 remedy the constitutional and statutory violations identified by plaintiffs. This plan was

22 subject to negotiation between the parties and, evaluated by experts appointed by the Court.

23 As a result of this process, defendants have a final plan each component of which has been

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

I

accepted by the plaintiffs or approved by the Court. Through this Settlement Agreement 1 2 defendants agree to implement this plan, subject to monitoring by plaintiffs', counsel*

3 evaluation by the Court's experts, negotiation between the parties and, if necessary,

4 enforcement by the Court.

5

B. Parties

6

2. The parties to this Settlement Agreement are plaintiffs Derrick Clark, Larry

7 Dixon, Jr., Jack von Gunten, Mark Mitchell Morino, James Simmons, Estella Holloway and

8 the class of plaintiffs that they represent, and defendants State of California, California

9 Department of Corrections, Pete Wilson, Governor, Thomas M. Maddock, Secretary of the

10 Youth and Adult Corrections Agency, Cal Terhune, Director of the California Department of

11 Corrections, Susann Steinberg, M.D., Deputy Director for Health Care Services, Nadim

12 Khoury, M.D., Assistant Deputy Director for Medical Services, and Marjorie TaVoularis,

13 M.D., Chief, Mental Health Care Services and their successors. The plaintiff class consists

14 of all present and future individuals with developmental disabilities^' who are under the

15 control of the California Department of Corrections.

16
1. For purposes of the class definition, a developmental disability is defined as a "disability which originates before an individual attains age 18, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual.... [T]his term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to Mental Retardation or to require treatment similar to that required for mentally retarded individuals, but shall not include other handicapping conditions that are solely physical in 2 0 nature." Cal. Welfare and Institutions Code 54512(a). Mental Retardation means "[s]ignficantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test . . . [with] [cjoncurrent deficits or impairments in present adaptive functioning (i.e., the person's effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.... The onset is before age 18 years." DSM-IV at 46.

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

1

3. Each party to this agreement was represented by counsel during its negotiation

2 and execution. Plaintiffs and the plaintiff class are represented by Donald Specter, Prison

3 Law Office, Caroline Mitchell, Pillsbury, Madison & Sutro LLP, and Mark Chavez, Chavez

4 & Gertler LLP, et al. Cal Terhune and the other defendants are represented by Peter Siggins

5 and William Jenkins of the Office of the Attorney General of California.

6

C. Terms and Conditions

7

4. Implementation of Plan. Defendants shall fully implement all of the

g provisions of their remedial plan, which is attached hereto as Appendix A.

9

5. Jurisdiction. The Court shall retain jurisdiction to enforce the terms of this

10 agreement. The Court shall have the power to enforce the agreement through specific

H performance and all other remedies permitted by law.

12

6. Experts. The parties agree that the appointments of Peter Leone, Ph.D. and

13 Melissa Warren, Ph.D. as Court experts will continue pursuant to Federal Rules of

14 Evidence, Rule 706 to advise the Court on the adequacy of defendants' implementation of

15 their plan and any other matter that appropriately may be the subject of the experts'

16 testimony. The experts' duties specified in Appendix B shall be provided to the experts

17 pursuant to Rule 706(a). The experts shall be entitled to reasonable compensation in an

18 amount approved by the Court and shall be paid by the California Department of

19 Corrections. The Court experts shall have access to all parts of any institution, with or

20 without notice, all relevant documents, persons (including confidential interviews with staff

21 or inmates) and institutional meetings, proceedings and programs to the extent that such

22 access is needed to fulfill his or her obligations.

23

7. In the event that one or both of these experts can no longer serve, the parties

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

I shall attempt to agree on a replacement(s) within 30 days. If the parties do not agree, 2 defendants and plaintiffs shall each nominate one replacement, and one of those nominated . 3 shall be jointly selected by the existing experts. In the event the experts cannot agree, each 4 expert shall submit one name to the Honorable Eugene Lynch, who shall chose one and 5 recommend that person's appointment by the Court.
8. Enforcement. Plaintiffs' counsel shall monitor defendants' compliance with 7 the plan set forth in Appendix A. If plaintiffs believe that defendants are not complying with g some or all of the plan they shall notify defendants of the perceived problems. Defendants 9 shall investigate the allegations and respond within twenty calendar days. If plaintiffs are not 10 satisfied with defendants' response they may request that the matters be evaluated by the H Court's experts and/or be subject to mediation with the Honorable Eugene Lynch, or, if he is 12 not available, any other person satisfactory to the parties. The substance of the mediation 13 and any statements made by a party are confidential and not admissible in any subsequent 14 proceeding. The Experts' report(s) shall be admissible as evidence at the request of any

15

15

9. If negotiations fail to resolve any issue, plaintiffs shall have the option of

17 seeking relief from the Court. The Experts' report(s) shall be admissible as evidence at the

18 request of any party.

19

10. Modification of Plan. Defendants may seek to modify their plan if there is a

20 significant change in the facts or the law; plaintiffs may seek to modify the plan if the plan

2i does not effectively remedy defendants' violations or if a modification is necessary to ensure

22 plaintiffs receive adequate supportive services to which they are entitled under the ADA,

23 §504 or the Constitution. Any party wishing to modify the plan must submit the proposed

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

1 modification to the opposing party. The opposing party may request further information, 2 request that the modifications be evaluated by the Court's experts and be the subject of

3 negotiation with Judge Lynch. If the parties fail to reach agreement on the modification, the

4 party proposing the modification may seek relief from the Court.

5

11. Monitoring and Access to Information. Defendants shall provide plaintiffs'

6 counsel with reasonable access to information sufficient to monitor defendants' compliance

7 with their plan. Access to such information shall be provided in the ordinary course of

8 business from the date this Settlement Agreement is approved by the Court. Such

9 information shall include, but is not limited to, the following documents:

10

a. A monthly report of the identity and location of all identified members

11 of the plaintiff class;

12

b. The complete medical, psychiatric and non-confidential central files of

13 the plaintiff class;

14

c. All internal reviews or audits of defendants' plan and programs;

15

d. All budget change proposals to implement defendants' plan or

16 programs;

17

e. All evaluations of whether prisoners are developmental^ disabled;

18

f. All analyses and reports concerning the reliability of defendants'

19 screening instruments; and

20

g. Documents maintained at individual institutions that are relevant to

21 assessing the state of defendants' compliance.

22

12. Plaintiffs shall be able to conduct 33 tours of institutions housing members of the

23 plaintiff class per year (including multiple tours of the same institutions), with or without

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

1 their expert consultants. Such tours shall include access to institutional programs and 2 classification and disciplinary hearings, housing facilities, recreational yards, and all other

3 areas of the institution normally used by inmates. Defendants shall make available for

4 interview departmental, custodial, clinical and program staff that have responsibility for the

5 care, treatment, safety, classification, housing, discipline and programming of class

6 members. Plaintiffs' counsel shall be able to have brief discussions with inmates during the

7 tours and shall be able to provide prison staff with counsel's name and address for

8 distribution to specific inmates. Defendants also shall provide plaintiffs' counsel access to

9 confidential interviews with inmates before or after the tours, as arranged among counsel,

10 during regular business hours without regard to regular visiting hours and days. Plaintiffs

11 reserve their right to seek to depose departmental, custodial, clinical, and program staff

12 members.

13

13. Attorney Fees. Defendants shall pay plaintiffs for all work performed in

14 connection with monitoring implementation of their plan and the terms and conditions thereof

15 in fees per year plus reasonable expenses, expert witness fees and costs. Plaintiffs shall

16 submit a detailed invoice for their services and expenses at die- end of every quarter and

17 defendants shall pay the amount requested by plaintiffs within 45 days of receipt of each 18 invoice, provided mat defendants need not pay any fees that exceed $393,333 in year 2000, 19 $426,666 in year 2001 and $460,000 in each year thereafter in which this stipulation remains 20 effective. If plaintiffs' counsel take additional steps to enforce this stipulation through 21 litigation they shall be entitled to seek a reasonable award of attorneys fees, notwithstanding 22 the monetary limits set forth above.

23

14. Termination. Defendants may move to vacate this Settlement Agreement and

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

1 dismiss the case on the ground that they have substantially complied with the plan set forth in

2 Appendix A as modified for a period of three years. Plaintiffs may oppose the motion, and

3 shall have the burden of proving that defendants are not in substantial compliance.

4 Defendants will be in substantial compliance when at the time of assessment they have

5 achieved, and may reasonably be expected to continue to achieve, satisfaction of each

6 undertaking through established policy, routine and reliable practice. A finding of non-

7 compliance shall not be based on isolated failures to follow established procedures, technical

8 departures from such procedures that do not reduce the benefits to the plaintiff class, or

9 unimportant violations of no consequence. The parties shall attempt to negotiate any disputes

10 about defendants' compliance with the assistance of Judge Lynch and/or the evaluation of the

11 Court's experts.

12

15. Liability and Necessity for Relief. Defendants admit that they have violated

13 the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein.

14 The parties agree that the relief set forth herein is narrowly drawn, extends no further than

15 necessary to correct the violation of the federal rights and is the least intrusive means

16 necessary to correct the violation of the federal rights.

17

18 IT IS SO AGREED AND STIPULATED.

19 Dated: July 20, 1998

20

DONALD SPECTER

Prison Law Office

21

Attorney for plaintiffs

22 23 Dated: July 20, 1998

CAROLINE N. MITCHELL

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

2 Dated: July 20, 1998
3
5 Dated: July _ , 1998
6

Pillsbury Madison & Sutro LLP
PETER SIGGINS, Senior Assistant Attorney General on behalf of all defendants
CAL A. TERHUNE, Director California Department of Corrections

8 Having reviewed the terms and conditions set forth above, any comments from class
9 members, the arguments of counsel and the records on file in this case, the Court hereby
10 finds that the terms of this Settlement Agreement are fair and reasonable and that defendants'
11 plan, once fully implemented, shall provide effective relief to the plaintiff class. Accordingly,
12 the Court will retain jurisdiction over diis case to enter any order necessary to ensure
13 compliance with and implementation of the terms and conditions set forth above.
14 IT IS SO ORDERED.
15

16 Dated:
17

UNITED STATES-DISTRICT COURT

18

19

20

21

22

23

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS

1 PRISON LAW OFFICE DONALD SPECTER #83925
2 HEATHER MacKAY #161434 SARA NORMAN #189536
3 General Delivery San Quentin, CA 94964
4 Telephone: (415)457-9144

5 CHAVEZ & GERTLER MARK A. CHAVEZ #90858
6 One Market Plaza Steuart Street Tower, Suite 1475
7 San Francisco, CA 94105 Telephone: (415) 777-5515
8 PILLSBURY MADISON & SUTRO LLP
9 SHAWN HANSON #109321 CAROLINE N. MITCHELL #143124
10 225 Bush Street San Francisco, CA 94120-7880
11 Telephone: (415) 983-1000

12

Attorneys for Plaintiffs

13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CAUFORNIA
15

16 DERRICK CLARK, etal.,

17 Plaintiffs,

18

vs.

19 STATE OF CALIFORNIA, et al.,

20

Defendants.

21

) No. C 96-1486 FMS ) ) ) ORDER APPOINTING EXPERTS ) AND PRESCRIBING DUTIES ) ) ) ) ) J

22 At the request of the parties and good cause appearing therefor, the Court hereby
23 appoints, with their consent, Peter Leone, Ph.D. and Melissa G. Warren, Ph.D. as court

Order Appointing Expats NO. C96-1486 FMS

experts pursuant to Federal Rules of Evidence, Rule 706. Compensation for these experts

2 shall be approved by the Court and paid by the California Department of Corrections.

3

Pursuant to Rule 706(a) the Court hereby informs the experts that their duties shall be

4 as follows:

5

1. At the request of any party or the Court the experts shall evaluate defendants'

plans to determine whether they are sufficient to satisfy defendants' obligations set forth in

7 part C of the Interim Agreement and Stipulation.

3

2. At the request of any party or the Court the experts shall evaluate any

9 modifications proposed by defendants to determine whether those modifications in

10 combination with the rest of the plans are sufficient to satisfy defendants' obligations set

forth in part C of die Interim Agreement and Stipulation.

12

3. At die request of any party or the Court the experts shall evaluate any

13 modifications proposed by plaintiffs to determine whether those modifications are necessary

14 to satisfy defendants' obligations set forth in part C of the Interim Agreement and

15 Stipulation.

4. At the request of any party or the Court die experts shall evaluate defendants'

17 compliance with meir plans.

-* >: ? •

18

5. Any evaluations by the experts shall be transmitted to me parties in a written

19 report(s). Such reports shall contain the experts' conclusions and shall specify the

20 information upon which any conclusions are based.

21

6. At the request of any party or the Court the experts shall attend any negotiations,,

22 mediation sessions or court hearings.

23

7. The experts shall be available to meet with the parties in person or by phone in

Order Appointing Experts NO. C96-U84 FMS

1 such a manner as is reasonable and convenient- The experts shall be available to meet with

2 the plaintiffs or defendants separately or jointly as the occasion may warrant.

3

8. The experts shall have access to all parts of any institution, with or without notice,

4 all relevant documents, all persons (including confidential interviews with staff or inmates)

5 and all institutional meetings, proceedings and programs to the extent that such access is

6 needed to fulfill their obligations.

7

S

Dated: July _ , 1998

9

FERN M. SMITH UNITED STATES DISTRICT COURT

10

11

12

13

14

15

16

17

18

19

20

21

22

23

Order Appointing Experts NO. C96-14S6 FMS

 
 Case3:96-cv-01486-CRB Document497-1 Filed08/26/10 Page1 of 112

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

8 DERRICK CLARK, et al.,

9

Plaintiffs,

10

v.

11 STATE OF CALIFORNIA, et al.,

12

Defendants.

Case No. CV 96-1486 CRB
[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

13

14 I. Introduction and Background

15

1. The State of California, the Governor and various state prison officials

16 initiated the current proceedings by bringing a motion pursuant to the Prison Litigation

17 Reform Act (“PLRA”), 18 U.S.C. § 3626(b), to terminate the prospective relief in this

18 case. That relief is contained in a 2001 Settlement Agreement and Order that requires

19 these defendants to comply with a set of policies and procedures, known collectively as

20 the Clark Remedial Plan (“CRP”), which they drafted to ensure that California prisoners

21 with developmental disabilities were protected from serious injury and discrimination on

22 the basis of their disability. See Americans with Disabilities Act, 42 U.S.C. § 12132; §

23 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); U.S. Constitution amends. VIII, XIV.

24 Defendants maintain that prospective relief should be terminated because there are no

25 current and ongoing violations of the plaintiff class members’ rights under federal law.

26

2. Plaintiffs and members of the plaintiff class are prisoners with

27 developmental disabilities incarcerated within California’s prison system. They oppose

28 defendants’ motion and seek further injunctive relief. They argue that an order requiring

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1
compliance with the policies and procedures in the Clark Remedial Plan would be
2
insufficient to cure those statutory and constitutional violations, and that further relief is
3
therefore necessary.
4
3. Much of the evidence before the Court is not in dispute. First, there is no
5
dispute about the nature of the class. These prisoners represent an extremely small
6
percentage of the overall prison population who, because of their disability, are vulnerable
7
to physical, sexual and verbal abuse, exploitation, theft, and harassment. They also
8
require accommodations from the normal routines of prison life if they are to be safe and
9
able to participate meaningfully in prison activities and programs.
10
4. Second, there is no dispute about the utility of the Settlement Agreement
11
and the Clark Remedial Plan. Prison officials testified that the Remedial Plan has been
12
valuable to the California Department of Corrections and Rehabilitation (CDCR). These
13
witnesses also agreed that most of the Remedial Plan would continue regardless of the
14
Court’s ruling.
15
5. What is in dispute, therefore, is whether the Order requiring compliance
16
with the Plan, including monitoring by plaintiffs’ counsel and Court experts, is necessary.
17
To help answer that question one of the Court’s experts, Dr. Peter Leone, conducted a
18
systemic review of the treatment of developmentally disabled prisoners in the CDCR.
19
Based on over 150 prisoner interviews, a review of extensive prison documents and
20
interviews with 29 prison staff at the seven prisons that house a majority of class
21
members, he concluded that “[w]hile some dedicated CDCR staff were providing
22
appropriate services and support to inmates with DD, the system as a whole appeared
23
indifferent to the needs of these inmates” and that “[t]he breadth and severity of problems
24
described in this report suggest that with some exceptions, inmates with DD do not
25
receive the protections and supports as described in the Clark Remedial Plan.” Report of
26
Dr. Peter Leone, February 15, 2010, (Tr. Ex. 1) (Leone Report) at 4, 19.
27
6. The weight of the evidence supports and amplifies Dr. Leone’s conclusions.
28
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1
In total the evidence demonstrates that mentally retarded prisoners and those with autism
2
spectrum disorders are regularly verbally, physically, and sexually assaulted, exploited,
3
and discriminated against in California prisons. Illiterate prisoners are not given the help
4
they need to understand or fill out important prison documents, leaving them with no way
5
to use sick call slips or grievance forms, unless they can pay other prisoners or beg them
6
for help. Developmentally disabled prisoners are punished for violating prison rules that
7
they do not understand, and are punished at hearings which they cannot comprehend.
8
These conditions violate those prisoners’ rights to due process and to be free of unlawful
9
discrimination based on their disabilities.
10
7. In 2001, defendants admitted “that they [had] violated the federal rights of
11
plaintiffs in a manner sufficient to warrant the relief contained herein.” Settlement
12
Agreement and Order, December 3, 2001 (Dkt # 194) (Settlement Agreement & Order),
13
¶ 15. Today, defendants no longer admit that they are violating the federal rights of
14
prisoners with developmental disabilities, nor that continued relief is necessary because of
15
those violations. Based upon the evidence adduced at trial, this Court disagrees. For the
16
reasons explained below, this Court DENIES in part and GRANTS in part defendants’
17
motion for relief. Moreover, this Court GRANTS in part and DENIES in part plaintiffs’
18
motion for further relief.
19
A. Procedural Background
20
8. California prisoners with developmental disabilities filed this action in 1996,
21
claiming that defendants discriminated against them on the basis of their disabilities in
22
violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, and § 504 of
23
the Rehabilitation Act (§ 504), 29 U.S.C. § 794; that defendants were depriving them of
24
due process in violation of the Fourteenth Amendment; and that plaintiffs were living
25
under conditions that constituted cruel and unusual punishment in violation of the Eighth
26
Amendment. First Amended Complaint, October 31, 1996 (Dkt # 32), at 21-25. In their
27
First Amended Complaint, plaintiffs alleged that they were denied adequate
28
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Case3:96-cv-01486-CRB Document497-1 Filed08/26/10 Page4 of 112
1
accommodations, protection, and services because of their developmental disabilities. Id.
2
at 2-4. In particular, plaintiffs alleged that defendants did not protect the plaintiff class
3
from physical violence and manipulation by other prisoners; denied them due process in
4
disciplinary, grievance, parole, or other administrative proceedings; and denied them
5
equal access to good time credits and medical and mental health care, among other prison
6
services. Id. at 7-9, 12-13.
7
9. In 1998, at the parties’ request, this Court ordered the appointment of two
8
neutral experts to assist the parties and the Court by, among other things, evaluating
9
defendants’ proposed remedial plans and modifications to, and compliance with, the
10
plans. Order Appointing Experts and Prescribing Duties, August 18, 1998 (Dkt # 180).
11
The parties together chose Dr. Peter Leone and Dr. Melissa Warren to fill the expert roles.
12
Id. at 1.
13
10. Over the next several years, the parties, with assistance from Dr. Leone and
14
Dr. Warren, negotiated and agreed on specific remedial measures necessary to protect
15
class members’ rights, formalized in the Clark Remedial Plan. The Remedial Plan sets
16
forth policies for identifying, classifying, housing, and accommodating each class
17
member, based upon the individual prisoner’s level of disability. In the Settlement
18
Agreement and Order filed with this Court on December 3, 2001, defendants admitted
19
“that they [had] violated the federal rights of plaintiffs in a manner sufficient to warrant
20
the relief contained herein.” Settlement Agreement & Order, ¶ 15. Defendants agreed to
21
implement the Clark Remedial Plan, subject to monitoring by plaintiffs’ counsel,
22
evaluation by the Court experts, negotiation between the parties, and, if necessary,
23
enforcement by the Court. Id. ¶¶ 5, 8. Specifically, they agreed that “[t]he Court shall
24
retain jurisdiction to enforce the terms of this agreement. The Court shall have the power
25
to enforce the agreement through specific performance and all other remedies permitted
26
by law.” Id. ¶ 5. As part of the settlement, all parties agreed that Dr. Leone and Dr.
27
Warren would continue in their roles as Court experts, with the same duties set forth in the
28
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1
Court’s Order from August 18, 1998. Id. ¶ 6.
2
11. On July 24, 2009, defendants filed a motion to terminate the Settlement
3
Agreement & Order, claiming that there are no current or ongoing violations of plaintiff
4
class members’ federal rights. Defendants’ Motion to Terminate Settlement Agreement,
5
July 24, 2009 (Motion to Terminate) (Dkt #205). In the same motion, defendants moved
6
to dismiss relief in this case pursuant to Federal Rule of Civil Procedure 60(b)(5).
7
Plaintiffs filed an opposition on August 7, 2009, alleging that defendants had not met their
8
burden of proof and that current and ongoing violations of the rights of the plaintiff class
9
justified the continuation of relief in this case. Plaintiffs’ Opposition to Defendants’
10
Motion to Terminate Settlement Agreement, August 7, 2009 (Opposition to Termination
11
Motion) (Dkt # 244). On March 9, 2010, plaintiffs filed a motion for further relief (Dkt #
12
329), which defendants opposed on April 5, 2010 (Dkt # 384).
13
12. This Court held an evidentiary hearing to determine whether there exist
14
current and ongoing violations of federal law and, if so, whether further relief is necessary
15
to cure those violations. The hearing began on May 10, 2010, and continued until May
16
18, 2010. Clerk’s Notice, April 12, 2010 (Dkt # 395); Civil Trial Minutes, May 18, 2010
17
(Dkt #465).
18
13. In preparation for the hearing, the Court’s expert in this case, Dr. Peter
19
Leone, visited seven institutions, spoke with 152 class members and 29 staff members,
20
and reviewed prisoner files and other documents. Peter Leone Expert Report (Tr. Ex. 1)
21
at 2-3. Based on these visits, Dr. Leone produced an expert report on February 15, 2010,
22
detailing his findings and his recommendations. See generally id.
23
14. During the six-day trial, this Court heard testimony from three expert
24
witnesses and more than 30 lay witnesses (18 by deposition), including class members,
25
correctional administrators, and prison staff members. The parties also submitted into
26
evidence close to 700 trial exhibits.
27
B. Statutory Framework for the Motions
28
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1
1. Defendants’ Motion to Terminate or Dismiss Relief
2
15. Defendants move to terminate the Settlement Agreement & Order under the
3
Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA). Although that statute provides
4
an avenue to terminate prospective relief instituted to remedy unlawful prison conditions,
5
id. at § 3626(b)(1)-(2), termination is not appropriate if a court makes written findings,
6
based on the record, that “prospective relief remains necessary to correct a current and
7
ongoing violation of the Federal right, extends no further than necessary to correct the
8
violation of the Federal right, and . . . is narrowly drawn and the least intrusive means to
9
correct the violation.” Id. § 3626(b)(3). In determining whether there is a “current and
10
ongoing violation” of federal law, courts must “take evidence on the current
11
circumstances at the prison[s].” Gilmore v. California, 220 F.3d 987, 1010 (9th Cir.
12
2000). This Court has ruled that defendants, as the party moving for termination, bear the
13
burden of proving that no such violations exist. Order Regarding Burden of Proof, April
14
2, 2010 (Dkt # 382); see also Gilmore, 220 F.3d at 1007-08. As noted below, even if
15
plaintiffs bore the burden, they have satisfied it.
16
16. Defendants also claim that changed circumstances necessitate the dismissal
17
of the Settlement Agreement & Order. Under Federal Rule of Civil Procedure 60(b)(5), a
18
court may relieve a party from its obligations pursuant to a final judgment if “applying
19
[the judgment] prospectively is no longer equitable.” The moving party must
20
demonstrate, however, “a significant change either in factual conditions or in law.” Rufo
21
v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992). In institutional reform cases,
22
district courts must ask whether such a change “renders continued enforcement [of the
23
judgment] ‘detrimental to the public interest.’” Horne v. Flores, 129 S. Ct. 2579, 2593
24
(2009) (quoting Rufo, 502 U.S. at 384). Defendants’ desire to put a consent decree
25
behind them does not justify such relief: “Rule 60(b)(5) provides that a party may obtain
26
relief from a court order when ‘it is no longer equitable that the judgment should have
27
prospective application,’ not when it is no longer convenient to live with the terms of a
28
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1
consent decree.” Rufo, 502 U.S. at 383.
2
17. The PLRA also requires that the Court “promptly rule on any motion to . . .
3
terminate prospective relief in an action with respect to prison conditions.” 18 U.S.C.
4
§ 3626(e)(1). Prompt resolution is necessary because, under the PLRA, a termination
5
motion stays all prospective relief until the Court enters a final ruling. Id. § 3626(e)(2).
6

7

2. Plaintiffs’ Motion for Enforcement and Further Remedial Orders

8

18. Plaintiffs move for enforcement of, and further relief under, the Settlement

9 Agreement & Order in this case. Pursuant to that Agreement, defendants committed to

10 implement the Clark Remedial Plan. The Clark Remedial Plan is a series of measures

11 developed with the assistance of Court-appointed experts and designed to address, in a

12 “fair and reasonable” manner, the violations of federal law that plaintiffs had identified in

13 their complaint. Settlement Agreement & Order, ¶ 15. In agreeing to the Remedial Plan,

14 defendants acknowledged that “they had violated the federal rights of plaintiffs in a

15 manner sufficient to warrant the relief contained herein.” Id.; see also Subia at RT 256:7-

16 12 (“[w]hen I first came into this department . . . we would just watch[] these inmates who

17 are filthy and walking around looking at the sun and picking up bugs and eating them on

18 the facility and consistently getting into trouble.”). As the Court has noted and defendants

19 have conceded, “as of 2001, the parties agreed that there was a need at that point, there

20 were violations at that point, there was a plan at that point, and the plan was narrowly

21 drawn at that point.” RT 8:14-17; see also Settlement Agreement & Order at ¶ 15.

22

19. The Court “retain[s] jurisdiction to enforce the terms of this agreement.”

23 Settlement Agreement & Order at ¶ 5. Moreover, the Settlement Agreement & Order

24 contemplated that plaintiffs could bring a motion for enforcement and further relief in

25 circumstances such as those presented here, by expressly allowing plaintiffs to move to

26 modify “if the plan does not effectively remedy defendants’ violations or if a modification

27 is necessary to ensure plaintiffs receive adaptive support services to which they are

28 entitled under the ADA, § 504 [of the Rehabilitation Act], or the Constitution.” Id. ¶ 11.

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Case3:96-cv-01486-CRB Document497-1 Filed08/26/10 Page8 of 112

1
Plaintiffs bear the burden of proving that enforcement or modification of the Clark
2
Remedial Plan is necessary to address defendants’ violations of federal law.
3
C. Defendants’ Obligations under Federal Law
4

5

1. ADA and § 504

6

20. Under Title II of the Americans with Disabilities Act (ADA), “no qualified

7 individual with a disability shall, by reason of such disability, be excluded from

8 participation in or be denied the benefits of the services, programs, or activities of a public

9 entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A

10 “qualified individual with a disability” suffers from a “physical or mental impairment that

11 substantially limits one or more major life activities,” including, but not limited to “caring

12 for oneself . . . , learning, reading, concentrating, thinking, communicating, and working.”

13 Id. at § 12102(1)(A), (2)(A). It is undisputed that the Clark class members fit these

14 criteria. See Settlement Agreement & Order at ¶¶ 1-2, 15; see also CRP (Tr. Ex. 476)

15 at 1. Furthermore, state prisons are “public entities” for the purposes of Title II. Penn.

16 Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998).

17

21. Section 504 of the Rehabilitation Act (§ 504) guarantees the same right of

18 non-discrimination to disabled individuals “under any program or activity receiving

19 Federal financial assistance . . . .” 29 U.S.C. § 794(a). Because Title II of the ADA was

20 modeled on § 504, “courts have applied the same analysis to claims brought under both

21 statutes.” Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999)

22 (citations omitted); see also 42 U.S.C. § 12133 (“The remedies, procedures, and rights set

23 forth in [§ 504] shall be the remedies, procedures, and rights this subchapter provides to

24 any person alleging discrimination in violation of [section 12132 of this title].”).

25 Moreover, “courts routinely look to Rehabilitation Act case law to interpret the rights and

26 obligations created by the ADA.” Zukle, 166 F.3d at 1045 n.11. Like Title II of the

27 ADA, § 504 applies to state prisons. Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir.

28 1997).

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1
22. Under the ADA and the Rehabilitation Act, defendants must provide Clark
2
class members with “reasonable accommodations” and “reasonable modifications” so that
3
they can avail themselves of prison services and participate in prison programs and
4
activities. 29 U.S.C. § 794; 28 C.F.R. § 35.130(b)(7); see also The Americans with
5
Disabilities Act Title II Technical Assistance Manual, § II-3.6100 (requiring public
6
entities to make reasonable modifications to their policies, practices, or procedures to 7 avoid discrimination), available at http://www.ada.gov/taman2.html.1 To be “reasonable”
8
the accommodation or modification must give disabled prisoners “meaningful access” to
9
the service, program, or activity in question. Alexander v. Choate, 469 U.S. 287, 301
10
(1985).
11
23. The ADA encompasses all services, programs, and activities provided by a
12
prison to its prisoners. See, e.g., Crawford v. Ind. Dep’t of Corrs, 115 F.3d 481, 483 (7th
13
Cir. 1997) (“The use of a library is, equally clearly, an activity, and so, only a little less
14
clearly, is the use of the dining hall.”); Chase v. Baskerville, 508 F. Supp. 2d 492,
15
506 (E.D. Va. 2007) (defining the provision of “telephones, computers, cable televisions,
16
and books” as “services” under the ADA). Thus, “virtually every interaction between
17
prison officials and disabled inmates potentially exposes the State[] to liability . . . unless
18
the State[] promptly provide[s] reasonable accommodation.” Chase, 508 F. Supp. 2d at
19
505 (citing Kiman v. N.H. Dep't of Corrs., 451 F.3d 274, 289-90 (1st Cir. 2006); Chisolm
20
v. McManimon, 275 F.3d 315, 327-30 (3d Cir. 2001)).
21
2. Eighth Amendment
22
24. The Eighth Amendment prohibits the government from exacting “cruel and
23
unusual punishment” on its citizens. U.S. Const. amend. VIII. “[T]he treatment a
24
prisoner receives in prison and the conditions under which he is confined are subject to
25
1 Because the Title II Technical Assistance Manual provides the Department of 26 Justice’s interpretation of its own regulations, it “must . . . be given substantial deference
and will be disregarded only if ‘plainly erroneous or inconsistent with the regulation.’” 27 Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 732
n.11 (9th Cir. 1999) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 28 (1994)).
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1
scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993).
2
As such, prison officials “must provide humane conditions of confinement . . . and must
3
take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511
4
U.S. 825, 832 (1994) (internal quotations and citations omitted).
5
25. For an Eighth Amendment violation to lie, the deprivation suffered by the
6
prisoner must be sufficiently serious, and prison officials must be “deliberately
7
indifferent” to the deprivation. Farmer, 511 U.S. at 834. A prisoner need not establish
8
that he actually suffered a sufficiently serious deprivation; he must show only that “he is
9
incarcerated under conditions posing a substantial risk of serious harm.” Id. (citing
10
Helling, 509 U.S. at 35). As explained by the Supreme Court, it would be illogical “to
11
deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in
12
their prison on the ground that nothing yet had happened to them . . . . [A] remedy for
13
unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33.
14
26. “[D]eliberate indifference can be predicated upon knowledge of a victim’s
15
particular vulnerability (though the identity of the ultimate assailant not known in advance
16
of attack), or, in the alternative, an assailant’s predatory nature (though the identity of the
17
ultimate victim not known in advance of attack).” Brown v. Budz, 398 F.3d 904, 915 (7th
18
Cir. 2005).
19
3. Fourteenth Amendment Due Process
20
27. The Fourteenth Amendment provides that no state shall “deprive any person
21
of life, liberty, or property[] without due process of law.” U.S. Const. amend. XIV, § 1.
22
In the prison context, “States may under certain circumstances create liberty interests
23
which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-84
24
(1995); see also Youngberg v. Romero, 457 U.S. 307, 307 (1982) (involuntarily
25
committed, mentally retarded individual had “constitutionally protected liberty interests
26
under the Due Process Clause”). Specifically, due process protections attach to state
27
actions that (1) affect a prisoner’s sentence in an unexpected manner, or (2) impose an
28
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1
“atypical and significant hardship on the inmate in relation to the ordinary incidents of
2
prison life.” Sandin, 515 U.S. at 484.
3
D. The Clark Remedial Plan

4

5

28. In 2001, the parties agreed that the Clark Remedial Plan represented the

6 narrowest, least intrusive set of procedures that could effectively ensure the federal rights

7 of developmentally disabled prisoners. From that time, the Remedial Plan has served as

8 the cornerstone of defendants’ efforts to comply with the Settlement Agreement reached

9 by the parties and effectuated by this Court.

10

1. Identification

11

29. As a threshold matter, defendants must ensure that developmentally disabled

12 prisoners are properly identified in order to provide reasonable accommodations to those

13 prisoners under the ADA and § 504. See Armstrong v. Davis, 275 F.3d 849, 876 (9th Cir.

14 2001) (because regulations implementing ADA require public entity to accommodate

15 persons identified as disabled, tracking system is necessary part of compliance). The

16 Clark Remedial Plan also requires that “[e]fforts to identify inmates with developmental

17 disabilities . . . be continuous.” CRP at 14.

18

2. Reading and Writing Assistance

19

30. A developmentally disabled prisoner’s literacy level can impede his or her

20 ability to use prison services or participate in prison activities or programs. Garcia v.

21 Taylor, No. 07-cv-474, 2009 WL 2496521, at *11 (N.D. Fla. Aug. 11, 2009). Thus, the

22 regulations implementing the ADA require public entities to “take appropriate steps” to

23 ensure that the communication of information concerning prison services, activities, and

24 programs is “as effective” for the disabled as for the non-disabled. 28 C.F.R. § 35.160. In

25 doing so, the prisons must provide such services as are necessary “to afford an individual

26 with a disability an equal opportunity to participate in” prison programs and activities. Id.

27 In determining what services are necessary, defendants must give “primary consideration

28 to the requests of the individual.” Id.

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1
31. As stated by one appellate court charged with determining whether a prison
2
library provided meaningful access to its materials, “[i]t is not enough simply to say the
3
books are there, when the plaintiffs contend that they do not have the assistance necessary 4 to use the books properly.”2 Cruz v. Hauck, 627 F.2d 710, 720 (5th Cir. 1980).
5
32. The Clark Remedial Plan recognizes that developmentally disabled
6
prisoners “may have poor ability to express themselves . . . in writing.” CRP at 6.
7
Further, “[t]hey will likely have difficulty with any task requiring reading or processing
8
written material,” and, in particular, “they may have difficulty with disciplinary,
9
classification, and/or appeal processes[, which] require reading and understanding.” Id.
10
Accordingly, corrections officers are duty-bound to provide reading and writing assistance
11
to the Clark class members who need it. See id. at 42 (officers must “[p]rovide support
12
services as directed by [the prisoner’s Interdisciplinary Support Team]”). And designated
13
institutions “must ensure that [CDCR] notices, orientations packages, announcements, and
14
similar printed materials are accessible to inmates with developmental disabilities.” Id. at
15
45.
16

17

3. Meaningful Assistance in Disciplinary, Administrative, and

Classification Proceedings

18

33. As noted above, defendants must, under the ADA, “take appropriate steps”
19

to ensure that staff members’ communications with developmentally disabled prisoners
20

are “as effective” as their communications with non-disabled prisoners. 28 C.F.R. §
21

35.160. Accordingly, defendants must not only provide staff assistants to
22

developmentally disabled prisoners in disciplinary, administrative, and classification
23

proceedings, but they also must ensure that those staff assistants are providing the
24

25

2 Indeed, because the Rehabilitation Act’s goals “should . . . mirror the goals of prison

officials as they attempt to rehabilitate prisoners and prepare them to lead productive lives once

26 their sentences are complete,” providing prisoners with reading and writing assistance – in an

effort to “ensur[e] that inmates have meaningful access to prison activities” – serves “the goals of

27 both the institution and the Rehabilitation Act.” Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.

1988).

28

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1
prisoners with effective communication. Cf. Duffy v. Riveland, 98 F.3d 447, 456 (9th
2
Cir. 1996) (reversing summary judgment in favor of prison on deaf prisoner’s claim that
3
he was denied qualified interpreter at disciplinary hearing in violation of ADA). The
4
Clark Remedial Plan expressly recognizes this obligation. CRP at 8; see also id. at 42
5
(DDP counselor must serve as staff assistant as required), 61-62 (requiring training for
6
staff assistants).
7
34. Only through effective communication can defendants guarantee that
8
developmentally disabled prisoners have meaningful access to these proceedings and,
9
thus, satisfy their obligations to plaintiff class members under federal law. And, “[b]y
10
ensuring that inmates have meaningful access to . . . [such] proceedings . . . , the goals of
11
both the institution and the Rehabilitation Act are served.” Bonner v. Lewis, 857 F.2d
12
559, 562 (9th Cir. 1988).
13
35. The ADA also requires that prison staff try to counsel Clark class members,
14
rather than subjecting them to the disciplinary process, when they break prison rules that
15
they do not understand. The Ninth Circuit has “repeatedly recognized that facially neutral
16
policies may violate the ADA when such policies unduly burden disabled persons, even
17
when such policies are consistently enforced.” McGary v. City of Portland, 386 F.3d
18
1259, 1265 (9th Cir. 2004) (citations omitted); cf. Salley v. Circuit City Stores, Inc., 160
19
F.3d 977, 981 (3d Cir. 1998) (in employment context, entity “may not use established
20
policies regulating behavior to short-circuit the required analysis of whether . . . a
21
reasonable accommodation” is due to disabled person). In accordance with that
22
precedent, the Clark Remedial Plan mandates that, when addressing prisoner misconduct,
23
staff members “must take into consideration the severity of the inmate’s disability and the
24
inmate’s need for adaptive services when determining the [appropriate] method of
25
discipline.” CRP at 49. When the prisoner does not understand that he has broken a rule,
26
staff should provide the “reasonable accommodation” of “direct instructions, prompting,
27
or verbal counseling.” Id. Only if the developmentally disabled prisoner continues to
28
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1
engage in the misconduct should the employee resort to the disciplinary process. Id.
2
36. Like the ADA, § 504, and the Clark Remedial Plan, the Due Process Clause
3
requires that staff assistants provide effective communication to developmentally disabled
4
prisoners during disciplinary proceedings where there is a protected liberty interest at
5
stake.
6
37. “Due process [also] requires that a prisoner have ‘an opportunity to present
7
his views’ to the official ‘charged with deciding whether to transfer him to administrative
8
segregation.’” Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990) (quoting Hewitt
9
v. Helms, 459 U.S. 460, 476 (1983)).
10
4. Meaningful Access to Prisoner Grievance Procedures
11
38. Prison grievance procedures must be “readily available to all . . . inmates,”
12
and staff must make “appropriate provisions” to communicate those procedures to “the
13
impaired and the handicapped.” 28 C.F.R. § 40.3. Moreover, institutions must “ensure
14
that the procedure[s are] accessible to impaired and handicapped inmates.” Id. § 40.4.
15
The regulations implementing the ADA also require defendants to “adopt and publish
16
grievance procedures providing for prompt and equitable resolution of complaints alleging
17
any action that would be prohibited by [the Act].” 28 C.F.R. § 35.107(b).
18
39. Because access must be “meaningful,” Alexander, 469 U.S. at 301, prison
19
staff must ensure that developmentally disabled prisoners can submit grievances. See
20
Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (“The right of meaningful access to
21
the courts extends to established prison grievance procedures.” (citation omitted)). In
22
recognition of this obligation, the Clark Remedial Plan requires staff members to “provide
23
the necessary assistance to all DDP inmates on a case-by-case basis to ensure that those
24
who have difficulty . . . communicating in writing will be provided reasonable access to
25
[grievance] procedures.” CRP at 45.
26
40. The right of meaningful access to grievance procedures is particularly
27
important because a prisoner must exhaust the prison’s administrative remedies by
28
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1
complying with that procedure before he can access the courts. 42 U.S.C. § 1997e(a). As
2
the Ninth Circuit has recognized, “[t]he reality and substance of any of a prisoner’s
3
protected rights are only as strong as his ability to seek relief from the courts or otherwise
4
to petition the government for redress of the deprivation of his rights.” Bradley, 64 F.3d
5
at 1280.
6
5. Assistance with Self-Care and Daily Living Activities
7
41. Like almost all services provided by a prison, daily living activities such as
8
the use of showers, the exchange of laundry, and the receipt of medication constitute
9
“services, programs, or activities” under the ADA and § 504. See, e.g., Phipps v. Sheriff
10
of Cook County, 681 F. Supp. 2d 899, 916 (N.D. Ill. 2009) (“showering, toileting, and
11
lavatory use . . . regarded as programs and/or services under the ADA”).
12
42. In recognition that developmentally disabled prisoners “may show evidence
13
of poor self care[, such as] seldom bathing, soiled or unkempt clothing, poor eating
14
habits,” and a “disorganized” or “dirty” living area, the Clark Remedial Plan extends the
15
same obligations to defendants. CRP at 6, 8; see also id. at 42 (officers must “[p]rovide
16
support services as directed by [the prisoner’s Interdisciplinary Support Team]”).
17
6. Protection from Abuse
18
43. Defendants acknowledge that they “have a duty to protect all inmates,
19
including members of the [p]laintiff class, from violence at the hands of other inmates.”
20
Defendants’ Trial Brief, March 26, 2010 (Dkt # 361), at 15 (citing Clem v. Lomeli, 566
21
F.3d 1177, 1181 (9th Cir. 2009)). Defendants also recognize that the developmental
22
disabilities of Clark class members put those prisoners at greater risk for abuse and
23
exploitation than non-developmentally disabled prisoners. Subia at RT 247:8-15.
24
Specifically, developmentally disabled prisoners “may give up possessions to other
25
inmates” or “become vulnerable to sexual predators [or] manipulation by other inmates.”
26
CRP at 6. Accordingly, in adopting the Clark Remedial Plan, defendants acknowledged
27
that it was necessary for prison staff members to monitor these prisoners to promote their
28
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1
personal safety. Id. at 8, 42. Also for safety reasons, defendants agreed to accommodate
2
Clark class members in the housing assignment process. For example, DD1s with abuse
3
concerns and DD2s “must only be placed in the building designated for [them],” and
4
“[n]on-DDP inmates with a history of sexual [abuse] and/or predatory behavior against
5
‘weaker’ individuals’ must not be housed in . . . designated buildings.” Id. at 39-40.
6
44. Failing to accommodate plaintiff class members in these manners also raises
7
concerns under the Eighth Amendment. When a prisoner demonstrates either that he has
8
suffered physical or sexual assault at the hands of other prisoners, or that he lives with the
9
“substantial risk” of such assault, he establishes “sufficiently serious deprivation” and,
10
presuming the institution’s deliberate indifference to that deprivation, the infliction of
11
cruel and unusual punishment. See Berg v. Kincheloe, 794 F.2d 457, 460-61 (9th Cir.
12
1986) (prisoner who was beaten and raped by another prisoner stated an Eighth
13
Amendment claim); Johnson v. Johnson, 385 F.3d 503, 524-27 (5th Cir. 2004) (Eighth
14
Amendment protects prisoners from assault occasioned by staff’s failure to respond to
15
known risk of assault). As explained below, the crucial question with regard to the Eigth
16
Amendment is whether it has been established that Plaintiffs, on a class basis, have proved
17
the necessary deliberate indifference.
18
7. Adequate Notice of Parole Conditions
19
46. The ADA and § 504 mandate that defendants effectively communicate
20
conditions and terms of parole to developmentally disabled prisoners. Because defendants
21
provide notice of parole conditions as a service to their prisoners, they must afford
22
plaintiff class members the “reasonable accommodation” of effective communication to
23
ensure that the prisoners understand what they must do to avoid being reincarcerated.
24
Armstrong, 275 F.3d at 861-62.
25
47. Furthermore, “due process mandates that [a] petitioner cannot be subjected
26
to a forfeiture of his liberty for [otherwise non-criminal] acts unless he is given prior fair
27
warning [that the acts are proscribed].” United States v. Grant, 816 F.2d 440, 442 (9th
28
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1
Cir. 1987) (internal quotation and citation omitted). While Grant addressed the conditions
2
of probation, not parole, the Supreme Court has recognized that, from a due process
3
standpoint, parole and probation are analogous. See Gagnon v. Scarpelli, 411 U.S. 778,
4
782 (1973) (same liberty interests at stake in probation revocation and parole revocation
5
hearings). As such, the Fourteenth Amendment requires that prisoners approaching parole
6
are notified of the conditions of their parole.
7
48. It is axiomatic that, to fulfill the requirements of due process, notice must be
8
“reasonably calculated, under all the circumstances, to apprise interested parties” of that
9
which is noticed. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
10
Given that many developmentally disabled prisoners either cannot read or do not fully
11
comprehend what they read, the only way for defendants to ensure that plaintiff class
12
members receive sufficient notice of their parole conditions before leaving prison is for
13
prison staff members to effectively communicate those conditions. Cf. Mastrangelo v.
14
U.S. Parole Comm’n, 682 F.2d 402, 405 (2d Cir. 1982) (it would be “manifestly unfair” if
15
petitioner was reincarcerated because he was unaware of conditions of special parole).
16
49. CDCR rules track federal law in this regard. Wells at RT 500:21-24. Under
17
those rules, “what’s required is to have a staff member to be present . . . to effectively
18
communicate with the inmate.” Id. at 504:18-505:1. As an extension of this obligation,
19
the Clark Remedial Plan requires “[p]arole staff [to] ensure that upon reporting to a parole
20
unit, parolees with developmental disabilities are provided parole instructions in such a
21
manner as to ensure that the parolee understands . . . the parole process, the parolee’s
22
responsibilities, and the available assistance and services.” CRP at 57. So that parole
23
staff can provide this service, institutions must “notify parole field staff . . . of any inmate
24
with a verified developmental disability, as well as identified adaptive deficits and
25
prescribed support services.” Id. at 56.
26
E. Characteristics of CDCR and the Clark program
27
54. Basic facts regarding the California prison system and the Clark remedial
28
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1
program are not in dispute.
2
55. CDCR includes 33 prisons, 12 community facilities, and 41 conservation
3
camps throughout the State of California. Joint Proposed Final Pretrial Order (Dkt # 366)
4
at 6; Subia at RT 218:11-16. There are currently approximately 166,000 prisoners in the
5
33 prisons. Subia at RT 226:25. There are over 100,000 parolees in California at any
6
given time. Id. at 230:14-18. Every year, CDCR receives approximately 130,000 new
7
prisoners and releases approximately the same number. Id. at 230:19-231:1. CDCR
8
employs 66,000-67,000 people with approximately 600-900 custodial staff per institution.
9
Id. at 231:2-7.
10
56. There are 1,348 prisoners currently identified as members of defendants’
11
Developmental Disability Program (DDP). Salz at RT 85:19-86:8. That is the “highest [ ]
12
point” for the number of prisoners the CDCR has had in the DDP. Wells at RT 560:6-10.
13
In the past 10 years, the number of budgeted positions for DDP staff has been reduced
14
from 143 total positions to 137 total positions. Id. at 556:3-23. Not all of these 137
15
budgeted DDP staff positions are filled. Id. at 561:21-562:13. Every prison in Calfornia
16
has developmentally disabled prisoners from time to time. Salz at RT 133:17-25. The
17
biggest challenge defendants face in maintaining compliance with the Clark Remedial
18
Plan is the size of CDCR. Subia at RT 230:7-13.
19
57. At present, seven institutions are designated for permanent placement of
20
DD1 and DD2 prisoners: Central California Women’s Facility; California Men’s Colony
21
(CMC); California Medical Facility (CMF); California State Prison-Corcoran; California
22
Rehabilitation Center (CRC); California State Prison-Los Angeles County (Lancaster);
23
and the California Substance Abuse Treatment Facility and State Prison at Corcoran
24
(SATF). Joint Proposed Final Pretrial Order (Dkt # 366) at 7. Five prisons are designated
25
for permanent placement of DD3 prisoners: California State Prison-Sacramento; Central
26
California Women’s Facility; CMC; CMF; and Valley State Prison for Women. Id.
27
58. Richard J. Donovan Correctional Facility (R.J. Donovan) currently houses
28
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1
prisoners who are dually diagnosed DDP and Enhanced Outpatient Program (EOP)
2
(specialized housing for mentally ill prisoners) and retains some DDP staff. Id. Within
3
these institutions, staff usually designate specific units for placement of developmentally
4
disabled prisoners. Id. Approximately 300 developmentally disabled prisoners are not
5
housed in designated institutions. Salz at RT 133:12-16.
6
59. To better accommodate the particular needs of prisoners designated as
7
developmentally disabled, CDCR “clusters” these prisoners in designated institutions.
8
Joint Proposed Final Pretrial Order (Dkt # 366) at 7. In other words, CDCR aims to place
9
prisoners with similar needs together. Id.
10
60. Although most plaintiff class members are sent to designated prisons,
11
medical and psychiatric needs may override the clustering criteria. Id. Thus, class
12
members with serious medical or mental health needs may be housed in a health care
13
setting. Id.
14
61. According to the sole defense expert, it is “essential to have a plan such as
15
the [Clark Remedial Plan] for developmentally disabled prisoners.” Scaramozzino at RT
16
891:8-12. Other witnesses agreed: the Clark Remedial Plan is “very beneficial, and . . . all
17
parties have agreed on that from the beginning.” Salz at RT 157:23-158:1. It is “a
18
program that makes sense.” Id. at 159:4-23. The Clark Remedial Plan is “very useful.”
19
Subia at RT 255:24-256:18. “[I]t’s . . . a good thing to have the [Clark Remedial Plan]
20
and in terms of how [CDCR is] administering the prisons, it’s helpful.” Id. at 257:3-6.
21
The DDP works very well and is a necessary program. Serna at RT 355:16-19, 356:19-
22
21. The Clark Remedial Plan “made some savings to the operation of the prison” by
23
managing the problems that developmentally disabled prisoners face. Scaramozzino at
24
RT 892:2-14. The Clark Remedial Plan “creates a safer environment for [CDCR] staff
25
and for the inmates.” Subia at RT 256:19-257:2.
26
62. Providing the services required by the Clark Remedial Plan does not create a
27
burden for defendants. Subia at RT 256:19-257:2. The placement of developmentally
28
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1
disabled prisoners in the DDP ensures that these prisoners no longer “carr[y] a lot of staff
2
time” and saves defendants money by not requiring “a lot of higher, more expensive
3
levels of custody.” Id. at 159:17-23. “[I]t’s not a very expensive program to run.” Salz at
4
RT 159:9.
5
F. Definition and Characteristics of Developmental Disabilities
6
63. The parties are in full agreement regarding the definition and characteristics
7
of people with developmental disabilities. CRP at 1-2; Joint Proposed Final Pretrial Order
8
(Dkt # 366) at 6. There is no dispute that individuals with developmental disabilities have
9
cognitive deficits and functional impairments. CRP at 6-7; Dkt # 366 at 6. The parties
10
agree that such individuals require support accommodations and are entitled to receive
11
them in prison. CRP at 1-3, 7-9; Dkt # 366 at 6. The only dispute in this case is whether
12
prisoners with developmental disabilities are being adequately identified and
13
accommodated.
14
1. Individuals with Developmental Disabilities
15
64. Prisoners with developmental disabilities are not always easy to distinguish
16
from non-disabled prisoners. According to Dr. Nancy Cowardin, only a small percentage
17
of people with developmental disabilities have identifying physical characteristics or
18
impairments in physical or motor skills. Expert Report of Nancy Cowardin, Ph.D (Tr. Ex.
19
5) (Cowardin Report) at 10. Dr. Donald Salz, a CDCR Chief Psychologist with oversight
20
of the Clark program as it applies to mental health issues, agrees. Salz at RT 42:4-9, 91:5-
21
8.
22
65. In addition, many developmentally disabled people work hard to mask their
23
disabilities. Cowardin Report at 10, 16; Cowardin at RT 626:15-23. Masking behavior is
24
even more common among developmentally disabled people who are considered to be
25
higher functioning with only “mild” support needs–the majority of developmentally
26
disabled prisoners. Cowardin Report at 16. Masking results in compensatory behaviors
27
such as wearing a broken watch to provide a reason to ask another person what time it is
28
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1
or carrying a book to pretend to be literate. Cowardin at RT 624:4-625:2. Thus, plaintiff
2
class members may appear to have skills in areas in which they actually require help.
3
66. Individuals with developmental disabilities also have inconsistent and
4
uneven skill development, which can mask areas of impairment. Cowardin at RT 621:7-
5
20, 626:4-14; Salz at RT 75:25-76:16; Leone at RT 781:18-25. A person with adequate
6
self-care skills, for example, may have significant functional impairments in other areas.
7
Cowardin at RT 621:7-20. Dr. Salz described encountering a prisoner who was able to
8
read entire novels yet was so impaired socially that he required a very high level of
9
supervision. Salz at RT 75:25-76:16.
10
67. People with developmental disabilities might have deficits in information
11
durability. In other words, they might need repeated reminders, even if the task is one
12
they have undertaken before. Cowardin Report at 12-13; Cowardin at RT 621:21-623:3.
13
68. Many individuals with developmental disabilities have trouble transferring
14
information: taking a skill they have learned in one area and applying it to a similar task in
15
another area. Cowardin Report at 12-13. At the evidentiary hearing, Dr. Cowardin
16
described how a developmentally disabled prisoner might learn to stay inside the yellow
17
boundary lines painted in his housing unit, but may not apply that skill to another prison if
18
transferred. Cowardin at RT 623:4-624:3; see also Leone at RT 769:6-10.
19
69. People with developmental disabilities can function well in highly
20
structured environments such as prisons, where personal choices regarding food, clothing
21
and activities are eliminated. Cowardin Report at 36. Prisons, however, also have
22
numerous and complex rules. Id. The stress of learning, understanding, remembering,
23
and complying with the multitude of rules that govern prison life can offset the potential
24
benefits of the highly structured environment for developmentally disabled prisoners. Id.
25
70. Dr. Cowardin reports that myths about the functional capacities of people
26
with developmental disabilities perpetuate the idea that such “people . . . perform poorly
27
due to ignorance, insufficient education, or poor motivation/effort . . . .” Id. at 10. In fact,
28
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1
“a developmental disability is a severe, chronic condition that manifests in the
2
developmental period (birth through age 18), requires an array of mild to intensive
3
supports, and is expected to last for a lifetime. Developmental disabilities may be
4
cognitive, physical, or a combination of both.” Id.; see also CRP at 1.
5
Mental Retardation
6
72. The most common form of developmental disability is mental retardation.
7
Cowardin Report at 14. Mental retardation is characterized by limitations in intellectual
8
functioning, typically reflected in intelligence quotients of approximately 70 or below and
9
concurrent limitations in adaptive behavior originating prior to the age of 18. Id.
10
Limitations in adaptive behavior required to meet the criteria include deficits in at least
11
one of the following: conceptual skills (reading, writing, math), social skills (gullibility,
12
interpersonal skills, following rules) and practical skills (such as activities of daily living,
13
safety, use of money). Id.
14
73. Mental retardation is commonly classified as “mild,” “moderate,” or
15
“severe” in diagnostic and clinical settings. Id. at 15. However, the term “mild” mental
16
retardation is misleading. In fact, everyone with mental retardation has significant
17
functional impairments, compared to people without mental retardation. Id. at 15-16;
18
Cowardin at RT 630:4-631:18. “People with mental retardation have subaverage abilities
19
in multiple areas that impact learning and adaptive functioning.” Cowardin Report at 12.
20
Thus, compared to people without mental retardation, they have “low functional skills
21
across the board (e.g., communication, socialization, community/home, independence,
22
and functional academics).” Id.
23
Autism and Spectrum Disorders
24
74. Autism and autism spectrum disorders are also developmental disabilities.
25
Id. at 13-14. Autism is a severe cognitive disorder that “originat[es] in infancy or early
26
childhood” and is “characterized by self-absorption, an inability to interact socially,
27
repetitive behavior, language dysfunction, inflexible adherence to specific nonfunctional
28
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1
routines or rituals, stereotyped and repetitive motor mannerisms, and persistent

2
preoccupation with parts of objects.” Id. at 13; see also Cowardin 632:7-633:24.

3
Asperger’s Syndrome, which is an autism spectrum disorder and “considered a ‘milder’

4
variant of autism, is characterized by social isolation, clumsiness, and obsessive

5
preoccupation with limited conversation topics.” Cowardin Report at 13; see also

6
Cowardin at RT 633:18-24 (characterized by “perseveration on a topic” of conversation),

7
633:7-9 (explaining perseveration as a fixation on a particular area).

8
Other Developmental Disabilities

9
75. Epilepsy, cerebral palsy, and traumatic brain injury are also developmental

10
disabilities. Cowardin Report at 11. Mental illness, on the other hand, is not a

11
developmental disability. Cowardin at RT 631:22-24. Mental illness can co-occur with

12
developmental disabilities, but not all developmentally disabled people have mental

13
illness, and vice versa. Id. at 631:25-632:6. Mental illness is not a cognitive disability; it

14
does not affect intelligence. Id. at 635:16-636:1.

15

2. Functional Impairments of Prisoners with Developmental

16

Disabilities

17

76. The parties agree that plaintiff class members may require assistance in

18 multiple areas. CRP at 6-7; Salz at RT 82:21-84:16; Leone at RT 749:4-10; see generally

19 Cowardin Report at 18-36. The Court finds the following are examples of areas in which

20 developmentally disabled prisoners have deficits.

21

77. Many developmentally disabled prisoners have impaired communication

22 skills. CRP at 6; Cowardin Report at 26. Many are unable to read and write. Salz at RT

23 83:4-7, 116:18-21. They have difficulty understanding instructions, especially multi-step

24 instructions, and difficulty with any task that requires writing, such as filling out requests

25 for medical or mental health care and grievances. Cowardin Report at 25-27, 29-30, 32-

26 33. It is difficult for them to express themselves, and they often need assistance choosing

27 words to make their point. Id. at 26. As a result, developmentally disabled prisoners

28 often have difficulty communicating, self-advocating, and understanding what takes place

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1
during prison administrative proceedings and grievance processes. Id. at 25-28; CRP at 6;
2
Salz at RT 83:13-17. They are therefore at risk for unintentionally waiving their rights.
3
CRP at 6.
4
78. Many prisoners with developmental disabilities have poor socialization
5
skills. Id.; Cowardin Report at 18-21; Salz at RT 83:18-25. These prisoners have a
6
“mental youngness,” Cowardin at RT 620:19, and are naive with respect to prison culture
7
and routines. Cowardin at RT 625:3-13; CRP at 6; Salz at RT 83:18-25. This “mental
8
youngness” is especially problematic in prison settings because prisoners exhibiting this
9
characteristic are vulnerable to abuse and manipulation by other prisoners. Cowardin
10
Report at 19-21; Salz at RT 123:11-14, 124:21-125:4; CRP at 6. These prisoners become
11
easy targets for abuse “as their weaknesses becomes obvious to other prisoners in their
12
housing units.” Cowardin Report at 19. They might make poor social choices, such as
13
giving their property to other prisoners, increasing their vulnerability and risk of abuse.
14
Id.; CRP at 6; Salz at RT 84:4-16. They are susceptible to becoming involved in a cycle
15
of disciplinary infractions involving other prisoners and staff members as a result of their
16
lack of judgment and inability to understand consequences. CRP at 6; Leone at RT
17
765:23-766:2; see also Cowardin Report at 18 (failure to “understand the fine points or
18
nuance of complex social situations . . . increases the risk that they will misunderstand
19
changing rules and regulations, make poor decisions based on confusion or
20
misunderstanding, and get into trouble”).
21
79. Many prisoners with developmental disabilities are also naïve about health
22
and safety. These prisoners have difficulty identifying, treating, or preventing illness,
23
administering first aid to themselves, and understanding sexuality and basic safety. CRP
24
at 7; Cowardin Report at 30. This deficit is especially problematic among
25
developmentally disabled prisoners with poor self-advocacy skills. Because these
26
prisoners may be masking their disabilities, or simply unaware that there is a problem or
27
how to access assistance, they are not likely to request help. Cowardin Report at 24-25;
28
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1
Cowardin at RT 624:4-12. If they do attempt to self-advocate, they have difficulty
2
complying with multi-step procedures for accessing resources, such as medical and dental
3
services, grievances, the law library, and religious services. Cowardin Report at 30-33.
4
80. Many developmentally disabled prisoners have poor self-care skills. Id. at
5
28-30; see also CRP at 6; Salz at RT 84:4-5. They may need reminders to bathe, brush
6
their teeth, and wash their clothes, and they can have soiled or unkempt clothing, poor
7
eating habits, and dirty or disorganized cells. CRP at 6; Cowardin Report at 28. Poor
8
hygiene further increases plaintiff class members’ risk for abuse in a prison environment.
9
Cowardin Report at 29; Salz at RT 113:18-114:8.
10
81. Prisoners are subject to “an abundance of rules regarding all aspects of their
11
lives.” Cowardin Report at 30. Developmentally disabled prisoners often have difficulty
12
following rules and seeking needed assistance. CRP at 6; Salz at 114:9-115:2. Because
13
they have “[i]ssues pertaining to durability of learning,” they require repeated reminders
14
about the same rules. Cowardin Report at 31. Developmentally disabled prisoners might
15
have difficulty understanding some rules that may be intuitive to others. Id. at 30-31.
16
Thus, “[s]taff members who suspect a prisoner of being in violation of a rule must
17
consider whether his or her disability was a factor in the transgression.” Id. at 31. In
18
addition, to the extent that rules are posted in writing, many plaintiff class members have
19
difficulty reading and comprehending them. Id.
20
82. Developmentally disabled prisoners often have difficulty with self-direction
21
and making choices. CRP at 7; Cowardin Report at 36. It is difficult for such prisoners to
22
follow schedules, initiate activities that are appropriate to particular settings, complete
23
required tasks, problem-solve, and demonstrate appropriate assertiveness and self-
24
advocacy. CRP at 7. For example, these prisoners have difficulty choosing and initiating
25
leisure activities and appropriately engaging in those activities by taking turns,
26
communicating with others, and behaving in an acceptable manner. Id. A lack of self-
27
direction can increase their vulnerability. Cowardin Report at 18-19.
28
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1
83. Similarly, these prisoners have difficulty maintaining work assignments due

2
to inappropriate social behavior and a lack of relevant work skills. Id. at 7. They may be

3
unable to apply functional academic skills to work assignments including managing

4
oneself at work and communicating with individuals in the workplace. Id.

5

3. Support Services Required by Prisoners with Developmental

6

Disabilities

7

84. The parties agree that prisoners with developmental disabilities require

8 varied support services to access programs, services, and protection in prison. CRP at 7-

9 9; Salz at RT 82:25-84:16,128:6-17; see generally Cowardin Report at 18-37.

10

85. Many developmentally disabled prisoners require prompting to begin or

11 complete activities, such as showers, tooth-brushing, access to medical care, laundry

12 exchange, and timely attendance at work and meals. Id.; Cowardin Report at 28-30; Salz

13 at RT 112:19-25.

14

86. Prisoners with developmental disabilities require assistance by trained staff

15 members to understand and participate in disciplinary, classification, and administrative

16 processes. CRP at 8; Salz at RT 83:13-17. They require staff assistance to understand

17 what is taking place during these proceedings. Salz at RT 83:13-17. They also need help

18 choosing appropriate words to describe their positions. Cowardin Report at 26. Where

19 forms or documents are provided, they need help reading, writing, and understanding

20 those forms. Salz at RT 83:4-7; Cowardin Report at 25-28.

21

87. Developmentally disabled prisoners often require monitoring and additional

22 supervision of their safety, property, behavior, and self-care. CRP at 8; Cowardin Report

23 at 18-24. Staff members must closely monitor the behavior of developmentally disabled

24 prisoners to ensure that they are not being manipulated to give up property or to violate

25 prison rules. Cowardin Report at 31-32; Leone at RT 771:18-24, 772:16-20. Monitoring

26 is required so that developmentally disabled prisoners do not fall prey to prolonged abuse

27 without understanding that help is available. Cowardin Report at 21; Leone at RT 807:10-

28 16.

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1
88. Many prisoners with developmental disabilities require coaching, especially

2
in work and academic assignments, to acquire the skills necessary to complete the

3
activities independently. CRP at 8; see also Salz at RT 84:17-85:1.

4

4. All Developmentally Disabled Prisoners Require Individualized

and Proactive Help

5
89. The parties agree that the level of support required by each prisoner varies.

6
Cowardin Report at 17; Salz at RT 82:25-84:16, 85:2-5. Moreover, staff members must

7
consider the individual support needs of each prisoner when providing adaptive support.

8
Leone at RT 755:5-16, 762:23-763:8; see also Salz at RT 122:23-123:10 (officers must

9
monitor developmentally disabled prisoners in proceedings that implicate their due

10
process rights). Simply making generalizations about prisoners based on their

11
classifications as DD1, DD2, or DD3 will not account for uneven skill development and

12
anomalies in support needs that exist between prisoners with the same classification.

13
Cowardin Report at 17-18; Salz at RT 75:25-76:16. Staff members must communicate

14
frequently with developmentally disabled prisoners to determine what adaptive supports

15
they require to access prison programs and services. Cowardin Report at 35-36; see also

16
Salz at RT 122:6-123:2.

17
90. Because of plaintiff class members’ individualized support needs and

18
uneven skill development, it is impossible to make broad generalizations about the

19
support needs of an individual prisoner. Cowardin at RT 621:7-622:19; Leone Report at

20
2; Leone at RT 749:11; Salz at RT 75:25-76:16, 91:2-18. Rather, an individualized

21
classification system that identifies a prisoner’s required level of help in multiple areas is

22
more appropriate. Cowardin at RT 653:12-654:4.

23
91. Developmentally disabled prisoners who are considered higher functioning

24
and are masking their deficits may forgo asking for help if they think it will make them

25
appear disabled. Cowardin Report at 16. Further, prison culture dictates that prisoners

26
avoid seeking help from prison staff. Salz at RT 122:6-13. It also discourages revealing

27
instances of abuse to staff. Id. at 122:14-19, 126:17-127:9.

28

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1
92. Thus, it is important for staff to provide proactive assistance and to monitor

2
the support needs of all developmentally disabled prisoners, even those who appear high

3
functioning. Cowardin Report at 16, 35-37; see also Salz at RT 122:6-123-10.

4

5. CDCR Classification System for Prisoners with Developmental

5

Disabilities

6

93. Defendants have developed a system for classifying prisoners with

7 developmental disabilities into three categories—DD1, DD2, and DD3—based on their

8 level of support needs. CRP at 21-23; Salz at RT 75:3-24. Prisoners classified as DD1

9 are equivalent to those with “mild” mental retardation. Cowardin Report at 16-18.

10 Although considered higher functioning, DD1 prisoners still require a variety of adaptive

11 supports. Cowardin Report at 17; CRP at 21-22; Salz at RT 75:5-10. Prisoners classified

12 as DD2 function in the “moderate” range of mental retardation and, therefore, require

13 more frequent prompts and adaptive supports than DD1 prisoners. Cowardin Report at

14 17; CRP at 22-23; Salz at RT 75:11-16. Prisoners classified as DD3 are in the “severe”

15 range of impairment and require regular, intensive prompts and assistance to complete

16 self-care and daily living tasks. Cowardin Report at 17; CRP at 23; Salz at RT 75:17-24.

17 The majority, approximately 55 %, of the prisoners identified as developmentally disabled

18 by defendants are DD1. Cowardin Report at 16. DD2 prisoners comprise 40 %, and DD3

19 prisoners 5 %, of the prisoners in the DDP. Id.

20 II. The Weight of the Evidence Demonstrates Current and Ongoing Violations of the Federal Rights of the Plaintiff Class
21
A. Expert Testimony
22
94. In addressing the central issue of whether there exist current and ongoing
23
violations of the federal rights of plaintiff class members, the Court places great weight on
24
the conclusions of Dr. Peter Leone, who has served as the Court’s expert for 12 years.
25
Order Appointing Experts and Prescribing Duties, August 18, 1998 (Dkt. # 180), at 1. Dr.
26
Leone, who was selected and agreed upon by both parties, is highly qualified to serve as
27
an expert. Id. He has a Ph.D. in special education, has long standing memberships in the
28

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1
Council for Exceptional Children and the American Statistical Association, has received
2
numerous research grants over the years, and is currently a professor at the University of
3
Maryland, where his research focuses on, among other things, behavioral problems in
4
institutional settings. Leone at RT 716:21-718:13. Dr. Leone also has extensive
5
experience working with adult corrections in Maryland, Florida, Texas, Illinois,
6
Pennsylvania, New York, Connecticut, and New Hampshire. Leone at RT 719:14-719:24.
7
Dr. Leone has prepared teachers in the Maryland Department of Corrections to work with
8
developmentally disabled individuals, and researched and prepared a report for the
9
National Institute of Corrections on the Texas Mentally Retarded Offender Program.
10
Leone at RT 719:2-719:13. Defendants have never previously challenged his ability to
11
assess compliance with the Clark Remedial Plan (CRP). Leone at RT 726:8-726:11. Nor
12
have defendants previously questioned Dr. Leone’s expertise to opine about the
13
Developmentally Disabled Program (DDP) in the prisons. Leone at RT 721:17-21.
14
95. To reach his conclusions in this action, Dr. Leone conducted an extensive
15
and rigorous investigation, including site visits at seven state prisons, at which more than
16
half of the identified Clark class members reside. Peter E. Leone, Ph.D., On the Status of
17
Inmates with Developmental Disabilities in the California Department of Corrections and
18
Rehabilitation, Feb. 15, 2010 (Tr. Ex. 1) (Leone Report) at 2; see also Tr. Ex. 20 (listing
19
numbers of developmentally disabled prisoners at each prison, including those Dr. Leone
20
visited). He interviewed 152 prisoners (more than 10 % of identified Clark class
21
members) and 29 prison staff members. Leone Report at 2-3.
22
96. Dr. Leone has conducted thousands of interviews of prisoners to develop his
23
interview methodology. Leone at RT 734:22-735:4. For this investigation, he
24
interviewed prisoners in a confidential setting and used a standard set of questions for his
25
interviews. Leone at RT 735:5-13, 732:19-24. He developed a standardized rating system
26
to rank prisoners’ well-being at the various prisons, and placed prisoners in the three
27
categories conservatively: if in doubt, he categorized the prisoner as having fewer
28
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1
problems. Leone Report at 5, Leone at RT 802:7-13. He also conducted a correlation

2
study to determine whether developmentally disabled prisoners considered more impaired

3
(i.e., DD2 or DD3) reported proportionally more problems than developmentally disabled

4
prisoners considered less impaired (i.e., DD1). The study demonstrated that there was

5
little or no connection between the level of a developmentally disabled prisoner’s

6
disabilities and the severity of the problems reported. Leone at RT 743:11-746:11.

7
97. Moreover, Dr. Leone did not take everything prisoners told him as true.

8
Instead, using a method he calls “triangulation,” he evaluated the credibility of the

9
prisoners and corroborated the statements with other prisoners, prison documents, staff

10
interviews, his own personal observations, and conversations with persons outside of

11
prison. Leone at RT 729:14-730:1, 740:18-741:4.

12
98. The conclusions Dr. Leone reached were highly consistent with much of the

13
testimony, deposition excerpts and evidence presented at trial. Defendants introduced no

14 evidence at the hearing to contest any fact on which Dr. Leone based his opinions.3 The

15
only rebuttal defendants offered was that of Dr. Scaramozzino. As discussed infra in §

16
III.C, Dr. Scaramozzino provided no credible rebuttal testimony because he is not an

17
expert in the relevant areas and knows little about actual conditions for developmentally

18
disabled prisoners in California prisons. Further, as § III.C sets forth in greater detail, he

19
withdrew some of his criticisms of Dr. Leone after being presented with evidence that his

20
assumptions were incorrect, and the remainder of the criticisms are unconvincing.

21
99. In sum, Dr. Leone’s expertise, depth of knowledge, experience in this case,

22
and reasonable conclusions are entitled to great weight.

23

B. Defendants Fail to Adequately Identify Developmentally Disabled

24

Prisoners

25

100. The parties agree that prisoners identified as having developmental

26
3 Defendants sought to introduce a rebuttal report after the close of evidence. For 27 reasons explained more thoroughly below, this Court has declined to consider that
evidence. Even if it were considered, the testimony and report of Dr. Leone are more 28 persuasive.

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1
disabilities in California prisons are entitled to receive accommodations under federal law

2
and the Clark Remedial Plan. Leone Report at 1-2; Settlement Agreement & Order (Dkt #

3
194) at 2; Joint Proposed Final Pretrial Order (Dkt # 366) at 6-8. To provide those

4
accommodations, defendants must accurately identify prisoners who are developmentally

5
disabled. Defendants concede that they cannot guarantee protection and accommodation

6
for class members who are not identified. Salz at RT 128:2-17. Thus, it is essential that

7
defendants accurately identify prisoners with developmental disabilities in order to ensure

8
those prisoners receive the protections and accommodations required under the Clark

9
Remedial Plan and federal law. Nevertheless, the evidence at trial raises serious questions

10
about whether defendants are identifying all prisoners with developmental disabilities.

11

1. Multiple Reliable Sources Suggest that 2-4 % of the Prison

12

Population is Developmentally Disabled

13

101. Both the Court expert, Dr. Leone, and plaintiffs’ expert, Dr. Nancy

14 Cowardin, agree that, although they vary widely, the most conservative and reliable

15 estimates suggest that developmentally disabled prisoners comprise at least 2-4 % of the

16 prison population. Leone at RT 793:13-794:1 (“[t]he prevalence currently in the system .

17 . . is significantly below the most conservative estimates that researchers and scholars

18 have opined about”); Leone Report, 1 n.1; Cowardin at RT 641:7-11, 644:23-645:10

19 (citing studies that show expectations of 2-10 % of prisoners have mental retardation); see

20 also Cowardin Report at 15-17.

21

102. Multiple studies on the prevalence of developmental disabilities in prison

22 support the opinions of Dr. Leone and Dr. Cowardin that the prevalence rate for

23 developmental disabilities in prison should be at least 2-4 %. Dr. Leone relies primarily

24 on two studies that discuss the prevalence rate of developmental disabilities in prison. See

25 J. Jones, Persons with Intellectual Disabilities in the Criminal Justice System, Int’l J. of

26 Offender Therapy & Comp. Criminology, 723 (2007) (Jones); and J.H. Noble & R.W.

27 Conley, Toward an Epidemiology of Relevant Attributes, The Criminal Justice System

28 and Mental Retardation: Defendants and Victims (R. W. Conley et al. eds., 1992) (Noble

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1
& Conley). Both publications are surveys of other more in-depth studies. Jones at 724-

2
25, Noble & Conley at 27-34. The Noble & Conley text is a comprehensive survey of

3
studies conducted for the purpose of identifying the percentage of mentally retarded

4
people in state and federal prisons. Noble & Conley at 28-34. Drs. Noble and Conley

5
identify and list the specific tests that were used in different states and describe the

6
methods for administering testing in those states. Id. The Noble & Conley study

7
identifies where the reliability of the data was tested and validated. Id. at 28, 30. Despite

8
noting wide variations in the prevalence rates between states, both studies find a

9
prevalence rate of 2 % to be on the low end of rates identified by states. Id. at 37; Jones at

10
724.

11
103. Dr. Petersilia’s report, relied on by Dr. Cowardin, like the studies cited by

12
Dr. Leone, surveys research examining the prevalence rate of people in prison with

13
developmental disabilities. Tr. Ex. 477 at 25-26, J. Petersilia, Doing Justice? Criminal

14
Offenders with Developmental Disabilities (California Policy Research Center 2000)

15
(Petersilia) at 5. Dr. Petersilia concludes that research confirms an estimated 4-5 % of

16
people in prison have mental retardation/developmental disabilities. Id. at 25-26.

17
104. The Court finds the opinion of the experts on this issue is reliable and

18
persuasive.

19

2. Defendants Have Only Identified .80 Percent of the Prison

20

Population as Having a Developmental Disability

21

105. Defendants use a three-step screening process to identify prisoners with

22 developmental disabilities. CRP (Tr. Ex. 476) at 3-11; Salz at RT 44:13-45:13, 46:8-

23 47:13. The first step in the screening process includes a brief, ten-minute IQ screen called

24 the Quick Test. CRP at 4-5; Salz at RT 44:11-45:13. Only prisoners who score 80 or less

25 on the Quick Test will move on to the second step in the screening process, a more

26 extensive cognitive screening tool called the Test of Nonverbal Intelligence or TONI-

27 Third Edition (TONI). Salz at RT 44:11-45:13. Those prisoners who score 80 or less on

28 the TONI will be evaluated by prison staff to measure their adaptive functioning deficits

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1
in the correctional setting. Id. at RT 46:25-47:16. Prisoners who pass all screening tests
2
can be referred for reevaluation later by any staff member who observes behavior
3
indicating that the prisoner may have a developmental disability. Id. at RT 73:6-74:2;
4
CRP at 15-16.
5
106. Under the current process for screening, defendants have identified
6
approximately 1,348 prisoners, or .80 % of the total prison population, as developmentally
7
disabled. Salz at RT 51:8-20, 66:13-25. The prevalence rate of developmental disabilities
8
in California prisons, as determined by defendants, has remained constant at .80 % since
9
2002 when defendants completed testing of all existing prisoners. Id. at RT 66:13-25.
10
107. None of defendants’ evidence credibly explains the disparity between the
11
two figures–the .80 % of prisoners identified by defendants and 2-4 % that Drs. Leone and
12
Cowardin believe are in the prison system. Defendants justify the lower figure on two
13
grounds. First, defendants state that since completing testing of prisoners in 2002, they
14
have consistently identified .80 % of the population as developmentally disabled. Id. The
15
Court rejects this circular reasoning. Defendants have presented no evidence
16
demonstrating that the screening process has been validated to ensure that it identifies
17
developmentally disabled prisoners accurately and reliably. And, to the knowledge of the
18
Court expert, no validation tests have been conducted. Leone at RT 794:2-18, 795:9-13.
19
Thus, the only conclusion that can be drawn from this fact is that the screening process
20
identifies a consistent percentage of prisoners as disabled, not that the screening process
21
accurately identifies a certain percentage of prisoners as disabled.
22
108. The only support for defendants’ position is the testimony of Dr. Salz about
23
the prevalence of developmental disabilities in other state prison systems. Dr. Salz
24
testified that he received information regarding prevalence rates in other states from a
25
collegial survey, based on self-reporting by states, put together by an Oklahoma prison
26
psychologist. Salz at RT 145:22-146:6, 146:22-24, 148:15-21, 149:1-21. The survey is
27
unpublished and was not offered or admitted into evidence. Id. at 149:15-24. Dr. Salz
28
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1
does not know what states are covered in the survey, what definition of developmental
2
disabilities is being used, what tests or other criteria are used, or whether the self-reported
3
information from the states is even accurate. Id. at 146:25-147:10, 147:22-148:8.
4
Furthermore, Dr. Salz admits that he is unaware of any empirical research studies
5
regarding the prevalence rate of mental retardation in prison. Id. at RT 64:1-9.
6
109. The Court finds the mutual opinion of experts Drs. Leone and Cowardin
7
more reliable. First, Dr. Leone is the neutral Court-appointed expert in this case, who has
8
direct experience in numerous other correctional systems. Leone at RT 719:14-7:20:5.
9
He has served in this role for 12 years. Id. at RT 719:25-720:5. Defendants have never
10
contested his expertise to opine about the developmental disabilities program in California
11
and, in fact, defendants have called on his expertise and opinions regarding the
12
developmental disabilities program multiple times. Id. at RT 720:2-721:21. Defendants
13
have similarly called on the expertise of Dr. Cowardin. Cowardin at RT 616:13-617:1,
14
638:7-18; Cowardin Report at 7. Dr. Salz, on the other hand, was not called as an expert
15
by defendants, has apparently never served as an expert, has experience which is limited
16
to California, and is responsible for the screening procedures that are being called into
17
question. Salz at RT 40:7-23, 42:4-9, 42:15-43:3, 64:21-66:5, 67:17-68:7.
18
110. Second, the opinions of Drs. Leone and Cowardin are grounded in the
19
scientific literature on this issue. Both of these experts rely on published studies of the
20
prevalence of developmentally disabled individuals in prison and published articles
21
analyzing those studies. Tr. Ex. 1 at 1, 4; Cowardin at RT 667:10-668:9, 670:24-674:19.
22
Dr. Salz, on the other hand, relies exclusively on the California’s experience with the
23
results of the procedure he supervises and an unpublished informal survey by a prison
24
psychologist from Oklahoma, neither of which is an adequate basis for his opinion. Salz
25
at RT 64:12-67:6, 149:15-21. Accordingly, the Court finds that the opinions of Drs.
26
Leone and Cowardin are entitled to more weight.
27
111. Credible expert opinions compel the finding that the methodology used by
28
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1
defendants to identify prisoners with developmental disabilities likely under-identifies the

2
number of developmentally disabled people in California prisons.

3

C. The Evidence Demonstrates that Defendants Continue to Fail to

4

Provide Plaintiff Class Members with Access to Prison Programs,

Services, and Activities

5
112. Plaintiff class members are entitled to assistance and protection they need in

6
order to have access to prison programs, services, and activities. See infra § I.C.1. That

7
right includes assistance with due process proceedings. See infra § II.C.3. It also

8
includes the right to protection from the unreasonable risk of harm. See infra § II.C.2.

9
The weight of the evidence demonstrates that defendants currently fail to provide the

10
assistance required to secure these rights.

11

1. Defendants Systematically Fail to Provide Required Help with

12

Reading and Writing

13

113. Most developmentally disabled prisoners need help reading and writing.

14 Salz at RT 116:18-20; 83:4-7. If developmentally disabled prisoners who need help

15 reading and writing do not receive assistance from staff, they cannot file grievances,

16 complaints against staff members, or sick call slips to obtain medical or mental healthcare.

17 Id. at RT 117:5-22. The failure to provide such assistance violates the Clark Remedial

18 Plan (CRP). Salz at RT 119:10-11.

19

114. Defendants have failed to provide systemic support to developmentally

20 disabled prisoners who require assistance reading and writing. The Court’s expert, Dr.

21 Peter Leone, testified that in “most cases” staff did not “respond to the . . . problems of

22 daily living” including the “inability of many of these inmates to read or to advocate for

23 themselves.” Leone at RT 755:5-16; see also Leone Report (Tr. Ex. 1) at 3-4, 11-14

24 (detailing representative evidence that Leone relied on for this conclusion); Tr. Ex. 303

25 (DD2 prisoner complains “there is no-one to help with” reading or writing); Tr. Ex. 237

26 (DD prisoner frustrated because unable to speak to DDP officer); Tr. Ex. 265 (DD

27 prisoner complains that “the DDP are not helping” him).

28

115. Dr. Leone’s conclusions and staff’s failure to provide required

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1
accommodations were borne out by other evidence in the case. The testimony of several
2
prison staff members demonstrated their ignorance of—or indifference to—their
3
obligation to provide reading and writing support. Gonzalez Dep. (Tr. Ex. 483) at 80:9-12
4
(ADA Coordinator at California Medical Facility [CMF] admitted he did nothing to
5
ensure “that staff was providing reading and writing assistance”), 55:23-56:20 (did
6
nothing to ensure the librarian was helping DD prisoners); Nies Dep. (Tr. Ex. 492) at
7
77:16-17, 77:24-78:15 (ADA Coordinator at Deuel Vocational Institution [DVI] testified
8
his staff expects DD prisoners to go to other prisoners first and “are trained to provide that
9
type of assistance [reading and writing sick call requests] if there’s no one else
10
available”); Mandeville Dep. (Tr. Ex. 485) at 109:25-110:11 (ADA Coordinator at CMF
11
concerned that “the services are not being provided as intended” because she has heard
12
that prisoners are going to other prisoners for assistance); Banks Dep. (Tr. Ex. 484) at
13
73:23-25 (DDP Officer at CMF admits that she does not “ever help with completing sick
14
call requests”).
15
116. Testimony from plaintiff class members also established defendants’ failure
16
to provide the reading and writing support needed to allow these prisoners to participate as
17
fully as non-disabled prisoners in prison programs, services, and activities. See
18
Davenport Dep. (Tr. Ex. 498) at 14:24-15:21, 23:16-24:5, 38:16-21 (request for assistance
19
with laundry slip repeatedly ignored), 18:25-19:9 (explained to staff he could not read
20
military time and was told to learn), 19:13-20:9 (requested assistance writing a grievance
21
against a staff member and was referred to that staff member and “[n]othing came of it” so
22
had to pay another prisoner to write grievance); Mendez Dep. (Tr. Ex. 480) at 13:21-25,
23
17:4-17 (asked for staff help with sick call slip and was told “you’ve got to find an inmate
24
to do it”), 21:25-22:4 (told to find a prisoner to help him read and write letters), 22:21-
25
23:2 (“quit asking” for help from DDP officer after trying three or four times without
26
success), 33:22-35:12 (had to rely on other prisoners to read his disciplinary write-ups to
27
him on three different occasions); Houseknecht at RT 1001:2-18 (needed help filling out
28
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1
complicated prison forms, but nobody offered to help him read or write); Wright Dep. (Tr.

2
Ex. 496) at 77:6-25 (officers who deliver prison papers to him do not read them to him);

3
Smith at RT 512:20-23, 513:2-4, 9-17, 513:25-514:15 (needs help filling out forms such

4
as grievances, canteen slips, and sick call requests but living unit officers have “refused to

5
help [him] read and write”), 515:8-15 (DDP officer refused to help file a complaint

6
against another staff member), 519:24-520:10 (has asked DDP Counselor Rhodes “for

7
help many a times” but stopped because never receives help), 516:10-517:5 (has to pay

8
other prisoners $5 to $7 in food and cosmetics to help him read and write canteen slips,

9
sick call slips, and grievances because DDP officer “is never around”), 517:11-17 (has to

10
wait until he has money to obtain help). CDCR headquarters officials do not monitor

11
sufficiently to ensure compliance with defendants’ obligations. Salz at RT 142:9-11, 17-

12
20, 143:2-6, 9-13 (admits that he does not monitor—nor have personal knowledge of—

13
whether DD prisoners are receiving assistance with reading and writing); Wells at RT

14
555:8-12 (does not know whether all DD prisoners receive needed help reading and

15
writing).

16

a. Because of Defendants’ Failure to Provide Required

Reading and Writing Help, Plaintiff Class Members Are

17

Forced to Pay for Such Services, Which Exposes Them to

Abuse

18
119. Because developmentally disabled prisoners do not receive staff assistance

19
with reading and writing, they are forced to pay other prisoners for such services, which

20
exposes them to abuse and exploitation. See Subia at RT 248:14-249:2. Dr. Leone found

21
a widespread practice of prisoners using their canteen items, packages from home or parts

22
of their meals to pay for reading and writing support from other prisoners. Steven

23
Ramirez (#153) had to give up his lunch in order to get another prisoner to write for him.

24
Leone Report at 13. Trynon Jefferson (#78) gives other prisoners food and coffee for

25
helping him with his grievances. Id. at 12. Curtis Brumfield (#149) has had to pay his

26
cellmate with cookies for help writing documents. Id. at 13. Kuykendal Neirobi (#25)

27
pays other prisoners with lunch food to file a grievance. Id. at 14. Prisoner #42 has to pay

28

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1
in soups to have someone write letters for him. Id. at 11. Prisoner #40 also pays in soups

2
to have letters read and written. Id. at 11-12. Prisoner #41 pays other prisoners $2 to

3
write letters home. Id. at 6. Latrill Wilkerson (#28) pays other prisoners to file

4
grievances for him. Id. at 14. Celeste Jordan (#43) is regularly pressured to give up his

5
canteen; his help mostly comes from other prisoners. Id. at 6. Rudy Lopez (#37), who

6
cried during his interview with Dr. Leone, said he cannot read or write to file a grievance

7
and is regularly forced to give up his canteen. Id. at 3 n.6. Evidence from the testifying

8
class members substantiated Dr. Leone’s findings. Mendez Dep. at 24:22-25:5, 44:10-21

9
(pays prisoners with items from his packages for reading and writing help; cost $40 to

10
have grievance written); Davenport Dep. at 13:13-14:7 (pays other prisoners to help him);

11
Petties Dep. (Tr. Ex. 495) at 13:18-15:16 (has to pay a prisoner to help him write). Dr.

12
Salz, at CDCR headquarters, even acknowledges this practice. Salz at RT 117:19-22 (DD

13
prisoners who need help reading and writing might have to pay another prisoner to help

14
them).

15
120. It is dangerous for developmentally disabled prisoners to rely on other

16
prisoners’ assistance. Salz at RT 117:1-4. It creates a security risk if prisoners pay other

17
prisoners for services because in a prison economy, if prisoners do not pay their debts, it

18
can lead to violence. Subia at RT 248:14-49:2; see also Cowan Dep. (Tr. Ex. 494) at

19
121:16-22:17 (concerns about prisoners providing reading and writing assistance to other

20
prisoners because it leads to “predatory behavior,” disclosure of confidential information,

21
and non-disabled prisoners “tak[ing] advantage”).

22

b. Defendants’ Failure to Provide Required Reading and

23

Writing Help to Plaintiff Class Members Denies Them

Access to Medical Care

24
121. Without adequate support from defendants, plaintiff class members are

25
denied access to necessary medical treatment. See Cowardin Report at 34. The process

26
for obtaining medical treatment involves completing forms, describing problems,

27
requesting treatment, and reading medication labels; developmentally disabled prisoners

28

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1
are “unlikely to know about or access such forms.” Id. at 32-33. They generally need
2
assistance reading, understanding, and completing these forms. Id.
3
122. To illustrate this problem, Dr. Leone pointed to the example of Mr.
4
Brumfield (#149), a diabetic, who “was afraid of losing his feet” because he was
5
concerned about the length of time between receiving his meal and receiving his insulin.
6
Leone at RT 770:12-15; 777:11-12; 777:17. “He hadn’t seen a Doctor in awhile.” Id. at
7
777:19. Mr. Brumfield is illiterate and “when he asks [officers] for help they tell him to
8
ask his bunky or his cellmate.” Id. at 777:7-9. But his cellmate told him, “I can’t do your
9
time and my time.” Id. at 777:9-10; see also Tr. Ex. 4 at 2 (DD prisoner who has ongoing
10
medical problems had medical procedure cancelled because he ate or drank water after
11
midnight the evening before his scheduled medical procedure; he did not know not to do
12
so); Leone at RT 752:10-753:9 (DD prisoner relied on cellmate to arrange appointment
13
with the eye doctor; “he wasn’t able to get assistance except through his cellmate, and so
14
his cellmate was writing his request to see medical staff”); see also Tr. Ex. 423 (DD
15
prisoner did not receive medical care for three-week-old injury because no assistance to
16
write request).
17

18

c. Defendants’ Failure to Provide Required Reading and

Writing Help to Plaintiff Class Members Deprives Them

19

of Appropriate Access to Canteen Purchases

20

124. Defendants’ failure to help developmentally disabled prisoner fill out

21 canteen forms forces “illiterate inmates to secure the help of others in order to complete

22 the process,” which puts them at “risk of exploitation and abuse by prisoners who take

23 advantage of the situation.” Cowardin Report at 22-23. Given their adaptive deficits,

24 developmentally disabled prisoners face many difficulties in successfully completing the 25 complicated canteen process, which requires a prisoner to fill out the appropriate form to 26 withdraw money from his account, read and identify what items to purchase on a pre27 printed form, calculate the total value of selected items and determine if it exceeds the 28 amount in his account, find the canteen, deliver the form to the appropriate person or in-

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box, determine if he received all the items requested on the form, insure the correct

2
amount was deducted from his account, pick up the purchase, and transport it safely back

3
to his housing unit. Id. at 23.

4
125. Dr. Leone found that prisoners who cannot read or write are unable to

5
participate in canteen. Canteen problems were “widespread” in his prison tours, for all

6
DDP designations. Leone at RT 774:7-10. Some developmentally disabled prisoners

7
“have problems just filling out the request” for canteen. Id. at 771:16-19; see also Smith

8
at RT 516:10-517:5 (has to pay other prisoners from $5 to $7 in food and cosmetics to

9
help him read and write canteen slips, sick call slips, and grievances because the DDP

10
officer “is never around”); Blake Dep. (Tr. Ex. 497) at 81:10-83:19 (needs help filling out

11
canteen forms.) One plaintiff class member noted he was regularly pressured to surrender

12
canteen items without recourse. Leone Report at 3, n. 6 (Mr. Lopez (#37) was forced

13
regularly to give up his canteen; he does not know how to read or write or file a

14
grievance).

15

d. Defendants’ Failure to Provide Required Reading and

16

Writing Help to Developmentally Disabled Prisoners

Denies Them Access to the Prison Grievance System and

17

the Courts

18

126. Defendants’ failure to provide the support required to allow plaintiff class

19 members to pursue grievances prevents them from meeting the exhaustion requirement

20 necessary to achieve court redress. See 42 U.S.C. § 1997e(a). DDP staff is required to

21 provide assistance that includes “completing any forms or documents necessary to secure

22 any rights or benefits available to non-disabled inmates.” CRP at 8. More specifically,

23 developmentally disabled prisoners must have meaningful access to a law library. Cf.

24 Bounds v. Smith, 430 U.S. 817, 829 (1977). As envisioned by the Plan, this requirement

25 means that DDP staff at designated institutions must offer the following services: (1)

26 provision of forms and assistance in reading and “scribing” them; (2) identifying and

27 providing research materials; (3) making an electronic or prisoner reader available; and

28 (4) submission of forms/documentation to the court. CRP at 47. The form for initiating

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1
grievances for prisoners is called Form 602.
2
127. Dr. Leone found that staff is not assisting prisoners with writing grievances.
3
“[S]ome inmates indicated they did not know how [to] file [a] 602 because they couldn’t
4
write. Some inmates indicated that they had their 602’s returned to them.” Leone at RT
5
819:12-17. On one occasion, a developmentally disabled prisoner’s form was returned
6
because he had not written it himself. Id. “[S]ome of them said . . . I file a 602 and I
7
never hear back about it, I don’t know what happens.” Id. at RT 830:15-17. Leroy
8
Hawkins (#133) was “told by [correctional officers] that it was not the job of the DD
9
[correctional officers] to write 602s (appeals) for inmates.” Leone Report at 12.
10
128. Dr. Leone also found that developmentally disabled prisoners are unable to
11
file grievances because prison staff members do not assist them with library services.
12
Leone at RT 819:18-22. For example, Mr. Dupont’s (#21) locker was broken into and he
13
lost most of his possessions. Leone Report at 9. The Victims Compensation and
14
Government Claims Board advised him that he could file suit for compensation; but
15
“when he tried to get assistance from” the Library Technical Assistant (LTA), she stated
16
“that she cannot help file lawsuits against the State.” Id. Similarly, Michael Bell (#83)
17
reported that the LTA “told him that she can’t write anything for him that goes out of the
18
institution.” Id. at 12; see also Tr. Ex. 4 at 3-4 (LTA Ibbotson “indicated that she was told
19
not to assist DD inmates with 602s” and the “lack of support for filing 602s was expressed
20
by several inmates who complained that they had no one to assist them if they did not
21
know an inmate who could help”), 2-3 (LTA said “she couldn’t help [him] with a 602
22
while he was in the ‘hole’”), 2 (Messrs. Wells, Mickiewicz, and West “reported that
23
officers were not available to help and that they relied on cellmates to read materials to
24
them . . . Several inmates who asked correctional officers or the library technician for
25
assistance reported being told to ask other inmates for help”).
26
129. Testimony from plaintiff class members corroborated Dr. Leone’s findings.
27
Daniel Mendez had to pay other prisoners to get help reading and writing grievances.
28
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1
Mendez Dep. at 23:12-17; 24:19-21. It cost him $40 to get a grievance written, which

2
was measured by the other prisoners by calculating the value of items from his packages

3
sent by his mother. Id. at 23:15-24. Twice he had to give up part of his package to pay

4
for grievances. Id. at 24:8-12. Brandon Petties filed a grievance for not getting enough

5
yard time—it was written by other prisoners. Petties Dep. at 49:15-50:1. The grievance

6
was denied and he was never told why. Id. at 50:6-25; see also Davenport Dep. at 19:13-

7
20:9 (officer refused to help Mr. Davenport write a grievance and he had to pay another

8
prisoner to write it); Smith at RT 515:8-15 (DDP officer refused to help him file a

9
grievance).

10
130. Prisoners who file grievances sometimes face retaliation from staff for doing

11
so. See Leone at RT 828:3-20 (prisoner faced same-day retaliation by an officer who had

12
given him a disciplinary write-up because the prisoner had filed a grievance appealing the

13
disciplinary write-up and it was granted), 828:21-829:24 (another incident of retaliation

14
against a prisoner who filed a grievance), 762:21-763:1 (prisoner filed a grievance against

15
an officer and his possessions were subsequently “lost”; officer told him “[t]hat will teach

16
you to file a 602”); Leone Report at 8-9.

17

e. The Evidence Clearly Shows that Defendants Fail to

18

Provide Proactive Adaptive Support

19

131. It is not disputed that defendants must be proactive in offering adaptive

20 support to plaintiff class members. As Dr. Salz testified, “[i]t’s essential for staff who are

21 responsible for addressing the needs of developmentally disabled prisoners to be

22 proactive.” Salz at RT 122:2-4; see also Cowardin Report at 35-36. In Dr. Salz’s words,

23 “[c]orrectional officers have to offer help” to developmentally disabled prisoners “and not

24 just respond to complaints” because “the other way would not be effective due to prison

25 culture. But we have to be teaching them that we need to change the culture so that

26 prisoners know that an officer will help. But they won’t know that unless the officer tells

27 them, ‘I will help you.’” Salz at RT 122:6-13.

28

132. However, the evidence reflects that defendants fail to proactively offer

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1
adaptive support assistance. See, e.g., Pearson at RT 372:12-14 (DDP officer does not ask

2
DD prisoners if they need help with reading and writing, but waits for them to come to

3
her); Banks Dep. at 16:25-17:21 (DDP officer states that if DD prisoners need assistance

4
with writing forms, they would come to her; she has not had a prisoner come to her);

5
Clausing Dep. (Tr. Ex. 491) at 96:12-98:5 (DDP officer never approached by some DD

6
prisoners to ask for help reading and writing, and he will not go to them and ask them if

7
they need help reading and writing, even if prisoner’s Form 128C-2 indicates the prisoner

8
needs help), 101:16-106:9 (did not offer to write grievance for DD2 prisoner complaining

9
that his television was wrongfully taken by staff); Nies Dep. at 111:8-15 (ADA

10
Coordinator does not read or explain written orientation materials to DD prisoners).

11

2. Defendants Systematically Fail to Provide Necessary Help with

12

Self-Care

13

134. Many plaintiff class members need help to remember to perform basic self-

14 care activities such as eating and cleaning themselves. The evidence shoes that these

15 needs are not being met.

16

a. Without Proper Accommodations Some Plaintiff Class

Members Cannot Take Care of Themselves

17
135. Dr. Leone found pervasive problems for plaintiff class members who were

18
unable to attend to their self-care needs without assistance. See, e.g., Leone at RT 775:25-

19
776:10 (Mr. Anthony Roque (#139) forgot his utensils and was forced to eat with his

20
hands because staff would not let him back in the housing unit to retrieve his utensils), id.

21
at 754:14-755:2 (several prisoners wore the same clothes for a long period of time because

22
they never received their clothes back or did not understand what to do to get clean

23
clothes).

24
136. In particular, class members are not receiving the assistance they require to

25
maintain their own personal hygiene. Dr. Leone found that “[s]everal inmates I

26
interviewed had not bathed in some time; others were disheveled and dirty and clearly

27
needed assistance in meeting their daily needs.” Leone Report (Tr. Ex. 1) at 9; see also id.

28

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at 17 (Mr. Rice (#154) was filthy, smelled, and staff had noted that he had “extremely
2
poor personal hygiene”), 7 (Mr. Houseknecht (#109) had not showered in more than a
3
week); Tr. Ex. 4. at 2 (three prisoners reported that officers were not available to help and
4
they had difficulty showering on a regular basis), id. (“[s]everal other inmates had
5
significant hygiene issues that required attention”), id. (had not showered for three and a
6
half weeks and did not have a towel.); Leone at RT 752:21-753:4 (Mr. Bradley (#55)
7
smelled and had not showered recently; he was “pretty unkempt”); Tr. Ex. 444 (clinician
8
observes over a three-month period that DD2 prisoner had “poor grooming – very long
9
greasy hair and a shirt that is very dirty from his hair grease – over many weeks likely”);
10
Tr. Exs. 428–429, 432–434, 438–439 (clinician notes over a ten-month period the “poor
11
hygiene and grooming,” “unkempt” appearance and “body odor” of DD2 prisoner who
12
requires prompts and who “does not take showers as scheduled”); Tr. Ex. 243.
13
137. Dr. Leone also found that defendants fail to provide necessary prompting
14
and assistance to prisoners who require help with basic grooming. Tr. Ex. 4 at 2-3
15
(prisoner's fingernails extended well beyond the end of his fingers and were curved and
16
cracked; he had been in administrative segregation for roughly three months and had no
17
way to cut his nails); Leone Report at 14 (prisoner reported that he has to pay $1 for a
18
haircut; his hair was long and unkempt but he was waiting for two soups so he could
19
afford to pay for a haircut).
20
138. Testimony from plaintiff class members bolsters Dr. Leone’s conclusions.
21
Smith at RT 526:6-8, 526:13-20 (needs reminders to take showers and his cellmate or
22
friends remind him because staff fails to do so; as often as three times a week he forgets to
23
shower at all because nobody reminds him), 526:22-527:7 (needs reminders to do laundry
24
but staff does not help him with this process; friend fills out his laundry slip); Davenport
25
Dep. (Tr. Ex. 498) at 108:17-109:1, 18:13-22 (forgets “to shower . . . a lot;” officers do
26
not prompt him to shower, his bunkie tells him when to shower), at 109:17-22 (forgets to
27
go to meals three times a week); Houseknecht at RT 1032:17-21, 1033:4-14 and Tr. Ex.
28
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1
261 (took only two or three showers in the two months that he was in administrative

2
segregation and did not have a blanket for two months; CASE evaluation indicates that he

3
has difficulty reading and telling time and that his cellmate cleans the cell and tells him

4
what to do); Tr. Ex. 303 (DD prisoner thinks he submitted laundry slip but has not

5
received any clothing for five months); Mendez Dep. (Tr. Ex. 480) at 38:19-39:17

6
(sometimes forgets to take showers and his underarms smell; other prisoners told him to

7
take a birdbath but staff did not remind him to take showers), 40:6-41:3 (staff did not tell

8
him it was time to exchange laundry; had to pay another prisoner $15-20 a month to help

9
him remember), 167:10-18 (staff at SATF and Wasco never reminded him to brush his

10
teeth), 41:1-3 (another prisoner helped him get orthopedic shoes): Blake Dep. (Tr. Ex.

11
497) at 52:4-53:12 (needs prompting to remember to take medications; failed to take

12
medicine because he forgot), 53:17-24,55:15-18 (at times, needs prompting to remember

13
to take showers and do his job); Wright Dep. (Tr. Ex. 496) at 37:20-25 (staff never ask

14
him if he needs help filling out laundry slips), 38:19-39:13 (other prisoners talk about his

15
laundry when he has not changed his shirt in a few weeks but DDP officers do not remind

16
him).

17

b. Prisoners Who Cannot Keep Themselves Clean Are at

18

Risk of Harm

19

139. Because staff fails to provide the necessary adaptive services, plaintiff class

20 members are exposed to harm. Developmentally disabled prisoners who cannot attend to

21 their basic hygiene face negative consequences from other prisoners. Salz at RT 113:18-

22 114:8; see also id. at 113:1-5 (DD prisoner who needs prompting to complete self-care

23 could suffer “serious consequences” if not prompted).

24

140. Dr. Cowardin agreed, and explained further: “[i]n places such as prison,

25 where people are confined in close quarters such as small cells and overcrowded dorms,

26 proper hygiene can become a serious safety concern. Prisoners with poor hygiene,

27 regardless of the reason, can become the target of assault by others.” Cowardin Report at

28 29. Dr. Leone further elaborated: “inmates who don’t regularly bathe . . . become social

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1
pariahs,” transmit disease, and “have all kinds of problems in a prison setting.” Leone at

2
RT 751:4-8. Prisoners who have trouble with self-care are identified as “potentially

3
vulnerable,” and some are harassed, and even attacked, for their vulnerability and

4
unacceptable hygiene habits. Leone at RT 751:4-10; Wright Dep. at 45:6-23 (had

5
conflicts with former bunkie about the mess around his bed), 38:10-18 (bunkie confronted

6
him about having dirty laundry and “smelling up the area”); Mendez Dep. at 39:5-10

7
(sometimes forgets to take showers and “inmates get mad” at him); Smith at RT 526:6-

8
527:7, 527:21-528:11 (needs prompts to shower and do laundry and was attacked and

9
beaten “for getting in the wrong shower”).

10

c. Prison Staff Members Do Not Provide the Necessary

11

Support

12

141. Dr. Leone concluded that the serious deficits he saw and learned about were

13 a result of failures on the part of prison staff. Leone Report at 3 (“[a] number of inmates

14 were dirty and unkempt suggesting that [correctional officers] were not prompting them to

15 shower and change clothes regularly”). According to Dr. Leone, “the expectation is that

16 trained correctional staff are tuned into and are able to respond to the kind of problems of

17 daily living, the particular vulnerabilities, the inability of many of these inmates to read or

18 to advocate for themselves” but, in “most cases,” he did not find that staff was aware of

19 these kinds of issues. Leone at RT 755:3-16. One reason that staff does not accommodate

20 the needs of plaintiff class members is because “in many cases” developmentally disabled

21 prisoners are “intimidated by staff and [don’t] feel comfortable asking for assistance.” Id.

22 at RT 753:16-19.

23

142. The evidence supports Dr. Leone’s opinion. DDP officers do not monitor

24 developmentally disabled prisoners’ daily activities or maintain frequent contacts with

25 them. Banks Dep. (Tr. Ex. 484) at 32:20-35:12 (DDP Officer Banks at CMF:“I don’t do

26 nothing on a daily basis with the particular DD inmates”), 36:18-37:11 (does not prompt

27 DD prisoners to shower, clean cells, change clothes, or brush teeth), 72:8-12 (does not

28 prompt DD prisoners to attend meals), 72:13-15 (does not check if they are sending in

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1
laundry), 72:16-18 (does not inspect cells to see if they are clean), 64:5-7 (does not
2
contact DD prisoners’ work assignment supervisor), 83:13-16 (has never been told by a
3
supervisor that she does not have enough contact with DD prisoners); Tr. Ex. 406 and
4
Clausing Dep. (Tr. Ex. 491) at 120:18-128:13 (log documenting that a DD2 prisoner who
5
was incontinent was prompted to shower only once over the course of one month).
6
143. At least one DDP counselor, by her own admission, fails to ensure that the
7
required adaptive services are provided. DDP Counselor Brown at CMF cannot recall
8
helping developmentally disabled prisoners access health care and does not know what an
9
Interdisciplinary Support Team (IDST) is and has never been a member of an IDST, even
10
though Dr. Salz testified that the correctional counselor is a “mandatory member” of the 11 IDST.4 Brown Dep. (Tr. Ex. 481) at 72:1-8, 132:4-13; Salz at RT 96:5-7; see also Brown
12
Dep. at 34:17-35:6 (the only prompt she could remember giving was for prisoners to get
13
clothes washed), 27:4-16 (the only characteristics of DD prisoners she could think of were
14
cognitive issues).
15
144. ADA Coordinators admitted to supervision so lax that they cannot be
16
ensuring the reminders to perform basic self-care are provided. Nies Dep. (Tr. Ex. 492) at
17
99:21-100:4 (ADA Coordinator at DVI does not know whether housing officers speak to
18
DD prisoners on a daily basis); Gonzalez Dep. (Tr. Ex. 483) at 51:22-52:8 (ADA
19
Coordinator at CMF does not know whether prompting to use yard took place; did not
20
check to ensure); Ynson Dep. (Tr. Ex. 490) at 162:19-23 (does not know if there were any
21
mechanisms in place to monitor compliance with CRP while he was an ADA
22
Coordinator), 76:12-77:6 (ADA Coordinator at Lancaster believes “contact” is made if
23
staff checks on class member and sees that he is asleep or finds that he is not in his cell),
24
Prud’homme Dep. (Tr. Ex. 488) at 74:3-75:8; 79:11-16 (ADA Coordinator at SATF does
25
not have an opinion as to whether a DD2 prisoner who urinates and defecates on himself
26 4 IDST is an interdisciplinary team of multiple staff members who “review and determine 27 program needs of DDP inmates” to “ensure the provision of adaptive support services necessary
for a DDP inmate to function at an acceptable level in the correctional environment.” Tr. Ex. 476 28 at 24. The correctional officer must “participate in IDST” and “provide support services as
directed by IDST.” Id. at 42.
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1
should be prompted to shower, after reviewing evidence that an incontinent

2
developmentally disabled prisoner was prompted to shower only once in a month).

3
145. In sum, the Court agrees with Dr. Leone that plaintiff class members are not

4
afforded the required adaptive support necessary, and as a result, are at unreasonable risk

5
to their health and safety. Defendants clearly fail to monitor these prisoners and provide

6
the necessary reminders for basic self-care. Although some prisoners received support

7
and accommodations from staff, “the majority of these individuals are not receiving the

8
accommodation, protection and support envisioned by the Clark Remedial Plan.” Leone

9
at RT 786:11-17.

10
3. Defendants Fail to Protect Plaintiff Class Members from Abuse.

11

a. Developmentally Disabled Prisoners Are More Vulnerable

12

to Abuse Because of their Disabilities

13

146. Developmentally disabled prisoners’ deficits in communication, information

14 processing, and daily living skills, make them particularly susceptible to abuse. Leone at

15 RT 748:24-749:15; see also Salz at RT 103:3-16 (DD prisoners “easily influenced by

16 others”); Subia at RT 246:3-20 (“as a group DD prisoners are vulnerable,” and “would be

17 among the group of inmates that . . . are preyed upon by the more harsh and more

18 hardcore predatory type inmates”); Horne Dep. (Tr. Ex. 482) at 35:20-36:5 (DD prisoners

19 “at risk for victimization, being manipulated by other prisoners, or taken advantage of”);

20 Valdez Dep. (Tr. Ex. 493) at 95:20-23 (DD prisoners can be “particularly vulnerable as

21 compared to the entire prisoner population”); Cowardin at RT 625:3-13 (prisoners with

22 mental retardation tend to be “very naïve, gullible, easy to trick or use, easy to exploit”);

23 Cowardin at RT 632:7-634:2 (social isolation makes prisoners with autism vulnerable in

24 prison setting). Accordingly, all CDCR staff should be trained to understand the abuse

25 concerns unique to developmentally disabled prisoners. Wells at RT 193:18-194:2.

26

147. Because of their disabilities, plaintiff class members are subjected to verbal,

27 physical, and sexual abuse and property loss through theft, coercion, and manipulation.

