Case 8:01-cv-00981-ABC-MLG Document 46

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Filed 08/26/2002 Page 1 of 8
FILED

AU8 262002

CLERK, U.S. DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION AT SANTA ANA

BY

DEPUTY

6

7 8

_t UNITED STATES DISTRICT COURT

antI' ()~ \CMS
1•

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

12 FRED PIERCE, et al.,

13

Plaintiffs

No. SA CV 01-981 GLT (MLGx) ORDER GRANTING

14 vs.
15
16 County of Orange, et ai.;

, DENYING DEFENDANTS' MOTION FOR A MORE DEFINITE STATEMENT, AND GRANTING PLAINTIFFS' MOTION TO AMEND

17
(\'\~18
V 19
20 21 22 23
24
25 26 27 28

Defendants.

Calendar Item #12

'l:r'"
Defendants' Motion to Dismiss is GRANTED in part with ~ days leave to amend. Defendant's Motion for a More Definite Statement is DENIED. Plaintiffs' Motion to amend is GRANTED.
I . BACKGROUND Plaintiffs brought class action claims against Defendants County of Orange, Sheriff Michael S. Carona, and Doe Defendants 1-200, alleging violations of Plaintiffs' civil right and rights established under Stewart v. Gates, 450 F. Supp. 583 (C.D. Cal. 1978). Plaintiffs claim they were detained for an unreasonable period of time after they

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Case 8:01-cv-00981-ABC-MLG Document 46 Filed 08/26/2002 Page 2 of 8

1 were entitled to release, denied Stewart v. Gates rights including

2 seats in holding cells, outdoor exercise, day room and telephone

3 access, and/or denied rights under the American with Disabilities Act

4 (ADA).

5

Defendants move to dismiss Plaintiff's 5th, 6th, and 8th claims

6 for failure to state a claim upon which relief can be granted pursuant

7 to Federal Rule 12(b) (6). Defendants also move for a more definite

8 statement under Federal Rule 12(e). Defendant further moves to

9 dismiss Plaintiffs' supplemental state claims. Plaintiffs request

10 leave to amend the complaint to include additional asserted

11 violations.

12

II. DISCUSSION

13

A. Defendants' 12(b) (6) Motion to Dismiss

14

The function of a Rule 12(b) (6) motion is to test the legal

15 sufficiency of the claims stated in the complaint. The Court

16 construes the complaint in the light most favorable to the plaintiff

17 and accepts all well-pleaded factual allegations as true. Cahill v.

18 Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). "However,

19 the court is not required to accept legal conclusions cast in the form

20 of factual allegations if those conclusions cannot reasonably be drawn

21 from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d

22 752, 754-55 (9th Cir. 1994).

23

Dismissal is proper only where there is either a "lack of a

24 cognizable legal theory or the absence of sufficient facts alleged

25 under a cognizable legal theory." Balistreri v. Pacifica Police

26 Dept., 901 F.2d 696, 699 (9th Cir. 1990). Thus, the question is

27 whether the facts alleged, if true, would entitle the plaintiff to any

28

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Case 8:01-cv-00981-ABC-MLG Document 46 Filed 08/26/2002 Page 3 of 8

form of relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

2 Parks Sch. of Bus" Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.

3 1995).

4

1. 5th Claim: Violation of California Civil Code Section

5

.21......l

6

Plaintiffs sufficiently state a claim for relief under California

7 Civil Code Section 52.1.

S

Section 52.1 creates a cause of action against "a person or

9 persons, whether or not acting under color of law, [who] interferes by

10 threats, intimidation, or coercion, or attempts to interfere by

11 threats, intimidation, or coercion, with the exercise or enjoyment by

12 any individual or individuals" of federal or state constitutional or

13 statutory rights. Defendants argue Plaintiffs failed to state a claim

14 under Section 52.1 because Plaintiffs did not allege membership in a

15 protected class or deprivation of rights by "threat, intimidation, or

16 coercion."

17

Plaintiffs are not required to allege they were members of a

18 protected class in order to bring a Section 52.1 claim. Stats.2000,

19 c.98, Section 1 ("Section 52.1 of the Civil Code guarantees the

20 exercise or enjoyment by any individual or individuals of

21 rights ... without regard to his or her membership in a protected

22 class .... ") . In their Second Amended Complaint (SAC) , Plaintiffs

23 allege they were falsely imprisoned due to unnecessary delays in

24 release and subject to specific detention conditions in violation of

25 their rights under the ADA and Stewart v. Gates, 450 F.Supp. 583, 590

26 (CD Cal., 1978), and specifically allege Defendants interfered with

27 Plaintiffs' enjoyment of their rights "by threat, intimidation or

28

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Case 8:01-cv-00981-ABC-MLG Document 46 Filed 08/26/2002 Page 4 of 8

coercion." SAC '42-43. Plaintiff's short and plain statements of

2 their claim, showing they are entitled to relief and demanding

3 judgment for relief meets the pleading requirements of Federal Rule 8.

4

Plaintiffs sufficiently state a claim for relief under Section

5 52.1. Defendants' motion to dismiss Plaintiffs' 5th claim is DENIED.

6

2. 6th Claim: Violation of California Constitution

7

Plaintiffs also sufficiently state a claim for relief with

8 reference to the California Constitution. Defendants argue

9 governmental liability is limited to exceptions specifically set forth

10 by statute, and the provisions invoked by Plaintiffs do not authorize

11 such liability.

12

Section 52.1 authorizes suits for damages resulting from state or

13 federal constitutional violations, including violations by persons

14 "acting under color of law." Section 52.1(b); Reynolds v. County of

15 San Diego, 84 F.3d 1162, 1170 (9th Cir. 1996). The Court will

16 construe this claim to be an additional Section 52.1(b) claim.

17 Defendants' motion to dismiss Plaintiffs' 6th claim is DENIED.

18

3. 8th Claim: Injunctive and Declaratory Relief

19

Plaintiffs have not sufficiently stated a claim for injunctive and

20 declaratory relief.

21

In order to have standing to seek injunctive or declaratory

22 relief, a plaintiff must have suffered injury and there must be

23 substantial likelihood he will again be subjected to the allegedly

24 unlawful policy in the future. City of Los Angeles v. Lyons, 461 U.S.

25 95, 111 (1983). Also, the injury alleged must be capable of being

26 redressed through injunctive relief "at that moment." County of

27 Riverside v. McLaughlin, 500 U.S. 44, 51 (1991).

28

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Case 8:01-cv-00981-ABC-MLG Document 46 Filed 08/26/2002 Page 5 of 8

1

Plaintiffs allege Defendants were engaged in the unlawful

2 practices against Plaintiff Conn at the time the SAC was filed; Conn

3 was then held in the main Men's Jail and subject to the allegedly

4 unlawful jail conditions. SAC ~14. This allegation is sufficient for

5 Conn, and the class can join in this claim if it is certified.

6

Plaintiffs also allege "a realistic probability· exists that

7 Plaintiffs will be subject to the allegedly unlawful practices of

8 . Defendants in the future, but do not allege any facts to support that

9 conclusion. This is insufficient.

10

Plaintiffs have failed to state a claim for which injunctive and

11 declaratory relief can be granted. Defendants' motion to dismiss

12 Plaintiffs' 8th claim is GRANTED with 20 days leave to amend.

13

B. Defendants' 12(e) Motion for a More Definite Statement

14

A Rule 12(e) motion for a more definite statement must be

15 considered in light of the liberal pleading standards of Rule S(a),

16 which require a complaint need only be a "short and plain statement of

17 the claim showing that the pleader is entitled to relief." FRep 8 (a);

18 Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (CD Cal. 1996). Rule

19 12(e) motions for a more definite statement are viewed with disfavor,

20 but may be granted when the pleading is so vague or ambiguous that the

21 opposing party cannot be reasonably required to frame a response.

22 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).

23

Plaintiffs' SAC is not so ambiguous or vague as to prevent

24 Defendants from framing a response. Defendants argue Plaintiffs fail

25 to allege which of the three groups of Orange County Defendants are

26 targeted for each alleged violation. Plaintiffs' claims for relief,

27 however, target the conditions of the Orange County Jails, and

28 Plaintiffs' SAC sufficiently describes the allegedly unlawful

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Case 8:01-cv-00981-ABC-MLG Document 46 Filed 08/26/2002 Page 6 of 8

conditions. Based on the SAC, Defendants can respond to Plaintiffs'

2 allegations as to these conditions. Defendants also argue Plaintiff

3 Pierce has not sufficiently alleged facts to qualify him as a class

4 representative. The lack of detail as to Plaintiff Pierce's

5 qualifications as a class representative does not prevent Defendants

6 from responding to the allegations about jail conditions. The details

7 Defendants seek are obtainable through discovery, for which a 12(e)

8 motion is not a substitute. Beery v. Hitachi Home Electronics, 147

9 FRD 477, 480 (CD Cal. 1986).

10

Defendants' motion for a more definite statement is DENIED.

11

C. Defendants' Motion to Dismiss Plaintiffs' Supplemental State

12

Claims

13

Supplemental jurisdiction over state law claims may be declined

14 when the state law claim involves a novel or complex issue of state

15 law, the state law substantially predominates over the federal claims,

16 the federal claims have been dismissed, or when other exceptional or

17 compelling reasons exist. 28 U.S.C. §1367(c). Supplemental

18 jurisdiction may also be declined on the basis of "judicial economy,

19 convenience, fairness to the parties and comity." Executive Software

20 No. America, Inc. v. United States Dist. Ct., 24 F.3d 1545, 1552-1555

21 (9th Cir. 1994). A court may decline supplemental jurisdiction at any

22 state of the litigation, even if the court had previously decided to

23 exercise jurisdiction. Innovative Home Health Care, Inc. v. P.T.-O.T.

24 Assocs. of Black Hills, 141 F.3d 1284, 1287 (8th Cir. 1994).

25

Plaintiffs bring four federal claims and three state claims, with

26 an additional claim for injunctive and declaratory relief based on

27 both state and federal law. Defendants argue the Court should decline

28 jurisdiction over Plaintiffs' state claims because the state claims

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Case 8:01-cv-00981-ABC-MLG Document 46

Filed 08/26/2002 Page 7 of 8

1 raise novel or complex issues of state law, present a potential for

2 jury confusion, and predominate over the federal claims.

3

Defendants also argue supplemental jurisdiction should be declined

4 because Plaintiffs' claim raise novel or complex issues of state law,

5 namely, whether Defendants can assert qualified immunity as a defense

6 under California law. Defendants further argue Plaintiffs' claims

7 present a potential for jury confusion due to the different standards

8 between state and federal law for punitive damages.

9

Defendants' concerns about possible difficulties at trial have not

10 yet materialized. At this point in the litigation, Plaintiffs'

11 federal claims have not been finally dismissed, and Defendants do not

12 contend Plaintiffs' federal claims are weak. See 28 U.S.C.

13 1367(c) (3); Diven v. Amalgamated Transit Union, 38 F.3d 598, 602 (DC

14 Cir. 1994). Plaintiffs' state claims do not predominate their

15 federal claims. All of the claims arise out of the same set of jail

16 conditions and involve approximately the same scope of proof and

17 issues. Supplemental jurisdiction is strongly favored when the

18 federal and state claims are closely related. Miller v. Lovett, 879

19 F.2d 1066, 1072 (2nd Cir. 1989).

20

Defendants' motion to dismiss Plaintiffs' supplemental state

21 claims is DENIED.

22

D. Plaintiffs' Motion for Leave to Amend Complaint

23

Federal Rule 15(a) provides leave to amend "shall be freely

24 given," unless the opposing party makes a showing of undue prejudice,

25 bad faith, or dilatory motive on the part of the moving party. Foman

26 ~~~~, 371 US 178, 182 (1962). Defendants have not shown

27 Plaintiffs' motion to amend to add additional violations is motivated

28 by bad faith or improper motives. The claims of prejudice are not

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Case 8:01-cv-00981-ABC-MLG Document 46 Filed 08/26/2002 Page 8 of 8

1 "undue. II

2

Plaintiffs' motion to amend is GRANTED.

3
4 DATED: August ~, 2002.

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 Case 8:01-cv-00981-ABC-MLG Document 62 Filed 11/26/2002
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

~ Page 1 of 2 Priority ~Send _Clsd _Enter _JS-5/JS-6 _JS-2/JS-3

Case No. SA CV 01-0981-GLT (MLGx)

Date: November 26, 2002

Title: Fred Pierce, et a!. v. County of Orange, et a!.
===~=:====~================================~======
PRESENT: HON. Gary L. Taylor JUDGE

Lisa Bredahl Deputy Clerk

None Present Court Reporter (SM)

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

None Present

None Present

PROCEEDINGS:
[In Chambers1

Order DENYING Defendants' Motion to Dismiss and Motion For a More Definite Statement

Defendants Orange County and Sheriff Michael S. Carona moved to dismiss portions of Plaintiffs' Fourth Amended Class Action Complaint and to require Plaintiffs to provide a more definite statement. Defendants' Motions are DENIED.

Defendants argue Plaintiffs Fred Pierce and Max Sanders have not sufficiently alleged facts to support their claim for injunctive relief because they do not allege they are presently incarcerated. Plaintiffs' Complaint sets forth the allegedly unlawful conditions to which detainees are regularly subject in Defendants' jails. Plaintiffs also allege they were arrested and held, but do not allege whether they had been released at the time the Complaint was filed. Thus, it is possible Plaintiffs were in custody and subject to the allegedly unlawful jail conditions at the time the Complaint was filed. Construed in the light most favorable to Plaintiffs, the Complaint sufficiently allege a claim for injunctive relief. Defendants' Motion to Dismiss is DENIED.

Defendants also contend Plaintiffs Jonathan Nelson and Adam Ramirez do not have standing to bring

individual claims because according to the Complaint, they were only at the booking stage at the time the

Complaint was filed and had not been injured by the allegedly unlawful jail conditions. A defendant's alleged

repeatedly injurious conduct in the past may show a sufficiently likelihood that the defendant will engage in

such conduct in the near future for purposes of standing based on the threat of future harm. See Armstrong

v. Davis, 275 F.3d 849, 861 (9th Cif. 2001). Plaintiffs allege Defendants subject detainees such as Plaintiffs

to unlawful conditions on an on-going and recurring basis. Thus, taking Plaintiffs' allegations as true,

Plaintiffs are sufficiently likely to be injured and have standing to sue. Defendants'_Motion-to-Dismiss is

DENIED.

ENTER mliCIVIS

~," -' •

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.

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Case 8:01-cv-00981-ABC-MLG Document 62 Filed 11/26/2002 Page 2 of 2
Defendants also move for a More Definite Statement pursuant to Rule 12(e). For the reasons stated in the Court's August 26,2002 Order, the Court finds Plaintiffs' allegations are not so ambiguous or vague as to prevent Defendants from framing a response. Defendants' Motion for a More Definite Statement is DENIED.
The December 2,2002 hearing is taken off-calendar.
INITIALS OF DEPUTY CLERK ,:(1)

G:\GLTALL\LCI \Civi\\2001 \Ol-0981-MO-MTD-4thComp. wpd

2

 
 • Case 8:01-cv-00981-ABC-MLG

Document 94

• Filed 03/13/2003

Page 1 of 5

1 S. Frank Harrell, Esq. [State Bar No. 13343 1
David D. Lawrence, Esq. [State Bar No. 1230 9]

F~lED

2 Raymond Szu, Esq. [State Bar No. 210019]

Jason S. Roberts, Esq. [State Bar No. 22197
3 FRANSCELL, STRICKLAND, ROBERTS & LAWRENCE A Professional Corporation

MAR I 32JlOJ .'

4 500 North State College Boulevard, Suite 13 0

Orange, California 92868-1604

5 Telephone No. (714) 456-0180

Facsimile No. (714) 456-0181

On 6

Steven C. Miller, Esq. [State Ba .

7 OFFICE OF THE COUNTY COUNS COUNTY OF ORANGE

~ I

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8 10 Civic Center Plaza, 4th lo~

P.O. Box 1379

9 Santa Ana, California 92702 1379

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11

Facsimile No. (714) 834-235 Attorneys for Defendants, COUNTY OF ORANGE and SHERI FF

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UNITED STAT ISTRICT COURT

13

14

CENTRAL DISTRICT OF CALIFORNIA

15 FRED PIERCE, TIMOTHY LEE CONN, ) Case No. SACV 01-981 GLT(MLGx} MAX SANDERS, FERMIN ·VALENZUELA, )

16 LAURIE D. ELLERSTON, JONATHAN )

NELSON, ADAM RAMIREZ,

)

17 Individually, and as a Class Representative, and all those

) STIPULATION TO DISMISS "OVER) DETENTION CLAIMS" OF ALL

18 similarly situated,

) PLAINTIFFS EXCEPT PLAINTIFF ) FRED PIERCE; tBaei€l8lll).] ORDER

19

)

Plaintiffs,

)

20 vs.

)
) Discovery Cut-Off: 08/07/03

21

) Pre-Trial Conference: 09/07/03

) Trial Date: 12/2003

22 COUNTY OF ORANGE, a Governmental )

Entity; MICHAEL S. CARONA,

)

23 Individually; and DOES 1 through ) MATTER FOR DETERMINATION BY

200, Inclusive,

) THE HONORABLE GARY L. TAYLOR

24

)

)

25

Defendants.

)

26 ----------------------------)

27

28

STIPULATION TO DISMISS

1

"OVER-DETENTION" CLAIMS

.-3 'SENT BYC: fSaRse&L8' :01-cv-00981-ABC-MLG D4o:0c5uPmMent 94 fSRF&LileSdAN0T3A/1~ 3/2003

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1

STIPULATION

2

IT IS HEREBY STIPULATED BY AND AMONG ALL PARTIES as

3
follows: 4
Plaintiffs Timothy Lee Conn, Max Snnders, Fermin Valenzula
5
6 and Laurie D. Ellerston are not asserting any over-detention

7 claims against Detendants County of Orange and Michael S.

_8 -Ca:ronain~thi5 rnatter.-and,ther-efore-,-dlly-such claims should be
9 di~m;ssed. In the context of this litigation, the parties 10
agree that the term "over-detention" means an unreasonablR
11
12 delay in the release of an inmate.

13

14

IT IS SO STIPULATED.

15
16 Datect: March~, 2003

17

FRANSCELL, STRTCKLAND, ROBERTS & LAWRENCE

18

19

_ By:_~ _ __

20

S. FRANK HARRELL JASON S. ROBERTS

21

Attorneys for Defendants,

COUNTY OF ORANGE and SHERIFF

22

MICHAEL S. CARONA

iL, 23
24 Dated: Mar'cll

2003

LITT & ASSOCIATES

25

26

8ZZ/!va

27

BRYAN B. MILLER

28

Attorneys for Plaintiffs

STIPULATION TO DISMISS

2

"OVER-DETENTION" CLAIMS

• . Case 8:0.1-cv-00981-ABC-MLG

Document 94

• Filed 03/13/2003

Page 3 of 5

1

2

Based on the stipulation of the parties and good cause

3 . appearing therefore, the Court now rules as follows:
4
Plaintiffs Timothy Lee Conn, Max Sanders, Fermin Valenzula
5
6 and Laurie D. Ellerston are not asserting any over-detention

7 claims, as defined by the parties, against Defendants County of

8 Orange and Michael S. Carona and, therefore, any such claims
9 are dismissed. 10

11

12

IT IS SO ORDERED.

13

14 DATED: 15 16

Honorable Gary L. Taylor United States District Judge

17

18

19

20

21

22

23
24

25

26

27

28

STIPULATION TO DISMISS

3

"OVER-DETENTION" CLAIMS

• Case 8:01-cv-00981-ABC-MLG

Document 94

• Filed 03/13/2003

Page 4 of 5

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3

4

I, Nicolle A. Stortz, am employed in the aforesaid County, State of California; I am over the age of 18 years and

5

not a party to the within action; my business address is 500 North State College Blvd., Suite 1350, Orange, California

6 92868.

7

On March 12, 2003, I served the foregoing STIPULATION TO DISMISS FOURTH CAUSE OF ACTION IN PLAINTIFF'S COMPLAINT;

8

[PROPOSED] ORDER on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope,

9 addressed as follows:

10 SEE ATTACHED LIST.

11
X
12 13 14 15 16 17 18 19 20
21 x
22 23 24

BY MAIL
I placed such envelope for deposit in the U.S, Mail for service by the United States Postal Service, with postage thereon fully prepaid.
x As follows: I am "readily familiar" with the firm's
practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Orange, California, in the ordinary course of business.
BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the offices of the addressee. PROOF OF SERVICE TO BE FILED.
(Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made.
Executed on March 12, 2003, at Orange, California.

25

26

27

28

STIPULATION TO DISMISS

4

"OVER-DETENTION" CLAIMS

• Case 8:01-cv-00981-ABC-MLG

Document 94

• Filed 03/13/2003

Page 5 of 5

1
Pierce v. County of Orange 2
3 Dan Stormer, Esq. HADSELL & STORMER, INC.
4 128 North Fair Oaks Avenue Suite 204
5 Pasadena, California 91103

6

7 Richard P. Herman, Esq.
PRISONERS RIGHTS UNION 8 Attorney at Law

9

301 Forest Avenue Laguna Beach, CA 92652

10

11 Barrett S. Litt, Esq.

12

Bryan B. Miller,Esq. LITT & ASSOCIATES

13 3435 Wilshire Blvd. Suite 1100
14 Los Angeles, CA 90010-1912

15

16 Steven C. Miller, Esq. OFFICE OF THE COUNTY COUNSEL
17 COUNTY OF ORANGE 10 Civic Center Plaza, 4th Floor
18 P.O. Box 13 79
19 Santa Ana, California 92702-1379

20

21

22

23

24

25

26

27

28

STIPULATION TO DISMISS

5

"OVER-DETENTION" CLAIMS

 
 • Case 8:01-cv-00981-ABC-MLG

Document 126

•----F--"-L-E:-D:-- Filed 06/23/2003 Page 1 of 6

..

~."'vy. ,p~ I

'

1 S. Frank Harrell, Esq. [State Bar No. 13343 ]

David D. Lawrence, Esq. [State Bar No. 1230 9]

2 Raymond Szu, Esq. [State Bar No. 2100l9] Jason S. Roberts, Esq. [State Bar No. 221978

JUN233m

3 FRANSCELL, STRICKLAND, ROBERTS & LAWRENCE

4 5

u'tv A Professional Corporation
500 North State College Boulevard, Orange, California 92868-1604 . Telephone No. (714) 456-0180

Suite

CLERK U,S DISTRICT COURT
135 SCOEUNTTHREARLNDIDSITVRISICIOTNOAFTCSAALINFTO~Rt IA
BY

Facsimile No. (714) 456-0181

6
Steven C. Miller, Esq. [State Bar No. 112951] 7 OFFICE OF THE COUNTY COUNSEL
COUNTY OF ORANGE
9UDDG ED 8 1P0.OC. iBvoicx C13e7n9ter Plaza, _4_t_h_F__lo_o_r____________, ~
9 Santa Ana, Californ' Telephone No. (714) 3344 3 00

Priority -V-
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10 Facsimile No. (714)

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11 Attorneys COUNTY OF
12

nts, ~-2o·o'lJ SHER FFJltJN:rfufib20033.

TED'C . , '

I

13

CENTRAL DISTRICT OF CALIFOIiNIA

14

C

uM§lri~~I@~s~tt.Q I A

15 FRED PIERCE, TIMOTHY LEE CONN, ) Case No. SACV 01-981 GLT(MLGx) MAX SANDERS, FERMIN VALENZUELA, )

16 LAURIE D. ELLERSTON, STEVEN

)

GRAHAM, JEFF MORGAN,

)

17 Individually, and as a Class Representative, and all those

) STIPULATION TO DISMISS ) PLAINTIFF FRED PIERCE'S "OVER-

18 similarly situated,

) DETENTION CLAIM"; [[,ROPOS&] ) ORDER

19

)

Plaintiffs,

)

20
vs.
21

)
) Discovery Cut-Off: 12/05/03 ) Pre-Trial Conference: 03/05/04 ) Trial Date: Not Scheduled

22 COUNTY OF ORANGE, a Governmental )

Entity; MICHAEL S. CARONA,

)

23

Individually; and DOES I through ) HATTER FOR DETERMINATION BY THE

200, Inclusive,

) HONORABLE GARY L. TAYLOR

24

)

)

25

Defendants.

)

26 --------------------------)

27

28

STIPULATION TO DISMISS PIERCE'S 1 "OVER-DETENTION" CLAIM

• Case 8:01-cv-00981-ABC-MLG

Document 126

• Filed 06/23/2003

Page 2 of 6

1

STIPULATION

2

IT IS HEREBY STIPULATED BY AND AMONG ALL PARTIES as

3 follows:
4
Plaintiff Fred Pierce hereby agrees to dismiss his over-
5

6 detention claim against all Defendants in this matter. In the

7 context of this litigation, the parties agree that the term

8 over-detention means an unreasonable delay in the release of

9
an "inmate", which in the case of Plaintiff Pierce means "pre-

10 trial detainee."
11

12

IT IS SO STIPULATED.

13

':»H'~~

Dated: ..Mi!ry'11, 2003

14

FRANSCELL, STRICKLAND, ROBERTS & LAWRENCE

15

16

17

HARRELL

18

JASON S. ROBERTS

ttorneys for Defendants,

19

COUNTY OF ORANGE and SHERIFF

MICHAEL S. CARONA 20

21 Dated: May 22

, 2003

LITT & ASSOCIATES

23

24

By:

--~B~R~Y~A~N-B~.~M~I~L~LE~R--------

25

Attorneys for Plaintiffs

26

27

28

STIPULATION TO DISMISS PIERCE'S 2 "OVER-DETENTION" CLAIM

06/19/200C3 as1e~:84:101-.cv2-1030398801-4A5B8C5~-MLG JQo-l&.QS OQ:50~ Frcm-F S k l

DocumLeInTtT12AN6D ASFSileOdC0I6A/~23/2003

PAGI': 132/02 Page 3 of 6

114 4SS 0181

T-558 P.008/004 F-aUZ

1

2

IT IS HEREBY ST1PULATED BY AND AMONG ALL PARTIES as

3 fOllows:
4
flaintiff F=ed Pierce hereby ag~ees to ~~smiss his over-
5

6 detention' claim against all Defendants in this matter. In the

7 context of this litigation, the parties agree that the ter~

8 over-detention means an unreasonable delay in tbe release of an

9 "imnate",.which in the case of flaintiff Pierce means "prs-
10
trial detainee."
11

12

l~ IS SO STIPCLA!BD.

13
Datea: May~, 2003 14 15 16
17
l8 19 20
jl).~
21 Dated: ~(L, 2003
22
,3
24 2S 26 27 28

FRANSCELL, STRICKLAND, ROBERTS &
LAWRENCE
By: --~S-.~~~~K~~~~EL~L~---JASON S. ROBERTS Attorneys for Defendants, COUNTY OF O~GE and· SHERI?r MIC~t S. CARONA
LITT & ASSOCIATES
~M JJ~_
SY: __~~~~~I_/_~~ _____'________
BRYAN B. MILLER Attorneys fo~ Pla1ntiffs

STIPULATION TO DISMISS Pl~~CE'$ 2 ~OVER~OE~tNTION" CLAIM

• Case 8:01-cv-00981-ABC-MLG

Document 126

• Filed 06/23/2003

Page 4 of 6

1

[D9i'Wtil] ORDER

2

Based on the stipulation of the parties and good cause

3 appearing therefore, the court now rules as follows:
4
Plaintiff Fred Pierce's over-detention claim, as defined 5
6 by the parties, is hereby dismissed against all Defendants.

7

8

IT IS SO ORDERED.

9

10 DATED:
11
12

Honorable Gary L. Taylor United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

STIPULATION TO DISMISS PIERCE'S 3 "OVER-DETENTION" CLAIM

• Case 8:01-cv-00981-ABC-MLG

Document 126

• Filed 06/23/2003

Page 5 of 6

1

PROOF OF SERVICE

2
STATE OF CALIFORNIA, COUNTY OF ORANGE
3

4

I, Nicolle A. Stortz, am employed in the aforesaid Cbunty, State of California; I am over the age of 18 years and not a

5

party to the within action; my business address is 500 North State College Blvd., Suite 1350, Orange, California 92868.

6

On June 20, 2003, I served the foregoing STIPULATION TO

7

DISMISS PLAINTIFF FRED PIERCE'S "OVER-DETENTION CLAIM"; [PROPOSED] ORDER on the interested parties in this action by

8

placing a true copy thereof, enclosed in a sealed envelope, addressed as follows:

9 SEE ATTACHED LIST. 10

11 X BY MAIL

12

I placed such envelope for deposit in the U.S. Mail

for service by the United States Postal Service, with

13

postage thereon fully prepaid.

14

X As follows: I am "readily familiar" with the firm's

15

practice of collection and processing correspondence for mailing. Under that practice, it would be

16

deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Orange,

17

California, in the ordinary course of business.

18

BY PERSONAL SERVICE: I caused such envelope to be

delivered by hand to the offices of the addressee. PROOF

19

OF SERVICE TO BE FILED.

20
x (Federal) I declare under penalty of perjury that the

21

foregoing is true and correct, and that I am employed in

the office of a member of the bar of this Court at whose

22

direction the service was made.

23

Executed on June 20, 2003, at Orange, California .

24 25 26

~y~~ . of Signature Declarant

27

28

STIPULATION TO DISMISS PIERCE'S 4 "OVER-DETENTION" CLAIM

• Case 8:01-cv-00981-ABC-MLG

Document 126

• Filed 06/23/2003

Page 6 of 6

1

Pierce v. County of Orange

2 Dan Stormer, Esq. 3 HADSELL & STORMER, INC.
128 North Fair Oaks Avenue 4 Suite 204
Pasadena, California 91103
5

15 Steven C. Miller, Esq.

16 OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE
17 10 Civic Center Plaza, 4th Floor

18

P.O. Box 1379 Santa Ana, California 92702-1379

19

20

21

22

23

24

25

26

27

28

STIPULATION TO DISMISS PIERCE'S 5 "OVER-DETENTION" CLAIM

 
 • Case 8:01-cv-00981-ABC-MLG

Document 130

• Filed 07/01/2003

Page 1 of 6

1 S. Frank Harrell, Esq,' [State Bar No. 13343 -I:-"-=-=F:::L-:--'ED---l-~·,r, ':

David D. Lawrence, Esq. [State Bar No. 1230 9)

2 Raymond Szu, Esq. [State Bar No. 210019)

Jason S. Roberts, Esq. [State Bar No. 221978)

3 FRANSCELL, STRICKLAND, ROBERTS & LAWRENCE

A Professional Corporation

4 5

500 North State College Boulevard, Orange, California 92868-1604 Telephone No. (714) 456-0180 Facsimile No. (714) 456-0181

Suite

1

50 CLERK. U,S. OISmlCTCOURT SCOEUNTHTREARlNODISIVmISlCIOTNOAFTCSAALNIFTOARANIA

6

Steven C. Miller, Esq. [Sta e

7 OFFICE OF THE COUNTY COUNSE

COUNTY OF ORANGE

8

10 Civic Center Plaza, 4th F oor

P.O. Box 1379

I

9 Santa Ana, California 9270211379

JUN 3 0 2003

:x:: SPcrni·~ ity
~~t~r _

Tele~h?ne No. (714) 834 330~ '00

JS~ili~.6 -

10 11

' s · - Facslmlle No. (714) 834-2359: \ I CLEAK.U,S,DISTRICTCOURT"lS.2iJS.3-

Attorneys COUNTY OF

for De ORANGE

fend and

aSnHtEsR,IFFL;~~I~SC!cEAiNf:TJrRTLAH:EL:F':!pS~j;:~i;rl-~U:NO:FAeTfCStAALR.IN~FO'·R-:,·-,·~~-~·I

On

ly

_

12

UNITED STATES DISTRICT COURT

13

14

CENTRAL DISTRICT OF CALIFORNIA

15 FRED PIERCE, TIMOTHY LEE CONN, MAX SANDERS, FERMIN VALENZUELA,
16 LAURIE D. ELLERSTON, STEVEN GRAHAM, JEFF MORGAN,
17 Individually, and as a Class Representative, and all those
18 similarly situated,

19
Plaintiffs,
20
vs. 21

22 COUNTY OF ORANGE, a Governmental Entity; MICHAEL S. CARONA,
23 Individually; and DOES 1 through 200 , Inclusive,
24

25

Defendants.

Case No. SACV 01-981 GLT(MLGx)
STIPULATION TO DISMISS PLAINTIFFS' STATE LAK CAUSES OF ACTION AGAINST DEFENDANT COUNTY OF ORANGE; [Ii'R8U8SDj ORDER
Discovery Cut-Off: 12/05/03 Pre-Trial Conference: 03/05/04 Trial Date: Not Scheduled
MATTER FOR DETERMINATION BY THE HONORABLE GARY L. TAYLOR
- ENTER ON letAS

26

.. 2 W)3

27

28

W---\-Tl'd----..,

STIPULATION TO DISMISS PLAINTIFFS' 1 STATE LAW CAUSES OF ACTION

• Case 8:01-cv-00981-ABC-MLG

Document 130

• Filed 07/01/2003

Page 2 of 6

1

STIPULATION

2

IT IS HEREBY STIPULATED BY AND AMONG ALL PARTIES as

3
follows: 4
Plaintiffs Fred Pierce, Timothy Lee Conn, Laurie D.
5

6 Ellerston and Fermin Valenzuela, and each of them, hereby ag~ee

7 to dismiss all causes of action from their Fourth Amended

8 Complaint, Ii'lSo:[aElilOe FHtft ffiltel'leee Gomj91ail'lt as GUJ"reFttly
9 1'eflelin~ eefsre the Court, ;nd any future COtRplaiFl!e:"B' arising out
10 of or based on California state law against Defendant County of
11
12 Orange only.

13

IT IS SO STIPULATED.

14

... -:r~,.s

15 Dated: !Itr!J:1 '2 7, 2003

16

FRANSCELL, STRICKLAND, ROBERTS & LAWRENCE

17

18

19

JASON S. ROBERTS

20

torneys for Defendants, COUNTY OF ORANGE and SHERIFF

21

MICHAEL S. CARONA

22 Dated: May
23

2003

LITT & ASSOCIATES

24

25

By:

26

--~B~R~Y~A~N~B-.~M~I~L~L~E~R--------

Attorneys for Plaintiffs

27

28

STIPULATION TO DISMISS PLAINTIFFS' 2 STATE LAW CAUSES OF ACTION

, ,/20BC3ase118,::5041-cv,-201039:8318-A0B4C58-M5L. G DocumenLtIT1T30AND AFiSleSdO0C7I/A01T/.2003 Page 3 PoAfG6E 02/02

Jan-1S-,OS '04:17pm PrOlll"F SRL

114 456 Dm

l

2

IT IS REQB'Jt' S'I'IPOLATED BY AND :AMONG ALL PARTIES as

3 follows:

4

!

flaintifts Fred Pierce, ~imothy Lea Conn, Laurie D.

6 Ellerston an~ Fermin Valenzuela, and each of them, hereby aqree

7 to aismi.. all causes of ac~ion frgm ~heir Fourth Amended

of or based on California state law against Defendant County of
II 12 O~ange only.

13
14
~5 Oated:, Hay .....' 2003

16

l7

I.e

19

20

'2l

- '22

::1,.,1'\1 1.1-

Dated: ~ , 2003

23

" \
raANSCEtL, STRICKLAND, ROBERTS &
LAWiENCS
By:_--:s:-.--f=tI=\N::K':"H"A:=R=t'W-=.tI--_ _
.jASON 9. ROa!l!.'.rS
Atto~eys for Pefe~~ants, COUNTY O~ o~eE and SHEJIFF MICHAEL S. CARONA
tI'.rT & ASSOOIATES

24

2,5

mY:£?2~--..

26

.BRYAN B. MII.tER

27

Attorn~ys for Plaint~ffs

2!!

STIPOtATION ~c OISMtSS ~IFFS' 2
S'l'M'! 1J\W CAUSES Oil' AC'l'J:ON

• Case 8:01-cv-00981-ABC-MLG

Document 130

• Filed 07/01/2003

Page 4 of 6

1

2

Based on the stipulation of the parties and good cause

3 appearing therefore, the Court now rules as follows:
4 Each of Plaintiffs' causes of action arising out of or
5
6 based on California state law are hereby dismissed against

7 Defendant County of Orange only.

8

IT IS SO ORDERED.

9

10

11 DATED: 12
l3

e Gary States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

STIPULATION TO DISMISS PLAINTIFFS' 3 STATE LAW CAUSES OF ACTION

• Case 8:01-cv-00981-ABC-MLG

Document 130

• Filed 07/01/2003

Page 5 of 6

1

PROOF OF SERVICE

2
STATE OF CALIFORNIA, COUNTY OF ORANGE
3

4

I, Nicolle A. Stortz, am employed in the aforesaid County, State of California; I am over the age of 18 years and not a

5

party to the within action; my business address is 500 North State College Blvd., Suite 1350, Orange, California 92868.

6

On June~, 2003, I served the foregoing STIPULATION TO

7

DISMISS PLAINTIFFS' STATE LAW CAUSES OF ACTION AGAINST DEFENDANT COUNTY OF ORANGE; [PROPOSED] ORDER

8

on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows:

9 SEE ATTACHED LIST. 10

11 X BY MAIL

12

I placed such envelope for deposit in the U.S. Mail

for service by the United States Postal Service, with

13

postage thereon fully prepaid.

14

X As follows: I am "readily familiar" with the firm's

15

practice of collection and processing correspondence for mailing. Under that practice, it would be

16

deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Orange,

17

California, in the ordinary course of business.

18 X (Federal) I declare under penalty of perjury that the

19

foregoing is true and correct, and that I am employed in

the office of a member of the bar of this Court at whose

20

direction the service was made.

21

3D, Executed on June

2003, at Orange, California.

22

23

24

25

26

27

28

STIPULATION TO DISMISS PLAINTIFFS' 4 STATE LAW CAUSES OF ACTION

'.

• Case 8:01-cv-00981-ABC-MLG

Document 130

• Filed 07/01/2003

Page 6 of 6

1

Pierce v. County of Orange

2 Dan Stormer, Esq. 3 HADSELL & STORMER, INC.
128 North Fair Oaks Avenue 4 Suite 204
Pasadena, California 91103
5

6 Richard P. Herman, Esq.
7 PRISONERS RIGHTS UNION Attorney at Law
8 301 Forest Avenue 9 Laguna Beach, CA 92652

10 Barrett S. Litt, Esq.
11 Bryan B. Miller, Esq. 12 LITT & ASSOCIATES
3435 Wilshire Blvd.
13 Suite 1100 Los Angeles, CA 90010-1912
14

15 Steven C. Miller, Esq.

16 OFFICE OF THE COUNTY COUNSEL

COUNTY OF ORANGE 17 10 Civic Center Plaza, 4th , Floor

18

P • o. Box 13 79
Santa Ana, California 92702-1379

19

20

21

22

23

24

25

26

27

28

STIPULATION TO DISMISS PLAINTIFFS' 5 STATE LAW CAUSES OF ACTION

 
 Case 8:01-cv-00981-ABC-MLG
1
2 3
4
5

Document 169 Filed 10/15/2003 Page 1 of 8

4 Priority
2 Send
_Clsd _ Enter
_JS-5/JS-6 _JS-2/JS·3

FILED

OCT I 5 2003

CLERK, U S DISTRICT COURT "':

CI ~JTRAL DISTRICT OF CALIFORNIA
I 'v SUUTHERN DIVISION AT SANTA ANA

I",

, DEPUTY

6

7
UNITED STATES DISTRICT COURT
8
CENTRAL DISTRICT OF CALIFORNIA
9
SOUTHERN DIVISION
10

11 FRED PIERCE, et al.,

Case No. SA CV 01-0981-GLT(MLGx)

12

Plaintiffs,

13

vs.

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

14 COUNTY OF ORANGE,

et al.,

15

Defendants.

16

ENTER ON leMS ~v
OCTI62D03

17

18
Plaintiffs' Motion for Class Certification is GRANTED.
19

20 I. BACKGROUND
21
Plaintiffs, pre-trial inmates at four Orange County jails, brought
22
class action claims against County of Orange Defendants alleging 23
violations of Plaintiffs' civil rights, rights established under
24
Stewart v. Gates, 450 F.Supp. 583 (C.D. Cal. 1978), and the Americans
25
with Disabilities Act (ADA). Plaintiffs claim they were detained for
26
an unreasonable period of time after they were entitled to release,
27
denied seats in holding cells, outdoor exercise, day room and telephone
28

S,IGL1\LCIICivill200 I101-{)981-Clas,Cert,wpd

Case 8:01-cv-00981-ABC-MLG Document 169 Filed 10/15/2003 Page 2 of 8

1 access, fifteen minute meal breaks, visitation and/or rights secured by 2 the ADA, and request injunctive relief and monetary damages. 3 Plaintiffs move for class certification.

4

5

II. DISCUSSION

6

In order for a class action to be certified, Plaintiffs have the

7 burden to establish all of the requirements of Federal Rule of Civil

8 Procedure 23(a). Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.

9 1985). Rule 23(a) states four threshold requirements applicable to all

10 class actions: (1) numerosity, ("the class is so numerous that joinder

11 of all members is impracticable"); (2) commonality ("there are

12 questions of law or fact common to the class"); (3) typicality ("the

13 claims or defenses of the representative parties are typical of the

14 claims or defenses of the class"); and (4) adequacy of representation

15 ("the representative parties will fairly and adequately protect the

16 interests of the class"). Fed.R.Civ.p. 23(a); accord Amchem Products,
17 Inc. v. Windsor, 521 u.s. 591, 613 (1997).

18

In addition to satisfying Rule 23(a) prerequisites, Plaintiffs

19 must also show the action is maintainable under Rule 23(b), which

20 requires the action: (1) avoids the risk of inconsistent judgments; (2)

21 involves requests for relief applicable to the entire class; or (3)

22 involves common questions of fact or law which predominate over

23 questions that affect individual class members. Fed.R.Civ.p. 23(b);

24 accord Amchem Products, 521 U.S. at 614-15.

25

In deciding a motion for class certification, plaintiff's

26 allegations are taken as true and inquiry into the merits of the case

27 is improper at the class certification stage. Eisen v. Carlisle &

28 Jacqueline, 417 U.S. 177-78 (1974). The presumption is in favor of

S:\GLT\LC1\Civil\200 I\0 1-0981·ClassCert.wpd

2

Case 8:01-cv-00981-ABC-MLG Document 169 Filed 10/15/2003 Page 3 of 8

1 certifying the class. 3 Newberg on Class Actions (4th Ed.), § 7.17.

2

A. Rule 23(a) prereguisites

3

1. Numerosity

4

plaintiffs seek to certify a class of all pre-trial detainees held

5 in Orange County jails after October 21, 2001 who were denied various

6 rights under Stewart and the ADA. Plaintiffs claim, and Defendants do

7 not dispute, the proposed class will number 60,000 individuals at

8 minimum. Individual joinder of members of a class this size would be

9 impracticable. Plaintiffs have satisfied the numerosity requirement.

10

2. Commonality

11

Plaintiffs specify the common questions of law and fact in this

12 case. The questions of law are the following: whether the Defendants

13 must comply with the court mandate to provide each inmate with at least

14 fifteen minutes to consume meals and a space to sit while they wait in

15 holding cells; whether the Defendants must comply with the court

16 mandate to allow each inmate in administrative segregation access to

17 dayrooms for at least two hours a day, access to roof-top exercise

18 facilities for at least two hours each week, and to receive visitors at

19 least twice a week; and whether Defendants may deny disabled inmates

20 necessary accommodations and equal access to services or activities.

21 The Plaintiffs intend to prove Defendants have a systemic practice of

22 violating the Stewart court order and the ADA. They intend to present

23 evidence of particular violations suffered by individual inmates, but

24 these questions of fact are essentially a common question to the class

25 because each incident contributes to the common question of whether

26 Defendants have a common practice.

27

Defendants' argument that the proposed class does not meet the

28 commonality requirement because the class raises different incidents of

S:\GL1ILC I\Civil\100 I\OI-0981-ClassCert.wpd

3

Case 8:01-cv-00981-ABC-MLG Document 169 Filed 10/15/2003 Page 4 of 8

1 alleged misconduct in different branches of the jails and involves

2 different inmates misses the point that Plaintiffs intend to prove

3 systemic violations. Plaintiffs also intend to prove their systemic

4 violation claim with inmate activity logs containing numerous asserted

5 violations on their face (e.g. 840 separate violations of dayroom

6 access, 100 violations of roof-top exercise).

7

"In a civil-rights suit .•• commonality is satisfied where the

8 lawsuit challenges a system-wide practice or policy that affects all of

9 the putative class members." Armstrong v. Dayis, 275 F.3d 849 (9th

10 Cir. 2001).11 Defendants' alleged conduct and the legality of this

11 conduct are "questions of law or fact common to the class."

12 Fed.R.Civ.P. 23(a)(2). Plaintiffs have satisfied the commonality

13 requirement.

14

3. Typicality

15

The claims or defenses of the class representatives must be

16 typical of the claims or defenses of other class members. Fed.R.Civ.p.

17 23(a)(3). "Under the rule's permissive standards, representative

18 claims are 'typical' if they are reasonably co-extensive with those of

19 absent class members; they need not be substantially identicaL"

20 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). "The

21 purpose of the typicality requirement is to assure that the interest of

22 . the named representative aligns with the interests of the class."

23 Hanon, supra, 976 F.2d at 508 (citing Weinberger v. Thornton, 114

24 F.R.D. 599, 603 (S.D.Cal. 1986)).

25

Defendants argue typicality is lacking because each Plaintiff

26

27

llIn Armstrong, the Ninth Circuit upheld class certification

28 of a class of disabled prisoners and parolees who alleged they had been discriminated against under the ADA.

S:\GLmc I\CI,II12001\01 -0981-ClassCert.wpd

4

Case 8:01-cv-00981-ABC-MLG Document 169 Filed 10/15/2003 Page 5 of 8

1 experienced a unique injury and requires a separate liability

2 determination. As discussed above, the uniqueness of each incident is

3 not important because Plaintiffs aim to prove a systemic practice of

4 violations. The parties cite no controlling authority on the

5 individual damages issue, and a damage formula is usually suitable to

6 this sort of facts. See ~ Hassine v. Jeffes, 846 F.2d 169, 177 (3rd

7 Cir. 1988) ("Rule 23 does not require that the representative plaintiff

8 have endured precisely the same injuries that have been sustained by

9 the class members, only that the harm complained of be common to the

10 class, and that the plaintiff demonstrate a personal interest.") As

11 stated by Plaintiffs:

12

[Pjlaintiffs here have pled simple conditions of confinement

13

allegations, which are grounded not on a complex analysis of

14

individual officers' conduct or the peculiar circumstances of each

15

plaintiff's detention, but on defendants' consistent and ongoing

16

failure to comply with Stewart v. Gates' and the ADA's minimum

17

requirements regarding the treatment of detainees. Further,

18

through their claims, plaintiffs do not seek compensatory damages

19

for various medical and psychological conditions, but only

20

compensatory damages for the deprivation of these civil rights

21

which flow from those simple violations.

22 Plaintiff's Reply for Class Certification at 18. The Court agrees that

23 a damage formula appears to be suitable for this case and certification

24 will not fail for reason of imprecise damages.

25

4. Adequacy of Representation

26

A class representative must be able "fairly and adequately to

27 protect the interests" of all the class members. Fed.R.Civ.P. 23(a)(4).

28 Representation is adequate if (1) the attorney representing the class

S:\GLT\LC 1ICivil1200 110 1-0981-ClassCert.wpd

5

Case 8:01-cv-00981-ABC-MLG Document 169 Filed 10/15/2003 Page 6 of 8

1 is qualified and competent, and (2) the class representatives are not

2 disqualified by interests antagonistic to the remainder of the class.

3 Lerwill v. Inflight Motion pictures, Inc., 582 F.2d 507, 512 (9th Cir.

4 1978).

5

The member's interests are all aligned, there are no anticipated

6 or actual conflicts of interest and Plaintiffs' attorneys are well

7 qualified to represent the class. Defendants do not dispute

8 certification on these grounds. Plaintiffs' attorneys and the class

9 representatives are adequate representatives of the class.

10

B. Rule 23(bl Requirements

11

Plaintiffs are seeking to certify a hybrid class that meets the

12 requirements of both Rule 26(b)(2) and (b)(3).

13

A Rule 23 (b) (2) class is appropriate if the "party opposing the

14 class has acted or refused to act on grounds generally applicable to

15 the class." Fed.R.Civ.p. 23(b)(2). "Rule 23(b)(2) was drafted

16 specifically to facilitate relief in civil rights suits." 8 Newberg on

17 Class Actions (4th Ed.) § 25:20. Plaintiffs allege Defendants'

18 violations affect the whole class and they are seeking injunctive and

19 declaratory remedies to force Defendants' compliance with the Stewart

20 order and the ADA. Plaintiffs meet Rule 23(b)(2)'s requirements.

21

A Rule 23(b)(3) class action should be certified where the court

22 finds that "questions of law or fact common to the members of the class

23 predominate over any questions affecting only individual members, and

24 that a class action is superior to other available methods for the fair

25 and efficient adjudication of the controversy." Fed.R.Civ.p. 23(b)(3).

26

The common questions predominate over any individual questions in

27 this case since the allegations relate to Defendant's claimed

28 widespread failure to comply with Stewart and the ADA.

S,IGLliLe llClvH\200 I10 1.0981·ClassCert.wp<i

6

Case 8:01-cv-00981-ABC-MLG Document 169 Filed 10/15/2003 Page 7 of 8

1

Practical considerations also weigh in favor of class

2 certification for the fair and efficient adjudication of this

3 controversy. Because each class members' potential damages are small

4 or nominal, litigation costs would probably prohibit these claims from

5 being brought individually.

6

C. Class Definitions

7

Defendants claim Plaintiffs' class definitions are overbroad

8 because they include five branches of the Orange County jail system.

9 Defendants rely exclusively on Stevens v. Harper, 213 F.R.D. 358, 379

10 (E.D. Cal. 2002), to argue Plaintiffs have failed to make the required

11 systemwide showing with regard to each proposed class at all five

12 facilities.

13

The Stevens decision is persuasive authority, but Defendants'

14 characterization of the court's holding is not entirely accurate.

15 Defendants contend the court denied class certification on a claim

16 because the plaintiffs made an "inadequate showing that the CYA has a

17 pattern or practice of failing to protect wards at all of its

18 facilities." Id. at 379. In fact, the court denied class

19 certification on this claim because the named plaintiff could not

20 represent a class with Fourteenth Amendment claims when he could only

21 assert Eighth Amendment claims due to his confinement. Id. After

22 stating that the named plaintiff could not represent the class, the

23 court added "Moreover, there is an inadequate showing that the CYA has

24 a pattern or practice of failing to protect wards at all of its

25 facilities" before concluding "Class certification on plaintiffs'

26 physical safety claim is therefore denied." Id. The Stevens court did

27 not rely on the fact that plaintiffs had not made an adequate showing

28 at all of its facilities to reach its conclusion.

me S:\GL 1\Civil\200 1\0 1·0981 ~ClassCert,wpd

7

Case 8:01-cv-00981-ABC-MLG Document 169 Filed 10/15/2003 Page 8 of 8

1

Even if Defendants are correct in their characterization of the

2 Stevens case, the Court is satisfied Plaintiffs make an adequate

3 showing of their claims at each facility for class certification

4 purposes. 5

III. DISPOSITION

6

Plaintiffs' Motion for Class Certification is GRANTED. 21

7
8 DATED: October 15 , 2003.

9

10

L. TAYLOR

L---~-ED STATES DISTRICT JUDGE

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2/The Court did not consider Plaintiff's Proposed Trial Plan

in reaching its decision.

S:IGLm e 1leivil1200 110 1·0981·C!assC,n. wpd

8

 
 Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 1 of 21

FILED

1

x::)( Priority Send

2

_Clsd

W\R - I 2004

3

_Enter
_JS·5/JS·6

"~'~~::~~~.
L---"~=~~ :~;;;;;.
CLERK, U.S. DISTRICT COURT ""fL,

4

-JS·2/JS·3

CENTRAL DISTRICT OF CALIFORNIA .~ SOUTHERN DIVISION AT SANTA ANA

BY

DEPUTY

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

SOUTHERN DIVISION

12 FRED PIERCE, et al.,

Case No. SA CV 01-981-GLT(MLGx)

13

Plaintiffs,

14

vs.

ORDER ON DEFENDANTS' MOTIONS

15 COUNTY OF ORANGE, et al.,

DOCKETED ON eM

16

Defendants.

- 4 2004
17

18

BY

Defendants' motions are GRANTED IN PART

19
I • BACKGROUND

20
Plaintiffs, pre-trial detainees at four Orange County jails, 21
brought class action claims under 42 U.S.C. § 1983 against Defendants

22
Orange County and Sheriff Michael Carona alleging violations of

23
Plaintiffs' civil rights, rights established under Stewart v. Gates, 450

24
25 F.Supp. 583 (C.D. Cal. 1978), co,nstitutional rights, and the Americans with Disabilities Act ("ADA"). Plaintiffs allege Defendants, in

26
violation of Stewart, impermissibly denied to Plaintiffs seats in

27
holding cells, outdoor exercise, day room and telephone access, fifteen

28

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Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 2 of 21

1 minute meal breaks, visitation, and also violated the ADA and the united

2 States and California constitutions. Plaintiffs seek injunctive relief

3 and monetary damages.

4

In October 2003, the Court certified Plaintiffs as a Rule 23(b)(2)

5 equitable relief class and as a Rule 23(b)(3) damages class. The Court

6 defined the class as "all pre-trial detainees held in Orange County

7 jails after October 21, 2001 who were denied various rights under

8 Stewart and the ADA."

9

Defendants now move for summary judgment or summary adjudication

10 on the following: (1) all of Plaintiffs' claims pursuant to Monell v.

11 New York City Dept. of Social Services, 436 U.S. 658, 694 (1978); (2)

12 Plaintiffs' emotional and mental damages claims; (3) all claims based

13 upon a failure to exhaust administrative remedies; (4) Plaintiff

14 Ellerston's "insufficient meal time" claim; (5) Plaintiff Valenzuela'S

15 "access to visitors" claim; (6) Plaintiffs Valenzuela and Conn's

16 "rooftop exercise" claim; (7) Plaintiffs Pierce and Valenzuela'S "lack

17 of seats" claim; (8) Plaintiffs Conn, Ellerston, and Valenzuela's "day

18' room access" claim; (9) Plaintiffs I non-class claims against Defendant

19 Carona; (10) Plaintiffs' state law claims; and (11) Plaintiff Conn's ADA

20 and equal protection claims. Defendants also move to decertify the

21 class. II

22

II. DISCUSSION

23

Summary judgment is proper if "there is no genuine issue as to any

24 material fact and the moving party is entitled to a judgment as a

25

26
l/These 12 separate motions contain repetitive statements of 27 law and fact that could have easily been contained in a few
motions. The parties are strongly urged to consolidate motions 28 and avoid repetition in future motions.
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Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 3 of 21

1 matter of law." Fed.R.Civ.Pro. 56(c). A fact is material if it "might 2 affect the outcome of the suit under the governing law." Anderson v.

3 Liberty Lobby. Inc., 477 U.S. 242, 24B (l9B6). A factual dispute is 4 genuine "if the evidence is such that a reasonable jury could return a 5 verdict for the nonmoving party." Id. If the evidence of a genuine 6 issue of material fact is "merely colorable" or of insignificant 7 probative value, summary judgment is appropriate. Id. at 249-50.

8

The moving party in a summary judgment motion bears the initial

9 bu~den of showing the absence of a genuine issue of material fact.

10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (19B6). If the moving 11 party makes this initial showing, the burden shifts to the nonmoving

12 party to "designate specific facts showing that there is a genuine issue 13 for trial." Id. at 324 (citation omitted). In other words, the non-

14 moving party must produce evidence that could cause reasonable jurors to

15 disagree as to whether the facts claimed by the moving party are true.

16

In making a summary judgment determination, the Court must view

17 the evidence presented in the light. most. favorable t.o the non-moving

18 party, drawing "all justifiable inferences ... in his favor." Anderson

19 at 255. If the non-moving party fails to present a genuine issue of 20 material fact, the court must grant summary judgment. Celotex at 323-24.

21

The moving party is entitled to judgment. as a matt.er of law when

22 the nonmoving party fails to make a showing sufficient to establish the 23 existence of an essential element to that part.y's claim. Id. Where the 24 non-moving party fails t.o offer evidence establishing the existence of 25 an essential element, "there can be no genuine issue of material fact 26 since a complete failure of proof concerning an essent.ial element of the 27 non-moving party's case necessarily renders all other facts immat.erial." 28 Id. In such a case, the moving party is entitled to a judgment as a

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1 matter of law "because the nonmoving party has failed to make a

2 sufficient showing on an essential element of her case with respect to

3 which she has the burden of proof." Id.

4

A. Monell and supervisory Liability

5

It is well settled that there is no respondeat superior liability

6 under 42 U.S.C. § 1983. Municipal liability under § 1983 can only be

7 imposed for injuries inflicted pursuant to a widespread and long-

8 standing official government policy or custom, Monell, supra, 436 U.s.

9 at 694, including a policy of being deliberately indifferent to the

10 rights of individuals, City of Canton v. Harris, 489 U.S. 378, 389

11 (1989) . The "policy" at issue need not be a rule or regulation

12 promulgated by a legislative body; a decision made by the governmental

13 agency's authorized decision-maker may constitute official policy.

14 Pembaur v. City of cincinnati, 475 U.S. 469, 481 (1986) (plurality

15 opinion). As for custom, "proof of random acts or isolated events are

16 insufficient to establish custom." Thompson v. City of Los Angeles, 885

17 F.2d 1439, 1444 (9th cir. 1989). A supervisory individual, such as

18 Sheriff Carona,2/ may be liable under § 1983 only if a plaintiff can

19 prove either: (1) the supervisor's personal involvement in the

20 constitutional deprivation, or (2) a sufficient causal connection

21 between the supervisor's wrongful conduct and the constitutional

22 violation. Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (citing

23 Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991)(en

24

25

2/ It is undisputed Defendant Carona is an authorized

decision-maker of Orange County on the issue of jails. In his 26 role as sheriff, Carona is responsible for the written rules of

27

the Orange County Jail, as well as ensuring compliance with state and federal law. Carona Depo. at 5:10-18, 9:11-10:9; Davis Depo.

28 at 19:12-20:9. Carona is an authorized policymaker for Monell purposes.

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Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 5 of 21

1 banc) ) .

2

Defendants move for summary adjudication of Plaintiffs' § 1983

3 claims against Orange County and Sheriff Carona, contending Plaintiffs

4 can point to no evidence of (1) a policy or custom causing the alleged

5 constitutional violations or (2) personal involvement by Defendant 6 Carona or a causal connection between Carona and the alleged 7 constitutional violations. Defendants also contend there is evidence to 8 the contrary, and point to the declaration of Lt. Timothy Board. 9 Plaintiffs oppose, arguing there is ample evidence of a widespread and 10 long-standing policy or custom of denying pre-trial detainees the

11 minimum standards set forth in Stewart and the ADA, and evidence of 12 Carona's deliberate indifference to the alleged constitutional

13 violations.

14

1. Claims Against Defendant Orange County

15

To support their contention of systemic day room and rooftop

16 access violations, Plaintiffs first offer a selection of daily inmate 17 logs from December 2001 through March 2003, and the declaration of Judd 18 Gartenberg, a legal assistant of Plaintiffs' counsel who reviewed many 19 hundreds of these logs. See Plaintiffs' Evidence. Volume I at 52-95. 20 The value of Mr. Gartenberg's declaration may be limited by the best

21 evidence and hearsay rules. However, the records accompanying Mr.

22 Gartenberg's declaration, when viewed in the light most favorable to

23 Plaintiffs, indicate many detainees in various levels of custody and in

24 different areas within the Orange County jails may have been denied

25 daily access to the day room and weekly access to rooftop exercise over

26 a period of many years.

27

This indication is corroborated by the deposition testimony and

28 declarations of the named Plaintiffs and other pre-trial detainee class-

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Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 6 of 21

1 members. See Plaintiffs' Statement of Genuine Issues - Monell ("PSGI")

2 2, 4, 6, 8, 10, 12, 14, 16. These declarations and depositions raise

3 questions of long-standing and systemic denials of sufficient meal time,

4 access to visitors, access to religious services, and a failure to

5 equally and adequately accommodate disabled detainees. Id.

6

There is a triable issue whether there is a policy or custom of

7 Stewart and constitutional violations over a long period of time.

8 Defendant Orange County's motion for summary judgment on these issues is

9 DENIED.

10

2. Claims Against Defendant Carona

11

To support their claim of deliberate indifference or personal

12 involvement by Defendant Carona, Plaintiffs point to Carona's deposition 13 testimony and the testimony of other jail command staff. plaintiffs 14 argue this testimony indicates that, although Carona has been aware of 15 Stewart for many years, he has taken no steps to assess compliance with 16 it or delegate to others the responsibility of compliance. Plaintiffs 17 also argue the jail commanders testified they could recall little or no

18 familiarity with Stewart and its requirements.

19

Defendants contend Plaintiffs have taken bits of testimony out of

20 context, and the Court agrees. The deposition of Sheriff Carona, when 21 read as a whole, indicates: (1) he is aware of Stewart's requirements 22 regarding the rights at issue in this case; (2) he has mandated

23 compliance with Stewart by all jail staff; and (3) he monitors

24 compliance with the orders in Stewart in a variety of different ways.

25 The portions cited by Plaintiffs do not create a triable issue on

26 Carona's personal involvement or deliberate indifference, or a causal

27 connection between Carona and the alleged constitutional violations.

28

Defendant Carona's motion for summary adjudication of Plaintiffs'

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1 § 1983 claims against him is GRANTED. 3/

2

B. Emotional & Mental Damages

3

Defendants contend Plaintiffs' claim for emotional and mental

4 damages is barred by the Prison Litigation Reform Act (UPLRAU). This

5 claim is correct.

6

The PLRA states, in relevant part,

7

No Federal civil action may be brought by a prisoner

8

confined in a jail, prison, or other correctional

9

facility, for mental or.emotional injury suffered while

10

in custody without a prior showing of physical injury.

11 42 U.S.C. § 1997e(e). This physical injury must be more than de

12 minimis. Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) (holding

13 back and leg pain caused by sitting on a cement floor, undefined

14 injuries from being assaulted by another prisoner, and a painful canker

15 sore were de minimis injuries insufficient to satisfy physical injury

16 requirement under 42 U.S.C. § 1997e(e)).

17

Plaintiffs correctly note the PLRA's physical injury requirement

18 does not apply to First Amendment claims. See Canell v. Lightner, 143

19 F.3d 1210, 1213 (9th Cir. 1998) (UThe deprivation of First Amendment

20 rights entitles a plaintiff to judicial relief wholly aside from any

21 physical injury he can show, or any mental or emotional injury he may

22 have incurred. Therefore, § 1997e(e) does not apply to First Amendment

23 Claims regardless of the form of relief sought."). However, while the

24 First Amendment may be implicated by a very broad reading of several of

25

26

27

28

3/ Plaintiff's motion for Rule 56(f) relief as it applies to

their claims against Sheriff Carona individually is DENIED.

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1 Plaintiffs' claims," the Fourth Amended Complaint ("FAC") only mentions

2 the First Amendment in two discrete instances, and only in passing. The

3 PAC does not state a cause of action based on a First Amendment

4 violation. At this late stage, Plaintiffs could not amend their

5 complaint to add First Amendment violations. 5/

6

Plaintiffs next contend § 1997e(e) does not apply to their ADA

7 claims. This issue has not been addressed by the Ninth Circuit. 6/ The

8

9

4/ The First Amendment is implicated in the following

claimed Stewart violations: (1) the denial of religious services

10 or access to a chaplain, see Johnson v. Moore, 948 F.2d 517, 520

(9th Cir. 1991) ("While it is clear that inmates retain First 11 Amendment protections, we have previously held that the

12 Constitution does not necessarily require prisons 'to provide each inmate with the spiritual counselor of his choice.'''); (2)

13 the denial of day room access, where the day room contains the

telephones, see Strandberg v. City of Helena, 791 F.2d 744, 747 14 (9th eir. 1986) (recognizing arrestees have a First Amendment

15

right to telephone access, but noting this right is "subject to rational limitations in the face of legitimate security interests

16 of the penal institution"); and (3) the denial of visitation, see Feeley v. Sampson, 570 F.2d 364, 372 (1st Cir. 1978) ("visitation

17 rights, besides having to meet the previously described due

process standard, reflect first amendment values, most clearly 18 the right of association."); Brenneman v. Madigan, 343 F.Supp.

19 128, 141 (N.D. Cal. 1972) (class of pre-trial detainees has a First Amendment right to visitation); but see Morrow v. Harwell,

20 768 F.2d 619, 625 (5th Cir. 1985) (indicating pre-trial detainees

have no First Amendment right to visitation, but not reaching the

21 issue) .

22

5/ Plaintiffs also correctly contend § 1997e(e) does not

23

limit compensatory, nominal or punitive damages. See Oliver, supra, 289 F.3d at 630 (liTo the extent that appellant has

24 actionable claims for compensatory, nominal or punitive damages

premised on violations of his Fourteenth Amendment rights, and

25 not on any alleged mental or emotional injuries - we conclude the

26

claims are not barred by § 1997e(e)"). Because these damages cannot flow from mental or emotional injuries, Plaintiffs'

27 contention is beyond the scope of Defendants' motion.

28

6/ Plaintiffs contend the Ninth Circuit's decision in

(continued ... )

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8

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1 Seventh and D.C. Circuits have both held § 1997e(e) limits ADA claims by

2 prisoners. Cassidy v. Indiana Dept. of Corrections, 199 F.3d 374 (7th

3 Cir. 2000); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir.

4 1998). These cases are persuasive. Section 1997e(e) "unambiguous1y

5 states that 'No Federal civil action' shall be brought for mental or

6 emotional damages without a prior showing of physical injury." Cassidy,

7 199 F.3d at 376. "In light of this plain language, [the Court] will

8 not carve out exceptions for which Congress did not provide." Id.

9

Plaintiff Pierce admits to suffering no physical injury.

10 Defendants' motion for summary adjudication of Pierce's claim for mental

11 and emotional damages is GRANTED.

12

Plaintiff Ellerston contends she suffered (1) stomach pain and

13 discomfort as a result of not having 15 minutes to eat; (2) back pain

14 and joint stiffness from not having day room access; (3) momentary

15 disorientation, tightness and pain in her chest, and lightheadedness

16 from the guards' alleged failure to timely provide Ellerston with her

17 asthma inhaler; and (4) bruising from overcrowded cells. These injuries

18 are de minimis. Defendants' motion for summary adjudication of

19 Ellerston's claim for emotional and mental damages is GRANTED.

20

Plaintiff Venezuela contends he was assaulted by several

21 correctional officers, who allegedly punched him two to four times in

22 the kidney, lower back, and sides. This particular alleged injury is

23

24 61 ( ••• continued)

25 Armstrong v. Davis, 318 F.3d 965 (9th Cir. 2003), indicates the

Ninth Circuit would likely hold § 1997e(e) does not apply to ADA 26 claims. Plaintiffs' reliance on this case is misplaced because

27

there is no indication in Armstrong whether the prisoners were physically injured, and thus able to bypass § 1997e(e). The

28 court in Armstrong also dealt only with the narrow issue of attorney's fees.

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1 greater than de minimis, but is beyond the scope of the class

2 allegations in the Fourth Amended Complaint. Defendants' motion for

3 summary adjudication of Valenzuela's claim for mental and emotional

4 damages is GRANTED.

5

Plaintiff Conn contends he suffered (1) recurrent bladder

6 infections; (2) inability to defecate for several hours; (3) pain from

7 having to use a "shower seat" instead of a wheelchair; (4) bed sores;

8 (5) cuts; and (6) injuries arising from an accident in a transport van

9 in which Conn was allegedly placed in an improper and unsecured

10

w

h

e

el

c

hair

.

7 !

Aside from the injuries arising from the van accident,

11 Conn's claimed injuries are de minimis. Conn can recover only for

12 mental and emotional damages arising directly from his van accident.

13

C. Failure to Exhaust Administrative Remedies

14

Defendants move to dismiss Plaintiffs' complaint under Rules 12(b)

15 and 12(c), or in the alternative for summary judgment of all claims, for

16 failure to exhaust administrative remedies under the PLRA. This

17 argument fails.

18

Exhaustion of administrative remedies must be raised as a motion

19 to dismiss, and is not properly brought as a motion for summary

20 judgment. Ritza v. International Longshoremen's and Warehousemen's

21 Union, 837 F.2d 365, 368 (9th Cir. 1988); see also Inlandboatmens Union

22 of Pacific v. Dutra Group, 279 F.3d 1075, 1083 (9th Cir. 2002) ("failure

23 to exhaust non-judicial remedies must be raised in a motion to dismiss,

24 and should be treated as' such even if raised as part of a motion for

25 summary judgment."). Defendants' motion for summary judgment on failure

26

27

7/ As a result of this accident, Conn contends he was confined to bed for two weeks. He' further contends these

28 injuries continue to cause him such extreme pain and muscle spasms that he is still in a doctor's care.

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1 to exhaust administrative remedies is DENIED.

2

It is well-settled in the Ninth Circuit that Rule 12(b) dismissal

3 motions must be raised before the responsive pleading is filed. Aetna

4 Life Ins. Co. v. Alla Medical Services, Inc., 855 F.2d 1470, 1474 (9th

5 Cir. 1988) (citing Bechtel v. Liberty National Bank, 534 F.2d 1335,

6 1340-41 (9th Cir. 1976)). Defendants' Rule 12(b) motion is untimely and 7 is DENIED.6/

8

As for Rule 12(c) dismissal, Defendants and defense counsel know

9 and understand the exhaustion requirements of the PLRA, which are

10 frequently an issue at the beginning stages of almost all prison-related

11 cases. Defendants have litigated this case for several years, and have

12 long been aware of its operative facts. Defendants have twice filed

13 motions to dismiss, neither of which raised this issue. In light of
14 these facts and Thomas v. Baca, supra, the Court finds Defendants have

15 waived this affirmative defense, and Defendants' motion is DENIED.9/

16

17

18

6/ Defendants' reliance on Wyatt v. Terhune, 315 F.3d 1108

(9th Cir. 2003), is misplaced. First, the court in wyatt did not 19 hold an unenumerated 12 (b) motion,: such as Defendants' current

20 motion, is not bound by the timing requirements of other 12(b) motions. Second, even assuming wyatt changed the well-settled

21 rule in the Ninth Circuit, which it apparently did not, Wyatt was

published over a year ago. Defendants offer no sufficient

22 explanation why they failed to raise this motion sooner. The

23

Court's conclusion this motion is untimely is further supported by Thomas v. Baca, et al., 2003 WL 504755 (C.D. Cal. 2003), in

24 which the court rejected the same timeliness arguments advanced by the same defense counsel.

25

9/ Failure to exhaust under the PLRA is an affirmative

26 defense which the defendant must affirmatively plead. Wyatt v.

27

Terhune, supra, 315 F.3d at 1119. Defendants incorrectly contend
the failure to exhaust is jurisdictional. See id. at 1117 n.9

28 (liAS we have held previously, however, the PLRA exhaustion requirement does not affect our subject matter jurisdiction.").

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1

D. Stewart Claims

2

Defendant Orange County contends Plaintiffs' Stewart claims --

3 insufficient meal time, access to visitors, rooftop exercise, lack of

4 seats, and day room access -- must be summarily adjudicated in the

5 County's favor because, even assuming these claims are true: (1) these

6 claims do not amount to actionable constitutional violations, and (2)

7 Plaintiffs cannot base their § 1983 claims on Stewart. Plaintiffs

8 contend they properly rely on the holding in Stewart, in which the court

9 determined the denial of these items was unconstitutional. 10/

10

Plaintiff's reliance on Thompson v. City of Los Angeles, supra,

·11 885 F.2d at 1448-49, is misplaced. In Thompson, the Ninth Circuit

12 looked to an earlier court order regarding the Los Angeles County jail

13 to demonstrate a custom or practice, not on the plaintiff's ability to

14 state a claim. Id. at 1449. The court held plaintiff had properly

15 stated a claim under the Fourteenth Amendment, but did so by citing the

16 numerous cases holding the failure to provide pre-trial detainees with a

17 bed was unconstitutional. Id. at 1448.

18

The County cites authority for their contention Plaintiffs may not

19

20

10/ In the Fourth Amended Complaint, Plaintiffs contend these

21 Stewart claims violate the Fourth, Fifth, Sixth and Fourteenth Amendments. Defendants properly contend these claims can only

22 amount to violations of Plaintiffs' due process rights under the

Fourteenth Amendment. Plaintiffs did not oppose this point. 23 Defendants' motion for summary adjudication of the Fourth, Fifth,

24

and Sixth Amendment claims is GRANTED. In their oppositions to Defendants' motions, Plaintiffs

25 contend they raise both procedural and substantive Fourteenth

Amendment due process claims in the Fourth Amended Complaint

26 ("FAC"). The FAC gives no indication of any procedural due

process violations, nor does it raise any claims for relief on 27 procedural due process violations. Plaintiffs have provided no

28 evidence of such. Plaintiffs may not amend the FAC to add such· claims.

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1 rely on Stewart. These authorities are not helpful because they are not

2 particularly on point. The cases the County cites almost uniformly deal

3 with remedial consent decrees, which do not define the bounds of

4 constitutional violations and often contain restraints greater than

5 those required by law, or involve prisoners who have different (and

6 fewer) rights than pre-trial detainees. In contrast to a consent

7 decree, the court in Stewart determined certain actions and practices

8 within the Orange County jails were unconstitutional, such as providing 9 pre-trial detainees less than 15 minutes to eat. lll

10

Absent from either parties' brief is anyon-point authority from

11 either the Supreme Court or the Ninth Circuit. It appears neither court

12 has ruled on this specific issue, i.e., whether a plaintiff can base a

13 § 1983 claim on the alleged violation by the defendant of an earlier

14 court order finding certain practices at the defendant's facility

15 unconstitutional. Also absent is mention of any controlling cases 16 abrogating the constitutional violations identified in stewart. 121

17

18

11/ The court in Stewart did not directly rule that all five

of Plaintiffs' claimed violations were unconstitutional. The 19 court held: (1) less than 15 minutes to eat was unconstitutional;

20 (2) a lack of seats was unconstitutional; (3) two hours and twenty minutes of rooftop exercise per week was "barely"

21 constitutional; and (4) the arbitrary denial of visitation,

rooftop exercise, day room access, and chapel visits to inmates 22 in administrative segregation was unconstitutional. 450 F.Supp.

23

at 588, 589-90. On the last holding, the court set minimum frequencies that the Orange County jails were to provide, i.e.,

24 two hours of day room access per day. Id. at 590. There is no direct indication in Stewart that providing to inmates less than

25 two hours of day room access would be unconstitutional, but that

holding is implied.
26

27

12/ Defendants contend the holding in stewart was necessarily superceded by Bell v. Wolfish, 441 U.S. 520, 539 (1979), in which

28 the Supreme Court held particular conditions or restrictions of (continued ... )

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Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 14 of 21

1

In the absence of controlling precedent to the contrary, the Court

2 holds Plaintiffs' reliance on Stewart is proper to the extent Plaintiffs

3 are basing their claims not only on the Stewart order, but on its

4 underlying determinations, i.e., that certain practices at the Orange

5 County jails are unconstitutional. llI As the Fifth Circuit has noted,

6 "remedial court orders per se, apart from independent constitutional

7 grounds affirmed there, cannot serve as a substantive basis for a § 1983

8 claim for damages because such orders do not create 'rights, privileges,

9 or immunities secured by the Constitution and laws.'11 Green v. McKaskle,

10 788 F.2d 1116, 1123 (5th Cir. 1986) (citing 42 U.S.C. § 1983).

11 Therefore, while Plaintiffs may not properly rely on the remedial

12 language of Stewart order alone, it appears Plaintiffs may rely on the

13 underlying constitutional violations.

14

Defendants' contention that the Eighth Amendment's "deliberate

15 indifference" standard governs claims by pre-trial detainees is

16 contradicted by Supreme Court precedent and the most recent Ninth

17 Circuit authority on the issue. See Oregon Advocacy Center v. Mink, 322

18 F.3d 1101, 1120 (9th Cir. 2003). As explained by the court in Mink,

19

20

12/(" ,continued)

pretrial detainees are constitutional if they are "reasonably

21 related to a legitimate governmental objective," and conversely,

"if a restriction or condition is not reasonably related to a 22 legitimate goal -- if it is arbitrary or purposeless -- a court

23

permissibly may infer" it is unconstitutional. The Court disagrees. In Stewart, the court found, in effect, the rights at

24 issue were being arbitrarily denied or were not reasonably related to the jail's security interests.

25

13/ Although outside of the Ninth Circuit, this conclusion is 26 supported by Tasker v. Moore, 738 F.Supp. 1005, 1013 (S.D. W.Va.

1990), in which the court held; "With respect to orders issued to 27 remedy constitutional rights violations, the party aggrieved by

28 refusal of an official to comply with such orders may bring an action against the official pursuant to section 1983."

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1 the Eighth Amendment's "deliberate indifference" standard creates only a

2 minimum level of protection for pre-trial detainees and prisoners alike,

3 id. at 1120-21 & n.11, but the Fourteenth Amendment's "purpose of

4 punishment" standard set forth in Bell v. Wolfish governs claims by pre-

5 trial detainees, Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir.

6 2002) •

7

Defendant Orange County's motion for summary adjudication of

8 Plaintiffs' Stewart claims is DENIED.

9

E. Non-Class Claims

10

Defendant Carona moves for summary adjudication on the following §

11 1983 claims brought against him in his individual capacity: (1)

12 Plaintiffs Valenzuela and Ellerston's claims for verbal abuse; (2)

13 Valenzuela and Ellerston's claims for unsanitary jail conditions; (3)

14 Plaintiffs Conn and Ellerston's claims for denial of telephone access;

15 (4) Ellerston's claim she was denied hygienic necessities; (5) 16 Ellerston's claims for invasion of privacy; and (6) Conn's claim for 17 inadequate medical care.

18

These claims are brought against Defendant Carona under § 1983,

19 however, Plaintiffs have failed to offer evidence indicating a triable

20 issue on: (1) Carona's personal involvement in or deliberate

21 indifference to these alleged violations, or (2) any causal connection

22 between Carona and these alleged violations. See Jeffers, supra, 267

23 F.3d at 915. Defendant Carona's motion for summary adjudication of

24 these claims is GRANTED.

25

F. State Law Claims

26

Defendant Carona moves for summary adjudication of Plaintiffs'

27 state law claims, contending he is immune under state law. This claim

28 is correct.

S:IGLNCI ICivil12001101-0981 IOI-0981-MSJ-Multiple.wpd .15

Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 16 of 21

1

California Government Code § 84S.2 states,

2

neither a public entity nor a public employee is liable

3

for failure to provide a prison, jailor penal or

4

correctional facility or, if such facility is provided,

5

for failure to provide sufficient equipment, personnel

6

or facilities therein.

7 Plaintiffs' rest their claims, both state and federal, on Defendants'

8 failure to provide adequate, i.e., constitutional, jail facilities.

9

Plaintiffs contend Carona is not immune under § 84S.2 because of

10 Government Code § 844.6(d), which provides, "[n]othing in this section

11 exonerates a public employee from liability for injury proximately

12 caused by his negligent or wrongful act or omission." By its plain

13 language, however, this subsection applies only to § 844.6 itself, 141 not

14 to other immunity provisions.

15

Plaintiff's point to no case law supporting their position, and

16 the Court was unable to find a case citing to both § 845.2 and §

17 844.6(d), or finding the latter was an "exception" to the former. The

18 case law supports immunity. See Taylor v. Buff, 172 Cal.App.3d 384,

19 387-88 (1985) (holding trial court correctly determined sheriff was

20 immune under § 84S.2 from claim by inmates for allegedly insufficient

21 jail facilities, staff, and equipment).

22

At the hearing, Plaintiffs argued Defendant Carona could not be

23 immune under § 845.2 because he has a mandatory duty to follow the law

24 and provide adequate jail facilities. This argument fails for three

25 reasons. First, the Government Code section Plaintiffs cite to support

26 their argument, § 81S.6, applies only to public entities, not individual

27

28

14/ Section 844.6 immunizes a public entity from liability

for physical injuries to prisoners.

S:IGL1\LCIICivilI2001101-0981101-0981-MSJ-Multiple,wpd 16

Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 17 of 21

1 defendants such as Carona. Second, nowhere in the language of § 845.2

2 is there an exception for mandatory duties, and Carona is immune under

3 the plain language of § 845.2. Third, although Carona has a duty to

4 follow the law and provide adequate jail facilities, denying immunity on

5 this ground would make § 845.2 meaningless.

6

Defendant Carona's motion for summary adjudication of Plaintiffs'

7 state law claims is GRANTED.

8

G. Motion to Decertify the Class

9

In its October 2003 order, the Court certified an equitable relief

10 class under Rule 23(b)(2) and a damages class under Rule 23(b)(3).

11 Defendants move to decertify the class, contending the class is not

12 "presently ascertainable" and is otherwise unmanageable. Defendants are

13 correct as to the damages class, but are incorrect as to the equitable

14 relief class.

15

1. Equitable Relief Class - Rule 23(b)(2)

16

Defendants contend decertification is required because the claims

17 of individual class members must be tried separately. As to the

18 equitable relief class, this claim fails.

19

Plaintiffs' action rests on proving a systemic violation of

20 constitutional rights. As discussed above, plaintiffs plan to prove

21 liability through (1) Defendants' records and (2) the testimony of

22 identified class members. At trial, Defendants will have the

23 opportunity to test the validity and sufficiency of both of these

24 categories. In establishing a systemic violation and seeking only

25 equitable relief, there is no need to test the individual claims of any

26 class members other than those providing evidence. If Plaintiffs are

27 unable to prove a systemic violation by the preponderance of the

28 evidence, their claims for relief fail.

S:IGLTlLClICivil12001101 -0981101-098 1-MSJ-Multiple.wpd 17

Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 18 of 21

1

Regarding the ability to suff1.ciently ascertain the class,

2 Defendants confuse the definition of the class, which is set forth in

3 the Court's earlier orders, and the ability to identify members of that

4 class. U[T]he class does not have to be so ascertainable that every 5 potential member can be identified at the commencement of the action. u

6 7A Charles Allen Wright, Arthur R. Miller &Mary Kay Kane, Federal

7 Practice and Procedure § 1760 at 117 (2d ed. 1986). As long as Uthe

8 general outlines of the membership of the class are determinable at the

9 outset of the litigation, a class will be deemed to exist. U Id. at 118.

10 uThus, a class will be found to exist if the description of the class

11 is definite enough so that it is administratively feasible for the court

12 to ascertain whether an individual is a member.u O'Connor v. Boeing

13 North American, Inc., 180 F.R.D. 359, 367 (C.D. Cal. 1997) (citing Aiken

14 v. Obledo, 442 F.Supp. 628, 658 (E.D. Cal. 1977».

15

The ugeneral outlines of membershipu is determinable here, in that

16 the class is defined by a membership in a certain group of individuals

17 (pre-trial detainees), during a specific time period (October 21, 2001

18 to the present), at a concentrated location (the Orange County jails),

19 and having common claims (the denial of certain specific rights).

20

Class certification under Rule 23(b)(2) is proper. See 8 Alba

21 Conte and Herbert B. Newberg, Newberg on Class Actions (4th Ed.) § 25:20

22 (llRule 23(b)(2) was drafted specifically to facilitate relief in civil

23 rights suits .•. A precise class definition is less important in Rule

24 23(b)(2) actions than in those brought under Rule 23(b)(1) or (3).U).

25 Defendants' motion to decertify the Rule 23(b)(2) equitable relief class

26 is DENIED.

27

2. Damages Class - Rule 23(b)(3)

28

As noted above, the Court earlier certified a damages class,

S:IGLmc 1ICivillZOO1101-0981101-0981-MSJ-MultipJc.wpd 18

Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 19 of 21

1 finding that questions of law or fact common to the members of the

2 class predominate over individual questions. At the time, this

3 conclusion seemed proper. with the benefit of discovery having gone

4 forward, and after having considered the parties' new arguments and

5 showings on the matter, it now appears a Rule 23(b)(3) class is not

6 proper.

7

Plaintiffs contend the damages class is proper because the Court

8 could use "aggregated damages" and statistical sampling to determine the

9 proper amount of damages. In support of this claim, Plaintiffs cite

10 Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). The court in

11 Hilao ruled only on the use of statistical sampling for determining

12 liability. 103 F.3d at 784. The defendant waived any claim to challenge

13 the validity of aggregating damages or statistical sampling to determine

14 the quantum of damages. Id. at n.11. However, in that case a respected

15 trial judge did use statistical sampling to determine damages in an

16 important case.

17

The concurring opinion in Hilao indicates that, although the court

18 did not reach the issue of using this aggregate method to compute

19 damages, it likely creates serious due process concerns for a defendant

20 by foreclosing the ability to test the causation and damages alleged by

21 each class member. Id. at 787-88 (Rymer, J., concurring in part and

22 dissenting in part). "Even in the context of a class action,

23 individual causation and individual damages must still be proved

24 individually." Id. at 788. As in Hilao, allowing Plaintiffs to use

25 statistical sampling and the like to prove a systemic violation appears

26 appropriate, but allowing such a method for determining damages in a

27 Rule 23(b)(3) damages class denies Defendants the opportunity to

28 challenge "the question [of] which people, and how much." Id.

S:IGL1ILCIICivi!\2001l01-0981101-0981-MSJ-Multiple.wpd 19

Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 20 of 21

1

Plaintiffs primarily seek equitable relief, and damages are

2 ancillary to that equitable relief. Rule 23(b)(2) is generally

3 accepted as the most appropriate vehicle for such actions. 8 Newberg on

4 Class Actions § 25:20. Rule 23(b)(3) is generally inappropriate in

5 civil rights cases. Id. § 25:21 ("Civil rights class actions for

6 damages [under Rule 23(b)(3)] have been relatively rare in the criminal

7 justice field, as courts have been reluctant to award monetary damages

8 on a class basis in cases involving such fluid and indefinite class

9 membership. " ) •

10

The Court finds use of a damages class under Rule 23(b)(3) is not

11 appropriate under the facts of this case. Class membership here would

12 be highly fluid and indefinite. Issues of damages proof would be highly

13 individualized, and poorly addressed through a sampling. There are too

14 many damages variables. The real issue is an injunction and individual

15 damages would be de minimis, in contrast to Hilao where a damages class

16 was a practical necessity because huge individual damages were the

17 entire issue and an injunction would have been of no use.

18

Defendant's motion to decertify the Rule 23(b)(3) damages class is

19 GRANTED.

20

III. DISPOSITION

21

Defendant Orange County's motions for summary adjudication of

22 Plaintiffs' § 1983 claims are DENIED. Defendant Carona's motion for

23 summary adjudication of Plaintiffs' § 1983 claims is GRANTED.

24 Defendants' motion for summary adjudication of Plaintiffs' mental and

25 emotional claims is GRANTED on all claims, except those arising from
26 Plaintiff Con"n's transport van accident. Defendants' motion to dismiss

27 or summarily adjudicate Plaintiffs' claims based upon a failure to

28 exhaust is DENIED. Defendant Carona's motion for summary adjudication

S:IGLTlLCl ICivil1200lI0l-098l10 l-098l-MSJ-Multiple.wpd 20

Case 8:01-cv-00981-ABC-MLG Document 309 Filed 03/01/2004 Page 21 of 21

1 of Plaintiffs' non-class claims is GRANTED. Defendant Carona's motion ~ 2 for summary adjudication of Plaintiffs' state law claims is GRANTED.

3 Defendants' motion for decertification of the class is GRANTED as to the

4 Rule 23(b)(3) damages class, but DENIED as to the Rule 23(b)(2)

5 equitable relief class.

6
7 DATED: February ~, 2004

8

9

L. TAYLOR

10

ITED STATES DISTRICT JUDGE

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

S:IGLmCI ICiviJ1200J 101·098110 J·0981·MSJ.MultipJe.wpd 21

 
 • Case 8:01-cv-00981-ABC-MLG

Document 368

•Filed 05/26/2004

Page 1 of 5

1 David D. Lawrence, Esq. [State Bar No. 123039] Christina M. Sprenger, Esq. [State Bar No. 205105]

W

2 Jason S. Roberts, Esq. [State Bar No. 2219781--.......

3

FRANSCELL, STRICKLAND, ROBERTS A Professl' onal Corporatl' on

&

LAWREN······ ' ..... -•.~ ~
' lIi\" \.~\\l~\j'lt1,; \t1i~FI rl~:,'ED·!"'~I\•'I~\~W;~;iUh.,'.~',~W.,~"' II

4

500 North State College Boulevard , Suit
Orange, California 92868 1604

1350

.'

';'"
.

-'t~'

Telephone No. (714) 456-0180

5 Facsimile No. (714) 456-0181

MAY 262004

6 Steven C. Miller, Esq. [State Bar No.1 2951] Jp-___-

7

OFFICE OF THE COUNTY COUNSEL, COUNTY 0 10 Civic Center Plaza, 4th Floor

Ol8RuI~Q~PIItSUT.SR,'(lICSTTORFICCTACLOIFUORRTNI~

P.O. Box 1379

y . ·....,.1 OIVISION AT SANTA ANA

8 Santa Ana, California 92702-1379

DEPUTY

Telephone No. (714) 834-3300

9 Facsimile No. (714) 834-2359

10 Attorneys for Defendants COUNTY OF ORANGE and SHERIFF MICHAEL S. CARONA
11

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14

15 FRED PIERCE, TIMOTHY LEE

) Case No. SACV 01-981 GLT(MLGx)

CONN, MAX SANDERS, FERMIN )

16 VALENZUELA, LAURIE D.

)

ELLERSTON, STEVEN GRAHAM,

)

17 JEFF MORGAN, Individually, ) :"'{hilQ Wtlj JUDGMENT c.rs. Ib

18

and as a Class Representative,

and all

) those)

~f=I;NOQI;I

n f\R A lJ '- .a",

similarly situated,

) Date:

19

) Time:

) Courtroom:

20

Plaintiffs,

)

) Discovery Cut-Off:

8/5/04

21

vs.

) Pre-Trial Conference: 11/5/04

) Trial Date:

11/30/04

22

)

COUNTY OF ORANGE, a

)

23 Governmental Entity; MICHAEL )

S. CARONA, Individually; and )

24 DOES 1 through 200, Inclusive,

) )

LODGED

25

)

)

J"v\\

26 27

Defendants.

)

DOCKETED ON C~

MAY 2 , 2004

28

MAY213lJ4

By·t,(-/\;;;~,:-:--n019

[PROPOSED] JUDGMEH fJ

• Case 8:01-cv-00981-ABC-MLG

Document 368

•Filed 05/26/2004

Page 2 of 5

1

This action came on regularly for hearing before the Court,

2 the Honorable Gary L. Taylor, District Court Judge presiding, on
3
a Motion for Summary Judgment, or alternatively Summary 4
Adjudication, of Defendant Sheriff Michael S. Carona against
5
6 Plaintiffs Fred Pierce, Timothy Lee Conn, Fermin Valenzuela and

7 Laurie Ellerston (collectively, "Plaintiffs"). The evidence

8 presented having been duly considered, the issues having been

9 duly heard and decision having been duly rendered,
10 IT IS ORDERED AND ADJUDGED AS FOLLOWS:
11

12

1) Pursuant'to Federal Rules of Civil Procedure, Rule

13

54(b), there being no just reason for delay of entry of

14

judgment in favor of Sheri Carona since the claims against

15 him are sufficiently distinct 'and severable from those
16 against the remaining defendants in this action and that
17

18

said judgment in favor of Sheriff Carona should be entered

19

forthwith; and

20

2) Plaintiffs shall take nothing against Sheri Carona

21

and that the entire action against him shall be dismissed on

22

the merits. 23

24

25

Taylor

United States District

dge

26

27

28

[PROPOSED] JUDGMENT

• Case 8:01-cv-00981-ABC-MLG

Document 368

•Filed 05/26/2004

Page 3 of 5

1 Respectfully submitted,

2 FRANSCELL, 3 ROBERTS

4

5 BY_~~~~~~7---

6

D

CHRISTINA M. SPRENGER

7

JASON ROBERTS

Attorneys for Defendants

8

County of Orange and

9

Michael S. Carona

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] JUDGMENT

• Case 8:01-cv-00981-ABC-MLG

Document 368

•Filed 05/26/2004

Page 4 of 5

1

PROOF OF SERVICE

...

2

STATE OF CALIFORNIA, COUNTY OF ORANGE

3 I, Dodie W. Terpening, am employed in the aforesaid County,

4 State of California; I am over the age of 18 years and not a

5

Party to the within action; my business address is 500 North State College Blvd., Suite1350, Orange, California 92868.

6
On May 21, 2004, I served the 7 on the interested parties in thIs action by placing a true copy
thereof, enclosed in a sealed envelope, addressed as follows:·
8 SEE ATTACHED LIST
9
10 X BY MAIL

11

I placed such envelope for deposit in the u.s. Mail for

service by the United States Postal Service, with

12

postage thereon fully prepaid.

13
14 15 16 17 18 19 20 X 21 22 23

X As follows: I am "readily familiar" with the firm IS practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Orange, California in the ordinary course of business. I am aware that on motion of the Party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit .
(Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made.
Executed on May 21, 2004, at Orange, California.

24

25

Signature of

26

27

28

• Case 8:01-cv-00981-ABC-MLG

Document 368

•Filed 05/26/2004

Page 5 of 5

1

Pierce v. County of Orange

2 Dan Stormer, Esq. 3 Virginia Keeney, Esq.
HADSELL & STORMER, INC. 4 128 North Fair Oaks Avenue
Suite 204 5 Pasadena, California 91103 6 Telephone: 626-585-9600
Facsimile: 626-577-7079
7
Richard P. Herman, Esq. 8 PRISONERS RIGHTS UNION 9 Attorney at Law
2070 North Tustin Avenue 10 Santa Ana, CA 92705
Telephone: 714-547-8512 11 Facsimile: 714-546-7474

12 Barrett S. Litt, Esq.
13 Bryan B. Miller, Esq. LITT & ASSOCIATES
14 3435 Wilshire Blvd. 15 Suite 1100
Los Angeles, CA 90010-1912 16 Telephone: 213-386-3114
Facsimile: 213-380-4585 17

18 Steven C. Miller, Esq. OFFICE OF THE COUNTY COUNSEL

19 COUNTY OF ORANGE

10 Civic Center Plaza, 4th Floor 20 P.O. Box 1379

21

Santa Ana, California 92702-1379 Telephone: 714-834-3906

22 Facsimile: 714-834-2359

23

24

25

26

27

28

 
 Case 8:01-cv-00981-ABC-MLG Document 376 Filed 06/04/2004 Page 1 of 6

1

.· . i:iFILED

2

3

JUN - 42004

4.

5

6

7
DOCKETED ON CM -.
8

9

UNITED STATES DISTRICT COURT

.... -731J4

10

CENTRAL DISTRICT OF CALIFORNIA

11

SOUTHERN DIVISION

12 FRED PIERCE, et al.,

Case No. SA CV 01-981-GLT(MLGx)

13

Plaintiffs,

14

vs.

15 COUNTY OF ORANGE, et al.,

ORDER ON DEFENDANT'S MOTION TO DISMISS THE FIFTH AMENDED COMPLAINT

16

Defendants.

17

18

Defendant Orange County's motion to dismiss the Fifth Amended

19 Complaint is DENIED.

20

I. BACKGROUND

21

Plaintiffs, pre-trial detainees at four Orange County jails,

22 brought class action claims. under 42 U.S.C. § 1983 against Defendants

23 Orange County and Sheriff Michael Carona alleging violations of

24 Plaintiffs' civil rights, rights established under Stewart v. Gates, 450

25 F.Supp. 583 (C.D. Cal. 1978), constitutional rights, and the Americans 26 with Disabilities Act ("ADA"). Plaintiffs allege Defendants, in 27 violation of Stewart, impermissibly denied plaintiffs seats in holding 28 cells, outdoor exercise, day room and telephone access, fifteen minute

S:IGLTlLCI ICivil\2001 10 1-0981 10 I·0981·MTD·5AG.wpd

Case 8:01-cv-00981-ABC-MLG Document 376 Filed 06/04/2004 Page 2 of 6

1 meal breaks, visitation, and also violated the ADA and the United

2 States and California constitutions. Plaintiffs seek injunctive relief

3 and monetary damages.

4

In July 2003, Plaintiffs stipulated to dismiss the state law

5 claims against Defendant Orange County from the Fourth Amended

6 Complaint. In March 2004,- the Court granted Defendant Carona's summary

7 judgment on all counts, granted Defendant Orange County summary judgment

8 on Plaintiffs' claims for mental and emotional damages,i/ and

9 decertified the damages class.

10

In April 2004, the Court granted Plaintiffs leave to file a Fifth

11 Amended Complaint ("SAC"), but noted all prior rulings, including

12 Plaintiffs' voluntary dismissals of claims and parties, would apply to

13 the SAC. The SAC contains all prior allegations, and adds state law

14 claims against Defendant Orange County.

15

Defendant Orange County, the only remaining named defendant, now

16 moves to dismiss the SAC, arguing the new state claims are barred by:

17 (1) the Court's earlier orders and Plaintiffs' voluntary dismissal; (2)

18 California immunity provisions; and (3) Plaintiffs' failure to file

19 claims under the California Tort Claims Act.'/ Defendant also contends

20 Plaintiffs' federal claims must be dismissed because Plaintiffs failed

21 to comply with the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §

22 1997e. 3/

23

24

1/ Plaintiff Timothy Conn's claims for mental and emotional

damages arising from his van accident were not dismissed.

25
2/ In its reply, Defendant appears to abandon its argument 26 regarding the California Tort Claims Act. It will not be
addressed any further.
27

- 28

3/ In an earlier ruling on Defendant's motions for summary (continued ... )

S:IGLTlLC 1ICivil\2001 101·0981 IOI-0981-MTD-5AC.wpd

2

Case 8:01-cv-00981-ABC-MLG Document 376 Filed 06/04/2004 Page 3 of 6

1

II. DISCUSSION

2

The function of a Rule 12(b)(6) motion is to test the legal

3 sufficiency of the claims stated in the complaint. The Court construes

4 the complaint in the light most favorable to PlaintiffS and accepts all

5 well-pleaded factual allegations as true. See Cahill v. Liberty Mut.

6 Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Dismissal is proper

7 only where there is either a "lack of a cognizable legal theory or the

8 absence of sufficient facts alleged under a cognizable legal theory."

9 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

10 Thus, the question is whether the facts alleged, if true, would entitle

11 Plaintiffs to any form of relief. See Conley v. Gibson, 355 U.S. 41,

12 45-46 (1957); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484

13 (9th Cir. 1995).

14

A. The Court's Earlier Orders and Plaintiffs' Dismissal

15

Defendant first argues Plaintiffs' new state law claims should be

16 dismissed because Plaintiffs dismissed all state claims against

17 Defendant Orange County in July 2003, and the Court's earlier order

18 granting leave to file the SAC indicated this dismissal would apply to

19 the SAC. Plaintiffs contend their dismissal was only to damages causes

20 of action, and any dismissal of equitable and injunctive claims was

21 either inadvertent or without prejudice.

22

The stipulation is not limited to damages claims', but voluntary

23

24 3/ ( ••• continued)

25 judgment, the Court held these PLRA arguments were untimely and

had been waived. Defendant does not address this earlier ruling 26 in its moving or reply papers, or explain why these earlier-

27

addressed arguments are timely brought in this motion. The defense twice moved to dismiss earlier complaints, but failed to

28 argue non-exhaustion under the PLRA. These arguments are waived and will not be addressed further.

S:IGLTlLCI ICivil1200 1101-0981101·0981·MTD·5AC.wpd

3

- ---- - - - - - -
Case 8:01-cv-00981-ABC-MLG

Document 376

Filed 06/04/2004 Page 4 of 6

1 dismissals are without prejudice. See Fed. Rule Civ. Proc. 41(a)(1).

2 The Court's order granting leave to file the SAC does not make

3 Plaintiffs' earlier dismissal a dismissal with prejudice.

4

The Court ordered no further discovery on Plaintiffs' new state

5 law claims, and there does not appear to be any prejudice to Defendant

6 from the addition of these equitable and injunctive claims. Defendant's

7 motion to dismiss on this basis is DENIED.

8

B. Immunity

9

Defendant next contends the immunities ~n California Government

10 Code §§ 844.641 and 845.2 51 bar Plaintiffs' new state law claims,

11 regardless of the relief sought. 61 Plaintiffs argue these immunity

12 provisions are inapplicable because they seek 'only injunctive and

13 equitable relief. See Cal. Govt. Code § 814 ("Nothing in this part

14 affects liability based on contract or the right to obtain relief other

15 than money or damages against a public entity or public employee."); see

16 also Gates v. Superior Court, 32 Cal.App.4th 481, 494 (199S) ("Section

17 845 is only an immunity from the payment of monetary damages - it is

18 inapplicable to a suit for equitable relief.").

19

In support of its position, Defendant cites Schooler v. State of

20 California, 85 Cal.App.4th 1004 (2000). In Schooler, the plaintiff

21

22

4/ "[AJ public entity is not liable for ... [a Jn injury to

23 any prisoner .... " Cal. Govt. Code § 844.6.

24

5/ "[ NJeither a public entity nor a public employee is

liable for failure to provide a prison, jailor penal or

25 correctional facility or, if such facility is provided, for

failure to provide sufficient equipment, personnel or facilities 26 therein." Cal. Govt. Code § 84S.2.

27

6/ Defendant initially asserted immunity under Government

28 Code §§ 820.2 and 820.8, but appears to have abandoned these sections in its reply. These sections will not be addressed.

S:IGLTlLC]ICiviI12001101-098110 I-0981-MTD-SAC.wpd

4

Case 8:01-cv-00981-ABC-MLG Document 376 Filed 06/04/2004 Page 5 of 6

1 argued the immunity in Government Code § 831.25 did not apply because he 2 sought only injunctive and equitable relief. Id. at 1013. The

3 California Court of Appeal rejected this argument because the equitable

4 and injunctive relief the plaintiff sought was merely an end-run around

5 immunity, undercutting the legislative policy of § 831.25 (reducing the 6 state's financial burden from "injuries caused by natural conditions of

7 public land"). Id. at 1014. The court explained "any , relief' allowed

8 under section 814 cannot create duties that immunity provisions guard

9 against." Id.

10

Defendant contends the same circumstances are present here, i.e.,

11 the equitable and injunctive relief Plaintiffs seek will undercut the

12 County's immunities, and the Court should follow the result in Schooler. 13 The Court disagrees.

14

The relevant portion of Schooler dealt with a unique factual

15 scenario, and the holding of the case is narrow: a plaintiff cannot use

16 a claim for equitable and injunctive relief to circumvent the financial

17 protections immunity provides a governmental entity. These facts are

18 not present here.

19

Unlike Schooler where the plaintiff sought to use equitable and

20 injunctive relief to impose a duty to maintain a property the state did

21 not otherwise have a duty to maintain, Plaintiffs here seek to enforce

22 compliance with mandatory state jail regulations, the California

23 Disabled Persons Act, and the due process and equal protection clauses 24 of the california Constitution. Plaintiffs are not seeking to expose

25 the County to financial burdens it would not otherwise have incurred, as

26 Defendant is already under the duty to comply with these laws.

27

Defendant's motion to dismiss on this basis is DENIED.

28

III. DISPOSITION

S:IGLTlLCI ICivil12001101-0981101-0981-MTD-SAC.wpd

5

Case 8:01-cv-00981-ABC-MLG Document 376 Filed 06/04/2004 Page 6 of 6

1

Defendant Orange County's motion to dismiss the Fifth Amended

2 complaint ·is DENIED. The June 7, 2004, hearing is ordered off-calendar.

3
4 DATED: June ~, 2004

5

6

7

DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

S:IGLme IICivil1200 J101-098110 1·0981-MTD·5AC.wpd

6

 
 Case 8:01-cv-00981-ABC-MLG Document 452 Filed 11/02/2004 Page 1 of 20

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00

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Plaintiffs,

ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY

~~

vs.

JUDGMEN P-.,."..,,,,,,,,"-mmm1'!\'!i"'MiiITriil-'

15 COUNTY OF ORANGE et al.

16
Defendants.
17

18

Defendant's motion for summary judgment is

19

I . BACKGROUND

20

Plaintiffs, former pretrial detainees in the Orange County jail,

21 brought class-action claims under 42 U.S.C. § 1983 against Defendants

22 Orange County and Sheriff Michael Carona alleging violations of

23 Plaintiffs' civil rights, rights established under Stewart v. Gates, 450

24 F. Supp. 583 (C.D. Cal. 1978), constitutional rights, and the Americans

25 with Disabilities Act ("ADA"). Plaintiffs alleged Defendants, in

26 violation of Stewart, impermissibly denied to Plaintiffs seats in

r 27 holding cells, outdoor exercise, dayroom and_telephone__~~c~ss, fifteen-

28 minute meal breaks, visitation, and also i

O!

(;.:,I d

n

the United

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Case 8:01-cv-00981-ABC-MLG Document 452 Filed 11/02/2004 Page 2 of 20

1 States and California constitutions.

2

On March I, 2004, the Court granted in part and denied in part

3 Defendants' motion for summary judgment. The remaining Plaintiffs are

4 Timothy Conn, Laurie Ellerston, Fred Pierce, and Fermin Valenzuela. The

5 County of Orange is the only remaining Defendant. Defendant now moves

6 for summary judgment on Plaintiffs' remaining eleven claims, which are

7 as follows: (1) Section 1983/Fourteenth Amendment, (2) Section

8 1983/violations of Stewart, (3) Section 1983/violations of Stewart and

9 California law, (4) Section 1983/equal protection, (5) California Civil

10 Code section 52.1, (6) California Constitution, (7) ADA, (8) mandatory

11 duties under Title 15, (9) California Civil Code section 54.1, (10)

12 mandatory duties under the California Constitution, and (11) injunctive

13 and declaratory relief.

14

II. DISCUSSION

15

Summary judgment is proper if "there is no genuine issue as to any

16 material fact and . . . the moving party is entitled to a judgment as a 17 matter of law." Fed. R. Civ. P. 56(c).

18

A. Mootness

19

Defendant argues the case is moot because, with the exception of

20 Plaintiff Conn, Plaintiffs no longer seek damages (Ct.'s Scheduling 21 Order & Order for Consolidation & Review Mar. 11, 2004 at 2); instead,

22 they seek injunctive and declaratory relief already in effect under

23 Stewart. Under Cornblum v. Board of Supervisors, 110 Cal. App. 3d 976,

24 981-82 (Ct. App. 1980), Defendant argues this case is almost entirely

25 moot.

26

Plaintiffs assert no case, including Cornblum, holds a preexisting

27 injunction moots a later request for injunctive relief; in any event,

28 Plaintiffs argue they seek to modify and expand Stewart. Plaintiffs

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1 also contend Defendant's conduct fits within the "capable of repetition

2 yet evading review" exception to mootness. Last, assuming injunctive

3 relief is moot, Plaintiffs argue declaratory relief is not.

4

1. Cornblum

5

Cornblum is on point and persuasive. In Cornblum, taxpayers

6 brought an action to enjoin "cruel and inhuman conditions" in a county

7 jail. Id. at 978. Earlier, detainees of the county jail had filed a

8 class action, alleging violation of their constitutional rights. Id. at

9 981. Pending appeal in the Cornblum case, a judgment was entered in

10 the class action to compel the county to fix the conditions the

11 taxpayers sought to enjoin in the Cornblum case. Id. at 981-82. In

12 light of this development, the court concluded, "To authorize a

13 taxpayer's suit by these plaintiffs when another suit . . . has in fact

14 ripened into judgment . . . is to invite a duplicative, unnecessary

15 lawsuit. Later events have mooted plaintiffs' lawsuit." rd. at 982.

16

Given recent developments, the scope of this case has narrowed:

17 Plaintiffs no longer seek damages; they seek only injunctive and

18 declaratory relief, with one exception. The injunctive and declaratory

19 relief Plaintiffs seek, however, is addressed by Stewart. Like

20 Cornblum, where the preexisting injunction fixed the conditions the

21 taxpayers' sought to fix, here Stewart provides the relief Plaintiffs

22 seek.

23

2. Modification or Expansion of the Stewart Injunction

24

Plaintiffs argue the Stewart injunction does not provide the

25 relief they seek, which is modification or expansion of the Stewart

26 injunction. There are two problems with Plaintiffs' argument.

27

First, Defendant correctly contends the proper vehicle to modify

28 or expand an injunction is not to file an entirely new lawsuit, but to

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1 file an application in the underlying Stewart case. See, e.g, ~

2 Fed'n No. 91 v. Wright, 364 U.S. 642, 647-48 (1961); Riccard v.

3 prudential Ins. Co., 307 F.3d 1277, 1298 (11th Cir. 2002); A&M Records,

4 Inc. v. Napster, Inc., 284 F.3d 1091, 1098-99 (9th Cir. 2002).

5

Second, the Fifth Amended Complaint does not mention equitable

6 relief beyond Stewart, and Plaintiffs presented this for the first time

7 in their Opposition. In Armani v. Maxim Healthcare Services, Inc., 53

8 F. Supp. 2d 1120, 1132-33 (D. Colo. 1999), the first time plaintiff 9 mentioned a particular "basis for relief was one year after filing his 10 Complaint in his . . . Opposition to [defendant's] Motion for Summary

11 Judgment." The court did "not allow him to amend his Complaint," id.

12 at 1132, and did not consider the relief. Id. at 1133.

13

Here, Plaintiffs may not raise their request to modify or expand

14 Stewart in their Pierce case opposition to Defendant's motion for

15 summary judgment.

16

3. Capable of Repetition Yet Evading Review

17

An exception to mootness is for "wrongs capable of repetition yet

18 evading review." To meet this exception, "(1) the duration of the 19 challenged action [must be] too short to allow full litigation before it 20 ceases, and (2) there [must be] a reasonable expectation that plaintiffs

21 will be subjected to it again." Greenpeace Action v. Franklin, 14 F.3d

22 1324, 1329 (9th Cir. 1993).

23

As to the first element, the injury must be of a type inherently

24 limited in duration and must be likely to always become moot before

25 litigation is completed. Carroll v. President & Comm'rs of Princess

26 Anne, 393 U.S. 175, 178-80 (1968) (holding a ten-day restraining order 27 on a protest demonstration was deemed capable of repetition and always 28 likely to evade review because litigation never would be completed

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1 before the ten days expired).

2

Plaintiffs argue, "For many of the class members, the duration

3 component is satisfied, since they will be released or moved to another

4 area of the jail, after being subjected to loss of rights guaranteed by

5 Stewart, without allowing sufficient time for appellate or Supreme Court

6 review." (PIs.' Opp'n at 26-27.) Relying on Gerstein v. Pugh, 420

7 U.S. 103, 111 n.1l (1975), Plaintiffs argue the second element is also

8 met.

9

The duration component is met for "many" of the class members,

10 indicating the injury is not "inherently limited," as required by

11 Carroll. The presence of detainees who remain for an extended period

12 of time likely ensures review cannot be evaded.

13

To meet the "capable of repetition" element, Plaintiffs must show

14 there is a "reasonable expectation that the same complaining party

15 would be subjected to the same action again." Weinstein v. Bradford,

16 423 U.S. 147, 149 (1975). Here, Plaintiffs cite only Gerstein, which

17 notes, "Pretrial detention is by nature temporary . .

[But the]

. . . . 18 individual could nonetheless suffer repeated deprivations

"

19 This is not enough under Weinstein, especially because Plaintiffs are no

20 longer incarcerated in the Orange County jail. The exception has not

21 been met.

22

4. Whether Declaratory Relief is Separately Available

23

Plaintiffs argue their request for declaratory relief is not moot,

24 even assuming their request for injunctive relief is. This argument,

25 based on Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1174-

26 75 (9th Cir. 2002), depends on whether the facts alleged show "there is

27 a substantial controversy, between parties having adverse legal

28 interests, of sufficient immediacy and reality to warrant the issuance

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1 of a declaratory judgment." In other words, to resolve this argument,

2 the Court must evaluate the merits of Plaintiffs' claims. Given the

3 evidence and the Court's rulings, the Court concludes declaratory relief

4 is still available. Tinogui-Chalola Council v. United States Dep't of

5 Energy, 232 F. 3d l300, 1303 (9th Cir. 2000) ("The party asserting

6 mootness has the heavy burden of establishing that there is no effective

7 relief remaining for a court to provide.").

8

Defendant's motion for summary judgment based on mootness is

9 GRANTED, except declaratory relief is available to Plaintiffs.

10

B. First to Third Claims and Sixth and Tenth Claims

11

"[ T1he Californiall and federal 21 due process clauses are co-

12 extensive." Cornwell v. Cal. Bd. of Barbering & Cosmetology, 962 F.

13 Supp. 1260, 1274 (S.D. Cal. 1997). The parties agree the same arguments

14 apply under either clause. (Def.'s Mot. Summ. J. at 34; Pls.' Opp'n at

15 35; Def.'s Reply at 25.)

16

Given the Court's March 1, 2004 Order, Plaintiffs are limited to

17 claiming violations of due process. Accordingly, in their sixth and

18 tenth state claims, Plaintiffs contend Defendant violated Article I,

19 section 7 of the California Constitution.

20

Defendant questions whether Plaintiffs can claim due process

21 violations under the California Constitution. Plaintiffs argue Katzberg

22 v. Regents of University of California, 29 Cal. 4th 300, 306-07 (2002),

23 holds an "individual has standing directly to bring an action under the

24 California Constitution," including Article I, section 7. (Pls.' Opp'n

25 at 35.) Defendant, however, contends Katzberg simply does not stand for

26

27
1/ Plaintiffs' sixth and tenth claims.

28
2/ Plaintiffs' first to third claims.

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1 this proposition.

2

Plaintiffs' reading of Katzberg is correct. In Katzberg, the

3 court stated, "It is clear [l the due process clause of article I,

4 section 7(a) is self-executing .... [Ilt also is clear ... this

5 section supports an action, brought by a private plaintiff against a

6 proper defendant, for declaratory relief or for injunction." 29 Cal.

74th at 307. In short, Katzberg allows Plaintiffs to assert state due

8 process violations.

9

Plaintiffs' state due process claims are based on whether there

10 was a policy or custom of violating detainees' rights, or whether

11 incidents were random or isolated. Under Section 1983, municipal

12 liability can be imposed only for injuries inflicted pursuant to a

13 widespread and longstanding official government policy or custom, Monell

14 v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978), including

15 a policy of being deliberately indifferent to the rights of individuals.

16 City of Canton v. Harris, 489 U.S. 378, 389 (1989).

17

The policy or custom need not be a rule promulgated by a

18 legislative body; a decision by a government agency's authorized

19 decisionmaker may qualify as an official policy. Pembaur v. City of

20 Cincinnati, 475 U.S. 469, 481 (1986) (plurality opinion). As for

21 custom, "proof of random acts or isolated events are insufficient to

22 establish custom." Thompson v. City of L.A., 885 F.2d 1439, 1444 (9th

23 Cir. 1989).

24

1. Dayroom Policy

25

Plaintiffs contend there is evidence of an unconstitutional policy

26 of denying detainees in administrative segregation the minimum two hours

27 of dayroom every day, as required by Stewart. Plaintiffs argue the

28 jail's written policy provides only two hours every other day to

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1 detainees in Module J. (PIs.' Evidence Vol. 3 Ex. 9.)

2

On behalf of Defendant, Richard Himmel declares administrative-

3 segregation detainees are "rarely housed in Module J, and make up only

4 approximately 0.014% of the inmates housed in Module J." (Himmel Dec!.

5 ~ 7.) When they are housed in Module J, "they are provided with

6 dayroom access in compliance with the written policies applicable to

7 Administrative Segregation inmates . . . . " (Himmel Decl. ~ 7.)

8

The parties' evidence raises a triable issue. Plaintiffs identify

9 a written policy inconsistent with the Stewart injunction, while

10 Defendant represents the written policy is "trumped" by different

11 written policies applicable to administrative-segregation detainees.

12 Defendant points to no evidence showing its policies "trump"

13 Plaintiffs'.

14

Defendant notes this issue was previously raised in Stewart and

15 adjudicated in its favor; however, the issue was discussed in a

16 contempt proceeding, and Plaintiffs had not supported their claim with

17 admissible evidence, as they now do. A triable issue exists.

18

Viewing the evidence in the light most favorable to Plaintiffs,

19 the Court DENIES Defendant's motion for summary judgment.

20

2 • Custom

21

Plaintiffs contend Henry v. County of Shasta, 132 F.3d 512 (9th

22 Cir. 1997), controls. In Henry, the Ninth Circuit held the testimony of

23 three detainees, relying on similar violations by officers in their

24 treatment after they were arrested, raised triable issues as to

25 plaintiff's municipal liability claim. Id. at 518. Here, Plaintiffs

26 argue they have provided ample evidence of custom, exceeding the

27 evidence found adequate in Henry.

28

Defendant argues stating "a particular type of event occurred a

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Case 8:01-cv-00981-ABC-MLG Document 452 Filed 11/02/2004 Page 9 of 20

1 certain number of times over a period of time says little if anything

2 about the existence of a custom." (Def. 's Reply at 7-8.) According to

3 Defendant, context is key. For example, when Plaintiffs contend they

4 were denied fifteen minutes to eat a meal, one must recognize the

5 average daily population of the Orange County jail is 6,000 detainees;

6 each detainee gets three meals a day, which amounts to 18,000 meals a

7 day; over a one year period, the number of meals is 6,570,000; and

8 because the class period dates back to October 2001, the number against

9 which to compare any allegation of denial of fifteen minutes is

10 19,710,000.

11

a. Outdoor Exercise

12

Under Stewart, pretrial detainees in administrative segregation

13 are entitled to "rooftop exercise and recreation at least twice each

14 week for a total time of not less than two hours per week." 450 F.

15 Supp. at 590-91.

16

Stewart is limited to administrative-segregation detainees, who are

17 housed in Modules F-29 or F-30. (Himmel Decl. ~ 11.) Plaintiff's

18 reliance on Judd Stephen Gartenberg's and Plaintiff Ellerston's

19 statements is misplaced, as Mr. Gartenberg does not refer to Modules F-

20 29 or F-30 in his declaration (Gartenberg Decl. ~~ 1-18) and Plaintiff

21 Ellerston was not classified as an administrative-segregation detainee.

22

Plaintiffs also offer statements by James Earl weaver, who was

23 placed in administrative segregation. When asked how often he got

24 outdoor exercise, he answered, "Once to twice a week," and "An hour, two

25 hours." (Weaver Dep. at 353.)31

26

27

3/Plaintiff's proposed survey evidence is not probative at

this summary judgment stage. It is not a summary of voluminous

28 writings under Federal Rule of Evidence 1006 because

(continued ... )

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1

Defendant's expert, Peter Morrison, concluded 0.7 percent of

2 administrative-segregation detainees were denied rooftop access without

3 any explanation, and 1.2 percent were denied rooftop access with an

4 "accompanying explanation." (Morrison Decl. 11 4.) To show a custom,

5 Monell requires a "permanent and well-settled" practice. 436 U.S. at

6 691.

7

At the hearing on this motion, Plaintiff called the Court's

8 attention to the statements of five other witnesses concerning outdoor

9 exercise. Three of those witnesses are not helpful: there is no showing

10 of being in administrative segregation by Mr. Hopper; Mr. Sherwin states

11 in a single sentence he was denied two hours of weekly outdoor exercise,

12 but no particulars of that denial (when?, how often?, etc.) are given;

13 and Ms. Valenzuela only says, without details, that she was denied

14 rooftop access, and no administrative segregation is shown. However,

15 Mr. Rials says he was in administrative segregation, and was only

16 allowed exercise access twice since July 2003, and then only for 45

17 minutes to an hour. Also, Mr. Valenzuela says between April 2002 and

18 September 2003, while in administrative segregation, he was given less

19 than 2 hours outdoor exercise for 30 to 50 weeks, and no exercise for

20 15 to 20 weeks.

21

On balance, there is a triable issue. Defendant's motion for

22

23

3/ ( ••• continued)

admissibility of underlying materials is not shown. It is not 24 state-of-mind evidence under Rule 803(3) because purports to

show facts, not someone's sense impressions. It does not meet 25 the exceptionally-used residual exception of Rule 807 because, as

26

administered, it is not inherently trustworthy. It is not offered as the basis for an expert's opinion, but as direct fact.

27 Although parts of the survey evidence could be deemed to be declarations like those admissible on summary judgment motions,

28 they have no probative value when the fixed list of usable trial

witnesses does not include such witnesses.

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1 summary judgment is DENIED on the outdoor exercise issue.

2

b. Dayroom Access

3

Stewart requires two hours per day of dayroom access for

4 administrative-segregation detainees. 450 F. Supp. at 590-91. Again,

5 Plaintiffs' reliance on Mr. Gartenberg's and Plaintiff Ellerston's

6 testimony is misplaced because Mr. Gartenberg's declaration does not

7 discuss dayroom access for administrative-segregation detainees, and

8 Plaintiff Ellerston was not classified as an administrative-segregation

9 detainee.

10

Plaintiffs, however, also offer the declaration of Plaintiff

11 Valenzuela, who stated he was denied access to the dayroom "about 300

12 days" from April 2001 to November 2002. (Valenzuela Dep. at 88.) In

13 2002, excluding the times Plaintiff valenzuela was denied access to the

14 dayroom for disciplinary reasons, he was denied access about fifty to

15 sixty times on an arbitrary basis. (Valenzuela Dep. at 116.) Plaintiff

16 Valenzuela adds he observed other detainees denied dayroom access.

17 (Valenzuela Dep. at 229.)

18

In viewing the evidence in the light most favorable to Plaintiffs,

19 drawing all justifiable inferences in their favor, there is a triable

20 issue. Plaintiffs' evidence shows Plaintiff Valenzuela was arbitrarily

21 denied dayroom access for sixty days out of the year. The fact he

22 observed others denied access suggests they were also arbitrarily

23 excluded, and it might be inferred others he did not witness were

24 denied.

25

While Mr. Weaver testified he was never denied two hours of

26 dayroom access (McCown Decl. ~ Sa & Exs. X, Y), at summary judgment,

27 this implies his situation was unique and not indicative of the general

28 practice of which Plaintiff Valenzuela testified.

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1

Plaintiffs have shown enough evidence to raise a triable issue,

2 and the Court DENIES Defendant's motion for summary judgment on the

3 dayroom access issue.

4

c. Fifteen Minutes to Eat

5

Under Stewart, all pretrial detainees must have "not less than

6 fifteen minutes at the meal table." 450 F. Supp. at 588.

7

Plaintiffs show the following evidence: Plaintiff Ellerston was

8 given about eight minutes to eat on a daily basis for two or three

9 months (Ellerston Dep. at 265-67, 281-84, 307-09); Plaintiff Pierce had

10 less than ten minutes to eat three or four times per week (Pierce Dep.

11 at 261-62, 268-69, 283, 296, 365, 384); and Mayling Kao reviewed five

12 videotapes of chow-hall sessions, which revealed "90 percent of the

13 time, detainees had less than fifteen minutes to eat their meals." (Kao

14 Decl.'lI19.)

15

Defendant, however, disputes Ms. Kao's declaration, stating most

16 of the sessions lasted fifteen minutes or longer. (Himmel Decl. 'lI'lI 8-

17 10.) A factual dispute on meal time exists. The Court DENIES

18 Defendant's motion for summary judgment on the meal time issue.

19

d. Chapel and Visitation Rights

20

Under Stewart, the Orange County jail may not arbitrarily deprive

21 detainees in administrative segregation of visitation, and is required

22 to permit detainees to receive visitors at least twice a week. 450 F.

23 Supp. at 590-91. Also, the Orange County jail must permit detainees in

24 administrative segregation to attend "regularly scheduled religious

25 services of their own selection once each week or, alternatively, to

26 make individual visits to the chapel once each week for not more than

27 twenty minutes." Id. at 591.

28

Plaintiffs contend there was a custom of denying visitation rights

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1 to detainees. Plaintiff Valenzuela testified he was denied visits with

2 his wife on at least ten occasions during the summer of 2002 and

3 December 2002. (Valenzuela Dep. at 118-19, 121-23.)

4

Plaintiffs' evidence does not raise a triable issue on visitation.

5 Plaintiff Valenzuela's testimony is the only admissible evidence

6 provided in support of the existence of a custom denying visitation

7 rights. Ten occasions of denied visitation in one year from only one

8 detainee cannot, as a matter of law, constitute a "permanent and well-

9 settled" custom. Monell, 436 u.S. at 691. On visitation, Defendant's

10 motion is GRANTED.

11

As to chapel, Plaintiff Valenzuela has never been permitted to see

12 a chaplain or attend chapel service (Valenzuela Dep. at 132-33, 135),

13 and deputies told him administrative segregation detainees are not

14 permitted to attend chapel. (Valenzuela Dep. at 133; see also Taylor

15 Decl. ~ 2-3 (stating that, during her incarceration since 2000 in

16 administrative segregation, she has never been permitted to attend

17 chapel)).41 Mr. weaver, however, testified he received visits from a

18 Catholic priest at his request. (PIs.' Evidence Vol. 2 at 467-68.)

19

Plaintiffs have raised a triable issue. At least two detainees

20 testified they have never been permitted to attend chapel, and one was

21 told administrative-segregation detainees cannot attend. Mr. Weaver

22 does not state he attended chapel; he only received visits from a

23 priest. These facts suggest the existence of a custom denying detainees

24 the right to attend "regularly scheduled religious services of their own

25 selection." Stewart, 450 F. Supp. at 591. On the chapel issue, the

26

27

41 The Court does not consider Plaintiff Ellerston's

28 testimony regarding access to a chaplain or chapel because she was not an administrative-segregation detainee.

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1 Court DENIES Defendant's motion for summary judgment.

2

e. Adequate Seats in Holding Cells

3

Stewart requires a seat for all detainees in holding cells either

4 going to or returning from court. Id. at 590-91.

5

Plaintiffs rely on testimony from Plaintiffs Ellerston and

6 Valenzuela, as well as Dominic Bagarozzi, Keith Engel, James Shipp, and

7 Guadelupe Valverde; however, all of this testimony concerns seating in

8 holding cells during the booking process, not when detainees are going

9 to or returning from court. Consequently, the Court does not consider

10 this testimony.

11

Douglas Hopper's and Mahogany Ota's declarations are relevant.

12 Mr. Hopper states that, as to llinmates on their way to and from court,

13 I have personally seen inmates packed in the holding cells -- the

14 inmates are forced to stand, lie and sit on the floors." (Hopper Dec!.

15 ~ 7.) Ms. Ota adds, "when I am placed in a holding cell to await the

16 bus to go to court or when I return from court and wait to be placed in

17 a cell, I have had to either stand or sit on the floor. This has

18 happened at least 50% (fifty) percent of the time." (Ota Decl. ~ 5.)

19

This evidence raises a triable issue. Together, this evidence

20 indicates multiple detainees have had to go without seating almost half

21 the time they are going to or returning from court, which may violate

22 Stewart and may suggest the existence of a general practice by

23 Defendant.

24

Here, the Court DENIES Defendant's motion for summary judgment on

25 the seating issue.

26

C. Fourth Claim

27

Plaintiffs bring an equal protection claim. "Although disabled

28 people do not constitute a suspect class, the Equal protection Clause

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1 prohibits irrational and invidious discrimination against them." Dare

2 v. California, 191 F.3d 1167, 1174 (9th Cir. 1999).

3

Plaintiffs contend Defendant's treatment of detainees is irrational

4 and invidious. In making this contention in the context of equal

5 protection, Plaintiffs compare disabled detainees to nondisabled

6 detainees. Plaintiffs assert, for example, "the jail has a practice of

7 . . . denying detainees in wheelchairs the same access to the dayroom

8 as [detainees] with no disabilities [and] refuse[s] to give disabled

9 detainees the same access to the roof as non-disabled detainees."

10 (PIs.' Opp'n at 30.)

11

Plaintiffs' contention misses the mark. To establish a claim

12 under the Equal Protection Clause, Plaintiffs must show Defendant did

13 not treat them "in the same manner as other similarly situated

14 prisoners." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439

15 (1985). A disabled and nondisabled detainee are not similarly situated

16 for equal-protection purposes. Crayton v. Terhune, No. C 98-4386, 2002

17 WL 31093590, at *2 (N.D. Cal. Sept. 17, 2002).

18

In Crayton, the court stated, "Crayton fails to show that

19 defendant . . . treated him any differently than other disabled inmates.

20 Accordingly, on these facts, no reasonable jury could conclude that

21 defendant

treated Crayton differently than 'similarly situated'

22 inmates." Id. at *3. Because Plaintiffs compare treatment of disabled

23 detainees to nondisabled detainees, this Court GRANTS Defendant's

24 motion for summary judgment on Plaintiffs' equal protection.

25

D. Fifth Claim

26

Plaintiffs argue they were deprived of "the exercise or enjoyment

27 of . . rights secured by the Constitution" by "threats, intimidation

28 or coercion" in violation of California Civil Code section 52.1.

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1

The parties appear to agree there is no evidence of threats,

2 intimidation, or coercion. The issue instead centers on whether

3 evidence of threats, intimidation, or coercion is required under the

4 applicable law.

5

Under section 52.1, if a person "interferes by threats,

6 intimidation, or coercion" with the exercise or enjoyment of rights

7 secured by law, a civil action may be brought.

8

Interpreting section 52.1, the California Supreme Court in Venegas

9 v. County of Los Angeles, 32 Cal. 4th 820 (2004), stated, "Civil Code

10 section 52.1 does not extend to all ordinary tort actions because its

11 provisions are limited to threats, intimidation, or coercion that

12 interfere with a constitutional or statutory right." rd. at 843.

13 Later, the court held, "All we decide here is that, in pursuing relief

14 for [] constitutional violations under section 52.1, plaintiffs need not

15 allege that defendants acted with discriminatory animus or intent, so

16 long as those acts were accompanied by the requisite threats,

17 intimidation, or coercion." Id.

18

Here, there is no evidence of threats, intimidation, or coercion;

19 therefore, as a matter of law, the Court GRANTS Defendant's motion for

20 summary judgment on Plaintiffs' fifth claim.

21

E. Seventh and Ninth Claims

22

The ADA and California Civil Code section 54.1 are coextensive.

23 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1134 n.4 (9th

24 Cir. 2001). Plaintiff Conn argues he was denied full and equal access

25 to various facilities, programs, and services while housed in Sheltered

26 Living at the Orange County jail, in violation of federal and state law.

27

Here, triable issues of fact exist on whether Defendant complied

28 with federal and state law. After touring the Orange County jail, Peter

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Case 8:01-cv-00981-ABC-MLG Document 452 Filed 11/02/2004 Page 17 of 20

1 Robertson concluded a "significant number of existing conditions

2 observed throughout the facility [] limit access to and participation in

3 OC Jail's programs, services and activfties by detainees with

4 disabilities." (Robertson Dec!. ~ 10; see also Keeny Dec!. ~~ 6-13

5 (reporting numerous incidents where Plaintiff Conn was denied access to

6 facilities).) Ron Bihner, however, disagrees. In his declaration, he

7 asserts the jail's facilities, programs, and services are accessible to

8 the disabled. (Bihner Dec!. U 6-13.)

9

The conflicting declarations are not reconcilable. Triable issues

10 exist. The Court DENIES Defendant's motion for summary judgment on

11 Plaintiffs' seventh and ninth claims.

12

The parties have not sufficiently joined issue in their briefing

13 for the Court to rule whether Conn can also assert claims on behalf of

14 other detainees. See, Laxalt v. McClatchey, 809 F.2d 885, 891 (D.C. 15 Cir. 1987); Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir.

16 2001). The parties may take this up by a motion specifically briefing

17 this issue if they wish.

18

F. Eighth Claim

19

Plaintiffs contend they are entitled to relief under California

20 Government Code section 815.6 because Defendant violated mandatory

21 duties imposed by Title 15 of the California Code of Regulations.

22 Section 815.6 states, "Where a public entity is under a mandatory duty

23 imposed by an enactment that is designed to protect against the risk of

24 a particular kind of injury, the public entity is liable . . . unless

25 . it exercised reasonable diligence to discharge the duty." The

26 parties first dispute whether Title 15 imposes mandatory duties. The

27 Court finds it does.

28

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Case 8:01-cv-00981-ABC-MLG Document 452 Filed 11/02/2004 Page 18 of 20

1

A regulation, like Title 15, may impose mandatory duties. Cal.

2 Gov't Code §§ 810.6, 815.6 (West 2003). Moreover, Title 15 applies to

3 jails. See Cal. Code Regs. tit. 15, § 1010 (2003).

4

TitIe 15 repeats the word "shall" several times. See, e. g., id. §

5 1053 ("Administrative segregation shall consist of separate and secure

6 housing but shall not involve any other deprivation of privileges than

7 is necessary to obtain the objective of protecting the inmates and

8 staff."). While the word "shall" "does not necessarily create a

9 mandatory duty," County of L.A. v. Superior Court, 102 Cal. App. 4th

10 627, 639 (Ct. App. 2002), it is "explicit and forceful language" akin to

11 mandatory language. See Quackenbush v. Superior Court, 57 Cal. App. 4th

12 660, 663 (Ct. App. 1997). And here, Title 15 itself states the word

13 "shall" is deemed "mandatory." Cal. Code Regs. tit. 15, § 2000(a) (5).

14

Next, the parties dispute whether Title 15 is mandatory for

15 purposes of section 815.6. Defendant argues the word "shall" is not

16 dispositive for purposes of section 815.6. See Sutherland v. City of

17 Forth Bragg, 86 Cal. App. 4th 13, 20 (Ct. App. 2000). In Sutherland,

18 the court stated, "even where language in the predicate enactment

19 appears mandatory, if significant discretion is required to carry out

20 any duty imposed, that duty is not mandatory within the meaning of

21 section 815.6." rd.

22

Defendant contends jail officials have significant discretion in

23 carrying out the day-to-day operations of a county jail, and Title 15

24 recognized this: "Nothing contained herein shall be construed to deny

25 the power of any facility administrator to temporarily suspend any

26 standard or requirement herein prescribed . • . . " Cal. Code Regs.

27 tit. 15, § 1012.

28

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Case 8:01-cv-00981-ABC-MLG Document 452 Filed 11/02/2004 Page 19 of 20

1

Title 15 sets the floor below which jails cannot fall. Cal. Code

2 Regs. tit. 15, § 1005 (stating counties cannot adopt standards for

3 correctional facilities below the standards listed in Title 15).

4 Therefore, jails officials have discretion either to enact stricter

5 policies or temporarily suspend policies. Whether this constitutes

6 "significant" discretion is a triable issue. The Court DENIES 7 Defendant's motion for summary judgment on Plaintiffs' eighth claim. 51

8

G. Eleventh Claim

9

Plaintiffs appear to abandon their claim under California Code of

10 Civil Procedure 526a. (PIs.' Opp'n at 35 ("Plaintiffs do not oppose

11 dismissal of the taxpayer claim under C.C.P. § 526a.").) Having

12 reviewed Defendant's argument, the Court GRANTS Defendant's motion for

13 summary judgment on Plaintiffs' eleventh claim.

14

III. DISPOSITION

15

Defendant's motion for summary judgment is GRANTED IN PART.

16 Defendant's motion for summary judgment based on mootness is GRANTED,

17 except declaratory relief is available to Plaintiffs. Defendant's

18 motion for summary judgment on Plaintiffs' first, second, third, sixth,

19 and tenth claims is GRANTED IN PART. Defendant's motion for summary

20

21 51 Assuming Title 15 imposes mandatory duties for purposes

22 of section 815.6, Defendant contends it has exercised reasonable

diligence to comply with Title 15. As evidence, Defendant refers 23 to this Court's December 12, 2002 Order, in which the Court

24 stated, "Defendants . . . produce substantial evidence that Defendants are attempting in good faith to comply with the

25 Court's orders."

The Court's statement was based on evidence before it in 26 2002, and it cannot assume this evidence is the same today. (See

27

PIs.' Opp'n at 34 n.25 (asserting Plaintiffs' showing at this stage is "far more extensive").) Based solely on the December

28 12, 2002 Order, the Court cannot find Defendant exercised reasonable diligence.

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Case 8:01-cv-00981-ABC-MLG Document 452 Filed 11/02/2004 Page 20 of 20

1 judgment on Plaintiffs' fourth and fifth claims is GRANTED.

2 Defendant's motion for summary judgment on Plaintiffs' seventh, eighth,

3 and ninth claims is DENIED.. Defendant's motion for summary judgment on

4 Plaintiffs' eleventh claim is GRANTED.

5
6 DATED: November ~ , 2004

7

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 Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 1 of 14

----------.

Priority

FILED

1 2

Send Enter Closed JS-5/1S-6 _

[~~1~ ]

3

JS-2/JS-3 _

Scan On[y_

CLERK. us DISTr1ICT COURT

4

CE'IITRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION AT SANTA ANA J

BY

~ DEPUTY

5

6

THIS CONSTITUTES NOTICE OF ENTRY AS REQUIRED BY FRP. RULE 77 (d).

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12 FRED PIERCE et al.,

SOUTHERN DIVISION Case No. SA CV Ol-981-GLT (MLGx)

13

Plaintiffs,

14

vs.

15 COUNTY OF ORANGE et al.,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

16 Defendants.
17

18

Plaintiffs sued for claimed unlawful conditions in the Orange

19 County jails. The Court rules in favor of defendant County.

20

A. BACKGROUND

21

Plaintiffs Pierce, Ellerston, Valenzuela, and Conn bring class

22 claims against Defendant County of Orange,l/ contending the County

23 violates certain constitutionally protected and statutorily recognized 24 standards in pre-trial inmate treatment at the Orange County jails.

25 Plaintiffs also contend the County's jail conditions create unlawful

26 barriers and lack of access to programs for disabled inmates.

27

28

liThe other defendants have been dismissed from the case.

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Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 2 of 14

1 Plaintiffs seek various remedies for the claimed violations of their

2 rights.2!

3

The matter was tried without a jury over several days. 31 Extensive

4 briefing was submitted before and after the trial. Pursuant to Rule

5 52(a), Federal Rules of Civil Procedure, the Court now makes its 6 findings and conclusions. 41

7

B. PRE-TRIAL INMATE CONDITIONS OF CONFINEMENT

8

Plaintiffs contend the County violates standards of pre-trial

9 inmate treatment in several ways. It is claimed these violations are

10 actionable as constitutional violations under 42 U.S.C. § 1983 (as

11 Monell violations), and as state law violations under Title 15, 12 California Code of Regulations. 51

13

As the basis for the § 1983 claim, the Court has reviewed the

14 evidence for indications of the Fourteenth Amendment's "purpose of

15 punishment" standard set in Bell v. Wolfish, 441 U.S. 520, 538-39

16 (1979). The Court has also examined the evidence for indications of

17 excessiveness in the County's conduct, Demery v. Arpaio, 378 F.3d 1020, 18 1028-29 (9th Cir. 2004), or deliberate indifference.

19

20

2/0ne inmate's separate personal injury claim was bifurcated

and will be tried after this matter is concluded.

21 3/This case was tried under a fixed time limit, with equal

22 time allocated to each side. The Court finds the time allocated

to each side was adequate to present their case. Each side had 23 full opportunity to, and did, present their case completely and

24

properly, and the positions of the respective parties were fully considered by the Court.

25 4/For purposes of this ruling, the Court finds plaintiffs

26 have standing and their claims are not moot.

27

SIClaims are treated as not separately actionable under the

28

Court's orders in the Stewart case, but potentially actionable, instead, under 42 U.S.C. § 1983.

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Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 3 of 14

1

Since the County of Orange is the Defendant, for § 1983 liability

2 Plaintiffs must show a constitutional violation due to a policy or

3 custom of the County. Monell v. Department of Social Services of the

4 City of New York, 436 U.S. 658, 694 (1978). Random acts or events are

5 not a custom. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 6 (9th Cir. 1989). To be a custom, "the conduct [must have 1 become a

7 traditional method of carrying out policy." Trevino v. Gates, 99 F.3d

8 911, 918 (9~ Cir. 1996).

9

Although compliance with Title 15's requirements is mandatory for

10 agencies like the County, Inmates of Sybil Brand Institute for Women v.

11 County of Los Angeles, 130 Cal. App. 3d 89, 108 (1982), there is a

12 substantial question whether Title 15 creates mandatory duties for

13 purposes of civil liability. Assuming (but not deciding) the potential

14 for civil liability exists, the Court has examined the evidence as to

15 whether the conditions of confinement complained of are reasonably

16 related to a legitimate governmental purpose, Sybil Brand at 101-02,

17 and whether the County has exercised reasonable diligence, California

18 Government Code § 815.6.

19

The claims on which the parties have joined issue are the

20 following: 6/

21

1. Mealtime

22

Plaintiffs argue there are pervasive violations of sufficient time

23

24

6/Plaintiffs referred to other claimed County shortcomings

in various briefings, pretrial hearings, and at the trial, and

25 requested to conform the pleadings to the proof if the trial

evidence disclosed violations beyond those pled. (Plaintiffs'

26 Trial Brief, pp. 7-10, filed November 24, 2004.) However, in

27

their arguments at trial and the briefing that followed, the parties joined issue on the claims discussed here, and those are

28 the ones upon which the Court will rule. No substantial issue was presented concerning other claims.

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Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 4 of 14

1 to eat meals, in violation of both § 1983 and Title 15.

2

For § 1983 purposes, there is no constitutional standard for time

3 to be allocated for an inmate's meal. The Constitution is satisfied as

4 long as detainees are served well-balanced meals, containing sufficient

5 nutritional value to preserve health. Green v. Ferrell, 801 F.2d 765,

6 770 n.5 (5th Cir. 1986). Title 15 § 1240 sets a minimum fifteen minute

7 meal time.

8

The evidence shows the County sometimes met or exceeded the Title

9 15 standard, and sometimes did not. Inmates fed in their cells had as

10 long as they needed to eat. Inmates in the dining hall had

11 approximately fifteen minutes to eat, but reconstructed times from

12 television monitors occasionally fell 10% or 20% under that mark.

13

For § 1983 purposes, the Court can find no "purpose of

14 punishment," deliberate indifference, or excessive conduct by the

15 County, or a policy or custom to deny sufficient nutrition or sufficient

16 time to eat. For Title 15 purposes, the Court finds the County's food

17 service scheduling is reasonably related to the legitimate government

18 purpose of serving a large number of people in a security-sensitive

19 situation, and the County has exercised reasonable diligence to comply

20 with the state's time standard.

21

2. Holding cells

22

Plaintiffs contend the County has a pervasive pattern and practice

23 of maintaining overcrowded holding cells with inadequate seating, in

24 violation of the Fourteenth Amendment and actionable under § 1983.

25

Overcrowding alone does not rise to the level of a constitutional

26 violation. Jenkins v. Velasco, 1995 WL 765315, at *5 (N.D. Ill. 1995);

27 Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005); Malone v. Becher,

28 2003 WL 22080737, at *10 (S.D. Ind. 2003); Chavis v. Fairman, 1994 WL

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4

Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 5 of 14

1 55719, at 3-4 (N.D. Ill. 1994); Coughlin v. Sheahan, 1995 WL 12255 at

2 *3 n.3 (N.D. Ill. 1995). However, upon proof of excessive County

3 "purpose of punishment" conduct, or crowding giving rise to other

4 unconstitutional conditions, relief could be appropriate.

S

The evidence shows testimony by many inmate witnesses who did not

6 experience overcrowding, but some who said they did. There is no

7 indication the occasional incidents of overcrowding were punitive in

8 nature, deliberately indifferent, or were excessively harsh. The Court

9 is unable to find the claimed occasions of overcrowding are pervasive or

10 due to an improper policy or custom.

11

3. Outdoor exercise

12

Plaintiffs assert there is a pervasive and recurring County custom

13 and practice of providing insufficient outdoor exercise in violation of

14 both § 1983 and Title 15.

15

For § 1983 purposes, regular exercise of some type is crucial for

16 the psychological and physical fitness of prisoners. Bailey v.

17 Shillinger, 828 F.2d 651, 653 (10th Cir. 1987); Spain v. Procunier, 600

18 F.2d 189, 199 (9th Cir. 1979); see also Wrice v. Koehler, 1993 WL

19 300269, at *3 (N.D. Cal. 1993) (allegation pretrial detainees were

20 denied all access to exercise stated a cognizable Fourteenth Amendment

21 claim). However, "what constitutes adequate exercise will depend on the

22 circumstances of each case, including the physical characteristics of

23 the cell and jail and the average length of stay of the inmates."

24 Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994); accord Buffington

25 v. O'Leary, 748 F.Supp. 633, 634 (N.D. Ill. 1990) (no constitutional

26 claim where a prisoner had a reasonable opportunity for exercise and did

27 not allege any significant physical deterioration).

28

For example, in Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir.

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5

Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 6 of 14

1 1980), the Eighth circuit held pretrial detainees are ordinarily

2 entitled to one hour of exercise outside their cells each day if they

3 spend more than sixteen hours in their cells. However, courts have 4 held pretrial detainees have no fundamental right to exercise if they

5 are incarcerated for a short time. See, ~, Wilson v. Blankenship, 6 163 F.3d 1284, 1292 (l1th Cir. 1998) (holding there is no "clearly

7 established constitutional law" requiring a jail to provide access to

8 outdoor exercise during time of incarceration when the term of

9 incarceration was short).

10

Title 15, section 1065(a), provides for a combination of exercise

11 and recreation. It calls for the facility administrator to develop

12 written policies and procedures for an exercise and recreation program,

13 in an area designated for recreation, allowing access a minimum of 3 14 hours per week. Although the Title 15 standard does not require it, 15 outdoor exercise is preferable when possible. See, for example, Board

16 of Corrections, Minimum Standards for Local Detention Facilities (1980).

17 Title 15 does not contemplate that dayroom recreation cannot be part of

18 the exercise and recreation combination.

19

The evidence does not show a constitutional violation. There is

20 no indication of a "purpose of punishment," deliberate indifference, or 21 excessiveness in the County's conduct in providing outdoor exercise, or

22 a showing of inmate physical deterioration. No policy or custom to

23 provide inadequate exercise has been shown. The evidence shows the

24 County's compliance with the exercise/recreation requirement of Title 15 25 is reasonably related to the legitimate purpose of providing for

26 movement and security of numerous inmates, and the County has used 27 reasonable diligence.

28

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Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 7 of 14

1

4. Dayroom access

2

Plaintiffs argue the County has unconstitutionally denied inmates

3 adequate dayroom access.

4

The Court finds no authority holding dayroom access is, by itself,

5 a constitutional requirement. However, lack of such access, accompanied

6 by other oppressive conditions, can be a constitutional violation. See,

7 for example, Lareau v. Manson, 651 F.2d 96, 105 (2d Cir. 1981)

8 (combination of double-bunked cells, overcrowded dayrooms, and strained

9 prison services over substantial time held unconstitutional

10 punishment). Cases cited by Plaintiffs for the proposition that two

11 hours per day of dayroom are constitutionally required do not so hold.

12 Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) (use of "webcam" to

13 display inmates on Internet; no dayroom issue); Halvorsen v. Baird, 146

14 F.3d 680 (9th Cir. 1998) (inmate held incommunicado; no dayroom issue).

15

The evidence shows that, in general, the County provided dayroom

16 access to inmates. Some incidents of particular inmates failing to

17 receive full scheduled dayroom access were shown. However, the evidence

18 does not establish any dayroom deprivation was for the purpose of

19 punishment, or that the County behaved with deliberate indifference, or

20 in an excessive manner, or with a policy or custom to deny meaningful

21 dayroom use. There was no showing lack of dayroom access combined with

22 other factors to create a constitutionally oppressive jail condition.

23

5. Access to religious services

24

Plaintiffs assert the County has engaged in a pervasive and

25 recurring custom and practice of denying access to religious services in

26 violation of § 1983.

27

Under the Constitution, "reasonable opportunities must be afforded

28 to all prisoners to exercise the religious freedom guaranteed by the

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Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 8 of 14

1 First and Fourteenth Amendments." Cruz v. Beto, 405 U.S. 319, 322 n.2

2 (1972). However, prison regulations limiting inmates' free religious

3 exercise do not violate the First Amendment so long as they are

4 reasonably related to a legitimate penological interest. Turner v.

5 Safley, 482 U.S. 78, 89 (1987). Title 15 § 1072 requires the facility

6 administrator to develop written policies and procedures giving inmates

7 the opportunity to voluntarily participate in religious services and

8 counseling. Neither the Constitution nor Title 15 fixes mandatory

9 minimums.

10

The evidence shows the County does provide opportunities for

11 inmates to participate in religious services and counseling. Occasional

12 instances of impediments to participation were also shown. However, the

13 Court cannot find the sporadic denials of religious service access were

14 for the purpose of punishment, or showed excessive or oppressive conduct

15 or deliberate indifference by the County. No policy or custom of denial

16 of this basic right was shown. The County has exercised reasonable

17 diligence, in view of its legitimate governmental purpose in housing

18 many diverse inmates in a security-sensitive environment.

19

6. Conclusion

20

The Court does not find a § 1983 (Monell) constitutional violation

21 or a state Title 15 violation.

22

C. DISABILITY COMPLIANCE

23

Plaintiffs contend the Orange County jails are not in compliance

24 with federal or state disabled access requirements, and seek a

25 declaration of such noncompliance and injunctive relief to cure it.

26

TitIe II of the Americans with Disabilities Act ("ADA") provides:

27 "[N]O qualified individual with a disability shall, by reason of such

28 disability, be excluded from participation in or be denied the benefits

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8

Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 9 of 14

1 of the services, programs, or activities of a public entity, or be 2 subjected to discrimination by any such entity." 42 U.S.C. § 12132. 3 The ADA prohibits public entities from discriminating against disabled

4 persons or excluding disabled persons from participating in or

5 benefiting from a public program, activity, or service solely by reason 6 of disability. Weinreich v. Los Angeles County Metro. Transp. Auth., 7 114 F.3d 976, 978 (9th Cir. 1997). A violation of the federal ADA is 8 also a violation of the California Disabled Persons Act, California 9 Civil Code §§ 54(c) and 54.1(d).

10

The ADA applies to all state and local government agencies,

11 including correctional or detention facilities. Armstrong v. Wilson, 12 124 F.3d 1019, 1022-23 (9th Cir. 1997); Pa. Dep't of Corr. v. Yeskey,
13 524 u.s. 206, 209 (1998) (state prisons); Bogovich v. Sandoval, 189 F.3d
14 999, 1002 (9th Cir. 1999) (same). The ADA'S broad language covers 15 "anything a public entity does." Pennsylvania Dep't of Corr. v. Yeskey,
16 118 F.3d 168, 171 (3d Cir. 1997), aff'd 524 u.s. 206 (1998). This
17 includes programs or services provided at jails, prisons, and any other 18 "custodial or correctional institution." rd. Here, the ADA applies to

19 Orange County's five jails.

20

Programs provided in the jail environment are "services, programs,

21 or activities of a public entity" under the ADA. Armstrong, 124 F.3d

22 at 1023-24; ~ also Yeskey, 524 u.s. at 209-10.

23

For providing equal access to services, programs, or activities

24 for disabled inmates, the test is one of "reasonableness": public

25 entities are required to make "reasonable" modifications in policies,

26 practices, or procedures when the modifications are necessary to avoid 27 disability discrimination, unless the public entity can show the 28 modifications would fundamentally alter the nature of the service,

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9

Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 10 of 14

1 program, or activity. McGary v. City of Portland, 386 F.3d 1259, 1265-

2 67 (9~ Cir. 2004), citing 28 C.F.R. § 35.130 (b)(7).

3

The access standards require a public entity to operate a service,

4 program, or activity so that, when viewed in its entirety, it is readily

5 accessible and usable by disabled individuals. The public entity is

6 required to develop a transition plan for structural changes to make

7 programs accessible. Barden v. City of Sacramento, 292 F.3d 1073, 1075-

8 76 (9th Cir.2002).

9

1. Barriers

10

Unlike a public accommodation (covered by Title III) which must

11 remove architectural barriers whenever "readily achievable," a public

12 entity (covered by Title II) is not required to make structural changes

13 in existing facilities where other methods 'are effective in achieving

14 compliance. 28 C.F.R. § 35.l50(b)(1); Shotz v. Cates, 256 F.3d 1077,

15 1080 (11th Cir. 2001); Parker v. Universidad de puerto Rico, 225 F.3d 1,

16 6 (l't Cir. 2000). For example, if one facility is inaccessible, a

17 public entity may comply with Title II by making its services, programs,

18 and activities available at another facility that is accessible. Shotz,

19 256 F.3d at 1080.

20

Cases applying the ADA to a prison setting are few, but reference

21 to cases decided under the earlier Rehabilitation Act is helpful. The

22 interchangeability of such decisional law between the two is

23 appropriate. Parker, 225 F.3d at 4; Theriault v. Flynn, 162 F.3d 46, 24 48 n.3 (1st Cir. 1998); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir.

25 1998).

26

Although noting the Rehabilitation Act applied to a prison

27 setting, the Ninth Circuit acknowledged the Act was not designed to deal

28 specifically with the prison environment, but was for general societal

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1 application, and consideration must be given to the reasonable

2 requirements of effective prison administration. Gates v. Rowland, 39

3 F.3d 1439, 1446-47 (9th Cir. 1994). Concerning disabilities, an

4 impingement on an inmate's rights is acceptable if it is reasonably

5 related to legitimate penological interests. Gates, at 1447. The

6 inmate has the burden of showing a challenged prison policy or

7 regulation is unreasonable. Turner, 482 U.S. at 89-91; Casey v. Lewis,

8 4 F.3d 1516, 1520 (9ili Cir. 1993).

9

The evidence in this case shows that, although significant efforts

10 have been made, the Orange County jails have not yet been brought into

11 full ADA compliance. In 2000, Orange County adopted a Transition Plan

12 to move existing facilities toward ADA compliance. That plan was

13 directed more toward structural modifications of public and visitor

14 areas than toward compliance in inmate areas. Substantial upgrades were

15 made under that plan. As trial of this lawsuit approached, additional

16 significant structural modifications were made.

17

Certain inmate witnesses and Plaintiffs' expert, Mr. Robertson,

18 identified various specific architectural barriers and features that are

19 out of compliance with the ADA.7/ However, this initial showing falls

20 short of the required additional showing to justify declaratory or

21 injunctive action by this Court. Other than broad conclusory

22 statements that Mr. Robertson thought the items could be fixed, there

23

24

7/Mr. Robertson was Plaintiffs' expert, but his testimony

was of limited value. Plaintiffs had assigned him the limited

25 task of looking only at existing conditions and commenting on

what he saw. He made no study of expenses or methods to fix 26 specific shortcomings. He did not evaluate whether other methods

were effective in achieving compliance. He seldom testified 27 about specific problems, but frequently talked about what was

28 "typically" present. He made no analysis of accessability to programs or mainstreaming.

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Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 12 of 14

1 was no analysis, cost study, or proposal about how effective

2 modifications could be made. There was no significant showing that,

3 where an architectural shortcoming existed, it was not made accessible 4 by other appropriate action taken by a jail employee. sf Where

5 structural corrections were not yet accomplished, there was no

6 significant Plaintiffs' showing that other methods were ineffective in

7 achieving compliance, while there was significant defense evidence that

8 other curative methods were effective. The evidence shows certain

9 areas of ADA noncompliance are within the reasonable requirements of

10 effective prison administration.

11

In summary concerning the existence of barriers for disabled

12 inmates, the evidence shows some do exist, but the rest of the required

13 showing was not made. On the contrary, the defense showed other

14 effective remedies are in use, and decisions are being made concerning

15 structural modifications in keeping with effective prison

16 administration and based on legitimate penological interests.

17

2. program access

18

Concerning access to programs, the evidence shows that, except for

19 the "Best Choice" program, the various inmate programs are also

20 available to disabled inmates. The various programs may be available

21 only at accessible facilities rather than all facilities, but that is

22 proper compliance. Captain Board testified there are security concerns

23 about disabled inmates participating in the "Best Choice" program, and

24 this legitimate penological interest was not rebutted. In summary

25 concerning access to programs, there was an inadequate showing of the

26

a/Por example, where a small "lip" or ridge existed when 27 passing from one cell area to another, or into the exercise area,

28 a deputy would simply roll an inmate's wheelchair over the obstacle.

S:IGLT\LCI ICivil12001101·0981101·981 .findings.wpd

12

Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 13 of 14

1 "reasonableness" of requiring mOdifications. The facts taken as a whole 2 show the County is acting in a reasonable manner, making programs

3 readily accessible and usable, with due regard to legitimate penological 4 interests.

5

The evidence shows it would not be reasonable to order

6 "mainstreaming" of disabled inmates. Legitimate penological interests 7 show this would not be appropriate. Programs, activities, and

8 facilities are readily accessible and usable without "mainstreaming."

9

3. Conclusion

10

The County is not yet in full ADA compliance, and it can

11 reasonably be expected to move toward full compliance. There has been

12 no showing the County will shirk that responsibility. The law requires

13 reasonable modifications, taking into account legitimate penological

14 interests. Plaintiffs have not shown violation of that standard. The

15 Court declines to declare an ADA or California Civil Code violation, or 16 order injunctive relief.

17

D. DISPOSITION

18

The evidence shows there is much room for improvement by the

19 County, particularly in areas of record-keeping and documentation,

20 inmate grievance procedure, inmate exercise, access to religious

21 services, and disabled access. However, improvement is always a

22 necessary goal, and the County and its Sheriff show every indication

23 they will perform that high duty. On the evidence presented, there is

24 no actionable federal or state violation.

25

The Court has considered all factors on the issue of a prevailing

26 party, and finds there is no prevailing party in this case. 27 II 28 II

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13

Case 8:01-cv-00981-ABC-MLG Document 574 Filed 04/27/2005 Page 14 of 14

1

Judgment shall be entered in favor of defendant County.

2
3 DATED: April ~, 2005
4

TAYLOR STATES DISTRICT JUDGE

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9

10

11

12

13

14

15

16

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19

20

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22

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 Case 8:01-cv-00981-ABC -MLG Document 603 Filed 05/23/08 Page 1 of 68 Page ID

#:454

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAY 23 2008

MOLLY C. DWYER, CLERK OF COURT U.S. COURT OF APPEALS

FRED PIERCE; TIMOTHY LEE CONN; FERMIN VALENZUELA; LAURIE D. ELLERS TON,
Plaintiffs - Appellants,
v.

G) No.
D.C.

N05o-.55C8V2-901~-0A 0981-~Tf}-6c.(

v'Yi

1..

Central District of California,

Santa Ana

MANDATE

RECEIVED CLERK, U.S. DISTRICT COURT

COUNTY OF ORANGE, a Governmental entity; MICHAEL S. CARONA individually,

MAY 2 3 2008
J CBYENTRAL DIST~Irz. OF CALIFDOEPRUNTIAY.

Defendants - Appellees.

RICHARD EUGENE SMITH; KENNETH WILSON; WILLIAM BROWN; SUSAN YOUNG, on behalf of themselves and all others similarly situated,
Plaintiffs,

No. 05-55845 D.C. Nos. CV-75-03075-GLT
CV-01-00981-GLT Central District of California, Los Angeles

and

MANDATE

JERRY E. STEWART; FRED PIERCE; TIMOTHY LEE CONN; FERMIN VALENZUELA; LAURIE D. ELLERS TON,

Plaintiffs - Appellants,

v.

BRAD GATES, individually and in his official capacity as Orange County Sheriff;

Case 8:01-cv-00981-ABC -MLG Document 603 Filed 05/23/08 Page 2 of 68 Page ID #:455
WILLIAM WALLACE, individually and in his official capacity as Chief Deputy of the Orange County Sheriffs Department and Jail Division; COUNTY OF ORANGE, a governmental entity; MICHAEL S. CARONA, individually,
Defendants -Appellees.
The judgment of this Court, entered 03/24/2008, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) ofthe Federal Rules of Appellate Procedure.
FOR THE COURT: Molly C. Dwyer Clerk of Court
By: Theresa Benitez Deputy Clerk

Case 8:01-cv-00981-ABC -MLG Document 603 Filed 05/23/08 Page 3 of 68 Page ID #:456

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FRED PmRcE; TIMOTHY LEE CoNN;
FERMIN VALENZUELA; LAURIE D.
ELLERSTON,
Plaintiffs-Appellants,
v. CoUNTY oF ORANGE, a Governmental entity; MICHAEL S. CARONA, individually,
Defendants-Appellees.

No. 05-55829
D.C. No. CV-01-00981-GLT

5563

Case 8:01-cv-00981-ABC -MLG Document 603 Filed 05/23/08 Page 4 of 68 Page ID #:457

5564

PIERCE v. COUNTY OF ORANGE

RICHARD EUGENE SMITH; KENNETH WILSON; WILLIAM BRowN; SusAN YouNG, on behalf of themselves and all others similarly situated,
Plaintiffs,
and
JERRY E. STEWART; FRED PIERCE; TIMOTHY LEE CONN; FERMIN VALENZUELA; LAURIE D. ELLERSTON,
Plaintiffs-Appellants,
v.
BRAD GATES, individually and in his official capacity as Orange County Sheriff; WILLIAM WALLACE, individually and in his official capacity as Chief Deputy of the Orange County Sheriffs Department and Jail Division; COUNTY OF ORANGE, a governmental entity; MICHAEL S. CARONA, individually,
Defendants-Appellees.

No. 05-55845
D.C. No. CV-75-03075-GLT
ORDER AMENDING OPINION AND AMENDED
OPINION

Appeal from the United States District Court for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted April12, 2007-Pasadena, California
Filed March 24, 2008 Amended May 15, 2008
Before: Betty B. Fletcher, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.

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PIERCE v. CoUNTY OF ORANGE
Opinion by Judge B. Fletcher

5565

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PIERCE v. COUNTY OF ORANGE

5569

COUNSEL
Virginia Keeny, Pasadena, California, and Richard P. Herman, Newport Beach, California, for the plaintiffs-appellants.
Steven C. Miller, Santa Ana, California, David D. Lawrence and Christina Sprenger, Orange, California, for the defendants-appellees.

ORDER
The opinion filed on March 24, 2008 and published at 519 F.3d 985 (9th Cir. 2008), is AMENDED as follows:
(1) At 519 F.3d at 1016, after the sentence ending, "with or without reasonable accommodations, meet the essential eligibility requirements to participate," insert the following additional two sentences:
Whether this "program access" standard may reasonably be met or whether any restriction on access is reasonably related to a legitimate government objective is necessarily fact-specific. We also emphasize that the district court should look at the offerings as a whole and in their entirety and thus the court is not

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PIERCE v. COUNTY OF ORANGE

required to ensure that each individual program or service offered at Theo Lacy and Musick is offered in complete parity with an offering at the Central Jail.

(2) At 519 F.3d at 1016, delete the sentence reading, "In particular, the district court should examine the extent to which the programs offered at Theo Lacy and Musick are capable of reassignment to the Central Jail without eliminating those programs at Thea Lacy or Musick." Replace the deleted sentence with the following three sentences:

In particular, the district court should examine the feasibility of offering similar programs at the Central Jail, and the extent to which the programs offered at Theo Lacy or Musick are capable of being offered at the Central Jail without eliminating those programs at Theo Lacy or Musick. There may be other appropriate remedies that provide disabled inmates access to programs and services, and the district court should consider those options as welL Our intention is not to suggest or cause the termination or diminution of programs or facilities other than the Central Jail, but to have the district court explore available options on a full evidentiary record.

Judges McKeown and Bybee have voted to deny the petition for rehearing en bane, and Judge Fletcher has so recommended. The petition for en bane rehearing has been circulated to the full court, and no judge has requested a vote on whether to rehear the matter en bane. Fed. R. App. P. 35(b). The petition for rehearing en bane is denied. No further petitions for rehearing or rehearing en bane will be accepted.

IT IS SO ORDERED.

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PIERCE v. CouNTY OF ORANGE
OPINION

5571

B. FLETCHER, Circuit Judge:

In 2001, plaintiffs-appellants Fred Pierce, Timothy Lee Conn, Fermin Valenzuela, and Laurie D. Ellerston-pretrial detainees in Orange County's jail facilities-initiated Pierce v. County of Orange, No. 05-55829 (D. Ct. No. 01-981), a class action suit against the County of Orange and Michael S. Carona, the county's sheriff and agent.1 Seeking relief under 42 U.S.C. § 1983 for violations of their Fourteenth Amendment due process rights, plaintiffs contend, in essence, that the Orange County jails are operated in an unconstitutional manner, depriving them of opportunities for exercise, unduly limiting their access to common areas, and impermissibly restricting their ability to practice religion. Plaintiffs further assert that they have been deprived of a number of the federal rights previously recognized in Stewart v. Gates, 450 F. Supp. 583 (C.D. Cal. 1978) ("Stewart")-a decision and resulting injunctive orders ("the Stewart orders" or "the Stewart injunction") that established standards for pretrial detention in Orange County jails. The plaintiffs seek relief for the same injuries under the California Constitution, as well as Title 15 of the California Code of Regulations (which sets minimum standards for county jails) in violation of§ 815.6 of the California Government Code, and breach of§ 54.1 of the California Civil Code. Finally, the plaintiffs in Pierce assert an equal protection claim under § 1983 based on the denial of equal treatment to disabled detainees, and they advance a separate claim for violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., alleging noncompliant jail facilities and denial of access to programs and services available to non-disabled detainees. On appeal, the

1Plaintiffs' claims against Carona were dismissed, leaving the County as the sole defendant-appellee involved in this consolidated appeal. In a separate order, we grant Carona's motion to dismiss the plaintiffs' appeal as untimely with respect to him.

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v. PIERCE COUNTY OF ORANGE

plaintiffs also challenge a number of the district court's pretrial procedural and evidentiary rulings.

After a six day trial, the district court found that the plaintiffs had failed to establish any constitutional injury giving rise to relief under § 1983. The district court went on to find that the fourteen Stewart orders at issue were no longer necessary, and ordered them all terminated pursuant to the Prison Litigation Reform Act ("PLRA"),2 18 U.S.C. § 3626(b)(3). The district court likewise rejected plaintiffs' equal protection and ADA claims, finding that although the County was not in "full ADA compliance, [ ] it can reasonably be expected to move toward full compliance."

Having conducted a thorough review of the extensive pretrial and trial record, we affirm in part and reverse in part. We affirm the district court's pre-trial and evidentiary rulings challenged by the plaintiffs; the district court did not abuse its discretion in its pre-trial management of the case or its decisions related to the admission of evidence. On the merits, we affirm the district court's termination of nearly all of the fourteen Stewart orders at issue. Two of those orders, however, which secure inmates housed in administrative segregation some minimal access to religious services and exercise, may not be terminated. The district court clearly erred in its finding that these two orders are unnecessary to correct a current and ongoing violation of a Federal right. We likewise conclude that, because of physical barriers that deny disabled inmates access to certain prison facilities (bathrooms, showers, exercise and other common areas), and because of disparate programs and services offered to disabled versus nondisabled inmates, the County is in violation of the ADA.

2Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 to 1321-77 (1996) (codified at 11 U.S.C. § 523 (2000); 18 U.S.C. §§ 3624, 3626 (2000); 28 U.S.C. §§ 1346, 1915, 1915A, 1932 (2000); 42 U.S.C. §§ 1997a-1997h (2000)).

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PIERCE v. CoUNTY OF ORANGE
I. PLAINTIFFS' ALLEGATIONS

5573

A. Violation of the Stewart orders governing prison conditions.

Stewart v. Gates was commenced in 1975 when a class of pretrial detainees challenged the constitutionality of various practices and conditions of confinement in the Orange County Central Jail in Santa Ana, California. 450 F. Supp. 583 (D.C. Cal. 1978). In 1978, the district court presiding over the case issued an injunction, establishing various standards for pretrial detention. Id. at 590-91 (holding that the court retained jurisdiction to modify the orders upon a showing of good cause). In 1991, the district court made clear that the order applied to all of the Orange County jails: Men's Central Jail, Women's Central Jail, Intake Release Center, James A. Musick Facility, and Theo Lacy Facility.

The Stewart orders-which have been modified in the years since the initial injunction was issued-address detainees' access to telephones, law books, reading materials, and interjail mail to jailhouse lawyers; provide for mattresses, beds, and blankets; establish mealtimes and sleeptimes; require seating while awaiting transport to and from court; and set population caps. The orders also address several issues pertaining specifically to inmates in administrative segregation: their access to religious services, day rooms, exercise, and visitors.3 The Stewart orders subject to challenge in this litigation are reproduced as Appendix A to this opinion. Specifically, plaintiffs in Pierce maintain that they have been sub-

3Administrative segregation applies to inmates "who are determined to be prone to: escape; assault staff or other inmates; disrupt the operations of the jail, or likely to need protection from other inmates." Cal. Code Regs. Tit. 15, § 1053. This encompasses the definitions of both Administrative Segregation and Protective Custody. According to the testimony of County witness Sergeant Rich Himmel, inmates who have "violent tendencies and have been deemed a threat to Department staff or other inmates," are classified as "Administrative Segregation."

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PIERCE v. CoUNTY OF ORANGE

jected to holding-cell conditions deemed unconstitutional in Stewart and have been denied the minimum mealtime held to be constitutionally required in Stewart. In addition, plaintiffs contend that inmates housed in administrative segregation are denied the minimum access to religious services, the day room, and exercise that Stewart held to be constitutionally required. Plaintiffs sought relief for the alleged violations pursuant to § 1983. Attacking the same conduct, plaintiffs also allege due process violations under the California Constitution, breach of mandatory duties under Title 15 of the California Code of Regulations (which sets minimum standards for county jails) in violation of§ 815.6 of the California Government Code, and breach of§ 54.1 of the California Civil Code.

The County, meanwhile, sought termination of the Stewart orders in their entirety pursuant to 18 U.S.C. § 3626(b), a section of the PLRA that allows a court to terminate prospective injunctive relief governing prison conditions on a showing that the injunction is no longer needed to correct a current and ongoing violation of a Federal right.

B. Equal protection and ADA violations.

Plaintiffs in Pierce assert an equal protection claim under § 1983 based on the denial of equal treatment to disabled detainees, and they advance a separate claim for violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. Plaintiffs maintain that the County has violated the ADA by failing to address numerous structural barriers, such as inaccessible bathroom facilities,4 and failing to provide adequate access to various programs offered by the County's jails.

One of the plaintiff inmates, Timothy Conn, claimed to have suffered physical injuries, as well as mental and emo-

4The particular architectural features at issue are discussed in greater detail infra Section V.D.3.a.

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5575

tiona! harms, because of the County's failure to accommodate his disability. Conn is wheelchair-bound and alleged that he suffered recurrent bladder infections because the County failed to provide him with an adequate supply of catheters. Conn also claimed to have developed bed sores that were exacerbated when he was forced to sit on a holding cell bench, and eventually required surgery. The district court dismissed Conn's claims on summary judgment prior to trial on the grounds that they were "de minimis" and thus not actionable pursuant to the PLRA. See 42 U.S.C. § 1997e(e).

II. PROCEDURAL HISTORY

A. Class certification.

In August 2003, plaintiffs filed a motion for class certification under Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3)5 of a "main class" of pretrial detainees who had been held in Orange County jails after October 21, 2001 and had experienced violations of certain rights enumerated in Stewart, as well as certification of a "sub-class" of disabled detainees who had been denied rights under the ADA. Plaintiffs' motion was granted on October 15, 2003.

In January 2004, Orange County filed a motion to decertify

5According to Federal Rule of Civil Procedure 23(b)(2), a class action may be maintained when the prerequisites under subsection (a) of the rule are satisfied (i.e., numerosity, commonality, typicality, and representativeness), and "the party opposing the class has acted or refused to act on grounds that generally apply to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).
If subsection (a) is satisfied, Federal Rule of Civil Procedure 23(b)(3) provides that a class action may be maintained where "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

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PIERCE v. COUNTY OF ORANGE

the class. The district court ruled on the motion on March 1, 2004, holding that certification as an "equitable relief class" remained proper under Rule 23(b)(2), but that certification as a "damages class" under Rule 23(b)(3) was inappropriate. Specifically, the court rejected plaintiffs' proposed proof of "aggregated damages" by relying on "statistical sampling to determine the proper amount of damages." Plaintiffs' counsel subsequently waived nominal damages on behalf of the named plaintiffs. It was agreed at a status conference on March 5, 2004, that the case would proceed to a bench trial as an equitable relief class without claims for damages.

In November 2004, the district court clarified the scope of class membership based on ADA violations. The court ruled that "ADA disability evidence [would] be limited to conditions applicable to Plaintiff Conn [a wheelchair-bound named plaintiff] and persons having a disability similar to his."6

B. Summary judgment on claims for mental and emotional injury.

The district court's March 1, 2004 decertification order separately granted summary judgment to Orange County on plaintiffs' claims for mental and emotional injuries. The district court concluded that the PLRA, 42 U.S.C. § 1997e(e), bars plaintiffs' recovery for mental or emotional injury unless there is a showing of non-de minimis physical injury. The court found that plaintiffs' claims of relevant physical injuries were all de minimis, except for one incident involving plaintiff Conn not at issue here.7

6Conn is described in the record as a paraplegic or incomplete quadriplegic, meaning that he has no mobility in his lower body and some, albeit limited, use of his upper body. The parties agree that the subclass consists of mobility- and dexterity-impaired inmates.
7The court held that Conn could recover for mental and emotional damages arising directly from this incident-a van accident. This one claim was bifurcated and ultimately settled in 2005.

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5577

C. Consolidation of Pierce with review of the Stewart orders.

On March 11, 2004, the district court sua sponte ordered that Pierce, the plaintiffs' affirmative suit, be consolidated with Stewart, over which the same district court had jurisdiction. According to the district court, the issue of the continuing viability of the Stewart injunction had come up indirectly "in various different ways" in the Pierce litigation, and the court concluded that "rather than beat around the bush, [the court] need[ed] to just deal with these issues direct[ly]." The court explained that it would "receive evidence whether existing Stewart orders should be revised, updated, modified, expanded, and/or vacated" at the trial already scheduled in Pierce. The parties did not object to the consolidation, and proceeded to brief the court on the relevant developments in the law in the years since Stewart was first decided.

D. Summary judgment on equal protection claims.

On November 2, 2004, the district court granted Orange County's motion for summary judgment on plaintiffs' equal protection claim in Pierce. The court reasoned that disabled detainees were required to show that they were treated differently than other similarly situated prisoners, and had not satisfied the summary judgment standard for doing so. In the same order, the district court also held that plaintiffs' requests in Pierce for injunctive relief for non-ADA-related claims (to redress issues of mealtimes; holding cell conditions; and access to religious services, the day room, and exercise) were moot, in light of the then-existing injunctions in Stewart. In short, the court ruled that the question of injunctive relief for the non-ADA claims in Pierce would be addressed under the consolidated Stewart caption. The court held that declaratory relief remained available.

E. Evidentiary and trial management rulings.

At a pretrial conference in early November 2004, the district court announced that each side would be allowed three

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PIERCE v. CoUNTY OF ORANGE

days to present its case. Plaintiffs filed a written objection to the time limit on due process grounds. The objection was overruled, and a six-day bench trial was held, with each side receiving equal time. At trial, the district court adhered to its prior order on time limitations, advising counsel when time was running short.

The district court also ruled against the plaintiffs and in the County's favor on a number of evidentiary issues. First, the district court barred the admission of a survey of inmates regarding jail conditions conducted by plaintiffs' expert, Dr. Nadereh Pourat ("Pourat Survey"). Second, the district court ruled that plaintiffs could not submit deposition testimony of class members who were in prisons more than 100 miles from the courthouse, on the grounds that such witnesses were not "unavailable." Third, the district court allowed the County to introduce statements by absent class members as admissions by party-opponents.

* * *
Trial was held during the first week of December, 2004. On April 27, 2005, the district court issued two final orders-an "Order Vacating Earlier Orders and Dismissing Case in Stewart" ("Stewart Final Order"), and "Findings of Fact and Conclusions of Law in Pierce" ("Pierce Final Order"). The Stewart Final Order vacated all of the injunctive orders in Stewart after finding that each was either "inappropriate" or "unnecessary." The Pierce Final Order also rejected in their entirety plaintiffs' § 1983 claims based on prison conditions and practices, either on the ground that the County had not violated a Federal right, or that there was no evidence of a policy or custom of violations. The court also held that the County was not liable for violations of the ADA.

III. JURISDICTION

The district court had jurisdiction over plaintiffs' claims under 28 U.S.C. § 1331 and § 1343. 28 U.S.C. § 1367 con-

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ferred jurisdiction over state claims. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1291.

IV. TRIAL MANAGEMENT AND EviDENTIARY RuLINGS

Plaintiffs appeal a number of the district court's pre-trial rulings related to case management and the admission of evidence. We affirm each of the district court's rulings on these Issues.

A. The district court did not abuse its discretion by limiting the trial to six days or by de-certifying the "damages class."

Plaintiffs argue that their due process rights were violated when they were given only three days to present their consolidated case in Pierce and Stewart. Plaintiffs in Pierce also contend that the court erred when it decertified their so-called "damages class." We review both decisions for abuse of discretion. See Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (challenges to trial court management and denial of class certification reviewed for abuse of discretion).

[1] First, although plaintiffs assert generally that they did not have adequate time to address the factual issues in Pierce and Stewart, we conclude that they have not shown that "there was harm incurred as a result" of the time limit. Monotype Corp. v. Int'l Typeface Corp., 43 F.3d 443, 451 (9th Cir. 1994). Plaintiffs objected to the time limitation but did not specify what evidence they would have presented if more time had been allotted, nor did they request additional time. See id. (rejecting the plaintiff's argument after noting similar circumstances). Although the case was factually complex the district court did not abuse its discretion by limiting time for trial to three days per side.

[2] Second, the district court did not abuse its discretion in decertifying the "damages class." The court reasoned that

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Rule 23(b)(3) would not offer a superior method for fair and efficient adjudication in light of expected difficulties identifying class members and determining appropriate damages. It explained: "Class membership here would be highly fluid and indefinite. Issues of damages proof would be highly individualized and poorly addressed through a sampling. There are too many damages variables."

Plaintiffs counter that the district court ignored viable ways of assessing the damages for the Pierce class (estimated to be some 180,000 pretrial detainees), and-as a result-harbored undue concerns about managing the class. Plaintiffs suggest that damages could be calculated by relying on records maintained by the County. Yet, they concede that such records are incomplete, and-in fact-at various points in the trial, they objected to reliance on the County's records on the ground that they were inconsistent or unreliable. Plaintiffs propose, alternatively, that statistical sampling could have been used to ascertain the aggregate amount of damages suffered by the class. The district court acknowledged that statistical sampling may be an appropriate tool for computing damages in some cases, but rejected that approach here. We conclude that the district court's decision was not an abuse of discretion given the facts of this case-in particular, the size of the class and the array of variables related to causation and damages. See Fed. R. Civ. P. 23(b)(3)(D).8

B. The district court's exclusion of plaintiffs' proposed evidence was either not an abuse of discretion, or it did not prejudice plaintiffs.

Plaintiffs contend that three of the court's evidentiary rul-

8Plaintiffs' briefs suggest that they seek only nominal damages on behalf of the class and therefore do not present issues of individual damages. The remainder of plaintiffs' argument belies this assertion, however, as the "aggregated damages" they describe are compensatory-not nominal.

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ings are erroneous. First, plaintiffs challenge the district court's decision to bar admission of the survey conducted by plaintiffs' expert, Dr. Pourat. Second, plaintiffs charge that the district court abused its discretion in ruling that plaintiffs could not submit deposition testimony of class members who were in prisons more than 100 miles from the courthouse. Third, plaintiffs contend that the district court committed reversible error when it allowed the County to introduce statements by absent class members.

We review de novo the district court's construction or interpretation of the Federal Rules of Evidence, including whether particular evidence falls within the scope of a given rule. United States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006). The district court's ultimate evidentiary ruling to admit or exclude the evidence is, however, reviewed for abuse of discretion. See id.; City of Long Beach v. Standard Oil Co., 46 F.3d 929, 936 (9th Cir. 1995). A district court's decision will constitute an abuse of discretion if it makes an error of law or a clear error of fact, but "[r]eversal will not be granted unless prejudice is shown." City of Long Beach, 46 F.3d at 936. If the trial court has erred, we must begin with a presumption of prejudice, although the "presumption can be rebutted by a showing that it is more probable than not that the jury would have reached the same verdict even if the evidence had been admitted." Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005).

1. Plaintiffs' survey evidence.

Plaintiffs hired Pourat, a senior research scientist at UCLA, to conduct a survey of County inmates. Pourat designed a survey questionnaire and trained law students and legal assistants to administer the questionnaire to detainees. Ultimately, 440 detainees were surveyed about their experiences in the County jails, providing the basis for Pourat's analysis. Without explaining its rationale, the district court refused to admit the study as direct evidence, but allowed plaintiffs' two expert

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witnesses-Dr. Patrick McManimon and Peter Robinson-to rely on the study in their testimony.

On appeal, the County defends the exclusion of the Pourat survey on the grounds that it did not meet the standards of Fed. R. Evid. 807, the residual exception to the hearsay rule that we have in the past relied on to admit survey evidence, Prudential Ins. Co. v. Gibraltar Fin. Corp., 694 F.2d 1150, 1156 (9th Cir. 1983), and because it contends the survey evidence was not "trustworthy." Schering Corp. v Pfizer, Inc., 189 F.3d 218, 231 (2d Cir. 1999) (noting that trustworthiness is a requirement for the admission of survey evidence).

[3] We do not need to consider the County's justification of the district court's exclusion of this evidence, however, because we are persuaded that the exclusion of the survey as direct evidence did not prejudice plaintiffs in this case. Plaintiffs' experts were permitted to rely upon the Pourat Survey in formulating their opinions, and to share the data upon which they relied. McManimon described how the survey was conducted and noted its results-for example, that 35% of the detainees surveyed reported that they were given less than fifteen minutes per meal on at least one occasion, and that 67% of that group (in other words, approximately 23% of the surveyed population) reported that this occurred on at least a weekly basis.

2. Deposition testimony of class members.

[4] Relying on Federal Rule of Evidence 804(a)(5) regarding the unavailability of witnesses, plaintiffs assert that the district court abused its discretion when it ruled that they could not submit deposition testimony of class members who were incarcerated in prisons more than one hundred miles from the courthouse. "Unavailability" may be found when the declarant "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance ... by process or other reasonable means." Fed. R.

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Evid. 804(a)(5). The district court judge refused to admit the proposed testimony under Rule 804 because he concluded that the plaintiffs had not made an adequate attempt to procure the witnesses' attendance. He noted that the parties had been warned about the "necessary administrative steps" to subpoena the prisoners, and found that plaintiffs had waited too long to seek the subpoenas. On appeal, plaintiffs do not contest this factual finding, and we therefore conclude that the district court judge's detern1ination was not an abuse of discretion.

3. Statements ofabsent class members as "admissions of a party-opponent. "

Plaintiffs contend that the district court erred by admitting the statements of absent-also referred to as unnamed or nonnamed-class members as "admissions of a partyopponent" under Federal Rule of Evidence 80l(d)(2)(A). Following the court's ruling, the County introduced statements by twenty-four absent members of the class of pretrial detainees. Plaintiffs were then allowed to counter-designate testimony by those detainees under Federal Rule of Evidence 106, the general rule of completeness.

For an absent member of a Rule 23(b)(2) class to be treated as a party-and, hence, as a party representative of the class as a whole-for Rule 801 purposes there must be some mechanism to ensure that he or she will represent the interests of the class. See Fed. R. Civ. P. 23(a)(4) (requiring that "the representative parties will fairly and adequately protect the interests of the class"); In re Mega Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (holding, in relevant part, that the named plaintiffs must "prosecute the action vigorously on behalf of the class" to satisfy the requirement of adequate representation); Restatement (Second) of Judgments § 41(1)(e), cmt. a (1980) (describing the "party" in a class action as one who must "protect[] the interests" of the unnamed class members).

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[5) On July 1, 2004, plaintiffs disclosed the identities of forty-five inmates they expected to have testify regarding prison conditions. At least eighteen of the twenty-four statements that the County sought to introduce under Rule 80l(d)(2) were taken from detainees on that list. We are satisfied that, on the facts of this case, reliance on statements by detainees who had been disclosed by plaintiffs' counsel as potential witnesses adequately protected the class from the risk of having the class's interests undermined by unrepresentative class members. The district court did not abuse its discretion by admitting those statements.9

The remaining statements admitted by the court, and now challenged by the plaintiffs, were not disclosed to plaintiffs. We need not decide whether the statements of these detainees should have been excluded under Rule 801, as we conclude,
a- upon review of the record as whole (and in particular the
other eighteen admitted statements), that the admission of those five statements was not prejudicial. See Sablan v. Dep 't ofFin. of Com. of N Mariana Islands, 856 F.2d 1317, 1323 (9th Cir. 1988).

9Although we conclude that the district court did not abuse it discretion, in so doing we do not adopt a blanket rule of admissibility for the statements of absent class members pursuant to Fed. R. Evid. 801(d)(2)(A). Absent class members are considered "parties for some purposes and not for others." Devlin v. Scardelletti, 536 U.S. 1, 10 (2002). Here, we are satisfied that there were adequate strictures in place-conditioning the County's ability to obtain absent class member statements on notice to plaintiffs' counsel, disclosure of the nature of the suit, and plaintiffs' counsel's presence when the statements were taken-to ensure that the requirements of Fed. R. Civ. P. 801 were met, while still respecting the limitations on absent class member discovery inherent in Fed. R. Civ. P. 23.

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C. The district court did not abuse its discretion by terminating the Stewart orders absent an explicit motion by the Pierce defendants.

Plaintiffs contend that the district court did not have the authority to vacate the Stewart injunction because the defendant failed to make the necessary motion. Plaintiffs further argue that they were not given adequate notice of the district court's intent to consider vacating all of the injunctive orders in effect under Stewart (including orders pertaining to issues that had not been raised in Pierce), and that this was a denial of due process. A district court generally has "broad" discretion to consolidate actions; we review its decision on consolidation under an abuse of discretion standard. Investor's Research Co. v. US. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989) ("broad discretion" to consolidate actions pending in the same district); Washington v. Daley, 173 F.3d 1158, 1169 n.l3 (9th Cir. 1999) (court's decision on consolidation reviewed for abuse of discretion).

The PLRA "establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions." Miller v. French, 530 U.S. 327, 331 (2000). The PLRA both limits the prospective relief a court may order in such suits, and authorizes the termination of relief that does not fall within those limits. 18 U.S.C. § 3626(a)-(b). Section 3626(b)(I )(A) of Title 18 provides:

In any civil action with respect to prison conditions in which prospective relief is ordered, such relief shall be terminable upon the motion of any party or intervener ... (iii) in the case of an order issued on or before the date of enactment of the Prison Litigation Reform Act, 2 years after such date of enactment.

Id § 3626(b)(1)(A). The Stewart orders long pre-dated the PLRA's enactment, and more than two years had passed after

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the enactment when this suit commenced. As such, the relief was "terminable upon the motion of any party or intervener," provided that the orders were not found to fall within the limitation set out in 18 U.S.C. § 3626(b)(3).10 More generally, under Federal Rule of Civil Procedure 60(b), a district court may "take cognizance of changed circumstances and relieve a party from a continuing decree." Gilmore v. California, 220 F.3d 987, 1007 (9th Cir. 2000). The text of Rule 60(b) provides that this may happen "[o]n motion and just terms." Fed. R. Civ. P. 60(b). In March 2004, approximately eight months before trial, the district court consolidated Stewart and Pierce, citing the fact that questions of the continuing legitimacy of the injunctive orders in Stewart had been raised in various motions in Pierce. See Fed. R. Civ. P. 42 (giving the district court authority to consolidate matters involving common questions oflaw or fact).11 The court provided the parties with notice that it would review the status of the existing Stewart orders and ordered related briefing. The plaintiffs did not object, and filed a brief addressing the legal bases for all of the Stewart orders.

Prior to the district court's decision to vacate the Stewart orders, the County made two written requests for termination or modification-first, in its pre-trial brief, and then in its closing brief after trial. While only the latter was styled a motion, the former formally requested that "the Stewart orders either be vacated or modified."

10As discussed further infra, 18 U.S.C. § 3626(b)(3) states:
[p]respective relief shall not terminate 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 that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. 11 Plaintiffs acknowledged at a March 5, 2004 status conference that the County had raised questions about the enforceability of the orders in Stewart.

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[6] Plaintiffs have not challenged the district court's authority to consolidate Pierce and Stewart or, as the monitoring court, to review the status of the Stewart orders. Nor do the plaintiffs suggest any way in which, if accorded earlier notice, they would have handled matters differently. Plaintiffs were provided with adequate notice, and so we hold that the district court had authority to review and, if otherwise appropriate under § 3626, to modify or to terminate the Stewart orders. See 18 U.S.C. § 3626(b); Miller, 530 U.S. at 353 (Breyer, J., dissenting) (observing that the district court may modify or terminate relie£).12

V. MERITS RULINGS

We tum next to the district court's merits rulings challenged on appeal. First, we consider order by order whether termination of the prospective relief ordered in Stewart was proper. Second, we consider the Pierce plaintiffs appeal of the district court's conclusion that the mealtimes; holding cell conditions; and access to religious services, the day room, and exercise provided by the County did not violate plaintiffs' rights under 42 U.S.C. § 1983.13 Third, we address plaintiffs'

12In its final disposition the district court, in some instances, referred to having "vacate[d]" the Stewart orders. In other instances, tracking the language of the PLRA more closely, it said that the orders were "unnecessary" and "terminable." See§ 3626(b) (orders shall not "terminate" absent findings that prospective relief remains "necessary"). We read the district court's Stewart Final Order as merely terminating prospective relief, not vacating the Stewart judgment in its entirety. See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir. 1997) (PLRA only provides for termination of prospective relief, not vacatur of judgments).
13The district court considered only whether plaintiffs' Rule 23(b)(2) equitable relief class was entitled to declaratory relief for these claims. The court ruled that plaintiffs' request for injunctive relief under § 1983 was moot. The district court repeatedly acknowledged its authority under § 3626 to modify (and thereby expand or diminish) the existing Stewart injunction as it pertained to the same topics-mealtimes; holding cell conditions; and access to religious services, the day room, and exercise-as required by the evidence presented. In light of this, we agree that the court's dismissal of plaintiffs' additional and separate request for injunctive relief in the same Orange County jails with regard to the same conditions was not in error.

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challenge to the district court's finding of no actionable violations under§ 1983 or state law. Finally, we review the district court's findings with respect to the § 1983 claims of physically disabled detainees raised under the ADA and the equal protection clause.

A. Standards for termination of prospective relief under the PLRA.

[7] Under the PLRA, the Stewart injunctive orders should not have been terminated if, on the record presented, they satisfied the requirements of 18 U.S.C. § 3626(b)(3). The Act provides that relief shall not terminate if it "remains necessary to correct a current and ongoing violation of [a] 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).14 Review of an injunction pursuant to the PLRA's standards is thus sometimes referred to as a "neednarrowness-intrusiveness" inquiry. Handberry v. Thompson, 436 F.3d 52, 64 (2d Cir. 2006).

[8] This standard requires an assessment of the circumstances-both legal and factual-at the time termination is sought. See Gilmore, 220 F.3d at 1010 (citing Benjamin v. Jacobsen, 172 F.3d 144, 166 (2d Cir. 1999)). As state pretrial detainees, plaintiffs are protected by the Fourteenth Amendment's Due Process Clause, as well as specific substantive guarantees of the federal Constitution, such as the First and Eighth Amendments. Under the Due Process Clause, detainees have a right against jail conditions or restrictions

14The district court's final order in Stewart suggests that the fact that a particular right has been well-established may militate against a finding that prospective relief remains necessary and appropriate. This view is unsupported by § 3626(b)(3). The question, in such a case, is simply whether there is a current and ongoing violation of the right, and whether the relief is properly tailored to correct the violation as required by the statute.

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that "amount to punishment." Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). This standard differs significantly from the standard relevant to convicted prisoners, who may be subject to punishment so long as it does not violate the Eighth Amendment's bar against cruel and unusual punishment. !d. at 535 n.16.

Absent evidence of express punitive intent, it may be possible to infer a given restriction's punitive status "from the nature of the restriction." Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002); see Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004) (noting that "to constitute punishment, the harm or disability caused by the government's action must either significantly exceed, or be independent of, the inherent discomforts of confinement"). As the Supreme Court has explained, the determination of whether a particular condition or restriction imposes punishment in the constitutional sense will generally tum on whether an alternate purpose is reasonably assignable:

if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

Bell, 441 U.S. at 539 (alterations in original) (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)); see id. at 539 n.21 (noting that a de minimis level of imposition is permissible). Legitimate nonpunitive governmental objectives include "maintaining security and order" and "operating the [detention facility] in a manageable fashion." !d. at 540 n.23.

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The Due Process Clause also protects detainees' statecreated liberty interests. See Kentucky Dep 't of Carr. v. Thompson, 490 U.S. 454, 462 (1989). For a state statute or regulation to create a liberty interest protected by the Constitution, two things must be true:

[f]irst, the law must set forth " 'substantive predicates' to govern official decision making" and, second, it must contain "explicitly mandatory language," i.e., a specific directive to the decisionmaker that mandates a particular outcome if the substantive predicates have been met.

Valdez, 302 F.3d at 1044 (quoting Thompson, 490 U.S. at 462-63).15

Finally, pretrial detainees retain other specific constitutional guarantees. See Bell, 441 U.S. at 545. As with the Fourteenth Amendment's substantive due process analysis, however, the detainees' rights may be subject to restrictions and limitations based on legitimate government concerns: "when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice inust be evaluated in the light of the central objective of prison administration, safeguarding institutional security." Id at 547.

Assuming the prospective relief at issue is found to be necessary to correct a current and ongoing constitutional violation, we must consider whether § 3626(b)(3)'s neednarrowness-intrusiveness criteria are met. A determination of whether the relief goes "no further than necessary to correct the violation" and is "narrowly drawn and the least intrusive means to correct the violation" will obviously rest upon case-

15This test-used in Thompson, 490 U.S. at 462-63, and Hewitt v. Helms, 459 U.S. 460,471-72 (1983}-remains the proper standard in the context of pretrial detainees. Valdez, 302 F.3d at 1044 n.3.

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specific factors-namely, the extent of the current and ongoing constitutional violations. See, e.g., Morales Feliciano v. Rullan, 378 F.3d 42, 54-55 (1st Cir. 2004); see also Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir. 2001) ("Armstrong 'OJ") (noting, for example, that a "few isolated violations affecting a narrow range of plaintiffs" would not provide a basis for system-wide relief).

The parties operated under the agreement that the burden of proof to terminate the Stewart orders pursuant to § 3626 was on the County. We proceed under this assumption, without so holding, because the assignment of the burden of proof is not dispositive of any issue raised by the parties.16

B. The district court properly terminated eleven of the fourteen Stewart Orders under review.

For nine of the Stewart orders, the County's showing of compliance was not contested. We briefly discuss these in subsection V.B.l, below, and affirm the district court's termination ofthese orders. Gilmore, 220 F.3d at 1008. We address two additional Stewart orders (related to seating in holding cells and adequate meal times) for which the parties did present conflicting evidence, in subsection V.B.2. Because our review of these two orders overlaps considerably with our review of the claims brought by the plaintiffs in Pierce under 42 U.S.C. § 1983 and California state law, we address plaintiffs' claims as part of our review of the termination of the orders themselves.

16We note that there may be some tension in our case law in this area. Compare Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001) with Gilmore, 220 F.3d at 1008.

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1. Termination of Stewart Orders related to reading materials, mattresses and beds, law books, population caps, sleep, blankets, telephone access, and communication with jailhouse lawyers.

[9] The district court found that the Stewart order regarding the availability of reading materials by mail, as well as the order regarding the availability of mattresses and beds, properly sought to enforce detainees' federal rights. The district court also acknowledged that the Stewart order regarding lawbook access merely required that the County's policy be applied to each of its jail facilities. The district court went on to conclude, however, that these orders were not needed to correct current and ongoing violations. We agree. The County presented evidence tending to show its compliance with these Stewart orders,17 and the plaintiffs did not present any contrary evidence related to these orders to contest the County's showing.

The district court also acknowledged that population caps may be an appropriate remedy when overcrowding rises to the level of constitutional violation, but found no ongoing violation here. On the record presented we agree.

Finally, the district court terminated the Stewart orders pertaining to sleeptimes, blanket use, telephone access, communications with "jailhouse lawyers," and visitation for inmates in administrative segregation. In light of the County's presentation of evidence and the plaintiffs' failure to contest the County's showing, we affirm the district court on the ground

17Testimony and documentary evidence showed that deputies and other officials or employees of the Sheriffs department received substantial training regarding the Stewart orders, and that department policies had been modified to reflect the requirements set out in Stewart. In addition, laminated reference cards were distributed to jail employees, to be carried in their uniforms, as reminders of the Stewart orders. Sheriffs department employees testified, with specificity, to their roles in ensuring compliance with the Stewart orders.

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that these orders are not necessary to correct current and ongoing violations. We therefore do not reach the question of whether these orders extend no further than necessary and are narrowly drawn and the least intrusive means to correct the violation. See § 3626(b)(3).

2. Termination ofStewart Orders related to seating and meal times.

a. Seating/holding cells.

[10] The Stewart order requires that inmates be provided with seating while detained in holding cells, or elsewhere, awaiting transport to or from court. We affirm the district court's termination of the order, as we conclude that the evidence presented does not suggest that the continuation of prospective relief was necessary to correct a current and ongoing constitutional violation.

The record shows that the County actively seeks to avoid overcrowding of holding cells; maximum capacities are posted in the cells, and deputies monitor the cells to ensure compliance. Deputies testified that, on occasion, overcrowding of a particular holding cell may be necessary for logistical and security reasons, but-as the district court found-these instances occur infrequently. Moreover, the record here shows that the hardship associated with the County's occasional overcrowding of the holding cells does not rise to the level of constitutional violation, given the relatively short periods (i.e., matters of hours) detainees spend in the holding cells. There is no evidence of unsanitary conditions or other concerns that would elevate such overcrowding to a constitutional violation. See, e.g., Bell, 441 U.S. at 542; Lareau v. Manson, 651 F.2d 96, 103 (2d Cir. 1981). For these reasons, we also affirm the district court's conclusion that plaintiffs failed to establish that the treatment of detainees in the County's holding cells constituted a violation of 42 U.S.C. § 1983.

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b. Time for meals.

The Stewart order requires that inmates be given "not less than fifteen minutes within which to complete each meal." The district court terminated this Stewart order and rejected plaintiffs' § 1983 claim that they had been denied adequate meal times in violation of a federally protected right.

[11] Turning to plaintiffs' § 1983 claim, we conclude that they have not established that the mealtimes allowed by the County amounted to punishment in the constitutional sense and thus a deprivation of substantive due process. The only potential ground for constitutional relief suggested by the record would be a liberty interest created by a state regulation, in this case Cal. Code. Regs. Tit. 15, § 1240. See Kentucky Dep't ofCorr. v Thompson, 490 U.S. 454, 462 (1989). However, the plaintiffs have not appealed the district court's pretrial ruling that this was not adequately pled as a basis for § 1983 relief.

Finally, plaintiffs brought a state law claim for relief based on California Code of Regulations § 1240. Even assuming, without deciding, that § 1240 is sufficient to create an actionable duty under California law, see Cal. Govt. Code § 815.6; Haggis v. City ofLos Angeles, 22 Cal. 4th 490, 498-99 (2000) (to be actionable under § 815.6, the enactment at issue must: (1) be obligatory, rather than discretionary or permissive; (2) must require that a particular action be taken or not taken, and (3) require that the mandatory duty be designed to prevent the kind of injury suffered by the plaintiff), in light of the policies and procedures implemented by the County to facilitate compliance with the Stewart order, we affirm the district court's conclusion that the County exercised reasonable diligence.18

18We offer no view whether the parties may pursue state remedies in state court for violations of the state constitution, statutes or mandatory regulations.

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C. The district court erred by terminating two Stewart orders mandating minimal access to religious services and exercise for inmates housed in administrative segregation.

Three of the remaining fourteen Stewart orders under review concern conditions for inmates in administrative segregation. As mentioned above, see n.3, supra, administrative segregation is a classification for inmates with violent tendencies that have been deemed a threat to the jail's staff or to other inmates. The Stewart orders provide that inmates classified as administrative segregation must nonetheless be provided with limited access to religious services, limited access to exercise, and limited access to use of a day room. The district court terminated all three Stewart orders ensuring such access, and likewise found that plaintiffs had not proved any actionable § 1983 claim based on a deprivation of those rights. As explained below, we conclude that the district court's finding that inmates in administrative segregation were only "sporadically" denied access to religious services is clearly erroneous. The denials were systematic, and sufficiently so to constitute a violation of§ 1983. Likewise, the record also demonstrates that detainees in administrative segregation were not provided with even the two hours per week of exercise required under the Stewart order. We are satisfied that providing inmates only ninety minutes of exercise per week-less than thirteen minutes per day-does not comport with constitutional standards, and that such a severe curtailment of the detainees' ability to exercise evidences its punitive intent and necessitates reinstatement of the Stewart order.

1. Termination of Stewart order related to religious worship.

The Stewart order requires that inmates in administrative segregation be allowed one of the following opportunities for religious worship: attending regularly scheduled religious services once a week, making short individual visits to the

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chapel once each week, or meeting with a bona fide religious adviser upon request of the inmate or adviser. The order also provides for the curtailment or elimination of the right if, in the course of exercising it, the inmate is disruptive or violent.

[12] Under the Constitution, "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments." Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (addressing the rights of convicted prisoners). However, as with other First Amendment rights in the inmate context, detainees' rights may be limited or retracted if required to "maintain[] institutional security and preserv[e] internal order and discipline." Bell, 441 U.S. at 549; see, e.g., Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Restrictions on access to "religious opportunities"-whether group services, chapel visits, or meetings with religious advisers-must be found reasonable in light of four factors: (1) whether there is a "valid, rational connection" between the regulation and a legitimate government interest put forward to justify it; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) whether accommodation of the asserted constitutional right would have a significant impact on guards and other inmates; and (4) whether ready alternatives are absent (bearing on the reasonableness of the regulation). Turner v. Safley, 482 U.S. 78, 89-90 (1987); see also Beard v. Banks, 126 S. Ct. 2572 (2006); Mauro v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir. 1999) (en bane). Further, because we are dealing with pretrial detainees, to satisfy substantive due process requirements the restriction or regulation cannot be intended to serve a punitive interest. Bell, 441 U.S. at 535.19

19The Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq., requires the government to meet a higher burden of proof than the rational basis standard of Turner. See Green v. Solano County Jail, 513 F.3d 982 (9th Cir. 2008). Because the plaintiffs have not brought a RLUIPA claim, we apply only the constitutional analysis and the Turner standard.

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[13] As the district court observed, under this standard some courts have allowed restrictions on worship for security purposes. Perdraza v. Meyer, 919 F.2d 317, 320 (5th Cir. 1990) (restriction on type of service inmate may attend permissible where inmate still provided with reasonable opportunities to worship). Denying inmates access to all outlets for religious worship, however, offers no "alternative means of exercising the right," as called for by the second prong of Turner. C.f 0 'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (concluding that prison rules which prohibited Muslim inmates from engaging in Friday afternoon prayer services were reasonable, and relying in part on the fact that the inmates were allowed to participate in other weekly religious services and to have "free access" to the prison's imam).

[14] Accordingly, a detainee's placement in administrative segregation does not, standing alone, justify a complete denial of opportunities to practice religion. See Alston v. DeBruyn, 13 F.3d 1036, 1040 (7th Cir. 1994) (holding that it was improper for the district court to assume that limits on an inmate's access to religious services were justified based on the inmate's placement in administrative segregation); Mawhinney v. Henderson, 542 F.2d 1, 3 (2d Cir. 1976) (holding that inmates in "punitive segregation and keeplock" could not be denied participation in chapel services simply on the basis of their classification; individualized determinations of the "necessity of their exclusion" were required).