28 While “some dedicated staff” work to ensure developmentally disabled prisoners’ safety,

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1
far too many clearly do not. Leone Report at 19; see also Banks Dep. (Tr. Ex. 484) at

2
64:8-10 (admitting that she has not “provided services to a DD inmate because there was

3
concern for his safety”). Some employees actually perpetrate abuse on plaintiff class

4
members. Others are ignorant of the reality that disabled prisoners are more susceptible to

5
abuse than the average non-developmentally disabled prisoner. Gonzalez Dep. (Tr. Ex.

6
483) at 66:16-24; see also Banks Dep. at 82:6-9 (knows of no DD prisoners with abuse

7
concerns); Brown Dep. (Tr. Ex. 486) at 25:11-26:3 (only characteristic of DD she could

8
think of was reading and writing deficit). Given this reality, Dr. Leone’s conclusion that

9
“the system as a whole appeared indifferent to the needs of these inmates” comes as little

10
surprise. Leone Report at 19. Unless defendants ensure that dedicated employees are

11
monitoring developmentally disabled prisoners and minimizing their contact with

12
dangerous prisoners, developmentally disabled prisoners will continue to be abused,

13
exploited, and manipulated in the harsh, dangerous prison environment.

14

b. Defendants Fail to Protect Plaintiff Class Members from

15

Abuse by Other Prisoners

16

(i) Plaintiff Class Members Are Forced to Pay for Assistance from Other Prisoners

17
148. If prison staff members do not provide developmentally disabled prisoners
18
with the reading and writing assistance that they need to avail themselves of prison
19
services, or protection from abuse, they have little choice but to seek help from their
20
fellow prisoners. This “help,” in most instances, does not come free. Blake Dep. (Tr. Ex.
21
497) at 73:12-21 (“golden rule” of prisons is that prisoners charge for help). In fact,
22
developmentally disabled prisoners can be “manipulated” into paying “inordinate[ ]
23
charge[s]” for help. Prud’homme Dep. (Tr. Ex. 488) at 193:23-194:3. Daniel Mendez,
24
for example, paid another prisoner $40 in the form of eight jars of coffee to help him write
25
a grievance. Mendez Dep. (Tr. Ex. 480) at 44:20-24. Moreover, by asking other
26
prisoners to read and fill out their prison forms, prisoners requesting the help must often
27
disclose personal information, leaving themselves open to exploitation. Cowardin at RT
28

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1
651:15-20; Cowardin Report at 24, 26-27; Salz at RT 118:7-11; Subia at RT 248:14-17.

2
Plaintiff class members have also had to pay other prisoners for protection. Smith at RT

3
516:18-22 (pays other prisoners to take him to canteen).

4

(ii) Plaintiff Class Members Routinely Surrender their

5

Property to Other Prisoners

6

149. Dr. Leone concluded that property loss was the most chronic problem facing

7 plaintiff class members. Leone at RT 805:9-13. His report documented approximately 24

8 incidents of reported property loss, and those were merely a representative sample of his

9 findings. Id. at 805:14-20; Leone Report at 6-9. A “large number” of prisoners, for

10 example, reported that they were forced or pressured to give up the items that they had

11 purchased from the prison canteen “literally between the time that they . . . g[o]t the stuff

12 [and] the time they g[o]t back to their unit.” Leone at RT 771:18-24. He noted many

13 examples in his report of prisoners who surrender their canteen to other prisoners. Leone

14 Report at 6-9. As corroborated by a corrections officer, Mr. Gibson had more than $150

15 worth of canteen items stolen within a week’s time. Id. at 9. Mr. Estrella (#58) and Mr.

16 Thomas (#111) have their food taken by other prisoners. Id. at 7-8. Mr. Boyd (#54)

17 “lends” his possessions to other prisoners, but they “always leave [the institution] before

18 they pay him back.” Id. at 7; see also Tr. Ex. 443 (DD2 prisoner reports giving half of his

19 property away “all the time”); Tr. Ex. 244 (DD2 prisoner gives away property to avoid

20 abuse); Tr. Ex. 245 (staff observes DD2 prisoner being manipulated and intimidated and

21 having property stolen by other prisoners).

22

150. Testimony from prisoners corroborates Dr. Leone’s conclusion. See, e.g.,

23 Smith at RT 515:20-516:5; Davenport Dep. (Tr. Ex. 498) at 25:13-26:12, 30:17-32:11;

24 Wright Dep. (Tr. Ex. 496) at 90:19-91:16. Brandon Petties testified that other prisoners

25 stole items off the cart that developmentally disabled prisoners were using to transport

26 their canteen back to their living area. Petties Dep. (Tr. Ex. 495) at 30:3-25. He has also

27 had food stolen out of his cell while he was getting his medication. Id. at 28:1-9; see also

28 Mendez Dep. at 42:9-12 (radio and food stolen from his cell after staff search when he

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1
was not present). Other prisoners have seen personal items such as electric razors,
2
coffeepots, hats, and sunglasses stolen from their fellow Clark class members. Davenport
3
Dep. at 134:3-14; Mendez Dep. at 46:3-14. Developmentally disabled prisoners are also
4
cheated out of their possessions in card games and dominos. Petties Dep. at 32:12-22,
5
33:10-15.
6
151. Defendants recognize that developmentally disabled prisoners are especially
7
susceptible to losing their property through theft, coercion, and manipulation. Salz at RT
8
75:11-16, 76:7-9, 84:5-12; Ynson Dep. (Tr. Ex. 490) at 34:3-25. One ADA Coordinator
9
asserted that corrections officers are “very good about” fulfilling their monitoring duties
10
and “very observant” when it comes to issues of property loss. Nies Dep. (Tr. Ex. 492) at
11
101:18-23, 102:4-5. The evidence, however, clearly demonstrates otherwise. Banks Dep.
12
at 62:7-63:12 (does not monitor the canteen activity of DD prisoners or inventory their
13
property); Horne Dep. at 164:10-25 (will only escort prisoners to and from canteen if a
14
problem is brought to his attention); Smith at RT 516:6-9 (officer told him he was a “big
15
boy[]” and could go to canteen himself); Blake Dep. at 32:6-10 (is never escorted to and
16
from canteen); Davenport Dep. at 27:18-28:5 (officers neglect to accompany DD
17
prisoners to and from canteen about once a month); Leone Report at 7 (officers laughed at
18
Mr. Houseknecht when he asked them to escort him to canteen).
19
152. Staff members do not monitor developmentally disabled prisoners even
20
when those prisoners’ propensity to be abused is documented. For example, Mr.
21
Houseknecht, who is 6 feet, 2 inches tall, weighed 175 pounds in June 2009, but by
22
November 2009, he weighed only 138-140 pounds. Houseknecht at RT 1031:7-22,
23
1032:7-8. He lost so much weight because his cellmate was stealing his food: “[A]fter a
24
certain point, I had to give him most of my food.” Id. at 1031:25-1032:6. Mr.
25
Houseknecht’s CASE evaluation, completed at R.J. Donovan in June 2009, indicates that
26
he has the potential for abuse and that his canteen and personal property should be
27
monitored to prevent loss to other prisoners. Tr. Ex. 261; see also Tr. Ex. 430 (staff report
28
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1
that DD prisoner “gives away most of his canteen if not monitored).

2
153. Staff members also neglect to help class members who ask for their help in

3
recovering stolen property. See, e.g., Houseknecht at RT 1036:24-1037:4; Davenport

4
Dep. at 29:16-22; Mendez Dep. at 43:18-25; see also Leone Report at 7 (when prisoner’s

5
mother complained about stolen property to Pearl Serna, Clark counselor at California

6
Rehabilitation Center, Serna said “this is to be expected when you live among thieves”);

7
Wright Dep. 84:19-86:9 (asked for key lock because he cannot remember lock

8
combination and prisoners keep stealing his possessions; accommodation denied).

9
154. In this climate of indifference, developmentally disabled prisoners are

10
forced to surrender their items to whoever asks, cajoles, threatens, or strong-arms them, or

11
to protect their property with physical force. Those that choose the latter option risk

12
disciplinary violations that can lengthen their sentences. See, e.g., Davenport Dep. at

13
44:14-20 (received disciplinary write-up for fighting to keep his canteen); Leone Report at

14
10 (Prisoner #148 reported same).

15

(iii) Plaintiff Class Members Are Subjected to Physical

16

and Sexual Assaults by Other Prisoners

17

155. Dr. Leone concluded that many plaintiff class members had suffered

18 physical and sexual assaults, but that staff did not take seriously the risk of harm to the

19 developmentally disabled prisoners and did not provide them with adequate protection.

20 Leone at RT 750:11-19. The prisoners that he interviewed were “chronically threatened

21 and beaten up[,] often when they attempted to prevent their property from being taken.

22 Several prisoners reported that they had been raped or that another inmate had attempted

23 to rape them.” Leone Report at 4. After telling prison staff members that he was afraid of

24 being attacked, Mr. Thomas (#62) was assaulted on the yard. Id. at 10; Leone at RT

25 749:16-750:10. Prisoner #136, who had been raped by gang members in another prison

26 three years before, was choked by another prisoner who wanted sex. Leone Report at 10.

27 Prisoner #108 was raped twice while living at Lancaster. Id. In addition to these

28 documented incidents, Dr. Leone heard other, similar stories from Clark class members.

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1
Leone at RT 750:17-19.

2
156. Prisoners’ testimony and the documentary record are replete with reports of

3
physical and sexual abuse suffered by developmentally disabled prisoners. See, e.g.,

4
Houseknecht at RT 1017:21-1020:25 (cellmate punched him repeatedly and raped him),

5
id. at 1004:10-15 (cellmate tried to stab him in the eye), id. at 1008:15-1010:18 (cellmate

6
constantly slapped, punched and choked him), id. at 1035:13-1036:13 (another prisoner

7
engaged in “aggressive negotiation” by putting him in headlock to get canteen items);

8
Smith at RT 515:24-516:5 (“choked [ ] out” for his canteen), 527:21-528:11 (beaten up

9
for being a “slow learner,” using the wrong shower), 528:14-23 (prisoners made him do

10
exercise as punishment for being in wrong area); Mendez Dep. at 46:15-48:21 (prisoners

11
rushed him on toilet because they thought he told officers about canteen theft); Petties

12
Dep. at 27:16-24 (other prisoner beat him after he would not give up his food); Tr. Ex.

13
424 (DD prisoner requests stay in crisis bed after cellmate “made [him] do things to him”

14
and kept him in the cell for 9-11 days); Tr. Exs. 233, 249, 253-54, 264, 343, 362, 366,

15
376, 380-81, 389, 392-393.

16

157. One developmentally disabled prisoner was issued a disciplinary write-up
17

due to his concerns for his safety. Tr. Ex. 101 (despite “realistic fears” for his safety noted
18

by the Mental Health clinician, DD prisoner found guilty of “Obstructing a Peace Officer
19

in the Performance of Their Duty” for refusing a cellmate).
20

c. Staff Abuse Prevents Plaintiff Class Members from

21

Obtaining Meaningful Access to Prison Programs,

Services, and Activities

22

155. It is important for corrections staff to build relationships with
23

developmentally disabled prisoners so that the prisoners ask staff members for assistance
24

and protection. Prud’homme Dep. at 197:15-19; Valdez Dep. at 104:18-105:3; see also
25

Salz at RT 122:10-11 (“[W]e need to change the culture so that inmates know that an
26

officer will help”). If prisoners fear, or feel demeaned by, custody staff, they are far less
27

likely to approach officers, counselors, or clinicians for help. Leone at RT 763:18-764:12,
28

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1
801:24-802:6; see also Chapa Dep. (Tr. Ex. 489) at 139:5-24 (DD prisoners might not ask

2
for help if they are scared or reluctant to talk to staff). In some cases, staff abuse serves to

3
prevent prisoners from fulfilling their own needs. Smith at RT 523:6-12 (sometimes he

4
will not leave his cell to retrieve his medicine for fear of getting harassed by staff).

5
Moreover, when staff mocks developmentally disabled prisoners, “it’s indicative of the

6
indifference towards and understanding the consequences of ignoring or neglecting the

7
inmates’ needs.” Leone at RT 764:8-12.

8

d. Defendants Systematically Fail to Address Abuse that

9

Prisoners and Staff Inflict on Plaintiff Class Members

10

156. In the past two years, defendants have received multiple reports that

11 expressed concerns regarding the abuse of developmentally disabled prisoners, including

12 Dr. Leone’s February 2010 expert report (Tr. Ex. 1), Dr. Leone’s July 2008 Lancaster

13 report (Tr. Ex. 4), and the Prison Law Office’s November 2008 Lancaster monitoring

14 report (Tr. Ex. 1003). Salz at RT 139:6-139:11; Subia at RT 238:21-238:25; Wofford at

15 RT 403:14-407:12. However, defendants did little, if anything, to address the abuse

16 issues raised therein. Subia at RT 252:11-16 (no corrective action taken in response to

17 2010 Leone report); McDonald at RT 967:2-12 (has not taken action in response to 2010

18 Leone report; is not aware of any responsive action defendants have taken); Wells at RT

19 470:1-16 (neither directed staff to take corrective action, nor asked Subia to direct

20 Lancaster warden to take corrective action, in response to 2008 Leone report); Rhodes

21 Dep. (Tr. Ex. 487) at 85:24-86:2 (not aware of any changes to DDP at Lancaster as a

22 result of 2008 Leone report); Wofford at RT 420:6-10; 421:11-16 (did not investigate

23 incidents cited in Prison Law Office’s 2008 Lancaster report, and is not aware of any

24 corrective action being taken).

25

157. Furthermore, procedures designed to protect Clark class members are

26 routinely ignored. See, e.g., Wofford at RT 436:23-437:4 (interviewing potential

27 cellmates of DD prisoners would “reduce the risk of victimization” of DD prisoners by

28 their cellmates), 438:19-439:8 (CRP requires that correctional staff interview potential

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1
cellmates of DD prisoners prior to housing them together), 438:19-439:8 (cellmates of DD
2
prisoners only interviewed “on occasion”); Gonzalez Dep. at 66:25-67:10 (would be
3
“tunnel vision” for DDP officers to monitor DD prisoners), 87:22-88:10 (DD prisoners
4
live within general population and not specialized DDP units); Banks Dep. at 64:8-10
5
(admitting that she has never “provided services to a DD prisoner because there was
6
concern for his safety”).
7
158. CDCR officials claim to be particularly concerned about incidents of staff
8
abuse and harassment of developmentally disabled prisoners. Subia at RT 253:9-13 (staff
9
harassment “really concerns me” and, of all the incidents documented in Dr. Leone’s 2010
10
report, “those are the ones that are most important to me”); Scaramozzino at RT 916:1-25
11
(conduct of Officer Jones is a “real issue[ ] that need[s] attention” and “not defensible”; if
12
CDCR does not review accusations, “we have a problem”). As of the evidentiary hearing,
13
however, nobody at CDCR had investigated, let alone taken action to rectify, the staff
14
abuse issues raised in Dr. Leone’s 2010 report. Subia at RT 253:14-16; Scaramozzino at
15
RT 915:11-12, 916:20-22, 917:5-8; McDonald at RT 967:2-12; see also Ynson Dep. at
16
161:7-10 (no reaction to Leone report). More broadly, although no witnesses refuted any
17
of the aforementioned allegations, no evidence suggests that a CDCR staff member has
18
been disciplined in a meaningful way for subjecting a developmentally disabled prisoner
19
to abuse. See Subia at RT 222:13-19, 222:25-223:4, 240:16-20 (expects that “significant”
20
or “serious” incidents would be brought to his attention, has been involved in the
21
“rectification” of “serious” incidents involving staff, but knows of no allegations of staff
22
abuse lodged by DD prisoners). While Defendants did belatedly endeavor to investigate
23
the Dr. Leone’s conclusions, it was only upon learning that this Court was concerned by
24
their failure to respond.
25
26
27
28
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1

2

4. Defendants Systemically Fail to Provide Accommodations

Required to Assist Developmentally Disabled Prisoners in

3

Conforming with CDCR Rules and Regulations

4

a. Defendants Fail to Provide Effective Communication in

Proceedings that Implicate Plaintiff Class Members’ Due

5

Process Rights

6

(i) Required Accommodations

7
170. Defendants are legally obligated to ensure that plaintiff class members are
8
afforded appropriate accommodations in disciplinary, classification, and administrative
9
segregation hearings to allow them to understand the proceedings. See supra § I.C.1, 3.
10
To meet these obligations, CDCR policy requires that all developmentally disabled
11
prisoners “must be assigned” staff assistants in connection with such proceedings. Wells
12
at RT 472:8-14; Salz at RT 141:22-142:8. This requirement, as embodied in the Clark
13
Remedial Plan, imposes certain obligations on the staff assistant, including (1) informing
14
the prisoner of his or her rights and ensuring that the prisoner understands the proceeding
15
to the best of his or her ability; (2) helping the prisoner prepare for the hearing; (3)
16
representing the prisoner’s position at the hearing; (4) ensuring that the prisoner’s position
17
is understood; (5) ensuring the prisoner understands, to the best of his ability, the decision
18
reached; (6) providing the hearing official with information related to the prisoner’s
19
developmental disability and adaptive support services required; (7) being present at a
20
disciplinary hearing and all interviews related to the hearing; and (8) not giving legal
21
counsel or specifying the position the prisoner should take. CRP at 49-50.
22
171. To ensure understanding at due process hearings, the assigned staff and
23
other participants in the hearing must affirmatively ask the developmentally disabled
24
prisoner regarding his or her comprehension. Salz at RT 120:13-16, 121:1-4. A preferred
25
method to accomplish this requirement is to ask the prisoner to repeat the information
26
back in his or her own words. See, e.g., Subia at RT 244:19-24; see also Cowardin at RT
27
629:2-630:1.
28

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1
172. For disciplinary hearings, the Clark Remedial Plan requires that a clinician
2
review the disciplinary write-up (Form CDCR 115) after the hearing but before the
3
disposition becomes final. CRP at 50; Salz at RT 156:4-11; Wells at RT 496:25-497:3;
4
497:19-498:2. The purpose of this review is to ensure that the disposition is appropriate in
5
light of the prisoner’s disability. Wells at RT 497:4-11. This review is to be noted on the
6
form. Id. at RT 496:25-497:6.
7
173. Similarly, for administrative segregation hearings, the provision of a staff
8
assistant must be noted on the appropriate form, a Form CDCR 114D. Id. at 472:8-17. A
9
staff assistant is required to ensure that developmentally disabled prisoners understand the
10
reason for their placement in administrative segregation. Id. at 473:23-474:4.
11
(ii) Required Accommodations Are Not Provided.
12

13

174. Defendants systemically fail to satisfy their obligation to ensure that

14 prisoners engaged in disciplinary, administrative segregation, and classification hearings

15 understand those proceeding. The evidence shows that defendants repeatedly default on

16 their obligation to provide staff assistants at disciplinary hearings. See Tr. Exs. 104, 106-

17 10, 137-39, 158, 174-75, 180, 190, 201, 411, 419 (all reflecting that no staff assistant

18 provided). Sometimes developmentally disabled prisoners were left to file grievances to

19 try to obtain required support. See, e.g., Tr. Exs. 353, 354. Defendants also fail

20 repeatedly to consult with clinicians before final disposition of a prisoner’s disciplinary

21 write-up. See Tr. Exs. 101-03, 105-06, 109-10, 113-14, 116-31, 133-37, 140, 142-43,

22 145-69, 171-78, 182-90, 192-200, 202-03, 205-20, 223-25 and 409-22; see also Tr. Ex.

23 463 (no Clark clinician review performed in nearly 24 % of hearings for disciplinary

24 hearing documents produced by defendants).

25

175. Defendants also fail to provide staff assistants consistently at classification

26 hearings, hindering the ability of developmentally disabled prisoners to fully participate in

27 the classification process. See Tr. Exs. 273, 278-85, 287-90, 292-95 and 355-57.

28 Likewise, many plaintiff class members were placed in administrative segregation without

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1
receiving required staff assistance. See Tr. Exs. 287-88, 306-07, 321, 331, 333, 335, 337-
2
39, 341, 350, 364-75, 377-82, 392, 393; Wells at RT 475:10-12, 483:7-17; see also Wells
3
at RT 483:7-484:17; Tr. Ex. 307 (illiterate DD prisoner not given staff assistant at
4
administrative segregation review); Tr. Exs. 306, 338, 373.
5
176. Evidence from staff at the prisons confirmed these problems. See, e.g.,
6
Mandeville Dep. (Tr. Ex. 485) at 159:5-10. Gene Nies, the former ADA Coordinator at
7
DVI, conceded that defendants “need to figure out a better mechanism to ensure that . . .
8
staff assistant should be assigned at the time of the [administrative segregation] hearing.”
9
Nies Dep. (Tr. Ex. 492) at 162:16-163:3. At SATF, ADA Coordinator Prud'homme
10
admitted he does not review 114D forms. Prud'homme Dep. (Tr. Ex. 488) at 142:10-11.
11
He also admitted that various exhibits he saw did not reflect that a staff assistant had been
12
provided during an administrative segregation hearing. Id. at 147:8-149:18, Tr. Exs. 339,
13
341. At Lancaster, Mr. Ynson admitted that when he was ADA Coordinator, he did not
14
know if staff assistants were provided during administrative segregation reviews with
15
prisoners, nor did he even know if it was required. Ynson Dep. (Tr. Ex. 490) at 123:25-
16
124:7.
17
177. As these failures suggest, defendants are not fulfilling their obligation to
18
ensure that plaintiff class members understand these critical proceedings. Even when staff
19
assistants are provided, there is no systemic effort to ensure the prisoners are receiving
20
meaningful support that provides them with a real understanding of the proceedings. See
21
Tr. Ex. 227 (defendants determined DD1 prisoner understood and agreed with a
22
classification committee’s decision, even though prisoner “became agitated and frustrated
23
and refused to acknowledge any statements or questions generated by the members”); Tr.
24
Ex. 232 (effective communication achieved at DD3 prisoner’s classification hearing by
25
having the staff assistant “speak[] loudly and repeat[] statements and/or questions”;
26
prisoner is unable to speak according to medical, but “appeared to understand by looking
27
at [the staff assistant] each time he was asked a question and [the staff assistant] repeating
28
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1
the question in a loud clear voice within close proximity to [the inmate]. Once [the staff
2
assistant] repeated the question/statement, [the inmate] would return to looking at the
3
committee”); Banks Dep. (Tr. Ex. 484), 46:5-12 (DDP officer from CMF testified that as
4
a staff assistant, she writes down if the DD prisoner wants to call witnesses, but otherwise
5
“I walk away” if the prisoner does not have questions), 47:5-15 (when acting as a staff
6
assistant, she explains the hearing to the DD prisoners, but does not ask the prisoner
7
questions to make sure he is understanding because “if he doesn’t understand, he’ll tell
8
me”), 51:14-24 (believes the burden is on the DD prisoner to ask questions if he does not
9
understand), 49:15-20 (does not help DD prisoners with forms for disciplinary hearings
10
and could not recall if she had ever provided additional explanations); see also
11
Defendants’ Witness List for Case in Chief (Dkt # 366-1 at 6) (reflecting that Banks is
12
DDP officer).
13
178. Staff members are not well informed about their role as staff assistants and
14
oversight is inadequate. Brown Dep. (Tr. Ex. 486) at 76:8-15 (at CMF, DD counselor
15
could not recall receiving staff assistant training); Nies Dep. at 139:15-140:22, 140:24-
16
141:6 (same at DVI); Ynson Dep. at 121:24-122:17 (ADA Coordinator at Lancaster has
17
no personal knowledge of whether staff assistants are provided during disciplinary
18
hearings).
19
179. The same problems exist with respect to classification hearings. See
20
Prud'homme Dep. at 139:21-140:22, 198:15-199:1 (ADA coordinator at SATF admitted
21
he does not have personal knowledge that DD prisoners receive staff assistants in
22
classification hearings); Ynson Dep. at 114:21-24 (ADA coordinator at Lancaster in 2009
23
had no personal knowledge whether staff assistants were assigned during all classification
24
meetings).
25
180. As a result, plaintiff class members are not obtaining the adaptive supports
26
they require at such hearings. See, e.g., Leone at RT 756:3-6 (some DD prisoners had “no
27
idea” why they were in administrative segregation and when Leone asked them a series of
28
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1
questions to verify this, “some of them just didn’t have an idea”); Blake Dep. (Tr. Ex.

2
497) at 69:25-70:17 (staff assistant failed to tell him what was going to happen at a

3
disciplinary hearing, failed to explain the charges and failed to explain potential

4
punishments), 147:6-14 (although he understood he was being punished for tattoo, he also

5
explained in deposition that he was talked into it by another prisoner “saying it’s cool, it’s

6
the right thing to do” and that no one had told him it was against the rules; there was no

7
evidence staff assistant explained this at the hearing or that punishment was assessed in

8
light of relevant issues relating to his disability); Tr. Ex. 269.

9
181. This evidence, taken together, establishes that defendants fail to provide the

10
required support to ensure that due process and effective communication are provided for

11
developmentally disabled prisoners at disciplinary, administrative segregation, and

12
classification hearings. See Leone at RT 792:1-793:12.

13

b. Defendants Fail to Provide Effective Communication of

14

the Rules with which Developmentally Disabled Prisoners

Are Required to Comply

15
182. Defendants have an obligation to ensure that their communications with

16
developmentally disabled prisoners are “as effective” as their communications with non-

17
developmentally disabled prisoners. See supra § I.D.3 To facilitate these

18
communications, the Clark Remedial Plan contemplates that staff will monitor

19
developmentally disabled prisoners and provide them with “direct instructions, prompting,

20
verbal counseling,” to assist them in complying with prison rules and regulations. CRP at

21
49. The Remedial Plan also requires that employees “must ensure the inmate understands

22
(to the best of his/her ability) the consequences of continued misconduct.” Id.

23
183. If misconduct continues, staff can invoke formal discipline, but in doing so,

24
“[t]he staff member observing the misconduct must take into consideration the severity of

25
the inmate’s disability and the inmate’s need for adaptive support services when

26
determining the method of discipline.” Id.; see also Wells at RT 493:2-13.

27
184. Contrary to this policy, many plaintiff class members receive disciplinary

28

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1
write-ups for behavior “they should have been counseled about” or things that “easily
2
could have been prevented.” Leone at RT 765:16-766:2, 770:5-8 (“[i]f staff are aware
3
[who’s] DD on the unit, if they look at those chronos periodically, they should be able to
4
anticipate potential problems inmates might have and be able to do things to prevent [rules
5
violation reports] or 115’s”); see Tr. Ex. 101 (DD prisoner assessed 90 days of credit
6
forfeiture for “Obstructing a Peace Officer in the Performance of Duty” for refusing a
7
cellmate; clinician notes that the prisoner “reports realistic fears for his safety”); Tr. Ex.
8
103 (DD prisoner who “does not read, write, or understand English,” found guilty and
9
assessed 30 days of lost credits for “Disobeying Orders” for refusing to sign his Notice
10
and Conditions of Parole form); Tr. Ex. 409 (DD prisoner receives a 30 day loss of credit
11
and a 10 day loss of yard for “Disruptive Behavior” for refusing to return to his cell until
12
he spoke to a sergeant; clinician indicates that he was not “trying to be difficult; he just
13
had a fixed idea which he was trying to complete in a rigid manner (DD1)”). Other
14
disciplinary write-ups for plaintiff class members raise similar concerns. See, e.g., Tr.
15
Exs. 102, 127 (failure to provide a random urinalysis); Tr. Exs. 112, 116, 124, 136, 138,
16
142 (out of bounds); Tr. Exs. 106, 107, 114, 115, 118–21, 123, 128, (failure to report or
17
unexcused absence or refusing to work); Tr. Ex. 139 (failure to report to pill line); Tr. Exs.
18
104, 108, 110, 111, 117, 131, 132, 137, 140-41, 143, 144 (disobeying direct order); Tr.
19
Ex. 145 (refusing a cellmate); Tr. Exs. 126, 130, 133 (delaying a peace officer);Tr. Ex.
20
135 (refusal to stand for count); Tr. Exs. 100, 125 (failure to comply with cell cleaning
21
and other standards).
22
185. When a developmentally disabled prisoner is repeatedly written up for rules
23
violations attributable to his disability, defendants’ conduct is “absolutely not” in
24
compliance with the Clark Remedial Plan and the level of support provided to the
25
prisoners is “totally inadequate.” Leone at RT 768:9-11. Dr. Leone found repeated
26
examples of these violations of the Clark Remedial Plan where it was “hard” to
27
“understand” because staff could have intervened to avoid the disciplinary write-ups. Id.
28
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1
at 768:19-769:10 (DD prisoner written up for “being in the wrong place at the wrong
2
time” when he tried to use the phone at the time he had been told in his previous unit to
3
use it); Tr. Ex. 11; see also Cowardin at RT 623:4-24:3 (discussing difficulties DD
4
prisoners can have when changing settings); Leone at RT 765:16-766:2; 769:11-23.
5
186. In disciplinary hearings, defendants fail to account for durability deficits
6
unique to developmentally disabled inmates, as noted in § I.F.1, supra. Defendants do not
7
recognize that a single prompt, or even a few, may be insufficient for a developmentally
8
disabled prisoner, and he or she may need constant daily reminders to participate in prison
9
activities, services, and program. See, e.g., Tr. Exs. 139 (DD prisoner found guilty of
10
failure to report to pill line when only informed via public address system, with no
11
reference to prompts, reminders, or warnings), 125 (DD prisoner found guilty of hanging
12
a sheet in his cell after only one group notification of rules regarding cell maintenance,
13
with no reference to prompts, reminders, or warnings).
14
D. Defendants’ Current Remedial Efforts Are Insufficient
15
187. Defendants have taken some steps towards addressing the unlawful
16
conditions suffered by the plaintiff class. These steps, including those taken in the areas
17
of staffing, housing, training and self-monitoring, have fallen gravely short of the
18
measures that must be taken to create conditions that satisfy the constitutional and
19
statutory mandates set forth above. See supra, § I.C.
20
1. Staffing
21
188. Defendants have designated some staff members specifically to work with
22
developmentally disabled prisoners. However, the staffing is not adequate to provide the
23
necessary accommodations to class members for a variety of reasons, including
24
defendants’ failure to screen staff members for their ability to work with a population that
25
requires special skills and strengths, their failure to operate a program that addresses the
26
disabled prisoners’ needs proactively, and their failure to allocate staff members
27
reasonably. Because of these staffing inadequacies, prisoners with developmental
28
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1
disabilities continue to face discrimination, denial of access to programs and services,
2
denial of due process rights, and dangerous and unconstitutional living conditions. The
3
Court expert identified staffing as an issue that must be addressed before defendants can
4
provide adequate services. See Leone at RT 792:1-13.
5

6

189. Because there is no special hiring process for vetting DDP staff, the staff

7 members who are assigned to the DD program often lack the skills to provide services to

8 this population. Although Dr. Leone identified a few officers who appeared to understand

9 their responsibilities to the class members, others “regularly made fun of [the prisoners’]

10 inability to read or write, refused to assist them and failed to notify designated DD officers

11 or threatened them. A large number of prisoners said they feared retaliation from

12 correctional officers and tried to avoid specific officers.” Leone Report at 4. Not

13 surprisingly, DDP staff members often fail to develop a rapport with developmentally

14 disabled prisoners. Horne Dep. (Tr. Ex. 482) at 106:6-21. Rather than looking to staff

15 members for assistance, prisoners fear them. Leone Report at 3.

16

190. The current DDP staff also lacks basic knowledge about the group assigned

17 to the program. Some staff members hold the “erroneous belief that inmates who can read

18 and write are not developmentally disabled.” Leone Report at 6. Some inappropriately

19 question the disability status of certain class members. Id. Others are likely misled by

20 prisoners’ DD1 classifications to believe that the prisoner does not require assistance.

21 Cowardin at RT 655:13-656:4.

22

2. Housing

23

191. Defendants do not dispute their obligation to provide adequate and

24 reasonably safe shelter for the prisoners they incarcerate. Dkt # 361 at 15. Accordingly,

25 the Clark Remedial Plan requires that a DD prisoner “with a history of vulnerability will

26 not be housed in a cell or dorm/bay/section with an inmate with a history of sexual and/or

27 predatory behavior against ‘weaker individuals’.” CRP at 31. Acknowledging that

28 prisoners with developmental disabilities are “vulnerable” and are among the “group of

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1
inmates that, of course, are preyed upon by the more harsh and more hardcore predatory
2
type inmates we have in the facility” (Subia at RT 246:18-20), defendants have taken
3
some steps to address some of the safety concerns of plaintiff class members. These
4
measures include creating some sheltered living units and allocating staff for
5
developmentally disabled prisoners who are clustered in general population living units.
6
192. However, housing currently available for prisoners with developmental
7
disabilities does not keep them safe nor does it ensure that they are provided with
8
necessary accommodations. Three hundred prisoners with developmental disabilities,
9
approximately 25% of the total DD population, do not live in the units specially
10
designated to house them. Salz at RT 74:23-75:1, 133:12-16. Despite this shortage of
11
appropriate housing, defendants have eliminated four designated prisons since the
12
inception of the Clark program. Salz at RT 154:6-13.
13
a. Reception Centers
14
197. Under the Clark Remedial Plan, prisoners with developmental disabilities
15
should be transferred to designated prisons on an expedited basis. CRP at 9. However,
16
prisoners with developmental disabilities remain in reception centers for excessively long
17
periods of time. Houseknecht at RT 999:13-22 (prisoner in R.J. Donovan reception
18
center for over 10 months); CRP at 14 (DD prisoner housed at reception center in DVI for
19
almost three months).
20
198. Some prisoners who remain in reception center housing for extended
21
periods are subject to extreme abuse. Phillip Houseknecht, classified as DD2, was
22
physically assaulted repeatedly during his lengthy reception center stay, first by a cellmate
23
at the California Institution for Men (Chino), and then by his cellmate at R.J. Donovan.
24
Houseknecht at RT 1004:1-15, 1004:24-1005:7, 1008:15-1010:15, 1012:21-1013:17,
25
1017:8-1019:17. The abuse that he suffered at R.J. Donovan escalated: his cellmate
26
sexually assaulted him and regularly forced him to give up his food, causing him to lose
27
over 30 pounds. Id. at 1020:9-25, 1031:10-1032:6.
28
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1
199. Clustering developmentally disabled prisoners in designated housing units
2
increases the possibility that staff will provide them with adaptive support. Salz at RT
3
77:2-14. However, reception centers are not always able to cluster these prisoners,
4
including those classified as DD2. Nies Dep. (Tr. Ex. 492) at 59:4-9, 53:21-54:13. There
5
are no DDP officers in the housing units in reception centers. Id. at 62:1-3. Moreover,
6
plaintiff class members in reception centers are often locked down in their cells 23 hours a
7
day, seven days a week, or have severely limited access to the yard. Leone Report at 4,
8
14. At Deuel Vocational Institution (DVI), staff does not know whether developmentally
9
disabled prisoners are safe, once they are placed in the reception center housing unit. Nies
10
Dep. at 52:9-18.
11
b. Administrative Segregation
12
201. Since there are not enough beds to house developmentally disabled
13
prisoners appropriately, some may be housed in administrative segregation for significant
14
periods of time. Horne Dep. at 124:1-20 (DDP prisoners wait in administrative
15
segregation for a month to six weeks for bed space on A-Yard because there are no beds
16
available); see also Leone Report at 3, 10. Administrative segregation housing conditions 17 are severely restricted.5 Cal. Code Regs. Tit 15, § 3335 (explaining administrative
18
segregation). This practice was so contrary to CDCR policy that defendants’ expert tried
19
to claim it does not happen, even when faced with documentary evidence to the contrary.
20
Scaramozzino at RT 895:6-15, 906:10-19; Tr. Ex. 287; see also Tr. Ex 339, 364, 371.
21
202. Other prisoners with developmental disabilities may be placed in
22
administrative segregation for a rule violation or for their own protection. Leone Report
23
at 3; Houseknecht at RT 1014:23-1015:18, 1032:9-11 (prisoner placed in administrative
24
segregation for approximately three months after being sexually assaulted by cellmate).
25

26

5 The Armstrong court recently concluded that housing general population

prisoners with physical disabilities in administrative segregation because of a lack of

27 appropriate beds violates the ADA and Section 504 of the Rehabilitation Act. Armstrong

v. Schwarzenegger, No. C 94-2307 CW, Findings of Fact for Enforcement Order of

28 October 20, 2009, February 3, 2010 (Armstrong Docket #1700), at 1-4.

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1
Some developmentally disabled prisoners placed in administrative segregation had “no
2
idea” why they were there. Leone at RT 756:3-5.
3
203. Placement in administrative segregation has a harmful effect on prisoners
4
with developmental disabilities. Leone Report at 3. Prisoners with developmental
5
disabilities placed in administrative segregation may be locked down for 23 hours a day,
6
seven days a week, never receive support services from correctional officers, and have no
7
access to DDP staff. Id. at 3, 10; Houseknecht at RT 1034:5-1035:7 (prisoner did not see
8
DDP officer during his more than two months in administrative segregation and staff did
9
not offer to help him); see also Leone at RT 758:22-759:11 (Mr. Davis complained he
10
received no help in administrative segregation; CDCR response was that all staff are
11
trained to implement the Remedial Plan, so “anyone can help you,” which did not comport
12
with reality because non-designated staff members were not providing him needed
13
support). In other words, such prisoners do not have access to the accommodations to
14
which they are entitled.
15
204. In the absence of necessary support services, developmentally disabled
16
prisoners in administrative segregation can deteriorate. Leone at RT 756:9-13 (“[w]hen
17
you have a limited or compromised cognitive ability and you’re locked down for long
18
periods of time, the potential for you to decompensate or for your condition to deteriorate
19
in ways that make you less functional, I think, is pretty significant”). One
20
developmentally disabled prisoner, who was also mentally ill, deteriorated to the point
21
that he was smearing feces, developed scabs all over his body, and declined to leave his
22
cell. Id. at 756:16-757:16. Although a psych tech regularly checked on him, there was no
23
evidence that any DDP staff provided the assistance required to help him understand why
24
he was there or how to advocate for himself. Id. at 756:25-757:1, 757:13-17, 846:13-21
25
(no DD correctional staff at facility). Placing plaintiff class members in administrative
26
segregation without support violates the Clark Remedial Plan. Id. at RT 820:8-15.
27
3. Training
28
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1
205. It is undisputed that defendants provide training to their staff regarding
2
developmentally disabled prisoners and the accommodations that they require. The
3
serious problems set forth herein show that the training “is either inadequate or . . . there is
4
insufficient attention paid by administrative staff to the safety and protection of inmates
5
with DD.” Leone Report at 4. The DD training is clearly not sufficient, which constitutes
6
a “serious issue.” Leone at RT 792:14-20; see also id. at 788:12-25; Leone Report at 4;
7
Cowardin at RT 654:25-655:3.
8
206. Not all staff members are properly trained. Salz at RT 131:21-132:2 (staff
9
has used improper training materials in the field); see also Subia at RT 231:11-16
10
(challenge to make sure staff members are properly trained); Prud’homme Dep. at
11
130:18-23, 131:13-16 (staff member responsible for training did not know whether
12
appropriate staff had received necessary training).
13
207. Some prison staff members assigned to work with developmentally disabled
14
prisoners lacked training on some of their duties under the Clark Remedial Plan. Pearson
15
at RT 369:8-17, 369:18-371:20, 371:21-372:7 (admitted no training on how to fill out
16
adaptive support activity logs, how to elicit abuse concerns from prisoners, or how to
17
communicate with DD prisoners); Brown Dep. at 82:20-25, 83:10-18, 112:25-113:7 (DDP
18
counselor recalls no training on being staff assistant, serving on classification committees,
19
or achieving effective communication with DD prisoners); Horne Dep. at 92:21-93:10
20
(DDP officer received no training on completing adaptive support logs).
21
208. Other prison staff members demonstrated a lack of adequate training on
22
critical Clark issues. Banks Dep. at 14:4-15:1, 15:24-16:1 (DDP officer is familiar with
23
parts of the CRP, but cannot identify which ones, and has never heard of prison’s
24
operational procedure implementing CRP); Chapa Dep. at 131:11-21 (Clark counselor
25
with nine years experience unaware of obligation to log adaptive support contacts until
26
very recently), 239:10-16 (not familiar with characteristics, symptoms of autism).
27
209. Simply providing training on the DD program, without overseeing and
28
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1
analyzing the outcomes, is not adequate to implement the Clark Remedial Plan. Leone at

2
RT 789:6-22. Defendants have not evaluated the effectiveness of their training. E.g.,

3
Subia at RT 243:1-6 (has neither performed nor reviewed any analysis to determine

4
training’s effectiveness).

5

4. Self-Monitoring

6

212. The Court finds that defendants are not capable of systematically identifying

7 and correcting compliance problems with federal law and the Clark Remedial Plan.

8

213. The Court expert testified that defendants do not have the capacity or the

9 will to monitor themselves.6 Based on his experience working with prison systems where

10 court supervision came to an end, Dr. Leone believes that defendants are not in a position

11 to exit from Court supervision in Clark. Leone at RT 798:17-799:9. Further, Dr. Leone

12 testified that even if defendants could identify problems through an audit, it is doubtful

13 that they have the will and desire to remedy any issues they identify and provide adequate

14 accommodations to developmentally disabled prisoners. Id. at 845:10-14, 727:12-19.

15

a. Defendants Cannot Identify and Correct Violations of

16

Federal Law and the Remedial Plan through their Own

Monitoring

17
215. Given the size and complexity of CDCR as already noted, immediate

18
universal compliance with the Clark Remedial Plan is not possible. As a result, a system

19
to identify and correct problems is critical. Without such a system in place, defendants

20
cannot ensure that the requirements of federal law as embodied in the Clark Remedial

21
Plan will be institutionalized. Leone at RT 783:22-784:11; Wells at RT 453:20-454:12

22
(audits and establishing baseline are necessary to measure progress of compliance with

23

24

6 Many of the remedial measures defendants have presented in this hearing came

about through court orders in other prison reform cases. The Office of Court Compliance

25 staff at the individual prisons who act as headquarters’ “eyes and ears” are a result of

court intervention in Armstrong. Wells at RT 445:25-446:3. The auditing tool and

26 accountability system defendants have committed to implement in this case were a result

of another Armstrong order. McDonald at RT 936:14-937:6, 962:18-20. The Bureau of

27 Independent Review, an essential part of defendants’ disciplinary system, was a result of a

court order in Madrid v. Terhune, No. 90-3094 TEH (N.D. Cal.), which “revamped” the

28 CDCR disciplinary system. McDonald at RT 963:10-14, 964:25-965:3, 965:9-11.

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1
policies); Salz at RT 132:11-14 (headquarters oversight is crucial to make sure that
2
policies and procedures are actually being followed); see also § III.C, infra. Rather, one
3
would expect to see what the evidence actually demonstrates–a system characterized by
4
generalized indifference, with isolated examples of compliance from a few committed
5
individuals. Leone at RT 727:12-728:9.
6
216. A uniform, standardized audit tool to conduct annual compliance reviews is
7
required by the Clark Remedial Plan, first adopted by the parties in 2001 (Dkt # 194).
8
CRP at 62. The required audit tool should contain a standard set of inquiries that will, at a
9
minimum, monitor classification, grievances, disciplinary processes, prisoner
10
assignments, and provision of required services. Id. Before the implementation of
11
compliance reviews, plaintiffs’ counsel must have an opportunity to review the audit
12
instrument that CDCR has developed. Id.
13
217. Defendants do not have a standardized audit instrument currently in place. 14 Subia at RT 264:6-137; McDonald at RT 951:23-952:4.
15
218. Approximately one and a half years ago, seven years after they were
16
required to start annual audits, defendants began to develop a draft audit tool. It remains
17
incomplete and is not ready for use. McDonald at RT 939:9-21, 951:23-952:7; 952:17-
18
954:9 (audit tool is incomplete and McDonald does not know details about tool).
19
219. In its current form, the draft audit tool is bereft of many important areas of
20
inquiry. Id. at 952:17-954:9, 953:5-23 (no questions in the tool for DD prisoners about
21
whether they are physically assaulted); 954:10-13 (no questions in the tool for DD
22
prisoners about whether they are sexually assaulted), 954:14-17 (no questions in the tool
23
for DD prisoners about whether staff members speak confidentially with them), 954:22-25
24
(no questions in the tool for DD prisoners about whether they must pay other prisoners for
25
help reading and writing prison forms), 956:3-10 (no questions in the tool for DD
26

27

7 A single compliance review was conducted eight years ago. No evidence was

presented that it was conducted using a standardized audit instrument vetted by plaintiffs’

28 counsel, as required by the Remedial Plan. Wells at RT 456:20-22.

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1
prisoners about whether they are verbally abused by staff members or other prisoners),
2
957:12-20 (no questions in the tool about whether DD prisoners receive prompts to
3
perform daily living functions). These deficits contrast markedly with the Court expert’s
4
recommendations that an audit instrument query DD prisoners about their treatment.
5
Leone at RT 791:12-25.
6
220. Moreover, Ms. McDonald did not know if the tool in its current form
7
measures whether DD prisoners are being properly identified. McDonald at RT 957:21-
8
25. The audit tool also does not evaluate compliance efforts at the headquarters level.
9
McDonald at RT 952:8-13.
10
221. Defendants became aware of these and other significant omissions in the
11
tool only when raised while they were being cross-examined at trial. Id. at 976:15-977:3,
12
952:11-953:22, 954:1-955:2, 956:3-10, 957:12-25.
13
222. Although many shortcomings were apparent from defendants’ own
14
testimony, the Court is unable to fully assess the adequacy of the tool because it lacks the
15
benefit of plaintiffs’ counsel’s expertise and input because defendants have not asked
16
plaintiffs’ counsel to vet the draft tool. Wells at RT 205:21-206:16, 977:7-19. Input from
17
plaintiffs’ counsel has been useful in this case in the past. Wells at RT 449:13-16; CRP at
18
62; Salz at RT 56:7-58:15 (to date, there has been “tremendous” cooperation between
19
plaintiffs’ counsel and CDCR to improve the DDP, with great success).
20
223. At the time of the hearing, defendants claimed that the tool would be ready
21
for use in 30 days. McDonald at RT 933:16-18. Since the instrument is not finished,
22
however, and since defendants only recently learned of deficits from plaintiffs’ counsel
23
during trial, the Court cannot find that it will do what it is intended to do–provide an
24
accurate measure of compliance. Wells at RT 977:20-978:24 (the decision about whether
25
and when to show the completed audit tool to plaintiffs’ counsel must be made by the
26
Office of Court Compliance management team, the Office of Legal Affairs management
27
team, and the Division of Adult Institutions, and there has been no “in-depth” discussion
28
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1
of the time frame for this).

2
224. In the absence of the required standardized audit process, defendants have

3
relied on informal communications regarding compliance at the prisons. The evidence

4
shows that these efforts have been piecemeal and fall short of what is required to identify

5
and correct violations of federal law and the Clark Remedial Plan. Wells at RT 455:15-

6
456:7.

7
225. Dr. Salz, the Chief Psychologist at CDCR who directs the mental health

8
component of the Clark remedial efforts, conducts limited reviews of discrete areas of the

9
Clark Remedial Plan: he checks only on the testing and identification of developmentally

10
disabled prisoners. Salz at RT 136:14-17. In the last two years, Dr. Salz conducted

11
reviews at only three prisons, spoke to a small percentage of developmentally disabled

12
prisoners, and did not speak to any custody staff. Salz at RT 135:18-20, 137:1-12,

13
136:14-20.

14
226. Dr. Salz does not routinely provide written reports about these visits to the

15
institutions. Salz at RT 135:23-136:1. Defendants presented no evidence of the results of

16
these reviews.

17

227. Correctional Counselor II Specialists8 in the prisons are charged with,

18
among other things, overseeing the Clark Remedial Plan at the local level. Wells at RT

19
170:17-171:9. One of their responsibilities is to work with the ADA Coordinators and

20
other prison staff to ensure that training is provided and that staff understands the Clark

21
Remedial Plan. Id. at 170:17-171:9, 179:7-180:7; Aref at RT 274:9-24. Correction

22
Counselor II Specialists are supposed to provide reports of non-compliance to

23
headquarters officials. Wells at RT 180:8-15.

24
228. These reports do not satisfy the audit and compliance review requirements

25

26

8 As a result of a court order in another prison reform case in this Court, 26

Correctional Counselor II Specialist positions were added at some of the prisons in 2007.

27 Wells at RT 445:13-17; 445:25-446:3; Armstrong v. Schwarzenegger, Case No. C 94-

2307 CW, Injunction, January 18, 2007 (Armstrong Dkt #1045) (Authority App., Ex. 4),

28 at 5.

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1
of the Clark Remedial Plan: the Correctional Counselor II Specialists do not use a

2
standardized tool that has been vetted by plaintiffs’ counsel and the reports are not formal

3
audits. Wells at RT 453:20-456:12, 454:24-455:9.

4
229. The Office of Court Compliance is charged with monitoring compliance

5
issues at individual prisons. Wells at RT 169:5-170:2. The Office also does not

6
effectively identify problems. Many serious issues that were discovered by the Court

7
expert and plaintiffs’ counsel were unknown to the Office of Court Compliance. See, e.g.,

8
Wells at RT 449:22-450:21 (facility captain at Office of Court Compliance not shown

9
Prison Law Office monitoring report from Lancaster [Tr. Ex. 1003], alleging that three

10
staff members had been calling DD prisoners “girls,” “fagots,” “boy” and yelling

11 needlessly at them9), 491:2-492:9 (facility captain at Office of Court Compliance never

12
shown administrative segregation forms indicating no staff assistant assigned to DD

13
prisoners and does not know whether any corrective or disciplinary actions were taken),

14
549:6-13 (facility captain at Office of Court Compliance never shown parole

15
documentation indicating that no effective communication provided to DD prisoners).

16

b. Defendants Are Unable to Systematically Identify and

17

Correct Violations of Federal Law and the Clark Remedial

Plan Because They Do Not Have an Accountability Process

18

19

230. Theoretically, prison staff can be disciplined for failing to follow the Clark

20 Remedial Plan. Salz at RT 176:14-177:13; Subia at RT 221:24-222:12; McDonald at RT

21 936:25-937:10 (disciplinary consequences of noncompliance with the CRP); McDonald at

22 RT 941:17-944:8 (formal staff disciplinary process); McDonald at RT 946:9-12

23 (describing how CDCR’s compliance with the disciplinary process is monitored).

24

231. Despite ample evidence of extensive violations of the Clark Remedial Plan

25 from Dr. Leone’s reports, from the documentary evidence, and from plaintiffs’ counsel’s

26 monitoring reports, not a single high-ranking defense witness was aware of any formal

27

9 This testimony is of particular concern since at Lancaster, Correctional Counselor

II Specialists typically accompany plaintiffs’ counsel during the monitoring tours.

28 Wofford at RT 401:20-22.

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1
disciplinary measures ever taken against a CDCR staff member for violating the Clark
2
Remedial Plan. Subia at RT 216:7-217:7 (Subia’s job titles include employee relations
3
officer responsible for employee discipline), 240:21-241:12; McDonald at RT 962:14-17;
4
Wells at RT 492:4-17, 498:19-499:4.
5
232. The ADA Coordinator at Lancaster also testified that he had neither taken
6
any disciplinary action himself, nor knew of disciplinary action taken by other staff
7
members in response to allegations of verbal abuse by staff in the reports of the Court
8
expert and plaintiffs’ counsel. Wofford at RT 427:12-14, 429:21-430:6.
9
233. Although aware of serious problems, not a single witness even promised to
10
hold any of the responsible staff accountable.
11
234. Defendants are capable of establishing a more far-reaching accountability
12
system tailored to Clark compliance. In another prisoner disability discrimination case
13
before this Court, a specific Court order requiring a system of accountability resulted in a
14
more comprehensive accountability process. Armstrong v. Schwarzenegger, Case No. C
15
94-2307 CW, Injunction, January 18, 2007 (Armstrong Dkt # 1045), at 7 (ordering
16
accountability system in Armstrong that tracks the record of each institution and the
17
conduct of individual staff members who are not complying with the requirements of the
18
Armstrong Remedial Plan and orders of the Court; ordering defendants to refer
19
individuals with repeated instances of non-compliance to the Office of Internal Affairs,
20
and for discipline, if appropriate); Wells at RT 549:16-550:9. In that case, because of the
21
accountability process, staff members have an extra incentive to abide by the Armstrong
22
Remedial Plan, and when they do not, headquarters officials are informed that there is a
23
problem. Wells at RT 550:13-551:17.
24
235. No such particularized accountability process exists in this case. Wells at
25
RT 550:2-11. At the hearing, defendants first expressed an intention to plaintiffs’ counsel
26
to adopt measures to hold staff accountable. McDonald at RT 936:25-937:10. This
27
intention has not yet been realized. An executive-level defense witness was shown this
28
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1
plan only in preparation for her testimony in the hearing (McDonald at RT 963:4-9), and it
2
has not been vetted by the Court expert or plaintiffs’ counsel.
3
236. In sum, the Court does not have any confidence that defendants are capable
4
of identifying and correcting systemic violations of the ADA, § 504, and the Fourteenth
5
and Eighth Amendments. It has not been able to do so in the past, and the Court does not
6
believe that it will be able to do so in the future.
7
5. Retaliation
8
237. To the extent that defendants have engaged in remedial efforts, those efforts
9
have been undermined by their own staff members, some of whom have harassed and
10
retaliated against prisoners who have spoken out in these proceedings about the lack of
11
protection and adaptive services for developmentally disabled prisoners.
12
238. Tryon Smith was deposed regarding problems that prisoners with
13
developmental disabilities face at Lancaster. Smith at RT 524:9-14. Custody officers
14
were in the room during the deposition. Id. at 524:15-19. Prison staff members called
15
him a “snitch” following the deposition. Id. at 525:2-9. Being called a snitch is
16
“probably the worst thing you could be called in prison.” Leone at RT 760:16-18, see also
17
Smith at RT 525:10-21 (being called “snitch” in prison means “you get hurt”). For
18
developmentally disabled prisoners, who already experience violence and exploitation
19
from other prisoners, such a label is all the more dangerous and alarming. Thus, Mr.
20
Smith expressed understandable concern about renewed retaliation when he testified
21
during the trial. Smith at RT 526:3-5.
22
239. The Court’s expert identified similar threats of retaliation. According to
23
Daniel Mendez (#138), staff members told him, “if you want no harassment, ease up on us
24
when the visitors com[e].” Leone Report at 18. Numerous other prisoners reported being
25
“directed to say positive things about the DD Program” to the Court’s expert. Id.; see also
26
Leone at RT 735:22-736:6 (one prisoner interviewed asked that his name not be used,
27
while others expressed fear of retaliation). Moreover, a large number of prisoners said
28
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they feared retaliation from correctional officers and tried to avoid specific officers. Leone
2
Report at 3. Incidents of harassment were numerous and significant enough that Dr.
3
Leone found it necessary to recommend that CDCR “provide assurances that when
4
inmates’ names are identified [in conjunction with the expert report], there will be no
5
retaliation. CDCR staff at the level[s] of warden and associate warden needs to describe
6
how [it] will ensure that there will be no retaliation against inmates who talked to the
7
Court’s Expert.” Id. at 20.
8
III. Defendants Have Failed to Meet their Burden of Proof
9
257. As discussed in the Conclusions of Law, defendants bear the burden of
10
proof on their termination motion. They must demonstrate that there are no current or
11
ongoing violations of the statutory and constitutional rights of the plaintiff class that
12
warrant continuing relief. The Court finds that defendants have fallen short of meeting
13
this burden as to the majority of the existing prospective relief. Even if the burden were
14
on plaintiffs, the evidence set forth in the previous section demonstrates that
15
developmentally disabled prisoners are currently subject to systemic constitutional and
16
statutory violations in California prisons, and the evidence put forth by defendants fails to
17
rebut that case in any significant way.
18
258. Defendants’ evidence falls into four categories: (1) testimony from officials
19
from CDCR headquarters regarding their written policies, the implementation of those
20
policies, and staff training requirements; (2) testimony from individual prison staff
21
members regarding their personal actions in addressing the needs of some
22
developmentally disabled prisoners; (3) rebuttal expert testimony regarding Dr. Leone’s
23
report; and (4) documentary evidence. These categories are addressed in turn below.
24
A. CDCR Officials
25
1. Terri McDonald and Richard Subia
26
259. Two high-level custodial officials testified for defendants: Terri McDonald,
27
who is the Chief Deputy Secretary of Adult Operations and third in command of the
28
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1
CDCR, and Richard Subia, who is the Deputy Director of the Division of Adult
2
Institutions. McDonald at RT 928:10-11; Subia at RT 215:22-216:3. These officials
3
testified that they are confident that CDCR follows the dictates of the Clark Remedial
4
Plan (CRP) (Subia at RT 220:7-221:1), with Ms. McDonald going so far as to state her
5
conviction that the state is “in substantial compliance” with its requirements, McDonald at
6
RT 939:24-25, 959:18-19. Although the sincerity of these witnesses is not in doubt, for
7
the reasons set forth below, the Court does not give credit to their conclusions.
8
260. These assertions cited above were not supported by any personal knowledge
9
of prison conditions for developmentally disabled prisoners. Neither Ms. McDonald nor
10
Mr. Subia had spoken to developmentally disabled prisoners or designated DDP staff
11
regarding issues facing developmentally disabled prisoners. McDonald at RT 950:3-6
12
(does not tour prisons to ask about substantive Clark matters), 16-18 (has never asked a
13
prisoner about a substantive Clark matter); Subia at RT 249:16-21 (in the last two years,
14
has not spoken to any DD prisoners or to correctional officers regarding the DDP). Nor
15
did these witnesses have sufficient knowledge from reliable secondary sources: neither
16
regularly reviews any reports regarding Clark compliance. McDonald at RT 949:13-23
17
(does not review Court experts’ or plaintiffs’ counsel’s monitoring reports); Subia at RT
18
239:12-18, 242:12-14 (has not received reports from the Court experts until Dr. Leone’s
19
2010 report), 268:9-12 (has not been on monitoring tours with plaintiffs’ counsel “within
20
the last couple of years”).
21
261. Further, Ms. McDonald has not talked to Office of Court Compliance staff
22
involved in Clark monitoring in the 14 months she has been Chief Deputy Secretary.
23
McDonald at RT 950:19-951:4. Mr. Subia testified that although he is aware that staff
24
members are supposed to document the services they provide to developmentally disabled
25
prisoners, in his current position he has not reviewed logs or seen evaluations of whether
26
logs are reliably documenting services. Subia at RT 242:12-25. He has neither performed
27
nor reviewed any analysis to determine if DDP training is effective. Id. at 243:1-6. He
28
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1
has done no investigation or evaluation to determine whether developmentally disabled

2
prisoners receive staff assistants at disciplinary hearings. Id. at 245:6-9. Although he

3
acknowledged that, as a group, developmentally disabled prisoners are vulnerable to

4
exploitation and abuse, including sexual and physical assault, from other prisoners (id. at

5
246:3-4, 246:18-20, 247:8-20) and stated that protecting developmentally disabled

6
prisoners requires more supervision and oversight by staff than protecting non-disabled

7
prisoners does (id. at 247:21-24), he was not aware of any evaluation of whether CDCR’s

8 staffing is adequate to protect developmentally disabled prisoners, 10 id. at 247:25-248:2.

9
262. The central questions before the Court are whether defendants act in

10
accordance with their obligations under the law as embodied in their written policies and

11
procedures and the required training, and whether those policies and procedures and

12
training are adequate to safeguard the federal rights of the plaintiff class. Neither Ms.

13
McDonald nor Mr. Subia could shed any light on either point, since neither had any

14 personal knowledge to offer.11

15
2. Dr. Donald Salz

16
263. Dr. Donald Salz, Chief Psychologist at CDCR Healthcare Services-Mental

17
Health, also testified about CDCR treatment of developmentally disabled prisoners and

18
compliance with the Clark Remedial Plan. Salz at RT 40:5-6. Dr. Salz is responsible for

19
clinical assessments of developmentally disabled prisoners and staff training in the DDP.

20
Id. at 42:4-9. Although not designated by defendants as an expert, he testified that in his

21
opinion, the DDP has changed prison culture in California for the better in the last 15

22
years. Id. at 104:24-106:6. According to Dr. Salz, people who have been promoted in the

23
prison system since the DDP training began “are people that get it, people that understand

24

10 At least one factual error also undercut Mr. Subia’s testimony. He claimed that

25

there are 12 prisons designated for DD prisoners when in fact there are only 10. Subia at RT 220:5-6; Stipulated Fact 9.

26

11 Similarly, the draft audit tool, about which Ms. McDonald and Mr. Wells

testified about in great detail, demonstrates only that compliance with one Clark Remedial

27 Plan requirement has begun, many years late. It does not show that defendants are in

compliance with the rest of the Remedial Plan, that there are no statutory or constitutional

28 violations, or that they are capable of self-monitoring.

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that Americans with [D]isabilities [A]ct is real law, needs to be followed, even inside a
2
prison and they get it and they promote it. They support it when we do[] our audits and
3
we brought up problems with them, they support it wholeheartedly.” Id. at 105:15-20.
4
264. However, Dr. Salz’s testimony lacked foundation because of his extremely
5
limited knowledge of current conditions. He has done only three audits in the past two
6
years (id. at 135:18-20) and has talked to no more than 20 developmentally disabled
7
prisoners in that time period, id. at 137:1-12. His areas of responsibility in the DDP are
8
limited to clinical assessments of prisoners and training. Id. at 42:4-9. His personal
9
knowledge does not extend outside of these areas: his audits addressed only the testing
10
and identification processes, and not custodial matters, and only “occasionally” included
11
conversations with correctional officers. Id. at 136:14-20. Thus, for example, he has no
12
personal knowledge of whether developmentally disabled prisoners are given help with
13
reading and writing. Id. at 142:9-11, 142:17-143:1, 143:9-13. He has no role with regards
14
to placement of developmentally disabled prisoners. Id. at 143:14-144:15. He has no
15
personal knowledge of whether staff assistants are assigned to developmentally disabled
16
prisoners who need them. Id. at 141:18-142:5. Dr. Salz’s opinions regarding general
17
compliance lack foundation.
18
265. Nor is Dr. Salz’s testimony on those topics about which he does have
19
personal knowledge–clinical assessments and training–particularly helpful. The Court’s
20
serious concerns regarding CDCR’s clinical assessments and Dr. Salz’s testimony on that
21
topic are set forth in § II.B, supra. Regarding training, there is no dispute that training is
22
helpful. The only questions are (a) whether the training is being provided as required, and
23
(b) whether the required training is adequate to ensure that the needs of the plaintiff class
24
are met. Dr. Salz’s testimony provided no evidence on either of those points: he has no
25
personal knowledge of whether staff is actually receiving the required training (id. at
26
145:12-15) and, in fact, admitted that staff members have used improper training materials
27
in the field. Id. at 131:21-23. Dr. Salz simply does not know whether the needs of the
28
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plaintiff class are being met.
2
3. Richard Wells
3
266. The defense witness with the most knowledge on defendants’ remedial
4
efforts in this case was Richard Wells, a facility captain in the Office of Court
5
Compliance. The Office of Court Compliance, an arm of CDCR’s legal office, manages
6
compliance efforts for Clark as well as other class action lawsuits. Wells at RT 169:5-11.
7
The task of the Office is to monitor compliance, provide training, and ensure that the
8
mandates of the Clark Remedial Plan are met. Id. at 169:19-170:2.
9
267. Mr. Wells testified that staff is trained to protect canteen purchases of
10
developmentally disabled prisoners by escorting them to pick it up and/or inventorying
11
their property (id. at 192:17-193:1), to help them with showers and hygiene (id. at 195:15-
12
196:8), and to be aware of their vulnerability to abuse. Id. at 193:18-194:2. However, he
13
also testified that he did not know whether all staff members have received training (id. at
14
554:17-19) and that staff sometimes uses improper training materials. Id. at 554:1-4.
15
Thus, the questions regarding the adequacy of training, raised by Dr. Leone, and the
16
disputed matter of whether all staff receive the required training with the appropriate
17
materials were not resolved by his testimony.
18
268. Mr. Wells testified that the Office of Court Compliance has staff at the
19
prisons who are their “eyes and ears” on Clark compliance. Id. at 171:1-9. According to
20
Mr. Wells, these supervising correctional counselors (known as CCIIs) ensure compliance
21
with the Clark Remedial Plan, work with the ADA Coordinators and other staff to remedy
22
any problems, and provide information weekly to Mr. Wells and his staff. Id. at 179:7-
23
180:25. Significantly, however, Mr. Wells never directly stated that defendants were in
24
compliance with the Clark Remedial Plan, nor did he comment on Dr. Leone’s report or
25
refute any of his conclusions. His testimony avoided the critical question that the Court
26
must address—whether there are current violations of constitutional and statutory rights—
27
and instead focused on the infrastructure that defendants have established to comply with
28
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the mandates of the Remedial Plan, including policies and procedures, training, and
2
staffing both at headquarters and at the institutions.
3
269. Whether that infrastructure is adequate to provide sufficient services to
4
plaintiff class members was not answered by Mr. Wells, since, like all of the other
5
headquarters officials who testified, he lacked sufficient information about problems with
6
Clark compliance. He did not know whether all developmentally disabled prisoners who
7
need help reading and writing actually receive it. Id. at 555:8-12. He did not recall
8
receiving or reviewing plaintiffs’ counsel’s 2008 report raising serious concerns about
9
compliance at Lancaster and did not recall anyone bringing problems set forth in that
10
report to his attention. Id. at 449:22-450:3, 451:3-5. Although he did review Dr. Leone’s
11
2008 report, which raised serious concerns about compliance at Lancaster, he neither
12
directed staff to take corrective action, nor asked Mr. Subia to do the same. Id. at 469:24-
13
470:16.
14
270. Mr. Wells’s testimony was further undercut by the documentation of Clark
15
Remedial Plan violations. He admitted that numerous recent administrative segregation
16
placement notices he was shown demonstrated Clark Remedial Plan violations through
17
the failure to provide developmentally disabled prisoners with staff assistants. Id. at
18
474:25-475:12; 476:10-20; 482:24-483:3; 484:6-17; 486:10-22; 487:21-24; see also Tr.
19
Exs. 306-07, 323, 331, 333, 335. He had never seen these documents before and admitted
20
that he did not know if any corrective or disciplinary actions had been taken against staff
21
whose violations were documented on the forms. Wells at RT 491:2-18, 22; 492:4-9. The
22
record contains many additional examples of similarly deficient notices. See Tr. Exs. 287,
23
288, 321, 337-39, 341, 350, 364-75, 377-82, 392-93.
24
271. Similarly, Mr. Wells was shown numerous forms notifying developmentally
25
disabled prisoners of their parole conditions that failed to document adequate
26
accommodations or assistance, as required by CDCR policy. Wells at RT 502:25-503:7,
27
503:19-24, 509:9-14, 509:20-22, 541:20-542:5, 543:5-10, 544:20-545:5, 545:18-546:3,
28
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547:7-14; see also Tr. Exs. 27, 29, 30, 33, 95, 97, and 99. These forms thus documented
2
violations of CDCR rules. Wells at RT 503:3-7, 509:12-22, 542:1-6, 543:5-10, 544:19-
3
545:5, 545:24-546:11, 547:10-14. He had never before seen any of the non-compliant
4
conditions of parole forms. Id. at 549:6-7, 13. The record contains many additional
5
examples. See Tr. Exs. 23-26, 28, 31-32, 34-94, 96, 98.
6
272. Mr. Wells’s testimony thus does not contradict the overwhelming evidence
7
of systemic Remedial Plan violations as discussed in § II, supra. Indeed, it is entirely
8
consistent with the picture painted in Dr. Leone’s report: that defendants have made some
9
advances in their treatment of developmentally disabled prisoners, that they have good
10
policies and helpful training, and that some committed, well-intentioned staff members
11
provide some services to some prisoners, but that the efforts fall far short of meeting the
12
needs of a majority of plaintiff class members, many of whom are forgotten or ignored
13
and left without the help they need to function in the dangerous and difficult prison
14
environment.

15
B. Staff at the Various Prisons
16
273. Nine ADA Coordinators, four DDP counselors, and four DDP officers from 17 a total of six California prisons12 testified live and by deposition for defendants.13 The
18
Court finds that the testimony from staff members at various prisons regarding their work
19
with individual class members is not adequate to demonstrate systemic compliance or to
20
counter plaintiffs’ evidence showing systemic violations of federal law and the Clark

21
Remedial Plan.
22
274. As discussed in more detail below, the testimony of several ADA
23
Coordinators that their institutions are compliant with the requirements of the Clark
24

25

12 The six prisons -- R.J. Donovan, SATF, California Rehabilitation Center,

Lancaster, CMF, and Deuel Vocational Institution -- were all visited by the Court expert

26 before he drafted his report.

13 The parties stipulated that the direct testimony of the prison staff witnesses who

27 appeared only by deposition would be substantially similar to the direct testimony of their

counterparts who appeared in person, and the Court has considered that stipulated

28 testimony in making these Findings. See RT 375:12-376:4.

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1
Remedial Plan lacks foundation: they simply do not know enough about compliance

2
matters at their prisons. Other testifying staff members are not credible in describing their

3
prison’s compliance performance because they are ignorant of the requirements of the

4
Remedial Plan and of the needs of developmentally disabled prisoners, are failing to

5
perform their work adequately, and have not received necessary required training.

6
275. After weeding out the testimony that lacks credibility or foundation, what

7
remains are isolated examples of some services provided to plaintiff class members. Such

8
isolated examples are entirely consistent with the findings of the Court expert.

9

1. Some ADA Coordinators Lack Foundation to Testify about

10

Compliance in their Prisons

11

276. ADA Coordinators are charged with ensuring compliance with the Clark

12 Remedial Plan at their prisons. CRP at 41; Prud’homme Dep. (Tr. Ex. 488) at 22:3-6,

13 28:18-21; Wells at RT 171:22-24. In the absence of a state-wide standardized

14 comprehensive system to measure compliance in the institutions, ADA Coordinators’

15 methods for ensuring compliance varied widely. Some did not speak to staff or

16 developmentally disabled prisoners or review documents. As a result, some ADA

17 Coordinators lacked foundation to testify about whether plaintiff class members at their

18 prisons are provided necessary accommodations.

19

a. No Personal Knowledge

20

277. In some cases, ADA Coordinators lacked personal knowledge about

21 whether their staff were following Remedial Plan requirements. Prud’homme Dep. at

22 114:8-24 (ADA Coordinator at SATF lacks personal knowledge whether all needs of DD

23 prisoners are being met), 198:15-199:1 (no personal knowledge whether staff assistants

24 always assigned to DD prisoners at classification proceedings), 62:4-19, 65:1-6, 65:21-

25 67:1 (same), 198:8-14 (no personal knowledge whether staff assistance provided to DD

26 prisoners during grievance process); Ynson Dep. at 55:13- 57:13 (ADA Coordinator at

27 Lancaster not personally aware if lesson plan for staff training includes instructions on

28 how to prompt DD prisoners), 61:5-16 (no personal knowledge as to whether staff at

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1
Lancaster encourage DD prisoners to participate in beneficial programs and services),
2
121:24-122:19 (no personal knowledge whether staff assistants assigned at disciplinary
3
hearings, whether effective communication is achieved, or whether staff ensure DD
4
prisoners understand the nature and importance of disciplinary proceedings), 123:25-
5
124:3 (no personal knowledge whether staff assistants assigned to DD prisoners at
6
administrative segregation hearings), 135:15-18 (no personal knowledge whether staff is
7
assigned to facilitate DD prisoners’ use of grievance system), 140:17-141:13 (no personal
8
knowledge whether DD prisoners receiving staff assistance filling out grievance forms
9
when they requested help from correctional counselors, housing staff, or DD staff, and not
10
aware if enough staff members are available to help DD prisoners with grievance forms),
11
146:12-16 (no personal knowledge whether Lancaster staff take specific measures to
12
protect DD prisoners from abuse by other prisoners), 147:16-21 (no personal knowledge
13
whether staff who provided orientation to DD prisoners were trained to communicate with
14
them), 151:2-4 (no personal knowledge whether DD prisoners notified of conditions of
15
parole before release), 114:21-24 (no personal knowledge that staff assistants assigned at
16
classification hearings except on four occasions), at 115:7-15 (no personal knowledge that
17
effective communication achieved during classification hearings while ADA
18
Coordinator), 119:20-120:3 (no personal knowledge that a staff assistant speaks to DD
19
prisoners who refuse to appear at classification committee hearings); Nies Dep. (Tr. Ex.
20
492) at 142:23-143:2, 141:4-6 (ADA Coordinator at Deuel Vocational Institution could
21
not verify whether DD prisoners were provided with required assistance in administrative
22
proceedings because he never attended a disciplinary hearing of a DD prisoner while
23
ADA Coordinator).
24
b. No Foundation for Claiming Compliance
25
278. Given the seriousness of the compliance problems presented to the Court
26
and the undisputed duty of staff to proactively offer help to plaintiff class members (see §
27
II.C.1.f), it is not sufficient for prison officials to opine that prisoners’ needs are met
28
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1
because the officials do not hear complaints. At least one ADA Coordinator’s opinions
2
regarding compliance rested on just such faulty grounds. Prud’homme Dep. at 121:5-
3
122:10 (ADA Coordinator confident that staff explain conditions of parole in a way that
4
DD prisoners can understand because nobody has raised any problems with him), 108:3-
5
14 (believes that DD prisoners who need help reading and writing are receiving it because
6
he hears very few complaints, does not see that it’s not being done and does not hear
7
about problems from his staff), 132:6-15 (bases his belief that staff provided adaptive
8
support services to DD prisoners as needed on “how well our DD population functions”).
9
279. The questions before the Court are whether defendants implement their
10
written policies and the required trainings, and whether those policies and trainings
11
effectively protect the rights of plaintiff class members–not whether those policies and
12
trainings merely exist. But some ADA Coordinators’ assertions that their prisons were in
13
compliance relied on only the existence of policies and trainings. Valdez Dep. (Tr. Ex.
14
493) at 128:21-130:1, 139:24-141:15 (former ADA Coordinator from R.J. Donovan could
15
not testify that he knew whether staff were sensitive to the needs of DD prisoners and alert
16
to possible abuse, only that staff were trained in these areas); Nies Dep. at 133:6-134:8
17
(ADA Coordinator from DVI could not testify that he knew whether staff were alert to 18 possible abuse, only that staff were trained in that area).14
19
280. Some ADA Coordinators do not know or investigate whether plaintiff class
20
members’ rights are violated under the Remedial Plan and federal law. Nies Dep. at
21
94:12-14 (ADA Coordinator at DVI does not know how often counselors go into housing
22
units and no documentation of this), 33:10-11, 33:16, 18, 34:16-20, 34:22-36:22 (no
23
knowledge of what, how, and whether transfer of DD prisoners out of Reception Center
24
is expedited, as required by the Remedial Plan [CRP at 9-10] and the prison’s Operational
25

26

14 At the same time, some ADA Coordinators did not even know whether required

training was provided. Prud’homme Dep. at 131:13-16 (ADA Coordinator at SATF could

27 not say that every staff member received each required trainings); Nies Dep. at 139:20-22

(ADA Coordinator at DVI does not know whether all staff serving as staff assistants have

28 received appropriate training).

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1
Procedure [Tr. Ex. 1024 at 12]; Gonzalez Dep. (Tr. Ex. 483) at RT 165:11-24 (former
2
ADA Coordinator at California Medical Facility [CMF] has never investigated whether
3
staff inform plaintiff class members about their parole conditions in a way that they can
4
understand or whether staff inform parole officers of class members’ disabilities); Cowan
5
Dep. (Tr. Ex. 494) at 59:19-25 (ADA Coordinator at R.J. Donovan does not know how
6
counselors explained conditions of parole to DD prisoners).
7
281. Some ADA Coordinators had not reviewed adequate documentation to
8
claim compliance. Prud’homme Dep. at 132:6-133:8 (ADA Coordinator at SATF
9
believes that staff are providing adequate adaptive support but has only reviewed adaptive
10
support logs twice, one year before his deposition), 142:10-11 (does not review
11
documentation from administrative segregation hearings to determine whether staff
12
assistants assigned), 139:21-140:22 (does not audit documentation from classification
13
proceedings to ensure that assistant assigned); Ynson Dep. at 73:23-25 (did not review
14
adaptive support logs while ADA Coordinator); Gonzalez Dep. at 102:11-14, 113:2-5,
15
120:12-19, 108:1-25; 128:3-129:18 (former ADA Coordinator at CMF never reviewed
16
DD prisoners’ documentation from disciplinary, classification or administrative
17
segregation placement proceedings to determine whether required assistance provided);
18
Cowan Dep. at 99:21-25 (ADA Coordinator at R.J. Donovan does not review
19
documentation to assess whether staff assistants assigned classification).
20
282. Some ADA Coordinators rarely spoke to DDP staff or developmentally
21
disabled prisoners, similarly limiting their ability to testify competently regarding
22
compliance. Gonzalez Dep. at 166:12-168:10, 171:7-11 (former ADA Coordinator at
23
CMF did not speak to staff about frequency of contacts with DD prisoners); Mandeville
24
Dep. (Tr. Ex. 485) at 14:22-15:21 (ADA Coordinator from CMF has only minimal direct
25
contact with DD prisoners).
26
283. Further evidence that these defense witnesses lacked foundation to testify
27
about Clark compliance comes from the testimony of DDP officers and counselors from
28
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1
multiple institutions, who described minimal oversight by and interaction with ADA

2
Coordinators. Banks Dep. (Tr. Ex. 484) at 71:10-12 (DDP officer at CMF has no

3
interactions with ADA Coordinator); Pearson at RT 367:9-13 (DDP officer at California

4
Rehabilitation Center only saw ADA Coordinator in housing unit two or three times and

5
never saw him look through the locked box containing 128C-2s); Horne Dep. (Tr. Ex.

6
482) at 169:22-170:3 (DDP officer at Lancaster did not know who current ADA

7
Coordinator was); Rhodes Dep. (Tr. Ex. 487) at 108:19-23, 109:1-3 (DDP counselor at

8
Lancaster did not know who ADA Coordinator was or what his duties are); Clausing Dep.

9
(Tr. Ex. 491) at 40:23-41:21 (ADA Coordinator at SATF seen by DDP officer in housing

10
unit no more than six to seven times in last two years); Chapa Dep. (Tr. Ex. 489) at

11
214:25-215:5 (DDP counselor at SATF did not inform the ADA Coordinator about

12
grievance alleging that DD prisoners were being discriminated against, harassed, and

13
assaulted); Tr. Ex. 253.

14

2. Some Prison Staff Are Ignorant of Requirements of the Clark

15

Remedial Plan and of Needs of Developmentally Disabled

Prisoners

16

17

284. The testimony of other prison staff was not credible because they do not

18 know the requirements of the Remedial Plan and they do not understand the

19 characteristics and needs of developmentally disabled prisoners.

20

a. Ignorance of Requirements of the Clark Remedial Plan

21

285. Some ADA Coordinators, DDP officers, and DDP counselors did not know

22 the requirements of the Remedial Plan.

23

286. Defendants classify plaintiff class members as DD1, DD2, and DD3 based

24 on the nature and severity of the developmental disability, adaptive deficits, and adaptive

25 support services required. CRP at 3-4, 20-23; Salz at RT 75:5-21. However, at least one

26 ADA Coordinator was unaware of these designations or of their significance. Gonzalez

27 Dep. at 36:7-37:5 (former ADA Coordinator at CMF had no opinion about whether DD2s

28 have greater need for adaptive support than DD1s and whether DD3s have greater need

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1
for adaptive support than DD2s).
2
287. DDP officers and counselors are required to document adaptive support
3
services, prompts, contacts, and issues relating to developmentally disabled prisoners.
4
CRP at 42. But at least one staff was unaware of this requirement. Chapa Dep. at 131:11-
5
21; 214:5-19 (DDP counselor at SATF for almost 11 years had never documented any
6
adaptive supports he provided to DD prisoners in housing unit log until ADA Coordinator
7
told him six months ago that he had do so because “the Prison Law Office was getting
8
picky”).
9
288. The Remedial Plan requires that an Interdisciplinary Support Team (IDST)
10
act as the classification committee for plaintiff class members at the Clark designated
11
prisons. CRP at 24-25. The IDSTs review the developmentally disabled prisoner’s
12
custody, classification, program, and adaptive support at varying intervals, depending on
13
the designation of that prisoner. Correctional officers are required to participate in and
14
provide support services at the IDST. CRP at 42. However, some prison staff members
15
showed a profound ignorance of these committees and their duties. Banks Dep. at 63:13-
16
64:3 (DDP officer does not know what IDST is); Gonzalez Dep. at 136:14-137:12 (former
17
ADA Coordinator at CMF not aware of required frequency of classification committee for
18
DD2s and DD3s).
19
289. Plaintiff class members are entitled to assistance so that, to the best of their
20
ability, they can understand and participate in administrative proceedings. CRP at 8. To
21
this end, defendants must assign staff assistants trained to communicate with
22
developmentally disabled prisoners in disciplinary, classification, and administrative
23
segregation placement hearings. Id. at 8, 49-50; see also Salz at RT 120:1-122:1
24
(communicating effectively with DD prisoners means making language more concrete and
25
having the prisoner repeat back the statement in his own words). However, some prison
26
staff members did not know or understand these requirements. Banks Dep. at 61:6-11,
27
61:25-62:5 (DDP officer at CMF believes that when serving as staff assistant for DD
28
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1
prisoner, it is adequate to ensure that that prisoner understands by “speaking in normal

2
English”); Ynson Dep. at 127:2-19 (ADA Coordinator at Lancaster not concerned that

3
staff assistant not assigned at administrative segregation hearing because captain decided

4
it was not necessary), 137:19-138:17 (same).

5
290. Some CDCR staff members testified as to their ignorance with the Clark

6
program at their own institutions. Gonzalez Dep. (Tr. Ex. 483) at 62:19-63:14, 64:10-23;

7
170:13-171:4 (former ADA Coordinator unaware of use of adaptive support logs in

8
housing units), 26:14-19 (same witness did not know how many DDP officers were at

9
institution); Mandeville Dep. at 41:25-42:4 (ADA Coordinator does not know where

10
various classifications of DD prisoners are housed at CMF); Banks Dep. at 26:4-19

11
(officer at CMF does not know the name of the counselor she would need to speak with to

12
find out what adaptive services a DD prisoner needs); Ynson Dep. at 37:17-25 (does not

13
know if DD prisoners were housed in general population while he was ADA Coordinator).

14

b. Staff Members Do Not Understand Needs of

15

Developmentally Disabled Prisoners

16

291. Staff members from several prisons demonstrated ignorance and a lack of

17 understanding of the needs of prisoners with developmental disabilities.

18

292. Because developmentally disabled prisoners are particularly vulnerable to

19 abuse from other prisoners, one of the purposes of the Clark program is to provide

20 protections for this group. Tr. Ex. 1 at 2; Cowardin Report at 20; Salz at RT 126:10-13.

21 However, many staff members were indifferent to the greater likelihood for abuse of

22 developmentally disabled prisoners. Banks Dep. at 29:17-31:1; Gonzalez Dep. at 66:16-

23 21, 66:25-67:10 (DD prisoners are not necessarily more susceptible to abuse than other

24 prisoners, so it would be “tunnel vision” for DDP officers to focus on them).

25

293. As noted in § I.F, some prisoners with developmental disabilities exhibit

26 behavior that challenges popular belief about developmental disabilities, work to mask

27 their disabilities, and have high functional capacity in some areas while demonstrating

28 serious deficits in others. Nevertheless, some prison staff members erroneously believe

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1
that some prisoners have been wrongly designated by prison clinicians as developmentally
2
disabled due to the prisoners’ appearance or skill sets in some areas. Chapa Dep. at
3
235:4-236:1 (DDP counselor at SATF believes that certain prisoners who carry
4
themselves a certain way and know some rules are not developmentally disabled); Horne
5
Dep. at 102:17-103:7 (DDP officer at Lancaster believes that DD prisoners who do not
6
routinely ask for assistance have the ability to function and solve problems).
7
3. Prison Staff Violate their Remedial Plan Duties
8
294. Other prison staff members were clearly failing to perform their work
9
adequately. Staff duties with regard to developmentally disabled prisoners are clearly
10
outlined in the Clark Remedial Plan. CRP at 41-45. Nevertheless, noncompliance with
11
many of these requirements was almost universal and some of these instances of
12
noncompliance were egregious.
13
295. DDP officers are required to maintain frequent contacts with and monitor
14
daily activities of developmentally disabled prisoners. CRP at 7-8, 42. But some staff
15
witnesses do not regularly check in with or monitor prisoners with developmental
16
disabilities and are poorly supervised in this area. Banks Dep. at 32:20-35:12, 83:13-16;
17
Gonzalez Dep. at 168:22-169:12, 171:7-11; see also Mandeville Dep. at 70:23-71:13,
18
118:14-119:2 (ADA Coordinator had no expectation about the appropriate frequency of
19
staff contact with DD prisoners).
20
296. Similarly, prison staff members fail to provide necessary reading and
21
writing assistance to plaintiff class members, do not remind plaintiff class members to
22
take care of basic life needs, fail to protect plaintiff class members from theft and abuse,
23
and fail to ensure that plaintiff class members understand prison due process proceedings.
24
297. It was undisputed that staff must be proactive in seeking out the needs and
25
concerns of plaintiff class members. § II.C.1.f. But some prison staff members do not
26
affirmatively provide assistance to prisoners with developmental disabilities. Banks Dep.
27
at 29:7-16 (officer does not know if there was ever a time when she provided services to
28
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1
DD prisoners because of information in their 128C2); Brown Dep. (Tr. Ex. 486) at 32:9-
2
14 (DDP counselor at CMF would not volunteer help during open line); Chapa Dep. at
3
138:16-139:24 (DDP counselor at SATF believes some DD prisoners might be afraid to
4
talk to staff but does not determine which prisoners have never approached him to ask for
5
help); Horne Dep. at 102:17-103:7 (DDP officer at Lancaster does not ask DD prisoners
6
who do not routinely ask for assistance ask why they are not asking for help); Valdez Dep.
7
at 107:2-16 (officers at R.J. Donovan do not explain prison rules to DD prisoners unless
8
the prisoners ask them); Banks Dep. at 47:1-24.
9
298. The Clark Remedial Plan requires that all custody staff members receive
10
annual overview trainings that include information about, among other topics,
11
developmental disabilities, behaviors indicating developmental disabilities and types of
12
adaptive support services that must be provided by prison staff members to prisoners with
13
developmental disabilities. CRP at 59-61; Wells at RT 554:7, 554:13-14. In addition,
14
prison staff members serving as staff assistants, participating in disciplinary and
15
classification proceedings, and taking on other roles must be trained with the use of
16
specialized training modules. CRP at 61-62; Wells at RT 554:7-14, 161:16-162:8.
17
299. One reason why prison staff members’ testimony reveals gaps in
18
compliance might be that some of these defense witnesses had never received – or cannot
19
recall receiving—part or all of the required training. Brown Dep. at 15:24-16:23, 76:8-15,
20
107:15-17 (counselor at CMF cannot recall getting staff assistant training and serves as a
21
staff assistant every few weeks), 136:8-21 (same counselor does not recall training before
22
becoming or during time as a Clark counselor, other than annual overview training),
23
112:25-113:7 (same counselor not trained on effective communication with DD
24
prisoners); Gonzalez Dep. 50:7-15 (former ADA Coordinator at CMF does not know how
25
long the Clark training is, or what it consists of), id. at 131:1-16 (ADA Coordinator did
26
not receive all of required training); Valdez Dep. at 133:3-12 (staff members at R.J.
27
Donovan did not receive overview Clark training from a clinician, as required by the CRP
28
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1
[CRP at 61]); Ynson Dep. at 54:22-55:12 (ADA Coordinator at Lancaster did not receive

2
required annual refresher training in 2009).

3
300. Further, at least one prison official was not even aware of crucial training

4
requirements. Valdez Dep. at 135:23-137:15 (ADA Coordinator at RJD is not aware of

5
specific training required for staff assistants).

6

4. Testimony from a Few Staff Members at Individual Prisons Does

7

Not Prove Systemic Compliance

8

301. Some prison staff members testified credibly that they work to meet the

9 needs of developmentally disabled prisoners. See, e.g., Prud’homme Dep. at 88:19-90:7;

10 Serna at RT 347:15-348:12 (assists DD prisoners with reading and writing), 350:17-352:6

11 (accommodations at classification hearings). However, the attentiveness of a handful of

12 staff chosen to testify for the defense does not capture the experiences of plaintiff class

13 members in other institutions, or even in the same institution when the particular staff

14 person is not on duty. Such testimony, like that of Mr. Wells, is entirely consistent with

15 Dr. Leone’s findings that the California prison system is characterized by indifference to

16 developmentally disabled prisoners, with sporadic examples of compliance from

17 particular staff.

18

C. Defendants’ Case in Rebuttal

19

302. Defendants’ case in rebuttal is no more persuasive than their case in chief.

20 Defendants did not rebut at the hearing a single fact that Dr. Leone relied on to support his

21 opinion that there exists a pattern of indifference to the basic needs of plaintiff class

22 members. Although some individual staff members from some of the same prisons Dr.

23 Leone visited testified that they provided assistance to developmentally disabled prisoners

24 at those institutions (see, e.g., Serna at RT 338:16-339:1, 341:14-342:2, 347:15-348:12;

25 Horne Dep. at 43:25-44:6; Brown Dep. at 33:14-16; Clausing Dep. at 87:10-25), this

26 testimony does not rebut his findings that despite the efforts of some helpful staff, many

27 prisoners’ needs are not being met. See, e.g., Serna at RT 349:11- 350:4 (cannot always

28 assist every DD prisoner who requests assistance); Banks at 79:21-80:1 (only assists DD

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1
prisoners with 602 forms). Not one prisoner interview, staff interview, or document relied

2
on by Dr. Leone was directly challenged by any of defendants’ evidence at the hearing,

3
despite the fact that defendants had nearly three months to investigate the report before the

4 hearing.15

5
303. Defendants’ sole rebuttal expert witness was Dr. James Scaramozzino.

6
Dr. Scaramozzino failed to provide any credible rebuttal testimony. By his own

7
admission he is not an expert in developmental disabilities or in statistics. Scaramozzino

8
at RT 858:7-9 (does not consider himself an expert in developmental disabilities), 858:10-

9
12 (does not consider himself an expert in statistics). He is not an expert in the main area

10
of Dr. Leone’s testimony—the operation of CDCR’s programs for developmentally

11
disabled prisoners—except in the narrow area of mental health. Id. at 858:13-16. Nor is

12
he an expert in determining whether policies and procedures for disabled individuals are

13
adequate to provide access to the program services and activities at the prison, except,

14
again, for mental health. Id. at 858:17-21. In fact, Dr. Scaramozzino only spends 10 % of

15
his time on Clark issues, and that work only includes the mental health components, such

16
as testing and referrals. Id. at 859:24-860:14. He thus cannot speak credibly to Dr.

17
Leone’s methodology or findings, except in the narrow area of the mental health

18
component of the DDP.

19
304. Dr. Scaramozzino’s testimony is also unreliable because he has extremely

20

21

15 The Court does not credit defense counsel’s assertions that defendants could not investigate Dr. Leone’s statements because they did not possess his key—the names and

22

numbers of the prisoners he discusses in his report. Subia at RT 251:9-252:2. Dr. Leone provided the key shortly after he issued his report, on February 26, 2010. Tr. Ex. 479.

23

Dr. Leone placed no limitation on defense counsel’s ability to share that information with CDCR headquarters. Leone at RT 747:13-21; Tr. Ex. 2. Nothing prevented defendants at

24

that point, two and one half months before the hearing, from interviewing the staff and reviewing the documents that Dr. Leone relied on.

25

The Court also gave defendants the opportunity to move to reopen the hearing to

allow them to investigate Dr. Leone’s findings, if they could justify their delay in doing

26 so. RT 1067:2-1068:5. Defendants have submitted new evidence and ask this Court to

consider it. However, because Defendants have failed to explain why this evidence was

27 not developed in a timely manner, and because consideration of this evidence at this stage

would deprive Plaintiffs of the opportunity to cross-examine the relevant witnesses, this

28 Court declines to consider it. This is discussed more thoroughly below.

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1
limited knowledge of any of the workings of the DDP. He cannot say whether the DDP is
2
an effective program. Id. at 919:8-15. He had not read the Clark Remedial Plan for at
3
least a few years before he prepared his report. Id. at 902:4-6. In forming his opinions for
4
this case, he did not tour any prisons, speak to any prison staff or developmentally
5
disabled prisoners, review any prisoner files, review Dr. Leone’s notes, or review any
6
documents other than Dr. Leone’s 2010 report. Id. at 902:14-903:4. Dr. Salz wrote
7
various factual statements which Dr. Scaramozzino added to his report, although he had
8
no independent knowledge of their accuracy, the very criticism that he leveled at Dr.
9
Leone. Id. at 903:18-904:12. He characterized the report as a “collaborative effort”
10
between himself, Dr. Salz, and another CDCR psychologist. Id. at 903:11-17.
11
305. In Dr. Scaramozzino’s opinion, Dr. Leone “focused all his attention on
12
individual prisoners and did not look at the total system,” such as interviews with staff
13
regarding CDCR’s processes to implement Clark and review progress. James
14
Scaramozzino Expert Report (Tr. Ex. 1195) at 1; see also Scaramozzino at RT 864:23-
15
865:2. According to Dr. Scaramozzino, Dr. Leone looked only at “one component of the
16
program, the prisoner’s opinions,” while ignoring the state’s “primary goal, which is: Do
17
I have the program in place to be able to attend to the issues?” Scaramozzino at RT
18
873:19-24. Dr. Scaramozzino misses the real question at issue in these proceedings: not
19
whether the state has a remedial plan, which is accepted by both parties, but whether the
20
state follows that plan. Dr. Scaramozzino offered no evidence on that point.
21
306. Dr. Scaramozzino’s criticisms of Dr. Leone’s work are deeply flawed—so
22
flawed that he actually retracted some of them in his testimony. He found fault with Dr.
23
Leone for failing to review documentation or interview staff members to verify the
24
accounts of specific prisoners. Scaramozzino Report at 2; Scaramozzino at RT 881:10-21.
25
He admitted that this criticism was incorrect, however. Dr. Leone had performed such
26
reviews and conducted interviews (as noted in § II.A, supra) and Dr. Scaramozzino
27
overlooked that statement in Dr. Leone’s report. Scaramozzino at RT 908:18-909:15.
28
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1
307. Dr. Scaramozzino also criticized Dr. Leone for not standardizing his
2
interviews or clearly defining the relationship between DDP classifications and degree of
3
self-reported problems. Scaramozzino Report at 3-4. However, when he wrote his report
4
Dr. Scaramozzino did not know what questions Dr. Leone asked. Scaramozzino at RT
5
893:2-7. He only learned through listening to Dr. Leone’s testimony at the hearing that
6
Dr. Leone asked a specific set of open-ended questions. Id. at 893:7-11, 900:25-901:3. 7 Dr. Leone’s testimony answered his concerns in this area.16 Id. at 909:16-910:11. His
8
concerns about the relationship between DDP classifications and degree of problems was
9
also assuaged by Dr. Leone’s testimony. Id. at 911:3-15.
10
308. Dr. Scaramozzino also criticized Dr. Leone for making findings based on
11
evidence that developmentally disabled prisoners are subjected to abuse and exploitation.
12
In Dr. Scaramozzino’s opinion, one cannot draw any conclusions from abuse suffered by
13
developmentally prisoners without knowing whether non-developmentally disabled
14
prisoners are also subjected to such abuse. Scaramozzino Report at 4; see also
15
Scaramozzino at RT 865:20-24, 893:22-894:21. Dr. Scaramozzino again misses the point.
16
The question in this case is whether defendants have secured the federal rights of plaintiff
17
class members, not whether other prisoners also suffer problems that might rise to the
18
level of constitutional or statutory violations. Given that developmentally disabled
19
prisoners are more vulnerable to abuse, a comparison between the populations is like
20
comparing apples to oranges, a statement with which Dr. Scaramozzino agreed.
21
Scaramozzino at RT 913:5-12.
22
309. Defendants have thus failed to rebut Dr. Leone’s report.
23
D. Documentary Evidence
24
16 Dr. Scaramozzino provided no credible testimony as to why Dr. Leone’s 25 approach is wrong. The Court finds persuasive Dr. Leone’s testimony that his questions
were well designed to elicit useful information from the class members he interviewed. 26 Defendants’ witness, Dr. Salz, and plaintiffs’ expert, Dr. Cowardin, corroborated the
validity of his approach. Salz at RT 80:16-17 (effective communication with DD 27 prisoners requires the use of open-ended questions and more than no or yes answers);
Cowardin at RT 656:8-20 (indicating that Dr. Leone is a professional trained in how to 28 speak with individuals with disabilities).
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1
310. Defendants’ documentary evidence does not cast doubt on plaintiffs’
2
evidence. For the most part, defendants’ trial exhibits are written policies and procedures
3
(Tr. Exs. 1023-28, 1030, 1032, 1049-51) and training materials (Tr. Exs. 1034-40, 1042-
4
48, 1052, 1054-61, 1063, 1066-70, 1072-81). As has been repeatedly stated, such
5
documents do not prove that the policies contained within are followed or that the training
6
is provided appropriately or is adequate to ensure that the rights of the plaintiff class are
7
respected.
8
311. The documentary evidence also includes plaintiffs’ counsel’s monitoring
9
reports covering 17 prisons, dated from early 2008 to the middle of 2009 (Tr. Exs. 100310 10, 1012-19, 1021-22) 17 and two of Dr. Leone’s reports from 2008 regarding Lancaster
11
and CMF. Tr. Exs. 1001-02.
12
312. These documents present a balanced picture of defendants’ compliance with
13
the Clark Remedial Plan. At certain tours and institutions, prisoners reportedly were
14
receiving adequate accommodations and protections. At other times, and sometimes at
15
the same prisons, such services were absent. For example, in June 2008, Dr. Leone found
16
that CMF was “doing a good job of meeting the needs of dually-diagnosed inmates with
17
DD on the EOP units.” Tr. Ex. 1002 at 4. In early 2010, however, Dr. Leone found
18
serious problems there: along with one other prison, CMF was “probably the most
19
dysfunctional kind of set of circumstances, the least amount of protection, most
20
victimization of the seven prisons that I visited.” Leone at RT 783:19-21. For example,
21
many prisoners “identified specific officers that they said made fun of them and other
22
inmates with disabilities, threatened them, refused to issue ducats to inmates who needed
23
to leave the unit for activities, filed false Rules Violation Reports against inmates that they
24
17 Some of the reports written by plaintiffs’ counsel and offered by defendants are 25 of limited value because they concern prisons with very few class members. See, e.g., Tr.
Ex. 1005 at 1 (only nine DD prisoners housed at California Institution for Women at the 26 time the report was generated), Tr. Ex. 1010 at 1 (only two DD prisoners housed at High
Desert State Prison at the time the report was generated), Tr. Ex. 1013 at 1 (only seven 27 DD prisoners housed at Pelican Bay State Prison at the time the report was generated), Tr.
Ex. 1021 at 1 (only four DD prisoners housed at Valley State Prison for Women at the 28 time the report was generated).
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1
did not like, and failed to provide support and/or assistance to them . . . .” Leone Report
2
at 15 (footnote omitted).
3
313. Dr. Leone explained the varied findings in these monitoring reports: “my
4
sense is that this Clark [R]emedial [P]lan is not institutionalized, that it’s heavily
5
depend[ent] on which correctional officers might be on a particular unit at any given time.
6
So I may have visited [in 2008] during a period of time when there was very competent
7
officers doing exactly what they’ve been trained to do.” Leone at RT 784:5-11; see also
8
Tr. Ex. 1006 (California Men’s Colony, March 2008) at 9 (backsliding in the disciplinary
9
review process: none of the disciplinary write-ups reviewed had a clinician review); Tr.
10
Ex. 1007 (CMF, October 2008) at 10 (40 % of the disciplinary write-ups reviewed lacked
11
a clinician review, which was a worse record than the previous year).
12
314. These reports are consistent with Dr. Leone’s opinions and conclusions on
13
defendants’ compliance. For example, plaintiffs’ counsel noted in a report that “at
14
multiple institutions, such as [California Men’s Colony], prisoners report that the reality is
15
that staff simply refuse to provide such assistance when asked.” Tr. Ex. 1006 at 5; see
16
also Tr. Ex. 1003 (Lancaster, November 2008) at 3-5 (many of the adaptive support
17
evaluations generated by clinicians at Lancaster were inadequate and incomplete and
18
some appeared to classify the prisoner inaccurately), 7 (DD prisoners reported that
19
housing unit staff did not help them as needed; they were afraid to ask staff for help for
20
fear of negative consequences; class members reported harassment by three specific
21
correctional officers, including being called “girl,” “fagot,” “boy,” and being yelled at);
22
Tr. Ex. 1004 (California Correctional Institution, October 2008) at 1 (institution
23
“continues to have problems with training, ensuring staff assistants are assigned for all
24
[administrative segregation lock-up notices] and, as of this year, CCI failed to ensure that
25
a clinician review all” disciplinary write-ups), id. (staff were unable to verify whether
26
staff had been trained in most of the required training modules over the past year, which
27
had also been noted in the previous year’s monitoring report); Tr. Ex. 1006 (California
28
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1
Men’s Colony, March 2008) at 1 (DD prisoners reported that they were not being
2
adequately accommodated), 5 (DD prisoners reported that staff was too busy to help them
3
or outright refused to help them), 6 (DD prisoners were relying on other prisoners to help
4
them, and did not feel that they had any other choice, which “is an unacceptable
5
practice”), 9 (institution backsliding in the disciplinary review process: none of the
6
disciplinary write-ups reviewed had a clinician review); Tr. Ex. 1007 (California Medical
7
Facility, October 2008) at 2 (prison officials did not know whether they were providing
8
required DDP training), 6-7 (DD prisoners reported that they were not receiving
9
assistance from regular housing officers), 8 (DD prisoners reported that they did not have
10
staff assistants in classification and disciplinary hearings), 10 (40 % of the disciplinary
11
write-ups reviewed lacked a clinician review, which was a worse record than the previous
12
year); Tr. Ex. 1008 (Corcoran, March 2008) at 1 (“[d]eficiencies still remain with the
13
clinician review process and the assignment of Staff Assistants in the disciplinary process
14
and in [administrative segregation lock-up notices]”); Tr. Ex. 1009 (DVI, September
15
2008) at 3 (several disciplinary hearings for DD prisoners had no staff assistant or
16
clinician review of the disposition), 4 (according to staff, since there were so few
17
disciplinary write-ups for DD prisoners, the CRP requirements were forgotten),
18
id.(“[f]ailure to comply with the Clark Remedial Plan requirements in the disciplinary
19
process for DDP inmates has been a recurring problem at DVI”), id. (administrative
20
segregation lock-up notices with no staff assistants); Tr. Ex. 1012 (Mule Creek,
21
September 2008) at 1 (Mule Creek “still does not comply fully with remedial plan
22
requirements” on training; same problem has been found for three monitoring tours in a
23
row), 4 (none of the disciplinary write-ups reviewed for the tour had been reviewed by a
24
clinician; Chief Deputy Warden and associate warden stated that “this area of non-
25
compliance had been a problem during several monitoring tours”); Tr. Ex. 1018 (Sierra
26
Conservation Center, November 2008) at 1 (institution not providing some of the required
27
DDP training); Tr. Ex. 1021 (Valley State Prison for Women, March 2008) at 1 (Valley
28
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1
State “has continually either neglected to do” certain required DDP training “or has failed
2
to be prepared to report on the training during monitoring tours”); Tr. Ex. 1022 (Wasco,
3
July 2008) at 4 (class members complained that they were not receiving reading and
4
writing help from staff, that staff told them to seek help from other prisoners, and that they
5
were uncomfortable asking staff for help because they thought they would say no and be
6
angry about being asked), id. (failure to assign staff assistants and clinician reviews for
7
disciplinary write-ups, which had also been a problem the previous year), 5 (failure to
8
assign staff assistants for administrative segregation lock-up notices), 6 (failure to provide
9
Regional Center referral letters for DD prisoners who were paroling).
10
E. Defendants’ Sur-Response
11
315. On August 6, 2010, Defendants submitted a Sur-Response to Plaintiffs’
12
Response to Defendants’ Proposed Findings of Fact and Conclusions of Law. This Sur-
13
Response asked that this Court take into evidence a report prepared by the Division of
14
Adult Institutions and filed on July 23, 2010. See Doc. 489.
15
316. Courts have discretion to reopen the record in certain circumstances.
16
Defendants propose the following list of considerations: whether “(1) the evidence sought
17
to be introduced is especially important and probative; (2) the moving party’s explanation
18
for failing to introduce the evidence earlier is bona fide; and (3) reopening will cause no
19
undue prejudice to the nonmoving party.” Love v. Scribner, 691 F. Supp. 2d 1215, 1235
20
(S.D. Cal. 2010) (quoting Rivera-Flores v. Puerto Rico Tel. Co., 64 F. 3d 742, 746 (1st
21
Cir. 1995)).
22
317. Defendants fail to pass their own test. First, the evidence sought to be
23
introduced is the report prepared by the Division of Adult Institutions. That report on its 24 own is inadmissible, and hence cannot be important or probative.18 First, it cannot be
25
admissible as an expert report as no effort has been made to qualify its authors as experts,
26
nor were they disclosed as experts. Second, it is clearly not an admissible business record
27
18 Defendants have not moved to reopen the hearing itself, but rather have simply 28 submitted this report.
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1
because it was prepared, if not in advance of litigation, at least in the midst of litigation.
2
Third, as explained in Plaintiffs’ opposition, the Report itself does not reveal its
3
methodology, and hence it is impossible to determine whether its conclusions are valid.
4
See Doc. 493, at 5-6. Fourth, it is comprised largely of inadmissible hearsay.
5
318. Second, Defendants have failed to provide a bona fide reason that this
6
evidence could not have been presented at the hearing. As noted above, Dr. Leone
7
provided all necessary information to Defendants so that they could carry out an
8
investigation of Dr. Leone’s conclusions. If Defendants had expressed any intent to
9
respond to Dr. Leone’s conclusions, their counsel had in their possession the information
10
necessary for them to conduct such an investigation. However, Defendants failed to
11
conduct such an investigation until this Court indicated that it was concerned by
12
Defendants’ failure to respond. The orderly presentation of evidence requires that parties
13
prepare in advance of the hearing to present all relevant evidence. A simple failure to
14
plan ahead is not a bona fide reason justifying reopening the evidence.
15
319. Third, and finally, Plaintiffs would be prejudiced by taking this Report into
16
evidence. They have not had the opportunity to depose or cross examine the individuals
17
who compiled the report, and hence have had no opportunity to explore the report’s
18
weaknesses.
19
320. For these reasons, this Court declines to consider the late-submitted Report.
20
21
22
23
24
25
26
27
28
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1 CONCLUSIONS OF LAW

2 I. Defendants’ Termination Motion Is Granted in Part, and Denied in Part

3

A. Immediate Termination of the Entire Plan Is Unwarranted Because the

Majority of the Settlement Agreement Meets the PLRA’s Needs-

4

Narrowness-Intrusiveness Requirement

5

321. The Prison Litigation Report Act (PLRA) requires that court orders in

6 prisoner civil rights actions include findings that the relief is narrowly drawn, extends no

7 further than necessary to correct a violation of federal rights, and is the least intrusive

8 means of doing so. 18 U.S.C. § 3626(b)(2). This Court did not make those findings

9 explicitly at the time it ordered implementation of the Settlement Agreement & Order of

10 December 3, 2001 (Dkt # 194) (Settlement Agreement & Order). That omission, 11 however, does not necessitate termination of the whole host of prospective relief in this 12 case because the majority of the Settlement Agreement & Order does in fact meet the 13 PLRA standard. For the reasons that follow, Defendant’s motion is GRANTED in part 14 and DENIED in part.

15

1. The Required Findings Are Implicit in the Relief

16

322. In Gilmore v. California, the Ninth Circuit discussed the PLRA’s immediate

17 termination provision:

18

We do not read [Section 3626(b)(2)] to mean that explicit findings must

have been made, so long as the record, the court’s decision ordering

19

prospective relief, and relevant caselaw fairly disclose that the relief

actually meets the § 3626(b)(2) narrow tailoring standard. . . . Our reading is

20

not a “disingenuous evasion,” since Congress’ objective was to limit relief

to the constitutional floor. If existing relief was so crafted according to the

21

record and relevant caselaw, the findings required by the statute are implicit

in the court’s judgment.

22
Gilmore, 220 F.3d 987, 1007 n.25 (9th Cir. 2000) (citations omitted).

23
323. Here, the parties agreed that the Settlement Agreement & Order met the

24
PLRA’s needs-narrowness-intrusiveness standard at the time it was entered. Settlement

25
Agreement & Order, ¶ 15. The Court fully approved of the Settlement Agreement &

26
Order, including the needs-narrowness-intrusiveness language as stipulated by the parties.

27
The relief was not overbroad and, indeed, defendants offered no evidence to the contrary.

28

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1
Under the Ninth Circuit’s rule set forth in Gilmore, then, “the findings required by the

2
statute are implicit in the court’s judgment.” Gilmore, 220 F.3d at 1007 n.25.

3

B. Complete Termination Is Unwarranted Because Current and Ongoing

4

Violations of Federal Constitutional and Statutory Rights Support the

Continuation of the Relief in this Case

5
324. Under the PLRA, termination of prospective relief is not appropriate if the

6
court makes written findings, based on the record, that “prospective relief remains

7
necessary to correct a current and ongoing violation of the Federal right, extends no

8
further than necessary to correct the violation of the Federal right, and . . . is narrowly

9
drawn and the least intrusive means to correct the violation.” 18 U.S.C. § 3626(b)(3).

10
This Court has already ruled that defendants, as the party moving for termination, bear the

11
burden of proving that no such violations exist, and that ongoing relief must therefore

12
terminate. Order Regarding Burden of Proof, April 2, 2010 (Dkt. # 382); see also

13
Gilmore, 220 F.3d at 1007. Defendants have failed to show that there are no violations,

14
but have succeeded in showing that, as to certain portions of the Clark Plan, relief is no

15
longer warranted. Even if Plaintiffs were to bear the burden, they have met it as to the

16
majority of the Clark Plan, but have failed as to other portions. These are explained more

17
thoroughly below.

18
325. The Court heard six days of testimony and reviewed dozens of deposition

19
excerpts and over 700 exhibits. The evidence demonstrates overwhelmingly that plaintiff

20
class members continue to suffer current and ongoing violations of their federal rights and

21
that those violations are systemic and often egregious. As defendants have failed to carry

22
their burden to show the absence of current and ongoing federal rights violations, this

23
Court concludes that much of the prospective relief contained in the Settlement

24
Agreement & Order remains necessary, is sufficiently narrow, is minimally intrusive, and

25
therefore shall not be terminated. Even if the burden were on plaintiffs, the Court finds

26
that they have met that burden as to the portions of the Plan discussed below.