The district court's final order in Stewart states that there was "no indication of punishment" or "any ongoing violation" of detainees' rights with respect to access to religious services. Although the court's final order in Pierce acknowledges evidence of at least "[o]ccasional instances of impediments to participation," the court characterized these denials as merely "sporadic." But the record evidences consistent denial of access to the chapel (whether for group services or individual visits) and to religious advisers to those in administrative segregation.

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Both of the plaintiffs' witnesses that were housed in administrative segregation, Fermin Valenzuela and Keith Hawkins, testified that they were routinely denied access to any kind of religious worship. Valenzuela testified that none of his requests to meet with his chaplain were granted, and testified that the verbal explanation he received for the denial was that inmates "in administrative segregation ... don't have it coming." Likewise, Hawkins testified that when he was classified in administrative segregation between March 2003 and June 2003, he was "never" allowed to attend chapel. Even the County's own witness, Deputy Brian Nissen, testified that he had "never seen one of our Ad Seg inmates" in chapel.

The County's evidence was not to the contrary. Although the County argues on appeal that testimony from three detainee plaintiffs (detainees Conn, Palmitessa and Robledo) supported its contention that it provided "regular access to religious services and clergy at every opportunity," the record does not bear out the County's characterization. Conn-who was not an administrative segregation inmate-merely testified that he was permitted to attend chapel and that no Deputy ever told him that administrative segregation inmates had limited access to religious services. We are not persuaded that an inmate's failure to obtain a voluntary admission of noncompliance from his jailer somehow constitutes proof of compliance. Similarly, Palmitessa-also not an administrative segregation detainee-testified that he went to chapel whenever it was offered, but that it had not, in fact, been offered to him for several weeks. Finally, Robledo-another nonadministrative segregation witness-testified on crossexamination that she was allowed access to religious services, but as she made clear on re-direct, she had "difficulties" getting access to chapeF0

20Although the County offers the testimony of these three nonadministrative segregation detainees to support affirmance, it simultaneously chastises the plaintiffs for referring to the testimony of several other non-administrative segregation detainees who testified that they had

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Nor did the County's affirmative evidence support the district court's factual finding that the County provides "opportunities for inmates to participate in religious services and counseling," at least not as to administrative segregation detainees. The County relied primarily on the testimony of two jail personnel-Sergeant Dubsky and Deputy McCulloch -to support its contention that inmates were provided "regular access to religious services and clergy at every opportunity." Sergeant Dubsky testified that administrative segregation detainees must fill out a message slip to obtain access to a chaplain, and that there is no limitation on the number of visits available. But Sergeant Dubsky did not testify that administrative segregation detainees were actually given such access. Likewise, Deputy McCulloch merely testified as to the manner in which chapel is called for non-administrative segregation detainees. He did not establish that chapel was called weekly, bi-weekly or with any other pattern of regularity.

A custom can be shown or a policy can be inferred from widespread practices or "evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded." Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992); see also Nadell v. Las Vegas Metro. Police Dep 't, 268 F.3d 924, 929 (9th Cir. 2001). Plaintiffs' counsel asked the Sheriffs' department officials who testified whether deputies were ever disciplined or reprimanded for Stewart violations. No witness was able to identify any

great difficulty in gaining any access to religious services. For example, Detainee Ronald Rogers testified that he had "never in over two-and-ahalfyears been offered religious services." Detainee James Sukanich testified that when housed in the main jail he had not been given access to any religious services for seven months. Detainee Edward Swanstrom testified that he received "no response" to his multiple requests for access to religious services. Although the district court's finding of "sporadic" denials is erroneous without consideration of this additional testimony, it nonetheless undermines the County's claim that inmates, in any population, received regular access to religious services.

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instance in which disciplinary steps were taken or a reprimand was issued.

[15] Moreover, the County's witnesses did not contend, and its brief on appeal does not suggest, that detainees in administrative segregation are denied worship opportunities because of security concerns, or for other legitimate non-punitive reasons. The district comt should not have blindly deferred to the County's bare invocation of security concerns, when the County has failed to even establish that there is regular access to religious services for administrative segregation detainees, much less that interruptions in such access are on account of security. Walker v. Sumner, 917 F.2d 382, 386 (9th Cir. 1989) ("Without requiring some evidence that prison policies are based on legitimate penological justifications . . . 'judicial review of prison policies would not be meaningful.' ") (citation omitted). In sum, the district court erred in denying declaratory or injunctive relief under § 1983.

[16] Similarly, the Stewart order remains necessary to ensure that detainees in administrative segregation are not denied access based on their classification alone. We therefore reverse the judgment of the district court with regard to this component of the Stewart injunction, as the record demonstrates that its enforcement "remains necessary to correct a current and ongoing violation of [a] Federal right." 18 U.S.C. § 3626(b)(3). We also conclude that the Stewart order, as presently constituted, extends no further than is necessary and is the least intrusive means to correct the violation. Id The terms of the Stewart injunction require that detainees in administrative segregation be afforded opportunities for worship, provided the detainees have not become disruptive or violent, implicating legitimate security concerns, even though the injunction does not require that detainees be afforded access to group religious services. The jail may instead satisfy the order by allowing individual chapel visits or meetings with religious advisers. In sum, the order-with its provision for the curtailment or elimination of detainees' rights based

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on security concerns-provides for no more than a minimum level of ongoing participation in religious activities. Accordingly, we conclude that the injunction is narrowly drawn and extends no further than necessary to correct the violation of a Federal right. 18 U.S.C. § 3626(b)(3).

2. Termination of Stewart order related to regular exercise.

[17] Exercise is one of the basic human necessities protected by the Eighth Amendment. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (as amended). Moreover, the Fourteenth Amendment requires that pretrial detainees not be denied adequate opportunities for exercise without legitimate governmental objective. See Bell, 441 U.S. at 538. Determining what constitutes adequate exercise requires consideration of "the physical characteristics of the cell and jail and the average length of stay of the inmates." Housley v. Dodson, 41 F.3d 597, 599 (lOth Cir. 1994). In the Orange County jails, the average period of pretrial detention is 110 days, with those accused of being "third strike" offenders spending an average of 312 days. Even by conservative estimates, detainees in administrative segregation and protective custodf1 spend twenty-two hours or more in their cells each day.

As the district court noted, other courts have held that detainees who are held for more than a short time and spend the bulk of their time inside their cells are ordinarily entitled to daily exercise, or five to seven hours of exercise per week, outside their cells. See Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980) (holding that pretrial detainees are generally entitled to one hour of exercise outside their cells daily if they spend more than sixteen hours in their cells); see also Housley, 41 F.3d at 599 ("'a failure to provide inmates (confined for more than a very short period ... ) with the opportunity for at least five hours a week of exercise outside the cell

21 See n.3, supra.

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raises serious constitutional questions' ") (quoting Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988)). And at least one district court, in a class action brought pursuant to § 1983 challenging pre-trial conditions of confinement, has held that "defendants' failure to provide each inmate one hour per day of exercise outside the cells is a constitutionally intolerable condition." Hutchings v. Corum, 501 F. Supp. 1276, 1294 (D. Neb. 1980).

[18] The record shows that pretrial detainees in administrative segregation and other restrictive classifications, such as protective custody, are typically afforded, at best, only ninety minutes weekly in a space equipped for exercise.22 Although we need not hold that there is a specific minimum amount of weekly exercise that must be afforded to detainees who spend the bulk of their time inside their cells, we hold that providing the equivalent of slightly less than thirteen minutes of exercise a day does not give meaningful protection to this basic human necessity. See Lemaire, 12 F.3d at 1457; Housely, 41 F.3d at 599. We therefore conclude that plaintiffs have established a violation of§ 1983.

[19] In finding no punitive intent, the district court relied exclusively on the fact that "a group of detainees congregating in an open area containing weights and other equipment raises security concerns." We agree that the County has considerable discretion to curtail access to exercise based on security concerns. Bell, 441 U.S. at 539 n.23. Here, however, the curtailment to ninety minutes weekly for inmates who oth-

22The County contends that, contrary to the testimony of several inmates, detainees may also exercise in the day rooms. The County concedes, however, that day rooms are not designed for exercise and that detainees may not use any of the room's fixtures (such as bars, chairs, tables, or wall hooks) for exercise purposes. While inmates' access to day rooms, discussed further infra, is a factor affecting our determination of what constitutes adequate exercise, it does not-given the space constraints and absence of any appropriate equipment-constitute an exercise opportunity.

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erwise spend the bulk of their time inside their cells reduces the amount of exercise to a point at which there is no meaningful vindication of the constitutional right to exercise for this entire category of detainees. The County has provided nothing more to justify this almost complete denial of exercise than a generalized reference to institutional security concerns. It has made no showing that such a severe restriction is reasonably related to satisfying those concerns. Compare Spain v. Procunier, 600 F.2d 189, 192, 199-200 (9th Cir. 1979) (impermissible to completely deny access to outdoor exercise for a particular category of inmates, even when inmates within that category were being disciplined for committing violent acts while in prison) with LeMaire, 12 F.3d at 1458 (upholding denial of exercise privileges for a particular inmate deemed a "grave security risk" who had previously attacked corrections officers). Given the severity of the current restrictions and their application across an entire category of detainees, we condude that ninety minutes of exercise per week constitutes punishment for purposes of§ 1983.

[20] Accordingly, we also determine that the Stewart order, which requires that inmates in administrative segregation be permitted exercise at least twice each week for a total of not less than 2 hours per week, is "necessary to correct a current and ongoing violation of [a] Federal right." 18 U.S.C. § 3626(b)(3). We likewise conclude that the Stewart order, as it is currently constituted, is "narrowly drawn and is the least intrusive means to correct the violation." !d. The Stewart order requires considerably less exercise-just two hours a week-than the one hour a day recognized elsewhere as a constitutional floor. More importantly, the Stewart order contains a safety-valve that permits the County, in its discretion, to "curtail or eliminate" exercise rights "in the event such inmate becomes violent or disruptive in the course of exercising such rights." Thus, the existing Stewart order accords the County sufficient deference in determining whether a particular inmate poses a risk to security requiring limitations on or

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revocation of the right. On remand, the district court must reinstate the Stewart order and enjoin violation under§ 1983.

3. Termination ofStewart order related to access to day room.

The Stewart order requires that inmates be given access to the day room for two hours daily, but provides for curtailment or elimination of the right to day room access for security or disciplinary reasons. Confinement necessarily imposes restraints on detainees' freedom of movement and access to recreation. Nonetheless, such restrictions may "constitute punishment in the constitutional sense," and thus violate the Fourteenth Amendment, if they are not "rationally related to a legitimate nonpunitive governmental purpose and ... appear excessive in relation to that purpose." Bell, 441 U.S. at 561. Given the conditions and average duration of confinement in administrative segregation and similarly restrictive classifications, failure to provide detainees with the opportunity for some daily out-of-cell movement raises serious constitutional questions. See Bell, 441 U.S. at 543 (considering day room access as a factor that mitigates overcrowding); Lock v. Jenkins, 641 F.2d 488, 493-94 (7th Cir. 1981) (finding that the importance of day room access increases as the length of time the detainee spends in the cell increases and the size of the cell decreases).

[21] The record evidence demonstrated that administrative segregation detainees, were, in fact, given access to the day room. The restrictions placed on use of the day roomlimiting administrative segregation detainees' use of the room to one or two inmates at a time-are reasonably related to institutional security concerns. For these reasons, we affirm the district court's denial of plaintiffs' claim under 42 U.S.C. § 1983, because in this instance the County's restrictions still permit access to the day rooms and do not evince any punitive intent. Accordingly, there is no evidence of a "current and ongoing violation of a Federal right," and we therefore also

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affirm the district court's termination of this Stewart order. 18
u.s.c. § 3626(b)(3).23

D. The district court erred by finding that the County was not in violation of the ADA.

Having addressed the portions of this appeal relating to the Stewart injunction and the claims of the overall Pierce class, we turn our attention to the rights of the Pierce sub-class of mobility- and dexterity-impaired pretrial detainees.

Plaintiffs argued at trial that the County was not in compliance with the ADA or California's co-extensive access requirements at § 54.1 of the California Civil Code. Plaintiffs maintained that the County failed to address numerous structural barriers and, as a result, denied mobility- and dexterityimpaired detainees access to various features and elements of their cells and common spaces. They also argued that, because of their disabilities, they were segregated and denied access to a variety of the County's educational, rehabilitative, and recreation programs, services, and activities for pretrial detainees. Despite finding that the County was not "in full ADA compliance," the district court "decline[d] to declare an ADA or California Civil Code violation, or order injunctive relief." This decision cannot stand. As we explain below, we

23Plaintiffs advance two related claims based on state law. First, plaintiffs argue that § 1053 of Title 15 of the California Code of Regulation creates a general mandatory duty actionable under § 815.6 of the California Government Code. We disagree. Because of the high degree of discretion left to officials under§ 1053, we do not agree that§ 1053 satisfies the standard articulated in Haggis, 22 Cal. 4th at 498. Second, plaintiffs maintain that§ 1065 ofTitle 15 creates a duty actionable under§ 815.6. During the relevant time period,§ 1065 instructed the jails' facility administrators to develop written policies and procedures to provide a minimum of three hours of exercise or recreation per week. Even assuming § 1065 satisfies California's three-pronged test, see Haggis, 22 Cal. 4th at 498, the evidence does not show a lack of reasonable diligence in providing the detainee population three hours of exercise or day room recreation per week. We affirm the district court's denial of these state law claims.

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reverse in part and remand for further proceedings consistent with this opinion.

1. Standards for evaluation of the ADA claims.

[22] Pursuant to Title II of the ADA, a "qualified individual with a disability" cannot, "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. § 12132.24 It is undisputed that Title II applies to the Orange County jails' services, programs, and activities for detainees. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998); Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001). The regulations promulgated under Title II spell out the obligations of public entities.25 Under the regulations, a qualified individual with a disability (an individual for whom reasonable modifications may be required, 42 U.S.C. § 12131(2)) must not be excluded from or denied the benefits of a public entity's services, programs, or activities because the entity's facilities are inaccessible or unusable. See 28 C.P.R. § 35.149.

24The ADA's definition of "public entity" includes "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131(1); Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001).
The ADA defines a "qualified individual with a disability" to include anyone with a disability "who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2).
25Congress authorized the Attorney General to promulgate regulations under the ADA. 42 U.S.C. § 12134(a). The regulations are therefore given "legislative and hence controlling weight unless they are arbitrary, capricious, or plainly contrary to the statute." United States v. Morton, 467 U.S. 822, 834 (1984).

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Generally, public entities must "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." Id § 35.130(b)(7); see McGary v. City ofPortland, 386 F.3d 1259, 1265-67 (9th Cir. 2004).

In a subsection titled "existing facilities," the regulations provide that a public entity must "operate each service, program, and activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a). The regulations, however, note in relevant part that: (1) a public entity is not necessarily required "to make each of its existing facilities accessible to and usable by individuals with disabilities," id § 35.150(a)(l); and (2) a public entity is not required "to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens," id § 35.150(a)(3).26

26Section 35.150(a)(3) further explains:
In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.

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The regulations allow public entities to use a variety of methods to make existing facilities "readily accessible," including the "reassignment of services to accessible buildings" and the "alteration of existing facilities and construction of new facilities." Id. § 35.150(b)(1). Section 35.150(b)(l) provides:

A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. . . . In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.

Id.; see also 28 C.P.R. Pt. 35, App. A (stating that under Title II "the concept of program access will continue to apply with respect to facilities now in existence, because the cost of retrofitting existing facilities is often prohibitive").

To the extent that structural changes are to be made to an existing facility, the accessibility requirements that apply to new construction and alterations, set out in 28 C.P.R. § 35.151, must be met. 28 C.P.R. § 35.150(b)(l). In addition, the regulations require that an entity with more than fifty employees, such as Orange County, develop a "transition plan" setting forth the steps that must be taken to complete any planned structural changes. Jd. § 35.150(d)(l). Finally, January 26, 1995, was the deadline for making structural changes under the regulations. Id. § 35.150(c).

While § 35.150 addresses itself to "existing facilities," § 35.151 concerns "new construction and alterations." The regulatory requirements in this section are somewhat more straightforward. See Parker v. Universidad de Puerto Rico, 225 F.3d 1, 6 & n.7 (1st Cir. 2000) (comparing Title II's regu-

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lations governing "existing facilities" and "new construction and alterations"). Section 35.151 requires that any part of a public entity's facility constructed after January 26, 1992 must be designed and constructed "in conformance with the Uniform Federal Accessibility Standards ('UFAS') (41 C.P.R. Pt. 101-19.6, App. A) or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ('ADAAG') (28 C.P.R. Pt. 36, App. A)." Id. § 35.151(a), (c) (allowing departures from these standards when it is "clearly evident that equivalent access" is afforded). And, to the maximum extent possible, any part of a public entity's facility altered after January 26, 1992 "in a manner that affects or could affect [its] usability" must also be altered in conformance with one of these accessibility standards. Id. § 35.151(b), (c).

2. ADA standards in the context of prison administration.

While the regulations promulgated under Title II provide a framework for analyzing ADA claims generally, we have held that inmates' rights must be analyzed "in light of effective prison administration." Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994). As the district court observed, we held in Gates, 39 F.3d at 1447, that inmates' claims that their rights under the Rehabilitation Act had been violated were subject to the so-called "reasonable relation" standard articulated in Turner. 482 U.S. at 89.27 Under Turner, a regulation that

27Title II of the ADA was expressly modeled after§ 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended in scattered sections of Title 29 of the United States Code), and essentially extends coverage to state and local government entities that do not receive federal funds. Compare 29 U.S.C. § 794(a) with 42 U.S.C. §§ 12131, 12132. We have therefore observed that "[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act." Zukle v. Regents of Univ. of California, 166 F.3d 1041, I 045 n.11 (9th Cir. 1999); see Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (noting that "Congress has directed that the ADA and RA be construed consistently") (citing 42 U.S.C. § 12134(b)).

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would impinge on inmates' constitutional rights is nevertheless valid if it is reasonably related to the prison's legitimate interests.28 Id. We concluded in Gates that to prevail on a
claim that their statutory rights have been violated, inmates
must show that the challenged prison policy or regulation is unreasonable. Gates, 39 F.3d at 1447.29

In ADA cases, the plaintiff bears the burden of establishing the elements of the prima facie case, including-if needed"the existence of a reasonable accommodation" that would enable him to participate in the program, service, or activity at issue. Zukle, 166 F.3d at 1046. The public entity may then rebut this by showing that the requested accommodation would require a fundamental alteration or would produce an undue burden. See 28 C.P.R. § 35.150(a)(3). As we explained in Zukle, determining whether a modification or accommodation is reasonable always requires a fact-specific, contextspecific inquiry. 166 F.3d at 1048. This analysis permits a

28Turner identified four factors relevant in determining the reasonableness of prison policies, discussed briefly supra Section V.C.l. The first of these-whether there is a" 'valid, rational connection' between the prison policy and the legitimate governmental interest put forward to justify it[,]" 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)}"constitutes a sine qua non." Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990); see Ashker v. California Dep 't ofCorr., 350 F.3d 917, 922 (9th Cir. 2003) (same); see also Beard, 126 S. Ct. at 2577-79 (considering all factors but noting "we believe that the first rationale itself satisfies Turner's requirements").
29Plaintiffs argue that Supreme Court cases since Gates have effectively overruled the approach taken in that case. They note that the Supreme Court, in holding that Title II applies to state prisons, reasoned that "[t]he text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons." Yeskey, 524 U.S. at 210. Plaintiffs also note that in Johnson v. California, 543 U.S. 499 (2005), the Supreme Court refused to analyze inmates' claim of racial discrimination under Turner, opting instead for a strict scrutiny analysis. The appeal before us today, however, does not require a reexamination of Gates, because reversal is warranted on this record even when measured against the deferential "reasonable relation" standard.

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court to consider, with deference to the expert views of facility administrators, a detention or correctional facility's legitimate interests (namely, in "maintaining security and order" and "operating [an] institution in a manageable fashion," Bell, 441 U.S. at 540 n.23) when determining whether a given accommodation is reasonable. Cf Crawford v. Indiana Dep 't of Corr., 115 F.3d 481, 487 (7th Cir. 1997).

3. The County has failed to reasonably accommodate mobility-impaired and dexterity-impaired inmates in violation of the ADA.

The plaintiff class of mobility- and dexterity-impaired pretrial detainees contends that the County's failure to accommodate their disabilities has prevented them from enjoying a number of the County's services, programs, and activities. They argue that the County has not reasonably addressed various structural barriers, and maintains unreasonable policies and practices in violation of the ADA.

a. Physical barriers.

With regard to barriers, the district court found the evidence to show that "the Orange County jails have not yet been brought into full ADA compliance. In 2000, Orange County adopted a Transition Plan to move existing facilities toward ADA compliance. That plan was directed more toward structural modifications of public and visitor areas than toward compliance in inmate areas." The district court went on to state that "inmate witnesses and plaintiff's expert, Mr. Robertson, identified various specific architectural barriers and features that are out of compliance with the ADA."

These findings are clearly supported by the record. As of 2004, when the case went to trial, the County housed mobility- and dexterity-impaired pretrial detainees in two of its five facilities-the Men's and Women's Central Jails. Male inmates with such disabilities were placed in one of

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three parts of Module 0 in the Men's Jail: Sheltered Living, Ward C, or Ward D. Female inmates with such disabilities were housed in either Sheltered Living in Module P of the Women's Jail or the infirmary. Plaintiffs' expert witness Peter Robertson was permitted to tour these areas, and to take photographs and measurements of the structures and fixtures. He testified at length regarding his measurements, observations, and conclusions. Robertson maintained that a host of features and fixtures-including toilets, sinks, showers, hot water dispensers, telephones, and water fountains-in cells or common spaces the County referred to as "accessible" did not comply with federal accessibility standards.30 Since the district court's order fails to specify which "architectural barriers and features [were] out of compliance with the ADA," we limit ourselves to noting-in support of the court's proper, but vague, finding-that a number of the deficiencies reported by Robertson were conceded by Ron Bihner, the project manager charged with supervising structural modifications at the County jails pursuant to the Transition Plan, and many others were not explicitly disputed. Notably, Bihner agreed that the showers in Wards C and D were not accessible to the mobility-impaired, conceded that the toilet and sink in the women's infirmary day room were inaccessible to individuals in wheelchairs, and acknowledged that the rooftop exercise

300ur references to "accessibility"-like those made by the district court and the parties-are to be construed in terms of the impairments of the sub-class of mobility- and dexterity-impaired detainees. Issues of accessibility for those with other impairments-such as loss of hearing or sight-are not before us.
Robertson examined housing cells which the County asserted were intended to accommodate individuals with mobility and dexterity disabilities. There was one such cell in Men's Sheltered Living (an area dedicated to housing disabled detainees, which consists of eighteen cells, each housing two to four inmates), three such cells in Women's Sheltered Living, and one such cell in the Women's Infirmary. Men's Wards C and D are open dormitory-style medical wards and do not consist of discrete cells. Robertson also examined day rooms and other common spaces intended for use by those with mobility and dexterity impairments.

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5613

and recreation areas afforded to male and female disabled detainees did not offer accessible bathroom facilities. 31 The County presented no evidence to dispute Robertson's assertions that rooftop telephones and water fountains were inaccessible to those in wheelchairs and that the sinks and toilets serving the Women's Central Jail classroom were inaccessible, as well as facilities in other areas. 32

[23] While it is evident that the district court was wellsupported by the record when it observed (albeit without specificity) that the "existence of barriers" had been shown, the district court inexplicably made further findings which are unsupported by and contrary to the record: The court concluded that the plaintiffs were not entitled to relief because they had not shown that "effective modifications could be made," or that "where an architectural shortcoming existed, it was not made accessible by other appropriate action taken by a jail employee." The district court asserted broadly that where structural corrections had not been made, the County had shown that "other effective remedies [were] in use."

31 In the men's rooftop area, for example, the bathroom facilities can only be reached via a narrow doorway and stairs. The County's Transition Plan did not include any plans to modify any elements or features of the men's or women's rooftop recreation areas.
32As we discuss further infra, the County asserted that it did not house mobility- and dexterity-impaired detainees in its other jail facilities-Thea Lacy, James A. Musick, and the Intake Release Center ("IRC"). The County acknowledged, however, that disabled detainees are kept in the IRC's holding cells and booking cells. Because the County did not permit Robertson to tour those areas, the only related evidence came from the statement of a Sheriff's Department official, Lieutenant Rick Edgmon. Edgmon claimed that two cells in the booking loop (one female and one male) had been partially modified. At that time of this statement in July 2003, he noted that accessible sinks had not yet been installed. Neither he nor other witnesses stated whether, or to what extent, any cells in the "release section" of the IRC had been modified, as called for by the Transition Plan.

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To begin, we agree that plaintiffs were required to show " 'the existence of . . . reasonable accommodation[s]' " that would enable them to make use of the facilities. Zukle, 166 F.3d at 1046 (quoting Barnett v. U.S. Air, Inc., 157 F.3d 744, 749 (9th Cir. 1998)). Any finding that they did not do so is legal error. Robertson's testimony included site-specific suggestions of structural, as well as non-structural, accommodations. He drew upon the minimum standards set out in the UFAS or the ADAAG for proposed structural changes, such as the repositioning of a sink or the replacement of controls. See 28 C.P.R.§ 35.150(b)(l) (requiring that structural modifications be made in accord with the guidelines for new construction, UFAS or ADAAG). Alternative solutions to remedy some access problems were also offered. For example, Robertson noted in one instance that an inaccessible water fountain could be remedied by adding a cup dispenser rather than changing the position of the fountain.

The district court found further that the County was not required to remedy structural deficiencies because "other curative methods" provided disabled individuals with the requisite access. We agree, as a matter of law, that where reasonable alternative methods achieve compliance, structural changes to existing facilities need not be made. 28 C.F.R. § 35.150(b)(l). However, there is no support for the court's conclusion that such methods were shown to cure the many structural deficiencies in this case.

The only deficiencies that were shown to be addressed by alternate methods were small surface-elevation changes-i.e., ridges or curbs-that otherwise posed obstacles to movement between locations. Robertson observed, for example, that a five-inch curb obstructed access to the women's rooftop recreation area. He testified that this could be overcome by having a trained deputy guide a wheelchair over the curb. The record supports the conclusion that deputies, in fact, do this,

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5615

and plaintiffs are not denied access to the rooftop or other locations because of these surface irregularities.33

The County did not present evidence, as the district court's broad finding asserts, that other deficiencies were remedied through the assistance of deputies or by "other curative methods." Plaintiffs, on the other hand, presented evidence to show that deficiencies were not remedied. Robertson testified, for example, that he observed detainees-not deputiesstruggling to lift a fellow wheelchair-bound detainee over a foot-high retention wall in one of Ward C's inaccessible showers. Conn also testified that he was forced to rely on fellow inmates for assistance when faced with inaccessible bathroom facilities. 34

The impediment posed by such a barrier highlights the inadequacy of deputy or other inmate assistance. The County maintained throughout the trial that the deputies have their hands full given the ratio of deputies to inmates and the various duties incumbent upon the former. Staffing limits make it unreasonable to expect to address all structural deficiencies through deputy assistance.

The County argues that the district court's holding should, in any event, be affirmed because plaintiffs failed to satisfy their burden under Turner. We disagree. Even under Turner, the County was required to proffer some reason for its policy

33County policies require deputies to transport wheelchair-bound detainees between locations-that is, between their cells and other areas, such as the day room, rooftop, or chapel. (In other words, deputies push the wheelchairs, rather than allowing the detainees to propel themselves, as they do once they have arrived at a given location.)
34While examining Robertson and Bihner, counsel for the County asked whether, in certain instances, assistance from deputies or other nonstructural solutions might adequately accommodate individuals with disabilities. We pause to note the obvious-that such questions and answers may establish that a reasonable accommodation is possible, but do not show that it is practical or has been implemented.

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or practice. See Armstrong '01, 275 F.3d at 874. The County did not posit any legitimate rationale for maintaining inaccessible bathrooms, sinks, showers, and other fixtures in the housing areas and commons spaces assigned to mobility- and dexterity impaired detainees. 35 The vague assertion by the County's counsel that some accommodations might be costly cannot be construed as a legitimate basis for failing to comply with the ADA (whether through structural modifications or other reasonable methods). See id.; Walker, 917 F.2d at 386.

[24] We conclude that the district court erred in denying relief because it based its conclusion on clearly erroneous factual findings. Accordingly, we remand for further proceedmgs.

b. Integration and access to programs and services.

Plaintiffs also argued that, by virtue of being housed exclusively in the Men's and Women's Central Jails, they were denied access to a variety of programs, activities, and services for which they would otherwise be eligible. Plaintiffs essentially advanced two arguments: First, they challenged the County's policy of segregating disabled detainees, rather than allowing them to reside, recreate, and consume meals in integrated settings. Second, they argued that, regardless of where they are housed, the County had not "operate[d) each service, program, or activity so that the service, program, or activity, when viewed in its entirety, [was] readily accessible to and usable by individuals with disabilities," as required by 28 C.F.R. § 35.150(a).

The district court rejected plaintiffs' claims. First, the court concluded that the segregation of disabled detainees was rea-

35We note the one exception discussed supra. We agree that the County's policy with regard to small level changes-eschewing structural modification in favor of another reasonable method of achieving compliancewas not shown to be unreasonable.

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sonably related to legitimate interests, and therefore declined to order mainstreaming. Second, the court found that "the evidence shows that, except for the 'Best Choice' Program, the various inmate programs are also available to disabled inmates," and concluded that this was reasonable. The exclusion of disabled inmates from the Best Choice Program, a drug rehabilitation program, was deemed reasonable in light of security concerns.

[25] We do not find error in the district court's ruling regarding mainstreaming. Sheriffs Department officials testified at some length regarding the security concerns related to housing mobility- and dexterity-impaired detainees with nondisabled detainees. The district court's finding that plaintiffs did not refute this evidence is not clearly erroneous.

[26] The district court's finding that disabled inmates had access to all programs, save the Best Choice program, cannot, however, be squared with the record.36 As we mentioned earlier, as of2004, disabled detainees with mobility and dexterity impairments were not housed in the County's James A. Musick Facility or Thea Lacy Facility.37 The testimony of Sheriffs Department officials revealed that Thea Lacy and Musick offered a variety of programs, services, and activities which were not available to inmates of the Men's and

36The district court's decision speaks only of "inmate programs" and makes no mention of "services" or "activities" offered by the County jails. It is impossible to say whether the court considered the full breadth of plaintiffs' claims (which included services and activities). We assume, for purposes of our review, that the court intended to include, and thereby reject, plaintiffs' claim as it related to services and activities.
37According to the County, Musick does not offer accessible in-custody facilities. (The Transition Plan only provided for modifications to Musick's public and visitor areas.) Thea Lacy, which houses male detainees, was substantially renovated in the late 1990s. County and Sheriffs Department officials asserted at trial that a new Sheltered Living module for men was built, but had not yet been staffed due to budgetary constraints.

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Women's Central Jails. For example, programs in agriculture, woodworking, and welding were among the vocational opportunities available at Musick or Theo Lacy, but not available at the Central Jail Complex. In addition, detainees at Musick and Theo Lacy were afforded opportunities to participate in off-site or community work projects. The recreational opportunities available at Musick or Theo Lacy-where inmates had access to a softball field, volleyball courts, pool tables, and other indoor and outdoor facilities-also exceeded those provided at the Central Jail Complex.

The Central Jail Complex houses both disabled and nondisabled detainees. However, non-disabled detainees retain at least the possibility of access to the programs offered at Musick and Theo Lacy, while disabled detainees-solely by virtue of their status as disabled-have no possibility of access to the superior services offered outside of the Central Jail Complex. The ADA does not require perfect parity among programs offered by various facilities that are operated by the same umbrella institution. But an inmate cannot be categorically excluded from a beneficial prison program based on his or her disability alone. Yeskey, 524 U.S. at 210 ("Modem prisons provide inmates with many recreational 'activities,' medical 'services,' and educational and vocational 'programs,' all of which at least theoretically 'benefit' the prisoners (and any of which disabled prisoners could be 'excluded from participation in')."). Moreover, ADA regulations contemplate "reassignment of services to accessible buildings," as a permissible means of accommodation. 28 C.F.R. § 35.150(b)(l). The County would not have to make Musick and Theo Lacy physically or structurally ADA compliant. It might consider, for example, redistributing some programs available at those two facilities to make them available at the Central Jail so that when "viewed in [their] entirety" the County's programs are "readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a). But the County may not shunt

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the disabled into facilities where there is no possibility of access to those programs.38

While the County need not make all of its existing facilities accessible to individuals with or without disabilities, it is expected to provide "program access." 28 C.P.R. Pt. 35, App. A. Any type of educational, vocational, rehabilitative, or recreational program, service, or activity offered to nondisabled detainees should, when viewed in its entirety, be similarly available to disabled detainees who, with or without reasonable accommodations, meet the essential eligibility requirements to participate. Whether this "program access" standard may reasonably be met or whether any restriction on access is reasonably related to a legitimate government objective is necessarily fact-specific. We also emphasize that the district court should look at the offerings as a whole and in their entirety and thus the court is not required to ensure that each individual program or service offered at Theo Lacy and Mus-

38There is no clear case authority on this precise point-whether the ADA permits an umbrella organization to exclude the disabled from particular facilities with superior programs and services, so long as there is one accessible facility with inferior programs. But at least one district court has noted, in the context of school programs, that there is a "discriminatory effect" when disabled students are discouraged from "attempting to participate in classes and other programs located in inaccessible facilities." Putnam v. Oakland Unified School Dist., 1995 WL 973734 at *10, 15 A.D.D. 1361 (N.D. Cal. Jun. 9, 1995). There are, of course, security concerns in a prison system that are not present in a high school system, but the concerns associated with inequalities between different facilities inhere in both scenarios. While a court should be "hesitant to secondguess" a "good faith accessibility plan," here there is no plan to make any of the services available at Musick and Theo Lacy accessible to disabled inmates housed at Central Jail. Id. Thus, while the County has considerable discretion under the regulations to determine whether and how it can extend program accessibility, it cannot simply do nothing. Id. ("For example, upon determining that none of its schools was accessible with respect to all necessary and unique facilities, the District might have decided to make some of its high school campuses partially accessible, in such a way as to make all the Districts' programs accessible at those campuses.").

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ick is offered in complete parity with an offering at the Central Jail.

[27] The County has offered no explanation or justification, either in district court or on appeal, for the significant differences between the vocational and recreational activities available at Thea Lacy and Musick, and those available to either able or disabled detainees at the Central Jail. As such, the County has not raised the defense that a policy of restricting access to these programs, services, or activities is reasonably related to a legitimate government objective. See Armstrong 'OJ, 275 F.3d at 874. We conclude that the district court erred when it concluded that disabled inmates had access to "the various inmate programs," and we must remand as further fact-finding is required to determine what reliefis appropriate.39 In particular, the district court should examine the feasibility of offering similar programs at the Central Jail, and the extent to which the programs offered at Thea Lacy or Musick are capable of being offered at the Central Jail without eliminating those programs at Thea Lacy or Musick. There may be other appropriate remedies that provide disabled inmates access to programs and services, and the district court should consider those options as well. Our intention is not to suggest or cause the termination or diminution of programs or facilities other than the Central Jail, but to have the district court explore available options on a full evidentiary record.

c. The district court's unsupported assumption that the County would "move toward" full compliance was clearly erroneous.

The district court determined that the County was not in compliance with the ADA, but took it on faith that the County

39We do not disturb the district court's ruling with regard to the Best Choice Program but do require the district court to determine whether and how security is a problem and to determine whether other programs at the Central Jail offer similar or essentially equivalent programs.

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5621

would "move toward full compliance." This conclusion is unwarranted given the County's track record. The County adopted its Transition Plan for structural changes in August 2000-eight years after the deadline set by the regulations for such plans, and five and a half years after the regulations'
deadline for the completion of structural modifications.4°Fur-
thermore, when ultimately adopted, the Plan failed to address many architectural barriers in common spaces used by disabled detainees (for example, those on the rooftop of the Men's and Women's Jails). Diane DeHaas, the Orange County ADA Title II Coordinator, testified that the work under the Transition Plan had been completed, and spoke of no particular plans to remedy any of the glaring deficiencies.

The County has done even less to ensure that disabled detainees are given opportunities to benefit from the various programs, activities, and services offered by the jails. While Title II regulations require that the County complete a selfevaluation regarding the availability of programs, activities, and services, see 28 C.F.R § 35.105(a), DeHaas conceded that she did not know whether it had been done for the County jails. Moreover, she admitted that she had no information about whether disabled detainees could have access to educational programs or a variety of other services.

In any event, neither the fact that Orange County might move toward compliance nor the district court's belief that it would do so eventually constituted a proper basis for denying plaintiffs relief. We must remand so that the district court can engage in further fact-fmding, consistent with our opinion, to determine what relief should be granted. We note that several years have passed since the trial was held, and, as a result,

40Further, Ron Bihner testified that the adoption of the Plan was not on the County's initiative but rather was prompted by a declaratory relief case brought in Orange County Superior Court, Blaser v. Orange County, No. 78892.

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determining what prospective relief is warranted may require consideration of any significantly changed facts. 41

Finally, the district court's Final Pierce Order did not address plaintiffs' claims that they were denied adequate notice of their rights under the ADA and an appropriate grievance procedure, as required by the regulations. See 28 C.F.R. §§ 35.106, 35.107. On remand, the district comi also should make findings on these issues.

d. Claims for mental and emotional harms.

Prior to trial the district court granted summary judgment to Orange County on plaintiffs' claims for mental and emotional harms. We conclude that decision was in error as it related to two specific allegations advanced by plaintiff Timothy Conn.

[28] According to plaintiffs' complaint, Conn alleged that the County failed to adequately accommodate his disability in violation of the ADA, and that he suffered physical injuries, as well as mental and emotional distress, as a result. The district court's March 1, 2004 order held that these alleged injuries were merely de minimis, and therefore precluded by the PLRA, 42 U.S.C. § 1997e(e), from giving rise to any cognizable claim under the ADA for compensatory damages. The PLRA, 42 U.S.C. § 1997e(e), states, "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." See Oliver, 289 F.3d at 626-27 (concluding that § 1997e(e) requires a "showing of physical injury that need not be significant but must be more than de minimis.").

41 Whether or not disabled detainees are now housed in Theo Lacy will obviously be pertinent to the district court's inquiry.

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5623

Conn challenges the district court's determination, arguing that§ 1997e(e) does not apply to claims under the ADA and that his injuries were in any case more than de minimis. While the former argument is unpersuasive in light of the plain language of § 1997e(e),42 the latter argument compels our reversal of the district court's decision with regard to two of Conn's allegations.

[29] Conn alleged that during his detention in 2000-2001 he was denied an adequate supply of catheters, and as a result suffered recurrent bladder infections. He also alleged that he was not provided a proper mattress given his disability, and as a result developed bed sores. Neither of these injuries is de minimis. Both bladder infections and bed sores pose significant pain and health risks to paraplegics like Conn.43 Our court has rejected as overly restrictive the standard for de minimis injuries espoused by the Northern District of Texas in Luong v. Hatt, 979 F. Supp. 481 (N.D. Tex, 1997), which requires " 'an observable or diagnosable medical condition requiring treatment by a medical care professional,' which would cause a 'free world person' to seek such treatment." Oliver, 289 F.3d at 628. We have maintained that if allowing claims for de minimis injuries requires too little of plaintiffs,

42Plaintiffs have offered no reasoned basis for carving out an exception for ADA claims. They point to our holding in Armstrong v. Davis, 318 F.3d 965 (9th Cir. 2003), that§ 1997e(d)(3)'s cap on awards of attorneys fees authorized by 42 U.S.C. § 1988 does not apply to the successful litigation of ADA claims, and maintain that§ 1997e(e) is analogous. Section 1997e(e), however, does not include language similar to that which is found in subsection (d)(3) constraining its application. Moreover, in Armstrong we explicitly declined to look to other provisions of the PLRA in interpreting § 1997e(d)(3). Jd. at 974 n.9; see also Cassidy v. Indiana Dep 't ofCorr., 199 F.3d 374, 376 (7th Cir. 2000) (rejecting a similar argument).
43The physical injury requirement directs the court to consider the injury suffered by an individual and not the degree of force used by the state to inflict the injury. See Oliver, 289 F.3d at 628. Where, as here, the complainant is a paraplegic, particular injuries pose different, and possibly more substantial, risks than they might to an average prisoner.

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this standard requires too much. Id Yet notably, Conn's alleged bed sores and bladder infections clear even that stringent standard. Both constitute " 'observable or diagnosable medical conditions'" that would lead a person to seek treatment. See id 44 In sum, these claims were improperly dismissed, and we remand to the district court for further proceedings consistent with this opinion.

E. The district court did not err in rejecting plaintiffs' equal protection claims.

Finally, the disabled plaintiffs argue that the district court improperly rejected the equal protection claim brought by the sub-class of mobility- and dexterity-impaired detainees. After reviewing the district court's November 2004 ruling de novo, see Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004), we affirm the grant of summary judgment.

The district court considered whether plaintiffs could establish that they were treated differently from how similarly situated prisoners are treated. This is the first step in a successful equal protection claim based on disability. See McGowan v. Maryland, 366 U.S. 420, 425 (1961); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 490 (1955). "Because 'the disabled do not constitute a suspect class' for equal protection purposes, a governmental policy that purposefully treats the disabled differently from the non-disabled need only be 'rationally related to legitimate legislative goals' to pass

440n appeal, the County urges us to affirm the district court on other grounds. The County argues that, even if Conn's alleged injuries were not de minimis, his claims would not have been actionable under the ADA. We disagree. Providing inmates with appropriate and adequate bedding and bathroom facilities are "services" of the jail. The fact that Conn's required "bathroom facilities" included catheters does not change the analysis. The jail was required to provide him with an adequate and appropriate means of relieving himself. There is still an issue as to whether he was provided adequate toilet facilities because the expert, Robertson, testified that the grab bar is still not properly positioned.

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constitutional muster." Lee, 250 F.3d at 687 (quoting Does 15 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996)). However, the court's assertion that "disabled and nondisabled detainees are not similarly situated for equal-protection purposes" is an overstatement. Disabled and nondisabled detainees may be similarly situated in some instances. See, e.g., More v. Farrier, 984 F.2d 269, 270-71 (8th Cir. 1993) (finding that wheelchair-bound inmates and nondisabled inmates were equally capable of watching television without assistance, and therefore were similarly situated with regard to the installation of cable television); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) ("The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.").

[30] Nonetheless, we conclude that the district court's holding was proper, given the case presented by the plaintiffs. Plaintiffs' allegations in support of their equal protection claim did not show that they were treated differently from similarly situated prisoners. For example, although plaintiffs alleged that paraplegic and quadriplegic detainees were kept in holding cells without accessible toilets and sinks, they did not allege that the County accommodated the special needs of any other group with regard to toilet or sink access. While these allegations implicate the County's ADA obligations, they do not, without more, implicate equal protection concerns.

VI. CONCLUSION

We affirm all of the district court's pre-trial management and evidentiary rulings challenged on appeal. We conclude that the district court did not abuse its discretion in consolidating the Pierce action with the Stewart decree proceeding. We further hold in respect to the trial that the district court did not violate the Pierce plaintiffs' due process rights by limiting the

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length of the trial, nor do we find reversible error in its evidentiary rulings.

As to the claim that the district court lacked authority on its own to terminate the orders in the Stewart decree, we conclude that the County, in effect, moved for the termination. The parties consented to the consolidation and briefed the issues relating to the continuing viability of orders in the Stewart decree. Accordingly, we hold that the district comi had the requisite authority.

On the merits, of the fourteen Stewart orders under review, we concur in the termination of all but two of those orders, and grant plaintiffs corresponding injunctive relief under § 1983 related to those two orders. We grant relief under § 1983 for the violation of the rights of inmates held in administrative segregation to access to religious services and hold that they are entitled to injunctive relief. We hold further that the Stewart order on the provision of religious services may not be terminated. We grant relief under § 1983 to inmates in administrative segregation for violation of their right to constitutionally protected exercise and hold that they are entitled to injunctive relief. We hold further that the Stewart order requiring exercise for inmates in administrative segregation, subject to that order's safety-valve provision permitting the County to curtail or eliminate exercise for inmates that become violent or disruptive, may not be terminated.

As to the claims of disabled inmates, although we hold there is no equal protection violation inherent in the disparate treatment of those detainees, we conclude that the County has violated the ADA. Accordingly, we grant relief to disabled prisoners on their ADA claims as follows: (a) The district court must conduct further fact finding on the current state of physical barriers to adequate access to bathrooms, showers, exercise areas, day rooms, dining rooms, cells and all other areas to which disabled persons should have access and order

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remedial remedies as required; (b) The district court must conduct further fact finding as to the programs and activities disabled persons currently have access to and order such remedial measures as required to make the County's provision of programs and services, when viewed in their entirety, accessible to mobility- and dexterity-impaired inmates.

Finally, we conclude that Conn suffered physical injuries that were not de minimis as a result of inadequacies in jail facilities. The district comi thus erred in dismissing his claims of mental and emotional harms. We remand those claims for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

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APPENDIX A (the Stewart Orders)

The following Stewart orders are at issue in this appeal:

Reading Materials Via Mail

Inmates will be permitted to receive through the mail any newspapers, magazines or paperback books that may lawfully be transmitted through the United States Postal System, subject to reasonable withholding for contraband and security purposes. Inmates may receive hard cover books upon prior request and a showing of particularized need.

Mattresses and Beds

Every prisoner kept overnight in the jail will be accorded a mattress and bed or bunk upon which to sleep. This Order shall not preclude defendants from permitting inmates to be housed with full bedding but without a bunk, for one night only if, in defendants' judgment, said inmate or inmates require more secure housing than is provided in the available areas and the appropriate housing does not have a sufficient number of bunks. This Order shall also not apply in the event of an emergency causing a sudden and unusual intake of prisoners, in which case full bedding shall be provided and defendants will exercise their best efforts to provide bunks for all inmates as soon as possible.

Law Books

The rights of inmates to obtain law books [through the process established by jail authorities] shall apply to each facility of the jail.

Population Cap

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Beginning 10 days after filing of this Order, the Sheriff of Orange County will not receive an inmate in the Central Jail any person to whom he cannot (and does not) provide a bed within twenty-four hours after arrival. Beginning 10 days after filing of this Order, no more than 90 inmates shall be incarcerated in the 8 respective dormitories into which the 3-tier bunks have been installed.... [I]n the Main Men's Jail in Santa Ana, California, there will be a population capacity of 1296 inmates assigned to housing. Such housing shall be defined as only the third and fourth floor general population modules on the Main Men's Jail in Santa Ana, California.

Sleep

The defendant jail authorities are ordered to accord to each inmate the opportunity for eight hours uninterrupted sleep on the night before and the night after each court appearance.

Blankets

Whenever inmates in their cells may properly be at ease on their beds, they will be permitted to cover themselves with blankets provided that sufficient anatomy is exposed to establish the presence of a person.

Telephone Access

The defendant jail authorities shall cause to be installed no fewer than sixteen telephones (in addition to those in operation on January 1978) in locations that the defendants shall determine to be most reasonably accessible to the inmates. These telephones, and all other telephones installed for inmates' use, shall be made available to the inmates

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for outgoing calls at reasonable times upon request, subject to priorities of emergency and rotation. Such telephone availability will be accorded inmates in administrative segregation and in medical isolation.

Inter}ail Communication with "Jailhouse Lawyers"

The Sheriff shall furnish envelopes for the purported valid purpose [of inmates' interjail communications with their fellow inmate "jailhouse lawyers"]; ... may inspect the envelope and its contents; [and] shall promptly deliver the envelope to the addressee unless some sinister purpose is disclosed.

Seating/Holding Cells

The defendant jail authorities will provide a place, other than the floor, for each inmate to sit while being detained in a holding cell, or elsewhere, before leaving for court or following return from court.

Mealtime

The defendant jail authorities are ordered to allow inmates not less than fifteen minutes within which to complete each meal.

Administrative Segregation

Nothing in this paragraph shall interfere with the authority of the defendants to curtail or eliminate the rights herein accorded an inmate in administrative segregation in the event such inmate becomes violent or disruptive in the course of exercising such rights.

Inmates in administrative segregation will be permitted:

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Religious Services To attend regularly scheduled religious services of their own selection once each week or, alternatively, to make individual visits to the chapel once each week for not more than twenty minutes, or at defendants' option, . . . to meet with a bona fide minister, priest, rabbi, or other similar religious adviser at any time upon request of either the inmate or the religious adviser.

Day room Daily use of a day room for not less than 2 hours.

Exercise Rooftop exercise and recreation at least twice each week for a total of not less than 2 hours per week.

Visitors Will be permitted to receive visitors not less than twice each week. Such visits will take place at the regular visitors' facility or at such other place as the defendants shall determine.

 
 Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 1 of 82 Page ID #:4450

1

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5

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9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION

12

13 FRED PIERCE, et al.;

14

Plaintiffs,

15

v.

16 COUNTY OF ORANGE, et al.;

17

Defendants.

SACV 01-0981 ABC (MLGx) CV 75-3075 ABC
FINDINGS OF FACT AND CONCLUSIONS OF LAW

18

Following remand from the Court of Appeals for the Ninth Circuit,

19 the Court presided over a bench trial in this case held on February 9,

20 10, 16, and 17, 2010 and on March 23 and 24, 2010. On May 7, 2010,

21 the Court issued an Order resolving several preliminary issues before

22 hearing closing arguments (Docket No. 731), which included requesting

23 additional testimony that was offered on June 10, 2010. The Court

24 then heard closing arguments on June 23, 2010. Finally, the parties

25 filed their respective proposed findings of fact and conclusions of

26 law pursuant to a stipulated briefing schedule which the Court

27 approved (Docket No. 733): (1) Plaintiffs Timothy Conn, et al.

28 (“Plaintiffs”), filed their proposed findings of fact and conclusions

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 2 of 82 Page ID #:4451

1 of law on July 15, 2010 (Docket No. 742); (2) Defendant County of

2 Orange (the “County”) filed its proposed findings of fact and

3 conclusions of law on August 5, 2010 (Docket No. 743); and (3)

4 Plaintiffs filed their reply findings on August 26, 2010 (Docket No. 5 747).1

6

In section I of this opinion, the Court will set forth the

7 procedural history of this case and resolve the parties’ dispute over

8 the scope of the class. In section II, the Court will set forth its

9 findings of fact; in section III, the Court will set forth its

10 conclusions of law. See Fed. R. Civ. P. 52(a)(1). In section IV, the

11 Court will issue its “ultimate” findings and, in section V, the Court

12 will outline the injunctive relief necessary to remedy the violations

13 of Title II of the Americans with Disabilities Act (“ADA”).

14 I. PROCEDURAL HISTORY AND SCOPE OF ADA SUB-CLASS

15

A. Procedural History

16

The Ninth Circuit’s opinion in this case sets forth the lengthy

17 history of this case up to that point, and the Court recites it only

18 as relevant to the Court’s opinion at this stage. See Pierce v.

19 County of Orange, 526 F.3d 1190 (9th Cir. 2008). Plaintiff Timothy

20 Conn and several others filed this class action suit in 2001 pursuant

21 to, inter alia, Title II of the ADA, 42 U.S.C. § 12131, et seq.,

22 “alleging non-compliant jail facilities and denial of access to

23 programs and services available to non-disabled detainees.” Pierce,

24 526 F.3d at 1195. Judge Taylor of this Court presided over a six-day

25

26

1On August 24, 2010, the County attempted to file a belated and

unauthorized additional brief styled as “objections” to Plaintiffs’

27 proposed findings, but the Court struck the brief as violating the

Court’s briefing schedule and has not considered the matters stated

28 therein. (Docket No. 746.)

2

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1 court trial and rejected Plaintiffs’ ADA claims. Id. Plaintiffs

2 appealed and the Ninth Circuit reversed and remanded for further

3 factfinding. Id. at 1226.

4

In a separate Order, this Court concluded that, based on the

5 Ninth Circuit opinion, the following issues needed to be decided: (1)

6 whether barriers to access to facilities that currently house

7 mobility- and dexterity-impaired detainees exist and if so, what

8 remedial measures are necessary to assure ADA compliance; (2) whether,

9 when viewing the programs, services, and activities offered by the

10 County “in their entirety,” mobility- and dexterity-impaired detainees

11 are “categorically excluded” from programs, activities, and services

12 offered to non-disabled detainees and inmates and, if so, what remedy

13 is necessary; and (3) whether Plaintiffs “were denied adequate notice

14 of their rights under the ADA and an appropriate grievance procedure,

15 as required by the regulations.” (Docket Nos. 730, 731.) The Court

16 also concluded that “mainstreaming” disabled inmates with non-disabled

17 inmates at the Theo Lacy and Musick facilities was not an issue left

18 open by the Ninth Circuit’s opinion. (Docket No. 731 at 9—12.)

19

B. Scope of ADA Sub-Class

20

The parties have raised and argued two issues regarding the scope

21 of the ADA sub-class represented by Plaintiff Conn: (1) that the class

22 is limited to pretrial detainees to the exclusion of sentenced

23 inmates; and (2) that the class is limited to detainees with Conn’s

24 specific combination of disabilities, rather than detainees with any

25 “mobility” or “dexterity” impairment. The Court concludes that the

26 class is limited to pretrial detainees, but that the class is not

27 limited to disabled detainees with Plaintiff Conn’s specific

28 combination of impairments.

3

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 4 of 82 Page ID #:4453

1

First, the class is properly defined as mobility- and dexterity-

2 impaired pretrial detainees because the operative complaint, the

3 Court’s original class certification order, and the Ninth Circuit

4 opinion all limited the sub-class represented by Conn to pretrial

5 detainees. For example, the operative Fifth Amended Complaint

6 classified Plaintiff Conn and all other class representatives as

7 pretrial detainees (Docket No. 375 ¶ 14) and the Court certified the

8 class as composed of pretrial detainees, not sentenced inmates (Docket

9 No. 169). The Court granted class certification on October 15, 2003,

10 which included a “sub-class” of “disabled detainees who had been

11 denied rights under the ADA.” Pierce, 526 F.3d at 1198. Then on

12 March 1, 2004, the Court decertified the damages class, but let stand

13 the certification of the class for injunctive relief, including the

14 ADA sub-class. See id. In that Order, the Court identified the class

15 for injunctive relief as “all pre-trial detainees held in Orange

16 County jails after October 21, 2001 who were denied various rights

17 under Stewart and the ADA” (Docket No. 309 at 2) and explained that

18 the class was “defined by a membership in a certain group of

19 individuals (pre-trial detainees), during a specific time period

20 (October 21, 2001 to the present), at a concentrated location (the

21 Orange County jails), and having common claims (the denial of certain

22 specific rights)” (Docket No. 309 at 18).

23

Moreover, the Ninth Circuit made clear in the portion of its

24 opinion discussing class certification that the class was composed of

25 a “main class” of pretrial detainees and an ADA “sub-class” of

26 disabled detainees. Pierce, 526 F.3d at 1197—98. While the Ninth

27 Circuit referred to disabled “detainees” and “inmates”

28 interchangeably, see Pierce, 526 F.3d at 1218, 1220—22, 1225—26, it

4

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 5 of 82 Page ID #:4454

1 repeatedly defined the class as mobility- and dexterity-impaired “pre-

2 trial detainees,” id. at 1214, 1217—1218 & nn.30, 32.

3

Even though Plaintiffs argue that equity supports expanding the

4 class definition to include disabled sentenced inmates, the Court is

5 not convinced that it should (or even could) amend the class

6 definition following remand to expand the class to encompass an

7 entirely new group of class members. See Vizcaino v. U.S. Dist. Court

8 (In re Viscaino), 173 F.3d 713, 720—22, amended by 184 F.3d 1070 (9th

9 Cir. 1999). Thus, the class is properly limited to pretrial

10 detainees.

11

However, the Court rejects the County’s belated attempt to limit

12 the class to detainees with Plaintiff Conn’s precise combination of

13 disabilities, rather than to detainees with either a “mobility” or

14 “dexterity” impairment. On November 23, 2004, the Court limited

15 evidence related to the alleged ADA violations “to conditions

16 applicable to Plaintiff Conn and persons having a disability similar

17 to his.” (Docket No. 484.) The Ninth Circuit explained that this

18 clarified the scope of class membership by limiting ADA disability

19 evidence “to conditions applicable to Plaintiff Conn [a wheelchair-

20 bound named plaintiff] and persons having a disability similar to

21 his.” Pierce, 526 F.3d at 1198 (brackets in original). The court

22 further described Plaintiff Conn as “a paraplegic or incomplete

23 quardiplegic, meaning that he has no mobility in his lower body and

24 some, albeit limited, use of his upper body. The parties agree that

25 the subclass consists of mobility- and dexterity-impaired inmates.”

26 Id. at 1198 n.6 (emphasis added).

27

The law permits broadly defined classes of disabled individuals

28 to challenge accommodation policies, so long as the class

5

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 6 of 82 Page ID #:4455

1 representatives suffer from the disability. See Armstrong v. Davis,

2 275 F.3d 849, 868—69 (9th Cir. 2001). In Armstrong, the court found

3 claims for accommodations were common to a class even though the class

4 members suffered from diverse disabilities such as hearing, vision and

5 learning impairments, as well as developmental and mobility

6 disabilities. Id. at 868. The court did, however, exclude class

7 members suffering from kidney disabilities because no named plaintiff

8 suffered from that disability. Id. at 869. Notably, one of the named

9 plaintiffs representing prisoners with life sentences suffered from

10 two disabilities (mental retardation and hearing impairment), id. at

11 855 n.1, yet the court did not suggest he would be limited to

12 representing only life prisoners with that combination of

13 disabilities. In the end, “[w]hen determining what constitutes the

14 same type of relief or the same kind of injury, we must be careful not

15 to employ too narrow or technical an approach. Rather, we must

16 examine the questions realistically: we must reject the temptation to

17 parse too finely, and consider instead the context of the inquiry.”

18 Id. at 867.

19

Here, as in Armstrong, the class is not and has never been

20 limited to detainees with Plaintiff Conn’s particular combination of

21 disabilities. After reviewing the extensive briefing and Orders

22 related to the scope of the class in this case,2 it is clear that,

23 until now, the parties have never disputed whether Plaintiff Conn

24 could represent detainees with mobility or dexterity impairments;

25

26 2On September 7, 2010, the Court granted the County’s unopposed
27 ex parte application to lodge with the Court various briefs and orders in this case related to the scope of the class issue. (Docket No.
28 751.)

6

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1 rather, the parties’ disputes centered on whether Plaintiff Conn could

2 represent hearing- or vision-impaired inmates as part of the class.

3 (Docket Nos. 452, 462, 478.) In fact, the Ninth Circuit suggested

4 that this was the nature of the parties’ disagreement when it noted

5 that “[o]ur references to ‘accessibility’ — like those made by the

6 district court and the parties — are to be construed in terms of the

7 impairments of the sub-class of mobility- and dexterity-impaired

8 detainees. Issues of accessibility for those with other impairments —

9 such as loss of hearing or sight — are not before us.” Pierce, 526

10 F.3d at 1218 n.30.

11

This conclusion makes practical sense. Plaintiff Conn can

12 properly represent most detainees with a dexterity or mobility

13 impairment because his dexterity impairment (severely clubbed hands)

14 and mobility impairment (confinement to a wheelchair) would require

15 modifications that would likely accommodate individuals with a broad

16 range of dexterity and mobility impairments. This is precisely the

17 type of realistic examination compelled by Armstrong. Thus, the class

18 is and has always been properly defined as all pretrial detainees

19 suffering from mobility or dexterity impairments similar to Plaintiff

20 Conn’s.

21 II. FINDINGS OF FACT

22

A. Overview of the Orange County Jail System

23 1. The Central Jail Complex in Santa Ana is comprised of the Intake

24

Release Center (the “IRC”), the Men’s Central Jail (the “MCJ”)

25

and the Women’s Central Jail (the “WCJ”). The County jail system

26

also maintains facilities called James A. Musick (“Musick”),

27

which is commonly referred to as “the Farm,” and Theo Lacy.

28 2. The MCJ is a large multi-story building that houses approximately

7

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

1,500 male inmates and detainees of all security levels. (Trial Tr. 45:16—22.) The WCJ was closed in approximately May 2009 and was closed at the time of trial. (Trial Tr. 645:6—11.) The majority of women who had previously been housed at the WCJ were moved to the IRC. The remaining women were transferred to the Musick facility. (Trial Tr. 645:13—17.) At the IRC, all pretrial detainees, male and female, are processed into the jail system through the “Booking Loop.” (Trial Tr. 188:21—189:17.) The IRC has five housing modules labeled J, K, L, M, and N. (Trial Tr. 645:21—646:1.) At the time of trial, approximately 150 female detainees and inmates of all security levels, were housed in Module K of the IRC. The remainder of the modules were used to house male inmates and detainees. (Trial Tr. 680:15—18.) All female class members are housed in the IRC, Module K, Sectors 13 and 14. (Trial Tr. 647:7—14, 705:12—24.) Theo Lacy is a large facility with the capacity to house 3,111 male inmates and detainees, but between 2,600 and 2,700 men were housed there at the time of trial. (Trial Tr. 458:19—24.) The Theo Lacy facility is comprised of the following: several low security dormitory-style housing units labeled Dorms A, B, C and D, referred to as “barracks,” each of which houses 300 individuals; areas labeled F, G, and H, called “pods,” which house approximately 1,000 inmates or detainees and have large dayrooms with beds or cells on the outside edge of the open dayroom and toilet facilities opening onto the dayroom area; and units labeled Modules I through R, which are built around smaller
8

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1

dayrooms where the inmates are housed in individual, double, or

2

four-man cells. (Trial Tr. 110:2—111:6, 470:21—24, 479:1—5.)

3 9. The construction of Module O, the medical unit for Theo Lacy, was

4

completed in 2001 or 2002. Only inmates and detainees with

5

medical needs are housed there. (Trial Tr. 459:21-460:4.)

6

Module O at Theo Lacy can house up to 120 inmates (it housed 80

7

inmates at the time of trial). It consists of 36 one-person

8

cells and 18 four-person cells and an open ward area, Sector 37,

9

that can accommodate individuals without more serious medical

10

needs. (Trial Tr. 464:4—465:7.)

11 10. Musick houses minimum security pretrial detainees and sentenced

12

inmates. (Trial Tr. 513:25—514:7.) At the time of trial, 353

13

male inmates and 94 female inmates were housed at Musick. (Trial

14

Tr. 195:23—196:10, 516:1—9.)

15 11. Musick is seventeen miles from the Central Jail Complex. (Trial

16

Tr. 859:13—19.)

17

B. Modifications Between 2004 and 2010

18 12. Since the original trial in this case in 2004, the County has

19

made very few modifications to its facilities. (Trial Tr.

20

877:20—881:6, 886:14—889:19; Trial Ex. 38.)

21 13. The County has also conducted no analysis to determine how costly

22

the necessary modifications might be. (Trial Tr. 929:11—930:4.)

23 14. In fact, one purpose of Plaintiffs’ expert’s tour of the jail

24

facilities in 2009 was to re-inspect areas that Plaintiffs’

25

former expert had inspected in 2004, and Plaintiffs’ current

26

expert confirmed that, “except for possibly one or two

27

exceptions,” the previously identified physical barriers

28

persisted. (Trial Tr. 41:25—42:15.)

9

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1

C. Physical Barriers at the MCJ

2

i. Wards C and D and Sheltered Living of Module O

3 15. Male detainees with mobility or dexterity impairments in the MCJ

4

are housed exclusively in Module O,3 which consists of a medium-

5

sized room called “Ward C” and a similarly sized room called

6

“Ward D,” both of which have a toilet and shower area inside the

7

room and an attached dayroom. Down the hallway from Wards C and

8

D are 18 one- or two-person cells in an area called “Sheltered

9

Living.” Off the same hallway is a small room called the

10

Sheltered Living dayroom, which contains a restroom and shower.

11

(Trial Tr. 45:23—46:16.)

12 16. The jail assigns to Ward C all detainees with the following

13

conditions: 1) frequent or recent onset of seizures; 2) diabetes

14

under poor control, which often can involve neuropathy of the

15

legs or feet; 3) head injuries requiring neurological checks; 4)

16

acute medical problems; and 5) conditions that require the use of

17

wheelchairs. (Trial Tr. 708:9—709:18.)

18 17. Male detainees who require the use of wheelchairs can also be

19

assigned to Ward D, including those who are paraplegic and

20

quadriplegic, and those who have advanced mobility problems.

21

(Trial Tr. 60:12—23, 710:1-712:17, 714:9-715:18.) In addition,

22

the County houses individuals with severe diabetes and orthopedic

23

cases in Ward D. (Trial Tr. 712:18-713:11.)

24 18. Male detainees who are required to use canes, crutches, walkers,

25

or who have leg casts or metal splints, as well as those with

26

back injuries requiring bed rest, and the hearing and visually

27

28

3Confusingly, a “Module O” exists at both the MCJ and Theo Lacy.

10

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1

disabled, are all housed in the Sheltered Living cells, along

2

with overflow inmates and detainees in wheelchairs from Wards C

3

and D who can transfer themselves and do not require continuous

4

medical care. (Trial Tr. 709:9—710:10, 713:14-23.)

5 19. During Plaintiff Conn’s most recent incarceration in 2009, there

6

were usually approximately 14 inmates housed in Ward C;

7

typically, two or three of them were wheelchair-bound inmates.

8

(Trial Tr. 596:5—13.)

9

a. Ward C Shower and Toilet

10 20. Plaintiffs’ expert in 2004, Peter Robertson, identified at least

11

ten barriers in Ward C. (Trial Ex. 5 at 12—14.) The Ninth

12

Circuit credited those findings. Pierce, 526 F.3d at 1217—18.

13 21. Plaintiffs’ current expert, Logan Hopper, verified that the

14

barriers in Ward C identified by Robertson still existed at the

15

time he toured the facility in 2009. (Trial Tr. 46:17—48:11;

16

Trial Ex. 4 at 71, 73.)

17 22. The shower in Ward C contains at least five separate barriers: a

18

thirteen-inch high curb that prevents someone in a wheelchair or

19

with a significant mobility impairment from entering the shower;

20

no grab bars; improper shower controls; improper shower head; and

21

no fixed shower seat. (Trial Tr. 48:12—50:11; Trial Ex. 4 at 69;

22

Trial Ex. 5 at 14.)

23 23. Because of the high curb, Plaintiff Conn, an incomplete

24

quadriplegic, experienced difficulty using the shower during his

25

recent incarceration in July 2009. (Trial Tr. 590:9—593:4.)

26

Indeed, no wheelchair-bound inmate or detainee could get into the

27

shower without assistance. (Trial Tr. 751:1—10.)

28 24. As a result, to take a shower, Plaintiff Conn had to ask two

11

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1

other inmates in Ward C to lift him and his wheelchair over the

2

concrete barrier and into the shower, while a third inmate would

3

have to stand next to him to make sure he was not dropped.

4

(Trial Tr. 593:19—25.) He had to hand his jumpsuit to someone

5

outside the shower, and when he was done, Plaintiff Conn had to

6

ask other inmates to return and lift him (naked) out of the

7

shower. (Trial Tr. 594:4—7.) Plaintiff Conn and his wheelchair

8

weigh a total of 190 to 195 pounds. (Trial Tr. 596:1—4.)

9 25. Conn explained that he had to shower in his own wheelchair

10

because an unattached plastic bench was too unstable for him to

11

use and he feared it would collapse in the shower if he used it.

12

(Trial Tr. 593:13—594:4.) Using a plastic shower seat in this

13

way is “hazardous” and does not comply with ADAAG or CalDAG

14

guidelines.4 (Trial Tr. 49:6—50:11, 1136:13—17.)

15 26. During his incarceration in 2009, Plaintiff Conn personally

16

observed inmates helping other wheelchair-bound inmates get into

17

the shower several times, but never observed nurses or officers

18

assisting inmates. (Trial Tr. 596:14—24.) The County’s witness

19

on jail construction, Ron Bihner, confirmed that, on the tour he

20

took of Ward C in 2004, he saw a wheelchair-bound inmate being

21

lifted over the curb by other inmates, and observed no guard,

22

nurse, or other medical personnel assisting the inmate. (Trial

23

24

4Throughout these findings, the Court will refer to “ADAAG,”

25 “UFAS,” and “CalDAG” guidelines. ADAAG stands for the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities

26 (“ADAAG”), 28 C.F.R. Pt. 36, App. A. UFAS is an acronym for the Uniform Federal Accessibility Standards, 41 C.F.R. Pt. 101-19.6, App.

27 A. And “CalDAG” refers to the California Disabled Accessibility

Guidebook, which is an “interpretive manual” authored by Michael P.

28 Gibbens, the County’s testifying ADA expert.

12

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1

Tr. 1004:16—1005:4.)

2 27. This arrangement poses serious physical risks to all those

3

involved. (Trial Tr. 50:12—52:12, 1005:5—12.) In fact, Nurse

4

Nancy Redler, the County’s witness on medical issues, testified

5

that California regulations prohibit inmates from lifting

6

disabled inmates into the shower because it is considered a form

7

of providing medical care. (Trial Tr. 718:23—720:9.) Indeed,

8

only someone with specialized training should lift a quadriplegic

9

to use a toilet or shower. (Trial Tr. 761:25—763:6.)

10 28. Beyond the risk of physical injury posed by inmates helping

11

disabled inmates over the curb and into the shower in Ward C,

12

this arrangement creates a risk that disabled inmates may become

13

beholden to other inmates who might exploit that dependence; it

14

also undermines the independence encouraged by the ADA. (Trial

15

Tr. 248:3—249:24.)

16 29. Reasonable accommodations exist to make the Ward C shower

17

accessible for approximately $5,000 by removing the curb,

18

installing grab bars, lowering the shower controls, and

19

installing an accessible shower head and fixed shower seat.

20

(Trial Tr. 52:13—55:11.)

21 30. The Ward C toilet has an improper discontinuous grab bar; the

22

flush valve is too high; and the toilet has an inadequate

23

clearance from the wall. (Trial Tr. 597:20—598:4; Trial Ex. 4 at

24

68.) Dexterity- and mobility-impaired detainees could experience

25

difficulty using the toilet with these conditions. (Trial Tr.

26

55:12—57:19.)

27 31. The cost to bring the flush value and grab bar into ADA

28

compliance is estimated to be $200—$300. (Trial Tr. 57:1—19.)

13

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1

Although the County’s construction witness, Ron Bihner, testified

2

that moving the flush valve to install a 36-inch continuous grab

3

bar as called for by the CalDAG guidelines (Trial Ex. 138 at 274)

4

would cost $1,500 (Trial Tr. 937:3—938:13), he admitted that the

5

CalDAG guidelines nowhere permitted a discontinuous grab bar

6

(Trial Tr. 1001:3—16). The Court credits Plaintiffs’ evidence on

7

this point and finds that the cost for these modifications would

8

be in the $200 to $300 range and that they are necessary to make

9

the toilet accessible.

10 32. The side grab bar by the Ward C toilet also did not extend the

11

necessary 54 inches. (Trial Tr. 1134:7—1135:3.) However, there

12

was no evidence on the cost of installing a new 54-inch grab bar,

13

although it would probably be encompassed within the $200-$300

14

estimate for installing a flush valve and continuous grab bar.

15

b. Ward D Shower, Toilets, and Sinks

16 33. In 2004, Robertson identified multiple physical barriers in Ward

17

D. (Trial Ex. 5 at 12.) As it did with Ward C, the Ninth

18

Circuit credited those findings. Pierce, 526 F.3d at 1217—18.

19 34. Hopper confirmed that Ward D has not been modified since the

20

inspection in 2004 and that it continues to present numerous

21

separate barriers to individuals with disabilities. (Trial Tr.

22

60:3—62:14; Trial Ex. 4 at 78—80.)

23 35. For example, the shower in Ward D remains inaccessible for the

24

same reasons as the shower in Ward C: a 13-inch curb, no grab

25

bars, no fixed seat, and improper controls and shower spray.

26

(Trial Tr. 62:15—65:3.)

27 36. As with Ward C, reasonable modifications exist to make the Ward D

28

shower accessible for approximately $5,000. (Trial Tr.

14

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 15 of 82 Page ID #:4464

1

62:15—64:11.)

2 37. The toilets in Ward D have not been modified in any way to make

3

them accessible to individuals with mobility or dexterity

4

impairments: they have no grab bars; the flush valves are too

5

high; and the adjacent urinals may need to be moved. (Trial Tr.

6

64:18—65:23; Trial Ex. 4 at 76.) The cost for grab bars and

7

lowering the flush valves would be a few hundred dollars. (Trial

8

Tr. 65:24—66:2.)

9 38. Likewise, none of the sinks in Ward D have been modified to make

10

them accessible to individuals with mobility or dexterity

11

impairments: they do not provide enough leg room; the water flow

12

buttons are difficult to operate for anyone with manual dexterity

13

impairments; and the mirror is too high for someone in a

14

wheelchair to use. (Trial Tr. 66:3—67:16; Trial Ex. 4 at 74.)

15

The cost to install one fully accessible sink and faucet would be

16

roughly $1,000, assuming no major plumping alterations are

17

necessary. (Trial Tr. 67:17—68:13.)

18

c. Sheltered Living Area and Dayroom

19 39. The Sheltered Living area contains a twelve-foot-by-twelve-foot

20

dayroom where there is a phone, table, television, and shower.

21

(Trial Tr. 69:10—71:16; Trial Ex. 4 at 93—96.)

22 40. The Sheltered Living dayroom’s shower is near Wards C and D and

23

Plaintiff Conn’s cell was located across from it when he was

24

incarcerated in 2002. (Trial Tr. 625:15—626:16.)

25 41. Robertson inspected the Sheltered Living dayroom in 2004 and

26

found several barriers to accessibility, although he noted that

27

the shower has some accessible features. (Trial Tr. 71:17—72:11;

28

Trial Ex. 4 at 95; Trial Ex. 5 at 12—13.) As of the 2009

15

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1

inspection, the shower still contained improperly placed grab

2

bars and improper faucets. (Trial Tr. 72:12—24.) Those

3

shortcomings could be fixed for around $1,000. (Trial Tr.

4

74:12—76:1.)

5 42. Similarly, the toilet in the Sheltered Living dayroom contains a

6

flush valve that is too high and, as of the 2009 inspection, the

7

distance between grab bars was excessive. (Trial Tr. 76:7—77:2;

8

Trial Ex. 4 at 96.) However, after the 2009 inspection, fully

9

accessible grab bars were installed. (Trial Tr. 1002:9—1003:9.)

10

Lowering the flush valve could cost around $1,000, depending on

11

the plumbing work needed. (Trial Tr. 77:3—15.)

12 43. Consistent with its condition during both the 2004 and 2009

13

inspections, the sink in the Sheltered Living dayroom is not

14

accessible to individuals with mobility and dexterity impairments

15

because it does not have adequate knee space and the faucets are

16

not usable by individuals with dexterity impairments. (Trial Tr.

17

77:16—78:10.) The cost to replace the lavatory would be similar

18

to the cost to replace the sink in Ward D, approximately $1,000.

19

(Trial Tr. 78:7—10.)

20 44. Three of the Sheltered Living cells have been modified to make

21

them “usable” for individuals with disabilities, but they are

22

still not fully compliant with ADAAG and UFAS guidelines because

23

the grab bars are three inches too short and the sink is too low.

24

(Trial Tr. 80:7—82:1.) The cost of extending the grab bar by

25

three inches and replacing the sink is estimated to be

26

approximately $1,100. (Trial Tr. 82:2—7.)

27

28

16

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 17 of 82 Page ID #:4466
1 d. No Accommodation by Transporting Detainees to
2 Sheltered Living Shower
3 45. The existence of inaccessible showers in Ward C and D cannot be
4 remedied by transporting disabled detainees to the Sheltered
5 Living shower. As noted above, the Sheltered Living shower is
6 not fully accessible. Even if that shower is brought into
7 compliance, the evidence does not demonstrate that inmates would
8 be taken to the Sheltered Living shower as an accommodation:
9 Plaintiff Conn asked to be taken to the Sheltered Living shower
10 several times while he was housed in Ward C, but deputies only
11 took him to use that shower on one occasion during his month-long
12 incarceration. (Trial Tr. 597:20—598:4.)
13 e. Number of Accessible Cells
14 46. Given that all men with mobility and dexterity impairments in the
15 MCJ are housed in either Ward C, Ward D, or Sheltered Living,
16 three accessible cells in Sheltered Living is an insufficient
17 number to accommodate disabled detainees, according to ADAAG
18 Guidelines, which require two percent of cells of a similar type
19 to be ADA compliant. (Trial Tr. 82:8—84:22.) Indeed, a
20 wheelchair was observed in one of the non-accessible cells in
21 Sheltered Living. (Trial Tr. 82:22—25.) However, the evidence
22 is insufficient to demonstrate how many more accessible cells are
23 necessary to comply with ADAAG Guidelines (Trial Tr. 82:8—84:22),
24 so the County is ordered to provide Plaintiffs’ counsel and the
25 Court with the number of total cells in order to determine the
26 two-percent figure. This must be included in the plan which the
27 Court has ordered. See Section V, Injunctive Relief, infra.
28
17

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1

ii. Rooftop Recreation Area

2 47. The MCJ has one outdoor exercise area on the rooftop for all

3

inmates housed in that facility, which includes basketball hoops,

4

several phones, and a drinking fountain. (Trial Tr. 86:2—24.)

5 48. In the general exercise area, there is a restroom up a flight of

6

stairs. (Trial Tr. 86:2–87:13; Trial Ex. 4 at 86.)

7 49. Robertson inspected the rooftop exercise area in 2004 and

8

identified numerous barriers to accessibility, none of which had

9

been modified as of the 2009 inspection: a two-inch high concrete

10

curb near the elevator leading to the roof; inaccessible toilets

11

and sinks up a flight of stairs; a ramp leading to the main

12

exercise area that was too steep and lacked a handrail on one

13

side and lip protection on the other; and phones on the roof that

14

were not mounted at the appropriate height for someone in a

15

wheelchair. (Trial Tr. 87:14—94:20, 99:8—100:24, 102:4—104:9;

16

Trial Ex. 4 at 81, 82, 86, 87, 89; Trial Ex. 5 at 11.)

17 50. Due to security concerns, the rooftop bathroom has been closed to

18

all inmates, disabled or not. (Trial Tr. 935:14—23, 1017:4—17.)

19 51. If the bathroom is reopened, the cost of installing a lift near

20

the restroom to bypass the flight of stairs would be between

21

$25,000 and $50,000. (Trial Tr. 97:6—19.)

22 52. If a lift is installed, the cost of modifying the restroom area

23

by installing one accessible sink and faucet and one accessible

24

toilet would be around $4,000 to $5,000. (Trial Tr. 97:20—98:7.)

25 53. As an alternative to the lift, installing a new bathroom facility

26

next to the existing bathroom but at the level of the roof would

27

cost $25,000 to $50,000. (Trial Tr. 98:10—99:7.)

28 54. Allowing non-Administrative Segregation disabled detainees to use

18

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1

the accessible bathroom in the Administrative Segregation portion

2

of the roof would be impractical for administrative and security

3

reasons. (Trial Tr. 1018:15—1020:23.)

4 55. One phone on the roof would need to be lowered to 48 inches to

5

allow a front approach, which would cost $100 to $200, although

6

this modification is admittedly low priority because an inmate in

7

a wheelchair could use the phone by approaching it from the side

8

when no one else is using the surrounding phones. (Trial Tr.

9

102:18—103:20.)

10 56. The concrete curb near the elevator could be physically modified

11

to add a gradual beveled edge to allow a wheelchair to negotiate

12

the curb, while also providing the needed barrier to prevent

13

flooding in the elevator, although no evidence of cost was

14

offered. (Trial Tr. 88:5—89:23.) As an alternative to a

15

physical modification, the County could ensure that a trained

16

deputy is available to “guide a wheelchair over the curb.”

17

Pierce, 526 F.3d at 1219. As the Ninth Circuit recognized, the

18

prior record in this case demonstrated that “deputies, in fact,

19

do this, and plaintiffs are not denied access to the rooftop or

20

other locations because of these surface irregularities.”

21

Pierce, 526 F.3d at 1219.

22 57. A handrail is needed along both sides of the ramp (not just on

23

one side, as exists now) at a cost of between $1,000 and $5,000.

24

(Trial Tr. 101:19—21, 927:1—19.)

25 58. Likewise, a metal lip along the edge of the ramp is needed to

26

prevent detainees in wheelchairs from rolling off; that would

27

cost from a few hundred dollars up to $1,500. (Trial Tr.

28

101:22—102:3, 927:1—19; Trial Ex. 138 at 177.)

19

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 20 of 82 Page ID #:4469

1 59. The cost to resurface and extend the ramp to provide a more

2

gradual slope would be $8,000 to $10,000. (Trial Tr. 101:1—18.)

3 60. Unlike the curb on the roof, the County offered no evidence that

4

having a trained deputy guide wheelchair-bound detainees down the

5

existing ramp would render the ramp accessible without having to

6

make these necessary physical modifications. (Trial Tr.

7

382:16—25.)

8

D. Physical Barriers at the IRC

9

i. The “Booking Loop”

10 61. All detainees, whether male or female, are processed into the

11

jail through the “Booking Loop” at the IRC. (Trial Tr. 188:21-

12

189:17.) There are fifteen male holding cells and twelve female

13

holdings cells. (Trial Tr. 189:18-24.)

14 62. One cell on the male side of the booking loop and one cell on the

15

female side of the loop have been modified to be accessible to

16

individuals with mobility and dexterity impairments. (Trial Tr.

17

190:22—192:1, 919:25-10.)

18 63. There are twenty-four male and ten female court transfer cells

19

used to hold inmates/detainees as they are being processed to and

20

from court. (Trial Tr. 190:2—6.)

21 64. Although detainees are placed in court transfer cells when going

22

to and from court, those cells have not been modified to be made

23

accessible for individuals with mobility and dexterity

24

impairments. (Trial Tr. 192:2—9, 920:11—21.) Those cells are

25

large enough to be made accessible through the same types of

26

modifications made to the booking loop cells, at a cost of less

27

than $10,000. (Trial Tr. 920:11—24.)

28 65. The jail also has approximately ten pending release cells, none

20

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1

of which has been made accessible. (Trial Tr. 190:7—192:9.)

2 66. One each of the specialized court transfer and pending release

3

cells could be made accessible under the ADAAG Guidelines.

4

(Trial Tr. 192:10—19.) The costs of modifying one of these cells

5

is no more than several thousand dollars where some modifications

6

have already been made; where no modifications of any kind have

7

been made, the cost would be approximately $7,000 to $8,000,

8

which is consistent with the County’s previous estimates. (Trial

9

Tr. 192:10—194:3, 426:17—428:16; Trial Ex. 6 at 110 (2000 County

10

Transition Plan).)

11 67. The counters used by staff and detainees in the booking loop to

12

obtain and record information about each detainee are too high.

13

(Trial Tr. 194:7-17.) To attempt to accommodate detainees in

14

wheelchairs, nurses historically use a microphone to speak to

15

them through a sheet of plexiglass; sometimes the nurses come out

16

from behind the glass to triage the detainees. (Trial Tr.

17

739:8—741:3.) Those efforts ameliorate, but do not solve, the

18

accessibility problem of counter height.

19 68. Five percent of the counters in the booking loop could be lowered

20

to make them accessible to people with disabilities and to comply

21

with ADAAG’s requirements, at the cost of $4,000 per counter.

22

(Trial Tr. 194:18—195:22.) The evidence is insufficient,

23

however, to determine how many actual counters would need to be

24

altered, so the County is ordered to provide Plaintiffs’ counsel

25

and the Court with the number of total counters in order to

26

determine the five-percent figure. This must be included in the

27

plan which the Court has ordered. See Section V, Injunctive

28

Relief, infra.

21

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1

ii. Module K, Sectors 13 and 14

2 69. Sectors 13 and 14 of Module K in the IRC (where all women with

3

disabilities in the Orange County Jail system are currently

4

housed) have not been modified in any way to make them accessible

5

to individuals with mobility or dexterity impairments. (Peterson

6

Dep. Tr. 21:3—18; Trial Tr. 173:1—6, 177:4—7, 678:5—15, 706:1—7.)

7 70. Each of the sectors in Module K is comprised of a large dayroom

8

surrounded by two floors of cells. (Trial Tr. 173:10—175:4;

9

Trial Ex. 4 at 10.) The cells and rooms on the second floor of

10

Sectors 13 and 14 are completely inaccessible to individuals with

11

mobility and dexterity impairments, as they are reached by a

12

flight of stairs. (Trial Tr. 176:13—177:3; Trial Ex. 4 at

13

11—12.)

14 71. Modules L and M have the same configuration. (Trial Tr.

15

173:10—18.)

16 72. The dayroom serving Sectors 13 and 14 has numerous inaccessible

17

features, including phones that are mounted too high (UFAS and

18

ADAAG guidelines provide that they can only be 48 inches from the

19

floor) and tables that have fixed seats, which prohibit a person

20

in a wheelchair from being able to roll up to the table. (Trial

21

Tr. 175:2—176:3.) Lowering one phone would cost approximately

22

$100 and the tables can be modified simply by removing one of the

23

fixed seats. (Trial Tr. 175:2—176:12.)

24 73. The female inmates housed in Sectors 13 and 14 have access to a

25

shower in the dayroom, which is a free-standing prefabricated

26

shower in a metal stall. (Trial Tr. 178:12—179:5; Trial Ex. 4 at

27

21 (showing substantially similar shower in Module M).) The

28

shower has multiple features rendering it inaccessible, such as a

22

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1

narrow 34-inch access and the absence of grab bars, accessible

2

controls, or modified shower spray. (Trial Tr. 178:12—179:18,

3

1135:4—1136:17; Trial Ex. 4 at 21.)

4 74. The County could entirely replace the inaccessible pre-fab shower

5

in the dayroom with an accessible model, which has a larger

6

entry, grab bars, accessible controls, and a built-in showerhead,

7

at a cost of approximately $10,000 for materials and

8

approximately $1,000 for installation if the plumbing “lined up,”

9

or up to a maximum of $10,000 for installation if plumbing

10

alterations are necessary. (Trial Tr. 179:19—180:21.)

11 75. Alternative permissible alterations include adding a fold-down

12

seat, grab bars, a removable hand spray shower head, and controls

13

that do not require too much force, and using an ADA-approved

14

shower unit with the proper height. (Trial Tr. 889:19—25.)

15

Assuming that the shower stall does not need to be enlarged and a

16

curb does not need to be removed, the approximate cost of such

17

modifications would be $4,000 to $5,000. (Trial Tr. 890:1—22.)

18 76. The dayroom is also equipped with a free-standing toilet and

19

stall, but it, too, is inaccessible for individuals with

20

disabilities because the clearance is too narrow (34 inches) and

21

the toilet/sink combination is too small. (Trial Tr.

22

180:22—181:13; Trial Ex. 4 at 20 (showing substantially similar

23

toilet in Module M).)

24 77. It could be replaced with an accessible model and privacy

25

partition for a cost of $15,000. (Trial Tr. 180:22-183:3.)

26 78. Neither guards nor inmates assist wheelchair-bound female inmates

27

in physically using the shower or toilet facilities in Module K.

28

(Trial Tr. 649:12—16.) The only nurse on duty in Sectors 13 and

23

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1

14 also does not — and cannot — assist disabled detainees and

2

inmates with personal care, such as transferring into and out of

3

the shower and on and off the toilet. (Trial Tr. 706:25—708:2,

4

718:23—719:24.)

5 79. The only accommodation offered to disabled female detainees in

6

Module K for the shower and toilet is to make available to them a

7

single plastic shower chair (which is a piece of equipment

8

similar to or shaped like a walker but featuring a seat in

9

between two handles), and two plastic toilet seats to be moved

10

between the cells by the guards. (Trial Tr. 648:23—649:11,

11

678:16—679:12.) Those measures are not acceptable accommodations

12

because they pose a hazard; rather, a “built-in, solid structural

13

apparatus” is necessary to use the toilet safely and a fixed seat

14

is required to transfer properly into and out of the shower.

15

(Trial Tr. 162:17—164:20, 1129:3—1131:18.)

16 80. If a disabled detainee or inmate is unable to transfer into the

17

shower chair without assistance from a deputy, a deputy escorts

18

the inmate to the WCJ, a distance of 900 yards. (Trial Tr.

19

648:23—649:11, 682:24—683:2.)

20 81. The only visitor area available to inmates in Module K is up a

21

flight of stairs and completely inaccessible to individuals with

22

mobility impairments. (Trial Tr. 922:7—11.) As with using the

23

accessible showers, individuals with mobility impairments must be

24

escorted 900 yards to the WCJ to have any of their visits.

25

(Trial Tr. 667:24—669:8, 682:24—683:6.)

26 82. No cells in Module K have been made accessible, although all of

27

the County’s disabled female detainees are housed there. (Trial

28

Tr. 886:9—13.)

24

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 25 of 82 Page ID #:4474

1 83. Making a cell accessible in Module K would cost approximately

2

$5,500, the same cost for modifying cells in Module L that

3

already have been renovated by the County (discussed below).

4

(Trial Tr. 885:1—886:8.)

5 84. Moreover, consistent with the ADAAG requirement that two percent

6

of all common-use cells be accessible, approximately ten cells

7

would have to be made accessible in Module K, given the overall

8

population of female detainees and the fact that all disabled

9

female detainees are housed in this area. (Trial Tr.

10

177:24—178:11.)

11

iii. Exercise Area

12 85. The only exercise area for female detainees with disabilities in

13

the entire Orange County jail system is a room located adjacent

14

to Sector K in the IRC, equipped with a single basketball hoop

15

and several chairs. (Trial Tr. 184:10—185:18; Trial Ex. 4 at 19

16

(showing recreation area in substantially similar Module M).)

17 86. The toilet and sink in the recreation area are not accessible:

18

the toilet does not have sufficient room for transfer; there are

19

no grab bars; the flush valve is too high; and the sink has a

20

front piece that descends too far to allow a wheelchair user to

21

approach it properly. (Trial Tr. 185:18-186:6.) Modifications

22

would cost in the range of $7,000 to $8,000 because a concrete

23

wall would have to be moved. (Trial Tr. 186:7—17.)

24

iv. Module L

25 87. The IRC also has a specialized unit called Module L that provides

26

around-the-clock mental health services to mentally ill male

27

inmates. (Trial Tr. 186:18—187:7.) Because dexterity- and

28

mobility-impaired detainees may also use this area, it must be

25

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1

made accessible.

2 88. Module L in the IRC has one accessible cell out of twenty-four,

3

which was modified in 2004 to comply with the ADA. (Peterson

4

Dep. Tr. 21:19—23:14.)

5 89. In November 2004, the County installed grab bars and an “ADA

6

compliant toilet/sink combination” in one cell in Module L at a

7

cost of just under $5,500 (including installation and plumbing).

8

(Trial Tr. 882:7—884:17; Trial Ex. 134.)

9 90. The dayroom area’s shower, bathroom, phone, and tables, the

10

recreation area’s toilet and sink, and the visiting area on the

11

second floor are identical to those in Module K and are

12

inaccessible in the same ways as those areas in Module K. (Trial

13

Tr. 187:8—188:7.) The costs to modify these areas would be the

14

same as the costs to modify the same areas in Module K. (Trial

15

Tr. 188:3—20.)

16 91. The evidence does not demonstrate that an ADA-compliant toilet-

17

sink combination unit in a cell poses a suicide or hanging threat

18

to mentally ill inmates in Module L; one such unit was installed

19

there in November 2004 at the County’s direction. (Trial Tr.

20

884:21—25.)

21

E. Physical Barriers at the WCJ

22 92. The County is not currently housing any female detainees or

23

inmates in the WCJ, but disabled female detainees use a portion

24

of the WCJ and it could be reopened to house disabled female

25

detainees. (Trial Tr. 157:13—158:22.)

26 93. In his 2004 inspection, Robertson noted barriers to accessibility

27

in the two areas where women with disabilities were then being

28

housed: the Infirmary and the Sheltered Living area. (Trial Tr.

26

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 27 of 82 Page ID #:4476

1

158:25-159:22; Trial Ex. 5 at 8.) None of those barriers had

2

been corrected as of the 2009 inspection. (Trial Tr. 159:20-

3

162:23; Trial Ex. 4 at 135.)

4 94. In the Infirmary dayroom, the toilet/sink combination unit and

5

the hot water dispenser are inaccessible and impossible for a

6

person with a disability to use. (Trial Tr. 159:23—162:16,

7

996:6—12, 1001:17—1002:8; Trial Ex. 4 at 135.) There is no

8

evidence that the room is too small to accommodate an accessible

9

toilet and sink.

10 95. When housed in that area, female detainees with disabilities were

11

required to summon a deputy to ask to be unlocked from and taken

12

out of the dayroom and moved back to their locked cell in order

13

to use a toilet, and thereafter to be returned through the same

14

set of locked doors to complete their time in the dayroom. Non-

15

disabled detainees and inmates could use the toilet in the

16

dayroom without assistance. (Trial Tr. 996:13—998:2.)

17 96. There is an accessible toilet inside a cell three feet away from

18

the toilet in the dayroom. (Trial Tr. 962:21—963:7.) However,

19

the cell presumably would house one or two disabled inmates, so

20

that toilet could not be used at any time by any wheelchair-bound

21

detainee housed elsewhere and using the dayroom. (Trial Tr.

22

963:1—7.)

23 97. The toilet and sink area in the Infirmary dayroom could be

24

modified to be made accessible through installation of an

25

accessible toilet/sink unit, similar to modifications at the MCJ,

26

but this alteration would also require removal of a concrete

27

barrier at additional expense. (Trial Tr. 161:25—162:16.)

28 98. The shower in the Infirmary — referred to as the “handicap

27

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 28 of 82 Page ID #:4477

1

shower” — is still being used by disabled female detaineees who

2

are not able to use the plastic shower stool in Module K at the

3

IRC. (Trial Tr. 167:4—24; Trial Ex. 4 at 143.)

4 99. This shower is not fully accessible because the door is only 26

5

and 1/2 inches wide; the mirror and shower spray are mounted too

6

high; and the grab bar is not properly placed. (Trial Tr.

7

167:4—169:13; Trial Ex. 4 at 143.)

8 100. Particularly, the width of the door is improper. Although it

9

might permit entry for a small wheelchair (20 inches), larger

10

wheelchairs would not fit. ADAAG and UFAS Guidelines require an

11

opening of at least 32 inches to accommodate different-sized

12

wheelchairs. (Trial Tr. 170:9—171:2.) If an inmate can access

13

the shower, however, the shower spray has an accessible hose

14

attachment. (Trial Tr. 960:3—961:4.)

15 101. The Infirmary shower could be made fully accessible for as little

16

as $10,000 ($5,000 for modifying grab bars and shower controls

17

and a few thousand dollars to widen the doorway), but could cost

18

as much as $25,000 if significant alterations to the doorway were

19

necessary. (Trial Tr. 169:14—170:8.)

20 102. The shower in the Sheltered Living area has a curb, has no

21

interior seat, and has improperly installed grab bars and

22

improper controls, all of which pose safety hazards to

23

individuals with disabilities. (Trial Tr. 164:21—166:20; Trial

24

Ex. 4 at 136.)

25 103. When notified that a mirror in the Sheltered Living shower was

26

too high, jail personnel removed the mirror instead of lowering

27

it, even though lowering it would not have taken much time or

28

expense. (Trial Tr. 995:7—996:5.)

28

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 29 of 82 Page ID #:4478

1 104. The rooftop exercise area of the WCJ has restroom facilities that

2

are inaccessible to disabled detainees and the phones are mounted

3

too high for use by those with certain mobility impairments.

4

(Trial Tr. 171:3—172:5, 991:25—994:24.) Unlike the facilities on

5

the rooftop of the MCJ, the restrooms are not located up a flight

6

of stairs. (Trial Tr. 171:18—22.) An accessible sink could be

7

installed; an outdoor toilet could be installed; and a phone

8

could be lowered to be accessible. (Trial Tr. 991:25—994:24.)

9

The cost of altering the existing bathroom to permit entry for a

10

wheelchair and modifying the toilet would be around $14,000;

11

alternatively, installing a compliant lavatory outside the

12

bathroom would cost $1,000. (Trial Tr. 172:8—22.)

13 105. Absent these modifications, during a typical one-hour period of

14

rooftop recreation, officers would escort disabled detainees to

15

their housing location to use the restroom because the rooftop

16

facilities are not accessible. (Trial Tr. 1021:19—1022:5.)

17

F. Physical Barriers at Theo Lacy

18

i. Module O

19 106. Module O at Theo Lacy was built in 2001 to be the modern

20

infirmary for the jail. (Trial Tr. 720:15, 730:21—25,

21

903:21—904:8.) It is considered a “new” facility under ADA

22

regulations, so it must be “readily accessible to and usable by

23

individuals with disabilities.” See 28 C.F.R. § 35.151(a).

24

(Docket No. 731 at 16.)

25 107. As one of the six sectors that comprise Module O, Sector 37

26

contains an open ward with attached shower and restroom

27

facilities, as well as some specialized individual cells. (Trial

28

Tr. 114:21—116:22, 120:5—121:11; Trial Ex. 4 at 41.)

29

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 30 of 82 Page ID #:4479

1 108. Sector 37 has outlets for oxygen, as well as electrical outlets

2

by the beds for medical-assistive devices, and some of the beds

3

are hospital-style beds with rails. (Trial Tr. 465:8—14,

4

731:1—6.)

5 109. Sector 37 contains the only negative pressure cells in the entire

6

Orange County Jail system for the housing of individuals with

7

infectious diseases. (Trial Tr. 466:5—11.)

8 110. The remaining sectors in Module O do not have an open bed ward:

9

they house inmates in one- or two-person cells that face out to a

10

dayroom that contains a shower and a toilet. Each cell has a

11

toilet and sink. (Trial Tr. 114:21—116:22, 120:5—121:11; Trial

12

Ex. 4 at 41.)

13 111. Module O at Theo Lacy houses mobility- and dexterity-impaired

14

inmates and detainees who must use canes, walkers, and crutches,

15

and those who have prosthetic arms or legs. (Trial Tr.

16

460:13—461:2, 720:25—721:13, 723:1-4; Trial Ex. 36 (Jail Policy

17

Number 125.01).)

18 112. So long as inmates or detainees with these conditions can walk,

19

can go to the treatment room to see a nurse, and can feed and

20

take care of themselves, they may be housed in Module O of Theo

21

Lacy. (Trial Tr. 723:14—25.) Individuals in wheelchairs — even

22

those fit enough to complete a marathon in a wheelchair — may not

23

be housed at Theo Lacy because they cannot walk. (Trial Tr.

24

723:14—724:18; Trial Ex. 36.)

25 113. Individuals housed in Sector 37 have access to only one shower,

26

which has no accessible features, such as a fold-down seat, grab

27

bar, modified controls, and properly located shower head or

28

shower hose, which poses a hazard for someone with a disability.

30

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 31 of 82 Page ID #:4480

1

(Trial Tr. 116:23—119:14, 904:22—905:25; Trial Ex. 4 at 42—43.)

2

The estimated cost of making the shower accessible through

3

installation of the proper seat, grab bars, controls, and shower

4

head is $3,000 to $4,000. (Trial Tr. 119:15—20.)

5 114. The phones in the dayroom are too high and the tables have not

6

been made accessible. (Trial Ex. 4 at 41.)

7 115. None of the cells in Sector 41 (one of five identical sectors in

8

Module O in addition to Sector 37) have been modified, although

9

disabled detainees and inmates are housed there. (Trial Tr.

10

122:23—123:15; Trial Ex. 4 at 40.)

11 116. The shower in the dayroom in Sector 41 has not been modified to

12

be accessible to individuals with disabilities: it has a curb, no

13

grab bars, and no fold-down seat. (Trial Tr. 121:2—122:9; Trial

14

Ex. 4 at 37-38.) The estimated cost of making the shower

15

accessible is estimated to be approximately $3,000 to $5,000.

16

(Trial Tr. 122:10—22.)

17 117. Two percent of the cells in the five identical sectors in Module

18

O could be made accessible, with modified toilet, sink, and

19

shower facilities. (Trial Tr. 123:16—125:5.) The evidence is

20

insufficient to determine what the exact number should be (Trial

21

Tr. 124:5—125:5), so the County is ordered to provide Plaintiffs’

22

counsel and the Court with the number of total cells in order to

23

determine the two-percent figure. This must be included in the

24

plan which the Court has ordered. See Section V, Injunctive

25

Relief, infra.

26 118. The evidence does not demonstrate that accessible grab bars pose

27

a suicide risk sufficient to justify not installing them in

28

Module O of Theo Lacy. (Trial Tr. 905:22—25.)

31

Case 8:01-cv-00981-ABC -MLG Document 752 Filed 01/07/11 Page 32 of 82 Page ID #:4481

1 119. Nor does the evidence demonstrate that a 36-inch wide doorway

2

poses a security risk that would excuse any modifications to

3

widen doorways in Module O of Theo Lacy. (Trial Tr.

4

910:3—911:1.)

5

ii. Barracks Housing

6 120. The Barracks-style housing at Theo Lacy, namely Dorms A through D

7

and Barracks F, G, and H, houses low-security inmates and some

8

low-security pretrial detainees. (Trial Tr. 492:8—22.) Those

9

facilities have not been modified to be accessible to individuals

10

with mobility and dexterity impairments. (Trial Tr.

11

153:12—156:19.)

12 121. The showers and toilets in the Theo Lacy barracks can be modified

13

to be made accessible. (Trial Tr. 912:17—914:9.) The total

14

expense to modify one of the barracks by installing a fold-down

15

seat, grab bars, and an ADA-approved shower unit with proper

16

controls and a proper shower head, was estimated by the County’s

17

expert at $4,000 to $5,000; Plaintiffs’ expert estimated it to

18

cost no more than $9,000 to $10,000. (Trial Tr. 153:12—155:4.)

19 122. However, Plaintiffs seek these modifications in order to compel

20

the County to house low-security disabled detainees with low-

21

security non-disabled detainees and inmates in the barracks.