27
326. However, as indicated above, the evidence does not show that all of the

28

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1
relief contained in the Clark Plan continues to satisfy the PLRA standard. Therefore, the
2
only portions that will remain in effect are those validated below.
3
1. ADA and Section 504
4
327. It is undisputed that the Clark class members are qualified individuals with
5
disabilities entitled to protection from discrimination under Title II of the ADA (ADA)
6
and under Section 504 of the Rehabilitation Act (§ 504). See 42 U.S.C. § 12132; 29
7
U.S.C. § 794. As such, Clark class members are entitled to “reasonable accommodations”
8
and “reasonable modifications” so that they can avail themselves of prison services and
9
participate in prison programs and activities. See 29 U.S.C. § 794; 28 C.F.R.
10
§ 35.130(b)(7). Defendants have failed to fulfill their obligation to provide plaintiff class
11
members with the accommodations and program modifications that would enable them to
12
gain access to the prison programs, services, and activities afforded non-disabled
13
prisoners. As a result many class members are effectively excluded from many prison
14
programs, while others are forced to resort to a dangerous underground economy to buy
15
assistance and protection from other prisoners.
16
a. Identification of Plaintiff Class Members
17
328. Defendants are obligated, under the ADA and § 504 to properly identify
18
those prisoners requiring reasonable accommodations. See Armstrong v. Davis, 275 F.3d
19
849, 876 (9th Cir. 2001); CRP at 14-16. The evidence, however, including testimony
20
from two experts in developmental disabilities, shows that the proportion of the prison
21
population that defendants have identified as being developmentally disabled is
22
dramatically lower than what is found in the general public and what reliable research
23
predicts.
24
329. The evidence presented strongly supports the inference that defendants have
25
failed to identify and track many, if not the majority, of developmentally disabled
26
prisoners in the CDCR, but further information and analysis is required to draw a
27
definitive conclusion about the actual operation of CDCR’s identification process. The
28
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1
Court therefore will order defendants either to validate the current screening process

2
through accepted scientific procedures or to adopt a process that has already been

3
validated. This issue is discussed further below. See infra III.C.2

4
330. In the meantime, however, the evidence presented at trial reflects that

5
Defendants are administering the tests dictated by the Clark Plan, and there is no reason to

6
believe that, as to this relief, a Court order remains necessary. As noted above, the

7
evidence suggests that the Clark Plan’s testing regimen is flawed, and some different

8
relief may be ordered in the future. A court order requiring inadequate relief that would

9
be provided regardless of court intervention does not meet the PLRA standard.

10
b. Reading and Writing

11
331. Developmentally disabled prisoners whose reading skills are limited or non-

12
existent are not provided assistance to ensure that they have an equal opportunity to

13
participate in prison programs and activities, and to ensure that communication of

14
information concerning services, activities and programs is “as effective” for them as for

15
people without disabilities, in violation of the ADA, § 504, and the Clark Remedial Plan.

16
See 28 C.F.R. § 35.160(a); see also Garcia v. Taylor, No. 07-474, 2009 WL 2496521, at

17
*11 (N.D. Fla. Aug. 11, 2009); Cruz v. Hauck, 627 F.2d 710, 720-21 (5th Cir. 1980); CRP

18
at 6, 42, 45-46. This failure includes the failure to provide class members with weak or

19
non-existent readings skills with notice of their conditions of parole in a manner that

20
reasonably accommodates their disability. Id. The Clark Plan provides for relief that

21
would address this problem, and the provisions providing that relief shall remain in effect.

22
See, e.g., CRP at 6, 42, 45-58. These provisions are necessary, sufficiently narrow, and

23
are minimally intrusive. Therefore, they satisfy the PLRA standard.

24

c. Assistance in Disciplinary, Administrative, Parole, and

25

Classification Proceedings

26

332. Clark class members do not receive “meaningful access” to disciplinary,

27 administrative, parole, and classification proceedings. Bonner v. Lewis, 857 F.2d 559,

28 562 (9th Cir. 1988). Defendants have failed to provide assistance to ensure that

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1
communication in those proceedings is equally effective, thus violating plaintiff class
2
members’ rights under the ADA and § 504. 28 C.F.R. § 35.160(a). The Clark Plan
3
provisions requiring this assistance shall therefore remain in force. See, e.g., CRP 21-24,
4
49-58. These provisions are necessary, sufficiently narrow, and are minimally intrusive.
5
Therefore, they satisfy the PLRA standard.
6
d. Grievance Procedures
7
333. Defendants have failed to maintain a grievance process that is “readily
8
available to all . . . inmates.” 28 C.F.R. § 40.3; Alexander v. Choate, 469 U.S. 287, 301
9
(1985); see also Bradley v. Hall, 64 F.3d 1276, 1279-80 (9th Cir. 1995). In addition,
10
defendants have not provided class members with a “prompt and equitable” grievance
11
system for disability-related complaints. 28 C.F.R. § 35.107(b). These failures violate
12
plaintiff class members’ rights under the ADA, § 504 and the Clark Remedial Plan. CRP
13
at 45. These provisions will remain in effect, as they are necessary, sufficiently narrow,
14
and are minimally intrusive. Therefore, they satisfy the PLRA standard.
15
e. Assistance with Self-Care and Daily Living Activities
16
334. Daily living activities, including the use of showers, the exchange of
17
laundry, and the receipt of medication, constitute “services, programs, or activities” under
18
the ADA and § 504. See, e.g., Phipps v. Sherriff of Cook County, 681 F. Supp. 2d 899,
19
916 (N.D. Ill. 2009) (“showering, toileting, and lavatory use . . . regarded as programs
20
and/or services under the ADA”); see also Chase, 508 F. Supp. 2d at 502 (“Title II’s
21
accommodation requirement applies to almost every interaction between inmates and
22
prison officials”). Therefore, the ADA and § 504 entitle plaintiff class members to
23
reasonable accommodations, in the form of prompts or reminders from staff, to facilitate
24
their use of these services.
25
335. Defendants’ failure to ensure plaintiff class members’ access to these
26
services through the use of prompts or reminders to bathe, obtain clean laundry and
27
engage in other activities of self-care violates plaintiff class members’ rights under the
28
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1
ADA, § 504, and the Clark Remedial Plan. See, e.g., CRP at 6, 8, 21-25, 42. These
2
provisions are necessary, sufficiently narrow, and are minimally intrusive. Therefore,
3
they satisfy the PLRA standard.
4
f. Staff Training
5
336. This Court further concludes that the record reflects that staff training is
6
essential to the provision of necessary services. The record further reflects that the
7
training mandated by the Clark Plan is not being followed. Therefore, that portion of the
8
Plan remains necessary in order to remedy the violations of Plaintiffs’ rights. See CRP at
9
59-62. These provisions are necessary, sufficiently narrow, and are minimally intrusive.
10
Therefore, they satisfy the PLRA standard. As noted below, this Court further concludes
11
that the training envisioned by the Clark Plan is apparently insufficient on its own to meet
12
the constitutional and statutory minimal levels of care. Therefore, training will be the
13
subject of a further remedial order.
14
2. Eighth Amendment
15
337. There is undeniably evidence in the record concerning constitutionally
16
questionable conditions of confinement. The record demonstrates that the deprivations
17
suffered are serious, but this Court cannot conclude that Defendants have been
18
deliberately indifferent to the class members’ suffering. The evidence reflects that while
19
policies are in place and some individuals within CDCR strive to fulfill their duties, they
20
have been woefully unable to do so. This does not constitute deliberate indifference in a
21
way that justifies class-wide prospective relief under the PLRA. In any event, much of
22
the relief sought by Plaintiffs under the Eighth Amendment is justified based upon other
23
statutory guarantees.
24
3. Fourteenth Amendment
25
338. Plaintiffs argue that Defendants’ conduct violates the Fourteenth
26
Amendment. So far as this Court can discern, however, the relief requested under the
27
heading of Due Process is alternatively available under the ADA and § 504. See
28
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1
Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (“The ADA and Rehabilitation Act
2
. . . require more than compliance with due process requirements: they require that a
3
disabled individual be provided with ‘meaningful access’ . . . .” (emphasis added)).
4
Therefore, because this Court has separately ordered that the relief in question be provided
5
under the ADA and § 504, and in order to avoid deciding an unnecessary constitutional
6
issue, this Court declines to reach the issue of the Fourteenth Amendment. See Harvey v.
7
Brewer, 605 F.3d 1067, 1078 (9th Cir. 2010) (O’Connor, J., sitting by designation) (“The
8
canon of constitutional avoidance . . . provid[es] that a court will not pass upon a
9
constitutional question if there is some other ground upon which the case may be disposed
10
. . . .”).
11
C. PLRA Exhaustion Requirements Are Not Applicable
12
339. Defendants’ termination motion is not saved by plaintiffs’ failure to
13
demonstrate that they have exhausted their administrative remedies regarding the current
14
and ongoing violations of federal law found herein.
15
340. The original complaint in Clark v. California was filed before the enactment
16
of the PLRA, and as such, the PLRA exhaustion requirement found at 42 U.S.C. §
17
1997e(a) does not apply. Clark v. California, No. 96-1486, 1998 WL 242688 at *2-3
18
(N.D. Cal. May 11, 1998) (PLRA does not apply because plaintiffs filed their original
19
complaint on April 22, 1996, four days before the PLRA amendments went into effect,
20
and amended complaint relates back to the date of the initial filing.); see also Bishop v.
21
Lewis, 155 F.3d 1094, 1095-96 (9th Cir. 1998).
22
341. Likewise, neither the instant motion to terminate filed by defendants nor
23
plaintiffs’ motion for enforcement triggers the exhaustion requirement. The PLRA only
24
requires exhaustion when a new “action” is brought and a post-PLRA motion in a case
25
filed before the PLRA went into effect is not subject to the 1997a(a) requirement. See
26
Coleman v. Schwarzenegger, No. 90-0520, 2008 WL 4813371 at *2 n.2 (E.D. Cal. Nov.
27
3, 2008) (“[t]he exhaustion requirement of the PLRA does not apply to motions that
28
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1
exclusively [sought] the enforcement of the terms of’ the consent decree” (internal

2
quotations omitted)). Clearly, neither of the motions before the Court constitutes a new

3
action, and thus the PLRA exhaustion requirements are irrelevant.

4
II. Defendants’ Motion under Federal Rule of Civil Procedure 60(b)(5) Is Denied

5
342. Defendants move to dismiss the Settlement Agreement & Order pursuant to

6
Federal Rule of Civil Procedure 60(b)(5). Under this rule, modification of an injunction is

7
considered equitable when there has been a significant change in relevant law or factual

8
circumstances. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383-84 (1992).

9
Modification may be warranted when changed factual conditions make compliance with

10
the order substantially more onerous, when an order proves to be unworkable because of

11
unforeseen obstacles, or when enforcement of the order without modification would be

12
detrimental to the public interest. Id. at 384-85. If the moving party demonstrates that the

13
modification is warranted, the court must then consider whether the modification is

14
appropriately tailored to the changed circumstance. Id. at 383.

15
343. Defendants have offered no change in law or fact that provides a credible

16
basis for the dismissal of the entire Settlement Agreement. In fact, the evidence points in

17
exactly the opposite direction: as set forth in the Findings of Fact, current and ongoing

18
violations of the federal rights of the plaintiff class warrant ongoing Court supervision, not

19
a dismissal of relief. In the absence of legal or factual support, defendants are not entitled

20
to dismissal of relief simply because ongoing Court supervision is annoying them.

21

III. Further Remedial Orders Are Necessary to Remedy the Current and Ongoing

22

Violations of the Federal Rights of Plaintiff Class Members

23

344. Based on the evidence set forth in the Findings of Fact, the Court concludes

24 that further relief is necessary to secure the rights of the plaintiff class. The Remedial

25 Plan, while universally acknowledged to be a worthy effort, has proven, as implemented,

26 inadequate to ensure defendants’ full compliance with the ADA, § 504, and the

27 Fourteenth Amendment with regard to plaintiff class members. The Court finds that the

28 systemic nature of the violations demands systemic remedies as set forth below, and

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Plaintiffs’ motion for further remedial orders is therefore GRANTED IN PART. To the
2
extent that motion requests relief that is not herein ordered, such further relief is DENIED.
3
A. The Court Has the Power to Issue Further Remedial Orders
4
345. The Settlement Agreement and Order in this case grants the Court
5
“jurisdiction to enforce the terms of this agreement” and “the power to enforce the
6
agreement through specific performance and all other remedies permitted by law.”
7
Settlement Agreement and Order, Dec. 3, 2001 (Docket # 194), ¶ 5.
8
346. The terms of the Settlement Agreement that the Court has the power to
9
enforce include defendants’ duties to identify developmentally disabled prisoners; to
10
properly classify, house and protect them; and to ensure non-discrimination against them,
11
including meaningful access to CDCR forms and processes, such as sick call, grievances,
12
and disciplinary and classification proceedings. Id. at ¶ 4 (defendants shall fully
13
implement Clark Remedial Plan); CRP at 1, 8.
14
347. Under the Prison Litigation Reform Act (PLRA), the Court may not issue a
15
remedial order unless it is “narrowly drawn, extends no further than necessary to correct
16
the violation of the Federal right, and is the least intrusive means necessary to correct the
17
violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). Based on the findings set
18
forth above, the Court finds that the relief ordered herein meets this needs-narrowness-
19
intrusiveness standard.
20
348. While the PLRA requires remedies that are narrowly tailored and the least
21
intrusive to remedy the rights violations, “it is also the duty and responsibility of this
22
Court to ensure that constitutional rights are fully vindicated.” Madrid v. Gomez, 889 F.
23
Supp. 1146, 1282 (N.D. Cal. 1995). “Therefore, a federal court may order relief that the
24
Constitution would not of its own force initially require if such relief is necessary to
25
remedy a constitutional violation,” and in fashioning such relief, may take into account a
26
history of noncompliance with prior orders. Toussaint v. McCarthy, 801 F.2d 1080, 1087
27
(9th Cir. 1986), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472
28
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1

(1995); see also Plata v. Schwarzenegger, 603 F.3d 1088, 1098 (9th Cir. 2010)

2

(appointment of receiver approved where defendants failed to prove that lesser remedies

3

could have addressed constitutional violations).

4

B. Further Remedial Orders Are Necessary Because Defendants Cannot

5

Remedy their Violations

6

349. The Court concludes that denying defendants’ termination motion in part

7 without additional action would be insufficient to remedy defendants’ violations of federal

8 law. This conclusion is based on four sets of facts. First, defendants have demonstrated

9 an ignorance of conditions for developmentally disabled prisoners and an inability to

10 recognize the gravity of and to remedy the problems that have been identified by the

11 Court expert and others. Further orders are therefore necessary. Second, defendants have

12 demonstrated an inability to take remedial steps absent court intervention. Third, the

13 Court has already ordered defendants to comply with the Remedial Plan, in the 2001

14 Settlement Agreement & Order, but the evidence reflects that Defendants have failed to

15 do so even nine years later. Fourth, the Remedial Plan in its current form does not go far

16 enough to ensure compliance with the ADA and § 504. Further remedial orders are

17 required to correct these violations.

18

C. Further Remedial Orders Are Required

19

350. In determining the appropriate remedy, the Court must balance the

20 deference due the State in the administration of its prison system, the Court’s duty to

21 ensure that the rights of the plaintiff class are safeguarded, and the limitations of the

22 PLRA. The Court will therefore allow defendants the opportunity to develop amendments

23 to the Remedial Plan to remedy the current and ongoing violations.

24

1. Staff Training

25

351. The evidence demonstrated that some staff, even after presumably receiving

26 the required training, failed to provide necessary assistance and failed to make necessary

27 inquiries. See generally Findings of Fact § II.C. The current training regimen is clearly

28 inadequate to prepare staff members to adequately preserve Plaintiffs’ rights. The training

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provided in CDCR must be improved through consultation with experts and plaintiffs’
2
counsel. Defendants object that this Court has no power to order any kind of training
3
regimen. They are incorrect. See Armstrong v. Davis, 275 F.3d 849, 875-76 (9th Cir.
4
2001).
5
352. The Court further concludes that prisoners with developmental disabilities
6
in restrictive lock-up units such administrative segregation, Secure Housing Units, and the
7
like, need special attention to their needs so their conditions do not deteriorate, as
8
currently happens. Leone at RT 755:21-757:2; Leone Report at 10, 17. Defendants are
9
obligated to ensure that prisoners held in such a manner continue to receive the required
10
accommodations regarding self care, access to medical services, and other required
11
services.
12
2. Identification and Classification
13
353. As noted in the Findings of Fact § II.B, supra, the Court is not confident that
14
defendants are properly identifying plaintiff class members through their implementation
15
of the Remedial Plan’s testing procedures. As a consequence, it appears likely that a class
16
of individuals is not being provided with the services to which it is legally entitled.
17
Defendants must either (a) validate the current identification process or (b) develop a new
18
validated system for testing and identifying class members.
19
354. The Court is also concerned that the classification of prisoners as DD1,
20
DD2, and DD3 does not provide adequate guidance about the needs of specific prisoners.
21
Some staff labored under misconceptions regarding what assistance was necessary for
22
what designation–for example, that DD1 prisoners need no help at all. See, e.g.,
23
Scaramozzino at RT 868:19-21. These misconceptions are particularly problematic given
24
two characteristics of the developmentally disabled population. First, all people
25
designated as developmentally disabled have very significant deficits requiring a great
26
deal of help. Cowardin at RT 620:23-25, 630:4-631:18; Expert Report of Nancy
27
Cowardin, Ph.D (Tr. Ex. 5) (Cowardin Report), at 17-18. Second, no person is entirely
28
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DD1 or DD2 or DD3. People have varying abilities in different areas. Cowardin at RT
2
620:23-25, 621:7-20, 626:15-25; Cowardin Report at 17-18. Thus, a developmentally
3
disabled person might have good grooming and self-care skills, but be extremely
4
vulnerable to exploitation by others. Another developmentally disabled person might be
5
able to read but not to advocate for him or herself in due process proceedings. Defendants
6
must develop and use more specific forms for identifying the specific deficits and needs of
7
individual members of the plaintiff class.
8
355. In consultation with the Court experts and plaintiffs’ counsel, defendants
9
shall develop and use more specific forms for identifying the specific deficits and needs of
10
individual members of the plaintiff class.
11
3. Self-Monitoring
12
356. Defendants do not perform the self-audits required by the Remedial Plan.
13
Wells at RT 455:6-22, 456:8-10; CRP at 62. The need for such audits is manifest in the
14
ignorance of the testifying officials regarding severe systemic compliance problems at the
15
prisons. Although officials testified as to their intentions to do so, the Court will set
16
specific dates to ensure compliance.
17
357. Defendants must consult with the Court experts and with plaintiffs’ counsel,
18
who have expertise in this area essential to the process, regarding the adequacy of their
19
audit tool.
20
D. Determining the Proper Remedy
21
358. Defendants are therefore ORDERED to prepare a plan to address these three
22
independent areas requiring further relief. This Plan shall consist of specific amendments
23
to the current Remedial Plan that will remedy the above-noted legal deficiencies.
24
359. Defendants shall submit their plan, including a draft of the audit tool, to the
25
Court’s experts and to the Prison Law office, by November 15, 2011. The experts and
26
parties shall meet and confer, as necessary. If any disputes remain, the Court experts shall
27
resolve them. If either party disagrees with the Court expert’s resolution, or if the Court
28
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experts are unable to agree, either party may bring the dispute to the Court for resolution
2
by way of a noticed motion.
3
E. Miscellaneous
4
360. Pursuant to Federal Rule of Evidence 706(b) and the Settlement Agreement
5
and Order of December 3, 2001, defendants shall pay the Court expert for his work in
6
connection with the termination and enforcement motions in this case.
7
361. The automatic stay of prospective relief entered pursuant to 18 U.S.C. §
8
3626(e)(2) is hereby vacated.
9
IT IS SO ORDERED.
10

11

12
August __ , 2010
13
14

____________________________ The Honorable Charles R. Breyer United States District Judge

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 Case3:96-cv-01486-CRB Document497 Filed08/26/10 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 CLARK, et al.,

12

Plaintiffs,

13 v.

14 STATE OF CALIFORNIA, et al.,

15

Defendant.

16

No. C 96-1486 CRB ORDER
/

17

Filed herewith is the Court’s proposed Findings of Fact and Conclusions of Law. If

18 they desire, the parties may file objections no later than September 7. Objections shall be no

19 longer than ten pages. The parties are further advised that this Court has considered the

20 arguments made in the papers, and if those arguments are not reflected in the proposed order,

21 they have been rejected. Unless it is apparent to the parties that this Court has overlooked

22 something, it would likely be unwise for a party to devote a portion of its page-limited brief

23 to simply reiterating an argument that has been explored and rejected. Given this stage of the

24 proceeding, failure to make an argument anew will not constitute waiver for appeal purposes.

25

IT IS SO ORDERED.

26

27

28 Dated: August 26, 2010

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

G:\CRBALL\1996\1486\Findings of Fact & Conclusions of Law\Order.wpd

 
 Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736...

2010 WL 4229736 (N.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, N.D. California.
Derrick CLARK, et al., Plaintiffs, v.
STATE OF CALIFORNIA, et al., Defendants.
No. C 96-1486 CRB. August 13, 2010.
Plaintiffs’ Response to Defendants’ Surreply
Prison Law Office, Donald Specter - 83925, dspecter@prisonlaw.com, Sara Norman - 189536, Susan Christian - 121210, Penny Godbold - 226925, Zoe Schonfeld - 243755, General Delivery, San Quentin, California 94964, Telephone: (510) 2802621; Jones Day, Caroline N. Mitchell - 143124, cnmitchell @jonesday.com, Ilham A. Hosseini - 256274, Douglas E. Roberts - 264451, Andrew R. Verriere - 264674, Jeffrey R. Sunderland - 264659, 555 California Street, 26th Floor, San Francisco, CA 94104, Telephone: (415) 626-3939, Attorneys for Plaintiffs.
Judge: Hon. Charles R. Breyer.

Courtroom: 8, 19th floor

Action Filed: April 22, 1996

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................................................................................

1

II. THE COURT SHOULD DECLINE TO CONSIDER DEFENDANTS’ UNTIMELY FILED REPORT ......

1

III. THE SUBIA REPORT DOES NOT UNDERMINE THE LEONE REPORT .........................................................

5

A. The Methodology of the Subia Report is Suspect .................................................................................................................

5

B. The Report’s Findings Are So Vague that No Meaningful Conclusions Can Be Drawn from Them ...............

7

C. Much of the Subia Report Supports Dr. Leone’s Conclusions .........................................................................................

8

D. The Subia Report Fails to Respond Meaningfully to Some of the Most Serious Issues Raised by Dr.

9

Leone ............................................................................................................................................................................................................

E. Defendants’ Attack on Dr. Leone’s Methodology Is Unsound and Ironic ...................................................................

10

TABLE OF AUTHORITIES

Cases

Air et Chaluer, S.A. v. Janeway, 757 F.2d 489 (2d Cir. 1985) .........................................................................................................

2

1

Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736...

Cobell v. Norton, 212 F.R.D. 14 (D.D.C. 2002) ....................................................................................................................................

4

Freed v. C.I.R., 2004 WL 2110085 (T.C. 2004) ....................................................................................................................................

2

In re Grace Christian Ministries, Inc., 287 B.R. 352 (Bankr. W.D. Pa. 2002) .........................................................................

2

Joseph v. Terminix Int’l Co., 17 F.3d 1282 (10th Cir. 1994) ............................................................................................................

5

Love v. Scribner, 691 F.Supp.2d 1215 (S.D. Cal. 2010) ....................................................................................................................

2

Moylan v. Siciliano, 292 F.2d 704 (9th Cir. 1961) ...............................................................................................................................

2

Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008) .............................................................................................................

4

Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742 (1st Cir. 1995) ..............................................................................................

4

Thomas v. SS Santa Mercedes, 572 F.2d 1331 (9th Cir. 1978) ........................................................................................................

2

U.S. v. Blankenship, 775 F.2d 735 (6th Cir. 1985) ...............................................................................................................................

2

U.S. v. Coward, 296 F.3d 176 (3d Cir. 2001) .........................................................................................................................................

4

U.S. v. Kithcart, 218 F.3d 213 (3d Cir. 2000) .........................................................................................................................................

2

Villain & Fassio E Compagnia Internazionale Di Genova Societa Riunite Di Navigazione, S.P.A. v. Tank

2

Steamer E. W. Sinclair, 207 F.Supp. 700 (S.D.N.Y. 1962) ...............................................................................................................

Statutes

18 U.S.C. § 3626(e)(2) ....................................................................................................................................................................................

4

Fed. R. Ev. 703 ...................................................................................................................................................................................................

6

I. INTRODUCTION
Defendants were the movants in this action and pressed for an early evidentiary hearing. Indeed, it was they who initially proposed the April hearing date that was continued to May. After failing, in the face of overwhelming evidence, to establish that their programs for developmentally disabled prisoners comply with the Constitution and federal law at that hearing, defendants realized that they could not leave the record as it was. Their Hail Mary pass is the Subia Report1 that they have now tried to submit in the guise of a surreply. Like most Hail Mary passes, it is wildly off the mark.

First, defendants cannot justify reopening the evidence and have, in fact, not even had the nerve to move to do so (because they cannot meet the clear requirements this Court laid out). Second, the report is untested by any cross-examination, either in discovery or at trial, and plaintiffs have had no opportunity to present evidence rebutting the claims made in the report. Fairness requires, at a minimum, the re-opening of discovery. Third, the report appears to be the product of improper interrogation of mentally retarded prisoners who are represented members of the class for the purpose of gathering evidence against them, without any notice to their counsel. Fourth, the report is an amalgamation of hearsay and unqualified expert extrapolation, not admissible evidence. Finally, the report is vague and self-serving with virtually no meaningful quantification that would lend it probative value and, even taken at face value, fails in its overall mission of discrediting Dr. Leone’s conclusions.
2

Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736...
For all of these reasons, the Court should disregard the Subia Report and rule promptly in plaintiffs’ favor.
II. THE COURT SHOULD DECLINE TO CONSIDER DEFENDANTS’ UNTIMELY FILED REPORT
Defendants claim that the Subia Report is admissible, even though they filed it more than two months after the close of evidence and after the end of post-trial briefing. They are wrong. Courts should “decline to consider . . . so-called ‘supplemental evidence’ ” that is filed “after the record was closed and is not subject to cross-examination.” In re Grace Christian Ministries, Inc., 287 B.R. 352, 356-57 (Bankr. W.D. Pa. 2002) (emphasis in original). While “[a] motion to reopen for additional proof is addressed to the sound discretion of the trial judge,” Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1336 (9th Cir. 1978) (citation omitted), defendants never filed such a motion. Instead, they attached the Subia Report as an exhibit to their request to file a surreply. Belatedly filing evidence, without moving to do so, is plainly improper, especially here, where the Court required defendants to provide “justification . . . for not pursuing it before now” if they sought to reopen evidence. See Court at RT 1067:2-6, 1068:3-11.2 Here there is no justification because defendants could have done their investigation before the hearing, but did not bother until they realized the hearing went badly for them.
Moreover, reopening the record -- even pursuant to a proper motion -- has long been viewed as a “pernicious practice.” Villain & Fassio E Compagnia Internazionale Di Genova Societa Riunite Di Navigazione, S.P.A. v. Tank Steamer E. W. Sinclair, 207 F. Supp. 700, 715 (S.D.N.Y. 1962); see also U.S. v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000) (“ ‘[C]ourts should be extremely reluctant to grant reopenings’ ”) (quoting U.S. v. Blankenship, 775 F.2d 735, 740 (6th Cir. 1985)). Many courts reject untimely evidence out of hand, without applying the test defendants propose. See, e.g. Moylan v. Siciliano, 292 F.2d 704, 705 (9th Cir. 1961); Air et Chaluer, S.A. v. Janeway, 757 F.2d 489, 495 (2d Cir. 1985); In re Grace Christian Ministries, Inc., 287 B.R at 356-57; Freed v. C.I.R., 2004 WL 2110085, at *8 (T.C. 2004).
But even if the Court applies the test defendants propose, the report fails on all fronts: it is not “especially important [or] probative;” defendants’ reasons for failing to introduce it at the evidentiary hearing are frivolous; and adding it now prejudices plaintiffs. Rivera-Flores, 64 F.3d at 746; see also Love v. Scribner, 691 F. Supp.2d 1215, 1234-35 (S.D. Cal. 2010).
First, defendants argue that the report is especially probative because it “addresses the accuracy of the allegations in [Dr. Leone’s] expert report.” Dkt # 492 at 2. Just because a piece of evidence is responsive to another piece of evidence, however, does not make it probative, let alone especially so. As discussed below, the report is based on flawed methodology and constitutes unreliable hearsay and thus does not “tend to prove or disprove” any of Dr. Leone’s findings or conclusions. Black’s Law Dictionary (8th ed. 2004) (defining “probative”). The report clearly “does not have the persuasive power [defendants] claim[] for it,” and the Court should refuse to consider it on that ground alone.3 Thomas, 572 F.2d at 1336.
Second, defendants claim that they had bona-fide reasons -- namely, that Dr. Leone’s failed to send his report directly to defendants, rather than their counsel, and defendants’ alleged “concerns regarding the appearance of retaliation”4 -- for failing to timely submit the Subia Report. Dkt # 492 at 3. These reasons are frivolous. As this Court has already acknowledged, defendants’ counsel received Dr. Leone’s report February 15, twelve weeks before the evidentiary hearing began, and the names of the prisoners that Dr. Leone interviewed less than two weeks later. RT 1068:3-11. In fact, at trial, defendants represented to the Court that they had reviewed prisoners’ files and interviewed staff to investigate Dr. Leone’s conclusions. Zelidon-Zepeda at RT 1066:7-11. There is no reason that the rest of the investigation for the Subia Report could not likewise have occurred prior to trial. Given defendants’ concession that they did not begin that investigation until the end of the evidentiary hearing, Dkt. # 492 at 3, the Subia Report took, at most, nine weeks to complete. Had defendants begun their investigation when defendants’ counsel received the Leone Report, their report would have been done before the hearing.
As to “concerns regarding the appearance of retaliation,” nothing prevented defendants from investigating Dr. Leone’s claims by examining records and talking to their own personnel prior to the hearing, as they in fact claimed they did. The impropriety--then and now--comes in interviewing mentally retarded class members, for the purpose of gathering evidence to use against them, with no notice to plaintiffs’ counsel. Such investigative techniques render the evidence defendants gathered patently inadmissible. “There is no apparent support in the available case law that permits an opposing party to engage in
3

Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736...
communications with class members that have the effect of extinguishing the rights of those class members.” Cobell v. Norton, 212 F.R.D. 14, 18 (D.D.C. 2002). Furthermore, under Ninth Circuit precedent, statements of absent class members, such as the prisoners interviewed, are admissible as admissions of party-opponents only if there are “adequate strictures in place-conditioning the [defendant’s] ability to obtain . . . statements.” Pierce v. County of Orange, 526 F.3d 1190, 1202 n.9 (9th Cir. 2008). Where counsel is not present for the interviews, or even notified that they are occurring, the “strictures in place” can hardly be called “adequate.” Had defendants’ aim been to get at the objective truth, they could have collaborated with plaintiffs’ counsel to develop a sound methodology for questioning developmentally disabled inmates.
Third, defendants contend that no prejudice flows from the belated filing of the Subia Report because it addresses issues that plaintiffs raised and plaintiffs have had the opportunity to respond to it. But prejudice does not turn on whether the untimely evidence is responsive or whether the non-moving party can contest its admission. As Rivera-Flores makes clear, the relevant consideration is the delay between the close of evidence and the motion to re-open. 64 F.3d at 749; see also U.S. v. Coward, 296 F.3d 176, 181 (3d Cir. 2001) (“A critical factor in evaluating prejudice is the timing of the motion to reopen”). In RiveraFlores v. Puerto Rico Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995), the court held that a motion filed immediately after the nonmoving party rested its case did not cause significant delay or, thus, undue prejudice. Here, in stark contrast, defendants waited until post-trial briefing was complete to submit the report. As a result of this delay, which is in itself prejudicial, the stay of prospective relief that began when defendants filed their motion to terminate has endured. 18 U.S.C. § 3626(e)(2).
Introduction of the Subia Report also severely prejudices plaintiffs because plaintiffs have not had an opportunity to review all of the materials underlying it or to depose or cross-examine any of the participants about it.5 Fairness would require reopening of discovery and the taking of additional evidence on the merit of the report if the Court were to give it weight. Courts are well within their rights in rejecting new evidence under such circumstances. See, e.g., Joseph v. Terminix Int’l Co., 17 F.3d 1282, 1284, 1285 (10th Cir. 1994) (affirming district court’s refusal to admit new evidence as “highly prejudicial” and because it would have required “the opportunity to question the proffered witnesses and inspect the home to verify their claims”). This is especially true where the evidence is cumulative of the same theories advanced by the party at the evidentiary hearing, but just claimed to be more persuasive. Id. at 1285 (no abuse of discretion for excluding evidence “with only cumulative or rebuttal value”).
III. THE SUBIA REPORT DOES NOT UNDERMINE THE LEONE REPORT
The Subia Report is aimed at discrediting Dr. Leone’s report and testimony, but it bears no indicia of reliability. Its methodology is unclear in critical respects and its conclusions often too vague to be meaningful to the Court’s analysis. From an evidentiary perspective, it is inadmissible. It cannot be treated as an expert report because no effort has been made to qualify its authors as experts (and the one who testified at trial, Mr. Subia, did not even attempt to qualify himself as an expert), the required accompanying disclosures for an expert report, e.g. the materials relied on, have not been provided, and it comes four months after the deadline for disclosure of rebuttal experts. Finally, as percipient evidence, it is hobbled by hearsay and not admissible. For all of these reasons, the Court should not credit it as evidence refuting Dr. Leone’s opinions.
A. The Methodology of the Subia Report is Suspect.
The Subia Report’s description of defendants’ methodology is woefully inadequate--it provides virtually no information about what the prisoners (or for that matter, staff) were told about who the team members were and the purpose of the interviews, or the method of questioning used. It is impossible to tell from the report whether the prisoners were being questioned in a leading way or whether the methodology assured reliable responses. There are red flags suggesting that if defendants did not like the initial answers that they received from prisoners, they persisted in questioning them until the prisoners changed their answers. For example, defendants admit that when they initially spoke with some prisoners, those prisoners claimed to be victims of property theft, but that after “further conversation” many of those prisoners changed their stories. Subia Report at 3. Based on the testimony at trial, it is no surprise that developmentally disabled prisoners, who are often characterized by “mental youngness,” will modify their answers under pressure by figures of authority who do not like their first answer. Pltfs’ Prop. F&C, ¶ 78.6 Without discovery and cross-examination on the critical issue of how these conversations with prisoners were initiated and conducted, reports of what the inmates said have no probative value.7
4

Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736...
Because the review team members have neither the training nor the professional experience necessary to satisfy Federal Rule of Evidence 702, they cannot offer expert testimony.8 Accordingly, unlike Dr. Leone, they cannot offer opinions based on prisoner interviews, and the report is inadmissible hearsay.9 Fed. R. Evid. 703.
B. The Report’s Findings Are So Vague that No Meaningful Conclusions Can Be Drawn from Them.
Rather than providing concrete numbers of prisoners who suffered various forms of neglect or abuse, the Subia Report is replete with imprecise quantitative terms. Thus, the Subia Report asserts that while “a few” of the 10 prisoners who they asked about property issues claimed initially to be pressured to give their possessions away, upon further discussion, “most” indicated that they were not. Subia Report at 3.10 Aside from the obvious problem of failing to quantify “a few” or “most,” the Subia Report’s syntax also raises the question whether (1) most of the “few” prisoners later changed their stories, or (2) most of the ten prisoners interviewed claimed they were not pressured out of their possessions.
This lack of specificity is pervasive. In one passage the report claims Subia’s team looked at allegations of fear of assault “discretely but in depth,” but there is no explanation of what that means. In another passage, the Subia Report asserts that “inmates confirmed that staff members do, in fact, prompt them to take showers,” and provide other help. Subia Report at 4. But they fail to quantify how many told them that or even to identify a single prisoner who said so. Instead they cite inmate 86 as saying he had help with letter writing and appeals. Id. These vague assertions and non sequiturs undermine the report’s credibility.
The vagueness problem also infects the discussion of the investigation as it relates to staff and document review. For example, the Subia Report contends that officers “generally understand the behavior and needs of the DD inmates in their housing units,” but does not detail the factual basis for this conclusion, or what it means to “generally understand” such matters. Id. at 6. Similarly, it reports that the “team did not find any [Rules Violation Reports] that were issued or processed inappropriately,” without defining the criteria for “appropriate” issuance and processing. Id. at 7; see also id. at 7 (prisoners “generally understood” the grievance process), 11 (staff “taking appropriate action”), id. at (“when needed” the DD prisoners are provided with a staff escort to canteen), id. (prisoners interviewed at CMF “did not have major issues with the DDP”). A report that leaves so many key terms undefined cries out for cross-examination and should be given no evidentiary weight.
C. Much of the Subia Report Supports Dr. Leone’s Conclusions.
Defendants do not contest many of Dr. Leone’s conclusions about problems in the Developmentally Disabled Program (“DDP”). For example, the Subia Report confirms that a number of developmentally disabled prisoners are housed in administrative segregation who (1) are unaware why, and (2) may remain there for extended periods of time because of lack of adequate beds in the DD units. Compare Leone Report at 3, 1011 with Subia Report at 5-6. It confirms that CMF staff members belittle developmentally disabled prisoners. Id. at 9. Similarly, defendants agree with Dr. Leone that developmentally disabled prisoners are locked down in reception centers for extended periods of time. Compare Leone Report at 4, 14 with Subia Report at 7; compare Leone Report at 4, 12 with Subia Report at 7-8 (confirming that developmentally disabled prisoners pay for haircuts); Leone Report at 16 with Subia Report at 10 (confirming that veal meatballs were served to developmentally disabled prisoners requiring renal diets for every meal for two weeks); compare Leone Report at 16 with Subia Report at 10 (counselor failed to notify prisoner 111 about the death of his sister until two weeks after she was buried). Defendants cannot credibly argue that the Leone Report lacks a reliable factual basis while acceding to a substantial number of those facts. Even where defendants do not expressly concede that Dr. Leone’s findings are accurate, their report often dovetails with the Leone Report. See, e.g., Subia Report at 3-4 (account of property loss suffered by prisoner 104 accords with Dr. Leone’s finding that same prisoner was fearful that his property would be lost during laundry exchange).12
D. The Subia Report Fails to Respond Meaningfully to Some of the Most Serious Issues Raised by Dr. Leone.
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Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736...
Defendants neglect to address many of the findings central to Dr. Leone’s conclusion that the DDP is dysfunctional. For instance, they claim that “most of the prisoners indicated that they preferred not to ask staff” for assistance (Subia Report at 7), but make no effort to reconcile that with the fact that many of the prisoners to whom they spoke--prisoners #25, 41, 42, 74, 86, 133, 139, 149 and 153--had in fact sought such assistance, according to Dr. Leone, but were either refused outright or discouraged from ever asking again. Leone Report at 3-4, 11-14. Nor does the Subia Report address Dr. Leone’s findings that developmentally disabled prisoners who do not receive assistance from staff are forced to pay other prisoners for help completing vital paperwork, such as grievances and requests to see the doctor. Similarly, the Subia Report does not answer Dr. Leone’s finding that developmentally disabled prisoners in administrative segregation receive no assistance from staff, or his testimony to the special danger excessive time in administrative segregation poses to such inmates. The report also does not address the deficiencies in staff training that Dr. Leone identified. Leone Report at 4, 10, 15-16.
In other cases, defendants minimize the significance of serious problems raised by Dr. Leone, without justification for doing so. See, e.g., Subia Report at 8-9 (characterizing the actions of an officer that was found to push inmates against the wall, call them names, and force them to strip to their boxers as an “approach” that “the inmates’ [sic] found threatening”).
At bottom, the Subia Report lacks the thoroughness and objectivity necessary to constitute a meaningful review of treatment of developmentally disabled prisoners in California.

E. Defendants’ Attack on Dr. Leone’s Methodology Is Unsound and Ironic.
With no persuasive findings of their own to present, defendants lodge feeble attacks on Dr. Leone’s methodology. See Subia Report at 5-6. However, Dr. Leone used a recognized and well-tested method -- triangulation -- in conducting his investigation. Leone at RT 730:9-731:1. He interviewed 152 developmentally disabled prisoners, using a uniform list of questions that he designed, as well as numerous staff members. Leone Report at 5-6. He also conducted file reviews. Once an interview was complete, Dr. Leone categorized the prisoner by the level of difficulty that he had and, at the end of the process, calculated the percentage of prisoners who were suffering serious and more moderate difficulties receiving the services and protections they are due under the Clark Remedial Plan. Leone Report at 2-3.
Defendants, by stark contrast, employed no formal method, but rather had “open conversations” with developmentally disabled prisoners “regarding their individual issues specifically related to the [Leone Report] and any additional issues or concerns.” Subia Report at 3. They spoke to only half of the prisoners that Dr. Leone interviewed, and performed no categorization or statistical analysis of the prisoners. Id. at 2-3. Quite evidently, defendants’ investigation was not a scientific inquiry, undertaken with the intent to discover whether defendants’ programs were working effectively, but rather an untimely and ill-advised attempt to gain evidence to support the position that they have taken in this litigation. It is imperative that the Court reject it as such.
Dated: August 13, 2010
JONES DAY
By: /s/ Caroline N. Mitchell
Caroline N. Mitchell
Attorneys for Plaintiffs
DERRICK CLARK, et al.

Footnotes

1

This memorandum refers to the July 2010 Report of Division of Adult Institution’s (DAI’s) Leone Report Review Team as the

“Subia Report” because Richard J. Subia, DAI’s Deputy Director, led the team preparing the report and submitted its sponsoring

6

Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736...

declaration.

2

The cited excerpts from the Reporter’s Transcript are attached to the accompanying Declaration of Caroline N. Mitchell as Ex. 1.

3

Defendants also contend that the Subia Report refutes plaintiffs’ contention that CDCR took no action in response to Dr. Leone’s

findings. Dkt # 492 at 2-3. Of course, the fact that defendants cobbled together a report after post-trial briefing was complete for

the purposes of this litigation does nothing to undermine plaintiffs’ larger point: that CDCR does not adequately address systemic

problems, even when officials have notice of those problems. E.g., Plfs’ Prop. F&C, ¶¶ 167-69, 231-38.

4

Defendants contend that “logistical difficulties” prevented them from completing the Subia Report in a timely fashion. Dkt. # 492

at 3. That defendants’ internal bureaucracy impedes their ability to access they own facilities and documents promptly is not a

justification for sandbagging plaintiffs with an uncross-examined report two months after the evidence closed.

5

Plaintiffs requested documents and additional information relating to the Subia Report when defendants’ surreply was filed.

Defendants promised to produce documents and information on August 12, but did not do so. See Mitchell Decl., ¶ 3, Ex. 2. If the

Court gives any weight to the Subia Report, plaintiffs request an opportunity to review those documents and conduct discovery and

put that evidence before the Court.

6

In another example, defendants contend that when they asked a prisoner whether his counselor had told him to “make us look

good” to the Court expert in a threatening manner, the prisoner responded that the counselor had “jokingly made the statement.”

Subia Report at 11. Because of their “mental youngness,” however, many developmentally disabled prisoners would not

understand whether someone was joking with them or not. Pltfs’ Prop. F&S ¶ 78; Salz at RT 91:15-17 (“you don’t use jokes” with

these prisoners). And the prisoner may have feared retaliation if he did not back down when interviewed by the investigative team.

7

The same problem pervades the questioning of staff. It is not clear how they were questioned or what was done to prevent the

danger that they would simply say what they thought the investigative team wanted to hear and what would be most likely to keep

them out of trouble.

8

Furthermore, even if they could have been qualified as experts, the deadline for disclosing rebuttal experts was in March, two

months before the evidentiary hearing; not in July, two months after the evidence closed. See Second Scheduling Order, filed

January 7, 2010 at 2 (Dkt. 295).

9

Defendants argue that the “Court cannot simply rely on evidence that Dr. Leone says he [has]” in his possession. Dkt. # 492 at 6.

Not so. As an expert, Dr. Leone may rely on evidence that is of the type reasonably relied on by experts in his field, including

hearsay. Fed. R. Evid. 703. And, to the extent that defendants are implying that Dr. Leone does not actually possess interview

notes, those notes were produced to both parties in anticipation of his deposition. Mitchell Decl., ¶ 5.

10

See also id. at 4 (some prisoners reported receiving assistance in completing appeals); id. at 5-6 (some prisoners placed in ASU for

RVRs, while others for their own protection and still others pending transfer); id. at 6-7 (most of the Rules Violation Reports noted

in Leone Report were issued or processed appropriately); id. at 7 (some prisoners claimed they received assistance from staff;

however most prisoners indicated they preferred to not ask staff), id. at 7-8 (a number of prisoners paid for haircuts); id. at 12 (a

number of inmates indicated they did not require an escort to canteen); (very few issues with prisoner property).

11

The Leone Report which was marked as Trial Ex. 1 is attached as Mitchell Decl., Ex. 3.

12

In other instances, the findings in the Subia Report are not relevant to Dr Leone’s findings or conclusions and, therefore, cannot

undermine them. Compare Leone Report at 9-10 with Subia Report at 5 (defendants’ findings regarding safety concerns of

prisoners 104 and 109 do not undermine Dr. Leone’s conclusion that developmentally disabled prisoners are subject to physical

and sexual abuse, which was based on interviews with prisoners 136, 108, 62, 150, and 148); Leone Report at 10-11 with Subia

Report at 6-7 (defendants’ findings that “most” of the RVRs in the files of prisoners 87, 21 and 28 were appropriately issued do not

contradict Dr. Leone’s conclusions that the specific RVRs of prisoners 87 and 21 were inappropriately issued); Leone Report at 11-

14 with Subia Report at 7 (defendants’ assertion that developmentally disabled prisoners surveyed understood the process of filing

an inmate grievance does not contradict Dr. Leone’s findings that developmentally disabled prisoners who cannot read and write

require and do not receive assistance).

End of Document

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Derrick CLARK, et al., Plaintiffs, v. STATE OF..., 2010 WL 4229736... 8

 
 ·. :•.''
Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page2 of 15

July 2010 Report of Division of Adult Institution's Leone Report Review Team

I. Introduction :.· .. · ··In April of 2010, the California Department of Corrections and Rehabilitation
.... (CDCR) received a report authored by Peter Leone, Ph. D., dated February 15, 2010. This report provided Dr. Leone's assessment on the status of inmates with Development Disabilities (DD) in the CDCR. After visiting seven institutions and conducting interviews with approximately 150 Clark members, Dr. Leone noted a number of general concerns with CDCR's implementation of its Developmental Disabilities Program (DDP), as well as several specific concerns with a number of inmates who are designated as members of the "Clark Remedial Program", also referred to as "DD" inmates.

Leaders of CDCR's Division of Adult Institutions (DAI) responded to Dr. Leone's reported findings by forming a review team consisting of five staff including the Deputy Director of the DAI. Deputy Director Richard Subia and at least 3 team members visited each institution. This team was charged with responsibility to look into the specific allegations contained within Dr. Leone's report and to conduct general site reviews of CDCR's implementation of the DDP at the institutions Dr. Leone visited and reported about: California Medical Facility (CMF), Deuel Vocational Institution (DVI), California Rehabilitation Center (CRC), Richard J. Donovan Correctional Facility (RJD), Wasco State Prison (WSP),
Substance Abuse Treatment Facility (SATF) and California State Prison, Lancaster (LAC). This report describes the makeup of the review team, its methodology, its findings, and the status of follow up efforts.

II. Qualifications of the Team Members
Thk te~m was comprised' of Richard J Subia, DAI Deputy Director, Elizabeth
Allen, ,Correctional Administrator, Ray Harrington, Facility Captain, Albert . Chamberlin, Correctional Captain, and Sheryl Sanders Correctional Counselor II.

Mr. Subia began his Correctional career in 1986 with the California Department

of Corrections as a Correctional Officer at Folsom State Prison. He has

promoted through the ranks, working as a Correctional Sergeant at California

as State Prison; Solano; serving as a Lieutenant and Captain at Mule Creek State
Prison,: and • a Correctional Administrator in Sacramento. From 2006-2007,

Mr. Subia served as the Special Assistant to the Secretary of CDCR and later

·went on to become the Warden at Mule Creek State Prison. In 2007, he was

appointed by Governor Schwarzenegger to the position of Associate Director of

the General Population 11/111 Mission where he had the overall responsibility of

General Population Level 111111 prisons, statewide fire camps, and statewide

·. community ;correctional facilities. In December of 2009, Mr. Subia was again

'

I'

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. f1Pppim1d ~~Y the Governor to t~e position ,o~ Deputy Director of the Division of

.....
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Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page3 of 15

Adult Institutions. In his current assignment, Mr. Subia is responsible for the

overall operation of all adult facilities in California as well as over 8,000 California

inmates housed in out of state facilities.

. '

The additicmal team members each have at least 15 years of correctional ·

t experience· and expertise; combined, they have a total of 81 years of service to

the CDCR in a number of capacities. Each of these employees has had Clark

·Remedial Plan training and has at one point in their career maintained custody of

·- .-.,_

Clark members at the capacity of Correctional Officer, Correctional Sergeant,

·· ··Correctional Lieutenant, Correctional Counselor, or Parole Agent. Most recently

in their current classification they assist with oversight of the program. Ms. Allen

is , ·responsible. for the superv1s1on of both Mr. Chamberlin and : .-;· __ :.

Ms.: Sanders. . Mr. Chamberlin and Ms. Sanders are designated as the DAI

·• · •liais.ons to the institutions and the Office of Court Compliance for the Clark and

.. -..·

Armstrong cases. Mr. Harrington is assigned as the Special Assistant to the

Deputy Director.

Ill. Methodology

The:·g6al ~f the DAI's management team was to visit the same institutions
Dr. ~Leone visited,· to review and follow up on the specific concerns noted by

or: Leone, and to conduct an overall observation of the facilities that house the

DO inmates. Additionally, it was the Deputy Director's intent to meet with the

management team at each institution to emphasize the importance of ensuring

· ·

all staff is up to date on the Clark Remedial Plan (CRP) training and that it is put

. into practice each and every day. The management meetings at each institution

... . and: the me'etings with the unit staff were formal; however, the on-site reviews a~d corversat,on~ with inmates were purposely informal.: It was the team's intent

to ensure the inmate Clark members did not feel they were being retaliated

against. The team also reviewed the inmates' Central Files, when available, and

·In-Service Training records of staff. Because of privacy laws, the team could not

review Unit Health Records of the inmates.

·

Mr. Subia and most members of his team visited all seven institutions noted in

Dr. Leone's report. In addition, the team visited two institutions that were not

mentioned in the Leone report: Valley State Prison for Women (VSPW) and the

Central California Women's Facility (CCWF). This was based in part on the fact

Dr. Leone neglected to report on any institutions housing female members of the : , .

Clark program, and the team wanted to obtain as full an assessment of the DDP

as possible.

' .

.

Th~ 'review;team met with staff and approximately half of the inmates specifically

mentioned in Dr~ .Leone's report. The team was unable to meet with all of the

inmates· because' many of them had transferred from the noted institution or

2

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Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page4 of 15

paroled. The review team spent about a day at each institution conducting

informal but detailed reviews. Staff reviewed the concerns addressed in

. ·.. ' ..

Dr. Leone's report prior to meeting with the inmates and staff at each institution. _

! . '..

The team members went to the inmates' housing units and in a private but . informal setting had open conversations with them regarding their individual

·issues specifically related to the report and any additional issues or concerns~

The interactions with the inmates varied from 15 to 30 minutes depending on the ·

inmate's concerns and needs. The team also spoke to the available staff and ··

specific staff mentioned in Dr. Leone's report within the housing units. The ·

Deputy Director and members of the institution's management team also went to

·: .: .·. • the housing units during the follow up reviews; Mr. Subia spoke to a number of

· staff and inmates at each institution. At the conclusion of each visit, the team

again met with the management teams and discussed their findings and

concerns as well provided recommendations where needed.

IV. Findings

The following are the results of the team's review. The headings in bold track

those of Dr. Leone's report and they relate to the specific findings regarding

Clark members' property, daily living activities, safety concerns, Administrative

Segregation and Reception Center housing, issues related td the Department's

·Rule Violations Reports (CDCR 115), Request for Assistance, and problems with

specific staff, as well as a number of other topics:

·

Property: ..•

.The Leone{report noted that many DDP inmates stated they had been pressured

to give •up • property and/ or canteen items to other inmates. Some inmates

reported having lost property while being transferred from one unit to another or

.from one institution to another. The review team spoke to inmates about these

concerns and discovered the following: .

·

·

',i,

. '•
The review team met with inmates 21, 42, 73, 76, 104, 109, 111, 121, 134, and

151. who reported property concerns to Dr. Leone. Initially, a few of these

inmates: confirmed that they were sometimes pressured to surrender canteen

: items or portions of packages that were sent to them from family members. After

further'conversation with most of the inmates they indicated that they were not

. being pressured to surrender canteen. Rather, they stated things like "we share

it with other inmates because we want to" or "we pay back what we borrowed."

While at SATF the review team spoke to inmate 121 regarding his loss of

canteen. Inmate 121 was very clear that his canteen does not get taken away

from him nor is he ever pressured to give up his canteen. He told the staff that

1.

wh.en he "runs out of his own canteen he borrows from other inmates and pays

them back as soon as he is able to draw his canteen." He stated that at times he

owes a lot of his canteen based on what he has borrowed. The team also met

with Officer Costello and asked about the statements he made to Dr. Leone

regarding inmate 121 's canteen. Officer Costello indicated the inmate receives

I

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Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page5 of 15

the maximum draw every time he goes to canteen and he assumed that the ' ··. inmate's canteen Was being taken away.. He said he had never asked the inmate
if he was pressured to give up his canteen and that it was possible that the · . inmate was simply paying back what he owed.

• . Some of the inmates housed in the ASU reported having their property lost or

taken when they were placed in the ASU or when they were transferred from one

institution to another. However, after more detailed conversation it appeared

- .. ~· . ' . : ·.

most of the issues were a point and time and not ongoing; that is, most of these

··issues were as a result of a specific move. Furthermore, when the review team ·

specifically asked the inmates if they had any current issues with their property, the general. response was "no." When asked if it was a one time thing they responded "yes." Team members also met with Inmate 104, (RJD), regarding his

..
~ . .'; :·.

' .

' .

.. - . :

(

(, ·

concerns with his clothing. Inmate 104 stated he washed his clothes in his cell ·

because it was easier for him to wash his clothes himself and there was no risk

of .losing them. Team members ensured that inmate 104 was aware of the

laundry .exchange process; nevertheless, inmate 104 insisted that it was his

choice to wash his own clothes. He assured the team that if he chose not to

launder his clothes himself he understood how to utilize the institutions' laundry

exchange. The team discussed the inmate appeals process with each inmate,

making sure they completely understood they have the right to file an appeal

when these types of situations occur. The team emphasized to the inmates and

to staff members that the inmates could ask staff to provide assistance. In fact,

some of the inmates confirmed that staff had provided them assistance in

~ornpleting appeals and with oth~r issues.

' ~ · I . 1 : : •• !

r

·

.Activities of Daily Living:

Dr. Leone noted in his report that several DD inmates arrived to his interview

appearing unkempt and unclean. Based on this, Dr. Leone suggested that staff

members might not be appropriately prompting the inmates to perform basic

hygiene activities. The review team looked into these matters and discovered the

following: · :; .; . :

·

,

. :: ;. :. . :;: 1'. I ,,'I'

The'·review''team met with inmate 86 regarding the concerns with hygiene and whether or not staff was providing the. adequate prompts; however, this issue was also addressed with all the inmates that were interviewed. The overall hygiene of the inmate did not appear to be problematic. During the interviews, the inmates ,confirmed that staff members do, in fact, prompt them to take shovvers, change their clothes, and prompt them for yard and meals. Inmate 86 · specifically ,~aid staff provide him assistance with letters or assisting him with the CDCR.:6o2: However, he prefers to ask other inmates to help him write letters .. and appeals because he does not want staff to know his business. The inmate indicated he did not have any issues with being allowed to shower.

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Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page6 of 15

Safety:

The Leone report noted several inmates who avoided taking showers allegedly

due to fears of being assaulted by other inmates while in the shower. Dr. Leone

also noted a particular inmate, number 108 (RJD), who had been raped in 2006

. and 2008 while housed at LAC. The review team took these allegations very

seriously and looked into them discreetly, but in depth. The team discovered the

· following: . ·

·

The. review team met with inmates 104 and 109 regarding the noted concerns as

it pertained to their fears of taking showers. Inmates 104 ~nd 109 indicated they .

·were not afraid of being assaulted by other inmates while taking showers, nor did

they voice any other safety concerns. Inmate 104 specifically indicated he

preferred to clean up in his cell but this practice was not based on being afraid, it

was by choice. The review team advised all the inmates they met with to inform

staff if they were afraid of taking showers and/or of participating in any other

activities. The team also met with inmate 108 and spoke with him in-depth. This

inmate raised some concerns with not being able to see the psychiatric staff

enough and his mental state of mind. Inmate 108 indicated he did not have any

safety concerns and that staff was helpful. His concern was not being able to

see the psychiatric staff more. He also indicated he was depressed and felt staff

treated him. different because of his medical condition. He was not able to share

. any speCifiqs qf how he was treated different. Al$0, Dr. Leone's report indicated

the inmate •haa been raped while housed at LAC. The inmate reported he was

never housed at LAC. He also indicated he had an incident while housed at

another prison but did not elaborate on the inCident. A review of his central file

confirmed he had never been housed at LAC and that he in fact had an incident

at another institution. The documentation in the central file indicated inmate 108

sexually battered another inmate while housed at the CMF. There was additional

documentation in the central file that indicated inmate 108 displayed sexual

predatory behavio'r and it was noted that inmate 108's behavior was a safety

concern'for1other inmates.

: . ' : ' •.

' i;. .

. • •.

:'

Administrative Segregation:
The Leone report indicated that placement in Ad Seg seemed to have a deleterious effect on DO inmates. Several inmates reported that they rarely received support services from officers while housed in Ad Seg. They claimed that they were locked down most of the time and not provided yard access. The ·· . review tea~ visited several Ad Seg units; interviewed inmates housed there, and reviewed files of those inmates. The team discovered the following:

·The review"'team met with a number of inmates housed in ·the ASU including

inmates 62 and 67 regarding their placement in the ASU and whether or not they

were receiving the services he was entitled while housed in the ASU. A review of

the central files indicated some inmates were placed in ASU for rules violations,

wh.il.e o,thers were placed there for their own protection and still others were there

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Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page7 of 15

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temporarily during transfer processes. Overall, administrative segregation is a

more restrictive environment due to legitimate safety and security needs and

· complaints about yard access and being locked down are common among all

Ad Seg inmates. The DO inmates that were interviewed did not physically or

mentally appear to be decompensating as a result of being housed in the ASU.

' · . This as!?essment was based on their overall appearance, their interaction with

the team members, and staff's observations. A few of the inmates stated they

.did not know why they were being housed in the ASU. When this issue was

brought to the team's attention, the team informed the inmates as to why they

·.. · 1

were housed in the ASU at the time of the interview if they had the information.

·• ·

If not, they requested institutional staff inform them. Out of all the inmates that

. were spoken to regarding this issue, only inmate 62 said he should not be

housed ·in 'the ASU. However, he also felt he could not program in DVI's

mainline. Inmate 62 indicated he wanted to transfer to another institution. The

review team shared the inmates' concerns with the management team and will

be conducting a follow up review. The review team spoke to staff in the ASU and

reminded them of their responsibilities with logging the services they provide the

DO inmates and to ensure they provided them with their specific needs as noted

in the CRP. The institution's management team was apprised of the

conversations.

::. I: '
Rules Violations Reports. (115's):

·· ' ' ·

Dr. Leone's report indicated some of the inmates had received Rule Violation

Reports (RVR's or 115s) for behavior such as being out of bounds, failure to

obey a direct order, forgetting stuff, fighting or not locking up. Based on this,

Dr. Leone suggested that staff members who issued the RVRs were unfamiliar

with the. needs of the DO population. The team reviewed these allegations and

~iscovered _trye following:

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The' review team looked at the files of 21, 28, and 87 to determine 'whether their

RVR's 'had been issued or processed appropriately. The team did not find any

reports that were issued or processed inappropriately. Most of the RVR's noted

·as being issued to the DO inmates in the Leone report were dismissed or

reduced during the hearing based on the inmates' behavior and their DO level.

This is a good example of the multi-layered DO disciplinary process functioning

as. it was .:designed. The team interviewed many Correctional Officers and

. ¢oJ:lfirrr~ed ~hat. they generally understand .the behavior and needs of the DO

inmates· in their' housing units. The team reviewed the specific situations around

the RVRs noted in Dr. Leone's report and felt that most were appropriate and

necessary to maintain order and ensure the safety and security of the institution.

The team did encounter a few officers who wrote RVRs described in Dr. Leone's

report who were not as familiar with the specific needs of some of the DO

inmates. These were typically relief officers who were less experienced with

working with DO inmates. The management at the institution was informed of . . this i~s~e aru:J, advised to ensure it is shared with staff during the appropriate

training.· The team also confirmed that in almost all instances the DO inmates

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Casi:e3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page8 of 15

were provided a staff assistant and that the RVRs had a clinician review. The institution's management team was advised that staff assistance and clinician reviews are requii"ed in all instances.

i:
Request for Assistance: Dr. Leone's report indicated staff was less than helpful to the DO inmates when asked. The team followed up on these allegations and discovered the following:

The team asked DO inmates ifthey ever requested assistance from staff with · writing, reading,· completing health call slips and appeals. Some claimed they have re<;;eived assistance from staff; however, most of the inmates indicated they preferred not to ask staff, therefore, asked other inmates. They indicated they preferred to ask other inmates because they did not like staff knowing their personal business. The team also found that these inmates generally understood the 602 inmate grievance process, including how they can get a CDC-602 form, but sometimes received assistance from staff to complete the form. The inmates were once again advised that any time they did not understand the various departmental processes including documents, instructions or services, they could
of request .assistance from staff. Additionally, the team reiterated to staff the
. importance: providing assistance to .DO inmates or any inmate that requires assistance. Staff acknowledged this obligation.

Conditions in Reception Centers:

Dr. Leone's report addressed the amount of time DD inmates were locked down

while housed in the Reception Center. The team looked into this situation and

piscovered the following:

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DO inmates in Deuel Vocational Institution (DVI) Reception Center (RC) did in

fact appear to spend a great deal of time in their cells; however, this concern was

not specific to DO inmates as it is the standard process in all RCs. The team

discussed with management their concerns with DD inmate's needs and the

possibility of allowing them a little more yard time. DVI's management was

receptive and indicated they would review and modify the RC processes, if

feasible, to: allow the DO inmates more yard time. The. review team will be

conducting .a folio~ up regarding this issue .•

.Paying For Haircuts:

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Dr. Leone noted that a number of inmates indicated that they had to pay for

haircuts. The team found at most of the institutions visited, there were a number

of inmates that paid for their haircuts. This practice is a violation of departmental

rules but appears to be a common practice with the general population. Some of · .·the inmate~ indicated they preferred to have their haircut by a specific inmate,

somef indicated they had to pay but did not mind, and some indicated they cut

their own hair. ' The review team shared these results with the institutions

. management team and reiterated the fact that inmate barbers should not charge

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Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page9 of 15

any inmate for a haircut. The review team also advised the Clark member . inmates that they should not pay for their haircuts and confirmed they knew that
there were paid inmate barbers available to cut their hair. The management team at LAC met with all the inmate barbers as a result of this review and ·informed them that if they charged for haircuts they would receive an RVR and lose their assignment.
Problems with Specific Correctional Officers:
Dr. Leone's report spoke about a number of officers' actions both at CMF and . CRC. Specifically, the report indicated that an officer Jones at CRC conducted · ··. ·himself in an unprofessional manner, used profanity, shouted at the inmates and
called them names. The review team followed up on these issues and discovered the following:
The Clark member inmates at CRC were questioned regarding Dr. Leone's concerns with Correctional Officer Jones' possible misconduct. The inmates interViewed regarding this issue indicated that Officer Jones would yell at them . and that they felt threatened by him. They also indicated they kept their distance froin this officer and were happy to see him moved. The review team found that · Officer Jones was a relief officer and had not worked with this population of inmates: The unit officers and counselor that the review team met with indicated they spoke to the officer and to the supervising staff regarding the specific needs of the inmates and the overall procedures within the housing unit to avoid any further. issues based on the inmates' complaints. The issue resolved itself .because Officer Jones was only there as vacation relief. However, the review . ·. team spoke to the management team at the institution and advised them of the importance of ensuring the right staff is assigned to the DD housing units to the degree possible.
.
The review team did not find any documentation related to staff complaints or any specific inmate appeals that addressed misconduct as it pertained to this officer. The management at CRC had also followed up on this issue prior to the review tea'nl's arrival based on a review of Dr. Leone's report and preliminary information. provided to them by Dr. Leone. The CRCs management did not find any violations of policy and indicated that the inmates they interviewed felt that Officer Jones was more strict and harsh with them than ·the regular staff, specifically Officer Gonzalez. They al~o confirmed that they had not received any appeals or staff complaints filed on the officer. As a result, the managerial staff ensured DDP on-the-job training was provided to all staff assigned to work with the DDP inmates and toured the specified areas. Correctional Officer Jones was :not available at the time of the review; however, the management team was . once again: made aware of the concerns and assured the review team that they had already met with Officer Jones and addressed the issues. The management at CRC ensured the team Officer Jones would be provided additional training .

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The review team advised the inmates they spoke with to communicate any

issues they have with any staff to the regular unit staff, the Sergeant, and/or their

counselor. The team also ensured the· inmates were aware of their right to file a

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CDCR-602, a CDCR-1824, and/or citizens complaint, in the event they believe a

specific staff member is treating them unfairly. The review team showed the

inmates where they could obtain a CDCR-602 and a CDCR-1824 within their

housing unit. Overall, with respect to this particular situation, the team concludes

that this officer was not familiar with the day to day operation of a designated

·• "DO" housing unit, and that the inmates' interpreted Officer Jones' approach as

threatening. The review team requested CRCs management team and housing

unit staff conduct on the job training to Officer Jones. The review team will follow

up with CRC m(;lnagement to ensure Officer Jones received additional training.

Dr. Leone's report addressed concerns with the behavior of Officers Salazar,

Conchas, Garcia, and Ricardo. The review team spoke to approximately 10

inmates living in housing Unit 1 and 2 regarding staff interactions, their

adjustment· to the DO program; and whether or not they were receiving the

services they were required to receive. Overall, the inmates stated most staff are

helpful but sometimes third watch staff do not help them. Inmate 9 said at times

he felt that staff made fun of him but that it was not all the time and not all staff.

He was advised to speak to the Sergeant when this happened or to share it with

his counselo~ or other staff so that it could be addressed. He was not able to

provide .the team with specific names. Inmate 8 alleged he was not being

. provided assistance when writing letters. After further discussion, it was

apparent the. inmate had been provided assistance with writing letters and that he

was not sure who had been helping him as he thought it was a member of the

Prison Law Office when in fact it was the institution's librarian. The inmate

expressed concern that he had not received assistance in a while. The team

addressed this issue with the inmate's counselor and the management team at

the institution. The review team spoke to the officers in the unit at the time of

their review,:,. Officer Salazar was on duty, therefore the team spoke to her

rega'rdin'g. the .treatment of DO inmates, ensuring she understood ' her

responsibilities, their needs, and that she had received training on the CRP. The

team spoke to other staff working in the. unit and re-emphasized their

responsibilities. The counselor for the unit· was also interviewed and was

informed of the inmates' concerns and asked to address the issues with inmates

needing assistance in writing letters and wanting to see their counselor. The

. team spoke to the Warden and requested staff observe the units during third

watch, and that she review the specific concerns addressed in the report and that

staff be retrained if necessary. :The specific issues addressed by the inmates,

such as needing assistance writing letters or not being able to see their

.counselors, were shared with the Warden. The team did not find any issues with

the documentation in the central files. and/or the RVRs that were reviewed

including inmate 21 whose noted concerns by Dr. Leone included falsification of

the RVR. The team will be conducting a follow up review during the third watch

at CMF. .

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Case3:96-cv-01486-CRB Document489-1 Filed07/23/10 Page11 of 15
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Renal Diet:
Dr. Leone's report mentioned that inmates 44 and 48 claimed they had been . served veal meatballs, every meal, for an excessive period of time. The report . also noted that several inmates' pictures were posted in the dining hall. The team looked into these claims and discovered the following:

.The review team interviewed inmates 44 and 48. The team learned inmate 48 . . •.::

filed a CDCR-1824, pertaining to his renal diet. The team discussed this issue ._· ·. ·'

with the management team at CRC and found that the inmate filed an appeal ·

based on not receiving a nutritional diet, requesting fruit and desert, and for being

harassed... The inmate referenced receiving "meatballs" for every meal but did

not actually appeal that issue. The appeal is currently being processed at the

Director's Level of Review. The management team researched the inmates'

claim that he was receiving the "veal meatballs" for every meal. They did find

that the dinner meal was served every meal for approximately two weeks. The

management at CRC initiated a review regarding this practice. Staff found that

the problem arose as a result of having an unbalanced inventory of frozen renal

diet meals and that at the time of their review the problem had been corrected.

The management team also confirmed that, if an inmate objects to the renal diet

meal that is offered, the inmate has the option to go to the dining hall and receive

the :daily meal offered to all inmates. In fact, the CRC staff implemented two

procedures· as a result of this issue. The first procedure instructs the inmate who

objects to the renal diet meal that is offered to go to the medical department and

sign a document indicating their refusal to accept that meal. The team was

advised that no inmate had been adversely affected. The culinary staff

implemented a system that assures a variety of meals are issued to the medical

department and the medical staff were advised to inform the culinary staff of any

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of oe·ath a 'Family Member:

Dr. Leone indicated that an inmate identified as number 111 did not hear about

his sister's death until two weeks after she was buried. Dr. Leone's report also

noted the inmate's wife called the prison to let him know but no one passed the

message on to him. The inmate told the review team that his counselor took the

catl .from his 'wife but failed to provide the information to him in a timely manneL

However, the inmate spoke well of his counselor and claimed he understood that
ttie .counselor' simply forgot' to deliver the message but has: since apologized.

The inmate indicated he understood that this type of oversight can happen when

a person is busy and that his counselor made an unintentional mistake by not

delivering the information. The review team spoke to the counselor's supervisor

regarding the importance of relaying this information to the inmate population.

The inmate's counselor was not available; therefore, the review team requested

that the' supervisor share the information with all counseling staff to include the

inmate's counselor. The inmate was also advised of his right to file an inmate

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appeal or a citizen's complaint if he feels he is being adversely affected by this or any future incident.

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Seriously Disturbed Inmate in Disciplinary Segregation:

. Dr. Leone's report noted concerns regarding inmate 154, who was housed at

WSP at the time of the review, but transferred in February of 2010 to California

State Prison, Sacramento (CSP-SAC). It should be noted that the concerns

highlighted in Dr. Leone's report related to the inmate's mental health condition;

. there were: no concerns directly related to his DD status. Appropriately for his

·. mental health status, the inmate was approved for intermediate care facility

· placement; however, at the time he met with Dr. Leone, the inmate had not yet

been accepted by the Department of Mental Health. The inmate was also

endorsed to CSP-SAC based on his SHU Term. Despite the fact that these were

primarily mental health concerns rather than DDP issues, the review team

addressed these concerns with the staff at WSP as that was the location where

the issues initially arose. The review team attempted to meet with the inmate

and conduct a file review; however, they found that the inmate discharged and is

n() longer under the jurisdiction of the CDCR.

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. Talking to the Court's. Expert:

Dr. Leone's report indicated that inmates 116, 119, 127, 132, and 138 reported

they were told Dr. Leone would be visiting the prison and that they were "directed

to say positive things about the DD Program and to be positive about the DDP."

Inmate 138 reported that he and other inmates were told "if you want no

harassment, ease up on us when the visitors come." The review met with

inmates 119,121, 127, 132, 133, 134, and 137, at SATF. Each inmate was
asked if he{ had :ever been advised not to talk to about the DD program with

anybody or court experts. All but one inmate said "no." Inmate 127 stated my

·.;

counselor said "make us look good, you know we treat you right." The inmate

was specifically asked if the comment was made in a threatening manner and he

said "no" my counselor advised me that someone from the courts was coming

out to meet with DD inmates and he jokingly made the statement. The inmate

added the fact that it was a true statement that the counselors, the DD officers,

.and the hoysing unit staff do a lot for the DD inmate population. .

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Other Findings:

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The review team identified universal .problems at each institution such as

documentation. The team found that staff were prompting the DD inmates and

taking appropriate action but lacked in the area of documenting their actions.

Every staff member the team spoke with were reminded of the importance of

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docum~nting as much they possibly can as it may appear the job does not get

· . ·done· if it is not documented. Additionally, the review team found staff stability

within the housing units was vital. The management team was advised to ensure

they maintain stability to the degree possible.

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.. The team found there were very few issues with the inmates' canteen, packages ·. and property:. As mentioned earlier in this report, most issues seemed to be for a
specific instance and not ongoing. The review team confirmed that when needed the DD inmates were provided staff escorts for the purpose of canteen and that
many of the officers routinely checked on the DO inmates to ensure other
inmates were not taking their canteen. A number of inmates indicated they did
not have any problems and did not require an escort.

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The DO inmates enrolled in the education programs spoke positively about their

programs, accommodations, assistance and the support provided to them by

· .staff.

Almost all of the inmates interviewed at LAC, indicated they relied heavily on the DDP officers to assist them in completing documents such as CDCR-602's, CDCR-1824's and various other documents. They also indicated they relied on the DDP officers to provide them prompts, for programs and services. Inmate 74 claimed. the librarian was in the process of providing him with assistance regarding his court case. He further claimed he had an understanding of the ·appeal process but has not had any issues that required he initiate an appeal. He further expressed an interest to remain at LAC since he has been at the institution for a period of two years and his needs are being met. An interview with inmate 65, named in the Leone report spoke highly of the DDP Officers Horn, Rogers and Librarian Stewart. He claims he relies on them on a daily . basis to provide him with the assistance he needs. Inmate 90 has severe speech impairment; along with difficulty processing information that is shared during his classificatio'n committee. He adds that because of his inability to process information· and his speech impairment, he is sometimes embarrassed to ask questions during committee. Therefore, he relies on DDP Officer Horn to explain the information ·to him. This inmate was asked if he was satisfied with the assistance he received from Officer Horn during committee and he claimed if it were not for DDP Officer Horn along with the other DDP officers providing him with assist~nce he would have a difficult time understanding complex issues and daily routines~ .•.
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Dr. Leone'~ concerns with multiple examples of h~mdwriting in some of th~
central files were reviewed and it was found that there were multiple handwriting samples in some of the central files and that it was due to correctional officers and GP inmates providing DO inmates assistance when completing documents.

ln'mates. 8, 9,: 16,' 20, 21, 23, 24, 25, 27 and 28, at CMF did not have major issues · with the DDP. ;: One inmate' indicated third watch ·staff did not provide him with the
proper' assistance. The review team shared this information with the institution . management and requested they follow up on this issue with third watch staff. The review team will also conduct a follow up review on this issue. The team

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spoke to staff and emphasized their daily responsibilities with the DD inmate population and requested management address the issue with third watch staff.
At RJD, the review team spoke to inmates 102,104,108,109,110 and 111 and found that there were no major issues with the inmates. The only specific concern was inmate 109, who was single celled requesting to be moved to another yard to be with his friends. Inmate 109 claimed he did not have security ·concerns that prevented him from moving and being double celled. Staff indicated they felt he would be a security risk if moved and that his single cell housing was appropriate. A review of the central file confirmed staff's position.

V. Conclusion: This review concluded that most inmates in the prisons· visited were receiving accommodations and support from custody staff consistent with the Clark Remedial Plan (CRP); Most of the inmates .that were interviewed had positive remarks with regard to the DDP, specific staff members, and how they were being treated. The review team's visits indicated the issues were not as severe as noted in Dr. Leone's report.

Overall staff found that the vast majority of custody staff at the specific

institutions had been trained in the Clark Remedial Plan and the majority was

knowledgeable in the DD inmate's daily needs and their requirements as it

·:a relates· to the DD inmates. The team found that the institutions that had DDP
officers'· ran better program and there were fewer complaints in those

institutions.· However, it was also notable that the custody staff depended on the

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DDP officers to provide almost all the services to the DD inmates; therefore, the

review team reminded all staff, including the managers of the units that it is the

responsibility of every staff member that interacts with the Clark member inmates

.to comply with the requirements of the remedial plan.

Dr..Leone provided four recommendations at the end of his report. His first

recommendation was that the Department respond to systematic problems as

identified in his report. There were only two systematic problems identified. The

first one was staff were not diligent in documenting the assistance/prompting they

provided the DD population. The CDCRs management team recognizes that

with the on-going activities and workload of the staff this request is difficult but

necessary; therefore, every institution visited was reminded of the importance of

I

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training staff'to document their actions. In addition, the review team found that

the CRC had established a log that could be standardized for all institutions.

· This log is being shared Office of Court Compliance to ensure it is complete and

appropriate to share with every institution. The second problem identified was

with staff that had never worked with the DD population. They appeared not to

be as familiar with the DD inmate's needs. The management teams at all of the ·

institutions visited were advised to ensure they reemphasize how important it is

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that every staff member be familiar with their responsibility when it comes to dealing with all of the inmate population and their specific needs.
The second recommendation was that the Department provide assurances that .when inmates' names are identified there be no retaliation. The Deputy Director conducted management meetings at each institution visited and expressed Dr. Leone's concerns with retaliation and his and the Executive staff's expectations that there is no tolerance for retaliation. The Department's directorship will continue to share this message with staff as they visit designated and nondesignate DO institutions. In addition, the Deputy Director addressed this issue · with all wardens during a quarterly wardens meeting.
Dr. Leone's third recommendation was that the CDCR, needs to thoroughly _:, ·: review the operation of the DDP program. The Department's management team
is committed to continue to communicate the importance of complying with the remedial plan and that a complete oversight of the program is constantly conducted by each Warden.
The last recommendation made by Dr. Leone was that the DPP needs to be evaluated on a regular basis to identify potential problems and ensure that ·····inmates with .DO receive the accommodations, protections, and support as epvision'ed by the CRP. ,The Department's Office of Court Compliance is in the process of developing a tool that ensures compliance with the Clark Remedial Pian and addresses some of Dr. Leone's concerns. ·

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 Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page2 of 30

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA EUREKA DIVISION

DERRICK CLARK et al., Plaintiff,

No. C-1486 CRB (NJV)

STATE OF CALIFORNIA et al., Defendants

Action filed: April 22, 1996

1 2 3 4 5
6 7 8
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On the Status of Inmates with Developmental Disabilities In the California Department of Corrections and Rehabilitation
Peter E. Leone, Ph.D., Expert to the Court, Clark v. California February 15, 2010
1. Introduction
Individuals with developmental disabilities (DD) represent an estimated 2% of the prison population in the United States.1 Developmental disabilities include mental retardation, epilepsy, and autism spectrum disorder. The settlement of Clark v. California established the Clark Remedial Program or the CRP also known variously as the DD Program or the DDP. The Clark Remedial Plan developed by the CDCR, defines developmental disability as
... a disability that originates before an individual attains the age of 18, continues-or can be expected to continue-indefinitely, and constitutes a substantial handicap for that individual. It includes mental retardation, cerebral palsy, epilepsy, and autism. It also includes disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for mentally retarded individuals, but does not include other disabling conditions that are solely physical in nature.z

1 See J. H. Noble & R.W. Conoly, Toward an epidemiology of relevant attributes. In R.W. Conoly & G.N. Boutilet

(Eds.), The Criminal Justice System and Mental Retardation: Defendants and Victims, pp. 17-53, 1992; see J. Jones,

Persons with intellectual disabilities in the criminal justice system, International Journal of Offender Therapy and

Comparative Criminology, 51(6), 723-733, 2007; Jones in a more recent review of individuals with intellectual

disabilities in the criminal justice system cited 2% as a low-end estimate of the prevalence of offenders with

intellectual disabilities;

·

2 Clark Remedial Plan, CDCR, Amended March 1, 2002, p. 1.

I1 On the status of inmates with DD in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page3 of 30
1 While many inmates with DO in the CDCR exhibit below average intellectual functioning and are 2 considered to have intellectual disabilities3, the Clark Remedial Plan identifies inmates eligible 3 for the DO Program as having low cognitive functioning as well as deficits in adaptive 4 functioning in at least two of the following areas: communication, self-care, social and 5 interpersonal skills, use of resources, functional academic skills, work, leisure, health, and 6 safety.4 While some inmates with DO exhibit characteristics and behaviors that make them 7 readily identifiable as individuals who are DO Program eligible, others exhibit behavior that 8 challenge popular beliefs about the nature of developmental disabilities. For example, inmates 9 in the DDP with cerebral palsy, epilepsy, or autism spectrum disorder, may be able to read and 10 write and socialize with others. However, they may also exhibit significant deficits in self-care, 11 health and safety, and be highly vulnerable to victimization by other inmates. My experience 12 has been that the typical inmate in the DDP is a non-reader who needs prompts for some 13 activities of daily living and has an incomplete understanding of prison culture; a significant 14 number of inmates in the DDP are vulnerable to predatory behavior of other inmates. The 15 purpose of the DDP is to provide accommodations, protections, and support to inmates 16 screened into the program. 17 18 This report was developed in response to a request from the Prison Law Office (PLO) to review 19 the status of inmates with DO in several California Department of Corrections and 20 Rehabilitation (CDCR) facilities. With a·pproval of the Court, I visited seven CDCR prisons during 21 the past four months including California Medical Facility (CMF), Duel Vocational Institution 22 (DVI), California State Prison- Los Angeles (LAC), Richard J. Donovan State Prison (RJD), 23 Correctional Rehabilitation Center (CRC), California State Prison- Substance Abuse Treatment 24 Facility (SATF), and Wasco State Prison (WSP). 25 26 2. Executive Summary 27 28 My review of inmates with developmental disabilities in seven CDCR facilities over the past four 29 months indicated that there is a pattern of indifference to the needs of these inmates with 30 some exceptions. Clearly some inmates on particular yards or housing units in the prisons I 31 visited were receiving accommodations and support from correctional officers or fellow 32 inmates, were not being victimized, and felt positively about how they were being treated. 33 However, this group was a minority among the 1525 inmates classified with DO whom I 34 interviewed. In an attempt to quantify how inmates with DO were doing at the seven prisons I 35 visited, I classified each inmate's well being on a three point scale following my interviews and a 36 review of my notes. Those inmates who appeared to being doing well, who had no major 37 complaints about their treatment or their ability to receive accommodations and supports, and 38 who did not report being victimized, I rated "1." A second group of inmates who reported
3 Previously referred to as "mental retardation" the American Association on Intellectual and Developmental Disabilities uses the term "intellectual disability" to refer to disabling conditions characterized by limitations in both intellectual functioning and adaptive behavior. 4 Clark Remedial Plan, CDCR, Amended March 1, 2002. 5 I also interviewed two inmates at CRC who were not classified as DO in an attempt to verify problems reported by inmates with DO about a renal diet.
2 ~ On the status of inmates with DO in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page4 of 30

1 specific problems were rated "2." A third group of inmates with very serious and/or

2 longstanding unresolved problems were rated "3." My ratings of inmate status resulted in 59

3 or 39% being classified as "1" (minimal problems, adequate adjustment}, 43 or 28% being

4 classified as "2" (problems), and 49 or 32% classified as "3" (chronic or serious problems). Some

5 of the problems experienced by inmates in this last group I brought to the attention of

6 correctional staff or DDP administrative or clinical staff during the time of my visit or shortly 7 afterwards.6 Some serious problems were resolved during my visit in part through questions I 8 asked of correctional staff about the status of particular inmates.7 During my visits to the seven

9 facilities, I also interviewed 29 CDRC staff including correctional officers (CO), classification

10 counselors, associate wardens, psychologists, and several others.

11

12 My interviews with inmates and staff and a review of documents revealed the following:

13

14

• A large number of inmates reported that they were pressured regularly to surrender

15

canteen items or portions of packages that were sent to them from family members. A

16

number of inmates had their property lost or taken when they were placed into

17

administrative segregation or when they were transferred from one CDCR institution to

18

another.

19

• A number of inmates were dirty and unkempt suggesting that COs were not prompting

20

them to shower and change clothes regularly. Several inmates with DO said they were

21

afraid to shower for fear of being assaulted by other inmates.

22

• A number of inmates reported that they were fearful of other inmates as well as some

, 23

correctional officers.

24

• Administrative segregation (also referred to as ad-seg or ASU) appeared to have a

25

deleterious effect on many inmates with DO placed there. Some inmates were placed in

26

ad-seg for rules violations, while others were placed there for their own protection or

27

because there were an insufficient number of beds on other units when inmates were

28

transferred to a particular facility. While on ad-seg. inmates reported that they rarely

29

received any support services from COs and that they were locked down 23 hours each

30

day, seven days a week.

31

• Some inmates with DO received a number of Rules Violation Reports (RVRs or llSs) for

32

behavior such as being out of bounds, failure to obey a direct order, or fighting. While

33

inmates with DO are capable of violating CDCR rules and threatening the order in

34

particular institutions, some descriptions of rules violations suggested that COs were not

35

familiar with the behavior or needs of the inmates with DO on their housing unit.8

36

• Many inmates paid regularly, other inmates with packets of soup or coffee for services

37

such as reading or writing letters, writing appeals, or writing health call slips. Other

38

inmates reported that they traded portions of their meals in order to receive services

6 37 cried during his interview with me. He had been in a fight the previous week with another inmate on his unit and felt pressured to sign a statement saying that he and this other inmate were not enemies. 37 reported that he is regularly forced to give up his canteen and that he doesn't know how to read or write or file an appeal. 7 For example, inmate 110 (RJD) had his name misspelled on his official CDCR identification card. 8 The Clark Remedial Plan requires that a 128C-2 Chrono describing the adaptive supports needed each inmate with DDP in a particular housing unit be available to COs on that unit.
i3 On the status of inmates with DD in the CDCR

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1

from literate inmates. Some inmates said they asked inmates to do this because they

2

trusted them and did not trust the correctional officers. Others indicated that the

3

correctional officers refused to help them or said they would help them and then never

4

had time to do so.

5

• Inmates at two of the facilities I visited that had reception centers (DVI and RJD) spent a

6

great deal of time locked down. In both facilities, inmates with DO in reception reported

7

that they had access to the yard only one time each week.

8

• A large number of inmates at CRC and LAC reported that they had to pay for haircuts

9

with food and other canteen items. Inmate barbers in both facilities are paid by the

10

CDCR to give haircuts to inmates.

11

• A few correctional officers, both designated DO officers and others whom I interviewed,

12

appeared to have a good understanding of their responsibility toward inmates with DO.

13

A number of other officers according to inmates, regularly made fun of their inability to

14

read or write, refused to assist them and failed to notify designated DO officers, or

15

threatened them. A large number of inmates said they feared retaliation from

16

correctional officers and tried to avoid specific officers.

17

• For the most part, inmates enrolled in the education programs spoke positively about

18

the experience.

19

• Every institution I visited had several inmates with very serious problems that were not

20

being addressed. These problems ranged from having property go missing for months

21

at a time only to reappear when I pressed correctional staff to find it, to instances where

22

inmates were chronically threatened and beaten up often when they attempted to

23

prevent their property from being taken. Several inmates reported that they had been

24

raped or that another inmate had attempted to rape them.

25

• A review of training logs at two facilities showed that correctional officers were

26

receiving required training about developmental disabilities. In spite of training, the

27

problems discussed in this report suggest that it is either inadequate or that there is

28

insufficient attention paid by administrative staff to the safety and protection of

29

inmates with DO.

30 31 The breadth and severity of problems described in this report suggest that with some

32 exceptions, inmates with DO do not receive the protections and supports as described in the

33 Clark Remedial Plan. Further, the estimated 1200 to 1300 inmates (less than 1% of the total

34 prison population) with DO identified by the CDCR appears to be considerably lower than the

35 most conservative estimate of the prevalence of developmental disabilities in adult corrections.

36 Among other things, the CDCR needs to carefully review the operation of the DDP including 37 housing, training and supervision of staff, and program evaluation.

38
39 3. Qualification of Expert to the Court

40

41 For more than 25 years I have visited juvenile and adult correctional facilities in the United

42 States in a number of different roles. I have served the Courts as an expert, monitor, master,

43 and receiver. I have worked with plaintiffs' and defendant's attorneys in class actions, with the

4 ~ On the status of inmates with DD in the CDCR

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1 U.S. Department of Justice's Civil Rights Division, and have researched education programs and 2 the prevalence and treatment of individuals with developmental and other disabilities. While 3 most of my work has been in juvenile corrections, I have worked in adult corrections in 4 Maryland, New York, Pennsylvania, Illinois, North Carolina, New Hampshire, Florida, 5 Connecticut, and Texas in addition to California. A copy of my CV is appended to this report.
6
7
8 4. Methods
9 10 In order to assess the status of inmates with developmental disabilities in the CDCR, I 11 interviewed inmates and staff and reviewed inmates' files and documents related to the DDP. A 12 small number of the inmates I interviewed were suggested to me by the PLO or the Office of 13 the Attorney General, although the majority of the approximately 25 inmates whose names 14 were suggested to me came from the PLO. Of that number, one inmate refused to talk to me 15 and four or five were not at the prison at the time of my visit. At each prison, I interviewed 16 between 14 and 28 inmates. In assessing the status of inmates with DO, I was primarily 17 interested in determining for individual inmates whether they were safe and were receiving the 18 supports envisioned in the Clark Remedial Plan and the specific accommodations identified in 19 their 128C-2 Chronos.9 20 21 I rated the status or well being of each inmate I interviewed on a three point scale. Those 22 inmates who appeared to being doing well, who ha~ no major complaints about their 23 treatment or their ability to receive accommodations and supports, and who did not report 24 being victimized, I rated 111.'' A second group of inmates who reported specific problems were 25 rated 112." A third group of inmates with very serious and/or longstanding unresolved problems 26 were rated 113." In rating inmate status of well being, I focused on problems associated with 27 inmates' safety, accommodations and support rather than general complaints about being 28 locked up.10 In general, I found older inmates and those who had been in the system longer 29 fared better than younger inmates. Also, inmates who were more articulate appeared to 30 experience more difficulties with staff than inmates who were more docile and interacted less 31 frequently with staff.
32
33 The number of inmates I interviewed, the consistency of problems within institutions and 34 across the seven prisons I visited confirmed some of the problems I identified. In several 35 instances, CDCR staff verified problems described by inmates. My review of file data primarily 36 served to document the DO status of inmates and in some cases, provided documentation of 37 specific problems.
38

9 Each inmate found eligible for the DDP has a 128C-2 describing each inmates DD classification and the

accommodations needed. According to the Clark Remedial Plan, a copy of the 128C-2 Chrono is to be kept on each

inmate's housing unit to assist the COs in providing appropriate support.

10 I have interviewed hundreds of inmates in adult corrections in a number of states in addition to

California during the past 20 years; most inmates, with few exceptions, are not happy about being

)

incarcerated.

I5 On the status of inmates with DD in the CDCR

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1 5. Findings

2

3 This section begins with a brief discussion of inmates' eligibility for the DDP by correctional staff

4 and continues with a substantive issues and problems that inmates described during their

5 interviews. Not all issues or problems described by the 152 inmates I interviewed are described

6 or discussed below.

7

8

9

5.1. Eligibility of lnmates11

10

11 CO Alvardo at RJD questioned the eligibility of some inmates during her interview. CC Farrar at

12 DVI stated during an interview that clinicians at DVI believed that 54, a 30 year-old inmate with

13 a speech disorder and a history of learning problems who lived with his grandmother prior to

14 his incarceration, was not developmentally disabled. Notes from clinicians suggest that he is

15 'faking it' in part because of what 54 said to the clinician and because, according to the

16 clinician, "1/P's C file has multiple examples of his handwriting and other documentation which 17 indicated that 1/P was of normal cognitive functioning."12 Among some staff, there appears to

18 be an erroneous belief that inmates who can read and write are not developmentally disabled.

19 Individuals with DO include those with moderate to severe intellectual deficits as well as those

20 with epilepsy and autism spectrum disorder who may be able to read and write.

21

22

5.2. Property

23

24 43 (CRC) lives on Unit 202 in dormitory housing with more than 90 other inmates. He reported

25 that he is regularly pressured to give up his canteen. He doesn't know how to operate the

26 combination on his locker but his bunkie helps him with his combination. He indicated that his

27 help mostly comes from other inmates. He received CD player 7/10/09 from his mother. [Per

28 Title 15, all inmate property must have inmate's CDCR #engraved on it.] Interviewed on

29 1/4/10, 43, who does not read or write, indicated that he was unable to get his radio CD player 30 engraved and was afraid it would be stolen from him the way that much of his canteen is.13 He

31 indicated that most of the time when he asks for help from the COs they are too busy to help

32 him. 43 attends school M-F in the afternoons and reports that school is going well.

33

34 41 (CRC) lives on Unit 202 in dormitory housing. He has vision impairment in addition to his

35 developmental disability. He arrived at CRC from CMC in August 2009. He reported that he

36 pays other inmates $2 to have them write letters home. Like other inmates who reported

37 having to pay other inmates read or write for them, payment is typically packets of soup and

11 Each inmate mentioned in this report was assigned a unique number to provide him with anonymity. During interviews, a number of inmates expressed fear of retaliation because they were talking to me about the problems they were experiencing. Further, at one facility, inmates told me that they were prepped for my visit; that is, they were told to say positive things about the DDP and how they were being treated. See section 5.11.5 for discussion of this issue. 12 See E. Naus, Psy.D., Mental Health Services Chrono, note, 1/1/09. 13 I asked 43 to show me his radio CD player. My examination showed no CDCR #son it.
I5 On the status of inmates with DD in the CDCR

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1 coffee. He reported that he is regularly pressured to give up his canteen by inmates he knows 2 as well as those he doesn't know. When asked what he does when his goods are stolen, he 3 replied that he is afraid to make an issue out of it. When 41 moved from CMC to CRC in August 4 of 2009, he lost nearly all of his personal possessions including a pair of tennis shoes and a large 5 food package that he had recently received. I called 41's mother, Mrs. LC on January 6, 2010 6 and asked about packages she sends to her son. She reported that she sends a package each 7 quarter through a CDCR approved vendor, Union Supply Direct. She was aware of and upset 8 about the fact that new tennis shoes and a large package of food and toiletries she sent her son 9 at CMC were missing when he moved to CRC. She also reported that his glasses had been 10 stolen. She indicated that she talked to CC1 Serna at CRC about her son's missing possessions. 11 She reported that Serna said that this is to be expected when you live among thieves. 41 12 reported that he filed a 602 with help from CO Pearson in August 2009. He also talked to a 13 sergeant at CMC who told him his goods would be sent. When I interviewed 41 on 1/4/10 his 14 goods had not been returned or recovered. 15 16 42 (CRC} reported that he is forced to give up his canteen by people he doesn't know. Similarly, 17 109 (RJD}, a 24 year-old in prison for the first time, reported that he has his canteen taken 18 regularly on the yard. As he described the situatlon, his unit (Yard 2 bldg. 9} goes to canteen 19 first thing on those days when they do have canteen. After receiving his goods from canteen, he 20 is left on the yard with other inmates for more than an hour during which time has been 21 pr~ssured to give up his possessions. He stated that COs laughed at him when he asked them if 22 he could have an escort back to his cell with his canteen items. 109 reported that he had not , 23 showered for more than a week at the time I interviewed him. He stated that every time he 24 showers, his "stuff'' gets taken from his cell. A 128C-2 chrono and the CASE evaluation 25 completed on 109 at RJD in June, 2009, indicate that he has victimization issues and that his 26 canteen and personal property should be monitored to prevent loss to other inmates. When I 27 interviewed 109 nearly 6 months later, he w·as not receiving the protection and support that he 28 should be receiving as an inmate with a 002 classification. 54 (DVI} reported giving canteen 29 items to other inmates but insisted that he was not being taken a~vantage of. He also said that 30 inmates to whom he gives "stuff'' always leave before they pay him back. 59 (DVI} reported 31 that he has received packages from home but he does not get to keep most of what is sent to 32 him. In response to my questions, he said that he is forced to surrender his canteen items to 33 inmates he doesn't know. When I asked him about how many inmates took his canteen, he 34 said more than 5 but less than 10 individuals. 35 36 57 (DVI}, a parole violator who had spent more than 30 days at DVI.at the time I interviewed 37 him, did not know his release date, had not talked a corrections counselor since returning to 38 prison, and his legal paperwork was missing. 58 (DVI} reported he is picked on by other inmates 39 and that other inmates take his food; "it happens all the time." 40 41 106 (RJD} was concerned about reprisals after talking to me. He said that although he sees DO 42 staff about every two weeks, he has canteen taken by other inmates. 104 (RJD} reported that 43 he washes his clothes himself in his cell because he is afraid he will not get them back. 111 44 (RJD} reported that he has had food taken from him in the mess hall. The morning I interviewed
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1 him, 111 reported that he gave some of his breakfast away to an inmate in the mess hall that 2 he did not know. 3 4 84 (LAC) reported that he has spent the past nine years at LAC. During an interview in a cage on 5 A4, an administrative segregation unit where he has spent the past five months, he reported 6 that he has been pressured to give up his canteen in the past. He has had soup and coffee taken
7 from him and "I don't get them back." He said that it is hard to talk to the COs about this. 84
8 did not know what a 602 (an inmate appeal) was.
9 73 (LAC) reported that he has had his property taken by other inmates as he returned from 10 canteen on 02. Recently transferred to A3, 73 opined that this would not happen to him in his 11 new housing unit because he has friends there. 76 (LAC) reported that he has had things
12 "extorted" from him. Recently transferred from CMC, 76 had not received his property at the
13 time I interviewed him.
14 85 (LAC) indicated that the DDP officers and other inmates help him. He indicated that he had 15 his commissary taken two months ago. 88 has been at LAC for about five years on A and D 16 Yards. He has had his commissary taken but not in the past year. 121 (SATF) reported being 17 treated well at SATF. He was not fearful of other inmates and stated that DDP COs assisted him 18 in completing his paperwork. However, during an interview the following day, CO Costello, the 19 DO officer assigned to 121's living unit, described a recent event in which 121 had lost more 20 than $156 of his canteen draw to other inmates within a week's time. 134 (SATF) reported that 21 he is pressured to give up his canteen to those he doesn't know as well as to his friends. 136 22 (SATF) said that he is pressured to give up his canteen. "I didn't tell police." 137 (SATF) said that 23 he has lost personal items including a TV.
24 151 (WSP) left WSP on 11/9 for Court and was away from WSP until 11/23. When I interviewed 25 him on 1/11/10, he reported that after returning from Court he was not able to get his 26 possessions back. His bowls, snacks, letters, and family contact information were missing. 151, 27 who needs help with reading and writing, did not have the addresses and phone numbers of his 28 family members memorized and he had no way of getting in touch with his family after he 29 returned from Court on 11/23/09. I talked with COs in R&R (Receiving and Release) about the 30 missing items on the first day of my visit; they had no record of 151's property. On the second 31 day of my visit when I returned to R&R, a bag with 151's missing items had been found.14

14 Litigation Coordinator at WSP, Barrios was with me when 1S1's possessions were located in R&R on 1/12/10.

)

8 ~ On the status of inmates with DO in the CDCR

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1 During my interview 151 told me that CO Vapper15 told him that he made a mistake in filing a 2 602 (an inmate appeal) and that R&R would lose his property.16

3 21 (CMF) reported that in April 2009 after being placed in the ASU (ad-seg) the locker in his 4 dorm room was broken into and that he lost most of. his possessions including his copies of 5 CDCR paperwork, legal work, clothes, and other personal possessions. 21 filed a claim with the 6 California Victims Compensation and Government daims Board (VCGCB) on 8/5/09 for his 7 losses. The VCGCB in correspondence dated 8/18/09, authorized the CDCR to "settle and pay 8 or reject" his claim. In correspondence dated 8/26/09 the CDCR classified 21's claim as 9 "Invalid" because of "No/Insufficient Supporting Documentation." The VCGCB correspondence 10 of 8/18/09 indicated that 21 could file suit if he is not satisfied with CDCR's response to his 11 claim, he could file suit within six months in an "appropriate court of law." 21 tried to get 12 assistance from Ms. Mcintee, the DDP LTA (library assistant) but was told by her that she 13 cannot help inmates file lawsuits against the State.

14 Several correctional officers I interviewed acknowledged that inmates had their possessions 15 taken by other inmates. CO Alvarado (RJD) said that sometimes she catches inmates in the act 16 of taking others possessions and that when this happens she tells the sergeant. She said that 17 when she asks inmates if they have had things taken by others they often do not want to 18 acknowledge that this has occurred. CO Costello (SATF) described how 121 (SATF) had more 19 than $150 worth of canteen items stolen by other inmates within a week's time. 17

20

5.3. Activities of Daily Living

21 Several inmates I interviewed had not bathed in some time; others were disheveled and dirty 22 and clearly needed assistance in meeting their daily needs. 55 (DVI) smelled and had not 23 showered recently when I interviewed him. He complained about having glasses that he 24 received from another inmate that were the wrong prescription; "things are a little blurry." 25 With the help of his cell mate, he had filled out a request to see "the eye doctor." 86 (LAC) 26 reported that he cannot go to the yard every day if he wants to shower. 154 at WSP was filthy 27 and smelled when I interviewed him.

28

5.4. Safety

15 This is a phonetic spelling of this COs name. 16 Staff in R&R said that all an inmate had to do was request to have his material sent to his unit after returning

from Court. Clearly 151 was not able to get the COs on his unit to find or return his items until the time of my visit,

more than six weeks after he had returned to WSP from Court.

)

17 During his interview with me on 1/6/10, 121 reported that everything was going well and did not mention that his personal possessions had been stolen by other inmates.

9 ~ On the status of inmates with DO in the CDCR

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1 A number of inmates described situations in which fights ensued following other inmates taking 2 their possessions or being raped by other inmates. Some of these incidents resulted in the 3 filing of RVRs (Rules Violation Reports or 115s}; in other instances inmates reported that they 4 were afraid to file a 602 because of retaliation or because they were unable to do so and were 5 not able to get assistance from a CO to help them file the necessary paperwork. 136 (SATF} said 6 that he was recently choked by another inmate at SATF who wanted to have sex. He also 7 stated that he was raped by gang members at another COCR prison three years ago.

8 108 (RJD} reported being raped in 2006 and 2008 while at LAC. 62 (OVI} had been at OVI 9 approximately 9 months at the time I interviewed him. He reported that he has had staff 10 assistance after receiving a 115. However, he also reported that although he told staff that he 11 was afraid of being assaulted, no one took his concerns seriously. He said that he was assaulted 12 on the yard at OVI after voicing his concerns.

13 150 (WSP) an inmate classified as 002, expressed his fear of being assaulted by other inmates 14 in the shower. During our interview he said that he "doesn't want to make trouble." After 15 talking with me for a few minutes, he asked, "Can I leave now?" 148 (WSP} described a fight 16 that ensued when another inmate on Unit 1 took some of his "stuff." He received a Rules 17 Violation Report or 115 for fighting. The write up of the incident describes the two inmates as 18 running to their bunks when the alarm sounded notifying staff that inmates were fighting. 148 19 (WSP) has scoliosis and rides in a wheelchair.

20

5.5. Administrative Segregation

21 A number of inmates were interviewed while in administrative segregation or ad-seg for 22 disciplinary infractions, others are there for their own safety or because no beds were available 23 when they were transferred to a facility. 67 (LAC) reported spending about a month on ad-seg 24 but was not able to tell me why he was in segregation when I interviewed him on A4 at LAC. 25 Similarly, 81 also in ad-seg on A4 at LAC, didn't know why he was on ad-seg or how long he had 26 been there. 76 (LAC) was placed in ad-seg when he was transferred from CMC to LAC because 27 there were no available beds. 78 (LAC) also reported spending three and a half months in 28 segregation because of a lack on beds on other units. 129 (SATF) asked to be placed in the 29 administrative segregation unit (ASU) for his own protection but claimed in an appeal that he 30 did not have access to DDP designated staff and did not receive assistance or support from 31 other correctional staff in the ASU. 18

32

5.6. Rules Violation Reports (115s)

18 See discussion of 129 under "Requests for Assistance" in a section below.
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1 87 (LAC) is classified as DD2. During his interview, he reported receiving lots of 115s for 2 "forgetting stuff and not locking up." 87 received his most recent 115 for inmate manufactured 3 alcohol (pruno) on 7/25/09. The rules violation report (RVR) indicated that he waived a staff 4 witness at his hearing and stated that the alcohol was only his and that his cellmate X had no 5 knowledge of it. While this may be the case, my impression of 87 formed during a 10-15 minute 6 interview was that of a very fearful and very cognitively limited inmate. During his interview, 87 7 passed his CDCR identification card to me no fewer than five times even though I only looked at 8 the card when we began the interview. 87 reported that his cellie who had no knowledge of the 9 pruno in their cell, files his 602s for him and only charges him a dessert or a sandwich. A 128C10 2 DDP chrono dated 6/07, confirms 87's DD2 status and indicates that he does not know how to 11 tell time and that he needs regular prompting.

12 21 (CMF) was charged on 4/20/09 with making a weapon by placing can of food in a sock for 13 use as a potential weapon. CO Salazar allegedly found a sock with a can of food in it tied off at 14 one end underneath 21's pillow on his bunk bed in one of dorm units on 1-2 at CMF. 19 15 However, the Crime/Incident report, Part Al Supplement completed by Lt. Mullen (p.2) and the 16 Crime/Incident Report completed by CO Salazar, the officer who discovered the alleged weapon 17 both described the evidence as a "grey sock." The Investigative Services Unit Evidence 18 Information Sheet completed at the time Salazar placed the sock into an evidence locker does 19 not describe the color of the sock confiscated from under 21's pillow. However, CO Mendoza 20 of the Investigative Services Unit (ISU) reported that he retrieved a "white sock" from the ISU 21 evidence locker that had been placed there by CO Salazar. Correspondence from Lt. Pulsipher 22 of ISU dated 5/6/09 indicated that this incident was referred to the Solano County District 23 Attorney's Office for prosecution on May 5, 2009. A second memorandum from Lt. Pulsipher 24 also dated 5/6/09 indicated that the incident involving 21 had been accepted for criminal 25 prosecution on May 5, 2009. A third document from the ISU dated 7/23/09and signed by Lt. 26 lee indicated that the D.A.'s Office had rejected criminal prosecution of this incident on July 23, 27 2009. I first learned of this incident during an interview with 21 on 10/14/09. At that time 21 28 reported that he did not own a pair of grey socks as described in two of the three 29 Crime/Incident Reports. Another inmate on 1-2 at CMF, 28, reported that 21 was picked on by 30 other inmates and correctional officers. My review of documents associated with this incident 31 suggest that 21 was set up by other inmates and/or CO Salazar.

32

5.7. Requests for Assistance

33 When asked about support he receives from correctional staff, 41 (CRC) said "staff gets 34 frustrated when you ask their help.'' 42 (CRC) reported that he has to pay 2-3 soups to have 35 someone write letters for him. The DO CO says she'll help but she never follows up. 40 (CRC)

19 See Incident #CMF-M02-09-04-0213.
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1 indicated that it cost him 2-3 soups [packets] to have a letter written and 1-4 soups to have a 2 letter read.
3 86 (LAC) reported DO staff told him that staff cannot help inmates write personal letters, they 4 can only provide assistance with legal matters. He indicated that he spent time in ad-seg earlier 5 last year but didn't see the DO staff very frequently. He reported being told at a hearing "you 6 don't need a DDP officer." 86, currently classified as 001, reported that he did not know why 7 his classification was changed from 002 to DOl. 86 (LAC) reported giving his canteen up for 8 haircuts and to have letters written to home. I talked to 86's sister Ms. Lon January 31, 2010 9 about her brother. She reported that she and her sisters place about $150 dollars into their 10 brother's account at LAC each year and send packages to him each quarter. She confirmed that 11 he gives his package goods and canteen items to other inmates in order to have receive help 12 from other inmates.
13 74 (LAC) described himself as being unable to read or write. He said he has trouble getting staff 14 to help him. They're too busy helping other inmates. He indicated that some COs "agitate you"
15 and other officers won't help. Sometimes Officer Horn helps him write a 602. 74 said that he
16 has trouble showering regularly; if he wants to take a shower he has to sacrifice yard time that 17 day.
18 83 (LAC) reported that he has to pay other inmates with soup packets or part of his lunch if he 19 wants to file an appeal or have something read to him. 83 also reported that his cell has been 20 searched more than 10 times in the past month in A1 and about 1 time each week when he was 21 on A3 prior to his transfer to A1. On one occasion he was out of his cell for four hours while he 22 cell was being searched. Another time he said that he was told his attorney was visiting just 23 prior to his cell being searched. His attorney wasn't visiting but staff wanted him out of his cell
24 promptly. He indicated that the LTA (the DO library aide) told him that she can't write anything
25 for him that goes out of the institution.
26 78 {LAC) reported that he doesn't "write that good" and that he gives other inmates chips, soup 27 packets, and coffee for helping him with his appeals. 89 (LAC) reported that he pays other 28 inmates to help him read stuff though sometimes he asks staff.
29 133 (SATF) said he was told by COs that it was not the job of the DO COs to write 602s {appeals) 30 for inmates. 139 (SATF) said that the only time he sees DO officers is when the inmates with DO 31 go to the store (canteen). Describing himself as forgetful, 139 recounted when he forgot to 32 bring his cup and spoon down to the chow line and was not allowed to return to his cell to get 33 them. He ended up eating with his hands. He also said when he has forgotten his 10 card in his 34 cell he was not able to obtain his medications. 139 stated that he has difficulty reading and 35 writing and has no one to help him. He said that if inmates question anything, the COs will tear
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1 your cell up. When he has asked to see a DO CO, the regular COs do not call them. He said that 2 he was told he would be taken out of the DDP if he questioned the program. 139 also said that 3 there was conflict between Sgt. Beeler and the DDP officer assigned to his housing unit.
4 129 (SATF), an inmate classified as 002 who does not know how to read or write, spent 5 approximately four months in administrative segregation (ASU or ad-seg) at SATF at the time I 6 interviewed him. Formerly housed in the A Yard at SATF, he indicated that he was placed in ASU 7 at his own request because of safety concerns. 129 filed an inmate appeal in November or 8 December of 2009 claiming that since being placed in ASU, he saw no DDP officers and was not 9 receiving the assistance he needed. The response from the CDCR granted his appeal in part and 10 denied it in part reasoning that because all CDCR staff at designated DDP institutions received 11 formal training per the Clark Remedial Plan, any correctional officer, correctional counselor, or 12 ASU could assist him. He was also told he could "submit a CDC GA-22 Inmate Request for 13 Interview to the specific DDP staff member..." The response to 129's appeal does not indicate 14 whether other inmates in the ASU were experiencing similar problems with access to support 15 services or whether ASU staff including correctional officers were providing the support they 16 were trained to provide through Clark Remedial Plan mandated training.20
17 150 (WSP) an inmate classified as DD2 and who had been at WSP more than two months at the 18 time of our interview stated that no ever comes to help him. An inmate who used to help him 19 was moved. 153 (WSP) complained that he had to give up his lunch in order to get another 20 inmate to write for him. He said that when he has asked COs to write something for him they 21 mock him by saying "do you have a soup for me?" He also stated that some COs make one's 22 inability to read very public. 148 (WSP) said that his cellie helps him write letters. He described 23 COs as making fun of his stuttering. CO Diaz on the 3rd shift tells him "shut the f*ck up." 149 24 (WSP) is the only inmate classified as DD on his unit (83) at Wasco State Prison. There is no DDP 25 officer on his unit and he has had to pay his cellie with cookies to have him write for him. His 26 previous cellmate, who refused to help him, told 149 "I can't do your time and my time." A 27 diabetic, he was concerned about the length of time between receiving his insulin and his 28 evening meal. He stated that he typically received his insulin at 3 pm with an apple and two 29 crackers; he often did not eat until 6 pm. The situation at WSP was different than what he 30 experienced at the LA County Jail where he reported, diabetics did not receive their insulin until 31 the food was on its way to the unit. 149 cannot read or write. When he has asked COs on his 32 unit for help he has been told to ask his "bunkie.''21
20 See Appeal Log# SATF-Z-09-04160 (129 Appeal 1st level response.) 21 1visited housing unit B6 to examine the log that might shed light on 149's claim that insulin was provided hours before the evening meal was brought on to the unit. I reviewed the unit log from 12/8 /09 to 1/11/10 but found no notation in the log showing when 149 received his insulin. During a discussion with CO Yanez and AW James, I
13 ~ On the status of inmates with DO in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page15 of 30

1 151 (WSP) reported that only one of the COs on his unit helps him at all. If an inmate agrees to 2 file a medical request slip, it costs 151 part of his lunch or dinner. 28 (CMF) reported that can't 3 read and that he pays other inmates to file appeals for him.