22

This is a form of mainstreaming that the Court has rejected as

23

foreclosed by the Ninth Circuit’s decision. (Docket No. 731 at

24

11—12.)

25

G. Physical Barriers at Musick

26 123. Inmates assigned to the James Musick facility are all “low level,

27

low security inmates, sentenced and unsentenced.” (Peterson Dep.

28

Tr. 40:20—25.) They have been further screened to ensure that

32

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1

they pose a low escape risk, that they have a low bail posted,

2

and that they are not facing or sentenced on any violent charges.

3

(Peterson Dep. Tr. 40:18—45:20.)

4 124. Mobility- and dexterity-impaired detainees are not housed at

5

Musick primarily because there is no 24-hour medical care at that

6

facility. (Peterson Dep. Tr. 46:12—48:4.) All disabled

7

detainees are therefore excluded, regardless of a detainee’s

8

actual health or condition. (Trial Tr. 733:1—737:23.) Although

9

there is no 24-hour medical staff, a nurse is on duty at Musick

10

from 5:30 a.m. until 10:00 or 11:00 p.m. (Trial Tr. 755:19—24.)

11

i. North, South, East, and West Compounds

12 125. Musick is comprised of four housing compounds called North,

13

South, East, and West. (Trial Tr. 197:9-11, 503:11—21.) None of

14

these housing areas at Musick has been modified to be accessible

15

to disabled detainees. (Trial Tr. 914:10—13.)

16 126. The South Compound houses 30 to 40 female inmates in each of

17

three large dormitory rooms. Each room is equipped with an open

18

and large dayroom area, shower, toilet, and sink area. The back

19

door of the compound is equipped with a ramp leading down to a

20

large grassy area with picnic tables and some areas for sports.

21

(Trial Tr. 197:12—24.)

22 127. Given that an accessible ramp already exists, the South Compound

23

could be made accessible through construction of an ADA-compliant

24

toilet, sink, and shower, which would cost around $5,000 for the

25

toilet and sink by the County’s expert’s estimate, and a total of

26

$18,000 to $19,000 for the toilet, sink, and shower, by

27

Plaintiffs’ expert’s estimate. (Trial Tr. 915:13—917:9,

28

209:21—214:4; Trial Ex. 4 at 104, 107, 111, 112.)

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1 128. Immediately adjacent to the South compound is a large classroom

2

building used for classes; when Plaintiffs’ expert was touring

3

the facility in 2009, a sewing class was in progress. (Trial Tr.

4

197:21—198:4.)

5 129. The North compound is made up of Quonset hut structures

6

configured around an open area with trees, grass, sports

7

equipment, and phones, and restrooms with showers in adjacent,

8

but separate, structures. Each houses 30 to 40 male inmates.

9

(Trial Tr. 198:5—20.)

10 130. The separate restroom building in the North Compound is a

11

trailer-type units separate from the housing units; it is made of

12

wood and could be retrofitted for plumbing more easily than a

13

concrete and steel structure. (Trial Tr. 198:19—20, 540:9—15.)

14 131. The West Compound houses additional male inmates and is comprised

15

of four structures built around a center grass- and tree-filled

16

courtyard. (Trial Tr. 198:21—199:1.)

17 132. The East Compound, which was undergoing substantial

18

reconstruction during the 2009 inspection, is comprised of two

19

large dorm rooms and also houses male inmates. The

20

reconstruction included restrooms, toilets, showers, bunk areas,

21

and bookcases for each inmate. (Trial Tr. 199:4-199:12.)

22 133. The showers, sinks, and toilets in the East Compound could be

23

modified in ways similar to other restroom facilities at a total

24

expense of $11,000 to $15,000. (Trial Tr. 214:4-217:14; Trial

25

Ex. 4 at 124, 128—30.)

26

ii. Overall Layout and Accessibility

27 134. Many buildings at Musick are equipped with ramps, and ramps could

28

be installed in other buildings to make them accessible. (Trial

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1

Tr. 914:14—25.)

2 135. For example, the building at Musick where many of the shop

3

classes are held has a ramp and is otherwise accessible. (Trial

4

Tr. 917:10-23.)

5 136. Similarly, the visitor center at Musick, where classes are given

6

and contact visitation occurs, is already fully accessible as a

7

result of the construction of a recent ramp. (Trial Tr.

8

217:22—218:23, 915:1—3.)

9 137. A ramp was also being added to the medical unit at Musick to make

10

it accessible to individuals in wheelchairs. (Trial Tr.

11

919:7—24.)

12 138. Thus, the overall layout of many of the areas at Musick could

13

allow detainees with mobility and dexterity impairments to move

14

freely, given the existing ramps and the modest grade changes

15

between buildings. (Trial Tr. 988:16—991:24; Trial Ex. 4 at

16

113—115.)

17 139. To the extent Plaintiffs offer this evidence to show that the

18

County could house low-security disabled detainees with low-

19

security non-disabled detainees and inmates at Musick, Plaintiffs

20

seek a form of mainstreaming that the Court has rejected as

21

foreclosed by the Ninth Circuit’s decision. (Docket No. 731 at

22

11—12.) However, as discussed below, this evidence is relevant

23

to determining whether disabled detainees could be brought to

24

Musick to take advantage of programs, services, and activities

25

offered only at that facility.

26

H. Programs, Services, and Activities

27 140. Each jail facility offers a number of programs, services, and

28

activities. The Court must determine whether “[a]ny type of

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1

educational, vocational, rehabilitative, or recreational program,

2

service, or activity offered to nondisabled detainees . . . when

3

viewed in its entirety, [is] similarly available to disabled

4

detainees who, with or without reasonable accommodations, meet

5

the essential eligibility requirements to participate.” Pierce,

6

526 F.3d at 1222.

7

i. Programs, Services, and Activities at Musick

8 141. As determined above, Musick houses no detainees with mobility and

9

dexterity impairments, so disabled detainees are automatically

10

excluded from any programs, services, and activities offered only

11

at Musick.

12 142. There is a fully accessible programming building adjacent to the

13

South Compound where inmates can take classes, including sewing

14

classes. (Trial Tr. 203:2—9, 207:7—22; Trial Ex. 4 at 115.)

15 143. Indeed, sewing classes are only offered at Musick. (Trial Tr.

16

563:18—23; Exh. 156 (amended).)

17 144. There are also three buildings (referred to as “portable”

18

classrooms) that are used to provide some of the educational

19

class offerings at Musick. One of them is equipped with a ramp

20

to make it generally accessible to disabled persons (and the

21

addition of a handrail at the cost of several hundred dollars

22

would make it fully accessible). (Trial Tr. 205:2—207:6; Trial

23

Ex. 4 at 103.)

24 145. Vocational classes are also offered in another building near the

25

North Compound at Musick, including woodworking, painting, and

26

veneering. This “shop” building is fully accessible in its

27

current state. (Trial Tr. 207:24—209:18; Trial Ex. 4 at 126.)

28 146. Food Service, a popular vocational class preparing inmates to

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1

work in the restaurant business, is offered at Musick. (Trial

2

Tr. 562:25—563:10.)

3 147. Stained-glass making, a rehabilitative program, is offered at

4

Musick. (Trial Tr. 563:24—564:21.)

5 148. Other construction vocational classes are offered only at Musick,

6

including cabinetry and welding. (Trial Tr. 564:22—565:14.)

7 149. In addition, the following classes are offered only at Musick:

8

job development, job preparation, and Mothers of Preschoolers,

9

Pastoral Counseling (Trial Ex. 156 (amended)), and an empowerment

10

class (although it is not an ongoing class) (Trial Tr. 802:3—25).

11 150. In addition to classes and programs, Musick provides inmates with

12

numerous facilities for outdoor exercise and recreation,

13

including a baseball field used by inmates without the presence

14

or supervision of guards, volleyball courts, basketball courts,

15

picnic areas, banks of phones, and horseshoe pits. (Trial Tr.

16

199:13—200:6, 201:3—203:19; Trial Ex. 4 at 100, 101, 102, 113,

17

114.)

18 151. All of the outside areas at Musick are accessible to inmates and

19

detainees with mobility or dexterity impairments if such

20

individuals were permitted to use them. (Trial Tr.

21

203:20—205:1.)

22 152. Likewise, Musick is the only facility within the Orange County

23

jails that allows contact visiting with family members. (Trial

24

Tr. 474:18—21.)

25

ii. Programs, Services, and Activities at Theo Lacy

26 153. At Theo Lacy, a classroom facility referred to as the Inmate

27

Programming Building contains a library with books, a chapel, a

28

visiting area, and several large classrooms, one of which is

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1

equipped with 24 computers. The facility is fully accessible to

2

individuals with disabilities, including one accessible bathroom.

3

(Trial Tr. 127:6—130:6, 138:6—15, 468:10—469:11; Trial Ex. 4 at

4

33, 44.) Moving individuals between Module O at Theo Lacy and

5

the Inmate Programming Building would merely require some

6

additional personnel. (Trial Tr. 469:17—470:3.)

7 154. The Inmate Programming Building offers numerous classes to

8

inmates every day of the week, such as ESL, substance abuse, food

9

service classes, software application classes, GED instruction,

10

adult basic education, and others. (Trial Tr. 572:3—573:10;

11

Trial Ex. 45 at 20—27.)

12 155. Inmates and detainees with mobility and dexterity impairments

13

housed at Theo Lacy are not allowed to use the Inmate Programming

14

Building. (Trial Tr. 129:15—19, 468:20—22.)

15 156. The disabled inmates housed in Module O at Theo Lacy are offered

16

only religious services – Catholic services on one day, Bible

17

study the next, Protestant services another day. On Mondays,

18

Fridays, and Saturdays, no classes are offered. (Trial Ex. 45 at

19

20-27.)

20 157. Moreover, the main classroom in Module O at Theo Lacy is only big

21

enough to accommodate six to ten people and has no desks,

22

computers, or other equipment. The only other room available for

23

classroom use in Module O is a 100-square-foot office without any

24

books, computers, teaching materials, or desks. (Trial Tr.

25

125:6—126:14, 569:21—572:2; Trial Ex. 4 at 48.)

26 158. According to the County’s expert, as a reasonable alternative to

27

modifying the small classrooms in Module O at Theo Lacy, the

28

County could simply allow inmates and detainees from that

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1

facility to use the fully accessible and adjacent Inmate

2

Programming Building. (Trial Tr. 1143:12-1144:5.) There is no

3

evidence that this accommodation would impose undue financial or

4

administrative burdens on the County. (Trial Tr. 864:23—865:3.)

5 159. Similarly, disabled inmates and detainees have no access to

6

rehabilitation programs offered to non-disabled inmates. For

7

example, the New Start Program for drug rehabilitation is only

8

offered to inmates housed in Barracks A through H of Theo Lacy

9

and therefore is entirely off limits to disabled detainees

10

because they are barred from the Barracks units. (Trial Tr.

11

460:13—461:2, 475:8—476:4, 720:25—721:13, 723:1-4.)

12 160. Minimum security inmates at Theo Lacy can participate in work

13

assignments, such as kitchen crews, module workers who deliver

14

food, landscaping crews, paint crews, and recreation program

15

workers who assist in the library. (Trial Tr. 476:9—477:10.)

16 161. However, those work assignments are limited to sentenced inmates,

17

not pretrial detainees. Because the class is limited to disabled

18

pretrial detainees, class members would not be eligible for these

19

assignments. (Trial Tr. 489:5—490:20.)

20 162. In addition to programs and services, non-disabled detainees and

21

inmates at Theo Lacy are also allowed to exercise in an area

22

referred to as the “Green Sector,” which includes a running

23

track, horseshoe toss area, volleyball court, baseball field with

24

backstop and bleachers, and large green fields. (Trial Tr.

25

111:7—112:21; Trial Ex. 4 at 22.)

26 163. Non-disabled low-security detainees and inmates housed in the

27

Barracks area (Barracks A-D) of Theo Lacy are also regularly

28

allowed to use grassy outdoor areas equipped with picnic tables

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1

because such areas are immediately outside their dayroom and dorm

2

area. (Trial Tr. 113:11—114:20, 480:4—16, 481:22—25.)

3 164. Disabled detainees and inmates housed in Module O currently are

4

not allowed to use the Green Sector. (Trial Tr. 111:7—112:21,

5

470:4—471:2; Trial Ex. 4 at 22.)

6 165. For detainees in Module O, the only exercise area currently

7

available is an approximately 35-foot-by-60-foot interior

8

blacktop area with a basketball hoop, which does not allow for

9

most of the sports activities available to non-disabled detainees

10

in the Green Sector. (Trial Tr. 472:10-473:23, 771:18—772:1;

11

Trial Ex. 4 at 36.)

12 166. There is no physical barrier preventing inmates in Module O from

13

using the Green Sector for outdoor exercise if the jail provided

14

additional personnel to escort them there. (Trial Tr. 471:3—9.)

15 167. According to the County’s expert, then, the County could permit

16

Module O inmates to use the Green Sector field at Theo Lacy as a

17

reasonable accommodation to offset the inferior exercise area in

18

Module O. (Trial Tr. 1144:6—14.)

19

iii. Programs, Services, and Activities at the MCJ

20 168. Inmates in Ward C and Ward D at the MCJ are confined to those

21

wards and have access only to a small dayroom, which has no

22

windows or natural light. There is no attached outdoor

23

recreation area they can use. (Trial Tr. 57:20—58:22, 68:14—19.)

24 169. Sheltered Living detainees and inmates are locked in their

25

individual cells except for a few hours each day when they are

26

moved to the 12-foot-by-12-foot dayroom, where there is a phone,

27

table, television, and shower. (Trial Tr. 69:10—71:16; Trial Ex.

28

4 at 93—96.)

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1 170. Hopper testified that Ward C, Ward D, and Sheltered Living

2

together are the “grimmest and most dismal” of all of the jail

3

facilities because the quarters are tight, it is dirty, there is

4

little natural light, and there are few available activities,

5

such as books and other materials. (Trial Tr. 84:22—86:1.)

6 171. The dayroom in the Sheltered Living area in Module O is the

7

smallest dayroom in the entire jail system that Hopper inspected

8

in 2009. It has no recreational or educational materials in it,

9

such as games, cards, or books, and has only a television, table,

10

and newspaper. (Trial Tr. 84:23—86:1, 842:18—843:16.)

11 172. Other than the basketball hoop, no specialized equipment is

12

provided in any of the jail’s recreation areas to allow

13

individuals with mobility impairments to get upper body exercise.

14

Hopper testified that other correctional facilities have provided

15

alternative equipment to provide individuals with disabilities

16

with access to recreation. (Trial Tr. 105:14—107:15.)

17 173. Plaintiff Timothy Conn testified that he was never offered

18

outdoor recreation while in Ward C in 2009, was never permitted

19

to go outside, and did not observe anyone with a mobility or

20

dexterity impairment being called by deputies for roof

21

recreation. (Trial Tr. 600:6—601:10.)

22 174. During his incarceration in 2009, Plaintiff Conn was not given

23

the opportunity to go to chapel or religious services. (Trial

24

Tr. 601:11—13.)

25 175. Although he was aware that there were classes, programs, and

26

services provided at the MCJ, Plaintiff Conn did not ask for and

27

was not offered any classes or programs while in Ward C in 2009.

28

(Trial Tr. 607:2—5, 617:11—18.) He could have requested them via

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1

the jail’s message slip system, but did not. (Trial Tr.

2

617:19—618:23.) He also did not ask and was not given the

3

opportunity to attend any classes or programs outside Ward C.

4

(Trial Tr. 619:5—14, 634:5—7.)

5

iv. Programs, Services, and Activities at the IRC

6 176. The classes currently being offered in Module K of the IRC (where

7

women with disabilities are housed) are more limited than those

8

offered at Musick to the non-disabled female population. (Trial

9

Tr. 580:3—582:11.)

10 177. Disabled inmates in Module K are not offered GED classes,

11

Government, ESL, positive parenting, workforce preparation, food

12

service, health classes, MOPS (Mothers of Pre Schoolers),

13

stained-glass making, or sewing classes. (Trial Tr.

14

580:3—582:11.)

15 178. Moreover, the educational and rehabilitative classes that are

16

offered in Module K are offered in classrooms up a flight of

17

stairs and are entirely inaccessible to detainees and inmates

18

with mobility impairments. (Trial Tr. 686:8—11.)

19 179. If a disabled detainee wants to take such a class, she can

20

request that it be provided to her in an open area, not equipped

21

with desks or computers, directly in front of the guard station,

22

or in the chapel, in front of the housing guard. (Trial Tr.

23

686:12—19.)

24 180. Melodie Bloom, former deputy at the WCJ and current deputy at the

25

IRC, testified that she had only seen a class provided outside

26

the guard station once for a several-week period, to one inmate

27

who was taking the class by herself. (Trial Tr. 644:20—645:12,

28

687:19—688:4.)

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1 181. Indeed, inmates and detainees would not want to have guards

2

nearby when they take certain classes, such as narcotics

3

anonymous, AIDS education, domestic violence, and substance

4

abuse, so a disabled female detainee in Sector K probably would

5

not submit a request to take those classes. (Trial Tr.

6

766:18—767:11, 863:6—25.)

7 182. The chapel room servicing Module K in the IRC is on the same

8

floor at the housing cells and could be used a classroom for

9

mobility-impaired inmates. (Trial Tr. 764:22—766:17,

10

850:6—853:14.)

11

v. Comparison of Classes and Programs Offered at Various

12

Facilities

13 183. The County attempted at trial to demonstrate some parity among

14

the classes and programs offered at the IRC/MCJ, Musick, and Theo

15

Lacy. (Second Amended Trial Ex. 156.)

16 184. Exhibit 156 shows some differences among programs offered at

17

different facilities, but it does not set forth differences

18

between classes and programs offered at Musick as compared to

19

Module K of the IRC. (Trial Tr. 853:23—854:5.)

20 185. The County stipulated that Exhibit 156 also does not show the

21

difference between the classes and programs offered at Musick as

22

compared to those offered at Module O at Theo Lacy. (Trial Tr.

23

853:15—22.)

24 186. According to Exhibit 156, sixteen classes were offered at the MCJ

25

and/or the IRC, but not at Musick, and ten classes were offered

26

at the MCJ and/or the IRC, but not at Theo Lacy. On the other

27

hand, only one class was offered at Theo Lacy, but not at the MCJ

28

or the IRC, and seven classes were offered at Musick (including

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1

“shop” classes like cabinetry, welding, and stained-glass

2

making), but not at the MCJ or the IRC. (Trial Tr.

3

821:4—835:22.)

4 187. A motivational-type class for female inmates called “Empowerment”

5

was also offered at Musick, but not at the IRC, and, for one

6

class, it involved a guest speaker in a wheelchair talking to

7

inmates. (Trial Tr. 802:3—25.)

8 188. A class called “Job Preparation” for female detainees and inmates

9

was offered at Musick, but not the IRC, because it was a “pilot”

10

program being tested at one facility to see how it would be

11

received. (Trial Tr. 803:6—21.)

12 189. While “Job Development” was offered at Musick, but not at the IRC

13

and the MCJ, it was similar to “Career Planning” offered at the

14

IRC/MCJ. (Trial Tr. 799:3—25.)

15 190. Importantly, none of the “shop”-type classes offered at Musick,

16

such as cabinetry, sewing, stained-glass making, and welding,

17

were offered at the IRC or the MCJ. (Seconded Amended Trial Ex.

18

156.) Plaintiff Conn testified that he would not be able to take

19

the welding or cabinetry classes due to his dexterity

20

impairments, but other class members with mobility impairments

21

may be able to. (Trial Tr. 633:3—13.)

22 191. While there was some evidence that offering machinery-intense

23

classes like welding and cabinetry at the IRC or the MCJ would be

24

prohibitively expensive, the County failed to demonstrate why

25

less costly or less machinery-intensive vocational classes, such

26

as drafting, computer-assisted drawing, electrical wiring, or

27

plumbing, could not be introduced at the IRC or the MCJ. (Trial

28

Tr. 846:14—847:22.)

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1 192. The sewing class is only offered at Musick because it uses an

2

entire large classroom filled with sewing machines and large

3

tables used for cutting large sheets of material. (Trial Tr.

4

807:5—13.) The County admitted that it would be possible to move

5

all of the machinery to the IRC, although it would take up an

6

entire classroom. (Trial Tr. 807:18—808:8.) If fewer than all

7

machines were moved, there would be little problem with using

8

some sewing machines for a sewing class at the IRC. (Trial Tr.

9

582:3—11, 766:7—11, 856:10—19.)

10 193. The stained-glass making class offered at Musick is not a

11

vocational class, but a class presented by a religious volunteer

12

in which the inmates make stained glass angels to be given away

13

as a community service. (Trial Tr. 808:12—809:4.) The process

14

requires large tables, scissors, tin snips, and other tools which

15

would be difficult to accommodate at the MCJ or the IRC due to

16

space constraints. (Trial Tr. 809:8—20.) However, the County

17

admitted that some modified form of the class could be easily

18

accommodated in the classrooms at the MCJ or the IRC. (Trial Tr.

19

582:3—11, 856:15—858:12.)

20 194. “MOPS” stands for “Mothers of Preschoolers,” which is a class

21

presented by a volunteer group that comes to Musick to help

22

primarily female inmates get back together with their preschool

23

children upon release. It is staffed by a church group and could

24

be offered at the IRC or the MCJ, so long as enough volunteers

25

are provided. While the County staff cannot order volunteers to

26

give the class, staff members could offer the class at the IRC or

27

the MCJ when enough volunteers are available. (Trial Tr.

28

813:8—814:21.)

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1 195. “Food Services” is a class offered at Musick and Theo Lacy, but

2

not at the IRC or the MCJ, ostensibly because the County has

3

trouble finding qualified instructors. (Trial Tr.

4

821:11—822:14.) The County admitted, however, that the class

5

could be offered at other facilities and the existing instructors

6

could split time between Musick and Theo Lacy, on the one hand,

7

and the IRC and the MCJ, on the other. (Trial Tr.

8

860:12—861:22.)

9 196. To the extent that a class could not be offered at the IRC or the

10

MCJ, there was evidence that disabled detainees could be

11

transported from the IRC and the MCJ to Theo Lacy or Musick to

12

take those classes. (Trial Tr. 1144:15—22.)

13

I. The County’s Showing of Fundamental Alterations and Undue

14

Burden

15 197. The County offered little specific evidence of the fiscal or

16

other impact of altering either the physical facilities in the

17

jail system or providing programs, services, and activities in

18

ways to accommodate mobility- and dexterity-impaired detainees.

19

i. Fiscal Impact

20 198. Greg Boston, a manager with the Orange County Jail system in

21

charge of the Inmate Services Correctional Programs Unit, the

22

Inmate Reentry Unit, and the Inmate Welfare Fund, testified as

23

the County’s person most knowledgeable on the County’s programs

24

and services. (Trial Tr. 548:5—549:11.) While he testified that

25

there was a $24 million shortfall in the overall 2009/2010

26

Sheriff’s Department’s budget, he lacked the foundation to

27

testify to any budgetary matters beyond the inmate programs

28

budget. (Trial Tr. 836:6—840:19.) The County provided no

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1

further evidence on this point.

2 199. The County claims that the WCJ was closed due to budgetary

3

issues, but provided no evidence to substantiate that.

4 200. However, the evidence does establish that the County had to lay

5

off three full-time employees due to budgetary issues, which

6

resulted in eliminating the horticulture, construction, and

7

commercial painting classes at Musick. (Trial Tr. 782:7—15,

8

797:15—22.)

9 201. There is also a current hiring freeze for nurses, possibly caused

10

by budgetary issues. (Trial Tr. 746:21—747:16.)

11 202. With regard to physical barriers, the County offered no specific

12

evidence that it could not pay the costs of reasonable

13

modifications identified by Plaintiffs’ expert.

14 203. Plaintiffs have raised the possibility that disabled inmates

15

could be bussed from the IRC and the MCJ to Musick and Theo Lacy

16

to take advantage of the programs, services, and activities that

17

could not be provided at the IRC and the MCJ.

18 204. There are no physical barriers to bussing disabled inmates from

19

the IRC and the MCJ to Musick or Theo Lacy for classes, programs,

20

and recreation, and, indeed, inmates are bussed frequently for

21

court purposes. (Trial Tr. 858:13—860:11.)

22 205. The County offered no specific evidence of the cost of bussing

23

disabled detainees from the MCJ and the IRC to Theo Lacy and

24

Musick to utilize those facilities, other than to say that

25

bussing would be “very costly.” (Trial Tr. 865:8—13, 868:8—20,

26

873:3—16.)

27 206. Current bussing for court purposes is coordinated by a

28

transportation division separate from the Inmate Services

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department supervised by Greg Boston, and it has suffered its own

2

budget cuts, so Boston did not believe that, at its current

3

staffing levels, the transportation division could bus disabled

4

inmates for programming purposes. (Trial Tr. 868:21—869:20.)

5

Other than this testimony, however, the County offered no other

6

specific evidence to support this point.

7 207. With regard to the cost of programs and classes, most of the

8

inmate programs and services are paid for by the inmates

9

themselves out of the Inmate Welfare Fund. (Trial Tr.

10

549:12—550:24; Trial Ex. 29.) The Inmate Welfare Fund receives

11

income from inmate telephone revenue as part of a contract with

12

the phone company, sales of commissary supplies to inmates, and

13

rents from a building the County owns. (Trial Tr. 550:6—552:17.)

14

In the five years up to and including 2009, the Inmate Welfare

15

Fund received $2.5 million in profit from the telephone contract.

16

(Trial Tr. 551:19—552:3.) It received approximately $1 million

17

in profit from the commissary each year during the same period.

18

(Trial Tr. 552:4—10.)

19 208. The County also receives some free or nearly free educational

20

services, including classes and a computer lab provided by Rancho

21

Santiago Community College. (Trial Tr. 553:3—554:14.) Moreover,

22

the County receives $300,000 a year for permitting Rancho

23

Santiago Community College to provide services in the jail

24

system. (Trial Tr. 554:3—555:3.)

25 209. The County also has over 1000 community volunteers providing

26

programs for inmates for a total of 7,445 hours of service during

27

the year. (Trial Ex. 29.)

28

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1

ii. Impact on Security

2 210. There are no prohibitions against inmates with mobility-assistive

3

devices such as wheelchairs, walkers, and crutches taking classes

4

with non-disabled inmates, suggesting they do not pose a serious

5

security risk. (Trial Tr. 768:9—19.)

6 211. There is little evidence that grab bars pose a hanging hazard, as

7

contended by the County. (Trial Tr. 498:1—24.)

8 212. Ron Bihner, the County’s witness on construction issues, had

9

never been told that grab bars could not be installed in the

10

shower in Module O of the MCJ because of concerns regarding

11

suicide (Trial Tr. 905:22—25), or that the ADA-compliant

12

combination unit installed in a cell in Module L of the MCJ in

13

November 2004 would pose a hanging hazard (Trial Tr. 884:21—25).

14 213. If the County were correct on the risks of hanging posed by

15

standard grab bars, many other existing features of the jails

16

would pose similar hazards, such as grab bars already installed

17

by the County around the toilet in Sector 37 of Module O in the

18

MCJ (Trial Tr. 535:15—536:2), handles on cell doors, handrails

19

nears stairs or ramps, and bars on windows (Trial Tr. 520:17—25,

20

525:20—25, 538:1—11).

21 214. Michael Gibbens, the County’s expert on ADA compliance and

22

accessibility, also acknowledged that the Department of Justice

23

has issued a design guide for accessible cells in correctional

24

facilities, which describes proper modifications to make the

25

cells accessible for mobility- and dexterity-impaired

26

individuals; the design guide includes grab bars as an accessible

27

feature. (Trial Tr. 1114:12—1120:12.)

28 215. Those guidelines provide that, where suicide is a concern,

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special grab bars can be installed which do not allow for items

2

to be tied to the bars, but which provide enough support for

3

disabled individuals. (Trial Ex. 47.)

4

iii. Other Impacts

5 216. The Court rejects the County’s suggestion that individuals in

6

wheelchairs could not be placed in the new medical facility in

7

Module O at Theo Lacy because Module O is on the third floor of

8

that building and the elevator to Module O sometimes breaks down.

9

(Trial Tr. 725:20—727:10.) No competent evidence was presented

10

that the elevator at Theo Lacy could not be repaired when it

11

breaks down. (Trial Tr. 759:23—760:17.) Once the elevator is

12

fixed and maintained, the situation in Module O of Theo Lacy is

13

no different from Module O at the MCJ, where all mobility- and

14

dexterity-impaired detainees are housed on a floor reached by

15

elevator or escalator. (Trial Tr. 726:13—22.)

16 217. Module O at Theo Lacy has an RVN and an LVN for the approximately

17

100 inmates and detainees who can be housed there, while only one

18

nurse serves inmates who can be housed in Ward C of Module O at

19

the MCJ. There are no nurses assigned to Sheltered Living at the

20

MCJ, even though it can house orthopedic cases, inmates with back

21

injuries requiring bed rest, paraplegics, and quadriplegics.

22

(Trial Tr. 717:13—718:22, 724:19—25.)

23 218. Therefore, the Court cannot credit the County’s justification for

24

the policy of excluding wheelchair-bound individuals from Module

25

O of Theo Lacy because the medical staffing level of one nurse to

26

100 inmates is inadequate to attend to the “medical needs” of

27

wheelchair-bound inmates, which include checking the inmates for

28

skin irritations. (Trial Tr. 724:19—725:3, 748:1—9.)

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1 219. Moreover, nurses may not provide assistance to disabled detainees

2

and inmates with their activities of daily living, so nurses

3

would not regularly assist wheelchair-bound detainees in Module O

4

of Theo Lacy. (Trial Tr. 724:19—730:20.)

5 220. The Ninth Circuit held that deputies also cannot provide this

6

level of assistance to individual inmates because they are

7

already overburdened with ordinary security tasks. Pierce, 526

8

F.3d at 1220.

9 221. The evidence also demonstrates that paraplegics who have no

10

health problems and who can take care of themselves in their

11

daily living could be assigned to Module O of Theo Lacy, given

12

its bed arrangement, accessible toilet and sink, and their non-

13

acute medical situation. (Trial Tr. 756:18—758:12.)

14

J. ADA Notice of Rights and Complaint Procedures

15 222. In remanding this case, the Ninth Circuit instructed the Court to

16

make findings on the issues of whether disabled detainees were

17

“denied adequate notice of their rights under the ADA and an

18

appropriate grievance procedure, as required by regulations.”

19

Pierce, 526 F.3d at 1223 (citing 28 C.F.R. §§ 35.106, 35.107).

20

i. Notice Procedures Before 2009

21 223. The evidence demonstrates (and the County has essentially

22

admitted) that, at least until mid-2009, disabled inmates with

23

ADA-related complaints did not know their rights under the ADA,

24

did not know that they could file a complaint if those rights

25

were violated, and did not know how to file a complaint if

26

necessary. (Trial Tr. 49:12—21.)

27 224. For example, as of mid-2009, the County had not established any

28

procedure specifically informing disabled inmates and detainees

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of their rights under the ADA and had not provided them with a

2

specialized grievance procedure to complain if they believed they

3

were being denied an accommodation or access to facilities,

4

services, or programs. (Peterson Dep. Tr. 58:2-64:9.)

5 225. No notice of rights under the ADA had been posted anywhere in the

6

jails. (June 10, 2010 Trial Tr. 40:19—25.)

7 226. Before mid-2009, two forms were available to detainees and

8

inmates if they want to make any sort of request or complaint

9

about their treatment within the jails: an “inmate message slip,”

10

or a “snivel,” as nicknamed by deputies and inmates (Trial Tr.

11

662:24—663:24); and pink message slips used to request medical or

12

mental health services (Trial Tr. 662:24—663:24). Prior to

13

trial, all grievances were handled in the same manner, whether

14

filed by disabled or non-disabled inmates and detainees. (Trial

15

Tr. 24:14—19.)

16 227. While an inmate could conceivably use an inmate message slip to

17

complain about ADA-related issues (Trial Tr. 40:5—9), there was

18

no language on the inmate message slip explaining to inmates

19

their rights to be free from discrimination under the ADA or

20

their ability to seek an accommodation if one was needed (Trial

21

Tr. 12:12-18; Trial Ex. 159).

22 228. Inmate message slips were not sent to any ADA coordinator for

23

processing. (Trial Tr. 13:3—14:8.) And the deputies who had the

24

initial responsibility for reviewing or deciding what to do with

25

the inmate message slip had not been provided with any written

26

criteria as to how to evaluate a request for an accommodation.

27

(Trial Tr. 15:14-19.)

28 229. The County failed to identify a single request for an

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1

accommodation made by a person with a disability in the past

2

year. (Trial Tr. 30:22—31:1.) In order to determine whether ADA

3

issues have ever been raised on inmate message slips, County

4

officials would have had to look at the message slips placed in

5

each individual inmate’s file. (Trial Tr. 31:8—32:21.)

6 230. There was no language on the pink medical message slips

7

explaining to inmates their rights under the ADA, their ability

8

to request an accommodation, or their recourse if they believed

9

they were being treated unfairly because of their disability or

10

being denied an accommodation related to some activity, service,

11

or program. (Trial Tr. 17:13—25.)

12 231. The pink medical message slips were not turned over to any ADA

13

coordinator. (Trial Tr. 18:15—17.)

14 232. Also, medical staff members were not provided any written

15

criteria or instructions as to what do with requests for

16

accommodation from disabled inmates or detainees that came via

17

the pink medical message slips. (Trial Tr. 18:10—14.)

18 233. Inmates were not told that they could appeal if the response to

19

their medical message slip was inadequate. (Trial Tr. 19:9—14.)

20

ii. Notice and Grievance Procedures After 2009

21 234. In mid-2009, the County created a “grievance form” and instituted

22

a new grievance procedure. (June 10, 2010 Trial Tr. 19:15—21:16;

23

Trial Ex. 161.) The grievance form does not inform inmates of

24

their right to be free from disability discrimination, does not

25

explain that they can seek an disability accommodation if

26

necessary, and does not explain how they can complain about

27

violations of their ADA rights. (Trial Tr. 19:15—21:3.) As of

28

June 21, 2010, the County included a check-box on the grievance

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form so an inmate can indicate that the complaint is related to a

2

disability. (Docket No. 740 (Toledo Decl.) ¶ 3, Ex. B.)

3 235. Lieutenant Michael Toledo was designated in 2009 as the ADA

4

coordinator for the Orange County Sheriff’s Department. (Trial

5

Tr. 8:18—9:1.)

6 236. Toledo testified that he was responsible for coordinating and

7

addressing any ADA issues that affected the department, but that

8

he had not been provided any written description of his

9

responsibilities and had not received any specialized training or

10

instruction as to what he was supposed to do as ADA coordinator.

11

(Trial Tr. 10:6—16.)

12 237. The County did not inform jail deputies, staff, detainees, or

13

inmates that Toledo had been designated as the ADA coordinator

14

and did not provide them with his contact information. (Trial

15

Tr. 10:17-11:3.)

16 238. On the eve of the last day of trial on June 21, 2010, Lieutenant

17

Toledo for the first time discussed with the Assistant Sheriff of

18

Corrections proposals to post ADA guidelines alongside jail rules

19

and to include a box on the inmate grievance form where an inmate

20

or detainee could communicate that a complaint is disability-

21

related. (Trial Tr. 43:12—44:5; Trial Ex. 165.)

22 239. Thus, as of June 21, 2010, the County included within its posted

23

jail rules an advisement regarding disabled inmates’ rights under

24

the ADA and the proper grievance procedures to report ADA

25

violations. (Docket No. 740 (Toledo Decl.) ¶ 2, Ex. A.) The

26

rules are now posted in dayrooms and housing facilities at all

27

the jail complexes, although there was no evidence that those

28

rules are posted at a height allowing a wheelchair-bound inmate

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or detainee to read them. (Id. ¶ 2; Trial Tr. 22:21—23:4; Trial

2

Ex. 164.)

3 240. While Toledo proposed to the Assistant Sheriff that

4

administrative sergeants be given the title of ADA coordinator,

5

no discussions had taken place as of June 21, 2010, regarding

6

their training or how they would handle ADA complaints. (Trial

7

Tr. 47:2—48:25.) Naming specific individuals as ADA coordinators

8

was administratively challenging due to staff turnover and

9

scheduling. (Trial Tr. 42:8—18.)

10 241. The policy manual instructing deputies on handling grievance

11

procedures contains no specific instructions for handling inmate

12

requests for accommodation. (Trial Tr. 25:22—26:1.)

13 242. Grievances are assigned a number and logged, but the deputy

14

charged with recording the numbers for grievances was not

15

provided with any training with respect to how to record a

16

grievance which includes a request for an accommodation. (Trial

17

Tr. 33:6—34:17.) Toledo did no know whether deputies were

18

directed to note in the computerized system if a request is an

19

ADA complaint or a request for an accommodation. (Trial Tr.

20

34:18—21.)

21 243. Requests for accommodation would not be handled by Greg Boston or

22

directed to Lieutenant Toledo. (Trial Tr. 26:13—25.) Indeed,

23

grievances submitted to non-sworn staff, such as Greg Boston, are

24

considered invalid under the County’s policy. (Trial Tr. 27:4—7;

25

Trial Ex. 162 (Section 1600.5(c)).)

26 244. None of the staff involved in the appeal process has been

27

provided with specialized training or instruction on handling a

28

complaint that raises an allegation of or a concern relating to

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ADA discrimination or that requests an accommodation. (Trial Tr.

2

30:7—13.)

3 245. In the past year, Toledo has not reviewed the computerized

4

grievance records to ascertain whether or not ADA issues have

5

been raised by inmates or detainees. (Trial Tr. 35:15—23.)

6

Thus, he did not know at trial if any detainees or inmates had

7

been provided with any accommodation over the past year as a

8

result of a request by that detainee or inmate. (Trial Tr.

9

35:24—36:2.)

10 III. CONCLUSIONS OF LAW

11

A. Overview

12 246. For physical barriers, the Ninth Circuit directed this Court to

13

“conduct further fact-finding on the current state of physical

14

barriers to adequate access to bathrooms, showers, exercise

15

areas, dayrooms, dining rooms, cells and all other areas to which

16

disabled persons should have access and order remedial remedies

17

as required.” Pierce, 526 F.3d at 1226. Thus, the issue to be

18

decided is whether barriers to access to facilities that

19

currently house mobility- and dexterity-impaired detainees exist

20

and if so, what remedial measures are necessary to assure ADA

21

compliance. (Docket No. 731 at 9.)

22 247. For access to programs, services, and activities, the Ninth

23

Circuit directed this Court to “conduct further fact finding as

24

to the programs and activities disabled persons currently have

25

access to and order such remedial measures as required to make

26

the County’s provision of programs and services, when viewed in

27

their entirety, accessible to mobility- and dexterity-impaired

28

inmates.” Id. at 1226. Thus, the Court must resolve two issues:

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(1) whether, when viewing the programs, activities, and services

2

offered by the County “in their entirety,” mobility- and

3

dexterity-impaired detainees are “categorically excluded” from

4

programs, activities, and services offered to non-disabled

5

detainees and inmates; and, if so, (2) what is the proper remedy.

6

B. Governing Law

7 248. The parties agree that Title II of the ADA applies to the Orange

8

County Jail system. Id. at 1214. Pursuant to Title II, a

9

“qualified individual with a disability” cannot, “by reason of

10

such disability, be excluded from participation in or be denied

11

the benefits of the services, programs, or activities of a public

12

entity, or be subjected to discrimination by any such entity.”

13

42 U.S.C. § 12132.

14 249. The Attorney General has promulgated regulations implementing

15

Title II, which are contained in Title 28, part 35 of the Code of

16

Federal Regulations. See 28 C.F.R. §§ 35.149—35.151. Those

17

regulations are therefore given “controlling weight unless they

18

are arbitrary, capricious, or manifestly contrary to the

19

statute.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1065 (9th

20

Cir. 2010) (internal quotation marks omitted).

21 250. Section 35.150(a) requires a public entity to “operate each

22

service, program, or activity so that the service, program, or

23

activity, when viewed in its entirety, is readily accessible to

24

and usable by individuals with disabilities.” Section 35.150(a)

25

applies to facilities existing before and unaltered after the

26

effective date of the ADA on January 26, 1992.

27 251. This section places boundaries on what the County must do to make

28

existing facilities compliant: “(1) a public entity is not

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necessarily required ‘to make each of its existing facilities

2

accessible to and usable by individuals with disabilities,’”; and

3

“(2) a public entity is not required ‘to take any action that it

4

can demonstrate would result in a fundamental alteration in the

5

nature of a service, program, or activity or in undue financial

6

and administrative burdens.’” Pierce, 526 F.3d at 1215 (citing §

7

35.150(a)(1), (a)(3)).

8 252. Appendix A to Part 35 explains that “the program access

9

requirement of title II should enable individuals with

10

disabilities to participate in and benefit from the services,

11

programs, or activities of public entities in all but the most

12

unusual cases” and “compliance with § 35.150(a) . . . would in

13

most cases not result in undue financial and administrative

14

burdens on a public entity.” 28 C.F.R. part 35, App. A.

15 253. The Ninth Circuit explained that the County may make existing

16

facilities “readily accessible” by the “‘reassignment of services

17

to accessible buildings’” or by the “‘alteration of existing

18

facilities and construction of new facilities.’” Pierce, 526

19

F.3d at 1215 (citing § 35.150(b)(1)).

20 254. For facilities built or structurally modified after the effective

21

date of the ADA, § 35.151 applies. While § 35.150 embodies a

22

“flexible concept” of compliance for existing facilities, §

23

35.151 imposes “substantially more stringent” requirements.

24

Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993).

25 255. Section 35.151(a) mandates that all new public buildings be

26

“designed and constructed in such a manner” that they are

27

“readily accessible and usable by individuals with

28

disabilities[.]” Section 35.151(b) provides that for any

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facility “altered by, on behalf of, or for the use of a public

2

entity in a manner that affects or could affect the usability of

3

the facility or part of the facility shall, to the maximum extent

4

feasible, be altered in such manner that the altered portion of

5

the facility is readily accessible to and usable by individuals

6

with disabilities[.]”

7 256. To satisfy § 35.151, a public entity may comply with either UFAS,

8

41 C.F.R. Pt. 101-19.6, App. A, or with the ADAAG, 28 C.F.R. Pt.

9

36, App. A. Pierce, 526 F.3d at 1216 (citing § 35.151(a), (c)).

10

Even though compliance with either ADAAG or UFAS is considered

11

satisfactory, the regulations allow for “[d]epartures from

12

particular requirements of either standard by use of other

13

methods . . . when it is clearly evident that equivalent access

14

to the facility or part of the facility is thereby provided.” §

15

35.151(c).

16 257. For buildings subject to § 35.150, Appendix A explains that the

17

ADAAG Guidelines were issued by the Architectural and

18

Transportation Barriers Compliance Board to apply to private

19

buildings under Title III of the ADA, but were adopted by the

20

Department of Justice to apply to public buildings under Title

21

II. Id.

22 258. Thus, as the Court previously held, the County need not strictly

23

comply with UFAS or ADAAG guidelines to satisfy § 35.150 for the

24

purposes of complying with the ADA. (Docket No. 731 at 18—19.)

25

But the Court may look to UFAS or ADAAG guidelines to decide

26

whether barriers to access exist under that section. See Flynn

27

v. Doyle, 672 F. Supp. 2d 858, 879—80 (E.D. Wis. 2009) (finding

28

that, for facilities built before 1992 and subject only to §

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35.150 standards, “evidence regarding the alleged failure to meet

2

the UFAS/ADAAG standards could still be relevant in the context

3

of a ‘program accessibility’ case. A program could be rendered

4

inaccessible if it is held in an inaccessible facility.”);

5

Pascuiti v. N.Y. Yankees, 87 F. Supp. 2d 221, 226 (S.D.N.Y. 1999)

6

(“[E]ven though only new construction and alterations must comply

7

with the Standards, those Standards nevertheless provide valuable

8

guidance for determining whether an existing facility contains

9

architectural barriers.”).

10 259. Finally, the parties agree that CalDAG is not binding, but may be

11

“useful” in determining whether physical barriers exist and what

12

accommodations may be reasonable.

13

C. The ADA in the Prison Context

14 260. In applying the ADA in the prison context of this case, the Court

15

must apply the standard from Turner v. Safley, 482 U.S. 78, 89

16

(1987), that “a regulation that would impinge on inmates’

17

constitutional rights is nevertheless valid if it is reasonably

18

related to the prison’s legitimate interests.” Pierce, 526 F.3d

19

at 1216—17 (footnote omitted); see also Gates v. Rowland, 39 F.3d

20

1439, 1446 (9th Cir. 1994).3

21 261. The Ninth Circuit clearly set out the framework for the Court’s

22

inquiry:

23
3The Ninth Circuit in this case noted that some uncertainty 24 surrounds whether Gates remains good law in light of the Supreme 25 Court’s decision in Johnson v. California, 543 U.S. 499 (2005), in
which the Court held that strict scrutiny, not the Turner test, 26 applies to racial classifications in the prison context. Pierce, 526
F.3d at 1217 n.29. The Ninth Circuit, however, did not reach the 27 question because reversal was warranted under the more lenient Turner
test. This Court also does not reach the question here for the same 28 reason: the County has not satisfied the more lenient Turner test.

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In ADA cases, the plaintiff bears the burden

of establishing the elements of the prima facie

2

case, including — if needed — “the existence of a

reasonable accommodation” that would enable him to

3

participate in the program, service, or activity

at issue. The public entity may then rebut this

4

by showing that the requested accommodation would

require a fundamental alteration or would produce

5

an undue burden. . . . [D]etermining whether a

modification or accommodation is reasonable always

6

requires a fact-specific, context-specific

inquiry. This analysis permits a court to

7

consider, with deference to the expert views of

facility administrators, a detention or

8

correctional facility’s legitimate interests

(namely, in “maintaining security and order” and

9

“operating [an] institution in a manageable

fashion,”) when determining whether a given

10

accommodation is reasonable.

11

Id. at 1217 (internal citations omitted; brackets in original).

12

D. Prison Litigation Reform Act

13 262. The Prison Litigation Reform Act (“PLRA”) provides: “Prospective

14

relief in any civil action with respect to prison conditions

15

shall extend no further than necessary to correct the violation

16

of the Federal right of a particular plaintiff or plaintiffs.

17

The court shall not grant or approve any prospective relief

18

unless the court finds that such relief is narrowly drawn,

19

extends no further than necessary to correct the violation of the

20

Federal right, and is the least intrusive means necessary to

21

correct the violation of the Federal right.” 18 U.S.C. §

22

3626(a)(1)(A). Moreover, “[t]he court shall give substantial

23

weight to any adverse impact on public safety or the operation of

24

a criminal justice system caused by the relief.” Id.

25 263. Under the PLRA, “‘[t]he scope of injunctive relief is dictated by

26

the extent of the violation established.’” Armstrong, 622 F.3d

27

at 1072 (citation omitted). If only isolated violations have

28

occurred for a narrow range of plaintiffs, then injunctive relief

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must be narrow; however, if the violations are system-wide, even

2

though affecting only a small number of plaintiffs, then relief

3

can be system-wide as well. Id. at 1072—73.

4 264. In making the required findings under the PLRA, the Court need

5

not provide an explicit, provision-by-provision justification for

6

the relief ordered; instead, the Court must find that “the set of

7

reforms being ordered . . . corrects the violations of prisoners’

8

rights with the minimal impact possible on defendants’ discretion

9

over their policies and procedures.” Id. at 1070.

10 265. Thus, the Court satisfies the PLRA by providing a clear

11

explanation of the “factual circumstances underlying an order and

12

its understanding of the relevant law as applied to the facts,”

13

and then providing an “overall statement” that the “need-

14

narrowness-intrusiveness standard has been met[.]” Id. at 1071.

15 266. With regard to intrusiveness, the Court must take care not to

16

“‘enmesh [itself] in the minutiae of prison operations,’ beyond

17

what is necessary to vindicate plaintiffs’ federal rights,” and

18

the Court satisfies the intrusiveness prohibition by ordering a

19

defendant to “draft and promulgate a plan,” which leaves to the

20

defendant discretion to determine the details of how to deliver

21

the relief ordered. Id. (brackets in original).

22 267. Under the PLRA, then, “the question is not whether the relief the

23

court ordered to vindicate [federal] rights is expensive, or

24

difficult to achieve, but whether the same vindication of federal

25

rights could have been achieved with less involvement by the

26

court in directing the details of defendants’ operations.” Id.

27 268. Consistent with the PLRA’s mandate, the Court may exercise its

28

inherent authority to appoint a special monitor to oversee

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1

compliance with Court Orders intended to remedy statutory

2

violations in the prison context. See Benjamin v. Fraser, 343

3

F.3d 35, 44—47 (2d Cir. 2003), abrogated in other part by Caiozzo

4

v. Koreman, 581 F.3d 63, 70 (2d Cir. 2009); cf. Plata v.

5

Schwarzenegger, 603 F.3d 1088, 1095—96 (9th Cir. 2010) (citing

6

Benjamin and approving of use of receiver under the PLRA to

7

remedy constitutional violations in state prisons).

8

E. Physical Barriers

9 269. Module O at Theo Lacy is considered a “new” facility under ADA

10

regulations, so it must be “readily accessible to and usable by

11

individuals with disabilities.” See 28 C.F.R. § 35.151(a).

12

(Docket No. 731 at 16.)

13 270. Because the MCJ, the IRC, the WCJ, and Musick were built before

14

January 26, 1992, and were not substantially altered after that

15

date, the more flexible and less stringent standard of 28 C.F.R.

16

§ 35.150 applies. See Title II Preamble, Pt. 35, App. A.

17 271. ADAAG requires that two percent of all cells within a

18

correctional facility should be accessible and that, where there

19

are specialized units, such as administrative segregation,

20

protective custody, isolation, etc., at least one of each type of

21

cell should be accessible. 36 C.F.R. Pt. 1191 (ADAAG § 12.4.1).

22

(Trial Tr. 84:1—22.) Additionally, ADAAG requires that five

23

percent of counters for receiving and booking detainees and

24

inmates be made accessible. (Trial Tr. 194:7—195:13; Ex. 138

25

(CalDAG Guidelines) Ch. 6, § 58 at 333.)

26 272. Orange County’s prior ADA transition plan from 2000 agreed that

27

the County was required to make at least two percent of the total

28

number of cells available fully accessible to individuals with

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1

disabilities, although that was never implemented. (Trial Tr.

2

424:8—425:5; Trial Ex. 6 at 30.)

3 273. UFAS requires that five percent of all cells in jails and

4

correctional facilities should be accessible. UFAS § 4.1.4(9).

5

(Trial Tr. 357:1—15, 433:1—22.)

6

F. Programs, Services, and Activities

7 274. “The ADA does not require perfect parity among programs offered

8

by various facilities that are operated by the same umbrella

9

institution. But an inmate cannot be categorically excluded from

10

a beneficial prison program based on his or her disability

11

alone.” Pierce, 526 F.3d at 1221. “[T]he County may not shunt

12

the disabled into facilities where there is no possibility of

13

access to those programs.” Id.

14 275. In discussing the scope of programs, activities, and services,

15

the Ninth Circuit quoted the Supreme Court’s explanation of the

16

issue: “Modern prisons provide inmates with many recreational

17

‘activities,’ medical ‘services,’ and educational and vocational

18

‘programs,’ all of which at least theoretically ‘benefit’ the

19

prisoners (and any of which disabled prisoners could be ‘excluded

20

from participation in’).” Id. at 1221 (quoting Penn. Dept. of

21

Corrections v. Yeskey, 524 U.S. 206, 210 (1998)).

22 276. Moreover, the Ninth Circuit identified the types of programs,

23

activities, and services offered at Theo Lacy and Musick, but not

24

at the MCJ and the WCJ, such as vocational opportunities for

25

“agriculture, woodworking, and welding,” opportunities to work on

26

“off-site or community work projects,” and recreational

27

opportunities involving “a softball field, volleyball courts,

28

pool tables, and other indoor and outdoor facilities.” Id.

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1 277. The Ninth Circuit left open the possibility that the Court could

2

order redistribution of services and programs, as well as “other

3

appropriate remedies” in addressing any violations, which may

4

include bussing disabled inmates to other facilities to remedy

5

unequal access to programs, services, and activities. Id. at

6

1222.

7

G. Notice of Rights and Grievance Procedures

8 278. “A public entity shall make available to applicants,

9

participants, beneficiaries, and other interested persons

10

information regarding the provisions of this part and its

11

applicability to the services, programs, or activities of the

12

public entity, and make such information available to them in

13

such manner as the head of the entity finds necessary to apprise

14

such persons of the protections against discrimination assured

15

them by the Act and this part.” 28 C.F.R. § 35.106.

16 279. “A public entity that employs 50 or more persons shall designate

17

at least one employee to coordinate its efforts to comply with

18

and carry out its responsibilities under this part, including any

19

investigation of any complaint communicated to it alleging its

20

noncompliance with this part or alleging any actions that would

21

be prohibited by this part. The public entity shall make

22

available to all interested individuals the name, office address,

23

and telephone number of the employee or employees designated

24

pursuant to this paragraph.” 28 C.F.R. § 35.107(a).

25 280. “A public entity that employees 50 or more persons shall adopt

26

and publish grievance procedures providing for prompt and

27

equitable resolution of complaints alleging any action that would

28

be prohibited by this part.” 28 C.F.R. § 107(b).

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1 IV. ULTIMATE FINDINGS OF FACT

2

This case began almost ten years ago, has been the subject of two

3 bench trials, and has been appealed to the Ninth Circuit and reversed

4 and remanded for further fact-finding. During this time, the County

5 has done very little to remedy any of the physical barriers or unequal

6 provision of programs, services, and activities pointed out by

7 Plaintiffs, even after the Ninth Circuit found in 2008 that the

8 existing conditions violated the ADA. As the Court discusses below,

9 Plaintiffs have shown quite plainly that mobility- and dexterity-

10 impaired detainees are, by reason of their disability, subject to

11 physical barriers to accessibility of many jail facilities, excluded

12 from participation in and denied the benefits of the services,

13 programs, or activities offered by the County, and, until the eve of

14 the last day of the current trial, denied notice of their rights and

15 grievance procedures under the ADA. Moreover, with limited

16 exceptions, the County has failed to demonstrate that Plaintiffs’

17 proposed accommodations would result in the fundamental alteration in

18 the nature of any service, program, or activity, or result in undue

19 financial and administrative burdens. Pierce, 526 F.3d at 1215.

20 Similarly, the County has not shown that the current impermissible

21 conditions may be maintained because they are reasonably related to

22 legitimate penological objectives. Id. at 1216.

23

A. Physical Barriers

24

Plaintiffs have carried their burden to show that many physical

25 barriers exist at each jail facility housing mobility- and dexterity-

26 impaired detainees, and that the expense of remedying these barriers

27 is reasonable. In Module O in the MCJ, for example, the showers,

28 toilets, and sinks in Wards C and D and Sheltered Living are

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1 inaccessible and could readily be made accessible at reasonable cost.

2 It is not a reasonable alternative to physical modifications in the

3 MCJ to require other inmates, officers, or medical staff to assist

4 disabled detainees and inmates to transfer into and out of the shower

5 and on and off the toilet. The County must also bring a sufficient

6 number of cells into ADA compliance in Module O of the MCJ to meet the

7 two-percent guideline in ADAAG. With the exception of the bathroom,

8 the rooftop exercise area also contains physical barriers to

9 accessibility that could be remedied at reasonable cost, such as

10 adding a safety rim on the ramp and a railing on one side of the ramp,

11 and lowering a phone. However, the County has demonstrated that no

12 alterations are necessary at this time for the bathroom located up a

13 flight of stairs because it is currently closed to all inmates, and,

14 even if reopened, it could not be physically altered at a reasonable

15 cost. The proposed alternative of allowing disabled detainees and

16 inmates to use the accessible bathroom on the Administrative

17 Segregation side of the rooftop area would also be administratively

18 impractical and is not required.

19

In the IRC, while one cell for males and one cell for females in

20 the booking loop have been made accessible, the County must make

21 accessible at least one of each other type of cell, such as court

22 transfer cells and pending release cells. This can be done at a

23 reasonable cost. Likewise, counters in the booking loop must be

24 modified to make five percent of them accessible pursuant to ADAAG

25 guidelines, which also can be done at a reasonable cost.

26

Sectors 13 and 14 and the recreation area in Module K of the IRC

27 contain numerous physical barriers, such as inaccessible second-floor

28 cells and rooms (including a visiting area), and inaccessible phones,

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1 tables, showers, and toilets. The phones, tables, showers, and

2 toilets can be readily altered to be made accessible at reasonable

3 cost. As in the MCJ, it is not a reasonable accommodation for other

4 inmates, officers, or medical staff to assist disabled female

5 detainees and inmates with showering and using the toilet.

6

Nor is it reasonable to accommodate disabled female detainees by

7 walking them 900 yards, or nine football fields, to the WCJ so they

8 might be able to use an accessible shower there or have a contact

9 visit because they cannot ascend the stairs to the visiting area in

10 the IRC. Moreover, the County would have to make ten cells in Module

11 K to comply with the ADAAG two-percent guideline.

12

Module L at the IRC, which provides round-the-clock mental health

13 services to mentally ill male inmates, contains one accessible cell

14 out of twenty-four, but barriers still exist in the dayroom area’s

15 shower, bathroom, phone, and tables, the recreation area’s toilet and

16 sink, and the visiting area on the second floor, which are identical

17 to Module K. The County could make these areas accessible at a

18 reasonable cost.

19

Although not currently open, if the WCJ is opened in the future,

20 the County will have to remedy the numerous physical barriers to

21 accessibility in the Infirmary and Sheltered Living, which could be

22 done at reasonable expense. The rooftop recreation area at the WCJ

23 also has inaccessible phones and restrooms, which could be made

24 accessible at reasonable cost.

25

As for Module O at Theo Lacy, the County violates the ADA by

26 prohibiting wheelchair-bound detainees from being housed there with

27 other disabled detainees and inmates based on its allegations that

28 there is inadequate medical staff and the elevator in the facility

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1 often breaks down. Moreover, the shower, tables, and phone in Sector

2 37 of Module O at Theo Lacy are inaccessible and could be made

3 accessible at reasonable cost. The showers in Sector 41 are

4 inaccessible and could be made accessible at reasonable expense.

5 Also, two percent of the cells in Sector 41 must be made accessible

6 pursuant to ADAAG guidelines. The evidence did not demonstrate that

7 accessible grab bars in these areas would pose a suicide risk or that

8 a 36-inch wide doorway poses a security risk that would excuse

9 modifications. Although barriers exist in the Barracks areas of Theo

10 Lacy, the Court will not order disabled detainees and inmates to be

11 “mainstreamed,” so the Barracks do not need to be made accessible at

12 this time.

13

With regard to Musick, mobility- and dexterity-impaired detainees

14 are not housed at Musick, primarily because there is no 24-hour

15 medical care at that facility. The Court will not order disabled

16 detainees and inmates to be housed at Musick, given that it would be a

17 form of “mainstreaming.” However, because many of the areas of Musick

18 are accessible to disabled detainees and inmates, such as the

19 visitor’s center, the medical unit, and the building where many of the

20 shop classes are held, disabled detainees and inmates could be brought

21 to Musick to take advantage of programs, services, and activities

22 offered there, as discussed below.

23

B. Programs, Services, and Activities

24

Plaintiffs have carried their burden to show that certain

25 categories of programs, services, and activities, “when viewed in

26 their entirety,” are not “similarly available to disabled detainees

27 who, with or without reasonable accommodations, meet the essential

28 eligibility requirements to participate.” Pierce, 526 F.3d at 1222.

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1 As the Ninth Circuit found two years ago, disabled detainees continue

2 to be “shunted” into facilities such as the MCJ, the IRC, and Module O

3 of Theo Lacy, where there is little opportunity to participate in

4 vocational and recreation opportunities available to non-disabled

5 detainees and inmates at Theo Lacy and Musick. Id. at 1221.

6

In accordance with the Ninth Circuit’s mandate that programs,

7 services, and activities need not be in “perfect parity” across

8 facilities, the Court must “look at the offerings as a whole and in

9 their entirety” to determine whether equal access exists. Id. at

10 1222. Upon careful review of the evidence, the Court finds that

11 disabled male detainees in the MCJ do not have equal access to

12 vocational programs and recreational opportunities offered to non-

13 disabled detainees and inmates at Musick and Theo Lacy. Mobility- and

14 dexterity-impaired female detainees and inmates at the IRC also do not

15 have equal access to vocational classes or recreational opportunities

16 offered to non-disabled female detainees and inmates at Musick.

17 Finally, disabled detainees housed in Module O of Theo Lacy do not

18 have equal access to any classes, programs, or recreational

19 opportunities offered to non-disabled detainees and inmates.

20

Perhaps the most egregious example of the lack of equality for

21 disabled detainees exists at Module O of Theo Lacy. The only classes

22 offered to disabled detainees housed there are religious services.

23 Detainees are not permitted to use the Green Sector for recreation or

24 the Inmate Programming Building for classes and programs, even though

25 those areas are accessible and right outside Module O. Instead,

26 disabled detainees and inmates are permitted only to use a tiny

27 classroom that lacks desks, computers, or other equipment, and a small

28 interior blacktop area equipped with only a basketball hoop. The

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1 County offered no justification for this second-class arrangement, and

2 indeed, the County’s expert admitted that there was no reason not to

3 allow disabled detainees in Module O to use the adjacent Inmate

4 Programming Building or outside Green Sector. This failure to offer

5 even minimally equivalent programs, services, and activities to

6 disabled detainees in Module O of Theo Lacy violates the ADA.

7

Mobility-impaired female detainees and inmates in Module K of the

8 IRC are in a similar predicament if they cannot ascend the stairs in

9 that facility. The classrooms in Module K are located up a flight of

10 stairs, so wheelchair-bound detainees must request that a class be

11 given in the open area on the first floor. Plaintiffs raise the quite

12 rational concern that detainees, whether disabled or not, would not

13 feel comfortable requesting or attending certain classes, such as

14 narcotics anonymous, AIDS education, domestic violence, and substance

15 abuse under these circumstances. Thus, the practical effect is to

16 withhold these classes from wheelchair-bound and other mobility-

17 impaired female detainees in Module K of the IRC.

18

Even those disabled detainees who can manage the IRC stairs still

19 do not have access to the range of educational, vocational, and

20 rehabilitative classes offered at Musick, such as GED classes,

21 Government, ESL, positive parenting, workforce preparation, food

22 service, health classes, MOPS (Mothers of Pre Schoolers), stained-

23 glass making, or sewing classes. Nor are they offered the “shop”-type

24 classes available at Musick. The evidence demonstrates that at least

25 some limited form of some these classes could be offered in the chapel

26 room in Module K, which is located on the same floor as the housing

27 cells. That is not to say that the County should limit or eliminate

28 the use of the chapel for religious services: detainees and inmates

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1 should not be deprived of the opportunity to attend religious services

2 in order to attend other classes and programs held in the chapel.

3 Nevertheless, the evidence demonstrates that at least some vocational

4 and other classes, such as sewing and stained-glass making, could be

5 offered in the chapel in a limited form without compromising

6 detainees’ and inmates’ opportunity to attend religious services there

7 as well.

8

Moreover, the recreational opportunities for disabled female

9 detainees in Module K are also far more limited than those at Musick,

10 consisting of a room with a basketball hoop and little else, as

11 compared to the outdoor recreational areas on the grounds of Musick

12 for baseball, volleyball, basketball, horseshoes, and picnics.

13

As the “grimmest and most dismal” of all jail facilities, the MCJ

14 offers little in the way of recreation to disabled detainees and

15 inmates, especially when compared to the Green Sector of Theo Lacy and

16 the outdoor area at Musick. MCJ detainees are allowed to use only the

17 dayrooms with few activities and are offered little chance for outdoor

18 exercise. Of the vocational and educational classes offered at the

19 MCJ, none fall into the “shop” category like those offered at Musick.

20 The County failed to demonstrate that smaller versions of some of

21 these could not be offered at the MCJ and the evidence demonstrated

22 that other classes, such as stained-glass making and food service,

23 could in fact be held at the MCJ with some alteration.

24

Plaintiffs have also proved that, to take advantage of shop-type

25 vocational classes that cannot be provided at the MCJ or the IRC and

26 to take advantage of outdoor recreational opportunities unavailable at

27 the MCJ or the IRC, the County can be reasonably required to arrange

28 transportation for disabled detainees to Musick and Theo Lacy within

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1 reasonable parameters. There is simply no other way to ensure that

2 disabled detainees in the MCJ and the IRC are provided even roughly

3 equivalent recreation and shop-type opportunities at the MCJ or the

4 IRC, given the physical limitations of those facilities.

5

C. Fundamental Alterations and Undue Burden

6

As already noted, the County offered little specific evidence of

7 the fiscal or other impact of altering the physical facilities in the

8 jail system or providing programs, services, and activities in ways to

9 accommodate mobility- and dexterity-impaired detainees. Thus, even

10 deferring to the “expert views of facility administrators,” Pierce,

11 526 F.3d at 1217, the County has failed to carry its burden to

12 demonstrate that requested accommodations “would require a fundamental

13 alteration or would produce an undue burden,” id., or that the current

14 conditions are “reasonably related to the prison’s legitimate

15 interests,” id. at 1216.

16

Specifically, while the current budget shortfall for the County

17 is undoubtedly serious, the County failed to offer any specific

18 budgetary evidence that would justify maintaining the facilities in

19 their current state or keeping the programs, services, and activities

20 at their status quo. Indeed, on the issue of programs, services, and

21 activities, the evidence demonstrated that many of the programs

22 offered to inmates are paid for by inmates through the Inmate Welfare

23 Fund, are provided by Santiago Community College at little to no cost

24 to the County, or are provided by volunteers, undermining the County’s

25 claims of fiscal impact sufficient to excuse compliance with the ADA.

26

Other specific justifications for certain policies also fell

27 short of justifying the County’s ADA violations. For example, there

28 was little evidence that detainees with mobility-assistive devices

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1 such as wheelchairs, walkers, and crutches present a security risk

2 that would justify their exclusion from classes and programs, as there

3 are no jail policies prohibiting inmates and detainees with these

4 devices from taking classes with non-disabled inmates and detainees.

5 Moreover, there was no evidence that grab bars pose a hanging hazard,

6 as contended by the County. And the County’s policy of excluding

7 wheelchair-bound detainees from Module O of Theo Lacy cannot be

8 justified by the proffered reasons for it, namely, that the elevator

9 in Module O breaks down frequently and that there are not enough

10 medical personnel to care for wheelchair-bound detainees. The

11 evidence offered by Plaintiffs fatally undermined these

12 justifications.

13

D. ADA Notice of Rights and Grievance Procedure

14

The evidence demonstrated and the County largely conceded that,

15 before 2009, the jail system provided inadequate to non-existent

16 notice of rights and grievance procedures under the ADA. The County

17 has since taken steps to ameliorate these violations. Plaintiffs

18 agree that the County’s addition of ADA rights to the prison rules

19 posted in each housing area sufficiently notifies disabled detainees

20 and inmates of their ADA rights. Plaintiffs also agree that the

21 County’s revised grievance procedure to allow detainees to submit a

22 written complaint on the current grievance form, which must be given

23 to the newly designated ADA compliance officer in each facility,

24 satisfies the ADA.

25

However, the County still does not ensure that the notice of ADA

26 rights is posted at a height readable by all disabled detainees. Nor

27 does it provide training for ADA compliance officers in the different

28 facilities. And the County does not currently have an adequate system

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1 to track ADA grievances. That system should contain, at a minimum, a

2 centralized electronic or hard-copy file with copies of grievances,

3 investigations, findings, responses, and appeals. These additional

4 procedures are necessary to ensure the County is properly handling and

5 responding to detainee and inmate complaints implicating the ADA. 6 V. INJUNCTIVE RELIEF

7

The extensive record in this case demonstrates widespread

8 violations of the ADA that can be remedied only by widespread

9 injunctive relief. Armstrong, 622 F.3d at 1072—73. The Court finds

10 that the injunctive relief to be ordered below “corrects the

11 violations of prisoners’ rights with the minimal impact possible on

12 defendants’ discretion over their policies and procedures.” Id. at

13 1070. It therefore meets the “need-narrowness-intrusiveness” test

14 under the PLRA in that it is “narrowly drawn, extends no further than

15 necessary to correct the violation of the Federal right, and is the

16 least intrusive means necessary to correct the violation of the

17 Federal right.” 18 U.S.C. § 3626(a)(1)(A).

18

Plaintiffs advocate for a barrier-by-barrier and program-by-

19 program injunction in which the Court orders each violation identified

20 above to be corrected. The Court rejects that approach in part.

21 While the Court is convinced that the County will do nothing to make

22 its facilities and programs accessible if the Court does not order it

23 to do so, the least intrusive means to compel the County to remedy the

24 physical barriers and disparate provision of programs, services, and

25 activities to disabled detainees is to allow the County to draft a

26 proposed plan that will address and correct each and every physical

27 barrier identified in this Order and that will ensure that disabled

28 detainees are provided with equal access to programs, services, and

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1 activities as discussed herein. See Armstrong, 622 F.3d at 1071

2 (“Allowing defendants to develop policies and procedures to meet the

3 ADA’s requirements is precisely the type of process that the Supreme

4 Court has indicated is appropriate for devising a suitable remedial

5 plan in a prison litigation case.”); Benjamin, 343 F.3d at 52—53

6 (“After finding current and ongoing violations, the district court

7 prudently solicited agreement from the parties on appropriate remedies

8 and deadlines for compliance. . . . the court recognized that, due to

9 its superior institutional knowledge, the City’s participation in the

10 development of all aspects of the remedial orders was invaluable.”).

11 Should this plan fall short in any respect, Plaintiffs will have an

12 opportunity to object and the Court will resolve those disputes. Once

13 finalized, the Court will approve the plan and that will become the

14 injunctive relief ordered.

15

In drafting this plan, the County should incorporate the specific

16 relief outlined below to ensure violations are addressed and

17 corrected:

18

Theo Lacy

19 1. As new, post-1991 construction, Module O of Theo Lacy must comply

20

with ADAAG, which requires that at least two percent of each type

21

of cell in that facility be made fully accessible. Those cells

22

falling within the two percent rule are: one-person cells, two-

23

person cells, four-person cells, and isolation or other

24

specialized cells. The open ward area in Sector 37 must also be

25

made fully accessible.

26 2. All recreation or dayroom areas utilized by disabled detainees

27

and inmates in Module O of Theo Lacy must also be modified so

28

that they are fully accessible, including modifying the shower in

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

Module O, Sector 37, the toilet and sink associated with the recreation area, and the toilet, sink and shower in each dayroom associated with Module O. The County may no longer exclude wheelchair-bound detainees from being housed at Module O of Theo Lacy, provided the detainee can use the toilet, sink, and shower without medical assistance. The County may not bar disabled detainees housed in Module O of Theo Lacy from either the Inmate Programming Building or the Green Sector. This does not require the County to allow disabled and non-disabled detainees and inmates to take classes or recreate together, but it does require the County to provide disabled detainees with equal access to the Inmate Programming Building and to provide time for recreation in the Green Sector for disabled detainees in Module O. The MCJ At the MCJ, the County must ensure that the Inmate Programming staff regularly contact disabled detainees in Module O to ensure that they have access to the classes and programs offered there. The County must offer disabled detainees in Module O at the MCJ the opportunity to take vocational classes offered at Musick or Theo Lacy that cannot be offered at the MCJ due to limited physical space, which may require transporting detainees to Musick or Theo Lacy. The County must also offer disabled detainees in Module O at the MCJ the opportunity to engage in the types of outdoor recreation available at Musick or Theo Lacy but not offered at the MCJ due to limited physical space in the dayroom or on the roof, which may require transporting them to Musick or Theo Lacy.
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1 8. The County must offer disabled detainees in Module O at the MCJ

2

the opportunity to have contact visits with their families at the

3

visiting center at Musick, provided they meet the security

4

classification for such visits, which may require transporting

5

the detainees to Musick.

6 9. The County must modify and/or repair showers, toilets, and sinks

7

in Wards C and D to make them accessible to the full range of

8

mobility- and dexterity-impaired detainees.

9 10. The County must remove all remaining barriers to accessibility in

10

the dayroom of the Sheltered Living area, including modifying the

11

shower so it is accessible.

12 11. As to the three Sheltered Living cells which have been made

13

partially accessible, the County must complete that process by

14

installing an ADA-compliant sink and extending the grab bar by

15

the toilet in each cell.

16 12. With respect to the rooftop recreation area, the County must

17

install a safety rim on the ramp and a railing on the right side

18

of the ramp; it must also lower one of phones so that it is fully

19

accessible to a detainee in a wheelchair.

20

The IRC

21 13. For the IRC, the County must modify Sectors 13 and 14 of Module K

22

to make at least three of those cells fully accessible with ADA-

23

compliant sinks, beds, and toilets. The County may not require

24

disabled detainees to use portable commodes and shower stools or

25

require detainees to request transport to the WCJ for showers.

26 14. The County must remove structural barriers from the dayrooms used

27

by disabled detainees in Sector 13 and 14 through the

28

installation of accessible toilets, sinks, showers, and phones in

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1

those rooms.

2 15. The County must also modify the chapel area so that it is able to

3

accommodate classroom-style desks, computers, sewing machines,

4

and other equipment, although the Court will permit the County to

5

propose the best and most efficient way to do that without

6

permanently altering the chapel area and preserving the ability

7

to provide religious services there. In any event, the County

8

may not require disabled detainees to take classes in full view

9

of the guard station, in lieu of a private classroom setting

10

provided to non-disabled detainees and inmates.

11 16. The County must modify the sink and toilet in the recreation area

12

attached to Module K at the IRC so that they are accessible.

13 17. The County must offer disabled female detainees in Module K at

14

the IRC the opportunity to take any vocational classes offered at

15

Musick that cannot be offered at the IRC due to limited physical

16

space in the chapel room, which may require transporting them to

17

Musick for such classes.

18 18. The County must offer disabled detainees in Module K at the IRC

19

the opportunity to engage in the types of outdoor recreation only

20

available at Musick but not offered at the IRC due to limited

21

physical space in the recreation area attached to Module K, which

22

may require transporting them to Musick for recreation.

23 19. The County must offer disabled detainees in Module K at the IRC

24

the opportunity to have contact visits with their families at the

25

visiting center at Musick, provided they meet the security

26

classification for such visits, which may require transporting

27

them to Musick for that purpose.

28 20. The dayroom’s shower, bathroom, phone, and tables, the recreation

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1

area’s toilet and sink, and the visiting area on the second floor

2

of Module L must be made accessible in the same way as those

3

areas in Module K. The County is not excused from making these

4

physical modifications because of any hanging or suicide risks to

5

mentally ill inmates in Module L.

6 21. The County must make fully accessible one of the court transfer

7

cells and one of the release cells on the male side of the IRC

8

booking loop, and the same on the female side of the loop.

9 22. The County must lower one of each type of counter used by jail

10

staff and medical personnel as part of the booking process so

11

that they are at the appropriate height for individuals in

12

wheelchairs or with other mobility impairments.

13

The WCJ

14 23. In the event that the County elects to reopen the WCJ and house

15

any women with mobility or dexterity impairments in the prior

16

Infirmary area in the WCJ, that area must be made accessible by

17

installing an accessible toilet, sink, and hot water dispenser in

18

the dayroom, by modifying the “handicap” shower to make it fully

19

accessible, and by modifying individuals cells so that a

20

sufficient number are fully accessible.

21 24. Similarly, if any portion of the WCJ other than the Infirmary is

22

reopened, that housing area must have at least three ADA-

23

compliant cells and any associated dayroom and shower must be

24

modified to be fully accessible to detainees with mobility or

25

dexterity impairments.

26 25. If women with mobility or dexterity impairments are again housed

27

in the WCJ, the County must also modify the restroom and sinks on

28

the rooftop recreation area so that there is at least one

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1

accessible toilet and one accessible sink.

2

Musick

3 26. If any Musick classrooms need to be further modified to be fully

4

accessible in order to offer equal access to programs, services,

5

and activities at Musick that cannot be offered at the MCJ and/or

6

the IRC, those modifications must be made in order to accommodate

7

disabled detainees bussed there.

8

Records of Class Offerings and Attendance

9 27. The County shall maintain records for a period of two years

10

reflecting the class offerings and attendance of disabled

11

detainees at each jail facility.

12

Notice and Grievance Procedure

13 28. The County’s current notice of rights under the ADA is sufficient

14

to inform disabled detainees of their rights and the grievance

15

procedure.

16 29. Similarly, the County’s new grievance procedure, which allows

17

detainees to submit a written complaint on the current grievance

18

form to the newly designated ADA compliance officer in each

19

facility, is sufficient under the ADA to provide a mechanism by

20

which disabled detainees can submit a written complaint if they

21

believe their rights under the ADA have been violated.

22 30. In order to ensure that the notice is provided to all detainees

23

with disabilities, the County must post the notice so it is

24

readable by all detainees with disabilities, including those in

25

wheelchairs or with other impairments.

26 31. The County must provide ADA compliance officers in the different

27

facilities with a minimum of six hours of training on the ADA,

28

its application in jail settings, and their responsibilities to

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1

process and respond to requests for accommodation and/or

2

complaints of denial of access to programs and services.

3 32. The County must also institute an effective system of maintaining

4

and tracking all grievances raising claims under the ADA, but the

5

County may choose how it implements that directive.

6

Plaintiffs request that the Court order a special monitor to

7 oversee and report compliance with any injunction. The Court has the

8 authority to do so. See Benjamin, 343 F.3d at 44—47; cf. Plata, 603

9 F.3d at 1095—96. Nevertheless, the Court defers ruling on the

10 necessity for a monitor until it considers the County’s remedial plan. 11 VI. CONCLUSION

12

Plaintiffs have carried their burden to establish that the County

13 has violated the ADA in numerous respects in the Orange County Jail

14 System and that reasonable accommodations exist to remedy those

15 violations. The Court ORDERS the County to create a plan to remedy

16 those violations consistent with the Court’s Opinion. That plan must 17 be submitted to the Court within 45 days of the date of this Order. 18 Plaintiffs may respond to that plan within 21 days after the date of 19 its filing. The Court will hold a hearing to discuss the plan on 20 Monday, April 4, 2011 at 10:00 a.m.

21 IT IS SO ORDERED.

22

DATED: January 7, 2011

23

24

25

__________________________ AUDREY B. COLLINS CHIEF UNITED STATES DISTRICT JUDGE

26

27

28

82

 
 Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 1 of 21 Page ID #:4790

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 WESTERN DIVISION
11

12 FRED PIERCE, et al.;

13

Plaintiffs,

14

v.

SACV 01-0981 ABC (MLGx) CV 75-3075 ABC
RULINGS ON FINAL OBJECTIONS TO AMENDED PLAN (Docket No. 763)

15 COUNTY OF ORANGE, et al.;

16

Defendants.

17 Following a bench trial and the issuance of the Court’s Findings
18 of Fact and Conclusions of Law on January 7, 2011 (Docket No. 752
19 (“Order”)), Defendant County of Orange (the “County”) submitted a
20 proposed plan to address the deficiencies outlined in the Court’s
21 Order (Docket No. 753). Plaintiffs Timothy Conn, et al.
22 (“Plaintiffs”), filed objections to that plan. (Docket No. 754.) The
23 Court granted leave for the County to file a reply to Plaintiffs’
24 objections and submit an Amended Proposed Plan, which it did on May 2,
25 2011, resolving many of the outstanding issues. (Docket No. 762.)
26 However, there are several outstanding objections that the parties
27 could not resolve, as outlined by the County. (Docket No. 763.)
28 The Court held a hearing on May 23, 2011 to address these issues.

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 2 of 21 Page ID #:4791

1 Following that hearing, the County responded to several narrow factual

2 issues on June 6, 2011 and Plaintiffs replied to the County’s filing

3 on June 9, 2011. (Docket Nos. 768, 771.) The Court also set a

4 deadline of June 6, 2011, for the parties to propose monitors for the

5 Court’s selection, which they did. (Docket Nos. 767, 769.)

6

This Order resolves the remaining disputes over the appointment

7 of a monitor and the County’s final remedial plan. The County is

8 ORDERED to submit a final plan and judgment consistent with the

9 Court’s rulings herein no later than June 23, 2011. Plaintiffs must

10 file any objections to that plan no later than June 28, 2011, although

11 Plaintiffs are encouraged to do so as early after June 23 as possible

12 so the Court can enter final judgment by June 28.

13

APPOINTMENT OF MONITOR

14

The issue of the appointment of a monitor arose at several

15 points in the parties’ disagreements over the final plan. The Court

16 retains the inherent authority to appoint a special monitor to oversee

17 compliance with Court Orders intended to remedy statutory violations

18 in the prison context. See Benjamin v. Fraser, 343 F.3d 35, 44—47 (2d

19 Cir. 2003), abrogated in other part by Caiozzo v. Koreman, 581 F.3d

20 63, 70 (2d Cir. 2009); cf. Plata v. Schwarzenegger, 603 F.3d 1088,

21 1095—96 (9th Cir. 2010) (citing Benjamin and approving of use of

22 receiver under the Prison Litigation Reform Act (“PLRA”) to remedy

23 constitutional violations in state prisons), aff’d sub nom., Brown v.

24 Plata, __ U.S. __, __, __ S. Ct. __, __, 2011 WL 1936074 (2011).

25

The parties generally agree that the appointment of a monitor is

26 appropriate in this case to gather information, assess the extent to

27 which the County is complying with the judgment and injunction, and

28 provide the parties and the Court with reports identifying non-

2

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1 compliance and recommendations for further modifications. (Objection

2 No. 55.) The Court also agrees that appointing a monitor is critical

3 to ensuring compliance with the final judgment and injunctive relief

4 because Plaintiffs may have only limited ability to observe the

5 County’s compliance with the judgment and injunction in the

6 restrictive prison context. See Cobell v. Norton, 392 F.3d 461, 477

7 (D.C. Cir. 2004) (“‘Monitors are appropriate if the remedy is complex,

8 if compliance is difficult to measure, or if observation of the

9 defendant’s conduct is restricted.’” (quoting Robert E. Buckholz, Jr.,

10 et al., Special Project, The Remedial Process in Institutional Reform

11 Litigation, 78 Colum. L. Rev. 784, 828 (1978), which also states that

12 “[w]hen the defendant is a closed institution, such as a prison or

13 mental hospital, observing compliance may be difficult, and then

14 monitors will be appropriate.”)).

15

Moreover, the County’s most recent efforts to ameliorate what

16 can only be described as pervasive violations of the ADA are

17 commendable, but the County has not historically been willing to

18 remedy these violations, even when found by this Court and the Ninth

19 Circuit. Cf. Benjamin, 343 F.3d at 49 (finding appointment of monitor

20 justified in light of history of noncompliance with prior consent

21 decrees). Indeed, the Court recognized that the County’s inertia on

22 these issues “plainly” violated the ADA:

23

This case began almost ten years ago, has

been the subject of two bench trials, and has been

24

appealed to the Ninth Circuit and reversed and

remanded for further fact-finding. During this

25

time, the County has done very little to remedy

any of the physical barriers or unequal provision

26

of programs, services, and activities pointed out

by Plaintiffs, even after the Ninth Circuit found

27

in 2008 that the existing conditions violated the

ADA. As the Court discusses below, Plaintiffs

28

have shown quite plainly that mobility- and

3

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1

dexterity-impaired detainees are, by reason of

their disability, subject to physical barriers to

2

accessibility [in] many jail facilities, excluded

from participation in and denied the benefits of

3

the services, programs, or activities offered by

the County, and, until the eve of the last day of

4

the current trial, denied notice of their rights

and grievance procedures under the ADA.

5

(Order at 66.) Thus, the appointment of a monitor is warranted in

6 this case.1

7

The County has no substantive objections to the scope of the

8

monitor’s duties as set out by Plaintiffs. (Reply 28—29; see

9

Objection Nos. 55, 57—65.) The parties dispute, however, who the

10

monitor should be. The County initially proposed that the Court

11

appoint a County employee as the monitor, namely, Stephen Connolly,

12

the Executive Director of the County’s Office of Independent Review

13

(“OIR”). The OIR was created in 2008 to address citizen and other

14

complaints regarding Sheriff’s Department officers; the Executive

15

Director, who must be an attorney, heads the department and monitors

16

and reports on internal investigations and compliance with laws.

17

(Amended Plan, Ex. 2 (County Ordinance 08-004).) Appointed in 2008,

18

Mr. Connolly has professional experience with reviewing projects and

19

misconduct in police departments throughout California. (Amended

20

Plan, Ex. 3.) The County proposed that he would have at-will access

21

to inspect facilities, review records, interview class members, and

22

23

1To be clear, at this time the Court appoints only a monitor and

24

does not intend to appoint a special master under Federal Rule of Civil Procedure 53 or the Prison Litigation Reform Act, 18 U.S.C. §

25 3626(f). The monitor will not be given the quasi-judicial powers of a special master and will be responsible for performing only those

26 functions traditionally undertaken by a monitor. See Benjamin, 343 F.3d at 45—46 (explaining that the quasi-judicial duties of a special

27 master differ from a monitor’s “monitoring function” of “informing the

court of ongoing compliance efforts” and “facilitat[ing] the City’s

28 awareness of its compliance with remedial directives”).

4

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1 communicate recommendations and concerns to Sheriff’s Department

2 staff. He would also act as the direct liaison with the Court and

3 provide quarterly reports regarding compliance.

4

Plaintiffs objected to Connolly’s appointment on several grounds

5 and the Court agrees that Connolly cannot be appointed as the monitor.

6 First, there are serious potential conflicts of interest, given the

7 fact that Connolly is a County employee and maintains an attorney-

8 client relationship with the County’s Board of Supervisors. Second,

9 Connolly does not have any experience monitoring ADA compliance in

10 jail facilities, so the Court is not confident he could adequately

11 perform the duties required of a monitor in this case.

12

Plaintiffs initially proposed that Heidi Olguin be appointed as

13 the monitor. She has experience monitoring compliance with court

14 orders, but mostly in employment discrimination and public

15 accommodations cases; she did not have experience in implementing

16 orders dealing with ADA structural accommodations in prisons or other

17 governmental settings. (Docket No. 765, Ex. 1.) For that reason, the

18 Court has reservations about her appointment.

19

Following the May 23 hearing, the parties proposed additional

20 possible monitors. The County proposed the firm of Crout and Sida,

21 whose principals have significant experience with monitoring

22 compliance with Court orders in custodial settings. (Docket No. 767,

23 Ex. A.) However, for the myriad reasons raised by Plaintiffs that the

24 Court need not repeat here (Docket No. 769 & Ex. 2), the Court finds

25 that appointing Crout and Sida as the monitor would pose significant

26 conflicts of interest and would not be appropriate in this case. The

27 County’s other proposed monitor — John Collins — is a respected and

28 accomplished attorney, but the County did not propose that he would

5

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1 obtain the assistance of any other individuals with expertise in these

2 areas and, acting alone, he does not have the necessary experience

3 with either the ADA or consent decrees in the custodial setting.

4

Plaintiffs’ additional proposed monitor is Keith Rohman of the

5 consulting firm Public Interest Investigations. He has extensive

6 experience working with court-ordered injunctions in the custodial

7 setting, with regard to both investigation and oversight. (Docket No.

8 769, Ex. 1.) While he does not have a wealth of experience with the

9 ADA, he intends to work with another associate at his consulting firm,

10 Barbara Dalton, and another individual, Sue Tyler, both of whom have

11 extensive ADA experience, and intends to retain an architectural

12 barrier consultant as needed. Further, unlike the County’s Proposed

13 monitors of Stephen Connolly and Crout and Sida, Mr. Rohman and his

14 firm also do not present any conflicts of interest that might

15 undermine the integrity of his role as a neutral monitor. The Court

16 finds that Mr. Rohman, in conjunction with Ms. Dalton and Ms. Taylor,

17 is qualified to act as monitor in this case and is so appointed.

18

RULINGS ON PLAINTIFFS’ OBJECTIONS2

19 1. Moot in part; overruled in part.

20

a. The County has adopted a definition of disability to include

21

detainees with mobility or dexterity impairments, not just

22

detainees who must use wheelchairs, and has expressly

23

provided that the definition of “disability” “means a

24

disability as defined by the Court’s findings.” That is

25

26 2The Court has numbered the objections in the same way the County
27 numbered them in its summary. (Docket No. 763.) The Court assumes familiarity with the substance of those objections and does not repeat
28 them in this Order.

6

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

sufficient to address Plaintiffs’ objection. b. The County is correct that 42 U.S.C. § 12201(h), effective
January 1, 2009, excuses an entity covered by Title II of the ADA from providing a reasonable accommodation to an individual who is merely “regarded as having” a covered impairment, as provided in § 12102(1)(C). Even before these amendments, the Ninth Circuit has held in the employment context that “there is no duty to accommodate an employee in an ‘as regarded’ case.” Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1233 (9th Cir. 2003) (“Because [the plaintiff] is not actually disabled, the City did not have a duty to accommodate him.”). Thus, the class definition should not cover detainees solely “regarded as” disabled. Overruled in part; sustained in part. a. In some circumstances, temporary impairments or injuries may not be covered by the ADA because they do not substantially limit a major life activity. See Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996). However, Plaintiffs are correct that the class is not limited to individuals with only “permanent” disabilities because an impairment could be technically “temporary” (in that it might eventually disappear), but still substantially limit a major life activity during that time within the meaning of the ADA. See 29 C.F.R. § 1630.2(j)(1)(ix) (explaining that six-month “transitory and minor” exception to “regarded as” definition of disability does not apply to the “actual disability” and “record of” disability definitions); 29 C.F.R. Part 1630 App., § 1630.2(j) (effective May 24, 2011)
7

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

(explaining that “an impairment does not have to last for more than six months in order to be considered substantially liming” under the “actual disability” or “record of” disability coverages). While Plaintiffs cite 42 U.S.C. § 12102(3)(B) to define the class as detainees with impairments expected to last six months or longer, that provision only applies to individuals “regarded as” disabled, which does not apply here. Thus, the class is properly defined as pretrial detainees whose impairments substantially limit a major life activity, regardless of duration. b. The County is incorrect that it need not accommodate class members whose impairments only manifest intermittently. The ADA specifically provides that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D). The Court understands the potential administrative difficulty in classifying detainees whose impairments are not obvious at the time they are classified and placed in housing. However, that concern could be ameliorated by either placing detainees claiming to be disabled in modified housing or placing these detainees in regular housing and moving them into ADA-compliant housing when the condition manifests, which is the point at which reasonable accommodations would be required. Moot. Overruled. There is no need to appoint a separate medical expert to monitor the classification process, which would only second-
8

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

guess County medical personnel. As compliance is monitored, if an issue arises regarding the classification process, Plaintiffs can seek permission from the Court to allow their expert to conduct a review. But until that time, the need for another expert does not exist. Moot. Moot. Overruled. Plaintiffs’ request that any long-term modifications be completed within one year appears practically unrealistic. While lengthy, the County’s proposed long-term time line is probably reasonable, given the bureaucratic process for these types of major changes, which includes advance planning; open bidding for architects, engineers, and contractors; board approval; and construction. Overruled. The PLRA provides that an injunction “shall be terminable upon the motion of any party or intervenor — 2 years after the date the court granted or approved the prospective relief.” 18 U.S.C. § 3626(b)(1)(A)(i). The Court may extend that time if it “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 that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.” Id. § 3626(b)(3); see also Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008). Thus, the County is correct that at least the initial duration cannot exceed two years. The Court understands Plaintiffs’ concern that the two-year duration may not be long enough for
9

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1

County officials to internalize new procedures and complete the

2

necessary modifications, but, at the end of two years, Plaintiffs

3

may apply to renew the injunction pursuant to § 3626(b)(3) if the

4

facts at that time meet that standard.

5 9.

6

9A. Overruled. The Court previously concluded that Theo Lacy

7

was a “new” facility that must be made “readily accessible

8

to and usable by individuals with disabilities.” (Order at

9

29, FF ¶ 106.) Based on this ruling, Plaintiffs request

10

that the Theo Lacy facility be brought into “full

11

compliance” with the ADA; Plaintiffs also identify specific

12

shortcomings to the County’s plan and proposed

13

modifications. Because the request for “full compliance”

14

itself is vague and must be read in light of the specific

15

issues raised in this case, the Court overrules that general

16

objection. Moreover, since the County has agreed to

17

implement all the changes specifically identified by

18

Plaintiffs, Plaintiffs’ more general objection is moot.

19

9B. Moot.

20

9C. Moot.

21

9D. Moot.

22 10. Moot. Although not precisely the language requested by

23

Plaintiffs, the County’s amended plan requires the installation

24

of a “dexterity fixture control,” which responds to Plaintiffs’

25

objection that the shower controls must be modified to be fully

26

accessible. (Amended Plan 4.)

27 11. Moot, provided that the County continues diligent efforts to

28

transfer and house class members at Theo Lacy in accessible cells

10

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1

and areas.

2 12. Overruled. Plaintiffs object that at least three single-person

3

cells should be modified in the short term to accommodate class

4

members who require segregation from other inmates. The County

5

has indicated that only a few items for Module O of Theo Lacy are

6

intermediate-term projects, while the rest are short-term

7

projects, and once those modifications are done, the County will

8

have complied with Plaintiffs’ request. (Amended Plan 5–6.)

9

However, Plaintiffs’ objection appears to be that one accessible

10

single-man cell is inadequate, while the County seems to believe

11

that one single-man cell, one four-man cell, and the open

12

dormitory would provide the required accommodations. The Court

13

agrees with the County, given that 2% of the 36 single-man cells

14

in Module O of Theo Lacy would amount to only one cell that would

15

have to be modified. Plaintiffs has pointed to no specific

16

evidence that the number of class members needing single-person

17

cells would compel modifying more single-person cells. Thus, the

18

County’s proposal complies with the Court’s findings.

19 13. Moot.

20 14. Overruled. Plaintiff did not offer evidence that the fountain

21

and toilet in the Theo Lacy “Green Sector” were not accessible.

22

Nevertheless, the County indicates that it will be part of a

23

larger renovation plan. (See Amended Plan 6.)

24 15. Moot.

25 16. Moot.

26 17. Overruled in part; sustained in part.

27

a. The County states that it will not provide “the same range

28

of classes” at Theo Lacy as at other facilities, including

11

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1

Musick. The Court interprets that to mean that, while the

2

County will not offer the same classes at Theo Lacy as it

3

offers at MCJ (because class members have the opportunity to

4

be housed at either location), it will take measures to

5

ensure that class members housed at Theo Lacy and the MCJ

6

are given equal access to classes offered at Musick, such as

7

by transporting them to Musick for that purpose. (See,

8

e.g., Amended Plan 6–7.)

9

b. The County indicates that it intends to purchase an

10

accessible modular structure, but has not incorporated this

11

into its Amended Plan. The Court ORDERS the County to do

12

so.

13 18. Sustained. The County indicates that it will provide an

14

accessible bathroom in any new modular structure, but the County

15

has not included that provision into the Amended Plan. The Court

16

ORDERS the County to do so.

17 19. Moot.

18 20. Sustained. To the extent the County has not incorporated

19

Plaintiff’s specific requests for training on ADA procedures in

20

its Amended Plan, it is ORDERED to do so.

21 21. Moot.

22 22. Overruled. The County’s Amended Plan provides that one cell on

23

the female side and one cell on the male side in the Booking Loop

24

of the IRC will be made accessible for booking class members.

25

The County’s Amended Plan also provides that, in lieu of

26

modifying court transfer cells and release cells, the County will

27

transfer class members for court purposes by moving them directly

28

from their housing areas to awaiting vehicles and will conduct

12

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1

release procedures for class members in their housing areas, then

2

release them directly from there. This is a reasonable

3

accommodation and the County need not physically modify court

4

transfer cells and release cells in the Booking Loop.

5 23. Overruled. See Objection No. 22.

6 24. Overruled. See Objection No. 22.

7 25. Moot.

8 26. Sustained. While the Court’s findings of fact indicate that the

9

record supported modifying ten cells in the IRC to comply with

10

ADAAG requirements (Order at 25, FF ¶ 83; Order at 68), the Court

11

agreed with Plaintiff’s proposed injunctive relief that three

12

cells in the IRC would need to be modified immediately (Order at

13

78, ¶ 13; Docket No. 742 ¶ 441). The County requests that only

14

three cells be required to be modified at all, given than the

15

Women’s Central Jail will possibly be opened in the “not too

16

distant future” to house female class members. Given that there

17

is no certainty as to when the WCJ will open, ten cells will have

18

to be modified in Module K of the IRC. The Court ORDERS the

19

County to modify at least three of those ten cells on the

20

intermediate time line. The modifications for the other seven

21

cells may follow the County’s long-term time line.

22 27. Sustained. The County must install portable toilet and shower

23

units in the dayroom of Module K of the IRC. The County and

24

Plaintiffs have agreed that this work will be completed no later

25

than February 28, 2012 and the Court ORDERS County to complete

26

this work within that time line.

27 28. Sustained in part; overruled in part. The County must lower the

28

phones and jail rules in Module K within the one-month short-term

13

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1

time line, consistent with similar modifications at Theo Lacy the

2

County has agreed to implement on the short-term time line.

3

(Amended Plan 4.) The County may follow the intermediate time

4

line to install an accessible table, consistent with the time

5

line for the same modification at Theo Lacy. (Id.)

6 29. Overruled in part; sustained in part. The Court agrees that

7

three months probably does not provide enough time to implement

8

the modification of the sink and toilet in the outdoor area in

9

Module K of the IRC. However, the Court is concerned that the

10

long-term time line is too long to implement this modification.

11

The Court ORDERS that these modifications be completed within six

12

months.

13 30. Sustained.

14

a. The County has agreed to install a stairway lift at the IRC

15

to ensure access to visiting booths in the IRC for female

16

class members who do not qualify for non-barrier visits,

17

although the County proposes that this be done on a long-

18

term time line. At the May 23 hearing, the County agreed

19

that, during construction of the stairway lift, these class

20

members will be transported to the WCJ for visitation.

21

b. The County has agreed to accommodate female class members

22

whose security classification permits them to have non-

23

barrier visits at the WCJ and, if needed, they would be

24

transported to Musick for non-barrier visitation. (Amended

25

Plan 10, 15.) This is a reasonable accommodation and must

26

be implemented in the short-term.

27

c. The County may not avoid these accommodations in the IRC by

28

claiming that at some unidentified point in the future the

14

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 15 of 21 Page ID #:4804

1

WCJ will be reopened.

2 31. Sustained. The County’s final plan must provide procedures for

3

documenting all requests for visits by class members, where the

4

visit was provided, and whether the visit was denied for the

5

inability to accommodate the class member’s disability. Class

6

members must also be informed in writing that they are entitled

7

to request non-barrier visits at Musick and the MCJ/WCJ. These

8

records should be maintained for three years.

9 32. Moot.

10 33. Sustained.

11

a. The Court presumes that the parties are referring to male

12

class members (physically disabled detainees) who also

13

suffer from mental health conditions. If so, the County’s

14

plan for them is inadequate. Module L of the IRC is the

15

only specialized mental health unit in the jail system. The

16

County houses all non-physically-disabled male inmates and

17

detainees with mental health conditions there (except for

18

those with severe mental disorders, who are housed in the

19

hospital) and provides around-the-clock mental health

20

services to them. (Order at 25, FF ¶ 87.) Under the

21

County’s proposed accommodation, male class members with

22

mental health conditions would not be housed in Module L

23

like similarly situated non-disabled detainees; instead,

24

they would be moved in with other class members in

25

accessible housing areas and be provided mental health

26

services in those locations. Yet, the County presumably

27

created Module L to segregate inmates and detainees with

28

mental health conditions from the general population for

15

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 16 of 21 Page ID #:4805

1

medical and security reasons. The County does not explain

2

why those same reasons suddenly no longer apply when dealing

3

with class members who also suffer from mental health issues

4

and who could pose serious risks to themselves and others if

5

they are placed in housing with class members without mental

6

health issues. In fact, the County implicitly recognized

7

the need to house class members in Module L when it

8

renovated one cell in Module L in 2004 to make it

9

accessible. (Order at 26, FF ¶ 88.) Thus, the County’s

10

proposal is not a reasonable alternative to implementing the

11

additional physical modifications necessary to make Module L

12

fully accessible to class members with mental health

13

conditions who would be housed there, but for their physical

14

disabilities.

15

b. The County must make the following physical modifications to

16

ensure reasonable accommodation of class members with mental

17

health issues in Module L (Order at 25—26, FF ¶¶ 87—91):

18

install an ADA-compliant toilet and sink in the dayroom;

19

lower the phones; install an ADA-compliant table in the

20

dayroom; and modify the recreation area’s toilet and sink to

21

make them accessible. The County may propose time lines for

22

these modifications consistent with similar modifications at

23

other facilities.

24 34. Sustained in part; overruled in part. The Court agrees with the

25

County that not all modifications would have to be completed at

26

the WCJ before any female class members would be transferred

27

there. However, in order to transfer female class members to the

28

WCJ, the areas where they will be housed must be at least as

16

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 17 of 21 Page ID #:4806

1

accessible as the areas where they were being housed before the

2

transfer. Plaintiffs must be given the opportunity to inspect

3

housing areas in the WCJ prior to transfer to ensure that

4

accessibility is at the same or greater level as at the prior

5

housing area.

6 35. Moot.

7 36. Sustained.

8

a. While the County agrees to comply with Plaintiffs’

9

objection, the Amended Plan does not incorporate the

10

clarification that the toilet and sink area in the WCJ

11

Infirmary dayroom be made “fully accessible.” The Court

12

ORDERS that language to be included in the final plan.

13

b. Consistent with Objection No. 34, the modifications to the

14

sink and toilet must be completed before any transfers to

15

ensure they are as accessible as those in the prior housing

16

area.

17 37. Conditionally overruled. So long as the County does not open the

18

rooftop bathroom in the WCJ to any detainees or inmates,

19

regardless of disability, then no modifications are necessary.

20

If the County does reopen the bathroom to non-disabled detainees

21

and inmates, however, it must make the modifications ordered by

22

the Court to make the area accessible. (Order at 29, FF ¶ 104;

23

Order at 80 ¶ 25.)