4 25 (CMF) stated that officers complained when he asked them for help. He reported that COs 5 say to him, "you're only DOl in front of the other guys." 25 reported that he pays other inmates 6 with "chicken off off [my] tray, cookies from lunch" in order to pay an inmate to file an appeal 7 for him.

8

9

5.8. Conditions in Reception

10 In some CDCR reception centers while awaiting transfer to other prisons, inmates are locked 11 down in their cells 23 hours each day, 7 days a week. 113 (RJD) who arrived at Richard J. 12 Donovan Reception Center in December 2009 and 112 (RJD) who arrived at RJD in May of 2009, 13 told of being locked down 23/7 while in reception. 107 (RJD) who returned to the CDCR on a 14 parole violation in November 2009, described being locked down 23/7 at RJD except when he 15 participates in groups with other inmates designated as EOP (extended outpatient program). 60 16 (DVI) had been in reception for almost three months when I interviewed him. He reported that 17 he only gets out onto the yard once each week.

18

5.9. Paying for Haircuts

19 Nearly every inmate I interviewed on Unit 2 at CRC reported that he pays to get his hair cut. The 20 typical charge is $1-2 payable in packets of food. Those charging for haircuts include an inmate 21 whose CRCR assignment is barber and who is paid by the CDCR to give haircuts. Another 22 individual cuts hair in one of the dorms. 41 (CRC) said that the regular barber will cut hair for 23 free one day each month but typically you are expected to pay whatever you can for the 24 haircuts. 35 said that he cuts his own hair. 39 reported that he has to pay $1 for a haircut. I 25 noted during my interview that 39's hair was long and unkempt. I asked him when he was going 26 to get his next hair cut. His response, "when I get two soups." Paying inmate barbers for 27 haircuts was also a regular practice at LAC. 86 (LAC) reported that he has to give soup packets 28 to an inmate barber in order to get a haircut. 73 (LAC) a resident on A3 reported that he only 29 has to pay a soup or two to get a haircut from the inmate barber on his unit. When discussing 30 haircuts at LAC, 86 said, "everybody pays."

31

learned that there was no 128C-2 chrono on B6 that documented 149's developmental disability and the accommodations and supports he needed.

..

t 14 On the status of inmates with DD in the CDCR

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1

5.10.

Problems with Specific Correctional Officers

2 CO Jones at CRC was named by 41 and several other inmates as an officer who abuses his 3 authority, makes fun of inmates with DO, and treats inmates with DO badly. 41 said Jones 4 "throws people against the wall" and "told other inmates that another inmate was a snitch" 5 after the asking another office how to get assistance when CO Jones was not helpful. 42 said 6 that Jones "pushes folks against the wall." 40 said he shoved inmate [35] up against a wall and 7 cuffed him for showing a receipt indicating that a radio in question belonged to him. An 8 interview with 35, a first timer in the CDCR confirmed that he was shoved up against the wall 9 for showing Jones his receipt for the radio. 40 reported that Jones doesn't like the DDP and 10 reportedly said to inmates "stupidity will get you nowhere." 39 reported that he was afraid of 11 Jones. He reported that he ordered all inmates in the dorm to strip to their boxers and stay on 12 their bunks. 39 said when inmates asked Jones why, he told them he did it "because he 13 could."22 14 15 A number of inmates at CMF on Unit 1-2, a unit designated for inmates with DO, named COs
16 Conchas, Salazar, Garcia and Ricardo as staff who threatened, belittled, and mistreated them 17 and complained when inmates on their unit asked for assistance.23 For example, five inmates
18 independently of one another, mentioned specific instances in which CO Conchas threatened to
19 send inmates to "the hole." Other inmates on 1-2 stated that these staff locked the unit down
20 right after evening meal and on other occasions, did not release inmates for daily activities until
21 nearly 1 pm for no apparent reason. 9, 16, 25, 24, 8, 21, 20, and 27 all residents on 1-2 at CMF,
22 identified specific officers that they said made fun of them and other inmates with disabilities,
23 threatened them, refused to issue ducats to inmates who needed to leave the unit for
24 activities, filed false Rules Violation Reports against inmates that they did not like, and failed to 25 provide support and/or assistance to them. 24

26

5.11.

Other Problems

27

5.11.1. Renal diet at CRC

28 Inmates and staff reported that there are approximately five inmates at CRC with diabetes or

29 other medical conditions that require special diets. According to three inmates I interviewed,

22 A day or two following my visit to CRC (1/7/10), I called Captain Banholtz on his cell phone and discussed my

concerns 1) about the treatment of inmates on Unit 202 and CO Jones and 2) about the problems with the renal

diet CRC and the public posting of inmate pictures in the Unit 2 dining hall. Banholtz asked me for my proof that

these events were actually happening and whether or not the inmates had filed a 602 (an appeal) against Jones or

staff responsible for public posting of inmate pictures. I indicated that I did not believe they had. Further I noted

that many of these inmates were unable to read or write and that they were intimidated by Jones and several

other COs at CRC.

)

23 1shared this information with AW Mandeville during a brief 1:1 interview with her on 1/13/10. 24 I visited CMF on 10/14 and 10/15, 2009 and on 1/13, 2010. I interviewed several of these inmates twice.

i15 On the status of inmates with DD in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page17 of 30

1 (44, 48, and 4725) for a period of two or three weeks in December there were no breakfast renal

2 meals. Inmates reported that after eating veal meatballs for every meal, they attempted to eat

3 in the unit 2 chow hall. According to the inmates, their CDCR pictures were enlarged and

4 publically posted in the chow hall -visible to other inmates as well as correctional officers in an

5 attempt to bar them from eating in the chow hall. Several officers I asked about this said they

6 had no knowledge that this happened. Nurse Assistant Terrell confirmed that only dinner meals

7 were available for a period of "two, maybe three weeks." She showed me the frozen renal

8 entrees and indicated that in December, we only served what the warehouse sent us- dinners.

9 Nurse Assistant Terrell also confirmed that inmates' pictures were publically posted in the chow

10 hall.

11

12

5.11.2. Death of a family member

13 111 (RJD) reported that he did not hear about his sister's death until two weeks after she was 14 buried. During our interview, he indicated that his wife called the prison to let him know but no 15 one passed the message on to him. 61 (DVI) reported that his sister and father had died within 16 the past several months and that he has not been able to talk to anyone about it.

17

5.11.3. Name Spelled Wrong on Inmate ID

18 During the summer of 2008, at the request of the parties, I toured RJD to assess the status of 19 inmates who were dually classified as having DO as well as mental health concerns (EOP, 20 CCMS). During that tour, I interviewed 110 (RJD) who told me that his name was spelled wrong 21 on his official CDCR ID card that each inmate is required to have in his or her possession at all 22 times and produce for correctional officers and other staff when asked to do so.26 At the time 23 of my visit in July, 2008, I brought this issue to the attention of correctional administrators. 24 During my visit to RJD in December 2009, I interviewed 110 a second time and discovered that 25 the name on is identification card was still spelled incorrectly. 110 described to me the 26 continuous trouble he has at the canteen, in receiving packages his mother sends to him and a 27 magazine sent to him. When I brought this issue to the attention of correctional administrators 28 during my visit in December 2009, they assured me that the problem with the spelling of 110's 29 name had been corrected in the system. When I indicated that his name was still misspelled on 30 his ID card, they replied that this was not such a big deal as the spelling of his name in the 31 system was what really mattered. At my direction and while I was visiting RJD, 110 received a 32 new state-issued ID card with his name spelled correctly.

33

5.11.4. Seriously Disturbed Inmate in Disciplinary Segregation

25 47, is not a DD Program participant. He indicated that he heard that his picture was publically posted in the Unit

2 chow hall but that he never eats there, even when only dinner renal meals were available. 26 See CCR, Title 15 Sec. 3019.

)

I 16 On the status of inmates with DD in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page18 of 30

1 I briefly interviewed 154 in the ASU at WSP. However most of the information I obtained about

2 him I learned through interviews with another inmate in ASU, two psych technicians, and Dr.

3 Keenan the Chief Psychologist at WSP. I also reviewed his C-files and UHR files. 154 is identified

4 as both an EOP (extended outpatient) client in the CDCR mental health system as well as an 5 inmate classified as DD2.27 He was certified as a "Keyhea" patient at WSP in July 2009; this

6 designation enabled medical staff to forcibly medicate 154 for his own well being. Physician's

7 notes and Interdisciplinary Progress Notes describe 154 as psychotic and schizophrenic. Notes

8 describe his behavior as "grossly disorganized."

9

10 At the time I interviewed 1?4, he had spent about three and half months in administrative

11 segregation for "battery on a peace officer'' on 9/22/09. The Crime/Incident Report on the

12 incident indicates that CO Martinez was head butted while escorting 154 away from another

13 inmate whom he (154) had attempted to punch. Part 1A- Supplement of the Crime/Incident

14 Report (p. 2 of 5} concludes "There were no injuries to staff or uninvolved inmates" from this 15 incident.28

16

17 According to Dr. Keenan and supporting documents, MH staff at WSP completed a DMH

18 referral on 09/02/09. He was approved for intermediate care facility (ICF) placement on

19 10/14/09. At the time of my visit, he was number 207 on the list to be accepted at an

20 appropriate DMH treatment facility. 154 also had a pending SHU transfer. He was only

21 endorsed for SAC-PHU. The transfer has been delayed because there were no vacant beds at

22 the SAC-PHU unit. On August 28, 2009, the ICC recommended that 154 be placed in a Sensitive

23 Needs Program (SNY).

24

25 154 was placed in the ASU on 9/22/09 and with a few exceptions has refused to come out of his

26 cell to meet with treatment staff or to participate in all EOP Ad-Seg. Anger Management/Stress

27 Management Groups in November and December 2009. Interdisciplinary Progress Notes and

28 psych tech notes show that progressively from October 2009 to January 2010 at the time of my

29 visit, 154 did poorly in the ASU. File documents show that in October 2009 154 responded to

30 psych techs by saying he was OK and had no mental health issues. By the end of November 31 2009, notes indicate that 154 had dirty clothes and poor "ADLs" or activities of daily living.29

32 Dr. Allen in an Interdisciplinary Progress note dated 12/2/09 described 154 as exhibiting

33 "grossly disorganized behaviors (i.e., extremely poor personal hygiene) and was witnessed by

34 staff smearing feces on the door of his cell." This behavior was noted on several other 35 documents in December 2009 and January 2010.30

36

37

5.11.5. DDP Status Report at CRC

38

27 An earlier assessment resulted in a DOl classification. 154 was subsequently screened on 10/15/09 and
classified as 002. 28 The CDCR referred this incident to the district attorney who declined to prosecute. See Memo to A.J. Silva,
Facility "B" Captain, re: Loss of time constraints for RVR Log# FB-09-09-0045. 29 ADLs include basic tasks such as feeding, bathing, dressing, and grooming. 30 Dr. Keenan notified me via email on 2/5/10 that 154 was transferred to the SAC-PSU on 2/4/10.
I 17 On the status of inmates with DD in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page19 of 30

1 I rated 11 of the 18 inmates that I interviewed at the California Rehabilitation Center (CRC) "3,"

2 inmates with chronic and/or serious problems. Among these 11 inmates, several had recently

3 been in fights with other inmates, had been pressured to give up their personal possessions,

4 had to pay other inmates to write letters for them or to receive haircuts, and had been verbally

5 or physically abused by staff. During my visit to CRC, DDP staff provided me with a copy of the

6 report that they compiled each month on the inmates at the facility. The CRC, DO report for 7 November 200931 included these comments for the inmates I rated "3." "Is doing well.... He has

8 not requested any services this month." "Inmate is doing weii...No concerns at this time." "He

9 has not requested any services from DDP staff... No concerns noted." "Inmate has not requested

10 any services from the DDP staff." " ....has not requested any DDP services." For one inmate, the

11 report notes, "He has been assisted on several occasions in filling out 602s (appeals) and sick

12 call slips. DDP staff along with dorm staff will continue to give him the assistance he needs."

13 The report noted that one of the inmates had been in a fight over his canteen but that "Per the

14 Sgt. Inmate said he had not concerns about going back to the dorm." Concerning another

15 inmate the report noted, "Inmate is a new arrival and appears to be adjusting well in the

16 dorm....when he was seen by the CCl she was a little concerned because he was very

17 emotional. She had inmate _ _seen by the Psych, since that day the DDP staff along with the

18 dorm staff has been monitoring daily." Although the status of the inmates with DO at CRC could

19 have changed dramatically in the month between the time this report was written and the time

20 I interviewed the inmates, my interpretation is that with a couple of exceptions, the DDP staff

21 at CRC was unaware of the abusive behavior of one of the COs and the victimization of a

22 number of the inmates at CRC for whom they had been assigned to provide accommodations, 23 protection, and support.32

24

25

5.11.6. Talking to the Court's Expert

26 At the California State Prison, Substance Abuse and Treatment Facility (SATF), several inmates 27 on different housing units disclosed to me during interviews that they were told I was going to 28 visit the prison and that they were directed to say positive things about the DO Program. 127, 29 116, 119, 132, and 138 reported that they were told to be positive about the DDP. 114 stated 30 that he was recently called out for a meeting with other inmates in the DDP but that he had no 31 idea what the meeting was about. 138 said that the inmates were told "if you want no 32 harassment, ease up on us when the visitors come."

33 6. Conclusions

34 My review of the status of inmates with DO at seven CDCR facilities indicates that the majority 35 of these individuals are not receiving the accommodations, protections, and support envisioned 36 by the Clark Remedial Plan. My ratings of inmate well being showed that approximately 60% of

31 I interviewed the inmates about a month after this most recent report was issued.

32 At CRC some of the DDP officers were not identified by inmates as a source of support. I believe, inmates perceived that some of the DD officers were no different than correctional officers who treated them badly.

)

18 ~ On the status of inmates with DD in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page20 of 30

1 those inmates I interviewed experienced problems, some chronic or serious ones. Inmate 2 problems were numerous, present in each of the facilities, and in most cases, undetected by 3 staff. In a few instances, staff informed me about problems about which I was unaware. In 4 other instances, I brought problems to the attention of staff with mixed results. Some 5 questioned the source of much of my information, the inmates, while others indicated that 6 they would look into the problems I reported to them. At several facilities, serious problems 7 that inmates were not able to successfully rectify were resolved through my pressing 8 correctional staff to address specific issues. I found it inconceivable that some of the problems I 9 noted in this report were not detected and systematically addressed by DO staff or trained COs.
10 In general, I found older inmates who had developed relationships with others in the prison and 11 those who had been in the system longer fared better than younger inmates who were new to 12 the CDCR. I also found that inmates who were more articulate appeared to experience more 13 difficulties with staff than inmates who were more docile and interacted less frequently with 14 staff. Those inmates who were enrolled in school, for the most part spoke positively about the 15 experience. Inmates in dormitory housing appeared to be victimized more frequently than 16 inmates in single or double celled units. Some of the inmates I interviewed were among the 17 most distressed I have interviewed in any state prison system or local jail during my 18 professional career. While some dedicated CDCR staff were providing appropriate services and 19 support to inmates with DO, the system as a whole appeared indifferent to the needs of these 20 inmates.
21 It was beyond the scope of this report to investigate the adequacy of the screening of inmates 22 for the DDP. However, as noted in the Executive Summary above, the estimated number of 23 inmates identified and served in the CDCR as developmentally disabled is far below 24 conservative estimates of the prevalence of inmates with DO in the criminal justice system.
25 Many of the problems noted here are serious and require immediate attention.33 Beyond 26 responding to specific problems, the findings suggest the need for a fundamental review of the 27 ways in which the CDCR implements its program for inmates with DO and ensures that inmates 28 receive accommodations, protection, and support. Presumably, all of the correctional officers 29 at the prisons I visited received the mandated CRP training; in spite of this, serious and chronic 30 problems existed at every facility.
31 The CDCR needs to carefully review the operation of the DDP. Finally, the CDCR need to 32 develop and implement a system to internally monitor program implementation and well being 33 of inmates with developmental disabilities.

)

33 At the request of the Court, I will provide a key linking inmate names to the numbering system used in this report.

I 19 On the status of inmates with DD in the CDCR

Case3:96-cv-01486-CRB Document493-4 Filed08/13/10 Page21 of 30

1 7. Recommendations

2

7.1. The CDCR needs to respond to the systematic problems identified in this report and

3

inform the Court how these problems will be addressed.

4

7.2. The CDCR needs to provide assurances that when inmates' names are identified, there

s

will be no retaliation.34 CDCR staff at the level of warden and associate warden needs

6

to describe how they will ensure that there will be no retaliation against inmates who

7

talked to the Court's Expert.

8

7.3. The CDCR needs to thoroughly review the operation of the DDP program. Elements of

9

the review should include screening of inmates, housing, training and assignment of

10

staff, and supervision of staff assigned to units with DDP inmates.35

11

7.4. The DDP needs to be evaluated on a regular basis to identify potential problem and

12

ensure that inmates with DO receive the accommodations, protections, and support as

13

envisioned by the Clark Remedial Plan.

34 On 2/15/10, I received the letter attached to this report. The name of the inmate has been redacted in order to protect him from further retaliation. 35 One of the AW's with whom I spoke discussed his inability to appoint the best staff for positions as DD officers I the DDP. Because some of the DD positions are bid positions, some correctional officers without appropriate temperament have priority for these positions that are desirable because they offer better hours, not because officers are interested in inmates with developmental disabilities.
20 ~ On the status of inmates with DD in the CDCR

 
 739 F.Supp.2d 1168 (2010)
Derrick CLARK, et al., Plaintiffs, v.
State of CALIFORNIA, et al., Defendants.
Case No. C 96-1486 CRB.
United States District Court, N.D. California.
September 16, 2010.
1172 *1172 Shawn Hanson, Akin Gump Strauss Hauer & Feld LLP, Caroline Nason Mitchell, Jones Day, Douglas Edward Roberts, San Francisco, CA, Donald H. Specter, Heather Jane MacKay, Sara Linda Norman, Zoe Schonfeld, Berkeley, CA, Mark Andrew Chavez, Chavez & Gertler LLP, Mill Valley, CA, Penelope Marie Godbold, San Rafael, CA, for Plaintiffs.
Jose Alfonso Zelidon-Zepeda, Department of Justice, William Newell Jenkins, Danielle Felice O'Bannon, Michael James Quinn, CA State Attorney General's Office, San Francisco, CA, for Defendants.
Julianne Mossler, State Attorney General's Office, San Francisco, CA.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CHARLES R. BREYER, District Judge.
I. Introduction and Background
1. The State of California, the Governor and various state prison officials initiated the current proceedings by bringing a motion pursuant to the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626(b), to terminate the prospective relief in this case. That relief is contained in a 2001 Settlement Agreement and Order that requires these defendants to comply with a set of policies and procedures, known collectively as the Clark Remedial Plan ("CRP" or "Remedial Plan"), which they drafted to ensure that California prisoners with developmental disabilities were protected from serious injury and discrimination on the basis of their disability. See Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132; § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); U.S. Constitution amends. VIII, XIV. Defendants maintain that prospective relief should be terminated because there are no current and ongoing violations of the plaintiff class members' rights under federal law.
2. Plaintiffs and members of the plaintiff class are prisoners with developmental disabilities incarcerated within California's prison system. They oppose defendants' motion and seek further injunctive relief. They argue that an order requiring compliance with the policies and procedures in the Clark Remedial Plan would be insufficient to 1173 cure those statutory and constitutional *1173 violations, and that further relief is therefore necessary.
3. Much of the evidence before the Court is not in dispute. First, there is no dispute about the nature of the class. These prisoners represent an extremely small percentage of the overall prison population who, because of their disabilities, are vulnerable to physical, sexual and verbal abuse, exploitation, theft, and harassment. They also require accommodations from the normal routines of prison life if they are to be safe and able to participate meaningfully in prison activities and programs.
4. Second, there is no dispute about the utility of the Settlement Agreement and the Clark Remedial Plan. Prison officials testified that the Remedial Plan has been valuable to the California Department of Corrections and Rehabilitation ("CDCR"). These witnesses also agreed that most of the Remedial Plan would continue regardless of the Court's ruling.

5. What is in dispute, therefore, is whether the Order requiring compliance with the Plan, including monitoring by plaintiffs' counsel and Court experts, is necessary. To help answer that question one of the Court's experts, Dr. Peter Leone, conducted a systemic review of the treatment of developmentally disabled prisoners in the CDCR. Based on over 150 prisoner interviews, a review of extensive prison documents and interviews with 29 prison staff at the seven prisons that house a majority of class members, he concluded that "[w]hile some dedicated CDCR staff were providing appropriate services and support to inmates with DD, the system as a whole appeared indifferent to the needs of these inmates" and that "[t]he breadth and severity of problems described in this report suggest that with some exceptions, inmates with DD do not receive the protections and supports as described in the Clark Remedial Plan." Report of Dr. Peter Leone, February 15, 2010, (Tr. Ex. 1) (Leone Report) at 4, 19.
6. The weight of the evidence supports and amplifies Dr. Leone's conclusions. In total the evidence demonstrates that mentally retarded prisoners and those with autism spectrum disorders are verbally, physically, and sexually assaulted, exploited, and discriminated against in California prisons. Illiterate prisoners are not given the help they need to understand or fill out important prison documents, leaving them with no way to use sick call slips or grievance forms, unless they can pay other prisoners or beg them for help. Developmentally disabled prisoners are punished for violating prison rules that they do not understand, and are punished at hearings which they do not comprehend. These conditions violate those prisoners' rights to be free of unlawful discrimination based on their disabilities.
7. In 2001, defendants admitted "that they [had] violated the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein." Settlement Agreement and Order, December 3, 2001 (Dkt.# 194) (Settlement Agreement & Order), ¶ 15. Today, defendants no longer admit that they are violating the federal rights of prisoners with developmental disabilities, nor that continued relief is necessary because of those violations. Based upon the evidence adduced at trial, this Court disagrees. For the reasons explained below, this Court DENIES defendants' motion for relief. Moreover, this Court GRANTS in part and DENIES in part plaintiffs' motion for further relief.
A. Procedural Background
8. California prisoners with developmental disabilities filed this action in 1996, claiming that defendants 1174 discriminated against them on the basis of their disabilities in violation of the Americans with *1174 Disabilities
Act, 42 U.S.C. § 12131, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794; that defendants were depriving them of due process in violation of the Fourteenth Amendment; and that plaintiffs were living under conditions that constituted cruel and unusual punishment in violation of the Eighth Amendment. First Amended Complaint, October 31, 1996 (Dkt.# 32), at 21-25. In their First Amended Complaint, plaintiffs alleged that they were denied adequate accommodations, protection, and services because of their developmental disabilities. Id. at 2-4. In particular, plaintiffs alleged that defendants did not protect the plaintiff class from physical violence and manipulation by other prisoners; denied them due process in disciplinary, grievance, parole, or other administrative proceedings; and denied them equal access to good time credits and medical and mental health care, among other prison services. Id. at 7-9, 12-13.
9. In 1998, at the parties' request, this Court ordered the appointment of two neutral experts to assist the parties and the Court by, among other things, evaluating defendants' proposed remedial plans and modifications to, and compliance with, the plans. Order Appointing Experts and Prescribing Duties, August 18, 1998 (Dkt.# 180). The parties together chose Dr. Peter Leone and Dr. Melissa Warren to fill the expert roles. Id. at 1.
10. Over the next several years, the parties, with assistance from Dr. Leone and Dr. Warren, negotiated and agreed on specific remedial measures necessary to protect class members' rights, formalized in the CRP. The CRP sets forth policies for identifying, classifying, housing, and accommodating each class member, based upon the individual prisoner's level of disability. In the Settlement Agreement and Order filed with this Court on December 3, 2001, defendants admitted "that they [had] violated the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein." Settlement Agreement & Order, ¶ 15. Defendants agreed to implement the CRP, subject to monitoring by plaintiffs' counsel, evaluation by the Court experts, negotiation

between the parties, and, if necessary, enforcement by the Court. Id. ¶¶ 5, 8. Specifically, they agreed that "[t]he Court shall retain jurisdiction to enforce the terms of this agreement. The Court shall have the power to enforce the agreement through specific performance and all other remedies permitted by law." Id. ¶ 5. As part of the settlement, all parties agreed that Dr. Leone and Dr. Warren would continue in their roles as Court experts, with the same duties set forth in the Court's Order from August 18, 1998. Id. ¶ 6.
11. On July 24, 2009, defendants filed a motion to terminate the Settlement Agreement & Order, claiming that there are no current or ongoing violations of plaintiff class members' federal rights. Defendants' Motion to Terminate Settlement Agreement, July 24, 2009 (Motion to Terminate) (Dkt.# 205). In the same motion, defendants moved to dismiss relief in this case pursuant to Federal Rule of Civil Procedure 60(b)(5). Plaintiffs filed an opposition on August 7, 2009, alleging that defendants had not met their burden of proof and that current and ongoing violations of the rights of the plaintiff class justified the continuation of relief in this case. Plaintiffs' Opposition to Defendants' Motion to Terminate Settlement Agreement, August 7, 2009 (Opposition to Termination Motion) (Dkt.# 244). On March 9, 2010, plaintiffs filed a motion for further relief (Dkt.# 329), which defendants opposed on April 5, 2010 (Dkt.# 384).
12. This Court held an evidentiary hearing to determine whether there exist current and ongoing violations of 1175 federal *1175 law and, if so, whether further relief is necessary to cure those violations. The hearing began on
May 10, 2010, and continued until May 18, 2010. Clerk's Notice, April 12, 2010 (Dkt.# 395); Civil Trial Minutes, May 18, 2010 (Dkt.# 465).
13. In preparation for the hearing, the Court's expert in this case, Dr. Peter Leone, visited seven institutions, spoke with 152 class members and 29 staff members, and reviewed prisoner files and other documents. Peter Leone Expert Report (Tr. Ex. 1) at 2-3. Based on these visits, Dr. Leone produced an expert report on February 15, 2010, detailing his findings and his recommendations. See generally id.
14. During the six-day trial, this Court heard testimony from three expert witnesses and more than 30 lay witnesses (18 by deposition), including class members, correctional administrators, and prison staff members. The parties also submitted into evidence close to 700 trial exhibits.
B. Statutory Framework for the Motions
1. Defendants' Motion to Terminate or Dismiss Relief
15. Defendants move to terminate the Settlement Agreement & Order under the Prison Litigation Reform Act, 18 U.S.C. § 3626. Although that statute provides an avenue to terminate prospective relief instituted to remedy unlawful prison conditions, id. at § 3626(b)(1)-(2), termination is not appropriate if a court makes written findings, based on the record, that "prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and ... is narrowly drawn and the least intrusive means to correct the violation." Id. § 3626(b)(3). In determining whether there is a "current and ongoing violation" of federal law, courts must "take evidence on the current circumstances at the prison[s]." Gilmore v. California, 220 F.3d 987, 1010 (9th Cir. 2000). This Court has ruled that defendants, as the party moving for termination, bear the burden of proving that no such violations exist. Order Regarding Burden of Proof, April 2, 2010 (Dkt.# 382); see also Gilmore, 220 F.3d at 1007-08. As noted below, even if plaintiffs bore the burden, they have satisfied it.
16. Defendants also claim that changed circumstances necessitate the dismissal of the Settlement Agreement & Order. Under Federal Rule of Civil Procedure 60(b)(5), a court may relieve a party from its obligations pursuant to a final judgment if "applying [the judgment] prospectively is no longer equitable." The moving party must demonstrate, however, "a significant change either in factual conditions or in law." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). In institutional reform cases, district courts must ask whether such a change "renders continued enforcement [of the judgment] `detrimental to the public interest.'" Horne v. Flores, ___ U.S. ___, 129 S.Ct. 2579, 2593, 174 L.Ed.2d 406 (2009) (quoting Rufo, 502 U.S. at 384, 112 S.Ct. 748). Defendants' desire to put a consent decree behind them does not justify such relief:

"Rule 60(b)(5) provides that a party may obtain relief from a court order when `it is no longer equitable that the judgment should have prospective application,' not when it is no longer convenient to live with the terms of a consent decree." Rufo, 502 U.S. at 383, 112 S.Ct. 748.
17. The PLRA also requires that the Court "promptly rule on any motion to... terminate prospective relief in an action with respect to prison conditions." 18 U.S.C. § 3626(e)(1). Prompt resolution is necessary because, under 1176 the PLRA, a *1176 termination motion stays all prospective relief until the Court enters a final ruling. Id. § 3626(e) (2).
2. Plaintiffs' Motion for Enforcement and Further Remedial Orders
18. Plaintiffs move for enforcement of, and further relief under, the Settlement Agreement & Order in this case. Pursuant to that Agreement, defendants committed to implement the CRP. The CRP is a series of measures developed with the assistance of Court-appointed experts and designed to address, in a "fair and reasonable" manner, the violations of federal law that plaintiffs had identified in their complaint. Settlement Agreement & Order, ¶ 15. In agreeing to the Remedial Plan, defendants acknowledged that "they had violated the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein." Id.; see also Subia at RT 256:7-12 ("[w]hen I first came into this department ... we would just watch[] these inmates who are filthy and walking around looking at the sun and picking up bugs and eating them on the facility and consistently getting into trouble."). As the Court has noted and defendants have conceded, "as of 2001, the parties agreed that there was a need at that point, there were violations at that point, there was a plan at that point, and the plan was narrowly drawn at that point." RT 8:14-17; see also Settlement Agreement & Order at ¶ 15.
19. The Court "retain[s] jurisdiction to enforce the terms of this agreement." Settlement Agreement & Order at ¶ 5. Moreover, the Settlement Agreement & Order contemplated that plaintiffs could bring a motion for enforcement and further relief in circumstances such as those presented here, by expressly allowing plaintiffs to move to modify "if the plan does not effectively remedy defendants' violations or if a modification is necessary to ensure plaintiffs receive adaptive support services to which they are entitled under the ADA, § 504 [of the Rehabilitation Act], or the Constitution." Id. ¶ 11. Plaintiffs bear the burden of proving that enforcement or modification of the Remedial Plan is necessary to address defendants' violations of federal law.
C. Defendants' Obligations under Federal Law
1. ADA and § 504
20. Under Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. A "qualified individual with a disability" suffers from a "physical or mental impairment that substantially limits one or more major life activities," including, but not limited to "caring for oneself ..., learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(1)(A), (2)(A). It is undisputed that the Clark class members fit these criteria. See Settlement Agreement & Order ¶¶ 1-2, 15; see also CRP (Tr. Ex. 476) at 1. Furthermore, state prisons are "public entities" for the purposes of Title II. Penn. Dep't of Corrs. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).
21. Section 504 of the Rehabilitation Act guarantees the same right of non-discrimination to disabled individuals "under any program or activity receiving Federal financial assistance ...." 29 U.S.C. § 794(a). Because Title II of the ADA was modeled on § 504, "courts have applied the same analysis to claims brought under both statutes." Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir.1999) (citations omitted); see also 42 U.S.C. 1177 § 12133 ("The remedies, procedures, *1177 and rights set forth in [§ 504] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination in violation of [section 12132 of this title]."). Moreover, "courts routinely look to Rehabilitation Act case law to interpret the rights and obligations created by

the ADA." Zukle, 166 F.3d at 1045 n. 11. Like Title II of the ADA, § 504 applies to state prisons. Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir.1997).
22. Under the ADA and the Rehabilitation Act, defendants must provide Clark class members with "reasonable accommodations" and "reasonable modifications" so that they can avail themselves of prison services and participate in prison programs and activities. 29 U.S.C. § 794; 28 C.F.R. § 35.130(b)(7); see also The Americans with Disabilities Act Title II Technical Assistance Manual, § II-3.6100 (requiring public entities to make reasonable modifications to their policies, practices, or procedures to avoid discrimination), available at http://www.ada.gov/ taman2.html.[1] To be "reasonable" the accommodation or modification must give disabled prisoners "meaningful access" to the service, program, or activity in question. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985).
23. The ADA encompasses all services, programs, and activities provided by a prison to its prisoners. See, e.g., Crawford v. Ind. Dep't of Corrs., 115 F.3d 481, 483 (7th Cir.1997) ("The use of a library is, equally clearly, an activity, and so, only a little less clearly, is the use of the dining hall."); Chase v. Baskerville, 508 F.Supp.2d 492, 506 (E.D.Va.2007) (defining the provision of "telephones, computers, cable televisions, and books" as "services" under the ADA). Thus, "virtually every interaction between prison officials and disabled inmates potentially exposes the State[] to liability ... unless the State[] promptly provide[s] reasonable accommodation." Chase, 508 F.Supp.2d at 505 (citing Kiman v. N.H. Dep't of Corrs., 451 F.3d 274, 289-90 (1st Cir.2006); Chisolm v. McManimon, 275 F.3d 315, 327-30 (3d Cir.2001)).
2. Eighth Amendment
24. The Eighth Amendment prohibits the government from exacting "cruel and unusual punishment" on its citizens. U.S. Const. amend. VIII. "[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). As such, prison officials "must provide humane conditions of confinement ... and must take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotations and citations omitted).
25. For an Eighth Amendment violation to lie, the deprivation suffered by the prisoner must be sufficiently serious, and prison officials must be "deliberately indifferent" to the deprivation. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. A prisoner need not establish that he actually suffered a sufficiently serious deprivation; he must show only that 1178 "he is incarcerated under conditions posing a substantial risk *1178 of serious harm." Id. (citing Helling, 509 U.S. at 35, 113 S.Ct. 2475). As explained by the Supreme Court, it would be illogical "to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.... [A] remedy for unsafe conditions need not await a tragic event." Helling, 509 U.S. at 33, 113 S.Ct. 2475.
26. "[D]eliberate indifference can be predicated upon knowledge of a victim's particular vulnerability (though the identity of the ultimate assailant not known in advance of attack), or, in the alternative, an assailant's predatory nature (though the identity of the ultimate victim not known in advance of attack)." Brown v. Budz, 398 F.3d 904, 915 (7th Cir.2005).
3. Fourteenth Amendment Due Process
27. The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property[] without due process of law." U.S. Const. amend. XIV, § 1. In the prison context, "States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Youngberg v. Romeo, 457 U.S. 307, 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (involuntarily committed, mentally retarded individual had "constitutionally protected liberty interests under the Due Process Clause"). Specifically, due process protections attach to state actions that (1) affect a prisoner's sentence in an unexpected manner, or (2) impose an "atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484, 115 S.Ct. 2293 .
D. The Clark Remedial Plan
28. In 2001, the parties agreed that the CRP represented the narrowest, least intrusive set of procedures that could effectively ensure the federal rights of developmentally disabled prisoners. From that time, the CRP has served as the cornerstone of defendants' efforts to comply with the Settlement Agreement reached by the parties and effectuated by this Court.
1. Identification
29. As a threshold matter, defendants must ensure that developmentally disabled prisoners are properly identified in order to provide reasonable accommodations to those prisoners under the ADA and § 504. See Armstrong v. Davis, 275 F.3d 849, 876 (9th Cir.2001) (because regulations implementing ADA require public entity to accommodate persons identified as disabled, tracking system is necessary part of compliance). The CRP also requires that "[e]fforts to identify inmates with developmental disabilities ... be continuous." CRP at 14.
2. Reading and Writing Assistance
30. A developmentally disabled prisoner's literacy level can impede his or her ability to use prison services or participate in prison activities or programs. Garcia v. Taylor, No. 07-cv-474, 2009 WL 2496521, at *11 (N.D.Fla. Aug. 11, 2009). Thus, the regulations implementing the ADA require public entities to "take appropriate steps" to ensure that the communication of information concerning prison services, activities, and programs is "as effective" for the disabled as for the non-disabled. 28 C.F.R. § 35.160. In doing so, the prisons must provide such services as are necessary "to afford an individual with a disability an equal opportunity to participate in" prison programs and activities. Id. In determining what services are necessary, defendants must give "primary consideration to the requests of the individual." Id.
1179 *1179 31. As stated by one appellate court charged with determining whether a prison library provided meaningful access to its materials, "[i]t is not enough simply to say the books are there, when the plaintiffs contend that they do not have the assistance necessary to use the books properly."[2]Cruz v. Hauck, 627 F.2d 710, 720 (5th Cir.1980).
32. The CRP recognizes that developmentally disabled prisoners "may have poor ability to express themselves ... in writing." CRP at 6. Further, "[t]hey will likely have difficulty with any task requiring reading or processing written material," and, in particular, "they may have difficulty with disciplinary, classification, and/or appeal processes[, which] require reading and understanding." Id. Accordingly, corrections officers are duty-bound to provide reading and writing assistance to the Clark class members who need it. See id. at 42 (officers must "[p]rovide support services as directed by [the prisoner's Interdisciplinary Support Team]"). And designated institutions "must ensure that [CDCR] notices, orientations packages, announcements, and similar printed materials are accessible to inmates with developmental disabilities." Id. at 45.
3. Meaningful Assistance in Disciplinary, Administrative, and Classification Proceedings
32. As noted above, defendants must, under the ADA, "take appropriate steps" to ensure that staff members' communications with developmentally disabled prisoners are "as effective" as their communications with nondisabled prisoners. 28 C.F.R. § 35.160. Accordingly, defendants must not only provide staff assistants to developmentally disabled prisoners in disciplinary, administrative, and classification proceedings, but they also must ensure that those staff assistants are providing the prisoners with effective communication. Cf. Duffy v.

Riveland, 98 F.3d 447, 456 (9th Cir.1996) (reversing summary judgment in favor of prison on deaf prisoner's claim that he was denied qualified interpreter at disciplinary hearing in violation of ADA). The Remedial Plan expressly recognizes this obligation. CRP at 8; see also id. at 42 (DDP counselor must serve as staff assistant as required), 61-62 (requiring training for staff assistants).
34. Only through effective communication can defendants guarantee that developmentally disabled prisoners have meaningful access to these proceedings and, thus, satisfy their obligations to plaintiff class members under federal law. And, "[b]y ensuring that inmates have meaningful access to ... [such] proceedings ..., the goals of both the institution and the Rehabilitation Act are served." Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988).
35. The ADA also requires that prison staff try to counsel Clark class members, rather than subjecting them to the disciplinary process, when they break prison rules that they do not understand. The Ninth Circuit has "repeatedly recognized that facially neutral policies may violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced." McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.2004) (citations omitted); cf. Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir.1998) (in employment 1180 context, entity "may not use established policies *1180 regulating behavior to short-circuit the required analysis of whether ... a reasonable accommodation" is due to disabled person). In accordance with that precedent, the CRP mandates that, when addressing prisoner misconduct, staff members "must take into consideration the severity of the inmate's disability and the inmate's need for adaptive services when determining the [appropriate] method of discipline." CRP at 49. When the prisoner does not understand that he has broken a rule, staff should provide the "reasonable accommodation" of "direct instructions, prompting, or verbal counseling." Id. Only if the developmentally disabled prisoner continues to engage in the misconduct should the employee resort to the disciplinary process. Id.
36. Like the ADA, § 504, and the CRP, the Due Process Clause requires that staff assistants provide effective communication to developmentally disabled prisoners during disciplinary proceedings where there is a protected liberty interest at stake.
37. "Due process [also] requires that a prisoner have `an opportunity to present his views' to the official `charged with deciding whether to transfer him to administrative segregation.'" Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir.1990) (quoting Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)).
4. Meaningful Access to Prisoner Grievance Procedures
38. Prison grievance procedures must be "readily available to all ... inmates," and staff must make "appropriate provisions" to communicate those procedures to "the impaired and the handicapped." 28 C.F.R. § 40.3. Moreover, institutions must "ensure that the procedure[s are] accessible to impaired and handicapped inmates." Id. § 40.4. The regulations implementing the ADA also require defendants to "adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by [the Act]." 28 C.F.R. § 35.107(b).
39. Because access must be "meaningful," Alexander, 469 U.S. at 301, 105 S.Ct. 712, prison staff must ensure that developmentally disabled prisoners can submit grievances. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) ("The right of meaningful access to the courts extends to established prison grievance procedures." (citation omitted)). In recognition of this obligation, the Clark Remedial Plan requires staff members to "provide the necessary assistance to all DDP inmates on a case-by-case basis to ensure that those who have difficulty ... communicating in writing will be provided reasonable access to [grievance] procedures." CRP at 45.
40. The right of meaningful access to grievance procedures is particularly important because a prisoner must exhaust the prison's administrative remedies by complying with that procedure before he can access the courts. 42 U.S.C. § 1997e(a). As the Ninth Circuit has recognized, "[t]he reality and substance of any of a prisoner's protected rights are only as strong as his ability to seek relief from the courts or otherwise to petition the government for redress of the deprivation of his rights." Bradley, 64 F.3d at 1280.

5. Assistance with Self-Care and Daily Living Activities
41. Like almost all services provided by a prison, daily living activities such as the use of showers, the exchange of laundry, and the receipt of medication constitute "services, programs, or activities" under the ADA and § 504. See, e.g., Phipps v. Sheriff of Cook County, 681 F.Supp.2d 899, 916 (N.D.Ill.2009) ("showering, toileting, and lavatory use ... regarded as programs and/or services under the ADA").
1181 *1181 42. In recognition that developmentally disabled prisoners "may show evidence of poor self care[, such as] seldom bathing, soiled or unkempt clothing, poor eating habits," and a "disorganized" or "dirty" living area, the CRP extends the same obligations to defendants. CRP at 6, 8; see also id. at 42 (officers must "[p]rovide support services as directed by [the prisoner's Interdisciplinary Support Team]").
6. Protection from Abuse
43. Defendants acknowledge that they "have a duty to protect all inmates, including members of the [p]laintiff class, from violence at the hands of other inmates." Defendants' Trial Brief, March 26, 2010 (Dkt.# 361), at 15 (citing Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009)). Defendants also recognize that the developmental disabilities of Clark class members put those prisoners at greater risk for abuse and exploitation than nondevelopmentally disabled prisoners. Subia at RT 247:8-15. Specifically, developmentally disabled prisoners "may give up possessions to other inmates" or "become vulnerable to sexual predators [or] manipulation by other inmates." CRP at 6. Accordingly, in adopting the CRP, defendants acknowledged that it was necessary for prison staff members to monitor these prisoners to promote their personal safety. Id. at 8, 42. Also for safety reasons, defendants agreed to accommodate Clark class members in the housing assignment process. For example, DD1s with abuse concerns and DD2s "must only be placed in the building designated for [them]," and "[n]onDDP inmates with a history of sexual [abuse] and/or predatory behavior against `weaker' individuals' must not be housed in ... designated buildings." Id. at 39-40.
44. Failing to accommodate plaintiff class members in these manners also raises concerns under the Eighth Amendment. When a prisoner demonstrates either that he has suffered physical or sexual assault at the hands of other prisoners, or that he lives with the "substantial risk" of such assault, he establishes "sufficiently serious deprivation" and, presuming the institution's deliberate indifference to that deprivation, the infliction of cruel and unusual punishment. See Berg v. Kincheloe, 794 F.2d 457, 460-61 (9th Cir.1986) (prisoner who was beaten and raped by another prisoner stated an Eighth Amendment claim); Johnson v. Johnson, 385 F.3d 503, 524-27 (5th Cir. 2004) (Eighth Amendment protects prisoners from assault occasioned by staffs failure to respond to known risk of assault). As explained below, the crucial question with regard to the Eighth Amendment is whether it has been established that Plaintiffs, on a class basis, have proved the necessary deliberate indifference.
7. Adequate Notice of Parole Conditions
45. The ADA and § 504 mandate that defendants effectively communicate conditions and terms of parole to developmentally disabled prisoners. Because defendants provide notice of parole conditions as a service to their prisoners, they must afford plaintiff class members the "reasonable accommodation" of effective communication to ensure that the prisoners understand what they must do to avoid being reincarcerated. Armstrong, 275 F.3d at 861-62.
46. Furthermore, "due process mandates that [a] petitioner cannot be subjected to a forfeiture of his liberty for [otherwise non-criminal] acts unless he is given prior fair warning [that the acts are proscribed]." United States v. Grant, 816 F.2d 440, 442 (9th Cir.1987) (internal quotation and citation omitted). While Grant addressed the 1182 conditions of probation, not parole, the Supreme Court has recognized *1182 that, from a due process standpoint, parole and probation are analogous. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (same liberty interests at stake in probation revocation and parole revocation hearings). As

such, the Fourteenth Amendment requires that prisoners approaching parole are notified of the conditions of their parole.
47. It is axiomatic that, to fulfill the requirements of due process, notice must be "reasonably calculated, under all the circumstances, to apprise interested parties" of that which is noticed. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Given that many developmentally disabled prisoners either cannot read or do not fully comprehend what they read, the only way for defendants to ensure that plaintiff class members receive sufficient notice of their parole conditions before leaving prison is for prison staff members to effectively communicate those conditions. Cf. Mastrangelo v. U.S. Parole Comm'n, 682 F.2d 402, 405 (2d Cir.1982) (it would be "manifestly unfair" if petitioner was reincarcerated because he was unaware of conditions of special parole).
48. CDCR rules track federal law in this regard. Wells at RT 500:21-24. Under those rules, "what's required is to have a staff member to be present ... to effectively communicate with the inmate." Id. at 504:18-505:1. As an extension of this obligation, the Remedial Plan requires "[p]arole staff [to] ensure that upon reporting to a parole unit, parolees with developmental disabilities are provided parole instructions in such a manner as to ensure that the parolee understands ... the parole process, the parolee's responsibilities, and the available assistance and services." CRP at 57. So that parole staff can provide this service, institutions must "notify parole field staff ... of any inmate with a verified developmental disability, as well as identified adaptive deficits and prescribed support services." Id. at 56.
E. Characteristics of CDCR and the Clark program
49. Basic facts regarding the California prison system and the CRP are not in dispute.
50. CDCR includes 33 prisons, 12 community facilities, and 41 conservation camps throughout the State of California. Joint Proposed Final Pretrial Order (Dkt. # 366) at 6; Subia at RT 218:11-16. There are currently approximately 166,000 prisoners in the 33 prisons. Subia at RT 226:25. There are over 100,000 parolees in California at any given time. Id. at 230:14-18. Every year, CDCR receives approximately 130,000 new prisoners and releases approximately the same number. Id. at 230:19-231:1. CDCR employs 66, 000-67,000 people with approximately 600-900 custodial staff per institution. Id. at 231:2-7.
51. There are 1,348 prisoners currently identified as members of defendants' Developmental Disability Program (DDP). Salz at RT 85:19-86:8. That is the "highest [] point" for the number of prisoners the CDCR has had in the DDP. Wells at RT 560:6-10. In the past 10 years, the number of budgeted positions for DDP staff has been reduced from 143 total positions to 137 total positions. Id. at 556:3-23. Not all of these 137 budgeted DDP staff positions are filled. Id. at 561:21-562:13. Every prison in California has developmentally disabled prisoners from time to time. Salz at RT 133:17-25. The biggest challenge defendants face in maintaining compliance with the Clark Remedial Plan is the size of CDCR. Subia at RT 230:7-13.
1183 52. At present, seven institutions are designated for permanent placement of *1183 mildly to moderately disabled prisoners (categorized as "DD1" and "DD2"): Central California Women's Facility; California Men's Colony (CMC); California Medical Facility (CMF); California State Prison-Corcoran; California Rehabilitation Center (CRC); California State Prison-Los Angeles County (Lancaster); and the California Substance Abuse Treatment Facility and State Prison at Corcoran (SATF). Joint Proposed Final Pretrial Order (Dkt.# 366) at 7. Five prisons are designated for permanent placement of more severely disabled prisoners (categorized as "DD3"): California State Prison-Sacramento; Central California Women's Facility; CMC; CMF; and Valley State Prison for Women. Id.
53. Richard J. Donovan Correctional Facility (R.J. Donovan) currently houses prisoners who are dually diagnosed DDP and Enhanced Outpatient Program (EOP) (specialized housing for mentally ill prisoners) and retains some DDP staff. Id. Within these institutions, staff usually designate specific units for placement of developmentally disabled prisoners. Id. Approximately 300 developmentally disabled prisoners are not housed in designated institutions. Salz at RT 133:12-16.

54. To better accommodate the particular needs of prisoners designated as developmentally disabled, CDCR "clusters" these prisoners in designated institutions. Joint Proposed Final Pretrial Order (Dkt.# 366) at 7. In other words, CDCR aims to place prisoners with similar needs together. Id.
55. Although most plaintiff class members are sent to designated prisons, medical and psychiatric needs may override the clustering criteria. Id. Thus, class members with serious medical or mental health needs may be housed in a health care setting. Id.
56. According to the sole defense expert, it is "essential to have a plan such as the [Clark Remedial Plan] for developmentally disabled prisoners." Scaramozzino at RT 891:8-12. Other witnesses agreed: the Clark Remedial Plan is "very beneficial, and ... all parties have agreed on that from the beginning." Salz at RT 157:23-158:1. It is "a program that makes sense." Id. at 159:4-23. The Clark Remedial Plan is "very useful." Subia at RT 255:24-256:18. "[I]t's ... a good thing to have the [Clark Remedial Plan] and in terms of how [CDCR is] administering the prisons, it's helpful." Id. at 257:3-6. The DDP works very well and is a necessary program. Serna at RT 355:16-19, 356:19-21. The Clark Remedial Plan "made some savings to the operation of the prison" by managing the problems that developmentally disabled prisoners face. Scaramozzino at RT 892:2-14. The Clark Remedial Plan "creates a safer environment for [CDCR] staff and for the inmates." Subia at RT 256:19-257:2.
57. Providing the services required by the Clark Remedial Plan does not create a burden for defendants. Subia at RT 256:19-257:2. The placement of developmentally disabled prisoners in the DDP ensures that these prisoners no longer "carr[y] a lot of staff time" and saves defendants money by not requiring "a lot of higher, more expensive levels of custody." Id. at 159:17-23. "[I]t's not a very expensive program to run." Salz at RT 159:9.
F. Definition and Characteristics of Developmental Disabilities
58. The parties are in full agreement regarding the definition and characteristics of people with developmental disabilities. CRP at 1-2; Joint Proposed Final Pretrial Order (Dkt.# 366) at 6. There is no dispute that individuals 1184 with developmental disabilities have cognitive deficits and functional impairments. CRP at 6-7; Dkt. *1184 # 366 at 6. The parties agree that such individuals require support accommodations and are entitled to receive them in prison. CRP at 1-3, 7-9; Dkt.# 366 at 6. The only dispute in this case is whether prisoners with developmental disabilities are being adequately identified and accommodated.
1. Individuals with Developmental Disabilities
59. Prisoners with developmental disabilities are not always easy to distinguish from non-disabled prisoners. According to Dr. Nancy Cowardin, only a small percentage of people with developmental disabilities have identifying physical characteristics or impairments in physical or motor skills. Expert Report of Nancy Cowardin, Ph.D. (Tr. Ex. 5) (Cowardin Report) at 10. Dr. Donald Salz, a CDCR Chief Psychologist with oversight of the Clark program as it applies to mental health issues, agrees. Salz at RT 42:4-9, 91:5-8.
60. In addition, many developmentally disabled people work hard to mask their disabilities. Cowardin Report at 10, 16; Cowardin at RT 626:15-23. Masking behavior is even more common among developmentally disabled people who are considered to be higher functioning with only "mild" support needs 0907the majority of developmentally disabled prisoners. Cowardin Report at 16. Masking results in compensatory behaviors such as wearing a broken watch to provide a reason to ask another person what time it is or carrying a book to pretend to be literate. Cowardin at RT 624:4-625:2. Thus, plaintiff class members may appear to have skills in areas in which they actually require help.
61. Individuals with developmental disabilities also have inconsistent and uneven skill development, which can mask areas of impairment. Cowardin at RT 621:7-20, 626:4-14; Salz at RT 75:25-76:16; Leone at RT 781:18-25. A person with adequate self-care skills, for example, may have significant functional impairments in other areas. Cowardin at RT 621:7-20. Dr. Salz described encountering a prisoner who was able to read entire novels yet was so impaired socially that he required a very high level of supervision. Salz at RT 75:25-76:16.

62. People with developmental disabilities might have deficits in information durability. In other words, they might need repeated reminders, even if the task is one they have undertaken before. Cowardin Report at 12-13; Cowardin at RT 621:21-623:3.
63. Many individuals with developmental disabilities have trouble transferring information: taking a skill they have learned in one area and applying it to a similar task in another area. Cowardin Report at 12-13. At the evidentiary hearing, Dr. Cowardin described how a developmentally disabled prisoner might learn to stay inside the yellow boundary lines painted in his housing unit, but may not apply that skill to another prison if transferred. Cowardin at RT 623:4-624:3; see also Leone at RT 769:6-10.
64. People with developmental disabilities can function well in highly structured environments such as prisons, where personal choices regarding food, clothing and activities are eliminated. Cowardin Report at 36. Prisons, however, also have numerous and complex rules. Id. The stress of learning, understanding, remembering, and complying with the multitude of rules that govern prison life can offset the potential benefits of the highly structured environment for developmentally disabled prisoners. Id.
64. Dr. Cowardin reports that myths about the functional capacities of people with developmental disabilities perpetuate the idea that such "people ... perform poorly due to ignorance, insufficient education, or poor 1185 motivation/effort ...." Id. *1185 at 10. In fact, "a developmental disability is a severe, chronic condition that manifests in the developmental period (birth through age 18), requires an array of mild to intensive supports, and is expected to last for a lifetime. Developmental disabilities may be cognitive, physical, or a combination of both." Id.; see also CRP at 1.
Mental Retardation
66. The most common form of developmental disability is mental retardation. Cowardin Report at 14. Mental retardation is characterized by limitations in intellectual functioning, typically reflected in intelligence quotients of approximately 70 or below and concurrent limitations in adaptive behavior originating prior to the age of 18. Id. Limitations in adaptive behavior required to meet the criteria include deficits in at least one of the following: conceptual skills (reading, writing, math), social skills (gullibility, interpersonal skills, following rules) and practical skills (such as activities of daily living, safety, use of money). Id.
67. Mental retardation is commonly classified as "mild," "moderate," or "severe" in diagnostic and clinical settings. Id. at 15. However, the term "mild" mental retardation is misleading. In fact, everyone with mental retardation has significant functional impairments, compared to people without mental retardation. Id. at 15-16; Cowardin at RT 630:4-631:18. "People with mental retardation have subaverage abilities in multiple areas that impact learning and adaptive functioning." Cowardin Report at 12. Thus, compared to people without mental retardation, they have "low functional skills across the board (e.g., communication, socialization, community/home, independence, and functional academics)." Id.
Autism and Spectrum Disorders
68. Autism and autism spectrum disorders are also developmental disabilities. Id. at 13-14. Autism is a severe cognitive disorder that "originat[es] in infancy or early childhood" and is "characterized by self-absorption, an inability to interact socially, repetitive behavior, language dysfunction, inflexible adherence to specific nonfunctional routines or rituals, stereotyped and repetitive motor mannerisms, and persistent preoccupation with parts of objects." Id. at 13; see also Cowardin 632:7-633:24. Asperger's Syndrome, which is an autism spectrum disorder and "considered a `milder' variant of autism, is characterized by social isolation, clumsiness, and obsessive preoccupation with limited conversation topics." Cowardin Report at 13; see also Cowardin at RT 633:18-24 (characterized by "perseveration on a topic" of conversation), 633:7-9 (explaining perseveration as a fixation on a particular area).

Other Developmental Disabilities
69. Epilepsy, cerebral palsy, and traumatic brain injury are also developmental disabilities. Cowardin Report at 11. Mental illness, on the other hand, is not a developmental disability. Cowardin at RT 631:22-24. Mental illness can co-occur with developmental disabilities, but not all developmentally disabled people have mental illness, and vice versa. Id. at 631:25-632:6. Mental illness is not a cognitive disability; it does not affect intelligence. Id. at 635:16-636:1.
2. Functional Impairments of Prisoners with Developmental Disabilities
70. The parties agree that plaintiff class members may require assistance in multiple areas. CRP at 6-7; Salz at RT 82:21-84:16; Leone at RT 749:4-10; see generally Cowardin Report at 18-36. The Court finds the following are examples of areas in which developmentally disabled prisoners have deficits.
1186 71. Many developmentally disabled prisoners have impaired communication *1186 skills. CRP at 6; Cowardin Report at 26. Many are unable to read and write. Salz at RT 83:4-7, 116:18-21. They have difficulty understanding instructions, especially multi-step instructions, and difficulty with any task that requires writing, such as filling out requests for medical or mental health care and grievances. Cowardin Report at 25-27, 29-30, 32-33. It is difficult for them to express themselves, and they often need assistance choosing words to make their point. Id. at 26. As a result, developmentally disabled prisoners often have difficulty communicating, selfadvocating, and understanding what takes place during prison administrative proceedings and grievance processes. Id. at 25-28; CRP at 6; Salz at RT 83:13-17. They are therefore at risk for unintentionally waiving their rights. CRP at 6.
72. Many prisoners with developmental disabilities have poor socialization skills. Id.; Cowardin Report at 18-21; Salz at RT 83:18-25. These prisoners have a "mental youngness," Cowardin at RT 620:19, and are naive with respect to prison culture and routines. Cowardin at RT 625:3-13; CRP at 6; Salz at RT 83:18-25. This "mental youngness" is especially problematic in prison settings because prisoners exhibiting this characteristic are vulnerable to abuse and manipulation by other prisoners. Cowardin Report at 19-21; Salz at RT 123:11-14, 124:21-125:4; CRP at 6. These prisoners become easy targets for abuse "as their weaknesses becomes obvious to other prisoners in their housing units." Cowardin Report at 19. They might make poor social choices, such as giving their property to other prisoners, increasing their vulnerability and risk of abuse. Id.; CRP at 6; Salz at RT 84:4-16. They are susceptible to becoming involved in a cycle of disciplinary infractions involving other prisoners and staff members as a result of their lack of judgment and inability to understand consequences. CRP at 6; Leone at RT 765:23-766:2; see also Cowardin Report at 18 (failure to "understand the fine points or nuance of complex social situations ... increases the risk that they will misunderstand changing rules and regulations, make poor decisions based on confusion or misunderstanding, and get into trouble").
73. Many prisoners with developmental disabilities are also naive about health and safety. These prisoners have difficulty identifying, treating, or preventing illness, administering first aid to themselves, and understanding sexuality and basic safety. CRP at 7; Cowardin Report at 30. This deficit is especially problematic among developmentally disabled prisoners with poor self-advocacy skills. Because these prisoners may be masking their disabilities, are simply unaware that there is a problem, or do not know how to access assistance, they are not likely to request help. Cowardin Report at 24-25; Cowardin at RT 624:4-12. If they do attempt to self-advocate, they have difficulty complying with multi-step procedures for accessing resources, such as medical and dental services, grievances, the law library, and religious services. Cowardin Report at 30-33.
74. Many developmentally disabled prisoners have poor self-care skills. Id. at 28-30; see also CRP at 6; Salz at RT 84:4-5. They may need reminders to bathe, brush their teeth, and wash their clothes, and they can have soiled or unkempt clothing, poor eating habits, and dirty or disorganized cells. CRP at 6; Cowardin Report at 28.

Poor hygiene further increases plaintiff class members' risk for abuse in a prison environment. Cowardin Report at 29; Salz at RT 113:18-114:8.
75. Prisoners are subject to "an abundance of rules regarding all aspects of their lives." Cowardin Report at 30. 1187 Developmentally disabled prisoners often *1187 have difficulty following rules and seeking needed assistance.
CRP at 6; Salz at 114:9-115:2. Because they have "[i]ssues pertaining to durability of learning," they require repeated reminders about the same rules. Cowardin Report at 31. Developmentally disabled prisoners might have difficulty understanding some rules that may be intuitive to others. Id. at 30-31. Thus, "[s]taff members who suspect a prisoner of being in violation of a rule must consider whether his or her disability was a factor in the transgression." Id. at 31. In addition, to the extent that rules are posted in writing, many plaintiff class members have difficulty reading and comprehending them. Id.
76. Developmentally disabled prisoners often have difficulty with self-direction and making choices. CRP at 7; Cowardin Report at 36. It is difficult for such prisoners to follow schedules, initiate activities that are appropriate to particular settings, complete required tasks, problem-solve, and demonstrate appropriate assertiveness and selfadvocacy. CRP at 7. For example, these prisoners have difficulty choosing and initiating leisure activities and appropriately engaging in those activities by taking turns, communicating with others, and behaving in an acceptable manner. Id. A lack of self-direction can increase their vulnerability. Cowardin Report at 18-19.
77. Similarly, these prisoners have difficulty maintaining work assignments due to inappropriate social behavior and a lack of relevant work skills. Id. at 7. They may be unable to apply functional academic skills to work assignments including managing oneself at work and communicating with individuals in the workplace. Id.
3. Support Services Required by Prisoners with Developmental Disabilities
78. The parties agree that prisoners with developmental disabilities require varied support services to access programs, services, and protection in prison. CRP at 7-9; Salz at RT 82:25-84:16,128:6-17; see generally Cowardin Report at 18-37.
79. Many developmentally disabled prisoners require prompting to begin or complete activities, such as showers, tooth-brushing, access to medical care, laundry exchange, and timely attendance at work and meals. Id.; Cowardin Report at 28-30; Salz at RT 112:19-25.
80. Prisoners with developmental disabilities require assistance by trained staff members to understand and participate in disciplinary, classification, and administrative processes. CRP at 8; Salz at RT 83:13-17. They require staff assistance to understand what is taking place during these proceedings. Salz at RT 83:13-17. They also need help choosing appropriate words to describe their positions. Cowardin Report at 26. Where forms or documents are provided, they need help reading, writing, and understanding those forms. Salz at RT 83:4-7; Cowardin Report at 25-28.
81. Developmentally disabled prisoners often require monitoring and additional supervision of their safety, property, behavior, and self-care. CRP at 8; Cowardin Report at 18-24. Staff members must closely monitor the behavior of developmentally disabled prisoners to ensure that they are not being manipulated to give up property or to violate prison rules. Cowardin Report at 31-32; Leone at RT 771:18-24, 772:16-20. Monitoring is required so that developmentally disabled prisoners do not fall prey to prolonged abuse without understanding that help is available. Cowardin Report at 21; Leone at RT 807:10-16.
82. Many prisoners with developmental disabilities require coaching, especially in work and academic 1188 assignments, to acquire *1188 the skills necessary to complete the activities independently. CRP at 8; see also
Salz at RT 84:17-85:1.

4. All Developmentally Disabled Prisoners Require Individualized and Proactive Help
83. The parties agree that the level of support required by each prisoner varies. Cowardin Report at 17; Salz at RT 82:25-84:16, 85:2-5. Moreover, staff members must consider the individual support needs of each prisoner when providing adaptive support. Leone at RT 755:5-16, 762:23-763:8; see also Salz at RT 122:23-123:10 (officers must monitor developmentally disabled prisoners in proceedings that implicate their due process rights). Simply making generalizations about prisoners based on their classifications as DD1, DD2, or DD3 will not account for uneven skill development and anomalies in support needs that exist between prisoners with the same classification. Cowardin Report at 17-18; Salz at RT 75:25-76:16. Staff members must communicate frequently with developmentally disabled prisoners to determine what adaptive supports they require to access prison programs and services. Cowardin Report at 35-36; see also Salz at RT 122:6-123:2.
84. Because of plaintiff class members' individualized support needs and uneven skill development, it is impossible to make broad generalizations about the support needs of an individual prisoner. Cowardin at RT 621:7-622:19; Leone Report at 2; Leone at RT 749:11; Salz at RT 75:25-76:16, 91:2-18. Rather, an individualized classification system that identifies a prisoner's required level of help in multiple areas is more appropriate. Cowardin at RT 653:12-654:4.
85. Developmentally disabled prisoners who are considered higher functioning and are masking their deficits may forgo asking for help if they think it will make them appear disabled. Cowardin Report at 16. Further, prison culture dictates that prisoners avoid seeking help from prison staff. Salz at RT 122:6-13. It also discourages revealing instances of abuse to staff. Id. at 122:14-19, 126:17-127:9.
86. Thus, it is important for staff to provide proactive assistance and to monitor the support needs of all developmentally disabled prisoners, even those who appear high functioning. Cowardin Report at 16, 35-37; see also Salz at RT 122:6-123-10.
5. CDCR Classification System for Prisoners with Developmental Disabilities
87. Defendants have developed a system for classifying prisoners with developmental disabilities into three categories0907 DD1, DD2, and DD30907based on their level of support needs. CRP at 21-23; Salz at RT 75:3-24. Prisoners classified as DD1 are equivalent to those with "mild" mental retardation. Cowardin Report at 16-18. Although considered higher functioning, DD1 prisoners still require a variety of adaptive supports. Cowardin Report at 17; CRP at 21-22; Salz at RT 75:5-10. Prisoners classified as DD2 function in the "moderate" range of mental retardation and, therefore, require more frequent prompts and adaptive supports than DD1 prisoners. Cowardin Report at 17; CRP at 22-23; Salz at RT 75:11-16. Prisoners classified as DD3 are in the "severe" range of impairment and require regular, intensive prompts and assistance to complete self-care and daily living tasks. Cowardin Report at 17; CRP at 23; Salz at RT 75:17-24. The majority, approximately 55%, of the prisoners identified as developmentally disabled by defendants are DD1. Cowardin Report at 16. DD2 prisoners comprise 40%, and DD3 prisoners 5%, of the prisoners in the DDP. Id.
1189 *1189 II. The Weight of the Evidence Demonstrates Current and Ongoing Violations of the Federal Rights of the Plaintiff Class
A. Expert Testimony
88. In addressing the central issue of whether there exist current and ongoing violations of the federal rights of plaintiff class members, the Court places great weight on the conclusions of Dr. Peter Leone, who has served as

the Court's expert for 12 years. Order Appointing Experts and Prescribing Duties, August 18, 1998 (Dkt.# 180), at 1. Dr. Leone, who was selected and agreed upon by both parties, is highly qualified to serve as an expert. Id. He has a Ph.D. in special education, has long standing memberships in the Council for Exceptional Children and the American Statistical Association, has received numerous research grants over the years, and is currently a professor at the University of Maryland, where his research focuses on, among other things, behavioral problems in institutional settings. Leone at RT 716:21-718:13. Dr. Leone also has extensive experience working with adult corrections in Maryland, Florida, Texas, Illinois, Pennsylvania, New York, Connecticut, and New Hampshire. Leone at RT 719:14-719:24. Dr. Leone has prepared teachers in the Maryland Department of Corrections to work with developmentally disabled individuals and researched and prepared a report for the National Institute of Corrections on the Texas Mentally Retarded Offender Program. Leone at RT 719:2-719:13. Defendants have never previously challenged his ability to assess compliance with the Remedial Plan. Leone at RT 726:8-726:11. Nor have defendants previously questioned Dr. Leone's expertise to opine about the Developmentally Disabled Program (DDP) in the prisons. Leone at RT 721:17-21.
89. To reach his conclusions in this action, Dr. Leone conducted an extensive and rigorous investigation, including site visits at seven state prisons, at which more than half of the identified Clark class members reside. Peter E. Leone, Ph.D., On the Status of Inmates with Developmental Disabilities in the California Department of Corrections and Rehabilitation, Feb. 15, 2010 (Tr. Ex. 1) (Leone Report) at 2; see also Tr. Ex. 20 (listing numbers of developmentally disabled prisoners at each prison, including those Dr. Leone visited). He interviewed 152 prisoners (more than 10 % of identified Clark class members) and 29 prison staff members. Leone Report at 2-3.
90. Dr. Leone has conducted thousands of interviews of prisoners to develop his interview methodology. Leone at RT 734:22-735:4. For this investigation, he interviewed prisoners in a confidential setting and used a standard set of questions for his interviews. Leone at RT 735:5-13, 732:19-24. He developed a standardized rating system to rank prisoners' well-being at the various prisons, and placed prisoners in the three categories conservatively: if in doubt, he categorized the prisoner as having fewer problems. Leone Report at 5, Leone at RT 802:7-13. He also conducted a correlation study to determine whether developmentally disabled prisoners considered more impaired (i.e., DD2 or DD3) reported proportionally more problems than developmentally disabled prisoners considered less impaired (i.e., DD1). The study demonstrated that there was little or no connection between the level of a developmentally disabled prisoner's disabilities and the severity of the problems reported. Leone at RT 743:11-746:11.
91. Moreover, Dr. Leone did not take everything prisoners told him as true. Instead, using a method he calls 1190 "triangulation," he evaluated the credibility of the *1190 prisoners and corroborated the statements with other
prisoners, prison documents, staff interviews, his own personal observations, and conversations with persons outside of prison. Leone at RT 729:14-730:1, 740:18-741:4.
92. The conclusions Dr. Leone reached were highly consistent with much of the testimony, deposition excerpts and evidence presented at trial. Defendants introduced no evidence at the hearing to contest any fact on which Dr. Leone based his opinions.[3] The only rebuttal defendants offered was that of Dr. Scaramozzino. As discussed infra in § III.C, Dr. Scaramozzino provided no credible rebuttal testimony because he is not an expert in the relevant areas and knows little about actual conditions for developmentally disabled prisoners in California prisons. Further, as § III.C sets forth in greater detail, he withdrew some of his criticisms of Dr. Leone after being presented with evidence that his assumptions were incorrect, and the remainder of the criticisms are unconvincing.
93. In sum, Dr. Leone's expertise, depth of knowledge, experience in this case, and reasonable conclusions are entitled to great weight.
B. Defendants Fail to Adequately Identify Developmentally Disabled Prisoners
94. The parties agree that prisoners identified as having developmental disabilities in California prisons are entitled to receive accommodations under federal law and the Clark Remedial Plan. Leone Report at 1-2;

Settlement Agreement & Order (Dkt.# 194) at 2; Joint Proposed Final Pretrial Order (Dkt.# 366) at 6-8. To provide those accommodations, defendants must accurately identify prisoners who are developmentally disabled. Defendants concede that they cannot guarantee protection and accommodation for class members who are not identified. Salz at RT 128:2-17. Thus, it is essential that defendants accurately identify prisoners with developmental disabilities in order to ensure those prisoners receive the protections and accommodations required under the Clark Remedial Plan and federal law. Nevertheless, the evidence at trial raises serious questions about whether defendants are identifying all prisoners with developmental disabilities.
1. Multiple Reliable Sources Suggest that 2-4 % of the Prison Population is Developmentally Disabled
95. Both the Court expert, Dr. Leone, and plaintiffs' expert, Dr. Nancy Cowardin, agree that, although they vary widely, the most conservative and reliable estimates suggest that developmentally disabled prisoners comprise at least 2-4 % of the prison population. Leone at RT 793:13-794:1 ("[t]he prevalence currently in the system ... is significantly below the most conservative estimates that researchers and scholars have opined about"); Leone Report, 1 n. 1; Cowardin at RT 641:7-11, 644:23-645:10 (citing studies that show expectations of 2-10 % of prisoners have mental retardation); see also Cowardin Report at 15-17.
96. Multiple studies on the prevalence of developmental disabilities in prison support the opinions of Dr. Leone and Dr. Cowardin that the prevalence rate for developmental disabilities in prison should be at least 2-4 %. Dr. Leone relies primarily on two studies that discuss the prevalence rate of developmental disabilities in prison. See 1191 J. Jones, Persons with Intellectual Disabilities in the Criminal Justice System, Int'l J. of Offender Therapy *1191 & Comp. Criminology, 723 (2007) (Jones); and J.H. Noble & R.W. Conley, Toward an Epidemiology of Relevant Attributes, The Criminal Justice System and Mental Retardation: Defendants and Victims (R.W. Conley et al. eds., 1992) (Noble & Conley). Both publications are surveys of other more in-depth studies. Jones at 724-25, Noble & Conley at 27-34. The Noble & Conley text is a comprehensive survey of studies conducted for the purpose of identifying the percentage of mentally retarded people in state and federal prisons. Noble & Conley at 28-34. Drs. Noble and Conley identify and list the specific tests that were used in different states and describe the methods for administering testing in those states. Id. The Noble & Conley study identifies where the reliability of the data was tested and validated. Id. at 28, 30. Despite noting wide variations in the prevalence rates between states, both studies find a prevalence rate of 2% to be on the low end of rates identified by states. Id. at 37; Jones at 724.
97. Dr. Petersilia's report, relied on by Dr. Cowardin, like the studies cited by Dr. Leone, surveys research examining the prevalence rate of people in prison with developmental disabilities. Tr. Ex. 477 at 25-26, J. Petersilia, Doing Justice? Criminal Offenders with Developmental Disabilities (California Policy Research Center 2000) (Petersilia) at 5. Dr. Petersilia concludes that research confirms an estimated 4-5 % of people in prison have mental retardation/developmental disabilities. Id. at 25-26.
98. The Court finds the opinion of the experts on this issue is reliable and persuasive.
2. Defendants Have Only Identified .80 Percent of the Prison Population as Having a Developmental Disability
99. Defendants use a three-step screening process to identify prisoners with developmental disabilities. CRP (Tr. Ex. 476) at 3-11; Salz at RT 44:13-45:13, 46:8-47:13. The first step in the screening process includes a brief, tenminute IQ screen called the Quick Test. CRP at 4-5; Salz at RT 44:11-45:13. Only prisoners who score 80 or less on the Quick Test will move on to the second step in the screening process, a more extensive cognitive screening tool called the Test of Nonverbal Intelligence or TONI-Third Edition (TONI). Salz at RT 44:11-45:13. Those prisoners who score 80 or less on the TONI will be evaluated by prison staff to measure their adaptive functioning deficits in the correctional setting. Id. at RT 46:25-47:16. Prisoners who pass all screening tests can be referred for reevaluation later by any staff member who observes behavior indicating that the prisoner may have a developmental disability. Id. at RT 73:6-74:2; CRP at 15-16.

100. Under the current process for screening, defendants have identified approximately 1,348 prisoners, or .80 % of the total prison population, as developmentally disabled. Salz at RT 51:8-20, 66:13-25. The prevalence rate of developmental disabilities in California prisons, as determined by defendants, has remained constant at .80 % since 2002 when defendants completed testing of all existing prisoners. Id. at RT 66:13-25.
101. None of defendants' evidence credibly explains the disparity between the two figures 0907the .80 % of prisoners identified by defendants and 2-4 % that Drs. Leone and Cowardin believe are in the prison system. Defendants justify the lower figure on two grounds. First, defendants state that since completing testing of prisoners in 2002, they have consistently identified .80 % of the population as developmentally disabled. Id. The Court rejects this 1192 circular reasoning. Defendants have presented no evidence demonstrating *1192 that the screening process has been validated to ensure that it identifies developmentally disabled prisoners accurately and reliably. And, to the knowledge of the Court expert, no validation tests have been conducted. Leone at RT 794:2-18, 795:9-13. Thus, the only conclusion that can be drawn from this fact is that the screening process identifies a consistent percentage of prisoners as disabled, not that the screening process accurately identifies a consistent percentage of prisoners as disabled.
102. The only support for defendants' position is the testimony of Dr. Salz about the prevalence of developmental disabilities in other state prison systems. Dr. Salz testified that he received information regarding prevalence rates in other states from a survey, based on self-reporting by states, put together by an Oklahoma prison psychologist. Salz at RT 145:22-146:6, 146:22-24, 148:15-21, 149:1-21. The survey is unpublished and was not offered or admitted into evidence. Id. at 149:15-24. Dr. Salz does not know what states are covered in the survey, what definition of developmental disabilities is being used, what tests or other criteria are used, or whether the self-reported information from the states is even accurate. Id. at 146:25-147:10, 147:22-148:8. Furthermore, Dr. Salz admits that he is unaware of any empirical research studies regarding the prevalence rate of mental retardation in prison. Id. at RT 64:1-9.
103. The Court finds the opinions of experts Drs. Leone and Cowardin more reliable. First, Dr. Leone is the neutral Court-appointed expert in this case, who has direct experience in numerous other correctional systems. Leone at RT 719:14-7:20:5. He has served in this role for 12 years. Id. at RT 719:25-720:5. Defendants have never contested his expertise to opine about the developmental disabilities program in California and, in fact, defendants have called on his expertise and opinions regarding the developmental disabilities program multiple times. Id. at RT 720:2-721:21. Defendants have similarly called on the expertise of Dr. Cowardin. Cowardin at RT 616:13-617:1, 638:7-18; Cowardin Report at 7. Dr. Salz, on the other hand, was not called as an expert by defendants, has apparently never served as an expert, has experience which is limited to California, and is responsible for the screening procedures that are being called into question. Salz at RT 40:7-23, 42:4-9, 42:15-43:3, 64:21-66:5, 67:17-68:7.
104. Second, the opinions of Drs. Leone and Cowardin are grounded in the scientific literature on this issue. Both of these experts rely on published studies of the prevalence of developmentally disabled individuals in prison and published articles analyzing those studies. Tr. Ex. 1 at 1, 4; Cowardin at RT 667:10-668:9, 670:24-674:19. Dr. Salz, on the other hand, relies exclusively on California's experience with the results of the procedure he supervises and an unpublished informal survey by a prison psychologist from Oklahoma, neither of which is an adequate basis for his opinion. Salz at RT 64:12-67:6, 149:15-21. Accordingly, the Court finds that the opinions of Drs. Leone and Cowardin are entitled to more weight.
105. Credible expert opinions compel the finding that the methodology used by defendants to identify prisoners with developmental disabilities likely under-identifies the number of developmentally disabled people in California prisons.

C. The Evidence Demonstrates that Defendants Continue to Fail to Provide Plaintiff Class Members with Access to Prison Programs, Services, and Activities
1193 106. Plaintiff class members are entitled to assistance and protection they need *1193 in order to have access to prison programs, services, and activities. See infra § I.C.1. That right includes assistance in disciplinary and other administrative proceedings. See id. The weight of the evidence demonstrates that defendants fail to provide the assistance required to secure these rights.
1. Defendants Systematically Fail to Provide Required Help with Reading and Writing
107. Most developmentally disabled prisoners need help reading and writing. Salz at RT 116:18-20; 83:4-7. If developmentally disabled prisoners who need help reading and writing do not receive assistance from staff, they cannot file grievances, complaints against staff members, or sick call slips to obtain medical or mental healthcare. Id. at RT 117:5-22. The failure to provide such assistance violates the CRP. Salz at RT 119:10-11.
108. Defendants have failed to provide systemic support to developmentally disabled prisoners who require assistance reading and writing. The Court's expert, Dr. Leone, testified that in "most cases" staff did not "respond to the ... problems of daily living" including the "inability of many of these inmates to read or to advocate for themselves." Leone at RT 755:5-16; see also Leone Report (Tr. Ex. 1) at 3-4, 11-14 (detailing representative evidence that Leone relied on for this conclusion); Tr. Ex. 303 (DD2 prisoner complains "there is no-one to help with" reading or writing); Tr. Ex. 237 (DD prisoner frustrated because unable to speak to DDP officer); Tr. Ex. 265 (DD prisoner complains that "the DDP are not helping" him).
109. Dr. Leone's conclusions regarding the failure to provide required accommodations were borne out by other evidence in the case. The testimony of several prison staff members demonstrated their ignorance of their obligation to provide reading and writing support. Gonzalez Dep. (Tr. Ex. 483) at 80:9-12 (ADA Coordinator at California Medical Facility [CMF] admitted he did nothing to ensure "that staff was providing reading and writing assistance"), 55:23-56:20 (did nothing to ensure the librarian was helping DD prisoners); Nies Dep. (Tr. Ex. 492) at 77:16-17, 77:24-78:15 (ADA Coordinator at Deuel Vocational Institution [DVI] testified his staff expects DD prisoners to go to other prisoners first and "are trained to provide that type of assistance [reading and writing sick call requests] if there's no one else available"); Mandeville Dep. (Tr. Ex. 485) at 109:25-110:11 (ADA Coordinator at CMF concerned that "the services are not being provided as intended" because she has heard that prisoners are going to other prisoners for assistance); Banks Dep. (Tr. Ex. 484) at 73:23-25 (DDP Officer at CMF admits that she does not "ever help with completing sick call requests").
110. Testimony from plaintiff class members also established defendants' failure to provide the reading and writing support needed to allow these prisoners to participate as fully as non-disabled prisoners in prison programs, services, and activities. See Davenport Dep. (Tr. Ex. 498) at 14:24-15:21, 23:16-24:5, 38:16-21 (request for assistance with laundry slip repeatedly ignored), 18:25-19:9 (explained to staff he could not read military time and was told to learn), 19:13-20:9 (requested assistance writing a grievance against a staff member and was referred to that staff member and "[n]othing came of it" so had to pay another prisoner to write grievance); Mendez Dep. (Tr. Ex. 480) at 13:21-25, 17:4-17 (asked for staff help with sick call slip and was told "you've got to find an inmate to do it"), 21:25-22:4 (told to find a prisoner to help him read and write letters), 22:21-23:2 ("quit asking" for help from DDP officer after trying three or four times without success), 33:22-35:12 1194 (had to rely *1194 on other prisoners to read his disciplinary write-ups to him on three different occasions); Houseknecht at RT 1001:2-18 (needed help filling out complicated prison forms, but nobody offered to help him read or write); Wright Dep. (Tr. Ex. 496) at 77:6-25 (officers who deliver prison papers to him do not read them to him); Smith at RT 512:20-23, 513:2-4, 9-17, 513:25-514:15 (needs help filling out forms such as grievances, canteen slips, and sick call requests but living unit officers have "refused to help [him] read and write"), 515:8-15

(DDP officer refused to help file a complaint against another staff member), 519:24-520:10 (has asked DDP Counselor Rhodes "for help many a times" but stopped because never receives help), 516:10-517:5 (has to pay other prisoners $5 to $7 in food and cosmetics to help him read and write canteen slips, sick call slips, and grievances because DDP officer "is never around"), 517:11-17 (has to wait until he has money to obtain help). CDCR headquarters officials do not monitor sufficiently to ensure compliance with defendants' obligations. Salz at RT 142:9-11, 17-20, 143:2-6, 9-13 (admits that he does not monitor 0907nor have personal knowledge of 0907whether DD prisoners are receiving assistance with reading and writing); Wells at RT 555:8-12 (does not know whether all DD prisoners receive needed help reading and writing).
a. Because of Defendants' Failure to Provide Required Reading and Writing Help, Plaintiff Class Members Are Forced to Pay Other Prisoners for Such Services, Which Exposes Them to Abuse
111. Because developmentally disabled prisoners do not receive staff assistance with reading and writing, they are forced to pay other prisoners for such services, which exposes them to abuse and exploitation. See Subia at RT 248:14-249:2. Dr. Leone found a widespread practice of prisoners using their canteen items, packages from home or parts of their meals to pay for reading and writing support from other prisoners. Steven Ramirez (# 153) had to give up his lunch in order to get another prisoner to write for him. Leone Report at 13. Trynon Jefferson (# 78) gives other prisoners food and coffee for helping him with his grievances. Id. at 12. Curtis Brumfield (# 149) has had to pay his cellmate with cookies for help writing documents. Id. at 13. Kuykendal Neirobi (# 25) pays other prisoners with lunch food to file a grievance. Id. at 14. Prisoner # 42 has to pay in soups to have someone write letters for him. Id. at 11. Prisoner # 40 also pays in soups to have letters read and written. Id. at 11-12. Prisoner #41 pays other prisoners $2 to write letters home. Id. at 6. Latrill Wilkerson (# 28) pays other prisoners to file grievances for him. Id. at 14. Celeste Jordan (# 43) is regularly pressured to give up his canteen; his help mostly comes from other prisoners. Id. at 6. Rudy Lopez (# 37), who cried during his interview with Dr. Leone, said he cannot read or write to file a grievance and is regularly forced to give up his canteen. Id. at 3 n. 6. Evidence from the testifying class members substantiated Dr. Leone's findings. Mendez Dep. at 24:22-25:5, 44:10-21 (pays prisoners with items from his packages for reading and writing help; cost $40 to have grievance written); Davenport Dep. at 13:13-14:7 (pays other prisoners to help him); Petties Dep. (Tr. Ex. 495) at 13:18-15:16 (has to pay a prisoner to help him write). Dr. Salz, at CDCR headquarters, even acknowledges this practice. Salz at RT 117:19-22 (DD prisoners who need help reading and writing might have to pay another prisoner to help them).
112. It is dangerous for developmentally disabled prisoners to rely on other prisoners' assistance. Salz at RT 1195 117:1-4. It creates a security risk if prisoners pay other prisoners for services because in a *1195 prison
economy, if prisoners do not pay their debts, it can lead to violence. Subia at RT 248:14-49:2; see also Cowan Dep. (Tr. Ex. 494) at 121:16-22:17 (concerns about prisoners providing reading and writing assistance to other prisoners because it leads to "predatory behavior," disclosure of confidential information, and non-disabled prisoners "tak[ing] advantage").
b. Defendants' Failure to Provide Required Reading and Writing Help to Plaintiff Class Members Denies Them Access to Medical Care
113. Without adequate support from defendants, plaintiff class members are denied access to necessary medical treatment. See Cowardin Report at 34. The process for obtaining medical treatment involves completing forms, describing problems, requesting treatment, and reading medication labels; developmentally disabled prisoners are "unlikely to know about or access such forms." Id. at 32-33. They generally need assistance reading, understanding, and completing these forms. Id.
114. To illustrate this problem, Dr. Leone pointed to the example of Mr. Brumfield (# 149), a diabetic, who "was afraid of losing his feet" because he was concerned about the length of time between receiving his meal and receiving his insulin. Leone at RT 770:12-15; 777:11-12; 777:17. "He hadn't seen a Doctor in awhile." Id. at

777:19. Mr. Brumfield is illiterate and "when he asks [officers] for help they tell him to ask his bunky or his cellmate." Id. at 777:7-9. But his cellmate told him, "I can't do your time and my time." Id. at 777:9-10; see also Tr. Ex. 4 at 2 (DD prisoner who has ongoing medical problems had medical procedure cancelled because he ate or drank water after midnight the evening before his scheduled medical procedure; he did not know not to do so); Leone at RT 752:10-753:9 (DD prisoner relied on cellmate to arrange appointment with the eye doctor; "he wasn't able to get assistance except through his cellmate, and so his cellmate was writing his request to see medical staff"); see also Tr. Ex. 423 (DD prisoner did not receive medical care for three-week-old injury because no assistance to write request).
c. Defendants' Failure to Provide Required Reading and Writing Help to Plaintiff Class Members Deprives Them of Appropriate Access to Canteen Purchases
115. Defendants' failure to help developmentally disabled prisoners fill out canteen forms forces "illiterate inmates to secure the help of others in order to complete the process," which puts them at "risk of exploitation and abuse by prisoners who take advantage of the situation." Cowardin Report at 22-23. Given their adaptive deficits, developmentally disabled prisoners face many difficulties in successfully completing the complicated canteen process, which requires a prisoner to fill out the appropriate form to withdraw money from his account, read and identify what items to purchase on a pre-printed form, calculate the total value of selected items and determine if it exceeds the amount in his account, find the canteen, deliver the form to the appropriate person or in-box, determine if he received all the items requested on the form, ensure the correct amount was deducted from his account, pick up the purchase, and transport it safely back to his housing unit. Id. at 23.
116. Dr. Leone found that prisoners who cannot read or write are unable to participate in canteen. Canteen problems were "widespread" in his prison tours, for all DDP designations. Leone at RT 774:7-10. Some 1196 developmentally disabled prisoners "have problems just filling out the *1196 request" for canteen. Id. at 771:16-19; see also Smith at RT 516:10-517:5 (has to pay other prisoners from $5 to $7 in food and cosmetics to help him read and write canteen slips, sick call slips, and grievances because the DDP officer "is never around"); Blake Dep. (Tr. Ex. 497) at 81:10-83:19 (needs help filling out canteen forms.) One plaintiff class member noted he was regularly pressured to surrender canteen items without recourse. Leone Report at 3, n. 6 (Mr. Lopez (#37) was forced regularly to give up his canteen; he does not know how to read or write or file a grievance).
d. Defendants' Failure to Provide Required Reading and Writing Help to Developmentally Disabled Prisoners Denies Them Access to the Prison Grievance System and the Courts
117. Defendants' failure to provide the support required to allow plaintiff class members to pursue grievances prevents them from meeting the exhaustion requirement necessary to achieve court redress. See 42 U.S.C. § 1997e(a). DDP staff is required to provide assistance that includes "completing any forms or documents necessary to secure any rights or benefits available to non-disabled inmates." CRP at 8. More specifically, developmentally disabled prisoners must have meaningful access to a law library. Cf. Bounds v. Smith, 430 U.S. 817, 829, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). As envisioned by the Plan, this requirement means that DDP staff at designated institutions must offer the following services: (1) provision of forms and assistance in reading and "scribing" them; (2) identifying and providing research materials; (3) making an electronic or prisoner reader available; and (4) submission of forms/documentation to the court. CRP at 47. The form for initiating grievances for prisoners is called Form 602.
118. Dr. Leone found that staff is not assisting prisoners with writing grievances. "[S]ome inmates indicated they did not know how [to] file [a] 602 because they couldn't write. Some inmates indicated that they had their 602's returned to them." Leone at RT 819:12-17. On one occasion, a developmentally disabled prisoner's form was returned because he had not written it himself. Id. "[S]ome of them said ... I file a 602 and I never hear back

about it, I don't know what happens." Id. at RT 830:15-17. Leroy Hawkins (# 133) was "told by [correctional officers] that it was not the job of the DD [correctional officers] to write 602s (appeals) for inmates." Leone Report at 12.
119. Dr. Leone also found that developmentally disabled prisoners are unable to file grievances because prison staff members do not assist them with library services. Leone at RT 819:18-22. For example, Mr. Dupont's (#21) locker was broken into and he lost most of his possessions. Leone Report at 9. The Victims Compensation and Government Claims Board advised him that he could file suit for compensation, but "when he tried to get assistance from" the Library Technical Assistant (LTA), she stated "that she cannot help file lawsuits against the State." Id. Similarly, Michael Bell (# 83) reported that the LTA "told him that she can't write anything for him that goes out of the institution." Id. at 12; see also Tr. Ex. 4 at 3-4 (LTA Ibbotson "indicated that she was told not to assist DD inmates with 602s" and the "lack of support for filing 602s was expressed by several inmates who complained that they had no one to assist them if they did not know an inmate who could help"), 2-3 (LTA said "she couldn't help [him] with a 602 while he was in the `hole'"), 2 (Messrs. Wells, Mickiewicz, and West "reported 1197 that officers were not available to help and that they relied on cellmates to read materials to them ... *1197 Several inmates who asked correctional officers or the library technician for assistance reported being told to ask other inmates for help").
120. Testimony from plaintiff class members corroborated Dr. Leone's findings. Daniel Mendez had to pay other prisoners to get help reading and writing grievances. Mendez Dep. at 23:12-17; 24:19-21. It cost him $40 to get a grievance written, which was measured by the other prisoners by calculating the value of items from his packages sent by his mother. Id. at 23:15-24. Twice he had to give up part of his package to pay for grievances. Id. at 24:8-12. Brandon Petties filed a grievance for not getting enough yard time it 0907 was written by other prisoners. Petties Dep. at 49:15-50:1. The grievance was denied and he was never told why. Id. at 50:6-25; see also Davenport Dep. at 19:13-20:9 (officer refused to help Mr. Davenport write a grievance and he had to pay another prisoner to write it); Smith at RT 515:8-15 (DDP officer refused to help him file a grievance).
121. Prisoners who file grievances sometimes face retaliation from staff for doing so. See Leone at RT 828:3-20 (prisoner faced same-day retaliation by an officer who had given him a disciplinary write-up because the prisoner had filed a grievance appealing the disciplinary write-up and it was granted), 828:21-829:24 (another incident of retaliation against a prisoner who filed a grievance), 762:21-763:1 (prisoner filed a grievance against an officer and his possessions were subsequently "lost"; officer told him "[t]hat will teach you to file a 602"); Leone Report at 8-9.
e. The Evidence Clearly Shows that Defendants Fail to Provide Proactive Adaptive Support
122. It is not disputed that defendants must be proactive in offering adaptive support to plaintiff class members. As Dr. Salz testified, "[i]t's essential for staff who are responsible for addressing the needs of developmentally disabled prisoners to be proactive." Salz at RT 122:2-4; see also Cowardin Report at 35-36. In Dr. Salz's words, "[c]orrectional officers have to offer help" to developmentally disabled prisoners "and not just respond to complaints" because "the other way would not be effective due to prison culture. But we have to be teaching them that we need to change the culture so that prisoners know that an officer will help. But they won't know that unless the officer tells them, `I will help you.'" Salz at RT 122:6-13.
123. However, the evidence reflects that defendants fail to proactively offer adaptive support assistance. See, e.g., Pearson at RT 372:12-14 (DDP officer does not ask DD prisoners if they need help with reading and writing, but waits for them to come to her); Banks Dep. at 16:25-17:21 (DDP officer states that if DD prisoners need assistance with writing forms, they would come to her; she has not had a prisoner come to her); Clausing Dep. (Tr. Ex. 491) at 96:12-98:5 (DDP officer never approached by some DD prisoners to ask for help reading and writing, and he will not go to them and ask them if they need help reading and writing, even if prisoner's Form 128C-2 indicates the prisoner needs help), 101:16-106:9 (did not offer to write grievance for DD2 prisoner complaining that his television was wrongfully taken by staff); Nies Dep. at 111:8-15 (ADA Coordinator does not read or explain written orientation materials to DD prisoners).

2. Defendants Systematically Fail to Provide Necessary Help with SelfCare
124. Many plaintiff class members need help to remember to perform basic self-care activities such as eating and cleaning themselves. The evidence shoes that these needs are not being met.
1198 *1198 a. Without Proper Accommodations Some Plaintiff Class Members Cannot Take Care of Themselves
125. Dr. Leone found pervasive problems for plaintiff class members who were unable to attend to their self-care needs without assistance. See, e.g., Leone at RT 775:25-776:10 (Mr. Anthony Roque (# 139) forgot his utensils and was forced to eat with his hands because staff would not let him back in the housing unit to retrieve his utensils), id. at 754:14-755:2 (several prisoners wore the same clothes for a long period of time because they never received their clothes back or did not understand what to do to get clean clothes).
126. In particular, class members are not receiving the assistance they require to maintain their own personal hygiene. Dr. Leone found that "[s]everal inmates I interviewed had not bathed in some time; others were disheveled and dirty and clearly needed assistance in meeting their daily needs." Leone Report (Tr. Ex. 1) at 9; see also id. at 17 (Mr. Rice (# 154) was filthy, smelled, and staff had noted that he had "extremely poor personal hygiene"), 7 (Mr. Houseknecht (# 109) had not showered in more than a week); Tr. Ex. 4. at 2 (three prisoners reported that officers were not available to help and they had difficulty showering on a regular basis), id. ("[s]everal other inmates had significant hygiene issues that required attention"), id. (had not showered for three and a half weeks and did not have a towel.); Leone at RT 752:21-753:4 (Mr. Bradley (#55) smelled and had not showered recently; he was "pretty unkempt"); Tr. Ex. 444 (clinician observes over a three-month period that DD2 prisoner had "poor grooming0907very long greasy hair and a shirt that is very dirty from his hair grease 0907over many weeks likely"); Tr. Exs. 428-429, 432-434, 438-439 (clinician notes over a ten-month period the "poor hygiene and grooming," "unkempt" appearance and "body odor" of DD2 prisoner who requires prompts and who "does not take showers as scheduled"); Tr. Ex. 243.
127. Dr. Leone also found that defendants fail to provide necessary prompting and assistance to prisoners who require help with basic grooming. Tr. Ex. 4 at 2-3 (prisoner's fingernails extended well beyond the end of his fingers and were curved and cracked; he had been in administrative segregation for roughly three months and had no way to cut his nails); Leone Report at 14 (prisoner reported that he has to pay $1 for a haircut; his hair was long and unkempt but he was waiting for two soups so he could afford to pay for a haircut).
128. Testimony from plaintiff class members bolsters Dr. Leone's conclusions. Smith at RT 526:6-8, 526:13-20 (needs reminders to take showers and his cellmate or friends remind him because staff fails to do so; as often as three times a week he forgets to shower at all because nobody reminds him), 526:22-527:7 (needs reminders to do laundry but staff does not help him with this process; friend fills out his laundry slip); Davenport Dep. (Tr. Ex. 498) at 108:17-109:1, 18:13-22 (forgets "to shower ... a lot;" officers do not prompt him to shower, his bunkie tells him when to shower), at 109:17-22 (forgets to go to meals three times a week); Houseknecht at RT 1032:17-21, 1033:4-14 and Tr. Ex. 261 (took only two or three showers in the two months that he was in administrative segregation and did not have a blanket for two months; CASE evaluation indicates that he has difficulty reading and telling time and that his cellmate cleans the cell and tells him what to do); Tr. Ex. 303 (DD prisoner thinks he submitted laundry slip but has not received any clothing for five months); Mendez Dep. (Tr. Ex. 480) at 38:19-39:17 (sometimes forgets to take showers and his underarms smell; other prisoners told him to take a 1199 birdbath but *1199 staff did not remind him to take showers), 40:6-41:3 (staff did not tell him it was time to exchange laundry; had to pay another prisoner $15-20 a month to help him remember), 167:10-18 (staff at SATF and Wasco never reminded him to brush his teeth), 41:1-3 (another prisoner helped him get orthopedic shoes): Blake Dep. (Tr. Ex. 497) at 52:4-53:12 (needs prompting to remember to take medications; failed to take medicine because he forgot), 53:17-24, 55:15-18 (at times, needs prompting to remember to take showers and do his job); Wright Dep. (Tr. Ex. 496) at 37:20-25 (staff never ask him if he needs help filling out laundry slips),

38:19-39:13 (other prisoners talk about his laundry when he has not changed his shirt in a few weeks but DDP officers do not remind him).
b. Prisoners Who Cannot Keep Themselves Clean Are at Risk of Harm
129. Because staff fails to provide the necessary adaptive services, plaintiff class members are exposed to harm. Developmentally disabled prisoners who cannot attend to their basic hygiene face negative consequences from other prisoners. Salz at RT 113:18-114:8; see also id. at 113:1-5 (DD prisoner who needs prompting to complete self-care could suffer "serious consequences" if not prompted).
130. Dr. Cowardin agreed, and explained further: "[i]n places such as prison, where people are confined in close quarters such as small cells and overcrowded dorms, proper hygiene can become a serious safety concern. Prisoners with poor hygiene, regardless of the reason, can become the target of assault by others." Cowardin Report at 29. Dr. Leone further elaborated: "inmates who don't regularly bathe ... become social pariahs," transmit disease, and "have all kinds of problems in a prison setting." Leone at RT 751:4-8. Prisoners who have trouble with self-care are identified as "potentially vulnerable," and some are harassed, and even attacked, for their vulnerability and unacceptable hygiene habits. Leone at RT 751:4-10; Wright Dep. at 45:6-23 (had conflicts with former bunkie about the mess around his bed), 38:10-18 (bunkie confronted him about having dirty laundry and "smelling up the area"); Mendez Dep. at 39:5-10 (sometimes forgets to take showers and "inmates get mad" at him); Smith at RT 526:6-527:7, 527:21-528:11 (needs prompts to shower and do laundry and was attacked and beaten "for getting in the wrong shower").
c. Prison Staff Members Do Not Provide the Necessary Support
131. Dr. Leone concluded that the serious deficits he saw and learned about were a result of failures on the part of prison staff. Leone Report at 3 ("[a] number of inmates were dirty and unkempt suggesting that [correctional officers] were not prompting them to shower and change clothes regularly"). According to Dr. Leone, "the expectation is that trained correctional staff are tuned into and are able to respond to the kind of problems of daily living, the particular vulnerabilities, the inability of many of these inmates to read or to advocate for themselves" but, in "most cases," he did not find that staff was aware of these kinds of issues. Leone at RT 755:3-16. One reason that staff does not accommodate the needs of plaintiff class members is because "in many cases" developmentally disabled prisoners are "intimidated by staff and [don't] feel comfortable asking for assistance." Id. at RT 753:16-19.
132. The evidence supports Dr. Leone's opinion. DDP officers do not monitor developmentally disabled prisoners' daily activities or maintain frequent contacts with them. Banks Dep. (Tr. Ex. 484) at 32:20-35:12 (DDP Officer 1200 Banks at CMF: "I don't do nothing on a daily basis *1200 with the particular DD inmates"), 36:18-37:11 (does not prompt DD prisoners to shower, clean cells, change clothes, or brush teeth), 72:8-12 (does not prompt DD prisoners to attend meals), 72:13-15 (does not check if they are sending in laundry), 72:16-18 (does not inspect cells to see if they are clean), 64:5-7 (does not contact DD prisoners' work assignment supervisor), 83:13-16 (has never been told by a supervisor that she does not have enough contact with DD prisoners); Tr. Ex. 406 and Clausing Dep. (Tr. Ex. 491) at 120:18-128:13 (log documenting that a DD2 prisoner who was incontinent was prompted to shower only once over the course of one month).
133. At least one DDP counselor, by her own admission, fails to ensure that the required adaptive services are provided. DDP Counselor Brown at CMF cannot recall helping developmentally disabled prisoners access health care and does not know what an Interdisciplinary Support Team (IDST) is and has never been a member of an IDST, even though Dr. Salz testified that the correctional counselor is a "mandatory member" of the IDST.[4] Brown Dep. (Tr. Ex. 481) at 72:1-8, 132:4-13; Salz at RT 96:5-7; see also Brown Dep. at 34:17-35:6 (the only prompt she could remember giving was for prisoners to get clothes washed), 27:4-16 (the only characteristics of DD prisoners she could think of were cognitive issues).
134. ADA Coordinators admitted to supervision so lax that they cannot be ensuring the reminders to perform basic self-care are provided. Nies Dep. (Tr. Ex. 492) at 99:21-100:4 (ADA Coordinator at DVI does not know

whether housing officers speak to DD prisoners on a daily basis); Gonzalez Dep. (Tr. Ex. 483) at 51:22-52:8 (ADA Coordinator at CMF does not know whether prompting to use yard took place; did not check to ensure); Ynson Dep. (Tr. Ex. 490) at 162:19-23 (does not know if there were any mechanisms in place to monitor compliance with CRP while he was an ADA Coordinator), 76:12-77:6 (ADA Coordinator at Lancaster believes "contact" is made if staff checks on class member and sees that he is asleep or finds that he is not in his cell), Prud'homme Dep. (Tr. Ex. 488) at 74:3-75:8; 79:11-16 (ADA Coordinator at SATF does not have an opinion as to whether a DD2 prisoner who urinates and defecates on himself should be prompted to shower, after reviewing evidence that an incontinent developmentally disabled prisoner was prompted to shower only once in a month).
135. In sum, the Court agrees with Dr. Leone that plaintiff class members are not afforded the required adaptive support necessary, and as a result, are at unreasonable risk to their health and safety. Defendants clearly fail to monitor these prisoners and provide the necessary reminders for basic self-care. Although some prisoners received support and accommodations from staff, "the majority of these individuals are not receiving the accommodation, protection and support envisioned by the Clark Remedial Plan." Leone at RT 786:11-17.
3. Defendants Fail to Protect Plaintiff Class Members from Abuse.
a. Developmentally Disabled Prisoners Are More Vulnerable to Abuse Because of their Disabilities
1201 136. Developmentally disabled prisoners' deficits in communication, information *1201 processing, and daily living skills, make them particularly susceptible to abuse. Leone at RT 748:24-749:15; see also Salz at RT 103:3-16 (DD prisoners "easily influenced by others"); Subia at RT 246:3-20 ("as a group DD prisoners are vulnerable," and "would be among the group of inmates that ... are preyed upon by the more harsh and more hardcore predatory type inmates"); Horne Dep. (Tr. Ex. 482) at 35:20-36:5 (DD prisoners "at risk for victimization, being manipulated by other prisoners, or taken advantage of"); Valdez Dep. (Tr. Ex. 493) at 95:20-23 (DD prisoners can be "particularly vulnerable as compared to the entire prisoner population"); Cowardin at RT 625:3-13 (prisoners with mental retardation tend to be "very naïve, gullible, easy to trick or use, easy to exploit"); Cowardin at RT 632:7-634:2 (social isolation makes prisoners with autism vulnerable in prison setting). Accordingly, all CDCR staff should be trained to understand the abuse concerns unique to developmentally disabled prisoners. Wells at RT 193:18-194:2.
137. Because of their disabilities, plaintiff class members are subjected to verbal, physical, and sexual abuse and property loss through theft, coercion, and manipulation. While "some dedicated staff" work to ensure developmentally disabled prisoners' safety, far too many clearly do not. Leone Report at 19; see also Banks Dep. (Tr. Ex. 484) at 64:8-10 (admitting that she has not "provided services to a DD inmate because there was concern for his safety"). Some employees are ignorant of the reality that disabled prisoners are more susceptible to abuse than the average non-developmentally disabled prisoner. Gonzalez Dep. (Tr. Ex. 483) at 66:16-24; see also Banks Dep. at 82:6-9 (knows of no DD prisoners with abuse concerns); Brown Dep. (Tr. Ex. 486) at 25:11-26:3 (only characteristic of DD she could think of was reading and writing deficit). Given this reality, Dr. Leone's conclusion that "the system as a whole appeared indifferent to the needs of these inmates" comes as little surprise. Leone Report at 19. Unless defendants ensure that dedicated employees are monitoring developmentally disabled prisoners and minimizing their contact with dangerous prisoners, developmentally disabled prisoners will continue to be abused and manipulated in the harsh, dangerous prison environment.
b. Defendants Fail to Protect Plaintiff Class Members from Abuse by Other Prisoners

(i) Plaintiff Class Members Are Forced to Pay for Assistance from Other Prisoners
138. If prison staff members do not provide developmentally disabled prisoners with the reading and writing assistance that they need to avail themselves of prison services, or protection from abuse, they have little choice but to seek help from their fellow prisoners. This "help," in most instances, does not come free. Blake Dep. (Tr. Ex. 497) at 73:12-21 ("golden rule" of prisons is that prisoners charge for help). In fact, developmentally disabled prisoners can be "manipulated" into paying "inordinate[ ] charge[s]" for help. Prud'homme Dep. (Tr. Ex. 488) at 193:23-194:3. Daniel Mendez, for example, paid another prisoner $40 in the form of eight jars of coffee to help him write a grievance. Mendez Dep. (Tr. Ex. 480) at 44:20-24. Moreover, by asking other prisoners to read and fill out their prison forms, prisoners requesting the help must often disclose personal information, leaving themselves open to exploitation. Cowardin at RT 651:15-20; Cowardin Report at 24, 26-27; Salz at RT 118:7-11; Subia at RT 248:14-17. Plaintiff class members have also had to pay other prisoners for protection. Smith at RT 516:18-22 (pays other prisoners to take him to canteen).
1202 *1202 (ii) Plaintiff Class Members Routinely Surrender their Property to Other Prisoners
139. Dr. Leone concluded that property loss was the most chronic problem facing plaintiff class members. Leone at RT 805:9-13. His report documented approximately 24 incidents of reported property loss, and those were merely a representative sample of his findings. Id. at 805:14-20; Leone Report at 6-9. A "large number" of prisoners, for example, reported that they were forced or pressured to give up the items that they had purchased from the prison canteen "literally between the time that they ... g[o]t the stuff [and] the time they g[o]t back to their unit." Leone at RT 771:18-24. He noted many examples in his report of prisoners who surrender their canteen to other prisoners. Leone Report at 6-9. As corroborated by a corrections officer, Mr. Gibson had more than $150 worth of canteen items stolen within a week's time. Id. at 9. Mr. Estrella (#58) and Mr. Thomas (#111) have their food taken by other prisoners. Id. at 7-8. Mr. Boyd (# 54) "lends" his possessions to other prisoners, but they "always leave [the institution] before they pay him back." Id. at 7; see also Tr. Ex. 443 (DD2 prisoner reports giving half of his property away "all the time"); Tr. Ex. 244 (DD2 prisoner gives away property to avoid abuse); Tr. Ex. 245 (staff observes DD2 prisoner being manipulated and intimidated and having property stolen by other prisoners).
140. Testimony from prisoners corroborates Dr. Leone's conclusion. See, e.g., Smith at RT 515:20-516:5; Davenport Dep. (Tr. Ex. 498) at 25:13-26:12, 30:17-32:11; Wright Dep. (Tr. Ex. 496) at 90:19-91:16. Brandon Petties testified that other prisoners stole items off the cart that developmentally disabled prisoners were using to transport their canteen back to their living area. Petties Dep. (Tr. Ex. 495) at 30:3-25. He has also had food stolen out of his cell while he was getting his medication. Id. at 28:1-9; see also Mendez Dep. at 42:9-12 (radio and food stolen from his cell after staff search when he was not present). Other prisoners have seen personal items such as electric razors, coffeepots, hats, and sunglasses stolen from their fellow Clark class members. Davenport Dep. at 134:3-14; Mendez Dep. at 46:3-14. Developmentally disabled prisoners are also cheated out of their possessions in card games and dominos. Petties Dep. at 32:12-22, 33:10-15.
141. Defendants recognize that developmentally disabled prisoners are especially susceptible to losing their property through theft, coercion, and manipulation. Salz at RT 75:11-16, 76:7-9, 84:5-12; Ynson Dep. (Tr. Ex. 490) at 34:3-25. One ADA Coordinator asserted that corrections officers are "very good about" fulfilling their monitoring duties and "very observant" when it comes to issues of property loss. Nies Dep. (Tr. Ex. 492) at 101:18-23, 102:4-5. The evidence, however, demonstrates otherwise. Banks Dep. at 62:7-63:12 (does not monitor the canteen activity of DD prisoners or inventory their property); Horne Dep. at 164:10-25 (will only escort prisoners to and from canteen if a problem is brought to his attention); Smith at RT 516:6-9 (officer told him he was a "big boy[ ]" and could go to canteen himself); Blake Dep. at 32:6-10 (is never escorted to and from canteen); Davenport Dep. at 27:18-28:5 (officers neglect to accompany DD prisoners to and from canteen about

once a month); Leone Report at 7 (officers laughed at Mr. Houseknecht when he asked them to escort him to canteen).
142. Staff members do not monitor developmentally disabled prisoners even when those prisoners' propensity to 1203 be abused is documented. For example, Mr. *1203 Houseknecht, who is 6 feet, 2 inches tall, weighed 175
pounds in June 2009, but by November 2009, he weighed only 138-140 pounds. Houseknecht at RT 1031:7-22, 1032:7-8. He lost so much weight because his cellmate was stealing his food: "[A]fter a certain point, I had to give him most of my food." Id. at 1031:25-1032:6. Mr. Houseknecht's CASE evaluation, completed at R.J. Donovan in June 2009, indicates that he has the potential for abuse and that his canteen and personal property should be monitored to prevent loss to other prisoners. Tr. Ex. 261; see also Tr. Ex. 430 (staff report that DD prisoner "gives away most of his canteen if not monitored).
143. Staff members also neglect to help class members who ask for their help in recovering stolen property. See, e.g., Houseknecht at RT 1036:24-1037:4; Davenport Dep. at 29:16-22; Mendez Dep. at 43:18-25; see also Leone Report at 7 (when prisoner's mother complained about stolen property to Pearl Serna, Clark counselor at California Rehabilitation Center, Serna said "this is to be expected when you live among thieves"); Wright Dep. 84:19-86:9 (asked for key lock because he cannot remember lock combination and prisoners keep stealing his possessions; accommodation denied).
144. In this climate of indifference, developmentally disabled prisoners are forced to surrender their items to whoever asks, cajoles, threatens, or strong-arms them, or to protect their property with physical force. Those that choose the latter option risk disciplinary violations that can lengthen their sentences. See, e.g., Davenport Dep. at 44:14-20 (received disciplinary write-up for fighting to keep his canteen); Leone Report at 10 (Prisoner # 148 reported same).
(iii) Plaintiff Class Members Are Subjected to Physical and Sexual Assaults by Other Prisoners
145. Dr. Leone concluded that many plaintiff class members had suffered physical and sexual assaults, but that staff did not take seriously the risk of harm to the developmentally disabled prisoners and did not provide them with adequate protection. Leone at RT 750:11-19. The prisoners that he interviewed were "chronically threatened and beaten up[,] often when they attempted to prevent their property from being taken. Several prisoners reported that they had been raped or that another inmate had attempted to rape them." Leone Report at 4. After telling prison staff members that he was afraid of being attacked, Mr. Thomas (# 62) was assaulted on the yard. Id. at 10; Leone at RT 749:16-750:10. Prisoner #136, who had been raped by gang members in another prison three years before, was choked by another prisoner who wanted sex. Leone Report at 10. Prisoner # 108 was raped twice while living at Lancaster. Id. In addition to these documented incidents, Dr. Leone heard other, similar stories from Clark class members. Leone at RT 750:17-19.
Prisoners' testimony and the documentary record are replete with reports of physical and sexual abuse suffered by developmentally disabled prisoners. See, e.g., Houseknecht at RT 1017:21-1020:25 (cellmate punched him repeatedly and raped him), id. at 1004:10-15 (cellmate tried to stab him in the eye), id. at 1008:15-1010:18 (cellmate constantly slapped, punched and choked him), id. at 1035:13-1036:13 (another prisoner engaged in "aggressive negotiation" by putting him in headlock to get canteen items); Smith at RT 515:24-516:5 ("choked [ ] 1204 out" for his *1204 canteen), 527:21-528:11 (beaten up for being a "slow learner," using the wrong shower), 528:14-23 (prisoners made him do exercise as punishment for being in wrong area); Mendez Dep. at 46:15-48:21 (prisoners rushed him on toilet because they thought he told officers about canteen theft); Petties Dep. at 27:16-24 (other prisoner beat him after he would not give up his food); Tr. Ex. 424 (DD prisoner requests stay in crisis bed after cellmate "made [him] do things to him" and kept him in the cell for 9-11 days); Tr. Exs. 233, 249, 253-54, 264, 343, 362, 366, 376, 380-81, 389, 392-393.
147. One developmentally disabled prisoner was issued a disciplinary write-up due to his concerns for his safety. Tr. Ex. 101 (despite "realistic fears" for his safety noted by the Mental Health clinician, DD prisoner found guilty of "Obstructing a Peace Officer in the Performance of Their Duty" for refusing a cellmate).

c. Staff Abuse Prevents Plaintiff Class Members from Obtaining Meaningful Access to Prison Programs, Services, and Activities
148. It is important for corrections staff to build relationships with developmentally disabled prisoners so that the prisoners ask staff members for assistance and protection. Prud'homme Dep. at 197:15-19; Valdez Dep. at 104:18-105:3; see also Salz at RT 122:10-11 ("[W]e need to change the culture so that inmates know that an officer will help"). If prisoners fear, or feel demeaned by, custody staff, they are far less likely to approach officers, counselors, or clinicians for help. Leone at RT 763:18-764:12, 801:24-802:6; see also Chapa Dep. (Tr. Ex. 489) at 139:5-24 (DD prisoners might not ask for help if they are scared or reluctant to talk to staff). In some cases, staff abuse serves to prevent prisoners from fulfilling their own needs. Smith at RT 523:6-12 (sometimes he will not leave his cell to retrieve his medicine for fear of getting harassed by staff). Moreover, when staff mocks developmentally disabled prisoners, "it's indicative of the indifference towards and understanding the consequences of ignoring or neglecting the inmates' needs." Leone at RT 764:8-12.
d. Defendants Fail to Address Abuse that Prisoners and Staff Inflict on Plaintiff Class Members
149. In the past two years, defendants have received multiple reports that expressed concerns regarding the abuse of developmentally disabled prisoners, including Dr. Leone's February 2010 expert report (Tr. Ex. 1), Dr. Leone's July 2008 Lancaster report (Tr. Ex. 4), and the Prison Law Office's November 2008 Lancaster monitoring report (Tr. Ex. 1003). Salz at RT 139:6-139:11; Subia at RT 238:21-238:25; Wofford at RT 403:14-407:12. However, defendants did little, if anything, to address the abuse issues raised therein. Subia at RT 252:11-16 (no corrective action taken in response to 2010 Leone report); McDonald at RT 967:2-12 (has not taken action in response to 2010 Leone report; is not aware of any responsive action defendants have taken); Wells at RT 470:1-16 (neither directed staff to take corrective action, nor asked Subia to direct Lancaster warden to take corrective action, in response to 2008 Leone report); Rhodes Dep. (Tr. Ex. 487) at 85:24-86:2 (not aware of any changes to DDP at Lancaster as a result of 2008 Leone report); Wofford at RT 420:6-10; 421:11-16 (did not investigate incidents cited in Prison Law Office's 2008 Lancaster report, and is not aware of any corrective action being taken).
1205 *1205 150. Furthermore, procedures designed to protect Clark class members are routinely ignored. See, e.g., Wofford at RT 436:23-437:4 (interviewing potential cellmates of DD prisoners would "reduce the risk of victimization" of DD prisoners by their cellmates), 438:19-439:8 (CRP requires that correctional staff interview potential cellmates of DD prisoners prior to housing them together), 438:19-439:8 (cellmates of DD prisoners only interviewed "on occasion"); Gonzalez Dep. at 66:25-67:10 (would be "tunnel vision" for DDP officers to monitor DD prisoners), 87:22-88:10 (DD prisoners live within general population and not specialized DDP units); Banks Dep. at 64:8-10 (admitting that she has never "provided services to a DD prisoner because there was concern for his safety").
151. CDCR officials claim to be particularly concerned about incidents of staff abuse and harassment of developmentally disabled prisoners. Subia at RT 253:9-13 (staff harassment "really concerns me" and, of all the incidents documented in Dr. Leone's 2010 report, "those are the ones that are most important to me"); Scaramozzino at RT 916:1-25 (conduct of Officer Jones is a "real issue[ ] that need[s] attention" and "not defensible"; if CDCR does not review accusations, "we have a problem"). As of the evidentiary hearing, however, nobody at CDCR had investigated, let alone taken action to rectify, the staff abuse issues raised in Dr. Leone's 2010 report. Subia at RT 253:14-16; Scaramozzino at RT 915:11-12, 916:20-22, 917:5-8; McDonald at RT 967:2-12; see also Ynson Dep. at 161:7-10 (no reaction to Leone report). While Defendants did belatedly endeavor to investigate Dr. Leone's conclusions, it was only upon learning that this Court was concerned by their failure to respond.