24 38. Conditionally overruled. The Court agrees to some extent that

25

the implementation of procedures at the WCJ may be premature

26

without a fixed date for its reopening. However, the County has

27

repeatedly represented that the reopening of the WCJ in the “not

28

too distant future” should excuse modifications to the IRC. (See

17

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 18 of 21 Page ID #:4807

1

Objection Nos. 26, 28, 30.) The County cannot have it both ways.

2

Thus, the Court will excuse the County from creating written

3

procedures for the WCJ until a date is selected for its

4

reopening, but will not excuse the County from making the

5

required modifications in the IRC pending reopening of the WCJ.

6 39. Moot.

7 40. Moot.

8 41. Sustained. The County indicates that it is moving forward with

9

the renovations in the MCJ Ward C shower area, but that it cannot

10

do those renovations within six months, “for a variety of

11

reasons.” However, the County has known that this shower was

12

inaccessible since the Ninth Circuit’s decision in 2008. Pierce,

13

526 F.3d at 1217—18. Nevertheless, the County has represented

14

and Plaintiffs have agreed that the modifications in the Ward C

15

and D shower areas will be done no later than February 28, 2012,

16

so the Court ORDERS County to complete this work within that time

17

line.

18 42. Moot in part; overruled in part. The County has agreed to lower

19

the mirror and the posting of jail rules within the short term.

20

The County must lower the phone within the intermediate term.

21 43. Moot.

22 44. Sustained in part. The County must complete modifications of the

23

shower and dayroom in the Sheltered Living area of the MCJ within

24

four months of final judgment.

25 45. Moot in part; sustained in part. The County’s policies and

26

procedures must include training orders for deputies assigned to

27

Ward C in the MCJ.

28 46. Sustained. The Court agrees that deputies should document all

18

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 19 of 21 Page ID #:4808

1

transfers of class members in and out of the dayroom shower in

2

Ward C of the MCJ. Those records should be maintained and

3

provided to the monitor consistent with the County’s

4

documentation proposal. (Amended Plan 15.)

5 47. Sustained. The Court agrees that the County should document,

6

report, and monitor transports for non-barrier visitations to the

7

same extent as with other transport-dependent program offerings.

8 48. Sustained. The Court agrees that the County should document,

9

report, and monitor these transports for programs to the same

10

extent as with other transport-dependent program offerings.

11 49. Moot, although the County does not address Plaintiffs’ questions

12

regarding the discontinuing of certain classes not mentioned in

13

the Amended Plan. The County must include in the final plan

14

provisions that either enable class members to be transported to

15

Musick to attend classes or ensure that equivalent classes will

16

be offered in areas where class members are housed.

17 50. Overruled.

18 51. Overruled.

19 52. Overruled.

20 53. Overruled.

21 54. Overruled.

22 55. Moot.

23 56. Moot, given the selection of the monitor herein.

24 57. Moot.

25 58. Moot.

26 59. Moot.

27 60. Moot. The injunction will last for two years, but the County has

28

otherwise agreed with Plaintiffs’ proposal.

19

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 20 of 21 Page ID #:4809

1 61. Moot. The Court agrees with the County that the monitor need not

2

be the one to conduct the required training, provided that the

3

person the County selects for training is qualified to train

4

personnel on ADA-related topics.

5 62. Moot.

6 63. Moot.

7 64. Moot.

8 65. Sustained. Obviously, if the monitor contracts with experts or

9

consultants, they would be reasonably compensated for that work.

10 66. Moot.

11 67. Moot.

12 68. Sustained in part; overruled in part. Plaintiffs shall be

13

permitted to conduct one additional inspection in the second

14

year. After the expiration of two years, if Plaintiffs seek to

15

extend the injunction, they may be permitted to conduct an

16

additional inspection in preparation for any motion to extend the

17

injunction.

18 69. Moot.

19 70. Moot.

20 71. Moot.

21 72. Moot.

22 73. Moot.

23 74. Overruled. The Court will not rule on any request for attorney’s

24

fees at this stage of the litigation, including for the expense

25

of Plaintiffs’ counsel’s ensuring compliance with any injunction.

26

This does not prevent Plaintiffs from seeking attorney’s fees and

27

costs after final judgment, as well as renewing the pending and

28

currently stayed attorney’s fees motion.

20

Case 8:01-cv-00981-ABC -MLG Document 772 Filed 06/10/11 Page 21 of 21 Page ID #:4810

1 75. Overruled. Plaintiffs’ proposal is vague and overbroad. The

2

County’s proposals for documenting compliance with the Court’s

3

order are sufficient. The County must permit Plaintiffs to

4

inspect compliance records within a reasonable time period on

5

request.

6

7

The County is ORDERED to submit a final plan and judgment

8 consistent with the Court’s rulings herein no later than June 23,

9 2011. Plaintiffs may respond to the proposed plan no later than June

10 28, 2011, although the Court encourages Plaintiffs to respond earlier

11 to ensure the Court can enter final judgment by June 28, 2011.

12

IT IS SO ORDERED.

13

DATED: June 10, 2011

14

__________________________ AUDREY B. COLLINS CHIEF UNITED STATES DISTRICT JUDGE

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21

 
 Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 1 of 24 Page ID #:4532

I David D. Lawrence Esq. [State Bar No. 123039]

E-Mail: dlawrence a lbaclaw.com

2 Christina . pre~er, sq. State Bar No. 2051 05]

3

I

E-l\1ail: csccr~cxdbaclaVv'.COU1 LAWREN b E HALLEN &

CHOI

A Professional Corporation

4 1600 North Broadway, Suite l 010

Santa Ana, California 92706

5 Telephone No. (714) 479-0180

Facsimile No. (714) 479-0181

6

Wendy J. Phillips, Sr. Deputy [State Bar No. 178452]

7 E-Mml: wend;x.phillt}'i[cilcoco.ocgov.com

OFFICE OF 'IHE C lJN I Y COUNSEL

8 COlJNTY OF ORANGE

333 W. Santa Ana Blvd., Suite 407

9 P.O. Box 1379

Santa Ana, California 92702-13 79

10 Telephone No. (714) 834-3300

Facsimile No. (714) 834-2359

11

Attorne_ys for Defendan~

12 COUNTY OF ORANGI::j

13

UNITED STATES DISTRICT COURT

14
CENTRAL DISTRICT OF CALIFORNIA
15

16 FRED PIERCE, et al.,

17

Plaintiffs,

18

vs.

19 COUNTY OF ORANGE, et al.

20

Defendants.

21

Case No. SACV 01-981 ABC(MLGx) Consolidated with Case No. CV 75-3075 ABC (MLGx) DEFENDANT'S PROPOSED PLAN, SUBMITTED IN RESPONSE TO THE COURT'S JANUARY 7, 2011 FINDINGS OF FACT AND CONCLUSIONS OF LAW

22 JERRY E. STEWART, et al.,

23

Plaintiffs,

24

vs.

25

Status Conference/Hearing:

Date: Time:

A1O·-:onol4A,2.M01. 1

Ctrm: 980

26 BRAD GATES, et al.,

MATTER FOR DETERMINATION

27

Defendants.

\ BY THE HONORABLE AUDR~~y B.

----------------, COLLINS

28

I DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 2 of 24 Page ID #:4533

I

PLEASE TAKE NOTICE that pursuant to the Court's January 7, 2011

2 Findings of Fact and Conclusions of Law (Doc. 752), Defendant County ofOrangc
3 I hereby submits its Plan in response thereto.

4 I

/

5 Dated: February/~ 2011

Res ectfully submitted, L WRENCE BE

6

7

8

RENCF!--__,_-

9

CHRISTINA M. SPRENGER

Attorneys for Defendant

10

COUNTY OF ORANGE

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 3 of 24 Page ID #:4534

TABLE OF CONTENTS

2 I

Page

3 MEMORANDUM AND PROPOSED PLAN ........................................................... I

4 l. INTRODUCTION ........................................................................................ I 5 2. DEFINITIONS ................................................................................................. 1

6

Category # 1 Inmates (Cat #1) ............................................................................. I

7

Category #2 Inmates (Cat #2) ............................................................................. 1

8

Short Term Modification Project (ST) ................................................................ I

9

Intermediate Term Modification Project (IT) ..................................................... I

10

Long Term Modification Project (LT) ................................................................ 2

11

Inmate Programs Building (IPB) at the Theo Lacy Facility (TLF) .................... 2

12

Central Women's Jail (CWJ) vs. Intake Release Center (IRC) Module K......... 2

13 3. PLAN OVERVIEW (BY FACILITY) ............................................................ 3

14

A. Theo Lacy Facility (TLF) Module 0 ........................................................... 3

15

B. Intake Release Center (IRC) Booking Loop and First Floor ....................... 6

16

C. Intake Release Center (IRC) Module K (Alternate Plan ifCWJ remains

17

unoccupied) ......................................................................................................... 8

18

D. Central Women's Jail (CWJ) (Primary Plan ifCWJ is re-occupied) ........ 10

19

E. CentralMen'sJail(CMJ) ........................................................................... \3

20

F. James A. Musick Facility (JAMF) ............................................................. 14

21

G. Notice Of Rights Under The ADA............................................................. 16

22

23

24

25

26

27

28

1
DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 4 of 24 Page ID #:4535

MEMORANDUM AND PROPOSED PLAN

2 1. 3 I

INTRODUCTION A plan of action has been developed by the County and the Sherifr s

4 Department which includes the reassignment of housing locations for impacted

5 inmates, policy and procedural changes, and proposed structural and physical

6 alterations. Numerous actions are being taken now and in the immediate future

7 (weeks/months), while larger scale construction projects may take considcrably

8 longer to complete. Some of the modifications being initiated by the County

9 exceed those required by the Court.

10

Should the Court request clarification or explanation regarding the County's

11 proposal, it can be provided by Captain Davis Nighswonger who is the Division

12 Commander of the Theo Lacy Facility.

13 2. DEFINITIONS

14

Category #1 Inmates (Cat #1): Those inmates with permanent disabilities

15 who are wheelchair bound or have dexterity impairments but do not require

16 extraordinary medical care. As of Friday, February 11, 2011, there are five male

17 and zero female inmates in the Orange County Jail who fall within this category.

18 All five male inmates are currently housed in the Sheltered Living Cells ofthc

19 Central Men's Jail (CMJ).

20

Category #2 Inmates (Cat #2): Those inmates with permanent disabilities

21 who are wheelchair bound and require extraordinary medical care. As of Friday,

22 February 11, 2011, there are four male and zero female inmates in the Orange

23 County Jail who fall within this category. All four male inmates are currently

24 housed in Ward C of the CMJ.

25

Short Term Modification Project (ST): A physical alteration, modification,

26 or improvement that is estimated to be completed within weeks.

27

Intermediate Term Modification Project (IT): A physical alteration,

28 modification, or improvement that is estimated to be completed within months.

1 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 5 of 24 Page ID #:4536

Long Term Modification Project (LT): A large scale, complex physical

2 alteration, modification, and/or improvement that requires a redesign and

3 significant construction which is anticipated to take at least one year to complete.

4 Practices and project work in this category are governed by the County Contract

5 Policy Manual (CPM) and the California Public Contract Code, otherwise known

6 as the Uniform Public Construction Cost Accounting Act. An Architect/Engineer

7 (A/E) contract must be secured to complete all design and modification

8 specifications for these projects to ensure ADAAG compliance. Sec Attachment 1

9 for a chart/timeline providing further details regarding this process.

10

Inmate Programs Building (IPB) at the Theo Lacy Facility (TLF): This

11 building is currently used for a variety of inmate classes, vocational instruction, and

12 the inmate library. In July or August ofthis year, the functions and structure of this

13 building will be modified to accommodate Immigration and Customs Enforcement

14 (ICE) offices pursuant to the County's contract with ICE. Inmate programming

15 functions will be shifted to alternate locations (yet to be determined).

16

Central Women's Jail (CWJ) vs. Intake Release Center (IRC) Module

17 K: The CWJ is temporarily unoccupied by inmates, and the majority of assigned

18 staff members have been reallocated to other facilities. This action was taken as a

19 budgetary savings measure and as a consequence of the constraints imposed by the

20 current decrease in inmate population throughout the Orange County Jail system.

21 The CWJ will continue to be unoccupied until the demands of the inmate

22 population rise. The Sheriff's Deoartment cxoects this to occur in the future due to

~

~

~

l

23 a number of reasons, primarily the securing of contracts to house federal prisoners.

24

The CWJ is the logical choice to house Cat #1 and Cat #2 female inmates

25 and the following plan will outline the steps, construction, and other actions

26 necessary to make this occur. However, as the re-occupation of the CWJ is

27 uncertain, this document also identifies a plan to utilize Module Kin the IRC.

28 I I I

2 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 6 of 24 Page ID #:4537

3. PLAN OVERVIEW (BY FACILITY)

2

A. Theo Lacy Facility (TLF) Module 0.

3

I. Module 0 at the TLF is made up of 5 Sectors containing 54 cells and a

4

12 bed open dormitory. 1

5

2. Within the next two weeks, all Cat# 1 male inmates will be transferred

6

to the TLF and housed in Module 0 on the lower floor of Sector 37.

7

Sector 37 will be the primary housing location for all general

8

population Cat #1 male inmates in the future.

9

3. All Cat #2 male inmates will be transferred to the TLF and housed in

10

Module 0 on the lower f1oor of Sector 37. Sector 37 will be the

11

primary housing location for all general population Cat #2 male

12

inmates in the future. The transfer of Cat #2 male inmates requires the

13

reallocation of crucial medical staffing and services for their care, and

14

must be coordinated with the County's Correctional Health Services

15

(CHS). The transfer of services has been initiated; however, it

16

requires advanced planning, personnel reassignment, and other

17

measures before Cat #2 male inmates can be transferred.

18

4. The lower floor of Module 0 Sector 37 is the most ideal location for

19

Cat# 1 and Cat #2 male inmates; it is an open dormitory setting and

20

already complies with a number of ADA requirements. The following

21

physical modifications are proposed:

22

a. Lower one phone (ST)

23

24 1 As an alternative to making 2% of each type of cell accessible in Module 0 of the
25 TLF, Defendant proposes that the class members be housed in the open dormitory 26 (Sector 37) and that special handling class members be housed in the negative 27 pressure and isolation cells. In addition to it being impractical to place more than
one wheelchair in an individual cell (regardless of whether that cell is designed to 28 house one, two, or four inmates), the dormitory setting allows for greater ease of
movement by the wheelchair bound class members.

3 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 7 of 24 Page ID #:4538

b. Add one ADA compliant table (IT)

2

c. Adjust fixture height, add grab bars and bench seat for shower

II

3

(ST)

4

d. Lower the book shelf(ST)

5

e. Lower (or add a second) mirror (ST)

6

f. Move the toilet flush button (ST)

7

g. Lower the intercom (ST)

8

h. Lower posting ofjail rules (ST)

9

5. Cat #1 and Cat #2 male inmates with classification restrictions or

10

separation needs will be housed in Cell 3, of Sector 42 of Module 0.

11

This cell, also known as a negative pressure cell, will undergo the

12

following physical modifications:

13

a. Adjust shower fixture height (ST)

14

b. Add grab bars and bench seat for shower (ST)

15

c. Lower the intercom (ST)

16

6. Cat #1 and Cat #2 male inmates in Module 0 will be provided with

17

outdoor recreation. They may choose Green Sector at the TLF if their

18

classification status meets that of inmates housed in the Barracks and

19

their medical condition permits. The following physical modifications

20

are proposed for the Green Sector at the TLF:

21

a. Modify or lower water fountain (IT)

22

b. Redesign toilet area to meet ADA standards (ADA toilet, adjust

23

privacy walls, add grab bars) (LT)

24

7. Those Cat #1 and Cat #2 inmates who do not fulfill the classification

25

requirements for outdoor recreation in the Green Sector at the TLF,

26

and those class members who specifically request to stay in their

27

housing area, will be provided with outdoor recreation in the Module.

28

4 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 8 of 24 Page ID #:4539

The following physical modifications are proposed for the outdoor

2

recreation area within the Module:

3

a. Remove or shift the privacy wall (IT)

4

b. Add grab bars to toilet area (IT)

5

8. A visiting booth in Module 0 is ADA compliant. In addition, those

6

Cat #1 and Cat #2 male inmates whose classification meets that of

7

inmates housed at the James A. Musick Facility (JAMF) will be

8

offered non-barrier visits in the Barracks visiting area of the 'fLF 2

9

9. Cat #1 and Cat #2 male inmates in Module 0 will be offered a full

10

range of inmate program opportunities. This will be accomplished by

11

providing some programs in the Module, and transporting these

12

inmates to the IPB (until conversion begins) or designated alternative

13

locations in the Barracks area of the TLF. Religious services will be

14

provided in the Module or in the chapel. Additionally, those Cat# 1

15

and Cat #2 male inmates whose classification meets that of inmates

16

housed at the JAMF, and permitting medical conditions, will be

17

afforded the full range of programs and services offered at the JAMF

18

by transporting the inmates to the JAMF when necessary.

19

10. The Correctional Programs Technicians (CPT) assigned to the Theo

20

Lacy Module 0 inmate housing location will coordinate with the

21

Deputies in Module 0 to facilitate programs and services for class

22

members. The CPT will provide information regarding all available

23

programs and services to class members in Theo Lacy Module 0 and

24

25 2 During trial, the visitation arrangements at the JAMF were referred to as "contact 26 visits." In fact, visitors are not allowed contact with any inmates. Rather, inmates 27 sit on one side of a six-foot wide table during visitation, and visitors sit on the
opposite side; there is no glass or plastic partition between visitor and inmate. 28 Accordingly, the equivalent of JAMF visitation (i.e., visitation without a partition)
is referred to herein as "non-barrier" visitation.

5 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 9 of 24 Page ID #:4540

1

document each contact with said inmates. The documented

2

information will include whether or not each class member bas

3

requested a particular program or service. The CPT's supervisor wiil

4

keep these records on file for two years. The Correctional Programs

5

staff will make all programs and services provided in the Inmate

6

Programs Building (IPB) available to all class members with quali fled

7

classification and medical status.

8

11. TLF will adjust its policies and procedures to accommodate the above

9

provisions. Staffing resources will be adjusted or augmented to

10

provide additional personnel to escort and supervise Cat# 1 and Cat #2

11

male inmates in Module 0.

12

B. Intake Release Center (IRC) Booking Loop and First Floor.

13

1. The Booking Loop contains the following number of counters:

14

A. Women's Booking Area

15

Classification/Interview- 2

16

Fingerprint- 1

17

Adjustable Livescan Machine - 1

18

B. Men's Booking Area

19

Classification/Interview- 3

20

Fingerprint- 2

21

Adjustable Livescan Machines- 3

22

Detention Release Interview - 2

23

ICE- 2 (not relevant to this proceeding)

24

C. Medical Interview/Triage Area- 3

25

2. All incoming Cat #1 and Cat #2 male and female inmates will be

26

received and booked at the IRC. Specially purchased lift-capable

27

wheelchair(s) or lift(s) will be obtained to raise and lower these

28

inmates to the height of current counter space to afford interaction

6 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 10 of 24 Page ID #:4541

with jail personnel and processes. Deputies will be trained to properly

2

operate and maintain these chair(s) and/or lift(s). (IT)

3

3. All Cat #1 and Cat #2 male inmates will be processed and held in Cell

4

l 0 on the male side of the Booking Loop, which is ADA compliant.

5

All Cat #1 and Cat #2 female inmates will be processed and held in

6

Cell 5 on the female side of the Booking Loop, which is ADA

7

compliant.

8

4. All Cat #l and Cat #2 female inmates will be processed for court

9

transport in the IRC Court Transfer area. They will be held in Cell

10

TM 13, which will receive the following proposed modifications:'

11

a. Complete redesign of the cell (LT)

12

b. Move privacy walls (LT)

13

c. Adjust toilet and sink (LT)

14

d. Add grab bars (LT)

15

e. Adjust mirror (LT)

16

f. Widen door (LT)

17

5. First t1oor Release will be used to process those Cat# 1 and Cat #2

18

female inmates being released from custody. Special lift-capable

19

wheelchair(s) or lift(s) will be utilized. The following physical

20

modifications are proposed:4

21

a. Redesign of bathroom area (LT)

22

23 3 In the interim, female Cat #l and Cat #2 inmates will be taken directly fi·01n their 24 housing unit to the specially adapted vehicle used for transporting class members;

25 the process will be repeated upon their return from court. The same process will be

26

used for male Cat # 1 and Cat #2 inmates housed at the TLF. 4 In the interim, female Cat #1 and Cat #2 inmates will be given priority to

27 minimize the amount of time they spend in a release cell. The same priority will be

28 given to male Cat # 1 and Cat #2 inmates being released from the TLF.

7 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 11 of 24 Page ID #:4542

b. Modify toilet compartment (LT)

2 I

c. Install grab bars (LT)

3 I

d. Modify sink (LT)

4

6. The Central Jail Complex (CJX) will adjust its policies and procedures

5

to accommodate the above provisions.

6

c. Intake Release Center (IRC) Module K (Alternate Plan if CW.J

7

remains unoccupied).

8

1. Module Kat the IRC is made up of Sectors 9 through 14 containing 96

9

cells; as of February 11, 2011, there were zero female class members

10

in custody. 5

II

2. Cat #1 and Cat #2 female inmates will be housed in Sector 13, Cells 3,

12

5, and 7. These cells will serve as general population and special-

13

needs housing for those inmates with classification or separation

14

orders. The following physical modifications are proposed:

15

a. Redesign and construction of Cells 3, 5, and 7 (LT)

16

b. Redesign and construction of the shower and toilet areas ofthe

17

sector dayroom (LT). The Sheriffs Department is investigating

18

interim options including installation of a portable accessible

19

shower and toilet; installation of a portable accessible shower

20

along with the conversion of a cell including an accessible toilet;

21

and, modification of showers in the Disciplinary Isolation area

22

(which requires evaluation by an Architect/Engineering firm).

23

However, as ofthe date ofthe filing of this document, the

24

Sheriffs Department has been unable to identify an alternative

25

26

27 5 Defendant is aware of the Court's directive that ten cells in Module K be made 28 accessible (Order at page 68, lines 10 and 11 ). However, based upon the number of'
cells (i.e. 96 cells in Module K), Defendant proposes to make three cells accessible

8 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 12 of 24 Page ID #:4543

that provides greater access than the current accommodations.

2

The Sheriffs Department will continue to explore available

3

options and hopes to supplement this proposal prior to the April

4

4, 2010 hearing.

5

e. Modification of one dayroom table (LT)

6

d. Lower phones and intercoms in dayroom (LT)

7

e. Lower posting ofjail rules (ST)

8

3. Cat #I and Cat #2 female inmates in Module K will be provided with

9

outdoor recreation. If their classification status meets that of" inmates

10

housed at the JAMF and their medical condition permits, they will be

11

offered the outdoor area of the South Compound at the JAMF and will

12

be transported to and from that facility. Those who do not Ji.dfill these

13

requirements, and those who specifically request to stay in their

14

housing area, will be provided with outdoor recreation in the Module.

15

The following physical modifications are proposed for the outdoor

16

recreation area inside the Module:

17

a. Redesign and construction of the toilet, sink area (L'I')

18

b. Lower intercom (IT)

19

4. Visiting booths are available in Module K, and a special lift will be

20

installed on the stairway to accommodate Cat# 1 and Cat #2 female

21

inmates (LT). Those Cat# 1 and Cat #2 female inmates whose

22

classification meets that of inmates housed at the JAMF and whose

23

medical conditions permit will be offered non-barrier visits at the

24

JAMF or in the non-barrier Attorney Bonds area of the CWJ.

25

5. Cat #I and Cat #2 female inmates in Module K will be offered a full

26

range of inmate program opportunities. Programs currently offered at

27 I - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

28 which would exceed the current 2% requirement, and meet the anticipated increased requirement of 3%.

9 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 13 of 24 Page ID #:4544

1

the IRC will be made available to class members in the

2

chapel/classroom at the IRC. Religious services will also be made

3

available to class members in the chapel/classroom. Additionally,

4

those Cat #I and Cat #2 female inmates whose classification meets

5

that of inmates housed at the JAMF and permitting medical conditions

6

will be transported to and afforded the full range of programs offercd

7

at the JAMF in accessible classrooms.

8

6. The Central Jail Complex (CJX) will adjust its policies and procedures

9

to accommodate the above provisions.

10

7. The Con·ectional Programs Technicians (CPT) assigned to the Module

1 1

K inmate housing location will coordinate with the Deputies in

12

Module K to facilitate programs and services for class members. The

13

CPT will provide information regarding all available programs and

14

services to class members in Module K and document each contact

1 5

with said inmates. The documented information will include whether

16

or not each class member has requested a particular program or

17

service. The CPT's supervisor will keep these records on file for two

18

years. The Correctional Programs staff will make all programs and

19

services available to all class members with qualified classification

20

and medical status.

21

D. Central Women's Jail (CWJ) (Primary Plan if CWJ is rc-

22

occunied).

23

1. All Cat #1 and Cat #2 female inmates will be transferred to the CWJ

24

and housed in Tank 13 on the first floor. Tank 13 is open dormitory

25

style housing, and will be the primary housing location for all general

26

27

28

10 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 14 of 24 Page ID #:4545

population Cat #1 female inmates in the future. The following

2

physical modifications are proposed: 6

"J II

a. Redesign and construction of the bathroom and dayroom areas

4

(LT)

5

b. Lower bookshelf (ST)

6

c. Lower intercom (ST)

7

d. Lower phones (ST)

8

e. Add bunks of additional height to assist with inmate transfer (IT)

9

2. Cat# l and Cat #2 female inmates with classification restrictions or

10

separation needs will be housed in Sheltered Living Cells l and 2, and

11

Isolation Cell3. These cells will receive the following modifications:

12

a. Lower intercom (ST)

13

b. Lower mirror (ST)

14

3. Cat #1 and Cat #2 female inmates will be provided with showers in the

15

first f1oor shower area, which will receive the following modifications:

16

a. Widen doorway (LT)

17

b. Adjust shower fixture (IT)

18

c. Modify grab bars (IT)

19

4. Cell 10 of the Infirmary is an ADA compliant cell and the nearby

20

dayroom can be utilized with the following modifications:

21

a. Redesign and construction to enlarge the toilet/sink area (LT)

22

23 6 Defendant is aware of the Court's directive requiring that at least three cells in the 24 CWJ be made accessible if any portion of the CWJ other than the Infirmary is
reopened. (Order at page 80, lines 21 and 22). As an alternative, Defendant 25 proposes that the class members be housed in the open dormitory (Tank 13) and
26 that special handling class members be housed in the Sheltered Living and isolation "ry cells. In addition to it being impractical to place more than one wheelchair in an
Ll
individual cell (regardless of whether that cell is designed to house one, two, or 28 four inmates), the dormitory setting allows for greater case of movement by the
wheelchair bound class members.

11
DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 15 of 24 Page ID #:4546

b. Lower phone (IT)

2

c. Lower intercom (IT)

3

d. Lower mirror (IT)

4

5. Cat #1 and Cat #2 female inmates in the CWJ will be provided with

5

outdoor recreation. They may choose the outdoor area ofthe roof at

6

the CWJ, or the South Compound of the JAMF if their classification

7

status meets that of inmates housed at the JAMF and their medical

8

condition permits. The following physical modifications are proposed

9

for the roof area of the CWJ:7

10

a. Lower phone (IT)

11

b. Lower bulletin board (ST)

12

c. Modify water fountain (IT)

13

6. Those Cat #1 and Cat #2 female inmates whose classification meets

14

that of inmates housed at the JAMF and whose medical conditions

15

permit will be afforded non-barrier visits at the JAMF or the non-

16

barrier Attorney Bonds area of the CWJ.

17

7. Cat #1 and Cat #2 female inmates in the CWJ will be offered a full

18

range of inmate program opportunities. This will be accomplished by

19

providing some programs and religious services in the second floor

20

classroom ofthe CWJ, which is ADA compliant. Additionally, those

21

Cat #1 and Cat #2 female inmates whose classification meets that of

22

inmates housed at the JAMF and permitting medical conditions will be

23

offered the full range of programs offered at the JAMF.

24

25

26 7 Unless a reasonable alternative is identified in the interim, the restroom on the 27 roof of the CWJ will be closed to all inmates.
28

12 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 16 of 24 Page ID #:4547

8. The Central Jail Complex (CJX) will adjust its policies and procedures

2

to accommodate the above provisions.

3

9. The Corfectional Programs Technicians (CPT) assigned to the class

4

member housing location will coordinate with the Deputies to

5

facilitate programs and services for class members. The CPT will

6

provide information regarding all available programs and services to

7

class members in the CWJ and document each contact with said

8

inmates. The documented information will include whether or not each

9

class member has requested a particular program or service. The

10

CPT's supervisor will keep these records on file for two years. The

11

Correctional Programs staff will make all programs and services

12

available to all class members with qualified classification and medical

13

status.

14

E. Central Men's Jail {CMJ)

15

1. The CMJ will continue to house Cat #2 male inmates until they can be

16

transferred to the TLF in the future. These inmates will be housed in

17

Ward Con the second floor of the CMJ. This area will receive the

18

following modifications: 8

19

a. Redesign of bathroom and shower area (LT)

20

b. Lower mirror (IT)

21

c. Lower posting of jail rules (IT)

22

d. Lower phone (IT)

23

e. Redesign dayroom to provide accessible table (LT)

24

25 8 The County is aware of the Court's Order addressing Module Lin the me. and
26 Ward D and the Sheltered Living area in the CMJ. However, no modifications arc required of Module L, Ward D, or the Sheltered Living area because class members
27 will not be housed there. Male Cat #1 inmates are being moved to the TLF within 28 weeks, and the remaining male Cat #2 inmates will be housed in Ward C until they
are also moved to the TLF.

13 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 17 of 24 Page ID #:4548

2. The 18 Sheltered Living Cells in the CMJ will no longer house class

2

members. Consequently, in the shmi term, the associated shower and

3

dayroom may be utilized tor those class members housed in Ward C.

4

Deputies will be trained to respond to class members who request

5

showers in the Sheltered Living dayroom 9 This area will receive the

6

following proposed modifications:

7

a. Modify shower (IT)

8

b. Modify sink (IT)

9

c. Lower mirror (IT)

10

d. Adjust grab bars (IT)

I I

3. The roof recreation area at the CMJ will no longer be used by class

12

members. Instead, class members whose classification and medical

13

condition permit will be transported to either the TLF or the JAMF for

14

outdoor recreation. Class members who are transported to the TLF or

15

the JAMF for outdoor recreation will be assisted by the CPT in

16

coordinating that activity. The CPT will provide information to the

17

class member and document each contact with the class member. The

18

CPT supervisor will keep these records on file for two years.

19

4. Those Cat #2 male inmates whose classification meets that of inmates

20

housed at the JAMF and whose medical conditions permit will be

21

offered non-barrier visits in the Attorney Bonds area of the CMJ.

22

F. ,James A. Musick Facility (JAMF).

1. The JAMF will be utilized to provide outdoor recreation oppo1·tunities

24

to those Cat #I and Cat #2 male inmates whose classification meets

25

26

27 9 Defendant is aware of the Court's admonishment that the Sheltered Living shower 28 shall not be used for class members (Order at page 17, lines 3-6). However, the
Ward C shower is a long term project, and the Cat #2 inmates will only remain in

14 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 18 of 24 Page ID #:4549

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

that of inmates housed at the JAMF and have permitting medical conditions. Recreation will be provided in the South Compound. 2. A full range of programs wili be offered to all Cat #I and Cat #2 male and female class members whose classiilcation meets that of inmates housed at the JAMF and have permitting medical conditions. Class members will be transp01ied to and from the JAMF for that purpose. 3. The following Vocational Programs and Classes are currently being offered at the JAMF: cabinetry; sewing; stained glass; welding; Mothers of Preschoolers (MOPS); job development; and "Sew Much Comfort." 4. The Sheriffs Department is prohibited by contract and law from allowing the ICE Detainees housed at the JAMF to participate in Vocational Classes. For that reason and due to the overall low inmate population, the Sheriffs Department does not have enough inmates to make it cost effective to provide these Vocational Classes in the future. Consequently, the Sheriff's Department has begun the process of eliminating these classes. In the mean time, the CPT will provide information regarding all JAMF vocational classes to the class members in TLF Module 0, and IRC Module K, and CMJ locations, and will document each contact with said inmates. Those inmates who meet the classification requirements and have permitting medical conditions will be transported to the JAMF for the respective classes. The aforementioned documented information will include whether or not each inmate has requested a particular vocational program or class. The CPT's supervisor will keep these records on tile for two years.

28 Ward C until they are transferred to the TLF. See,,[ 3(A)(3) above. Consequently, Defendant requests the Court's indulgence.
15
DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 19 of 24 Page ID #:4550

G. Notice Of Rights Under The ADA.

2

l. The County will ensure that the notices are posted at a level that is

3

readable by class members, including those in wheelchairs or with

4

other impairments.

5

2. The County will provide ADA compliance officers in the difTcrcnt

6

facilities with a minimum of six hours of training on the ADA, its

7

application in jail settings, and their responsibilities to process and

8

respond to requests for accommodation and/or complaints of denial of

9

access to programs and services.

10

3. The County has instituted a new grievance process which will come

11

into etiect within the next three weeks, and is designed to maintain and

12

track all inmate grievances which raise claims under the ADA. The

13

new grievance process system includes a database that will store and

14

permit tracking of ADA grievances, and incorporates the other aspects

15

of the grievance process that this Comi has already approved.

16

17

Respectfully submitted,

18 Dated: February£, 2011

LA RENCE BEACH ALLEN GH\)f, PC

19

20

21

22

23

24

25

26

27

28

16 DEFENDANT'S PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 20 of 24 Page ID #:4551
1

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 21 of 24 Page ID #:4552

ATTACHMENT 1
MANDATED PROCESS FOR LONG TERM CONSTRUCTION PROJECTS
The Research & Development division of the Orange County Sheriff-Coroner Department is responsible for the management of alterations, improvements, and modifications to Sheriff-Coroner facilities. Practices and project work are governed by the County Contract Policy Manual (CPM) and California Public Contract Code.
An Architect/Engineer (A/E) contract will be secured for this project to complete all design and modification specifications in order to ensure ADA Accessibility Guidelines. AlE's are not on staff and are secured through contracts initiated by the County and its respective departments. Additionally, A/E construction estimates will be used to suppmi funding requests to the County Board of Supervisors.
The process steps and required timeframes necessary for funding approvals, structural design (A/E), and construction requirements pursuant to the Court's order of January 7, 2011 are as follows (and presume a beginning date of March 2011):

FUNDING REQUESTS AND APPROVALS FOR MANDATED ADA IMPROVEMENTS DESIGN

Budget Process for AlE budget Estimate A/E fees Submit Budget Request to CEO CEO Review Agendize for Board of Supervisors approval Receive Board of Supervisors approval

2 weeks 2 weeks 3 weeks 4 weeks 1 week

3 Months June 2011

PRELIMINARY SCHEDULE FOR MANDATED ADA IMPROVEMENTS DESIGN

AlE Selection Process Prepare Statements of Qualification (SOQs) Solicit SOQs Review and rate SOQs Negotiate with AlE Purchase Order process

2 weeks 2 weeks 2 weeks 2 weeks l month

3 Months September 20 ll

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 22 of 24 Page ID #:4553

Design Process Initial design period Design review and approval (Building Dep. & CDCR) Final design period

3 months
2 months 1 month

6 months March 2012

FUNDING REQUESTS AND APPROVALS FOR MANDATED ADA IMPROVEMENTS CONSTRUCTION

Budget Process for Construction budget Submit Budget Request to CEO CEO Review Agendize for Board of Supervisors approval Receive Board of Supervisors approval

2 weeks 3 weeks 4 weeks 1 week

2.5 Months June 2012

PRELIMINARY SCHEDULE FOR MANDATED ADA IMPROVEMENTS CONSTRUCTION

Construction Award Process ASR process for Board to approve advertising project Required advertising period Certify apparent low bidder ASR process for Board to award Construction Contract Approval of Contractor's Bonds & Insurance

5 weeks 5 weeks 2 weeks 5 weeks 3 weeks

5 months November 2012

Project Construction

13 months

December 2013

TOTAL PROJECT DURATION

32.5 months

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 23 of 24 Page ID #:4554

Project Construction Timeline

Areas other than housing identified for construction/modification can be overlapped in

order to shorten the total construction duration.

A
fi

V'ISUal1

re_ presem, an, •on

or,-.

sucn'

a

timeline is below:

1 I2 I3 I 4

Theo Lacy Mod

-0--,--

3/13

I MusiCk 3/13

Construction
Months
5 161 7 Is I 9

-·-"""

MCJ IRC areas other

----,-

than housing

I
61131

I I_Ifi35·: ~-~,·-·
10 I II

9/13 f

I IRCMod

1K&L

12/13 ..... - , _______

The above schedule assumes no delays as a result of the following conditions:
1. R&D project management resource attrition as a result of illness, family leave, jury duty, or other unplanned circumstances that can impact project schedules.
2. Any dispute or contest by architect or construction firms that could delay project start dates.
3. Delays in bond and insurance requirements for selected (responsive) architect or construction t!rms.
4. Board of Supervisor approval delays. 5. Jaillockdowns for inmate or security staff safety.
Notes:
1. The above schedule requires that structural projects at all three facilities (Thco Lacy, IRC, and James A. Musick) are running in parallel.
2. All jail construction and modifications require local planning and building department and California Department of Corrections and Rehabilitation (CDCR) review and approval prior to executing work.
3. The jail areas requiring construction/modification must be cleared of inmates for the duration of the work, which creates significant logistical issues when it involves housing locations.

Case 8:01-cv-00981-ABC -MLG Document 753 Filed 02/18/11 Page 24 of 24 Page ID #:4555

PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 I I, Donna Adams, am employed in the aforesaid County, State of California; I
4 am over the age of 18 years and not a party to the within action; my business 5 address is 1600 N. Broadway, Suite 1010, Santa Ana, California 92706.

6

On February 18, 20 II, I electronically filed the foregoing DEFENDANT'S

7 PROPOSED PLAN, SUBMITTED IN RESPONSE TO THE COURT'S

8 JANUARY 7, 2011 FINDINGS OF FACT AND CONCLUSIONS OF LAW with the Clerk of the Court using the CM/ECF system which will send notification

9 of such filing to the following e-mail addresses:

10
Dan Stormer 9.stormer@hadsellstormer.com,tgalindo(c[)hskrr.com 11 Virginia Keeny vkeeny(dl.hskrr.com,yanaya@bs.krr.com
12 HADSELL STORMER KEENY RICHARDSON & RENICK, LLP

13 Richard P Herman rherman@ricbardphcnnanlaw.com 14 A Law Corporation

15
Barrett S Litt jwhite@littlaw.com,blitt({illittlaw.corn 16 LITT, ESTAUR, HARRISON, MILLER & KITSON, LLP

17
Wendy J Phillips wcl1c:!:u~billips@coco.ocgov.com 18 Orange County Counsel

19

20 X (Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this

21

Court at whose direction the service was made.

22 Executed on February 18, 2011, at Santa Ana, California.
23

24

25

26

17 DEFENDANT'S PROPOSED PLAN

 
 Case 8:01-cv-00981-ABC -MLG Document 754 Filed 03/11/11 Page 1 of 35 Page ID #:4556

1 Dan Stormer, Esq. [S.B. #101967] Virginia Keeny, Esq. [S.B. #139568]
2 Radhika Sainaith [S.B. # 259318] HADSELL STORMER KEENY
3 RICHARDSON & RENICK LLP 128 North Fair Oaks Avenue, Suite 204
4 Pasadena, CA 91103-3645 Telephone: (626) 585-9600
5 Facsimile: (626) 577-7079

6 Barrett S. Litt, Esq. [S.B. # 45527] LITT, ESTUAR, HARRISON,
7 & KITSON, LLP 1055 Wilshire Blvd., Suite 1880
8 Los Angeles, CA 90017 Telephone: (213) 386-3114
9 Facsimile: (213) 380-4585

10 Richard P. Herman, Esq. [S.B. #53743] Law Office of Richard P. Herman
11 5001 Birch Street Newport Beach, California 92660
12 Telephone: (714) 547-8512 Facsimile: (714) 547-6975
13 Attorneys for Plaintiffs

14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16

17

FRED PIERCE, et al., 18

Plaintiffs,

19

vs.

) ) ) ) )

20 COUNTY OF ORANGE, et al.,

) )

21

22

Defendants.

) ) ) )

23

_________________________________

) )

24 JERRY E. STEWART, et al.

) )

25

Plaintiffs,

) )

26

vs.

) )

27 BRAD GATES, et al.,

) )

28

Defendants.

Case No: SACV01-00981-ABC (MLGx) Consolidated with Case No. CV 75-3075 ABC (MLGx) [Assigned to the Honorable Audrey B. Collins – Roybal Courtroom 680] PLAINTIFF’S REPLY TO DEFENDANT’S PROPOSED PLAN
Status Conference/Hearing: Date: April 4, 2011 Time: 10:00 a.m. Ctrm: 980

PLNTF’S REPLY TO DEFT’S PROPOSED PLAN 1

Case 8:01-cv-00981-ABC -MLG Document 754 Filed 03/11/11 Page 2 of 35 Page ID #:4557

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

Plaintiffs submit the following response to Defendant County of Orange’s

3 Proposed Plan in Response to the Court’s January 7, 2011 Findings of Fact and

4 Conclusions of Law.

5

6 DATED: March 11, 2011

Respectfully submitted,

7

HADSELL STORMER KEENY

RICHARDSON & RENICK LLP

8

9

By / s/- Virginia Keeny

10

Virginia Keeny

Attorneys for Plaintiff

11

FRED PIERCE

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLNTF’S REPLY TO DEFT’S PROPOSED PLAN 2

Case 8:01-cv-00981-ABC -MLG Document 754 Filed 03/11/11 Page 3 of 35 Page ID #:4558

1

TABLE OF CONTENTS

Page(s)

2

MEMORANDUM IN OPPOSITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4

II. INADEQUATE COVERAGE OF PROPOSED PLAN . . . . . . . . . . . . . . . . . . . . 1

5

A. Definition of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

6

B. Duration of Modification Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Duration of Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

7

III. PLAN OVERVIEW BY FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

8

A. Theo Lacy Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 9

1. Overall compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

10

2. Sector 37, Module O . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. Classification Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

11

4. Outdoor recreation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

5. Visits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12

6. Inmate Program Opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

7. Policies and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

13

B. INTAKE RELEASE CENTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 14

1. Proposed Changes to Booking Loop Counters . . . . . . . . . . . . . . . . . . . . . . . 13

15

2. Proposed Changes to Cells in Booking Loop,

16

Court Transfer and Release Cells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3. Module K and Female Class Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

a. Individual Cells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

17

b. Accessible Dayroom and Shower . . . . . . . . . . . . . . . . . . . . . . . . 16

c. Outdoor recreation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18

d. Visiting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

19

e. Inmate Program Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 f. Policies and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

20

4. Module L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

21

C. Central Women’s Jail (CWJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

22

1. Housing of Women in Tank 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2. Separation Cells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

23

3. Shower area for Women in Tank 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4. Infirmary Area Cell 10 of the infirmary . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

24

5. Outdoor recreation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 6. Visitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

25

7. Program offerings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

26

D. CENTRAL MEN’S JAIL (CMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

27

1. Ward C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 2. Sheltered Living Cells and Day room . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28

3. Recreation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 4. Visitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

5. Program offerings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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1

E. JAMES A. MUSICK FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2

1. Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

3 IV. NOTICE OF RIGHTS UNDER THE ADA . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4 V. TRAINING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

5 VII. MONITOR

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

6 VIII. ENFORCEMENT PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

7 IX. COMPLIANCE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 MEMORANDUM IN OPPOSITION

2 I. INTRODUCTION

3

Plaintiffs commend the County of Orange for presenting a coherent and extensive

4 Proposed Plan (hereafter the “Plan”) to begin to remedy the ADA violations found by this

5 Court to exist within the Orange County jails. The Plan goes far to address many of the

6 inaccessible features in the jails and proposes reassignment of inmates which appears

7 well-tailored to addressing immediate needs. The Plan remains deficient, however, in

8 many critical respects: 1) the definition of the class is overly narrow and has previously

9 been rejected by this Court; 2) it has no monitoring component to ensure timely

10 compliance, provide reports and underlying data to the court and counsel, and allow for

11 meaningful review; 3) it has insufficient training both in terms of number of trainings,

12 detail regarding the type of training, who will be trained, how often, and by whom; 4) it

13 omits any enforcement mechanism to permit swift recourse to the Court if compliance

14 does not occur; 5) with respect to Theo Lacy, it sidesteps its obligation to retrofit the

15 Module O facility, which was built after the passage of the ADA, to make it fully ADA

16 compliant; 6) it leaves female class members in completely inaccessible housing units for

17 an indefinite period of time; and 7) in various specific respects, it omits some of the relief

18 ordered by the Court.

19 II. INADEQUATE COVERAGE OF PROPOSED PLAN

20

A. Definition of Disability

21

Defendant’s Plan is fundamentally flawed because it narrows itself to only those who

22 are “wheelchair bound.”1 This narrow interpretation of the class has never been used in the

23

24

1 It should be noted that the term “wheelchair bound,” is not used by the

25

disabled community and has no accepted meaning. Is a person who must use a wheelchair for movement but who can use a stationary chair for seating

26

“wheelchair bound?” Is a person who sometimes uses a wheelchair but in other

27

instances uses a walker to maintain muscle strength (for example someone with

multiple sclerosis) “wheelchair bound?” Many people with significant mobility

28

impairments are not bound to a wheelchair but may resort to using one ove rthe

course of the day.

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1 case and was expressly rejected by the Court in response to Defendant’s attempt at trial to

2 argue that the class only applied to inmates who were both mobility and dexterity impaired.

3 (Court Order, dated January 7, 2011, at 3.) Just as this Court rejected the attempt to limit

4 the class to this small subset, the Court must reject this attempt. The class should cover all

5 detainees with mobility or dexterity impairmentswhich limit walking, sitting, or using their

6 arms or hands. This would include all those who are rqeuired to use walkers, canes, crutches

7 or prosthetics, not only those in wheelchairs. Defendant’s attempt to provide relief to only

8 those in wheelchairs, while leaving amputees, those in walkers or those on crutches in

9 inaccessible and dangerous housing units, deprived of all program access, is, quite frankly,

10 shocking.

11

Equally troubling, Defendant seeks toprovide accessible housing and programaccess

12 only to those individuals with a “perm anent” mobility or dexterity im pairment. This

13 language is not in the federal statute nor in the state statute, California’s Disabled Person’s

14 Act, Civil Code Section 54(c) and 54.1(d), which provides even broader relief.2

15

The ADA, as originally enacted, protected a "qualified individual with a disability"

16 from discrimination. The ADA defined an individual as “disabled,” and entitled to

17 protection, if he had "a physical or mental impairment that substantially limit[ed] [him in]

18 one or m ore … m ajor life activities [MLAs] ," i.e., was actually disabled, or if he was

19 "regarded as having such an im pairment." Id. § 12102 (2)(A) & (C). There was no

20 requirement in the language of the ADA that the impairment be “permanent.” Numerous

21 conditions are not “permanent,” but may be very disabling when they exist. For example,

22 many mental impairments are not “permanent” and even conversion disorders resulting in

23 paralysis, can abate or disappear completely. Someone may have a badly broken leg, hip or

24 back which may impede their walking for months or years, but ultimately recover from the 25 injury. Nonetheless, som e courts began to curtail the co verage of the Act by drafting 26

27

2 The Ninth Circuit acknowledged and approved that Plaintiffs were

28

pursuing claims under both the ADA and California’s Disabled Persons Act.

Pierce v. Orange County, 527 F.3d 1190, 1214 (9th Cir. 2008).

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1 limiting language onto the definition of disability. See, e.g.,Sutton v. United Air Lines, 527

2 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999)(a person whose physical or m ental

3 impairment was corrected by medication or other measures did not have an impairment that

4 substantially limited a major life activity).

5

On September 25, 2008 , Congress enacted the ADA Am endments Act of 2008

6 (ADAA) in order to "reinstat[e]a broad scope of protection" under the ADA and to "reject"

7 the holdings in Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 151 L. Ed.

8 2d 615 (2002), and Sutter. ADAA § 2(b), Pub. L. No. 110-325, 122 Stat. 3553, 3554.

9 Congress delayed the effective date of the ADAA to January 1, 2009. Id. § 8, 122 Stat. at

10 3559. As amended the new definition of disability includes all impairments unless they are

11 “ t r a n s i t o r y o r m i n o r . ” 3 “ T r a n s i t o r y o r m i n o r ” i s f u r t h e r

12
3
13

14

42 U.S.C. § 12102, as amended, provides the following “Definition of disability;”

As used in this Act:

15

(1) Disability. The term "disability" means, with respect to an individual--

16

(A) a physical or mental impairment that substantially limits one or more major life

activities of such individual;

17

(B) a record of such an impairment; or

18

(C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major life activities.

19

(A) In general. For purposes of paragraph (1), major life activities include, but are

20

not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating,

21

sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

22

(B) Major bodily functions. For purposes of paragraph (1), a major life activity also

23

includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder,

24

neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

25

(3) Regarded as having such an impairment. For purposes of paragraph (1)(C): (A) An individual meets the requirement of "being regarded as having such an

26

impairment" if the individual establishes that he or she has been subjected to an

27

action prohibited under this Act because of an actual or perceived physical or

mental impairment whether or not the impairment limits or is perceived to limit a

28

major life activity.

(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A

PLNTF’S REPLY TO DEFT’S PROPOSED PLAN 3

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1 defined as likely to last fo r less than six months. Thus, Defendant’s requirem ent of a

2 “permanent” disability has no basis in the statute. See Diaz v. Fed. Express Corp., 373 F.

3 Supp. 2d 1034, 1046 (C.D. Cal. 2005) (pre-am endment case rejecting requirem ent of

4 “permanent disability”). Furthermore, the regulations and the EEOCs' interpretive guidelines

5 clearly state that an impairment need not be permanent in order to rise to the level of a

6

7

8

transitory impairment is an impairment with an actual or expected duration of 6 months or less.

9

(4) Rules of construction regarding the definition of disability. The definition of

10

"disability" in paragraph (1) shall be construed in accordance with the following: (A) The definition of disability in this Act shall be construed in favor of broad

11

coverage of individuals under this Act, to the maximum extent permitted by the

12

terms of this Act. (B) The term "substantially limits" shall be interpreted consistently with the

13

findings and purposes of the ADA Amendments Act of 2008.

14

(C) An impairment that substantially limits one major life activity need not limit

other major life activities in order to be considered a disability.

15

(D) An impairment that is episodic or in remission is a disability if it would

16

substantially limit a major life activity when active.

(E) (I) The determination of whether an impairment substantially limits a major life

17

activity shall be made without regard to the ameliorative effects of mitigating

18

measures such as--

(I) medication, medical supplies, equipment, or appliances, low-vision devices

19

(which do not include ordinary eyeglasses or contact lenses), prosthetics including

20

limbs and devices, hearing aids and cochlear implants or other implantable hearing

21

devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology;

22

(III) reasonable accommodations or auxiliary aids or services; or

23

(IV) learned behavioral or adaptive neurological modifications. (ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or

24

contact lenses shall be considered in determining whether an impairment

25

substantially limits a major life activity. (iii) As used in this subparagraph--

26

(I) the term "ordinary eyeglasses or contact lenses" means lenses that are intended

27

to fully correct visual acuity or eliminate refractive error; and

(II) the term "low-vision devices" means devices that magnify, enhance, or

28

otherwise augment a visual image.

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1 disability. See 29 C.F.R. § 1630.2(j) (2) (iii) (sic); EEOC Compliance Manual § 902.4(d),

2 at 902-30.

3

In addition, the term disability also incorporates disabilities of tem porary duration

4 under Cal. Civ. Code § 54. Ellis v. City of Reedley, 2007 U.S. Dist. LEXIS 25333 *32 (E.D.

5 Cal. 2007); Cal Civ Code § 54; Cal. Govt' Code 12926(k)(1)(B). Under Cal Civ Code § 54,

6 "'[d]isability" means any mental or physical disability as defined in Section 12926 of the

7 Government Code," which the California S upreme Court h eld "is intended to result in

8 broader coverage under the law of this state than under that federal act." Colmenares v.

9 Braemar Country Club, Inc., 29 Cal. 4th 1019, 1027 (2003). Accordingly, inEllis, the court

10 found that "infrequent" migraine headaches constituted a disability as defined by Cal. Govt'

11 Code 12926(k). Ellis, 2007 U.S. Dist. LEXIS 25333 at *32.

12

Furthermore, the class must also include all those who are “perceived as disabled.”

13 If a person isperceived as disabled from a mobility perspective, whether short or long term,

14 they are p laced by Defendant in one of thes e segregated housing units. If they are not

15 perceived as disabled by the jail classifica tion personnel, they ar e placed in general

16 population. Thus, once a person is classifiedbecause they are perceived as having a mobility

17 impairment and segregated fromthe general population in Ward C, or Module K or wherever

18 the County wants to house people with impairments and assistive devices, they all should

19 receive the same treatment and be placed in fully accessible cells.

20

Defendant is currently proposing an indefe nsible, unsafe, and, Plaintiffs contend,

21 illegal system, wherein individuals who it concedes are permanently disabled are placed in

22 accessible cells (which it is committing itself to build), while those who are considered

23 disabled enough to be put in Ward C or M odule K (but are not “wheel chair bound”), are

24 required to continue to use inaccessible features and will not have access to programs and

25 activities offered to non-disabledinmates. This two tier systemif antithetical to the purposes

26 of the ADA.

27

Thus, the class to be protected should include all those with disabilities as defined by

28 the ADA, as am ended. It should specify that this includes all those with im pairments

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1 expected to last six or m ore months, as well as all of those p erceived to have conditions

2 which impair their ability to use their arms or legs. Otherwise, defendant will continue to

3 house individuals using casts, crutches and can es in cells without accessible features; and

4 deny these same i ndividuals access to program s and services. This would defeat the

5 purposes of the recent amendments to the ADA to make the definition of disability and the

6 protections of the Act as broad as possible. See, e.g.EEOC v. AutoZone, Inc., 630 F.3d 635

7 (7th Cir. 2010).

8

Additionally, Plaintiffs are concerned aboutthe designation for Cat #2 inmates, which

9 states that these inmates are “wheelchair bound” and “require extraordinary medical care.”

10 At trial, defendant explained that those who truly need extraordinary care are in a hospital

11 associated with the jail. Th e single nurse who was on duty in Ward C to deal with all

12 inmates placed there was hardly capable of providing “extraordi nary medical care.”

13 Plaintiffs understand this designation, therefore, to designate nothing more than that these

14 class members do not need hospital care, but require some access to nursing supervision.

15 Thus, Plaintiffs do not want these Cat#2 inmatesto be denied access to programs, visits and

16 outdoor recreation, categorically, because they fall into this subclass. Each inmate must be

17 assessed individually and on an ongoing basis to determ ine if he or she is capable of

18 participating in such activities.

19

In discussions with individuals in the disabled rights community, Plaintiffs’ counsel

20 has heard concerns expressed about the low number of class m embers identified by

21 defendant. Nine m ale class members and no fem ale class members, as reported by the

22 County, was considered highly unlikely given the number of people with disabilities in the

23 general population and the prevalence of mobility impairments in older communities, and 24 communities with high incidence of diabetes, am ong others. Plaintiffs share this concern 25 that the County may be under- designating individuals as part of the class through improper 26 medical classification. Therefore, Plain tiffs urge the Court to appoint Dr. Terry Hill to 27 conduct a short term review (six months from date of entry of the order) of the following 28 issues: 1) the classification process itself to ensure the County is placing detainees with

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1 mobility and dexterity im pairments in the protected class an d not improperly excluding

2 individuals by deeming them to be “impermanent;” and 2) the medical assessment used by

3 the jails to determ ine whether class m embers can participate in programs or activities to

4 ensure that they are not being excluded wit hout medical basis. Dr . Terry Hill is a well

5 respected expert on issues ofinmate medical classification and has worked extensively with

6 the receiver on the ongoing federal litigation challenging the m edical care in California’s

7 prison system. Dr. Hill’s curriculum vitae is attached hereto as Exhibit 1.

8

B. Duration of Modification Process

9

While Plaintiffs acknowledge that some barrier removal projects or remodeling will

10 take more than a few weeks, and that there is value in distinguishing between short termand

11 longer term remediation, the proposed categories are so im precise as to be m eaningless.

12 According to Defendant, “short term” modification is a modification which can be completed

13 within “weeks.” This is too imprecise , as it could mean as few as two weeks or as many as

14 100 weeks. Short term is bette r defined as “within one m onth of the entry of the court

15 order.”

16

“Intermediate Term” modifications also should be recognized but again need a more

17 precise measurement than “months.” Intermediate Term modifications should be defined to

18 be “completed within 6 months from entry of the order.”

19

“Long term” project cannot be defined with the open-ended term of “one year or

20 longer,” as that could allow delays of m any years. Plaintiffs propose that the long term

21 modifications be completed within one year of entry of the order.

22

C. Duration of Injunction

23

Although Defendant has not set forth a ny proposed tim e limit for the injunction,

24 Plaintiffs believe that a three year period is necessary. First, m any of the repairs, by

25 Defendant’s own admission, will take some time, even up to a year, to complete. Many of

26 the proposed procedures are brand new to the jails and will need tim e to be rolled out to

27 deputies, reviewed and possibly adjusted. Fo r a jail culture to a ctually internalize new

28 procedures, there needs to be several years ofuniform and monitored practices. Therefore,

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1 a minimum of three years is required for any injunction.

2 III. PLAN OVERVIEW BY FACILITY

3

A. THEO LACY FACILITY

4

1. Overall compliance

5

Defendant cannot avoid its legal obligation to bring Module O of Theo Lacy, a

6 building that was constructed entirely after the passage of the ADA, into full compliance

7 with the ADA. (Court Order, ¶ 106, citing 28 C.F.R. Sect. 35.151(a).) While Defendant’s

8 current Plan in m any respects is a satisfactory response to housing disabled inm ates,

9 Defendant has no long term plan for retrofitting this facility so that it is fully compliant.

10 Defendant was under a mandatory duty to build the requisite number of cells and to make

11 the facility fully accessible when it was first constructed. Id. It did not do so. Id. While it

12 well may be the case that it m ay take m ore time to rem edy the situ ation post-original

13 construction, Defendant must initiate and complete those steps in a reasonable time frame.

14

The Court made very specific findings and orders regarding Module O at Theo Lacy

15 which have been disregarded by Defendant. The Court found that Module O was built in

16 2001 and so must be deemed a “new facility” under the ADA regulations. As a whole, the

17 Court found, it must be “readily accessible to and usable by individuals with disabilities.”

18 (Order ¶ 106, p. 29.) The Court found that none of the cells in Sector 41 (made up of single 19 and two person cells) had been m odified, although disabled detainees and inm ates were 20 housed there. (Order, ¶ 115, p. 31.) The Court also found that 2% of the cells in the five 21 identical sectors in Module O could be m ade accessible. Id., at 117. However, the court 22 found that the evidence was insufficient to determine the total num ber of cells. Id.. 23 Accordingly, the Court stated that “the Countyis ordered to provide Plaintiffs’ counsel and 24 the Court with the number of total cells in order to determine the two-percent figure. This 25 must be included in the plan which the court has ordered.” Id., at ¶ 117. Based on the 26 numbers which the County was to provide, the court ordered that at “least two percent of 27 each type of cell in that facility[Module O] be made fully accessible.” (Order, at p. 76, lns. 28

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1 19-25.) This information was not provided in the Plan.4

2

Defendant’s current proposal, making one open ward accessible by bringing its shower

3 and toilet and phone up to code, does not co mply with the ADA. New constru ction and

4 every aspect of that construction must be accessible. The 2% requirement applies to each

5 type of cell and is not met by clustering all inmates in one room. There well may be inmates

6 with disabilities who need single cell, double cell or even four person cell configurations.

7 The jail designed those different types of cellsfor a penological reason (isolation, discipline,

8 moderated social interaction, bunking with similar types of people) – disabled persons are

9 not excluded from that same analysis merely due to their disability.

10

Therefore, the Plan needs to be modified as follows: Defendant will produce the total

11 number of cells (and a breakdown by type of cells) for each of the Sectors in Module O at

12 Theo Lacy. This information will be providedto Plaintiff’s counsel and the court within one

13 week of the entry of this order.

14

Defendant will prepare a plan setting forth how2% of each of these types of cells can

15 be made accessible, time frame for completion of construction and when such construction

16 will be commenced. The construction may take place on a staggered basis with a smaller

17 percentage of cells being completed initially than the total goal of 2% for each cell type.

18

In completing this retrofittin g, however, Pl aintiffs have no objection to all of the

19 accessible individual cells being grouped in one sector, either Sector 37 or another sector,

20 since it will clearly be m ore economical to have only one accessible dayroom , shower,

21 phone, etc., servicing all of those cells. In othrewords, Defendant doesnot need to make all

22 of the Module O dayrooms accessible (shower, phone,tables, toilet, etc), as long as one such

23 dayroom opening onto accessible cells (2% of total) is created.

24

2. Sector 37, Module O

25

Plaintiffs have no objection to Defendant’s basic proposal to transfer Cat #1 inmates

26 into Sector 37 of Module O (the open ward), as it appears that Defendant is committing to

27

28

4 Defendant did not break down the different types of cells by category, as

requested by the court.

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1 make that ward fully accessible. Plaintiffs agree with the proposed m odifications to the

2 phone, tables, shower, book shelf, m irrors, toilet flush button, intercom and jail rules (as

3 outlined at 3.A.4.(a)-(h)). Defendant has committed to making those modifications “within

4 weeks,” and to accomplish the transfer within two weeks. Plaintiffs note that these

5 modifications omit alterations to the shower control to make it accessible and that feature

6 should be added to the order as follows:

7

3.A.4.c. “Adjust fixture height, add grab bars and bench seat for shower;and modify

8 controls so fully accessible.”

9

Plaintiffs do, however, object to the uncerta in time frame for the transfer of Cat #2

10 inmates. No time fram e is given and so those inm ates apparently will rem ain in the

11 inaccessible and problematic Ward C for an indefinite time period. Defendant must commit

12 to the transfer of those inm ates within 3 m onths of the entry of this order, or they m ay

13 continue to languish there as they have for years despite findings by this court and the 9 th

14 circuit that Ward C’s facilities are hazardous and unlawful. The Court will recall that it is

15 Ward C where the shower posed an immediate threat to inmates with disabilities and was

16 found by this Court to be irremediable and unusable without physical modifications.

17

3. Classification Restrictions

18

The provision of only one single person cell in Module O at Theo Lacy for all male

19 inmates with disabilities who require separation from other inmates is entirely inadequate.

20 The inmates who may need separation include those with 1) infectious diseases; 2) protective

21 custody classifications where they m ay be hurt by others either due to the nature of their

22 violation; gang ties; or law enforcement affiliation; 3) administrative segregation for those

23 who could hurt others; and 4) disciplinary isolation for those who require discipline. It is

24 completely inadequate to provide only one cell for these purposes. At least three other cells 25 in Module O, Sector 37 need to be retrofitted inthe short run to be fully accessible (prior to 26 the longer term project of making 2% of all different types of cells accessible in Module O). 27

28

If those cells do not have adequate room for an in-cell shower, provisions need to be

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1 made to transfer those inmates to an accessible and segregated shower area in one of th e

2 other Sector’s in Module O. As this Court found when assessing similar situations in the

3 dayroom area for Module K (where female detainees are housed in the IRC), the County

4 could replace the inaccessible pre-fab shower currently used in these dayrooms with an

5 accessible model, at a cost of approximately $11-$20,000. (Order, ¶ 74, p. 23.) Similarly,

6 the dayroom for these segregated cells must be modified to install an accessible toilet, phone,

7 table, bulletin board, mirror and other similar amenities. By installation of such accessible

8 features, inmates requiring separation would be given the same day room and shower

9 privileges as other inmates.

10

Finally, as to the proposed changes to Cell 3 of Sector 42, a negative pressure cell

11 which presumably fulfills some purpose for containing disease, Plaintiffs have no objection.

12 (Defs. Plan at 3.A.5, p. 4.) These simple changes to the shower height, grab bars and bench

13 set and lowering of i ntercom unit are appropriate and should be m ade as short term

14 modifications (a matter of weeks) as provided in the Plan.

15

4. Outdoor recreation

16

The barrier removal proposals in the Plan for the Green Sector and for the recreation

17 area attached to Module are appropriate. A specific deadline for their completion must be

18 set, however, as “Long Term ” projects, according to Defendant, can ta ke a year or m ore.

19 The modifications to the water fountain and toilet in the Green Sector and the toilet in the

20 outdoor Module Recreation area should be orderedcompleted within 9 months of the entry

21 of this order to ensure timely completion.

22

Defendant’s decision to allow detainees with disabilities to use the Green Sector is

23 appropriate and should im pose little additional burden on de fendant. Pla intiffs remain

24 concerned , however, that de puties may discourage inmates from using the Green Sector

25 (because it requires transport of inmates a longer distance) or by using the excuse of medical

26 condition to deny outdoor recreation. Thereofre, the ADA Compliance person for Theo Lacy

27 should be charged with 1) conducting regular quarterly meetings with staff at Module O to

28 explain the contents of this order and the need to provide equal access to recreation; 2)

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1 meeting with inmates to ascertain whether th ey have been p rovided access; 3) review of

2 request sheets and complaint forms from inmates (discussed further below); and reports to

3 the monitor on a quarterly basis on compliance.

4

5. Visits

5

Plaintiffs have no objection to the proposed visiting plan. However, as with other

6 plans which are dependent on deputy movement, it is essential that deputies are trained on

7 these new rules and that compliance is enforced. Therefore, the ADA Compliance person

8 for Theo Lacy should be charged with 1) conducting regular quarterly meetings with staff

9 at Module O to explain the contents of this order and the need to provide equal access to

10 visitation; 2) meeting with inmates to ascertain whether they have been provided access; 3)

11 review of request sheets and complaint forms from inmates (discussed further below); and

12 reports to the monitor on a quarterly basis of compliance

13

6. Inmate Program Opportunities

14

It is extremely problematic that Defendant has elected to close the only accessible

15 program building it has constructed at Theo Lacy and to contract out that facility to ICE.

16 Defendant’s proposal to shift the program s to “designated alternative locations in the

17 barracks area of the TLF” may be a suitable proposal but it is impossible to assess that plan

18 until it is im plemented. As long as the IPB is operational and used by inm ates at TLF,

19 defendant should be directed to offer class members full access to programs at that facility

20 and document which classes have been offere d, to whom and whether they have been

21 accepted.

22

Once the IPB building closes, a new acce ssible building must be provided for

23 inmates which offers the same range of classes as available at the other facilities, including

24 Musick. It must have accessible classrooms with desks and chairs and equipment which is

25 accessible to mobility and dexterity im paired individuals. There should be at least one

26 accessible bathroom in the facility for disabl ed detainees to use. The County should be

27 precluded from using the tiny and inferior “classrooms” at Module O, which have no desks,

28 chairs, computers or training m aterials and which are large enough to hold only a few

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1 inmates.

2

The proposed use of CPTs and a CPT supervisor to provide information on classes,

3 to document all contacts with class members, to keep records of which inm ate requested

4 classes and which were provided is appropriate. This information must be maintained for

5 three years (not two as Defendant proposes), and provided to the m onitor each quarter to

6 ensure compliance and to plaintiff’s counsel upon request.

7

With respect to transportation to Musick, which is coordinated by deputies, the ADA

8 Compliance officer will be responsiblefor training deputies about their obligations to explain

9 transportation opportunities, to coordinate w ith CPT officials about class availability, to

10 coordinate transportation, and to document contacts with classmembers relative to offers to

11 transport to Musick or other facilities within TLF, if deputy escort is required.

12 Documentation of training, contacts, offers oftransport and classestaken will be maintained

13 for three not two years and provided for inspection to the monitor on a quarterly basis or to

14 plaintiff’s counsel upon request.

15

7. Policies and Procedures

16

The proposed plan states that the TLF “w ill adjust its policies and procedures to

17 accommodate” the various changes. These new procedures need to be in written form ,

18 prepared within a month of the entry of the Court’s order, and provided to the monitor and 19 class counsel within 45 days of entry for reviewto ensure that they are clear and complete. 20 The ADA Compliance official for TLF will ensure that all deputies are trained on these new 21 policies and procedures whenthe new rules go into effectand on an ongoing basis thereafter. 22

23

B. INTAKE RELEASE CENTER

24

1. Proposed Changes to Booking Loop Counters

25

Plaintiffs do not object to the special lift dveices proposed as an alternative to lowering

26 the counter heights.

27

2. Proposed Changes to Cells in Booking Loop, Court Transfer and Release Cells

28

Plaintiffs object to Defendant’s plan to tehextent that it ignores the Court’s order that

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1 it must make fully accessible both a court transfer cell and a release cell on the male side of

2 the booking loop and the sam e on the fem ale side. (Court Order, ¶ 21, p. 80.) While

3 Defendant’s Plan appears to create an accessibl e court transfer cell for female inmates, it

4 omits such a cell for male inmates.5 The Plan must include modifications to create a fully

5 accessible cell for male inmates (separate from female inmates) in the court transfer area.

6

In addition, it does not appear that anyplan has been made to create accessiblerelease

7 cells for male or female inmates despite this Court’s order. As far as Plaintiffs can discern,

8 the only proposal by the County is that they willtry to “speed up” the release process. This

9 is an insufficient response to the problem of holding disabled people in cells without

10 accessible facilities for indefinite periods of time. The County needs to commit to modifying

11 a release cell on the male and the female side which is separate from the booking cell and the

12 court transport cell area. Inm ates who are being released have either 1) been found not

13 guilty; 2) charges have been dropped: 3) they have posted bail, or 4) they have served their

14 time. There is no reason why they should c ontinue to be housed even tem porarily with

15 inmates coming into the jail systemfacing serious charges or who are serving their sentences

16 in the county jail.

17

3. Module K and Female Class Members

18

The County’s current plan for females with mobility and dexterity impairments is

19 entirely unacceptable as it appar ently continues to house fem ale detainees in entirely

20 inaccessible cells in Module K at the IRC.

21

a. Individual Cells

22

First, Defendant asserts that as a “long term” modification, it intends to make only 3

23

24

25

5The proposed modifications to TM13 (to create an accessible cell for female inmates in the IRC court transfer area) appear appropriate. (Defs’ Plan, p. 7,

26

Section 3.B.4. In the interim period before this cell is fully modified, the county

27

will transfer female inmates directly to and from court without holding in a cell by

taking them directly to transport vehicles. (Defs. Plan, at 7, n. 3.) Plaintiffs

28

approve of this interim plan.

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1 cells accessible for the entire fem ale population in the Orange County Jail. This is an

2 inadequate number as a matter of law and the facts presented. First, at the time the case was

3 tried before this court, there were three women using wheelchairs (and possibly others with

4 other assistive devices), which would have maxed out the number of cells available under

5 the new Plan. While the County claims there are no class m embers as of the date the

6 proposed plan was subm itted, probably because of the narrow class definition to which

7 Plaintiffs object, obviously the disabled jail population fluctuates all the time. The U.S.

8 Census Bureau estimates that 25% percent ofthe population had a severe disability in 1991.

9 Population Profile of the Unite d States, U.S. Census Bureau.

10 http://www.census.gov/population/www/pop-profile/disabil.html. In recognition of these

11 numbers, this Court ordered thatthe jail make ten cells accessible for women. (Order at 68,

12 lns. 10-11.) Defendant has presented no evidence or argumentwhy three cells are sufficient

13 or why it should not com ply with the ten ce lls mandate by the Court. The Court should

14 adhere to that initial order.

15

Equally problematic is that the modification of the cells for female inmates is deemed

16 to be a “long term” modification, meaning that it will take at “least one year to complete.”

17 (Def’s. Plan at p. 2, ln 3.) This means that the women currently housed in the IRC who have

18 a covered disability, according to this proposal, will be housed in co mpletely inaccessible

19 cells for another year or longer. There is no outer limit placed by the County on how long 20 it will take to make these changes. Since all that is required to make the cells accessible is 21 installation of an accessible toilet and sink combination with properly affixed grab bars and 22 flush equipment, it is inconceivable that these simple modifications should fall into the long 23 term modification category. These are Short Term modifications which can be completed 24 just as soon as the units ar e ordered and installed. The court has previously found that 25 modification to an individual cell will cost no m ore than $7,000-8,000, and m aybe 26 considerably less. (Order, ¶ 66, p. 21.) The creation of three accessible cells immediately 27 must be part of any final order. 28 / / /

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1

b. Accessible Dayroom and Shower

2

Defendant acknowledges that it has not come up with a feasible plan for creating an

3 accessible shower and toilet in the day roomassociated with Module K. (Defs. Plan, 3.C.2.b,

4 p. 8.) This means that any female with a mobility or dexterity impairment who is brought

5 into the jail remains denied access to an acce ssible shower, the same situation which has

6 existed now at the jail since the WCJ was closed in May 2009. (Court Order, ¶3, p. 8.) It

7 is inexcusable that the County has not alreadyremedied this obvious violation. The County

8 further ignores findings of thisCourt, based on the evidence presented at trial, that portable

9 shower units exist and can be installed in the current day room. (Order, p. 68, lns. 1-2.) The

10 Court should order that such modifications be made within three months and disallow the

11 nebulous plan proposed by defendant.

12

Plaintiffs have no objections to the othe r minor modifications to the day room in

13 Module K proposed by Defendant: lowering of phones, jail rules and installation of an

14 accessible table. (Defs’ Plan, 3.C.2. c-e.) Iist inconceivable, however, that the modification

15 of a table and of the phone height should bdeeemed “long term” modifications, as Defendant

16 proposes. These modifications could be done by a carpenter or even a skilled laborer, with

17 some guidance, in a matter of days at the outside. These modifications should be classified

18 as “short term” and ordered completed forthwith.

19

c. Outdoor recreation

20

Defendant proposes transporting female inmates who are low security (if their medical

21 condition permits) to JAMF for outdoor activities. As with the proposed transfer of m ale

22 inmates, there must be a process put into place to ensure they are bein g offered this

23 opportunity, actually transferred there for three hours per week, and that they are not being

24 discouraged from exercising this right or denied for non-existent medical reasons.

25

For those who elect to rem ain in Module K, and to use the outdoor area associated

26 with that facility, however, they are denied the same access to a toilet and sink as non-

27 disabled inmates. While Defendant states that it will redesign this area, it again describes

28 it as a long term modification. Defendant has presented no evidence or explanation as to

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1 why the modification of one toilet area will take more than a year to accomplish. It should

2 be ordered completed within 3 months.

3

d. Visiting

4

Defendant states that a lift will be instlaled on the stairway toaccommodate Cat#1 and

5 Cat # 2 females who need visitation and are not allowed “nobarrier” visitation rights due to

6 their higher security classification. (Def s. Plan. 3.C.4.) No time frame is placed on this

7 planned modification. Thus, under the County’s Plan, this lift could be installed at som e

8 uncertain time in the future, even several yearsin the future. Until that time, female inmates

9 who do not qualify for non-barrier visits (e.g.higher security inmates) have no opportunity

10 for visitation. Therefore, the lift must be ordered installed within one year. In the interim,

11 alternative plans must be made for visitation for those detainees who do not qualify for low-

12 security non-barrier visits at JAMF or MCJ.

13

With respect to low-security detainees,who otherwise qualify for non-barrier visits,

14 the County has com mitted to transporting them to JAMF or MCJ. This is appropriate,

15 complies with the Court’s order (Order, ¶ 19,p. 79), and should be instituted immediately.

16

The County m ust be ordered to docum ent all requests for visits for inmates with

17 disabilities, where the visit was provided and whether the visit was denied due to inability

18 to accommodate the inmate. The inmate must be informed in writing that they are entitled

19 to non-barrier visitation at JAMF or MCJ if th ey request it. Notice that they have been

20 informed of these rights, whether they requested transport to those facilities for visitation,

21 and whether such transport occurred, shoul d be maintained for three years by the ADA

22 compliance officer.

23

e. Inmate Program Activities

24

As recommended by plaintiffs’ expert, Defendant has agreed to provide a full range

25 of courses in the Chapel/ Classroom area at Module K, which is largely accessible. The

26 Court ordered that the chapel area had to be modified to accommodate desks, compu ters,

27 sewing machines and other equipment. This portion of the court’s order is not mentioned

28 in the proposed plan, but should be reiterated in a final order. Any additional courses only

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1 offered at JAMF will be m ade available to female classmembers upon their request.

2 Plaintiffs find these proposals acceptable.

3

f. Policies and Procedures

4

The proposed plan states that the CJX (w here Module K is located) “ will adjust its

5 policies and procedures to accommodate” the various changes. These new procedures need

6 to be in written form, prepared within a month of the entry of the Court’s order, and provided

7 to the monitor and class counsel within 45 days of entry for review to ensure that they are

8 clear and complete. The ADA Compliance official for CJX will ensurethat all deputies are

9 trained on these new policies and procedures when the new rules go into effect and on an

10 ongoing basis thereafter.

11

4. Module L

12

Defendant ignored the Court’s order to bring Module L (which houses the mentally

13 ill) into compliance with the ADA. The Court’s order provides that: “the day room area’s

14 shower, bathroom phone, and tables and the recreation area’s toilet and sink and the visiting

15 area on the second floor are identical to those in Module K and areinaccessible in the same

16 ways as those areas in Module K.” (Order at ¶ 90, p. 26.) The Court further ordered that

17 Module L should be made accessible in all of these aspects. (Order at p. 68, lns. 12-18.)

18

Defendant’s response to this order violates that law. Defendant states that it will not

19 house class m embers in Module L, but Module L is the only specialized m ental health

20 treatment module in the entire jail. Under thePlan, class members with mental health issues

21 and disabilities will be deprived of the services provided in Module L. This is exactly the

22 response that is not permitted by federal law. If a program is being offered, and a mental

23 health program is certainly a program with in the meaning of the ADA, it must be made

24 accessible to individuals with disabilities.

25

Thus, Defendant should be ordered to install an ADA compliant toilet and sink unit

26 in the day room servicing Module L within 3 months; that the phones be lowered to the

27 proper height; that at least one ADA compliant table to installed in the day room; and that

28 the recreation areas’s toilet and sink area by modi fied to be fully accessible. All of these

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1 modifications should be accomplished within threemonths of the effective date of the order.

2

C. Central Women’s Jail (CWJ)

3

The basic premise behind the proposed reutilization of the CWJ is faulty, since it does

4 not mandate that the areas for the housing of class members will be accessible at the time

5 women are again housed there. Therefore, at a minimum the Court should order that if CWJ

6 is repopulated with fem ale detainees and any class m ember is to be housed there, all

7 architectural modifications will have to be completed prior to the transfer of any women to

8 that facility.

9

1. Housing of Women in Tank 13

10

Plaintiffs are not opposed to housing of all Cat#1 and CAT#2 female inmates in tank

11 13 on the first floor, provided that the physical modifications outlined at D.1(a)-(e) are

12 completed prior to use. Further, the c ounty must commit to m aking a f ully accessible

13 bathroom and day room, as well as the more minor modifications listed therein.

14

2. Separation Cells

15

The court ordered that three cells be made accessible. (Order at page 80, lns 21-22.)

16 Defendant proposes to meet that requirement by housing women in an open ward or tank,

17 to which plaintiffs are not opposed, and by modifying three existing cells to make them fully

18 accessible: Sheltered Living Cells 1 and 2 and Is olation Cell 3. This appears to meet the

19 requirements of the court order.

20

3. Shower area for Women in Tank 13

21

Again, Defendant’s proposal regarding theshower for Tank 13 is problematic because

22 it suggests that the changes will not be made prior to reuse of the jail by fem ale class

23 members. Prior to any use of the shower area, the county m ust be ordered to m ake it

24 compliant by widening the doorway, adjusting the shower fixtures and modifying the grab

25 bars, as proposed.

26

4. Infirmary Area Cell 10 of the infirmary

27

The Court determined that many aspects ofthe infirmary are not ADA-compliant and

28 that if the jail was to be reopened, all such physical barriers had to be remedied. (Order at

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1 p. 68, lns. 19-24.) It is unlcear, as written, whether defendant’s plan will fully remedy those

2 violations. For example, the infirmary dayroom was found to have numerous inaccessible

3 features: the toilet and the sink were not usableby any of the class members. (Order, at ¶ 94,

4 p. 27.) The Court held that there is no evidence that the room is too small to accommodate

5 an accessible toilet and sink. Defendant’s proposal at D.4.a, to “redesign and construct[]to

6 enlarge the toilet/sink area” does not make it explicit that th e toilet and sink will be

7 redesigned to be fully accessible. This should be clarified in a final order. As with all of

8 the changes to the WCJ, the Court should order that all modifications be made prior to any

9 move to rehouse female inmates in the WCJ.

10

The other modifications proposed for th e day room appear reasonable and in

11 conformity with the Court’s order, e..g. withrespect to phones, intercom and mirror. Again,

12 however, it should be specified that such modifications must be made prior to placement of

13 disabled inmates in this jail.

14

5. Outdoor recreation

15

The court ordered that if the jail is reope ned, female detainees should be allowed

16 outdoor recreation on the roof with the other female detainees and that the restroom should

17 be modified to create an accessible toilet and sink. Defendant’s proposal avoids this order

18 by stating that it will instead close the restroom to all inm ates. This is a drastic and

19 unnecessary step which penalizes all of the inmates without justification. The Court should

20 order defendant to allow access to an ADA speci alist/contractor to determine the cost of

21 reconfiguring this area to make it accessible so that it can berepaired. Otherwise, what will

22 likely occur is that when the monitor and court are no longer actively involved in ensuring

23 accessibility to the jail, the deputies will again lalow female inmates touse the restroom area

24 and disabled inmates will again be excluded from that area. This is the time to require the

25 County to come to “grips” with its obligations to disabled community and make its public

26 buildings (even its jails) fully accessible into the future for their use.

27

With respect to the other modifications, lowering a phone, lowering a bulletin board

28 and modifying the water fountain, it is inconceivable that these changes would really take

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1 “months.” Nonetheless, the county has classified two of these modification as “intermediate

2 term” modification projects. The court shoul d order that these sim ple modifications be

3 undertaken prior to any reuse of the WCJ.

4

6. Visitation

5

As with other proposals to allow visits atJAMF or other non-barrier visitor areas, the

6 key question is whether the County will actually offer and make available these visitation

7 opportunities, which require transport, or whether they will discourage or punish inmates

8 who avail themselves of these visitation opportunities. The Court should require the same

9 documentation, reporting and m onitoring obligations as with other transport-dependent

10 program offerings.

11

7. Program offerings

12

As stated above, the court should require the sam e documentation, reporting and

13 monitoring obligations as with other transport-dependent program offerings.

14

D. CENTRAL MEN’S JAIL (CMJ)

15

1. Ward C

16

Defendant indicates that it intends to c ontinue to house class m embers in Ward C.

17 Ward C was identified by plaintiffs and thisCourt as having an inaccessible and dangerous

18 shower area in the open ward itself. The Court noted that there was unrefuted evidence that 19 inmates were being forced to lift each other over a large barrier, that it was dangerous, and 20 that it had to be rem edied immediately. Instead of confirming that it would rem edy this 21 shower area immediately, defendant states that this will be a “long term ” redesign effort. 22 Under its own definition of “Long Term,” repairing the clear and present danger posed to 23 disabled inmates by the shower area could ta ke a year or longer. The tim e table is 24 completely indefinite. Defendant has known that this shower presents a clear and present 25 danger since the Ninth Circuit described it inits 2008 opinion. Defendant has not taken the 26 smallest step to remedy this violation. The Court should order the County to immediately 27 begin redesign and repair of this shower area and present evidence of complete repair and 28 accessability within six months of the entr y of this order. Any other r esult is

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1 unconscionable.

2

Defendant’s time table for other minor repairs to these areas serving Ward C are also

3 of great concern. The proposed completion dates should raise a red flag for the Court about

4 the County’s commitment to improving the conditions for disabled detainees. For example,

5 the Plan states that “lowering a mirror, lo wering posting of jail rules, and lowering the

6 phone”are all “intermediate term” projects which could take “months.” Putting an accessible

7 table in the dayroom is listed, amazingly, as being a “Long term” project, taking more than

8 a year. It is obvious that m ost of th ese changes could be done by the average

9 carpenter/handyman in a m atter of hours. The Court should order that all of these other

10 changes be completed within one month of entry of the final order.

11

2. Sheltered Living Cells and Day room

12

The Court has ordered that the Sheltered Lviing shower not be used for class members.

13 The reason for this is that the evidence d emonstrated that deputies did not take class

14 members to that shower area but instead required detainees to try to shower themselves in

15 the Ward C shower area. This untenable situation has existed for years, and has continued

16 to exist for years after the Ninth Circuit’sdecision pointing out this hazardous and unlawful

17 situation. The court should order the repa irs commence to the Ward C shower and be

18 completed within 6 months. In the interim, while those repairs areundergoing and when the 19 shower in Ward C is not usable and fully accessible (and class members are still housed in 20 Ward C), they must rely on guards to transport them to the Sheltered Living Shower. That 21 shower and dayroom area will need to be remedied completely and immediately (not as an 22 intermediate modification to take months as proposed by defendant). Those repairs should 23 be ordered completed within one month of the entry of the order. The training orders to 24 deputies will need to be drafted within one month and provided to the monitor for review. 25 In addition, the court should order that all transfers to and from the Dayroom Shower and 26 Ward C should be documented, maintained and provided to the monitor for review as part 27 the monitor’s review. 28 / / /

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1

3. Recreation

2

The new recreation plan is entirely dependenton transport of detainees to TLF or the

3 JAMF. As with other transportation-depe ndent programming options, this proposal will

4 need to be carefully m onitored to ensure that deputies are offering the program , not

5 discouraging detainees from accessing it, and documenting all compliance for review by the

6 monitors.

7

4. Visitation

8

As with other proposals to allow visits atJAMF or other non-barrier visitor areas, the

9 key question is whether the County will actually offer and make available these visitation

10 opportunities, which require transport, or wh ether they will discourage or punish inm ates

11 who avail themselves of these visitation opportunities. The Court should require the same

12 documentation, reporting and m onitoring obligations as with other transport-dependent

13 program offerings.

14

5. Program offerings.

15

As stated above, the court should requi re the sam e documentation, reporting and

16 monitoring obligations as with other transport-dependent program offerings.

17

E. JAMES A. MUSICK FACILITY

18

1. Programming

19

Defendant’s plan is unclear with respect toprogramming. Defendant cannot be stating

20 that the only vocational classes at JAMF are “cabinety, sewing, stained glass, welding,

21 Mothers of Preschoolers; job development and Sew Much Comfort.” (Defs. Plan, 3.F.3.)

22 This would mean that it has discontinued scor es of classes at JAMF, all of which were

23 offered as of the trial in this matter, including computer training, GED classes, food service

24 skills and many more.

25

If what defendant intended to state is thatcertain vocational programs – listed at 3.F.3

26 – were offered but are being discontinued for all inmates, then plaintiffs have no objection

27 to those programs also not being offered to class m embers. The final order should m ake

28 clear that all programs offered at JAMF must bme ade fully available to class members either

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1 through offering them at JAMF (and transport thereto), or by offering those classes in

2 accessible classrooms in their housing areas.

3

IV. NOTICE OF RIGHTS UNDER THE ADA

4

Plaintiffs generally approves of the provisoins set forth under “Notice of Rights Under

5 the ADA.” However, the following additional provisions should be included:

6

Because this Court determined that depu ties have not received any instruction

7 regarding the handling or processing of “requests for accommodation,” the section should

8 be expanded to include grievances and requests for accommodation.

9

V. TRAINING

10

The proposed Plan will affect each of Or ange County’s jail facilities and req uire

11 deputies to chan ge how they view individuals with disabilities; how they process their

12 requests for outdoor recreation,visitation, showers and otherdayroom related services, and

13 programming, and how they handle request s for accommodations and grievan ces. It

14 contemplates interim plans effecting deputiesand non-sworn staff as the various barriers are

15 removed and different areas remodeled. It contemplates a permanent change in how class

16 members are housed, treated, and how d ocumentation is maintained about their access to

17 programs and services. This will require a shift in how deputies perceive disabled inmates

18 and their responsibilities to them , to ADA Com pliance officers an d to the monitor. To

19 ensure that this new system is successful, meaningful training will need to be made part of

20 the plan.

21

In the first instance, a training program willneed to be devised and put into place for

22 the ADA Compliance Officers at the various fac ilities. Such training should include at a

23 minimum, the following areas:

24

• training on the ADA law in the jail context;

25

• significant legal developmentsrelating to the application of the ADA to correctional

26

facilities;

27

• the findings of this court;

28

• the implementation of the injunctive relief plan to correct the violations;

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1

• the barrier removal plan and the purpose behind that plan;

2

• the interim plans for providing programs and services to inmates before the barrier

3

removal is completed;

4

• their obligation to provide equal access to inmate with disabilities to all programs

5

and recreational services;

6

• the procedure for documenting all contacts and offers of programs and services;

7

• the obligation to coordinate and transport inmates between the different facilities;

8

• how to ensure that inm ates are n ot discouraged from taking advantage of such

9

services or retaliated against if they do take them;

10

• how to process requests for accommodations;

11

• how to process complaints and grievances;

12

• and how to document and maintain do cumentation on all efforts to accommodate

13

and provide equal treatment to individuals with disabilities.

14

The training should be provided first to the ADA compliance officers, and then to all

15 of the deputies working in the individual f acilities. At a mi nimum, the ADA compliance

16 officers should be required to undergo six hours oftraining on these issuesonce a year. All

17 deputies who would have any contact with class members should receive at least 4 hours of

18 training on these issues once a year.

19

Unfortunately, Defendant County has dem onstrated that it has no com mitment to

20 performing this training function. Until just before the trial of this matter, it had no ADA

21 compliance officer designated, as admitted by Officer Toledo, despite the fact that public

22 entities were required to designate ADA compliance officers upon the first passage of the

23 ADA. (Tr. 8:18-9:1 (Toledo). )Officer Toledo, who was produced at trial as the person omst

24 knowledgeable by the County on the handling ofgrievance and requests for accommodation

25 by detainees, admitted that there was no tr aining for any of the people handling su ch

26 complaints or for deputies. (Tr. 10: 6-16 (Toledo).) The Court found that the County had

27 failed to notify jail personnel that they had an ADA coordinator, had failed to provide any

28 training regarding processing requests for accommodation, had failed to provide any training

PLNTF’S REPLY TO DEFT’S PROPOSED PLAN 25

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1 to those involved with appeal process on what to do with requests for accommodation; and

2 did not review the grievance materials they had received frominmates. (Court Order, ¶ 234-

3 245.)

4

Plaintiffs urge this Court to designate an outside entity to develop and provide such

5 training to the ADA Compliance officers. In addition, the same entity should be required to

6 develop training materials developed for subsequent trainings and sit in on a least the initial

7 four hour training session given to deputies by the Compliance officers.

8

As explained below, it is most appropriate that such entity also be designated as the

9 monitor so that there can be continuity between training and follow-up. There are numerous

10 organizations located in Southern Califor nia which are experienced in training and

11 monitoring in the correctional setting. In no event should the County be perm itted to

12 undertake unsupervised, unmonitored internal training. It would only perpetuate the errors

13 and non-compliance of the past.

14

Issues arising as to the adequacy or approp riateness of such training or curricula

15 should be addressed in the first instance by th e monitor. As with all com pliance issues,

16 discussed below, Plaintiffs’ counsel may seek correction through the meet and confer process

17 and, if not resolved, through an enforcement procedure before this court.

18

VII. MONITOR

19

When courts order defendants to rem edy unlawful jail conditions, special monitors

20 "play a necessary and ben eficial role in monitoring and assisting the [defendant] 's

21 compliance efforts." Benjamin v. Fraser, 343 F.3d 35, 44 (2nd Cir. 2003), abrogated in other

22 part by Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir.2009). M onitors assist the court in

23 monitoring the defendant's compliance with its obligations, advise and assist defendants in

24 achieving compliance with court orders, and in formally assist the parties in resolving

25 disputes as to compliance with such orders. See Benjamin, 343 F.3d at 43. To this extent,

26 monitors may gather information, assess the extent to which defendants are complying with

27 court orders, and provide the court and couns el with periodic reports identifying areas of

28 non-compliance and recommending further modifications.

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1

A monitor serves a different function th an a s pecial master, which exercises

2 quasi-judicial power. Benjamin, 343 F.3d at 45-46. For this reason, the PLRA does not

3 prevent courts from using monitors. Id. See also Pierce v. County of Orange, --- F.Supp.2d

4 ---, 2011 WL 68843 (C.D. Cal. 2011). In contrast to the special master, the monitor's sole

5 authority is to gather information, assess the extent to which defendants are complying with

6 the decree, report to the court, and offer assistance in resolving m inor disputes. If the

7 monitor reports that defendants are not complying with portions of the order, Plaintiffs can

8 bring this information to the court's attention.

9

Monitors are especially important where the ability to observe the defendants' conduct

10 is restricted. Cobell v. Norton, 392 F.3d 461, 477 (2004). "Whenthe defendant is a closed

11 institution, such as a prison or mental hospital, observing compliance may be difficult, and

12 then monitors will be appropriate." Robert E. Buckholz et al., The Rem edial Process in

13 Institutional Reform Litigation, 78 Colum . L. Rev. 784, 829 (1978) (footnotes om itted).

14 Indeed, courts have long utilized and approved ofappointed monitors and other third parties

15 to monitor compliance with court ordersor settlements in the prison context. See, e.g., Plata

16 v. Schwarzenegger, 603 F.3d 1088 (9th Cir. 2010);Benjamin v. Fraser, 343 F.3d 35, 44 (2nd

17 Cir. 2003); Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984), overruled on other

18 grounds, 801 F.2d 1080 (9th Cir.1986) ("Courts have not hesitated to appoint a monitor or

19 other similar officer when required to secureeffective relief for unconstitutional jail or prison

20 conditions."); Morales Feliciano v. Romero Barcelo, 672 F. Supp. 591, 623 (D. Puerto Rico

21 1986) ("The appointment of agents to supervise the implementation of remedial decrees in

22 institutional reform litigation involving prisons and jails is well precedented.").

23

Given the closed nature of the OrangeCounty jails, observing compliance with this

24 Court's orders will be difficult as it is largelyremoved from public scrutiny. This is the exact

25 scenario that compels a court appointed third party monitor. Moreover, the ADA violations

26 found by this Court are difficult to observe sothat assessing compliance will be challenging

27 as well. For example, the availability and accessibility of programs, services, and activities

28 for disabled detainees is more easily measured by a monitor with court mandated access to

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1 the jails than by the Plaintiffs or this Court, which would have to undertake continuous and

2 extensive evidence gathering and evaluation to make the same assessment.

3

The County's long history of refusing to comply with the ADA alsoattests to the need

4 for external monitoring. SeeBenjamin, 343 F.3d at 49 (holding that appointment of external

5 monitor was a necessary and m inimal burden where defendant failed to com ply with its

6 responsibilities). Given that this litigation began ten years ago and the County has largely

7 failed to address the violations found by this Court demonstrates that the County's internal

8 measures for assessing and re medying ADA violations are in adequate. In addition to

9 providing the court with assessments of the defendant's compliance efforts, a monitor will

10 facilitate the County's own awareness of its co mpliance with the court' s directives. See

11 Benjamin, 343 F.3d at 45.

12

In the instant case, therefore, both the law and the facts strongly support the Court

13 appointing a m onitor to ensure com pliance with the proposed plan (and any additional

14 requirements), to report back to the court on that compliance and to review and analyse the

15 various records the County is committing itself to gather and maintain.

16

To ensure that the monitoring is done in anefficient, impartial and expedient fashion,

17 there are several requirements which must be imposed on the County and the monitor:

18

1) The monitor should be selected by the Court or by mutual agreement of the parties.

19 If the parties cannot agree on a monitor within 15 days of the entering of the final order of

20 the court, the court should a ppoint a monitor selected fro m a nom inations list of two

21 proposed monitors submitted by each of the parties within 20 days of entry of the order.

22

2) The monitor should have full access to all records and data m aintained by the

23 County in response to the Court’s order, including but not limited to: a) all grievances and

24 responses thereto as part of the new grievnace procedure to which the County has committed

25 itself; b) all requests for accom modation and responses thereto; 3) all com munications to

26 class members about their rights to programming and services; 4) all contact records between

27 CPT and deputies with class members rega rding access to programs and ser vices; 5)

28 documentation regarding classes offered, refused and taken by class m embers; 6)

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1 documentation of recreation offered, refused andtaken by class members; 7) documentation

2 of transport of classm embers from MCJ, I RC, WCJ to other facilities for recreation; 8)

3 documentation of transport of inmates from MCJ, IRC, WCJ and Theo Lacy for non-barrier

4 visits; 9) documentation of transport of inmates from MCJ, IRC and WCJ to other facilities

5 for vocational and educational programming.

6

3) The monitor should make four annual inspections the first year and two each of the

7 following years of all facilities effected by the Order;

8

4) The monitor should have the ability to meet with and talk to class members about

9 compliance issues upon request by the monitor and consent by the inmate;

10

5) The monitor shall prepare quarterly re ports for each of the three years o f the

11 injunction to present to counsel and to the court, detailing compliance and non-compliance

12 findings.

13

6) The monitor shall review all training materials, conduct the initial training of the

14 ADA compliance officers, and participate in the initial training of deputies.

15

7) The monitor shall review all policy and procedure manual amendments.

16

8) The monitor shall receive reasonabl e compensation for these services, as

17 determined by the court. In addition, the monitor shall have the right to subcontract with

18 experts or consultants to assist in the m onitoring process (for example, a specialist in

19 architectural modification), if such person is required. Again , the m onitor shall be

20 compensated for these additional consultants, as determined by the court.

21

VIII.

ENFORCEMENT PROCEDURES

22

The Court will retain jurisdiction to ensure that the parties fulfill their o bligations

23 under the injunction and to resolve disputes an d/or fashion relief so as to carry out the

24 injunctive relief provisions.

25

Plaintiffs’ counsel will have an ongoing role to review the reports of the monitor,

26 make reasonable inspection of the jail facilities, to communicate with class members and to

27 seek enforcement of the injunctive relief order if non-compliance is found, as more full set

28 forth below:

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1

1. Plaintiffs’ counsel will beprovided copies of the quarterly reports prepared by the

2 monitor.

3

2. Plaintiffs’ counsel will be granted the ability to fully participate in at least two of

4 the on-site inspections conducted by the monitor the first year of the decree.

5

3. Plaintiffs’ counsel will have the ability to conduct further inspections of the jail,

6 upon reasonable notice to the County, for the following two years.

7

4. Plaintiffs’ counsel will have the ab ility to review, upon reasonable request, all

8 compliance documentation maintained by the County for a period for three years.

9

5. Plaintiffs’ counsel will be provided copeis of the policy and procedure manuals and

10 training materials, as set forth more fully above.

11

6. Plaintiffs’ counsel will have the opportunity to m eet with class m embers upon

12 reasonable notice to the County.

13

If Plaintiffs; counsel has reasonable cause to believe that th e County has failed to

14 perform in accordance with the or der of the court, or if any party has reasonable cause to

15 believe that one or m ore provisions of the in junction need to be re vised, the party shall

16 provide the other party with notice and opportuinty to correct the non-compliance or to make

17 modification. The parties shall then endeavor in good faith to resolve the reported dispute

18 informally.

19

If the issue is not corrected or modified to the satisfaction of the requesting party

20 within 30 days of providing notice, the party may apply to the Court for a hearing regarding

21 the issue. The moving party shall have the burden of proof. The dispute, including legal

22 briefing, will be submitted to Judge Collins, who may require additional briefing and/or any

23 other remedy within her jurisdiction, including reference to a special master and/or mediator.

24

25

Plaintiffs’ counsel will be entitled to reimbursement for all reasonable attorneys fees

26 and costs incurred in reviewing the quarter ly reports or other com pliance documents,

27 communications with the monitor, conducting inspections, meeting with class members to

28 ensure compliance, and bringing enforcement proceedings.

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1

IX. COMPLIANCE RECORDS

2

The County shall m aintain sufficient records to document its compliance with all

3 terms of the injunction. These records sha ll be provided to Plain tiffs’ counsel, or m ade

4 available to Plaintiffs’ counsel, at no cost, within a reasonable time period, upon request.

5 DATED: March 11, 2011

Respectfully submitted,

6

HADSELL STORMER KEENY RICHARDSON &

RENICK, LLP

7

8

By /s/-Virginia Keeny

9

Virginia Keeny

Attorneys for Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 1 of 26 Page ID #:4916

1 David D. Lawrence, Esq. [State Bar No. 123039] E-Mail: dlawrence@lbaclaw.com
2 Christina M. Sprenger, Esq. [State Bar No. 205105] E-Mail: csprenger@lbaclaw.com
3 LAWRENCE BEACH ALLEN & CHOI A Professional Corporation
4 1600 North Broadway, Suite 1010 Santa Ana, California 92706
5 Telephone No. (714) 479-0180 Facsimile No. (714) 479-0181
6
Wendy J. Phillips, Sr. Deputy [State Bar No. 178452] 7 E-Mail: wendy.phillps@coco.ocgov.com
OFFICE OF THE COUNTY COUNSEL 8 COUNTY OF ORANGE
333 W. Santa Ana Blvd., Suite 407 9 P.O. Box 1379
Santa Ana, California 92702-1379 10 Telephone No. (714) 834-3300
Facsimile No. (714) 834-2359
11
Attorneys for Defendant, 12 COUNTY OF ORANGE

13

UNITED STATES DISTRICT COURT

14
CENTRAL DISTRICT OF CALIFORNIA
15

16 FRED PIERCE, et al.,

) Case No. SACV 01-981 ABC(MLGx) ) Consolidated with

17

Plaintiffs,

) Case No. CV 75-3075 ABC (MLGx) )

18

vs.

) ) [PROPOSED] ORDER ON

19 COUNTY OF ORANGE, et al.

) DEFENDANT’S AMENDED FINAL ) PLAN SUBMITTED PURSUANT TO

20

Defendants.

) THE COURT’S JUNE 27, 2011 ) ORDER

21

________________________________ ) )

22 JERRY E. STEWART, et al.,

) )

23

Plaintiffs,

) )

24

vs.

) [Notice of Lodging submitted ) Concurrently Herewith]

25

) )

26 BRAD GATES, et al.,

) MATTER FOR DETERMINATION ) BY THE HONORABLE AUDREY B.

27

Defendants.

) COLLINS )

28

i ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 2 of 26 Page ID #:4917

1

TABLE OF CONTENTS

2

Page

3 1. APPOINTED MONITOR ................................................................................1

4 2. DEFINITIONS .................................................................................................3

5

Class Members.....................................................................................................3

6

Short Term Modification Project (ST) ................................................................3

7

Intermediate Term Modification Project (IT)......................................................3

8

Long Term Modification Project (LT) ................................................................3

9

Central Women’s Jail (CWJ) vs. Intake Release Center (IRC) Module K .........3

10

Correctional Health Services (CHS)....................................................................4

11

Classification........................................................................................................4

12 3. PLAN OVERVIEW (BY FACILITY).............................................................4

13

A. Theo Lacy Facility (TLF) Module O ...........................................................4

14

B. Intake Release Center (IRC) Booking Loop and First Floor .......................8

15

C. Intake Release Center (IRC) Module K .....................................................10

16

D. Intake Release Center (IRC) Module L......................................................12

17

E. Central Women’s Jail (CWJ) (not currently occupied by inmates) ...........13

18

F. Central Men’s Jail (CMJ) ...........................................................................16

19

G. James A. Musick Facility (JAMF) .............................................................18

20

H. System-wide Plans......................................................................................19

21

I. Notice Of Rights.........................................................................................22

22 4. ENFORCEMENT PROCEDURES ...............................................................23

23

24

25

26

27

28
i ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 3 of 26 Page ID #:4918

1

Pursuant to the Final Judgment entered concurrently with this Order, the

2 Court ORDERS that the County be ENJOINED AND DIRECTED as follows,

3 based upon the Findings of Fact and Conclusions of Law entered on January 7,

4 2011 following a bench trial (Docket No. 752), the Court’s Rulings on Final

5 Objections to the County’s Proposed Amended Plan (Docket No. 772), and the

6 Court’s Order Re Final Proposed Plan and Final Judgment (Docket No. 776):

7

DEFENDANTS’ FINAL PLAN

8 1. APPOINTED MONITOR

9

A) Keith Rohman shall be appointed as a monitor to ensure compliance with

10 the Final Plan, to report to the Court on the County’s compliance, and to review and

11 analyze the various records the County is ordered to gather and maintain.

12

B) The monitor shall have full access to all records and data maintained by

13 the County in response to the Court’s order, including but not limited to:

14

a) all grievances and responses thereto as part of the new grievance

15

procedure to which the County has committed itself;

16

b) all requests for ADA accommodation, and responses thereto;

17

c) all communications to class members about their rights to

18

programming and services;

19

d) all records of contact between CPT or deputies and class members

20

regarding access to programs and services;

21

e) documentation regarding classes offered, refused, and taken by

22

class members;

23

f) documentation of recreation offered, refused, and taken by class

24

members;

25

g) documentation of transport of class members from MCJ, IRC, and

26

WCJ to other facilities for recreation;

27

h) documentation of transport of class members from MCJ, IRC, WCJ

28

and Theo Lacy for non-barrier visits; and

1

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 4 of 26 Page ID #:4919

1

i) documentation of transport of class members from MCJ, IRC and

2

WCJ to other facilities for vocational and educational programming.

3

C) In the first year of the injunction, the monitor shall make four annual

4 inspections of all facilities affected by the Order, and two inspections during each 5 of the remaining years of the injunctions;1

6

D) Upon request by the monitor and consent by the inmate, the monitor shall

7 have the ability to meet with and talk to class members about compliance issues

8

E) The monitor shall prepare quarterly reports for each of the two years of

9 the injunction in order to provide the Court and counsel with detailed findings of

10 compliance and noncompliance

11

F) The monitor shall review all related training materials;

12

G) The monitor shall review all related policy and procedure manual

13 amendments

14

H) The monitor shall receive reasonable compensation for these services, as

15 determined by the Court. In addition, the monitor may subcontract with experts or

16 consultants to assist in the monitoring process (for example, a specialist in

17 architectural modification) if such person is required. The monitor shall be

18 compensated for these additional consultants, as determined by the Court.

19

I) The County shall, in accordance with a professional services agreement:

20

a) compensate the monitor for professional services;

21

b) reimburse the monitor for all expenses incurred by the monitor in

22

performing the duties under this order; and

23

c) compensate and reimburse the expenses of any consultants, experts

24

or other personnel retained to assist the monitor.

25 / / /

26

27

28 1 Pursuant to 18 U.S.C. § 3626(b), the injunction is terminable two years after
entry. Thereafter, Plaintiffs may seek an e2xtension of the injunction.
ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 5 of 26 Page ID #:4920

1 2. DEFINITIONS

2

Class Members: The class is defined as inmates with mobility or dexterity

3 disabilities, including wheelchair bound inmates. As used herein, the term

4 “‘disability’ means a disability as defined by the Court’s Findings.” Rulings 6:23-

5 24. With regard to inmates with temporary or intermittent disabilities, the class

6 includes “pretrial detainees whose impairments substantially limit a major life

7 activity, regardless of duration.” See, Rulings 8:8-25.

8

Short Term Modification Project (ST): A physical alteration, modification,

9 or improvement that is estimated to be completed within one month of entry of the

10 Final Judgment.

11

Intermediate Term Modification Project (IT): A physical alteration,

12 modification, or improvement that is estimated to be completed within six months

13 of entry of the Final Judgment.

14

Long Term Modification Project (LT): A large scale, complex physical

15 alteration, modification, and/or improvement that requires a redesign and

16 significant construction which is anticipated to take at least one year to complete.

17 Practices and project work in this category are governed by the County Contract

18 Policy Manual (CPM) and the California Public Contract Code, otherwise known

19 as the Uniform Public Construction Cost Accounting Act. An Architect/Engineer

20 (“A/E”) contract must be secured to complete all design and modification

21 specifications for these projects to ensure compliance with the Court’s Final

22 Judgment. See, Exhibit 1 for a chart/timeline providing further details regarding

23 this process.

24

Central Women’s Jail (CWJ) vs. Intake Release Center (IRC) Module

25 K: The CWJ is temporarily unoccupied by inmates, and the majority of assigned

26 staff members have been reallocated to other facilities. This action was taken as a

27 budgetary savings measure and as a consequence of the constraints imposed by the

28 current decrease in inmate population throughout the Orange County Jail system.
3 ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 6 of 26 Page ID #:4921

1 The CWJ will continue to be unoccupied until the demands of the inmate

2 population rise. The Sheriff’s Department expects this to occur in the future due to

3 a number of reasons, primarily the securing of contracts to house federal prisoners.

4

The CWJ is the logical choice to house female class members and this Final

5 Plan outlines the steps, construction, and other actions necessary to make this

6 occur. However, as the re-occupation of the CWJ is uncertain, Defendant also

7 identifies a plan to utilize Module K in the IRC.

8

Correctional Health Services (CHS): Medical and mental health services

9 are provided to all inmates by CHS, a division of the County’s Health Care Agency

10 (HCA). CHS personnel will be responsible for working with security staff to

11 identify class members, coordinate appropriate housing, and determine medical

12 eligibility for programs.

13

Classification: The Sheriff’s Department’s Special Services Bureau

14 classifies each inmate to evaluate the security of all inmates and to take proactive

15 and reactive steps to address security challenges, such as inmate violence. The

16 classification team has the primary duty of determining proper housing locations

17 for all inmates.

18 3. PLAN OVERVIEW (BY FACILITY)

19

The Sheriff’s Department will house male class members in the Theo Lacy

20 Facility (TLF) and the Central Men’s Jail (CMJ). Female class members will be

21 housed in Module K of the Intake Release Center (IRC) until such time as the

22 Central Women’s Jail (CWJ) is re-occupied by inmates.

23

A. Theo Lacy Facility (TLF) Module O.

24

1. Module O at the TLF will house male class members. This housing

25

Module is made up of 5 Sectors containing 54 cells and a 12-bunk

26

open dormitory:

27

a. Sector 37: 12-bunk open dormitory, two four-bunk cells

28

b. Sector 38: 16 one-bunk cells

4

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 7 of 26 Page ID #:4922

1

c. Sector 39: 8 four-bunk cells

2

d. Sector 40: 8 four-bunk cells

3

e. Sector 41: 16 one-bunk cells

4

f. Sector 42: 4 one-bunk cells

5

2. Male class members will be housed in the open dormitory (12 bunks),

6

Cell 4 (4 bunks) of Sector 37, and Cell 3 of Sector 42 (one bunk).

7

3. Class members are in the process of being transferred to the TLF and

8

are currently being housed on the lower floor of Module O Sector 37.

9

4. The following physical modifications to Sector 37 have been, or will

10

be completed within the designated time periods:

11

a. Lower one phone (ST)

12

b. Add one accessible table (IT)

13

c. Adjust fixture height and add dexterity fixture control (IT)

14

d. Add grab bars and bench seat for shower (completed)

15

e. Lower the book shelf (ST)

16

f. Lower (or add a second) mirror (ST)

17

g. Move the toilet flush button (ST)

18

h. Lower the intercom (ST)

19

i. Lower posting of jail rules (ST)

20

5. Cell 4 (four bunks) of Sector 37 will also house male class members.

21

This cell already complies with a number of the Court’s Findings. The

22

following physical modifications are proposed:

23

a. Add an accessible combination toilet and sink unit (IT)

24

b. Add grab bars (ST)

25

c. Add an additional mirror (ST)

26

d. Lower the intercom (ST)

27

6. Class members housed in Cell 4 of Sector 37 shall have access to a

28

dayroom with an accessible shower, toilet and other features. The

5

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

upstairs dayroom of Module O Section 37 will be available to the class

2

members housed in Cell 4 of Sector 37 if those class members do not

3

have access to the dayroom available to the class members housed in

4

the 12-bunk open dormitory of Sector 37.

5

7. Male class members with classification restrictions or separation needs

6

will be housed in Cell 3 of Module O Sector 42. The following

7

physical modifications have been completed, or will be completed

8

shortly:

9

a. Adjust shower fixture height (ST)

10

b. Add grab bars and bench seat for shower (completed)

11

c. Lower the intercom (ST)

12

8. The upstairs dayroom of Module O Sector 37 will be utilized for class

13

members housed in Cell 3 of Sector 42. The following physical

14

modifications are proposed:

15

a. Add grab bars and bench seat for shower (ST)

16

b. Adjust placement of shower controls (ST)

17

c. Lower shower bracket (ST)

18

d. Install one accessible toilet/lavatory unit along with grab bars

19

(IT)

20

e. Modify table or replace table with swinging seats (IT)

21

f. Lower bookcase (ST)

22

9. Male class members in Module O will be provided with outdoor

23

recreation. They may choose the Green Sector at the TLF if their

24

classification status meets that of inmates housed in the Barracks and

25

their medical conditions permit. The following physical modifications

26

are proposed to the TLF Green Sector:

27

a. Modify or lower water fountain (IT)

28
6 ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

b. Redesign toilet area to meet accessibility standards (install

2

accessible toilet, adjust privacy walls, add grab bars) (LT)

3

10. Those male class members who do not fulfill the classification

4

requirements for outdoor recreation in the Green Sector at the TLF,

5

and those class members who specifically request to stay in their

6

housing area, will be provided with outdoor recreation in the Module.

7

The following physical modifications are proposed to the outdoor

8

recreation area within the Module:

9

a. Remove or shift the privacy wall (IT)

10

b. Add grab bars to toilet area (IT)

11

11. A visiting booth in Module O is already accessible. In addition, those

12

male class members whose classification meets that of inmates housed

13

at the James A. Musick Facility (JAMF) will be offered non-barrier

14

visits in the Barracks visiting area of the TLF.2

15

12. Male class members in Module O will be offered a full range of

16

inmate program opportunities. This will be accomplished by

17

providing programs in the Module and in the Inmate Programs

18

Building (IPB) or, if necessary, designated alternative locations in the

19

Barracks area of the TLF. Religious services will be provided in the

20

Module or in the chapel. Additionally, those male class members

21

whose classification meets that of inmates housed at the JAMF and

22

who have permitting medical conditions will be afforded the full range

23

24

25 2 During trial, the visitation arrangements at the JAMF were referred to as “contact

26 visits.” In fact, visitors are not allowed contact with any inmates. Rather, inmates

27

sit on one side of a four-foot wide table during visitation, and visitors sit on the opposite side; there is no glass or plastic partition between visitor and inmate.

28 Accordingly, the equivalent of JAMF visitation (i.e., visitation without a partition)

is referred to herein as “non-barrier” visita7tion.

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

of programs and services offered at the JAMF by transporting the

2

inmates to the JAMF when necessary.

3

13. The Sheriff’s Department has a long term (LT) modification project to

4

install an ADA accessible modular structure(s) for programs, which

5

include(s) an ADA accessible bathroom in accordance with the Ruling.

6

A preliminary concept has been developed and is being further

7

researched.

8

14. The Correctional Programs Technicians (CPT) assigned to the TLF

9

Module O inmate housing location will coordinate with the Deputies

10

in Module O to facilitate programs and services for class members.

11

The CPT will provide information regarding all available programs

12

and services to class members in Module O, and document each

13

contact with said inmates. The documented information will include

14

whether or not each class member has requested a particular program

15

or service. The CPT’s supervisor will keep these records on file for

16

three years. The Correctional Programs staff will make all programs

17

and services provided in the IPB available to all class members with

18

qualified classification and medical status.

19

15. The TLF will adjust its policies and procedures to accommodate the

20

above provisions. The policies will be in written form within one

21

month of the entry of the Final Judgment and provided to the monitor

22

and class counsel within 45 days of the entry of the Final Judgment.

23

Staffing resources will be adjusted to provide additional personnel to

24

escort and supervise male class members in Module O.

25

B. Intake Release Center (IRC) Booking Loop and First Floor.

26

1. The Booking Loop will be utilized to receive, book, and process all

27

incoming class members. The Booking Loop contains the following

28

number of counters:

8

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 11 of 26 Page ID #:4926

1

A. Women’s Booking Area

2

Classification/Interview - 2

3

Fingerprint - 1

4

Adjustable Livescan Machine - 1

5

B. Men’s Booking Area

6

Classification/Interview - 3

7

Fingerprint - 2

8

Adjustable Livescan Machines - 3

9

Detention Release Interview - 2

10

ICE - 2 (not relevant to this proceeding)

11

C. Medical Interview/Triage Area - 3

12

2. Specially purchased lift-capable wheelchair(s) or lift(s) will be

13

obtained to raise and lower class members to the height of current

14

counter space to facilitate interaction with jail personnel and processes.

15

Deputies will be trained to properly operate and maintain these chair(s)

16

or lift(s). (IT)

17

3. All male class members will be processed and held in Cell 10 on the

18

male side of the Booking Loop, which is accessible. All female class

19

members will be processed and held in Cell 5 on the female side of the

20

Booking Loop, which is accessible. Class members who have special

21

or chronic medical needs will be specially accommodated or expedited

22

through the booking process.

23

4. All class members will be prepared for court in their housing locations

24

and transported directly to awaiting vehicles. They will not be

25

required to remain in the Court Transfer area.

26

5. All class members being released from custody will be specially

27

accommodated in their housing modules. All necessary release

28

procedures will be conducted there, much the same as is done for

9

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 12 of 26 Page ID #:4927

1

releases from the hospital. Released class members will be taken

2

directly to an exit location.

3

6. The Central Jail Complex (CJX) will adjust its policies and procedures

4

to accommodate the above provisions. The policies will be in written

5

form within one month of the entry of the Final Judgment and

6

provided to the monitor and class counsel within 45 days of the entry

7

of the Final Judgment.

8

C. Intake Release Center (IRC) Module K.

9

1. Module K at the IRC is made up of Sectors 9 through 14, containing

10

96 cells.

11

2. Female class members will be housed in Sector 13 of Module K until

12

such time as the CWJ is re-opened. Cells 3, 5, and 7 will be modified

13

initially (IT), and further plans are being developed to provide cells

14

and/or cell space for ten female class members. The redesign of

15

Sector 13 will include ADA compliant shower and toilet facilities in

16

the dayroom (LT).

17

a. These cells will serve as general population and special-needs

18

housing for those class members with classification or

19

separation orders.

20

b. The following physical modifications are proposed for the

21

Sector 13 dayroom:

22

i. Modification of one dayroom table (IT)

23

ii. Lower phones and intercoms in dayroom (ST)

24

iii. Lower posting of jail rules (ST)

25

c. The Sheriff’s Department has developed a plan for accelerated

26

modifications to Module K, which can be accomplished by

27

February 28, 2012. See, Ruling 13:22-26. The modifications

28
10 ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

will include accessible toilet and shower facilities in the Module

2

K dayroom.

3

3. Female class members in Module K will be provided with outdoor

4

recreation. If their classification status meets that of inmates housed at

5

the JAMF and their medical conditions permit, they will be offered the

6

outdoor area of the South Compound at the JAMF and will be

7

transported to and from that facility. Those who do not fulfill these

8

requirements, and those who specifically request to stay in their

9

housing area, will be provided with outdoor recreation in the Module.

10

The following physical modifications are proposed for the outdoor

11

recreation area inside the Module:

12

a. Redesign and construction of the toilet, sink area (IT)

13

b. Lower intercom (IT)

14

4. All female class members will be provided with their choice of non-

15

barrier visits at the JAMF, or barrier visits in the Attorney Bonds area

16

of the CWJ. In the long term, a special lift will be installed on the

17

stairway leading to the visiting booths in Module K to accommodate

18

female class members (LT).

19

5. Female class members in Module K will be offered a full range of

20

inmate program opportunities. Programs currently offered at the IRC

21

are proposed available to class members in the chapel/classroom at the

22

IRC. Religious services will also be made available to class members

23

in the chapel/classroom. Additionally, those female class members

24

whose classification meets that of inmates housed at the JAMF and

25

whose medical conditions permit will be transported to and afforded

26

the full range of programs offered at the JAMF in accessible

27

classrooms.

28
11 ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

6. The CJX will adjust its policies and procedures to accommodate the

2

above provisions. The policies will be in written form within one

3

month of the entry of the Final Judgment and provided to the monitor

4

and class counsel within 45 days of the entry of the Final Judgment.

5

7. The CPT assigned to the Module K inmate housing location will

6

coordinate with the Deputies in Module K to facilitate programs and

7

services for class members. The CPT will provide information

8

regarding all available programs and services to class members in

9

Module K and document each contact with said inmates. The

10

documented information will include whether or not each class

11

member has requested a particular program or service. The CPT’s

12

supervisor will keep these records on file for three years. The

13

Correctional Programs staff will make all programs and services

14

available to all class members with qualified classification and medical

15

status.

16

D. Intake Release Center (IRC) Module L.

17

1. Male class members with chronic or severe mental health illness will

18

be housed in Cell 7 of Sector 17 in Module L. The following physical

19

modifications to this cell are proposed:

20

a. Install a grab bar adjacent to the ADA combination toilet-sink

21

unit (ST)

22

b. Lower the mirror (ST)

23

c. Replace the floor mounted concrete and cinder block bunk with

24

a free standing bunk or a wall hung bunk (LT)

25

2. The Sheriff’s Department will initiate the following physical

26

modifications to the dayroom of Sector 17:

27

a. Install an ADA-compliant sink and toilet (LT)

28

b. Lower phones and intercoms (ST)

12

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

c. Modify table or replace table with swinging seats (IT)

2

d. Lower posting of jail rules (ST)

3

e. Modify existing shower for accessibility, or install accessible

4

shower (LT)

5

3. Male class members in Module K will be provided with outdoor

6

recreation. If their classification status meets that of inmates housed at

7

the JAMF and their medical and mental health conditions permit, they

8

will be offered the outdoor area of the West Compound at the JAMF

9

and will be transported to and from that facility. Those who do not

10

fulfill these requirements, and those who specifically request to stay in

11

their housing area, will be provided with outdoor recreation in the

12

Module. The following physical modifications are proposed for the

13

outdoor recreation area inside the Module:

14

a. Redesign and construction of the toilet, sink area (IT)

15

b. Lower intercom (IT)

16

E. Central Women’s Jail (CWJ) (not currently occupied by inmates).

17

1. The CWJ currently houses no inmates; however, rising inmate

18

population demands will inevitably require the Sheriff’s Department to

19

utilize this facility. When the need arises, the Sheriff’s Department

20

will ensure that female class members transferred to the CWJ will be

21

housed in areas with ADA accessible features equal to or greater than

22

their current housing locations at the IRC. Counsel and the monitor

23

will be permitted to inspect designated housing areas of the CWJ

24

before class members are transferred there. See, Rulings 16:27-17:2.

25

2. Female class members will be housed in Tank 13 on the first floor.

26

Tank 13 is open dormitory-style housing, and will be the primary

27

housing location for all general population female class members in

28

the future. The following physical modifications are proposed:

13

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 16 of 26 Page ID #:4931

1

a. Redesign and construction of the bathroom and dayroom areas

2

for accessibility (LT)

3

b. Lower bookshelf (ST)

4

c. Lower intercom (ST)

5

d. Lower phones (ST)

6

e. Add heightened bunks to assist with inmate transfer (IT)

7

3. Female class members with classification restrictions or separation

8

needs will be housed in Sheltered Living Cells 1 and 2, and Isolation

9

Cell 3. These cells will receive the following modifications:

10

a. Lower intercom (ST)

11

b. Lower mirror (ST)

12

4. Female class members will be provided with showers in the first floor

13

shower area, which will receive the following modifications:

14

a. Widen doorway (LT)

15

b. Adjust shower fixture (IT)

16

c. Modify grab bars (IT)

17

5. Cell 10 of the Infirmary is an accessible cell and the nearby dayroom

18

can be utilized with the following modifications:3

19

a. Redesign and construction to enlarge the toilet/sink area to make

20

them “fully accessible” (LT); see, Rulings 17:11-12.

21

b. Lower phone (IT)

22

c. Lower intercom (IT)

23

d. Lower mirror (ST)

24

6. Female class members in the CWJ will be provided with outdoor

25

recreation. They may choose the outdoor area of the roof at the CWJ,

26

27 3 The modifications to the sink and toilet will be completed before inmates are

28 transferred in order to ensure that the facilities are as accessible as those in the prior

housing. Rulings 17:13-16.

14

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 17 of 26 Page ID #:4932

1

or the South Compound of the JAMF if their classification status

2

meets that of inmates housed at the JAMF and their medical conditions

3

permit. The following physical modifications are proposed for the

4

roof area of the CWJ:

5

a. Lower phone (IT)

6

b. Lower bulletin board (ST)

7

c. Modify water fountain (IT)

8

d. Close the restroom on the roof of the CWJ to all inmates

9

7. Those female class members whose classification meets that of

10

inmates housed at the JAMF and whose medical conditions permit will

11

be afforded non-barrier visits at the JAMF or the non-barrier Attorney

12

Bonds area of the CWJ.

13

8. Female class members in the CWJ will be offered a full range of

14

inmate program opportunities. This will be accomplished by

15

providing some programs and religious services in the second floor

16

accessible classroom of the CWJ. Additionally, those female class

17

members whose classification meets that of inmates housed at the

18

JAMF and whose medical conditions permit will be offered the full

19

range of programs offered at the JAMF.

20

9. The CWJ will adjust its policies and procedures to accommodate the

21

above provisions when class members are moved to CWJ. See,

22

Rulings 18:2-5.

23

10. The CPT assigned to the class member housing location will

24

coordinate with the Deputies to facilitate programs and services for

25

class members. The CPT will provide information regarding all

26

available programs and services to class members in the CWJ and

27

document each contact with said inmates. The documented

28

information will include whether or not each class member has

15

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 18 of 26 Page ID #:4933

1

requested a particular program or service. The CPT’s supervisor will

2

keep these records on file for three years. The Correctional Programs

3

staff will make all programs and services available to all class

4

members with qualified classification and medical status.

5

F. Central Men’s Jail (CMJ).

6

1. The CMJ will house male class members in Ward C, Ward D, and the

7

Sheltered Living cells on the second floor. These areas will receive

8

the following modifications:

9

a. Wards C & D

10

i. Redesign of bathroom and shower area (LT). The Ward

11

C renovation will be expedited by a Work Change Order

12

for an existing project. The work will be completed no

13

later than February 28, 2012. See, Rulings 18:14-17.

14

ii. Lower mirror (ST)

15

iii. Lower posting of jail rules (ST)

16

iv. Lower phone (IT)

17

v. For dayroom provide accessible cable (ST)

18

b. Sheltered Living Cells 1, 3, and 4 are largely accessible and the

19

dayroom/shower area will accommodate male class members.

20

These areas will receive the following proposed modifications:

21

i. Dayroom/shower area (to be completed within four

22

months of Final Judgment) Rulings 18:22-24.

23

a. Modify shower (IT)

24

b. Modify sink (IT)

25

c. Lower mirror (ST)

26

d. Adjust grab bars (IT)

27

ii. Cells 1, 3, and 4

28

a. Relocate the flush valve in all three cells (IT)

16

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 19 of 26 Page ID #:4934

1

b. Add grab bar in Cell 3 (IT)

2

2. Male class members in the CMJ will be provided with outdoor

3

recreation. They may choose the Green Sector at the TLF, or the

4

JAMF, if their classification status and medical conditions permit.

5

The roof recreation area at the CMJ will be used by class members

6

whose classification level does not meet these criteria, and by class

7

members who opt to have their recreation there. Class members who

8

are transported to the TLF or the JAMF for outdoor recreation will be

9

assisted by the CPT in coordinating that activity. The following

10

modifications are proposed for the roof recreation area of the CMJ:

11

a. Install continuous hand rails above ramp (ST)

12

b. Install warning curb on outside of ramp (IT)

13

3. Documentation regarding the transport of class members housed in

14

Wards C and D to and from the dayroom shower will be maintained

15

and provided to the monitor consistent with the County’s

16

documentation proposal.

17

4. The CJX will adjust its training and its policies and procedures to

18

accommodate the above provisions. The policies and procedures will

19

be in written form within one month of the entry of the Final Judgment

20

and provided to the monitor and class counsel within 45 days of the

21

entry of the Final Judgment. See, Rulings 18:25-27.

22

5. The CPT assigned to the class member housing location will

23

coordinate with the Deputies to facilitate programs and services for

24

class members. The CPT will provide information regarding all

25

available programs and services to class members in the CMJ and

26

document each contact with said inmates. The documented

27

information will include whether or not each class member has

28

requested a particular program or service. The CPT’s supervisor will

17

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 20 of 26 Page ID #:4935

1

keep these records on file for three years. The Correctional Programs

2

staff will make all programs and services available to all class

3

members with qualified classification and medical status.

4

6. Those male class members whose classification meets that of inmates

5

housed at the JAMF and whose medical conditions permit will be

6

offered non-barrier visits in the Attorney Bonds area of the CMJ.

7

G. James A. Musick Facility (JAMF).

8

1. The JAMF will be utilized to provide outdoor recreation to those class

9

members whose classification level meets that of inmates housed at the

10

JAMF and whose medical conditions permit.

11

2. The JAMF will also be utilized to provide non-barrier visits to all

12

female class members while the CWJ is not occupied, and to those

13

male class members whose classification meets that of inmates housed

14

at that facility.

15

3. A full range of programs will be offered to all class members whose

16

classification level meets that of inmates housed at the JAMF and

17

whose medical conditions permit. Class members will be transported

18

to and from the JAMF for that purpose.

19

4. The following Vocational Programs and Classes are currently being

20

offered at the JAMF: cabinetry; sewing; stained glass; welding;

21

Mothers of Preschoolers (MOPS); job development; and “Sew Much

22

Comfort.”

23

5. The Sheriff’s Department is prohibited by contract and law from

24

allowing the ICE Detainees housed at the JAMF to participate in

25

Vocational Classes. For that reason, and due to the overall low inmate

26

population, there are no longer enough inmates to make it cost

27

effective to provide these Vocational Classes in the future.

28

Consequently, the Sheriff’s Department has begun the process of

18

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

eliminating these classes. In the interim, the CPT will provide

2

information regarding all JAMF vocational classes to class members in

3

TLF Module O, IRC Module K, and CMJ locations, and will

4

document each contact with said inmates. Those inmates who meet the

5

classification requirements and have permitting medical conditions

6

will be transported to JAMF for the respective classes.

7

6. The information documented by the CPT will include whether or not

8

each inmate has requested a particular vocational program or class.

9

The CPT’s supervisor will keep these records on file for three years.

10

H. System-wide Plans.

11

1. Compliance

12

a. Facility Compliance

13

The Inmate Services Division and each Jail Division will

14

identify a facility compliance officer who will conduct meetings

15

with staff, ensure overall compliance with this Court’s Final

16

Judgment, coordinate training, and review grievances. Janet

17

Hayes of the S.A.F.E. Division will serve as the Sheriff’s

18

Department’s Compliance Coordinator with regard to this

19

Court’s Final Judgment.

20

b. Plaintiffs’ Counsel’s Access and Responsibilities

21

Plaintiffs’ counsel will have an ongoing role to review the

22

reports of the monitor, make reasonable inspection of the jail

23

facilities, communicate with class members, and seek

24

enforcement of the injunctive relief order if non-compliance is

25

found. To facilitate this process, the County will cooperate with

26

the monitor and:

27

i) Grant Plaintiffs’ counsel the ability to participate in two

28

on-site inspections conducted by the monitor within the

19

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

first year following entry of the Final Judgment and to

2

conduct one additional inspection in the second year.

3

After the expiration of two years, if Plaintiffs seek to

4

extend the injunction, they may conduct an additional

5

inspection in preparation for any motion to extend the

6

injunction;

7

ii) Provide Plaintiff’s counsel with the ability to review,

8

upon reasonable request, all relevant compliance

9

documentation maintained by the County while the

10

injunction is in effect;

11

iii) Provide Plaintiff’s counsel with copies of the relevant

12

training materials, and policies and procedures developed

13

pursuant to the Court’s Final Judgment, while the

14

injunction is in effect; and

15

iv) Provide Plaintiffs’ counsel with the opportunity to meet

16

with class members, upon reasonable notice to the

17

County.

18

c. CHS/Classification

19

CHS will be responsible for identifying potential class members

20

during the triage process. CHS will collaborate with

21

Classification to maintain a database for all class members to

22

ensure they are appropriately housed and receive all eligible

23

programs and services. Classification will provide ongoing and

24

continuous review of all class members.

25

2. Special Needs Class Members

26

Those class members with mental health conditions or disorders

27

will be accommodated in the above identified housing areas. Male

28

class members will be housed in Module L and female class

20

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

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1

members in Module K. Those class members with severe mental

2

health disorders will be cared for at the hospital, consistent with the

3

treatment of non-class member inmates.

4

3. Training

5

Training will be given to all transportation personnel, programs

6

staff members, and security staff members assigned to housing

7

locations where class members are housed. Specific training will

8

be provided to ensure that staff members meet their obligations to:

9

explain transportation opportunities; coordinate with Inmate

10

Programs staff regarding class availability; coordinate

11

transportation; and document all class members who are offered

12

programs, or transported to other facilities for programs. The

13

training curriculum will include applicable law, this Court’s Final

14

Judgment, policies and procedures, and proper documentation.

15

See, Rulings 12:18-20. Training will be provided by an

16

individual(s) qualified to train personnel on ADA-related topics.

17

4. Policies & Procedures

18

The Sheriff’s Department will incorporate the Final Judgment into

19

its Jail Operations Manual (JOM).

20

5. Documentation

21

a. The Sheriff’s Department will create a process to document,

22

report, and monitor the visitation of all class members. See,

23

Rulings 19:5-7. This documentation will include all requests for

24

visits, when and where the visits were conducted, and whether

25

the visitation was denied due to the inability to accommodate

26

the class member’s disability. Qualifying class members will

27

also be “informed in writing that they are entitled to request

28
21 ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 24 of 26 Page ID #:4939

1

non-barrier visits at the JAMF and the CMJ/CWJ.” These

2

records will be maintained for three years. See, Rulings 15:2-8.

3

b. The Sheriff’s Department will document, report, and monitor

4

class member contacts, offers of programs, transportation for

5

programs (see, Rulings 19:8-10), program attendance, visitation,

6

shower access, dayroom use, and recreation. Documentation

7

will be maintained for three years and provided to the monitor

8

on a quarterly basis. See, Rulings 12:18-20.

9

c. Documentation of staff training will be maintained for three

10

years and provided to the monitor on a quarterly basis. Id.

11

I. Notice Of Rights.

12

1. The County will ensure that notices are posted at a level that is

13

readable by class members, including those in wheelchairs.

14

2. The County will provide an accessibility compliance officer for each

15

facility, with a minimum of six hours of training on accessibility

16

standards, their application in jail settings, and the compliance

17

officer’s responsibilities to process and respond to requests for

18

accommodation and/or complaints of denial of access to programs and

19

services. The compliance officer will meet with staff and the monitor

20

on a quarterly basis to ensure compliance with the Final Judgment.

21

3. The County has instituted a new grievance process which will take

22

effect within the short term, and is designed to maintain and track all

23

inmate grievances which raise claims under the ADA. The new

24

grievance process includes a database that will store and permit

25

tracking of ADA grievances, and incorporates the other aspects of the

26

grievance process that this Court has already approved.

27 / / /

28 / / /

22 ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 25 of 26 Page ID #:4940

1 4. ENFORCEMENT PROCEDURES

2

1. The Court has appointed a monitor to gather information, assess the

3

County’s compliance with the Final Judgment and injunction, and

4

provide the parties and the Court with reports identifying non-

5

compliance and recommendations for further modifications. See,

6

Rulings 2:26-3:1.

7

3. Upon reasonable cause to allege non-compliance, Plaintiffs’ counsel

8

shall provide the Sheriff’s Department with notice and opportunity to

9

correct the non-compliance or to make modifications.

10

4. The parties shall endeavor in good faith to resolve reported disputes

11

informally. If an issue identified by Plaintiffs’ counsel is not

12

corrected or modified within 30 days of providing notice, either party

13

may apply to the Court for a hearing regarding the issue.

14

5. The injunctive relief is terminable two years after its entry in

15

accordance with 18 U.SC. § 3626(b).

16

The Court will retain jurisdiction to ensure that the parties fulfill their

17 obligations under the injunction and to resolve disputes and/or fashion relief as

18 necessary to carry out the injunctive relief provisions.

19 IT IS SO ORDERED

20

21 Dated: June 28, 2011

22

United

__________________________________
AUDREY B. COLLINS States District Court Judge

23 Respectfully submitted,

24 LAWRENCE BEACH ALLEN & CHOI, PC

25

26 By______/s/__________________________

DAVID D. LAWRENCE

27

CHRISTINA M. SPRENGER

28

Attorneys for Defendant

COUNTY OF ORANGE

23

ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

Case 8:01-cv-00981-ABC -MLG Document 779 Filed 06/28/11 Page 26 of 26 Page ID #:4941

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

3

I, Donna Adams, am employed in the aforesaid County, State of California; I

4 am over the age of 18 years and not a party to the within action; my business

address is 1600 N. Broadway, Suite 1010, Santa Ana, California 92706.
5

6

On June 28, 2011, I electronically filed the foregoing DEFENDANT’S

7 AMENDED FINAL PROPOSED PLAN SUBMITTED PURSUANT TO THE COURT’S JUNE 27, 2011 ORDER with the Clerk of the Court using the

8 CM/ECF system which will send notification of such filing to the following e-mail

9 addresses:

10 Dan Stormer dstormer@hadsellstormer.com,tgalindo@hskrr.com 11 Virginia Keeny vkeeny@hskrr.com,yanaya@hskrr.com 12 HADSELL STORMER KEENY RICHARDSON & RENICK, LLP

13 Richard P Herman rherman@richardphermanlaw.com 14 A Law Corporation

15 Barrett S Litt jwhite@littlaw.com,blitt@littlaw.com 16 LITT, ESTAUR, HARRISON, MILLER & KITSON, LLP

17 Wendy J Phillips wendy.phillips@coco.ocgov.com 18 Orange County Counsel

19
X
20 21

(Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made.

22

Executed on June 28, 2011, at Santa Ana, California.

23

24

_______________________

25

Signature of Declarant

26

27

28
24 ORDER ON DEFENDANT’S FINAL PROPOSED PLAN

 
 Case 8:01-cv-00981-ABC -MLG Document 818 Filed 03/08/12 Page 1 of 3 Page ID #:7485

1 Dan Stormer, Esq. [S.B. #101967] Virginia Keeny, Esq. [S.B. #139568]
2 HADSELL STORMER KEENY RICHARDSON & RENICK LLP
3 128 North Fair Oaks Avenue Pasadena, CA 91103-3645
4 Telephone: (626) 585-9600 Facsimile: (626) 577-7079
5 Barrett S. Litt, Esq. [S.B. # 45527]
6 LITT, ESTUAR, & KITSON, LLP 1055 Wilshire Blvd., Suite 1880
7 Los Angeles, CA 90017 Telephone: (213) 386-3114
8 Facsimile: (213) 380-4585

9 Richard P. Herman, Esq. [S.B. #53743] LAW OFFICE OF RICHARD P. HERMAN
10 5001 Birch Street Newport Beach, California 92660
11 Telephone: (714) 547-8512 Facsimile: (714) 547-6975
12 Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16

17 18 19 20 21

FRED PIERCE, TIMOTHY LEE CONN, MAX SANDERS, FERMIN VALENZUELA, LAURIE D. ELLERTSON, Individually, and as Class Representatives, and all those similarly situated,

) ) ) ) ) ) )

Plaintiffs, vs.

) ) )

22 COUNTY OF ORANGE, a

23

Governmental Entity; MICHAEL S. CARONA, Individually, and DOES 1

24 through 200, Inclusive,

25

Defendants.

) ) ) ) ) ) ) )

26

Case No: SACV01-00981-ABC (MLGx) [Assigned to the Honorable Audrey B. Collins – Roybal Courtroom 680] [PROPOSED] ORDER RE PLAINTIFFS’ MOTIONS FOR ATTORNEYS’ FEES AND COSTS

Discovery Cut-off: June 4, 2009

Pre-Trial Conf.: August 24, 2009

Trial Date:

February 9, 2010

27

28

[PROPOSED] ORDER RE PLTFS’

MTNS FOR ATTYS’ FEES & COSTS

1

Case 8:01-cv-00981-ABC -MLG Document 818 Filed 03/08/12 Page 2 of 3 Page ID #:7486

1

ORDER

2

HAVING considered Plaintiffs’ Motion for Attorneys’ Fees filed on July 31, 2009

3 and supplemented on August 12, 2011 and Plaintiffs’ Motion for Attorneys’ Fees filed on

4 August 12, 2011, as well as Plaintiffs’ Motion to Tax Costs, referred to this Court by the

5 Court Clerk to resolve prevailing-party issues, and having considered the Opposition and

6 Reply briefs, as well as the briefing regarding evidentiary objections filed by the parties:

7

IT IS HEREBY ORDERED THAT:

8

1) Plaintiff’s Motion for Attorneys’ Fees Pursuant to 42 U.S.C. Section 1988 is

9 granted in part as more specifically set forth in this Court’s order of March 2, 2012;

10

2) Plaintiff’s Motion for Attorneys’ Fees Related to Claims under the ADA is

11 granted in part as more specifically set forth in this Court’s order of March 2, 2012;

12

3) The Court awards Plaintiffs the following amounts as fees and non-taxable

13 costs:

14

a) $508,179.85 in reasonable fees for work performed on the constitutional claims

15 (as detailed in Attachment A to this Court’s March 2, 2012 order);

16

b) $1,821,557.13 in reasonable fees for pre-appeal work done on the ADA claims

17 (as detailed in Attachment A to this Court’s March 2, 2012 order);

18

c) $589,686.75 in reasonable fees for post-appeal work done on the ADA claims

19 (as detailed in Attachment B to this Court’s March 2, 2012 order);

20

d) $70,346.15 in attorneys’ fees for bringing the two fee motions; and

21

e) $225,147.53 in litigation expenses.

22

IT IS FURTHER ORDERED THAT:

23

Plaintiffs’ pending Application to Tax Costs, filed on July 12, 2011, which was

24 referred to this Court, shall be sent back to the Court Clerk with instructions to tax costs

25 in favor of plaintiffs and, once the taxable costs are determined, divide the total amount

26 of taxable costs incurred pre-appeal (prior to May 15, 2008) in half and deduct 30%

27 from that amount. The Court Clerk then is directed to award the remaining 20% of that

28 portion of taxable costs, plus the remaining 50% percent of costs incurred prior to May

[PROPOSED] ORDER RE PLTFS’

MTNS FOR ATTYS’ FEES & COSTS

2

Case 8:01-cv-00981-ABC -MLG Document 818 Filed 03/08/12 Page 3 of 3 Page ID #:7487

1 15, 2008, plus the full amount of taxable costs incurred after May 15, 2008 to the

2 Plaintiffs in this case. Both parties may file a supplemental declaration with the Court

3 Clerk to specify the dates on which specific costs were incurred, if that information is not

4 already in the record before the Clerk. Such supplemental declarations shall be filed no

5 later than 10 days after entry of this order.

6

7 DATED: March 8, 2012

_____________________________

8

The Honorable Audrey B. Collins

UNITED STATES DISTRICT JUDGE

9

10

11

12 Presented By:
13 HADSELL STORMER KEENY
14 RICHARDSON & RENICK, LLP

15 /s/ - Virginia Keeny
16 Virginia Keeny Attorneys for Plaintiffs
17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] ORDER RE PLTFS’

MTNS FOR ATTYS’ FEES & COSTS

3

 
 1 David D. Lawrence, Esq. [State Bar No. 123039] E-Mail: dlawrence@lbaclaw.com
2 Christina M. Sprenger, Esq. [State Bar No. 205105] E-Mail: csprenger@lbaclaw.com
3 LAWRENCE BEACH ALLEN & CHOI A Professional Corporation
4 1600 North Broadway, Suite 1010 Santa Ana, California 92706
5 Telephone No. (714) 479-0180 Facsimile No. (714) 479-0181
6
Wendy J. Phillips, Sr. Deputy [State Bar No. 178452] 7 E-Mail: wendy.phillps@coco.ocgov.com
OFFICE OF THE COUNTY COUNSEL 8 COUNTY OF ORANGE
333 W. Santa Ana Blvd., Suite 407 9 P.O. Box 1379
Santa Ana, California 92702-1379 10 Telephone No. (714) 834-3300
Facsimile No. (714) 834-2359
11
Attorneys for Defendant, 12 COUNTY OF ORANGE

JS-6

13

UNITED STATES DISTRICT COURT

14
CENTRAL DISTRICT OF CALIFORNIA
15

16 FRED PIERCE, et al.,

) Case No. SACV 01-981 ABC(MLGx) ) Consolidated with

17

Plaintiffs,

) Case No. CV 75-3075 ABC (MLGx) )

18

vs.

) ) [PROPOSED] JUDGMENT

19 COUNTY OF ORANGE, et al.

) )

20

Defendants.

) )

21

________________________________ ) )

22 JERRY E. STEWART, et al.,

) )

23

Plaintiffs,

) )

24

vs.

) )

25

) )

26 BRAD GATES, et al.,

) ) MATTER FOR DETERMINATION

27

Defendants.

) BY THE HONORABLE AUDREY B. ) COLLINS

28

1 [PROPOSED] JUDGMENT

1

This matter came on for trial before the Court on February 9, 2010; the

2 Honorable Audrey B. Collins, District Court Judge presiding. The parties have

3 submitted post-trial briefing and objections. The evidence has been considered, the

4 issues have been heard, and the objections have been ruled upon. Defendant has

5 submitted its Final Proposed Plan, which the Court has reviewed.

6

IT IS HEREBY ADJUDGED that the Court accepts Defendant’s Final

7 Proposed Plan, that Plaintiffs are the prevailing party, and that judgment be entered

8 in favor of Plaintiffs.

9

10 Dated: June 28, 2011
11
United
12

__________________________________
AUDREY B. COLLINS States District Court Judge

13

14
Respectfully submitted,
15
LAWRENCE BEACH ALLEN & CHOI, PC
16

17

18 By________/s/________________

DAVID D. LAWRENCE

19

CHRISTINA M. SPRENGER

20

Attorneys for Defendant

21

COUNTY OF ORANGE

22

23

24

25

26

27

28

2 [PROPOSED] JUDGMENT

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

3
I, Donna Adams, am employed in the aforesaid County, State of California; I 4 am over the age of 18 years and not a party to the within action; my business 5 address is 1600 N. Broadway, Suite 1010, Santa Ana, California 92706.

6

On June 23, 2011, I electronically filed the foregoing [PROPOSED]

7 JUDGMENT with the Clerk of the Court using the CM/ECF system which will

8 send notification of such filing to the following e-mail addresses:

9 Dan Stormer dstormer@hadsellstormer.com,tgalindo@hskrr.com
10 Virginia Keeny vkeeny@hskrr.com,yanaya@hskrr.com HADSELL STORMER KEENY RICHARDSON & RENICK, LLP
11

12 Richard P Herman rherman@richardphermanlaw.com 13 A Law Corporation

14 Barrett S Litt jwhite@littlaw.com,blitt@littlaw.com 15 LITT, ESTAUR, HARRISON, MILLER & KITSON, LLP

16 Wendy J Phillips wendy.phillips@coco.ocgov.com 17 Orange County Counsel

18 X
19
20

(Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made.

21

Executed on June 23, 2011, at Santa Ana, California.

22

23

_______________________

24

Signature of Declarant

25

26

27

28

1 [PROPOSED] JUDGMENT

 
 ( ) Case 8:01-cv-00981-ABC -MLG Document 796 Filed 09/06/11 Page 1 of 2 Page ID #:6515

1 David D. Lawrence, Esq.. [State Bar No. 123 039] E-Mail: dlawrence@lbaclaw.com
2 Christina--M. --spi:eng~er~-----Es-~-Tstate Bar No. 205105]
E-Mail: csprenger@lbaclaw.com 3 LAWRENCE-BEACTf-AI;L-E"ir-&cHbi ___
A Professional Corporation 4 1600 North Broadway, Suite 1010,
Santa Ana, California 92706 5 Telephone No. (714) 479-0180
Facsimile No. (714) 479-0181
6
Wendy J. Phillips, Sr. Deputy [State Bar No. 178452] 7 E-Mail: wendy__:_l2hillr)s@coco. ocgov. com
-oFFICE OF THE COUNTY COUNSEL 8 COUNTY OF ORANGE
333 W. Santa Ana Blvd., Suite 407 9 P.O. Box 1379
Santa Ana, California 92702-1379 10 Telephone No. (714) 834-3300
Facsimile No. (714) 834-2359 11
Attorneys for Defendant, 12 COUNTY OF ORANGE

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 FRED PIERCE, et al.,
16

17

Plaintiffs,

18

vs,

19 COUNTY OF ORANGE, et al.

20

Defendants.

Case No. SACV 01-981 ABC(MLGx) Consolidated with Case No. CV 75-3075 ABC (MLGx)
[P~ED] ORDER RE AMENDMENTS TO CORRECT INACCURACIES IN THE COURT'S JUNE 28, 2011 FINAL ORDER ON DEFENDANT'S PROPOSED
PLAN

21 JERRY E. STEWART, et al.,
22

23

Plaintiffs,

24

,2i.

vs.

{Stipulat.ion Filed Concurrently Herewith]

25 BRAD GATES, et al.,
26 Defendants.
27

·''
MATTER FOR'DETERMINATION BY THE HONORABLE AUDREY B. COLLINS

28

1 (PROPOSED} ORDER RE CONTINUANCE OF DEADLINES

Case 8II :01-cv-00981-ABC -MLG Document 796 Filed 09/06/11 Page 2 of 2 Page ID #:6516

;
.,..•..

1

[PROPOSED] ORDER

2

The Court's Final Order of June 28, 2011, is amended as

3 follows::

4

At. page 16, line 17, the word "cable~ shall be changed to

5 "table";

6

At page 13, line 5, the reference to "Mod K" shall be

7 changed to "Mod L";

8

At page 10, line 23; page 12, line 28; and page 14, line 5:

9 the phrase "lower phones" shail be changed to "lower one phone";

10

At page 14, lines 8-9, the reference to "Isolation Cell 3n

11 shall be changed to "Isolation Cell 1";

12

At page 2, line 3, the phrase "in the first year the monitor

13 shall make four annual inspections 11 shall be changed to "in the

14 first year, the monitor shall make four inspections"; and

15

With regard to lowering phones inside certain jail

16 facilities, the circuitry and composition of the walls prevents

17 that from occurring. GTEL has provided, and the County has

18 installed, modified face plates which place operable buttons

19 toward the bottom of the phone. The result brings the phones

20 into compliance with the ADA's "highest operable part 11 maximum as

21 either "front reach" or "side reach" phones, per ADA sections . 22 4.31.3 and 4.2.5 .

23

24 IT IS SO ORDERED.

25

26

~ HONORABLE AUDREY ·B.- C-O-LL-IN-S-

27

United ~tates District Court Judge

28

2 [PROPOSED] ORDER RE CONTINUANCE OF DEADLINES

 
 Case 8:01-cv-00981-ABC -MLG Document 810 Filed 02/08/12 Page 1 of 4 Page ID #:7397

1 RICHARD P. HERMAN SBN 53743 LAW OFFICE OF RICHARD P. HERMAN
2 3723 BIRCH STREET SUITE 3 NEWPORT BEACH CA 92660
3 TELEPHONE: 714-5'47-8512 FACSIMILE: 949-861-8331
4 EMAIL: rherman@richardphermanlaw.com

s DAN STORl\tlER SBN 101967

VIRGINIA KEENEY, SBN 139568

6 HANDSELL STORMER KEENY

RICHARDSON & RENICK LLP 7 128 N. Fair Oaks Avenue, #204

Pasadena CA 91103

s TELEPHbNE: 626- 585-9600

FACSIMILE: 626-577-7079

9

10

BLIATRTR,EFJT'TTSU.AL~I,THTARERSIO':SSOBNN&:

65717 KITSON

LLP

1055 WlLSHI=BLVD STE 1880

11 Los Anf'eles, CA 90017 Phone: 213) 386-3114

12 Fax: 213) 380-4585

13 Attorneys for the Plaintiffs

14

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA

17

1s FRED PIERCE, et, al

19

Plaintiffs,

20

vs.

21 COUNTY OF ORANGE, et al,

22

Defendants

Case No.SA01-981 ABC (MLGx) Case No: CV75-03075 ABC (MLGx) PLAINTIFFS MEMORANDUM RE: ORANGE COUNTY JAILS CULTURE

23

24

JERRY E. STEWART, et al.

zs

Plaintiffs,

26 BRAD GATES, et al.

27

28

PLAINTIFFS MEMORANDUM 1

Case 8:01-cv-00981-ABC -MLG Document 810 Filed 02/08/12 Page 2 of 4 Page ID #:7398

The culture in the Orange County Jails which informs the behavior of the jail
l

2 staff and the administration goes back more than 50 years. Since Stewart v. Gates

3
in 1978 there has been resentment of the Federal Courts "interference" with
4
5 treatment of prisoners. When it comes to the constitutional rights of prisoners the

6
defendants do not "get it". As a result all sorts of "clever" passive aggressive
7
8 means to circumvent the intent of Pierce and Stewart are invented.

9

"The County claims that Plaintiffs did not achieve a significant benefit

10
because they obtained enforcement of only two Stewart injunctions to maintain
11

12 the status quo, and "ultimately served to deprive similarly situated inmates of

13
injunctive relief that was in place before the litigation commenced." (County Opp.
14
15 9.) That position fundamentally misunderstands the proceedings. The County bore

16 the burden under the PLRA in this case to prove that the Stewart injunctions were
17
no longer necessary. See Pierce, 526 F.3d at 1206. The County did so as to twelve
18

19 of them by demonstrating compliance. See, e.g., Pierce, 526 F.3d at 1206-07
20
(noting that "the County presented evidence tending to show its compliance" with
21
22 the nine uncontested Stewart injunctions). That means that conditions had

23
improved such that the injunctions were unnecessary, not that inmates were
24
25 deprived of their benefit." Order Re: Legal Issues Document Number 684, Filed

26 November 24, 2009 at 12:13 through 13:4.
27

28

PLAINTIFFS MEMORANDUM 2

Case 8:01-cv-00981-ABC -MLG Document 810 Filed 02/08/12 Page 3 of 4 Page ID #:7399

Unfortunately as the attached "two hour dayroom" correspondence shows
1

2 the Defendants still do not "get it". Two hours minimum of dayroom, like three
3
hours a week of recreation are minimums not privileges for Ad Seg or ADA
4
prisoners only(!).

6

More than 20 years ago the AD Seg- special handling distinction was

7

suggested to Judge Rymer as permitting one hour dayroom and no outdoor
8

9 recreation instead of"Ad Seg privileges". Judge Rymer said "if it looks like a

10
duck... " and this was corrected.
11

12

Unfortunately serious monitoring including compliance with all of the

13
Stewart orders (as a measure of Defendants understanding of the intent ofthis
14
15 Court's Orders) is needed.

16

The present monitors could include this. In fact the penology of operating

17
the County Jail is not rocket science. There are County Jails in California that
18

19 abide by Constitutional Norms and respect for human decency.
20
Respecting the minimum and minimal access to dayroom or outdoor
21
22 recreation have become more important with realignment. While once only a small

23 percentage of prisoners were held over 30 days, now many prisoners are serving
24
actual time in the Orange County Jails of9 months to 2 years.
25

26

I attempted to bring a class action (Bowker) including these issues. Mr.

27
Bowker was held for 71 days in a disciplinary isolation cell without adequate
28

PLAINTIFFS MEMORANDUM 3

Case 8:01-cv-00981-ABC -MLG Document 810 Filed 02/08/12 Page 4 of 4 Page ID #:7400

access to religious services, dayroom, outdoor exercise, or telephones. It was my
1

2 hope that it would go to Judge Carter but this Court low numbered it and

3
eventually dismissed for technical reasons. Perhaps we could go back to Judge
4
5 Carter for the Stewart v. Gates issues with which he is familiar because of his

6 daily contacts with the jail when he was the Presiding Criminal Judge of the
7
Orange County Courts. The combination of Judge Carter's expertise and the
8

9 monitors efforts seem the best hope for winning the "hearts and minds" of
10
Defendants.
11

12

13
DATED: February 8, 2012
14
15

lly Submitted,
,{

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS MEMORANDUM 4

Case 8:01-cv-00981-ABC -MLG Document 810-1 Filed 02/08/12 Page 1 of 5 Page ID #:7401

Case 8:01-cv-00981-ABC -MLG Document 810-1 Filed 02/08/12 Page 2 of 5 Page ID #:7402

Case 8:01-cv-00981-ABC -MLG Document 810-1 Filed 02/08/12 Page 3 of 5 Page ID #:7403

Case 8:01-cv-00981-ABC -MLG Document 810-1 Filed 02/08/12 Page 4 of 5 Page ID #:7404

Case 8:01-cv-00981-ABC -MLG Document 810-1 Filed 02/08/12 Page 5 of 5 Page ID #:7405

 
 Case 8:01-cv-00981-ABC -MLG Document 808 Filed 02/01/12 Page 1 of 2 Page ID #:7382
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

SACV 01-0981 ABC (MLGx)

Date

SACV 75-03075 ABC

February 1, 2012

Pierce, et al. v. County of Orange, et al.; Stewart v. Gates et al.

Present: The Honorable

Audrey B. Collins, Chief Judge

Angela Bridges Deputy Clerk

Not Present Court Reporter / Recorder

N/A Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

Status Conference (In Chambers)

The Court has received the Monitor’s second quarterly report, dated January 2012, and ORDERS the parties to appear for a status conference on Monday, February 13, 2012 at 3:00 p.m. to discuss several issues raised in the report regarding Defendant County of Orange, et al.’s (the “County’s”) compliance with the Court’s Order on Defendant’s Amended Final Plan. (Docket No. 779.) The Court commends the County on the substantial progress made on required physical modifications during the first six months following the Court’s Order, but the County has not complied with several significant parts of the Court’s Order, including the housing of class members and the implementing of required programmatic changes.

The Court is particularly concerned with the following information from the Monitor’s report:

•

The failure to house a significant number of class members in the locations identified in

the Court’s Order (Report at 5–7, § V);

•

The comment by a class member at Theo Lacy who could not stand for long periods that

there was no place to sit down in the recreation area adjacent to Module O, so he had to

sit on the toilet in order not to miss the opportunity for outdoor recreation (Report at 8–9,

§ VI.A.2.a);

•

The incident in which a class member was transported from Central Men’s Jail to Theo

Lacy for outdoor recreation, which resulted in a 13-hour trip and still the class member

never saw any grass or green space (indeed, based on the experience, the inmate said he

would decline all future offers to be transported to recreation at Theo Lacy) (Report at

10–11, § VI.A.2.b);

•
CV-90 (06/05)

The failure to accommodate two female class members for classes and religious services at the Intake Release Center, whose disabilities prevented them from climbing the stairs to reach the area where classes and religious services were held (Report at 18–19, § VI.A.2.c); and

CIVIL MINUTES - GENERAL

Page 1 of 2

Case 8:01-cv-00981-ABC -MLG Document 808 Filed 02/01/12 Page 2 of 2 Page ID #:7383
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

SACV 01-0981 ABC (MLGx)

Date

SACV 75-03075 ABC

February 1, 2012

Pierce, et al. v. County of Orange, et al.; Stewart v. Gates et al.

•

The long waits for accessible Court Transfer transportation, including the reported

“pressure” and “harassment” on class members from deputies to take inaccessible

vehicles, the comment that one class member had to lie on concrete bench because his

condition did not allow him to sit in his wheelchair for hours to wait for transportation,

and the comment by another class member that he crawled into an inaccessible bus rather

than wait any longer for an accessible vehicle to arrive (Report at 20, § VII.A.3.a).

The Court also notes that, when the Monitor brought these issues to the County’s attention, the County’s response was usually inadequate and non-responsive. At the status conference, the County should be prepared to substantively and adequately respond to these issues.

The Monitor and his team will also be present at the status conference.

IT IS SO ORDERED.

Initials of Preparer
cc: Keith Rohman, Public Interest Investigations, Inc. Court-Appointed Monitor/Rohman@piila.com

: AB

CV-90 (06/05)

CIVIL MINUTES - GENERAL

Page 2 of 2

 
 Case 8:01-cv-00981-ABC-MLG Document 708 Filed 03/23/10 Page 1 of 6 Page ID #:3291

1 David D. Lawrence, Esq. [State Bar No. 123039J E-Mail: dlawrence@lbaclaw.com
2 Christina M. Sprenger, Esq. [State Bar No. 205105J
3 I~~i:i~~ ~i~~~~g~~~~b~~~:~~c~~r No. 266132J IIE-Mail: lriggs@lbaclaw.com
4 LAWRENCE BEACH ALLEN & CHOI A Professional Corporation
5 1600 North Broadway, Suite 1010, Santa Ana, California 92706
6 Telephone No. (714) 479-0180 Facsimile No. (714) 479-0181
7
Wendy J. Phillips, Sr. Deputy [State Bar No. 178452J 8 E-Mail: wendy.phi11ps@coco.ocgov.com
OFFICE OF THE COUNTY COUNSEL 9 COUNTY OF ORANGE
333 W. Santa Ana Blvd., Suite 407 10 P.O. Box 1379
Santa Ana, California 92702-1379 11 Telephone No. (714) 834-3300
Facsimile No. (714) 834-2359
12
Attorneys for Defendant, 13 COUNTY OF ORANGE

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16 FRED PIERCE, et al.,
17

18

Plaintiffs,

19

vs.

Case No. SACV 01-981 ABC (MLGx) Consolidated with Case No. CV 75-3075 ABC (MLGx)
NOTICE OF FILING SECOND AMENDED EXHIBIT NO. 156

20 COUNTY OF ORANGE, et al.

21

Defendants.

22 JERRY E. STEWART, et al.,
23

24

Plaintiffs,

25

vs.

26 BRAD GATES, et a1.,
27 Defendants.
28

MATTER FOR DETERMINATION BY THE HONORABLE AUDREY B. COLLINS

1
NOTICE OF FILING SECOND AMENDED EXHIBIT NO. 156

Case 8:01-cv-00981-ABC-MLG Document 708 Filed 03/23/10 Page 2 of 6 Page ID #:3292

1

PLEASE TAKE NOTICE that pursuant to the direction of the

2 Court, Defendant hereby files the second amended Exhibit No. 156

3 II attached hereto.

4
5 Dated: March~~ 2010

Respectfully submitted, LAWRENCE BEACH ALLEN & CHOI, PC

6

7

8

9

LYLE R. RIGGS

Attorneys for Defendant

10

COUNTY OF ORANGE

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2
NOTICE OF FILING SECOND AMENDED EXHIBIT NO. 156

Case 8:01-cv-00981-ABC-MLG Document 708 Filed 03/23/10 Page 3 of 6 Page ID #:3293
EXHIBIT 156

Case 8:01-cv-00981-ABC-MLG Document 708 Filed 03/23/10 Page 4 of 6 Page ID #:3294
I. CLASSES OFFERED AT MUSICK, BUT NOT AT THE IRC/MCJ
1. Cabinetry 2. Sewing 3. Stained Glass 4. Welding 5. MOPS 6. Job Development 7. Sew Much Comfort
H. CLASSES OFFERED AT THEO LACY, BUT NOT AT IRC/MCJ
1. Food Services
m. CLASSES OFFERED AT IRC/MCJ, BUT NOT AT THEO LACY
1. Self Esteem (IRC) 2. Domestic Violence (female) (IRC) 3. High School Math (IRC/MCl) 4. Anger Management (IRC/MCJ) 5. ICDTP (IRC) 6. Probation (MCJ) 7. Citizenship (IRC) 8. Dual Diagnosis (IRC) 9. Loss SuppOli (IRC) 10. YDAD (IRC)
IV. CLASSES OFFERED AT IRC/MCJ, BUT NOT AT MUSICK
1. High School Math (IRC/MCJ) 2. Anger Management (IRC/MCl) 3. Intro to Software Application (MCJ/IRC) 4. AIDS Instruction (IRC/MCJ) 5. ABE (MCJ/IRC) 6. Career Planning (IRC/MCJ) 7. Parenting (lRC/MCl) 8. Great Escape-Spanish (MeJ) 9. Work Force Preparation (IRC/MCJ) 10. Probation (MCJ) II. Hermana Project (IRC) 12. Citizenship (IRC) 13. Dual Diagnosis (IRC) 14. Loss Support (IRC) 15. YDAD (IRC) 16. Career Planning (MCJ/IRC)

Case 8:01-cv-00981-ABC-MLG Document 708 Filed 03/23/10 Page 5 of 6 Page ID #:3295
V. MISCELLANEOUS CLASSES 1. Empowennent (female) offered at Musick 2. Job Preparation offered at Musick

Case 8:01-cv-00981-ABC-MLG Document 708 Filed 03/23/10 Page 6 of 6 Page ID #:3296

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

3

I, Donna Adams, am employed in the aforesaid County, State

4 of California; I am over the age of 18 years and not a party to

the within action; my business address is 1600 N. Broadway, Suite

5 1010, Santa Ana, California 92706.

6

On March 23, 2010, I electronically filed the foregoing

7 NOTICE OF FILING SECOND AMENDED EXHIBIT NO. 156 with the Clerk of the Court using the CM/ECF system which will send notification of

8 such filing to the following e-mail addresses:

9 Dan Stormer

dstormer@hadsellstormer.com,tgalindo@hskrr.com

10 Virginia Keeny

vkeeny@hskrr.com,yanaya@hskrr.com

HADSELL STORMER KEENY RICHARDSON & RENICK, LLP

11

Richard P Herman 12 A Law Corporation

rherman@richardphermanlaw.com

13 Barrett S Litt

jwhite@littlaw.com,blitt@littlaw.com

14 LITT, ESTAUR, HARRISON, MILLER & KITSON, LLP

15 Wendy J Phillips

wendy.phillips@coco.ocgov.com

16 Orange County Counsel

17 X (Federal) I declare under penalty of perjury that the

foregoing is true and correct, and that I am employed In the

18

office of a member of the bar of this Court at whose

19

direction the service was made.

20

Executed on March 23, 2010, at Santa Ana, California.

21

)(, r1111!oCIt'LJO

22

of Declarant

23

24

25

26

27

28

3 NOTICE OF FILING SECOND AMENDED EXHIBIT NO. 156

 
 Case 8:01-cv-00981-ABC-MLG Document 826 Filed 07/30/12 Page 1 of 3 Page ID #:7518

1 David D. Lawrence, Esq. [State Bar No. 123039] E-Mail: dlawrence@lbaclaw.com
2 Christina M. Sprenger, Esq. [State Bar No. 205105] E-Mail: csprenger@lbaclaw.com
3 LAWRENCE BEACH ALLEN & CHOI A Professional Corporation
4 1600 North Broadway, Suite 1010, Santa Ana, California 92706
5 Telephone No. (714) 479-0180 Facsimile No. (714) 479-0181
6
Wendy J. Phillips, Sr. Deputy [State Bar No. 178452] 7 E-Mail: wendy.phillps@coco.ocgov.com
OFFICE OF THE COUNTY COUNSEL 8 COUNTY OF ORANGE
333 W. Santa Ana Blvd., Suite 407 9 P.O. Box 1379
Santa Ana, California 92702-1379 10 Telephone No. (714) 834-3300
Facsimile No. (714) 834-2359
11
Attorneys for Defendant, 12 COUNTY OF ORANGE

13

UNITED STATES DISTRICT COURT

14
CENTRAL DISTRICT OF CALIFORNIA
15

16 FRED PIERCE, et al.,

) Case No. SACV 01-981 ABC(MLGx) ) Consolidated with

17

Plaintiffs,

) Case No. CV 75-3075 ABC (MLGx) )

18

vs.

) [PROPOSED] ORDER RE ) AMENDMENTS TO CLARIFY

19 COUNTY OF ORANGE, et al.

) LANGUAGE IN THE COURT’S ) JUNE 28, 2011 FINAL ORDER ON

20

Defendants.

) DEFENDANT’S PROPOSED PLAN )

21

________________________________ ) )

22 JERRY E. STEWART, et al.,

) )

23

Plaintiffs,

) [Stipulation Filed Concurrently ) Herewith]

24

vs.

) )

25

) )

26 BRAD GATES, et al.,

) MATTER FOR DETERMINATION ) BY THE HONORABLE AUDREY B.

27

Defendants.

) COLLINS )

28

1 [PROPOSED] ORDER RE AMENDMENTS TO CLARIFY LANGUAGE

Case 8:01-cv-00981-ABC-MLG Document 826 Filed 07/30/12 Page 2 of 3 Page ID #:7519

1

[PROPOSED] ORDER

2

The Court’s Final Order of June 28, 2011, is amended as follows:

3

At page 7, line 17, the phrase “, if their classification status meets that of

4 inmates housed in the Barracks and their medical conditions permit,” is added

5 between the phrases “Module and” and “in the Inmate Programs Building (IPB)”;

6

Numbered paragraph 13 on page 8 is stricken.

7

8 IT IS SO ORDERED.

9

10 Dated: July 30, 2012

11

United

12

________________________________ HONORABLE AUDREY B. COLLINS
States District Court Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 [PROPOSED] ORDER RE AMENDMENTS TO CLARIFY LANGUAGE

Case 8:01-cv-00981-ABC-MLG Document 826 Filed 07/30/12 Page 3 of 3 Page ID #:7520

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

3
I, Donna Adams, am employed in the aforesaid County, State of California; I 4 am over the age of 18 years and not a party to the within action; my business 5 address is 1600 N. Broadway, Suite 1010, Santa Ana, California 92706.

6

On July 24, 2012, I electronically filed the foregoing [PROPOSED]

7 ORDER RE AMENDMENTS TO CLARIFY LANGUAGE IN THE

8 COURT’S JUNE 28, 2011 FINAL ORDER ON DEFENDANT’S PROPOSED PLAN with the Clerk of the Court using the CM/ECF system which will send
9 notification of such filing to the following e-mail addresses:

10
Dan Stormer dstormer@hadsellstormer.com,tgalindo@hskrr.com 11 Cindy Pánuco cpanuco@hskrr.com,yanaya@hskrr.com
12 HADSELL STORMER KEENY RICHARDSON & RENICK, LLP

13 Richard P Herman rherman@richardphermanlaw.com 14 A Law Corporation

15
Barrett S Litt jwhite@littlaw.com,blitt@littlaw.com 16 LITT, ESTAUR, HARRISON, MILLER & KITSON, LLP

17

18

Wendy J Phillips wendy.phillips@coco.ocgov.com Orange County Counsel

19

20 X
21

(Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made.

22
Executed on July 24, 2012, at Santa Ana, California.
23

24

25

_______________________ Signature of Declarant

26

27

28

3 [PROPOSED] ORDER RE AMENDMENTS TO CLARIFY LANGUAGE

 
 Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 1 of 18 Page ID #:11189

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 FRED PIERCE, et al.;

13

Plaintiffs,

14

v.

15 COUNTY OF ORANGE, et al.;

16

Defendants.

SACV 01-0981 ABC (MLGx) CV 75-3075 ABC
ORDER DENYING MOTION TO EXTEND AND GRANTING MOTION TO TERMINATE INJUNCTIVE RELIEF

17 Pending before the Court are the parties’ cross-motions to extend
18 and terminate the injunctive relief based upon violations of the
19 Americans with Disabilities Act (“ADA”) granted by the Court in its
20 June 28, 2011 Order (“Order”). (Docket No. 779.) Plaintiffs Fred
21 Pierce, et al. filed their Motion for Order Extending Injunctive
22 Relief for an Additional Two Years on June 3, 2013. (Docket No. 831.)
23 Defendant County of Orange (the “County”) filed its Motion to
24 Terminate Injunctive Relief on August 12, 2013. (Docket No. 839.)
25 Briefing on the motions was delayed as a result of a discovery issue
26 regarding inmate medical records and the Health Insurance Portability
27 and Accountability Act. After that issue was resolved, the parties
28 opposed the motions on December 16, 2013 and replied on January 21,

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 2 of 18 Page ID #:11190

1 2014. (Docket Nos. 863, 864, 877, 878.) The Court heard oral

2 argument on February 10, 2014. For the reasons set forth below, the

3 Court DENIES Plaintiffs’ motion to extend injunctive relief and GRANTS

4 Defendant’s motion to terminate the injunction.

5 I. The Monitor’s Ninth Quarterly Report

6

On December 6, 2013, Keith Rohman, the Court-appointed Monitor

7 (the “Monitor”) submitted a Ninth Quarterly Report to the Court, which

8 contains his most recent evaluation of compliance with the injunction.

9 The Court indicated it would consider the Ninth Quarterly Report in

10 ruling on the pending motions. (Docket No. 871.)

11

A. Areas Where the Monitor Has Found Compliance

12

The Monitor has found compliance in the following areas:

13

1. Housing

14

The Monitor found housing at Theo Lacy Facility (“TLF”), Central

15 Men’s Jail (“CMJ”), and Intake Release Center (“IRC”) in compliance.

16 The Monitor noted physical modifications to Tank 13 of the Central

17 Women’s Jail (“CWJ”), which are discussed below, as the basis for not

18 finding full compliance there. (Report at 15-19.)

19

2. Access to Recreation in CMJ, CWJ, and IRC

20

The Monitor found compliance, except for recreation at Mod O and

21 TLF, which are discussed below. (Report at 20-21.)

22

3. Access to Programs

23

The Monitor found compliance with program access across all

24 facilities. (Report at 24-26.)

25

4. Access to Visitation

26

The Monitor found compliance regarding regular (barrier) visits.

27 The Ninth Report noted non-compliance as to non-barrier visits, which

28 is addressed below.

2

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 3 of 18 Page ID #:11191

1

5. Access to Transportation

2

The Monitor found compliance concerning transportation. (Report

3 at 26.)

4

6. Systemwide Modifications

5

The Monitor found compliance as to training and stated, “Should

6 the Order be extended, the Monitor will observe Academies training in

7 2014.” (Report at 28-29.) He found Defendant was not in compliance

8 related to grievance forms, addressed below. (Report at 30-31.)

9

7. Physical Modifications

10

With the exception of the lift in Module K at the IRC and the

11 construction of Tank 13 at CWJ, discussed below, all physical

12 modifications are complete.

13

B. Areas Where the Monitor Has Not Yet Found Compliance

14

1. Inclusion in the Pierce Class

15

The biggest point of contention between the parties is

16 Defendant’s compliance regarding identification of inmates for

17 inclusion in the Pierce class. The Monitor complains that Defendant

18 lacks documentation to support its classification decisions and it is

19 therefore unclear how and when Defendant determines who is included in

20 the class. Defendant submits the declaration of Dr. C. Hsien Chiang,

21 Medical Director of Correctional Health Services, to explain why

22 inmate medical records support Defendant’s decisions to include or

23 exclude inmates from the class.

24

2. Defendant’s Policies and Procedures

25

a. Recreation at Mod O and TLF

26

After reviewing the Monitor’s August 2012 Report, the Court

27 issued an order encouraging Defendant to “ensur[e] that outdoor

28 recreation is offered at times with at least a reasonable probability

3

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 4 of 18 Page ID #:11192

1 of class member’s taking advantage of it.” (Docket No. 828.) The

2 Monitor reports that Defendant “appears to have significantly reduced

3 the number of recreation offers before 6 a.m. in the ninth quarter,

4 although several offers were extended between 6 a.m. and 6:30 a.m.

5 [He] noted that the timing of some offers shifted later, however, to

6 11 p.m. and after midnight.” (Report at 20-21.)

7

The Monitor also asserts that Defendant “skirts the edge” of

8 compliance as to recreation at CMJ. (Report at 22.) The Monitor

9 “expressed concern” that “permitting Pierce inmates to choose to be

10 housed in [CMJ] might lead them to believe that meant they were

11 relinquishing their rights to take recreation at the Green Sector.”

12 Id.

13

b. Access to Visitation

14

The Monitor questions access to non-barrier visits with respect

15 to two women who qualified for JAMF (James A. Musik Facility).

16 (Report at 24.) The Monitor’s Ninth Report states, “Assuming that

17 both women were qualified, the Department’s documents contained no

18 information offering them non-barrier visits in the Attorney Bonds

19 area of CWJ.” Id.

20

c. Training

21

The Monitor states that because Defendant did not finish training

22 its staff until July 2013, he has not had an opportunity to assess

23 compliance in this area and believes “it would be beneficial for him

24 to ‘observe Academies training in 2014.’” (Pl. Reply at 11; Report at

25 29.)

26

d. Grievances

27

The Monitor faulted Defendant for “fail[ing] to provide”

28 grievance forms for his review, stating that the forms “presented

4

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 5 of 18 Page ID #:11193

1 claims under the ADA and are relevant to the Monitor’s assessment of

2 the Department’s compliance.” (Report at 31.)

3

3. Physical modifications

4

Tank 13 is almost complete. The parties have reached an impasse

5 on how to resolve the fact that a lift is not possible in Module K.

6 (Report at 26-28.)

7 II. LEGAL STANDARD

8

The Prison Litigation Reform Act (“PLRA”) provides that “[i]n any

9 civil action with respect to prison conditions in which prospective

10 relief is ordered, such relief shall be terminable upon the motion of

11 any party . . . 2 years after the date the court granted or approved

12 the prospective relief.” 18 U.S.C. § 3626(b)(1)(A)(I). “Prospective

13 relief shall not terminate if the court makes written findings based

14 on the record that prospective relief remains necessary to correct a

15 current and ongoing violation of the Federal right, extends no further

16 than necessary to correct the violation of the Federal right, and that

17 the prospective relief is narrowly drawn and the least intrusive means

18 to correct the violation.” Id. § 3626(b)(3); Gilmore v. People of the

19 State of California, 220 F.3d 987, 1008 (9th Cir. 2000). This review

20 of an injunction under the PLRA is often referred to as a “need-

21 narrowness-intrusiveness” inquiry. Pierce v. County of Orange, 526

22 F.3d 1190, 1205 (9th Cir. 2008) (citation omitted).

23

In analyzing whether to terminate or extend an existing

24 injunction, courts must assess present circumstances, not past

25 conditions. Gilmore, 220 F.3d at 1010 (the “‘record’ referred to in §

26 3626(b)(3) cannot mean the prior record but must mean a record

27 reflecting conditions as of the time termination is sought”); Pierce

28 v. County of Orange, 519 F.3d 985, 998 (9th Cir. 2008) (same). The

5

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 6 of 18 Page ID #:11194

1 dual requirements of current and ongoing violations are necessary to

2 ensure “court orders do not remain in place on the basis of a claim

3 that a current condition that does not violate prisoners’ Federal

4 rights nevertheless requires a court decree to address it, because the

5 condition is somehow traceable to a prior policy that did violate

6 Federal rights, or that government officials are ‘poised’ to resume a

7 prior violation of federal rights.” Para-Professional Law Clinic at

8 SCI-Gratherford v. Beard, 334 F.3d 301, 304-05 (3d Cir. 2003).

9

The parties dispute whether Plaintiff or Defendant bears the

10 burden of proof where there are cross-motions to extend and terminate

11 the injunction. As the Ninth Circuit noted in Pierce, “there may be

12 some tension in our case law in this area[.]” Pierce, 529 F.3d at 1206

13 n.16; compare Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010)

14 (“When a party moves to terminate prospective relief under § 3626(b),

15 the burden is on the movant to demonstrate that there are no ongoing

16 constitutional violations, that the relief ordered exceeds what is

17 necessary to correct an ongoing constitutional violation, or both.”)

18 and Clark v. California, 739 F. Supp. 2d 1168, 1175 (N.D. Cal. 2010)

19 (ruling that “defendants, as the party moving for termination, bear

20 the burden of proving that no such violations exist”) with Mayweathers

21 v. Newland, 258 F.3d 930, 936 (9th Cir. 2001) (Section 3626(a)(2)

22 “imposes a burden on plaintiffs to continue to prove that preliminary 23 relief is warranted”).1

24

25

1 Interestingly, Plaintiffs concede that they bear the burden of

proving that continued enforcement of the injunction is necessary to

26 address ongoing constitutional violations, which is the flip side of Defendant’s burden. See Clark, 739 F. Supp. 2d at 1176 (“Plaintiffs

27 bear the burden of proving that enforcement or modification of the

[injunction] is necessary to address defendants’ violations of federal

28 law.”).

6

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 7 of 18 Page ID #:11195

1

In this case, the Court notes that the assignment of the burden

2 of proof is not dispositive of any issues raised by the parties. Even

3 if the burden of proving the injunction is no longer necessary is

4 placed on Defendant, the Court finds that Defendant has carried that

5 burden here.

6 III. DISCUSSION

7

Defendants contend that no current and ongoing violations of

8 federal rights exist and that the injunction should be terminated.

9 Plaintiffs, using the Monitor’s reports as a guide, identify three

10 broad categories of Defendant’s alleged non-compliance with the

11 injunction that they claim warrant extending injunctive relief: (1)

12 classification and booking of class members; (2) policies and

13 procedures regarding recreation, visitation, training, and grievances;

14 and (3) physical modifications. The Court addresses each in turn.

15

A. Classification and Booking of Class Members

16

The Order provides the following definition for “Class Members”:

17

The class is defined as inmates with mobility or

dexterity disabilities, including wheelchair bound

18

inmates. As used herein, the term “‘disability’

means a disability as defined by the Court’s

19

Findings.” Rulings 6:23-24. With regard to

inmates with temporary or intermittent

20

disabilities, the class includes “pretrial

detainees whose impairments substantially limit a

21

major life activity, regardless of duration.”

See, Rulings 8:8-25.

22

Order at 5. The Order states that “[Correctional Health

23

Services] personnel will be responsible for working with security

24

staff to identify class members, coordinate appropriate housing, and

25

determine medical eligibility for programs.” (Order at 4.)

26

27

28

7

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 8 of 18 Page ID #:11196

1

1. Neither the Monitor Nor Class Members are Medically

2

Qualified to Opine on Pierce Classification Decisions

3

The Monitor lacks medical expertise to support his assessment

4 that class members have been potentially missed, belatedly identified,

5 or inexplicably added or removed from the class. Likewise, the class

6 members interviewed by the Monitor are not medically qualified to

7 determine whether they should be included in the Pierce class.

8 Although the Court’s Order empowered the Monitor to “subcontract with

9 experts or consultants to assist in the monitoring process” (Order at

10 2), the Monitor did not engage a qualified medical professional to

11 review the medical records.

12

Plaintiffs make no attempt to dispute Dr. Chiang’s credentials or

13 qualifications. Id. Nor do Plaintiffs dispute that Dr. Chiang is an

14 expert under Federal Rule of Evidence 702. Instead, Plaintiffs argue

15 that Dr. Chiang “speculates as to why medical staff made certain

16 decisions and notations in the records.” (Pl. Opp. at 19; Pl. Reply

17 at 6.) As Defendant aptly points out, Dr. Chiang is the Medical

18 Director of Correctional Health Services and he reviews, interprets,

19 and relies on medical records in treating class members. Fed. Rule

20 Evid. 702 (expert witness may rely on types of data that “experts in

21 [a] particular field would reasonably rely on”).

22

The class members’ medical files contain medically relevant

23 information about the existence of a disability. Dr. Chiang’s

24 explanation refutes Plaintiffs’ conclusions about each of the class

25 members challenged by the Monitor. (Supp. Chiang Decl. ¶¶ 36-44.)

26 The basis for Defendant’s decisions on whom to include in the Pierce

27 class is tracked in the medical records, which satisfy the Court’s

28 Order requiring that Correctional Health Services (the providers of

8

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 9 of 18 Page ID #:11197

1 medical and mental health services to inmates) “identify[] potential

2 class members during the triage process.” (Order at 4, 20.)

3

2. The Lack of a Summary or “Checklist” Is Not a Current

4

and Ongoing ADA Violation

5

Plaintiffs rely on the Monitor’s reports to conclude that because

6 there is no summary document noting the reasons why an inmate was

7 added to or removed from the Pierce class, Defendant “lacks a

8 documented system” and the Monitor “can not evaluate a system that

9 does not exist.” (Docket No. 880 at 3.) In his report, however, the

10 Monitor admits his concerns are based primarily on “guesswork and

11 inference” from inmate interviews and medical records. (Seventh

12 Report at 10; see, e.g., Report at 11 [“Concerning the class member

13 with the fractured ankle and foot, it is unclear why she did not

14 receive canvas shoes and a second crutch in mid-September, but was

15 issued them three weeks later in the minutes before she spoke with the

16 Monitor’s team.”].)

17

The Monitor’s approach does not establish an ADA violation, which

18 requires “the existence of a mobility or dexterity impairment

19 substantial enough to impair a major life activity.” 42 U.S.C. §

20 12102. Instead, after conceding that the Order “does not directly

21 address class members’ medical treatment,” the Monitor asserts that

22 “the quality of medical care falls reasonably within the spirit of the

23 Order and the ADA.” (Report at 11.) However, disagreements

24 concerning the administration of medical treatment, including

25 decisions relating to prescribing medication, are outside the purview

26 of the ADA. See Simmons v. Navajo County, Ariz., 609 F.3d 1101, 1022

27 (9th Cir. 2010) (“[The ADA] would not be violated by a prison’s simply

28 failing to attend to the medical needs of its disabled prisoners. . .

9

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 10 of 18 Page ID #:11198

1 . The ADA does not create a remedy for medical malpractice.”)

2 (citations omitted). Complaints regarding medical treatment are

3 outside the scope of the injunction.

4

Because he cannot interpret medical records, the Monitor looks

5 for a summary document to trace decisions regarding class designation.

6 But such a document is neither medically necessary nor a requirement

7 of the Court’s Order. Armstrong v. Schwarzenegger, 622 F.3d 1058,

8 1074 (9th Cir. 2010), a case cited by Plaintiffs for the proposition

9 that a tracking system is necessary, is distinguishable. There, it

10 was undisputed that the state had no adequate tracking system and an

11 earlier court order expressly required “some form of tracking

12 system . . . in order to enable [defendants] to comply with the Act.”

13 Id. Here, Defendant does have a tracking system in which doctors

14 examine inmates and subsequently note ADA issues in the inmate’s

15 medical records. The Court never ordered that a summary document be

16 created to track the doctors’ decisions regarding class designation.

17 In short, Plaintiffs’ dissatisfaction with the lack of a summary 18 document does not lead to the conclusion that no system exists.2

19

3. Plaintiffs Did Not Give Defendant an Opportunity to

20

Cure

21

The “Enforcement Procedures” section of the Order outlined a

22 procedure for the parties to utilize to resolve disputes, including

23 seeking the Court’s assistance during the pendency of the injunction:

24

25

2 It appears Defendant may have implemented the “checklist”

26 attached as Exhibit 43 to the Panuco Declaration to respond to the Monitor’s concerns. Given the Court’s finding that such a checklist

27 was not a requirement of the Order, Plaintiffs’ claim that it did not

find the checklist in inmate James Hahn’s medical records (Pl. Reply

28 at 7) is irrelevant.

10

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 11 of 18 Page ID #:11199

1 “Upon reasonable cause to allege non-compliance, Plaintiffs’ counsel

2 shall provide the Sheriff’s Department with notice and opportunity to

3 correct the non-compliance or to make modifications. . . . The parties

4 shall endeavor in good faith to resolve reported disputes informally.

5 If an issue identified by Plaintiffs’ counsel is not corrected or

6 modified within 30 days of providing notice, either party may apply to

7 the Court for a hearing regarding the issue.” (Order at 23.)

8 Plaintiffs acknowledge that the Monitor “reported in the fifth, sixth,

9 seventh, and eighth quarter[s], that he could not assess the County’s

10 classification decisions, because no documents exist that track how

11 and why these decisions were made.” (Docket No. 880 at 2.)

12

Defendant contends that Plaintiffs’ counsel have not fulfilled

13 the obligation to meet and confer and provide Defendant an opportunity

14 to cure. (Declaration of Christine Sprenger ¶ 4.) Because the 15 Monitor did not believe it to be appropriate to meet with Dr. Chiang,3

16 it was Plaintiffs’ obligation to provide notice and an opportunity to

17 correct pursuant to the Court’s Order. Instead, Plaintiffs’ counsel

18 has simply relied on the Monitor’s Reports. This is most troubling

19 and runs counter to procedures contemplated in the Court’s Order. The

20 Court’s Order states that “the parties shall endeavor in good faith to

21 resolve reported disputes informally.” (Order at 23.) Declining the

22 opportunity to have Dr. Chiang explain Defendant’s classification

23 decisions is contrary to the spirit of the Court’s Order.

24

25

3 The Monitor has taken the position that he is under no

obligation to resolve alleged compliance issues with the County before

26 issuing the reports. Sprenger Decl. ¶ 6; Eighth Report at 7 (“While the Department has advised the Monitor to speak with Dr. Chiang to get

27 a ‘clear and medically sound reason for each of [the 15] inmates’

inclusion or exclusion from the Pierce class,’ we question why this

28 conversation is necessary.”).

11

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 12 of 18 Page ID #:11200

1

In summary, despite their knowledge that the Monitor had raised

2 this issue multiple times, Plaintiffs never utilized the meet and

3 confer process and never asked the Court for assistance in resolving

4 disputes regarding Defendant’s classification decisions. If

5 Plaintiffs viewed this as a serious problem, they should have raised

6 it before the two-year expiration of the injunction.

7

B. Department’s Policies and Procedures

8

1. Recreation

9

Plaintiffs request that the Court order that “documented offers

10 of recreation to class members must be made between 6:00 a.m. and no

11 later than 10:30 p.m.” (Pl. Reply at 10.) As to early morning

12 offers, Plaintiff’s reply does not address the evidence submitted by

13 Defendant that all inmates rise every day by 4:45 a.m. for counts,

14 meals, court appearances, and other daily functions. (McHenry Decl. ¶

15 12.) The Court finds this evidence significant in analyzing whether

16 offer times are reasonable. For example, offers made before 6:00 a.m.

17 are not per se unreasonable if inmates are active by 4:45 a.m.

18

As to both early morning and late night offers, many factors

19 contribute to the recreation schedule (e.g., Title XV requirements,

20 the number and classification of inmates to whom recreation must be

21 offered each day, limited recreation space) and no inmate is able to

22 select recreation times based on his or her preference. (McHenry

23 Decl. ¶¶ 11-13.) The ADA does not require that class members receive

24 preferential treatment (limited recreation times between 6:00 a.m. and

25 10:30 p.m.). See Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075,

26 1086 (9th Cir. 2004) (ADA regulations were “designed to place those

27 with disabilities on equal footing, not to give them an unfair

28 advantage”). Defendant’s recreation offers comply with the Order and

12

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 13 of 18 Page ID #:11201

1 are not a basis to extend the injunction.

2

Plaintiffs also contend Defendant “skirts the edge” of compliance

3 by not offering inmates at CMJ the opportunity to recreate at the

4 Green Sector. (Report at 22; Pl. Reply at 9-10.) The Monitor

5 “expressed concern” that “permitting Pierce inmates to choose to be

6 housed in [CMJ] might lead them to believe that meant they were

7 relinquishing their rights to take recreation at the Green Sector.”

8 (Pl. Supp. Brief at 7.) Plaintiffs ask the Court to order prospective

9 relief and “clarify that inmates at CMJ must be offered the

10 opportunity to take recreation at Green Section, and that these offers

11 must be documented.” (Pl. Reply at 10.) According to Defendant, such

12 offers are already being made by the Pierce Compliance Officers and

13 documented pursuant to Department policy. (Miller Decl. ¶ 15.) For

14 this reasons and because “skirting the edge” of compliance does not

15 rise to the level of a federal rights violation, the Court declines to

16 extend this aspect of the injunction.

17

2. Visitation

18

As to visitation, Plaintiffs request the Court clarify that class

19 members must be offered non-barrier visits each time they have a

20 visitor and that these offers must be documented. (Pl. Reply at 11.)

21 Plaintiffs base this request on the Monitor’s Ninth Report that he

22 could not determine whether non-barrier visits had been offered to two

23 female inmates who qualified for them. (Report at 24.)

24

Defendant responds that non-barrier visits have longer wait times

25 and require more security than barrier visits; they also require

26 visitors to undergo a physical search of their person and property

27 before the visit. (Def. Reply at 14-15; Miller Decl. ¶ 9.) These

28 factors lead many inmates and their visitors to prefer a barrier

13

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 14 of 18 Page ID #:11202

1 visit. Id. Pierce Compliance Deputies meet with class members on a

2 bi-weekly basis to discuss any issues, concerns, requests and

3 complaints, including visitation rights. Id. ¶ 4. Per Department

4 policy, all Pierce class members sign an “Acknowledgement [sic] of

5 Rights/Programs” form, which includes whether they qualify for non-

6 barrier visits. Id. ¶ 5. With respect to the two female class

7 members referenced by the Monitor, both were made aware of their right

8 to a non-barrier visit and did not request one. (Miller Decl. ¶¶ 10-

9 14.) As a result, the Monitor’s conclusion that “such visits were not

10 considered” is inaccurate. Thus, there is no current and ongoing

11 violation of a federal right to justify extending the injunction.

12

3. Training

13

For training, Plaintiffs seek to extend the injunction because

14 Defendant should have been in compliance with the Booking Loop

15 provisions within 30 days of entry of the injunction, but it “was

16 nearly two years late to develop Booking Loop policies [sic]” and

17 “didn’t finish training its staff until July 2013.” (Pl. Reply at 8.)

18 Plaintiffs assert that class member Hahn “waited for upwards of 16

19 hours in the loop before being housed,” and then, about a month later,

20 spent 10 hours in the loop before being assigned to permanent housing.

21 (Pl. Opp at 12.) The booking loop provision in the Order provides,

22 “Class members who have special or chronic medical needs [must] be

23 specially accommodated or expedited through the booking process.”

24 (Order at 9, emphasis added.) Defendant submits evidence that Hahn

25 was placed in an ADA compliant holding cell during his booking

26 process. (Declaration of Frederick ¶¶ 6-7.) The records also show

27 that Hahn spent less than 12 hours in the booking loop on either date.

28 Id. ¶¶ 6-7. The account of one class member who was accommodated by

14

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 15 of 18 Page ID #:11203

1 being placed in ADA compliant cells does not violate the injunction

2 and does not justify extending it.

3

Similarly, Plaintiffs’ account of a “booking loop incident” where

4 one 75-year-old class member informed the Monitor that he spent two

5 lengthy stays in the booking loop following a return trip from the

6 hospital (Report at 12-14) is not a basis for extending the

7 injunction. The records reflect that this class member was held in an

8 ADA cell at all times, both in the booking loop and his housing

9 locations. (Frederick Decl. ¶¶ 9-10.) As such, the Monitor’s

10 criticism of Defendant for not moving “the class member temporarily to

11 more appropriate housing” is unfounded because holding a class member

12 in an ADA-compliant cell, even one in the booking loop, fully complies

13 with the Court’s Order.

14

At bottom, Plaintiffs’ admission that Defendant “finish[ed]

15 training its staff” in July 2013 establishes that there is no current

16 and ongoing constitutional violation as to training. That the Monitor

17 believes “it would be beneficial for him to ‘observe Academies

18 training in 2014’” does not support extending the injunction. (Pl.

19 Reply at 11.)

20

4. Grievances

21

Lastly, Plaintiffs request that the grievance provisions in the

22 Order be clarified and extended to include inmate message slips

23 because the Monitor noted that inmates filed message slips far more

24 readily than grievances. (Report at 138.) First, to be clear,

25 Defendant is not in violation of the grievance provisions in the Order

26 as it currently exists. Secondly, it does not appear that Defendant

27 has withheld inmate message slips from the Monitor. See, e.g., Pl.

28 Reply at 12, n.4 (stating inmate’s medical file “contains at least 35

15

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 16 of 18 Page ID #:11204

1 inmate message slips over the last five months”). Finally, Plaintiffs

2 have presented no evidence of current and ongoing federal violations

3 that would justify extending the injunction in this manner. The

4 Monitor’s suggestion that message slips could help him gauge

5 compliance is not evidence of non-compliance. Thus, the Court finds

6 it unnecessary to amend or extend this aspect of the Order.

7

C. Physical modifications

8

The unfinished construction projects are not a current and

9 ongoing violation of the Order necessitating further relief.

10

1. Tank 13

11

According to Plaintiffs, Tank 13 of the CWJ has an anticipated

12 completion date of February 14, 2014. (Docket No. 863 [Pl. Opp. To

13 Mot. To Terminate] at 13.) In the meantime, female class members have

14 been housed in ADA-compliant locations. (Report at 18.) The only

15 concern is that the County may not be able to offer ADA-compliant

16 housing to all female class members in CWJ should the class size grow.

17 Pl. Reply at 13 (“[T]he County’s current failure to have sufficient

18 housing on hand could lead to female class members not being

19 accommodated.”) (emphasis added). Defendant points out that there is

20 sufficient housing now and therefore no current and ongoing violation.

21 See Para-Professional Law Clinic at SCI-Graterford v. Beard, 334 F.3d

22 301, 304 (3d Cir. 2003) (holding that where defendants contemplated

23 closing a clinic at some point in the near future, there was no

24 current and ongoing violation). Thus, Plaintiffs’ hypothetical

25 scenario does not justify extending the injunction.

26

2. Module K

27

As for the special lift in Module K of the IRC, Defendant has

28 determined there is no viable option for a lift that is both code

16

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 17 of 18 Page ID #:11205

1 compliant and appropriate for use in a correctional facility.

2 (Declaration of Tom Davis ¶¶ 6-10.) The Order states, “[A]s the re-

3 occupation of the CWJ is uncertain, Defendant also identifies a plan

4 to utilize Module K in the IRC.” (Order at 4.) Given that CWJ

5 reopened as planned and no female class members are being housed in

6 Module K, there is no current and ongoing violation.

7

The parties are “at an impasse” as to Module K. (Pl. Reply at

8 13.) Plaintiffs want Defendant to “codify a policy that class members

9 will not be housed in Module K of the IRC.” Id. Defendant wants “to

10 maintain flexibility to house class members whose classification level

11 prohibits them from participating in the group programs conducted in

12 the classrooms which would be rendered inaccessible to class members.”

13 (Docket No. 839 at 20.) Ironically, Plaintiffs’ counsel opposes

14 Defendant’s proposal because “this type of arrangement would pose a

15 significant burden on the jail staff[.]” (Pl. Reply at 13.)

16

Defendant’s proposal to maintain flexibility as to housing female

17 class members if an issue arises in the future is eminently

18 reasonable. A bright line prohibition that class members will never

19 be housed in Module K is not the exclusive means of satisfying ADA

20 requirements. Moreover, Defendant is in the best position to consider

21 the burden on its jail staff. (Def. Reply at 14.) The Court

22 therefore EXCUSES Defendant from the Module K aspect of the Order.

23

IV. CONCLUSION

24

“It is well established that judges and juries must defer to

25 prison officials’ expert judgments.” Norwood v. Vance, 591 F.3d 1062,

26 1066 (9th Cir. 2009). “[T]he problems of prisons in America are

27 complex and intractable, and, more to the point, they are not readily

28 susceptible of resolution by decree. Most require expertise,

17

Case 8:01-cv-00981-ABC-AJW Document 898 Filed 02/10/14 Page 18 of 18 Page ID #:11206

1 comprehensive planning, and the commitment of resources, all of which

2 are peculiarly within the province of the legislative and executive

3 branches of government.” Procunier v. Martinez, 416 U.S. 396, 404-05

4 (1974).

5

In light of the reality that “courts are ill equipped to deal

6 with the increasingly urgent problems of prison administration and

7 reform” (id.), and having found that the injunction is no longer

8 necessary because the three areas in which Plaintiffs seek to extend

9 the injunction do not present current or ongoing violations, the Court

10 DENIES Plaintiffs’ motion to extend injunctive relief and GRANTS

11 Defendant’s motion to terminate the injunction.

12

13

IT IS SO ORDERED.

14

DATED: February 10, 2014 __________________________

AUDREY B. COLLINS

15

UNITED STATES DISTRICT JUDGE

16

17

18

19

20

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24

25

26

27

28

18

 
 Case 8:01-IcI v-00981-ABC-AJW Document 921 Filed 08/06/14 P)age 1 of 2 Page ID #:11867

1 David D. Lawrence Esq. [State Bar No. 123039]

E-Mail: dlawrence{.lbac1aw.com

2 Christina . pren er, sq. tate Bar No. 205105]

E-Mail: csrener{.lbac1aw.com

3 H(!iyang en Ib sg. [State ar No. 288063]

E-Mail: allenliolac1aw.com

(

4 LAWRENCE ACH ALLEN & CHOI

i".·. Professional C01:porahon

5 2677 North Main Street", Suite 370

Santa Ana, California 9L705

6 Telephone No. (714) 479-0180

FacsImile No. (714) 479-0181

7 Wendy J. Phillips, Sr. Deputy [State Bar No. 178452]

8 EO-FMFaIiCl:EwOeFndFri=EHhCillljsWToYcoC.oCclJtJNvS.cEomL
9 COUNTY OF ORANGE 333 W. Santa Ana Blvd., Suite 407
10 P.O. Box 1379 Santa Ana, Califomia 92702-1379
11 Telephone No. (714) 834-3300 Facsllnile No. (714) 834-2359

12 Attorn~s for Defendant" 13 COUNTY OF ORANGJ:j

14

UNITED STATES DISTRICT COURT

15
CENTRAL DISTRICT OF CALIFORNIA

16

17 FRED PIERCE, et aI.,

18

Plaintiffs,

19

vs.

20 COUNTY OF ORANGE, et al.

CASE NO. SACV 01-981 ABC(AJWx) CONSOLIDATED WITH
IPmm; CASE NO. CV 75-3075 ABC (AJWx) ORDER ON THE SSUE OF A TORNEYS' FEES AND COSTS AND FURTHER STATUS REPORT TO THE COURT

21

Defendants.

22 JERRY E. STEWART, et aI.,
23

Date: Under Submission Time: N/A Ctrm: N/A

24

Plaintiffs,

25 vs.

26 27 BRAD GATES, et aI.,

Defendants. 28

[Stipulation and Status Report filed concurrently herewith] MATTER FOR DETERMINATION BY THE HONORABLE AUDREY B. COLLINS

1 [PROPOSED] ORDER ON ISSUE OF ATTORNEYS' FEES AND COSTS AND STATUS REPORT

" I II Case 8:01-cv-00981-ABC-A'. J..'--.W-'.}\ .,~ Document 921

Filed 08/06/14

P." )(,ag-e 2 of 2

a
Page ID #:11868
I

1

The COUlt having reviewed the parties' Third Joint Status RepOlt and

2 conculTently filed Stipulation on the issue of attorneys' fees and costs, and GOOD

3 'CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT:

4

Defendant shall pay to Plaintiffs' counsel the sum of$115,000.00 as full and

5 final resolution of all claims for attorneys' fees and costs remaining in this litigation in

6 accordance with the tenns ofthe Settlement Agreement and General Release entered

7 into by the parties on June 25,2014.

8

The patties shall file a fiuther Status RepOlt on or before September 30,2014, to

9 advise the COUlt ofthe completion of the tenns of the agreement.