4. Defendants Systemically Fail to Provide Accommodations Required to Assist Developmentally Disabled Prisoners in Conforming with CDCR Rules and Regulations
a. Defendants Fail to Provide Effective Communication in Proceedings that Implicate Plaintiff Class Members' Due Process Rights
(i) Required Accommodations
152. Defendants are legally obligated to ensure that plaintiff class members are afforded appropriate accommodations in disciplinary, classification, and administrative segregation hearings to allow them to understand the proceedings. See supra § I.C.1. To meet these obligations, CDCR policy requires that all developmentally disabled prisoners "must be assigned" staff assistants in connection with such proceedings. Wells at RT 472:8-14; Salz at RT 141:22-142:8. This requirement, as embodied in the Clark Remedial Plan, imposes certain obligations on the staff assistant, including (1) informing the prisoner of his or her rights and ensuring that the prisoner understands the proceeding to the best of his or her ability; (2) helping the prisoner prepare for the hearing; (3) representing the prisoner's position at the hearing; (4) ensuring that the prisoner's position is understood; (5) ensuring the prisoner understands, to the best of his ability, the decision reached; (6) providing the hearing official with information related to the prisoner's developmental disability and adaptive support services required; (7) being present at a disciplinary hearing and all interviews related to the hearing; and (8) not giving legal counsel or specifying the position the prisoner should take. CRP at 49-50.
153. To ensure understanding at due process hearings, the assigned staff and other participants in the hearing 1206 must affirmatively *1206 ask the developmentally disabled prisoner regarding his or her comprehension. Salz at
RT 120:13-16, 121:1-4. A preferred method to accomplish this requirement is to ask the prisoner to repeat the information back in his or her own words. See, e.g., Subia at RT 244:19-24; see also Cowardin at RT 629:2-630:1.
154. For disciplinary hearings, the Clark Remedial Plan requires that a clinician review the disciplinary write-up (Form CDCR 115) after the hearing but before the disposition becomes final. CRP at 50; Salz at RT 156:4-11; Wells at RT 496:25-497:3; 497:19-498:2. The purpose of this review is to ensure that the disposition is appropriate in light of the prisoner's disability. Wells at RT 497:4-11. This review is to be noted on the form. Id. at RT 496:25-497:6.
155. Similarly, for administrative segregation hearings, the provision of a staff assistant must be noted on the appropriate form, a Form CDCR 114D. Id. at 472:8-17. A staff assistant is required to ensure that developmentally disabled prisoners understand the reason for their placement in administrative segregation. Id. at 473:23-474:4.
(ii) Required Accommodations Are Not Provided.
156. Defendants systemically fail to satisfy their obligation to ensure that prisoners engaged in disciplinary, administrative segregation, and classification hearings understand those proceeding. The evidence shows that defendants repeatedly default on their obligation to provide staff assistants at disciplinary hearings. See Tr. Exs. 104, 106-10, 137-39, 158, 174-75, 180, 190, 201, 411, 419 (all reflecting that no staff assistant provided). Sometimes developmentally disabled prisoners were left to file grievances to try to obtain required support. See, e.g., Tr. Exs. 353, 354. Defendants also fail repeatedly to consult with clinicians before final disposition of a prisoner's disciplinary write-up. See Tr. Exs. 101-03, 105-06, 109-10, 113-14, 116-31, 133-37, 140, 142-43,

145-69, 171-78, 182-90, 192-200, 202-03, 205-20, 223-25 and 409-22; see also Tr. Ex. 463 (no Clark clinician review performed in nearly 24% of hearings for disciplinary hearing documents produced by defendants).
157. Defendants also fail to provide staff assistants consistently at classification hearings, hindering the ability of developmentally disabled prisoners to fully participate in the classification process. See Tr. Exs. 273, 278-85, 287-90, 292-95 and 355-57. Likewise, many plaintiff class members were placed in administrative segregation without receiving required staff assistance. See Tr. Exs. 287-88, 306-07, 321, 331, 333, 335, 337-39, 341, 350, 364-75, 377-82, 392, 393; Wells at RT 475:10-12, 483:7-17; see also Wells at RT 483:7-484:17; Tr. Ex. 307 (illiterate DD prisoner not given staff assistant at administrative segregation review); Tr. Exs. 306, 338, 373.
158. Evidence from staff at the prisons confirmed these problems. See, e.g., Mandeville Dep. (Tr. Ex. 485) at 159:5-10. Gene Nies, the former ADA Coordinator at DVI, conceded that defendants "need to figure out a better mechanism to ensure that ... staff assistant should be assigned at the time of the [administrative segregation] hearing." Nies Dep. (Tr. Ex. 492) at 162:16-163:3. At SATF, ADA Coordinator Prud'homme admitted he does not review 114D forms. Prud'homme Dep. (Tr. Ex. 488) at 142:10-11. He also admitted that various exhibits he saw did not reflect that a staff assistant had been provided during an administrative segregation hearing. Id. at 147:8-149:18, Tr. Exs. 339, 341. At Lancaster, Mr. Ynson admitted that when he was ADA Coordinator, he did not 1207 know if staff assistants were provided during *1207 administrative segregation reviews with prisoners, nor did he even know if it was required. Ynson Dep. (Tr. Ex. 490) at 123:25-124:7.
159. As these failures suggest, defendants are not fulfilling their obligation to ensure that plaintiff class members understand these critical proceedings. Even when staff assistants are provided, there is no systemic effort to ensure the prisoners are receiving meaningful support that provides them with a real understanding of the proceedings. See Tr. Ex. 227 (defendants determined DD1 prisoner understood and agreed with a classification committee's decision, even though prisoner "became agitated and frustrated and refused to acknowledge any statements or questions generated by the members"); Tr. Ex. 232 (effective communication achieved at DD3 prisoner's classification hearing by having the staff assistant "speak[ ] loudly and repeat[ ] statements and/or questions"; prisoner is unable to speak according to medical report, but "appeared to understand by looking at [the staff assistant] each time he was asked a question and [the staff assistant] repeating the question in a loud clear voice within close proximity to [the inmate]. Once [the staff assistant] repeated the question/statement, [the inmate] would return to looking at the committee"); Banks Dep. (Tr. Ex. 484), 46:5-12 (DDP officer from CMF testified that as a staff assistant, she writes down if the DD prisoner wants to call witnesses, but otherwise "I walk away" if the prisoner does not have questions), 47:5-15 (when acting as a staff assistant, she explains the hearing to the DD prisoners, but does not ask the prisoner questions to make sure he is understanding because "if he doesn't understand, he'll tell me"), 51:14-24 (believes the burden is on the DD prisoner to ask questions if he does not understand), 49:15-20 (does not help DD prisoners with forms for disciplinary hearings and could not recall if she had ever provided additional explanations); see also Defendants' Witness List for Case in Chief (Dkt. # 366-1 at 6) (reflecting that Banks is DDP officer).
160. Staff members are not well informed about their role as staff assistants and oversight is inadequate. Brown Dep. (Tr. Ex. 486) at 76:8-15 (at CMF, DD counselor could not recall receiving staff assistant training); Nies Dep. at 139:15-140:22, 140:24-141:6 (same at DVI); Ynson Dep. at 121:24-122:17 (ADA Coordinator at Lancaster has no personal knowledge of whether staff assistants are provided during disciplinary hearings).
161. The same problems exist with respect to classification hearings. See Prud'homme Dep. at 139:21-140:22, 198:15-199:1 (ADA coordinator at SATF admitted he does not have personal knowledge that DD prisoners receive staff assistants in classification hearings); Ynson Dep. at 114:21-24 (ADA coordinator at Lancaster in 2009 had no personal knowledge whether staff assistants were assigned during all classification meetings).
162. As a result, plaintiff class members are not obtaining the adaptive supports they require at such hearings. See, e.g., Leone at RT 756:3-6 (some DD prisoners had "no idea" why they were in administrative segregation and when Leone asked them a series of questions to verify this, "some of them just didn't have an idea"); Blake Dep. (Tr. Ex. 497) at 69:25-70:17 (staff assistant failed to tell him what was going to happen at a disciplinary hearing, failed to explain the charges and failed to explain potential punishments), 147:6-14 (although he understood he was being punished for tattoo, he also explained in deposition that he was talked into it by another prisoner "saying it's cool, it's the right thing to do" and that no one had told him it was against the rules; there was

1208 no evidence staff assistant *1208 explained this at the hearing or that punishment was assessed in light of relevant issues relating to his disability); Tr. Ex. 269.
163. This evidence, taken together, establishes that defendants fail to provide the required support to ensure that effective communication is provided for developmentally disabled prisoners at disciplinary, administrative segregation, and classification hearings. See Leone at RT 792:1-793:12.
b. Defendants Fail to Provide Effective Communication of the Rules with which Developmentally Disabled Prisoners Are Required to Comply
164. Defendants have an obligation to ensure that their communications with developmentally disabled prisoners are "as effective" as their communications with non-developmentally disabled prisoners. See supra § I.D.3 To facilitate these communications, the Clark Remedial Plan contemplates that staff will monitor developmentally disabled prisoners and provide them with "direct instructions, prompting, verbal counseling," to assist them in complying with prison rules and regulations. CRP at 49. The Remedial Plan also requires that employees "ensure the inmate understands (to the best of his/her ability) the consequences of continued misconduct." Id.
165. If misconduct continues, staff can invoke formal discipline, but in doing so, "[t]he staff member observing the misconduct must take into consideration the severity of the inmate's disability and the inmate's need for adaptive support services when determining the method of discipline." Id.; see also Wells at RT 493:2-13.
166. Contrary to this policy, many plaintiff class members receive disciplinary write-ups for behavior "they should have been counseled about" or things that "easily could have been prevented." Leone at RT 765:16-766:2, 770:5-8 ("[i]f staff are aware [who's] DD on the unit, if they look at those chronos periodically, they should be able to anticipate potential problems inmates might have and be able to do things to prevent [rules violation reports] or 115's"); see Tr. Ex. 101 (DD prisoner assessed 90 days of credit forfeiture for "Obstructing a Peace Officer in the Performance of Duty" for refusing a cellmate; clinician notes that the prisoner "reports realistic fears for his safety"); Tr. Ex. 103 (DD prisoner who "does not read, write, or understand English," found guilty and assessed 30 days of lost credits for "Disobeying Orders" for refusing to sign his Notice and Conditions of Parole form); Tr. Ex. 409 (DD prisoner receives a 30 day loss of credit and a 10 day loss of yard for "Disruptive Behavior" for refusing to return to his cell until he spoke to a sergeant; clinician indicates that he was not "trying to be difficult; he just had a fixed idea which he was trying to complete in a rigid manner (DD1)"). Other disciplinary write-ups for plaintiff class members raise similar concerns. See, e.g., Tr. Exs. 102, 127 (failure to provide a random urinalysis); Tr. Exs. 112, 116, 124, 136, 138, 142 (out of bounds); Tr. Exs. 106, 107, 114, 115, 118-21, 123, 128, (failure to report or unexcused absence or refusing to work); Tr. Ex. 139 (failure to report to pill line); Tr. Exs. 104, 108, 110, 111, 117, 131, 132, 137, 140-41, 143, 144 (disobeying direct order); Tr. Ex. 145 (refusing a cellmate); Tr. Exs. 126, 130, 133 (delaying a peace officer); Tr. Ex. 135 (refusal to stand for count); Tr. Exs. 100, 125 (failure to comply with cell cleaning and other standards).
167. When a developmentally disabled prisoner is repeatedly written up for rules violations attributable to his disability, defendants' conduct is "absolutely not" in compliance with the Clark Remedial Plan and the level of 1209 support provided to the prisoners is "totally inadequate." Leone *1209 at RT 768:9-11. Dr. Leone found repeated examples of these violations of the Clark Remedial Plan where it was "hard" to "understand" because staff could have intervened to avoid the disciplinary write-ups. Id. at 768:19-769:10 (DD prisoner written up for "being in the wrong place at the wrong time" when he tried to use the phone at the time he had been told in his previous unit to use it); Tr. Ex. 11; see also Cowardin at RT 623:4-24:3 (discussing difficulties DD prisoners can have when changing settings); Leone at RT 765:16-766:2; 769:11-23.
168. In disciplinary hearings, defendants fail to account for durability deficits unique to developmentally disabled inmates, as noted in § I.F.1, supra. Defendants do not recognize that a single prompt, or even a few, may be insufficient for a developmentally disabled prisoner, and he or she may need constant daily reminders to participate in prison activities, services, and programs. See, e.g., Tr. Exs. 139 (DD prisoner found guilty of failure to report to pill line when only informed via public address system, with no reference to prompts, reminders, or

warnings), 125 (DD prisoner found guilty of hanging a sheet in his cell after only one group notification of rules regarding cell maintenance, with no reference to prompts, reminders, or warnings).
D. Defendants' Current Remedial Efforts Are Insufficient
169. Defendants have taken some steps towards addressing the unlawful conditions suffered by the plaintiff class. These steps, including those taken in the areas of staffing, housing, training and self-monitoring, have fallen gravely short of the measures that must be taken to create conditions that satisfy the constitutional and statutory mandates set forth above. See supra, § I.C.
1. Staffing
170. Defendants have designated some staff members specifically to work with developmentally disabled prisoners. However, the staffing is not adequate to provide the necessary accommodations to class members for a variety of reasons, including defendants' failure to screen staff members for their ability to work with a population that requires special skills and strengths, their failure to operate a program that addresses the disabled prisoners' needs proactively, and their failure to allocate staff members reasonably. Because of these staffing inadequacies, prisoners with developmental disabilities continue to face discrimination, denial of access to programs and services, denial of due process rights, and dangerous and unconstitutional living conditions. The Court expert identified staffing as an issue that must be addressed before defendants can provide adequate services. See Leone at RT 792:1-13.
171. The staff members who are assigned to the DD program often lack the skills to provide services to this population. Although Dr. Leone identified a few officers who appeared to understand their responsibilities to the class members, others "regularly made fun of [the prisoners'] inability to read or write, refused to assist them and failed to notify designated DD officers or threatened them. A large number of prisoners said they feared retaliation from correctional officers and tried to avoid specific officers." Leone Report at 4. Not surprisingly, DDP staff members often fail to develop a rapport with developmentally disabled prisoners. Horne Dep. (Tr. Ex. 482) at 106:6-21. Rather than looking to staff members for assistance, prisoners fear them. Leone Report at 3.
172. The current DDP staff also lacks basic knowledge about the group assigned to the program. Some staff 1210 members hold *1210 the "erroneous belief that inmates who can read and write are not developmentally
disabled." Leone Report at 6. Some inappropriately question the disability status of certain class members. Id. Others are likely misled by prisoners' DD1 classifications to believe that the prisoner does not require assistance. Cowardin at RT 655:13-656:4.
2. Training
173. It is undisputed that defendants provide training to their staff regarding developmentally disabled prisoners and the accommodations that they require. The serious problems set forth herein show that the training "is either inadequate or ... there is insufficient attention paid by administrative staff to the safety and protection of inmates with DD." Leone Report at 4. The DD training is clearly not sufficient, which constitutes a "serious issue." Leone at RT 792:14-20; see also id. at 788:12-25; Leone Report at 4; Cowardin at RT 654:25-655:3.
174. Not all staff members are properly trained. Salz at RT 131:21-132:2 (staff has used improper training materials in the field); see also Subia at RT 231:11-16 (challenge to make sure staff members are properly trained); Prud'homme Dep. at 130:18-23, 131:13-16 (staff member responsible for training did not know whether appropriate staff had received necessary training).
175. Some prison staff members assigned to work with developmentally disabled prisoners lacked training on some of their duties under the Clark Remedial Plan. Pearson at RT 369:8-17, 369:18-371:20, 371:21-372:7 (admitted no training on how to fill out adaptive support activity logs, how to elicit abuse concerns from prisoners, or how to communicate with DD prisoners); Brown Dep. at 82:20-25, 83:10-18, 112:25-113:7 (DDP counselor

recalls no training on being staff assistant, serving on classification committees, or achieving effective communication with DD prisoners); Horne Dep. at 92:21-93:10 (DDP officer received no training on completing adaptive support logs).
176. Other prison staff members demonstrated a lack of adequate training on critical Clark issues. Banks Dep. at 14:4-15:1, 15:24-16:1 (DDP officer is familiar with parts of the CRP, but cannot identify which ones, and has never heard of prison's operational procedure implementing CRP); Chapa Dep. at 131:11-21 (Clark counselor with nine years experience unaware of obligation to log adaptive support contacts until very recently), 239:10-16 (not familiar with characteristics, symptoms of autism).
177. Simply providing training on the DD program, without overseeing and analyzing the outcomes, is not adequate to implement the Clark Remedial Plan. Leone at RT 789:6-22. Defendants have not evaluated the effectiveness of their training. E.g., Subia at RT 243:1-6 (has neither performed nor reviewed any analysis to determine training's effectiveness).
3. Self-Monitoring
178. The Court finds that defendants are not capable of systematically identifying and correcting compliance problems with federal law and the Clark Remedial Plan.
179. The Court expert testified that defendants do not have the capacity or the will to monitor themselves.[5] 1211 Based on his *1211 experience working with prison systems where court supervision came to an end, Dr. Leone
believes that defendants are not in a position to exit from Court supervision in Clark. Leone at RT 798:17-799:9. Further, Dr. Leone testified that even if defendants could identify problems through an audit, it is doubtful that they have the will and desire to remedy any issues they identify and provide adequate accommodations to developmentally disabled prisoners. Id. at 845:10-14, 727:12-19.
a. Defendants Cannot Identify and Correct Violations of Federal Law and the Remedial Plan through their Own Monitoring
180. Given the size and complexity of CDCR as already noted, immediate universal compliance with the Clark Remedial Plan is not possible. As a result, a system to identify and correct problems is critical. Without such a system in place, defendants cannot ensure that the requirements of federal law as embodied in the Clark Remedial Plan will be institutionalized. Leone at RT 783:22-784:11; Wells at RT 453:20-454:12 (audits and establishing baseline are necessary to measure progress of compliance with policies); Salz at RT 132:11-14 (headquarters oversight is crucial to make sure that policies and procedures are actually being followed); see also § III.C, infra. Rather, one would expect to see what the evidence actually demonstrates-a system characterized by generalized indifference, with isolated examples of compliance from a few committed individuals. Leone at RT 727:12-728:9.
181. A uniform, standardized audit tool to conduct annual compliance reviews is required by the Clark Remedial Plan, first adopted by the parties in 2001 (Dkt. # 194). CRP at 62. The required audit tool should contain a standard set of inquiries that will, at a minimum, monitor classification, grievances, disciplinary processes, prisoner assignments, and provision of required services. Id. Before the implementation of compliance reviews, plaintiffs' counsel must have an opportunity to review the audit instrument that CDCR has developed. Id.
182. Defendants do not have a standardized audit instrument currently in place. Subia at RT 264:6-13[6]; McDonald at RT 951:23-952:4.
183. Approximately one and a half years ago, seven years after they were required to start annual audits, defendants began to develop a draft audit tool. It remains incomplete and is not ready for use. McDonald at RT 939:9-21, 951:23-952:7; 952:17-954:9 (audit tool is incomplete and McDonald does not know details about tool).

184. In its current form, the draft audit tool is bereft of many important areas of inquiry. Id. at 952:17-954:9, 953:5-23 (no questions in the tool for DD prisoners about whether they are physically assaulted); 954:10-13 (no questions in the tool for DD prisoners about whether they are sexually assaulted), 954:14-17 (no questions in the tool for DD prisoners about whether staff members speak confidentially with them), 954:22-25 (no questions in the tool for DD prisoners about whether they must pay other prisoners for help reading and writing prison forms), 1212 956:3-10 (no questions *1212 in the tool for DD prisoners about whether they are verbally abused by staff members or other prisoners), 957:12-20 (no questions in the tool about whether DD prisoners receive prompts to perform daily living functions). These deficits contrast markedly with the Court expert's recommendations that an audit instrument query DD prisoners about their treatment. Leone at RT 791:12-25.
185. Moreover, Ms. McDonald did not know if the tool in its current form measures whether DD prisoners are being properly identified. McDonald at RT 957:21-25. The audit tool also does not evaluate compliance efforts at the headquarters level. McDonald at RT 952:8-13.
186. Defendants became aware of these and other significant omissions in the tool only when raised while they were being cross-examined at trial. Id. at 976:15-977:3, 952:11-953:22, 954:1-955:2, 956:3-10, 957:12-25.
187. Although many shortcomings were apparent from defendants' own testimony, the Court is unable to fully assess the adequacy of the tool because it lacks the benefit of plaintiffs' counsel's expertise and input because defendants have not asked plaintiffs' counsel to vet the draft tool. Wells at RT 205:21-206:16, 977:7-19. Input from plaintiffs' counsel has been useful in this case in the past. Wells at RT 449:13-16; CRP at 62; Salz at RT 56:7-58:15 (to date, there has been "tremendous" cooperation between plaintiffs' counsel and CDCR to improve the DDP, with great success).
188. At the time of the hearing, defendants claimed that the tool would be ready for use in 30 days. McDonald at RT 933:16-18. Since the instrument is not finished, however, and since defendants only recently learned of deficits from plaintiffs' counsel during trial, the Court cannot find that it will do what it is intended to do 0907provide an accurate measure of compliance. Wells at RT 977:20-978:24 (the decision about whether and when to show the completed audit tool to plaintiffs' counsel must be made by the Office of Court Compliance management team, the Office of Legal Affairs management team, and the Division of Adult Institutions, and there has been no "indepth" discussion of the time frame for this).
189. In the absence of the required standardized audit process, defendants have relied on informal communications regarding compliance at the prisons. The evidence shows that these efforts have been piecemeal and fall short of what is required to identify and correct violations of federal law and the Clark Remedial Plan. Wells at RT 455:15-456:7.
190. Dr. Salz, the Chief Psychologist at CDCR who directs the mental health component of the Clark remedial efforts, conducts limited reviews of discrete areas of the Clark Remedial Plan: he checks only on the testing and identification of developmentally disabled prisoners. Salz at RT 136:14-17. In the last two years, Dr. Salz conducted reviews at only three prisons, spoke to a small percentage of developmentally disabled prisoners, and did not speak to any custody staff. Salz at RT 135:18-20, 137:1-12, 136:14-20.
191. Dr. Salz does not routinely provide written reports about these visits to the institutions. Salz at RT 135:23-136:1. Defendants presented no evidence of the results of these reviews.
192. Correctional Counselor II Specialists[7] in the prisons are charged with, among other things, overseeing the 1213 Clark *1213 Remedial Plan at the local level. Wells at RT 170:17-171:9. One of their responsibilities is to work
with the ADA Coordinators and other prison staff to ensure that training is provided and that staff understands the Clark Remedial Plan. Id. at 170:17-171:9, 179:7-180:7; Aref at RT 274:9-24. Correction Counselor II Specialists are supposed to provide reports of non-compliance to headquarters officials. Wells at RT 180:8-15.
193. These reports do not satisfy the audit and compliance review requirements of the Clark Remedial Plan: the Correctional Counselor II Specialists do not use a standardized tool that has been vetted by plaintiffs' counsel and the reports are not formal audits. Wells at RT 453:20-456:12, 454:24-455:9.

194. The Office of Court Compliance is charged with monitoring compliance issues at individual prisons. Wells at RT 169:5-170:2. The Office also does not effectively identify problems. Many serious issues that were discovered by the Court expert and plaintiffs' counsel were unknown to the Office of Court Compliance. See, e.g., Wells at RT 449:22-450:21 (facility captain at Office of Court Compliance not shown Prison Law Office monitoring report from Lancaster [Tr. Ex. 1003], alleging that three staff members had been calling DD prisoners "girls," "fagots," "boy" and yelling needlessly at them[8]), 491:2-492:9 (facility captain at Office of Court Compliance never shown administrative segregation forms indicating no staff assistant assigned to DD prisoners and does not know whether any corrective or disciplinary actions were taken), 549:6-13 (facility captain at Office of Court Compliance never shown parole documentation indicating that no effective communication provided to DD prisoners).
III. Defendants Have Failed to Meet their Burden of Proof
195. As discussed in the Conclusions of Law, defendants bear the burden of proof on their termination motion. They must demonstrate that there are no current or ongoing violations of the statutory and constitutional rights of the plaintiff class that warrant continuing relief. The Court finds that defendants have fallen short of meeting this burden as to the majority of the existing prospective relief. Even if the burden were on plaintiffs, the evidence set forth in the previous section demonstrates that developmentally disabled prisoners are currently subject to systemic constitutional and statutory violations in California prisons, and the evidence put forth by defendants fails to rebut that case in any significant way.
196. Defendants' evidence falls into four categories: (1) testimony from officials from CDCR headquarters regarding their written policies, the implementation of those policies, and staff training requirements; (2) testimony from individual prison staff members regarding their personal actions in addressing the needs of some developmentally disabled prisoners; (3) rebuttal expert testimony regarding Dr. Leone's report; and (4) documentary evidence. These categories are addressed in turn below.
A. CDCR Officials
1. Terri McDonald and Richard Subia
197. Two high-level custodial officials testified for defendants: Terri McDonald, who is the Chief Deputy Secretary of Adult Operations and third in command of the CDCR, and Richard Subia, who is the Deputy Director of the 1214 Division of Adult *1214 Institutions. McDonald at RT 928:10-11; Subia at RT 215:22-216:3. These officials testified that they are confident that CDCR follows the dictates of the Clark Remedial Plan (CRP) (Subia at RT 220:7-221:1), with Ms. McDonald going so far as to state her conviction that the state is "in substantial compliance" with its requirements, McDonald at RT 939:24-25, 959:18-19. Although the sincerity of these witnesses is not in doubt, for the reasons set forth below, the Court does not give credit to their conclusions.
198. These assertions cited above were not supported by any personal knowledge of prison conditions for developmentally disabled prisoners. Neither Ms. McDonald nor Mr. Subia had spoken to developmentally disabled prisoners or designated DDP staff regarding issues facing developmentally disabled prisoners. McDonald at RT 950:3-6 (does not tour prisons to ask about substantive Clark matters), 16-18 (has never asked a prisoner about a substantive Clark matter); Subia at RT 249:16-21 (in the last two years, has not spoken to any DD prisoners or to correctional officers regarding the DDP). Nor did these witnesses have sufficient knowledge from reliable secondary sources: neither regularly reviews any reports regarding Clark compliance. McDonald at RT 949:13-23 (does not review Court experts' or plaintiffs' counsel's monitoring reports); Subia at RT 239:12-18, 242:12-14 (has not received reports from the Court experts until Dr. Leone's 2010 report), 268:9-12 (has not been on monitoring tours with plaintiffs' counsel "within the last couple of years").
199. Further, Ms. McDonald has not talked to Office of Court Compliance staff involved in Clark monitoring in the 14 months she has been Chief Deputy Secretary. McDonald at RT 950:19-951:4. Mr. Subia testified that although

he is aware that staff members are supposed to document the services they provide to developmentally disabled prisoners, in his current position he has not reviewed logs or seen evaluations of whether logs are reliably documenting services. Subia at RT 242:12-25. He has neither performed nor reviewed any analysis to determine if DDP training is effective. Id. at 243:1-6. He has done no investigation or evaluation to determine whether developmentally disabled prisoners receive staff assistants at disciplinary hearings. Id. at 245:6-9. Although he acknowledged that, as a group, developmentally disabled prisoners are vulnerable to exploitation and abuse, including sexual and physical assault, from other prisoners (id. at 246:3-4, 246:18-20, 247:8-20) and stated that protecting developmentally disabled prisoners requires more supervision and oversight by staff than protecting non-disabled prisoners does (id. at 247:21-24), he was not aware of any evaluation of whether CDCR's staffing is adequate to protect developmentally disabled prisoners,[9]id. at 247:25-248:2.
200. The central questions before the Court are whether defendants act in accordance with their obligations under the law as embodied in their written policies and procedures and the required training, and whether those policies and procedures and training are adequate to safeguard the federal rights of the plaintiff class. Neither Ms. McDonald nor Mr. Subia could shed any light on either point, since neither had any personal knowledge to offer.[10]
1215 *1215 2. Dr. Donald Salz
201. Dr. Donald Salz, Chief Psychologist at CDCR Healthcare Services-Mental Health, also testified about CDCR treatment of developmentally disabled prisoners and compliance with the Clark Remedial Plan. Salz at RT 40:5-6. Dr. Salz is responsible for clinical assessments of developmentally disabled prisoners and staff training in the DDP. Id. at 42:4-9. Although not designated by defendants as an expert, he testified that in his opinion, the DDP has changed prison culture in California for the better in the last 15 years. Id. at 104:24-106:6. According to Dr. Salz, people who have been promoted in the prison system since the DDP training began "are people that get it, people that understand that Americans with [D]isabilities [A]ct is real law, needs to be followed, even inside a prison and they get it and they promote it. They support it when we do[ ] our audits and we brought up problems with them, they support it wholeheartedly." Id. at 105:15-20.
202. However, Dr. Salz's testimony lacked foundation because of his extremely limited knowledge of current conditions. He has done only three audits in the past two years (id. at 135:18-20) and has talked to no more than 20 developmentally disabled prisoners in that time period, id. at 137:1-12. His areas of responsibility in the DDP are limited to clinical assessments of prisoners and training. Id. at 42:4-9. His personal knowledge does not extend outside of these areas: his audits addressed only the testing and identification processes, and not custodial matters, and only "occasionally" included conversations with correctional officers. Id. at 136:14-20. Thus, for example, he has no personal knowledge of whether developmentally disabled prisoners are given help with reading and writing. Id. at 142:9-11, 142:17-143:1, 143:9-13. He has no role with regard to placement of developmentally disabled prisoners. Id. at 143:14-144:15. He has no personal knowledge of whether staff assistants are assigned to developmentally disabled prisoners who need them. Id. at 141:18-142:5. Dr. Salz's opinions regarding general compliance lack foundation.
203. Nor is Dr. Salz's testimony on those topics about which he does have personal knowledge 0907clinical assessments and training0907particularly helpful. The Court's serious concerns regarding CDCR's clinical assessments and Dr. Salz's testimony on that topic are set forth in § II.B, supra. Regarding training, there is no dispute that training is helpful. The only questions are (a) whether the training is being provided as required, and (b) whether the required training is adequate to ensure that the needs of the plaintiff class are met. Dr. Salz's testimony provided no evidence on either of those points: he has no personal knowledge of whether staff is actually receiving the required training (id. at 145:12-15) and, in fact, admitted that staff members have used improper training materials in the field. Id. at 131:21-23. Dr. Salz simply does not know whether the needs of the plaintiff class are being met.

3. Richard Wells
204. The defense witness with the most knowledge of defendants' remedial efforts in this case was Richard Wells, a facility captain in the Office of Court Compliance. The Office of Court Compliance, an arm of CDCR's legal office, manages compliance efforts for Clark as well as other class action lawsuits. Wells at RT 169:5-11. 1216 The task of the Office is to monitor compliance, provide training, and ensure that the *1216 mandates of the Clark Remedial Plan are met. Id. at 169:19-170:2.
205. Mr. Wells testified that staff is trained to protect canteen purchases of developmentally disabled prisoners by escorting them to pick it up and/or inventorying their property (id. at 192:17-193: 1), to help them with showers and hygiene (id. at 195:15-196:8), and to be aware of their vulnerability to abuse. Id. at 193:18-194:2. However, he also testified that he did not know whether all staff members have received training (id. at 554:17-19) and that staff sometimes uses improper training materials. Id. at 554:1-4.
206. Thus, the questions regarding the adequacy of training, raised by Dr. Leone, and the disputed matter of whether all staff receive the required training with the appropriate materials were not resolved by his testimony.
206. Mr. Wells testified that the Office of Court Compliance has staff at the prisons who are their "eyes and ears" on Clark compliance. Id. at 171:1-9. According to Mr. Wells, these supervising correctional counselors (known as CCIIs) ensure compliance with the Clark Remedial Plan, work with the ADA Coordinators and other staff to remedy any problems, and provide information weekly to Mr. Wells and his staff. Id. at 179:7-180:25. Significantly, however, Mr. Wells never directly stated that defendants were in compliance with the Clark Remedial Plan, nor did he comment on Dr. Leone's report or refute any of his conclusions. His testimony avoided the critical question that the Court must address 0907whether there are current violations of constitutional and statutory rights0907and instead focused on the infrastructure that defendants have established to comply with the mandates of the Remedial Plan, including policies and procedures, training, and staffing both at headquarters and at the institutions.
207. Whether that infrastructure is adequate to provide sufficient services to plaintiff class members was not answered by Mr. Wells, since, like all of the other headquarters officials who testified, he lacked sufficient information about problems with Clark compliance. He did not know whether all developmentally disabled prisoners who need help reading and writing actually receive it. Id. at 555:8-12. He did not recall receiving or reviewing plaintiffs' counsel's 2008 report raising serious concerns about compliance at Lancaster and did not recall anyone bringing problems set forth in that report to his attention. Id. at 449:22-450:3, 451:3-5. Although he did review Dr. Leone's 2008 report, which raised serious concerns about compliance at Lancaster, he neither directed staff to take corrective action, nor asked Mr. Subia to do the same. Id. at 469:24-470:16.
208. Mr. Wells's testimony was further undercut by the documentation of Clark Remedial Plan violations. He admitted that numerous recent administrative segregation placement notices he was shown demonstrated Clark Remedial Plan violations through the failure to provide developmentally disabled prisoners with staff assistants. Id. at 474:25-475:12; 476:10-20; 482:24-483:3; 484:6-17; 486:10-22; 487:21-24; see also Tr. Exs. 306-07, 323, 331, 333, 335. He had never seen these documents before and admitted that he did not know if any corrective or disciplinary actions had been taken against staff whose violations were documented on the forms. Wells at RT 491:2-18, 22; 492:4-9. The record contains many additional examples of similarly deficient notices. See Tr. Exs. 287, 288, 321, 337-39, 341, 350, 364-75, 377-82, 392-93.
209. Similarly, Mr. Wells was shown numerous forms notifying developmentally disabled prisoners of their parole 1217 conditions *1217 that failed to document adequate accommodations or assistance, as required by CDCR policy.
Wells at RT 502:25-503:7, 503:19-24, 509:9-14, 509:20-22, 541:20-542:5, 543:5-10, 544:20-545:5, 545:18-546:3, 547:7-14; see also Tr. Exs. 27, 29, 30, 33, 95, 97, and 99. These forms thus documented violations of CDCR rules. Wells at RT 503:3-7, 509:12-22, 542:1-6, 543:5-10, 544:19-545:5, 545:24-546:11, 547:10-14. He had never before seen any of the non-compliant conditions of parole forms. Id. at 549:6-7, 13. The record contains many additional examples. See Tr. Exs. 23-26, 28, 31-32, 34-94, 96, 98.

210. Mr. Wells's testimony thus does not contradict the overwhelming evidence of systemic Remedial Plan violations as discussed in § II, supra. Indeed, it is entirely consistent with the picture painted in Dr. Leone's report: that defendants have made some advances in their treatment of developmentally disabled prisoners, that they have good policies and helpful training, and that some committed, well-intentioned staff members provide some services to some prisoners, but that the efforts fall far short of meeting the needs of a majority of plaintiff class members, many of whom are forgotten or ignored and left without the help they need to function in the dangerous and difficult prison environment.
B. Staff at the Various Prisons
211. Nine ADA Coordinators, four DDP counselors, and four DDP officers from a total of six California prisons[11] testified live and by deposition for defendants.[12] The Court finds that the testimony from staff members at various prisons regarding their work with individual class members is not adequate to demonstrate systemic compliance or to counter plaintiffs' evidence showing systemic violations of federal law and the Clark Remedial Plan.
212. As discussed in more detail below, the testimony of several ADA Coordinators that their institutions are compliant with the requirements of the Clark Remedial Plan lacks foundation: they simply do not know enough about compliance matters at their prisons. Other testifying staff members are not credible in describing their prison's compliance performance because they are ignorant of the requirements of the Remedial Plan and of the needs of developmentally disabled prisoners, are failing to perform their work adequately, and have not received necessary required training.
213. After weeding out the testimony that lacks credibility or foundation, what remains are isolated examples of some services provided to plaintiff class members. Such isolated examples are entirely consistent with the findings of the Court expert.
1. Some ADA Coordinators Lack Foundation to Testify about Compliance in their Prisons
214. ADA Coordinators are charged with ensuring compliance with the Clark Remedial Plan at their prisons. CRP 1218 at 41; Prud'homme Dep. (Tr. Ex. 488) at 22:3-6, 28:18-21; Wells at RT 171:22-24. In the absence of a state-wide
*1218 standardized comprehensive system to measure compliance in the institutions, ADA Coordinators' methods for ensuring compliance varied widely. Some did not speak to staff or developmentally disabled prisoners or review documents. As a result, some ADA Coordinators lacked foundation to testify about whether plaintiff class members at their prisons are provided necessary accommodations.
a. No Personal Knowledge
215. In some cases, ADA Coordinators lacked personal knowledge about whether their staff were following Remedial Plan requirements. Prud'homme Dep. at 114:8-24 (ADA Coordinator at SATF lacks personal knowledge whether all needs of DD prisoners are being met), 198:15-199:1 (no personal knowledge whether staff assistants always assigned to DD prisoners at classification proceedings), 62:4-19, 65:1-6, 65:21-67:1 (same), 198:8-14 (no personal knowledge whether staff assistance provided to DD prisoners during grievance process); Ynson Dep. at 55:13-57:13 (ADA Coordinator at Lancaster not personally aware if lesson plan for staff training includes instructions on how to prompt DD prisoners), 61:5-16 (no personal knowledge as to whether staff at Lancaster encourage DD prisoners to participate in beneficial programs and services), 121:24-122:19 (no personal knowledge whether staff assistants assigned at disciplinary hearings, whether effective communication is achieved, or whether staff ensure DD prisoners understand the nature and importance of disciplinary proceedings), 123:25-124:3 (no personal knowledge whether staff assistants assigned to DD prisoners at administrative segregation hearings), 135:15-18 (no personal knowledge whether staff is assigned to facilitate DD

prisoners' use of grievance system), 140:17-141:13 (no personal knowledge whether DD prisoners receiving staff assistance filling out grievance forms when they requested help from correctional counselors, housing staff, or DD staff, and not aware if enough staff members are available to help DD prisoners with grievance forms), 146:12-16 (no personal knowledge whether Lancaster staff take specific measures to protect DD prisoners from abuse by other prisoners), 147:16-21 (no personal knowledge whether staff who provided orientation to DD prisoners were trained to communicate with them), 151:2-4 (no personal knowledge whether DD prisoners notified of conditions of parole before release), 114:21-24 (no personal knowledge that staff assistants assigned at classification hearings except on four occasions), at 115:7-15 (no personal knowledge that effective communication achieved during classification hearings while ADA Coordinator), 119:20-120:3 (no personal knowledge that a staff assistant speaks to DD prisoners who refuse to appear at classification committee hearings); Nies Dep. (Tr. Ex. 492) at 142:23-143:2, 141:4-6 (ADA Coordinator at Deuel Vocational Institution could not verify whether DD prisoners were provided with required assistance in administrative proceedings because he never attended a disciplinary hearing of a DD prisoner while ADA Coordinator).
b. No Foundation for Claiming Compliance
216. Given the seriousness of the compliance problems presented to the Court and the undisputed duty of staff to proactively offer help to plaintiff class members (see § II.C.1.f), it is not sufficient for prison officials to opine that prisoners' needs are met because the officials do not hear complaints. At least one ADA Coordinator's opinions regarding compliance rested on just such faulty grounds. Prud'homme Dep. at 121:5-122:10 (ADA Coordinator confident that staff explain conditions of parole in a way that DD prisoners can understand because 1219 nobody has raised any *1219 problems with him), 108:3-14 (believes that DD prisoners who need help reading and writing are receiving it because he hears very few complaints, does not see that it's not being done and does not hear about problems from his staff), 132:6-15 (bases his belief that staff provided adaptive support services to DD prisoners as needed on "how well our DD population functions").
217. The questions before the Court are whether defendants implement their written policies and the required trainings, and whether those policies and trainings effectively protect the rights of plaintiff class members 0907not whether those policies and trainings merely exist. But some ADA Coordinators' assertions that their prisons were in compliance relied on only the existence of policies and trainings. Valdez Dep. (Tr. Ex. 493) at 128:21-130:1, 139:24-141:15 (former ADA Coordinator from R.J. Donovan could not testify that he knew whether staff were sensitive to the needs of DD prisoners and alert to possible abuse, only that staff were trained in these areas); Nies Dep. at 133:6-134:8 (ADA Coordinator from DVI could not testify that he knew whether staff were alert to possible abuse, only that staff were trained in that area).[13]
218. Some ADA Coordinators do not know or investigate whether plaintiff class members' rights are violated under the Remedial Plan and federal law. Nies Dep. at 94:12-14 (ADA Coordinator at DVI does not know how often counselors go into housing units and no documentation of this), 33:10-11, 33:16, 18, 34:16-20, 34:22-36:22 (no knowledge of what, how, and whether transfer of DD prisoners out of Reception Center is expedited, as required by the Remedial Plan [CRP at 9-10] and the prison's Operational Procedure [Tr. Ex. 1024 at 12]; Gonzalez Dep. (Tr. Ex. 483) at RT 165:11-24 (former ADA Coordinator at California Medical Facility [CMF] has never investigated whether staff inform plaintiff class members about their parole conditions in a way that they can understand or whether staff inform parole officers of class members' disabilities); Cowan Dep. (Tr. Ex. 494) at 59:19-25 (ADA Coordinator at R.J. Donovan does not know how counselors explained conditions of parole to DD prisoners).
219. Some ADA Coordinators had not reviewed adequate documentation to claim compliance. Prud'homme Dep. at 132:6-133:8 (ADA Coordinator at SATF believes that staff are providing adequate adaptive support but has only reviewed adaptive support logs twice, one year before his deposition), 142:10-11 (does not review documentation from administrative segregation hearings to determine whether staff assistants assigned), 139:21-140:22 (does not audit documentation from classification proceedings to ensure that assistant assigned); Ynson Dep. at 73:23-25 (did not review adaptive support logs while ADA Coordinator); Gonzalez Dep. at 102:11-14, 113:2-5, 120:12-19, 108:1-25; 128:3-129:18 (former ADA Coordinator at CMF never reviewed DD prisoners' documentation from disciplinary, classification or administrative segregation placement proceedings to

determine whether required assistance provided); Cowan Dep. at 99:21-25 (ADA Coordinator at R.J. Donovan does not review documentation to assess whether staff assistants assigned classification).
1220 220. Some ADA Coordinators rarely spoke to DDP staff or developmentally *1220 disabled prisoners, similarly limiting their ability to testify competently regarding compliance. Gonzalez Dep. at 166:12-168:10, 171:7-11 (former ADA Coordinator at CMF did not speak to staff about frequency of contacts with DD prisoners); Mandeville Dep. (Tr. Ex. 485) at 14:22-15:21 (ADA Coordinator from CMF has only minimal direct contact with DD prisoners).
221. Further evidence that these defense witnesses lacked foundation to testify about Clark compliance comes from the testimony of DDP officers and counselors from multiple institutions, who described minimal oversight by and interaction with ADA Coordinators. Banks Dep. (Tr. Ex. 484) at 71:10-12 (DDP officer at CMF has no interactions with ADA Coordinator); Pearson at RT 367:9-13 (DDP officer at California Rehabilitation Center only saw ADA Coordinator in housing unit two or three times and never saw him look through the locked box containing 128C-2s); Horne Dep. (Tr. Ex. 482) at 169:22-170:3 (DDP officer at Lancaster did not know who current ADA Coordinator was); Rhodes Dep. (Tr. Ex. 487) at 108:19-23, 109:1-3 (DDP counselor at Lancaster did not know who ADA Coordinator was or what his duties are); Clausing Dep. (Tr. Ex. 491) at 40:23-41:21 (ADA Coordinator at SATF seen by DDP officer in housing unit no more than six to seven times in last two years); Chapa Dep. (Tr. Ex. 489) at 214:25-215:5 (DDP counselor at SATF did not inform the ADA Coordinator about grievance alleging that DD prisoners were being discriminated against, harassed, and assaulted); Tr. Ex. 253.
2. Some Prison Staff Are Ignorant of Requirements of the Clark Remedial Plan and of Needs of Developmentally Disabled Prisoners
222. The testimony of other prison staff was not credible because they do not know the requirements of the Remedial Plan and they do not understand the characteristics and needs of developmentally disabled prisoners.
a. Ignorance of Requirements of the Clark Remedial Plan
223. Some ADA Coordinators, DDP officers, and DDP counselors did not know the requirements of the Remedial Plan.
224. Defendants classify plaintiff class members as DD1, DD2, and DD3 based on the nature and severity of the developmental disability, adaptive deficits, and adaptive support services required. CRP at 3-4, 20-23; Salz at RT 75:5-21. However, at least one ADA Coordinator was unaware of these designations or of their significance. Gonzalez Dep. at 36:7-37:5 (former ADA Coordinator at CMF had no opinion about whether DD2s have greater need for adaptive support than DD1s and whether DD3s have greater need for adaptive support than DD2s).
225. DDP officers and counselors are required to document adaptive support services, prompts, contacts, and issues relating to developmentally disabled prisoners. CRP at 42. But at least one staff member was unaware of this requirement. Chapa Dep. at 131:11-21; 214:5-19 (DDP counselor at SATF for almost 11 years had never documented any adaptive supports he provided to DD prisoners in housing unit log until ADA Coordinator told him six months ago that he had do so because "the Prison Law Office was getting picky").
226. The Remedial Plan requires that an Interdisciplinary Support Team (IDST) act as the classification committee for plaintiff class members at the Clark designated prisons. CRP at 24-25. The IDSTs review the developmentally disabled prisoner's custody, classification, program, and adaptive support at varying intervals, 1221 depending on the designation of that prisoner. *1221 Correctional officers are required to participate in and provide support services at the IDST. CRP at 42. However, some prison staff members showed a profound ignorance of these committees and their duties. Banks Dep. at 63:13-64:3 (DDP officer does not know what IDST is); Gonzalez Dep. at 136:14-137:12 (former ADA Coordinator at CMF not aware of required frequency of classification committee for DD2s and DD3s).

227. Plaintiff class members are entitled to assistance so that, to the best of their ability, they can understand and participate in administrative proceedings. CRP at 8. To this end, defendants must assign staff assistants trained to communicate with developmentally disabled prisoners in disciplinary, classification, and administrative segregation placement hearings. Id. at 8, 49-50; see also Salz at RT 120:1-122:1 (communicating effectively with DD prisoners means making language more concrete and having the prisoner repeat back the statement in his own words). However, some prison staff members did not know or understand these requirements. Banks Dep. at 61:6-11, 61:25-62:5 (DDP officer at CMF believes that when serving as staff assistant for DD prisoner, it is adequate to ensure that that prisoner understands by "speaking in normal English"); Ynson Dep. at 127:2-19 (ADA Coordinator at Lancaster not concerned that staff assistant not assigned at administrative segregation hearing because captain decided it was not necessary), 137:19-138:17 (same).
228. Some CDCR staff members testified as to their ignorance of the Clark program at their own institutions. Gonzalez Dep. (Tr. Ex. 483) at 62:19-63:14, 64:10-23; 170:13-171:4 (former ADA Coordinator unaware of use of adaptive support logs in housing units), 26:14-19 (same witness did not know how many DDP officers were at institution); Mandeville Dep. at 41:25-42:4 (ADA Coordinator does not know where various classifications of DD prisoners are housed at CMF); Banks Dep. at 26:4-19 (officer at CMF does not know the name of the counselor she would need to speak with to find out what adaptive services a DD prisoner needs); Ynson Dep. at 37:17-25 (does not know if DD prisoners were housed in general population while he was ADA Coordinator).
b. Staff Members Do Not Understand Needs of Developmentally Disabled Prisoners
229. Staff members from several prisons demonstrated ignorance and a lack of understanding of the needs of prisoners with developmental disabilities.
230. Because developmentally disabled prisoners are particularly vulnerable to abuse from other prisoners, one of the purposes of the Clark program is to provide protections for this group. Tr. Ex. 1 at 2; Cowardin Report at 20; Salz at RT 126:10-13. However, many staff members were indifferent to the greater likelihood for abuse of developmentally disabled prisoners. Banks Dep. at 29:17-31:1; Gonzalez Dep. at 66:16-21, 66:25-67:10 (DD prisoners are not necessarily more susceptible to abuse than other prisoners, so it would be "tunnel vision" for DDP officers to focus on them).
231. As noted in § I.F, some prisoners with developmental disabilities exhibit behavior that challenges popular belief about developmental disabilities, work to mask their disabilities, and have high functional capacity in some areas while demonstrating serious deficits in others. Nevertheless, some prison staff members erroneously believe that some prisoners have been wrongly designated by prison clinicians as developmentally disabled due to the prisoners' appearance or skill sets in some areas. Chapa Dep. at 235:4-236:1 (DDP counselor at SATF 1222 believes that certain prisoners who carry themselves a certain *1222 way and know some rules are not developmentally disabled); Horne Dep. at 102:17-103:7 (DDP officer at Lancaster believes that DD prisoners who do not routinely ask for assistance have the ability to function and solve problems).
3. Prison Staff Violate their Remedial Plan Duties
232. Other prison staff members were clearly failing to perform their work adequately. Staff duties with regard to developmentally disabled prisoners are clearly outlined in the Clark Remedial Plan. CRP at 41-45. Nevertheless, noncompliance with many of these requirements was almost universal and some of these instances of noncompliance were egregious.
233. DDP officers are required to maintain frequent contacts with and monitor daily activities of developmentally disabled prisoners. CRP at 7-8, 42. But some staff witnesses do not regularly check in with or monitor prisoners with developmental disabilities and are poorly supervised in this area. Banks Dep. at 32:20-35:12, 83:13-16; Gonzalez Dep. at 168:22-169:12, 171:7-11; see also Mandeville Dep. at 70:23-71:13, 118:14-119:2 (ADA Coordinator had no expectation about the appropriate frequency of staff contact with DD prisoners).

234. Similarly, prison staff members fail to provide necessary reading and writing assistance to plaintiff class members, do not remind plaintiff class members to take care of basic life needs, fail to protect plaintiff class members from theft and abuse, and fail to ensure that plaintiff class members understand prison due process proceedings.
235. It was undisputed that staff must be proactive in seeking out the needs and concerns of plaintiff class members. § II.C.1.f. But some prison staff members do not affirmatively provide assistance to prisoners with developmental disabilities. Banks Dep. at 29:7-16 (officer does not know if there was ever a time when she provided services to DD prisoners because of information in their 128C2); Brown Dep. (Tr. Ex. 486) at 32:9-14 (DDP counselor at CMF would not volunteer help during open line); Chapa Dep. at 138:16-139:24 (DDP counselor at SATF believes some DD prisoners might be afraid to talk to staff but does not determine which prisoners have never approached him to ask for help); Horne Dep. at 102:17-103:7 (DDP officer at Lancaster does not ask DD prisoners who do not routinely ask for assistance ask why they are not asking for help); Valdez Dep. at 107:2-16 (officers at R.J. Donovan do not explain prison rules to DD prisoners unless the prisoners ask them); Banks Dep. at 47:1-24.
236. The Clark Remedial Plan requires that all custody staff members receive annual overview trainings that include information about, among other topics, developmental disabilities, behaviors indicating developmental disabilities and types of adaptive support services that must be provided by prison staff members to prisoners with developmental disabilities. CRP at 59-61; Wells at RT 554:7, 554:13-14. In addition, prison staff members serving as staff assistants, participating in disciplinary and classification proceedings, and taking on other roles must be trained with the use of specialized training modules. CRP at 61-62; Wells at RT 554:7-14, 161:16-162:8.
237. One reason why prison staff members' testimony reveals gaps in compliance might be that some of these defense witnesses had never received or 0907 cannot recall receiving0907part or all of the required training. Brown Dep. at 15:24-16:23, 76:8-15, 107:15-17 (counselor at CMF cannot recall getting staff assistant training and serves as a staff assistant every few weeks), 136:8-21 (same counselor does not recall training before becoming or during 1223 time as a Clark counselor, other than annual *1223 overview training), 112:25-113:7 (same counselor not trained on effective communication with DD prisoners); Gonzalez Dep. 50:7-15 (former ADA Coordinator at CMF does not know how long the Clark training is, or what it consists of), id. at 131:1-16 (ADA Coordinator did not receive all of required training); Valdez Dep. at 133:3-12 (staff members at R.J. Donovan did not receive overview Clark training from a clinician, as required by the CRP [CRP at 61]); Ynson Dep. at 54:22-55:12 (ADA Coordinator at Lancaster did not receive required annual refresher training in 2009).
238. Further, at least one prison official was not even aware of crucial training requirements. Valdez Dep. at 135:23-137:15 (ADA Coordinator at RJD is not aware of specific training required for staff assistants).
4. Testimony from a Few Staff Members at Individual Prisons Does Not Prove Systemic Compliance
239. Some prison staff members testified credibly that they work to meet the needs of developmentally disabled prisoners. See, e.g., Prud'homme Dep. at 88:19-90:7; Serna at RT 347:15-348:12 (assists DD prisoners with reading and writing), 350:17-352:6 (accommodations at classification hearings). However, the attentiveness of a handful of staff chosen to testify for the defense does not capture the experiences of plaintiff class members in other institutions, or even in the same institution when the particular staff person is not on duty. Such testimony, like that of Mr. Wells, is entirely consistent with Dr. Leone's findings that the California prison system is characterized by indifference to developmentally disabled prisoners, with sporadic examples of compliance from particular staff.
C. Defendants' Case in Rebuttal
240. Defendants' case in rebuttal is no more persuasive than their case in chief. Defendants did not rebut at the hearing a single fact that Dr. Leone relied on to support his opinion that there exists a pattern of indifference to

the basic needs of plaintiff class members. Although some individual staff members from some of the same prisons Dr. Leone visited testified that they provided assistance to developmentally disabled prisoners at those institutions (see, e.g., Serna at RT 338:16-339:1, 341:14-342:2, 347:15-348:12; Horne Dep. at 43:25-44:6; Brown Dep. at 33:14-16; Clausing Dep. at 87:10-25), this testimony does not rebut his findings that despite the efforts of some helpful staff, many prisoners' needs are not being met. See, e.g., Serna at RT 349:11-350:4 (cannot always assist every DD prisoner who requests assistance); Banks at 79:21-80:1 (only assists DD prisoners with 602 forms). Not one prisoner interview, staff interview, or document relied on by Dr. Leone was directly challenged by any of defendants' evidence at the hearing, despite the fact that defendants had nearly three months to investigate the report before the hearing.[14]
1224 *1224 241. Defendants' sole rebuttal expert witness was Dr. James Scaramozzino. Dr. Scaramozzino failed to provide any credible rebuttal testimony. By his own admission he is not an expert in developmental disabilities or in statistics. Scaramozzino at RT 858:7-9 (does not consider himself an expert in developmental disabilities), 858:10-12 (does not consider himself an expert in statistics). He is not an expert in the main area of Dr. Leone's testimony0907the operation of CDCR's programs for developmentally disabled prisoners 0907 except in the narrow area of mental health. Id. at 858:13-16. Nor is he an expert in determining whether policies and procedures for disabled individuals are adequate to provide access to the program services and activities at the prison, except, again, for mental health. Id. at 858:17-21. In fact, Dr. Scaramozzino only spends 10% of his time on Clark issues, and that work only includes the mental health components, such as testing and referrals. Id. at 859:24-860:14. He thus cannot speak credibly to Dr. Leone's methodology or findings, except in the narrow area of the mental health component of the DDP.
242. Dr. Scaramozzino's testimony is also unreliable because he has limited knowledge of any of the workings of the DDP. He cannot say whether the DDP is an effective program. Id. at 919:8-15. He had not read the Clark Remedial Plan for at least a few years before he prepared his report. Id. at 902:4-6. In forming his opinions for this case, he did not tour any prisons, speak to any prison staff or developmentally disabled prisoners, review any prisoner files, review Dr. Leone's notes, or review any documents other than Dr. Leone's 2010 report. Id. at 902:14-903:4. Dr. Salz wrote various factual statements which Dr. Scaramozzino added to his report, although he had no independent knowledge of their accuracy, the very criticism that he leveled at Dr. Leone. Id. at 903:18-904:12. He characterized the report as a "collaborative effort" between himself, Dr. Salz, and another CDCR psychologist. Id. at 903:11-17.
243. In Dr. Scaramozzino's opinion, Dr. Leone "focused all his attention on individual prisoners and did not look at the total system," such as interviews with staff regarding CDCR's processes to implement Clark and review progress. James Scaramozzino Expert Report (Tr. Ex. 1195) at 1; see also Scaramozzino at RT 864:23-865:2. According to Dr. Scaramozzino, Dr. Leone looked only at "one component of the program, the prisoner's opinions," while ignoring the state's "primary goal, which is: Do I have the program in place to be able to attend to the issues?" Scaramozzino at RT 873:19-24. Dr. Scaramozzino misses the real question at issue in these proceedings: not whether the state has a remedial plan0907which is undisputed0907but whether the state follows that plan. Dr. Scaramozzino offered no evidence on that point.
244. Dr. Scaramozzino's criticisms of Dr. Leone's work are deeply flawed so 0907 flawed that he actually retracted some of them in his testimony. He found fault with Dr. Leone for failing to review documentation or interview staff members to verify the accounts of specific prisoners. Scaramozzino Report at 2; Scaramozzino at RT 881:10-21. He admitted that this criticism was incorrect, however. Dr. Leone had performed such reviews and conducted 1225 interviews (as noted in § II.A, *1225 supra) and Dr. Scaramozzino overlooked that statement in Dr. Leone's report. Scaramozzino at RT 908:18-909:15.
245. Dr. Scaramozzino also criticized Dr. Leone for not standardizing his interviews or clearly defining the relationship between DDP classifications and degree of self-reported problems. Scaramozzino Report at 3-4. However, when he wrote his report Dr. Scaramozzino did not know what questions Dr. Leone asked. Scaramozzino at RT 893:2-7. He only learned through listening to Dr. Leone's testimony at the hearing that Dr. Leone asked a specific set of open-ended questions. Id. at 893:7-11, 900:25-901:3. Dr. Leone's testimony answered his concerns in this area.[15]Id. at 909:16-910:11. His concerns about the relationship between DDP classifications and degree of problems was also assuaged by Dr. Leone's testimony. Id. at 911:3-15.

246. Dr. Scaramozzino also criticized Dr. Leone for making findings based on evidence that developmentally disabled prisoners are subjected to abuse and exploitation. In Dr. Scaramozzino's opinion, one cannot draw any conclusions from abuse suffered by developmentally prisoners without knowing whether non-developmentally disabled prisoners are also subjected to such abuse. Scaramozzino Report at 4; see also Scaramozzino at RT 865:20-24, 893:22-894:21. Dr. Scaramozzino again misses the point. The question in this case is whether defendants have secured the federal rights of plaintiff class members, not whether other prisoners also suffer problems. Scaramozzino at RT 913:5-12.
247. Defendants have thus failed to rebut Dr. Leone's report.
D. Documentary Evidence
248. Defendants' documentary evidence does not cast doubt on plaintiffs' evidence. For the most part, defendants' trial exhibits are written policies and procedures (Tr. Exs. 1023-28, 1030, 1032, 1049-51) and training materials (Tr. Exs. 1034-40, 1042-48, 1052, 1054-61, 1063, 1066-70, 1072-81). As has been repeatedly stated, such documents do not prove that the policies contained within are followed or that the training is provided appropriately or is adequate to ensure that the rights of the plaintiff class are respected.
249. The documentary evidence also includes plaintiffs' counsel's monitoring reports covering 17 prisons, dated from early 2008 to the middle of 2009 (Tr. Exs. 1003-10, 1012-19, 1021-22)[16] and two of Dr. Leone's reports from 2008 regarding Lancaster and CMF. Tr. Exs. 1001-02.
1226 *1226 250. These documents present a balanced picture of defendants' compliance with the Clark Remedial Plan. At certain tours and institutions, prisoners reportedly were receiving adequate accommodations and protections. At other times, and sometimes at the same prisons, such services were absent. For example, in June 2008, Dr. Leone found that CMF was "doing a good job of meeting the needs of dually-diagnosed inmates with DD on the EOP units." Tr. Ex. 1002 at 4. In early 2010, however, Dr. Leone found serious problems there: along with one other prison, CMF was "probably the most dysfunctional kind of set of circumstances, the least amount of protection, most victimization of the seven prisons that I visited." Leone at RT 783:19-21. For example, many prisoners "identified specific officers that they said made fun of them and other inmates with disabilities, threatened them, refused to issue ducats to inmates who needed to leave the unit for activities, filed false Rules Violation Reports against inmates that they did not like, and failed to provide support and/or assistance to them. . . ." Leone Report at 15 (footnote omitted).
251. Dr. Leone explained the varied findings in these monitoring reports: "my sense is that this Clark [R]emedial [P]lan is not institutionalized, that it's heavily depend[ent] on which correctional officers might be on a particular unit at any given time. So I may have visited [in 2008] during a period of time when there was very competent officers doing exactly what they've been trained to do." Leone at RT 784:5-11; see also Tr. Ex. 1006 (California Men's Colony, March 2008) at 9 (backsliding in the disciplinary review process: none of the disciplinary write-ups reviewed had a clinician review); Tr. Ex. 1007 (CMF, October 2008) at 10 (40% of the disciplinary write-ups reviewed lacked a clinician review, which was a worse record than the previous year).
252. These reports are consistent with Dr. Leone's opinions and conclusions on defendants' compliance. For example, plaintiffs' counsel noted in a report that "at multiple institutions, such as [California Men's Colony], prisoners report that the reality is that staff simply refuse to provide such assistance when asked." Tr. Ex. 1006 at 5; see also Tr. Ex. 1003 (Lancaster, November 2008) at 3-5 (many of the adaptive support evaluations generated by clinicians at Lancaster were inadequate and incomplete and some appeared to classify the prisoner inaccurately), 7 (DD prisoners reported that housing unit staff did not help them as needed; they were afraid to ask staff for help for fear of negative consequences); Tr. Ex. 1004 (California Correctional Institution, October 2008) at 1 (institution "continues to have problems with training, ensuring staff assistants are assigned for all [administrative segregation lock-up notices] and, as of this year, CCI failed to ensure that a clinician review all" disciplinary write-ups), id. (staff were unable to verify whether they had been trained in most of the required training modules over the past year, which had also been noted in the previous year's monitoring report); Tr. Ex. 1006 (California Men's Colony, March 2008) at 1 (DD prisoners reported that they were not being adequately

accommodated), 5 (DD prisoners reported that staff was too busy to help them or outright refused to help them), 6 (DD prisoners were relying on other prisoners to help them, and did not feel that they had any other choice, which "is an unacceptable practice"), 9 (institution backsliding in the disciplinary review process: none of the disciplinary write-ups reviewed had a clinician review); Tr. Ex. 1007 (California Medical Facility, October 2008) at 2 (prison officials did not know whether they were providing required DDP training), 6-7 (DD prisoners reported 1227 that they were not receiving assistance *1227 from regular housing officers), 8 (DD prisoners reported that they did not have staff assistants in classification and disciplinary hearings), 10 (40% of the disciplinary write-ups reviewed lacked a clinician review, which was a worse record than the previous year); Tr. Ex. 1008 (Corcoran, March 2008) at 1 ("[d]eficiencies still remain with the clinician review process and the assignment of Staff Assistants in the disciplinary process and in [administrative segregation lock-up notices]"); Tr. Ex. 1009 (DVI, September 2008) at 3 (several disciplinary hearings for DD prisoners had no staff assistant or clinician review of the disposition), 4 (according to staff, since there were so few disciplinary write-ups for DD prisoners, the CRP requirements were forgotten), id. ("[f]ailure to comply with the Clark Remedial Plan requirements in the disciplinary process for DDP inmates has been a recurring problem at DVI"), id. (administrative segregation lockup notices with no staff assistants); Tr. Ex. 1012 (Mule Creek, September 2008) at 1 (Mule Creek "still does not comply fully with remedial plan requirements" on training; same problem has been found for three monitoring tours in a row), 4 (none of the disciplinary write-ups reviewed for the tour had been reviewed by a clinician; Chief Deputy Warden and associate warden stated that "this area of noncompliance had been a problem during several monitoring tours"); Tr. Ex. 1018 (Sierra Conservation Center, November 2008) at 1 (institution not providing some of the required DDP training); Tr. Ex. 1021 (Valley State Prison for Women, March 2008) at 1 (Valley State "has continually either neglected to do" certain required DDP training "or has failed to be prepared to report on the training during monitoring tours"); Tr. Ex. 1022 (Wasco, July 2008) at 4 (class members complained that they were not receiving reading and writing help from staff, that staff told them to seek help from other prisoners, and that they were uncomfortable asking staff for help because they thought they would say no and be angry about being asked), id. (failure to assign staff assistants and clinician reviews for disciplinary writeups, which had also been a problem the previous year), 5 (failure to assign staff assistants for administrative segregation lock-up notices), 6 (failure to provide Regional Center referral letters for DD prisoners who were paroling).
E. Defendants' Sur-Response
253. On August 6, 2010, Defendants submitted a Sur-Response to Plaintiffs' Response to Defendants' Proposed Findings of Fact and Conclusions of Law. This Sur-Response asked that this Court take into evidence a report prepared by the Division of Adult Institutions and filed on July 23, 2010. See Doc. 489.
254. Courts have discretion to reopen the record in certain circumstances. Defendants propose the following list of considerations: whether "(1) the evidence sought to be introduced is especially important and probative; (2) the moving party's explanation for failing to introduce the evidence earlier is bona fide; and (3) reopening will cause no undue prejudice to the nonmoving party." Love v. Scribner, 691 F.Supp.2d 1215, 1235 (S.D.Cal.2010) (quoting Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 746 (1st Cir.1995)).
255. Defendants fail to pass their own test. First, the evidence sought to be introduced is the report prepared by the Division of Adult Institutions. That report on its own is inadmissible, and hence cannot be important or 1228 probative.[17] First, it *1228 cannot be admissible as an expert report as no effort has been made to qualify its authors as experts, nor were they disclosed as experts. Second, it is clearly not an admissible business record because it was prepared, if not in advance of litigation, at least in the midst of litigation. Third, as explained in Plaintiffs' opposition, the Report itself does not reveal its methodology, and hence it is impossible to determine whether its conclusions are valid. See Doc. 493, at 5-6. Fourth, it is comprised largely of inadmissible hearsay.
256. Second, Defendants have failed to provide a bona fide reason that this evidence could not have been presented at the hearing. As noted above, Dr. Leone provided all necessary information to Defendants so that they could carry out an investigation of his conclusions. If Defendants had expressed any intent to respond to Dr. Leone's conclusions, their counsel had in their possession the information necessary for Defendants to conduct such an investigation. However, Defendants failed to conduct such an investigation until this Court indicated that

it was concerned by Defendants' failure to respond. The orderly presentation of evidence requires that parties prepare in advance of the hearing to present all relevant evidence. A simple failure to plan ahead is not a bona fide reason justifying reopening the evidence.
257. Third, and finally, Plaintiffs would be prejudiced by taking this Report into evidence. They have not had the opportunity to depose or cross examine the individuals who compiled the report, and hence have had no opportunity to explore the report's weaknesses.
258. For these reasons, this Court declines to consider the late-submitted Report.
CONCLUSIONS OF LAW

I. Defendants' Termination Motion Is Denied

A. Immediate Termination of the Plan Is Unwarranted Because the Settlement Agreement Meets the PLRA's Needs-NarrownessIntrusiveness Requirement

259. The PLRA requires that court orders in prisoner civil rights actions include findings that the relief is narrowly drawn, extends no further than necessary to correct a violation of federal rights, and is the least intrusive means of doing so. 18 U.S.C. § 3626(b)(2). This Court did not make those findings explicitly at the time it ordered implementation of the Settlement Agreement & Order of December 3, 2001 (Dkt.# 194) (Settlement Agreement & Order). That omission, however, does not necessitate termination of prospective relief in this case because the Settlement Agreement & Order does in fact meet the PLRA standard. For the reasons that follow, Defendants' motion to terminate relief is DENIED.
1. The Required Findings Are Implicit in the Relief

260. In Gilmore v. California, the Ninth Circuit discussed the PLRA's immediate termination provision:

1229

We do not read [Section 3626(b)(2)] to mean that explicit findings must have been made, so long as the record, the court's decision ordering prospective relief, and relevant caselaw fairly disclose that the relief actually meets the § 3626(b)(2) narrow tailoring standard. . . . Our reading is not a "disingenuous evasion," since Congress' objective was to limit relief to the constitutional floor. If existing relief was so crafted according to the record and relevant caselaw, the findings required by the *1229 statute are implicit in the court's judgment.

Gilmore, 220 F.3d 987, 1007 n. 25 (9th Cir.2000) (citations omitted).

261. Here, the parties agreed that the Settlement Agreement & Order met the PLRA's needs-narrownessintrusiveness standard at the time it was entered. Settlement Agreement & Order, ¶ 15. The Court fully approved of the Settlement Agreement & Order, including the needs-narrowness-intrusiveness language as stipulated by the parties. The relief was not overbroad and, indeed, defendants offered no evidence to the contrary. Under the Ninth Circuit's rule set forth in Gilmore, then, "the findings required by the statute are implicit in the court's judgment." 220 F.3d at 1007 n. 25.

B. Termination Is Unwarranted Because Current and Ongoing Violations of Federal Constitutional and Statutory Rights Support the Continuation of Relief in this Case
262. Under the PLRA, termination of prospective relief is not appropriate if the court makes written findings, based on the record, that "prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and. . . is narrowly drawn and the least intrusive means to correct the violation." 18 U.S.C. § 3626(b)(3). This Court has already ruled that Defendants, as the party moving for termination, bear the burden of proving that no such violations exist. Order Regarding Burden of Proof, April 2, 2010 (Dkt. # 382); see also Gilmore, 220 F.3d at 1007. Defendants have failed to prove that there are no violations. On the contrary, even if Plaintiffs were to bear the burden of showing such ongoing violations, they have met it.
263. The Court heard six days of testimony and reviewed dozens of deposition excerpts and over 700 exhibits. The evidence demonstrates that plaintiff class members continue to suffer current and ongoing violations of their federal rights and that those violations are systemic. As defendants have failed to carry their burden to show the absence of current and ongoing federal rights violations, this Court concludes that the prospective relief contained in the Settlement Agreement & Order remains necessary, is sufficiently narrow, is minimally intrusive, and therefore shall not be terminated.
1. ADA and Section 504
264. It is undisputed that the Clark class members are qualified individuals with disabilities entitled to protection from discrimination under Title II of the ADA and under Section 504 of the Rehabilitation Act. See 42 U.S.C. § 12132; 29 U.S.C. § 794. As such, Clark class members are entitled to "reasonable accommodations" and "reasonable modifications" so that they can avail themselves of prison services and participate in prison programs and activities. See 29 U.S.C. § 794; 28 C.F.R. § 35.130(b)(7). Defendants have failed to fulfill their obligation to provide plaintiff class members with the accommodations and program modifications that would enable them to gain access to the prison programs, services, and activities afforded non-disabled prisoners. As a result many class members are effectively excluded from many prison programs, while others are forced to resort to a dangerous underground economy to buy assistance and protection from other prisoners.
a. Identification of Plaintiff Class Members
265. Defendants are obligated under the ADA and § 504 to properly identify those prisoners requiring reasonable 1230 accommodations. *1230 See Armstrong v. Davis, 275 F.3d 849, 876 (9th Cir.2001); CRP at 14-16. The evidence,
however, including testimony from two experts in developmental disabilities, shows that the proportion of the prison population that defendants have identified as being developmentally disabled is dramatically lower than what is found in the general public and what reliable research predicts.
266. The evidence presented strongly supports the inference that defendants have failed to identify and track many, if not the majority, of developmentally disabled prisoners in the CDCR, but further information and analysis is required to draw a definitive conclusion about the actual operation of CDCR's identification process. The Court therefore will order defendants either to validate the current screening process through accepted scientific procedures or to adopt a process that has already been validated. This issue is discussed further below. See infra III.C.2

b. Reading and Writing
267. Developmentally disabled prisoners whose reading skills are limited or non-existent are not provided assistance to ensure that they have an equal opportunity to participate in prison programs and activities, and to ensure that communication of information concerning services, activities and programs is "as effective" for them as for people without disabilities, in violation of the ADA, § 504, and the Clark Remedial Plan. See 28 C.F.R. § 35.160(a); see also Garcia v. Taylor, No. 07-474, 2009 WL 2496521, at *11 (N.D.Fla. Aug. 11, 2009); Cruz v. Hauck, 627 F.2d 710, 720-21 (5th Cir.1980); CRP at 6, 42, 45-46.
c. Assistance in Disciplinary, Administrative, Parole, and Classification Proceedings
268. Clark class members do not receive "meaningful access" to disciplinary, administrative, parole, and classification proceedings. Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988). Defendants have failed to provide assistance to ensure that communication in those proceedings is equally effective, thus violating plaintiff class members' rights under the ADA and § 504. 28 C.F.R. § 35.160(a).
d. Grievance Procedures
269. Defendants have failed to maintain a grievance process that is "readily available to all . . . inmates." 28 C.F.R. § 40.3; Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); see also Bradley v. Hall, 64 F.3d 1276, 1279-80 (9th Cir.1995). In addition, defendants have not provided class members with a "prompt and equitable" grievance system for disability-related complaints. 28 C.F.R. § 35.107(b).
e. Assistance with Self-Care and Daily Living Activities
270. Daily living activities, including the use of showers, the exchange of laundry, and the receipt of medication, constitute "services, programs, or activities" under the ADA and § 504. See, e.g., Phipps v. Sheriff of Cook County, 681 F.Supp.2d 899, 916 (N.D.Ill.2009) ("showering, toileting, and lavatory use . . . regarded as programs and/or services under the ADA"); see also Chase, 508 F.Supp.2d at 502 ("Title II's accommodation requirement applies to almost every interaction between inmates and prison officials"). Therefore, the ADA and § 504 entitle plaintiff class members to reasonable accommodations, in the form of prompts or reminders from staff, to facilitate their use of these services.
271. Defendants have failed to ensure plaintiff class members' access to these services through the use of prompts or reminders or any other accommodation.
1231 *1231 f. Staff Training
272. The record reflects that staff training is essential to the provision of necessary services. As noted below, this Court further concludes that the training envisioned by the Clark Plan is apparently insufficient on its own to meet the statutory minimal levels of care. Therefore, training will be the subject of a further remedial order.
2. Eighth Amendment
273. There is undeniably evidence in the record concerning incidents that raise constitutional concerns. The record demonstrates that some deprivations are serious, but this Court cannot conclude that Defendants have been deliberately indifferent on a class-wide basis meriting class-wide prospective relief.

274. As discussed exhaustively above, Defendants have enacted (thanks to the Clark Remedial Plan) a system of regulations that, if properly implemented, would largely cure the deprivations suffered by class members. To date, however, this system has not been adequately implemented. Given the fact that CDCR policies did indeed provide for constitutionally acceptable treatment, this Court cannot conclude that CDCR and State officials were deliberately indifferent to the entire class. Individual prisoners have indeed suffered greatly, and perhaps some could bring individual actions under the Eighth Amendment against other state actors. But that does not prove that the Eighth Amendment rights of the class in general have been violated by Defendants named in this case, and it does not justify system-wide injunctive relief based upon the Eighth Amendment.
275. After being invited to submit objections to a preliminary version of this order, Plaintiffs objected to this conclusion.[18] Plaintiffs cite to Thomas v. Ponder, 611 F.3d 1144 (9th Cir.2010), arguing that there is sufficient evidence "that the prison officials were aware of a `substantial risk of serious harm' to an inmate's health or safety." Id. at 1150. However, Thomas is not to the contrary. Defendants' witnesses0907particularly those with supervisory roles within CDCR0907testified consistently that, so far as they knew, the CRP was being adequately implemented. While it is true that this Court has concluded that these witnesses were uniformly mistaken, and it is undeniable that these witnesses should have known of true conditions of the DDP program, we do not conclude that these witnesses were being insincere. On the contrary, the size and bureaucratic structure of CDCR in 0907 addition to the lack of a reliable self-assessment device 0907rendered these Defendants largely ignorant of the treatment suffered by class members. This is particularly true of the more egregious events catalogued above, which, unlike the systemic ADA violations, appear to have been more isolated. Defendants apparently believed CDCR policies, even if imperfectly implemented, would prevent such occurrences. Although it is a close question, this Court concludes that Defendants did not have sufficient knowledge of the serious gaps in the DDP program to give rise to an Eighth Amendment violation with regard to the class. Such a lack of malicious intent gives no cover with regard to the ADA and § 504, but without it there is no class-wide Eighth Amendment violation.
3. Fourteenth Amendment
276. Plaintiffs argue that Defendants' conduct violates the Fourteenth Amendment. So far as this Court can discern, however, the relief requested under the heading of Due Process is alternatively available under the ADA 1232 and § 504. See Armstrong v. Davis, 275 F.3d 849, 861 (9th *1232 Cir.2001) ("The ADA and Rehabilitation Act . . . require more than compliance with due process requirements: they require that a disabled individual be provided with `meaningful access'. . . ." (emphasis added)). Therefore, because this Court has separately ordered that the relief in question be provided under the ADA and § 504, and in order to avoid deciding an unnecessary constitutional issue, this Court declines to reach the issue of the Fourteenth Amendment. See Harvey v. Brewer, 605 F.3d 1067, 1078 (9th Cir.2010) (O'Connor, J., sitting by designation) ("The canon of constitutional avoidance . . . provid[es] that a court will not pass upon a constitutional question if there is some other ground upon which the case may be disposed . . . .").
C. PLRA Exhaustion Requirements Are Not Applicable
277. Defendants' termination motion is not saved by plaintiffs' failure to demonstrate that they have exhausted their administrative remedies regarding the current and ongoing violations of federal law found herein.
278. The original complaint in Clark v. California was filed before the enactment of the PLRA and therefore the PLRA exhaustion requirement found at 42 U.S.C. § 1997e(a) does not apply. Clark v. California, No. 96-1486, 1998 WL 242688 at *2-3 (N.D.Cal. May 11, 1998) (PLRA does not apply because plaintiffs filed their original complaint on April 22, 1996, four days before the PLRA amendments went into effect, and amended complaint relates back to the date of the initial filing.); see also Bishop v. Lewis, 155 F.3d 1094, 1095-96 (9th Cir.1998).
279. Likewise, neither the instant motion to terminate filed by defendants nor plaintiffs' motion for enforcement triggers the exhaustion requirement. The PLRA only requires exhaustion when a new "action" is brought and a post-PLRA motion in a case filed before the PLRA went into effect is not subject to the 1997a(a) requirement.

See Coleman v. Schwarzenegger, No. 90-0520, 2008 WL 4813371 at *2 n. 2 (E.D.Cal. Nov. 3, 2008) ("[t]he exhaustion requirement of the PLRA does not apply to motions that exclusively [sought] the enforcement of the terms of' the consent decree" (internal quotations omitted)). Clearly, neither of the motions before the Court constitutes a new action, and thus the PLRA exhaustion requirements are irrelevant.
D. The Relief Previously Ordered Remains Appropriate
280. This Court concludes that the relief order in the Settlement Agreement remains "narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626.
281. This is a case where "it would not be possible for a district court to produce meaningful need-narrownessintrusiveness findings concerning each isolated provision of a remedial order. Prospective relief for institutions as complex as prisons is a necessarily aggregate endeavor, composed of multiple elements that work together to redress violations of the law." Armstrong v. Schwarzenegger ("Armstrong II"), No. 09-17144, 622 F.3d 1058, 1070-71, 2010 WL 3465279 (9th Cir. Sept. 7, 2010).
282. Based on the factual findings above, this Court concludes that continuation of the Clark Remedial Plan, given the fact that it is now interwoven with state regulations and is regarded as an essential plan by many state 1233 employees, imposes "the minimal impact possible on defendants' discretion over their policies and *1233 procedures." Id. The CRP "remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and . . . is narrowly drawn and the least intrusive means to correct the violation." 18 U.S.C. § 3626(b)(3). Therefore, is it ordered that the entire Clark Remedial Plan remain in effect.
II. Defendants' Motion under Federal Rule of Civil Procedure 60(b)(5) Is Denied
283. Defendants move to dismiss the Settlement Agreement & Order pursuant to Federal Rule of Civil Procedure 60(b)(5). Under this rule, modification of an injunction is considered equitable when there has been a significant change in relevant law or factual circumstances. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383-84, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). Modification may be warranted when changed factual conditions make compliance with the order substantially more onerous, when an order proves to be unworkable because of unforeseen obstacles, or when enforcement of the order without modification would be detrimental to the public interest. Id. at 384-85, 112 S.Ct. 748. If the moving party demonstrates that the modification is warranted, the court must then consider whether the modification is appropriately tailored to the changed circumstance. Id. at 383, 112 S.Ct. 748.
284. Defendants have offered no change in law or fact that provides a credible basis for the dismissal of the Settlement Agreement. In fact, the evidence points in exactly the opposite direction: as set forth in the Findings of Fact, current and ongoing violations of the federal rights of the plaintiff class warrant ongoing Court supervision, not a dismissal of relief. In the absence of legal or factual support, defendants are not entitled to dismissal of relief simply because ongoing Court supervision is inconvenient.
III. Further Remedial Orders Are Necessary to Remedy the Current and Ongoing Violations of the Federal Rights of Plaintiff Class Members
285. Based on the evidence set forth in the Findings of Fact, the Court concludes that further relief is necessary to secure the rights of the plaintiff class. The Remedial Plan, while universally acknowledged to be a worthy effort, has proven, as implemented, inadequate to ensure defendants' full compliance with the ADA, § 504, and the Fourteenth Amendment with regard to plaintiff class members. The Court finds that the systemic nature of the

violations demands systemic remedies as set forth below, and Plaintiffs' motion for further remedial orders is therefore GRANTED IN PART. To the extent that motion requests relief that is not herein ordered, such further relief is DENIED.
A. The Court Has the Power to Issue Further Remedial Orders
286. The Settlement Agreement and Order in this case grants the Court "jurisdiction to enforce the terms of this agreement" and "the power to enforce the agreement through specific performance and all other remedies permitted by law." Settlement Agreement and Order, Dec. 3, 2001 (Docket # 194), ¶ 5.
287. The terms of the Settlement Agreement that the Court has the power to enforce include defendants' duties to identify developmentally disabled prisoners; to properly classify, house and protect them; and to ensure nondiscrimination against them, including meaningful access to CDCR forms and processes, such as sick call, 1234 grievances, and disciplinary and *1234 classification proceedings. Id. at ¶ 4 (defendants shall fully implement Clark Remedial Plan); CRP at 1, 8.
288. Under the PLRA, the Court may not issue a remedial order unless it is "narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a)(1)(A). Based on the findings set forth above, the Court finds that the further relief ordered herein meets this needs-narrowness-intrusiveness standard.
289. While the PLRA requires remedies that are narrowly tailored and the least intrusive to remedy the rights violations, "it is also the duty and responsibility of this Court to ensure that constitutional rights are fully vindicated." Madrid v. Gomez, 889 F.Supp. 1146, 1282 (N.D.Cal. 1995). "Therefore, a federal court may order relief that the Constitution would not of its own force initially require if such relief is necessary to remedy a constitutional violation," and in fashioning such relief, may take into account a history of noncompliance with prior orders. Toussaint v. McCarthy, 801 F.2d 1080, 1087 (9th Cir.1986), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Plata v. Schwarzenegger, 603 F.3d 1088, 1098 (9th Cir.2010) (appointment of receiver approved where defendants failed to prove that lesser remedies could have addressed constitutional violations).
B. Further Remedial Orders Are Necessary Because Defendants Cannot Remedy their Violations
290. The Court concludes that denying defendants' termination motion without additional action would be insufficient to remedy defendants' violations of federal law. This conclusion is based on four sets of facts. First, defendants have demonstrated an inability to remedy the problems that have been identified by the Court expert and others. Further orders are therefore necessary. Second, defendants have demonstrated an inability to take remedial steps absent court intervention. Third, the Court has already ordered defendants to comply with the Remedial Plan, in the 2001 Settlement Agreement & Order, but the evidence reflects that Defendants have failed to do so even nine years later. Fourth, the Remedial Plan in its current form does not go far enough to ensure compliance with the ADA and § 504. Further remedial orders are required to correct these violations.
C. Further Remedial Orders Are Required
291. In determining the appropriate remedy, the Court must balance the deference due the State in the administration of its prison system, the Court's duty to ensure that the rights of the plaintiff class are safeguarded, and the limitations of the PLRA. The Court will therefore allow defendants the opportunity to develop amendments to the Remedial Plan to remedy the current and ongoing violations.

1. Staff Training
292. The evidence demonstrated that some staff, even after presumably receiving the required training, failed to provide necessary assistance and failed to make necessary inquiries. See generally Findings of Fact § II.C. The current training regimen is clearly inadequate to prepare staff members to adequately preserve Plaintiffs' rights. The training provided in CDCR must be improved through consultation with experts and plaintiffs' counsel. Defendants object that this Court has no power to order any kind of training regimen. They are incorrect. See 1235 Armstrong *1235 v. Davis, 275 F.3d 849, 875-76 (9th Cir. 2001).
2. Identification and Classification
293. As noted in the Findings of Fact § II.B, supra, the Court is not confident that defendants are properly identifying plaintiff class members through their implementation of the Remedial Plan's testing procedures. As a consequence, it appears likely that a class of individuals is not being provided with the services to which it is legally entitled. Defendants must either (a) validate the current identification process or (b) develop a new validated system for testing and identifying class members.
294. The Court is also concerned that the classification of prisoners as DD1, DD2, and DD3 does not provide adequate guidance about the needs of specific prisoners. Some staff labored under misconceptions regarding what assistance was necessary for what designation0907for example, that DD1 prisoners need no help at all. See, e.g., Scaramozzino at RT 868:19-21. These misconceptions are particularly problematic given two characteristics of the developmentally disabled population. First, all people designated as developmentally disabled have very significant deficits requiring a great deal of help. Cowardin at RT 620:23-25, 630:4-631:18; Expert Report of Nancy Cowardin, Ph.D. (Tr. Ex. 5) (Cowardin Report), at 17-18. Second, no person is entirely DD1 or DD2 or DD3. People have varying abilities in different areas. Cowardin at RT 620:23-25, 621:7-20, 626:15-25; Cowardin Report at 17-18. Thus, a developmentally disabled person might have good grooming and self-care skills, but be extremely vulnerable to exploitation by others. Another developmentally disabled person might be able to read but not to advocate for himself or herself in due process proceedings. Defendants must develop and use more specific forms for identifying the specific deficits and needs of individual members of the plaintiff class.
295. In consultation with the Court experts and plaintiffs' counsel, defendants shall develop and use more specific forms for identifying the specific deficits and needs of individual members of the plaintiff class.
3. Self-Monitoring
296. Defendants do not perform the self-audits required by the Remedial Plan. Wells at RT 455:6-22, 456:8-10; CRP at 62. The need for such audits is manifest in the ignorance of the testifying officials regarding severe systemic compliance problems at the prisons. Although officials testified as to their intentions to implement a selfaudit tool, the Court will set specific dates to ensure compliance.
297. Defendants must consult with the Court experts and with plaintiffs' counsel, who have expertise in this area essential to the process, regarding the adequacy of their audit tool.
D. Determining the Proper Remedy
298. Defendants are therefore ORDERED to prepare a plan to address these three independent areas requiring further relief. This Plan shall consist of specific amendments to the current Remedial Plan that will remedy the above-noted legal deficiencies.
299. Defendants shall submit their plan, including a draft of the audit tool, to the Court's experts and to the Prison Law office, by December 15, 2010. The experts and parties shall meet and confer, as necessary. If any disputes remain, the Court experts shall resolve them. If either party disagrees with the Court experts' resolution, or if the

Court experts are unable to agree, either party may bring the dispute to the Court for resolution by way of a noticed motion.
1236 *1236 300. Plaintiffs have also requested an order directing defendants to present a plan for remedying ongoing violations of the CRP. The Court declines to do so at this time for two reasons. First, continuing Court supervision and ordering compliance with the Clark Plan is, in itself, an order to remedy such ongoing violations. Second, while Plaintiffs are correct that these violations occurred even while the Clark Plan was in force, this Court is hopeful that implementation of a comprehensive audit toll will result in more effective self-oversight. Defendants' witnesses time and again suggested that plaintiffs' allegations could not be accurate because CDCR policies are to the contrary. Indeed, the record is replete with evidence of defendants' unawareness that CDCR policies are not consistently implemented. Once defendants are capable of assessing the gap between their policies and reality, this Court is hopeful that they will be able to better meet plaintiffs' needs. Developing another "plan" simply raises the question of whether that plan, unlike the previous one, will be followed. In the end, no plan will be successful unless defendants are able to properly evaluate whether their policies are being implemented.
E. Miscellaneous
301. Pursuant to Federal Rule of Evidence 706(b) and the Settlement Agreement and Order of December 3, 2001, defendants shall pay the Court expert for his work in connection with the termination and enforcement motions in this case.
302. The automatic stay of prospective relief entered pursuant to 18 U.S.C. § 3626(e)(2) is hereby vacated.
IT IS SO ORDERED.
[1] Because the Title II Technical Assistance Manual provides the Department of Justice's interpretation of its own regulations, it "must... be given substantial deference and will be disregarded only if `plainly erroneous or inconsistent with the regulation.'" Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 732 n. 11 (9th Cir. 1999) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)).
[2] Indeed, because the Rehabilitation Act's goals "should ... mirror the goals of prison officials as they attempt to rehabilitate prisoners and prepare them to lead productive lives once their sentences are complete," providing prisoners with reading and writing assistance in 0907 an effort to "ensur[e] that inmates have meaningful access to prison activities"0907 serves "the goals of both the institution and the Rehabilitation Act." Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988).
[3] Defendants sought to introduce a rebuttal report after the close of evidence. For reasons explained more thoroughly below, this Court has declined to consider that evidence. Even if it were considered, the testimony and report of Dr. Leone are more credible.
[4] IDST is an interdisciplinary team of multiple staff members who "review and determine program needs of DDP inmates" to "ensure the provision of adaptive support services necessary for a DDP inmate to function at an acceptable level in the correctional environment." Tr. Ex. 476 at 24. The correctional officer must "participate in IDST" and "provide support services as directed by IDST." Id. at 42.
[5] Many of the remedial measures defendants have presented in this hearing came about through court orders in other prison reform cases. The Office of Court Compliance staff at the individual prisons who act as headquarters' "eyes and ears" are a result of court intervention in Armstrong. Wells at RT 445:25-446:3. The auditing tool and accountability system defendants have committed to implement in this case were a result of another Armstrong order. McDonald at RT 936:14-937:6, 962:18-20. The Bureau of Independent Review, an essential part of defendants' disciplinary system, was a result of a court order in Madrid v. Terhune, No. 90-3094 TEH (N.D. Cal.), which "revamped" the CDCR disciplinary system. McDonald at RT 963:10-14, 964:25-965:3, 965:9-11.

[6] A single compliance review was conducted eight years ago. No evidence was presented that it was conducted using a standardized audit instrument vetted by plaintiffs' counsel, as required by the Remedial Plan. Wells at RT 456:20-22.
[7] As a result of a court order in another prison reform case in this Court, 26 Correctional Counselor II Specialist positions were added at some of the prisons in 2007. Wells at RT 445:13-17; 445:25-446:3; Armstrong v. Schwarzenegger, Case No. C 94-2307 CW, Injunction, January 18, 2007 (Armstrong Dkt. # 1045) at 5.
[8] This testimony is of particular concern since at Lancaster, Correctional Counselor II Specialists typically accompany plaintiffs' counsel during the monitoring tours. Wofford at RT 401:20-22.
[9] At least one factual error also undercut Mr. Subia's testimony. He claimed that there are 12 prisons designated for DD prisoners when in fact there are only 10. Subia at RT 220:5-6; Stipulated Fact 9.
[10] Similarly, the draft audit tool, about which Ms. McDonald and Mr. Wells testified about in great detail, demonstrates only that compliance with one Clark Remedial Plan requirement has begun, many years late. It does not show that defendants are in compliance with the rest of the Remedial Plan, that there are no statutory or constitutional violations, or that they are capable of self-monitoring.
[11] The six prisons0907R.J. Donovan, SATF, California Rehabilitation Center, Lancaster, CMF, and Deuel Vocational Institution0907were all visited by the Court expert before he drafted his report.
[12] The parties stipulated that the direct testimony of the prison staff witnesses who appeared only by deposition would be substantially similar to the direct testimony of their counterparts who appeared in person, and the Court has considered that stipulated testimony in making these Findings. See RT 375:12-376:4.
[13] At the same time, some ADA Coordinators did not even know whether required training was provided. Prud'homme Dep. at 131:13-16 (ADA Coordinator at SATF could not say that every staff member received each required trainings); Nies Dep. at 139:20-22 (ADA Coordinator at DVI does not know whether all staff serving as staff assistants have received appropriate training).
[14] The Court does not credit defense counsel's assertions that defendants could not investigate Dr. Leone's statements because they did not possess his "key"0907the names and numbers of the prisoners he discusses in his report. Subia at RT 251:9-252:2. Dr. Leone provided the key shortly after he issued his report, on February 26, 2010. Tr. Ex. 479. Dr. Leone placed no limitation on defense counsel's ability to share that information with CDCR headquarters. Leone at RT 747:13-21; Tr. Ex. 2. Nothing prevented defendants at that point, two and one half months before the hearing, from interviewing the staff and reviewing the documents that Dr. Leone relied on.
The Court also gave defendants the opportunity to move to reopen the hearing to allow them to investigate Dr. Leone's findings, if they could justify their delay in doing so. RT 1067:2-1068:5. Defendants have submitted new evidence and ask this Court to consider it. However, because Defendants have failed to explain why this evidence was not developed in a timely manner, and because consideration of this evidence at this stage would deprive Plaintiffs of the opportunity to cross-examine the relevant witnesses, this Court declines to consider it. This is discussed more thoroughly below.
[15] Dr. Scaramozzino provided no credible testimony as to why Dr. Leone's approach is wrong. The Court finds persuasive Dr. Leone's testimony that his questions were well designed to elicit useful information from the class members he interviewed. Defendants' witness, Dr. Salz, and plaintiffs' expert, Dr. Cowardin, corroborated the validity of his approach. Salz at RT 80:16-17 (effective communication with DD prisoners requires the use of open-ended questions and more than no or yes answers); Cowardin at RT 656:8-20 (indicating that Dr. Leone is a professional trained in how to speak with individuals with disabilities).
[16] Some of the reports written by plaintiffs' counsel and offered by defendants are of limited value because they concern prisons with very few class members. See, e.g., Tr. Ex. 1005 at 1 (only nine DD prisoners housed at California Institution for Women at the time the report was generate, Tr. Ex. 1010 at 1 (only two DD prisoners housed at High Desert State Prison at the time the report was generated), Tr. Ex. 1013 at 1 (only seven DD

prisoners housed at Pelican Bay State Prison at the time the report was generated), Tr. Ex. 1021 at 1 (only four DD prisoners housed at Valley State Prison for Women at the time the report was generated). [17] Defendants have not moved to reopen the hearing itself, but rather have simply submitted this report. [18] Defendants were similarly invited to submit objections. They chose not to do so.
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 II
1 PRISON LAW OFFICE DONALD SPECTER #83925
2 HEATHER MacKAY #161434 SARA NORMAN #189536
3 General Delivery San Quentin, CA 94964
4 Telephone: (415) 457-9144

5 CHAVEZ & GERTLER MARK A. CHAVEZ #90858
6 One Market Plaza Steuart Street Tower, Suite 1475
7 San Francisco, CA 94105 Telephone: (415) 777-5515
8 PILLSBURY WINTHROP LLP
9 SHAWN HANSON #109321 CAROLINE N. MITCHELL #143124
I0 50 Fremont Street San Francisco, CA 94105
11 Telephone: (415) 983-1000

12

Attorneys for Plaintiffs

13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA
15

16

)

DERRICK CLARK, et al.,

)

17

)

Plaintiffs,

)

18

vs.

)

)

19 STATE OF CALIFORNIA, et al.,

)

)

20 21

_______________D_ef_en_da_n_ts._____)))

No. C 96-1486 FMS
SETTLEMENT AGREEMENT AND ORDER

22

23

24

25

26

27

28

SETI'LEMENT AGREEMENT AND ORDER NO. C96-1486 Fl\1S
I

1

A. Introduction

2

1. On April 22, 1996, two prisoners with developmental disabilities incarcerated

3 within the California Department of Corrections filed this action against the State of

4 California, the Governor, the California Department of Corrections and various prison

5 officials alleging that defendants were discriminating against them on the basis of their

6 disability in violation of the Equal Protection Clause, the Americans with Disabilities Act

7 (ADA), 42 U.S.C. § 12131 et seq., and§ 504 of the Rehabilitation Act (§504), 29 U.S.C. §

8 794, that defendants were depriving them of due process in violation of the Fourteenth

9 Amendment, and that plaintiffs were living under conditions that were cruel and unusual

10 punishment in violation of the Eighth Amendment. The Court denied defendants' motion to

11 dismiss and certified the case as a class action. Plaintiffs filed an Amended Complaint adding

12 additional plaintiffs. The parties engaged in extensive discovery, conducting more than 175

13 depositions and producing tens of thousands of pages of documents. The Court denied

14 defendants' motion for summary judgment, except for the equal protection claim, which was

15 dismissed with prejudice. The case was set for a two month trial on June 29, 1998. Prior to

16 trial the parties engaged in settlement negotiations under the supervision of Judge Eugene

17 Lynch, which produced the framework for this agreement. Further negotiations between the

18 parties produced an Interim Agreement and Stipulation that was filed with the Court on July

19 20, 1998.

20

Pursuant to the Interim Agreement and Stipulation defendants proposed a plan to

21 remedy the constitutional and statutory violations identified by plaintiffs. This plan was

22 subject to negotiation between the parties and, evaluated by experts appointed by the Court.

23 As a result of this process, defendants have a final plan each component of which has been

24 accepted by the plaintiffs or approved by the Court. Through this Settlement Agreement

25 defendants agree to implement this plan, subject to monitoring by plaintiffs' counsel,

26 evaluation by the Court's experts, negotiation between the parties and, if necessary,

27 enforcement by the Court.

28

SE'l~l'LEME.NT AGREEMENT ANU ORDER
NO. C96-14R6 PMS
2

1

B. Parties

2

2. The parties to this Settlement Agreement are plaintiffs Derrick Clark, Larry

3 Dixon, Jr., Jack von Gunten, Mark Mitchell Morino, James Simmons, Estella Holloway and

4 the class of plaintiffs that they represent, and defendants State of California, California

5 Department of Corrections, Pete Wilson, Governor, Thomas M. Maddock, Secretary of the

6 Youth and Adult Corrections Agency, Cal Terhune, Director of the California Department of

7 Corrections, Susann Steinberg, M.D., Deputy Director for Health Care Services, Nadim

8 Khoury, M.D., Assistant Deputy Director for Medical Services, and Maijorie TaVoularis,

9 M.D., Chief, Mental Health Care Services and their successors. The plaintiff class consists of

10 all present and future individuals with developmental disabilities11 who are under the control of

11 the California Department of Corrections.

12

3. Each party to this agreement was represented by counsel during its negotiation

13 and execution. Plaintiffs and the plaintiff class are represented by Donald Specter, Prison Law

14 Office, Caroline Mitchell, Pillsbury, Madison & Sutro LLP, and Mark Chavez, Chavez &

15 Gertler LLP, eta!. Cal Terhune and the other defendants are represented by Peter Siggins and

16 William Jenkins of the Office of the Attorney General of California.

17

c. Terms and Conditions

18

4. Implementation of Plan. Defendants shall fully implement all of the

19 provisions of their remedial plan, which is attached hereto as Appendix A.

20

1. For purposes of the class definition, a developmental disability is defined as a

21 "disability which originates before an individual attains age 18, continues, or can be expected

22

to continue, indefinitely, and constitutes a substantial disability for that individual.. .. [T]his term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall

23 also include disabling conditions found to be closely related to Mental Retardation or to require treatment similar to that required for mentally retarded individuals, but shall not

24 include other handicapping conditions that are solely physical in nature." Cal. Welfare and

Institutions Code S4512(a). Mental Retardation means "[s]ignficantly subaverage intellectual 25 functioning: an IQ of approximately 70 or below on an individually administered IQ test .

26

. [with] [c]oncurrent deficits or impairments in present adaptive functioning (i.e., the person's effectiveness in meeting the standards expected for his or her age by his or her

27 cultural group) in at least two of the following areas: communication, self-care, home living,

social/interpersonal skills, use of community resources, self-direction, functional academic

28 skills, work, leisure, health and safety .... The onset is before age 18 years." DSM-IV at 46.

SETTLEMENT AGREEMENT AND ORDER NO. C96-J486 FMS
3

1

5. Jurisdiction. The Court shall retain jurisdiction to enforce the terms of this

2 agreement. The Court shall have the power to enforce the agreement through specific

3 performance and all other remedies permitted by law.

4

6. Experts. The parties agree that the appointments of Peter Leone, Ph.D. and

5 Melissa Warren, Ph.D. as Court experts will continue pursuant to Federal Rules of Evidence,

6 Rule 706 to advise the Court on the adequacy of defendants' implementation of their plan and

7 any other matter that appropriately may be the subject of the experts' testimony. The experts'

8 duties specified in Appendix B shall be provided to the experts pursuant to Rule 706(a). The

9 experts shall be entitled to reasonable compensation in an amount approved by the Court and

10 shall be paid by the California Department of Corrections. The Court experts shall have

11 access to all parts of any institution, with or without notice, all relevant documents, persons

12 (including confidential interviews with staff or inmates) and institutional meetings, proceedings

13 and programs to the extent that such access is needed to fulfill his or her obligations.

14

7.

In the event that one or both of these experts can no longer serve, the parties

15 shall attempt to agree on a replacement(s) within 30 days. If the parties do not agree,

16 defendants and plaintiffs shall each nominate one replacement, and one of those nominated

17 shall be jointly selected by the existing experts: In the event the experts cannot agree, each

18 expert shall submit one name to the Honorable Eugene Lynch, who shall chose one and

19 recommend that person's appointment by the Court.

20

8. Enforcement. Plaintiffs' counsel shall monitor defendants' compliance with

21 the plan set forth in Appendix A. If plaintiffs believe that defendants are not complying with

22 some or all of the plan they shall notify defendants of the perceived problems. Defendants

23 shall investigate the allegations and respond within twenty calendar days. If plaintiffs are not

24 satisfied with defendants' response they may request that the matters be evaluated by the

25 Court's experts and/or be subject to mediation with the Honorable Eugene Lynch, or, if he is

26 not available, any other person satisfactory to the parties. The substance of the mediation and

27

any

statements

-
made

by

a

party

are

confidential

and

not

admissible

in

any

subsequent

28 proceeding. The Experts' report(s) shall be admissible as evidence at the request of any party.

SETTLEMENT AGREE1vtH•fr AND ORJ)EI<. NO. C96-14R6 FMS
4

1

2

9. If negotiations fail to resolve any issue, plaintiffs shall have the option of

3 seeking relief from the Court. The Experts' report(s) shall be admissible as evidence at the

4 request of any party.

5

10. Modification of Plan. Defendants may seek to modify their plan if there is a

6 significant change in the facts or the law; plaintiffs may seek to modify the plan if the plan

7 does not effectively remedy defendants' violations or if a modification is necessary to ensure

8 plaintiffs receive adequate supportive services to which they are entitled under the ADA, §504

9 or the Constitution. Any party wishing to modify the plan must submit the proposed

10 modification to the opposing party. The opposing party may request further information,

11 request that the modifications be evaluated by the Court's experts and be the subject of

12 negotiation with Judge Lynch. If the parties fail to reach agreement on the modification, the

13 party proposing the modification may seek relief from the Court.

14

11. Monitoring and Access to Information. Defendants shall provide plaintiffs'

15 counsel with reasonable access to information sufficient to monitor defendants' compliance

16 with their plan. Access to such information shall be provided in the ordinary course of

17 business from the date this Settlement Agreement is approved by the Court. Such information

18 shall include, but is not limited to, the following documents:

19

a.

A monthly report of the identity and location of all identified members

20 of the plaintiff class;

21

b.

The complete medical, psychiatric and non-confidential central files of

22 the plaintiff class;

23

c.