10

11 IT IS SO ORDERED.

12

13
14 Dated:

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 [PROPOSED] ORDER ON ISSUE OF ATTORNEYS' FEES AND COSTS AND STATUS REPORT

 
 Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 1 of 88
(AJWx),APPEAL,CLOSED,DISCOVERY,LEADTR,PROTORD,REOPENED
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Southern Division − Santa Ana)
CIVIL DOCKET FOR CASE #: 8:01−cv−00981−ABC−AJW

Fred Pierce, et al v. County of Orange et, et al Assigned to: Judge Audrey B. Collins Referred to: Magistrate Judge Andrew J. Wistrich Demand: $0 Lead case: 2:75−cv−03075−ABC−AJW Member case: (View Member Case) Case in other court: 9th CCA, 05−55829
Cent Dist of CA, CV75−3075 GLT Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 10/18/2001 Date Terminated: 06/28/2011 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Fred Pierce Individually and as a class representative and all those similarly situated

represented by Barrett S Litt Kaye McLane Bednarski and Litt 234 East Colorado Boulevard Suite 230 Pasadena, CA 91101 626−844−7660 Fax: 626−844−7670 Email: blitt@kmbllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan Barnet Miller Bryan Barnet Miller Law Offices 15760 Ventura Blvd. Suite 700 Encino, CA 91436 818−995−9465 Fax: 818−783−1084 Email: bryan@bryanmillerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christy Virginia Keeny Hadsell Stormer Kenny Richardson & Renick LLP 128 North Fair Oaks Avenue Suite 204 Pasadena, CA 91103 626−585−9600 Fax: 626−577−7079 Email: vkeeny@hskrr.com TERMINATED: 06/29/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer Hadsell Stormer and Renick LLP 128 North Fair Oaks Ave Pasadena, CA 91103 626−585−9600 Fax: 626−577−7079 Email: dstormer@hadsellstormer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hernaldo Jose Baltodano Baltodano and Baltodano LLP

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 2 of 88
1411 Marsh Street Suite 102 San Luis Obispo, CA 93401 805−322−3412 Fax: 805−322−3413 Email: hjb@bbemploymentlaw.com TERMINATED: 03/25/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren K Teukolsky Hadsell Stormer Keeny Richardson & Renick 128 North Fair Oaks Avenue Suite 201 Pasadena, CA 91103−3614 626−585−9600 Fax: 626−577−7079 Email: lt@tvlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Paul Herman Richard P Herman Law Offices 3723 Birch Street Suite 3 Newport Beach, CA 92660 714−547−8512 Fax: 949−861−8331 Email: rherman@richardphermanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cindy Panuco Hadsell Stormer Richardson and Renick LLP 128 North Fair Oaks Avenue Pasadena, CA 91103−3645 626−585−9600 Fax: 626−577−7079 Email: cpanuco@hadsellstormer.com ATTORNEY TO BE NOTICED
Radhika Sainath Hadsell Stormer Keeny Richardson & Renick 128 North Fair Oaks Avenue Pasadena, CA 91103 626−585−9600 Fax: 626−577−7079 Email: radhika@hskrr.com TERMINATED: 10/29/2013

V.
Defendant
County of Orange a Governmental Entity

represented by Christina M Sprenger Lawrence Beach Allen and Choi PC 2677 North Main Street Suite 370 Santa Ana, CA 92705 714−479−0180 Fax: 714−479−0181 Email: csprenger@lbaclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David D Lawrence

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 3 of 88
Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210 818−545−1925 Fax: 818/−545−1937 Email: dlawrence@lbaclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L Turner Orange County Counsel 10 Civic Ctr Plz, 4th Fl P O Box 1379 Santa Ana, CA 92702−9899 714−834−3300 Fax: 714−796−8469 TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason S Roberts Grant Genovese and Baratta 2030 Main Street, Suite 1600 Irvine, CA 92614−7257 949−660−1600 Email: jsr@ggb−law.com TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul B Beach Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210−1219 818−545−1925 Fax: 818−545−1937 Email: pbeach@lbaclaw.com TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond Szu Lynberg and Watkins 333 City Boulevard West, Suite 640 Orange, CA 92868−5915 714−937−1010 TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
S Frank Harrell Lynberg & Watkins 333 City Boulevard West Suite 640 Orange, CA 92868−5915 714−937−1010 Fax: 714−937−1003 Email: sharrell@lynberg.com TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven C Miller Orange County Counsel P O Box 1379 Santa Ana, CA 92702−1379

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 4 of 88

714−834−3300 Email: smiller@coco.co.orange.ca.us TERMINATED: 07/01/2003 LEAD ATTORNEY

Wendy J Phillips Orange County Counsel 333 W Santa Ana Blvd Suite 407 P O Box 1379 Santa Ana, CA 92702−1379 714−834−3300 Fax: 714−834−2359 Email: wendy.phillips@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Haiyang Li Lawrence Beach Allen & Choi, PC 2677 North Main Street Suite 370 Santa Ana, Ca 90705 714−479−0180 Fax: 714−479−0181 Email: allenli@lbaclaw.com ATTORNEY TO BE NOTICED

Jack W Golden County of Orange County Counsel 333 W. Santa Ana Blvd., Suite 407 PO Box 1379 Santa Ana, CA 92702−1379 714−834−3357 Fax: 714 834−2359 Email: jack.golden@coco.ocgov.com ATTORNEY TO BE NOTICED

Defendant
Michael S Carona Individually

represented by Christina M Sprenger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David D Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L Turner (See above for address) TERMINATED: 03/24/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason S Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul B Beach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 5 of 88

Raymond Szu (See above for address) TERMINATED: 05/26/2004 LEAD ATTORNEY

S Frank Harrell (See above for address) TERMINATED: 04/15/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven C Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Haiyang Li (See above for address) ATTORNEY TO BE NOTICED

Defendant Does 1 − 200

Defendant
Alicemarie H Stotler TERMINATED: 12/31/2003

Plaintiff
Timothy Lee Conn Individually, and as a Class Representative, and all those similarly situated

represented by Barrett S Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan Barnet Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christy Virginia Keeny (See above for address) TERMINATED: 06/29/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hernaldo Jose Baltodano (See above for address) TERMINATED: 03/25/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren K Teukolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Paul Herman (See above for address) LEAD ATTORNEY

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 6 of 88

ATTORNEY TO BE NOTICED

Cindy Panuco (See above for address) ATTORNEY TO BE NOTICED

Radhika Sainath (See above for address) TERMINATED: 10/29/2013 ATTORNEY TO BE NOTICED

Plaintiff
Max Sanders Individually, and as a Class Representative, and all those similarly situated TERMINATED: 03/26/2003

represented by Barrett S Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryan Barnet Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) TERMINATED: 03/26/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Paul Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cindy Panuco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Fermin Valenzuela Individually, and as a Class Representative

represented by Barrett S Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan Barnet Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christy Virginia Keeny (See above for address) TERMINATED: 06/29/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hernaldo Jose Baltodano (See above for address) TERMINATED: 03/25/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 7 of 88

Plaintiff
Laurie D Ellerston Individually, and as a Class Representative

Lauren K Teukolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Paul Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cindy Panuco (See above for address) ATTORNEY TO BE NOTICED
Radhika Sainath (See above for address) TERMINATED: 10/29/2013 ATTORNEY TO BE NOTICED
represented by Barrett S Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryan Barnet Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christy Virginia Keeny (See above for address) TERMINATED: 06/29/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hernaldo Jose Baltodano (See above for address) TERMINATED: 03/25/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren K Teukolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Paul Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cindy Panuco (See above for address) ATTORNEY TO BE NOTICED
Radhika Sainath (See above for address)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 8 of 88

TERMINATED: 10/29/2013

Plaintiff
Jonathan Nelson Individually, and as a Class Representative TERMINATED: 02/28/2003

represented by Barrett S Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan Barnet Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) TERMINATED: 02/28/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Paul Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cindy Panuco (See above for address) ATTORNEY TO BE NOTICED

Hernaldo Jose Baltodano (See above for address) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED

Radhika Sainath (See above for address) TERMINATED: 10/29/2013

Plaintiff
Adam Ramirez, − Individually, and as a Class Representative TERMINATED: 02/28/2003

represented by Barrett S Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan Barnet Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) TERMINATED: 02/28/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Paul Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cindy Panuco (See above for address) ATTORNEY TO BE NOTICED

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 9 of 88

V.
Defendant
DOES 1 through 200, Inclusive TERMINATED: 04/21/2004

Date Filed 10/18/2001 10/18/2001 10/18/2001
11/01/2001 11/01/2001 11/16/2001 11/16/2001 11/19/2001
11/27/2001 11/28/2001 12/11/2001 12/11/2001 12/11/2001
12/18/2001 12/26/2001 01/22/2002

# Docket Text
1 COMPLAINT filed Summons(es) issued referred to Discovery Marc L. Goldman (csb) (Entered: 10/30/2001)
2 Notice OF INTERESTED PARTIES filed by plaintiff Fred Pierce (csb) (Entered: 10/30/2001)
3 MINUTES: by Judge Alicemarie H. Stotler CR: Not Present; Pla filed cmp and ntc of interested prty and failed to comply with local rule 11−3.1.1; therefore, Court orders pla to file a corrected cmp and corrected ntc of interested prtys no later than 11/1/01 (csb) (Entered: 10/30/2001)
4 CORRECTED COMPLAINT [1−1] by plaintiff Fred Pierce; demand for jury trial (mt) (Entered: 11/13/2001)
5 CORRECTED CERTIFICATION AS TO INTERESTED PARTIES filed by plaintiff Fred Pierce (mt) (Entered: 11/13/2001)
6 STIPULATION filed to extend time w/in which to respond to complaint [1−1] for a period of 30 days to wit from 11/7/01 to 12/7/01 as to defendants County of Orange, Michael S Carona (mg) (Entered: 12/01/2001)
7 NOTICE OF INTERESTED PARTIES filed by Dfts County of Orange & Sheriff Michael S Carona (mg) (Entered: 12/01/2001)
8 ORDER by Judge Alicemarie H. Stotler striking filed docs from the record − L.R. 11−3.1.1 font too small: It is ord that stipulation to extend time [6−1], notice of interested parties [7−1] filed 11/16/01 shall be stricken from the record and shall not be considered by the crt (mt) (Entered: 12/01/2001)
9 NOTICE OF INTERESTED PARTIES filed by defendant County of Orange, defendant Michael S Carona (ca) (Entered: 12/07/2001)
10 STIPULATION and ORDER by Judge Alicemarie H. Stotler extending time to respond to complaint [1−1] to 12/7/01 as to defendant County of Orange, defendant Michael S Carona (ca) (Entered: 12/07/2001)
11 NOTICE OF MOTION AND MOTION by defendant County of Orange, defendant Michael S Carona to dismiss Plf's Cmp ; motion hearing set for 10:00 1/28/02 (ts) (Entered: 12/12/2001)
12 FIRST AMENDED COMPLAINT [1−1] by plaintiff Fred Pierce; jury demand. Summons not issued (mt) (Entered: 12/12/2001)
13 ORDER by Judge Alicemarie H. Stotler striking filed doc from the record − non−compliance with L R 11−3.1.1 (font too small): It is hereby ord that 1st amended complaint [12−1] filed 12/11/01 shall be stricken from the record and shall not be considered by the court (psend) (mt) (Entered: 12/12/2001)
14 ORDER by Judge Alicemarie H. Stotler setting scheduling conf for 1:30pm on 2/25/02 (see doc for fur specifics) (send) (mt) (Entered: 12/19/2001)
15 CORRECTED FIRST AMENDED CLASS ACTION COMPLAINT for damages for violations of civil rights & for injunctive relief by plaintiff Fred Pierce; jury demand. Summons not issued (mg) (Entered: 01/04/2002)
17 NOTICE OF MOTION AND MOTION by defendant County of Orange, defendant Michael S Carona to dismiss plf's 1st A/C ; memo of PA motion hearing set for 10:00 3/11/02 (mt) (Entered: 01/28/2002)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 10 of 88

01/22/2002 01/25/2002
01/29/2002
02/01/2002 02/06/2002 03/06/2002 04/19/2002 04/22/2002
04/22/2002 06/28/2002 06/28/2002 07/03/2002 07/03/2002
07/08/2002 07/10/2002 07/10/2002 07/12/2002

18 NOTICE OF MOTION AND MOTION by defendant County of Orange, defendant Michael S Carona to dismiss plf's suppl state claims ; memo of PA motion hearing set for 10:00 3/11/02 (mt) (Entered: 01/28/2002)
16 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 224 (Related Case) filed. [ Related Case no.: CV 75−3075GLT] Case transferred from Judge Alicemarie H. Stotler to Judge Gary L. Taylor for all further proceedings. The case number will now reflect the initials of the transferee Judge [ SACV 01−981GLT(MLGx)] (cc: all counsel) (csb) (Entered: 01/25/2002)
19 MINUTES (In Chambers) by Judge Gary L. Taylor: This mtr has been reassigned to Judge Taylor. The Crt notes the cmp contains a req for the eventual award of attys fees. Any cnsl who may eventually seek an award of attys fees is cautioned to keep careful & detailed records of time expended & services performed in ord to properly suppt any req for attys fees; CR: (not present) (mg) (Entered: 01/31/2002)
20 ORDER by Judge Gary L. Taylor re: early meeting of parties; scheduling conf set for 9:00am on 4/22/02 (see doc for fur specifics) (mt) (Entered: 02/04/2002)
21 NOTICE OF MOTION AND MOTION by plaintiff Fred Pierce to amend ; & memorandum; motion hearing set for 10:00 3/11/02 (mg) (Entered: 02/12/2002)
22 STIPULATION and ORDER by Judge Gary L. Taylor granting Plfs' motion to file their 2nd A/C [21−1]. Mot is taken off cal. Dfts have 30 days to resp after the date of svc of this signed Ord (mg) (Entered: 03/15/2002)
23 ORANGE COUNTY DFTS' RULE 26(f) REPORT; Decl of S Frank Harrell re: Non−cooperation filed; est length of trial 5 days (mt) (Entered: 04/27/2002)
24 MINUTES scheduling conference held by Judge Gary L. Taylor: Crt sets following dates: Discovery cut−off: 12/9/02; Pretrial Conference: 3/7/03 at 1:30pm; Jury trial month shall be April 2003, exact date of trial shall be set at pretrial conf. Cnsl est trial length to be 8−14 days. Any unserved Does are dismissed at this time. Fld pretrial sched ord. CR: Not Present (mt) (Entered: 04/27/2002)
25 PRETRIAL SCHEDULING ORDER by Judge Gary L. Taylor: Discovery cut−off: 12/9/03; Final pretrial conference: 3/7/03 1:30pm; Trial month of April 2003 (see doc for further specifics) (mt) (Entered: 04/27/2002)
26 NOTICE OF MOTION AND MOTION by defendants County of Orange, Michael S Carona to dismiss Plf's 2nd A/C ; memo of P/A; motion hearing set for 10:00 8/5/02 (mg) (Entered: 07/01/2002)
27 NOTICE OF MOTION AND MOTION by defendants County of Orange, Michael S Carona to dismiss Plf's supp State claims ; memo of P/A; motion hearing for 10:00 8/5/02 (mg) (Entered: 07/01/2002)
28 EX PARTE APPLICATION filed by defendants County of Orange, Michael S Carona for order ext page limit for Dfts' mot for disqualification ; memo of P/A; decl of S Frank Harrell; Lodged Prop (mg) (Entered: 07/08/2002)
29 NOTICE OF MOTION AND MOTION by defendants County of Orange, Michael S Carona to disqualify Plfs' cnsl , and for ancillary relief including sanctions ; memo of P/A; decls of Joe Davis & S Frank Harrell; exhs; motion hearing set for 8/5/02 at 10:00 (mg) (Entered: 07/08/2002)
30 ORDER by Judge Gary L. Taylor granting ex parte application for order ext page limit for Dfts' mot for disqualification [28−1]; ext the pg limit to 45 pgs (rmi) (Entered: 07/09/2002)
31 AMENDED PROOF OF SERVICE by defendant County of Orange & Michael S Carona on 7/3/02 of Dft's Ntc of Ex Parte App & Ex Parte App for an Order (see doc for further details). (tso) (Entered: 07/10/2002)
32 NOTICE OF MOTION AND MOTION by plaintiff Fred Pierce to amend ; memo; motion hearing set for 10:00 8/19/02 (mg) (Entered: 07/11/2002)
33 NOTICE OF INTERESTED PARTIES filed by defendant County of Orange, defendant Michael S Carona (mt) (Entered: 07/15/2002)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 11 of 88

07/22/2002 07/26/2002 07/31/2002
07/31/2002 07/31/2002 08/06/2002 08/12/2002 08/16/2002 08/16/2002 08/19/2002 08/19/2002
08/21/2002 08/21/2002 08/26/2002 08/26/2002 08/26/2002
08/28/2002
09/13/2002

34 STIPULATION and ORDER by Judge Gary L. Taylor cont hearing on motions to dismiss Plf's supp State claims [27−1] & to dismiss Plf's 2nd A/C [26−1] to 10:00 8/19/02 (mg) (Entered: 07/25/2002)
35 EX PARTE APPLICATION filed by plaintiff Fred Pierce for an order cont dft's pend mot to disqualify ; decl of Richard P Herman (mt) (Entered: 08/01/2002)
36 MINUTES (In Chambers) by Judge Gary L. Taylor: ORDER the hearing for dfts' motion to disqualify Plfs' cnsl [29−1] is contd to 10:00am on 8/19/02. Briefing sched for this mot is as follows: Opp papers: 8/6/02; Rply papers: 8/12/02. The hearings for dfts' motion to dismiss [27−1], [26−1] and plfs' motion to amend [32−1] are contd to 10:00am on 8/26/02. Briefing sched for these mots is as follows: opp papers 8/16/02; Rply papers: 8/21/02. Hrg sched for 8/5/02 is taken off cal. CR: None Present (mt) (Entered: 08/01/2002)
PLACED IN FILE − NOT USED; Prop order cont mot (csb) (Entered: 08/05/2002)
37 OPPOSITION by County of Orange, Michael S Carona to ex parte application for an order cont dft's pend mot to disqualify [35−1] (csb) (Entered: 08/06/2002)
38 OPPOSITION by plaintiff Fred Pierce to Orange County Dfts' motion to disqualify Plfs' cnsl [29−1], & for for ancillary relief including sanctions [29−2]; memo of P/A; decl of Richard Herman & exhs attached hereto (mg) (Entered: 08/12/2002)
39 REPLY MEMO by defendant County of Orange, defendant Michael S Carona in suppt of motion to disqualify and for ancillary relief [29−1] (mt) (Entered: 08/19/2002)
40 OPPOSITION by defendant to motion to file a 3rd amend cmp [32−1] (dmjr) (Entered: 08/21/2002)
41 OPPOSITION by plaintiff to motion to dismiss Plf's supp State claims [27−1] (dmjr) (Entered: 08/21/2002)
42 NOTICE OF ERRATA by defendant correcting opposition [40−1] (dmjr) (Entered: 08/21/2002)
43 MINUTES: that the motion to disqualify Plfs' cnsl [29−1] is submitted ; motion hearing held, that the motion for ancillary relief including sanctions [29−2] is submitted ; motion hearing held by Judge Gary L. Taylor CR: S Marshall (dmjr) (Entered: 08/22/2002)
44 REPLY brief by defendant County of Orange, defendant Michael S Carona in suppt of motion to dismiss Plf's supp State claims [27−1] (twdb) (Entered: 08/23/2002)
45 REPLY brief by defendant County of Orange, defendant Michael S Carona in suppt of motion to dismiss Plf's 2nd A/C [26−1] (twdb) (Entered: 08/23/2002)
46 ORDER by Judge Gary L. Taylor granting motion to amend [32−1], GRANT in part DENY in part motion to dismiss Plf's supp State claims [27−1], GRANT in part DENY in part to dismiss Plf's 2nd A/C [26−1]; (yc) (Entered: 08/27/2002)
PLACED IN FILE − NOT USED; 3rd Amd Class Action Cmp for damages for violations of civil rights & for injunctive reliefi; ldg 7/10/02 (mg) (Entered: 08/29/2002)
47 MINUTES by Judge Gary L. Taylor: Granting Plf's motion to amend [32−1]; Granting in part County Dft's motion to dismiss Plf's suppl State claims [27−1] w/45 days lv to amd & denying mot for a more definite stmt; Granting Dft's motion to dismiss Plf's 2nd A/C [26−1] w/45 days lv to amd. CR: Sally Marshall (mg) (Entered: 08/30/2002)
48 MINUTES (In Chambers) by Judge Gary L. Taylor: The Crt has under submission Dfts' mot to disqualify Plfs' cnsl. The Crt requests that, w/in 10 days, Mr. Herman file a suppl decl addressing the fol items: (see doc for fur details). The Crt requests, that w/in 10 days, Captain Davis file a suppl decl addressing the fol items: (see doc for fur details). CR: (not present) (mg) (Entered: 09/03/2002)
49 SUPPL DECLARATION of Richard P Herman by plaintiff Fred Pierce (mg) (Entered: 09/16/2002)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 12 of 88

09/17/2002 10/01/2002
10/10/2002
10/11/2002 10/15/2002 10/16/2002
10/21/2002 10/28/2002
10/29/2002 11/04/2002 11/15/2002 11/25/2002 11/26/2002 12/06/2002 12/12/2002 01/21/2003
01/21/2003

50 SUPPL DECLARATION of Captain Joe Davis by defendants County of Orange & Michael S Carona in suppt of County Dfts' motion to disqualify Plfs' cnsl [29−1], for ancillary relief including sanctions [29−2] (mg) (Entered: 09/19/2002)
51 MINUTES (in chambers): by Judge Gary L. Taylor: request for addl decl from Mr Herman; w/in 10 days, Mr Herman is requested to file an addl decl specifically commenting on Capt David version of 03/19 mtg; CR: none present (see doc for fur directives & specifics) (ln) (Entered: 10/02/2002)
52 FOURTH AMENDED COMPLAINT [15−1] by plaintiff Fred Pierce; adding Timothy Lee Conn, Max Sanders, Fermin Valenzuela, Laurie D Ellerston, Jonathan Nelson, Adam Ramirez; DOES 1 through 200, Inclusive; jury demand. Summons not issued (mg) Modified on 10/16/2002 (Entered: 10/16/2002)
53 NOTICE OF ASSOCIATION of Counsel by attorney by Barrett S. Litt & Bryan B Miller of Litt & Associates are associated as co−cnsl in this litigation (mg) (Entered: 10/18/2002)
55 NOTICE OF ERRATA by plaintiff Fred Pierce correcting 4th amended complaint [52−1] (mg) (Entered: 10/24/2002)
54 NOTICE OF DISCREPANCY AND ORDER by Judge Gary L. Taylor ordering 4th Amd Cmp received on 10/15/02 to be fld and processed; fld date to be the date the doc was stamped "received but not fld" w/the Clerk ; There is no 2nd or 3rd Amd Cmp, or an Ord to submit a 4th Amd Cmp (mg) (Entered: 10/24/2002)
56 SECOND SUPPL DECLARATION of Richard P Herman by plaintiffs (mg) (Entered: 10/28/2002)
57 SUPPLEMENTAL DECLARATION of S Frank Harrell by defendant County of Orange, defendant Michael S Carona in rply to 2nd suppl decl of Richard P Herman re Orange County dfts' motion to disqualify Plfs' cnsl [29−1] and for ancillary relief including sanctions [29−2] (mt) (Entered: 11/02/2002)
58 STIPULATION and ORDER by Judge Gary L. Taylor extending time within wich dfts may respond to Plfs' 4th amended complaint [52−1] through & including 11/1/02 (mg) (Entered: 11/04/2002)
59 NOTICE OF MOTION AND MOTION by defendant to dismiss plas 4th amd cmp ; motion hearing set for 10:00 12/2/02 (csb) (Entered: 11/09/2002)
60 OPPOSITION by plaintiffs to motion to dismiss 4th amd cmp [59−1] (mg) (Entered: 11/20/2002)
61 REPLY by defendant to response to motion to dismiss plas 4th amd cmp [59−1] (csb) (Entered: 11/27/2002)
62 MINUTES (in chambers): dft's motion to dismiss plas 4th amd cmp [59−1] & dft's mot to require more definite statement are DENIED; by Judge Gary L. Taylor CR: none present (ln) (Entered: 11/27/2002)
63 ANSWER filed by defendants County of Orange and Sheriff Michael S Carona to 4th amended complaint [52−1]; jury demand (mg) (Entered: 12/09/2002)
64 ORDER by Judge Gary L. Taylor denying motion to disqualify Plfs' cnsl [29−1], [29−2], [28−1] (see document for further details) (mg) (Entered: 12/13/2002)
65 MINUTES (In Chambers) by Judge Gary L. Taylor: On 1/17/03 the Court held an informal status conference with counsel to discuss what format of future direct contact, if any, there will be between the parties. Counsel for the County will advise within about 2 weeks concerning designation of a person; CR: (not present) (mg) (Entered: 01/22/2003)
66 MINUTES (In Chambers) by Judge Gary L. Taylor: Based on the parties' stipulation, the Court sets rescheduled dates as follows: discovery cut−off: 8/7/03; Pretrial Conference set for 1:30 11/7/03 . Trial month: December 2003 (the exact date will be set at November pretrial conference) (see document for further details); CR: (not present) (mg) (Entered: 01/23/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 13 of 88

01/21/2003 01/31/2003 02/03/2003 02/03/2003 02/03/2003 02/04/2003 02/04/2003 02/04/2003 02/12/2003
02/12/2003
02/20/2003 02/21/2003 02/24/2003

PLACED IN FILE − NOT USED; Stipulation to extend discovery cut−off and trial dates; lodged 12/20/02 (mg) (Entered: 01/23/2003)
67 ORANGE COUNTY SHERIFF DEPARTMENT'S DESIGNATION of contact person re jail complaints (mg) (Entered: 02/04/2003)
68 MOTION by defendants to compel Plaintiff Adam Ramirez' responses to 1st set of interrogatories & request for production of documents ; and for monetary sanctions against Plaintiff &/or Plaintiff's counsel ; declaration of Jason S Roberts re non−cooperation of counsel; exhibits; motion hearing set for 10:00 3/4/03 (mg) (Entered: 02/06/2003)
69 MOTION by defendants to compel Plaintiff Laurie Ellerston's responses to 1st set of interrogatories & request for production of documents ; for monetary sanctions against Plaintiff &/or Plaintiff's counsel ; declaration of Jason S Roberts re non−cooperation of counsel; exhibits; motion hearing set for 10:00 3/4/03 (mg) (Entered: 02/06/2003)
70 MOTION by defendants to compel Plaintiff Jonathan Nelson's responses to 1st set of interrogatories & request for production of documents ; for monetary sanctions against Plaintiff's counsel ; declaration of Jason S. Roberts re non−cooperation of counsel; exhibits; motion hearing set for 10:00 3/4/03 (mg) (Entered: 02/06/2003)
71 NOTICE by Defendants of change of Department re: hearing on Defendants' motion to compel Plaintiff Jonathan Nelson's responses to 1st set of interrogatories & request for production of documents (mg) (Entered: 02/10/2003)
72 NOTICE by defendants of change of department re: hearing on Defendants' motion to compel Plaintiff Laurie Ellerston's response to 1st set of interrogatories & request for production of documents (mg) (Entered: 02/10/2003)
73 NOTICE by defendants of change of department re: hearing on Defendants' motion to compel Plaintiff Adam Ramirez' responses to 1st sets of interrogatories & request for production of documents (mg) (Entered: 02/10/2003)
74 NOTICE OF MOTION AND MOTION by defendants to compel Plaintiff Fred Pierce's supplemental responses to Defendant County of Orange's 1st set of interrogatories ; request for monetary sanctions against Plaintiff &/or Plaintiff's counsel ; declaration of S Frank Harrel re non−cooperation of counsel; declaration of Jason S Roberts; exhibits; motion hearing set for 10:00 3/18/03 (mg) (Entered: 02/14/2003)
75 MINUTES: on Crt's own mot, hearing on motion to compel Plaintiff Adam Ramirez' responses to 1st set of interrogatories & request for production of documents [68−1] is set for 10:00 3/4/03; hearing on motion to compel Plaintiff Laurie Ellerston's responses to 1st set of interrogatories & request for production of documents [69−1] is set for 10:00 3/4/03; hearing on motion to compel Plaintiff Jonathan Nelson's responses to 1st set of interrogatories & request for production of documents is set for 10:00 3/4/03; hearing on motion to compel Plaintiff Fred Pierce's supplemental responses to Defendant County of Orange's 1st set of interrogatories [74−1] is advanced to 10:00 3/4/03; oppos shall be filed & served nlt noon 02/24/03 & reply papers shall be filed & served nlt noon 02/28/03; by Discovery Marc L. Goldman CR: none present (ln) (Entered: 02/14/2003)
76 JOINT STIPULATION by defendant County of Orange, defendant Michael S Carona re motion to compel Plaintiff Fred Pierce's supplemental responses to Defendant County of Orange's 1st set of interrogatories [74−1], motion request for monetary sanctions against Plaintiff &/or Plaintiff's counsel [74−2] (twdb) (Entered: 02/21/2003)
77 EX PARTE APPLICATION filed by plaintiff Fred Pierce for order to substitute named plaintiffs . Lodged Proposed order (twdb) (Entered: 02/24/2003)
78 OPPOSITION by defendant County of Orange, defendant Michael S Carona to plaintiff's exparte for continuance of hearing on defendant's motion to compel Plaintiff Laurie Ellerston's responses to 1st set of interrogatories & request for production of documents [69−1], motion for monetary sanctions against Plaintiff &/or Plaintiff's counsel [69−2] (twdb) (Entered: 02/25/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 14 of 88

02/24/2003 02/24/2003 02/24/2003 02/24/2003 02/25/2003
02/25/2003
02/25/2003
02/26/2003 02/27/2003 02/27/2003 02/27/2003 02/28/2003

79 OPPOSITION by defendant County of Orange to ex parte application for order to substitute named plaintiffs [77−1] (twdb) (Entered: 02/25/2003)
80 OPPOSITION by plaintiff Fred Pierce, plaintiff Timothy Lee Conn to motion to compel Plaintiff Fred Pierce's supplemental responses to discovery responses [74−1], motion request for monetary sanctions against Plaintiff &/or Plaintiff's counsel [74−2] (twdb) (Entered: 02/25/2003)
81 OPPOSITION by plaintiff Fred Pierce, plaintiff Timothy Lee Conn to defendant Sheriff Carona's motion to compel supplemental responses to discovery responses & request for sanctions (twdb) (Entered: 02/25/2003)
83 EX PARTE MOTION filed by plaintiff Fred Pierce, plaintiff Timothy Lee Conn to continue pending motion to dismiss against named plaintiff Laurie Ellerston to 4/7/03 (twdb) (Entered: 02/27/2003)
82 NOTICE OF CHANGE Of Address filed by atty Raymond Szu for defendant Michael S Carona, David D Lawrence for defendant Michael S Carona, Steven C Miller for defendant Michael S Carona, S Frank Harrell for defendant Michael S Carona, Paul B Beach for defendant Michael S Carona, James L Turner for defendant Michael S Carona. Franscell, Strickland, Roberts & Lawrence 500 N State College Bl, Ste 1350, Orange, CA 92868 (twdb) (Entered: 02/26/2003)
85 MINUTES (in chambers): plf Ellerston's ex parte application to continue hrg on pending motion [83−1] filed 02/24/03 is DENIED; hrg on dft's motion to compel Plaintiff Laurie Ellerston's responses to 1st set of interrogatories [69−1] filed 02/03/03 is taken off cal & mot is GRANTED; dft's motion to compel Plaintiff Jonathan Nelson's responses to 1st set of interrogatories & request for production of documents [70−1] filed 02/03/03 & dft's motion to compel Plaintiff Ramirez' responses to 1st set of interrogatories & request for production of documents [68−1] filed 02/03/03 are also taken off cal & GRANTED; dfts' request for monetary sanctions [69−2], [70−2], [68−2] shall be taken up @ hrg to be held on 3/4/03 @ 10:00am; by Discovery Marc L. Goldman CR: none present (see doc for fur specifics) (ln) (Entered: 02/27/2003)
86 MINUTES: on Crt's own mot, hearing on following mots shall be held on Tuesday, 03/04/03 @ 10:00 before Hon Marc L Goldman in Courtroom 6A: dft Carona's mot to compel response [76−1] filed 02/20/03 & dft County of Orange's motion to compel Plaintiff Fred Pierce's supplemental responses to Defendant County of Orange's 1st set of interrogatories [74−1] filed 02/12/03; by Discovery Marc L. Goldman CR: none present (see doc for fur specifics) (ln) (Entered: 02/27/2003)
84 OBJECTION TO PLAINTIFF'S OPPOSITION by defendant County of Orange, defendant Michael S Carona to joint stipulation RE motion to compel Plaintiff Fred Pierce's supplemental responses to Defendant County of Orange's 1st set of interrogatories [74−1], motion request for monetary sanctions against Plaintiff &/or Plaintiff's counsel [74−2] (twdb) (Entered: 02/27/2003)
87 REPLY MEMORANDUM by defendant County of Orange, defendant Michael S Carona in support of motion to compel Plaintiff Fred Pierce's supplemental responses to Defendant County of Orange's 1st set of interrogatories [74−1], motion request for monetary sanctions against Plaintiff &/or Plaintiff's counsel [74−2] (twdb) (Entered: 02/28/2003)
88 JOINT STIPULATION filed re defendants' motion to compel plaintiff Timothy Lee Conn's supplemental responses to defendant Carona's first set of interrogatories (twdb) (Entered: 02/28/2003)
88 REQUEST filed by defendant County of Orange, defendant Michael S Carona for monetary sanctions aganist plaintiff & or plaintiff's counsel (twdb) (Entered: 02/28/2003)
89 ORDER by Judge Gary L. Taylor granting ex parte application for order to substitute named plaintiffs [77−1]. It is so ordered within 15 days, plaintiffs may substitute named plainitffs for Jonathan Nelson & Adam Ramirez; Defendants' pending motions to dismiss Mr. Nelson & Mr. Ramirez for not answering discovery set for 3/4/03 are moot and taken off calendar; Within 15 days, plaintiff may substitute other named plaintiffs for Mr. Nelson and Mr. Ramirez by filing a document identifying these substituted named plaintiffs and titling the document Notice of Identy of Substituted

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 15 of 88

02/28/2003 03/04/2003
03/10/2003 03/10/2003 03/13/2003
03/14/2003 03/14/2003 03/14/2003 03/14/2003 03/19/2003
03/19/2003 03/21/2003 03/25/2003

Named Plaintiffs." Terminating party Adam Ramirez, party Jonathan Nelson from this lawsuit as named plaintiffs. (twdb) (Entered: 03/03/2003)
90 NOTICE OF MOTION AND MOTION by defendant County of Orange, defendant Michael S Carona to compel plaintiff Fermin Valenzuela's responses to defendant Michael S. Carona's first set of interrogatories , request for monetary sanctions ; Motion hearing set for 10:00 3/25/03 (twdb) (Entered: 03/03/2003)
91 MINUTES: For the reasons stated on the record at the hearing held this date, defendants' motions to compel are GRANTED. Plaintiff Fred Pierce shall file supplemental answers to each defendant's first set of interrogatories no later than 3/11/03. All objections to the interrogatories are deemed waived. Defendant's requests for sanctions are DENIED. Defendants' requests for sanctions relating to the Ellerston, Nelson & Ramirez motions are also DENIED. (See minute order dated 2/25/03). The parties are directed to meet & confer in accordance with the court's instructions in an attempt to resolve the issues raised in the two motions set for hearing on 3/25/03. The parties shall submit a joint letter to the court no later than 3/21/03 describing the result of that meeting. Granting motion to compel Plaintiff Fred Pierce's supplemental responses to Defendant County of Orange's 1st set of interrogatories [74−1], denying motion request for monetary sanctions against Plaintiff &/or Plaintiff's counsel [74−2] by Discovery Marc L. Goldman CR: n/a (twdb) (Entered: 03/04/2003)
92 RESPONSE by plaintiffs Fred Pierce, Timothy Lee Conn to defendant Carona's first set of interrogatories to Fred Pierce. [Supplemental] (twdb) (Entered: 03/11/2003)
93 SUPPLEMENTAL RESPONSE by plaintiffs Fred Pierce, Timothy Lee Conn to Orange County's first set of interrogatories (twdb) (Entered: 03/11/2003)
94 STIPULATION and ORDER to dismiss "over−detention claims" of all plaintiffs except plaintiff Fred Pierce by Judge Gary L. Taylor. Plaintiffs Timothy Lee Conn, Max Sanders, Fermin Valenzula and Laurie D. Ellerston are not asserting any over−detention claims, as defined by the parties, against defendants County of Orange and Michael S. Carona and, therefore, any such claims are dismissed. (twdb) (Entered: 03/14/2003)
95 RECEIPT OF TRANSCRIPT of proceedings for the following date(s): 03/04/03. CR: T. Hudson. (cbr) (Entered: 03/17/2003)
TRANSCRIPT filed for proceedings held on 03/04/03. (cbr) (Entered: 03/17/2003)
96 RESPONSE by plaintiff Laurie D. Ellertson to defendant County of Orange's First Set of Requests for Production (twdb) Modified on 03/18/2003 (Entered: 03/18/2003)
97 RESPONSE by plaintiff Laurie D Ellerston to special interrogatories (twdb) (Entered: 03/18/2003)
98 STIPULATION and ORDER by Judge Gary L. Taylor that pursuant to FRCP 30(a)(2), defendants may notice and take the deposition of plaintiffs Fermin Valenzuela while incarcerated at the Orange County Jail and the depositions of Laurie D Ellerston and Timothy Lee Conn while incarcerated in California State prison (mt) (Entered: 03/20/2003)
99 NOTICE of identify of substituted named plaintiffs, filed by plaintiffs (twdb) (Entered: 03/21/2003)
100 NOTICE by defendant's County of Orange, Michael S Carona of filing joint letter as required by 3/4/03 minute order (twdb) (Entered: 03/24/2003)
101 MINUTES: for reasons stated on record at hearing held this date, defendants' motion to compel plaintiff Fermin Valenzuela's responses to defendant Michael S. Carona's first set of interrogatories [90−1] is GRANTED; defendants' motion for monetary sanctions [90−2] is GRANTED; Counsel Richard P Herman is ordered to pay defendants their reasonable costs and attorney fees of $500.00; payment shall be made on or before 04/06/03; upon stipulation of parties, defendants' motion relating to plaintiff Conn [88−1] is taken off calendar and dismissed as moot; by Discovery Marc L. Goldman CR: SA03−15 & 16 (see document for further details) (ln) (Entered: 03/25/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 16 of 88

03/26/2003 03/26/2003 04/08/2003 04/21/2003
04/23/2003 04/23/2003 05/05/2003
05/05/2003 05/05/2003
05/07/2003 05/07/2003 05/12/2003 05/20/2003 05/20/2003 05/20/2003 05/20/2003

102 Dismissal of Max Sanders & ORDER by Judge Gary L. Taylor, terminating party Max Sanders (twdb) (Entered: 03/26/2003)
PLACED IN FILE − NOT USED plaintiff's dismissal of Max Sanders; Order (twdb) (Entered: 03/27/2003)
103 ANSWER filed by defendants County of Orange, Michael S Carona to fourth amended complaint [52−1]; Jury demand (twdb) (Entered: 04/09/2003)
104 STIPULATION and ORDER to schedule status conference RE: Case progress, trial date and cutoff dates by Judge Gary L. Taylor. The court orders that the attorneys are ordered to appear at a status conference to discuss the status of this action and the grounds for continuation of the current discovery cut−off and trial dates. Status conference set for 9:00 5/5/03 (twdb) (Entered: 04/22/2003)
105 RECEIPT OF TRANSCRIPT of proceedings for the following date(s): 03/25/03. CR: T. Kramer. (cbr) (Entered: 04/24/2003)
TRANSCRIPT filed for proceedings held on 03/25/03. (cbr) (Entered: 04/24/2003)
106 NOTICE OF MOTION AND MOTION by defendants County of Orange, Michael S Carona for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders ; Memorandum of points and authorities; Declarations of S. Frank Harrell and Jason S. Roberts re non−cooperation of counsel; Exhibits; Motion hearing set for 10:00 6/3/03 (twdb) Modified on 05/06/2003 (Entered: 05/06/2003)
107 NOTICE OF motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] filed by defendants (twdb) (Entered: 05/06/2003)
110 MINUTES: Cause called for hearing with all counsel present. Status conference is held by stipulation and request of all parties. Plaintiff's oral motion to continue the discovery cutoff dates and the pretrial conference in this matter is argued and taken under submission. Status conference held by Judge Gary L. Taylor (twdb) Modified on 05/15/2003 (Entered: 05/09/2003)
108 MINUTES: CONTINUANCE; The parties' agree request for a continuance is GRANTED. Present settings are vacated, and new dates are set, as follows: Trial Month April 2004. Discovery ddl set on 12/5/03; Final Pretrial Conference set for 1:30 3/5/04 by Judge Gary L. Taylor, CR: n/a (twdb) (Entered: 05/08/2003)
109 AMENDMENT by defendants County of Orange, Michael Carona to notice of motion for sanctions against plaintiffs Valenzuela, Ellerston and their counsel for violation of this court's discovery orders [106−1] (twdb) (Entered: 05/08/2003)
111 ORIGINAL PROOFS OF SERVICE by defendant's County of Orange, Michael S Carona on 5/5/03 re Orange County Defendants' Notice of Motion for sanctions against plaintiffs Valenzuela, Ellerston and their counsel for violation of this court's discovery orders. (twdb) (Entered: 05/12/2003)
112 OPPOSITION by plaintiffs to defendant County of Orange's motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] (twdb) (Entered: 05/21/2003)
113 DECLARATION of Richard P. Herman by plaintiffs filed concurrently with Valenzuela and Ellerston's opposition to County of Orange's motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] (twdb) (Entered: 05/21/2003)
114 DECLARATION of Bryan Barnet Miller by plaintiffs filed concurrently with Valenzuela and Ellerston's opposition to County of Orange's motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] (twdb) (Entered: 05/21/2003)
115 DECLARATION of Hernaldo Jose Baltodano by plaintiffs filed concurrently with Valenzuela and Ellerston's County of Orange's motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] (twdb) (Entered: 05/21/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 17 of 88

05/27/2003 05/29/2003
05/29/2003 05/30/2003 06/02/2003 06/02/2003 06/05/2003 06/09/2003 06/16/2003 06/23/2003 06/23/2003 06/23/2003 06/23/2003

116 REPLY MEMORANDUM by defendants County of Orange, Michael S Carona in support of motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] memorandum of points and authorities; declarations of S Frank Harrell and Jason S Roberts; exhibits (mt) (Entered: 05/30/2003)
117 EX PARTE APPLICATION filed by defendants County of Orange, Michael S Carona to continue the hearing date on Orange County Defendants' motion for sanctions against plaintifs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders . Memorandum of points and authorities; Declarations of S. Frank Harrell and Jason S. Roberts. Lodged Proposed order (twdb) (Entered: 06/02/2003)
119 NOTICE OF FILING OF EXhibit by defendants County of Orange, Michael S Carona in support of Orange County defendants' ex parte application to continue the hearing date on Orange County Defendants' motion for sanctions against plaintifs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [117−1] (twdb) (Entered: 06/02/2003)
120 NOTICE OF MOTION AND MOTION by plaintiffs Fred Pierce, Timothy Lee Conn, Max Sanders, Laurie D Ellerston for leave to name Doe Defendants ,or alternatively to join Defendants ; Memorandum of points and authorities in support thereof; Declaration of Virginia Keeny and Exhibits in support thereof; Motion hearing set for 10:00 6/23/03. Lodged Proposed order (twdb) (Entered: 06/03/2003)
118 ORDER by Discovery Marc L. Goldman, granting ex parte application to continue the hearing date on Orange County Defendants' motion for sanctions against plaintifs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [117−1], resetting hearing on motion for sanctions [106−1], 10:00 7/15/03 (twdb) (Entered: 06/02/2003)
121 NOTICE OF CONTINUANCE of hearing by defendants County of Orange, Michael S Carona on the motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders following the court's granting of defendants' exparte application to continue hearing date [106−1] (twdb) (Entered: 06/03/2003)
122 Plaintiff's Dismissal of Jeff Morgan & Steven Graham & ORDER by Judge Gary L. Taylor. Terminating Steven Graham & Jeff Morgan individuals under Federal Rule of Civil Procedure 41(a)(1)(ii) . (twdb) (Entered: 06/06/2003)
123 OPPOSITION by defendant's County of Orange, Michael S Carona to plaintiff's motion for leave to name Doe Defendants [120−1], or alternatively to join Defendants [120−2]; Memorandum of points and authorities and declaration of Jason S. Roberts in support thereof. (twdb) (Entered: 06/10/2003)
124 REPLY by plaintiffs in support to motion for leave to name Doe Defendants [120−1] (pj) (Entered: 06/19/2003)
125 ORDER by Judge Gary L. Taylor denying plaintiff's motion for leave to name Doe Defendants [120−1], denying motion to join Defendants [120−2] (twdb) (Entered: 06/24/2003)
126 STIPULATION and ORDER to dismiss plaintiff Fred Pierce's "Over Detention Claim" by Judge Gary L. Taylor. Plaintiff Fred Pierce's over detention claim, as defined by the parties, is hereby dismissed against all defendants. (twdb) (Entered: 06/24/2003)
PLACED IN FILE − NOT USED proposed fifth amended class action complaint for damages for violations of civil rights and for injunctive relief; demand for jury trial (twdb) (Entered: 06/27/2003)
128 OPPOSITION by defendants' County of Orange, Michael S Carona to plaintiffs' exparte opposition for law clerks to visit unnamed class members in the Orange County Jail; Memorandum of points and authorities and declaration of Jason S. Roberts in support thereof; Proposed order (twdb) (Entered: 07/01/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 18 of 88

06/25/2003 06/25/2003
07/01/2003 07/01/2003 07/14/2003 07/16/2003
07/24/2003 07/28/2003 07/28/2003 07/29/2003 07/29/2003
07/29/2003 07/29/2003 07/29/2003 07/30/2003 07/30/2003

PLACED IN FILE − NOT USED exparte application for law clerks to visit unnamed class members in the Orange county Jail; Proposed order (twdb) (Entered: 06/26/2003)
127 MINUTES: Denial of Application for jail interviews. The court has recieved plaintiff's exparte application that certain law clerks and legal assistants be permitted to visit and interview unnamed proposed class members in the Orange County Jail. The application is DENIED. There has been no class certification in this case, or a motion to do so. Normally, the court would expect the usual process of class certification and notice to the class to be accomplished before the requested discovery is undertaken. No cause has been shown to follow a different procedure; by Judge Gary L. Taylor, CR: none present (twdb) (Entered: 06/26/2003)
129 STIPULATION and ORDER for Protective Order by Discovery Marc L. Goldman. (twdb) (Entered: 07/01/2003)
130 STIPULATION and ORDER to dismiss plaintiffs' state law causes of action against defendant County of Orange by Judge Gary L. Taylor. Terminating party County of Orange (twdb) (Entered: 07/02/2003)
131 EX PARTE APPLICATION filed by plaintiffs to continue the hearing dates on defendants' motion for sanctions against Valenzuela, Ellerston and their counsel of record for repeated violations of this court's discovery orders . Lodged proposed order (twdb) (Entered: 07/15/2003)
132 ORDER by Discovery Marc L. Goldman granting ex parte application to continue the hearing dates on defendants' motion for sanctions against Valenzuela, Ellerston and their counsel of record for repeated violations of this court's discovery orders [131−1], resetting hearing on motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] 10:00 8/26/03 (twdb) (Entered: 07/16/2003)
133 EX PARTE APPLICATION filed by plaintiffs for order allowing the filing of a brief for class certification in excess of 25 pages in length Lodged proposed order (pj) (Entered: 07/30/2003)
134 EX PARTE APPLICATION filed by plaintiffs for protective order regarding the deposition of Timothy Conn Lodged proposed order (pj) (Entered: 07/30/2003)
135 OPPOSITION by defendant to Plaintiffs' ex parte application for order allowing the filing of a brief for class certification in excess of 25 pages in length [133−1] (pj) (Entered: 07/30/2003)
136 OPPOSITION by defendant County of Orange, defendant Michael S Carona to ex parte application for protective order regarding the deposition of Timothy Conn [134−1] (pj) (Entered: 07/30/2003)
137 MINUTES: DENYING Plaintiffs; ex parte application for order allowing the filing of a brief for class certification in excess of 25 pages in length [133−1], GRANT in part ex parte application for protective order regarding the deposition of Timothy Conn. Plaintiff Conn deposition is CONTINUED to September 1, 2003 [134−1] by Judge Gary L. Taylor CR: None Present (pj) (Entered: 07/30/2003)
161 NOTICE OF MOTION AND MOTION by plaintiffs Fred Pierce, Timothy Lee Conn, Fermin Valenzuela, Laurie D Ellerston to certify as class action ; Motion hearing set for 10:00 8/25/03 (twdb) Modified on 10/03/2003 (Entered: 10/03/2003)
162 DECLARATION of pre−trial detainees by plaintiffs in support of plaintiffs motion to certify as class action [161−1] (twdb) (Entered: 10/03/2003)
163 DECLARATIONS of Stormer, Keeny and Gartenberg by plaintiffs in support of plaintiffs' motion to certify as class action [161−1] (twdb) (Entered: 10/03/2003)
138 NOTICE OF MOTION AND MOTION by plaintiffs class certification ; motion hearing set for 10:00 8/25/03 (pj) (Entered: 08/04/2003)
139 NOTICE OF motion class certification [138−1] filed by plaintiffs (pj) (Entered: 08/04/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 19 of 88

07/30/2003 07/30/2003 07/30/2003 07/31/2003 08/01/2003 08/01/2003 08/05/2003 08/07/2003
08/15/2003 08/18/2003 08/19/2003
09/02/2003 09/16/2003
09/17/2003 09/18/2003 09/22/2003 09/22/2003

140 DECLARATION of STORMER KEENY AND GARTENBERG by plaintiff Fred Pierce, plaintiff Timothy Lee Conn, plaintiff Fermin Valenzuela, plaintiff Laurie D Ellerston re motion class certification [138−1] (pj) (Entered: 08/04/2003)
141 PROPOSED TRIAL PLAN filed by plaintiffs (pj) (Entered: 08/04/2003)
142 DECLARATION of PRE−TRIAL DETAINEES IN SUPPORT by plaintiffs re motion class certification [138−1] (pj) (Entered: 08/04/2003)
PLACED IN FILE − NOT USED proposed order re exparte application for an order to file overlong brief (twdb) (Entered: 08/05/2003)
PLACED IN FILE − NOT USED proposed order re exparte application for protective order regarding the deposition of Timothy Conn (twdb) (Entered: 08/05/2003)
143 ORDER RE Application to file attorney client privileged documents under seal by Judge Gary L. Taylor, in support of plaintiff's medical condition. (twdb) (Entered: 08/05/2003)
145 EX PARTE APPLICATION filed by defendants County of Orange, Michael S Carona re stipulation to extend briefing schedule on plaintiffs' motion for class certification ; order [proposed]. Lodged proposed order (twdb) (Entered: 08/06/2003)
146 STIPULATION and ORDER RE: Extended briefing schedule on plaintiffs' motion for class certification and continuance of discovery cutoff date by Judge Gary L. Taylor; resetting hearing on motion class certification [138−1] 10:00 10/6/03. Defendants' opposition due 9/22/03; Plaintiffs' reply brief due: 9/29/03. Discovery ddl reset on 1/19/04 (twdb) (Entered: 08/07/2003)
148 EX PARTE APPLICATION filed by plaintiff Fred Pierce, plaintiff Timothy Lee Conn, plaintiff Fermin Valenzuela, plaintiff Laurie D Ellerston to continue hearing Lodged proposed order (shb) (Entered: 08/20/2003)
149 OPPOSITION by defendants County of Orange, Michael S Carona to ex parte application to continue hearing date on defendants motion for sanctions based on plaintiffs repeated violations of discovery orders [148−1] (jp) (Entered: 08/21/2003)
147 MINUTES: granting plaintiff's ex parte application to continue the hearing dates on defendants' motion for sanctions against Valenzuela, Ellerston and their counsel of record for repeated violations of this court's discovery orders [131−1], resetting hearing on motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1] 10:00 9/23/03. No additional continuances shall be granted; by Discovery Marc L. Goldman, CR: none (twdb) (Entered: 08/19/2003)
PLACED IN FILE − NOT USED stipulation to vacate discovery cutoff and trial dates; order thereon (twdb) (Entered: 09/03/2003)
151 EX PARTE APPLICATION filed by Orange County defendants for an order specially setting the briefing and hearing schedule on plaintiffs' motion for class certification ; Memorandum of points and authorities; Declarations of S. Frank Harrell and Jason S. Roberts in support thereof. Lodged proposed order (twdb) (Entered: 09/22/2003)
153 RESPONSE by plaintiffs, to defendants' exparte application for continuance of motion class certification [138−1] (twdb) (Entered: 09/24/2003)
150 ORDER by Judge Gary L. Taylor denying Orange County Defendants' ex parte application re stipulation to extend briefing schedule on plaintiffs' motion for class certification [145−1] (twdb) (Entered: 09/19/2003)
154 OBJECTIONS by Michael S Carona, County of Orange to witness declarations offered in support of plaintiff's motion class certification [138−1] (twdb) (Entered: 09/29/2003)
155 OBJECTION by defendants (Orange County) to plaintiff's proposed trial plan, filed concurrently with plaintiffs' motion class certification [138−1]; Declaration of Jason S. Roberts in support thereof; Exhibits. (twdb) (Entered: 09/29/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 20 of 88

09/22/2003 09/22/2003 09/23/2003
09/29/2003 09/29/2003 09/29/2003
10/01/2003 10/02/2003 10/03/2003 10/07/2003 10/08/2003 10/14/2003 10/15/2003 10/21/2003

156 OBJECTIONS by defendants to evidence offered by plaintiffs in support of motion class certification [138−1] (twdb) (Entered: 09/29/2003)
157 OPPOSITION by defendants' County of Orange, Michael S Carona to plaintiffs' motion class certification [138−1]; memorandum of points and authorities; declarations of Lt. Timothy Board, Deputy Ronald Miller and S. Frank Harrell in support thereof; exhibits (twdb) (Entered: 09/29/2003)
152 MINUTES: GRANT in part DENY in part defendants' motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1]. It is ordered however, pursuant to FRCP. 37(b)(2), that Richard P. Herman be ordered to pay the reasonable costs and attorney fees of defendants for bringing this motion with respect to the March 25,2003 order only. Defendants shall file a statement of costs and attorney fees no later than 10/7/03. Mr. Herman may file an opposition to the statement no later than 10/14/03. The court reserves the right to determine whether additional sanctions against Mr. Herman are appropriate for failing to comply with the court's 2/25/03 order; by Discovery Marc L. Goldman, CR: SA03−57 (twdb) (Entered: 09/24/2003)
158 REPLY by plaintiffs in support of motion class certification [138−1] (twdb) (Entered: 10/02/2003)
159 NOTICE OF LODGING OF DEPOSITIONS by plaintiffs in support of motion class certification [138−1]. Deposition of Laurie Ellertson; Deposition of Timothy Conn; Deposition of Fermin Vincent Valenzuela, dated 9/10/03; Deposition of Fermin Vincent Valenzuela, dated 9/18/03 (twdb) (Entered: 10/02/2003)
160 NOTICE OF DISCREPANCY AND ORDER by Judge Gary L. Taylor ordering Declarations of pretrial; Declarations of Stormer, Keeny and Gartenberg; Motion for class certification submitted by plaintiff received on 7/29/03 to be fld and processed; fld date to be the date the doc was stamped "received but not fld" w/the Clerk (twdb) (Entered: 10/03/2003)
164 SUPPLEMENTAL MEMORANDUM to Magistrate Judge Goldman by plaintiffs (twdb) (Entered: 10/03/2003)
165 MINUTES: The plaintiff's motion class certification [138−1] is submitted and off calendar for 10/6/03 by Judge Gary L. Taylor, CR: none present (twdb) (Entered: 10/03/2003)
166 OBJECTION by defendants County of Orange, Michael S Carona to new deposition evidence submittd by plaintiff's for the first time in their reply briefing in support of motion class certification [138−1] (twdb) (Entered: 10/07/2003)
167 STATEMENT of costs and attorneys' fees by defendants' motion for sanctions against plaintiffs Valenzuela, Ellerston and or their counsel for repeated violations of this court's discovery orders [106−1]; Declarations of David D. Lawrence, S. Frank Harrell and Jason S. Roberts in support thereof; Exhibits (twdb) (Entered: 10/08/2003)
168 NOTICE OF CHANGE Of Address filed by atty Richard P Herman for plaintiff Laurie D Ellerston 2070 NOrth Tustin Avenue, Santa Ana 92705 (twdb) (Entered: 10/09/2003)
170 OPPOSITION filed by plaintiff's Fred Pierce, County of Orange, Fermin Valenzuela, Laurie D Ellerston to defendant's memorandum of costs and attorneys fees (twdb) (Entered: 10/20/2003)
169 ORDER by Judge Gary L. Taylor granting plaintiffs' motion class certification [138−1] (twdb) (Entered: 10/16/2003)
171 MINUTES: The court finds that defendants are entitled to attorney fees for 10 hours of work at a rate of $140.00 per hour and costs in the amount of $50.00 for a total amount of $1450.00. It is ordered that Attorney Richard P. Herman personally pay over to counsel for defendants the amount of $1450.00 on or before 10/31/03. Failure to comply with this order will result in the imposition of additional sanctions; by Discovery Marc L. Goldman, CR: none (twdb) (Entered: 10/22/2003)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 21 of 88

11/12/2003 11/12/2003 11/14/2003 11/17/2003
11/21/2003 11/24/2003 11/26/2003 12/10/2003 12/11/2003
12/11/2003 12/11/2003 12/18/2003 12/18/2003 12/18/2003

172 STIPULATION and ORDER by Judge Gary L. Taylor re deadlines to designate and depose expert witnesses (see document for specifics) (mt) (Entered: 11/13/2003)
174 EX PARTE APPLICATION filed by plaintiffs for order for a status conference regarding class notice ; Declaration of Bryan Barnet Miller in support thereof (twdb) (Entered: 11/20/2003)
175 OPPOSITION by defendants County of Orange, Michael S Carona to plaintiffs' ex parte application for order for a status conference regarding class notice [174−1]; Memorandum of points and authorities; Declaration of S. Frank Harrell in support thereof; Exhibits (twdb) (Entered: 12/02/2003)
173 MINUTES: Order re: Plaintiffs' exparte application for a status conference. No status conference regarding class notice will be held. Instead, the court requests defendants response, as follows: The class definition set by the court in its 10/15/03 order granting class certification was "all pretrial detainees held in Orange County jails after 10/21/01 who were denied various rights under Stewart and the ADA." The various rights alleged to have been violated were detailed in the papers and are known to both parites. It appears that, in order to determine which pre−trial detainees are included in this class, Plaintiffs' counsel must contact each pre−trial detainee of the Orange County jails held after 10/21/01. Therefore, it appears appropriate for defendants to provide the last known name and address of each pre−trial detainee since 10/21/01. Defendants are requested to state any opposition to such order by Friday November 21/03 at 2:00 p.m.; by Judge Gary L. Taylor, CR: none present (twdb) (Entered: 11/18/2003)
176 OPPOSITION filed by defendants County of Orange, Michael S Carona to proposed order re disclosure of identities of pre−trial detainees and request to decertify plaintiffs' damages class; Memorandum of points and authorities and declaration of S. Frank Harrell in support thereof; Exhibits (twdb) (Entered: 12/02/2003)
177 NOTICE OF MOTION AND MOTION by plaintiffs for leave to take more than 10 depositions ; Memorandum of points and authorities; Declaration and exhibits in support thereof; Motion hearing set for 10:00 12/15/03. Lodged order (twdb) (Entered: 12/02/2003)
178 AMENDMENT by plaintiffs to take more than ten depositions [177−1] (twdb) (Entered: 12/04/2003)
179 Joint STIPULATION filed for expedited hearing date and stipulation re plaintiffs' motion to depose Senior Orange County Sheriff's Department Officials ; Memorandum of points and authorities. (twdb) (Entered: 12/11/2003)
180 MINUTES: Setting hearing on stipulation for expedited hearing date and stipulation re plaintiffs' motion to depose Senior Orange County Sheriff's Department Officials [179−1] 10:00 12/23/03, resetting hearing on motion for leave to take more than 10 depositions [177−1] 10:00 12/23/03; by Discovery Marc L. Goldman, CR: none (twdb) (Entered: 12/11/2003)
181 RECEIPT OF TRANSCRIPT of proceedings for the following date(s): 9/23/03 (Re:) CR: Dorothy Babykin (weap) (Entered: 12/15/2003)
TRANSCRIPT filed for proceedings held on 9/23/03 (weap) (Entered: 12/15/2003)
182 STIPULATION and ORDER by Discovery Marc L. Goldman to reschedule hearing on joint stipulation for expedited hearing date and stipulation re plaintiffs' motion to depose Senior Orange County Sheriff's Department Officials [179−1] 9:00 12/18/03 (twdb) (Entered: 12/18/2003)
183 STIPULATION and ORDER RE: Remaining deposition to be taken by plaintiffs and defendants by Discovery Marc L. Goldman; granting motion for leave to take more than 10 depositions [177−1]. (twdb) (Entered: 12/18/2003)
184 MINUTES: For the reasons stated on the record at the hearing held this date, plaintiffs' motion to depose Sheriff Michael Corona, Assistant Sheriff John Hewitt, Captain Joe Davis and Captain Deanna Berquist is GRANTED [179−1]. The depositions of Sheriff Corona and Captain Berquist shall be held in Orange County. Sheriff Corona's deposition shall be limited to 4 hours. Defendants shall notify plaintiffs no later than

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 22 of 88

12/22/2003 12/22/2003 12/30/2003 01/05/2004 01/06/2004
01/06/2004 01/06/2004 01/06/2004 01/07/2004
01/08/2004
01/08/2004

1/5/04 as to whether they will make Assistant Sheriff Hewitt and Captain Davis available without a subpoena. If not, defendants shall provide plaintiffs with the last known addresses of Hewitt and Davis so that deposition subpoenas may be served. The time for deposing Hewitt and Davis shall be extended to 1/31/04. Those depositions shall be held in the offices of plaintiffs counsel in Los Angeles County; by Discovery Marc L. Goldman, Tape: SA 03−74 (twdb) (Entered: 12/18/2003)
185 RESPONSE by plaintiffs to defendants' opposition to proposed order re disclosure of identities of pre−trial detainees (mt) (Entered: 12/24/2003)
185 REQUEST filed by plaintiffs to decertify class ; declarations and exhibits insupport thereof (mt) (Entered: 12/24/2003)
186 REQUEST filed by plaintiffs for status conference (twdb) (Entered: 12/31/2003)
192 JOINT STIPULATION for order Compelling Mental Examination of plaintiff Laurie D. Ellerston of 1/15/04; memorandum of points and authorities; declarations of Christina M. Sprenger and Hernaldo Jose Baltodano with exhibits filed by Orange County Defendants Michael S Carona. Lodged proposed order. (twdb, ) (Entered: 01/13/2004)
187 STIPULATION AND ORDER RE: One−Week continuance of deadlines to designate and depose expert witnesses by Judge Gary L. Taylor : Pursuant to FRCP 26, the parties shall have 30 days, or through and including 2/13/04 to designate rebuttal expert witnesses whose testimony is intended solely to contradict or rebut evidence on the same subject. The parties shall have through 3/5/04 to notice and take the depositions of all expert witnesses and rebuttal expert witnesses. Other than as set forth above regarding the deadlines for expert disclosures and depositions, the discovery cut−off, pre−trial conference date and month for trial shall remain as presently scheduled.(twdb, ) (Entered: 01/07/2004)
188 EX PARTE APPLICATION for an Order to Stay Enforcement of the Magistrate's 12/18/03 Discovery Order pending review by the District Court; Memorandum of points and authorities; Declaration of Christina M. Sprenger filed by defendants Michael S Carona, County of Orange. Lodged proposed order. (twdb, ) (Entered: 01/09/2004)
189 OBJECTIONS AND REQUEST FOR REVIEW OF Magistrate Judge's Order Compelling the deposition of Sheriff Michael Carona in regards to EX PARTE APPLICATION to Stay 188 ; memorandum of points and authorities; declarations of Christina M. Sprenger and Michael S. Carona; exhibits filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 01/09/2004)
293 EX PARTE APPLICATION for Court Order preserving plaintiffs class counsel's ability to communicate with potential class members; Declaration of Bryan Barnet Miller in support thereof filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/26/2004)
190 MINUTES In Chambers: The court has received and considered defendants' objections to the Magistrate Judge's order compelling the deposition of Sheriff Michael Carona and defendants' exparte application to stay enforcement of that order. The court finds no abuse of discretion or legal error by the Magistrate Judge. Defendants' exparte application and objections are DENIED before Judge Gary L. Taylor :, Motions terminated 188 . Court Reporter: none. (twdb, ) (Entered: 01/09/2004)
191 STIPULATION AND ORDER RE: Brief Continuance of discovery cutoff date to complete remaining depositions by Judge Gary L. Taylor : The discovery cutoff date is continued from 1/19/04 for the limited purpose of noticing and completing the remaining depositions that were subject of the previous stipulations and court orders. Other than continuing the cutoff date to complete these depositions, nothing in this stipulation shall affect the discovery cutoff, pretrial conference date and month for trial as presently scheduled. Discovery cut−off 1/31/2004.(twdb, ) (Entered: 01/12/2004)
PLACED IN FILE − NOT USED re [Proposed] Order Re: Defendants' Ex Parte Application for an Order Staying Enforcement of the Magistrate's December 18, 2003 Discovery Order pending review by the District Court submitted by Defendants Michael S Carona, County of Orange. (tso) (Entered: 01/16/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 23 of 88

01/09/2004 01/09/2004 01/09/2004 01/12/2004 01/12/2004 01/12/2004 01/12/2004
01/12/2004
01/12/2004
01/12/2004
01/12/2004
01/12/2004

197 AMENDED NOTICE of hearing date RE: Orange County defendants' joint stipulation for order compelling mental examination of plaintiff Laurie D. Ellerston filed by defendant Michael S Carona. (twdb, ) (Entered: 01/16/2004)
198 OPPOSITION to defendants' objection to Magistrate's Order and EX PARTE APPLICATION to Stay 188 filed by plainitffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 01/16/2004)
199 JOINT STIPULATION RE plaintiffs' Motion To Compel further responses to plaintiff Tim Conn's Third Request for Production of documents filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 01/16/2004)
202 JOINT STIPULATION to Compel Production of Documents to defendant County of Orange, Set Four by Pierce filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 01/20/2004)
203 JOINT STIPULATION RE: Plaintiffs' Motion to Compel County of Orange's Production of Documents and Things; Miller Declaration; Roberts Decalration; Exhibits filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 01/20/2004)
204 NOTICE OF LODGING VIDEO TAPE filed by defendants Michael S Carona. Lodged videotape (twdb, ) (Entered: 01/21/2004)
206 NOTICE OF MOTION AND MOTION (#1) for Summary Adjudication as to Plaintiffs' Monell Claims Under 42 USC 1983; Memorandum of Points and Authorities in Support Thereof; Declarations of Lt Timothy Board and Jason S Roberts; Exhibits, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
207 NOTICE OF MOTION AND MOTION (#2) for Summary Adjudication of Plaintiffs' Pierce, Conn, Ellerston and Valenzuela's Civil Damages Claims and/or Damages for Emotional Injury; Memorandum of Points and Authorities; Declaration; Exhibits, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
208 NOTICE OF MOTION AND MOTION (#3) to Dismiss Plaintiffs' Complaint or, alternatively, MOTION for Summary Judgment Based on Plaintiffs' Failure to Exhause Remedies; Memorandum of Points and Authorities; Declarations of Jason S Roberts and Lt Timothy Board and Exhibits in Support Thereof, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
209 NOTICE OF MOTION AND MOTION (#4) for Summary Adjudication of Plaintiff Ellerston's "Insufficient Meal Time" Claim; Memorandum of Points and Authorities and Declarations of Jason S Roberts, Lt Timothy Board and Sheriff Michael S Carona and Exhibits Thereto in Support Thereof, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
210 NOTICE OF MOTION AND MOTION (#5) for Summary Adjudication of Plaintiffs Ellerston and Valenzuela's "Access to Visitors" Claim; Memorandum of Points and Authorities and Declarations of Jason S Roberts, Lt Timothy Board and Sheriff Michael S Carona and Exhibits Thereto in Support Thereto, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
211 NOTICE OF MOTION AND MOTION (#6) for Summary Adjudication of Plaintiffs Valenzuela and Conn's "Rooftop Exercise" Claim; Memorandum of Points and Authorities and Declarations of Jason S Roberts, Lt Timothy Board and Sheriff

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 24 of 88

01/12/2004
01/12/2004
01/12/2004
01/12/2004
01/12/2004 01/12/2004
01/13/2004 01/13/2004 01/13/2004 01/13/2004 01/13/2004 01/14/2004

Michael S Carona and Exhibits Thereto in Support Thereof, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
212 NOTICE OF MOTION AND MOTION (#7) for Summary Adjudication of Plaintiffs Pierce and Valenzuela's "Lack of Seats" Claim; Memorandum of Points and Authorities and Declarations of Jason S Roberts, Lt Timothy Board and Sheriff Michael S Carona and Exhibits Thereto in Support Thereof, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
213 NOTICE OF MOTION AND MOTION (#8) for Summary Adjudication of Plaintiffs Conn, Ellerston and Valenzuela's "Dayroom Access" Claim; Memorandum of Points and Authorities and Declarations of Jason S Roberts, Lt Timothy Board and Sheriff Michael S Carona and Exhibits Thereto in Support Thereof, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
214 NOTICE OF MOTION AND MOTION (#9) for Summary Adjudication of Plaintiffs' "Non−Class" Claims against Sheriff Michael Carona; Memorandum of Points and Authorities; Declarations and Exhibits, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
215 NOTICE OF MOTION AND MOTION (#10) for Summary Adjudication of Plaintiffs' State Law Claims (Fifth Through Eighth Causes of Action); Memorandum of Points and Authorities and Declarations of Jason S Roberts and Dennis Bunker and Exhibits Thereto in Support Thereof, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
216 NOTICE OF MOTION AND MOTION (#11) to Decertify Plaintiffs' Class Action Claims; Memorandum of Points and Authorities and Declaration of Jason S Roberts In Support Thereof; Exhibits, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. (kks) (Entered: 01/21/2004)
217 NOTICE OF MOTION AND MOTION (#12) for Summary Adjudication of Plaintiffs' Americans With Disabilities Act and Equal Protection Claims; Memorandum of Points and Authorities; Declarations and Exhibits, filed by defendants Michael S Carona and County of Orange. Motion set for hearing on 2/2/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged Statement of Uncontroverted Facts and Conclusions of Law; Lodged Proposed Judgment. (kks) (Entered: 01/21/2004)
193 STIPULATION AND ORDER RE: In Custody Medical Examination of plaintiff Timothy Conn on 1/14/04 by Judge Marc L. Goldman :(twdb, ) (Entered: 01/13/2004)
196 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following date: 12/18/03. Court Reporter: Toni Hudson (pjap, ) (Entered: 01/16/2004)
TRANSCRIPT filed for proceedings held on 12/18/03. Court Reporter: Toni Hudson. (pjap, ) (Entered: 01/16/2004)
218 SUPPLEMENTAL Memorandum of points and authorities re joint Stipulation to Compel 203 (twdb, ) (Entered: 01/22/2004)
219 SUPPLEMENTAL Memorandum of points and authorities re joint Stipulation to Compel defendant County of Orange's production of documents and things 203 (twdb, ) (Entered: 01/22/2004)
194 JOINT STIPULATION AND ORDER to move hearing date by Judge Marc L. Goldman : The court orders that the hearing on plaintiffs' Joint Stipulations 1) Joint stip to compel the production of documents to defendant County of Orange, set four by

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 25 of 88

01/14/2004
01/14/2004 01/14/2004
01/14/2004 01/14/2004 01/15/2004 01/15/2004 01/16/2004 01/20/2004

Pierce 2) Joint stip re plaintiffs motion to compel county of Orange's production of documents and things; Miller declaration; 2) Joint stip re plaintiffs motions to compel further responses to plaintiff Tim Conn's Third Request for Production of Documents; shall be heard on 1/27/04 at 10:00 a.m. 4) Joint stip re plaintiffs motion to compel defendants responses to deposition questions, production of documents and things at deposition; Miller declaration; exhibits; request for sanctions.(twdb, ) (Entered: 01/14/2004)
195 STIPULATION AND ORDER RE: Extension of the Discovery cutoff for the limited purpose of the pending ruling on defendants request for a mental examination of plaintiff Laurie Ellerston by Judge Marc L. Goldman : The court orders that the discovery cut−off is extended to allow the mental examination to proceed, but not later than 30 days before trial if it is so ordered; and In the event that the court orders Ms. Ellerston's mental examination, Dr. Glaser's expert report shall be disclosed immediately upon receipt by defense counsel.(twdb, ) (Entered: 01/15/2004)
200 EX PARTE APPLICATION to 1) Extend the time to oppose defendant's Eleven Summary Adjudication Motions and Class Decertification Motion and 2) Continue the Pretrial Conference Date filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. Lodged proposed order. (twdb, ) (Entered: 01/20/2004)
201 MINUTES In Chambers; Plaintiffs' exparte application to extend the time to oppose defendants' twelve motions currently on calendar for 2/2/04 is GRANTED. Plaintiffs' opposition papers are due 2/9/04, and defendants' reply papers are due 2/16/04. Defendants' twelve motions are ordered off calendar for 2/2/04 and ordered calendared for Monday. Plaintiffs' exparte application to continue the pretrial conference is DENIED; before Judge Gary L. Taylor : Motion set for hearing on 2/23/2004 at 10:00 AM before Honorable Gary L. Taylor. Court Reporter: none present. (twdb, ) (Entered: 01/20/2004)
220 MEMORANDUM of points and authorities re plaintiff's EX PARTE APPLICATION 1) to Extend Time to oppose defendants' eleven summary adjudciation motions and class decertification motion and 2) continue the pretrial conference date 200 filed by plainitffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 01/23/2004)
221 OPPOSITION to plaintiffs' exparte application for a court order preserving plaintiffs' class counsel's ability to communicate with potential class members; points and authorities filed by defendants Michael S Carona. (twdb, ) (Entered: 01/23/2004)
222 STIPULATION AND ORDER Re: Briefing schedule on defendants' dispositive motions and brief continuance of pre−trial conference by Judge Gary L. Taylor : DENIED(twdb, ) (Entered: 01/26/2004)
PLACED IN FILE − NOT USED re proposed order granting plaintiff's exparte application to 1) extend the time to oppose defendants' eleven summary adjudication motions and class decertification motion and 2) continue the pretrial conference date submitted by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 01/26/2004)
231 NOTICE CERTIFIED ORDER from 9th CCA received in district court 01/20/04, appeal number 03−80112. Court in its discretion, denies petition for permission to appeal district court 10/16/03 order granting class action certification. (cbr, ) (Entered: 02/11/2004)
205 MINUTES In Chambers; For the reasons stated on the record at the hearing held this date, defendants' Motion for Mental Examination of plaintiff Laurie D. Ellerston is DENIED without prejudice. This decision is predicated upon plaintiff's representation that any claim for emotional damages shall be limited to her mental anguish, embarrassment, humiliation, stress, anger and other emotions arising from the asserted constitutional violations occurring during the period of time she was incarcerated in the Orange County Jail. Plaintiff has agreed to abandon any claims of complex emotional distress which has given rise to a specific mental disorder or to any ongoing mental injury or harm following her release or transfer from the Orange County Jail; before Judge Marc L. Goldman : Tape #: SA04−02. (twdb, ) (Entered: 01/21/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 26 of 88

01/20/2004 01/21/2004 01/21/2004 01/21/2004 01/21/2004 01/27/2004
02/02/2004 02/03/2004 02/09/2004
02/09/2004 02/09/2004 02/09/2004

PLACED IN FILE − NOT USED re proposed order re mental examination of plaintiff Laurie D. Ellerston on 1/15/04 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 01/27/2004)
PLACED IN FILE − NOT USED re Proposed order granting plaintiffs ex parte application to (1) extend the time to oppose defendants eleven summary adjudication motions and class decertification motion and (2) continue the pretrial conference date submitted by Plaintiffs (csb, ) (Entered: 02/05/2004)
226 Notice of Filing Original PROOF OF SERVICE Re: Defendants' Motions for Summary Adjudication on Numbers 1 through 12 Served on the Law Offices of Litt and Associates (see document for further details), filed by defendants Michael S Carona and County of Orange, served on 1/12/2004. (kks) (Entered: 02/09/2004)
227 Notice of Filing Original PROOF OF SERVICE Re Defendants' Motions for Summary Adjudication Numbers 1 through 12 Served on the Law Offices of Richard P Herman (see document for further details), filed by defendants Michael S Carona and County of Orange, served on 1/12/2004. (kks) (Entered: 02/09/2004)
228 Notice of Filing Original PROOF OF SERVICE Re Defendants' Motions for Summary Adjudication Numbers 1 through 12 Served on the Law Offices of Hadsell and Stormer (see document for further details), filed by defendants Michael S Carona and County of Orange, served on 1/12/2004. (kks) (Entered: 02/09/2004)
223 MINUTES In Chambers; Plaintiffs' motions to 1) compel further answers to Tim Conn's third request for production of documents 2) compel County of Orange's production of documents; and 3) compel production of documents to defendant Orange County (set four by Peirce). For the reasons stated on the record at the hearing held this date, these motions are reset for hearing. The need for a great portion of these discovery requests may be mooted by a decision favorable to defendants in the motion for decertification of class and motions for summary judgment currently pending before District Judge Taylor. These issues shall be revisited upon resolution of those dispositive motions; before Judge Marc L. Goldman : Motion set for hearing on 3/9/2004 at 10:00 AM before Magistrate Judge Marc L. Goldman. Tape #: SA04−03. (twdb, ) (Entered: 01/28/2004)
230 REQUEST by plaintiffs for Relief Under Rule 56(f) and Supporting Declaration of Virginia Keeny. Request set for hearing on 2/23/2004 at 10:00 AM before Honorable Gary L. Taylor. (kks) (Entered: 02/10/2004)
224 NOTICE OF DOCUMENT DISCREPANCIES AND ORDER by Judge Gary L. Taylor ORDERING Exhibit 4 submitted by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela received on 2/2/04 to be filed and processed; filed date to be the date the document was stamped Received but not Filed with the Clerk.(twdb, ) (Entered: 02/04/2004)
229 STIPULATION AND ORDER RE: Shortening time prior to pre−trial conference to file certain documents required by pre−trial scheduling order and local rules by Judge Gary L. Taylor : The court orders that all documents required by this court's pretrial scheduling order and local rules 16−2 through 16−6 to be filed before the 3/5/04 pretrial conference are to be filed by the parties on or before 3/1/04. The pretrial conference date and month for trial shall remain as presently scheduled.(twdb, ) (Entered: 02/10/2004)
232 EX PARTE APPLICATION to file under Seal Exhibits 12, 13 and 26 in support of plaintiffs' oppositions to motions for summary judgment filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. Lodged proposed order. (twdb, ) (Entered: 02/12/2004)
234 OPPOSITION to MOTION #11 to Decertify Class 216 claims filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela; evidentiary objections to Roberts declaration; filed concurrently with memorandum of points and authorities. (csb, ) (Entered: 02/17/2004)
235 OPPOSITION to MOTION #11 to Decertify Class 216 filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela; memorandum of points and authorities; filed concurrently with evidentiary objections to declaration of Jason Roberts. (csb, ) (Entered: 02/17/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 27 of 88

02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004

236 OPPOSITION to Motion for Summary Judgment 206 ; Evidentiary objections to Board Declaration; Motion for Summary Judgment No. 1 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
237 OPPOSITION to Motion Summary Judgment 208 ; Evidentiary objections to Board Declaration; Motion for Summary Judgment No. 3 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
238 OPPOSITION to Motion for Summary Judgment 209 ; Evidentiary objections to Declarations of Lt. Board and Sheriff Carona; Motion for Summary Judgment No. 4 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
239 OPPOSITION to Motion for Summary Judgment 210 ; Evidentiary objections to the Declarations of Lt. Board and Sheriff Carona; motion for Summary Judgment No. 5 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
240 OPPOSITION to Motion for Summary Judgment 211 ; Evidentiary objections to the Declarations of Lt. Board and Sheriff Carona filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
241 OPPOSITION to Motion for Summary Judgment 212 ; Evidentiary objections to the Declarations of Lt. Board and Sheriff Carona filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
242 OPPOSITION to Motion for Summary Judgment 213 ; Evidentiary objections to the Declarations of Lt. Board and Sheriff Carona filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
243 OPPOSITION to Motion for Summary Judgment 214 ; Evidentiary objections to the Declarations of Lt. Board and Sheriff Carona filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
244 OPPOSITION to Motion #10 Summary Judgment on State law claims 215 ; Declaration of Bryan Barnet Miller filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
245 OPPOSITION to Motion for Summary Judgment 215 ; Evidentiary objections to Bunker Declaration; Motion for Summary Judgment No. 10 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
246 OPPOSITION to Motion for Summary Judgment #10 215 ; Memorandum of Points and Authorities filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
247 STATEMENT of Genuine Issues and Separate Statement of Uncontroverted Facts in Support of Opposition to Motion for Summary Adjudication of Plaintiffs' State law claims 215 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (tso, ) (Entered: 02/18/2004)
248 OPPOSITION to REQUEST for Relief from Under Rule 56(f) 230 ; Memorandum of points and authorities and declaration of Jason S. Roberts in support thereof; Exhibits filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 02/18/2004)
249 OPPOSITION to MOTION for Summary Adjudication 217 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
250 OPPOSITION to MOTION for Summary Adjudication 214 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
251 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to defendants' MOTION for Summary Adjudication 214 filed by

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 28 of 88

02/09/2004
02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004
02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004

plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
252 PROOF OF SERVICE of motion no 1; Plaintiffs opposition to defendants' motion for adjudication as to plaintiffs' Monell Claims; motion no 2; motion #3−9, motion no 12; motion no. 1; plaintiffs statement of genuine issues and separate statement of uncontroverted facts, see document for further information filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela was served on 2/2/04. (twdb, ) (Entered: 02/18/2004)
253 EVIDENCE IN OPPOSITION TO Motions for summary judgment and Motion to decertify class: Declarations and exhibits (volume I) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
254 EVIDENCE IN OPPOSITION TO Motions for summary judgment and Motion to decertify class; Deposition excerpts (volume v) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
255 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to MOTION for Summary Adjudication 217 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
256 EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND MOTION TO DECERTIFY CLASS; DEPOSITION EXCERPTS (volume III) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
257 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to MOTION for Summary Adjudication 209 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
258 OPPOSITION to MOTION for Summary Adjudication 210 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
259 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to MOTION for Summary Adjudication of plaintiffs' Pierce, Conn, Ellerston and Valenzuela's civil damages for failure to exhaust remedies under th PLRA 208 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
260 OPPOSITION to MOTION for Summary Adjudication 209 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
261 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to MOTION for Summary Adjudication 211 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
262 OPPOSITION to MOTION for Summary Adjudication 211 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
263 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to defendants' MOTION for Summary Adjudication 210 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
264 OPPOSITION to MOTION for Summary Adjudication 212 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
265 STATEMENT of genuine issues and separate statement of facts in support of opposition to defendants' MOTION for Summary Adjudication 212 filed by plaintiffs

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02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/10/2004
02/17/2004 02/17/2004

Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
266 OPPOSITION to MOTION for Summary Adjudication 213 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
267 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to MOTION for Summary Adjudication 213 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
268 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to defendants' MOTION for Summary Adjudication 206 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
269 OPPOSITION to MOTION for Summary Adjudication 206 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
270 OPPOSITION to MOTION to Dismiss Plaintiffs' Complaint or, alternatively, MOTION for Summary Judgment 208 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
271 EVIDENCE IN OPPOSITION TO Motions for summary judgment and Motion to decertify filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
272 STATEMENT of genuine issues and separate statement of uncontroverted facts in support of opposition to defendants' MOTION for Summary Adjudication 207 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
273 OBJECTIONS to defendants' declaration of Timothy Board Iso their motions for summary adjudication and motion to decertify plaintiffs' class; filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
REQUEST to Strike and for Sanctions,to defendants' declaration of Timothy Board Iso their motions for summary adjudication and motion to decertify plaintiffs' class filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
274 EVIDENCE IN OPPOSITION TO motions for summary judgment and motion to decertify class; Deposition Excerpts (volume IV) filed by plaintiffs Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/18/2004)
276 OPPOSITION to MOTION #2 for Summary Adjudication 207 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 02/24/2004)
233 ORDER by Judge Gary L. Taylor GRANTING EX PARTE APPLICATION to Seal 232 . It is so ordered that the following documents be placed under seal as they are governed by a protective order executed by the Honorable Marc L. Goldman on 7/1/03: Exhibit 12 to plaintiffs opposition to defendants' motions for summary; Exhibit 13 to plaintiffs' opposition to defendants' motion for summary judgment; Exhibit 26 to plaintiffs' opposition to defendants' motions for summary judgment.(twdb, ) (Entered: 02/12/2004)
278 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs Monell claims under 42 USC 1983; memorandum of points and authorities in support thereof 206 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
279 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs Pierce, Conn, Ellerston and Valenzuelas civil damages claims and/or damages for emotional injury; declaration of Jennifer L Prieto; exhibits 207 filed by Defendant Michael S

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 30 of 88

02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004

Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
280 REPLY to opposition to MOTION to Dismiss Plaintiffs' Complaint or, alternatively, MOTION for Summary Judgment based on plaintiffs failure to exhaust remedies under the PLRA 208 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
281 REPLY to opposition to MOTION to Dismiss Plaintiffs' Complaint or, alternatively, MOTION for Summary Judgment based on plaintiffs failure to exhaust remedies under the PLRA 208 filed by Defendant Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
282 REPLY to oppositiom to MOTION for Summary Adjudication of plaintiff Ellerstons insufficient meal time claim; memorandum of points and authorities in support thereof 209 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
283 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs Valenzuela and Ellerstons access to visitors claim; memorandum of points and authorities in support thereof 210 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
284 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs Valenzuela and Conns rooftop exercise claim; memorandum of points and authorities in support thereof 211 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
285 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs Pierce and Valenzuelas lack of seats claim; memorandum of points and authorities in support thereof 212 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
286 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs Conn, Ellerston and Valenzuelas dayroom access claim; memorandum of points and authorities in support thereof 213 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
287 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs non−class claims against Sheriff Michael Carona; memorandum of points and authorities 214 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
288 REPLY to opposition to MOTION for Summary Adjudication of plaintiffs state law claims fifth through eigth causes of action; memorandum of points and authorities in support thereof 215 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
289 REPLY to oppostiion to MOTION to Decertify plaintiffs class motion 11; memorandum of points and authorities in support thereof; declaration of Christina M Sprenger and exhibits 216 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
290 REPLY to opposition to MOTION for Summary Adjudication of plaintiff Conns Americans with disability act and equal protection claims; memorandum of points and authorities; declarations of Lt Timothy Board 217 filed by Defendants Michael S Carona, County of Orange. (csb, ) (Entered: 02/25/2004)
291 SUPPLEMENTAL DECLARATION of Timothy Board in support of defendants reply to plaintiffs opposition to MOTIONs for Summary Adjudication pursuant to federal rule of evidence 106 211 , 212 , 213 , 206 , 214 , 207 , 215 , 217 , 209 , 210 filed by Defendants Michael S Carona and County of Orange. (csb, ) Modified on 2/25/2004 (csb, ). (Entered: 02/25/2004)
292 SUPPLEMENTAL DECLARATION of Jason S Roberts in support of defendants reply to plaintiffs opposition to MOTIONS for Summary Adjudication 211 , 212 , 213 , 206 , 214 , 207 , 215 , 217 , 209 , 210 filed by Defendants Michael S Carona and County of Orange. (csb, ) (Entered: 02/25/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 31 of 88

02/17/2004 02/20/2004 02/20/2004 02/20/2004 02/20/2004 02/23/2004 02/23/2004
02/23/2004 02/23/2004

295 REPLY in support of MOTION for Summary Adjudication 217 filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 02/26/2004)
296 OBJECTIONS TO PLAINTIFFS' EVIDENCE IN OPPOSITION TO DEFENDANTS' motions for summary adjudication and motion to decertify − volume III (twdb, ) (Entered: 03/01/2004)
297 OBJECTIONS to plaintiffs' evidence in opposition to defendants' Motions for summary adjudication and motion to decertify− volume V 211 , 212 , 213 , 214 , 215 , 216 , 217 , 209 , 210 filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/01/2004)
298 OBJECTIONS TO PLAINTIFFS' EVIDENCE IN OPPOSITION TO DEFENDANTS' motions for summary adjuducation and motion to decertify − volume II 211 , 212 , 213 , 214 , 215 , 216 , 217 , 209 , 210 filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/01/2004)
307 OBJECTIONS TO PLAINTIFFS EVIDENCE in opposition to defendants' motions for summary adjudication and motion to decertify − volume I 211 , 212 , 213 , 214 , 215 , 216 , 217 , 209 , 210 filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/01/2004)
277 ORDER for proceedings at 3/5/04, hearing by Judge Gary L. Taylor. It is apparent to the court that, for a variety of reasons, this case is not ready for a pretrial conference on 3/5/04, and is not ready to be set for trial in April 2004. The court will not separately rule on these filings, but will take up these and other class−related matters at the 3/5/04 hearing or other hearings thereafter.(twdb, ) (Entered: 02/24/2004)
294 MINUTES In Chambers; 1) Orange County defendants' motion for summary adjudication as to plaintiffs' Monell Claims 2) Orange County defendants' motion for summary adjudication of plaintiffs' civil damages claims and or damages for emotional injury 3) Orange County defendants motion to dismiss plaintiffs' complaint, or alternatively, motion for summary judgment based on plaintiffs' complaint or alternatively, motion for summary judgment based on plaintiffs' failure to exhaust remedies 4) Orange County defendants' motion for summary adjudication of plaintiff Ellerston's insufficient meal time claim 5) Orange County defendants' motion for summary adjudication of plaintiffs Ellerston and Valenzuela's access to visitors claim 6) Orange County defendants motion for summary adjudication of plaintiffs Valenzuela and Conn's rooftof exercise claim 7) Orange County defendants motion for summary adjudication of plaintiffs Pierce and Valenzuela's lack 8)Orange County defendants motion for summary adjudication of plaintiffs Conn, Ellerston and Avlenzuela's dayroom access claim 9) Orange County defendants' motion for summary adjudication of plaintiffs' non class claims against sheriff Michael Carona 10) defendant Sheriff Michael S. Carona's motion for summary adjudication of plaintiffs state law claims (fifth through eighth causes of action) 11) Orange County defendants' motion to decertify plaintiffs' class action claims 12) Orange County defendants' motion for summary adjudication of plaintiffs' Americans with Disabilities Act and Equal Protection Claims plaintiff's request for relief under rule 56(f). Cause is called for hearing with counsel present. Court and counsel discuss tentative ruling, a copy of which is attached hereto. Matter is argued and taken under submission pending the 3/5/04 hearing indicated below. Counsel for plaintiffs to submit additional briefing re: prove up of class damages by close of business on 2/25/04. The court vacates pretrial conference in this matter and sets status conference for 3/5/04; before Judge Gary L. Taylor : Status Conference set for 3/5/2004 09:00 AM before Honorable Gary L. Taylor. Court Reporter: Deborah Parker. (twdb, ) (Entered: 02/26/2004)
299 AMENDED PROOF OF SERVICE of objections to plaintiffs' evidence in opposition to defendants' motions for summary adjudication and motion to decertify − volume III filed by defendants Michael S Carona, County of Orange was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)
300 AMENDED PROOF OF SERVICE of objections to plaintiffs evidence in opposition to defendants motions for summary adjudication and motion to decertify − volume II filed by defendants Michael S Carona, County of Orange was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 32 of 88

02/23/2004 02/23/2004 02/23/2004 02/23/2004 02/23/2004 02/23/2004 02/25/2004 02/27/2004
02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004

301 AMENDED PROOF OF SERVICE of objections to plaintiffs evidence in opposition to defendants' motions for summary adjudication and motion to decertify − volume I filed by defendants Michael S Carona, County of Orange was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)
302 AMENDED PROOF OF SERVICE of objections to plaintiffs evidence in opposition to defendants' motions for summary adjudication and motion to decertify − volume I filed by defendants Michael S Carona, County of Orange was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)
303 AMENDED PROOF OF SERVICE objections to plaintiffs' evidence in opposition to defendants' motions for summary adjudication and motion to decertify − volume II filed by defendants Michael S Carona, County of Orange. was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)
304 AMENDED PROOF OF SERVICE of objections to plaintiffs' evidence in opposition to defendants' motions for summary adjudication and motion to decertify − volume III filed by defendants Michael S Carona, County of Orange was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)
305 AMENDED PROOF OF SERVICE of objections to plaintiffs' evidence in opposition to defendants' motions for summary adjudication and motion to decertify − volume V filed by defendants Michael S Carona, County of Orange was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)
306 AMENDED PROOF OF SERVICE of objections to plaintiffs' evidence in opposition to defendants' motions for summary adjudication and motion to decertify − volume V filed by defendants Michael S Carona, County of Orange was served on 2/20/04. (twdb, ) (Entered: 03/01/2004)
308 OPPOSITION to MOTION to Certify Class 216 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 03/02/2004)
PLACED IN FILE − NOT USED separate statement of uncontroverted facts and conclusions of law in support of Orange County defendants' notice of motion and motion for summary adjudication of plaintiffs' Pierce, Conn, Ellerston and Valenzuela's civil damages for failure to exhaust remedies under the PLRA submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED proposed order granting summary adjudication submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED proposed judgment in support of motion #4 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions of law in support of motion #4 for summary adjudication of plaintiff Ellerston's insufficient meal time claim submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions of law in support of motion #5 for summary adjudication of plaintiffs ellerston and Valenzuela's access to visitors claim submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed judgment in support of motion #5 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed judgment in support of motion #6 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions of law in support of motion #6 for summary adjudication of plaitiffs Conn and Valenzuela's Rooftop Exercise Claim submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 33 of 88

02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 03/01/2004
03/01/2004 03/01/2004

PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions lf law in support of motion #7 for summary adjudication of plaintiffs Pierce and Valenzuela's Failure to provide a holding cell seat claim submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed judgment in support of motion #7 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed judgment in support of motion #8 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions of law in support of motion #8 for summary adjudication of plaintiffs Conn, Ellerston and Valenzuela's dayroom access claim submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions of law in support of motion for summary adjudication of plaintiffs' non class claims against Sheriff Michael S. Carona submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed judgment in support of motion #9 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed judgment in support of motion #10 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions of law in support of motion #10 for summary adjudication of plaintiffs' state law claims submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re separate statement of uncontroverted facts and conclusions of law in support of motion #12 for summary adjudication of plaintiffs' Americans with disabilities act and equal protection claims against sheriff Michael S. Carona submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed judgment in support of motion #12 submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
309 ORDER on defendants' motions by Judge Gary L. Taylor. Defendants' motions are GRANTED IN PART AND DENIED IN PART Motion to Certify Class 161 , MOTION for Summary Adjudication 211 , MOTION for Summary Adjudication 212 , MOTION for Summary Adjudication 213 , MOTION for Summary Adjudication 206 , MOTION for Summary Adjudication 214 , MOTION for Summary Adjudication 207 , MOTION for Summary Adjudication 215 , MOTION to Dismiss Plaintiffs' Complaint or, alternatively, MOTION for Summary Judgment MOTION for Summary Judgment MOTION for Summary Judgment 208 , MOTION to Certify Class 216 , MOTION for Summary Adjudication 217 , MOTION for Summary Adjudication 209 , REQUEST for Relief from Under Rule 56(f) 230 , MOTION for Summary Adjudication 210 (twdb, ) (Entered: 03/04/2004)
310 SEPARATE STATEMENT of uncontroverted facts and conclusions of law in support of MOTION for Summary Adjudication 206 filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED Separate statement of uncontroverted facts and conclusions of law in support of motion #1 for summary adjudication of plaintiffs Monell claims submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 34 of 88

03/01/2004 03/01/2004 03/01/2004 03/01/2004 03/04/2004 03/05/2004 03/05/2004 03/11/2004 03/12/2004
03/17/2004

PLACED IN FILE − NOT USED proposed judgment submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED proposed order granting summary adjudication submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED separate statement of uncontroverted facts and conclusions of law in support of Orange County defendants notice of motion and motion for summary adjudication of plaintiffs Pierce, Conn, Ellerston and Valenzuela's civil damages claims and or damages for emotional injury submitted by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 03/04/2004)
PLACED IN FILE − NOT USED re proposed order re plaintiffs' request to strike, and request for sanctions submitted by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 03/04/2004)
311 NOTICE OF CLERICAL ERROR: You are hereby notified that due to a clerical error, document titled PIFNU, was incorrectly docketed under the caption and given a case number in the system by mistake. The document separate statement of uncontroverted facts should NOT have been docketed as a filed document #310. Please see the PIFNU, the following entry for the correction (along with this notice of clerical error); Re: Separate Statement 310 (twdb, ) (Entered: 03/04/2004)
312 MINUTES In Chambers; The hearing on pending discovery motions set for 3/9/04 is taken off calendar pursuant to the request of the parties. Following the filing of the revised trial scheduling order by District Judge Taylor, this court shall convene a discovery conference with the parties in order to set a schedule and framework for the completion of discovery before Judge Marc L. Goldman : Order by Judge Marc L. Goldman (twdb, ) (Entered: 03/05/2004)
313 MINUTES In Chambers; Status Conference. Court and counsel confer re: the status of this matter. The court will issue an order in regards to the setting of the case for pretrial, trial and other related issues; before Judge Gary L. Taylor : Court Reporter: Deborah Parker. (twdb, ) (Entered: 03/08/2004)
314 SCHEDULING ORDER, AND ORDER by Judge Gary L. Taylor for consolidation and review: Discovery cut−off 8/5/2004. Pretrial Conference set for 11/5/2004 01:30 PM. Trial month December 2004 exact date to be assigned at pretrial conference; CV75−3075 consolidated with SACV 01−981 GLT (MLGx) for purposes of the December 2004 trial hearing; (See document for furhter specifics)(mt, ) (Entered: 03/11/2004)
315 MINUTES In Chambers; Order setting Discovery Status/Scheduling Conference. Pursuant to the order entered by District Judge Gary L. Taylor on 3/11/04, the parties shall appear before Magistrate Judge Marc L. Goldman for a status/scheduling conference relating to the completion of discovery. The parties shall meet and confer prior to the conference for the purpose of attempting to reach an agreement as to the scope of additional discovery and a timetable for completing all discovery before the 8/5/04 cutoff date. In the absence of an agreement, the court will define the scope of discovery and set an appropriate schedule if deemed necessary at the time of the conference; before Judge Marc L. Goldman : Scheduling Conference set for 3/23/2004 09:30 AM (twdb, ) (Entered: 03/17/2004)
316 MINUTES In Chambers; preparation Status Conferences. By order of 3/11/04 the court sets December 2004 trial on remaining Pierce issues and simultaneous hearing to review existing Stewart orders, preceded by August and September 2004 briefing on designated topics. In order to prepare for the briefing and hearing on the matters, the court sets two additional conferences: On 3/29/04 at 11:00 the court will conduct a status conference to discuss, and answer any questions about, the scope of the December trial hearing and the briefing to precede it. On 7/26/04, at 11:00 a.m. the court will conduct a status conference with counsel to discuss counsels' preparation for the briefing to be filed shortly thereafter: Status Conference set for 3/29/2004 11:00 AM before Honorable Gary L. Taylor. Court Reporter: not present. (twdb, ) (Entered: 03/18/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 35 of 88

03/18/2004
03/29/2004 03/30/2004
04/05/2004 04/06/2004 04/06/2004 04/06/2004 04/12/2004 04/13/2004 04/14/2004 04/15/2004 04/19/2004

317 MINUTES In Chambers; Order rescheduling discovery status/scheduling conference. Per the request of counsel, the discovery status/scheduling conference currently set for hearing on Tuesday, 3/23/04 at 9:30 a.m. is rescheduled. The clerk is instructed to serve a copy of this minute order on all parties to this action: Scheduling Conference set for 3/30/2004 09:30 AM before Magistrate Judge Marc L. Goldman. (twdb, ) (Entered: 03/18/2004)
318 MINUTES In Chambers; Status Conference. Cause is called for hearing. Court and counsel discuss the status of this case and the future briefing. The court sets this matter for trial. Trial set for 11/30/2004 09:00 AM before Honorable Gary L. Taylor. Court Reporter: Deborah Parker. (twdb, ) (Entered: 03/30/2004)
319 MINUTES In Chambers; Discovery Status Conference. Pursuant to the Order of District Judge Taylor referring the management of discovery proceedings to Magistrate Judge Goldman, an on the record status conference was held this date. During the course of that conference, the following was ordered: 1) Plaintiffs shall file a supplemental brief, relating to the discovery of the names and addresses of a random selection of former prisoners for the purpose of interviewing them and preparing a statiscal survey for introduction at trial, on or before 4/6/04. Defendant shall file a supplemental brief on or before 4/13/04. The court shall take the matter under submission upon the filing of the supplemental briefs; before Judge Marc L. Goldman : Tape #: SA 04−09. (twdb, ) (Entered: 03/31/2004)
321 NOTICE OF MOTION AND MOTION for Leave to file a fifth amended complaint, memorandum, declaration of counsel, exhibits filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. Motion set for hearing on 4/26/2004 at 10:00 AM before Honorable Gary L. Taylor. Lodged 5th amended complaint. (dmjr, ) (Entered: 04/12/2004)
322 SUPPLEMENTAL POINTS AND AUTHORITIES REGARDING the discovery of names and addresses of pretrial detainees for purposes of interview and survey (twdb, ) (Entered: 04/13/2004)
323 DECLARATION of Mayling Kao in support of supplemental points and authorities regarding the access to pretrial detainees for interview and survey purposes 322 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 04/13/2004)
324 DECLARATION of Bryan Barnet Miller in support of supplemental points and authorities regarding the access to pre−trial detainees for interview and survey purposes 322 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 04/13/2004)
329 OPPOSITION to Plaintiffs' MOTION for Leave to File Fifth Amended Complaint 321 ; Memorandum of Points and Authorities and Declaration of Jason S Roberts in Support Thereof; Exhibits, filed by defendants Michael S Carona and County of Orange. (kks) (Entered: 04/23/2004)
326 Opposition to plaintiffs' SUPPLEMENTAL POINTS AND AUTHORITIES REGARDING the discovery of names and addresses of pretrial detainees for purposes of interview and survey 322 ; declaration of Jennifer L Prieto (mt, ) (Entered: 04/21/2004)
325 NOTICE OF ERRATA filed by Defendants Michael S Carona, County of Orange re defendants' opposition to plaintiffs' supplemental points and authorities regarding the discovery of names and addresses of pre−trial detainees for purposes of interview and survey 322 ; Declaration of Jorje Chica (twdb, ) (Entered: 04/21/2004)
328 NOTICE of change of attorney information filed by defendants Michael S Carona, County of Orange. From Franscell, Strickland, Roberts and Lawrence to Lynberg and Watkins. I am no longer counsel of record (S. Frank Harrell), please serve all subsequent documents on David D. Lawrence 500 North State College Boulevard (twdb, ) (Entered: 04/22/2004)
330 REPLY brief in support of MOTION for Leave 321 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 04/23/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 36 of 88

04/21/2004
04/21/2004 04/21/2004 04/21/2004 04/22/2004 04/22/2004 04/23/2004
04/23/2004 04/23/2004
04/27/2004 04/28/2004

327 MINUTES In Chambers; Order Granting plaintiffs' motion for leave to file a fifth amended complaint. The clerk is instructed to FILE plaintiffs' proposed Fifth Amended Complaint. All prior rulings in this case, including plaintiffs' voluntary dismissals of claims and parties, will apply to the fifth amended complaint. Given the late stage of the proceedings, the extensive discovery already undertaken, and plaintiffs' representation no additional discovery is needed, there is to be no further discovery by plaintiffs' on their new claims, including their ADA claim. Defendants may take reasonable discovery on plaintiffs' new claims, consistent with the existing discovery cut−off date. The existing trial date WILL NOT be continued. The 4/26/04 hearing on this matter is ordered off calendar; before Judge Gary L. Taylor : Motions terminated: 321 MOTION for Leave. Court Reporter: none present. (twdb, ) (Entered: 04/21/2004)
333 EX Ombuddsman's Memorandum to the court (twdb, ) (Entered: 04/29/2004)
PLACED IN FILE − NOT USED re Proposed fifth amended class action complaint for damages for violations of civil rights and for injuntive relief; demand for jury trial submitted by Plaintiffs (csb, ) (Entered: 04/29/2004)
375 FIFTH AMENDED COMPLAINT against defendants Michael S Carona, County of Orange, Does 1 − 200 ; Party DOES terminated amending Amended Complaint, 52 ; jury demand,filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (twdb, ) (Entered: 06/03/2004)
332 EX PARTE APPLICATION for Order Prohibiting Interference between plaintiffs' counsel and class members and Interference with witnesses; Request for status conference and briefing schedule filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 04/26/2004)
337 EX PARTE APPLICATION for Order Prohibiting Interference Between Plaintiffs' Counsel and Class Members and Interference With Witnesses; Request for Status Conference and Briefing Schedule, filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Max Sanders and Fermin Valenzuela. Lodged Proposed Order. (kks) (Entered: 05/04/2004)
331 ORDER Granting plaintiff's exparte application for order prohibiting interference between plaintiffs' counsel and class members and interference with witnesses; Request for status conference by Judge Marc L. Goldman. It is ordered that plaintiff's exparte application related to interviews by defendants of class members is GRANTED. It is ordered as follows: Defense counsel and their agents are prohibited from interviewing any inmate about any jail conditions prior to the inmate having full opportunity to meet with and speak to plaintiffs' counsel; and until further order of the court permitting such interviews is granted. A status conference to further disucss these issues and ensure compliance with this order is set for 5/4/04 at 10:00 a.m. in department 6A.(twdb, ) (Entered: 04/26/2004)
Status Conference set for 5/4/2004 10:00 AM before Magistrate Judge Marc L. Goldman. (twdb, ) (Entered: 04/26/2004)
334 MINUTES In Chambers; Order on plaintiffs' request to bring a motion to disqualify defense counsel. The court has received and considered plaintiffs' request to file motion to disqualify defense counsel and request for an expedited hearing on this motion. Plaintiffs may file such a motion as soon as they are able. Defendants' opposition, if any, is to be filed 5 court days after the motion is filed. Any reply by plaintiffs will be due 3 court days after the opposition is filed. After receiving all briefing, the court will advise the parties if oral arguments are necessary. The parties are to serve all papers personally or by fax or email; before Judge Gary L. Taylor : Court Reporter: none present. (twdb, ) (Entered: 04/30/2004)
335 EX PARTE APPLICATION for a brief Continuance of status conference re court ordered inmate interviews based on defense counsel's trial schedule; Memorandum of points and authorities and declaration of Jason S. Roberts in support thereof filed by defendants Michael S Carona, County of Orange. Lodged proposed order. (twdb, ) (Entered: 04/30/2004)
336 ORDER by Judge Marc L. Goldman, GRANTING defendants' EX PARTE APPLICATION to Continue of status conference re court ordered inmate interviews based on defense 335 : Motions terminated: 335 EX PARTE APPLICATION to

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 37 of 88

04/28/2004 04/28/2004
04/29/2004 04/29/2004 05/04/2004
05/05/2004
05/05/2004 05/06/2004 05/07/2004 05/07/2004 05/07/2004
05/07/2004 05/10/2004

Continue of status conference re court ordered inmate interviews based on defense filed by Michael S Carona, County of Orange. Status Conference set for 5/10/2004 01:00 PM before Magistrate Judge Marc L. Goldman.(twdb, ) (Entered: 04/30/2004)
338 AMENDED PROOF OF SERVICE filed by defendants Michael S Carona, County of Orange proposed order granting defendants' exparte application for a brief continuance of the status conference re: inmate interviews was served on 4/27/04. (twdb, ) (Entered: 05/05/2004)
339 AMENDED PROOF OF SERVICE filed by defendants Michael S Carona, County of Orange, defendants' ex parte application for a brief continuance of the status conference re court−ordered inmate interviews based on defense counsel's trial schedule; memorandum of points and authorities and declaration of Jason S. Roberts in support thereof was served on 4/27/04. (twdb, ) (Entered: 05/05/2004)
340 NOTICE of production of updated activity logs pursuant to the 3/30/04 court order filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 05/05/2004)
341 NOTICE of submission of declaration of Captain Timothy Board pursuant to the court's 3/30/04 order filed by defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 05/05/2004)
342 MINUTES In Chambers; Request for Clarification. The court has reviewed Mr. Herman's Memorandum to the court, filed 4/21/04, stating "I ask that the court transfer any functions that I might have. Clarification is requested concerning this statement: Is Mr. Herman requesting that he be relieved as one of the attorneys of record in this case? before Judge Gary L. Taylor : Court Reporter: none present. (twdb, ) (Entered: 05/06/2004)
343 NOTICE OF MOTION AND MOTION to Dismiss plaintiffs' Fifth Amended Complaint; Memorandum of points and authorities and declarations of Jason S. Roberts, Captain Timothy Board and Dennis Bunker in support thereof, filed by defendant County of Orange. Motion set for hearing on 6/7/2004 at 10:00 AM before Honorable Gary L. Taylor. (twdb, ) (Entered: 05/06/2004)
344 REQUEST FOR JUDICIAL NOTICE in support of MOTION to Dismiss plaintiffs' Fifth Amended Complaint 343 ; Memorandum of points and authorities in support thereof; Exhibits, filed by defendant County of Orange. (twdb, ) (Entered: 05/07/2004)
346 SUPPLEMENTAL BRIEF and evidence in support of exparte application for order re interviews of inmates; Supplemental declaration and exhibits in support thereof filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/11/2004)
345 NOTICE OF CHANGE OF HEARING DATE for defendant County of Orange's MOTION to Dismiss plaintiffs' Fifth Amended Complaint 343 filed by defendants Michael S Carona. (twdb, ) (Entered: 05/11/2004)
349 OBJECTIONS to unauthorized "supplemental Brief" in support of their previously determined exparte application ; Request for sanctions; Declaration of Jason S. Roberts in support thereon 346 filed by Defendant County of Orange. (twdb, ) (Entered: 05/13/2004)
REQUEST to Strike plaintiff's unauthorized "Supplemental Brief in support of their previously determined exparte application; Request for sanctions; Declaration of Jason S. Roberts in support thereof 346 filed by defendant County of Orange. Request set for hearing on 5/10/2004 at 01:00 PM before Magistrate Judge Marc L. Goldman. (twdb, ) (Entered: 05/13/2004)
350 OBJECTION to plaintiffs' application to file documents under seal and request to strike same; Memorandum of points and authorities filed by Defendant County of Orange. (twdb, ) (Entered: 05/13/2004)
348 ORDER RE: Application to file declarations Re: Attorney−Client privileged information and the work product doctrine under seal by Judge Marc L. Goldman. IT IS ORDERED THAT, the following documents be placed under seal, as they are essential to the preservation of the attorney−client privilege and the work product

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 38 of 88

05/11/2004 05/11/2004 05/11/2004
05/17/2004 05/17/2004 05/17/2004 05/17/2004 05/17/2004 05/18/2004 05/18/2004 05/19/2004 05/21/2004 05/21/2004 05/24/2004

doctrine. Declaration of Bryan Barnet Miller; Declaration of Detainee A; Declaration of Detainee B; Supplemental Declaration of Detainee B.(twdb, ) (Entered: 05/13/2004)
351 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following dates: 03/30/04, Court Reporter: Dorothy Babykin. (wdc, ) (Entered: 05/17/2004)
TRANSCRIPT filed for proceedings held on 03/30/04. Court Reporter: Dorothy Babykin. (wdc, ) (Entered: 05/17/2004)
352 EX PARTE APPLICATION to Modify a Portion of This Court'a May 10, 2004 Order Regarding Plaintiff's ADA Discovery Based on Prior Order of District Judge; Memorandum of Points and Authorities and Declaration of David D Lawrence and Jason S Roberts in Support Thereof filed by defendant County of Orange. Lodged Proposed Order. (kks) (Entered: 05/17/2004)
353 MINUTES OF ORDER RESCHEDULING DISCOVERY STATUS CONFERENCE by Judge Marc L. Goldman. Discovery status conference set for 6/7/04 at 11:00 a.m. is rescheduled to 6/11/04 at 11:00 a.m. Court Reporter: None present. (esa, ) (Entered: 05/18/2004)
356 REQUEST For Ombudsman Clarification Memorandum filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/21/2004)
357 OPPOSITION to defendants' EX PARTE APPLICATION to Modify a portion of this court's 5/10/04 order 352 ; Supplemental Declaration of Virginia Keeny and Exhibits in support thereof filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/21/2004)
358 FURTHER BRIEFING in support of exparte application for Order re interviews of inmates FILED filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/21/2004)
359 Memorandum of points and authorities pursuant to Magistrate Judge Marc L. Goldman's 5/10/04 Order 348 (twdb, ) (Entered: 05/21/2004)
354 MINUTES REGARDIING REPLY TO PLAINTIFFS COUNSEL by Judge Gary L. Taylor : There is no present assignment to counsel of any ombudsman duties. (see document for additional details). Court Reporter: None Present. (esa, ) (Entered: 05/19/2004)
355 MINUTES OF (In Chambers) Conference held before Judge Marc L. Goldman; Order by Judge Marc L. Goldman: defendants EX PARTE APPLICATION to Amend/Correct 352 is DENIED (see document for details) Court Reporter: none. (ln, ) (Entered: 05/19/2004)
PLACED IN FILE − NOT USED re [Proposed] Order Granting Defendants Ex Parte Application to Modify or Rescind Courts 05/10/04 Order Regarding ADA Discovery Based on Prior Order of District Judge submitted by defendant County of Orange; lodged 05/11/04 (ln, ) (Entered: 05/19/2004)
360 EX PARTE APPLICATION for Order Precluding plaintiffs' inmate interviews pending resolution of the attorney'client relationship issue; Memorandum of points and authorities; Declaration of Sergeant Michael Miller and Christina M. Sprenger filed by defendant County of Orange. Lodged Proposed order. (twdb, ) (Entered: 05/25/2004)
361 EX PARTE APPLICATION for Order Rescinding May 10 Order Limiting Dissemination of declarations filed under seal; Memorandum of points and authorities; Declaration of David D. Lawrence filed by defendant County of Orange. Lodged Proposed order. (twdb, ) (Entered: 05/25/2004)
362 MINUTES In Chambers; RE: Defendants' exparte motion to preclude pending inmate interviews by plaintiffs pending resolution of attorney client relationship issue, filed 5/21/04. Defendants' exparte motion is DENIED. The court finds that plaintiffs' counsel has the right to interview inmate witnesses without interference from defendants. The court further finds that plaintiffs' counsel have made a prima facie showing that they have at least a limited attorney client relationship with the members of the certified class, which includes all current inmates in the Orange County jail.