24

d.

25

e.

26

f.

All intemal reviews or audits of defendants' plan and programs; All budget change proposals to implement defendants' plan or programs; All evaluations of whether prisoners are developmentally disabled; All analyses and reports concerning the reliability of defendants'

27 screening instruments; and

28

g.

Documents maintained at individual institutions that are relevant to

SE"JTLEMEN'T AGREEMENT AND ORDER NO. C96-1486 FMS
5

1 assessing the state of defendants' compliance.

2

12. Plaintiffs shall be able to conduct 33 tours of institutions housing members of the

3 plaintiff class per year (including multiple tours of the same institutions), with or without their

4 expert consultants. Such tours shall include access to institutional programs and classification

5 and disciplinary hearings, housing facilities, recreational yards, and all other areas of the

6 institution normally used by inmates. Defendants shall make available for interview

7 departmental, custodial, clinical and program staff that have responsibility for the care,

8 treatment, safety, classification, housing, discipline and programming of class members.

9 Plaintiffs' counsel shall be able to have brief discussions with inmates during the tours and

10 shall be able to provide prison staff with counsel's name and address for distribution to specific

11 inmates. Defendants also shall provide plaintiffs' counsel access to confidential interviews

12 with inmates before or after the tours, as arranged among counsel, during regular business

13 ·hours without regard to regular visiting hours and days. Plaintiffs reserve their right to seek

14 to depose departmental, custodial, clinical, and program staff members.

15

13. Attorney Fees. Defendants shall pay plaintiffs for all work performed in

16 connection with monitoring implementation of their plan and the terms and conditions thereof

17 in fees per year plus reasonable expenses, expert witness fees and costs. Plaintiffs shall submit

18 a detailed invoice for their services and expenses at the end of every quarter and defendants

19 shall pay the amount requested by plaintiffs within 45 days of receipt of each invoice, provided

20 that defendants need not pay any fees that exceed $393,333 in year 2000, $426,666 in year

21 2001 and $460,000 in each year thereafter in which this stipulation remains effective. If

22 plaintiffs' counsel take additional steps to enforce this stipulation through litigation they shall

23 be entitled to seek a reasonable award of attorneys fees, notwithstanding the monetary limits

24 set forth above.

25

14. Ter·mination. Defendants may move to vacate this Settlement Agreement and

26 dismiss the case on the ground that they have substantially complied with the plan set forth in

27 Appendix A as modified for a period of three years. Plaintiffs may oppose the motion, and

28 shall have the burden of proving that defendants are not in substantial compliance. Defendants

SETTLEMENT AGREEMENT A. ND ORDER NO. C96~1486 PMS
6

1 will be in substantial compliance when at the time of assessment they have achieved, and may

2 reasonably be expected to continue to achieve, satisfaction of each undertaking through

3 established policy, routine and reliable practice. A finding of non-compliance shall not be

4 based on isolated failures to follow established procedures, technical departures from such

5 procedures that do not reduce the benefits to the plaintiff class, or unimportant violations of no

6 consequence. The parties shall attempt to negotiate any disputes about defendants' compliance

7 with the assistance of Judge Lynch and/or the evaluation of the Court's experts.

8

15. Liability and Necessity for Relief. Defendants admit that they have violated

9 the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein.

10 The parties agree that the relief set forth herein is narrowly drawn, extends no further than

11 necessary to correct the violation of the federal rights and is the least intrusive means necessary

12 to correct the violation of the federal rights.

13

14 IT IS SO AGREED AND STIPULATED.

15

;)__ 16 Dated: ,9c<h~

,2001

17

18

DONALD SPECTER Prison Law Office Attorney for plaintiffs

19 Dated: 0~22, 2001
20
21

SCOTT MATHER, Deputy Attorney General on behalf of all
defendants

22
23 Dated: AjqJ:?~//, 2001.
24 25 26

EDWARDS. ALAMEID California Department of

27

28

SETTLIJ.lv1E.NT AGREEMENT AND ORDER NO. C96-l486 FMS
7

1

Having reviewed the terms and conditions set forth above, any comments from class

2 members, the arguments of counsel and the records on file in this case, the Court hereby finds

3 that the terms of this Settlement Agreement are fair and reasonable and that defendants' plan,

4 once fully implemented, shall provide effective relief to the plaintiff class. Accordingly, the

5 Court will retain jurisdiction over this case to enter any order necessary to ensure compliance

6 with and implementation of the terms and conditions set forth above.

7

IT IS SO ORDERED.

s

CHARLES R. BREYER

9 10 11 12 13 14 15 16 17 18 19
20
21 22
23
24 1 25
26
27
28

Dated:

UNITED STATES DISTRICT COURT

SETTLEMENT AGREEMENT AND ORDER NO. C96-1486 FMS
8

Appendix A

DECLARATION OF SERVICE
Case Name: Derrick Clark, et al. v. State of California, et al.
Case No.: C-96-1486 FMS
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the Bar of this Court at which member's direction this service is made. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.
On November 29. 2001, I placed the attached
SETTLEMENT AGREEMENT AND ORDER
in the internal mail collection system at the Office of the Attorney General, 455 Golden Gate Avenue, Room 11000, San Francisco, California 94102, for deposit in the United States Postal Service that same day in the ordinary course of business, in a sealed envelope, postage fully postpaid, addressed as follows:

Donald Specter, Esq. Heather Mackay, Esq. Sara Norman, Esq. Prison Law Office General Delivery San Quentin, CA 94964
Shawn Hanson, Esq. Caroline N. Mitchell, Esq. Pillsbury Winthrop LLP 50 Fremont Street San Francisco, CA 941 05

Mark A. Chavez, Esq. Chavez & Gertler 42 Miller Ave. Mill Valley, CA 94941

I declare under penalty of perjury the foregoing is trne and correct and that this declaration was executed on November 29, 2001 at San Francisco, California.

J. Esninosa

 
 Clark v. State of Calif., Not Reported in F.Supp. (1998) 1998 WL 242688

1998 WL 242688 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Derrick CLARK, et al., Plaintiffs, v.
STATE OF CALIFORNIA, et al., Defendants.
No. C96–1486 FMS. | May 11, 1998.
Opinion
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT.
SMITH, J.
INTRODUCTION
*1 Defendants have filed a motion for summary judgment on the grounds that (1) plaintiffs failed to exhaust their administrative remedies as required by 42 U.S.C. § 1997(e); (2) plaintiffs failed to exhaust their state law remedies; (3) plaintiffs have not established equal protection violations; and (4) plaintiffs lack standing to pursue the systematic relief requested in their complaint. Defendants also seek to have the class decertified on the ground that plaintiffs have not demonstrated that the class is so numerous as to make joinder impracticable.
BACKGROUND
Plaintiffs in this class action are inmates under the control of the California Department of Corrections who are developmentally disabled as defined by California Welfare & Institutions Code § 4512(a). Two developmentally disabled prisoners, Derrick Clark and Ambrose Woods, filed an original complaint on behalf of themselves and all others similarly situated on April 22, 1996. They alleged violations of the Americans with Disabilities Act, 42 U.S.C. § 12131–12133, the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983.

Defendants filed a motion to dismiss on the grounds that (1) the ADA and the RA did not apply to incarcerated felons, (2) plaintiffs’ ADA and RA claims were barred by the Eleventh Amendment, (3) plaintiffs lacked standing to pursue their claims, (4) plaintiffs failed to pursue their state law remedies, and (5) the allegations in the complaint were insufficient to state a claim for any of the causes of action. On October 1, 1996, the Court granted the motion with leave to amend as to plaintiffs’ § 1983 due process claims and denied the remainder of the motion. On appeal, the Ninth Circuit denied defendant’s petition for permission to appeal the Court’s decision as to the applicability of the ADA and RA.1Plaintiffs filed a First Amended Complaint on October 31, 1996 in which they added four additional named plaintiffs and amended their due process claims.2 The court certified the class on February 26, 1997.

1

Defendants have filed a petition for certiorari in the

United States Supreme Court. The Supreme Court is

reviewing the applicability of the ADA to incarcerated

felons this term in Pennsylvania Dept. of Corrections v.

Yeskey, USSC Case No. 97–634,cert. granted at 522

U.S. 1086, 118 S.Ct. 876, 139 L.Ed.2d 865, 1998 WL

21894 (January 23, 1998).

2

The new named plaintiffs in the First Amended

Complaint were Larry Dixon, Jr., Milton Silva, Jack

Von Gunten, and Mark Mitchell Morino. On March 26,

1998, following the release from CDC custody of

Milton Silva and Ambrose Woods, two other inmates,

James Simmons and Estella Holloway, were substituted

as named plaintiffs.

Plaintiffs have identified six inmates who received disciplinary violations either without having understood the rules they violated or without being provided with staff assistance in defending themselves; six inmates who did not receive staff assistance in classification hearings; three inmates who did not receive assistance in filing administrative appeals; eight inmates subject to physical abuse because of their disabilities; eleven inmates denied adequate medical care because of their disabilities; two inmates denied participation in work programs because of their disabilities; and nine inmates denied participation in educational programs because of their disabilities.3

3

The numbers of inmates identified as having suffered

each harm are taken from defendants’ moving papers.

Although they do intend to dispute them at trial, for

1

Clark v. State of Calif., Not Reported in F.Supp. (1998) 1998 WL 242688
purposes of this motion, defendants accept plaintiffs’ claims of injury as true.
Plaintiffs have also offered evidence that there are at least 1,500 developmentally disabled prisoners scattered throughout the CDC system, and that CDC does not have a systematic method of identifying these inmates in order to provide them with assistance and protection. Many of these inmates are functionally illiterate and therefore unable to understand prison rules and regulations, gain access to medical care, and defend themselves without assistance at disciplinary proceedings. They are frequently excluded from educational and vocational programming and work opportunities available to other prisoners, and are subject to abuse and harassment by other inmates and by correctional staff. The parties have stipulated that the defendants acted under color of state law.
DISCUSSION
I. Legal Standard *2 To withstand a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. SeeFed.R.Civ.P. 56(e). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial, “the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In opposing summary judgment, plaintiff is not entitled to rely on the allegations of her complaint. She “must produce at least some ‘significant probative evidence tending to support the complaint.’ “ T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
The Court does not make credibility determinations with respect to evidence offered, and is required to draw all inferences in the light most favorable to the non-moving party. See T.W. Elec. Serv., Inc., 809 F.2d at 630–31

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Summary judgment is therefore not appropriate “where contradictory inferences may reasonably be drawn from undisputed evidentiary facts....”Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir.1980).
II. Analysis
A. Exhaustion of Administrative Remedies In 1996, Congress enacted the Prison Litigation Reform Act (PLRA). The PLRA amended 42 U.S.C. § 1997e(a) to make exhaustion of administrative remedies a jurisdictional predicate for federal actions by prisoners challenging the conditions of their confinement. See Morgan v. Arizona Dept. of Corrections, 976 F.Supp. 892 (D.Ariz.1997). Before the passage of the PLRA, prisoners were not required to exhaust administrative remedies in such cases; the previous version of § 1997e allowed district courts to continue cases in order to require exhaustion “if the court believe[d] that such a requirement would be appropriate and in the interests of justice.” 42 U.S.C. § 1997e(a)(1); See Wright v. Morris, 111 F.3d 414, 415 (6th Cir.1997).
Defendants argue that the current version of § 1997e(a) bars plaintiffs’ claims because plaintiffs have not alleged that they have sought or exhausted the administrative remedies available in California; however, the amended § 1997e(a) does not apply to this action. Plaintiffs filed their original complaint on April 22, 1996, four days before the PLRA amendments went into effect. As amended, § 1997e(a) does not have any retroactive effect on cases already filed. See Wright, 111 F.3d at 423 (finding the language “no action shall be brought with respect to prison conditions until ... [available] administrative remedies ... are exhausted” to be “explicitly prospective”).
*3 Defendants argue that even if the exhaustion requirement does not apply to the claims of the two class representatives named in the original complaint, it does apply to the claims of additional class representatives added in amended complaints filed after April 26, 1996, the day the PLRA went into effect. The Court disagrees. First, the claims raised in plaintiffs’ amended complaints relate back to the allegations of the original complaint. SeeFed.R.Civ.P. 15(c)(2). Second, the class representatives added by amendment were members of the class alleged in the original complaint, so their claims were brought before the PLRA became effective.
2

Clark v. State of Calif., Not Reported in F.Supp. (1998)
1998 WL 242688
B. Exhaustion of State Remedies A § 1983 claim that would invalidate a conviction or sentence is not cognizable unless the conviction or sentence has been reversed, expunged or called into question by a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). When a prisoner challenges the procedures used rather than an actual conviction or sentence, the determination whether his challenge is properly brought under § 1983 must be based on whether “the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the [resulting] judgment.” Edwards v. Balisok, 520 U.S. 641, ––––, 117 S.Ct. 1584, 1587, 137 L.Ed.2d 906 (1997).
In Edwards, the Supreme Court held that a prisoner’s § 1983 claim for damages and declaratory relief for denial of due process in a hearing that led to the loss of good-time credits was barred under Heck.The plaintiff in Edwards alleged that the hearing officer at the prison was biased and had excluded exculpatory evidence. Because such allegations were of a type that had led to the reinstatement of good-time credits in state and federal courts, the Court held that a victory for the plaintiff would necessarily imply the invalidity of his sentence. See id. at 1588–89. The question before this Court then is whether these plaintiffs’ due process challenge “necessarily implies” the invalidity of their sentences.
In their § 1983 due process challenge, plaintiffs claim that defendants subject class members to disciplinary, grievance, parole, and administrative proceedings which they lack the ability to participate in meaningfully without assistance, and that defendants disseminate prison rules and regulations in written materials which class members lack the ability to read and understand. As a result, class members are deprived without due process of their liberty interest in good-time credits.
Plaintiffs argue that the Court should focus on whether a plaintiff is seeking prospective relief, relying on the Edwards Court’s observation that the plaintiff’s prayer for prospective relief was not barred by Heck.See id. at 1589. Although no court has barred a claim for prospective relief under the Heck and Edwards, plaintiffs’ approach ignores that the focus of the inquiry after Edwards is on the nature of the challenge rather than on the type of relief sought. The plaintiff’s claim for prospective relief in Edwards was based on the prison’s failure to date-stamp witness statements, a failure that did not “necessarily imply” the invalidity of a previous loss of good time credits because the failure to date-stamp witness statements would not necessarily lead to the reinstatement of good time credits.

*4 Defendants argue that plaintiffs’ allegations that they have been deprived of good time credits as a result of procedural defects bars their claims under Edwards and Gotcher v. Wood, 122 F.3d 39 (9th Cir.1997), rev’g66 F.3d 1097 (9th Cir.1995). Following Edwards, the Ninth Circuit reversed its pre-Edwards decision in Gotcher I. Gotcher I held that a § 1983 claim challenging the procedures used in denying good-time credits rather than the actual denial of credits was cognizable. The plaintiff in Gotcher had alleged that the prison failed to give him 24–hour advanced written notice of allegations against him and did not allow him to call witnesses or present documentary evidence in his defense. Without discussion, the panel in Gotcher II held that Edwards foreclosed the plaintiff’s entire compensatory claim. Id. at 39.
Because an allegation of wrongful deprivation of good-time credits will always be necessary to establish a due process claim relating to procedures used when good-time credits are at stake, however, defendants’ approach appears to be overly broad. In discussing the reach of Heck v. Humphrey, the Edwards Court reiterated a distinction made in Heck between procedural challenges that “necessarily vitiated the denial of good-time credits” and those that did not. See Edwards, 520 U.S. at ––––, 117 S.Ct. at 1587. As an example of those that did not, the Court referred to the procedures challenged in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), where prison officials had failed to specify what facts and evidence supported a finding of guilt in a disciplinary hearing. See id. at 563–64. In her concurrence in Edwards, Justice Ginsburg emphasized that the decision was based on plaintiff’s specific allegations of “deceit and bias on the part of the decisionmaker” and that under Wolff, a claim based on allegations of other procedural defects could still be cognizable.
The Court finds that plaintiffs’ claims are analogous to the type of claims presented in Wolff. Like the failure to provide a prisoner with facts and evidence against him, the failure to provide plaintiffs with information and assistance to respond meaningfully to charges against them do not “necessarily vitiate[ ] the denial of good-time credits.” The provision of information and assistance plaintiffs seek would not compel the reinstatement of good-time credits formerly lost or guarantee that plaintiffs will not lose good-time credits in the future. Although some plaintiffs might be entitled to a new hearing on certain matters if the Court finds a constitutional violation, this Court’s findings will not ensure their success on the merits. The Court concludes, therefore, that plaintiffs’ § 1983 due process claims are cognizable.
3

Clark v. State of Calif., Not Reported in F.Supp. (1998) 1998 WL 242688

C. Equal Protection Claims In order to establish an equal protection claim, plaintiffs must show that defendants have failed to treat them in the same manner as other similarly situated persons. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Defendants argue that plaintiffs cannot maintain their equal protection claims because the non-developmentally disabled prisoners whose treatment they compare to their own are not similarly situated. The Court agrees. See Hansen v. Rimel, 104 F.3d 189 (8th Cir.1997). In Hansen, a hearing-impaired inmate brought an equal protection claim alleging that prison officials’ failure to provide him with a special telephone denied him telephone access enjoyed by inmates without hearing impairments. The court dismissed the claim because the plaintiff, who could not use a standard telephone, was not “equally capable for the purpose at issue.” Id. at 190.
*5 Plaintiffs argue that for the purposes at issue in this action, they are similarly situated to non-disabled inmates but are receiving different treatment. Plaintiffs claim, however, that they are barred from access to medical care because they are unable to understand and complete the written forms that all prisoners are required to use. They also claim that they are unable to participate in the educational programming offered in the prisons because the level of programming offered to all prisoners is too advanced for them. It appears that all of the different treatment plaintiffs claim to be receiving is the result not of defendants’ disparate treatment of them but of their own disabilities. It is difficult to understand, therefore, in what way the equal protection clause is implicated.4

4

Although plaintiffs’ equal protection claims might be

viable under a disparate impact rubric, plaintiffs’

counsel emphasized at oral argument that the claims are

for disparate treatment rather than disparate impact.

D. Standing Defendants argue that the Supreme Court’s decision in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), requires plaintiffs to demonstrate widespread actual injury to members of the plaintiff class in order to have standing to pursue systemwide relief. As plaintiffs point out, defendants have mistakenly grafted the requirements for obtaining systemwide relief onto the Lewis Court’s separate discussion of standing.

The plaintiffs in Lewis were inmates in the Arizona state prison system. They brought a class action on behalf of all adult present and future prisoners incarcerated by the state of Arizona Department of Corrections (ADOC), alleging that ADOC was depriving them of their right of access to the courts and to counsel under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Id. at 2177. After a trial, the district court found that ADOC’s system failed to comply with constitutional standards, and that lockdown prisoners and illiterate or non-English-speaking prisoners were particularly affected by the system’s inadequacies. Based on the recommendations of a special master, the court entered an injunction mandating sweeping changes in ADOC’s prison library and legal assistance practices, and requiring new procedures and services for lockdown prisoners and illiterate or non-English speaking prisoners. Id. at 2178. The Supreme Court reviewed the scope of the relief granted and held that because the plaintiffs had failed to demonstrate widespread actual injury, they were not entitled to systemwide relief.
The Lewis Court held as a threshold matter that in order to have standing, a plaintiff alleging a Bounds violation must demonstrate that he was deprived of the ability to pursue a non-frivolous legal claim, not just that the available legal resources were inadequate in the abstract. Id. at 2180–81. Applying this rule, the Court found only two instances of actual injury in the record. Id. at 2182. Based on that finding, the Court held that systemwide relief was not warranted. This holding “does not rest upon the application of standing rules.” Id. at 2184, n. 7. It merely imposes a burden on plaintiffs seeking broad relief to prove that such relief is commensurate with the scope of the harm.5

5

Similarly, Toussaint v. McCarthy, 926 F.2d 800 (9th

Cir.1987), cited by defendants, only held that there was

no basis for an injunction requiring a court-appointed

monitor to review a prison’s administrative proceedings

when only five actual injuries out of 780 potential cases

had been identified. Neither Toussaint nor Lewis

imposes a mathematical standing requirement; they

merely require plaintiffs seeking broad relief to show

widespread harm.

*6 Defendants urge that in order to meet this burden on summary judgment, plaintiffs must prove the breadth of the harm by presenting the Court with specific evidence about the experiences of numerous inmates. Defendants are mistaken. Plaintiffs’ burden at this juncture is to raise a genuine issue of fact regarding the existence of widespread injury. They must offer more than their allegations, but there is no requirement that their evidence
4

Clark v. State of Calif., Not Reported in F.Supp. (1998) 1998 WL 242688

be in the form that defendants urge.
Plaintiffs have submitted declarations and depositions from eleven inmates attesting to the injuries alleged in the complaint. They have also submitted the declarations of two experts, Albert S. Duncan, Ph.D. and Craig William Haney, Ph.D., indicating that there are at least 1,500 developmentally disabled prisoners scattered throughout the CDC system, and that CDC does not have a systematic method of identifying these inmates in order to provide them with assistance and protection. Based on observation, review of documents and depositions, and his own interviews with inmates and prison personnel, it is Dr. Duncan’s opinion that developmentally disabled inmates in CDC institutions are subject to all of the harms that the named plaintiffs have allegedly suffered. Such evidence is sufficient to demonstrate that there are factual questions in dispute regarding the breadth of the harm to the plaintiff class.6

6

Raising a genuine issue of material fact does not

necessarily imply victory at trial. Further, defendants

are apparently willing to grant the relief sought. See

Declaration of William Jenkins, Exhibit C. Both sides

are cautioned that continuing to spend taxpayers’ funds

on unnecessarily protracting this litigation will not be

well-received by the Court.

E. Decertification Defendants argue that the class should be decertified because plaintiffs have failed to meet the numerosity requirement of Rule 23(a). Because plaintiffs have offered evidence that there are at least 1,500 developmentally disabled inmates under the control of the CDC and that the policies and practices causing harm to the named plaintiffs are in place throughout the system, defendants’ motion to decertify is DENIED.
CONCLUSION
Defendants’ motion for summary judgment is GRANTED as to plaintiffs’ § 1983 equal protection claims; these claims are DISMISSED with prejudice. Defendants’ motion is DENIED as to exhaustion of administrative remedies, exhaustion of state remedies, and standing. Defendants’ motion for decertification is DENIED.
SO ORDERED.

s.

5

 
 Clark v. State, Not Reported in F.Supp. (1996) 1996 WL 628221

1996 WL 628221 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Derrick CLARK, et al., Plaintiffs, v.
STATE of California, et al., Defendants.
No. C96–1486–FMS. | Oct. 1, 1996.
Developmentally disabled state prisoners brought suit on behalf of themselves and all developmentally disabled prisoners for injunctive relief under Rehabilitation Act (RA) and Americans with Disabilities Act (ADA), and under § 1983 for violation of their constitutional rights. State officials moved to dismiss. The District Court, Fern M. Smith, J., held that: (1) state officials were not immune from suit; (2) prisoner stated claims for violation of RA, ADA, and Eighth Amendment; but (3) prisoners failed to state claim, under § 1983, for violation of their due process rights.
Granted in part and denied in part.
Opinion
ORDER DENYING IN PART, GRANTING IN PART, DEFENDANTS’ MOTION TO DISMISS
SMITH
ISSUES
*1 Defendants’ motion to dismiss requires the Court to consider (1) whether plaintiffs have standing to bring their claims; (2) whether Section 504 of the Rehabilitation Act of 1973 (“IRA” or “Section 504”), 29 U.S.C. § 794, and Title II of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12131–34, are applicable to state prisons; (3) whether the Eleventh Amendment immunizes defendants from a su,it based on the RA or the ADA; and (4) whether plaintiffs sufficiently pled their claims under the RA, ADA, and 42 U.S.C. § 1983 (“ § 1983”) to survive a motion to dismiss.

INTRODUCTION
Plaintiffs, Derrick Clark and Ambrose Woods, two developmentally disabled state prisoners, brought suit on behalf of themselves and all developmentally disabled prisoners confined at various correctional facilities operated by the State of California through the California Department of Corrections for injunctive relief under the RA and the ADA. Plaintiffs also brought a claim under § 1983 for violations of their Sixth, Eighth, and Fourteenth Amendment rights. Defendants, the State of California, the California Department of Corrections, and various-California state officials being sued in their official capacities, have filed a motion to dismiss plaintiffs, first, second, and part of plaintiffs, third causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6).1
BACKGROUND
The facts set forth in this section are based on plaintiffs, allegations and are presumed true for purposes of this motion.
Plaintiff Derrick Clark (“Clark”) is currently incarcerated at Pelican Bay State Prison. Clark has been incarcerated at San Quentin State Prison; California State Prison, Solano; Correctional Training Facility, Soledad; and Mule Creek State Prison. Clark is developmentally disabled and has an I.Q. of less than 60. Clark can neither read nor write, except to sign his name. Plaintiff Ambrose Woods (“Woods”) is currently incarcerated at North Kern State Prison and was previously incarcerated at Pelican Bay State Prison. He is also developmentally disabled and a slow learner and, like Clark, has difficulty understanding prison rules and disciplinary procedures.
Clark, Woods, and similarly situated class members cannot obtain necessary and adequate accommodations, protection, and services because of their disabilities. For instance, Clark was denied medication because of his “stupidity” and, although recommended for placement in Category K, a designation for prisoners with mental retardation, he was denied access to the program. Woods was denied access to work and education programs and was rejected from a reading program because of his “stupidity.” Furthermore, because they are less able to comply with prison rules and procedures, they are more likely to be forced into isolation or segregation and to be
1

Clark v. State, Not Reported in F.Supp. (1996) 1996 WL 628221
deprived of good time credits and other services, benefits, and privileges available to non-disabled prisoners. Plaintiffs also claim that they have been subjected to a variety of administrative proceedings, including disciplinary actions, without adequate assistance to help them understand the proceedings and the rights implicated by them. Clark and Woods are also more likely to be physically and mentally abused by the general prison population because of their disabilities.
*2 Plaintiffs seek injunctive and declaratory relief, demanding: that defendants ensure that disabled inmates are apprised of and understand the administrative proceedings to which they are subjected and the rights implicated thereunder; that defendants grant disabled inmates access to educational programs, medical services, and other activities generally open to non-disabled prisoners; and that defendants take reasonable steps to ensure the health and safety of disabled inmates.
DISCUSSION
1. The Legal Standard.
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. North Star Int v. Arizona Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.1983) Dismissal of an action pursuant to Rule 12(b)(6) is appropriate only if it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45–46). In reviewing the motion, the Court must assume all factual allegations to be true and must construe them in the light most favorable to plaintiff, the nonmoving party. North Star, 720 F.2d at 580. Legal conclusions, however, not be taken as true merely because they are cast in the form of factual allegations. Western Mining Council Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 45 1031 (1981).
II. Plaintiffs’ Standing to Seek Injunctive and Declaratory Relief. [1] [2] The Supreme Court has developed a three-part test for standing, a constitutional prerequisite inherent in Article III’s “case or controversy” requirement. The first element is “injury in fact:” plaintiff must have suffered ...“an invasion of a legally protected interest which is (a)

concrete and particularized; and (b) actual or imminent’, not ‘conjectural, or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–61 (1992). The second and third elements of the test are causation and redressability. Id.
In this case, the RA, ADA, and § 1983 create the legal rights that plaintiffs allege were violated by defendants. See infra, parts III., IV., V., VI. Plaintiffs allege they are denied access to programs, benefits, and activities because of their disabilities. Plaintiffs also allege that they are treated differently than non-disabled inmates because of their disabilities. Plaintiffs further allege that they are more susceptible to physical and mental abuse because they are disabled, Although by no means detailed, the plaintiffs, complaint contains a few examples of the direct and actual injuries allegedly incurred by Clark and Woods. Furthermore, defendants are the cause of the injuries, and action by this Court could redress plaintiffs’ alleged injuries. Accordingly, this Court finds that Clark and Woods have standing to pursue their RA, ADA, and § 1983 claims.
Defendants argue that Clark and Woods do not have standing to pursue claims based on injuries to other developmentally disabled prisoners who are incarcerated in different prisons. This argument is premature. Defendants have confused plaintiffs, standing with their adequacy to serve as class representatives, which is a question more appropriately addressed in connection with the class certification determination.
III. Application of the RA and the ADA to State Prisons.
A. The RA. *3 [3] Despite clear Ninth Circuit authority that the RA applies to state prison facilities, Bonner v. Lewis, F.2d 559, 562 (9th Cir.1988), defendants ask this Court to conclude otherwise. Since Bonner, defendants argue, the Supreme Court has changed the review of the applicability of federal statutes to states so that absent a clear indication of congressional intent to apply the RA to state prisons, a court cannot assume Congress intended to do so. See Gregory va Ashcroft, 501 U.S. 452, 460–461 (1991) (applying “plain statement rule”).
Defendants cite two cases to support their claim that Bonner was wrongly decided because it failed to apply the plain statement rule. In Hale v. Arizona, 993 F.2d 1387, 1393, 1395 (9th Cir.) (en banc), cert. denied, U.S. 946 (1993), the Ninth Circuit refused to extend the Federal Labor Standards Act to state inmates required by
2

Clark v. State, Not Reported in F.Supp. (1996)
1996 WL 628221
state law to work at hard labor. In Jeldness v. Pearce, F.3d 1220, 1225 (9th Cir.1994), the Ninth Circuit held that Title IX, an anti-discrimination statute, applied to state prisons. In both Hale and Jeldness, the court relied partially on a review of statutory construction and congressional intent. Hale, 993 F.2d at 1392; Jeldness, 30 F.3d at 1225.
Defendants contend that the Bonner Court focused solely on the expansive language of the RA, thereby violating the scope of review as spelled out in Hale and Jeldness. The plain statement rule “announced” in Gregory however, has long been a part of this country’s jurisprudence; thus, defendants take too far a leap in concluding that the Ninth Circuit did not take this rule into account when deciding Bonner. See United States v. Bass, 404 U.S. 336, 349 (1971) (requirement of clear statement in traditionally sensitive areas); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (intention should be clear if Congress intends to pre-empt historic powers of the states). Although not explicitly stated, the Bonner Court did look for Congressional intent to apply the RA to state prisons. For instance, the court found that the plain language of the RA and its implementing regulations, 28 C.F.R. § 42.503(f), confirms that Section 504 applies to state prisons. Bonner, 857 F.2d at 562.
According to defendants, the Bonner Court’s reliance on the Department of Justice’s “DOJ”) implementing regulations was inappropriate because the plain language rule requires the Court to look at congressional intent, an intent not properly gleaned from an interpretation by an executive branch agency, such as the DOJ. According to the Supreme Court, however, when Congress explicitly delegates its authority to “construe the statute by regulation,” as was done with the RA, 29 U.S.C. § 794(a), a court must give the regulations “controlling weight unless they are arbitrary, capricious, or plainly contrary to the statute.” United States v. Morton, 467 U.S. 822, 834 (1983); see also School Bd. of Nassau County v. Arline, 480 U.S. 273, 279–280 (198 (emphasizing that federal regulations are “an important source of guidance on the meaning of § 504”) (quoting Alexander v. Choate, 469 U.S. 287, 304 n. 24 (1985)). Ninth Circuit therefore properly looked to the RA’s implementing regulations in Bonner.
*4 Defendants also claim that Bonner is inapposite because that ruling relied, in part, on the Ninth Circuit’s determination that the RA’s goal of rehabilitation mirrors the goals of Arizona’s prison system, see Bonner, 857 at 562, while it is defendants, contention that the only goal of California’s prison system is punishment. Plaintiffs cite numerous statutes in the California Penal Code and

Regulations, however, which indicate that the goal of many prison programs is much broader than that. Defendants’ contention does not change the precedential authority of Bonner.
In short, defendants, challenges to Bonner v. Lewis are unavailing; therefore, the Court concludes that the RA applies to state prisons.
B. The ADA.
[4] Defendants again argue that if this Court applies the plain statement rule, it should find that the ADA does not apply to state prisons. The Court does not agree. First, the plain language of the statute indicates that the ADA expands the reach of the federal anti-discrimination policy of the RA to “any public entity”. Second, as it did with the RA, Congress explicitly delegated its authority to the DOJ to create implementing regulations for the ADA. 42 U.S.C. § 12134(a). The DOJ’s regulations explicitly state that state correctional facilities are governed by the ADA. 28 C.F.R. § 35.190(b)(6).
Consequently, because of the expansive language of the ADA and the DOJ’s implementing regulations, the Court finds that the ADA applies to state prisons. This result is consistent with the ADA’s legislative history, which “indicates that Congress intended judicial interpretation of the RA [to] be incorporated by reference when interpreting the ADA.”Collings v. Longview Fibre Co., 63 F.3d 828, 832 n. 3 (9th Cir.1995), cert. denied,116 S.Ct. 711 (1996).
The Court must also reject defendants’ argument that federal courts should not immerse themselves in the running of integral state functions, such as the state prison system. Although most federal judges would strongly prefer not to take on such supervisory oversight, there is validity to the Department of Justice’s argument that, “[w]hile federal courts have acknowledged that deference is due to the decision of state officials, the courts cannot abdicate their duties to enforce important civil rights protections.” United States Amicus Curiae Memorandum of Law in Support of Defs., Motion for Summary Judgment, Armstrong v. Wilson, No. 94–2307 (Wilken, J.) (N.D. Cal filed Sept. 20, 1996); see Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546–47 (1985) (states are not immune from federal regulation of their “integral state functions”).
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Clark v. State, Not Reported in F.Supp. (1996) 1996 WL 628221
IV. Defendants’ Immunity From Suit on Plaintiffs’ ADA and RA Claims.
Defendants argue that plaintiffs, RA and ADA claims against the state defendants should be dismissed because states are immune from liability in federal court under the Eleventh Amendment.2
[5] [6] The Eleventh Amendment generally bars citizen suits against a state and its agencies and instrumentalities. Seminole Tribe of Fla. v. Florida, S.Ct. 1114, 1124–25, 1127–28 (1996); Francheschi v. Schwartz, 57 F.3d 828, 831 (9th Cir.1995) (California Municipal court is arm of state protected from lawsuit by 11th Amendment immunity); Bennett v. California, 406 F.2d 36, 39 (9th Cir.1969), cert. denied,394 U.S. 966 (1969) (State agencies such as the California Adult Authority and California Department of Corrections are arms of the State.). Eleventh Amendment immunity can, however, be waived by the state or expressly abrogated by Congress. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240–241 (1985).
*5 [7] To abrogate state immunity, Congress must (1) unequivocally express its intent to abrogate the immunity, and (2) act pursuant to a valid exercise of power. Seminole Tribe, 116 S.Ct. at 1123–32. An exercise of power is valid if Congress acts pursuant to a constitutional provision granting Congress the power to abrogate. Seminole Tribe, 116 S.Ct. at 1125. In Seminole Tribe, the Supreme Court held that the Fourteenth Amendment grants Congress the power to enact laws abrogating states, immunity under the Eleventh Amendment. Id.
As plaintiff and defendant agree, both the ADA and the RA contain expressions of an unequivocal intent by Congress to abrogate state immunity. 42 U.S.C. § 12202; 42 U.S.C. § 2000d–7(a)(1). The first prong of the Seminole test is, therefore, satisfied. The remaining question is whether-Congress enacted the ADA and the RA pursuant to the Fourteenth Amendment, in which case immunity would be effectively abrogated, or whether Congress acted pursuant to another constitutional provision, in which case states would remain immune from suit.
A. Plaintiffs’ RA Claim.
[8] Defendants claim that the RA was enacted pursuant to Congress’s spending power rather than the Fourteenth Amendment, primarily because the statute applies only to

those entities that receive federal funds. Defendants also argue that the RA was modeled after Title VI and Title IX, two statutes previously determined to have been passed pursuant to the Spending Clause. Defendants then conclude that Congress does not have the authority to abrogate state immunity from suits brought under the RA.
Given the similarity of the RA to the ADA, see infra, part IV.B., and indications by the Supreme Court, however, this Court concludes that the RA was passed, at least in part, pursuant to the Fourteenth Amendment. In Atascadero, 473 U.S. at 244 n. 4, the Supreme Court accepted the point, conceded by the parties, that the RA was enacted under the Fourteenth Amendment and proceeded to use that assumption as a basis for part of its interpretation of the RA. Because the issue was not in dispute, however, Atascadero did not definitively an the question. Further support for this Court’s interpretation of the source of the RA is found in Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468, 472 n. 2 (1987), in which the Supreme Court noted, in dicta, that “[t]he RA was passed pursuant to § 5 of the Fourteenth Amendment.”
Other courts have also followed the Supreme Court’s lead. For instance, in Department of Education Katherine D., 531 F.Supp. 517, 530 (D.Haw.1982), aff’d in part, rev’d in part on other grounds,727 F.2d 809 (9th Cir.1983), cert. denied,471 U.S. 1117 (1985), the court stated: “The legislative history of ... section 504 leaves no doubt that [it] was enacted pursuant to Congress’ power under the 5th section of the Fourteenth Amendment....” See also, Miener v. Missouri, 673 F.2d 969, 974 n. 4 (8th Cir.1982), cert. denied,459 U.S. 909 (1982) (stating without deciding that Section 504 arguably rests on Congress’ power to secure the guarantees of the Fourteenth Amendment); Brotherhood of Locomotive Engineers v. New Jersey Transit Rail Operations, Inc., 618 F.Supp. 1456, 1457 (S.D.N.Y.1985) (noting that Atascadero concerned a statute [the RA] enacted in furtherance of equal protection, as authorized by the Fourteenth Amendment).
B. Plaintiffs, ADA Claim.
*6 The ADA was enacted to help Congress enforce the Fourteenth Amendment; the act expressly states this purpose. 42 U.S.C. § 12101(b)(4). Defendants argument that the affirmative obligations imposed on the states by the ADA are outside the scope of the Fourteenth Amendment because the Fourteenth Amendment was intended to ensure equal treatment, not equal opportunity,
4

Clark v. State, Not Reported in F.Supp. (1996) 1996 WL 628221
is unpersuasive.
First, the Supreme Court has confirmed that the Fourteenth Amendment’s Equal Protection Clause gives Congress the power to protect people with disabilities from discrimination. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446–47 (1985). Second, both the ADA and RA are, as required by § 5 of the Fourteenth Amendment, “appropriate legislation” to enforce the Equal Protection Clause. See Katzenbach v. Morgan, 384 U.S. 641, 649–50, 651 (1966) (legislation must be (1) plainly adapted to the end of enforcing the Equal Protection Clause, and (2) not prohibited by, but rather consistent with, the “letter and spirit” of the constitution).
The ADA, as well as the RA, are designed to prevent discrimination based on disability by government or other public actors. Both statutes are aimed at preventing discrimination based on disability in programs, services, and activities provided by covered entities. Both statutes, therefore, may be regarded as having been enacted to enforce the protections of the Equal Protection Clause.
Both the ADA and RA are also consistent with the “letter and spirit” of the Constitution. Section 5 of the Fourteenth Amendment authorizes Congress to amplify the Fourteenth Amendment’s substantive protections. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (O’Connor, J., concurring and dissenting) (Congress, power to enforce the Fourteenth Amendment includes “the power to ... adopt prophylactic rules to deal with those situations” that threaten principles of equality.). Consequently, Congress may enact laws designed to ensure equality notwithstanding the possible disparate effect those laws may have on various groups.3
In sum, because the RA and ADA were enacted pursuant to the Fourteenth Amendment, Congress satisfied the second prong of the Seminole test and properly abrogated Eleventh Amendment immunity.45
V. Sufficiency of Allegations Under the RA and ADA.
[9] Plaintiffs claim that defendants violated Section 504 of the RA and Title II of the ADA by denying them access to and the benefits of education, work programs, and other activities solely because of their disabilities. Section 504 of the RA provides, in pertinent part:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of

his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
29 U.S.C. § 794(a). Title II of the ADA provides, in pertinent part:
*7 Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132.
The Court will analyze the sufficiency of plaintiffs’ allegations under the RA and the ADA jointly because “[t]he remedies, procedures, and rights under Title II of the ADA are the same as under the RA.”Bullock v. Gomez, 929 F.Supp. at 1303 n. 3.6
To prove an RA violation, Clark and Woods must demonstrate that: (1) they are handicapped persons; (2) they are otherwise qualified for the benefit they seek; (3) the relevant program receives federal financial assistance; and (4).defendants’ refusal to provide a service or grant access to a program impermissibly discriminates against them on the basis of their physical handicaps. Bonner v. Lewis, 857 F.2d at 562–63.
Defendants apparently do not dispute that Clark and Woods are disabled within the meaning of the PA and the ADA or that California state prisons receive federal financial assistance. “To be ‘qualified’ a handicapped person must meet ‘the essential eligibility requirements for the receipt of [program] services.” ’ Bonner v. Lewis, 857 F.2d at 563 (quoting 28 C.F.R. § 42.540(i)(2)). The Bonner Court concluded that prison inmates were “qualified (sometimes required) to participate in activities such as disciplinary hearings rehabilitation, medical services, and other prison activities.” Id. The Court also finds that plaintiffs, complaint sufficiently alleges both the denial of benefits and access to programs as well as the discriminatory basis for that denial. Consequently, the plaintiffs have satisfied their pleading burden as to their RA and ADA claims.
5

Clark v. State, Not Reported in F.Supp. (1996) 1996 WL 628221
VI. Sufficiency of Allegations Under § 1983.
To state a claim under § 1983, Clark and Woods must show that defendants acted under color of law, and that defendants’ conduct deprived plaintiffs of a constitutional right. West v. Atkins, 487 U.S. 42, (1988). The parties do not dispute that the prison officials acted under color of law. The parties do dispute, however, whether defendants violated plaintiffs, constitutional rights. The Court must decide, therefore, whether the plaintiffs have sufficiently pled the deprivation of a constitutionally protected liberty interest under the Due Process Clause, whether plaintiffs sufficiently pled a violation of their equal protection rights, and whether plaintiffs sufficiently pled that they were subjected to cruel and unusual punishment.
A. Fourteenth Amendment.
1. Liberty Interests Created by the Due Process Clause and the State.
Interests protected by the Due Process Clause may arise from two sources—the Due Process Clause itself or state law. Meachum v. Fano, 427 U.S. 215, 223–27 (1976). Due process claims in the prison context generally pertain to liberty.
*8 [10] Changes in conditions so severe as to affect the sentence imposed in an unexpected manner implicate the Due Process Clause itself, whether or not they are authorized by state law. Sandin v. Conner, 115 S.Ct. 2293, 2300 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital), and Washington v. Harper, 494 U.S. 210, 221–22 (1990) (involuntary administration of psychotropic drugs)). A state may not impose such changes without complying with the minimum requirements of due process. Sandin, 115 S.Ct. at 2300.
[11] As the Sandin standard indicates, liberty interests arising from the Due Process Clause itself are very limited in the prison context. Plaintiffs due process claims are based on the deprivation of good time credits and placement in segregation. Plaintiffs’ claims do not meet the threshold requirement imposed in order to state a successful due process claim because receiving punishment after a disciplinary hearing is part of prison life and does not change the sentence itself in an

unexpected manner.
[12] Deprivations that are less severe or more closely related to the expected terms of confinement, however, may also amount to deprivations of a procedurally protected liberty interest, provided state statutes or regulations narrowly restrict the power of prison officials to impose the deprivation, and the liberty in question is one of “real substance.” Sandin, 115 S.Ct. at 2297–2302. See Gotcher v. Wood, 66 F.3d 1097, 1100–01 (9th Cir.1995) (looking at both language of regulation and substance of deprivation to determine whether prisoner has interest protected by the Due Process Clause after Sandin ). “Real substance” is generally limited to freedom from (1) restraint that imposes “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” or (2) state action that “will inevitably affect the duration of [a] sentence.” Sandin at 2300, 2302.
California’s regulations concerning discipline provide explicit standards that fetter official discretion, and thus meet the “narrowly restrict” prong of the Sandin test. See Walker v. Sumner, 14 F.3d 1415, 1419 (9th 1994) (Nevada’s prison discipline regulations, which are similar to California’s, create a liberty interest.). Under California Code of Regulations title 15, § 3320(1), officials must find that a preponderance of the evidence substantiates a charge before guilt may be found and punishment assessed. Absent such a finding, the inmate may not be placed in isolation or segregation or lose good-time credits. See alsoCal.Code Regs. tit. § 5, § 332 (requiring notice), § 3320(b) (requiring hearing).
Plaintiffs, deprivation must also satisfy the “real substance” prong of the Sandin test. Plaintiffs claim that they suffer an atypical and significant hardship because they are more likely to be deprived of good time credits or placed in segregation after disciplinary proceedings, for which they are not given adequate assistance.
*9 The Ninth Circuit has found that the loss of good-time credits is a deprivation of “real substance” which entitles prisoners to due process. Gotcher v. Wood, 66 F.3d, 1097, 1100–1101 (9th Cir.1995) (liberty interest created when regulation limits circumstances under which credits may be taken away).7
Whether placement in segregation creates a liberty interest, however, is a more complicated question. Prior to Sandin, in Toussaint v. McCarthy, 801 F.2d 1080, 1098 (1986), cert. denied,481 U.S. 1069 (1987), the Ninth Circuit held that California statutes and prison regulations created a liberty interest in freedom from administrative
6

Clark v. State, Not Reported in F.Supp. (1996) 1996 WL 628221
segregation.
That case, however, did not analyze whether segregation was a sanction of “real substance,” an important omission given Sandin, because the determination of whether a liberty interest has been created depends largely on factual issues, such as the conditions and length of confinement, which vary from case to case. See Gotcher, 66 F.3d at 1101 (record insufficient to determining whether placement in segregation was an atypical and significant hardship); Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir.1995) (despite prior case law determining disciplinary regulations created liberty interest, under Sandin, no liberty interest when inmate placed in disciplinary segregation for 14 days).
[13] In this case, plaintiffs have misconstrued the requirements of Sandin, and have consequently failed to state a due process claim. Without alleging a specific instance in which they were placed in segregation for an extreme and disproportionate time or with abhorrent conditions, for example, plaintiffs have failed to plead an atypical and significant hardship as required. Similarly, without alleging a specific instance in which they were deprived of good time credits, plaintiffs have failed to allege state action that would inevitably affect the duration of their sentences. Sandin requires the Court to focus on the result of a process, not on the process itself. The Court reaches the question of what process is due only after it decides that a liberty interest was created.
[14] Furthermore, the mere likelihood or potentiality of losing credits or placement in segregation is not enough to state a claim under Sandin. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (establishing that plaintiff seeking injunctive relief premised upon an alleged past wrong must demonstrate a “real and immediate” threat of repeated future harm to satisfy the injury in fact prong of the standing test).
Plaintiffs’, however, may be able to amend their complaint so as to plead a due process violation sufficiently. Plaintiffs’ § 1983 due process claim is dismissed with leave to amend in order to substantiate the claim.
2. Equal Protection.
[15]“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). A plaintiff alleging denial of equal protection under § 1983 must prove purposeful discrimination by demonstrating that he “receiv[ed] different treatment from that received by others similarly situated,” and that the treatment complained of was under color of state law. Van Pool v. City and County of San Francisco, 752 F.Supp. 915, 927 (N.D.Cal.1990) (citations omitted), aff’d sub nom., O’Shea v. City and County of San Francisco, 966 F.2d 503 (9th Cir.1992).
*10 Courts have held that in order to present an equal protection claim a prisoner must allege that his treatment is invidiously discriminatory in comparison to that received by other inmates. See More v. Farrier, F.2d 269, 271–72 (8th Cir.) (absent evidence of invidious discrimination, federal courts should defer to judgment of prison officials), cert. denied,114 S.Ct. 74 (1993).
[16] In this case, plaintiffs have satisfied their pleading burden as to their equal protection claims. First, plaintiffs allege that defendants, acted under color of state law. Second, plaintiffs allege numerous occasions in which they are treated differently than other prisoners. For instance, they are more likely to be punished than other prisoners because they do not understand prison rules and regulations. Plaintiffs also allege they are denied access to rehabilitation programs while no such restriction applies to non-disabled prisoners. Although plaintiffs will eventually have to prove such claims, their allegations are sufficient to survive a motion to dismiss. Furthermore, whether defendants, treatment of plaintiffs is invidiously discriminatory is a question of fact not appropriately addressed at this time.
B. Sixth Amendment.
[17] Plaintiffs apparently argue that their Sixth Amendment rights are violated because they are not given assistance to understand disciplinary hearings. Because prisoners do not generally enjoy a Sixth Amendment right to counsel in connection with disciplinary proceedings, however, plaintiffs, argument is subsumed by their due process claims. As described above, it is only after a court decides that a liberty interest has been created that a court will ask what process is due. The Sixth Amendment alone simply does not apply to post-conviction disciplinary proceedings.
7

Clark v. State, Not Reported in F.Supp. (1996)
1996 WL 628221
C. Eighth Amendment.
[18] [19] A prisoner may state a 9 1983 claim under theEighth Amendment against prison officials where the officials acted with “deliberate indifference” to the threat of serious harm or injury to an inmate by another prisoner. See Farmer v. Brennan, 114 S.Ct. 1970, (1994); Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). To prove deliberate indifference, a prisoner must show that a prison official knew that the prisoner faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it. Farmer, 114 S.Ct. at 1979, 1981. Neither negligence gross negligence, nor reckless disregard on the part of prison officials is sufficient to state a claim under § 1983. Id. at 1978 & n. 4; see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (establishing that deliberate indifference requires more than negligence).
[20] Plaintiffs allege that prison officials knew that Clark and Woods, as disabled prisoners, were substantially more susceptible to physical and mental abuse, and took no reasonable steps to protect them, even depriving them of programs and activities that would have helped Clark and Woods avoid the alleged injuries. Plaintiffs’ complaint sufficiently alleges a violation of the Eighth Amendment to state a § 1983 claim.

CONCLUSION
*11 For the foregoing reasons, defendants, motion to dismiss plaintiffs, RA and ADA claims is DENIED. Defendants, motion to dismiss plaintiffs’ § 1983 claim is DENIED as to plaintiffs, equal protection and Eighth Amendment claims. Defendants’ motion to dismiss plaintiffs’ § 1983 due process claim is GRANTED, but plaintiffs are granted leave to amend their complaint within 30 days as to their due process claim.
SO ORDERED.

1

The named individual defendants are Pete Wilson,

Governor; Joseph Sandoval, Secretary of Youth and

Corrections; James Gomez, Director of the Department

of Corrections; Kyle S. McKinsey, Deputy Director for

Health Care Services; Nadim Khoury, M.D., Assistant

Deputy Director for Medical Service; and John S. Zil,

M.D., Chief, Psychiatric Services (although parties

have informally agreed that defendant Zil does not

serve in the official capacity as alleged in the

complaint, and the parties intend to substitute the

proper state official for Dr. Zil at a later date).

2

This Court will not address any potential sovereign

immunity defense to plaintiffs’ § 1983 claim, which

defendants failed to raise in their brief.

3

It is also true, as defendants contend, that the ADA was

partly enacted pursuant to the Commerce Clause.

Congress, however, may enact legislation pursuant to

more than one of its constitutional powers. See EEOC

v. County of Columet, 686 F.2d 1249, 1253 (7th

Cir.1982). Furthermore, the Fourteenth Amendment,

rather than the Commerce Clause, is the traditional

constitutional authority for legislation proscribing state

conduct. See id.

4

Because this Court has already decided that defendants

are not immune to suit, this Court need not consider Ex

parte Young, 209 U.S. 123 (1908), and progeny.

5

The reasoning and conclusion above are consistent with

this courts, opinion in Armstrong v. Wilson, No. 2307

(Wilken, J.) (N.D. Cal. filed Sept. 20, 1996), a case

which involved similar facts to the case now before this

Court. That case held that the RA and ADA are

applicable to state prisons and that the Eleventh

Amendment did not immunize the state entity

defendants from suit under the RA and ADA.

6

Any differences in the standards are not critical at this

stage of the proceedings.

7

Because this Court has already decided the issue of

standing in favor of plaintiffs, the Court will not

address defendants’ argument that plaintiffs’ failure to

specify such an instance means they do not have

standing to challenge disciplinary actions.

The Court also disagrees with defendants’ argument

that plaintiffs’ Fourteenth Amendment claims which

implicate the loss of good time credits must be

brought as habeas actions after exhausting state

administrative remedies. This principle generally

applies when prisoners are seeking to reinstate good

time credits that have already been taken away, a

remedy plaintiffs have not asked this Court to

consider. See United States v. Checchini 967 F.2d

348, 350 (9th Cir.1992).

Heck v. Humphrey, 114 S.Ct. 2364 (1994), cited by

defendants, did bar a claim of unconstitutional

8

Clark v. State, Not Reported in F.Supp. (1996) 1996 WL 628221
deprivation of time credits because such a claim necessarily called into question the lawfulness of the duration of the plaintiff’s sentence. Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir.1996). A § 1983 claim “for using the wrong procedure .... not for reaching the wrong result (i.e., the denial of good-time credits),” however, is cognizable. Gotcher v. Wood, 66 F.3d at 1099 (citing Heck, 114 S.Ct. at 1270). In this case, because plaintiffs’ due process claim is directed toward the procedure, not the result, plaintiffs’ claim is cognizable.
.
9

 
 1 EDMUND G. BROWN JR. Attorney General of California
2 JONATHAN L. WOLFF Senior Assistant Attorney General
3 DANIELLE F. O’BANNON Deputy Attorney General
4 JOSE A. ZELIDON-ZEPEDA Deputy Attorney General
5 State Bar No. 227108 455 Golden Gate Avenue, Suite 11000
6 San Francisco, CA 94102-7004 Telephone: (415) 703-5781
7 Fax: (415) 703-5843 E-mail: Jose.ZelidonZepeda@doj.ca.gov
8 Attorneys for Defendants State of California, et al.

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12

13

14 DERRICK CLARK, et al.,

C 96-1486 CRB

15

16

v.

Plaintiffs, STIPULATION REGARDING ATTORNEY’S FEES; [PROPOSED] ORDER

17

STATE OF CALIFORNIA, et al.,

Judge

The Honorable Charles R.

18

Breyer

Defendants. Action Filed: April 22, 1996

19

20 1. On September 16, 2010, this Court issued its Findings of Facts and Conclusions of
21
22 Law denying Defendants’ Motion to Terminate the Settlement Agreement. (Doc. 500.)

23

2. The parties have been engaged in negotiations on Plaintiffs’ request for attorneys’ fees

24 and costs for the time period from July 1, 2009 through September 29, 2010 for Jones Day, and

25 July 1, 2009 through September 17, 2010 for the Prison Law Office. Plaintiffs have provided
26 Defendants time runs and itemized costs, and Defendants have responded with objections. The
27 parties have reached agreement to compromise Plaintiffs’ requests for any and all attorneys’ fees
28
1
Stip. Re: Att. Fees; [Prop.] Order (C 96-1486 CRB)

1 and costs for these time periods (including, but not limited to, work connected to the hearing on

2 the motion to terminate) in the amount of $2,300,000. No other fees or costs will be paid arising
3 out of these time periods for these or any other counsel or entities, and Plaintiffs waive their right
4 to any such fees or costs.
5 3. This agreement does not constitute a waiver by the parties of their respective legal
6
7 arguments regarding the propriety of the fees and costs at issue.

8

Therefore, the parties, through their respective counsel, stipulate as follows:

9

Within 30 days of the date that the Court approves this Stipulation and Order, Defendants

10 shall pay Plaintiffs’ counsel $2,300,000 for any and all attorneys’ fees and costs incurred by any
11 and all attorneys, law firms, and non-profit organizations in this case during the relevant time
12 periods. Defendants will write one check to the Prison Law Office, and the Prison Law Office
13
14 will coordinate with any other attorney, law firm, or non-profit organization that is owed fees and

15 costs.

16

IT IS SO STIPULATED.

17 Dated: December 29, 2010 18 19

__/s/______________________ Donald Specter, Esq. Prison Law Office Attorney for Plaintiffs

20 Dated: December 29, 2010 21 22

__/s/______________________ Jose A. Zelidon-Zepeda California Attorney General’s Office Attorneys for Defendants

23

24

UNITED S ALIFORNIA

OURT NORTH

25

PURSUANT TO THE PARTIES’ STIPULATION, IT IS SO ORDERED.

26 Dated: _J_a_n_u_a_r_y_3_,_2_0_1_1_
27
28

___________________TA_T_E_S_D_I_ST_R_ICT C Honorable Charles R. Breyer United States District IJTuIdSgSeO ORDERED

2

Judge Charles R. Breyer

Stip. Re: Att. Fees; [Prop.] Order (C 96-1486 CRB)
ERN DISTRICT OF C

 
 Case3:96-cv-01486-CRB Document513 Filed07/19/11 Page1 of 3

1 KAMALA D. HARRIS Attorney General of California
2 JONATHAN L. WOLFF Senior Assistant Attorney General
3 DANIELLE F. O’BANNON Deputy Attorney General
4 JOSE A. ZELIDON-ZEPEDA Deputy Attorney General
5 State Bar No. 227108 455 Golden Gate Avenue, Suite 11000
6 San Francisco, CA 94102-7004 Telephone: (415) 703-5781
7 Fax: (415) 703-5843 E-mail: Jose.ZelidonZepeda@doj.ca.gov
8 Attorneys for Defendants State of California, et al.

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12

13

14 DERRICK CLARK, et al.,

C 96-1486 CRB

15

Plaintiffs, STIPULATION REGARDING

PLAINTIFFS’ COUNSEL’S

16

v.

PARTICIPATION IN DEFENDANTS’

STRIKE TEAMS; [PROPOSED] ORDER

17

STATE OF CALIFORNIA, et al.,

18

Judge

The Honorable Charles R.

Defendants.

Breyer

19

Action Filed: April 22, 1996

20

21

The parties stipulate that:

22

1. On September 16, 2010, this Court issued its Findings of Facts and Conclusions of Law

23 denying Defendants’ Motion to Terminate the Settlement Agreement. (Doc. 500.)

24

2. Since that date, the parties have conferred about steps to address the issues identified by

25 the Court in its Findings of Fact and Conclusions of Law.

26

3. Defendants have developed “strike teams” composed of CDCR staff and administrators

27 to travel to the various institutions housing inmates in the Developmental Disability Program to

28 improve compliance with the Clark Remedial Plan and this Court’s orders.
1
Stip. Re: Strike Teams (C 96-1486 CRB)

Case3:96-cv-01486-CRB Document513 Filed07/19/11 Page2 of 3

1

4. Plaintiffs’ counsel will be participating as part of the “strike team” concept at these

2 institutions.

3

5. The parties agree that they will not use any information learned or evidence gathered

4 during these “strike team” visits for any litigation purpose. The parties further agree that such

5 information or evidence shall be deemed inadmissible under Federal Rule of Evidence 408.

6

6. This stipulation does not bind Defendants to implement or maintain the “strike teams,”

7 or their current composition.

8

9 Dated: 7/19/2011
10
11
12

/s/ Sara Norman Sara Norman, Esq. Prison Law Office Counsel for Plaintiffs

13

14 Dated: 7/19/2011 15 16

/s/ Jose A. Zelidon-Zepeda Jose A. Zelidon-Zepeda California Attorney General’s Office Counsel for Defendants

17 Per the parties’ stipulation, IT IS SO ORDERED.
18
19 Dated: _J_u_ly__2_2_, _2_0_11 20
21
22 CF1997CS0006
20446361.doc
23
24
25
26

UNITED S ALIFORNIA

OURT NORTH

H__o_nT_oA_rT_ab_El_Se_C_D_hI_aS_rlT_e_sR_R_IC._B_T_re_Cy_e_r______
United States District Judge
IT IS SO ORDERED
Judge Charles R. Breyer
ERN DISTRICT OF C

27

28
2
Stip. Re: Strike Teams (C 96-1486 CRB)

 
 Case3:96-cv-01486-CRB Document517 Filed07/18/14 Page1 of 2

1 KAMALA D. HARRIS Attorney General of California
2 JAY C. RUSSELL Supervising Deputy Attorney General
3 DANIELLE F. O’BANNON Supervising Deputy Attorney General
4 State Bar No. 207095 455 Golden Gate Avenue, Suite 11000
5 San Francisco, CA 94102-7004 Telephone: (415) 703-5781
6 Fax: (415) 703-5843 E-mail: Danielle.OBannon@doj.ca.gov
7 Attorneys for Defendants State of California, et al.

8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISCO DIVISION
11

12

13 DERRICK CLARK, et al.,

C 96-1486 CRB

14

Plaintiffs, STIPULATION REGARDING JOINT

INTERVIEWS CONDUCTED BY THE

15

v.

PARTIES AS PART OF THE JOINT

MONITORING AND/OR AUDITING

16

PROCESS; ORDER

STATE OF CALIFORNIA, et al.,

17

Defendants. Judge

The Honorable Charles R.

18

Breyer

Action Filed: April 22, 1996

19

20 The parties stipulate that:
21 1. On September 16, 2010, this Court issued its Findings of Fact and Conclusions of Law
22 denying Defendants’ Motion to Terminate the Settlement Agreement. (Doc. 500.)
23 2. Since that date, the parties have agreed to conduct joint monitoring of the CDCR’s
24 adherence with the Developmental Disability Program. Additionally, the parties are working
25 together to finalize an auditing tool to further improve the auditing process. An important
26 element of joint monitoring and/or auditing is joint interviews of class members. The perspective
27

28
1 Stip. Re: Joint Interviews (C 96-1486 CRB)

Case3:96-cv-01486-CRB Document517 Filed07/18/14 Page2 of 2

1 of class members is one of several methods that allow the parties to evaluate CDCR’s adherence
2 with the Developmental Disability Program.
3 3. To effectively monitor and/or audit CDCR’s adherence with the Developmental
4 Disability Program, the parties must gather sufficient information to provide operational oversight
5 and management of the program. This process includes class member interviews, as well as
6 gathering information through review of written materials and staff interviews.
7 4. The parties agree that any comments or statements made by a class member in an
8 interview conducted for the purpose of joint monitoring and/or audits shall not be admissible as
9 evidence by either party, unless agreed to by both parties. The parties further agree that the final
10 joint monitoring reports that rely in part on the findings derived from the statements of class
11 members in the interviews are admissible as evidence.
12 5. Nothing in this agreement prohibits CDCR staff from interacting with inmates in the
13 Developmental Disability Program, documenting that interaction, and/or using information
14 exchanged in the normal course and scope of work to ensure adherence with the Developmental
15 Disability Program.
16

17 Dated: 18 19

//s// Sara Norman Sara Norman, Esq. Prison Law Office Counsel for Plaintiffs

20

21 Dated:
22

23

24

Per the parties’ stipulation, IT IS SO ORDERED.

25 Dated: July 16, 2014
26

27

28
2

UNITED S ALIFORNIA

OURT NORTH

//s// Danielle F. O’Bannon Danielle F. O’Bannon California Attorney General’s Office Counsel for Defendants
TATES DISTRICT C
_____IT__IS_S_O__O_R_D_E_R_E_D____________ Honorable Charles R. Breyer UnitedJSudtgaetCehsarDlesiRst. rBirceyterJudge
ERN DISTRICT OF C Stip. Re: Joint Interviews (C 96-1486 CRB)

 
 1 KAMALA D. HARRIS Attorney General of California
2 JAY C. RUSSELL Supervising Deputy Attorney General
3 DANIELLE F. O’BANNON Supervising Deputy Attorney General
4 SHARON A. GARSKE Deputy Attorney General
5 State Bar No. 215167 1515 Clay Street, 20th Floor
6 Oakland, CA 94612 Telephone: (510) 622-4464
7 Fax: (510) 622-2270 E-mail: Sharon.Garske@doj.ca.gov
8 Attorneys for Defendants

PRISON LAW OFFICE DONALD SPECTER – 83925 SARA NORMAN – 189536 RANA ANABTAWI – 267073 ALISON HARDY - 135966 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 DERRICK CLARK, et al.,
14
15 v.
16

C 96-1486 CRB
Plaintiffs, STIPULATION AND [PROPOSED] ORDER RE: REVISIONS TO REMEDIAL PLAN

17 STATE OF CALIFORNIA, et al.,

18

Defendants.

19

20

The parties propose to enter into the following stipulation to revise the Remedial Plan as

21 amended on March 1, 2002:

22

RELEVANT BACKGROUND

23

Under the Settlement Agreement entered into by the parties in this case, the parties

24 adopted a Remedial Plan which governs, in general, the identification of inmates with

25 developmental disabilities, and the services Defendants are to provide to inmates in the

26 Developmental Disability Program (DDP).

27

Presently, under the Remedial Plan, if an inmate in the DDP is found guilty of a rules

28 violation, the Chief Disciplinary Officer must review the completed Rules Violation Report in
1 Stipulation and [Proposed] Order re: Revisions to Remedial Plan (C 96-1486 CRB)

1 accordance with California Code of Regulations, Title 15, Section 3312. Then the Chief

2 Disciplinary Officer must consult with the DDP clinician regarding the findings and disposition

3 of the hearing before taking action. Remedial Plan, Amended March 1, 2002 at 50. The clinician

4 must provide input as to the effectiveness of the disposition in correcting the inmate’s behavior.

5 Id. Both the Chief Disciplinary Officer and the clinician must sign the completed Rules Violation

6 Report. Id. By signing this form, the DDP clinician does not endorse the rules violation

7 disposition, but only acknowledges the consultation. Id. The need for the Chief Disciplinary

8 Officer to consult with clinicians concerning the rules violation disposition for inmates in the

9 DDP must be incorporated into applicable lesson plans, post orders, and operational procedures at

10 designated institutions. Id.

11 I. 12 13

ELIMINATION OF POST- RULES VIOLATION CONSULTATION BETWEEN THE CHIEF DISCIPLINARY OFFICER AND DDP CLINICIAN AND ADOPTION OF COLEMAN RULESVIOLATION EVALUATION PROCESS.
Presently, the Chief Disciplinary Officer and DDP clinician consult after the findings and

14 disposition of a rules-violation hearing have been issued, but before disciplinary action is taken.

15 The parties have determined that the better course of action is to follow the newly instituted rules-

16 violation process developed in Coleman v. Brown (2:90-cv-00520 KJM DAD PC), attached to

17 this stipulation.

18

Under the revised process, inmates in the DDP who are alleged to have committed a rules

19 violation shall receive a mental health assessment, noted on a CDCR Form 115-MH-A, Rules

20 Violation Report: MH Assessment Request. This mental health assessment incorporates clinical

21 input into the disciplinary process when cognitive or adaptive functioning deficits may have

22 contributed to behavior resulting in a rules violation. Mental health assessments shall be

23 considered by the hearing officer or other official during the disciplinary proceedings when

24 determining whether and how to discipline an inmate. The new process also provides

25 mechanisms to mitigate discipline, allows for alternative forms of documenting inmate behavior,

26 and excludes certain behaviors from Rules Violation Reports.

27

The parties agree to amend the Remedial Plan to eliminate the post rules-violation

28 consultation between the Chief Disciplinary Officer and DDP clinician, and to use the attached
2 Stipulation and [Proposed] Order re: Revisions to Remedial Plan (C 96-1486 CRB)

1 rules-violation review process, effective on the date of the Order approving the parties’

2 stipulation.

3

The parties have also agreed to revise the Rules Violation Report policies, procedures, and

4 staff training to reflect the above revision to the Remedial Plan. CDCR will implement the

5 following:

6

a. Revised Title 15, Sections 3310(d), 3315(h), 3317, 3317.1, 3317.2 (Attachment 1; in

7

draft form);

8

b. Revised Departmental Operating Manual Section 52080.5.8 (Attachment 2; in draft

9

form); and,

10

c. Revised Mental Health Assessment Form (115-MH-A) (Attachment 3).

11

STIPULATION

12

Defendants and Plaintiffs stipulate to the above.

13 Date: December 16, 2015
14
15
16

/s/Danielle F. O’Bannon DANIELLE F. O’BANNON Supervising Deputy Attorney General Office of the California Attorney General Attorneys for Defendants

17 Date: December 16, 2015
18
19
20 It is so ordered.
21 Dated: _D_e_c_em_b_e_r__2_1_s_t, 2015
22
23 CF1997CS0006 24 90597907.doc

/s/Sara Norman SARA NORMAN Prison Law Office Attorneys for Plaintiffs
__________________________________ United States District Court

25

26

27

28
3 Stipulation and [Proposed] Order re: Revisions to Remedial Plan (C 96-1486 CRB)

1

As required by Local Rule 5-1, I, Sharon A. Garske, attest that I obtained concurrence in

2 the filing of this document from Sara Norman and that I have maintained records to support this

3 concurrence.

4

5 DATED: December 16, 2015 6 7 8 9 10

KAMALA D. HARRIS Attorney General of California DANIELLE F. O’BANNON Supervising Deputy Attorney General
/s/ Sharon A. Garske SHARON A. GARSKE Deputy Attorney General Attorneys for Defendants

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4 Stipulation and [Proposed] Order re: Revisions to Remedial Plan (C 96-1486 CRB)

CERTIFICATE OF SERVICE

Case Name: Clark v. State

No. C 96-1486 CRB

I hereby certify that on December 16, 2015, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:
STIPULATION AND [PROPOSED] ORDER RE: REVISIONS TO REMEDIAL PLAN; ATTACHMENTS 1-3
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on December 16, 2015, at San Francisco, California.

D. Criswell Declarant
CF1997CS0006 20799459.doc

s/ D. Criswell Signature

 
 Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 1 of 41
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:96−cv−01486−CRB

CLOSED,SM

Clark, et al v. State of California, et al Assigned to: Hon. Charles R. Breyer Referred to: Magistrate Judge Nandor J. Vadas Demand: $0 Cause: 28:1331 Federal Question: Other Civil Rights
Special Master
Nandor Vadas

Date Filed: 04/22/1996 Date Terminated: 09/16/2010 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Derrick Clark individually and on behalf of all others similarly situated

represented by Shawn Hanson Akin Gump Strauss Hauer & Feld LLP 580 California Street Suite 1500 San Francisco, CA 94104−1036 415 765 9500 Fax: 415 765 9501 Email: shanson@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Nason Mitchell Jones Day 555 California Street 26th Floor San Francisco, CA 94104 415 875 5712 Fax: 415 875 5700 Email: cnmitchell@jonesday.com ATTORNEY TO BE NOTICED

Donald H. Specter Prison Law Office 1917 Fifth Street Berkeley, CA 94710−1916 510−280−2621 Fax: 510−280−2704 Email: dspecter@prisonlaw.com ATTORNEY TO BE NOTICED

Douglas Edward Roberts 555 California St., 26th Fl. San Francisco, CA 94104 415−626−3939 Fax: 415−875−5700 Email: douglasroberts@jonesday.com ATTORNEY TO BE NOTICED

Heather Jane MacKay Prison Law Office 1917 Fifth Street Berkeley, CA 94710−1916 510−280−2621 Fax: 510−280−2704 ATTORNEY TO BE NOTICED

Mark Andrew Chavez Chavez & Gertler LLP

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 2 of 41

42 Miller Avenue Mill Valley, CA 93941 415−381−5599 Fax: 415−381−5572 Email: mark@chavezgertler.com ATTORNEY TO BE NOTICED

Penny Marie Godbold Rosen Bien Galvan & Grunfeld 101 Mission Street, Sixth Floor San Francisco, CA 94105 415.433.6830 Email: pgodbold@rbgg.com ATTORNEY TO BE NOTICED

Sara Linda Norman Prison Law Office 1917 Fifth St. Berkeley, CA 94710−1916 510−280−2621 Fax: 510−280−2704 Email: snorman@prisonlaw.com ATTORNEY TO BE NOTICED

Zoe Schonfeld Prison Law Office 1917 Fifth Street Berkeley, CA 94710 510−280−2621 Email: zoe@prisonlaw.com ATTORNEY TO BE NOTICED

Plaintiff
Ambrose Woods individually and on behalf of all others similarly situated

represented by Shawn Hanson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Nason Mitchell (See above for address) ATTORNEY TO BE NOTICED

Donald H. Specter (See above for address) ATTORNEY TO BE NOTICED

Heather Jane MacKay (See above for address) ATTORNEY TO BE NOTICED

Mark Andrew Chavez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Larry Dixon, Jr.

represented by Caroline Nason Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Specter (See above for address) ATTORNEY TO BE NOTICED

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 3 of 41

Heather Jane MacKay (See above for address) ATTORNEY TO BE NOTICED

Mark Andrew Chavez (See above for address) ATTORNEY TO BE NOTICED

Shawn Hanson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Milton Silva

represented by Caroline Nason Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Specter (See above for address) ATTORNEY TO BE NOTICED

Heather Jane MacKay (See above for address) ATTORNEY TO BE NOTICED

Mark Andrew Chavez (See above for address) ATTORNEY TO BE NOTICED

Shawn Hanson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jack Von Gunten

represented by Caroline Nason Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Specter (See above for address) ATTORNEY TO BE NOTICED

Heather Jane MacKay (See above for address) ATTORNEY TO BE NOTICED

Mark Andrew Chavez (See above for address) ATTORNEY TO BE NOTICED

Shawn Hanson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mark Mitchell Morino

represented by Caroline Nason Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Specter

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 4 of 41
(See above for address) ATTORNEY TO BE NOTICED
Heather Jane MacKay (See above for address) ATTORNEY TO BE NOTICED
Mark Andrew Chavez (See above for address) ATTORNEY TO BE NOTICED
Shawn Hanson (See above for address) ATTORNEY TO BE NOTICED

V. Defendant The State of California

represented by Jose A Zelidon−Zepeda California State Attorney General's Office Department of Justice 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−510−3879 Fax: 415−703−5843 Email: Jose.ZelidonZepeda@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julianne Mossler California State Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5746 Fax: 415−703−5843 Email: Julianne.Mossler@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Newell Jenkins CA State Attorney General's Office Natural Resources Section 455 Golden Gate Ave Suite 11000 San Francisco, CA 94102 415−703−5527 Fax: 415−703−5480 Email: william.jenkins@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Felice O'Bannon Attorney General's Office CLS 455 golden Gate Ave., suite 11000 San Francisco, CA 94102 (415) 703−5735 Fax: (415) 703−5843 Email: Danielle.OBannon@doj.ca.gov TERMINATED: 05/14/2018 ATTORNEY TO BE NOTICED
Erick Joseph Rhoan Office of the Attorney General

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 5 of 41

1300 I Street Sacramento, CA 95814 916−323−3350 Email: Erick.Rhoan@doj.ca.gov ATTORNEY TO BE NOTICED

Michael James Quinn California State Attorney General's Office Correctional Law Section 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5726 Fax: 415−703−5843 Email: Michael.Quinn@doj.ca.gov ATTORNEY TO BE NOTICED

Defendant California Department of Corrections

represented by Sharon Anne Garske Office of the Attorney General Correctional Law 1515 Clay Street, 20th Floor Suite 2000 Oakland, CA 94612−0550 510−879−0263 Fax: 510−622−2270 Email: sharon.garske@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Newell Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED

Defendant Governor Pete Wilson

represented by William Newell Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erick Joseph Rhoan (See above for address) ATTORNEY TO BE NOTICED

Defendant Sec. of Youth & Corr Joseph Sandoval

represented by William Newell Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erick Joseph Rhoan (See above for address) ATTORNEY TO BE NOTICED

Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 6 of 41

Defendant Dir Dept of Corr James Gomez
Defendant Kyle S. McKinsey
Defendant MD Nadim Khoury
Defendant Chief, Psychiatric John S. Zil

represented by William Newell Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erick Joseph Rhoan (See above for address) ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED
represented by William Newell Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erick Joseph Rhoan (See above for address) ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED
represented by William Newell Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erick Joseph Rhoan (See above for address) ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED
represented by Erick Joseph Rhoan (See above for address) ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/22/1996
04/22/1996

# Docket Text
1 COMPLAINT Summons(es) issued; Fee status pd entered on 4/22/96 in the amount of $ 120.00 ( Receipt No. 121127) [3:96−cv−01486] (ls, COURT STAFF) (Entered: 04/23/1996)
2 ORDER RE COURT PROCEDURE and SCHEDULE (ADR Pilot) by Judge Fern M. Smith : Proof of service to be filed by 6/6/96 ; counsels' case management statement to be filed by 8/20/96 ; initial case management conference will be held 8:30 8/30/96 . (cc: all counsel) [3:96−cv−01486] (ls, COURT STAFF) (Entered: 04/23/1996)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 7 of 41

05/08/1996 05/08/1996 05/08/1996 05/30/1996 05/30/1996 06/05/1996 06/11/1996 07/03/1996 07/12/1996
07/23/1996
08/02/1996 08/02/1996 08/02/1996 08/02/1996 08/06/1996 08/23/1996

3 NOTICE by Plaintiff of related case(s) C80−0012 MHP, C90−3094 TEH; C94−2307 CW. [3:96−cv−01486] (ls, COURT STAFF) (Entered: 05/09/1996)
4 RETURN OF SERVICE unexecuted − attempted as to defendant State of California, defendant CA Dept of Corr, defendant Pete Wilson, defendant Joseph Sandoval, defendant James Gomez, defendant Kyle S. McKinsey, defendant Nadim Khoury, defendant John S. Zil [3:96−cv−01486] (ls, COURT STAFF) (Entered: 05/09/1996)
SUMMONS issued as to State of California, CA Dept of Corr, Pete Wilson, Joseph Sandoval, James Gomez, Kyle S. McKinsey, Nadim Khoury, John S. Zil [3:96−cv−01486] (ls, COURT STAFF) (Entered: 05/09/1996)
9 ORDER by Judge Marilyn H. Patel DENYING related case notice as to actions 3:80−cv−12 MHP and 3:96−cv−1486 FMS. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/24/1996)
10 ORDER by Judge Claudia Wilken DENYING related case notice as to actions 4:94−cv−2307 CW and 3:96−cv−1486 FMS. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/24/1996)
RECEIVED Stipulation and Proposed Order ( plaintiffs Derrick Clark, Ambrose Woods ) to extend date for filing proofs of service or waivers [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/06/1996)
5 STIPULATION and ORDER by Judge Fern M. Smith : extending date to file proofs of service or waivers of proofs of service to 7/8/96 (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/11/1996)
6 WAIVER OF SERVICE by defendants served on 7/3/96 in response to the Request for Waiver sent on 5/29/96 [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/03/1996)
7 NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Judge Fern M. Smith by defendants Pete Wilson, Joseph Sandoval, James Gomez, Kyle S. McKinsey, Nadim Khoury to dismiss with Notice set for 8/16/96 at 10:00 am [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/12/1996)
8 STIPULATION and ORDER by Judge Fern M. Smith: setting hearing on defendants' motion to dismiss [7−1] 10:00 9/20/96; plaintiff's opposition must be filed and served no later than 28 days before the hearing date; defendants' reply due 14 days before the hearing date; Continuing Case Management Conference to 8:30 9/20/96; (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/24/1996)
11 EX−PARTE APPLICATION before Judge Fern M. Smith by Plaintiffs Derrick Clark, Ambrose Woods for leave to file opposition to motion to dismiss in excess of twenty−five pages [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/05/1996)
11 MEMORANDUM by Plaintiffs Derrick Clark, Ambrose Woods in support of ex parte application for leave to file opposition to motion to dismiss in excess of twenty−five pages [11−1] [3:96−cv−01486] (lcc, COURT STAFF) Modified on 08/05/1996 (Entered: 08/05/1996)
12 DECLARATION by Caroline N. Mitchell on behalf of Plaintiffs Derrick Clark, Ambrose Woods in support re ex parte application for leave to file opposition to motion to dismiss in excess of twenty−five pages [11−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/05/1996)
RECEIVED Proposed Order (Plaintiffs Derrick Clark, Ambrose Woods) re: ex parte application for leave to file opposition to motion to dismiss in excess of twenty−five pages [11−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/05/1996)
13 ORDER by Judge Fern M. Smith GRANTING plaintiffs' ex parte application for leave to file opposition to motion to dismiss in excess of twenty−five pages [11−1], not to exceed thirty pages of text. (Date Entered: 8/7/96) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/07/1996)
14 OPPOSITION by Plaintiffs Derrick Clark, Ambrose Woods to motion to dismiss [7−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/27/1996)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 8 of 41

08/23/1996 08/23/1996 08/27/1996 08/27/1996 09/06/1996 09/10/1996 09/12/1996 09/17/1996 09/20/1996 09/20/1996 09/20/1996 09/24/1996 09/26/1996
10/01/1996
10/02/1996
10/04/1996 10/04/1996
10/07/1996 10/07/1996

RECEIVED Stipulation re disclosure of documents to co−counsel [3:96−cv−01486] (mcl, COURT STAFF) (Entered: 08/27/1996)
RECEIVED Stipulated Protective Order [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/27/1996)
15 STIPULATION re Disclosure of Documents to Co−Counsel. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/27/1996)
16 STIPULATION and ORDER by Judge Fern M. Smith: for protective order (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/27/1996)
17 REPLY BRIEF by defendants Pete Wilson, James Gomez, Joseph Sandoval, Nadim Khoury, Kyle S. McKinsey in support re motion to dismiss [7−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/06/1996)
18 JOINT CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/11/1996)
19 ORDER by Chief Judge Thelton E. Henderson advising that case 3:90−cv−3094 TEH is not related to 3:96−cv−1486 FMS. (Date Entered: 9/12/96) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/12/1996)
20 STATEMENT OF RECENT DECISION submitted by Plaintiffs [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/17/1996)
21 STATEMENT OF RECENT DECISION submitted by Plaintiffs [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/20/1996)
22 MINUTES: (C/R none) Defendants' motion to dismiss [7−1] − matter taken off calendar. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/23/1996)
23 ORDER by Judge Fern M. Smith CONTINUING hearing on defendants' motion to dismiss [7−1] 10:00 9/27/96 (Date Entered: 9/23/96) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/23/1996)
24 STATEMENT OF RECENT DECISION submitted by Plaintiffs [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/24/1996)
25 STIPULATION and ORDER by Judge Fern M. Smith: CONTINUING hearing on defendants' motion to dismiss [7−1] 10:00 10/4/96; Case Management Conference continued to 8:30 10/4/96 (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 09/26/1996)
26 ORDER by Judge Fern M. Smith DENYING in part defendants' motion to dismiss [7−1] plaintiffs' RA and ADA claims, and equal protection and Eight Amendment claims; GRANTING in part defendants' motion to dismiss plaintiffs' due process claim. Plaintiffs' are GRANTED leave to amend their complaint within thirty (30) days as to their due process claim (Date Entered: 10/2/96) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/02/1996)
27 ORDER by Judge Fern M. Smith VACATING hearing on defendants' motion to dismiss currently scheduled for 10/4/96 at 10:00 am; Case Management Conference set for 8:30 10/4/96 (Date Entered: 10/2/96) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/02/1996)
RECEIVED Proposed Order (defendants) of Certification of Interlocutory Appeal [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/04/1996)
30 MINUTES: (C/R none) INITIAL CASE MANAGEMENT CONFERENCE HELD. Parties to go forward with class certify motion. Discovery to be limited to issues in class certify motion. Parties to work out guidelines for taking depos of potential class members. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/15/1996)
28 NOTICE OF APPEAL by defendants from Dist. Court decision order [26−2] Fee status paid [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/08/1996)
Copy of notice of appeal and docket sheet to all counsel [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/08/1996)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 9 of 41

10/07/1996 10/07/1996 10/08/1996 10/24/1996 10/28/1996 10/31/1996 11/18/1996 11/18/1996 11/20/1996 01/10/1997
01/10/1997 01/10/1997 01/10/1997 01/10/1997 01/10/1997 01/29/1997 01/31/1997 01/31/1997 02/07/1997 02/07/1997

Docket fee notification form and case information sheet to USCA [28−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/08/1996)
CERTIFICATE of Record mailed to USCA, counsel notified. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/08/1996)
29 ORDER by Judge Fern M. Smith certification of interlocutory appeal (Date Entered: 10/9/96) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/09/1996)
31 COPY of USCA Order: 96−80385 that the petition for permission to appeal under U.S.C. 1292(b) is DENIED. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/28/1996)
NOTIFICATION by US Circuit Court of Appellate Docket Number 96−16952 [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/28/1996)
32 FIRST AMENDED COMPLAINT [1−1] by Plaintiffs; adding Larry Dixon Jr., Milton Silva, Jack Von Gunten, Mark Mitchell Morino [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 11/01/1996)
33 ANSWER by defendant to first amended complaint [32−1]; jury demand [3:96−cv−01486] (ml, COURT STAFF) (Entered: 11/18/1996)
RECEIVED Proposed Stipulated Extension Order ( Plaintiff) [3:96−cv−01486] (ml, COURT STAFF) (Entered: 11/18/1996)
34 STIPULATION and ORDER by Judge Fern M. Smith : extending time to file class certification motion (cc: all counsel) [3:96−cv−01486] (ml, COURT STAFF) (Entered: 11/20/1996)
35 NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Judge Fern M. Smith by Plaintiffs to certify class action with Notice set for 2/21/97 at 10:00 am [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/10/1997)
36 DECLARATION by Mark A. Chavez on behalf of Plaintiffs in support re motion to certify class action [35−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/10/1997)
37 DECLARATION by Shawn Hanson on behalf of Plaintiffs in support re motion to certify class action [35−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/10/1997)
38 DECLARATION by Donald Specter on behalf of Plaintiffs in support re motion to certify class action [35−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/10/1997)
39 DECLARATION by Adam E. Sak on behalf of Plaintiffs in support re motion to certify class action [35−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/13/1997)
RECEIVED Proposed Order (Plaintiffs) re: motion to certify class action [35−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/13/1997)
40 ORDER by Judge Fern M. Smith Case Management Conference set for 8:30 2/21/97 (Date Entered: 1/29/97) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/29/1997)
41 OPPOSITION by defendants to motion to certify class action [35−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/03/1997)
42 DECLARATION by William Jenkins on behalf of defendants in support re opposition [41−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/03/1997)
43 REPLY by Plaintiffs to opposition to motion to certify class action [35−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1997)
44 DECLARATION by Caroline N. Mitchell on behalf of Plaintiffs in support re motion reply [43−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1997)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 10 of 41

02/12/1997 02/12/1997 02/13/1997 02/20/1997 02/21/1997
02/24/1997
02/26/1997
05/30/1997 06/13/1997
06/16/1997
07/16/1997 07/16/1997 07/25/1997 09/22/1997 09/22/1997 10/17/1997 10/29/1997

45 LETTER dated 2/5/97 from Caroline N. Mitchell to Judge Fern M. Smith re discovery dispute. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/12/1997)
46 MINUTES: (C/R none) Telephone Status Conference held; parties to reach stipulation re Protective Order. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/12/1997)
47 JOINT CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/14/1997)
RECEIVED Stipulation and Proposed Order Re In Camera Inspection of Confidential Inmate Information Subject to the Official Information Privilege [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/21/1997)
49 MINUTES: (E/R Helen Almacen − Tape 2870) Case Managment Conference held; plaintiffs' motion to certify class action [35−1] is SUBMITTED. Case Management Conference continued to 11:00 6/13/97; Pretrial conference set for 2:30 3/30/98; Trial will be held 8:30 5/4/98 [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/27/1997)
48 STIPULATION and ORDER by Judge Fern M. Smith Re: In Camera Inspection of Confidential Inmate Information Subject to the Official Information Privilege (please see order for more details). (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/25/1997)
50 ORDER by Judge Fern M. Smith GRANTING plaintiffs' motion to certify class action [35−1]. The class shall consist of all present and future individuals with developmental disabilities who are under the control of the California Department of Corrections. The term "developmentally disabled" is applied and used as defined in California Welfare & Institutions Code section 4512(a). (Date Entered: 2/27/97) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/27/1997)
51 JOINT CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/30/1997)
52 MINUTES: (E/R Helen Almacen − Tape 2944) Case Management Conference held and continued to 8:30 11/7/97 for further Status; Discovery cutoff set for 12/31/97; Pretrial conference set for 2:30 4/13/98; Trial will be held 8:30 5/4/98. State has a continuing obligation to produce documents. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/16/1997)
53 CASE MANAGEMENT ORDER by Judge Fern M. Smith: Pretrial Summary Judgment motions will be filed by 1/13/98; oppositions due 2/3/98; replies due 2/17/98; Discovery cutoff 2/20/98; Motions hearing date 10:00 3/6/98; Pre−trial conference will be held 2:30 4/13/98; Trial set for 8:30 5/4/98 . Est.trial days: 25. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/17/1997)
54 REQUEST by defendant for in camera review [3:96−cv−01486] (ml, COURT STAFF) (Entered: 07/17/1997)
RECEIVED documents for in camera review submitted by defendant [3:96−cv−01486] (ml, COURT STAFF) (Entered: 07/17/1997)
55 ORDER "FILED UNDER SEAL" (Date Entered: 7/29/97) (cc: all counsel) [3:96−cv−01486] (scu, COURT STAFF) (Entered: 07/29/1997)
56 CERTIFIED COPY of USCA Order: 96−16952 AFFIRMING the decision of the District Court [28−1]. [3:96−cv−01486] (scu, COURT STAFF) (Entered: 09/23/1997)
57 CLERK's letter spreading the mandate to counsel. re appeal [28−1] [3:96−cv−01486] (scu, COURT STAFF) (Entered: 09/23/1997)
58 COPY of USCA Order: the appellees' motion to transfer appellate fee application to the district court is GRANTED. [3:96−cv−01486] (mcl, COURT STAFF) (Entered: 10/21/1997)
59 ORDER by Judge Fern M. Smith: Status Conference scheduled for 11/7/97 is VACATED. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 11/03/1997)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 11 of 41

12/16/1997 12/16/1997 12/19/1997
12/23/1997 12/23/1997 12/29/1997 01/07/1998 01/12/1998
01/15/1998
01/15/1998 01/15/1998 01/16/1998 01/16/1998 01/23/1998
01/28/1998 01/28/1998

60 LETTER dated 12/15/97 from William Jenkins to Judge Fern M. Smith re discovery dispute. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 12/17/1997)
61 ORDER by Judge Fern M. Smith: Telephone Status conference set for 8:30 12/19/97 re discovery dispute. (Date Entered: 12/17/97) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 12/17/1997)
62 MINUTES: (C/R none) (Hearing Date: 12/19/97) Telephone Status Conference held. Court extended the discovery cutoff until 1/30/98 and the motion for summary judgment for 30 days. Defendant directed to fax list to the Court. Court will either arrange a phone conference or issue a written ruling regarding the parties discovery dispute. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 12/24/1997)
63 LETTER dated 12/22/97 from Caroline N. Mitchell to Judge Fern M. Smith re discovery dispute. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 12/24/1997)
64 ORDER by Judge Fern M. Smith Re: Discovery (please see order for specific details). (Date Entered: 12/24/97) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 12/24/1997)
65 LETTER dated 12/22/97 from William Jenkins to Judge Fern M. Smith in response to plaintiffs' correspondence date 12/22/97 regarding the outstanding discovery dispute. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 12/30/1997)
RECEIVED Stipulation and Proposed Order (Plaintiffs and Defendants) to extend time for plaintiffs to bring discovery dispute/motion to compel for limited issues [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/09/1998)
66 STIPULATION and ORDER by Judge Fern M. Smith: Plaintiffs may raise any discovery dispute with the Court relating to defendants receipt and use of federal funding until and including 2/10/98; and plaintiffs may raise any discovery dispute witht he Court relating to the HDSP Documents until and including 2/10/98. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/15/1998)
67 NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Judge Fern M. Smith by Plaintiffs for leave to file a second amended complaint and certifying a subclass with Notice set for 2/20/98 at 10:00 am [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/16/1998)
68 DECLARATION by Adam E. Sak on behalf of Plaintiffs in support re motion for leave to file a second amended complaint [67−1] and motion certifying a subclass [67−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/16/1998)
RECEIVED Proposed Order (Plaintiffs) re: motion for leave to file a second amended complaint [67−1] and motion certifying a subclass [67−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/16/1998)
69 ERRATA by Plaintiffs to motion for leave to file a second amended complaint [67−1] and motion certifying a subclass [67−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/21/1998)
70 PROOF OF SERVICE by Plaintiffs of errata [69−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/21/1998)
71 RETURN OF SERVICE executed upon William Jenkins (personally served Pam Montoya, Receptionist) on 11/15/97 of motion for leave to file a second amended complaint and certifying a subclass with supporting documents thereof. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/27/1998)
72 LETTER dated 1/27/98 from Caroline N. Mitchell to Judge Fern M. Smith seeking the Court's assistance in resolving a discovery dispute. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/29/1998)
73 MINUTES: (C/R Judy Thompsen) (Hearing Date: 1/28/98) Telephone Status Conference held. Briefing schedule set for motion on assessment procedure: plaintiffs' brief due 2/3/98; defendants' opposition due 2/6/98; reply due 2/10/98. Parties are to agree to a proposed order re stopping interviews until ruling on motion. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/29/1998)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 12 of 41

01/29/1998 01/30/1998 01/30/1998
01/30/1998 01/30/1998
01/30/1998 01/30/1998 02/03/1998 02/03/1998 02/03/1998 02/06/1998 02/06/1998 02/06/1998 02/06/1998 02/06/1998 02/06/1998 02/06/1998

75 ORDER by Judge Fern M. Smith SUSPENDING defendants' overview of adaptive functioning of absent class members. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/02/1998)
74 REPORTER'S TRANSCRIPT; Date of proceedings: 1/28/98 (C/R: Judith Thomsen) minutes [73−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/30/1998)
76 NOTICE OF CROSS−MOTION AND CROSS−MOTION before Judge Fern M. Smith by State defendants seeking a stay , or, in the alternative continuance of the Trial and Pretrial dates with Notice set for 2/20/98 at 10:00 am [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/02/1998)
77 DECLARATION by Steven Cambra, Jr. on behalf of State defendants in support re cross−motion seeking a stay [76−1] and cross−motion continuance of the Trial and Pretrial dates [76−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/02/1998)
78 DECLARATION by Williams Jenkins on behalf of State defendants in opposition to motion for leave to file a second amended complaint [67−1], in support re cross−motion seeking a stay [76−1] and cross−motion continuance of the Trial and Pretrial dates [76−2] [3:96−cv−01486] (lcc, COURT STAFF) Modified on 02/02/1998 (Entered: 02/02/1998)
79 OPPOSITION by State defendants to motion for leave to file a second amended complaint [67−1], motion certifying a subclass [67−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/02/1998)
RECEIVED Proposed Order (State defendants) re: cross−motion seeking a stay [76−1] and cross−motion continuance of the Trial and Pretrial dates [76−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/02/1998)
80 NOTICE OF MOTION AND MOTION before Judge Fern M. Smith by Plaintiffs for protective order terminating defendants' overview of adaptive functioning of absent class members [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/04/1998)
81 DECLARATION by Adam E. Sak on behalf of Plaintiffs in support re motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/04/1998)
RECEIVED Proposed Order (Plaintiffs) re: motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/04/1998)
82 OPPOSITION by State defendants to motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/09/1998)
83 DECLARATION by William Jenkins on behalf of State defendants in opposition to motion for protective order terminating defendants' of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/09/1998)
84 DECLARATION by Susann J. Steinberg on behalf of State defendants in opposition to motion for protective order terminating defendants' of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/09/1998)
85 LETTER dated 2/5/98 from William Jenkins to Judge Fern M. Smith requesting that the Court hold a telephone conference to resolve summary judgment issues. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/09/1998)
86 REPLY by Plaintiffs to opposition to motion for leave to file a second amended complaint [67−1], motion certifying a subclass [67−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1998)
87 DECLARATION by Adam E. Sak on behalf of Plaintiffs in support re motion reply [86−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1998)
88 OPPOSITION by Plaintiffs to cross−motion seeking a stay [76−1], cross−motion continuance of the Trial and Pretrial dates [76−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1998)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 13 of 41

02/06/1998 02/09/1998 02/09/1998 02/10/1998 02/10/1998 02/10/1998 02/10/1998 02/11/1998 02/13/1998 02/13/1998
02/18/1998 02/18/1998 02/20/1998
02/23/1998
02/23/1998

89 DECLARATION by Scott A. Sher on behalf of Plaintiffs in support re opposition [88−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1998)
90 ERRATA by Plaintiffs re motion reply [86−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1998)
91 ERRATA by Plaintiffs re opposition [88−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/10/1998)
92 ORDER by Judge Fern M. Smith: Deadline for motion for summary judgment filings is 3/2/98 (Date Entered: 2/11/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/11/1998)
93 PROOF OF SERVICE by Plaintiffs of motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1], declaration [81−1], order received [0−0] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/11/1998)
94 REPLY by Plaintiffs to opposition to motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/12/1998)
95 DECLARATION by Scott A. Sher on behalf of Plaintiffs in support re motion reply [94−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/12/1998)
96 PROOF OF SERVICE by Plaintiffs of motion reply [86−1], declaration [87−1], opposition [88−1], declaration [89−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/12/1998)
97 LETTER dated 2/11/98 from William Jenkins to Judge Fern M. Smith requesting that plaintiffs' motion for protective order be set for hearing. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/17/1998)
98 ORDER by Judge Fern M. Smith SETTING hearing on plaintiffs' motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1] 10:00 2/20/98. The motion will be heard with plaintiffs' motion to amend and defendants' cross−motion for a stay or continuance. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/17/1998)
99 SUPPLEMENTAL OPPOSITION by State defendants to motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/19/1998)
100 SUPPLEMENTAL DECLARATION by William Jenkins on behalf of State defendants in opposition to motion for protective order terminating defendants' of adaptive functioning of absent class members [80−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/19/1998)
101 MINUTES: (C/R Leticia Morales) (Hearing Date: 2/20/98) that plaintiffs' motion for leave to file a second amended complaint [67−1] is SUBMITTED, DENYING in part and GRANTING in part defendants' motion seeking a stay [76−1], DENYING in part and GRANTING in part defendants' motion continuance of the Trial and Pretrial dates [76−2], DENYING plaintiffs' motion for protective order terminating defendants' overview of adaptive functioning of absent members [80−1]. VACATE Trial date of 5/4/98 and Pretrial Conference date of 4/13/98. New Jury trial will be held 8:30 6/15/98 (6 weeks) set. Cross−motions for summary judgment briefing schedule to be set. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/23/1998)
102 ORDER by Judge Fern M. Smith DENYING plaintiffs' motion for protective order terminating defendants' overview of adaptive functioning of absent class members [80−1]. In the interest of protecting the class members from unnecessary confusion regarding the purpose of the assessment, the Court ORDERS the defendants to refrain from telling class members that the assessment is related to or the result of this litigation. (Date Entered: 2/24/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/24/1998)
103 ORDER by Judge Fern M. Smith DENYING in part plaintiffs' motion for leave to file a second amended complaint [67−1] by adding an IDEA claim; GRANTING in part plaintiffs' motion for leave to file a second amended complaint [67−1] by substituting

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 14 of 41

02/23/1998 02/24/1998 02/24/1998
03/02/1998 03/02/1998 03/02/1998 03/13/1998 03/13/1998
03/16/1998 03/16/1998 03/16/1998
03/20/1998 03/23/1998

seven new named plaintiffs for two recently paroled plaintiffs, DENYING plaintiffs'motion certifying a subclass [67−2], DENYING defendants' cross−motion seeking a stay [76−1], GRANTING defendants' cross−motion continuance of the Trial and Pretrial dates [76−2]. Jury trial CONTINUED to 8:30 6/15/98. (Date Entered: 2/24/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) Modified on 02/25/1998 (Entered: 02/24/1998)
Docket Modification (Administrative) to order [103−2] GRANTING IN PART and DENYING IN PART plaintiff's motion for leave to file a second amended complaint [67−1], DENYING plaintiffs' motion certifying a subclass [67−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/02/1998)
104 PROOF OF SERVICE by Plaintiffs of motion reply [94−1], declaration [95−1] [3:96−cv−01486] (lcc, COURT STAFF) Modified on 02/25/1998 (Entered: 02/25/1998)
105 ORDER by Judge Fern M. Smith: Deadline for defendant's motion for summary judgment due 3/2/98; plaintiffs' opposition and cross−motion for summary judgment due 3/16/98; defendants' reply due 3/30/98 and plaintiffs' final reply due 4/13/98; the parties shall conduct expert discovery between 4/15/98 and 5/15/98, parties' cross−motions will be heard by 10:00 5/1/98; Expert declarations due 6/1/98; Pre−trial filings due by 5/22/98; Pretrial conference set for 2:30 6/1/98; Jury trial will be held 8:30 6/15/98. (Date Entered: 2/26/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 02/26/1998)
106 NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Judge Fern M. Smith by State defendants for summary judgment and to decertify the class with Notice set for 5/1/98 at 10:00 am [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/03/1998)
107 DECLARATION by Williams Jenkins on behalf of State defendants in support of motion for summary judgment [106−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/03/1998)
RECEIVED Proposed Order (State defendants) re: motion for summary judgment [106−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/03/1998)
RECEIVED Stipulation and Proposed Order (Plaintiffs and Defendants) to alter briefing schedule for motions for summary judgment [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/13/1998)
108 LETTER dated 3/11/98 from William Jenkins to Judge Fern M. Smith in response to plaintiffs' counsel's correspondence dated 3/9/98 re plaintiffs request permission to file a second amended complaint which includes changes to the allegations beyond the substitution of two plaintiffs allowed by this Court's order dated 2/23/98. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/16/1998)
109 LETTER dated 3/9/98 from Adam E. Sak to Judge Fern M. Smith seeking clarification of the Court's 2/23/98 order. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/17/1998)
110 ORDER by Judge Fern M. Smith DENYING plaintiffs' counsel's letter seeking clarification of the Court's 2/23/98 order [109−1]. REFERRING to Magistrate Judge Bernard Zimmerman for Settlement Conference. (Date 3/17/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/17/1998)
111 STIPULATION and ORDER by Judge Fern M. Smith: CONTINUING hearing on State defendants' motion for summary judgment [106−1] and motion to decertify the class [106−2] to 10:00 5/1/98. Plaintiffs' opposition due 3/30/98 and defendants' reply due 4/13/98. Plaintiffs will not file a motion for summary judgment. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/17/1998)
112 NOTICE OF RECUSAL by Mag. Judge Bernard Zimmerman RECUSING from case. (Date Entered: 3/20/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/20/1998)
113 MINUTES: (C/R none) (Hearing Date: 3/19/98) Status Conference held with Mag. Judge Bernard Zimmerman. Disclosure made − defendant objected to Court presiding

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 15 of 41

03/26/1998 03/27/1998
03/30/1998
03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998 03/30/1998
03/31/1998 04/08/1998
04/13/1998
04/22/1998
04/27/1998

over Settlement Conference; order to be prepared by the Court. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/24/1998)
114 AMENDMENTS by Plaintiffs to first amended complaint [32−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/27/1998)
115 MINUTES: (C/R none) (Hearing Date: 3/27/98) Status Conference held by phone. Court will contact Judge Eugene F. Lynch to see if he is available to conduct a Settlement Conference. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/30/1998)
116 OPPOSITION by Plaintiffs to motion for summary judgment [106−1] and motion to decertify the class [106−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
117 JOINT STATEMENT of undisputed facts by Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
118 DECLARATION by William Earl Fowler on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
119 DECLARATION by Estella Holloway on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
120 DECLARATION by Elbert Ganter on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
121 DECLARATION by Toriano Lowe on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
122 DECLARATION by Hugh Romestan on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
123 DECLARATION by James Simmons on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
124 DECLARATION by Yvette Yarbrough on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
125 DECLARATION by Albert S. Duncan on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
126 DECLARATION by Craig William Haney on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
127 DECLARATION by Scott A. Sher on behalf of Plaintiffs in support of opposition [116−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
128 PROOF OF SERVICE by Plaintiffs of opposition [116−1], statement [117−1], declarations [118−1], [119−1], [120−1], [121−1], [122−1], [123−1] [124−1], [125−1], [126−1], [127−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
129 PROOF OF SERVICE by Plaintiffs of amendments [114−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 03/31/1998)
130 AMENDMENT by defendants State of California, CA Dept of Corr, Pete Wilson, Nadim Khoury to answer [33−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 04/09/1998)
131 REPLY Brief by State defendants in support of motion for summary judgment [106−1] and motion to decertify the class [106−2] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 04/14/1998)
132 MINUTES: (C/R none) (Hearing Date: 4/22/98) Status Conference held by telephone. VACATE 5/1/98 motion hearing. Hearing on State defendants' motion for summary judgment [106−1] and motion to decertify the class [106−2] CONTINUED to 3:00 5/5/98. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 04/24/1998)
133 ORDER by Judge Fern M. Smith CONTINUING hearing on State defendants' motion for summary judgment [106−1] to 3:00 5/5/98. (Date Entered: 4/28/98) (cc: all

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 16 of 41

04/27/1998 04/27/1998 05/05/1998 05/05/1998 05/06/1998 05/08/1998 05/08/1998 05/11/1998 05/11/1998
05/11/1998 05/11/1998 05/12/1998
05/12/1998 05/12/1998 05/18/1998 05/18/1998

counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 04/28/1998)
134 NOTICE OF MOTION AND MOTION before Judge Fern M. Smith by Plaintiffs in limine to exclude evidence [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 04/28/1998)
135 DECLARATION by Scott A. Sher on behalf of Plaintiffs in support of motion in limine to exclude evidence [134−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 04/28/1998)
RECEIVED Stipulated Modification and Proposed Protective Order (Plaintiffs and State Defendants) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/05/1998)
136 MINUTES: (C/R Raynee Mercado) (Hearing Date: 5/5/98) that State defendants' motion for summary judgment [106−1] is SUBMITTED, that State defendants' motion to decertify the class [106−2] is SUBMITTED. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/07/1998)
137 STIPULATION and ORDER by Judge Fern M. Smith: For modification to protective order. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/07/1998)
138 EX−PARTE REQUEST before Judge Fern M. Smith by State defendants for an order modifying the pretrial schedule [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/12/1998)
139 DECLARATION by William Jenkins on behalf of State defendants in support of ex parte request for an order modifying the pretrial schedule [138−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/12/1998)
140 ORDER by Judge Fern M. Smith GRANTING State defendants' ex parte request for an order modifying the pretrial schedule [138−1]. Pretrial reset for 2:30 6/8/98; Jury trial will be held 8:30 6/29/98. (Date Entered: 5/12/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/12/1998)
141 ORDER by Judge Fern M. Smith GRANTING IN PART and DENYING IN PART State defendants' motion for summary judgment [106−1]. State defendants' motion for summary judgment is GRANTED as to plaintiffs' Section 1983 equal protection claims; these claims are DISMISSED with prejudice. State defendants' motion is DENIED as to exhaustion of administrative remedies, exhaustion of state remedies, and standing. DENYING State defendants' motion to decertify the class [106−2]. (Date Entered: 5/12/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/12/1998)
142 OPPOSITION by State defendants to motion in limine to exclude evidence [134−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/12/1998)
143 LETTER dated 5/11/98 from Henry Noyes to Judge Fern M. Smith that plaintiffs' do not object to defendants' request for an order modifying the Pretrial Schedule [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/12/1998)
144 ORDER by Judge Fern M. Smith Re: Scheduling of Pretrial Matters: Expert declarations shall be due on 6/1/98 and the Pretrial conference will be held 2:30 6/8/98. The Court's criminal calendar also necessitates the short trial continuance. (Date Entered: 5/12/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/12/1998)
145 LETTER dated 5/12/98 from Caroline N. Mitchell to Judge Fern M. Smith re discovery dispute. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/13/1998)
146 MINUTES: (C/R none) (Hearing Date: 5/12/98) Status Conference held by phone. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/14/1998)
147 ORDER by Judge Fern M. Smith MODIFYING scheduling order [144−2]: IT IS HEREBY ORDERED that the expert declarations of Mr. Steve Martin and Drs. Ruggles and Haney may be filed on or before 6/8/98. (Date Entered: 5/19/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/19/1998)
148 REPLY Memorandum by Plaintiffs in support of motion in limine to exclude evidence [134−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/19/1998)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 17 of 41

05/18/1998 05/22/1998 05/22/1998
05/22/1998 05/22/1998 05/22/1998 05/26/1998 05/29/1998 05/29/1998 05/29/1998 06/01/1998 06/01/1998 06/01/1998 06/01/1998 06/01/1998 06/01/1998 06/01/1998 06/01/1998 06/01/1998 06/01/1998

149 DECLARATION by Henry S. Noyes on behalf of Plaintiffs in support of motion in limine to exclude evidence [134−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/19/1998)
150 JOINT PRE−TRIAL CONFERENCE STATEMENT by Plaintiffs and Defendants [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/26/1998)
151 NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Judge Fern M. Smith by State defendants in limine to limit or exclude certain evidence at trial [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/26/1998)
152 DECLARATION OF SERVICE by Plaintiffs of motion reply [148−1] and declaration [149−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/26/1998)
153 NOTICE OF MOTION AND MOTION before Judge Fern M. Smith by Plaintiffs in limine to exclude evidence [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/26/1998)
154 DECLARATION by Scott A. Sher on behalf of Plaintiffs in support of motion in limine to exclude evidence [153−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/26/1998)
155 PROOF OF SERVICE by Plaintiffs of motion in limine to exclude evidence [153−1] and declaration [154−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/27/1998)
156 OPPOSITION by Plaintiffs to motion in limine to limit or exclude certain evidence at trial [151−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/01/1998)
157 DECLARATION by Henry S. Noyes on behalf of Plaintiffs in support of opposition [156−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/01/1998)
RECEIVED Stipulation and Proposed Order (Plaintiffs and Defendants) to alter time to file objections to exhibit lists [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/01/1998)
158 OBJECTIONS by Plaintiffs to the witnesses identified by defendants in defendants' witness list, Exhibit G to the joint pretrial conference statement [150−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/02/1998)
159 OBJECTIONS by State defendants to plaintiffs' designations of depositions for use at trial and defendants' counter designations [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/02/1998)
160 DECLARATION by Melissa G. Warren on behalf of State defendants [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/02/1998)
161 DECLARATION by Howard A. Peters, III on behalf of State defendants [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/02/1998)
162 OBJECTIONS by State defendants to plaintiffs' witness list as presented in Exhibit F of the joint pretrial conference statement [150−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/02/1998)
163 TRIAL DECLARATION "FILED UNDER SEAL" [3:96−cv−01486] (scu, COURT STAFF) (Entered: 06/02/1998)
164 TRIAL DECLARATION "FILED UNDER SEAL" [3:96−cv−01486] (scu, COURT STAFF) (Entered: 06/02/1998)
165 TRIAL DECLARATION "FILED UNDER SEAL" [3:96−cv−01486] (scu, COURT STAFF) (Entered: 06/02/1998)
166 TRIAL DECLARATION "FILED UNDER SEAL" [3:96−cv−01486] (scu, COURT STAFF) (Entered: 06/02/1998)
167 KEY DOCUMENTS "FILED UNDER SEAL" supporting declarations [163−1], [164−1], [165−1], [166−1] (scu, COURT STAFF) (Entered: 06/02/1998)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 18 of 41

06/02/1998 06/02/1998 06/08/1998 06/08/1998 06/08/1998 06/09/1998 06/10/1998 06/22/1998 06/24/1998 06/25/1998 06/29/1998
06/29/1998 07/09/1998 07/09/1998 07/21/1998
08/11/1998 08/18/1998 08/18/1998 10/09/1998

168 STIPULATION and ORDER by Judge Fern M. Smith: The parties will file their written objections to exhibits no later than 6/29/98 (please see order for details). (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/04/1998)
169 ORDER by Judge Fern M. Smith: Pretrial Conference CONTINUED to 2:30 6/15/98. (Date Entered: 6/4/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/04/1998)
170 DECLARATION by Ted R. Ruggles on behalf of State defendants [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/09/1998)
171 TRIAL DECLARATION "FILED UNDER SEAL" [3:96−cv−01486] (scu, COURT STAFF) (Entered: 06/09/1998)
172 TRIAL DECLARATION "FILED UNDER SEAL" [3:96−cv−01486] (scu, COURT STAFF) (Entered: 06/09/1998)
173 RESPONSE by Plaintiffs to objections [159−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/10/1998)
174 ERRATA by Plaintiffs to declaration [165−1] [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/12/1998)
RECEIVED Stipulation and Proposed Order (Plaintiffs and Defendants) to vacate trial date and schedule Status Conference [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/23/1998)
175 STIPULATION and ORDER by Judge Fern M. Smith: The trial date of 6/29/98 is VACATED. Telephone Status Conference set for 2:15 7/13/98. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/25/1998)
RECEIVED Stipulation and Proposed Protective Order (Plaintiffs) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/25/1998)
176 LETTER dated 6/15/98 from William Jenkins notifying the court that the parties have agreed to continue the date for the pre−trial conference and the trial until 7/27/98. [3:96−cv−01486] (slh, COURT STAFF) Modified on 07/06/1998 (Entered: 07/06/1998)
177 STIPULATION AND PROTECTIVE ORDER by Judge Fern M. Smith (cc: all counsel) [3:96−cv−01486] (slh, COURT STAFF) (Entered: 07/06/1998)
RECEIVED Stipulation and Proposed Order (Plaintiffs) to continue Status Conference [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/09/1998)
178 STIPULATION and ORDER by Judge Fern M. Smith: Status conference CONTINUED to 2:30 7/20/98. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/10/1998)
179 MINUTES: (C/R Roberta Rogers) (Hearing Date: 7/20/98) Status Conference held. Parties agree to have two experts to resolve disputes, review plans and prepare reports re tracking the settlement. Defendants shall pay the costs of experts, with a cap on costs. Proposed schedule: defendants shall complete plans by 2/1/99 and implement plans by 7/1/99. If case does not settle, plaintiffs may file a motion for injunctive relief. Parties shall refer to JAMS to arbitrate attorney fees. Trial will be held 8:30 6/21/99. Set for six (6) weeks. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 07/23/1998)
RECEIVED Interim Agreement and Stipulation submitted by Plaintiffs [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/12/1998)
180 ORDER by Judge Fern M. Smith APPOINTING Peter Leone, Ph.D. and Melissa G. Warren, Ph.D. as Court experts. (Date Entered: 8/21/98) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 08/21/1998)
181 INTERIM AGREEMENT AND STIPULATION "FILED UNDER SEAL" [3:96−cv−01486] (scu, COURT STAFF) (Entered: 08/21/1998)
RECEIVED Proposed Stipulated Judgment (Plaintiffs) on attorneys' fees [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/09/1998)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 19 of 41

10/09/1998
10/09/1998 01/15/1999 05/04/1999 05/05/1999 05/17/1999 06/21/1999 06/29/1999 12/15/1999 01/25/2000 07/26/2000 12/20/2000
06/04/2001 12/03/2001 03/15/2002
03/18/2002
07/05/2005

182 STIPULATION and ORDER by Judge Fern M. Smith on Attorneys' Fees: It is hereby ORDERED, ADJUDGED AND DECREED that JUDGMENT shall be entered in favor of plaintiffs in the amount of Two Million Eight Hundred Thousand Dollars ($2,800,000.) as and for attorneys' fees for all work performed prior to execution of the Interim Agreement and Stipulation. (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 10/13/1998)
Docket Modification (Administrative) to stipulation order [182−2]. Terminating case. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/22/1999)
183 NOTICE by Plaintiffs of counsel's change of address. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 01/19/1999)
184 ORDER APPROVING PAYMENT OF FEES by Judge Fern M. Smith ( Date Entered: 5/6/99) (cc: all counsel) [3:96−cv−01486] (nd, COURT STAFF) (Entered: 05/06/1999)
185 LETTER to Judge Smith dated 4/28/99 from William N. Jenkins re: correspondence from Expert Peter Leone, Ph. D. [3:96−cv−01486] (mmr, COURT STAFF) (Entered: 05/06/1999)
186 NOTICE by State defendants of counsel's change of address, telephone and fax numbers. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 05/17/1999)
187 LETTER dated 6/18/99 from William N. Jenkins to the Court confirming that the parties do not intend to proceed with the trial date previously scheduled for June 21, 1999. [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/21/1999)
188 ORDER by Judge Fern M. Smith APPROVING payment of Dr. Peter Leone's fees. (Date Entered: 6/30/99) (cc: all counsel) [3:96−cv−01486] (lcc, COURT STAFF) (Entered: 06/30/1999)
189 AMENDMENT by Plaintiff to stipulation [181−1] [3:96−cv−01486] (db, COURT STAFF) (Entered: 12/16/1999)
190 ORDER re approval of payment of Dr. Warren's fees and expenses, granted, by Judge Martin J. Jenkins ( Date Entered: 1/26/00) (cc: all counsel) [3:96−cv−01486] (db, COURT STAFF) (Entered: 01/26/2000)
191 ORDER by Judge Charles R. Breyer 2nd modification of interim agreement and stipulation ( Date Entered: 8/1/00) (cc: all counsel) [3:96−cv−01486] (db, COURT STAFF) (Entered: 08/01/2000)
192 ORDER by Judge Charles R. Breyer Except as modified herein and in the Modifications of Interim Agreement and Stipulation filed on 12/15/1999 and July 26, 2000, the August 11, 1998 Interim Agreement and Stipulation remains unchanged and in effect.( Date Entered: 12/22/00) (cc: all counsel) [3:96−cv−01486] (db, COURT STAFF) (Entered: 12/22/2000)
193 ORDER by Judge Phyllis J. Hamilton for fourth modification of interim agreement and stipulation ( Date Entered: 6/6/01) (cc: all counsel) [3:96−cv−01486] (db, COURT STAFF) (Entered: 06/06/2001)
194 ORDER by Judge Vaughn R. Walker re settlement agreement an order ( Date Entered: 12/4/01) (cc: all counsel) [3:96−cv−01486] (db, COURT STAFF) (Entered: 12/04/2001)
195 STIPULATION and ORDER by Judge Phyllis J. Hamilton The Court adopt defendants' modified remedial plan, a copy of which is submitted with this filing, attached to this order : (cc: all counsel) [3:96−cv−01486] (db, COURT STAFF) (Entered: 03/18/2002)
196 LETTER from Scott C. Mather Deputy Attorney General of CA dated 3/13/02 to the USDC re error, page 31 of modified plan, parties submit a letter of correction for page 31 and request that it be included with the parites filing of the modified remedical plan. [3:96−cv−01486] (db, COURT STAFF) (Entered: 03/19/2002)
197 LETTER from the State of California, Bill Lockyer, Attorney General dated 6/30/05 to the USDC find for approval a stipulation and proposed order regarding Phase IV

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 20 of 41

07/06/2005 02/12/2007 09/26/2007 06/05/2008 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009
07/24/2009
07/24/2009
07/24/2009 07/24/2009
07/24/2009

testing of Inmates in the referenced class action. [3:96−cv−01486] (db, COURT STAFF) (Entered: 07/06/2005)
198 STIPULATION and ORDER approving the requested change to the Remedial Plan, Amended March 1, 2002 as stipulated to by the parties, by Judge Charles R. Breyer : (cc: all counsel) [3:96−cv−01486] (db, COURT STAFF) (Entered: 07/07/2005)
199 STIPULATION AND ORDER re revisions to remedial plan. Signed by Judge Breyer on 2/12/07. (far, COURT STAFF) (Filed on 2/12/2007) (Entered: 02/22/2007)
200 NOTICE of Change In Counsel by Jose Alfonso Zelidon−Zepeda (Zelidon−Zepeda, Jose) (Filed on 9/26/2007) (Entered: 09/26/2007)
201 NOTICE of Change of Address by Larry Dixon, Jr, Milton Silva, Jack Von Gunten, Mark Mitchell Morino, Derrick Clark, Ambrose Woods (far, COURT STAFF) (Filed on 6/5/2008) (Entered: 06/05/2008)
202 MOTION for Leave to File Excess Pages Defendants' Motion for Administrative Relief to Exceed Page Limitations filed by State of California. (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
203 Declaration of Jose Zelidon−Zepeda in Support of 202 MOTION for Leave to File Excess Pages Defendants' Motion for Administrative Relief to Exceed Page Limitations filed byState of California. (Related document(s) 202 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
204 Proposed Order Granting Defendants' Motion for Administrative Relief to Exceed Page Limitations by State of California. (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
206 Brief re 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities Defendants' Statement of Facts in Support of Defendants' Motion to Terminate Settlement Agreement filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
207 Declaration of Deborah K. Johnson in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
208 Declaration of Richard Juarez in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
209 Declaration of S. AREF in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
210 Declaration of Richard Baughman in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
211 Declaration of Robert Keldgord in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered:

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 21 of 41

07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009

07/24/2009)
212 Declaration of Dr. Donald Salz in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
213 Declaration of Yolanda Martinez in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
214 Declaration of Mellie Briggs in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
215 Declaration of Michael Mayes in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
216 Declaration of John Schmidt−Clark in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
217 Declaration of Fred Schroeder in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
218 Declaration of Gene Nies in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
219 Declaration of Prescott Bush in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
220 Declaration of Larry Trexler in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
221 Declaration of Richard Valdez in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
222 Declaration of Robert Vella in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
223 Declaration of Patrick Cochran in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 22 of 41

07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009

AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
224 Declaration of Cornelio Ynson in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
225 Declaration of Jose A. Zelidon−Zepeda in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Attachments: # 1 Exhibit 1)(Related document(s) 205 ) (Mossler, Julianne) (Filed on 7/24/2009) (Entered: 07/24/2009)
226 Declaration of Matthew Nimrod in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
227 Declaration of Daniel Paramo in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
228 Declaration of Gloria Colmenero in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
229 Declaration of Michael Payton in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
230 Declaration of Joseph PrudHomme in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
231 Declaration of D.J. Renauld in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
232 Declaration of Carlos Rouston in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
233 Declaration of Carolyn Cooper in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
234 Declaration of Vincent Cullen in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California.

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 23 of 41

07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/27/2009 07/30/2009 08/07/2009 08/07/2009 08/07/2009 08/10/2009

(Related document(s) 205 ) (O'Bannon, Danielle) (Filed on 7/24/2009) (Entered: 07/24/2009)
235 Declaration of David Huddleston in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
236 Declaration of Richard Delgado in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
237 Declaration of Alexander Gonzales in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
238 Declaration of Ron Hansen in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
239 Declaration of William Hill in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
240 Declaration of Lonnie Jackson in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
241 Proposed Order re 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities by State of California. (Zelidon−Zepeda, Jose) (Filed on 7/24/2009) (Entered: 07/24/2009)
242 Declaration of JOE GONZALEZ in Support of 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Related document(s) 205 ) (Zelidon−Zepeda, Jose) (Filed on 7/27/2009) (Entered: 07/27/2009)
243 ORDER GRANTING DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO EXCEED PAGE LIMITATIONS by Judge Charles R. Breyer; granting 202 Motion for Leave to File Excess Pages. (ls, COURT STAFF) (Filed on 7/30/2009) (Entered: 07/30/2009)
244 Memorandum in Opposition re 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byDerrick Clark. (Norman, Sara) (Filed on 8/7/2009) (Entered: 08/07/2009)
245 AFFIDAVIT in Opposition to Defendants' Motion to Terminate Settlement Agreement filed byDerrick Clark. (Norman, Sara) (Filed on 8/7/2009) (Entered: 08/07/2009)
246 Declaration of Susan Christian in Support of 244 Memorandum in Opposition to Defendants' Motion to Terminate Settlement Agreement filed byDerrick Clark. (Related document(s) 244 ) (Norman, Sara) (Filed on 8/7/2009) (Entered: 08/07/2009)
247 MOTION for Leave to File Excess Pages filed by Derrick Clark. Motion Hearing set for 8/28/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Norman, Sara) (Filed on 8/10/2009) (Entered: 08/10/2009)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 24 of 41

08/11/2009
08/11/2009 08/11/2009
08/11/2009 08/13/2009 08/13/2009 08/13/2009 08/13/2009 08/13/2009 08/13/2009 08/13/2009 08/14/2009
08/14/2009 08/17/2009 08/17/2009 08/17/2009 08/17/2009 08/17/2009 08/19/2009

248 MOTION for Protective Order ; MEMORANDUM OF POINTS AND AUTHORITIES filed by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 8/11/2009) (Entered: 08/11/2009)
249 STIPULATION re 248 MOTION for Protective Order ; MEMORANDUM OF POINTS AND AUTHORITIES by State of California. (Zelidon−Zepeda, Jose) (Filed on 8/11/2009) (Entered: 08/11/2009)
250 Declaration of JOSE A. ZELIDON−ZEPEDA in Support of 248 MOTION for Protective Order ; MEMORANDUM OF POINTS AND AUTHORITIES filed byState of California. (Related document(s) 248 ) (Zelidon−Zepeda, Jose) (Filed on 8/11/2009) (Entered: 08/11/2009)
251 Proposed Order re 248 MOTION for Protective Order ; MEMORANDUM OF POINTS AND AUTHORITIES by State of California. (Zelidon−Zepeda, Jose) (Filed on 8/11/2009) (Entered: 08/11/2009)
252 MOTION to Enforce Judgment filed by Derrick Clark. (Norman, Sara) (Filed on 8/13/2009) (Entered: 08/13/2009)
253 Declaration of Sara Norman in Support of 252 MOTION to Enforce Judgment filed byDerrick Clark. (Attachments: # 1 Exhibit)(Related document(s) 252 ) (Norman, Sara) (Filed on 8/13/2009) (Entered: 08/13/2009)
254 Declaration of Penny Godbold in Support of 252 MOTION to Enforce Judgment filed byDerrick Clark. (Attachments: # 1 Exhibit)(Related document(s) 252 ) (Norman, Sara) (Filed on 8/13/2009) (Entered: 08/13/2009)
255 Proposed Order re 252 MOTION to Enforce Judgment by Derrick Clark. (Norman, Sara) (Filed on 8/13/2009) (Entered: 08/13/2009)
256 MOTION to Shorten Time filed by Derrick Clark. (Norman, Sara) (Filed on 8/13/2009) (Entered: 08/13/2009)
257 Declaration of Zoe Schonfeld in Support of 256 MOTION to Shorten Time filed byDerrick Clark. (Related document(s) 256 ) (Norman, Sara) (Filed on 8/13/2009) (Entered: 08/13/2009)
258 Proposed Order re 256 MOTION to Shorten Time by Derrick Clark. (Norman, Sara) (Filed on 8/13/2009) (Entered: 08/13/2009)
259 RESPONSE in Support re 205 First MOTION to Set Aside Defendants' Notice of Motion and Motion to TERMINATE SETTLEMENT AGREEMENT; Memorandum of Points and Authorities filed byState of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 8/14/2009) (Entered: 08/14/2009)
260 Declaration of JOSE A. ZELIDON−ZEPEDA in Support of 259 Response in Support, filed byState of California. (Attachments: # 1 Exhibit 2)(Related document(s) 259 ) (Zelidon−Zepeda, Jose) (Filed on 8/14/2009) (Entered: 08/14/2009)
261 Memorandum in Opposition to Defendants' Motion for a Protective Order filed byDerrick Clark. (Norman, Sara) (Filed on 8/17/2009) (Entered: 08/17/2009)
262 AFFIDAVIT in Opposition to Defendants' Motion for a Protective Order filed byDerrick Clark. (Norman, Sara) (Filed on 8/17/2009) (Entered: 08/17/2009)
263 ORDER by Judge Charles R. Breyer granting 256 Motion to Shorten Time (be, COURT STAFF) (Filed on 8/17/2009) (Entered: 08/17/2009)
264 CLERKS NOTICE Continuing Motion Hearing Motion Hearing reset for 9/4/2009 10:00 AM. (be, COURT STAFF) (Filed on 8/17/2009) (Entered: 08/17/2009)
265 ORDER by Judge Charles R. Breyer granting 247 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 8/17/2009) (Entered: 08/17/2009)
266 Memorandum in Opposition re 252 MOTION to Enforce Judgment filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 8/19/2009) (Entered: 08/19/2009)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 25 of 41

08/19/2009 08/19/2009 08/19/2009 08/21/2009 09/03/2009 09/03/2009 09/03/2009 09/04/2009
09/10/2009
09/17/2009 09/18/2009 09/18/2009
10/06/2009 10/06/2009

267 CERTIFICATE OF SERVICE by State of California re 266 Memorandum in Opposition (Zelidon−Zepeda, Jose) (Filed on 8/19/2009) (Entered: 08/19/2009)
268 Declaration of JIM BLEVINS in Support of 266 Memorandum in Opposition filed byState of California. (Related document(s) 266 ) (Zelidon−Zepeda, Jose) (Filed on 8/19/2009) (Entered: 08/19/2009)
269 Proposed Order re 266 Memorandum in Opposition by State of California. (Zelidon−Zepeda, Jose) (Filed on 8/19/2009) (Entered: 08/19/2009)
270 ORDER by Judge Charles R. Breyer granting 248 Motion for Protective Order; denying 252 Motion to Enforce Judgment (crblc2, COURT STAFF) (Filed on 8/21/2009) (Entered: 08/21/2009)
271 ORDER REASSIGNING CASE. Case reassigned to Hon. Charles R. Breyer for all further proceedings. Hon. Fern M Smith no longer assigned to the case. Signed by Executive Committee on 9/3/09. (ha, COURT STAFF) (Filed on 9/3/2009) (Entered: 09/03/2009)
272 MOTION for Leave to File Supplementary Authority filed by Derrick Clark. Motion Hearing set for 9/4/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order, # 2 Affidavit)(Norman, Sara) (Filed on 9/3/2009) (Entered: 09/03/2009)
273 Memorandum in Opposition re 272 MOTION for Leave to File Supplementary Authority filed byState of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 9/3/2009) (Entered: 09/03/2009)
274 Minute Entry: Motion Hearing held on 9/4/2009 before Charles R. Breyer (Date Filed: 9/4/2009) re 205 First MOTION to Set Aside SETTLEMENT AGREEMENT Further Case Management Conference set for 9/18/2009 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter James Yeomans.) (be, COURT STAFF) (Date Filed: 9/4/2009) (Entered: 09/04/2009)
275 Transcript of Proceedings held on 09/04/09, before Judge Charles R. Breyer. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/7/2009. (jjy, COURT STAFF) (Filed on 9/10/2009) (Entered: 09/10/2009)
276 Proposed Order LIFTING STAY OF DISCOVERY; DISCOVERY PLAN by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 9/17/2009) (Entered: 09/17/2009)
277 AMENDED DOCUMENT by State of California. Amendment to 276 Proposed Order AMENDED [Proposed] Order Lifting Stay of Discovery; Discovery Plan. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 9/18/2009) (Entered: 09/18/2009)
278 Minute Entry: Further Case Management Conference held on 9/18/2009 before Charles R. Breyer (Date Filed: 9/18/2009). Hearing set for 11/12/2009 02:30 PM in Courtroom 8, 19th Floor, San Francisco. Evidentiary Hearing set for 11/19/2009 09:30 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter − Not Reported.) Nandor J. Vadas as Special Master for discovery. (be, COURT STAFF) (Date Filed: 9/18/2009) (Entered: 09/18/2009)
279 AMENDED MINUTES to 278 Minute Entry: Further Case Management Conference held on 9/18/2009 before Charles R. Breyer (be, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)
280 ORDER LIFTING STAY OF DISCOVERY; DISCOVERY PLAN. Signed by Judge Charles R. Breyer on 10/05/09. (be, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 26 of 41

10/06/2009
10/21/2009
10/21/2009 11/16/2009 11/16/2009
11/23/2009 11/23/2009
11/23/2009
11/30/2009 12/01/2009 12/01/2009 12/02/2009 12/30/2009 01/04/2010 01/05/2010
01/06/2010 01/07/2010

Set/Reset Hearings: Pre Evidentiary Hearing set for 1/12/2010 02:30 PM in Courtroom 8, 19th Floor, San Francisco. Evidentiary Hearing set for 1/19/2010 09:30 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)
281 Minute Entry: Discovery Hearing held on 10/21/2009 before Nandor J. Vadas by phone; further hearing set for November 6, 2009 at 2:00 p.m. in San Francisco (Date Filed: 10/21/2009). () (glm, COURT STAFF) (Date Filed: 10/21/2009) (Entered: 10/21/2009)
Set/Reset Hearings: Discovery Hearing set for 11/6/2009 02:00 PM. (mcl, COURT STAFF) (Entered: 10/22/2009)
282 MOTION to Quash filed by Derrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. (Mitchell, Caroline) (Filed on 11/16/2009) (Entered: 11/16/2009)
283 Declaration of Douglas E. Roberts in Support of 282 MOTION to Quash filed byDerrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Related document(s) 282 ) (Mitchell, Caroline) (Filed on 11/16/2009) (Entered: 11/16/2009)
284 ORDER setting scheduling. Signed by Judge Nandor J. Vadas on 11/23/09. (glm, COURT STAFF) (Filed on 11/23/2009) (Entered: 11/23/2009)
285 Memorandum in Opposition re 282 MOTION to Quash DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO QUASH filed byState of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Mossler, Julianne) (Filed on 11/23/2009) (Entered: 11/23/2009)
286 DECLARATION of Mossler in Opposition to 282 MOTION to Quash DECLARATION OF MOSSLER IN OPPOSITION TO PLAINTIFFS MOTION TO QUASH filed byState of California. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 282 ) (Mossler, Julianne) (Filed on 11/23/2009) (Entered: 11/23/2009)
287 CLERKS NOTICE Discovery Hearing set for 12/18/2009 03:30 PM in Courtroom D, 15th Floor, San Francisco. (glm, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
288 Letter from Jose A. Zelidon−Zepeda to Judge Vadas. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 12/1/2009) (Entered: 12/01/2009)
289 Letter from Zoe Schonfeld to Judge Vadas. (Godbold, Penelope) (Filed on 12/1/2009) (Entered: 12/01/2009)
290 ORDER. Signed by Judge Nandor J. Vadas on 12/2/09. (glm, COURT STAFF) (Filed on 12/2/2009) (Entered: 12/02/2009)
291 JOINT CASE MANAGEMENT STATEMENT filed by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 12/30/2009) (Entered: 12/30/2009)
292 CLERKS NOTICE Status Conference set for 1/5/2010 01:00 PM. by telephone (glm, COURT STAFF) (Filed on 1/4/2010) (Entered: 01/04/2010)
293 ORDER Granting Plaintiffs' Motion to Quash Defendants' Deposition Notices and Request for Production of Documents Served by Defendants on October 30, 2009 by Judge Nandor J. Vadas granting 282 Motion to Quash (glm, COURT STAFF) (Filed on 1/5/2010) (Entered: 01/05/2010)
294 Minute Entry: Status Conference held on 1/5/10. (Date Filed: 1/6/2010). (Tape #1:01−1:08.) (glm, COURT STAFF) (Date Filed: 1/6/2010) Modified on 1/7/2010 (mcl, COURT STAFF). (Entered: 01/06/2010)
295 SECOND DISCOVERY SCHEDULING ORDER. Signed by Judge Vadas on 1/7/2010. (cmw, COURT STAFF) (Filed on 1/7/2010) (Entered: 01/07/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 27 of 41

01/11/2010 01/12/2010
01/26/2010 01/26/2010 01/26/2010 01/27/2010 01/27/2010 02/08/2010 02/11/2010 02/11/2010
02/12/2010 02/16/2010 02/16/2010 02/16/2010

296 MOTION to Amend/Correct /Add Plaintiffs filed by Derrick Clark. Motion Hearing set for 2/19/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Schonfeld, Zoe) (Filed on 1/11/2010) (Entered: 01/11/2010)
297 Minute Entry: Status Conference held on 1/12/2010 before Charles R. Breyer (Date Filed: 1/12/2010), Motion Hearing held on 1/12/2010 before Charles R. Breyer (Date Filed: 1/12/2010) re 296 MOTION to Amend/Correct /Add Plaintiffs filed by Derrick Clark, ***Motions terminated: 296 MOTION to Amend/Correct /Add Plaintiffs filed by Derrick Clark.. Evidentiary Hearing set for 4/26/2010 09:30 AM in Courtroom 8, 19th Floor, San Francisco. Status Conference set for 4/2/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Kathy Wyatt.) (be, COURT STAFF) (Date Filed: 1/12/2010) (Entered: 01/13/2010)
298 MOTION for Extension of Time to File REQUEST TO CHANGE DATE FOR EVIDENTIARY HEARING filed by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 1/26/2010) (Entered: 01/26/2010)
299 Declaration of Jose A. Zelidon−Zepeda in Support of 298 MOTION for Extension of Time to File REQUEST TO CHANGE DATE FOR EVIDENTIARY HEARING filed byState of California. (Related document(s) 298 ) (Zelidon−Zepeda, Jose) (Filed on 1/26/2010) (Entered: 01/26/2010)
300 Proposed Order re 298 MOTION for Extension of Time to File REQUEST TO CHANGE DATE FOR EVIDENTIARY HEARING by State of California. (Zelidon−Zepeda, Jose) (Filed on 1/26/2010) (Entered: 01/26/2010)
301 Plaintiffs' Opposition to 298 Defendants' Request to Change Date for Evidentiary Hearing filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 1/27/2010) Modified on 1/28/2010 (mcl, COURT STAFF). (Entered: 01/27/2010)
302 Declaration of Zoe Schonfeld in Support of 301 Plaintiffs' Opposition to Defendants' Request to Change Date for Evidentiary Hearing filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 1/27/2010) Modified on 1/28/2010 (mcl, COURT STAFF). (Entered: 01/27/2010)
303 *** FILED IN ERROR. REFER TO DOCUMENT 307 . *** MOTION for Discovery Letter Brief to Extend Discovery Deadline for Class Member Central files filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 2/8/2010) Modified on 2/16/2010 (feriab, COURT STAFF). (Entered: 02/08/2010)
304 Memorandum in Opposition re 303 MOTION for Discovery Letter Brief to Extend Discovery Deadline for Class Member Central files filed byState of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(O'Bannon, Danielle) (Filed on 2/11/2010) (Entered: 02/11/2010)
305 Declaration of Danielle F. O'Bannon in Support of 304 Memorandum in Opposition, DECLARATION OF DANIELLE F. OBANNON IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS REQUEST FOR C−FILE DISCOVERY EXTENSION filed byState of California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 304 ) (O'Bannon, Danielle) (Filed on 2/11/2010) (Entered: 02/11/2010)
306 CLERKS NOTICE Discovery Hearing by phone set for 2/16/2010 11:00 AM. before Magistrate Judge Vadas (glm, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/12/2010)
307 MOTION for Discovery CORRECTION OF DOCKET # 303 ., MOTION for Extension of Time to Complete Discovery Pltfs' Ltr Brief Re Extension of Discovery for C−file Documents filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 2/16/2010) (Entered: 02/16/2010)
308 ORDER by Judge Charles R. Breyer denying 298 Motion for Extension of Time to File (crblc2, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/16/2010)
309 Minute Entry: Discovery Hearing held on 2/16/2010 before Nandor J. Vadas (Date Filed: 2/17/2010). () (glm, COURT STAFF) (Date Filed: 2/16/2010) (Entered: 02/17/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 28 of 41

02/17/2010 02/22/2010 02/25/2010 02/25/2010 02/26/2010 03/02/2010 03/03/2010 03/03/2010 03/08/2010 03/08/2010 03/08/2010
03/09/2010 03/09/2010
03/09/2010
03/10/2010

310 CLERKS NOTICE Discovery Hearing set for 3/26/2010 10:00 AM. (glm, COURT STAFF) (Filed on 2/17/2010) (Entered: 02/17/2010)
311 ORDER by Judge Nandor J. Vadas granting in part and denying in part 307 Motion for Extension of Time to Complete Discovery, and scheduling final discovery hearing for March 26, 2010 at 10:00 a.m. in Courtroom D. (cmw, COURT STAFF) (Filed on 2/22/2010) (Entered: 02/22/2010)
312 MOTION to Compel filed by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 2/25/2010) (Entered: 02/25/2010)
313 Declaration of Jose A. Zelidon−Zepeda in Support of 312 MOTION to Compel filed byState of California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3−Manual Filing Notification)(Related document(s) 312 ) (Zelidon−Zepeda, Jose) (Filed on 2/25/2010) (Entered: 02/25/2010)
314 STIPULATION and Proposed Order Regarding Depositions of Trial Witnesses by Derrick Clark. (Norman, Sara) (Filed on 2/26/2010) (Entered: 02/26/2010)
315 ORDER regarding depositions of trial witnesses re 314 Stipulation filed by Derrick Clark. Signed by Judge Charles R. Breyer on 3/1/2010. (be, COURT STAFF) (Filed on 3/2/2010) (Entered: 03/02/2010)
316 Memorandum in Opposition to 312 Defendants' Motion to Compel filed byDerrick Clark. (Norman, Sara) (Filed on 3/3/2010) Modified on 3/4/2010 (mcl, COURT STAFF). (Entered: 03/03/2010)
317 AFFIDAVIT in Opposition to 317 Defendants' Motion to Compel filed byDerrick Clark. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Norman, Sara) (Filed on 3/3/2010) Modified on 3/4/2010 (mcl, COURT STAFF). (Entered: 03/03/2010)
318 Appendix Plaintiffs' Supplement to Opposition to 312 Defendants' Motion to Compel filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 3/8/2010) Modified on 3/9/2010 (mcl, COURT STAFF). (Entered: 03/08/2010)
319 *** FILED IN ERROR. REFER TO DOCUMENT 321 . *** MOTION to Compel filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 3/8/2010) Modified on 3/10/2010 (feriab, COURT STAFF). (Entered: 03/08/2010)
320 Declaration of Zoe Schonfeld in Support of 319 MOTION to Compel Further Discovery Responses filed byDerrick Clark. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Related document(s) 319 ) (Schonfeld, Zoe) (Filed on 3/8/2010) (Entered: 03/08/2010)
321 MOTION to Compel CORRECTION OF DOCKET # 319 . filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 3/9/2010) (Entered: 03/09/2010)
322 *** FILED IN ERROR. PLEASE SEE DOCKET # 329 . *** MOTION to Enforce Judgment Plaintiffs' Notice of Motion and Motion for Enforcement and Further Remedial Orders filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 3/9/2010) Modified on 3/11/2010 (ewn, COURT STAFF). (Entered: 03/09/2010)
323 Declaration of Zoe Schonfeld in Support of 322 MOTION to Enforce Judgment Plaintiffs' Notice of Motion and Motion for Enforcement and Further Remedial Orders filed byDerrick Clark. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Related document(s) 322 ) (Schonfeld, Zoe) (Filed on 3/9/2010) (Entered: 03/09/2010)
324 MOTION to Strike DR. NANCY COWARDINS SUPPLEMENTAL EXPERT REPORT, OR, ALTERNATIVELY, TO COMPEL RE−OPENING OF DR. COWARDINS DEPOSITION AT PLAINTIFFS EXPENSE filed by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/10/2010) (Entered: 03/10/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 29 of 41

03/10/2010
03/10/2010 03/10/2010 03/10/2010 03/10/2010 03/12/2010 03/12/2010 03/15/2010
03/15/2010 03/17/2010
03/17/2010
03/18/2010 03/18/2010 03/18/2010 03/18/2010 03/18/2010 03/18/2010

325 Declaration of Jose A. Zelidon−Zepeda in Support of 324 MOTION to Strike DR. NANCY COWARDINS SUPPLEMENTAL EXPERT REPORT, OR, ALTERNATIVELY, TO COMPEL RE−OPENING OF DR. COWARDINS DEPOSITION AT PLAINTIFFS EXPENSE filed byState of California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 324 ) (Zelidon−Zepeda, Jose) (Filed on 3/10/2010) (Entered: 03/10/2010)
326 ORDER by Judge Vadas granting in part and denying in part 312 Motion to Compel filed by the State of California.(cmw, COURT STAFF) (Filed on 3/10/2010) (Entered: 03/10/2010)
327 ORDER re: Deposition of Dr. Leone. Signed by Judge Vadas on March 10, 2010. (cmw, COURT STAFF) (Filed on 3/10/2010) (Entered: 03/10/2010)
328 ORDER re: Compliance with Local Rules and Standing Orders re: Submission of Chambers Copies. Signed by Judge Vadas on March 10, 2010. (cmw, COURT STAFF) (Filed on 3/10/2010) (Entered: 03/10/2010)
329 MOTION to Enforce Judgment CORRECTION OF DOCKET # 322 . filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 3/10/2010) (Entered: 03/10/2010)
330 STIPULATION and Proposed Order on Pretrial Deadlines by Derrick Clark. (Norman, Sara) (Filed on 3/12/2010) (Entered: 03/12/2010)
331 Letter Brief Re Motion to Compel Expert Deposition filed byDerrick Clark. (Specter, Donald) (Filed on 3/12/2010) (Entered: 03/12/2010)
332 Reply Memorandum re 321 MOTION to Compel CORRECTION OF DOCKET # 319 . DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; MOTION FOR A PROTECTIVE ORDER filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 3/15/2010) (Entered: 03/15/2010)
333 Declaration of Jose A. Zelidon−Zepeda in Support of 332 Reply Memorandum, filed byState of California. (Attachments: # 1 Exhibit 1)(Related document(s) 332 ) (Zelidon−Zepeda, Jose) (Filed on 3/15/2010) (Entered: 03/15/2010)
334 Memorandum in Opposition re 324 MOTION to Strike DR. NANCY COWARDINS SUPPLEMENTAL EXPERT REPORT, OR, ALTERNATIVELY, TO COMPEL RE−OPENING OF DR. COWARDINS DEPOSITION AT PLAINTIFFS EXPENSE filed byDerrick Clark. (Norman, Sara) (Filed on 3/17/2010) (Entered: 03/17/2010)
335 AFFIDAVIT of Sara Norman in Opposition to 324 Defendants' Motion to Strike Dr. Cowardin's Supplemental Report filed byDerrick Clark. (Attachments: # 1 Exhibit A−D)(Norman, Sara) (Filed on 3/17/2010) Modified on 3/18/2010 (mcl, COURT STAFF). (Entered: 03/17/2010)
336 ORDER by Judge Vadas granting in part and denying in part 321 Motion to Compel.(cmw, COURT STAFF) (Filed on 3/18/2010) (Entered: 03/18/2010)
337 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE RANDY WRIGHT by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)
338 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE TAIJUAN COLBERT by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)
339 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE ANTHONY ROQU by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)
340 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE GARY LUIS DAVENPORT by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)
341 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE TRYON SMITH by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 30 of 41

03/18/2010 03/18/2010 03/18/2010 03/18/2010 03/19/2010 03/19/2010 03/19/2010 03/19/2010 03/19/2010
03/22/2010 03/23/2010 03/23/2010 03/23/2010 03/23/2010 03/23/2010 03/23/2010
03/26/2010

342 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE BRANDON PETTIES by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)
343 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE PHILLIP HOUSEKNECHT by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)
344 Proposed Order [PROPOSED] WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR INMATE RONALD BLAKE by State of California. (Zelidon−Zepeda, Jose) (Filed on 3/18/2010) (Entered: 03/18/2010)
345 ORDER by Judge Vadas granting in part and denying in part 324 Motion to Strike, and addressing 331 Plaintiffs' Letter Brief. (cmw, COURT STAFF) (Filed on 3/18/2010) (Entered: 03/18/2010)
346 Letter from Defendants, State of California in Opposition to Plaintiff's Request for a Protective Order (In Accordance With Court's 3/10/10 Order). (Zelidon−Zepeda, Jose) (Filed on 3/19/2010) (Entered: 03/19/2010)
347 First MOTION for Reconsideration re 345 Order on Motion to Strike Motion for Reconsideration of 3/18/10 Order filed by State of California. (Attachments: # 1 Exhibit 1)(Zelidon−Zepeda, Jose) (Filed on 3/19/2010) (Entered: 03/19/2010)
348 STIPULATION and Joint Proposed Qualified Protective Order by Derrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. (Mitchell, Caroline) (Filed on 3/19/2010) (Entered: 03/19/2010)
349 OBJECTIONS to Defendants' Proposed Writs of Habeas Corpus Ad Testificandum by Derrick Clark. (Norman, Sara) (Filed on 3/19/2010) (Entered: 03/19/2010)
350 Declaration of Sara Norman in Support of 349 Objection to Defendants' Proposed Writs of Habeas Corpus Ad Testificandum filed byDerrick Clark. (Attachments: # 1 Exhibit A−E)(Related document(s) 349 ) (Norman, Sara) (Filed on 3/19/2010) (Entered: 03/19/2010)
351 Stipulation and Joint PROTECTIVE ORDER. Signed by Judge Vadas on March 22, 2010. (cmw, COURT STAFF) (Filed on 3/22/2010) (Entered: 03/22/2010)
352 ORDER by Judge Vadas denying 347 Motion for Reconsideration. (cmw, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
353 WRIT of Habeas Corpus Ad Testificandum issued for Inmate Tryon Smith. Signed by Judge Nandor J. Vadas on 3/23/10. (glm, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
354 WRIT of Habeas Corpus Ad Testificandum issued for Inmate Brandon Petties. Signed by Judge Nandor J. Vadas on 3/23/10. (glm, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
355 WRIT of Habeas Corpus Ad Testificandum issued for Inmate Phillip Houseknecht. Signed by Judge Nandor J. Vadas on 3/23/10. (glm, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
356 WRIT of Habeas Corpus Ad Testificandum issued for Inmate Ronald Blake. Signed by Judge Nandor J. Vadas on 3/23/10. (glm, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
357 ORDER regarding pretrial deadlines re 330 Stipulation filed by Derrick Clark, Motions in Limine due by 3/19/2010. Responses due by 3/26/2010.. Signed by Judge Charles R. Breyer on 3/23/2010. (be, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
358 Reply to Opposition TO PROPOSED WRITS OF HABEAS CORPUS AD TESTIFICANDUM FOR RANDY WRIGHT, GARY DAVENPORT, ANTHONY ROQUE, AND TAIJUAN COLBERT filed byState of California. (Quinn, Michael) (Filed on 3/26/2010) (Entered: 03/26/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 31 of 41

03/26/2010
03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010

359 Minute Entry: Discovery Hearing held on 3/26/2010 before Nandor J. Vadas (Date Filed: 3/26/2010). 1) Live video deposition testimony of four inmates: Ordered: that final four subpoenas be issued for inmates to appear to give testimony before Judge Breyer. Writ of Brandon Petties to be vacated. 2) Motion for Protective Order: Granted. 3) Plaintiffs Motion to Compel Production of Documents: Counsel directed to take a close look at documents being produced today. Start preparing for trial. 4) Supplemental Trial Exhibit List: Parties to submit a stipulated order prior to final pre−trial hearing. (Tape #FTR 10:07−10:29.) (sis, COURT STAFF) (Date Filed: 3/26/2010) (Entered: 03/26/2010)
360 WRIT of Habeas Corpus Ad Testificandum issued for Inmate Randy Wright. Signed by Judge Nandor J. Vadas on 3/26/10. (glm, COURT STAFF) (Filed on 3/26/2010) (Entered: 03/26/2010)
361 TRIAL BRIEF by State of California. (Quinn, Michael) (Filed on 3/26/2010) (Entered: 03/26/2010)
362 WRIT of Habeas Corpus Ad Testificandum issued for Inmate Taijaun Colbert. Signed by Judge Nandor J. Vadas on 3/26/10. (glm, COURT STAFF) (Filed on 3/26/2010) (Entered: 03/26/2010)
363 WRIT of Habeas Corpus Ad Testificandum issued for Inmate Anthony Roque. Signed by Judge Nandor J. Vadas on 3/26/10. (glm, COURT STAFF) (Filed on 3/26/2010) (Entered: 03/26/2010)
364 WRIT of Habeas Corpus Ad Testificandum issued for Gary Luis Davenport. Signed by Judge Nandor J. Vadas on 3/26/10. (glm, COURT STAFF) (Filed on 3/26/2010) (Entered: 03/26/2010)
365 TRIAL BRIEF by Derrick Clark. (Hardy, Alison) (Filed on 3/26/2010) (Entered: 03/26/2010)
366 Proposed Pretrial Order Joint Proposed Final Pretrial Order by State of California. (Attachments: # 1 Appendix B)(Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)
367 by Derrick Clark Appendix C to Joint Proposed Final Pretrial Order. (Norman, Sara) (Filed on 3/26/2010) Modified on 3/29/2010 (mcl, COURT STAFF). (Entered: 03/26/2010)
368 First MOTION in Limine to Limit Experts to the Opinions Expressed in their Reports filed by State of California. Motion Hearing set for 4/2/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)
369 Second MOTION in Limine to Exclude Documents not Produced in Discovery filed by State of California. Motion Hearing set for 4/2/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)
370 Third MOTION in Limine TO EXCLUDE REFERENCES TO VIOLATIONS OF THE CLARK REMEDIAL PLAN filed by State of California. Motion Hearing set for 4/2/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)
371 Third MOTION in Limine TO EXCLUDE REFERENCES TO VIOLATIONS OF THE CLARK REMEDIAL PLAN (Part 2) filed by State of California. (Attachments: # 1 Part2)(Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)
372 Fourth MOTION in Limine TO EXCLUDE EVIDENCE THAT DOES NOT REFLECT CURRENT AND ONGOING CONDITIONS IN STATE PRISONS filed by State of California. Motion Hearing set for 4/2/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)
373 Fifth MOTION in Limine TO EXCLUDE REFERENCES TO ISSUES PERTAINING TO OTHER PENDING CLASS ACTIONS filed by State of California. Motion Hearing set for 4/2/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 32 of 41

03/26/2010 03/26/2010 03/26/2010 03/29/2010 03/29/2010 03/29/2010 03/29/2010 04/01/2010
04/02/2010 04/02/2010 04/02/2010 04/05/2010 04/05/2010 04/05/2010 04/06/2010 04/06/2010

374 Sixth MOTION in Limine REGARDING THE SCOPE OF EVIDENCE PRESENTED BY INMATE WITNESSES filed by State of California. Motion Hearing set for 4/2/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Mossler, Julianne) (Filed on 3/26/2010) (Entered: 03/26/2010)
375 DECLARATION OF CAROLINE N. MITCHELL IN SUPPORT OF PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTIONS IN LIMINE by Derrick Clark. (Attachments: # 1 Exhibit 1−4)(Mossler, Julianne) (Filed on 3/26/2010) Modified on 3/29/2010 (mcl, COURT STAFF). (Entered: 03/26/2010)
376 Proposed Pretrial Order Appendix A −− Trial Exhibits by Derrick Clark. (Norman, Sara) (Filed on 3/26/2010) (Entered: 03/26/2010)
377 ORDER VACATING Writ of Habeas Corpus Ad Testificandum for Inmate Brandon Petties for April 26, 2010 Evidentiary Hearing re 354 Writ Issued. Signed by Judge Nandor J. Vadas on 3/29/10. (glm, COURT STAFF) (Filed on 3/29/2010) (Entered: 03/29/2010)
378 Declaration of J. Mossler in Support of 374 Sixth MOTION in Limine REGARDING THE SCOPE OF EVIDENCE PRESENTED BY INMATE WITNESSES filed byState of California. (Related document(s) 374 ) (Mossler, Julianne) (Filed on 3/29/2010) (Entered: 03/29/2010)
379 OBJECTIONS to Magistrate Judge's Orders Issuing Writs of Habeas Corpus Ad Testificandum by Derrick Clark. (Norman, Sara) (Filed on 3/29/2010) (Entered: 03/29/2010)
380 AFFIDAVIT of Sara Norman in Support of 379 Plaintiffs' Objections to Magistrate Judge's Orders Issuing Writs and Exhibits A−D in Support by Derrick Clark. (Norman, Sara) (Filed on 3/29/2010) Modified on 3/30/2010 (mcl, COURT STAFF). (Entered: 03/29/2010)
381 Second MOTION to Set Aside DEFENDANTS NOTICE OF RENEWED MOTION AND MOTION TO TERMINATE SETTLEMENT AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES filed by State of California. Motion Hearing set for 4/26/2010 09:00 AM in Courtroom 8, 19th Floor, San Francisco. (Zelidon−Zepeda, Jose) (Filed on 4/1/2010) (Entered: 04/01/2010)
382 ORDER regarding burden of proof. Signed by Judge Charles R. Breyer on April 2, 2010. (crblc2, COURT STAFF) (Filed on 4/2/2010) Modified on 4/5/2010 (mcl, COURT STAFF). (Entered: 04/02/2010)
383 Letter Brief Regarding Expert Document Production. (Norman, Sara) (Filed on 4/2/2010) (Entered: 04/02/2010)
385 Minute Entry: Status Conference (Date Filed: 4/2/2010). Status Conference set for 4/22/2010 04:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter − Not Reported.) (be, COURT STAFF) (Date Filed: 4/2/2010) (Entered: 04/05/2010)
384 Reply Memorandum DEFENDANTS OPPOSITION TO 329 PLAINTIFFS MOTION TO ENFORCE AND FOR FURTHER REMEDIAL ORDERS filed by State of California. (Zelidon−Zepeda, Jose) (Filed on 4/5/2010) Modified on 4/6/2010 (mcl, COURT STAFF). (Entered: 04/05/2010)
386 Declaration of Jose A. Zelidon−Zepeda in Support of 384 Reply Memorandum filed byState of California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 384 ) (Zelidon−Zepeda, Jose) (Filed on 4/5/2010) (Entered: 04/05/2010)
387 ORDER Setting Hearing on Expert Discovery Dispute. Hearing set for 4/6/2010 12:00 PM via telephone. Signed by Judge Vadas on 04/05/10. (cmw, COURT STAFF) (Filed on 4/5/2010) (Entered: 04/05/2010)
388 Letter Brief re: Scaramozzino Documents filed byState of California. (Attachments: # 1 Exhibit 1)(Zelidon−Zepeda, Jose) (Filed on 4/6/2010) (Entered: 04/06/2010)
389 NOTICE by Derrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods Plaintiffs' Submission of SCAR004−008 (Attachments: # 1 Exhibit 1 SCAR004−008)(Mitchell, Caroline) (Filed on 4/6/2010) (Entered:

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 33 of 41

04/06/2010 04/06/2010 04/09/2010 04/09/2010 04/09/2010 04/12/2010 04/12/2010 04/12/2010 04/12/2010
04/12/2010 04/12/2010 04/12/2010 04/12/2010
04/12/2010 04/12/2010 04/14/2010 04/14/2010 04/15/2010

04/06/2010)
390 ORDER compelling production of documents related to deposition of Dr. Scaramozzino and addressing other discovery−related issues. Signed by Judge Vadas on April 6, 2010.(cmw, COURT STAFF) (Filed on 4/6/2010) (Entered: 04/06/2010)
391 Minute Entry: Status Conference held re expert discovery issues (Date Filed: 4/6/2010). (Tape #FTR: 12−02−12:42.) (glm, COURT STAFF) (Date Filed: 4/6/2010) (Entered: 04/06/2010)
392 STIPULATION JOINT STIPULATION AND [PROPOSED] ORDER by State of California. (Zelidon−Zepeda, Jose) (Filed on 4/9/2010) (Entered: 04/09/2010)
393 OBJECTIONS to PLAINTIFF'S EXHIBIT LIST by State of California. (Zelidon−Zepeda, Jose) (Filed on 4/9/2010) (Entered: 04/09/2010)
394 NOTICE by State of California Defendants' Notice to Court of Witness Unavailability (Zelidon−Zepeda, Jose) (Filed on 4/9/2010) (Entered: 04/09/2010)
395 CLERKS NOTICE Evidentiary Hearing set for 5/10/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
396 STIPULATION AND PROTECTIVE ORDER. Signed by Judge Vadas on April 12, 2010. (cmw, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
397 MOTION to Shorten Time in Which to Hear Plaintiffs' Motion for a Non−Retaliation Order filed by Derrick Clark. (Schonfeld, Zoe) (Filed on 4/12/2010) (Entered: 04/12/2010)
398 Declaration of Zoe Schonfeld in Support of 397 MOTION to Shorten Time in Which to Hear Plaintiffs' Motion for a Non−Retaliation Order filed byDerrick Clark. (Attachments: # 1 Exhibit)(Related document(s) 397 ) (Schonfeld, Zoe) (Filed on 4/12/2010) (Entered: 04/12/2010)
399 Proposed Order re 397 MOTION to Shorten Time in Which to Hear Plaintiffs' Motion for a Non−Retaliation Order by Derrick Clark. (Schonfeld, Zoe) (Filed on 4/12/2010) (Entered: 04/12/2010)
400 MOTION for a Non−Retaliation Order filed by Derrick Clark. (Attachments: # 1 Proposed Order)(Norman, Sara) (Filed on 4/12/2010) Modified on 4/13/2010 (mcl, COURT STAFF). (Entered: 04/12/2010)
401 Declaration of Sara Norman in Support of 400 MOTION for a Non−Retaliation Order filed byDerrick Clark. (Related document(s) 400 ) (Norman, Sara) (Filed on 4/12/2010) Modified on 4/13/2010 (mcl, COURT STAFF). (Entered: 04/12/2010)
402 Declaration of Zoe Schonfeld in Support of 400 MOTION for a Non−Retaliation Order and Exhibits A and B in Support filed byDerrick Clark. (Related document(s) 400 ) (Norman, Sara) (Filed on 4/12/2010) Modified on 4/13/2010 (mcl, COURT STAFF). (Entered: 04/12/2010)
403 MOTION to Seal Document filed by Derrick Clark. (Attachments: # 1 Proposed Order)(Norman, Sara) (Filed on 4/12/2010) (Entered: 04/12/2010)
404 Declaration of Sara Norman filed byDerrick Clark. (Norman, Sara) (Filed on 4/12/2010) (Entered: 04/12/2010)
405 STIPULATION and [Proposed] Order to Vacate Writ of Habeas Corpus Ad Testificandum for Mr. Roque by Derrick Clark. (Godbold, Penelope) (Filed on 4/14/2010) (Entered: 04/14/2010)
406 STIPULATION AND ORDER Vacating Writ of Habeas Corpus Ad Testificandum as to Anthony Roque. Signed by Judge Vadas on April 14, 2010. (cmw, COURT STAFF) (Filed on 4/14/2010) (Entered: 04/14/2010)
407 Reply Memorandum DEFENDANTS OPPOSITION TO [ 403 PLAINTIFFS ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL AND 397 TO SHORTEN TIME TO HEAR PLAINTIFFS MOTION FOR A NON−RETALIATION ORDER filed

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 34 of 41

04/15/2010 04/15/2010 04/15/2010
04/19/2010 04/19/2010 04/19/2010 04/19/2010 04/19/2010 04/19/2010 04/19/2010 04/21/2010
04/21/2010
04/21/2010
04/21/2010 04/21/2010 04/22/2010
04/22/2010

byState of California. (Zelidon−Zepeda, Jose) (Filed on 4/15/2010) Modified on 4/16/2010 (mcl, COURT STAFF). (Entered: 04/15/2010)
408 ORDER by Judge Charles R. Breyer granting 403 Motion to Seal Document (be, COURT STAFF) (Filed on 4/15/2010) (Entered: 04/15/2010)
409 ORDER by Judge Charles R. Breyer granting 397 Motion to Shorten Time (be, COURT STAFF) (Filed on 4/15/2010) (Entered: 04/15/2010)
Set/Reset Deadlines as to 400 MOTION for a Non−Retaliation Order. Responses due by 4/19/2010. Motion Hearing set for 4/22/2010 04:00 AM. (be, COURT STAFF) (Filed on 4/15/2010) Modified on 4/16/2010 (mcl, COURT STAFF). (Entered: 04/15/2010)
410 Proposed Order Vacating Writ of Habeas Corpus Ad Testificandum by Derrick Clark. (Norman, Sara) (Filed on 4/19/2010) (Entered: 04/19/2010)
411 ORDER granting stipulation to vacate writ of habeas corpus ad testificandum as to Taijuan Colbert. Signed by Judge Vadas on April 19, 2010. (cmw, COURT STAFF) (Filed on 4/19/2010) (Entered: 04/19/2010)
412 Reply Memorandum re 400 MOTION for Protective Order filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 4/19/2010) (Entered: 04/19/2010)
413 Declaration of Officer Horne in Support of 412 Reply Memorandum filed byState of California. (Related document(s) 412 ) (Zelidon−Zepeda, Jose) (Filed on 4/19/2010) (Entered: 04/19/2010)
414 Declaration of Jose A. Zelidon−Zepeda in Support of 412 Reply Memorandum filed byState of California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 412 ) (Zelidon−Zepeda, Jose) (Filed on 4/19/2010) (Entered: 04/19/2010)
415 Proposed Order re 400 Motion for a Non−Retaliation Order by State of California. (Zelidon−Zepeda, Jose) (Filed on 4/19/2010) Modified on 4/20/2010 (mcl, COURT STAFF). (Entered: 04/19/2010)
416 Declaration of Ross Meier in Support of 412 Reply Memorandum filed byState of California. (Related document(s) 412 ) (Zelidon−Zepeda, Jose) (Filed on 4/19/2010) (Entered: 04/19/2010)
417 Brief re 400 MOTION for a Non−Retaliation Order Supplemental Brief and Request to Allow Witnesses to Testify by Videoconferencing filed byDerrick Clark. (Related document(s) 400 ) (Norman, Sara) (Filed on 4/21/2010) Modified on 4/22/2010 (mcl, COURT STAFF). (Entered: 04/21/2010)
418 Declaration of Sara Norman in Support of 417 Plaintiffs' Supplemental Brief in Support of Motion for Non−Retaliation Order and Request to Allow Witnesses to Testify by Videoconferening filed byDerrick Clark. (Norman, Sara) (Filed on 4/21/2010) Modified on 4/22/2010 (mcl, COURT STAFF). (Entered: 04/21/2010)
419 Declaration of Zoe Schonfeld in Support of 417 Plaintiffs' Supplemental Brief in Support of Motion for Non−Retaliation Order and Request to Allow Witnesses to Testify by Videoconferencing filed byDerrick Clark. (Norman, Sara) (Filed on 4/21/2010) Modified on 4/22/2010 (mcl, COURT STAFF). (Entered: 04/21/2010)
420 MOTION to Seal Document filed by Derrick Clark. (Attachments: # 1 Proposed Order)(Schonfeld, Zoe) (Filed on 4/21/2010) (Entered: 04/21/2010)
421 Declaration of Zoe Schonfeld in Support of 420 MOTION to Seal Document filed byDerrick Clark. (Attachments: # 1 Exhibit A)(Related document(s) 420 ) (Schonfeld, Zoe) (Filed on 4/21/2010) (Entered: 04/21/2010)
422 Declaration of Sara Norman in Support of 400 MOTION for Protective Order filed byDerrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. *** FILED UNDER SEAL *** (Related document(s) 400 ) (mcl, COURT STAFF) (Filed on 4/22/2010) (Entered: 04/22/2010)
423 Declaration of Sara Norman in Support of 417 Brief, filed byDerrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods.

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 35 of 41

04/22/2010
04/23/2010 04/23/2010 04/23/2010
04/23/2010 04/23/2010 04/23/2010 04/23/2010 04/23/2010 04/23/2010 04/26/2010 04/26/2010 04/27/2010 05/05/2010 05/05/2010 05/05/2010

*** FILED UNDER SEAL *** (Related document(s) 417 ) (mcl, COURT STAFF) (Filed on 4/22/2010) (Entered: 04/22/2010)
424 Minute Entry: Motion Hearing held on 4/22/2010 before Charles R. Breyer (Date Filed: 4/22/2010) re 400 MOTION for Protective Order filed by Derrick Clark, Status Conference held on 4/22/2010 before Charles R. Breyer (Date Filed: 4/22/2010), ***Motions terminated: 400 MOTION for Protective Order filed by Derrick Clark. (Court Reporter Debra Pas.) (be, COURT STAFF) (Date Filed: 4/22/2010) (Entered: 04/23/2010)
425 ORDER re 420 MOTION to Seal Document filed by Derrick Clark. Signed by Judge Charles R. Breyer on 4/22/2010. (be, COURT STAFF) (Filed on 4/23/2010) (Entered: 04/23/2010)
426 Letter Brief Requesting that the Court Immediately Vacate Writs of Habeas Corpus Ad Testificandum filed byDerrick Clark. (Attachments: # 1 Proposed Order, # 2 Proposed Order, # 3 Proposed Order)(Norman, Sara) (Filed on 4/23/2010) (Entered: 04/23/2010)
427 OBJECTIONS to PLAINTIFFS' AMENDED EXHIBIT LIST by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 4/23/2010) Modified on 4/26/2010 (mcl, COURT STAFF). (Entered: 04/23/2010)
428 Exhibit List AMENDED JOINT EXHIBIT LIST by State of California.. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service, # 2 Appendix A)(Zelidon−Zepeda, Jose) (Filed on 4/23/2010) (Entered: 04/23/2010)
429 Proposed Order and Stipulation to Vacate Writ of Habeas Corpus Ad Testificandum for Gary Davenport by Derrick Clark. (Norman, Sara) (Filed on 4/23/2010) (Entered: 04/23/2010)
430 Proposed Order and Stipulation to Vacate Writ of Habeas Corpus Ad Testificandum for Tryon Smith by Derrick Clark. (Norman, Sara) (Filed on 4/23/2010) (Entered: 04/23/2010)
431 Stipulation and ORDER vacating writ of habeas corpus ad testificandum as to Tryon Smith. Signed by Judge Vadas on April 23, 2010. (cmw, COURT STAFF) (Filed on 4/23/2010) (Entered: 04/23/2010)
432 Stipulation and ORDER vacating writ of habeas corpus ad testificandum as to Gary Luis Davenport. Signed by Judge Vadas on April 23, 2010. (cmw, COURT STAFF) (Filed on 4/23/2010) (Entered: 04/23/2010)
433 Letter from AG Letter to the Honorable Charles R. Breyer regarding Videoconferencing Availabilty (filer Zelidon−Zepeda, Jose A.). (Mossler, Julianne) (Filed on 4/23/2010) (Entered: 04/23/2010)
434 Reply to Opposition to 329 Plaintiffs' Motion for Enforcement and Further Remedial Orders filed byDerrick Clark. (Schonfeld, Zoe) (Filed on 4/26/2010) Modified on 4/27/2010 (mcl, COURT STAFF). (Entered: 04/26/2010)
435 Declaration of Zoe Schonfeld in Support of 434 Reply to Opposition to Plaintiffs' Motion for Enforcement and Further Remedial Orders filed byDerrick Clark. (Related document(s) 434 ) (Schonfeld, Zoe) (Filed on 4/26/2010) (Entered: 04/26/2010)
436 ORDER re Writs of Habeas Corpus Ad Testificandum. Signed by Judge Charles R. Breyer on April 27, 2010. (crblc2, COURT STAFF) (Filed on 4/27/2010) Modified on 4/28/2010 (mcl, COURT STAFF). (Entered: 04/27/2010)
437 STIPULATION Joint Scheduling Request by Derrick Clark. (Norman, Sara) (Filed on 5/5/2010) (Entered: 05/05/2010)
438 Proposed Order and Stipulation to Vacate Writ of Habeas Corpus Ad Testificandum for Ronald Blake by Derrick Clark. (Norman, Sara) (Filed on 5/5/2010) (Entered: 05/05/2010)
439 Proposed Order and Stipulation to Vacate Writ of Habeas Corpus Ad Testificandum for Phillip Houseknecht by Derrick Clark. (Norman, Sara) (Filed on 5/5/2010) (Entered: 05/05/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 36 of 41

05/05/2010 05/06/2010 05/07/2010 05/07/2010 05/07/2010 05/07/2010 05/10/2010
05/10/2010
05/10/2010 05/10/2010 05/11/2010 05/11/2010 05/12/2010 05/12/2010
05/13/2010

440 Proposed Order and Stipulation to Vacate Writ of Habeas Corpus Ad Testificandum for Randy Wright by Derrick Clark. (Norman, Sara) (Filed on 5/5/2010) (Entered: 05/05/2010)
441 ORDER vacating writ of habeas corpus ad testificandum issued March 23, 2010 re 438 Proposed Order filed by Derrick Clark. Signed by Judge Nandor J. Vadas on 5/6/10. (glm, COURT STAFF) (Filed on 5/6/2010) (Entered: 05/06/2010)
442 ORDER to vacate writ of Phillip Houseknecht issued march 23, 2010 re 439 Proposed Order filed by Derrick Clark. Signed by Judge Nandor J. Vadas on 5/7/10. (glm, COURT STAFF) (Filed on 5/7/2010) (Entered: 05/07/2010)
443 ORDER to vacate Writ of Habeas Corpus Ad Testificandum of Randy Wright issued March 26, 2010 re 440 Proposed Order filed by Derrick Clark. Signed by Judge Nandor J. Vadas on 5/7/10. (glm, COURT STAFF) (Filed on 5/7/2010) (Entered: 05/07/2010)
444 OBJECTIONS to DEFENDANTS OBJECTIONS TO PLAINTIFFS SECOND AMENDED EXHIBIT LIST by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 5/7/2010) (Entered: 05/07/2010)
445 Exhibit List SECOND AMENDED JOINT EXHIBIT LIST by State of California.. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service, # 2 Appendix A)(Zelidon−Zepeda, Jose) (Filed on 5/7/2010) (Entered: 05/07/2010)
446 MOTION to Compel Plaintiffs' Motion to Exclude, or in the Alternative Compel Discovery re Defendants' Rule 1006 Summaries, Exs. 1085−1088 filed by Derrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. Motion Hearing set for 5/10/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Mitchell, Caroline) (Filed on 5/10/2010) (Entered: 05/10/2010)
447 Declaration of Caroline N. Mitchell in Support of 446 MOTION to Compel Plaintiffs' Motion to Exclude, or in the Alternative Compel Discovery re Defendants' Rule 1006 Summaries, Exs. 1085−1088 filed byDerrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. (Attachments: # 1 Signature Page (Declarations/Stipulations), # 2 Exhibit A−D)(Related document(s) 446 ) (Mitchell, Caroline) (Filed on 5/10/2010) (Entered: 05/10/2010)
448 STIPULATION REGARDING INMATE DANIEL MENDEZ (V−42152) by State of California. (Zelidon−Zepeda, Jose) (Filed on 5/10/2010) (Entered: 05/10/2010)
449 Minute Entry: Evidentiary Hearing held on 5/10/2010 before Charles R. Breyer (Date Filed: 5/10/2010). Evidentiary Hearing set for 5/11/2010 09:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Margo Gurule/James Yeomans.) (be, COURT STAFF) (Date Filed: 5/10/2010) (Entered: 05/10/2010)
450 ORDER regarding inmate Daniel Mendez (V−42152) re 448 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 5/11/2010. (beS, COURT STAFF) (Filed on 5/11/2010) (Entered: 05/11/2010)
451 Minute Entry: Evidentiary Hearing held on 5/11/2010 before Charles R. Breyer (Date Filed: 5/11/2010). Evidentiary Hearing set for 5/12/2010 09:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter James Yeomans/Margo Gurule.) (be, COURT STAFF) (Date Filed: 5/11/2010) (Entered: 05/12/2010)
452 ORDER vacating writ of Ronald Blake issued on March 23, 2010 re 438 Proposed Order filed by Derrick Clark. Signed by Judge Nandor J. Vadas on 5/6/10. (glm, COURT STAFF) (Filed on 5/12/2010) (Entered: 05/12/2010)
453 Minute Entry: Evidentiary Hearing held on 5/12/2010 before Charles R. Breyer (Date Filed: 5/12/2010). Evidentiary Hearing set for 5/13/2010 09:15 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter James Yeomans/Margo Gurule.) (be, COURT STAFF) (Date Filed: 5/12/2010) Modified on 5/14/2010 (mcl, COURT STAFF). (Entered: 05/13/2010)
454 Minute Entry: Evidentiary Hearing held on 5/13/2010 before Charles R. Breyer (Date Filed: 5/13/2010). Evidentiary Hearing set for 5/17/2010 09:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter James Yeomans/Margo Gurule.) (be,

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 37 of 41

05/14/2010
05/14/2010
05/14/2010
05/14/2010
05/15/2010 05/15/2010 05/17/2010 05/18/2010 05/18/2010

COURT STAFF) (Date Filed: 5/13/2010) (Entered: 05/14/2010)
455 Transcript of Proceedings held on 05/10/10, before Judge CHARLES R. BREYER. Court Reporter/Transcriber JAMES YEOMANS, Telephone number 415−863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/12/2010. (mng, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
456 Transcript of Proceedings held on 05/11/10, before Judge CHARLES R. BREYER. Court Reporter/Transcriber JAMES YEOMANS, Telephone number 415−863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/12/2010. (mng, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
457 Transcript of Proceedings held on 05/12/10, before Judge CHARLES R. BREYER. Court Reporter/Transcriber JAMES YEOMANS, Telephone number 415−863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/12/2010. (mng, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
458 Transcript of Proceedings held on 05/13/10, before Judge CHARLES R. BREYER. Court Reporter/Transcriber JAMES YEOMANS, Telephone number Y. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/12/2010. (mng, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
459 MOTION to Clarify Scope of Testimony of Defendants' Rebuttal Expert filed by Derrick Clark. Motion Hearing set for 5/17/2010 09:00 AM. (Specter, Donald) (Filed on 5/15/2010) (Entered: 05/15/2010)
460 Declaration of Donald Specter in Support of 459 MOTION to Clarify Scope of Testimony of Defendants' Rebuttal Expert filed byDerrick Clark. (Related document(s) 459 ) (Specter, Donald) (Filed on 5/15/2010) (Entered: 05/15/2010)
461 Minute Entry: Evidentiary Hearing held on 5/17/2010 before Charles R. Breyer (Date Filed: 5/17/2010). Evidentiary Hearing set for 5/18/2010 09:15 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Margo Gurule/James Yeomans.) (be, COURT STAFF) (Date Filed: 5/17/2010) (Entered: 05/18/2010)
465 Minute Entry: Evidentiary Hearing held on 5/18/2010 before Charles R. Breyer (Date Filed: 5/18/2010). Evidentiary Hearing re Motion to Set Aside Agreement for 7/27/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter James Yeomans/Margo Gurule.) (be, COURT STAFF) (Date Filed: 5/18/2010) (Entered: 05/19/2010)
Set Deadlines as to 381 MOTION to Set Aside and MOTION TO TERMINATE SETTLEMENT AGREEMENT; 329 MOTION to Enforce Judgment CORRECTION OF DOCKET # 322 .. Opening Brief due 6/14/2010. Response due by 7/2/2010. Reply due by 7/14/2010. Motion Hearing set for 7/27/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 5/18/2010) (Entered: 05/19/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 38 of 41

05/19/2010 05/19/2010
05/19/2010
05/20/2010 05/20/2010 05/20/2010 05/21/2010 05/21/2010 05/24/2010 05/24/2010 05/25/2010 05/25/2010 05/25/2010 05/25/2010 05/25/2010

462 STIPULATION REGARDING RONALD BLAKE (G−42383) by State of California. (Zelidon−Zepeda, Jose) (Filed on 5/19/2010) (Entered: 05/19/2010)
463 Transcript of Proceedings held on 05/17/10, before Judge CHARLES R. BREYER. Court Reporter/Transcriber JAMES YEOMANS, Telephone number (415)722−0238. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/17/2010. (mng, COURT STAFF) (Filed on 5/19/2010) (Entered: 05/19/2010)
464 Transcript of Proceedings held on 05/18/10, before Judge CHARLES R. BREYER. Court Reporter/Transcriber JAMES YEOMANS, Telephone number (415)722−0238. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/17/2010. (mng, COURT STAFF) (Filed on 5/19/2010) (Entered: 05/19/2010)
466 ORDER Regarding Ronald Blake (G−42383) re 462 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 5/19/2010. (be, COURT STAFF) (Filed on 5/20/2010) (Entered: 05/20/2010)
467 STIPULATION STIPULATION REGARDING GARY DAVENPORT (K72303) by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 5/20/2010) (Entered: 05/20/2010)
468 Exhibit Location : 3 boxes, Shelf 110. (mcl, COURT STAFF) (Entered: 05/20/2010)
469 STIPULATION STIPULATION REGARDING BRANDON PETTIES (G−36952) by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 5/21/2010) (Entered: 05/21/2010)
470 STIPULATION STIPULATION REGARDING RANDY WRIGHT (F−39060) by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Zelidon−Zepeda, Jose) (Filed on 5/21/2010) (Entered: 05/21/2010)
471 EXHIBITS ADMITTED. (Attachments: # 1 Exhibits Admitted, # 2 Exhbits Admitted, # 3 Exhibits Admitted)(be, COURT STAFF) (Filed on 5/24/2010) (Entered: 05/24/2010)
472 Trial log. (be, COURT STAFF) (Filed on 5/24/2010) (Entered: 05/24/2010)
473 ORDER regarding Brandon Petties (G−36952) re 469 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 5/24/2010. (be, COURT STAFF) (Filed on 5/25/2010) (Entered: 05/25/2010)
474 ORDER regarding Randy Wright (F−39060) re 470 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 5/24/2010. (be, COURT STAFF) (Filed on 5/25/2010) (Entered: 05/25/2010)
475 STIPULATION to Supplemental Trial Exhibits and [Proposed] Order by Derrick Clark. (Roberts, Douglas) (Filed on 5/25/2010) (Entered: 05/25/2010)
476 ORDER regarding Gary Davenport (K2303) 467 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 5/25/2010. (be, COURT STAFF) (Filed on 5/25/2010) (Entered: 05/25/2010)
477 MOTION to Amend/Correct and [Proposed] Order to Add Plaintiffs as Representatives of Class filed by Derrick Clark. Motion Hearing set for 7/27/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Godbold, Penelope) (Filed on 5/25/2010) (Entered: 05/25/2010)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 39 of 41

05/28/2010 06/14/2010
06/14/2010 06/25/2010 07/02/2010 07/06/2010
07/06/2010 07/14/2010 07/14/2010 07/23/2010 07/23/2010
07/23/2010 07/27/2010 07/28/2010 08/06/2010
08/13/2010
08/16/2010

478 ORDER re 475 Stipulation to Supplemsental Trial Exhibits filed by Derrick Clark. Signed by Judge Charles R. Breyer on 5/26/2010. (be, COURT STAFF) (Filed on 5/28/2010) (Entered: 05/28/2010)
479 Appendix of Authorities Cited in Plaintiffs' [Proposed] Findings of Fact and Conclusions of Law filed byDerrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Mitchell, Caroline) (Filed on 6/14/2010) (Entered: 06/14/2010)
480 Proposed Findings of Fact by Derrick Clark and Proposed Conclusions of Law and Proposed Order. (Attachments: # 1 Proposed Order)(Norman, Sara) (Filed on 6/14/2010) (Entered: 06/14/2010)
481 ERRATA re 480 Proposed Findings of Fact Corrected Table of Authorities by Derrick Clark. (Norman, Sara) (Filed on 6/25/2010) (Entered: 06/25/2010)
482 Proposed Findings of Fact by State of California. (Zelidon−Zepeda, Jose) (Filed on 7/2/2010) (Entered: 07/02/2010)
483 NOTICE of Errata re 480 by Derrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Jack Von Gunten, Ambrose Woods re 480 Proposed Findings of Fact ERRATA AND CORRECTED FILING (Mitchell, Caroline) (Filed on 7/6/2010) Modified on 7/7/2010 (mcl, COURT STAFF). (Entered: 07/06/2010)
484 Reply Memorandum re 477 MOTION to Amend/Correct and [Proposed] Order to Add Plaintiffs as Representatives of Class filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 7/6/2010) (Entered: 07/06/2010)
485 Reply Memorandum Plaintiffs' Reponse to Defendants' Proposed Findings and Conclusions filed byDerrick Clark. (Attachments: # 1 Proposed Order, # 2 Proposed Order)(Norman, Sara) (Filed on 7/14/2010) (Entered: 07/14/2010)
486 Declaration of Sara Norman in Support of 485 Reply Memorandum Plaintiffs' Reponse to Defendants' Proposed Findings and Conclusions filed byDerrick Clark. (Related document(s) 485 ) (Norman, Sara) (Filed on 7/14/2010) (Entered: 07/14/2010)
487 CLERKS NOTICE vacating hearing on 7/27/2010 (be, COURT STAFF) (Filed on 7/23/2010) (Entered: 07/23/2010)
488 Reply Memorandum Defendants' Request to File Sur−Response to Plaintiffs' Response to Defendants' Proposed Findings of Fact and Conclusions of Law filed byState of California. (Attachments: # 1 Certificate of Service.No Paper)(Zelidon−Zepeda, Jose) (Filed on 7/23/2010) (Entered: 07/23/2010)
489 Declaration of Richard Subia in Support of 488 Reply Memorandum, filed byState of California. (Attachments: # 1 Exhibit 1, # 2 Cert. of Srv.No Paper)(Related document(s) 488 ) (Zelidon−Zepeda, Jose) (Filed on 7/23/2010) (Entered: 07/23/2010)
490 Memorandum in Opposition to 488 Defendants' Request to File a Sur−Response filed byDerrick Clark. (Norman, Sara) (Filed on 7/27/2010) Modified on 7/28/2010 (ga, COURT STAFF). (Entered: 07/27/2010)
491 ORDER. Signed by Judge Charles R. Breyer on July 28, 2010. (crblc2, COURT STAFF) (Filed on 7/28/2010) (Entered: 07/28/2010)
492 RESPONSE to re 485 Reply Memorandum SUR−RESPONSE TO PLAINTIFF'S RESPONSE TO DEFENDANTS' PROPOSED FINDINGS OF FACT AND CONCLUSION OF FACTS by State of California. (Zelidon−Zepeda, Jose) (Filed on 8/6/2010) (Entered: 08/06/2010)
493 Reply Memorandum Plaintiffs' Response to 492 Defendants' Surreply filed byDerrick Clark, Larry Dixon, Jr, Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Mitchell, Caroline) (Filed on 8/13/2010) Modified on 8/16/2010 (mcl, COURT STAFF). (Entered: 08/13/2010)
494 Memorandum in Opposition Plaintiffs' Objections to 489 and Motion to Strike July 2010 Division of Adult Institution's Report filed byDerrick Clark, Larry Dixon, Jr,

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 40 of 41

08/19/2010 08/19/2010 08/26/2010 08/27/2010 09/07/2010 09/16/2010 09/29/2010 10/01/2010 10/15/2010 10/18/2010 10/18/2010 10/21/2010 12/15/2010 12/17/2010 12/30/2010 01/03/2011 06/07/2011

Mark Mitchell Morino, Milton Silva, Jack Von Gunten, Ambrose Woods. (Mitchell, Caroline) (Filed on 8/16/2010) Modified on 8/17/2010 (mcl, COURT STAFF). (Entered: 08/16/2010)
495 Reply Memorandum OPPOSITION TO PLAINTIFFS MOTION TO STRIKE JULY 2010 DIVISION OF ADULT INSTITUTIONS REPORT filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 8/19/2010) (Entered: 08/19/2010)
496 Declaration of Jose A. Zelidon−Zepeda in Support of 495 Reply Memorandum filed byState of California. (Related document(s) 495 ) (Zelidon−Zepeda, Jose) (Filed on 8/19/2010) (Entered: 08/19/2010)
497 ORDER. Signed by Judge Charles R. Breyer on August 26, 2010. (Attachments: # 1 Proposed Order)(crblc1, COURT STAFF) (Filed on 8/26/2010) (Entered: 08/26/2010)
498 ORDER by Judge Charles R. Breyer granting 477 Motion to Add Plaintiffs as Representative of Class. (be, COURT STAFF) (Filed on 8/27/2010) (Entered: 08/27/2010)
499 OBJECTIONS to 497 Court's Proposed Findings and Conclusions by Derrick Clark. (Attachments: # 1 Appendix)(Norman, Sara) (Filed on 9/7/2010) Modified on 9/15/2010 (ga, COURT STAFF). (Entered: 09/07/2010)
500 ORDER by Judge Charles R. Breyer granting in part and denying in part 329 Motion to Enforce Judgment; denying 381 Motion to Set Aside (crblc1, COURT STAFF) (Filed on 9/16/2010) (Entered: 09/16/2010)
501 STIPULATION And Proposed Order Re Attorney Fees by Derrick Clark. (Specter, Donald) (Filed on 9/29/2010) (Entered: 09/29/2010)
502 ORDER regarding resolution of attorneys' fees re 501 Stipulation filed by Derrick Clark. Signed by Judge Charles R. Breyer on 10/1/2010. (be, COURT STAFF) (Filed on 10/1/2010) (Entered: 10/01/2010)
503 STIPULATION and Proposed Order Governing Plaintiffs' Disclosure of Fees Material by Derrick Clark. (Norman, Sara) (Filed on 10/15/2010) (Entered: 10/15/2010)
504 STIPULATION AMENDING DEADLINES REGARDING ATTORNEYS FEES NEGOTIATIONS; [PROPOSED] ORDER by State of California. (Zelidon−Zepeda, Jose) (Filed on 10/18/2010) (Entered: 10/18/2010)
505 ORDER Governing Plaintffs' Disclosure of Documents Containing Time Entries re 503 Stipulation filed by Derrick Clark. Signed by Judge Charles R. Breyer on 10/18/2010. (be, COURT STAFF) (Filed on 10/18/2010) (Entered: 10/18/2010)
506 ORDER Amending deadlines regarding Attorney's Fees Negotiations re 504 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 10/20/2010. (be, COURT STAFF) (Filed on 10/21/2010) (Entered: 10/21/2010)
507 STIPULATION TO EXTEND TIME FOR REMEDIAL PLAN AND MOTION FOR ATTORNEYS FEES; [PROPOSED] ORDER by State of California. (Zelidon−Zepeda, Jose) (Filed on 12/15/2010) (Entered: 12/15/2010)
508 ORDER to extend time re 507 Stipulation filed by State of California Motions due by 1/21/2011.. Signed by Judge Charles R. Breyer on 12/16/2010. (be, COURT STAFF) (Filed on 12/17/2010) (Entered: 12/17/2010)
509 STIPULATION REGARDING ATTORNEY'S FEES; [PROPOSED] ORDER by State of California. (Zelidon−Zepeda, Jose) (Filed on 12/30/2010) (Entered: 12/30/2010)
510 ORDER regarding attorney's fees re 509 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 1/3/2011. (be, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/03/2011)
511 STIPULATION STIPULATION EXTENDING DEADLINE FOR PAYMENT OF PLAINTIFFS COUNSELS FIRST QUARTER 2011 FEES; [PROPOSED] ORDER by State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(O'Bannon, Danielle) (Filed on 6/7/2011) (Entered: 06/07/2011)

Case: 3:96-cv-1486 As of: 11/14/2018 05:51 PM PST 41 of 41

06/09/2011 07/19/2011 07/22/2011 06/09/2014 07/11/2014
07/18/2014
12/16/2015
12/22/2015 02/10/2017 05/14/2018

512 ORDER extending deadline for payment of plaintiffs' counsel's first quarter 2011 fees re 511 Stipulation, filed by State of California. Signed by Judge Charles R. Breyer on 6/8/2011. (be, COURT STAFF) (Filed on 6/9/2011) (Entered: 06/09/2011)
513 STIPULATION Regarding Plaintiffs' Counsel's Participation in Defendants' Strike Teams; Proposed Order by State of California. (Zelidon−Zepeda, Jose) (Filed on 7/19/2011) (Entered: 07/19/2011)
514 ORDER regarding participation in defendants' strike teams re 513 Stipulation filed by State of California. Signed by Judge Charles R. Breyer on 7/22/2011. (beS, COURT STAFF) (Filed on 7/22/2011) (Entered: 07/22/2011)
515 CLERKS NOTICE re withdrawal of exhibits. (mclS, COURT STAFF) (Entered: 06/09/2014)
516 STIPULATION WITH PROPOSED ORDER REGARDING JOINT INTERVIEWS CONDUCTED BY THE PARTIES AS PART OF THE JOINT MONITORING AND/OR AUDITING PROCESS filed by State of California. (O'Bannon, Danielle) (Filed on 7/11/2014) (Entered: 07/11/2014)
517 ORDER by Judge Charles R. Breyer granting 516 Stipulation REGARDING JOINT INTERVIEWS CONDUCTED BY THE PARTIES AS PART OF THE JOINT MONITORING AND/OR AUDITING PROCESS (beS, COURT STAFF) (Filed on 7/18/2014) (Entered: 07/18/2014)
518 STIPULATION WITH PROPOSED ORDER RE: REVISIONS TO REMEDIAL PLANS filed by State of California. (Attachments: # 1 Exhibit attachment 1, # 2 Exhibit attachment 2, # 3 Exhibit attachment 3)(O'Bannon, Danielle) (Filed on 12/16/2015) (Entered: 12/16/2015)
519 STIPULATION AND ORDER RE: REVISIONS TO REMEDIAL PLAN 518 . Signed by Judge Charles R. Breyer on 12/21/2015. (afmS, COURT STAFF) (Filed on 12/22/2015) (Entered: 12/22/2015)
520 NOTICE of Change In Counsel by Sharon Anne Garske NOTICE OF ASSOCIATION OF COUNSEL (Garske, Sharon) (Filed on 2/10/2017) (Entered: 02/10/2017)
521 NOTICE of Change In Counsel by Sharon Anne Garske NOTICE OF CHANGE OF COUNSEL (Garske, Sharon) (Filed on 5/14/2018) (Entered: 05/14/2018)

 
 I

I

L
Amended March '1, 2002

Table of Contents

Ie

PO LI CY ~ ~ ~"" ~., ~ ~ ~ 1 e ... 8.e

.... e ...... " ... " .. Q o .... G &8 $ 0 ....... " e .......... ., .. d ........ 0 ........................... eo .. ...... ...... ............

II. IDENTIFICATION...................................................................................3

A. CATEGORIES OF ADAPTIVE SUPPORT SERVICES ON CDC FORM 128C-2 ............... 3

B. SCREENING PROCESS ........................................................................................ 4

I. PHASE I ......................................................................................................4

a) Quick Test ............................................................................................ 4

b) TONI-Third Edition .............................................................................. 5

2. PHASE II ..................................................................................................... 5 3. PHASE III ...................................................................................................5

a) Adaptive Deficits .................................................................................. 6

(J) Communication Skills ................................................................... 6

(2) Academic Skills ............................................................................ 6

(3) Self-Care Skills ............................................................................. 6

(4) Socialization Skills ....................................................................... 6

(5) Self-Advocacy/Use of Inmate Resources ....................................... 6

(6) Work.. ........................................................................................... 7

(7) Health and Safety .......................................................................... 7

(8) Self-Direction ............................................................................... 7

(9) Leisure .......................................................................................... 7

b) Recommendations for Adaptive Support Services .................................. 7

(l) Prompting ..................................................................................... 8

(2) Coaching ....................................................................................... 8

(3) Assisting ....................................................................................... 8

(4) Monitoring .................................................................................... 8

4. PHASE IV ................................................................................................... 9

C. RECEPTION CENTER SCREENING/PROCESSING .................................................... 9

D. ADJUSTMENTS DUE TO EXTENDED RECEPTION CENTER STA Y ........................... 11

E. ACCOMMODATIONS ........................................................................................ 12 I. PRIVILEGES .............................................................................................. 12

2. WORK GROUP CREDITS ............................................................................. 13

F. IDENTIFICATION OF INMA TES WITHIN THE EXISTING POPULATION .................... 14

I. DATABASE SEARCH ................................................................................... 14

2. CLASSIFICATION COMMITTEE ACTIONS ...................................................... 14

3. STAFF REFERRAL ...................................................................................... 15

G. EXPEDITED TRANSFERS .................................................................................. 16

H. ASSESSMENT OF IDENTIFICATION PROCESS ...................................................... 17

1. VERIFICATION ................................................................................................ 17

Ill. STANDARDS ........................................................................................... 20
A. PLACEMENT CRITERIA .................................................................................... 20
B. CATEGORIES .................................................................................................. 20 I. MENTAL RETARDATION ............................................................................. 20 a) NCF ................................................................................................... 20 b) DDO ................................................................................................... 20
c) NDD ................................................................................................... 20 d) DDI ................................................................................................... 21
e) DIA ................................................................................................... 22 j) DD2 ................................................................................................... 22 g) DD3 ................................................................................................... 23 2. AUTISM/CEREBRAL PALSy/EpILEPSY ......................................................... 23 C. INTERDISCIPLINARY SUPPORT TEAM ................................................................ 24 D. ApPEAL PROCESS FOR OBTAINING ACCOMMODATIONS ..................................... 25 I. ApPEAL SCREENING PROCESS .................................................................... 26 E. REQUEST FOR REASONABLE ACCOMMODATION (CDC FORM 1824) ................... 27 F. JUSTIFICATION FOR DENIAL OF REQUESTS FOR REASONABLE ACCOMMODATION ................................................................. 27 I. LEGITIMATE PENOLOGICAL INTEREST......................................................... 27 2. UNDUE BURDEN AND FUNDAMENTAL AL TERATION DEFENSES .................... , 27 3. DIRECT THREAT ........................................................................................ 28 4. EQUALLY EFFECTIVE MEANS ..................................................................... 28
IV. INMATE PLACEMENT........................................................................ 28
A. PLACEMENT GUIDELINES ................................................................................ 28 B. CLASSIFICATION ............................................................................................ 30 C. DESIGNATED DDP FACILITIES ........................................................................ 31
1. DDO ......................................................................................................... 31 2. DDl, D1A, & DD2 ................................................................................... 31 3. DD3 ......................................................................................................... 32
4. AUTISM/CEREBRAL PALSy/EpILEPSY ......................................................... 32
D. CONSERVATION CAMPS .................................................................................. 33 E. SPECIAL HOUSING PLACEMENT ....................................................................... 33
I. ADMINISTRATIVE SEGREGATION UNIT ........................................................ 33
2. SECURITY HOUSING UNIT .......................................................................... 33
3. PROTECTIVE HOUSING UNIT ...................................................................... 34
4. CONDEMNED HOUSING .............................................................................. 34 5. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE (USINS) .... 34
F. SUBSTANCE ABUSE TREATMENT AND CIVIL ADDICT PROGRAMS ....................... 35
G. COMMUNITY CORRECTIONAL REENTRY CENTERS ............................................. 36 H. F AMIL Y FOUNDATIONS PROGRAM ................................................................... 37

1. COMMUNITY PRISONER MOTHER PROGRAM ..................................................... 37 J RESTITUTION CENTER ..................................................................................... 3 8 K. DD3 PROGRAM ..............................................•............................................... 3 8 L. DEPARTMENT OF DEVELOPMENTAL SERVICES PLACEMENT ............................... 38
V. TRACKING .............................................................................................. 38
A. CLASSIFICATION TRACKING SYSTEM ............................................................... 38 E. INSTITUTION TRACKING ................................................................. " ............... 3 8 C. INSTITUTION HEALTH CARE TRACKING ......... " ............................... " ............... 39
VI. INSTITUTION ACTIVITIES AND SERVICES.............................. 39
A. SAFETY AND SECURITy .................................... " ................................ " ........... 39 E. HOUSING ....................................................................................................... 39 C. IDENTIFICATION OF INDIVIDUAL ADAPTIVE SUPPORT SERVICES ....................... .40 D. STAFFING ............................................................ :....................................... ".41
]. AMERICANS WITH DISABILITIES ACT COORDINATOR ..... " ... " .......... " .......... .41 2. CORRECTIONAL OFFICER ............. " ..... " .. " .... " ............... " ... "." ..... " ........... 42 3. THE DDP COUNSELOR (CC-I) ..................... """." .. " ........................ "".,, .. .42 4. DEVELOPMENTALLY DISABLED PROGRAM TEACHER ........................ " ........ .43 5. LIBRARY TECHNICAL ASSISTANT ............................. "." ............................ .44 6. CLINICAL STAFF ....................................................................................... 44 E. CONFIDENTIALITY ............................................................................. " ........... 45 F. COUNT AND MOVEMENT ................................................................................ .45 G. NOTICES, ANNOUNCEMENTS, AND ALARMS .................................................... .45 ]. WRlTTEN MATERIALS ................................. " ............................................. 45 2. VERBAL ANNOUNCEMENTS ........................................................................ 46 H. SPECIAL IDENTIFICATION ................................................................................ 46 1. EVACUATION PROCEDURES ............................................................................. 46 J INMATE SERVICES AND ACTIVITIES ................................................................ .46 1. ORIENTATION PROCESS ........................... " ................................................ 46
2. VISITING POLICY .................................... " ................................... " ........... 47 3. RECREATION ............................................................................................. 47 4. RELIGIOUS SERVICES ................................................................... " ........... 47 5. FOOD SERVICES ........................................................................................ 47 6. LIBRARY ACCESS ...................................................................................... 47
7. TRANSPORTATION ..................................................... " .............................. 47 8. MAIL ........................................................................................................ 47 9. RELEASE PROGRAM STUDY ...................... " ................................................ 47 K. MEDICAL CARE .............................................................................................. 48 L. DISCIPLINARY PROCESS .................................................................................. 49
iii

VII. INMATE EDUCATION AND WORK ASSIGNMENTS ............... 51
A. ASSIGNMENT .................................................................................................. 51 B. ESSENTIAL FUNCTIONS ................................................................................... 52 C. ASSIGNMENT MONITORING ............................................................................. 52 D. EDUCATION PROGRAM .................................................................................... 52
1. ACADEMIC ASSIGNMENTS .......................................................................... 52 a) Identification ...................................................................................... 53 b) Classification ...................................................................................... 53 c) Assessment ......................................................................................... 53 d) Student Study Team ............................................................................ 54 e) Individually Tailored Education Plan .................................................. 54
2. VOCATIONAL ASSIGNMENTS ...................................................................... 55
VIII. PAROLE FIELD OPERATIONS ........................................................ 56
A. POLICY .......................................................................................................... 56 B. RELEASE PROGRAM STUDy ............................................................................. 56
C. ORIENTATION AND PAROLE EXPECTATIONS ..................................................... 57
D. FIELD SUPERVISION/OFFICE VISITS ................................................................. 57 E. WRITTEN MATERIALS ..................................................................................... 58 F. PAROLE OUTPATIENT CLINICS .......................................................................... 58
G. REVOCATION HEARINGS ................................................................................. 58
H. EVACUATION PROCEDURES ............................................................................. 58
IX. ROLE OF THE REGIONAL CENTER ............................................. 58 X. TRAINING ............................................................................................... 59
A. GENERAL ....................................................................................................... 59 B. NEW EMPLOYEE TRAINING ............................................................................. 60 C. INSTITUTIONAL PSYCHOLOGISTS AND SOCIAL WORKERS .................................. 61 D. CUSTODY STAFF ............................................................................................. 61 E. CLINICIANS IN PAROLE OUTPATIENT CLINICS .................................................. 62
XI. COMPLIANCE REVIEWS................................................................... 62
iv

CLARK v. CALIFORNIA
REMEDIAL PLAN
1. POLICY
It is the policy of the California Department of Corrections (CDC) to provide access to its programs and services to inmates and parolees with disabilities, with or without reasonable accommodation, consistent with legitimate penological interests. No qualified inmate or parolee with a disability, as defined in Title 42 of the United States Code, Section 12101-12213 shall, because of that disability, be excluded from participation in or denied the benefits of services, programs, or activities of the Department or be subjected to discrimination.
The Developmental Disability Program (DDP) is the Department's plan, policies, and procedures to assure identification; appropriate classification, housing. and protection; and nondiscrimination of inmates/parolees with developmental disabilities. The DDP applies to all of the Department's institutions/facilities. to all programs that the Department provides or operates, and to all inmates/parolees who are developmentally disabled (DD)-that is, inmates/parolees who have developmental disabilities.
Developmental disability is defined as a disability that originates before an individual attains the age of 18, continues-or can be expected to continue-indefinitely, and constitutes a substantial handicap for that individual. It includes mental retardation, cerebral palsy, epilepsy, and autism. It also includes disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for mentally retarded individuals, but does not include other disabling conditions that are solely physical in nature.
Mental retardation is defined as significantly subaverage intellectual functioning (i.e., an Intelligence Quotient [IQJ of approximately 70 or below on an individually-administered IQ test) with concurrent deficits or impairments in adaptive functioning (i.e .• a person's effectiveness in meeting expected standards for his/her age by his/her cultural group) in at least two of the following areas: communication, self-care, home living,
social/interpersonal skills, use of [inmate1 resources, self-direction, functional academic
skills, work, leisure, and health and safety. The condition must have occurred before age 18.
The primary objective of the DDP is to provide equal access to programs and services to inmates/parolees with cognitive and adaptive deficits. The CDC recognizes the needs of low functioning inmates regardless of the age of onset of the disability.
Criteria for inclusion in the DDP are:
.:. Low cognitive functioning (usually IQ of 75 or below); and

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.:. Concurrent deficits or impairments in adaptive functioning. Adaptive functions are defined as abilities necessary to care for oneself and to access programming/services in the correctional setting.
Both criteria must be met. On a case-by-case basis, inmates with an IQ above 75 may be included in the DDP if their adaptive functioning is poor and their needs are not met through another program, e.g., Disability Placement Program (DPP), Enhanced Outpatient Program (EOP), Human Immunodeficiency Virus (HIV).
CAUTION: Cognitive/adaptive deficits entirely due to mental/physical illnesses requiring long-term hospital care are not criteria for inclusion in the DDP. Inmates with severe mental/physical illnesses may exhibit deficits in cognitive and adaptive abilities. Such inmates/parolees may be excluded from the DDP if they meet both of the following criteria:
.:. Their mental/physical illness is entirely responsible for these deficits. That is, they would not need the adaptive supports of DDP except for their illness; and
.:. Their illness is being treated in a setting such as EOP, Outpatient Housing Unit (OHU), Correctional Treatment Center (CTC), General Acute Care Hospital (GACH), Acute Care Hospital (ACH), Department of Mental Health (DMH), etc.
For example, an inmate with advanced dementia requiring 24-hour nursing care may be excluded from the DDP. On the other hand, an inmate outside the hospital setting with mild dementia, who has low cognitive scores and requires adaptive supports to program, should be included in the DDP.
"Clustering" will help the DDP. Clustering is housing groups of inmates who have similar needs together in designated sites. Inmates with developmental disabilities will be assigned to a designated DDP institution/facility that has the program capabilities to meet their needs. From a clinical perspective, inmates identified as having a developmental disability will function adequately in institutional settings and access programs with minimal assistance. Therefore, inmates with developmental disabilities are to be processed through reception centers (RCs) and housed in designated DDP institutions consistent with existing departmental criteria, policy, and procedures, unless otherwise directed by policy contained within this plan.
Screening all inmates' cognitive abilities and adaptive functioning skills within a correctional environment, as opposed to a community setting, will identify developmentally disabled inmates. The CDC's assessments are not intended to be an indication of an inmate's ability to function in the community, nor to be used by the California Department of Developmental Services (DDS) as a basis for its evaluation process or decision to provide services upon an inmate's release to parole.
The CDC will make reasonable efforts to secure funding necessary to implement the provisions of this plan. Implementation of these provisions became effective upon approval of the budget for the Fiscal Year 1999/2000, with full implementation by January 1, 2000. Local implementation was carried out in three phases beginning December I, 1999, with eight RCs: California Correctional Institution (CCI), California

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DIA

Same functional ability as DD 1, but there are victimization concerns and housing in a designated DDP building/unit/wing is required.

DD2

Inmate/parolee can function successfully in a OP setting in a designated DDP institution consistent with other case factors. However, inmate requires prompts to initiate self-care and/or daily living activities and may have victimization concerns, thereby requiring housing in a designated DDP building/unit/wing.

DD3

Inmate requires placement in a highly structured, specialized program in a designated DDP institution capable of meeting his/her needs. Inmate requires constant prompts, and will not complete tasks without them.

(See Section III, B, for expanded definitions.)

B. SCREENING PROCESS

All inmates will be screened for developmental disabilities usmg standard instruments, as described below, to ensure uniform application of departmental policies and procedures for screening, identifying, and verifying developmental disabilities and placing identified inmates in appropriate settings. A four-phase process and clinical judgment will be used to identify those inmates who fit the criteria for developmental disabilities. Phase I should take place within seven days after an inmate arrives at an RC or clinical staff receives a referral. Phase II should take place within seven days after an inmate fails the test administered in Phase 1. Phase III should take place within seven days after an inmate fails the test administered in Phase II.

Phase I and Phase II cognitive tests may be refused and, with justification, skipped. The later phase is due seven days after the decision to refuse or skip a phase is documented. The Clark Adaptive Support Evaluation (CASE), which is used for Phase III and Phase IV, is not dependent on inmate cooperation; however, if an inmate refuses to be interviewed for the CASE, the clinician must make use of collateral information such as observation of inmate and his living conditions, staff interviews, central file (C-File), unit health record, and other records.

The four-phase process will involve the following:

1. PHASEI

Cognitive skills will be tested using either the Quick Test or the Test of Nonverbal Intelligence (TONI-Third Edition) based on established criteria. Inmates will not be informed of their estimated IQ.

a) Quick Test: A cognitive screening tool used in a variety of settings to provide a rapid estimate of cognitive functioning. The Quick Test takes approximately ten minutes to administer. This test will be used to test those inmates who are fluent in English and are not hearing impaired. If an examiner realizes that an

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Institution for Women (CIW), California State Prison-San Quentin (SQ), Central California Women's Facility (CCWF), Deuel Vocational Institution (DVI), North Kern State Prison (NKSP), Valley State Prison for Women (VSPW), and Wasco State Prison (WSP); and December 15, 1999, for the remaining four RCs: High Desert State Prison (HDSP), Northern California Women's Facility (NCWF), Richard J. Donovan Correctional Facility (RJD), and California Institution for Men (CIM). Effective February 1, 2000, all institutions were instructed to implement the Remedial Plan, as outlined in Section II.

Once the Remedial Plan has been finalized and filed with the court, CDC can seek to modify the plan only if there is a significant change in the facts or the law. Plaintiffs' counsel may also seek modification if the plan does not effectively remedy CDC's violations or if a modification is necessary to ensure plaintiffs receive adequate supportive services to which they are entitled under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, or the Constitution. Any party wishing to modify the plan after it has been filed with the court must obtain an agreement from the other parties or an order from the court.

After the Remedial Plan is approved by the court, the CDC will reevaluate the plan annually with input from the court's experts and inmates' counsel to determine whether there are adequate staff resources to effectively provide the services required by this plan.

The CDC will designate central office staff in the Institutions Division and the Health Care Services Clark Coordinator to respond to inquiries from plaintiffs' attorneys as well as inqumes from inmates/parolees with developmental disabilities and the implementation of this plan. Inmates and parolees must exhaust administrative remedies at their institution/parole region before raising issues to the Director's level.

II. IDENTIFICATION

A. CATEGORIES OF ADAPTIVE SUPPORT SERVICES ON CDC FORM 128C-2

NCF

Inmate/parolee has Adequate Cognitive Functions (based on cognitive test scores) and therefore does not require adaptive functioning evaluation.

DDO

Inmates evaluated at an RC who may have low cognitive functioning but determined not to have adaptive support needs, pending reevaluation in 120 to 210 days.

NDD

Inmates evaluated at a mainline or parolee who may have low cognitive functioning but determined not to have adaptive support needs.

DDI

Inmate/parolee can function successfully in a general population (GP)

setting in a designated DDP institution consistent with other case factors

and usually does not require prompts to initiate activities of self-care and

daily living. Inmate may need supervision or guidance and assistance

when under unusual stress or in new situations.

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inmate's English skills are limited, the test will be terminated and the inmate referred for the TONI-Third Edition.
b) TONI-Third Edition: A standardized, language-free, problem solving-based test of cognitive ability. The TONI-Third Edition takes approximately 20 minutes. Because it can be administered without use of language, it may be used to obtain an estimate of cognitive skills in individuals who are not fluent in English or are hearing impaired. During administration of the test, no verbal instructions are used. The examiner uses gestures and modeled responses as a means of conveying the task to the inmate.
2. PHASE II
The General Ability Measure for Adults (GAMA) is a timed, group administered, "culture fair" test of cognitive abilities. Instructions are in English or Spanish versions. Also, the questions may be read to the subject and/or translated.
Inmates scoring 80 or less on the Quick Test or the TONI-Third Edition will be given this more extensive, cognitive measure. This test should be given within seven days of Phase 1. The GAMA may be administered in groups of approximately ten. Clinicians may exercise their option to administer the Wechsler Adult Intelligence Scale-Revised (WAIS-R), Wechsler Adult Intelligence Scale-III (WAIS-IIl) or the Wechsler Abbreviated Scale of Intelligence (WAS I) in lieu of the GAMA.
3. PHASE In
Inmates scoring 75 or less on the GAMA, WAIS-R, WAIS-III, or WASI will be designated for follow-up review of adaptive skills. Any inmate who refuses or is unable to take any of the cognitive functioning tests must also be designated for review of adaptive skills. The clinician will document the inmate's reason for not completing the cognitive tests on a Mental Health Progress Note CDC Form MH-3.
The CASE will provide a way to determine whether the inmate has an adaptive functioning deficit in the correctional setting. The CASE must be completed within seven days after the inmate did not pass Phase II or did not take a cognitive test.
By observing, interacting, and interviewing with the inmate, recelvmg verbal reports from officers and staff familiar with the inmate, and reviewing existing records, a psychologist or social worker will complete the CASE. Clinical interviews must be conducted in a manner to ensure the inmate understands-to the best of the inmate's ability. The clinician will complete the CASE with a summary justifying the DDP designation and specifying any significant adaptive programming deficits. The CASE is to be filed under the "Data" tab in the mental health section of the unit health record. These initial results will be documented on a CDC Form 128C-2, Recommendation for Adaptive Supports. The CDC Form 128C-2 must be signed by a licensed mental health clinician. If the

CLARK REMl:."'DIAL PLAN

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PAGES

clinician completing the assessment is unlicensed, a licensed clinician must cosign and date CDC Form 128C-2, indicating approval. Health care services clinical staff must forward the completed CDC Form 128C-2 to the Correctional Counselor III (CC-III) or Classification and Parole Representative (C&PR) within 21 days after an inmate arrives at the RC or is referred to clinicians for testing.
a) Adaptive Deficits: Examples of areas in which adaptive deficits may be identified, and examples of the types of adaptive deficits that may be presented, are:
(1) Communication Skills: The DDP inmates may have poor ability to express themselves verbally or in writing. They may have difficulty understanding basic verbal requests or instructions. They may be unable to understand explanations of custody procedures or disciplinary and classification hearings. They will likely have difficulty with any task requiring reading or processing written material (thus they may have difficulty with disciplinary, classification, and/or appeal processes that require reading and understanding). They will likely have difficulty with any task that requires making written requests.
(2) Academic Skills: The DDP inmates may show evidence of poor cognitive abilities/skills related to learning, such as reading, writing, and using basic practical mathematical concepts. The focus of this skills area is not on grade level academic achievement but rather on the acquisition of those academic skills that are functional in terms of independent living.
(3) Self-Care Skills: The DDP inmates may show evidence of poor self-care; e.g., seldom bathing, soiled or unkempt clothing, poor eating habits, and/or the inmate's cell may be disorganized/dirty.
(4) Socialization Skills: The DDP inmates may show difficulty establishing and maintaining positive relationships. They may seem naive with respect to prison routine or culture. They may give up possessions to other inmates. They may become vulnerable to sexual predators, manipulation by other inmates, and/or be recruited for gang activities. The DDP inmates may engage in a repetitive cycle of disciplinary infractions involving other inmates or correctional officers. This could be suggestive of a lack of judgment and failure to understand the consequences of their actions.
(5) Self-AdvocacylUse of Inmate Resources: The DDP inmates may have difficulty advocating for themselves during classification committee hearings, disciplinary proceedings, and the appeals process, and may waive their rights without understanding what they are doing. The DDP inmates may have difficulty understanding how to access inmate resources (such as medical/dental services, the law library, religious services, and the canteen) in a correctional setting.

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(6) Work: The DDP inmates may have difficulty maintammg a work assignment due to inappropriate social behavior and a lack of related work skills. For example, DDP inmates may be unable to complete tasks; follow work schedules, seek assistance, take criticism, or improve performance. They may also be unable to apply functional academic skills; and to use skills concerning going to and from work, preparing for work, managing oneself while working, and communicating with individuals in the work place.
(7) Health and Safety: The DDP inmates may appear naive about maintaining health in terms of eating; identifying, treating, or preventing illness; basic first aid; sexuality; physical fitness; personal habits; and basic safety considerations; such as following rules or seeking assistance. These inmates will likely use inappropriate behavior with others, and have difficulty communicating choices and needs and participating in social interactions.
(8) Self-Direction: The DDP inmates may have difficulty making choices; learning and following a schedule; initiating activities appropriate to particular settings, conditions, schedules, and personal interests; completing necessary or required tasks; seeking assistance when needed; resolving problems in familiar and unfamiliar situations; and demonstrating appropriate assertiveness and self-advocacy skills.
(9) Leisure: The DDP inmates may not have acquired many leisure and recreational interests that reflect personal preferences and choices. The DDP inmates may have difficulty choosing and initiating interests, using and enjoying leisure and recreational activities alone and with others, taking turns, and/or terminating or refusing leisure or recreational activities. Related skills include behaving appropriately in a leisure and recreational setting, communicating choices and needs, participating in social interaction, applying functional academics, and exhibiting motor skills related to such activities.
b) Recommendations for Adaptive Support Services: Staff will initially identify the level of developmental disability at the RC, or program institution for inmates currently within the existing population, by exercising clinical judgment after administering the CASE. The evaluation must include observing, interacting and/or interviewing with the inmate, and may require receiving verbal reports from officers and staff familiar with the inmate, and reviewing existing records. The clinician will use CDC Form l28C-2 to indicate an inmate's DDP designation and identify the adaptive support services the inmate may require. If an adj ustment in the adaptive support service is needed once the inmate reaches a designated DDP facility, the changes will be documented on the CDC Form 128C-2.

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Support services include but are not limited to the following:
(1) Prompting: These are reminders provided to inmates to begin or complete an activity or behavior; e.g., completing self-care, requesting cleaning supplies, accessing medical care, reporting to work, attending meals, conducting laundry exchange, complying with count procedures, etc. Prompts may involve verbal, visual, or written reminders, as well as hand gestures. With clinical review, attempts must be made to systematically lessen prompting to promote independent functioning.
(2) Coaching: This is prompting an inmate through specific, usually vocational, tasks until the inmate has acquired the skill to complete the task independently. This is done by teacher's aides and work supervisors.
(3) Assisting: This is assistance by trained departmental staff to enable DDP inmates to understand and participate in-to the best of their abilitydisciplinary, classification, and other administrative hearings. This assistance would also include completing any forms or documents necessary to secure any rights or benefits available to nondisabled inmates. The DDP inmates must be afforded reasonable accommodation to ensure equally effective communication-to the best of their ability.
•:. Inmates/parolees needing assistance to effectively use the Inmate/Parolee Appeals Process must be provided assistance by the Appeals Coordinator, the assigned Correctional Counselor I (CC-I), or designated Parole & Community Services Division staff, as described in California Code of Regulations (CCR), Title 15, Section 3084.3(b)(3).
•:. The assigned CC-I must assist DDP inmates with issues that include, but are not limited to, classification, program assignments, applications for credit restoration, completion of Board of Prison Terms (BPT) Form 1073, Notice and Request for Reasonable Accommodation, safety and security concerns, and elements of due process .
•:. Staff Assistants (SAs) who have received trammg specified in Section X, D, must be assigned by a Senior Hearing Officer to assist DDP inmates throughout the disciplinary process for both administrative and serious rules violations.
(4) Monitoring: This is providing additional supervision of a DDP inmate's self-care and/or cell maintenance, personal safety, behavior, and property.
All adaptive support services provided to DDP inmates must be documented. Forms and other instruments that may be used to record these services include, but are not limited to: Unit Log Book; CDC Form 114-A, Isolation/ Segregation Record; CDC Form 115, Rules Violation Report; CDC Form 128-A, Custodial Counseling Chrono; CDC Form 128-B, General

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Chrono: CDC Form 128-0, Classification Chrono; and/or any other form used to prove that CDC provided DDP inmates with due process.
4. PHASE IV
THE DDO, DD 1, D lA, DD2, and DD3 inmates will be given a Phase IV evaluation, again using the CASE, no sooner than 120 days and no later than 210 days after completing Phase III. This evaluation must include an interview and/or observation of the inmate, and may require interviews with staff, and a review of the inmate's Unit Health Record and C-Filc (refer to Section II, B, 3). A CDC Form 128C-2 will be completed to confirm or change the DDP designation, and to update the adaptive support services the inmate may require. An NDD designation will be given to inmates who are found not to need adaptive services after the Phase IV evaluation. Inmates needing adaptive support services will be made (or remain) DDl, DIA, DD2, or DD3.
Later reevaluations also shall be called Phase IV evaluations and be completed using the CASE. A CDC Form 128C-2 must be generated for each Phase IV evaluation, even if there is no change in the inmate's/paroiee's designation.
A new CDC Form 128C-2 may also be completed to include a more appropriate adaptive needs summary. Provided the DDP designation does not change, a new CASE is not required. (The update would not be considered a Phase IV evaluation unless a new CASE was completed.)
C. RECEPTION CENTER SCREENiNG/PROCESSING
1. All inmates must continue to undergo the existing comprehensive screening process at RCs to confirm case factors, custody concerns, academic/vocational needs, and medical/psychiatric problems, including identifying developmental disabilities to determine appropriate placement. Existing RC processing policy and procedures must be utilized unless otherwise directed by policy contained in this plan.
2. Inmates with developmental disabilities must be processed out of RCs within 60 days of the date they are received by CDC, unless external factors temporarily prohibit a transfer. In cases where an inmate is housed in an RC pending revocation, it should be noted that the 60-day clock does not apply until the inmate has appeared before the BPT and parole has been revoked.
3, The existing RC process for identifying medical and mental health problems will be enhanced using the four-phase process described in Section II, B, to provide screening for developmental disabilities. All RCs have been designated to provide temporary housing and processing for inmates/parolees identified as meeting DDP criteria. For example: the inmate/parolee identified as DDP shall be provided adaptive supports while temporarily housed at the RC pending disciplinary proceedings. All RC processing and classification committee actions must be completed prior to transfer to a designated DDP facility.

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4. Unless a CDC Form 128C-2 is already in the inmate's files, clinical staff must complete such form on each inmate processed through the RC before endorsement to a programming institution by a Classification Staff Representative (CSR).
5. Health care services clinical staff must complete the testing, screening, and initial clinical review for developmental disabilities, and forward the completed CDC Form 128C-2 to the RC CC-III within 21 days after the inmate arrives at the RC.
6. Any inmate who is determined not to have a developmental disability at either the first or second phase of screening (Quick/TONI-Third Edition or GAMA), will have that fact noted on CDC Form 128C-2, in the section indicating "NCF," and will continue with normal RC processing.
7. Any RC inmate failing or not taking both cogmtIve tests, but determined by completion of Phase III during the initial clinical review to have no adaptive deficits in a correctional setting, will have that fact noted on CDC Form 128C-2 in the section indicating "DDO," and will be identified for follow-up review. The inmate identified as "DDO" will be endorsed to a programming institution consistent with existing case factors, excluding institutions as identified in Section IV, C, I.
The inmate identified as "DDO" will be reevaluated by clinical staff within 120 to 210 days after completion of Phase III, using the process described as Phase IV, Section II, B, 4.
8. Once staff designate an inmate for the DDP, and basic adaptive support services have been identified on CDC Form 128C-2, those identified services must be provided to the inmate pending transfer to a designated DDP institution. As initially indicated by the clinician on a CDC Form 128C-2, staff must provide basic adaptive support services as necessary to ensure the inmate's safety, and provide effective communication as outlined in training modules identified in Section X of this plan. Staff assistance will be provided to ensure inmates understand and participate, to the best of their ability, in the RC process and any administrative or disciplinary hearings, or due process functions, etc.
9. All identified DDP inmates will be assigned housing in a manner that addresses their safety and security needs pending transfer to an appropriate designated DDP facility.
10. Inmates showing signs of having a developmental disability or whose records (Probation Officer's Report, Medical/Mental Health Information Transfer Form, etc.) suggest that they may be so disabled, must be assigned housing that addresses their safety and security needs pending completion of their screening.
11. Staff must maintain a confidential photo identification roster within all units housing inmates identified with developmental disabilities, which will include a copy of the CDC Form 128C-2.

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12. Specific and basic adaptive support services must be identified by the clinician in the Phase IV evaluation using the CASE. Specific adaptive support services prescribed must be documented on CDC Form 128C-2.
13. Inmates who have already been screened and given a DDP designation through previous RC/GP testing may have the test readministered upon readmission to CDC. Institution clinical staff should retest inmates if they feel it is necessary, or there appears to be a variance between prior test results and an inmate's current functioning level. Also, retesting may be warranted in cases where an inmate has multiple prior CDC Forms 128C-2 that show varying results. Basic adaptive support services must be provided as indicated on the previously completed CDC Form 128C-2. Inmates paroled before Phase IV was completed will be reevaluated with CASE in the 120-21 0 day interval, not counting the days outside of CDC custody.
14. The CDC Form 128C-2 identifying inmates as having a developmental disability (DDl, DIA. DD2, DD3) must be distributed by clinical staff at an RC as follows: original placed in the "General Chrono" section of the inmate's C-File, copies made for the health record, the C&PR or CC-III, the assigned CC-I, correctional officers assigned to the inmate's housing unit, and the inmate.
15. The CDC Form 128C-2 identifying inmates as not requiring adaptive support services (NCF, DDO, NDD) must be distributed by clinical staff at an RC as follows: original placed in the "General Chrono" section of the inmate's C-File, copies made for the health record, the C&PR or CC-III, and the inmate.
16. Staff must ensure that information contained on CDC Form 128C-2 is not available to other inmates. Files with CDC Forms 128C-2 and the separate photo identification roster are to be maintained in secure locations and readily accessible to staff.
17. Once an inmate is identified as developmentally disabled, the RC CC-IlI must ensure priority is given to expedite completion of the RC process and referral to a CSR.
D. ADJUSTMENTS DUE TO EXTENDED RECEPTION CENTER STAY
The DDP inmates will be processed out of RCs no more than 60 days from the date they are received by CDC unless they are detained due to factors not caused by CDC's delay. Such factors might include, for example, medical necessity, court appearances, disciplinary proceedings, no documented in-level bed availability systemwide, etc. Any period of time beyond the initial 60 days of a DDP inmate's stay at an RC shall be referred to as the inmate's "extended stay."
If a DDP inmate remains at an RC for more than 60 days, a presumption arises that the extended stay is attributed to the DDP screening process or the inmate's DDP status. To overcome this presumption, CDC must demonstrate that the inmate's transfer out of the RC was at no time delayed solely due to the DDP screening process or the inmate's DDP status. In this case, CDC need not grant additional sentence

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credits or mainline privileges. In the alternative, CDC may demonstrate that the cumulative period of all delays related to the DDP screening process or the inmate's DDP status was shorter than the inmate's extended stay, in which case CDC need only accommodate the inmate for the cumulative period of delays related to his/her DDP screening or DDP status.
Verification that the inmate's extended stay in the RC was not due to the inmate's DDP screening process or the inmate's DDP status must be demonstrated by documentation, i.e., CDC Form 128-G.
When the CC-llI/C&PR responsible for tracking DDP inmates determines that a DDP inmate's stay has been extended beyond 60 days solely due to the inmate's DDP screening process or the inmate's DDP status, CDC must accommodate the inmate as described below. The following accommodations for an extended RC stay are only available to inmates identified as having a developmental disability (DDl, DIA, DD2, DD3). Qualifying inmates may file a CDC Form 1824, Reasonable Accommodation or Modification Request, to request accommodation for an extended stay. [Note: Most inmates identified as eligible for the DDP will be unable to complete this form independentlY.J All staff will be responsible for providing the inmate with assistance to complete the form.
During RC processing, DDO inmates remammg in the RC beyond 60 days are not eligible for extended stay credit relief.
E. ACCOMMODATIONS
1. PRIVILEGES
The DDP inmates (DD1, DIA, DD2, DD3) who remain at RCs for extended stays, are entitled to privileges that are available at mainline institutions, as outlined in CCR, Title 15, Section 3044(d), Privilege Group A.
When the CC-III/C&PR responsible for tracking DDP inmates determines that a DDP inmate's RC stay will be extended beyond 60 days, the inmate's case will be presented to a classification committee on the 61 st day for determination of whether the extended stay is solely due to the inmate's DDP screening process or the inmate's DDP status. The determination by the classification committee must be documented on a CDC Form 12S-G. If the classification committee determines that the extended stay is solely due to the inmate's DDP screening process or the inmate's DDP status the corresponding CDC Form 128-G granting Privilege Group A must be forwarded to custody staff to ensure privileges are provided as required.
If the classification committee determines that the extended RC stay is not solely due to the inmate's DDP screening process or the inmate's DDP status, the CDC Form 128-G must document the basis for the decision and state that the inmate is not eligible for Privilege Group A during the inmate's extended stay in the RC.

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2. WORK GROUP CREDITS
a) The DDP inmates who remain at RCs for extended stays solely due to their DDP screening process or the inmate's DDP status and who are serving sentences of less than one year, or have less than one year remaining on their sentence while undergoing RC processing, must, pursuant to the procedures described below, receive sentencing credits that they could have earned if they had been transferred to a program institution on the 61 st day of RC stay.
The inmate's case will be presented to a classification committee on the 61 st day. The classification committee must determine whether the extended stay is solely due to the inmate's DDP screening process or the inmate's DDP status, and that determination by the classification committee must be documented on a CDC Form 128-G. If the classification committee determines that the extended stay is solely due to the inmate's developmental disability, the corresponding CDC Form 128-G (granting work time credits) must be forwarded to the Case Records Manager to apply the applicable credits as outlined in CCR, Title 15, Section 3044(b)(1), Work Group A-l. The DDP inmates who, by law, are precluded from earning day-for-day credit based on the Penal Code (PC) section under which they are sentenced (required to serve 100 percent, 85 percent, or 80 percent of their sentence) are ineligible for credit relief for extended stays.
If the classification committee determines that the extended RC stay is not solely due to the inmate's DDP screening process or the inmate's DDP status, the CDC Form 128-G must document the basis for the decision and state that the inmate is not eligible for worktime credits during the inmate's extended stay in the RC.
b) The receiving program institution must review the C-File of each DDP inmate to determine if his/her RC stay exceeded 60 days. If so, the inmate's extended stay shall be presumed to be solely due to his/her DDP screening process or the inmate's DDP status, unless CDC can overcome this presumption as provided above, i.e., the inmate had been detained by factors not caused solely by a disability. If the inmate's DDP screening process or the inmate's DDP status was the sole cause of the extended stay, adjustments to the inmate's worktime credits will be made, once initial classification is held at the program institution, to reflect credits as if the inmate had been engaged in a work program on the 61 st day, as outlined in the CCR, Title 15, Section 3044(b)(1), Work Group A-I.
The day the inmate is received by the program institution, the RC extended stay time period ends and the inmate's work/privilege group reverts to U/U (unclassified) until the date of the Initial Classification Committee. The Initial Classification Committee will then designate an appropriate work/privilege group for the inmate and place him/her on an assignment waiting list.

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A statement from the classification committee on the CDC Form 128-G shall accomplish credit relief, similar to that used in a "time gap chrono" covering period(s) of delays related to an inmate's DDP screening process or the inmate's DDP status. At no time shall the credit relief exceed the total period of the extended stay.
F. IDENTIFICATION OF INMATES WITHIN THE EXISTING POPULATION
Efforts to identify inmates with developmental disabilities must be continuous. Identification of inmates with developmental disabilities currently incarcerated within CDC's facilities will involve the following:
1. DATABASE SEARCH: The CDC and DDS must attempt to share information about inmates who may have previously been evaluated or received services from DDS. A database search (with a 50 percent or above probability rate) will identify individuals within CDC's population who may have been previously evaluated by and/or received services from DDS. This database search will be repeated every six months to assist in identifying any inmate with a history of services from DDS, who has entered CDC's system, but has not been identified as having a developmental disability by CDC staff. (The CDC is negotiating with DDS for release of this information.) Information from the DDS client list received by Health Care Services Division (HCSD) must be reviewed by departmental clinicians upon receipt. Inmates identified through this process must be referred to their institution' s/facility' s health care services for screening using the four-phase process.
The CDC will consider obtaining case histories from DDS of inmates having received services from DDS if information obtained will be of significant value in assessing or providing services to individual inmates.
2. CLASSIFICATION COMMITTEE ACTIONS: During Initial Classification Committee actions on inmates transferred from one institution/facility to another, Administrative Segregation Unit placement hearings, Annual Classification Committee actions, or any other required classification committee actions for program review, the assigned CC-I shall refer the inmate, by a CDC Form 128-B, to the institution/facility's health care services for screening using the four-phase process, when any of the following are true:
a) The inmate's last Test of Adult Basic Education (TABE) complete battery reading score was four (4.0) or lower and is not attributable to language problems, e.g., non-English speaking, etc .
•:. If the TABE test has not been administered, the inmate will be referred to the institution/facility's Education Department for immediate testing.
b) There has been no previous testing for developmental disabilities; or
c) There are other signs of adaptive deficits, i.e., problems with self-care, police/probation reports indicating possible developmental disabilities, an

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indication there was a question of competency to stand trial (even if found competent), multiple disciplinary actions possibly indicating a poor understanding of rules/expectations, difficulty understaIiding simple instructions, etc.
3. STAFF REFERRAL: If behavior is observed or information is received by staff indicating an inmate may have a possible developmental disability. staff must refer the inmate for screening by directing a standard CDC Form 128-B to the institution/facility's health care services. Phase I should take place within seven days after staff receives a referral. Phase II should take place within seven days after an inmate fails Phase I. Phase III should take place within seven days after an inmate fails Phase II. Health care services clinical staff must forward the completed CDC Form 128C-2 to the CC-III or C&PR within 21 days after the inmate is referred to clinicians for testing. In addition, a referral shall be triggered by any of the following:
0) The inmate claims to have a developmental disability.
b) The inmate's health care or C-File contains documentation of a developmental disability; e.g., previously endorsed as Category "K" and there has been no previous testing.
c) A third party (such as a family member) requests testing of an inmate for an alleged developmental disability.
4. Institution health care services clinical staff must complete the four-phase testing and clinical review and forward a complete CDC Form 128C-2 to the institution's C&PR within 21 days of receiving the referral. The C&PR must route a copy of the completed CDC Form 128C-2 to the inmate's assigned CC-1.
5. Once an inmate is designated for the DDP by clinical staff, the C&PR must ensure the inmate appears before an appropriate classification committee for referral to a CSR. The inmate's case must be presented to a CSR for endorsement within 14 days after being identified as a DDP inmate. The C&PR must make all reasonable efforts to expedite the transfers of DDP inmates once endorsed by a CSR to a designated DDP institution.
6. Once an inmate is designated DDl, DIA, DD2, or DD3, and the basic support services have been identified, those identified services must be provided to the inmate pending transfer to a designated DDP institution. As indicated by the clinician on a CDC Form 128C-2, custody staff must provide basic support services as necessary to ensure the inmate's safety, and provide effective communication. Staff assistance [refer to Section II, B, 3, b) (3)]. must be provided to ensure inmates understand and participate-to the best of their abilityin any classification or disciplinary hearing or other due process function.
7. All identified DDP inmates must be assigned housing in a manner that addresses their safety and security needs pending transfer to an appropriate designated DDP facility.

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8. Staff must maintain a separate photo identification roster within all units housing inmates identified with developmental disabilities pending transfer to a designated DDP institution.
9. All departmental psychologists must receive trammg in screening for developmental disabilities, and in recommending support services. This training must include:
.:. Applying criteria for identifying developmental disabilities.
•:. Using standardized instruments to test cognitive ability (Quick/TONI-Third Edition and GAMA) .
•:. Using the CASE.
•:. Prescribing specific adaptive supports needed.
•:. Applying criteria for placing inmates m settings according to their developmentally disabled designations.
10. All departmental staff must receive training to effectively communicate with developmentally disabled inmates, as described in Section X.
G. EXPEDITED TRANSfERS
All institutions must promptly transfer DDP inmates to an appropriate DDP designated institution/facility. After a CSR endorses the inmate for transfer to an appropriate designated DDP institution, the RC CC-III/C&PR will ensure the inmate is promptly transferred.
Once an inmate in the RC IS identified as developmentally disabled on a CDC Form 128C-2, the CC-lIl must ensure that the RC processing is completed by the CC-! and the case presented to the CSR within 14 days after being identified as a DDP inmate. in the event an inmate with a developmental disability remains at the RC for more than 60 days, the provisions regarding RC Extended Stay shall apply if it is determined that the DDP inmate's stay has heen extended heyond 60 days solely due to the inmate's participation in the DDP.
The RC CC-III shall make all efforts to expedite transfers of inmates identified as DD once endorsed to a designated DDP institution by the CSR. Inmates identified as DD shall be given priority consideration over nonemergency medical/psychiatric/ security transfer consistent with Section VI, J, 7.
In the existing population, the C&PR must ensure that an inmate designated for DDP on a CDC Form 128C-2 appears before a classification committee for referral to a CSR within 14 days after being identified as a DDP inmate.
After a CSR endorses the inmate for transfer, the RC CC-III/C&PR must ensure that the DDP designation is entered into the comments/purpose field on the Distributed Data Processing System/Interim Transportation Scheduling System (ITSS) during the weekly bus seat request process. If the requested bus seat does not appear on the

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subsequent ITSS send and intake notice, the RC CC-III/C&PR must contact the Institution Standards and Operations Section (ISOS) at Headquarters for assistance in the requested transfer. The ISOS will then liaison with the Transportation Services Unit to expedite the transfer. Pending transfer, CDC must reasonably accommodate the DDP inmate.
H. ASSESSMENT OF IDENTIFICATION PROCESS
To assure that all DDP inmates within the existing population have been identified through RC screening, data base search, referrals by appropriately trained staff, and referrals by classification committee actions as described above, the CDC will, within two years starting July 1, 2001, submit all unscreened inmates to the four-phase testing process as described in Section II, B. Once the testing process has begun, Phase II should take place within seven days after an inmate fails the test administered in Phase 1. Phase III should take place within seven days after an inmate fails the test administered in Phase II. The HCSD Clark Coordinator must track inmates who have not been previously screened and will notify the clinicians at the institutions of the identities of inmates requiring screening.
1. VERI FICAnON
1. The CDC must screen for and verify the presence of developmental disabilities within the population of inmates/parolees. Screening/verification of a developmental disability by clinical staff must be recorded on a CDC Form 128C-2. Once completed and signed or cosigned by a licensed clinician, the CDC Form 128C-2 must become part of the inmate's/parolee's C-File and must remain in effect until otherwise modified by a clinician as a result of changes in the inmate's adaptive functioning level in a correctional setting.
An inmate's refusal to participate in the screening process with clinical staff may, but does not necessarily, indicate an adaptive behavioral deficit. If an inmate refuses to cooperate and has observable signs of adaptive functioning deficits, the institution/facility's health care services clinical staff must record the observable deficits, complete the CASE as described in Section II, B, 3, and make recommendations on a CDC Form 128C-2.
The clinical staff in the RC may use the inmate's stay in the RC as a period of observation to complete Phase III, as identified in Section II, B, 3. The inmate may be designated as 000 if he/she presents low cognitive skills but does not require adaptive support services.
Clinical staff must use the CASE as identified in Section II, B, 3, if an inmate in the existing population refuses to cooperate with the screening process. The clinician should observe the inmate, conduct interviews of correctional officers and other staff familiar with the inmate, and review existing records. This inmate can be designated as NDD if found not to need adaptive support services.
2. Institution/facility health care services clinical staff are responsible for responding to referrals from staff; conducting cognitive and adaptive functioning testing,

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identifying adaptive deficits, and making clinical judgments. Licensed clinical staff are also responsible for documenting the DDP category and recommendations for adaptive support services on a CDC Form 128C-2.
3. The clinician determining the DOP designation must complete a CDC Form l28C-2 and sign in the signature block provided. If the clinician is unlicensed, a licensed clinician must cosign and date CDC Form 128C-2, indicating approval.
a) If the inmate has adequate cognitive test scores and does not require adaptive functioning evaluation, the clinician must check the box indicating "NCF."
b) If the RC inmate does not receive a passing score on the Phase I or II cognitive tests and, after completion of the CASE, is found not to require adaptive support services, the clinician must check the box on CDC Form 128C-2 indicating "DDO," and enter an explanation in the Comments Section.
The inmate identified as DDO will be endorsed to an institution consistent with existing case factors, excluding institutions identified in Section IV, C, l. Inmates identified as ODO will be tracked by health care services and be reevaluated by a clinician 120 to 210 days after completion of the Phase III testing using the process identified in Section II, B, 3. The clinician can and should reevaluate the inmate sooner if there are observable signs of adaptive functioning deficits. Inmates designated as NOD should be reevaluated for ODP placement if their behavior indicates the need for reevaluation.
A DDO can be designated 001, DIA, OD2, or DD3 at any time. Such inmate cannot be designated NOD until assessed 120 to 210 days after receiving a DDO designation.
If the inmate has been reevaluated and found not to require adaptive support, health care staff must complete a CDC Form 128C-2 and check the box indicating NDO. This CDC Form 128C-2 will be forwarded to the C&PR. If the inmate is being retained in the institution, the C&PR will complete a CDC Form 840, Reclassification Score Sheet, annotating the NDD coding change in the administrative determinate section. If the inmate is to be transferred the CSR must complete the CDC Form 840.
c) If a mainline inmate does not receive a passing score on the Phase I or II cognitive tests and, after completion of the CASE, is found not to require adaptive support services, the clinician must check the box on the CDC Form 128C-2 indicating "NDD," and enter an explanation in the Comments Section.
d) If it is determined that the inmate/parolee has a developmental disability that does not require special placement, does not usually require prompts to initiate seif-care or daily living activities, and the inmate may be housed in one of CDC's designated DDP facilities in a GP setting consistent with other case

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factors, the clinician must check the box indicating "DD I." This inmate may require extra prompting during new or stressful situations.
e) If it is determined that the inmate/parolee has a developmental disability equal to that of DD I, but there are observations or documentation that suggest the inmate may be vulnerable to victimization-thereby requiring special placement in a designated building/unit/wing-the clinician must check the box indicating "DIA."
f) If it is determined that the inmate/parolee has a developmental disability, can function in a GP setting consistent with other case factors, but requires prompts to initiate self-care and/or daily living activities or has victimization concernsthereby requiring special placement in a designated building/unit/wing-the clinician must check the box indicating "DD2."
g) If it is determined that the inmate/parolee has a developmental disability so severe that placement is required in specialized DDP institutions (such as California Medical Facility [CMF], California Men's Colony [CMC], or Central California Women's Facility [CCWF]), the clinician must check the box indicating "DD3."
II) Special concerns. such as documented mental or physical health care needs, may be addressed by recording specific needs on a CDC Form 128-C, ChronoMedicaliPsychlDental, and attaching it to a CDC Form 128C-2. The CDC Form 128C-2 Comments Section must reflect that CDC Form 128-C has been prepared. alerting staff to read it. Recommended adaptive support services must also be noted. Additional notes, references. explanations, and/or information not indicated elsewhere may be noted in the Comments Section of the CDC Form 128C-2.
i) Adaptive support services noted on the CDC Form 128C-2 must correspond to those of the specified developmental disability category.
j) The CDC Form 128C-2 identifying inmates as having a developmental disability (DDl, DIA, DD2, DD3) must be distributed by clinical staff at designated institutions as follows: original placed in the "General Chrono" section of the inmate's C-File; copies made for the health record, the C&PR or CC-III, the assigned CC-l; correctional officers assigned to the inmate's housing unit and who monitor his/her daily activities; the Inmate Assignment Lieutenant; the assigned work supervisor/teacher; and the inmate.
k) The CDC Form 128C-2 identifying inmates not requiring adaptive support services (NCF, DDO, NDD) must be distributed by clinical staff as follows: original placed in the "General Chrono" section of the inmate's C-File, copies made for the health record, the C&PR or CC-III, and the inmate.
/) Staff must ensure that information contained.on the CDC Form 128C-2 is hot available to other inmates. Files with CDC Form 128C-2s and the separate

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photo identification rosters are to be maintained in secure locations and readily accessible to staff.
III. STANDARDS
A. PLACEMENT CRITERIA
Placement must be determined by identifying the nature and severity of the developmental disability, adaptive deficits, and adaptive support services required. Determining the nature and intensity of adaptive support services that an inmate requires will be based on a clinical appraisal of each case. Some inmates identified by clinical staff as having a developmental disability will function adequately in designated institution settings and programs. However, where the level of disability includes potential vulnerability to predatory behavior or a need for more intensive supervision and intervention, special placement in a designated building/unit/wing will be considered. Once identified, adaptive support services must be reviewed and adjustments made as identified by the Interdisciplinary Support Team (IDST) (see Section III, C).
B. CATEGORIES
Developmental disabilities include the following categories and associated adaptive support services necessary to function in a correctional environment:
1. MENTAL RETARDATION: For each inmate found to have symptoms of mental retardation and to require adaptive support services (through completion of the cognitive testing process and review of adaptive functioning), a clinician must recommend the type of placement and adaptive support services. These recommendations will be based upon a combination of patterns and intensities identi fied by the American Association on Mental Retardation and levels of severity identified in the Diagnostic and Statistical Manual of Mental DisordersFourth Edition. The CDC anticipates that with adaptive support services, identified DDP inmates' functioning level may improve and their developmental disability category may change. Definitions of mental retardation used in this Remedial Plan are for the purposes of this document only, within the correctional environment. They are not intended to meet criteria used by DDS or the community to diagnose mental retardation or to provide services to mentally retarded people.
a) NCF: Inmate received a passing score on Phases I or II cognitive tests and did not require adaptive functioning evaluation.
b) DDO: An RC inmate who may have low cognitive skills but does not require adaptive support services in the correctional setting.
c) NDD: Inmate initially identified as DDO has been reevaluated and found not to require adaptive support services, or a mainline inmate failing or not receiving Phase I and II but found not to require adaptive support services.

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These inmates should be reevaluated for DDP placement if problems with adaptive functioning arise.
d) DDl: This inmate can function successfully in a OP setting in a designated DDP institution consistent with other case factors and usually does not require prompts to initiate activities of self-care and daily living. This inmate may need supervision or guidance and assistance when under unusual stress or in new situations.
This inmate must always have an SA in disciplinary hearings, CDC Form 114D reviews, and Administrative Segregation Hearing Placement Notice to determine the need for retention in Administrative Segregation Housing and Classification Committees. The level and method used to provide staff assistance can be determined on a case-by-case basis to ensure the DDP inmates understand and participate (to the best of their ability) in any other due process function. Their ability to understand may worsen in a stressful situation.
ADAPTIVE SUPPORT SERVICES FOR DDt INMATES: Occasional support is needed, especially in more complex, stressful areas. Support is required during disciplinary/classification hearings, and may be needed with the inmate appeal process.
* SELF-CARE: The inmate has the ability to perform all components of
self-care, although occasional prompts may be required to initiate some tasks. Once prompted, inmate is capable of appropriately completing the task.
* DAILY LIVING SKILLS: The inmate has the ability to perform all components of routine cell maintenance and laundry, but occasionally may require prompts to initiate some activities. Once prompted, inmate is capable of performing these activities.
* SOCIAL SKILLS: The inmate appears to interact in a relatively normal
fashion with other inmates. There are no observations to suggest the inmate is more submissive, apprehensive, or naive and a likely target for exploitation or victimization. The inmate may display various levels of aggressIve or poorly controlled behavior when subjected to stressful situations.
* SELF-A.I)vOCACY: The inmate may accidentally waive or not understand
due process rights. The inmate should be able to follow and participate in classification or disciplinary hearings with an SA who has met the training requirements in Section X, D, to provide additional explanation when necessary, or ask questions to ensure the inmate understands-to the best of his/her ability-the process. The inmate is able to participate and initiate communication during the advocacy when assistance is provided by the SA, e.g., helps by explaining the process or by writing for the inmate. The

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inmate is able to dictate relevant Issues but may require assistance with writing and documentation.
e) DIA: Same functional ability as DD1, but there are victimization concerns and housing in a designated DDP building/unit/wing is required. Adaptive support services are the same for this inmate as for a DD 1 inmate, except the following:
* SOCIAL SKILLS: The inmate may be at a disadvantage interacting with
other inmates. e.g., noticeably meek, anxious. solicitous, inappropriately submissive to other inmates, and/or there are other observations suggesting the inmate is vulnerable to exploitation or victimization.
f) DD2: This inmate can function successfully in a OP setting in a designated DDP institution consistent with other case factors. However. this inmate requires prompts to initiate self-care and/or daily living activities and may have victimization concerns, and therefore requires housing in a designated DDP building/unit/wing. Once prompted, inmate can complete the activity without further prompting. Inmate can perform unskilled and semiskilled work in a OP setting, adapts well to a correctional environment. Inmate shall have an SA assigned at due process hearings as described in Section III, B, I, d), to ensure issues are understood (to the best of his/her ability).
ADAPTIVE SUPPORT SERVICES FOR DD2 INMATES: Limited support is required. Inmate requires prompts and support in certain areas of functioning, e.g., laundry, due process hearings, access to medical appointments, etc.
* SELF-CARE: The inmate has the ability to perform all components of
self-care, although prompts are required to initiate these tasks. Once prompted, the inmate is usually capable of appropriately completing the task.
* DAILY LIVING SKILLS: The inmate has the ability to perform all
components routine cell maintenance and laundry, but may require prompts to initiate these activities. Once prompted, the inmate is usually capable of completing these activities.
* SOCIAL SKILLS: There are elements of the inmate's manner when
interacting with other inmates to suggest a possible disadvantage to the developmentally disabled inmate in such personal interactions. The inmate may be noticeably meek. anxious, solicitous, or inappropriately submissive to other inmates. In addition, there may be observations that suggest the inmate is a likely target for exploitation or victimization. Also, the inmate may display various levels of aggressive or poorly controlled behavior when subjected to stressful situations.
* SELF-ADVOCACY: The inmate may have some difficulty following and
participating in classification or disciplinary hearings. The inmate may accidentally waive or not understand due process rights unless an SA

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provides explanations and asks questions to ensure the inmate understandsto the best of his/her ability-the process, The inmate may be able to participate in and initiate communication with an advocacy or appeal process when assisted. This inmate is usually able to dictate relevant issues but requires assistance with writing and documentation.

g) DD3: This inmate requires placement in a highly structured, specialized program in a designated DDP institution capable of meeting his/her needs. The inmate can be trained in elementary self-care skills, master sight reading of survival words, and can perform simple tasks in a correctional setting. Inmate requires constant prompts to complete self-care and daily living tasks and will not complete tasks without continued prompts. Inmate must have an SA assigned in due process hearings, Inmate requires special programs tailored to his/her level of comprehension. May have victimization concerns.

,:A_D:cA_P-;Tc.I_'-;-'E-,-S_U_P-,-P-,-O",R,-,T-,-=,--,.=,-=--,F'-'O"-",R-,D,~D...:3,--,,,I,-Nc-M:.cA",T:.;E=S: Support is required on a daily basis,

* SELF-CARE: The inmate requires repeated prompts to perform basic
self-care tasks. Unless carefully observed and prompted, this inmate fails
to initiate or adequately complete all components of self-care tasks.

* DAILY LIVING

The inmate requires repeated prompts and/or other

guidance to complete daily living tasks. When this inmate is prompted to

complete a task: e.g., cleaning the cell, showering, etc., that task may not

be completed appropriately unless the inmate is prompted through each part

and shown how to do the task. Reminders to simply initiate the task are not sufficient and may result in the task not being done or being done poorly.

* SOCIAL SKILLS: There are elements in the manner the inmate interacts
with other inmates suggesting he/she will be at a clear disadvantage. The

inmate may be noticeably meek. anxious. solicitous, or inappropriately submissive to other inmates. In addition, there may be observations

suggesting the inmate is a likely target for exploitation or victimization, or

the inmate may display various levels of aggressive or poorly controlled behavior when SUbjected to stressful situations

* SELF-Anvoc\Cv: The inmate has substantial difficulty or is incapable of
following and participating in classification or disciplinary hearings, even

when an SA is present to provide additional explanations. The inmate may inappropriately agree to waive due process rights witbout understanding what he/she is doing. The inmate may be marginally or completely unable

to participate and/or initiate communication within an advocacy or appeal

process even when assisted. This inmate may be unable to dictate relevant

issues and will require assistance with writing or documentation.

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2. AUTISM/CEREBRAL PALSy/EpILEPSY:

Inmates diagnosed with these

developmental disabilities must be evaluated on a case-by-case basis by health

care staff. Institution placement must be consistent with medical/mental and

custody factors,

a) AUTISM: A mental disorder originating in infancy that is characterized by selfabsorption, an inability to interact socially, repetitive behavior, language dysfunction, inflexible adherence to specific nonfunctional routines or rituals, stereotyped and repetitive motor mannerisms, and persistent preoccupation with parts of objects, This condition is usually accompanied by marked withdrawal from reality,

b) CEREBRAL PALSY: A disability resulting from damage to the brain before, during, or shortly after birth and outwardly manifested by muscular incoordination and speech disturbances,

c) EPILEPSY: Any of the various disorders marked by disturbed electrical rhythms of the central nervous system and typically manifested by convulsive attacks usually with clouding of consciousness,

ADAI'TlVE SUPPORT SERVICES REQUIRED: Support services must be provided as clinically indicated, Placement in a designated DDP facility will be dependent upon the facility's ability to provide identified adaptive support services,

C. INTERDISCIPLINARV

TEAM

1.

Interdisciplinary Support Team (IDST) is a multiple member interdisciplinary

team at designated DDP institutions (identified in Section IV, C, 2 and 3), The

IDS T is comprised of clinical, classification, custodiaL education, and others,

They review and determine program needs of DDP inmates, The IDST functions

only at designated DDP institutions, The IDST ensures the provision of adaptive

support services necessary for a DDP inmate to function at an acceptable level in

the correctional environment.

2. The IDST shall act as the Institution/Unit Classification Committee (ICC/UCC) at designated DDP facilities, The IDST must include, at a minimum, staff as required by existing departmental policy, including but not limited to the assigned CC-I responsible for coordinating the inmate's classification actions within the institution and ensuring access to specified programs, services, and activities; clinical staff assigned to monitor the inmate's adaptive support services; and the Facility Captain of the facility where the inmate is housed. The correctional officer assigned to monitor the inmate's daily activities and educational/work staff must participate when requested, In accordance with the Department Operations Manual Section 62010,9,1, the names of participants in decisions must be included on the CDC Form 128-G,

3. The IDST/ICC/UCC will periodically review the inmate's classification, custody, program, and adaptive support services based on the developmental disability category and individual need, The review will ensure provision of adaptive

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support services indicated on CDC Form 128C-2. The IDSTIICC/UCC must identify/confirm specific adaptive support services that must be provided to the inmate, including prompting, coaching, and monitoring. The lDST/ICC/UCC may make the following recommendations; that staff assistance should be provided during specific correctional processes, modify an initial recommendation for adaptive support services, and/or change the developmental disability designation. All decisions, actions, and/or recommendations must be documented on CDC Form 128cG. Modifications to the developmental disability level must be documented on a CDC Form 128C-2 and referred to the CSR for review and endorsement.
4. Initial case review will be completed within 14 days of arrival at a designated institution. The initial case review to determine the program needs of a DDP .inmate identified within the existing population of a designated institution will be completed within 14 days of the C&PR receiving a CDC Form 128C-2.
Routine case reviews must be completed by IDST/ICC/UCC at least annually for DD liD 1A inmates, at least every six months for DD2 inmates, and at least every three months for DD3 inmates. The IDST/ICC/UCC may review a case more frequently because of unexpected changes in adaptive functioning, medical! psychiatric concerns. enemy situations, etc., or to ensure that recommended program changes have been effective and that the inmate's functioning level has not deteriorated.
5. If, during a review, members of IDST disagree with the developmental disability designation or the adaptive support services required, IDST must refer the case and all relevant information to the Health Care Manager for resolution. If the disagreement involves issues of security, IDST will refer the case and all relevant information to the Warden for resolution.
6. Staff who supervise identified DDP inmates may consult at any time with IDST members, and IDST may initiate a program review as a result.
D. ApPEAL PROCESS FOR OBTAINING ACCOMMODATIONS
An inmate/parolee identified as having a developmental disability may request an accommodation to access programs, services, activities, or gneve alleged discrimination through the CDC Form 1824 appeal process. The CDC Form 1824 must be readily available to inmates/paroles. Institutional/parole staff must provide assistance to all DDP inmates/parolees who require assistance in filling out CDC Forms 1824 and using the appeal process.
The inmate/parolee must submit the request for accommodation on a CDC Form 1824 to the Appeals Coordinator at the inmate's/parolee's facility or parole region. The Appeals Coordinator must verify the DDP inmates' eligibility to participate in the DDP. If health care staff locate verification of the disability within the Unit Health Record, health care staff shall note that such documentation exists and/or attach relevant copies of any CDC Forms l28C-2 and return the appeal to the Appeals

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Coordinator. When an inmate/parolee files an accommodation or modification appeal on an inappropriate form, i.e., CDC Form 602, the Appeals Coordinator must attach a CDC Form 1824 and process the appeal according to the timelines in this section.
1. ApPEAL SCREENING PROCESS
Upon receiving a CDC Form 1824, the Appeals Coordinator must review it to determine whether the appeal meets one or more of the following guidelines:
.:' An issue covered in this Remedial Plan.
•:. Allegation of discrimination on the basis of a developmental disability under the ADA .
•:. A request for access to a program, service, or activity based on a developmental disability .
•:. The appeal includes both ADA and non-ADA issues (respond to ADA issues first). The Appeals Coordinator will attach a CDC Form 602 to the CDC Form 1824 and respond to the non-ADA issues on the CDC Form 602 and advise the DDP inmate of the change .
•:. The appeal concerns an issue that substantially limits a major life activity, i.e., caring for one's self, performing essential manual tasks, walking, seemg, hearing, speaking, breathing, learning, and working.
If the Appeals Coordinator determines that the appeal meets the above criteria, it will be assigned to the appropriate division head for review and response.
Inmates who participate in the DDP will not be required to provide documentation to verify a disability. The CDC staff will have ample access to records regarding an inmate's disability. The tracking system used in the institutions. along with information contained in the C-Files, Unit Health Records, and logs kept by the housing unit staff are resources. If an inmate is not in the DDP and has not been evaluated. then the appeal should be processed and the inmate referred for an evaluation. If the inmate claims that there is other outside information regarding his/her disability, and the inmate is not able to make the contacts to get the information, CDC staff, e.g., library technical assistant or correctional counselor, should assist the inmate in attempting to get this information. If the Appeals Coordinator determines that the appeal meets the above criteria, it will be assigned to the appropriate division head for review and response.
If the request otherwise meets the eligibility criteria of CCR, Title 15, starting at Sections 3084, the Appeals Coordinator must accept and log the appeal and assign it to the appropriate division head for the first level review described below.
If the Appeals Coordinator determines that the appeal does not raise an ADA issue, it must be recategorized to the appropriate category and processed as a

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CDC Form 602 according to the prOVlSlons of CCR, Title 15, starting at Section 3084.
If the request is recategorized or rejected per CCR, Title 15, Section 3084.3 [exclusive of (c)(5)], a copy of CDC Form 1824 must be maintained on file in the Appeals Coordinator's oftice. Comments explaining the reason why the request was recategorized or rejected must be entered in the comments field of the Inmate Appeals Automated Tracking System (or similarly documented in the Regional Parole Reentry Unit).
E. REQUEST FOR REASONABLE ACCOMMODATION (CDC FORM 1824)
If an inmate/parolee files a request for accommodation or a disability-based discrimination complaint (CDC Form 1824) but does not provide documentation of his/her developmental disability, the Appeals Coordinator must forward all appeals requiring verification of the claimed disability to health care services staff, as outlined in Section III, D, 1. Health care services staff shall conduct a CASE evaluation and issue a CDC Form 128C-2.
F. JUSTIFICATION FOR DENIAL OF REQUESTS FOR REASONABLE ACCOMMODATION
1. LEGITIMATE PENOLOGICAL INTEREST
request for accommodation may be denied when the denial is based on legitimate penological interests. The factors to be considered in determining whether the accommodation can be denied on this basis arc those four factors articulated by the Supreme Court in Turner v. Saflev (1987) 482 U.S. 78. They are: i) whether there is a valid, rational connection between the denial and a legitimate governmental interest; 2) whether there are alternative means for the inmate to exercise his rights; 3) the impact of accommodating the request on security, staff, other inmates and the allocation of prison resources; and 4) whether the denial represents an exaggerated response to prison concerns.
In all evaluations of requests for reasonable accommodation, the health, safety, and security of all inmates, staff, and the public must remain overriding considerations.
2. UNDUE BURDEN AND FUNDAMENTAL ALTERA nON DEFENSES
A request for accommodation may be dcnied when the requested accommodation would impose an undue financial or administrative burden on the agcncy, or would fundamentally alter the nature of the service, program, or activity. An accommodation is an undue financial burden when. in a cost-beneEt analysis, its cost would be an unjustiEable waste of public funds. The Warden, Regional Parole Administrator, or (in the case of some medical accommodations) the Health Care Manager or designee, will make the determination that an accommodation would result in an undue burden or fundamental alteration.

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3. DIRECT THREAT

A request for accommodation may be denied when it poses a direct threat of substantial harm to the health or safety of the inmate, parolee, or anyone else, including the public.

4.

EFFECTIVE MEANS

A request for accommodation may be denied if equally effective access to a program, service. or activity may be afforded through an alternate method which is less costly or intrusive. Alternative methods, which may be less costly or intrusive to the existing operation/program, may be utilized to provide reasonable access in lieu of modifications requested by the inmate/parolee, so long as they are effective.

IV. INMATE PLACEMENT

A. PLACEMENT GUIDELINES

1. All inmates identified as having a developmental disability must be referred to a CSR for review and endorsement.

a) The CSR must endorse cases identified as DDI. DIA, DD2, or DD3 to one of the designated DDP institutions/facilities listed for each designated level of developmental disability.

b) The CSR must not endorse cases where there is no CDC Form 12SC-2 in the file.

c) Inmates with developmental disabilities who have been reevaluated by clinical staff and whose disability level has changed; i.e., DD2 to DDl, must be referred to the CSR for review and placement. The clinician must prepare a CDC Form l28C-2 indicating current status.

d) Due to the time required for the DDP verification process, RC staff shall not be allowed to process inmates identified with developmental disabilities within the short time frames required for Detention Processing Unit placement (abbreviated parole violator RC processing).

2. In assessing placement, the CSR must consider the inmate's prevailing caSe factors, documented degree of developmental disability, vulnerability, and any additional health/psychiatric care placement concerns. The CSR must then endorse the inmate according to the following guidelines:

a) Overriding medical/psychiatric care needs may dictate placement in a health care setting pending resolution of those needs; e.g., Psychiatric Services Unit (PSU), CTC or EOP. Placement in a health care setting and the associated treatment and/or services provided by staff assigned to the health care settings; e.g., PSU, CTC, or EOP, must take precedence over placement in a

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DDP designated setting. Documentation of such treatment and/or services must be consistent with existing criteria and protocols.
Some inmates in the DDP may have concurrent physical or mental health needs. Inmates with developmental disabilities in specialized health care settings also have needs for adaptive supports and accommodations. Placement in a health care setting; e.g., EOP, CTC, or OHU, must not prevent the inmate from receiving recommended adaptive support services, as reflected on the corresponding CDC Form 128C-2. provided they do not connict with required medical/psychological treatment. The provision of such services must be provided by staff assigned to the identified health care setting. When an inmate requires placement in a licensed health care facility, CCR, Title 22, must be followed. To initiate the health care transfer process for these inmates, the referring clinician must prepare a CDC Form 128-C, dated within 90 days of the CSR action, identifying the health care need(s) and related conditions necessitating the transfer, including the urgency of any required treatment.
Once the overridi ng medical/psychiatric needs have been met and the inmate no longer requires placement in the PSU, EOI', CTC, etc., the inmate will be endorsed and promptly transferred to a DDP designated institution as described in Section IV, C of this plan.
b) An inmate identified as DDO must not be endorsed to a Community Correctional Reentry Center (CCRC), Community Correctional Facility (CCFl, or institutions as identified in Section IV, C, 1, pending reevaluation at a programming institution.
Once reevaluated by clinicians at a programming institution and found not to require adaptive supports (NDD), the inmate will be eligible for such placements.
c) A verified DD1, DIA, or DD2 inmate with no additional significant health care problems must be endorsed to a designated DDP institution/ facility.
d) A verified D JA or DD2 inmate must be housed in a designated DDP facility/building/unit/wing, consistent with safety and security needs.
e) Levell inmates with a DD! or DIA designation may be endorsed to or housed in a Level I designated DDP facility as identified in Section IV, C, 2.
1) Level I inmates with a DD::: designation will not be endorsed to a Level I designated DDP facility until cleared by an lDST. They may be endorsed to or housed in a Level I facility/institution only after a period of observation by lDST and a case-by-case review of any specific safety and security concerns. This period of observation and review must determine that the inmate does not present a potential for victimization and can function safely under limited custody supervision.

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g) A verified DD3 inmate with no additional significant health care problems must be endorsed to a specialized program at CMF, CMC, or CCWF. A DD3 inmate needing to be housed in a Security Housing Unit (SHU) program will be housed in the PSU at CSP-SAC. Level IV male DD3 inmates will be housed at CMF.
II) Where an inmate identified as developmentally disabled has additional significant health/psychiatric care concerns or a permanent physical disability that impacts placement, CSRs must endorse the inmate to a designated DDP facility that is also a designated DPP facility and/or has an established health care system suited to treat the inmate's condition. When necessary, in exceptional cases where placement cannot directly meet both the medical/psychiatric and developmental disability needs of the inmate, Health Care Population Management staff and the Classification Services Unit must work together to address the inmate's dual needs in placing him/her.
3. Once the inmate is endorsed for DDP placement, any change in developmental disability will require CSR review and endorsement.
4. Inmates initially identified as DDO and subsequently reevaluated and determined to be NDD do not require CSR endorsement. The C&PR must modify the inmate's developmentally disabled designation on CDC Form 840 as appropriate.
5. Inmates identified with Autism/Cerebral Palsy/Epilepsy must be placed according to existing health care criteria and as medically indicated.
6. All efforts shall be made to house DDP inmates in DDP designated institutions while on out-to-court status, when necessary, consistent with safety and security concerns.
B. CLASSIFICATIO"I
1. Classification procedures for DDP inmates must assure that they are not exposed to a significant risk of harm, abuse, or harassment.
2. Case management for all DDP inmates must comply with established classification procedures unless otherwise directed by policy contained within this plan.
3. The IDST/ICC/UCC at designated DDP institutions must review and record the continued appropriateness of a DDP inmate's placement on CDC Form 128-0, including the inmate's designated endorsement and any determination made regarding adaptive support services. Classification staff must assist DDP inmates to understand"-to the best of their ability-issues involving classification, program assignments, safety and security, and elements of due process.
4. The lDST/ICC/UCC members must:
fl) Use CDC Form 1882 (Initial Housing Review) to:

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(1) Review for single cell status and/or housing restrictions. A DDP inmate with a history of vulnerability must be housed in a designated building/ unit/wing within the facility/institution. A DDP inmate with a history of vulnerability will not be housed in a cell or dorm/bay/section with an inmate with a history of sexual and/or other predatory behavior against "weaker individuals."
(2) Ensure housing is based on the developmental disability designation.
b) Ensure recommended adaptive support services are consistent with the designated category.
c) Ensure work supervisors are notified of the inmate's adaptive support needs by CDC Form 128-B, CDC Form 128C-2, or CDC Form 128-G.
5. Initial!Annual Classification Committees must review the C-Files of all inmates housed in a designated D I A/DD2 building/unit to discern any bistory of sexual and/or other predatory behavior against "weaker individuals." Non-DDP inmates with a history of such behavior must be excluded from designated DIAIDD2 housing/building/wing. Identified DD2 inmates with a history of sexual and/or predatory behavior must not be housed in a cell or dorm/bay/section with an inmate who has victimization concerns, and may instead be single celled based on existing single cell screening criteria (CDC Form 1882).
c. DESIGNATED DDP FACILITIES
Designated DDP facilities may be changed. The CDC will notify inmates' counsel 60 days in advance of any action to add or delete designated institutions.
1. DDO: Inmates initially identified as DDO through the RC screening process will not be endorsed for placement in the following institutions pending the reassessment of adaptive skills. Inmates designated DDP within the existing population at the following institutions must have all casework and classification committee actions completed prior to CSR review:
,/ California Correctional Center (CCC)
,/ Centinela State Prison (CEN)
,/ Folsom State Prison (FSP)
,/ Northern California Women's Facility (NCWF)
,/ Pelican Bay State Prison (PBSP)
,/ Community Correctional Reentry Centers (CCRC)
,/ Community Correctional Facilities (CCF)
2. DDl, DIA, & DD2: The following institutions are designated for permanent placement and housing of inmates identified as requiring placement under DD 1, DIA, and DD2 criteria:

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,( California Institution for Women (CIW); Levels III, EOP, and Substance Abuse Program (SAP)
,( California Medical Facility (CMF); Levels II & III, EOP, and HIV
,( California Rehabilitation Center (CRC); Level II and Civil Addict Program (CAP)
,( California State Prison, Corcoran (COR); Levels I & IV, EOP, HIV; and SHU
,( California State Prison, Los Angeles County (LAC); Level IV, EOP, and Sensitive Needs Yard (SNY)
,( Central California Women's Facility (CCWF); all Levels; EOP, HIV, and SAP
,( Mule Creek State Prison (MCSP); Levels I & IV and SNY
,( Richard J. Donovan Correctional Facility (RID); Levels I & III, EOP, and United States Immigration and Naturalization Service (USINS)
,( California Substance Abuse Treatment Facility and State Prison at Corcoran (SATF); Levels II & III, SAP, and SNY
,( Valley State Prison for Women (VSPW); SHU only
,( California Correctional Institution (CCI); Youthful Offender Program (YaP) only
Institution stafl must designate a specific facility/unit within the institution for placement of DDI inmates. Institution staff handling placement of DIll, and DD2 inmates must designate specific buildings/units/wings within that institution for placing such inmates.
3. DD3: The following institutions are currently designated for permanent placement and housing of inmates identified as requiring specialized placement under DD3 criteria:
,( California Medical Facility
,( California Men's Colony (CMC)
,( Central California Women's Facility
Inmates in the yap identified as requiring DD3 level of care will be retained in the yap designated housing. Clinical staff will be responsible for augmenting the clinical level of care required for DD3 inmates as prescribed in Section IV, K, of this plan. Using existing YOP processes, yap staff must complete the documentation of routine adaptive support services provided to DDP inmates housed in yap.
4. Autism/Cerebral Palsy/Epilepsy: Inmates identified with Autism/Cerebral Palsy/Epilepsy must be placed according to existing health care criteria and as medically indicated.

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D. CONSERVATION
1. Inmates who are verified as developmentally disabled (DDI, DIA, DD2, DD3) must not be precluded from assignment to a conservation camp based solely on their developmental disability, IDSTIlCC/UCC at designated institutions must review these inmates for camp assignment on a case-by-case basis, after a period of observation and thorough evaluation of adaptive deficits and required adaptive support services. The evaluation will determine whether or not the inmate presents a potential for victimization. is capable of performing the essential functions of the assignment, and can function safely given the limited custodial supervision of a camp setting; e.g., escape potential, victimization, etc.
2. Before being placed in a camp, inmates initially identified as DDO at the RC must both be re-evaluated by clinical staff within 120 to 210 days after completion of Phase 1Il, and found not to require adaptive supports, A DDO designation can only be applied by clinicians during RC processing.
3. When possible and without jeopardizing the fundamental nature of the program or legitimate penological interest, CDC may provide reasonable accommodations to allow participation.
E. SPECIAL HOUSING PLACEMENT
1. ADMINISTRATIVE SEGREGATION UNIT: The DDP inmates may be placed in an Segregation Unit CASU) consistent with existing departmental
procedures and inmate case factors. A CDC Form 128C-2 accompanying the CDC Form 114D, Order and Hearing for Placement/Retention in Segregated J.-Iousing. must include information obtained from the clinical staff member of the IDST (ICC at nondesignated institutions) regarding the inmate's participation in the DDP, and the support services required to function in the ASU environment. While in Administrative Segregation, the assigned psychologist will monitor the DDP inmates to determine whether they are functioning at an adequate level. If the DDP inmate's condition deteriorates, alternate placement and/or adaptive support services must be recommended. The assigned Medical/Psychiatric Officer of the Day must perform this function during weekends and holidays.
Periodic case review by the IDST (ICC at nondesignated institutions) will be done in accordance with CCR, Title 15, starting at Section 3335. Clinical staff must personally interview the inmate and provide necessary information to custody staff by a CDC Form 128-C within 24 hours of placement in the ASU. A Psychiatric Technician must make personal contact with each DDP inmate on a daily basis to monitor the inmate's adaptive functioning.
The ASU staff, using existing ASU processes (CDC Form 114A), must complete the documentation of routine adaptive support services provided to DDP inmates housed in ASU.
2. SECURl'I'Y HOUSING UNl'I': Security Housing Unit (SHU) housing as stated in CCR, Title 15, Section 3341.5(c), must be provided in at least one designated

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facility for inmates of each gender with developmental disabilities affecting placement. Periodic case review by the IDST (ICC at VSPW) will be done in accordance with CCR, Title 15, starting at Section 3335. A Psychiatric Technician must make personal contact with each DDP inmate on a daily basis to monitor the inmate's adaptive functioning.

a) Identified DD1, DIA, and OD2 inmates who are assessed SHU terms must be placed in the VSPW (female) or COR (male) SHU. Clinical staff evaluations must be conducted and support services provided as recommended by CDC Form 128C-2. The IDST (ICC with assigned psychologist at VSPW) must ensure the provision of adaptive support services necessary for the DDP inmate to function at a level that is adequate in a SHU setting. The assigned psychologist will monitor the DD I, D 1A, and DD2 inmates to determine whether they are functioning at an adequate level. A Psychiatric Technician must make personal contact with each DDP inmate on a daily basis to monitor the inmate's adaptive functioning. If a DD1, D1A, or DD2 inmate's condition deteriorates, placement and/or adaptive support services must be recommended.

Identified male DD} inmates requiring SHU placement must be placed 111 a PSU-currently California State Prison, Sacramento.

Identified female DD3 inmates requiring SHU placement must be housed at CCWF in a secure setting and provided clinical services and adaptive support, as necessary.

The SHU staft using eXlstmg SHU processes (CDC Form 114A), must complete the documentation of routine adaptive support services provided to ODP inmates housed in SHU.

3. PROTECTIVE HOUSING UNIT: The Protective Housing Unit (PHU) housing, as

stated in CCR,

15, Section 3341.5(a), must be provided in at least one

designated facility for inmates of each gender with developmental disabilities

affecting placement.

4. CONDEMNED HOUSING: Condemned inmates with developmental disabilities affecting placement must be accommodated in existing units for each gender. Condemned inmates with developmental disabilities must receive access to the same type of programs as condemned inmates who arc not disabled. Any exceptions to participation must meet the exclusions outlined in Section VII, A, 5, of this plan (inability to perform essential functions of program, misbehavior, refusal or failure to work, etc.).

5. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE (USINS): The IDST at designated institutions may recommend DOl, DJA, and DD2 inmates be housed at RJD for USINS processing. The DD3 inmates housed at CMF, CMC, or CCWF must be retained at their respective program institutions for USINS processmg.

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F. SUBSTANCE ABUSE TREATMENT AND CIVIL ADDICT PROGRAMS
1. SUBSTANCE ABUSE TREATMENT: The CDC must provide long-term, intensive, substance abuse treatment programs for male and female inmates with developmental disabilities comparable to those programs provided to nondisabled inmates.
II) Currently, the SAP at SATF is designated to provide substance abuse treatment for male inmates with developmental disabilities. Male inmates who are verified as DD 1, Dl A, or 002, and are eligible for the SAP shall be placed at SATF consistent with existing eligibility criteria.
The SATF rDST must review eligible inmates for SAP assignment on a case-by-case basis and complete a thorough evaluation of adaptive deficits and required adaptive support services.
Substance abuse treatment will be available for male inmates verified as 003 at their programming institution.
b) Currently, the SAP at CCWF is designated to provide substance abuse treatment for female inmates with developmental disabilities. All female inmate commitments verified as DO L D I A, or 002 who are eligible for the SAP, will be placed at CCWF consistent with existing case factors.
The CCWF lDST must review eligible inmates for SAP assignment on a caseby-case basis and complete a thorough evaluation of adaptive deficits and required adaptive support services.
Substance abuse treatment will be available for female inmates verified as DD3 at their programming institution.
c) Other SAPs may be added as they become available in designated institutions.
2. CIVIL ADDICT PROGRAM: The CDC must provide Civil Addict Program (CAP) placement male and female civil addicts with developmental disabilities in accordance with existing criteria.
Inmates who are verified as developmentally disabled must not be precluded from assignment to a CAP based solely on their developmental disability. These inmates must be reviewed for CAP eligibility on a case-by-case basis, after a thorough review of adaptive deficits and required adaptive support services. The review will determine whether the inmate is capable of performing the essential functions of the assignment
When possible and without jeopardizing the fundamental nature of the program or legitimate penological interest, CDC must provide reasonable modifications to allow participation.

CLARK REMEDIAL PLAN

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G. COMMUNITY CORRECTIONAL REENTRY CENTERS
1. Inmates with developmental disabilities must not be excluded from participation in the Community Correctional Reentry Center (CCRC) program based solely on their disability. The IDST/ICC/UCC must revIew these inmates for CCRC assignment on a case-by-case basis after a period of observation and thorough review of adaptive deficits and required adaptive support services. The review will determine whether the inmate is capable of performing the essential functions of the assignment, does not present a potential for victimization, and can function safely given the limited custodial supervision in the CCRC setting; e.g., escape potential, victimization, etc.
2. Before being placed in a CCRC, inmates initially identified as DDO at the RC must be both reevaluated by clinical staff within 120 to 210 days of completion of Phase III and found not to require adaptive supports.
3. When possible and without jeopardizing the fundamental nature of the program or legitimate penological interest, CDC must provide reasonable accommodations to allow participation.
4. Inmates with developmental disabilities determined by IDST/ICC/UCC to be eligible for placement must be assigned to designated CCRC facilities. At least one designated DDP facility must be maintained in each of CDC's four parole regions to accommodate DDP inmates of each gender who meet established CCRC criteria.
5. DESiGNATED COMMUNITY CORRECTIONAL REENTRY CENTERS
Currently. the following CCRCs have been designated for permanent placement and housing of inmates/parolees meeting the eligibility criteria. The CDC is currently seeking additional locations for placement of female inmates in Region I and Region II through the Request for Proposal process. Designated CCRCs are subject to change to enhance DDP placements or to replace designated facilities.

NAME OF CENTER

'I I LOCATION

GENDER REGION

HUB INSTlTUTJON

Turning Point. "G" Street

Fresno

I, Male

1

COR

----Vohmteersof America,-+--O-·-a-k-Ia~d---ili --M-a-l~ -+---I-I--+----S-Q------

Oakland West

I

i

Marvin Gardens

Los Ang-el-e-s--+i-'M"a'lc--

III

CIM

I

Working Alternatives

Los Angeles Female

III

CIW

1~,V,o-lu,n-te~e- rs-o-fcA.m-e-r~ ic-a,-4_~-L-o~ ng-- B, ea_c_ h +-t!-~,M,a-le--+--~I~V~r_--~hrC~R-C-----

Long Beach ---CMIPr()jeet Success

San Diego Tj - FeIna:Te] IV

ciW----

I

i

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H. FAMILY FOUNDATIONS PROGRAM
The Family Foundations Program (FFP) is an alternate sentencing program designed for pregnant and/or parenting women to serve 12 months in a residential treatment program with their children (under the age of six).
Female inmates with developmental disabilities who are eligible under departmental policy (as described in Sections VII, A-B, essential functions of programs) and meet the eligibility criteria for FFP placement per PC Section 1174 and CCR Section 3074.3 shall be placed in FFP facilities. When possible, and without jeopardizing the fundamental nature of the program or legitimate penological interest, CDC shall provide reasonable accommodations to allow participation. Eligible female inmates who are directly placed into the FFP by a court shall receive Phase I screening by FFP clinicians. The HCSD Clark Coordinator shall arrange for Phase II, III, and IV screening as needed. The FFP facilities currently available are:
* Santa Fe Springs
* San Diego
As new FFP facilities are activated, CDC will designate additional DDP facilities as appropriate.
1. COMMtJNlTY PRISONER MOTHER PROGRAM
The Community Prisoner Mother Program (CPMP) is a mother/infant program under which women inmates sentenced to state prison and who have one or more children under the age of six. reside together in a community treatment program. Female inmates with developmental disabilities who are eligible under departmental policy (as described in Section VII, A-B, essential functions of programs) and meet the eligibility criteria for CPMP placement per PC Section 3410 shall be placed in appropriate CPMP facilities. When possible. and without jeopardizing the fundamental nature of the program or legitimate penological interest, CDC shall provide reasonable accommodations to allow participation. Because inmates receive their adaptive support evaluations and have been initially screened for CPMP eligibility at RCs before being placed into a CPMP facility, the only screening that may be necessary, if at all, would be Phase IV. The HCSD will arrange for Phase IV screening as needed. Currently, the following CPMP facilities have been designated for placement and housing of eligible female inmates with their eligible children:
NORTH
* East Bay Community Recovery Project-Project Pride, Oakland * Volunteers of America-Booth Family Apartments, Oakland
*SOUTH Prototypes, Pomona

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As new CPMP facilities are activated, CDC will designate additional DDP facilities as appropriate.
J. RESTITUTION CENTER
Inmates with developmental disabilities must not be excluded from participation in the Restitution Center. When possible, and without jeopardizing the fundamental nature of the program or legitimate penological interest, CDC must provide reasonahle accommodations to allow participation. Male and female commitments who are verified as DDl, DIA, or DD2, and eligible for the Restitution Center, must be placed at the Restitution Center consistent with existing eligibility criteria.
K. DD3 PROGRAM
The DD3 Program will continue to be developed. The CDC will review the program with input from the court experts and inmates' counsel one year after the final Remedial Plan is filed with the court to determine whether it is adequate and effective.
L. DEPARTMENT OF DEVELOPMENTAL SERVICES PLACEMENT
The CDC reserves the right to refer DDP inmates to Department of Developmental Services (DDS) for consideration of placement in a Developmental Center under PC Section 2684. Such transfer request can be accepted or rejected by DDS only after an evaluation is completed by DDS. The CDC recognizes that DDS follows criteria set forth in Welfare and Institutions Code 4512 and any DDP inmate that does not meet that definition will not be considered for this type of transfer.
V. TRACKING
A. CLASSIFICATlOf> TRACKING ';;V'Tli<M
Inmates identified as developmentally disabled must be tracked in the Classification Tracking System (CTS) database by using CDC Form 839, Classification Score Sheet, and CDC Form 840, Reclassification Score Sheet, consistent with current policy. The CSRs (or other staff acting as the CSR) must enter one of the DDP level designations (NCF, DDO, NDD, DDl, DIA, DD2, or DD3 as indicated on CDC Form 128C-2) in the second or third Administrative Determinant field in the CSR section of CDC Form 839 or CDC Form 840. As a result, the CTS will identify the developmental disability designation and current housing location of each identified DDP inmate.
B. INSTITUTION TRACKING
The C&PRs and RC CC-lIIs must develop institution procedures and a database for tracking developmentally disabled inmates (DD 1, D 1A, DD2, DD3) at their institution based on CDC Forms 128C-2. This tracking database is to be kept in the Records Office readily accessible to the C&PR/RC CC-III. The C&PR/RC CC-III should distribute a DDP list to the appropriate areas. These procedures must include

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annotating the DDP level designation on the Institutional Staff Recommendation Summary; on a CDC Form 816, Reception Center Readmission Summary; and on a CDC Form 128-G. This tracking document must be sent to the Health Care Manager on a weekly basis.
Custody staff in Receiving and Release must develop a list and send it to both the mental health department and C&PR for each DDO, DDl, D lA, DD2, and DD3 inmate who arrives at the institution.
C. INSTITUTION
The HCSD staff are responsible for tracking inmates identified as DDO. Health care statT must ensure inmates initially identified as DDO are reevaluated within 120 to 210 days after completion of Phase IlL The clinician can and should reevaluate the inmate sooner if there arc observable signs of adaptive functioning deficits while in the GP of a nondesignated DDP institution. After reevaluating a DDO inmate, health care staff must complete a CDC Form 128C-2 redesignating DDOs as NDD. This CDC Form 128C-2 will be forwarded to the C&PR. The C&PR will complete a CDC Form 840 annotating the NDD coding change in the administrative determinate section. If the inmate is designated as DDl, DIA, DD2, or DD3 the case shall be submiited to the CSR for placement into the DDP.
The HCSD Clark Coordinator staff will track and maintain data including the number and names of inmates screened at RCs (NCF, DDO, NDD, DDl, DIA, DD2, DD3); the number and names of inmates referred for screening at programming institutions (NCF, DDO, NDD, DDL DIA, DD2, DD3); the results of the screenings; and the locations of identified DDP inmates.
VI. INSTITUTION ACTIVITIES AND SERVICES
A. SAFETY AND
Legitimate safety and security concerns must take precedence over any accommodations afforded to DDP inmates and may result in the temporary or permanent suspension of any such accommodation to ensure the safety of persons, security of the institutionifacility, or the integrity of an investigation. The CDC is not required to provide accommodations for inmates with developmental disabilities if the accommodation poses a direct threat to the safety and/or security of staff, inmates, or the public (see Section III, F).
B. HOUSING
During the bus intake process at a recclvmg designated DDP facility. and before housing any inmates, custody staff wit! screen all inmates with developmental disabilities for single cell status and compatibility, using CDC Form 1882. Inmates identified as DIA/DD2 must only be placed in the building designated for DIA/DD2's. Custody staff must screen all inmates placed in any housing unit designated for DIA/DD2 inmates. Non-DDP inmates with a history of sexual and/or predatory behavior against "weaker individuals" must not be housed in those

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designated buildings. The DD2 inmates with a history of sexual and/or predatory behavior under single-cell screening criteria (using CDC Form 1882) must not be housed in a cell/dorm/bay/section with inmates who have victimization concerns and may be single-celled based on single-cell criteria. Custody staff must review at least the following to ensure appropriate housing:
../ The CDC Form 128-G, CSR Endorsement Chrono, for review of developmental disability category designation.
../ The CDC Form 128C-2, for review of adaptive support services and/or indication of potential victimization.
../ Enemy concerns (CDC Form 812, Notice of Critical Case Info-Safety ofPersons, and CDC Form S12-C) .
../ Patterns of sexual and/or predatory behavior-especially within the past 12 months, such as:
• History of physical or attempted assault and determined to be the aggressor (an act of mutual combat in itself is not considered predatory behavior).
• History of possession of deadly weapons.
+ History of inciting disturbances, either verbal or written.
., History of in-custody sexual offenses, i.e., rape, forcible sodomy, oral copulation.
+ Documented conduct that demonstrates a pattern of victimization or
predatory/manipulative behavior.
This review should include, but not be limited to, the following documents: CDC Fcrm 128-B; CDC Form 128-C; CDC Form 128-G; CDC Form 115, CDC Form 837, Crime/Incident Report; CDC Form 1882; Confidential File; CDC Form 174, Probation Officer's Report; CDC Form 1676, Parole Charge Sheet,
etc,
C. IDENTIFICATION OF INDIVIDUAL ADAPTIVE SUPPORT SERVICES
After a period of observation, inmates identified as being DDP will undergo a second clinical evaluation within 120 to 21 () days after completion of Phase Ill. The second clinical evaluation will determine the adaptive support services the inmate will reqmre. The second clinical evaluation must include a clinical interview with the inmate, gathering information from different individuals, and reviewing data from multiple sources (refer to Section II, B, 4). The results of this Phase IV evaluation must be recorded on a CDC Form 128C-2. The CDC Form 128C-2 must be distributed by clinical staff as follows: original placed in the "General Chrono" section of the inmate's C-file, and copies for the health record; C&PR or CC-III; assigned CC-1; DDP Counselor (CC-l), correctional officers assigned to the inmate's

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housing unit who monitor the daily activities of developmentally disabled inmates; the Inmate Assignment Lieutenant and work supervisor; and the inmate.
Staff must ensure the information on CDC Form 128C-2 is not available to other inmates. Files containing such information are to be maintained in secure locations readily accessible to staff
D. STAFFING
Where the designated bnildingsiunitsiwings have been identified to house DlA, DD2, or DD3 inmates, staff identified below will be added to existing staff normally working at designated DDP facilities. Designated DDP staff must be assigned the specific duties and functions listed below. The duties and functions must be clearly identified in post orders and duty statements.
1. AMERICANS WITH DISABILITIES ACT COORDINATOR
* Coordinate and monitor the institution's overall compliance with the Clark
Remedial Plan.
* Establish a system to ensure communication between custody, clinical, and
education staff regarding the needs of DDP inmates in the institution.
* Act as a liaison between the institution and Headquarters staff, i.e., 1SOS,
Legal Affairs Division, HCSD, and other agencies, such as the DDS and Regional Centers.
* Assume a leadership role in preparing the institution for Clark monitoring tours by the Prison Law Office; ensuring all pertinent staff are present for the tours.
* Assume a leadership role in preparing the institution for departmental
compliance reviews.
* Ensure all staff receive training and follow-up training on the provisions of the
Clark Remedial Plan.
* Monitor the institution' s tracking system and ensure appropriate custody staff
are aware of inmate needs under the Clark Remedial Plan.
* Review periodically the institution's ADA appeals and identify ADA issues
raised and evaluate the institution's performance.
* At designated institutions, review, at least monthly, acts of serious misconduct
involving inmates in the DDP. This review should involve discussion of any CDC Forms 128-A or CDC Forms] 15 received by DDP inmates. The review should include inmate's C-File and medical records, discussion with DDP clinical staff, and the CDO and SA as appropriate. The purpose of the review is to examine Datterns of serious misbehavior and to determine whether the inmate's behavior, in violating CDC rules, is related to the inmate's developmental disability. Patterns of serious rule violations by DDP inmates should be referred to IDST/ICC/UCC for review of the appropriateness of the inmate's current classification and placement.

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2. CORRECTIONAL OFFICER
* Monitor inmate daily activities. * Participate in mST. * Provide support services as directed by IDST. * Maintain frequent contact with the inmate. * Contact inmate work assignment supervisor on a regular basis. * Monitor canteen activity on a regular basis. * Periodically inventory property, including canteen. * Provide staff assistance as needed. * Provide additional safety and security resources. * Document prompts, contacts, and services provided in the Unit Logs, etc.
* Consult with other custody staff as necessary to determine additional needs.
* Provide orientation to DDP inmates, as necessary.
* Communicate with and assist the DDP Counselor (CC-I). * Document contact with medical staff.
3. THE DOl' COUNSELOR (CC-I)
* Coordinate and monitor all developmentally disabled classification activities.
* Provide orientation to DDP inmates, as necessary.
* Participate in mST for all DIA, DD2 or DD3 inmates.
* Provide IDST relief coverage for absent CC-I of DD 1 inmates, as needed.
* Serve as a resource to the ADA Coordinator. * Serve as a resource to other counselors who manage DD 1 inmates. * Provide SA duties as req uired.
* Assist DDP inmates in the completion of forms and documents. * Assist DDP inmates with issues of classification, program assignments,
appeals, and elements of due process.
* Ensure recommended adaptive services are provided. * Maintain logs and records of issues relative to DDP inmates.. * Communicate with work supervisors regarding DDP inmates' progress. * Provide additional safety and security resources, as needed.
* Advise the inmate of services available through DDS.
* Maintain confidentiality of all information about developmentally disabled
inmates from all inmates.

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* Ensure information about developmentally disabled inmates is included on
CDC Form 611, Release Program Study; and BPT Form 1135A.
* Ensure the Regional Center referral forms are forwarded to the respective Regional Centers and attached to CDC Form 611.
* Document contact with medical staff.
* Upon notification from the LTA, inform the court of an inmate's
developmental disability.
* Inform other CC-Is with DDP inmates on their caseload of the notice to the
courts.
* Provide the court with information related to the inmate's developmental
disability when necessary.
4. DEVELOPMENTALLY DISABLED PROGRAM TEACHER
* Participate in lDST initially to help establish and later to review the program. * Communicate with and assist the DDP Counselor (CC-1).
* Provide and complete education forms during classification committees. * Ensure that a current TABE Complete Battery Reading score is available. * Ducat inmate for testing.
* Interview and test inmate with curriculum based testing.
* Identify educational needs of inmate. * With education supervisor approval, determine program design and method to
provide services.
* Collaborate with classroom teacher and other education staff.
* Provide support services as required. * Provide resources, materials, equipment and supplies.
* Schedule Student Study Team (SST) meetings and notify all necessary
members.
* Complete quarterly review to record progress on short term goals; complete
CDC Form 128-B and attach to the classroom teacher's CDC Form 128-E;
EducationlVocational Chrono.
* Schedule Individually Tailored Education Plan (ITEP) periodic reviews and
evaluations.
* Address needs of ITEP.
* Document progress/performance on CDC Form 128-B and CDC Form 128-E.
* Complete and generate necessary DDP reports.
* Provide educational services as described in Section VII, D.
* Assist in coordinating DDP training for education staff.

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* Develop program evaluation criteria. * Maintain necessary ITEP data of DDP inmates.
5. LIBRARY TECHNICAL ASSISTANT
* Communicate with and assist the DDP Counselor (CC-I).
* Communicate with other library staff about DDP library concerns.
* Communicate with DDP education staff.
* Interview DDP inmate and identify Law Library and leisure reading needs. * Provide reasonable access to forms, regulations and procedures in the library. * Ducat inmate for law library use as appropriate. * Ensure DDP inmates understand--to the best of their ability-how to gain access
to the "door of the court."
* Provide reading and scribing law library services as needed.
* Document whatever services are provided to developmentally disabled inmates
on CDC Form 128-B, Library Log. etc.
* Notify the CC-I of the need to inform the court of an inmate's developmental
disability.
* Provide the ADA Coordinator with the information being forwarded to the
court.
* Provide orientation to all DDP inmates for Law Library and other library
servIces.
6. CLINICAL STAFF
* Conduct four phase screening process on inmates referred for DDP evaluation. * Complete CDC Form 128C-2 indicating the DDP level and initial adaptive
support services req uired.
* Conduct a Phase IV evaluation to determine specific adaptive support services
an.d document this on a CDC Form 128C-2.
* Track inmates participating in the DDP screening process. * Participate in IDST.
* Communicate with and assist the DDP Counselor (CC-1). * Document exchange of information between custody and clinical staff m
regards to DDP inmate's behavior.
* Complete follow-up clinical evaluations as needed. * Assist custody staff in developing and implementing the DDP and support
servIces.

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* Review adjudicated disciplinary actions (CDC Form 115) with the Chief
Disciplinary Officer (CDO).
* Provide support to non-DDP designated institution staff when questions arise
concerning a potential DDP inmate.
* Assist in pre-release planning. * Monitor DDP inmates placed in ASU. * Evaluate DDP inmate's ability to perform the essential functions of a camp
and/or other program assignment.
* Provide two-hour Clark Overview Training as part of New Employee
Orientation.

E. CONFIDENTIALITY

The DD designation of an inmate placed in the DDP is confidentiaL In accordance with CCR, Title 15, Section 3370, no inmate or parolee shall access another's case records file or file material. Furthermore, and in accordance with the same section, no inmate or parolee may access confidential information in or from their own case record file. Confidential information includes:
* Information that, if known to the inmate, would endanger the safety of any person. * Information that would jeopardize the security of the institution.
* Medical or psychological information that, if known to the inmate, would be
medically or psychologically harmful to the inmate.
* Information provided and classified as confidential by another government agency.

F. COUNT AND MOVEMENT

Each designated DDP institution and facility must review local policies and procedures to ensure DDP inmates are provided with necessary prompting so that they comply with count time expectations, respond to visits, keep work/school schedules, and respond to meals and other movement calls. Local operational procedures must reflect specific count and movement procedures for DD2 and DD3 inmates, Post orders for staff assigned to designated buildings/units/wings that house DD2 or DD3 inmates must reflect the specific count and movement procedures.

G.

,~ND ALARMS

1. WRITTEN MATERIALS: Each designated DDP institution/facility must ensure that CCR notices, orientation packages, announcements, and similar printed materials are accessible to inmates with developmental disabilities. Institution staff must provide the necessary assistance to all DDP inmates on a case-by-case basis to ensure that those who have difficulty reading and/or communicating in writing will be provided reasonable access to forms, regulations, and procedures. Local operational procedures must reflect specific notices, announcements, and alarm

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procedures for DD2 and DD3 inmates. Post orders for staff assigned to provide such services to DD2 aud DD3 inmates must reflect these specific procedures.
2. VERBAL ANNOUNCEMENTS: Each designated DDP institution/facility must ensure effective communication is made with inmates with developmental disabilities regarding public address announcements and reporting instructions, including those regarding visiting, yard release and recalL count, lock-up, and unlock, etc. Local operational procedures must reflect specific requirements for verbal announcements impacting DD2 or DD3 inmates. Post Orders for staff assigned to provide such services for DD2 or DD3 inmates must reHect these procedures, i.e., prompts for visits or hearings, if inmate does not respond.
H. SPECIAL IDENTIFICATION
Custody staff assigned to units housing DDP inmates must maintain a separate roster with photo identification for eaeh DDP inmate and corresponding CDC Forms 128C-2 in a secure location. Staff must use this information to identify DDP inmates and provide for their special needs. Inmates must not have access to this information.
J. EVACUATION PROCEDURES
1. Local evacuation procedures must be adopted at each designated DDP facility to ensure the safe and effective evacuation of inmates with developmental disabilities. Local operational procedures must reHeet specific evacuation procedures for DD2 or DD3 inmates. Post Orders for staff providing such services for DD2 or DD3 inmates must reflect these procedures.
2. All DDP inmates will be provided instructions for evacuation/emergency procedures during orientation before initial classification at designated institutions.
J. INMATE SERVICES AND ACTIVITIES
Inmates must be provided reasonable accommodations as necessary to ensure access to prison services and activities in a manner consistent with their custody and privilege group designation.
1. ORIENTATION PROCESS: Upon arrival at a designated DDP institution, or facility, DDP inmates must be provided orientation by designated staff who have been trained to communicate with developmentally disabled individuals. The orientation process and information provided must be documented on a CDC Form 128-0. Document Receipt Chrono, or a CDC Form 128-B. Orientation must comply with provisions of CCR, Title 15, Section 3002 and must include information regarding all prison services and activities; e.g .• the appeals process, emergency procedures, mail processing, visiting, work assignments, recreation, religions services, food services, library access, etc. It must also include information about which staff are available to provide needed assistance; e.g., Appeals Coordinator and CC-I are available to assist with submitting appeals, the

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evacuation procedures, count and movement Local operational procedures and affected staff post orders must reflect orientation procedures for DDP inmates.

2. VISITING POLlCY: Reasonable accommodations must be afforded to DDP inmates in order to aid their full participation in visiting as provided in CCR, Title 15, starting at Section 3170; e.g., personal notification by staff, as needed, This policy applies to contact, noncontact, and family visiting.

3. RECREATION: Inmates with developmental disabilities must be provided an equal opportunity to participate in constructive athletic and recreational programs under safe and secure conditions, consistent with the inmate's custody level, classification, work/training assignment, privilege group, and security requirements consistent with CCR, Title 15, starting at Section 3220.

4. RELIGIOUS SERViCES: Reasonable efforts must be made to provide for the

religious/spiritual

of interested inmates with developmental disabilities

consistent with CCR, Title 15, starting at Section 3210.

5. FOOD SERViCES: Staff must ensure DDP inmates receive prompting to attend meals, as needed.

6. LIBRARV

Each DDP inmate must have access to a library, law library,

and related services, consistent with CCR, Title 15, starting at Section 3120.

Designated staff at designated DDP institutions who have been trained to

communicate with developmentally disabled people must provide library services.

Services may include: provision of forms-including assistance in reading and

scribing them, identifying research materials and providing them to the inmate,

access to electronic or inmate readers, and submission of forms/documentation to

the court. Staff must not provide legal advice or assistance and will not conduct

legal research,

7. TRANSPORTATION: The developmental disability designation must be indicated

on a

Form 135, Inmate Transfer Record, or a CDC Form 1018, Notice of

Return to Prison, to alert Receiving and Release and Transportation staff of a DDP

inmate's status, When requesting bus seats for DDP inmates, RC and

nondesignated institutions staff will indicate the developmental disability

designation in the "Comment/Purpose" field on the Distributed Data Processing

System/Interim Transportation Scheduling System, This process will allow the

Transportation Services Unit to prioritize the request and expedite the transfer of

the DDP inmate,

8. MAll.: Each inmate with developmental disabilities must be informed of the plan of operation for sending and receiving mail, consistent with CCR, Title 15, starting at Section 3130.

9. RELEASE PROGRAM STUDY: Before an inmate's reiease from custody, the assigned CC-I must use CDC Form 611 to provide documentation and notice to parole field staff of special needs related to the inmate's developmental disabilities; e.g., referral to DDS.

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a) The institution staff will emphasize to parole staff the importance of referring a DDP inmate to an appropriate Regional Center for an assessment upon parole, to assist with reintegration. If the inmate agrees to the referral and assessment, the CC-! will assist the inmate in completing the application form and mailing it to the Regional Center. If the inmate refuses the referral, the inmate will be advised by the assigned parole unit of the potential eligibility for Regional Center services and advised to apply for an assessment.
b) The C&PR/CC-IIl will notify parole field staff at least 210 days before the DDP inmate's parole date, by CDC Form 611 process, if an inmate has a verified developmental disability and what the inmate's specific needs are. CDC Form 611 and copies of the latest CDC Forms 128C-2 must be forwarded to the parole region to ensure sufficient time for reentry processing. Such forms should be transmitted in accordance with existing policies and procedures. The CDC Form 611 must also indicate whether the inmate has refused the referral process or been referred to a Regional Center for assessment and, if so, the outcome-and the individual treatment plan, if any.
c) In cases where a parolee's status is Return to Custody, a CDC Form 1121 must be completed. The latest copy of CDC Form 128C-2 must be attached to the CDC Form 1121 and forwarded to the appropriate Parole Region. The inmate's developmental disability category must be written on the CDC Form 1121 in the Reporting Instructions Section.
d) The C&PR/CC-Ill will notify the Regional Center within 210 days before the impending reiease of an inmate with developmental disabilities.
e) The C&PR/CC-Il! and the institution Health Care Manager must facilitate the Regional Center assessment of an inmate with developmental disabilities,
K. MEDICAL CARE
Inmates with developmental disabilities must have access to necessary medical, psychiatric, and dental care in accordance with CCR, Title 15, starting at Section 3350.
1. The assigned correctional officer, CC-I, and medical staff at designated DDP institutions will be responsible for assisting DDP inmates in obtaining emergency and routine health care, Assistance may include:
a) Assistance with completion of sick call requests, including assistance with requesting and obtaining new prescriptions and refills,
bJ Prompt/escort to medical appointments.
c) Referral to medical staff if the inmate appears to have symptoms that may require medical care.

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2. Medical staff must be trained to communicate with developmentally disabled individuals and to gather information necessary to provide medical/psychiatric/ dental services.
3. The inmate may accept or decline recommended treatment. The decision to refuse treatment is reversible at any time and must not prejudice future treatment. The inmate must not be deemed incapable of refusing or providing informed consent to treatment solely because of his/her developmental disability. Refusal to accept recommended treatment must be documented on a CDC Form 128-B or a CDC Form 7225, Refusal of Examination and/or Treatment Form.
L. DISCIPLINARV PROCESS
1. To assist DDP inmates in conforming with departmental rules and regulations, all staff who interact with this population must closely monitor the inmates' daily activities. An employee may attempt to address problematic behavior informally; c.g., direct instructions, prompting, verbal counseling. The employee must ensure the inmate understands (to the best of his/her ability) the consequences of continued miscouduct. If this informal intervention successfully corrects the behavior, no further disciplinary action is required. If the inmate continues the misconduct and informal intervention was not successful-or the behavior was of a serious nature-the misconduct must be handled in accordance with CCR, Title 15, starting at Section 3310. The method of discipline may include:
* Issuing a CDC Form 128-A, Chrono-Custodial Counseling * Issuing a CDC Form 115
The staff member observing the misconduct must take into consideration the severity of the inmate's disability and the inmate's need for adaptive support services when determining the method of discipline.
2. To assure a fair and just proceeding, if the misconduct is recorded on a CDC Form 115 (administrative or serious rules violations). all DDP inmates must be assigned an SA. The SA can be any staff who have received training referenced in Section X, D, and training in due process hearings. The assigned SA may be assisted by a bilingual aide, reader, mental health clinician, etc., as necessary. In accordance with CCR, Title 15, Sections 3318(b) and 3315(d)(2), the SA must:
* Inform the inmate of his/her rights and ensure that he/she understands the
disciplinary procedures to the best of the inmate's ability.
* Help the inmate to prepare for the disciplinary hearing. * Represent the inmate's position at the hearing. * Ensure the inmate's position is understood. * Ensure the inmate understands-to the best of his/her ability-the decisions
reached.

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* Provide the hearing official with information related to the inmate's
developmental disability and the adaptive support services required.
* Be present at the disciplinary hearing and all interviews related to the disciplinary process.
* Refrain from giving legal counselor specifying the position the inmate should
take in any disciplinary proceeding.
* Additional assistance as appropriate.
3. The hearing official must evaluate the circumstances of the misconduct and all evidence and information presented in the disciplinary hearing, including the inmate's identified adaptive support services, when determining the inmate's guilt or Innocence.
4. The SAs and hearing officials must be trained to communicate with DDP inmates. The SA must complete courses in the Overview of Developmental Disabilities, Staff Assistance for Inmates with Developmental Disabilities. and the Overview of the Inmate Disciplinary Process.
5. If the inmate is found guilty of a rules violation, the Chief Disciplinary Officer (CDO) must review the completed CDC Form 115 in accordance with CCR, Title 15, Section 3312.
6. The COO must consult with the clinician assigned to DDP inmates regarding the findings and disposition of the hearing before taking action. The clinician assigned to DDP inmates must provide input as to the effectiveness of the disposition in correcting the inmate's behavior. Both the CDO and clinician must sign the completed CDC Form 115. By signing the CDC Form 115, the clinician is not endorsing the disposition of the CDC Form 115, but only acknowledging the consultation. The need for the CDO to consult with clinicians concerning the disposition of CDC Forms 115 for inmates with developmental disabilities must be incorporated into applicable Lesson Plans, Post Orders, and Operational Procedures of all designated institutions.
In accordance with CCR, Title 15, Section 3313(c), the classification of a CDC Form 115 may be changed-before, during, or after a disciplinary hearingfrom serious to administrative. Other decisions for CDC Forms! 15 can be to:
* Affirm, reverse, or modify the disciplinary action and/or credit forfeiture.
* Order a different action or a different method of discipline. * Dismiss the charge. * Order a rehearing of the charge.
* Refer the charge for criminal prosecution.
* Order a combination of any of these actions.

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If a DDP inmate exhibits ongoing behavioral problems, institntion clinical staff shall refer the case to HCSD Clark Coordinator for assistance in assessing the causes of the behavior and creating an intensive behavioral modification and treatment plan,
The ADA Coordinator will review CDC Form 1155 at least monthly to identify any patterns of misbehavior that may be related to the DDP inmates' disabilities (see Section VI, L).
VII. INMATE EDUCATION AND WORK ASSIGNMENTS
A. ASSIGNMENT
1. It is departmental policy to ensure that inmates with developmental disabilities are afforded access to education, vocational, work, and other programs available to nondisabled inmates. Access must include reasonable accommodations such as prompts, graduated supervision, training, etc. Working with the DDP Counselor (CC-I) and the DDP Teacher, IDST will review at least once each year the education, vocational, and work assignments of inmates in the DDP. This review is designated to ensure that no artificial barriers have been erected to exclude inmates from participating in particular classes or programs. Modification of reading prerequisites, terminal objectives for a class or program, and other accommodations are essential if inmates with developmental disabilities are to have equal aecess to academic, vocational, and work assignments.
2, Inmates must be evaluated by IDST/!CC/UCC at designated DDP institutions for eligibility to participate in an education, vocational, worL or other program on a case-by-case basis. Eligibility to participate in any program depends upon the inmate's ability to perform the essential functions of the program with or without reasonable accommodations.
3. Inmates with developmental disabilities assigned to an education, vocational, work, or other program may receive additional supervision and training to help them meet the requirements of the assignment. Accommodations may include oral rather than written tests, lower production expectations, expanded time frames for completion of projects, etc.
4. All staff who interact with DDP inmates/parolees must receive trammg about developmental disabilities, including general information about adaptive deficits, adaptive support services, and effective communication.
5. Evaluation of an inmate's removal from a program assignment must be done on a case-by-case basis, and will take into account a number of factors including the inmate's ability to perform the essential functions of the program, the inmate's misbehavior and refusal or failure to work as directed. Whenever an IDSTIICC/UCC excludes an inmate from an assignment the exclusion must be based on one of the following criteria (see Section III, F, for expanded explanation of them):

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* The inmate's inability (0 perform the "essential function" of the assignment as
documented by the work supervisor on a CDC Form 128-B noting the specific essential function that the inmate cannot perform.
* The inmate's assignment would pose a risk to the safety of any inmate, staff, or
the public: the security of the institution; or harm legitimate penological interests.
* Accommodation for the assignment would result in a fundamental alteration to
the program; i.e., the nature or business of the program would not be met as intended.
* The reasonable accommodation required for the assignment presents an undue
financial or administrati ve burden.
B. ESSENT!.AL FUNCT!.ONS
Essential functions are the basic duties/requirements of services. assignments, or programs an inmate performs or receives. This does not include the marginal duties of the position, services, assignments, or programs. Duties and/or requirements must be examined to determine which tasks are essential and which are nonessentiaL Institutions must be careful not to establish eligibility criteria that screen out, or tend to screen out, inmates with developmental disabilities who have the ability to participate in the programs being offered. Education/work assignments must be defined to take into account functioning limitations:. e.g., difficulty/complexity of each task, lack of initiative, etc.
C. ASSIGNMENT MONITORING
The IDSTIICC/UCC actions at designated DDP institutions must be periodically monitored to ensure assignments of inmates with developmental disabilities are nondiscriminatory.
D. EDUCATION PROGRAM
1. ACADEMIC ASSIGNMENTS
Appropriate classroom education must be provided for eligible inmates with developmental disabilities at designated DDP institutions. All instructional (educational) staff will have credentials issued by the California Commission on Teacher Credentialing. Such credentials will allow instruction with an adnlt population. One instructor at each designated DDP facility must have a Special Education Credential. This instructor must be assigned as a Developmentally Disabled Program Teacher (DDPT) and shall provide consultation and assistance to other education staff as necessary.
Education shall include, but is not limited to, the following: education program for educating inmates with developmental disabilities, curriculum based testing, a basic literacy program, and individually tailored education programs as may be required. Education programs, currently in place in each of the institutions, have a

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competency based curriculum that is individually tailored to meet the educational needs of the inmate. It consists of seven major academic areas and a wide variety of vocational programs. Included in the academic curriculum are the following courses of study: Reading/Writing, Listening/Speaking, Life Skills, Arithmetic, Mathematics, GED preparation, and High School. These courses are divided into certification units and individual competencies. Each inmate will be assessed using this curriculum to determine what level of instruction is needed to ensure progress. As inmates complete and master the individual competencies, certifications (groups of related competencies) are mastered and completed, and the inmate progresses to more difficult or complex tasks.
The Reading/Writing course of study includes the competencies and skills necessary for a basic literacy program. Additionally, each institution has specific literacy programs that are available to all eligible inmates. Some of these include Laubach tutors, peer-tutoring programs, Computer Assisted Instruction Laboratories, and televised distance learning programs.
a) Identification: IDST/ICC/UCC at designated DDP facilities will determine the academic/vocational, PIA, or other work program placement for DDP inmates.
b) Classification: Staff from the education program will particIpate in IDST/ICC/UCC to assist the committee in arriving at an assignment for the DDP inmate to ensure an education and/or work assignment. Program decisions will be documented on a CDC Form 128-G and a Developmental Disability Program Placement Form. if assigned to an educational assignment. The education representative will be responsible for completing and distributing the Developmental Disability Program Placement Form. The placement fOfm will prioritize placement in a program and will be the first step in the assessment process.
c) Assessment: Once it has been determined by IDST/ICC/UCC that the inmate wants and/or needs an educational program, the Inmate Assignment Office will place the inmate in an appropriate level Adult Basic Education or Vocational program.
(1) All inmates assigned to Education will have a TABE Complete Battery Reading score. Scores from this test will determine the level of Adult Basic Education class appropriate for the individuaL
(2) Education staff will review all relevant information in the student's C-File to assist in identifying student educational needs; e.g., court, probationary, medical, schooL and/or any other records as needed. If educational records are not available, education staff shall assist the inmate in completing a request fOf records from the last school attended and/or other schools, as necessary, to determine the student's educational history.

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(3) Assigned education staff will have up to ten days from the date the inmate is assigned to complete all testing and assessments, using at least two assessment tools in addition to the TABE test. The assessment tools must include the Comprehensive Adult Student Assessment System (CASAS) and either the Brigance or Woodcock-Johnson. Behavioral observations of actual classroom and housing performance and inmate goals should also be considered. The assessment can be done while the inmate is waiting for placement. Ongoing testing and assessment is conducted using the CDC competency-based curricula and documented using the Competency Recording System.
d) Student Study Team: The Student Study Team (SST) will consist of the DDPT, the classroom teacher, an Education Supervisor and the inmate. The CC-l will be available for consultation, when appropriate. Its purpose will be to develop the ITEP and to discuss and record all needed accommodations for the inmate' s educational needs. This team must meet initially within ten days of assessment and placement in an education program, annually for review and reevaluation of goals and plans, and as needed throughout placement. The classroom teacher andlor the DDPT may request an SST meeting whenever there are extreme behavioral issues that must be addressed to prevent removal from the Education assignment. Educational program revisions must be reviewed by the SST. Any member not in agreement with the SST's decision must submit, in writing, a statement of reason for objecting to the plan. If the inmate is not satisfied with the plan, the inmate may submit an appeal by CDC Form 602, Inmate/Parolee Appeal Form, or CDC Form J 824. The inmate may also request additional information.
e) Individually Tailored Education Plan: All inmates who have been identified as developmentally disabled and assigned to Education programs will require development of an ITEP. Its purpose is to identify and document the educational and behavioral strengths and weaknesses of the DDP inmate through cogmllve testing, observation. and inmate feedback. The ITEP establishes the goals that appropriately address the areas identified and makes accommodations to the education program that enables the inmate to progress. It will be developed after placement in an education program (Academic or Vocational) and reviewed and reevaluated.
(1) One of the tests administered will be the CASAS. This test provides learner centered curriculum management, assessment and evaluation systems in education and training programs. The CASAS is an assessment system that includes standardized multiple choice, performance-based, and alternative assessment instruments to measure life skills, basic skills, and employability skills. All assessment is linked to competencies and instructional materials that focus on learner's goals.
(2) The second assessment tool can be either the Brigance or WoodcockJohnson. These tests will determine the baseline level of functioning through academic testing and behavioral observation. The results will

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identify the needs of the inmate to achieve success and be documented on the ITEP Student Information Form by the classroom teacher and/or work superVisor.
(3) Following the development of the ITEP, the classroom teacher will implement the recommended reasonable accommodations.
(4) Periodic Review and Evaluation:
(a) A quarterly review must be done by the DDPT. This review will document the inmate's progress on short-term goals. The review will be reported on CDC Form 128-B and be attached to the classroom teacher's CDC Form 128-E report.
(b) The ITEP must be reviewed at least every six months by the SST to reevaluate goals, measure student progress, and develop new goals as needed.
(c) Every three years, a full assessment must take place before the annual
reVIew.
f) Supplemental reasonable accommodations provided to academic and vocational students with developmental disabilities will be done on a "pull-out" basis. The "pull-out' basis allows for a student to be pulled out of the regular classroom activity to a different location within the institution or education area. This permits the student to remain "mainstreamed" in regular education programs while receiving specific assistance for the identified needs. The DOPT will provide this service in all program areas of the institution. The quota exemption for the DDPT allows flexibility for the teacher to move from one program area to another and allows the teacher to work with the inmates individually and in small groups, thereby reducing the inmatelteacher ratio as needed. The frequency and duration of "pull-outs" must be determined in the ITEP.
g) All education staff must ensure that the information on all education records (e.g., ITEP, CDC Form 128-E; CDC Form 128C-2; or any other record with information regarding the inmates' developmental disability) is not available to other inmates, and that Ilies containing these documents are kept in secure locations.
2. VOCATIONAL ASSIGNMENTS
One of the goals of vocational education is to provide eligible inmates with an opportunity to learn entry level employment skills, The inmate, with or without reasonable accommodation, must meet the eligibility criteria of the vocational assignment as defined in the course description and be able to perform the essential functions of the assignment. Educational staff must be careful not to establish eligibility criteria that screen out, or tend to screen out, inmates with developmental disabilities who have the ability to participate in the programs

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offered. Vocational programs may be considered regardless of reading level if the inmate/student has the capacity to benefit from a program based on individual need and assessment. All procedures, forms, and assessments used when an inmate is assigned to an academic program may be applied to vocational assignments; i.e., done on a "pull-out" basis.
Vocational programs are also competency based and afford inmates a wide range of instructional opportunities ranging from acquiring basic remedial skills to advanced certification, and/or licensing. Specifically, all vocational programs provide for basic instruction and skills development through a progressive series of certification units, much like the academic curricula. Several vocational programs are well suited to remedial basic skills while affording career and employability training as preparation for reentry into the job market. For example, Janitorial Services, Landscape Gardening, Office Services and Related Technology, and several of the Vehicular Repair curricula provide a remedial or basic skills instruction under close supervision that allows for mastery and progress at the inmate's own pace through individualized instruction,
All vocational programs also provide safety and related training on a weekly basis to ensure workplace awareness and heighten shop/program safety as it pertains to the working environment. Similarly, literacy training is also provided on a daily basis, in conjunction with the regular curricular offerings, to promote reading and comprehension development, as well as reinforcing the instructional process within the curricular area or subject. The instructional process also provides additional assistance on a case-by-case basis to meet each inmate's specific needs.
VIII. PAROLE FIELD OPERAnONS
A. POLlCY
Jt is the policy of CDC to provide reasonable accommodation to parolees with developmental disabilities consistent with established departmental policies and procedures. Parole planning and supervision must be conducted on a case-by-case basis to meet the unique needs of the parolee while protecting the legitimate penological interests of CDC. Parole staff who supervise parolees identified as developmentally disabled must receive training in effective communication with developmentally disabled individuals, as well as the role of Regional Centers and the services they provide, This training is intended to help parole staff recognize, communicate with, and refer parolees for clinical assessment within CDC.
B. RELEASE PHOGRAM STUDY
The institution C&PRs will notify parole field staff, by CDC Form 611, of any inmate with a verified developmental disability, as welJ as identified adaptive deficits and prescribed support services, The CDC Form 611 and copies of the latest CDC Forms l28C-2 must be forwarded to the parole region in accordance with existing policies and procedures for reentry processing. The CDC Form 611 must also indicate the inmate's Regional Center status; Le" the inmate has received

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services from the Regional Center in the past. requested a referral to and assessment by Regional Center Staff, refused to be referred for assessment, etc. At the time of parole or release, all DDP parolees who have not previously been evaluated by a Regional Center or who meet the basic criteria of the Regional Centers must be advised by parole staff of their potential eligibility for Regional Center services, and the procedures to request an assessment by the Regional Center.
In the event a DDP inmate has an imminent release date without having a CDC Form 611 processed. a CDC Form 611B. Oral Release Program Study, or CDC Form 1121, Notice of Release Date and Residence Plan, will be processed. The C&PR/RC CC-lII shall be responsible for faxing all supporting documents; e.g. CDC Form 128C-2, directly to the Parole Regional Reentry Coordinator (ADA Coordinator) for processing. The C&PR/RC CC-lll shall also contact the parole regional ADA Coordinator by telephone notifying him/her of the imminent release date and the adaptive support services needed. The contact with the parole regional ADA Coordinator shall be documented on a CDC Form 128-B.
C. ORIENTATION AND PAROLE EXPECTATIONS
Parole staff must eusure that upon reporting to a parole unit. parolees with developmental disabilities arc provided parole instructions in such a manner as to ensure the parolee understands-to the best of his/her ability-the parole process. the parolee's responsibilities, and the available assistance and services. Additionally, parole staff may provide reasonable accommodations to assist the DDP parolee in meeting the conditions of parole and avoiding technical parole violations; e.g., the parole agent may need to remind the parolee periodically to report to his/her assigned unit for Parole Outpatient Clinic (POC) appointments, Anti-Narcotic testing or scheduled appointments witb the assigned parole agent. Additionally, whenever possible, parole staff must advise DDP parolees of appointment dates and times in wntmg. This effort may signifi.cantly help DDP parolees adhere to parole mandates and avoid returns to custody for failure to follow instructions. If the parolee's developmental disability prevents him/her from reporting to the assigned unit, reasonable accommodation must be made to facilitate parole contact.
D. FIELD SUPERVISION/OFFICE VISITS
Parole Agents must continue to follow existing policies and procedures as they pertain to the supervision of parolees. The main services received by parolees in a parole office are basic counseling services and supervision provided by the parole agent, and mental health services, including testing, counseling, and psychotropic prescription provided by the Parole Outpatient Clinics. If a paroJee has a developmental disability, the unit supervisor must make reasonable modifications in procedures, if necessary, to ensure that the proper services are provided to meet the parolee's needs.
The P&CSD is responsible for obtaining documentation used to verify the inmate's claims of disability in response to a parolee's request for reasonable accommodation. Before June 30, 2001, all case-carrying agents notified active parolees whom they supervised of their rights under Title II of the ADA. At the same time, those agents

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identified parolees having disabilities and notified them of their rights in regards to their disabilities, by completing BPT Form 1073 (Notice and Request for Reasonahle Accommodation). New releases not previously processed through an RC shall be referred by field staff to clinicians for screening during the initial interview process. Parolees shall cooperate with staff in the staff s efforts to obtain documents or other information necessary to verify a disability and/or accommodation.
E. WRITTEN MATERIALS
Parole staff must provide the necessary assistance to all DDP parolees on a case-bycase basis to ensure those who have difficulty reading and/or communicating in writing will be provided reasonable access to forms, regulations and procedures; e.g. verbal communication.
F. PAROLE OUTPATIENT
Parolees with developmental disabilities, who have an Axis I diagnosis, must receive reasonable access to Parole Outpatient Clinic services for mental health evaluations or mental health diagnosis. Transitional, or occasionally sustained, therapeutic intervention on an outpatient hasis as provided to nOl1-DDP parolees must also be provided to DDP parolees. Treatment services may be supplemented by interagency agreements with other state and county agencies. Before l1onroutine services are provided, the Regional Parole Administrator and Mental Health Program Administrator must review them. Parole Outpatient Clinic (POC) staff must receive training in effective communication with DDP parolees.
G, REVOCATIOr-; HEARINGS
If a parolee has a developmental disability that impairs his/her ability to attend a hearing or communicate effectively with the hearing officer, arrangements must be made in advance to provide accommodations for the disability, in accordance with CCR, Title 15, Division 2, Sections 2692 and 2694. Staff responsible for serving notice to affected parolees must assist the parolee with completion of forms. The DDP inmates should always be represented by legal counsel at revocation hearings.
H. EVACUATION PROCEDURES
.:. In the event of an emergency requiring building evacuation, each parole office must ensure the safe and effective evacuation of parolees with developmental disabilities .
•:. Local evacuation procedures must be adopted at each parole office.
IX. ROLE OF THE REGIONAL CENTER
California's developmental disability community is served by 21 Regional Centers with more than 40 offices located throughout the state.

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Regional Centers provide or coordinate the following services for individuals with developmental disabilities and their families:
.:. Information and referral .:. Assessment and diagnosis .:. Counseling .:. Lifelong individualized planning and service coordination .:. Purchase and necessary services included in the individual program plan .:. Resource development .:. Outreach .:. Advocacy for the protection of legal, civil and service rights .:. Early intervention services for at-risk infants and their families .:. Genetic counseling .:. Planning, placement, and monitoring for 24 hours out of the home care .:. Training and education opportunities for individuals and families .:. Community education about developmental disabilities
Once Regional Center staff receives a referral from an institution, they will contact the C&PR and arrange to visit the institution, The C&PR will get authorization to release information to DDS. The DDS caseworker will review the inmate's C-File and Medical Record before interviewing the DDP inmate.
X. TRAINING
A. GENERAL
The CDC must train all custodial, clinical, and departmental staff who interact with DDP inmates/parolees. Clinicians and other staff experts in the subject matter areas must develop the training.
As a means of increasing staffs awareness of developmental disabilities and to increase their likelihood of referring inmates to the institution's health care services when there are indications of less than average adaptive functioning, staff must receive the following:
1. A self-study course, "Overview of Developmental Disabilities," for noncustody staff, including employees at DDP designated CCRCs, FFPs, and CPMPs. The course must focus on signs and symptoms of developmental disabilities, the referral process, and how to effectively communicate with developmentally disabled individuals. This self-study course will inform staff about:
II) Developmental disabilities.

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b) Behaviors indicating developmental disabilities.
c) Communication and interaction with DDP inmates/parolees.
d) Referring for evaluation inmates whose behavior may indicate developmental disabilities.
e) Screening and evaluation process.
f) Housing and types of adaptive support serVIces that may be provided to identified DDP inmates.
g) Reasonable accommodations for supervlsmg inmates/parolees with developmental disabilities.
h) The role of Regional Centers and institution and parole staff in the application process.
The self-study course will include a mandatory quiz to measure and assure each staff person has a basic understanding of developmental disabilities and CDC's resources for identified DDP inmates. The completion of each quiz must be documented in the employee's training fileslrecord.
B. NEW EMPLOYEE TRAINING
During New Employee Orientation, new employees and employees who transfer from one institution to another must receive the self-study course (noncustody staff) or the two-hour formal classroom presentation, "Overview of Developmental Disabilities," described below (custody staff), and the existing training module, "Signs and Symptoms of Mental Disorders." The two training tools include information on recognizing the signs and symptoms of developmental disabilities. The training tools also include the following:
1. Information about how inmates who "may not have serious mental disorders but show significant impairment in day-to-day living" may receive treatment or other services through the Mental Health Services Delivery System.
2. The addition of "unable to follow daily routine or instructions" and "vulnerable" to the list of "behavioral symptoms" that may resl.llt in referral.
3. The addition of the statement "Always make a referral when there is a concern for the inmates' ability to care for themselves or protect themselves from being taken advantage of," to the discussion of "symptoms warranting referral."
4. The addition to the Student Handbook of a one-page description of the symptom characteristics of mental retardation, which accompanies the "Signs and Symptoms of Mental Disorders" training module.

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C. INSTITUTIONAL PSYCHOLOGISTS AND SOCIAL WORKERS
Institutional Psychologists and Social Workers must be trained on testing and evaluating mental retardation.
1. The training module will cover testing and evaluating mental retardation, and making recommendations for adaptive support services. Training will include:
a) Reviewing criteria for mental retardation.
b) Reviewing the Lanterman Act's description of developmental disabilities.
c) Reviewing the standardized instruments for testing cognitive ability; I.e., Quick, TONI-Third Edition, GAMA, and CASE tests.
d) Using various tools to evaluate adaptive functioning.
e) Reviewing proposed criteria for adaptive support services; i.e., placement into settings according to designation as DDI, DIA, DD2, or DD3.
2. Training must be provided, as necessary, to all departmental psychologists and Social Workers at all Department facilities prior to implementation of the Remedial Plan.
3. Each institution will receive the testing materials required for testing mental retardation; i.e., the Quick, TONI-Third Edition, GAMA and CASE, before implementation of the Remedial Plan.
D. CUSTODY STAFF
All custody staff must receive the two-hour formal classroom-training module "Overview of Developmental Disabilities." Departmental Psychologists and Social Workers must train such staff. The two-hour overview must contain information as described in Section X, A, 1, above.
All custody staff must be trained m "Referral of Inmates Who May Have a Developmental Disability."
All staff participating in classification functions (IDST/UCCIICC) must be trained in "Classification Services for the Inmate with Developmental Disabilities."
All custody staff at designated DDP institutions must be trained in "Programming and Services for Inmates with Developmental Disabilities."
All staff assigned to IDST or as SA for an inmate identified as developmentally disabled must be trained in "Overview of the Inmate Disciplinary System."
All staff conducting disciplinary hearings for inmates identified as developmentally disabled must be trained in "Hearing Official for the Inmate with Developmental Disabilities. "

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All staff assigned as an SA to an inmate identified as developmentally disabled must be trained in "Staff Assistance for the Inmate with Developmental Disabilities."
All custody staff must receive a two-hour refresher course each year about the requirements of the DDP.
E. CLINICIANS IN PAROLE OlTPATIENT CLINICS
In addition to the self-study course, clinicians in the Parole Outpatient Clinics must receive training III effective communication with developmentally disabled individuals.
XI. COMPLIANCE REVIEWS
The CDC must conduct annual Compliance Reviews of the court-approved Remedial Plan in both designated and nondesignated institutions. This compliance review will be used to monitor institutions' compliance with the Remedial Plan. to ensure that inmates with developmental disabilities are being effectively identified, and to ensure that the identified needs of those inmates are being met. The compliance document will reflect the type of facility, RC, DDP, or non-DDP being reviewed. The review will be accomplished using a uniform. standardized instrument developed to ensure implementation of the Remedial Plan. The instrument will contain a standard set of inquiries that will monitor-at minimum-classification, appeaL and disciplinary processes; inmate assignments; and provision of required services. Inmates' counsel will have an opportunity to review the instrument before implementation of the Compliance Reviews.
A formal report of the findings and recommendations of the review must be prepared and forwarded/presented to the Warden. The Warden must respond by submitting a Corrective Action Pian for correcting the noted deficiencies and may include a discussion of any findings considered to be in error. The Corrective Action Plan must fix responsibility. specify the actions to be taken to correct the deficiencies, and establish the time limits within which corrective actions must be completed.

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INSTRUCTIONS

NCF
DDO
NDD

Scored above 80 on Quick Test or TONI-3, or above 75 on GAMA or Wechsler.
Inmate did not pass or did not take a cognitive test. Adaptive support evaluation at the Reception Center identified no substantial deficits in self-care, activities of daily living, social skills, or self-advocacy. Inmate will be reevaluated within 120-210 days.
Inmate did not pass or did not take a cognitive test. Adaptive support evaluation on the mainline identified no substantial deficits in self-care, activities of daily living, social skills, or self-advocacy.

Inmates classified with designations listed below require adaptive support services to function in institution settings. The Clark Remedial Plan requires the assignment of a Staff Assistant for ali due process hearings involving Developmental Disability Program (DDP) inmates.

DDl D1A*
DD2 '*
DD3 '*

SELF-CARE: Does not usually require prompts to initiate/complete all aspects of self-care. DAILY LIVING SKILLS: May occasionally need prompts to initiate cell cleaning, laundry, etc. May need additional time to be oriented/trained in new situations and jobs. SOCIAL SKILLS: Appears to interact appropriately with other inmates and staff. May need adaptive supports or additional supervision when under unusual stress or in new situations. SELF-ADVOCACY: With staff assistance, inmate demonstrates understanding of relevant issues in a hearing process. May require help in reading, writing, and preparing documentation.
Same support needs as DD1 except: Victimization Concerns: See below.
SELF-CARE: Requires occasional prompts to initiate/complete all aspects of self-care. DAILY LIVING SKILLS: Usually needs prompts to initiate cell cleaning, laundry, etc. Needs additional time to be oriented/trained in new situations and jobs. SOCIAL SKILLS: May need adaptive supports and additional supervision for appropriate interaction with others, following rules, and avoiding social isolation. SELF-ADVOCACY: With staff assistance, may demonstrate poor understanding of relevant issues in a hearing process. Likely to require help in reading, writing, and preparing documentation. Victimization Concerns: See below.
SELF-CARE: Usually requires prompts to initiate/complete all aspects of self-care. DAILY LIVING SKILLS: Usually needs prompts to initiate cell cleaning, laundry, etc. Needs additional time to be oriented/trained in new situations and jobs. SOCIAL SKILLS; Needs adaptive supports and additional supervision for appropriate interaction with others, following rules, and avoiding social isolation. SELF-ADVOCACY: With staff assistance, unlikely to demonstrate understanding of relevant issues in a hearing process. Requires help in reading, writing, and preparing documentation. Victimization Concerns; See below.

*Victimization Concerns (D1A, DD2 and D03): Requires housing in a designated DDP
building/unitJwing, consistent with other case factors. These inmates may be easily influenced by others to give up personal property, engage in illegal activity, or other inappropriate behavior. Also may be at risk for nonconsensual sexual behavior or physical abuse.

CDC 128C-2 (1117101)

RECOMMENDA nON FOR ADAPTIVE SUPPORT

PROVISIONAL

Inmate Name _______________(:01:;# _ _ _ _ _ Institution _ _ _ Housing _ __

Excluded from Developmental Disabilitv Program (PDP):

0 NCF

Received passing score on cognitive test No further evaluation needed without referral.

DDO 0 Inmate did not pass or did not take a cognitive test, no adaptive support needs, provisional.

Reevaluate within 120-210 days_

0 NDD

Inmate did not pass or did not take a cognitive test, no adaptive support needs,

No reevaluation needed without referral.

Included in DDP: Inmate must always have a Staff Assistant in disciplinary hearings,

classification committee hearings, and in all contacts involving the IJse of a CDC Form 114-D

(administrative segregation reviews and hearings). In addition:

0 DDl

Does not usually require prompts to initiate/complete self-care and activities of daily living,

Inmate may need adaptive supports when under unusual stress or in new situations.

D1A*O Same functional ability as DD1_

*' DD2 0 Requires occasional prompts to initiate/complete self-care and activities of daily living,

DD311: 0 Requires frequent prompts to initiate/complete self-care and activities of daily living,
'* Victimization Concerns: requires housing in a designated DDP building/unit/wing, consistent with other case factors.

Justification of 000 and NOD

Needs of 001 01 '" '''' and 003:

Check one: o0 o

Regional Center Consumer May be eligible for Regional Center referral (possible onset before age 18) Not eligible for Reaional Center referral (no deveiopmental disabilitv before age 18)

Mental Health Clinician: - - - - - - - - - - - - - - - - - - - - - - c = - - - - - - - - - - - - - -

Signature

Prim or stamp name

Title

Date

(lUhe above is unlicensed)

Licensed Clinician:

Signature

Print or stamp na.me

Title

Date

DISTRIBUTION:

ORIGINAL: COPIES:

Central File Unit Health Record DDP Counselor

Assigned CC~1 C&PR or CC-III

Housing Unit Education File

11M Assignment Office Work Supervisor

Inmate

DDP