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 39 of 88

05/24/2004
05/24/2004 05/24/2004 05/24/2004 05/24/2004 05/26/2004
05/27/2004 05/27/2004 05/27/2004

Moreover, the court finds that there has been no legitimate demonstration of irreparable harm to defendants or possibility of overreaching by plaintiffs' counsel. In the event that the court finds that there is no attorney client relationship between the inmate class members and counsel, any supposed prejudice to defendants can be cured through opening the interview process to defendants, in an orderly and fair fashion. Otherwise, depositions may be scheduled of those inmates whom plaintiffs intend to call as witnesses at trial. The matter will be resolved with finality at the hearing scheduled for 6/11/04; before Magistrate Judge Marc L. Goldman : Order by Magistrate Judge Marc L. Goldman denying EX PARTE APPLICATION for Order 360 (twdb, ) Modified on 5/25/2004 (twdb, ). (Entered: 05/25/2004)
363 MINUTES In Chambers; Defendants' exparte motion to rescind order of 5/10/04 regarding dissemination of declarations, filed 5/21/04. Defendants' exparte motion is DENIED. The court finds that the potential harm arising from rescission of the order outweighs any benefit that defendants may obtain from rescission. The claim that defendants will suffer irreparable harm should the declarations be made public is frivolous as is the claim that the order interferes with the attorney client relationship between defendants and their counsel. Equally frivolous are the claims that the order unduly interferes with the administration of the jail or the defendant's due process rights, given the protestations of defense counsel, after consultation with representatives of defendants, that the misconduct alleged, which was fully described at the 5/10/04 hearing, never took place. There is no good basis for rescinding this order, particularly in an exparte proceeding. Plaintiffs shall be required to inform the court at the hearing scheduled on 6/11/04 whether they wish to pursue the allegations of misconduct by jail officials described in the declarations. If they intend to pursue those allegations, the issue of disclosure of the declarations will be addressed at that time; before Judge Marc L. Goldman : Order by Judge Marc L. Goldman denying EX PARTE APPLICATION for Order 361 (twdb, ) (Entered: 05/25/2004)
364 REQUEST FOR JUDICIAL NOTICE in opposition to MOTION to Dismiss plaintiffs' Fifth Amended Complaint 343 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/26/2004)
365 OPPOSITION to defendants EX PARTE APPLICATION for Order 361 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/26/2004)
366 OPPOSITION to EX PARTE APPLICATION for Order 360 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/26/2004)
367 OPPOSITION to MOTION to Dismiss plaintiffs' Fifth Amended Complaint 343 ; Declarations and exhibits in support thereof filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 05/26/2004)
368 JUDGMENT as to defendant Carona by Judge Gary L. Taylor. It Is Ordered, there being no just reason for delay of entry of judgment in favor of Sheriff Carona since the claims against him are sufficiently distinct and severable from those against the remaining defendants in this action and that said judgment in favor of Sheriff Carona should be entered forthwith; and plaintiffs shall take nothing against Sheriff Carona and that the entire action against him shall be dismissed on the merits.(twdb, ) (Entered: 05/27/2004)
369 REQUEST for Clarification of 5/24/04 minute order; declaration of David D. Lawrence filed by defendant County of Orange. (twdb, ) (Entered: 05/28/2004)
372 MINUTES In Chambers; Denial of exparte application for stay. The court has received and considered defendants' exparte application to stay the Magistrate Judge's 5/12/04 discovery order. The application is DENIED before Judge Gary L. Taylor : Court Reporter: none present. (twdb, ) (Entered: 06/02/2004)
373 EX PARTE APPLICATION to Stay enforcement of the Magistrate's verbal 5/12/04 discovery order pending the Magistrate's ruling on attorney client relationship issue; Memorandum of points and authorities; Declaration of Christina Sprenger in support thereof filed by defendant County of Orange. Lodged Proposed order. (twdb, ) (Entered: 06/02/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 40 of 88

05/28/2004 05/28/2004
05/28/2004 05/28/2004 06/04/2004 06/08/2004 06/10/2004 06/14/2004 06/14/2004 06/16/2004

370 MINUTES In Chambers; Defendants' request for clarification of 5/24/04 Order, filed 5/27/04. Defendants request for clarification of the order filed 5/24/04 is DENIED. The court has reviewed the order and defendants' request and concludes that the order does not require clarification 369 ; before Judge Marc L. Goldman (twdb, ) (Entered: 05/28/2004)
371 MINUTES In Chambers; re: Contact Visitation and Interviewing by Thomas J. Goldstein. Defendants have filed an objection to plaintiffs' employment of Thomas J. Goldstein to assist in conducting the court ordered prisoner interviews at the Orange County Jail. More specifically, defendants have requested that the court impose restrictions on Mr. Goldstein's access to the jail and the interviewees which will not be imposed upon other interviewers. Accordingly, it is ORDERED that Thomas J. Goldstein be permitted to participate in the court ordered jail interviews under the same terms and conditions as all other interviewers and in accordance with the procedures established and orders entered by the court; before Judge Marc L. Goldman : (twdb, ) (Entered: 05/28/2004)
PLACED IN FILE − NOT USED re order granting defendant's exparte application for an order staying enforcement of the Magistrate's verbal 5/12/04 discovery order pending the Magistrate's ruling on attorney client relationship issue submitted by defendant County of Orange. (twdb, ) (Entered: 06/02/2004)
374 REPLY to plaintiffs' opposition to MOTION to Dismiss plaintiffs' Fifth Amended Complaint 343 ; Memorandum of points and authorities filed by defendant County of Orange. (twdb, ) (Entered: 06/02/2004)
376 ORDER on defendant's motion to dismiss the fifth amended complaint by Judge Gary L. Taylor : Defendant Orange County's motion to dismiss the fifth amended complaint is DENIED 343 . The 6/7/04 hearing is ordered off calendar. (twdb, ) (Entered: 06/07/2004)
377 MINUTES In Chambers; Order rescheduling discovery status conference. On the court's own motion, the discovery status conference set for hearing on Friday, 6/11/04 at 10:00 a.m. is hereby rescheduled. The clerk is instructed to serve a copy of this minute order on all parties to this action. Status Conference set for 6/15/2004 10:00 AM before Magistrate Judge Marc L. Goldman. (twdb, ) (Entered: 06/09/2004)
379 EX PARTE APPLICATION for Protective Order, and REQUEST for Sanctions; Memorandum of points and authorities; Declaration of David D. Lawrence and exhibits filed by defendant County of Orange. Lodged Proposed order. (twdb, ) (Entered: 06/15/2004)
378 JOINT STIPULATION AND ORDER to continue status conference before Magistrate Goldman: Status Conference set for 6/16/2004 02:00 PM before Magistrate Judge Marc L. Goldman.(twdb, ) (Entered: 06/15/2004)
380 OPPOSITION to EX PARTE APPLICATION for Protective Order and REQUEST for Sanctions 379 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 06/16/2004)
381 MINUTES In Chambers; Discovery Status Conference. A discovery status conference was held this date. Plaintiffs have agreed to withdraw their request for a hearing and sanctions based upon the alleged misconduct of jail officials during the course of witness interviews by plaintiff's representatives. The parties have agreed to meet and confer in an attempt to identify with specificity the witnesses who will be testifying at trial so that their depositions may be taken. The court offered the parties a proposed compromise on the use and production of witness statements taken by defendants with court authorization, but which may have violated the attorney−client privilege. The parties shall notify the court of their acceptance or rejection of that compromise, or any other agreement they might have reached independently on the issue, on or before 6/22/04. If the parties do not reach an agreement on the two identified issues, the court will resolve those issues at the discovery status conference scheduled for 6/28/04 at 2:30 p.m.; before Judge Marc L. Goldman : Status Conference set for 6/28/2004 02:30 PM before Magistrate Judge Marc L. Goldman. Tape #: SA04−18. (twdb, ) (Entered: 06/18/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 41 of 88

06/21/2004 06/24/2004
06/25/2004
06/25/2004 06/28/2004
07/09/2004 07/09/2004 07/09/2004 07/09/2004 07/20/2004 07/29/2004 07/30/2004 08/02/2004

382 ANSWER to Fifth Amended Complaint, 375 filed by defendant County of Orange.(twdb, ) (Entered: 06/23/2004)
384 EX PARTE APPLICATION for Leave to have prior unresolved discovery matter heard at the status conference on 6/28, filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. Ex Parte Application set for hearing on 6/28/2004 before Magistrate Judge Marc L. Goldman. Lodged Proposed order. (twdb, ) (Entered: 06/29/2004)
385 MINUTES In Chambers re: Plaintiff's exparte motion for hearing on Unresolved Discovery Matter. Plaintiff's ex parte motion for an expedited hearing on unresolved discovery matters relating their ADA claim is DENIED. The parties are directed to meet and confer in an attempt to resolve the outstanding discovery issues relating to this motion no later than 6/30/04. If resolution of the dispute is not reached, a joint stipulation limited to 26 pages shall be held on 7/13/04 at 1:00 p.m. The parties are not permitted to append to the joint stipulation or any declaration in support thereof any document or pleading which has previously been filed in the matter; before Judge Marc L. Goldman : Order by Judge Marc L. Goldman denying EX PARTE APPLICATION for Leave 384 (twdb, ) (Entered: 06/29/2004)
386 OPPOSITION to plaintiffs' EX PARTE APPLICATION for Leave 384 filed by defendant County of Orange. (twdb, ) (Entered: 07/06/2004)
383 MINUTES In Court Hearing: Discovery Status Conference. A discovery status conference was held this date. The parties shall strive to start the deposition of witnesses no later than 7/6/04. If the prisoner witness lists have not been finalized by that date, the parties shall begin with the depositions of the non−prisoner witnesses; before Judge Marc L. Goldman : Tape #: SA04−19. (twdb, ) (Entered: 06/29/2004)
PLACED IN FILE − NOT USED re Proposed Order Granting Defendants Ex Part Application for an Order Rescinding 5/10 Order Limiting Dissemination of Declaration filed under Seal submitted by defendant County of Orange. (esa, ) (Entered: 07/19/2004)
PLACED IN FILE − NOT USED re Proposed Order Granting Defendants Ex Parte Application for an Order Precluding Plaintiffs Inmate Interviews Pending Resolutions of the Attorney Client Relationship submitted by defendant County of Orange. (esa, ) (Entered: 07/19/2004)
PLACED IN FILE − NOT USED re Proposed Order Setting Discovery Matter to be Heard at the Status Conference on 6/28 submitted by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Max Sanders, Fermin Valenzuela. (esa, ) (Entered: 07/19/2004)
PLACED IN FILE − NOT USED re Proposed Protective Order Re Plaintiffs Disclosure of Witness submitted by defendant County of Orange. (esa, ) (Entered: 07/19/2004)
387 JOINT STIPULATION RE PLAINTIFFS MOTION to Compel Further Responses to Plaintiff Tim Conns Third Request for Production of Documents (esa, ) (Entered: 07/22/2004)
388 EX PARTE APPLICATION for entry forInspection of the Orange County Jail filed by plaintiffs. Lodged order. (dmjr, ) (Entered: 08/03/2004)
389 OPPOSITION to EX PARTE APPLICATION for Inspection 388 filed by defendant County of Orange. (twdb, ) (Entered: 08/03/2004)
390 MINUTES In Chambers; Exparte application for entry on land for inspection, filed 7/29/04. Plaintiffs' exparte motion is DENIED. Plaintiffs has failed to demonstrate that they are entitled to invoke the extraordinary means of an exparte proceeding to obtain the relief sought. The court is of the opinion that a limited pre−trial inspection of the jails may be warranted. A hearing on the application for inspection shall be held on 8/17/04 at 10:00 a.m. Plaintiff may file a reply to defendant's 7/30/04 opposition, addressing the concerns articulated therein, on or before 8/10/04. The reply is limited to 7 pages : Order by Judge Marc L. Goldman denying EX PARTE APPLICATION for Inspection 388 (twdb, ) (Entered: 08/03/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 42 of 88

08/02/2004 08/04/2004
08/05/2004 08/05/2004 08/05/2004 08/06/2004 08/09/2004 08/09/2004 08/12/2004 08/13/2004 08/13/2004 08/16/2004 08/16/2004 08/17/2004 08/17/2004

391 PROOF OF SERVICE filed by defendants Michael S Carona, County of Orange RE facsimile service of defendant's opposition to plaintiffs' exparte application for entry upon land for inspection of the Orange County Jails was served on 7/30/04. (twdb, ) (Entered: 08/04/2004)
392 STIPULATION AND ORDER RE depositions of Richard Herman, Medical Personnel, PMK's and expert witnesses by Judge Marc L. Goldman : The parties shall complete the depositions of Mr. Herman and all medical, PMK, and expert witnesses between 8/5/04 and 9/30/04. The parties shall disclose all expert reports on or before 9/1/04. All joint discovery stipulations regarding the depositions of Mr. Herman, medical personnel, PMK's or experts shall be submitted to the court no later than 10/15/04. Other than as set forth above, nothing in this order affects the discovery cutoff, pretrial conference date or trial date.(twdb, ) (Entered: 08/05/2004)
394 SUBMISSION RE STATUS OF CURRENT COURT ORDERS IN Stewart V. Gates filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fermin Valenzuela. (twdb, ) (Entered: 08/09/2004)
395 BRIEFING of developments in constitutional law since Stewart Order pursuant to 3/11/04 Order, FILED filed by defendant County of Orange. (twdb, ) (Entered: 08/10/2004)
396 DECLARATIONS of David D. Lawrence, Sergeant Richard Himmel and exhibits in support of defendant's Briefing of developments in constitutional law since Stewart Order, pursuant to 3/11/04 Order 395 filed by Defendant County of Orange. (twdb, ) (Entered: 08/10/2004)
397 NOTICE OF FILING ORIGINAL SIGNATURE PAGE for declaration of Sergeant Richard Himmel in support of defendant's Briefing (non−appeal) 395 , filed by Defendant County of Orange. (twdb, ) (Entered: 08/10/2004)
393 STIPULATION AND ORDER Re Submission of Briefs in Excess of the page limit by Judge Gary L. Taylor : Good Cause Shown, this court hereby extends the page limit of 40 pages each for the briefs addressing the current state of the law relating to operative Stewart V. Gates orders.(twdb, ) (Entered: 08/09/2004)
398 REPLY in support of EX PARTE APPLICATION for Inspection 388 ; Declaration of Virginia Keeny in support thereof filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 08/11/2004)
399 SUPPLEMENTAL BRIEFING in opposition to plaintiffs' request for production of, and entry upon, land for Inspection of the Orange County Jails 388 filed by defendant County of Orange. (twdb, ) (Entered: 08/17/2004)
400 NOTICE OF MOTION AND MOTION to Compel certain of plaintiffs' responses to interrogatories and requests for production of documents filed by defendants Michael S Carona, County of Orange. Motion set for hearing on 9/14/2004 at 10:00 AM before Magistrate Judge Marc L. Goldman. (twdb, ) (Entered: 08/18/2004)
401 DECLARATION of Christina M. Sprenger re inability to file joint discovery stipulation filed by Defendants Michael S Carona, County of Orange. (twdb, ) (Entered: 08/18/2004)
402 NOTICE of plaintiffs portion of the joint discovery stipulation which defendants refuse to submit filed by plaintiffs (dmjr, ) (Entered: 08/18/2004)
403 OBJECTIONS, request to strike and request for sanctions to Response in Opposition to Motion 389 filed by Plaintiffs Fred Pierce, Max Sanders, Timothy Lee Conn, Fermin Valenzuela, Laurie D Ellerston, Jonathan Nelson, Adam Ramirez −. (dmjr, ) (Entered: 08/18/2004)
404 NOTICE OF CHANGE OF HEARING DATE re defendant's motion to compel certain of plaintiffs' responses to interrogatories and requests for production of documents 400 filed by defendant County of Orange. (twdb, ) (Entered: 08/18/2004)
405 MINUTES In Court; Hearing on plaintiffs' exparte application for inspection of jails filed 7/29/04 (doc #388); Plaintiffs' motion to compel further responses filed 7/20/04 (doc#387); Defendants' motion to compel filed 8/13/04 (doc #400); Plaintiffs' objections, request to strike etc filed 8/16/04 (doc #403); before Judge Marc L.

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 43 of 88

08/19/2004 08/20/2004 08/23/2004 08/23/2004 08/30/2004 09/03/2004 09/03/2004 09/13/2004 09/14/2004
09/15/2004
09/15/2004 09/16/2004
09/16/2004
09/16/2004

Goldman : For the reasons stated on the record at the hearing held this date: Plaintiffs motion for further responses, filed 7/20/04 is GRANTED in accordance with the parties agreement placed upon the record in open court. Plaintiffs' exparte application for inspection of the jails prior to trial is GRANTED. The inspection shall take place at a mutually convenient time, within the next 14 days, and shall be conducted in conformity with Attorney Miller's representations at the hearing. Plaintiffs' request to strike (objections) filed 8/16/004 is DISMISSED as moot. Defentdants' motion to compel filed 8/13/04 is DENIED as the interrogatories are confusing, ambiguous and not likely to lead to the discovery of admissible evidence. As such, the hearing scheduled to be heard on 9/14/04, regarding defendant's motion to compel is taken OFF CALENDAR. Order by Judge Marc L. Goldman granting MOTION to Compel 400 , EX PARTE APPLICATION for Inspection 388 Tape #: SA04−23. (twdb, ) (Entered: 08/19/2004)
PLACED IN FILE − NOT USED re order re request to strike submitted by plaintiffs (dmjr, ) (Entered: 08/20/2004)
406 PLAINTIFFS' SUPPLEMENTAL SUBMISSION RE STATUS OF CURRENT COURT ORDERS IN STEWART V. GATES (twdb, ) (Entered: 08/23/2004)
RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following date: 01/27/04, Court Reporter: Dorothy Babykin. (wdc, ) (Entered: 08/30/2004)
407 TRANSCRIPT filed for proceedings held on 01/27/04. Court Reporter: Dorothy Babykin. (wdc, ) (Entered: 08/30/2004)
408 NOTICE OF CLERICAL ERROR Re: Receipt of Reporters Transcript (G−80). Document control number was not issued to the document filed 08/23/04. (wdc, ) (Entered: 08/30/2004)
409 REPLY BRIEF pursuant to 3/11/04 Order requesting current operative records in Stewart v Gates filed by defendant County of Orange. (esa, ) (Entered: 09/09/2004)
410 BRIEFING OF DEVELOPMENTS IN CONSTITUTIONAL LAW since Stewart Order pursuant to 3/11/04 Order; Declaration and Exhibits in support thereof filed by plaintiffs (esa, ) (Entered: 09/09/2004)
413 STIPULATED BRIEFING SCHEDULE REGARDING Defendants Motion for Summary Judgment; Lodged proposed order. (esa, ) (Entered: 09/20/2004)
414 Notice of Firm Name and Address Change: New name and address for Litt and Associates: Litt Estuar Harrison Miller and Kitson, 3435 Wilshire Boulevard, 27th Floor, Los Angeles, CA 90010, Telephone: 213−386−3114 (esa, ) (Entered: 09/21/2004)
411 ORDER, CORRECTION OF ERRATA by Judge Gary L. Taylor: It is ordered that the Briefing Schedule for defendants motion for summary judgment shall be as follows: Defendants moving brief: 9/15/04; Plaintiffs opposing brief: 9/29/04; Defendants reply brief: 10/12/04; Motion hearing date: 10/25/04; Other scheduled dates are not changed.(esa, ) (Entered: 09/16/2004)
PLACED IN FILE − NOT USED re [Proposed] Order; lodged 09/13/04 (ln, ) (Entered: 09/21/2004)
412 STIPULATION RE SUBMISSION OF BRIEFS IN EXCESS OF THE PAGE LIMIT; ORDER THEREON by Judge Gary L. Taylor : This Court hereby extends the page limit to 35 pages each for the moving and opposing briefs submitted by the parties on Defendants Motion for Summary Judgment. (esa, ) (Entered: 09/16/2004)
415 NOTICE OF MOTION AND MOTION for Summary Judgment or, in the alternative, Summary Adjudication; Memorandum of Points and Authorities filed by defendant County of Orange; Motion set for hearing on 10/25/2004 at 10:00 AM before Honorable Gary L. Taylor; Lodged proposed order and statement of uncontroverted facts and conclusions of law. (esa, ) (Entered: 09/22/2004)
416 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Adjudication, MOTION for Summary Judgment 415 ; Declaration of Christina M Sprenger with Exhibits filed by defendant County of Orange. (esa, ) Modified on 9/22/2004 (esa, ).

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 44 of 88

09/16/2004 09/16/2004
09/29/2004 09/29/2004 09/29/2004
09/29/2004 09/29/2004 09/29/2004 09/29/2004 09/29/2004 09/29/2004 09/29/2004 09/29/2004 09/30/2004
10/08/2004 10/12/2004
10/12/2004
10/12/2004

(Entered: 09/22/2004)
417 NOTICE of Lodging of Condensed Copies of Deposition Transcripts in support of Motion for Summary Judgment/Adjudication filed by defendant County of Orange. (esa, ) (Entered: 09/22/2004)
418 DECLARATION of Peter A Morrison, Ron Bihner, Sergeant Richard Himmel, Linda M McCown, David D Lawrence and Exhibits in support of MOTION for Summary Adjudication/Judgment 415 filed by defendant County of Orange. (esa, ) (Entered: 09/22/2004)
419 OPPOSITION TO SEPARATE STATEMENT re MOTION for Summary Judgment/Summary Adjudication 415 filed by plaintiffs. (mt, ) (Entered: 10/05/2004)
420 OPPOSITION to County of Orange's MOTION for Summary Judgment/Summary Adjudication 415 filed by plaintiffs. (mt, ) (Entered: 10/05/2004)
421 OPPOSITION to defendants' MOTION for Summary Judgment 415 evidentiary objections to the declarations of Peter A Morrison, Ron Bihner, Sgt Richard Himmel, Linda M McCown, and David Lawrence filed by plaintiffs. (mt, ) Modified on 10/5/2004 (mt, ). (Entered: 10/05/2004)
422 NOTICE OF LODGING OF DEPOSITION TRANSCRIPT filed by plaintiffs. (mt, ) (Entered: 10/05/2004)
423 NOTICE OF LODGING OF NON−PAPER Physical Exhibits: Orange County Jail, Women's Central Jail Chow Hall Videotapes filed by plaintiffs. (mt, ) (Entered: 10/05/2004)
424 NOTICE OF LODGING OF NON−PAPER Physical Exhibits: Orange County Jail, Men's Central Jail Chow Hall Videotapes filed by plaintiffs. (mt, ) (Entered: 10/05/2004)
425 EVIDENCE IN OPPOSITION TO MOTION for Summary Judgment/Adjudication 415 Volume 1 of 5 filed by plaintiffs (mt, ) (Entered: 10/05/2004)
426 EVIDENCE IN OPPOSITION TO MOTION for Summary Judgment/Adjudication 415 Volume 2 of 5 filed by plaintiffs(mt, ) (Entered: 10/05/2004)
427 EVIDENCE IN OPPOSITION TO MOTION for Summary Judgment/Adjudication 415 Volume 3 of 5 filed by plaintiffs (mt, ) (Entered: 10/05/2004)
428 EVIDENCE IN OPPOSITION TO MOTION for Summary Judgment/Adjudication 415 Volume 4 of 5 filed by plaintiffs(mt, ) (Entered: 10/05/2004)
429 EVIDENCE IN OPPOSITION TO MOTION for Summary Judgment/Adjudication 415 Volume 5 of 5 filed by plaintiffs. (mt, ) (Entered: 10/05/2004)
430 PROOF OF SERVICE filed by defendant County of Orange on 9/15/04 of defendant's notice of motion and motion for summary judgment or in the alternative summary adjudication; memorandum of points and authorities; (see document for further details). (mt, ) (Entered: 10/08/2004)
431 MINUTES OF (In Chambers) Conference held before Judge Gary L. Taylor: due to unavailability of Court, Final Pretrial Conference is advanced to 11/2/2004 01:30 PM;Court Reporter: not present. (ln, ) (Entered: 10/08/2004)
435 DECLARATIONS of Peter A Morrison, Sergeant Richard Himmel and David D Lawrence and Exhibits in Support of Defendant's Reply to Plaintiffs' Opposition to Defendant's Motion for Summary Judgment/Adjudication 415 filed by defendant County of Orange. (kks ) (Entered: 10/22/2004)
436 NOTICE of Lodging of Condensed Copy of Deposition Transcript in Support of Defendant's Reply to Plaintiffs' Opposition to County of Orange's Motion for Summary Judgment/Adjudication filed by defendant County of Orange. (kks ) (Entered: 10/22/2004)
437 OBJECTIONS and Request to Strike Pourat Declaration and Survey Evidence filed by Defendant County of Orange. (kks ) (Entered: 10/22/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 45 of 88

10/12/2004 10/15/2004
10/15/2004 10/15/2004 10/18/2004
10/18/2004
10/18/2004
10/18/2004 10/18/2004 10/20/2004 10/20/2004 10/25/2004 10/25/2004
10/25/2004
10/28/2004
10/28/2004 10/28/2004

438 REPLY to Plaintiffs' Opposition to County of Orange's MOTION for Summary Judgment/Adjudication 415 filed by defendant County of Orange. (kks ) (Entered: 10/22/2004)
432 STIPULATION RE DEPOSITIONS OF RICHARD HERMAN, ESQ., AND DR. PALMER; ORDER THEREON by Judge Gary L. Taylor : The parties will complete the depositions of Mr. Herman and Dr. Palmer by 11/6/04; any Joint Discovery Stipulations regarding the depositions of Mr. Herman or Dr. Palmer shall be submitted to the Court no later than 11/15/04.(esa, ) (Entered: 10/18/2004)
439 Witness List filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela.. (pj, ) (Entered: 10/22/2004)
440 SUPPLEMENTAL OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFFS IN OPPOSITION TO DEFENDANT re MOTION for Summary Judgment 415 filed by defendant County of Orange. (pj, ) (Entered: 10/22/2004)
433 STIPULATION AND ORDER by Judge Gary L. Taylor :hearing on summary judgment motion reset to 11/1/04 10am, trial briefs filed one week after motion ruling, Proposed Pretrial Order due by 10/25/2004. Pretrial Conference set for 11/3/2004 10:00 AM before Honorable Gary L. Taylor.(dmjr, ) (Entered: 10/18/2004)
Set/Reset Deadlines as to 415 MOTION for Summary Adjudication MOTION for Summary Judgment MOTION for Summary Judgment. Motion set for hearing on 11/1/2004 at 10:00 AM before Honorable Recovery Case Unassigned. (dmjr, ) (Entered: 10/18/2004)
434 NOTICE AND REQUEST of Settlement Procedure Selection (Sp2) filed; Parties request to appear before an attorney selected by the Attorney Settlement Officer Panel or appointed by the Judge for Settlement Proceedings; Settlement procedure selection request granted By Order of Gary L. Taylor (esa, ) (Entered: 10/19/2004)
441 Witness List filed by defendant County of Orange. (mt, ) (Entered: 10/25/2004)
442 MEMORANDUM of CONTENTIONS of FACT and LAW filed by defendant County of Orange. (mt, ) (Entered: 10/25/2004)
443 JOINT Exhibit List. (dmjr, ) (Entered: 10/25/2004)
444 NOTICE regarding the use of the residual exception under FRE 807 to admit survey evidence filed by plaintiffs (dmjr, ) (Entered: 10/25/2004)
445 OPPOSITION to Defendants Objections − non−motion 437 and Motion to Strike Pourat Declaration and Survey Evidence; filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (ln, ) (Entered: 10/28/2004)
446 DECLARATION of Bryan Barnet Miller, Ben Stormer, Mayling Kao, Virginia Keeny, Nadereh Pourat, PHD, re Objections − non−motion 437 ; Exhibits in Opposition to Defendants Opposition to Defendants Objection and Motion to Strike; filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (ln, ) (Entered: 10/28/2004)
447 EVIDENTIARY OBJECTIONS to the Declaration of Peter A Morrison Provided in Defendants Reply Brief as Being Misleading and Incomplete Under FRCP 403, re Declaration(Motion related) 435 , MOTION for Summary Adjudication, for Summary Judgment 415 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (ln, ) (Entered: 10/28/2004)
448 OPPOSITION TO DEFENDANTS OBJECTION AND MOTION TO STRIKE FILING ORIGINAL DECLARATION BRYAN MILLER, BEN STORMER, VIRGINIA KEENY AND NADEREH POURAT 415 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston. (pj, ) (Entered: 11/01/2004)
449 JOINT TRIAL EXHIBITS FILING OF ORIGINAL SIGNATURE PAGE OF CHRISTINA SPRENGER 443 , filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston. (pj, ) (Entered: 11/01/2004)
450 OBJECTIONS AND REQUEST TO STRIKE unauthorized evidence submitted by plaintiffs in response to defendant reply to plaintiff opposition to MOTION for

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 46 of 88

10/28/2004 11/01/2004
11/02/2004
11/03/2004 11/03/2004 11/03/2004 11/03/2004 11/03/2004 11/03/2004 11/03/2004 11/03/2004
11/04/2004 11/04/2004 11/04/2004 11/05/2004 11/05/2004

summary Judgment 415 filed by defendant County of Orange. (pj, ) (Entered: 11/01/2004)
451 NOTICE OF ERRATA filed by Defendant County of Orange. correcting Motion Related Document 450 (pj, ) (Entered: 11/01/2004)
453 MINUTES OF Motion Hearing held before Judge Gary L. Taylor; Order by Judge Gary L. Taylor: Court and counsel discuss tentative ruling, copy attached; defendant County of Oranges MOTION for Summary Adjudication, for Summary Judgment 415 is argued and taken under submission; Court Reporter: Deborah Parker. (ln, ) (Entered: 11/05/2004)
452 ORDER by Judge Gary L. Taylor : Defendant's motion for summary judgment based on mootness is granted, except declaratory relief is available to Plaintiffs. Defendant's motion for summary judgment on Plaintiffs' first, second, third, sixth, and tenth claims is granted in part. Defendant's motion for summary judgment on Plaintiffs' fourth and fifth claims is granted. Defendant's motion for summary judgment on Plaintiffs' seventh, eighth, and ninth claims is denied. Defendant's motion for summary judgment on Plaintiffs' eleventh claim is granted. 415 (esa, ) (Entered: 11/03/2004)
454 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Fermin Valenzuela to testify on 11/30/2004 at 9:00am before Judge Gary Taylor . Approved by Gary L Taylor.(pj, ) . (Entered: 11/10/2004)
455 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Timothy Lee Conn to testify on November 30, 2004 at 9:00 AM Judge Gary L Taylor. Approved by Judge Gary L. Taylor. Writ Hearing set for 11/30/2004 09:00 AM before Honorable Gary L. Taylor.(pj, ) (Entered: 11/10/2004)
456 PRETRIAL CONFERENCE ORDER approved by Judge Gary L. Taylor. (pj, ) (Entered: 11/10/2004)
457 CONTENTIONS of FACT and LAW filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela.. (pj, ) (Entered: 11/10/2004)
458 SEPARATE STATEMENT OF UNCONTROVERTED FACTS and CONCLUSIONS OF LAW filed by defendant County of Orange.. (pj, ) (Entered: 11/10/2004)
WRIT OF HABEAS CORPUS AD TESTIFICANDUM issued re Timothy Lee Conn (mt, ) Modified on 11/18/2004 (mt, ). (Entered: 11/18/2004)
WRIT OF HABEAS CORPUS AD TESTIFICANDUM issued re Fermin Valenzuela (mt, ) (Entered: 11/18/2004)
483 MINUTES OF Pretrial Conference held before Judge Gary L. Taylor : The Court allocates 6 days for the trial, with the time divided equally. All motions in limine shall be filed and personally served, faxed, or emailed by the close of business on or before 11/12/04. All oppositions shall be filed and personally served, faxed or emailed by the close of business on or before 11/19/04, whereupon the motions stand submitted. All witness statements (subject to cross−exmaination at time of trial), the trial brief, amended witness and exhibits lists shall be filed with the Court and personally served, faxed or emailed by the close of business on or before 11/23/04. Court Reporter: Deborah Parker. (esa, ) (Entered: 11/24/2004)
PLACED IN FILE − NOT USED re judgment proposed submitted by defendant County of Orange. (pj, ) (Entered: 11/10/2004)
PLACED IN FILE − NOT USED proposed judgment by defendant County of Orange. (pj, ) (Entered: 11/10/2004)
PLACED IN FILE − NOT USED re proposed order defendants objections to plaintiffs evidence submitted by defendant County of Orange. (pj, ) (Entered: 11/10/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re defendants objections to plaintiffs late evidence submitted in violation of LR 7−10 submitted by defendant County of Orange. Lodged 10/28/04 (mg, ) (Entered: 11/12/2004)
459 NOTICE OF ERRATA filed by Plaintiffs correcting plaintiffs Evidentiary Objections to defendants Exhibit List (mg, ) (Entered: 11/12/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 47 of 88

11/08/2004 11/09/2004 11/10/2004 11/12/2004 11/12/2004 11/12/2004 11/12/2004 11/12/2004 11/12/2004
11/12/2004
11/12/2004 11/12/2004 11/12/2004 11/15/2004 11/15/2004 11/15/2004

460 DECLARATION of Fred Pierce filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce. regarding his incarceration of 120/29/2004. (yc, ) (Entered: 11/15/2004)
461 BRIEF FILED filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, re suitability of plaintif conn as class representative for visually and hearing impaired individuals (yc, ) (Entered: 11/15/2004)
462 BRIEF regarding scope of Ada class represented by plaintiff Conn FILED filed by defendant County of Orange. (pj, ) (Entered: 11/16/2004)
463 NOTICE OF MOTION AND MOTION IN LIMINE (#1) to Exclude testimony of Nadereh Pourat and "Survey" evidence filed by defendant County of Orange. Lodged proposed order.(pj, ) (Entered: 11/16/2004)
464 NOTICE OF MOTION AND MOTION IN LIMINE (#2) to Exclude and/or limit the testimony of plaintiffs expert Peter Robertson filed by defendant County of Orange. Lodged proposed order.(pj, ) (Entered: 11/16/2004)
465 NOTICE OF MOTION AND MOTION IN LIMINE (#3) to Limit plaintiffs witnesses to those disclosed in July of 2004 filed by defendant County of Orange. Lodged proposed order.(pj, ) (Entered: 11/16/2004)
466 NOTICE OF MOTION AND MOTION IN LIMINE (#4) for Admissions of deposition and declaration evidence of class members filed by defendant County of Orange. Lodged proposed order.(pj, ) (Entered: 11/16/2004)
467 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude defense expert Peter Morrison from testifying based on rule 703 and his failure to comply with discovery (Rule 37(D) filed by plaintiffs Laurie D Ellerston, Fred Pierce, Fermin Valenzuela.(pj, ) (Entered: 11/17/2004)
468 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude any questionaires or interviews taken of class members without consent of plaintiffs counsels on the grounds that such questionaires or interviews violated the attorney client privilege and were taken in a deceptive manner filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Adam Ramirez −, Fermin Valenzuela.(pj, ) (Entered: 11/17/2004)
469 NOTICE OF MOTION AND MOTION IN LIMINE to compel production of documents upon which Gary Deland relied or in the alternative Exclude him from testifying regarding those issues filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. Lodged proposed order.(pj, ) (Entered: 11/17/2004)
470 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude evidence of plaintiffs arrests and prior convictions under F R E 609 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. Lodged proposed order.(pj, ) (Entered: 11/17/2004)
471 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude evidence which defendant failed or refused to produce during discovery filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. Lodged proposed order.(pj, ) (Entered: 11/17/2004)
472 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude defendants expert Ron Bihner filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce. Lodged proposed order.(pj, ) (Entered: 11/17/2004)
475 OPPOSITION to defendants MOTION IN LIMINE (#4) for Admissions of deposition and declaration evidence of class members 466 filed by plaintiffs(mg, ) (Entered: 11/18/2004)
476 EX PARTE APPLICATION to have defendants motion in limine no. 4 heard prior to trial at the earliest available date filed by plaintiffs. Lodged proposed order. (mg, ) (Entered: 11/18/2004)
477 REPLY to plaintiffs brief re suitability of plaintiff Conn as class representative for visually and hearing impaired individuals filed by Defendant County of Orange (mg, )

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 48 of 88

11/15/2004 11/15/2004 11/15/2004 11/15/2004
11/16/2004 11/17/2004 11/17/2004 11/18/2004 11/19/2004 11/19/2004 11/19/2004
11/19/2004 11/19/2004 11/19/2004 11/19/2004

(Entered: 11/18/2004)
478 REPLY BRIEF re scope of ADA claims filed by Plaintiffs (mg, ) (Entered: 11/18/2004)
479 NOTICE OF DISCREPANCY AND ORDER: by Judge Gary L. Taylor: Letters to the Judge received 11/10/04 from Edward Swanstrom are not to be filed, but rejected. Reason: No letters addressed to the Judge.(esa, ) (Entered: 11/18/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Plaintiffs' Motion in Limine to Exclude Evidence which Defendant Failed or Refused to Produce during Discovery submitted by defendant County of Orange. (esa, ) (Entered: 12/01/2004)
PLACED IN FILE − NOT USED re [Proposed] Order Granting Plaintiffs' Motion in Limine to Compel Production of Document upon which Gary Deland relied or in the Alternative to Exclude Him from Testifying regarding those Issues submitted by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/01/2004)
473 ADDENDUM to MOTION IN LIMINE to Exclude defense expert Peter Morrison from testifying based on rule 703 and his failure to comply with discovery (Rule 37(D) 467 ; Request to strike his supplemental report under Rule 26; filed by plaintiffs(mg, ) (Entered: 11/18/2004)
474 MINUTES OF In Chambers proceedings re Motion in Limine No. 4 before Judge Gary L. Taylor : The Court will enforce the rules of evidence, and does not plan to change the rules for this civil case. Court Reporter: none present. (esa, ) (Entered: 11/18/2004)
481 OPPOSITION to plaintiffs EX PARTE APPLICATION to have defendant's motion in limine no. 4 heard prior to trial at the earliest available date 476 ; declarations of David D Lawrence and Paul B Beach filed by defendant County of Orange. (mt, ) (Entered: 11/23/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Plaintiffs Ex Parte Application to have Defendant's Motion in Limine No. 4 heard prior to Trial at the earliest available date submitted by defendant County of Orange. (esa, ) (Entered: 11/26/2004)
485 OPPOSITION to plaintiffs' MOTION IN LIMINE to Exclude evidence which defendant failed or refused to produce during discovery 471 ; memorandum of points and authorities filed by defendant County of Orange. (mt, ) (Entered: 11/29/2004)
486 OPPOSITION to plaintiffs' MOTION IN LIMINE to Exclude evidence of plaintiffs arrests and prior convictions under F R E 609 470 ; memorandum of points and authorities filed by defendant County of Orange. (mt, ) (Entered: 11/29/2004)
487 OPPOSITION to plaintiffs' MOTION IN LIMINE to Exclude any questionaires or interviews taken of class members without consent of plaintiffs counsels on the grounds that such questionaires or interviews violated the attorney−client privilege and were taken in a deceptive manner 468 ; memorandum of points and authorities filed by defendant County of Orange. (mt, ) (Entered: 11/29/2004)
488 OPPOSITION to plaintiffs' MOTION IN LIMINE to compel production of documents upon which Gary Deland relied or in the alternative Exclude him from testifying regarding those issues 469 ; memorandum of points and authorities; exhibits filed by defendant County of Orange. (mt, ) (Entered: 11/29/2004)
489 OPPOSITION to defendant's MOTION IN LIMINE No 3 to Limit plaintiffs' witnesses to those disclosed in July of 2004 465 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
490 REPLY BRIEF re Scope of Testimony of Peter Robertson, plaintiffs accessibility expert 464 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
491 OPPOSITION to defendant's MOTION IN LIMINE No 1 to Exclude testimony of Nadereh Pourat and "Survey" evidence 463 ; memorandum of points and authorities filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 49 of 88

11/19/2004 11/19/2004 11/22/2004 11/22/2004
11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004

Valenzuela. (mt, ) (Entered: 11/29/2004)
492 LIST OF EVIDENTIARY EXHIBITS in support of plaintiff's MOTION IN LIMINE to Exclude Peter Morrison's testimony 467 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
493 DECLARATION of Bryan Barnet Miller in opposition to defendant's MOTION IN LIMINE No 1 463 filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
480 STIPULATION AND ORDER re Submission of Certain Trial Witnesses and Evidence by Judge Gary L. Taylor : (SEE DOCUMENT FOR DETAILS)(esa, ) (Entered: 11/23/2004)
482 MINUTES OF Order of rulings on Motions in Limine by Judge Gary L. Taylor: Plaintiffs' Motion in limine to exclude evidence of plaintiffs' arrests and prior convictions: Denied. Plaintiffs' Motion in limine to exclude evidence which defendant failed or refused to produce during discovery: No ruling. Plaintiffs' Motion in limine to compel production of documents upon which Gary Deland relied or in the alternative to exclude him from testifying regarding issues: No ruling now. Plaintiffs' Motion in limine to exclude any questionnaires or interviews taken of Class Members without consent of Plaintiffs' counsel: Denied. Plaintiffs' Motion in limine to exclude defendant's expert Ron Bihner: Motion withdrawn. Plaintiffs' Motion in limine to exclude defense expert Peter Morrison: Motion withdrawn. Defendant's Motions in limine Numbers 1, 2, 3, and 4: (SEE DOCUMENT FOR DETAILS ON RULING)Court Reporter: none present. (esa, ) (Entered: 11/23/2004)
494 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Juan Chavez to testify on 12/1/04 at 1:30pm before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Juan Chavez (mt, ) (Entered: 11/29/2004)
495 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Fred Pierce on 12/1/04 at 9:00am before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) Modified on 11/29/2004 (mt, ). (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Fred Pierce (mt, ) (Entered: 11/29/2004)
496 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Ronald Rogers to testify on 12/2/04 at 9:00am before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Ronald Rogers (mt, ) (Entered: 11/29/2004)
497 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Larry Dixon to testify on 12/1/04 at 1:30pm before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Larry Dixon (mt, ) (Entered: 11/29/2004)
498 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Edward Swanstrom to testify on 12/2/04 at 1:30pm before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Edward Swanstrom (mt, ) (Entered: 11/29/2004)
499 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Michael Wright to testify on 12/2/04 at 1:30pm before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Michael Wright (mt, ) (Entered: 11/29/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 50 of 88

11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004 11/22/2004

500 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for James Suknaich to testify on 12/1/04 at 9:00am before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee James Suknaich (mt, ) (Entered: 11/29/2004)
501 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for David Rodgers to testify on 12/1/04 at 9:00am before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee David Rodgers (mt, ) (Entered: 11/29/2004)
502 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Leslie Ann Landry to testify on 12/2/04 at 9:00am before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Leslie Ann Landry (mt, ) (Entered: 11/29/2004)
503 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Dominic Palmitessa to testify on 12/2/04 at 9:00am before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Dominic Palmitessa (mt, ) (Entered: 11/29/2004)
504 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Kenneth Marshall Casey to testify on 12/1/04 at 9:00am before Judge Gary L. Taylor. Approved by Judge Gary L. Taylor.(mt, ) (Entered: 11/29/2004)
WRIT of habeas corpus ad testificandum issued for detainee Kenneth Marshall Casey (mt, ) (Entered: 11/29/2004)
505 TRIAL SUBPOENA AND PROOF OF SERVICE for Lt James Rudy filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
506 TRIAL SUBPOENA AND PROOF OF SERVICE for Lt Lawshe Chamberlin filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
507 TRIAL SUBPOENA AND PROOF OF SERVICE for Deputy Uraine filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
508 TRIAL SUBPOENA AND PROOF OF SERVICE for Deputy Ron Miller filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
509 TRIAL SUBPOENA AND PROOF OF SERVICE for Lt Rick Edgmon filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
510 TRIAL SUBPOENA AND PROOF OF SERVICE for Ronald J Bihner Jr filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
511 TRIAL SUBPOENA AND PROOF OF SERVICE for Lt Timothy Board filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
512 TRIAL SUBPOENA AND PROOF OF SERVICE for Sheriff Michael Carona filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
513 TRIAL SUBPOENA AND PROOF OF SERVICE for Capt Deana Bergquist filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 51 of 88

11/22/2004 11/22/2004 11/22/2004 11/22/2004
11/22/2004
11/23/2004
11/23/2004 11/23/2004 11/23/2004 11/24/2004 11/24/2004 11/24/2004 11/24/2004 11/24/2004 11/24/2004 11/24/2004 11/24/2004 11/24/2004

514 TRIAL SUBPOENA AND PROOF OF SERVICE for Lt Linda Solorza filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 11/29/2004)
515 PROOF OF SERVICE filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela of application for writ of habeas corpus and order and writ of habeas corpus. (mt, ) (Entered: 11/29/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Plaintiffs' Motion in Limine to Exclude Evidence of Plaintiffs' Arrests and Prior Convictions under F.R.E. 609 submitted by defendant County of Orange. (esa, ) (Entered: 12/01/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Plaintiffs' Motion in Limine to Compel Production of Documents upon which Gary Deland relied or in the Alternative to Exclude Him from Testifying regarding those Issues submitted by defendant County of Orange. (esa, ) (Entered: 12/01/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Plaintiffs' Motion to Compel to Exclude any Questionnaires or Interviews taken of Class Members without Consent of Plaintiffs' Counsel on the Grounds that such Questionnaires or Interviews violated the Attorney−Client Privilege and were taken in a Deceptive Manner submitted by defendant County of Orange. (esa, ) (Entered: 12/01/2004)
484 MINUTES OF In Chambers proceedings re Scope of ADA Class held before Judge Gary L. Taylor : The Court rules ADA disability evidence will be limited to conditions applicable to Plaintiff Conn and persons having a disability similar to his. (SEE DOCUMENT FOR DISCUSSION); Court Reporter: none present. (esa, ) (Entered: 11/24/2004)
517 DIRECT TRIAL TESTIMONY (VOLUME II) submitted by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/01/2004)
518 TRIAL BRIEF RE STEWART ISSUES filed by defendant County of Orange (esa, ) (Entered: 12/01/2004)
519 EXCERPTS OF RECORD, VOLUME II filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (esa, ) (Entered: 12/01/2004)
PLACED IN FILE − NOT USED re proposed order submitted by plaintiffs (mt, ) (Entered: 12/02/2004)
520 DESIGNATION OF DEPOSITION of unavailable witness Laurie Ellertson filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela.(mt, ) (Entered: 12/02/2004)
521 DECLARATION of Amanda Robledo submitted by plaintiffs as direct testimony filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 12/02/2004)
522 DUE PROCESS OBJECTION to three day time limit on presentation of evidence at trial filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 12/02/2004)
523 NOTICE OF ERRATA filed by Defendant County of Orange re Trial Brief re Stewart Issues 518 (mt, ) (Entered: 12/02/2004)
524 TRIAL BRIEF filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela.. (mt, ) (Entered: 12/02/2004)
525 TRIAL BRIEF; MEMORANDUM OF POINTS AND AUTHORITIES filed by defendant County of Orange. (mt, ) (Entered: 12/02/2004)
526 JOINT List of Trial Exhibits filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (mt, ) (Entered: 12/02/2004)
527 DIRECT TRIAL TESTIMONY OF DEFENSE WITNESSES filed by defendant County of Orange. (mt, ) (Entered: 12/02/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 52 of 88

11/24/2004 11/24/2004
11/24/2004
11/24/2004 11/24/2004
11/24/2004
11/29/2004
11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004
11/29/2004
11/29/2004
11/29/2004

528 AMENDED TRIAL WITNESS LIST filed by defendant County of Orange. (mt, ) (Entered: 12/02/2004)
529 EXCERPTS OF RECORD (DEPOSITIONS VOLUME I) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (mt, ) (Entered: 12/02/2004)
530 SUBMISSION OF DIRECT TRIAL TESTIMONY VOLUME I filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (mt, ) (Entered: 12/02/2004)
531 EXCERPTS OF DEPOSITIONS OF INMATE CLASS MEMBERS filed by defendant County of Orange (mt, ) (Entered: 12/02/2004)
532 EXCERPTS OF RECORD (DEPOSITIONS VOLUME III) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (mt, ) (Entered: 12/02/2004)
533 FILING OF ORIGINAL AFFIDAVITS RE DIRECT TRIAL TESTIMONY SUBMITTED BY PLAINTIFFS (VOLUME II) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (mt, ) (Entered: 12/02/2004)
516 MINUTES OF In Chambers Proceedings before Judge Gary L. Taylor : The Court declines to issue writs for witnessess in state prison. Court Reporter: none present. (esa, ) (Entered: 12/01/2004)
PLACED IN FILE − NOT USED re Application for Writ of Habeas Corpus and Order Ad Testificandum re James Earl Weaver (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Writ of Habeas Corpus Ad Testificandum re James Earl Weaver (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Application for Writ of Habeas Corpus and Order Ad Testificandum re Valerie Ann Grisham (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Writ of Habeas Corpus Ad Testificandum re Valerie Ann Grisham (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Application for Writ of Habeas Corpus and Order Ad Testificandum re Shena Marie Medley (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Writ of Habeas Corpus Ad Testificandum re Shena Marie Medley (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Application for Writ of Habeas Corpus and Order Ad Testificandum re Peter Joseph Paturzo (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Writ of Habeas Corpus Ad Testificandum re Peter Joseph Paturzo (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Application for Writ of Habeas Corpus and Order Ad Testificandum re Gerald Robert Pleshe (esa, ) (Entered: 12/07/2004)
PLACED IN FILE − NOT USED re Writ of Habeas Corpus Ad Testificandum re Gerald Robert Pleshe (esa, ) (Entered: 12/07/2004)
534 PLAINTIFFS' COUNTER−DESIGNATION OF DEPOSITION EXCERPTS filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela Volume: 1. (esa, ) (Entered: 12/07/2004)
535 PLAINTIFFS' COUNTER−DESIGNATION OF DEPOSITION EXCERPTS filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela Volume: 2. (esa, ) (Entered: 12/07/2004)
536 PLAINTIFFS' COUNTER−DESIGNATION OF DEPOSITION EXCERPTS filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela Volume: 3. (esa, ) (Entered: 12/07/2004)
537 PLAINTIFFS' MOTION to Strike all witnesses not included on defendant's trial witness list filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce,

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 53 of 88

11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004
11/29/2004
11/29/2004 11/29/2004
11/29/2004
11/29/2004
11/29/2004 11/29/2004 11/29/2004

Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
538 PLAINTIFFS' MOTION to Strike Defendants' Trial Briefs; Declaration of Keeny in support thereof filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
539 PLAINTIFFS' BRIEF RE ADMISSABILITY OF UNAVAILABLE PRE−TRIAL DETAINEES' TESTIMONY filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (esa, ) (Entered: 12/08/2004)
540 PLAINTIFF'S BRIEF RE ADMISSABILITY OF DEPOSITION TESTIMONY OF LAURIE ELLERTSON filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela (esa, ) (Entered: 12/08/2004)
541 APPLICATION AND ORDER for Writ of Habeas Corpus Ad Testificandum for Keith Hawkins to testify on 12/2/04 at 9:00 a.m. before Judge Gary Taylor. Approved by Judge Gary L. Taylor.(esa, ) (Entered: 12/08/2004)
WRIT of of Habeas Corpus Ad Testificandum issued re Keith Hawkins (esa, ) (Entered: 12/08/2004)
542 NOTICE OF LODGING VIDEOTAPES AT TRIAL filed by defendant County of Orange. (esa, ) (Entered: 12/08/2004)
543 NOTICE OF LODGING CERTIFIED ORIGINAL DEPOSITION TRANSCRIPTS AT TRIAL filed by defendant County of Orange. (esa, ) (Entered: 12/08/2004)
544 REQUEST for adverse inference that the County of Orange did not provide detainees 15 minutes to eat; in the Alternative the County of Orange should be precluded from stating that the videotapes they provided were not randomly selected filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
545 BRIEF REGARDING DEFENDANT'S INABILITY TO READ FROM DEPOSITIONS AS CLASS MEMBERS are not parties for purposed of Federal Rule of Evidence 801(d)(2) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
546 NOTICE OF LODGING OF DEPOSITION TRANSCRIPT filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
PLACED IN FILE − NOT USED re [Proposed] Order Granting Plaintiffs' Motion in Limine to Exclude Evidence of Plaintiffs' Arrests and Prior Convictions under F.R.E. 609 submitted by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
PLACED IN FILE − NOT USED re [Proposed] Order Granting Plaintiffs' Motion in Limine to Exclude Evidence which Defendant failed or refused to produce during discovery submitted by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
PLACED IN FILE − NOT USED re [Proposed] Order granting Plaintiffs' Motion in Limine to exclude Ron Bihner as a witness in this action submitted by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (esa, ) (Entered: 12/08/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Defense Motion in limine No. 4 regarding admissibility of deposition and declaration evidence of Class Members submitted by defendant County of Orange. (esa, ) (Entered: 12/08/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Defense Motion in Limine No. 3 to Limit Plaintiffs' witnesses to those disclosed in July of 2004 submitted by defendant County of Orange. (esa, ) (Entered: 12/08/2004)
PLACED IN FILE − NOT USED re [Proposed] Order re Defense Motion in Limine No. 1 to Exclude Testimony of Nadereh Pourat and Survey Evidence submitted by defendant County of Orange. (esa, ) (Entered: 12/08/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 54 of 88

11/29/2004 11/30/2004
11/30/2004 11/30/2004 12/01/2004 12/01/2004 12/01/2004 12/02/2004 12/02/2004 12/03/2004
12/03/2004 12/03/2004 12/03/2004 12/03/2004

PLACED IN FILE − NOT USED re [Proposed] Order re Defense Motion in Limine No. 2 to Exclude and/or Limit the Testimony of Plaintiffs' Expert Peter Robertson submitted by defendant County of Orange. (esa, ) (Entered: 12/08/2004)
547 MINUTES Court Trial (1st day )held before Judge Gary L. Taylor : Witnesses called, sworn and testified. Exhibits identified. Exhibits admitted. Motion of plaintiff to strike defendants' trial brief is ORDERED DENIED. Plaintiffs due process objection (filed 11/24/04) to allotted time for trial is DENIED. The court orders subpoenaed witnesses Pierpont, Palacios, Carisma and Lee be placed on call to counsel for the defendants and are ordered to return upon notice from counsel. Case continued for further trial. Bench Trial set for 12/1/2004 09:00 AM before Honorable Gary L. Taylor.Court Reporter: Deborah Parker. (twdb, ) (Entered: 12/08/2004)
551 OBJECTION to the direct testimony of defense witnesses filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (twdb, ) (Entered: 12/10/2004)
552 AMENDED paragraph 6 of pretrial conference order setting forth the parties' list of stipulated trial facts filed by Defendant County of Orange. (twdb, ) (Entered: 12/10/2004)
548 MINUTES Court Trial (2nd day )held before Judge Gary L. Taylor : Witnesses called, sworn and testified. Exhibits identified. Exhibits admitted. Case continued for further trial. Bench Trial set for 12/2/2004 09:00 AM before Honorable Gary L. Taylor.Court Reporter: Deborah Parker. (twdb, ) (Entered: 12/08/2004)
560 REPLY to response to MOTION to Strike 537 filed by defendant County of Orange. (dmjr, ) (Entered: 12/14/2004)
561 Consolidated REPLY filed by Defendant County of Orange to briefs re admissibility of unavailable pretrial detainees testimony, admissibility of unavailable party Laurie Ellertson and defendants ability to admit inmate depositions as party admissions (dmjr, ) (Entered: 12/14/2004)
549 MINUTES Court Trial (3rd day )held before Judge Gary L. Taylor :Witnesses called, sworn and testified. Exhibits identified. Exhibits admitted. Case continued for further trial. Bench Trial set for 12/3/2004 08:00 AM before Honorable Gary L. Taylor.Court Reporter: Deborah Parker. (twdb, ) (Entered: 12/08/2004)
557 NOTICE OF LODGING Certified Original Deposition Transcripts at Trial filed by defendant County of Orange. (esa, ) (Entered: 12/14/2004)
550 MINUTES Court Trial (4th day )held before Judge Gary L. Taylor : Witnesses called, sworn and testified. Exhibits identified. Exhibits admitted. Plaintiffs rest subject to court considering excerpts of deposition testimony. Defendant reserves right to make a motion upon the court's consideration of the excerpts of testimony. Case continued for further trial Bench Trial set for 12/7/2004 09:00 AM before Honorable Gary L. Taylor.Court Reporter: Deborah Parker. (twdb, ) (Entered: 12/08/2004)
553 ORIGINAL PROOF OF SERVICE filed by defendants County of Orange, Michael S Carona re defendants' direct trial testimony of defense witnesses; excerpts of depositions; trial brief and amended witness list served on Brian Miller, Esq was served on 11/23/04. (twdb, ) (Entered: 12/13/2004)
554 ORGINAL PROOF OF SERVICE filed by defendants County of Orange, Michael S Carona re defendants' direct trial testimony of defense witnesses; excerpts of depositions; trial brief and amended witness list served on attorneys Dan Stormer and Virginia Keeney was served on 11/23/04. (twdb, ) (Entered: 12/13/2004)
555 ORIGINAL PROOF OF SERVICE filed by defendants County of Orange, Michael S Carona re defendant's motins in limine nos. 1 through 4 served on Brian Miller, Esq was served on 11/12/04. (twdb, ) (Entered: 12/13/2004)
556 ORIGINAL PROOF OF SERVICE filed by defendants County of Orange, Michael S Carona re defendants' motions in limine nos. 1 through 4 served on Dan Stormer, Esq was served on 11/12/04. (twdb, ) (Entered: 12/13/2004)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 55 of 88

12/07/2004
12/08/2004
12/08/2004 12/08/2004 12/13/2004 12/13/2004 12/17/2004 01/07/2005 01/07/2005 01/10/2005 01/10/2005 01/13/2005
01/13/2005 01/18/2005 04/27/2005 04/27/2005

562 MINUTES Court Trial (5th day )held before Judge Gary L. Taylor : Witnesses called, sworn and testified. Exhibits identified. Exhibits admitted. Motion of defendant for judgment as a matter of law is Denied. Case continued to 12/8/04 at 9:00 a.m. for further trial.Court Reporter: Deborah Parker/John Turman. (twdb, ) (Entered: 12/16/2004)
563 MINUTES Court Trial (6th Day) held before Judge Gary L. Taylor : Witnesses called, sworn and testified. Exhibits identified. Exhibits admitted. Defendant rests. By stipulation of the parties, the closing arguments shall be by briefs. Plaintiffs' brief shall be filed and personally served, faxed or emailed on opposing counsel on or before 12/17/04. Defendant's brief shall be filed and personally served, faxed or emailed on opposing counsel on or before 1/7/05. Plaintiffs' closing brief shall be filed and personally served, faxed or emailed on opposing counsel on or before 1/18/05 whereupon the matter stands submitted. Submitted.Court Reporter: Deborah Parker. (twdb, ) (Entered: 12/16/2004)
564 NOTICE/DESIGNATION OF TESTIMONY OF LAURIE ELLERSTON AND SHERIFF MICHAEL CARONA filed by defendant County of Orange. (twdb, ) (Entered: 12/17/2004)
565 NOTICE/COUNTER DESIGNATION OF DEFENDANT'S DESIGNATION OF STATEMENTS OF CLASS MEMBERS filed by plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (twdb, ) (Entered: 12/17/2004)
558 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following dates: 12/8/04 Court Reporter: Katherine Stride. (ghap, ) (Entered: 12/14/2004)
559 TRANSCRIPT filed for proceedings held on 12/8/04. Court Reporter: Katherine M. Stride. (ghap, ) (Entered: 12/14/2004)
566 CLOSING TRIAL BRIEF FILED filed by plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (twdb, ) (Entered: 12/27/2004)
567 NOTICE/ Closing Arguments RE: Termination and Modification of the Orders in Stewart v. Gates filed by defendant County of Orange. (twdb, ) (Entered: 01/11/2005)
568 CLOSING TRIAL BRIEF RE PIERCE; MEMORANDUM OF POINTS AND AUTHORITIES filed by defendant County of Orange. (mt, ) (Entered: 01/11/2005)
569 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following dates: 12/7/04 Court Reporter: John Turman (weap, ) (Entered: 01/11/2005)
570 TRANSCRIPT filed for proceedings held on 12/7/04. Court Reporter: John Turman. (weap, ) (Entered: 01/11/2005)
571 NOTICE of Change of Address by attorney Richard P Herman, Christy Virginia Keeny, Barrett S Litt, Bryan Barnet Miller, Dan Stormer for Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn, changing name and address to Litt Estuar Harrison Miller and Kitson 1055 Wilshire Boulevard, Suite 1880, Los Angeles, California 90017. Filed by plaintiff Bryan Miller (twdb, ) (Entered: 01/19/2005)
FAX number for Attorney Barrett S Litt, Bryan Barnet Miller is 213−380−4585. (twdb, ) (Entered: 01/19/2005)
572 REPLY filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn to defendants' Closing Trial Brief 568 (twdb, ) (Entered: 01/21/2005)
573 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: A status conference is set for 02:00 PM on 5/5/2005 to discuss scheduling of the remaining inmate personal injury claim that was bifurcated from the main claims in this case.Court Reporter: None Present. (mu, ) (Entered: 04/27/2005)
574 FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Gary L. Taylor. The Court finds there is no prevailing party in this case. Judgment shall be entered in favor of defendant County. (see document for further details) (mu, ) (Entered: 04/27/2005)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 56 of 88

05/05/2005
05/26/2005
05/26/2005 05/26/2005 06/03/2005 06/13/2005 06/20/2005 06/21/2005
06/21/2005 06/21/2005 06/29/2005
07/21/2005 07/21/2005

575 MINUTES OF Status Conference held before Judge Gary L. Taylor: The discovery cut−off in this matter as to the remaining claims is set for 10/7/2005. By stipulation of the parties, there shall be no discovery for 90 days from this date so that the parties can mediate this matter. The Pretrial Conference is set for 1/6/2006 at 01:30 PM. Trial shall be during the month of 2/06, the exact date to be set at the time of the Pre−Trial Conference. The last date for the hearing on dispositive motions is set for 12/6/05.Court Reporter: Deborah Parker. (mu, ) (Entered: 05/12/2005)
576 NOTICE OF APPEAL to 9th CCA filed by plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. Appeal of Order 309 , Filed On: 03/1/04, Entered On: 03/04/04; Findings of Fact & Conclusions of Law 574 , Filed On: 04/27/05, Entered On: 04/27/05; Order 452 Filed On: 11/02/04, Entered On: 11/03/04. Filing fee $255, Paid. receipt number 9528. cc: Dan Stormer; Barrett S. Litt; Richard P. Herman; David Lawrence; Steven Miller; David Lawrence. (cbr, ) (Entered: 06/01/2005)
577 REPRESENTATION STATEMENT re Appeal to Circuit Court 576 . (cbr, ) (Entered: 06/02/2005)
Civil Appeals Docketing Statement received from plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn forwarded to 9th CCA. RE: Appeal to Circuit Court 576 . (cbr, ) (Entered: 06/02/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: Appeal to Circuit Court, 576 . (cbr, ) (Entered: 06/03/2005)
578 NOTIFICATION by Circuit Court of Appellate Docket Number 05−55829, 9th CCA regarding Appeal to Circuit Court, 576 filed by Fred Pierce,Timothy Lee Conn, Fermin Valenzuela, Laurie D Ellerston. (nm, ) (Entered: 06/13/2005)
580 TRANSCRIPT DESIGNATION AND ORDERING FORM For Dates: 3/29/04, 2/23/04, CR: D. Parker; 6/16/04, Tape SA04−18; 6/28/04, Tape SA 04−19; 8/17/04, Tape SA 04−23; Court of Appeals Case Number: 05−55829; Re: Appeal to Circuit Court, 576 (fvap, ) (Entered: 06/22/2005)
579 ORDER RETURNING CASE FOR REASSIGNMENT by Judge Gary L. Taylor. ORDER case returned to the Clerk for random reassignment pursuant to General Order 224. Case randomly reassigned from Judge Gary L. Taylor and Marc L. Goldman to Judge Audrey B. Collins and Charles F. Eick for all further proceedings. The case number will now reflect the initials of the transferee Judge SACV01−981ABC(Ex).(csb, ) (Entered: 06/21/2005)
581 TRANSCRIPT DESIGNATION AND ORDERING FORM For Dates: 11/30/04, 12/01/04, 12/02/04 (afternoon only), 12/03/04, 12/07/04, 12/08/04 (morning only), 11/03/04, 11/01/04, 3/5/05, 7/30/04, 11/01/01, 12/02/04, CR: D. Parker; Court Reporter: 12/08/04, CR: K. Stride ; 12/07/04k, CR: J. Turman; Court of Appeals Case Number: 05−55829; Re: Appeal to Circuit Court, 576 (fvap, ) (Entered: 06/22/2005)
582 STIPULATION REGARDING SELECTION of Attorney Settlement Officer Filed; Parties stipulate that Hon. John Leo Wagner (Ret.) may serve as Attorney Settlement Officer for a Local Rule 16−14 Settlement Conference.(twdb, ) (Entered: 06/23/2005)
583 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Order Returning Case for Reassignment (CV 89) 579 On June 21, 2005 this matter was reassigned to the calendar of the Honorable Audrey B Collins. In error, this matter was further reassigned to Magistrate Judge Charles Eick as to discovery matters. Therefore, the order of assignment as to Magistrate Judge Eick is vacated and discovery matters shall remain before Magistrate Judge Marc L. Goldman The case will now reflect the initials of the transferee Judge SACV01−981ABC(MLGx). (csb, ) (Entered: 06/29/2005)
584 TRANSCRIPT filed for proceedings held on 2/23/04. Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)
585 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following dates: 2/23/04 regarding Transcript 584 . Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 57 of 88

07/21/2005 07/21/2005 07/21/2005 07/21/2005 07/21/2005 07/21/2005 07/21/2005 07/21/2005
10/24/2005
10/31/2005 11/14/2005
12/12/2005
12/29/2005
02/06/2006 02/06/2006 03/13/2008
03/26/2008

586 TRANSCRIPT filed for proceedings held on 3/29/04. Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)
587 TRANSCRIPT filed for proceedings held on 11/30/04. Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)
588 TRANSCRIPT filed for proceedings held on 12/1/04. Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)
589 TRANSCRIPT filed for proceedings held on 12/2/04. Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)
590 TRANSCRIPT filed for proceedings held on 12/3/04. Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)
591 TRANSCRIPT filed for proceedings held on 12/7/04. Court Reporter: Deborah D Parker. (mu, ) Modified on 7/25/2005 (mu, ). (Entered: 07/25/2005)
592 TRANSCRIPT filed for proceedings held on 12/8/04. Court Reporter: Deborah D Parker. (mu, ) (Entered: 07/25/2005)
593 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following dates: 3/29/04, 11/30/04, 12/1/04, 12/2/04, 12/3/04, 12/7/04, 12/8/04 regarding Transcript 589 , Transcript 590 , Transcript 591 , Transcript 592 , Transcript 586 , Transcript 587 , Transcript 588 . Court Reporter: Deborah D Parker. (mu, ) (CV 75−3075 GLT) Modified on 8/2/2005 (fvap, ). (Entered: 07/25/2005)
594 MINUTES (IN CHAMBERS) by Judge Audrey B. Collins: On the Court's own motion, Resetting Hearing as to Final Pretrial Conference advanced to 12/12/2005 10:00 AM before Honorable Audrey B. Collins. Joint Status Report due by 12/5/2005. Court Reporter: Not Reported. (gk, ) (Entered: 10/26/2005)
595 NOTICE of Settlement of Timothy Conn individual claim of January 11, 2002 filed by plaintiff Timothy Lee Conn. (jp, ) (Entered: 11/02/2005)
596 ORDER from 9th CCA filed as to Appeal to Circuit Court 576 filed by Fred Pierce, Timothy Lee Conn, Fermin Valenzuela, Laurie D Ellerston, CCA # 05−55829. Order received in this district on 11/16/2005. The appellees motion for an extension of time in which to file the answering briefs is granted. The answering briefs are due 2/13/2006. The optional reply briefs are due 14 days after service of the latter−served answering brief. (jp, ) (Entered: 11/18/2005)
597 STIPULATION AND ORDER by Judge Audrey B. Collins that this Court hereby orders that all bifurcated individual claims of Plaintiff Timothy Conn relating to the incident which occurred on 1/11/2002 are dismissed with prejudice. (Made JS−6. Case Terminated.)(gk, ) (Entered: 12/13/2005)
598 NOTICE of Change of Address by Richard P Herman attorney for Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn, changing address to 5001 Birch Street, Newport Beach, CA 92660. telephone and facsimile numbers remain same; Filed by Plaintiffs Fred Pierce, Fermin Valenzuela, Laurie D Ellerston, Timothy Lee Conn (ln, ) (Entered: 01/05/2006)
599 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following dates: 6/28/04,re Transcript Designation and Order Form (A−9) 580 : Court Reporter: Dorothy Babykin (mo, ) (Entered: 02/09/2006)
600 TRANSCRIPT filed for proceedings held on 6/28/04. Court Reporter: Dorothy Babykin. (mo, ) (Entered: 02/09/2006)
601 NOTICE of Change of Address by Christina M Sprenger attorney for Defendants County of Orange, Michael S Carona, changing address to 1600 N. Broadway, Suite 1010, Santa Ana, CA 92706. Filed by Defendants County of Orange, et al. (Sprenger, Christina) (Entered: 03/13/2008)
606 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 576 filed by Fred Pierce, Timothy Lee Conn, Laurie D Ellerston, Fermin Valenzuela, CCA # 05−55829, 05−55845. The parties shall bear their own costs on appeal. Order received in this district on 5/22/08. (car) (Entered: 06/06/2008)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 58 of 88

05/21/2008 05/23/2008 06/05/2008 06/05/2008 06/30/2008 07/07/2008
07/18/2008 07/23/2008 08/06/2008 08/06/2008 08/07/2008

602 NOTICE of Change of Attorney Information for attorney Christina M Sprenger counsel for Defendants County of Orange, Michael S Carona. Changing firm name to Lawrence Beach Allen & Choi. Changing e−mail to csprenger@lbaclaw.com. Filed by Defendants County of Orange and Michael Carona (Sprenger, Christina) (Entered: 05/21/2008)
603 MANDATE of 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 576 , CCA # 05−55829. The Judgment is Affirmed in part, Reversed in part, Remanded. Mandate received in this district on 5/23/08. (car) (Entered: 06/02/2008)
604 MINUTES OF IN CHAMBERS ORDER held before Judge Audrey B. Collins: Following receipt of the Mandate of the Ninth Circuit Court of Appeals, Affirming in Part, Reversing in Part, and Remanding, this Court hereby schedules a Status Conference on June 30, 2008, 10:00AM. Counsel shall submit a joint status report no later than June 23, 2008. (Case reopened. MD JS−5.) (bm) (Entered: 06/05/2008)
605 **AMENDED**MINUTES OF IN CHAMBERS ORDER held before Judge Audrey B. Collins: Following receipt of the Mandate of the Ninth Circuit Court of Appeals, Affirming in Part, Reversing in Part, and Remanding, this Court hereby reschedules the Status Conference from June 30, 2008, 10:00AM, to July 7, 2008, at 10:00AM. Counsel shall submit a joint status report no later than June 30, 2008. (es) (Entered: 06/06/2008)
607 STATUS REPORT JOINT filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Keeny, Christy) (Entered: 06/30/2008)
608 MINUTES: STATUS CONFERENCE REVERSING AND REMANDING FROM NINTH CIRCUIT OF APPEALS; Court and counsel confer regarding petition with the Supreme Court. The Court having heard from counsel, ORDERS counsel to meet and confer within 10 days regarding fact findings. The Court sets the following dates as to plaintiff Conns individual claims: Expert Disclosures 8/11/08; Rebuttal Reports 9/25/08; Motion cut−off 10/6/2008; Pretrial Conference 12/8/2008 10:00 AM. Jury Trial 1/20/2009 08:30 AM (estimate 4 days); Court and counsel confer regarding disputed issues with respect to defendant. Court and counselORDERED to meet and confer regarding issues within 10 days of the date of this order and to e−file a report with the Court by no later than July 21, 2008. If counsel agree on issues they must prepare and efile a stipulation with the Court, if counsel does not agree motions are to be e−filed. Court and counsel confer regarding settlement. Counsel informs Court settlement issues will be heard before the Magistrate Judge assigned. Court instructs counsel to adhere to all rules and procedures regarding settlement IT IS SO ORDERED by Judge Audrey B. Collins Court Reporter: Katherine Stride. (ir) (Entered: 07/10/2008)
609 STANDING ORDER by Judge Marc L. Goldman: A Settlement Conference is scheduled for 10/23/2008 at 9:30 a.m. before Magistrate Judge Marc L. Goldman. All parties and their lead counsel are required to appear on the date and time set. (see document for further details) (ts) (Entered: 07/18/2008)
610 STATUS REPORT (JOINT) filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 07/23/2008)
611 REQUEST for Order for Entry of Order Re Injunctive Relief filed by plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Keeny, Christy) (Entered: 08/06/2008)
612 REQUEST for Order for Entry of Order Re Injunctive Relief filed by plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Proposed Order)(Keeny, Christy) (Entered: 08/06/2008)
613 IN CHAMBERS MINUTES OF Judge Audrey B. Collins re: REQUEST for Order for Entry of Order Re Injunctive Relief 611 . Before the Court enters this Order, Defendants County of Orange and Michael Carona may respond no later than Thursday, August 14, 2008 with any objections. Plaintiffs may respond no later than Thursday, August 21, 2008 to Defendants' objections. The Court will decide this issue on the papers and declines to hold a hearing on this matter. The parties are also ORDERED to ensure that all papers reflect the proper Judge and case nubmer: cv 01−981ABC(MLGx). Failure to do so will cause delays in adjudicating this case. IT IS SO ORDERED. (da) (Entered: 08/08/2008)

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08/11/2008 08/12/2008 08/14/2008 08/14/2008 08/15/2008 08/19/2008
08/26/2008 08/26/2008
08/27/2008
09/04/2008

614 Joint STIPULATION for Order to Modify the Court's July 7, 2008 Minute Order for Purposes of Extending Expert Discovery Deadlines Only filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 08/11/2008)
615 ORDER EXTENDING DISCOVERY DEADLINES by Judge Audrey B. Collins − granting the parties stipulation and modifying its 7/7/08 Minute Order re Status Conference 608 Expert Disclosures shall be served by 10/10/08; Disclosure Reports shall be served by 11/11/08; Rebuttal Report shall be served by 11/25/08; and, Expert Depositions shall be completed by 12/7/2008.(pp) (Entered: 08/13/2008)
616 OBJECTIONS to REQUEST for Order for Entry of Order Re Injunctive Relief 612 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 08/14/2008)
618 MINUTES OF IN CHAMBERS ORDER by Judge Audrey B. Collins: On the Court's own motion, hereby sets a Telephonic Conference on the above matter for Tuesday, 8/19/2008 at 2:00 p.m. (mmu) (Entered: 08/20/2008)
617 REPLY filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn to REQUEST for Order for Entry of Order Re Injunctive Relief 612 Plaintiffs' Reply In Support of Entry of Injunctive Relief Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Keeny, Christy) (Entered: 08/15/2008)
619 MINUTES by Judge Audrey B. Collins: Proceedings: Telephonic Conference. The parties inform the Court mediation hearing before Magistrate Judge Goldman set for October 23, 2008 at 9:30 a.m. The Pretrial set for December 8, 2008 and the Trial date of January 20, 2009 remain set on the Courts calendar. The Court sets the following deadlines: Motions in Limine to be filed: December 1, 2008; Oppositions to be filed: December 8, 2008; Replies to be filed: December 15, 2008; Hearing if needed set for: December 22, 2008. The parties inform Court they will file a motion to stay next week. Court to issue ruling. Court Reporter: Katherine Stride. (mg) (Entered: 08/25/2008)
620 NOTICE OF MOTION AND MOTION to Stay Case pending Review by the United States Supreme Court; Memorandum of Points and Authorities filed by Defendant County of Orange. Motion set for hearing on 9/22/2008 at 10:00 AM before Judge Audrey B. Collins. (Sprenger, Christina) (Entered: 08/26/2008)
621 ORDER RE: ENTRY OF INJUNCTIVE RELIEF by Judge Audrey B. Collins, re REQUEST for Order for Entry of Order Re Injunctive Relief 612 : Therefore, the County is ENJOINED as follows: 1. Inmates in administrative segregation and protective custody must be provided rooftop or outdoor exercise and recreation at least twice each week for a total of not less than two hours per week. 2. Inmates in administrative segregation and protective custody must be allowed to attend regularly scheduled religious services of their own selection once each week or, alternatively, to make individual visits to the chapel once each week for not more than twenty minutes, or at defendants option to meet with a bona fide minister, priest, rabbi, or other similar religious advisor at any time upon request of either the inmate or the religious advisor. (see document for further details) (bm) (Entered: 08/26/2008)
622 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error was found: Incorrect event used. Correct event is Motion and Related Filings: Responses/Replies/Other Motion Related documents− Reply (Motion Related) and link to appropriate Request. RE: Reply (non−motion) 617 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (ir) (Entered: 08/27/2008)
623 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error was found: No Proposed Order was not submitted as a separate attachment RE: MOTION to Stay Case pending Review by the United States Supreme Court; Memorandum of Points and Authorities 620 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (ir) (Entered: 09/04/2008)

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09/15/2008 09/16/2008 09/16/2008 09/18/2008 09/18/2008
09/18/2008

624 NOTICE OF LODGING filed re MOTION to Stay Case pending Review by the United States Supreme Court; Memorandum of Points and Authorities 620 (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 09/05/2008)
625 NOTICE OF LODGING filed re MOTION to Stay Case pending Review by the United States Supreme Court; Memorandum of Points and Authorities 620 (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 09/05/2008)
626 PLAINTIFFS' OPPOSITION re: MOTION to Stay Case pending Review by the United States Supreme Court; Memorandum of Points and Authorities 620 filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Keeny, Christy) (Entered: 09/08/2008)
627 APPLICATION to the Clerk to Tax Costs against defendant County of Orange, Michael S Carona, Does 1 − 200 filed by plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. Application set for hearing on 9/25/2008 at 11:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Bill of Costs)(Keeny, Christy) (Entered: 09/08/2008)
628 NOTICE OF MOTION AND MOTION for Attorney Fees Pursuant to 42 U.S.C. Section 1988 and C.C.P. Section 1021.5; Declarations and Exhibits in Support Thereof filed by plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. Motion set for hearing on 10/6/2008 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Declaration Virginia Keeny, # 2 Exhibit A to Keeny Declaration, # 3 Exhibit B to Keeny Declaration, # 4 Exhibit C to Keeny Declaration, # 5 Exhibit D to Keeny Declaration, # 6 Declaration of Barret Litt and Exhibits, # 7 Exhibit Litt Exhibit Part 2, # 8 Declaration of Richard Herman and Exhibit A, # 9 Declaration of Peter Eliasberg and Exhibits, # 10 Declaration of Paula Pearlman, # 11 Declaration of Nora Quinn, # 12 Declaration of Michelle Reinglass)(Keeny, Christy) (Entered: 09/08/2008)
629 REPLY in support of a motion MOTION to Stay Case pending Review by the United States Supreme Court; Memorandum of Points and Authorities 620 filed by Defendant County of Orange. (Lawrence, David) (Entered: 09/15/2008)
630 Joint STIPULATION to Continue Hearing and Briefing Schedule from October 6, 2008 to October 27, 2008 Re: MOTION for Attorney Fees Pursuant to 42 U.S.C. Section 1988 and C.C.P. Section 1021.5; Declarations and Exhibits in Support Thereof 628 filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Lawrence, David) (Entered: 09/16/2008)
631 DECLARATION of Scott E. Caron in support of MOTION to Stay Case pending Review by the United States Supreme Court; Memorandum of Points and Authorities 620 (Supplemental) filed by Defendant County of Orange. (Lawrence, David) (Entered: 09/16/2008)
632 OBJECTIONS to APPLICATION to the Clerk to Tax Costs against defendant County of Orange, Michael S Carona, Does 1 − 200 627 filed by Defendant County of Orange. (Lawrence, David) (Entered: 09/18/2008)
633 MINUTES OF IN CHAMBERS ORDER by Judge Audrey B. Collins re: MOTION to Stay Case pending Review by the United States Supreme Court, the Court FINDING the motion appropriate for decision without oral argument and VACATES the hearing set for September 22, 2008. The Court GRANTS the motion to stay, with one exception: briefing on Plaintiffs' pending motion for attorney's fees, now set for hearing on October 27, 2008, shall continue. Defendants shall file opposition to Plaintiffs' motion for attorney's fees by October 6, 2008 and Plaintiffs shall file reply by October 20, 2008. IT IS FURTHER ORDERED that the parties shall submit a joint Status Report regarding the Supreme Court's review of Defendants' petition by 10/23/2008. (da) (Entered: 09/19/2008)
634 ORDER on Stipulation to Continue Briefing and Hearing Schedule on Plaintiffs' Motion for Attorneys' Fees 630 by Judge Audrey B. Collins. Pursuant to the stipulation of the parties filed with the Court, IT IS HEREBY ORDERED as follows: 1) The hearing on Plaintiffs' pending Motion for Attorneys' Fees 628 is continued to 10/27/08 at 10:00 am; 2) Defendant's opposition to Plaintiffs' motion shall be filed and served no later than 10/6/08; and 3) Plaintiffs' reply to Defendant's opposition shall be filed and served no later than 10/20/08. (csi) (Entered: 09/19/2008)

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12/31/2008 12/31/2008 01/15/2009 01/22/2009

635 REPLY Brief in Support APPLICATION to the Clerk to Tax Costs against defendant County of Orange, Michael S Carona, Does 1 − 200 627 filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Declaration of Virginia Keeny, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Keeny, Christy) (Entered: 09/22/2008)
636 STIPULATION to Vacate MOTION for Attorney Fees Pursuant to 42 U.S.C. Section 1988 and C.C.P. Section 1021.5; Declarations and Exhibits in Support Thereof 628 filed by Defendant County of Orange. (Attachments: # 1 Proposed Order re Stipulation to Take Motion for Attorneys' Fees Off Calendar)(Lawrence, David) (Entered: 09/25/2008)
637 ORDER RE: STIPULATION TO TAKE PLAINTIFFS' MOTION FOR ATTORNEYS' FEES OFF CALENDAR PENDING DETERMINATION OF DEFENDANT'S PETITION FOR WRIT OF CERTIORARI by Judge Audrey B. Collins re: Stipulation to Vacate 636 . IT IS HEREBY ORDERED as follows: The hearing on Plaintiffs' pending Motion for Attorneys' Fees, currently scheduled for 10/27/08, shall be taken off−calendar pending determination by the Supreme Court of Defendant's Petition for Writ of Certiorari; and The current briefing schedule on Plaintiffs' Motion for Attorneys' Fees shall be vacated. (mmu) (Entered: 09/29/2008)
638 NOTICE of Stay of Proceedings, Including Mandatory Settlement Conference, Pending Review by the United States Supreme Court filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 10/13/2008)
639 STATUS REPORT (JOINT) filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 10/23/2008)
640 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 576 filed by Fred Pierce, Timothy Lee Conn, Laurie D Ellerston, Fermin Valenzuela, CCA # 05−55829. To supplement our order filed July 15, 2008 after review of the County's response, we hold, The request for attorney's fees was fimely filed. Plaintiff−Appellants are the prevailing parties and entitled to attorneys' fees on the following claims as set forth in our opinion: See order for more details. (cbr) (Entered: 10/27/2008)
641 STIPULATION to Continue Status Confernce from January 5, 2009 to A FUTURE DATE TO BE DETERMINED BY THE COURT AND EXTEND THE DEADLINE FOR SUBMISSION OF A JOINT STATUS REPORT filed by Defendant County of Orange. (Attachments: # 1 Proposed Order Continuing the January 5, 2009 Status Conference and Deadline for Submission of a Joint Status Report)(Sprenger, Christina) (Entered: 12/29/2008)
642 STIPULATION AND ORDER by Judge Audrey B. Collins: re Stipulation to Continue, 641 : IT IS ORDERED the Status Conference is continued to Thursday, January 22,2009 3:00 PM before Judge Audrey B. Collins, and the joint status report shall be filed one week prior to that date. (da) Modified on 12/31/2008 (da). (Entered: 12/31/2008)
643 STIPULATION AND ORDER by Judge Audrey B. Collins: re Stipulation to Continue, 641 : that the Status Conference is continued to Thursday, January 22,2009 03:00 PM before Judge Audrey B. Collins. The joint status report shall be filed one week prior to that date. IT IS SO ORDERED. (da) (Entered: 12/31/2008)
644 STATUS REPORT JOINT STATUS CONFERENCE STATEMENT filed by Plaintiff Fred Pierce. (Keeny, Christy) (Entered: 01/15/2009)
645 MINUTES of Status Conference held before Judge Audrey B. Collins: The Court ORDERS the stay lifted. The Court encourages counsel to work toward settling Conn's individual claims. Counsel shall submit a stipulation of proposed motion cut−off, Pre Trial Conference and Trial dates, by January 30, 2009. Counsel shall contact the Clerk to Magistrate Judge Goldman to schedule a mediation conference. Counsel shall inform the Court on the outcome of mediation, as to claims, as well as to attorney fees, if successfully mediated. Counsel shall submit briefs regarding the number of disabled inmates deposed and county personnel deposed. The brief shall indicate how many testified at trial or by deposition, subject to HIPPA provision. The briefs shall be limited to 10 pages, due no later than February 5, 2009. The reply is limited to 5 pages, due no later than February 12, 2009. The Court approves designation of experts and

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03/06/2009 03/23/2009 03/24/2009

inspection of all facilities, and programs within the Orange County Sheriff's jurisdiction. Counsel is directed to contact the Clerk of Court regarding the Application to tax costs. Court Reporter: Katherine Stride. (mg) (Entered: 01/28/2009)
646 STATUS REPORT AND STIPULATION (JOINT) filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 01/30/2009)
647 STANDING ORDER by Judge Marc L. Goldman: A Settlement Conference is scheduled for 4/29/2009 at 9:30 a.m. before Magistrate Judge Marc L. Goldman. All parties and their lead counsel are required to appear on the date and time set. Pre−conference negotiations are required. (ts) (Entered: 01/30/2009)
648 MINUTES (IN CHAMBERS) by Judge Audrey B. Collins: Pursuant to the stipulation of the parties, the following dates are set: Jury Trial set for 9/8/2009 at 08:30 AM before Judge Audrey B. Collins. Final Pretrial Conference set for 8/24/2009 at 10:00 AM. Law and Motions Cut−off 6/8/2009. Discovery cut−off 6/4/2009. Expert Designation Rebuttal and Reports 6/15/09. (mg) (Entered: 02/04/2009)
649 BRIEF filed by Defendant County of Orange. Pursuant to the Court's January 22, 2009 Order Re Further Fact Finding on ADA Issues regarding Status Conference, Set/Clear Flags,,,,,,,, 645 . (Sprenger, Christina) (Entered: 02/05/2009)
650 STATUS REPORT PLAINTIFFS BRIEF RE STATUS OF PRESENTATION OF EVIDENCE RE ADA CLAIMS AND CONTACT WITH DISABLED DETAINEES; DECLARATION AND EXHIBIT IN SUPPORT THEREOF filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Declaration and Exhibit)(Keeny, Christy) (Entered: 02/05/2009)
651 BRIEF filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. PLAINTIFFS' REPLY BRIEF TO DEFENDANT'S STATUS CONFERENCE REPORT regarding Brief (non−motion non−appeal) 649 . (Keeny, Christy) (Entered: 02/12/2009)
652 REPLY BRIEF filed by Defendant County of Orange. pursuant to Court's January 22, 2009 Order (Lawrence, David) (Entered: 02/12/2009)
653 MINUTES: ORDER REGARDING DISCOVERY (In Chambers): The Court has set the case schedule in this matter. (See Docket No. 648.) However, there is an open issue as to how much discovery should be allowed in response to the Ninth Circuits mandate (Docket No. 603). To that end, the parties have submitted papers detailing the discovery previously conducted and now requested. (See DocketNos. 644, 649−652.) The first part of the parties discovery disagreements concerns release of identifying information for class members/inmates. To thatend, the Court hereby ORDERS the County to disclose to Plaintiffs the names, inmate IDs, and location of the twenty−two inmates identified at page 2 lines 3 and 4 of Defendants Brief (Docket No. 649). The Court is not authorizing the release of any other information than the three items noted above. Plaintiffs use of this information is limited to the current litigation.The second part of the parties discovery disagreements concerns general discovery, such as how many witness should be interviewed or disposed. To this end, the Court REFERS the parties to Magistrate Judge Goldman for resolution of these issues IT IS SO ORDERED by Judge Audrey B. Collins. (ir) (Entered: 02/24/2009)
654 BILL OF COSTS DENIED. Application to tax costs is premature. Final Judgment has not been rendered RE: APPLICATION to the Clerk to Tax Costs against defendant County of Orange, Michael S Carona, Does 1 − 200 627 (kr) (Entered: 03/06/2009)
655 NOTICE of Change of Attorney Information for attorney Wendy J Phillips counsel for Defendant County of Orange. Changing wendy.phillips@coco.ocgov.com to 714−834−2359. Adding Wendy J. Phillips as attorney as counsel of record for County of Orange for the reason indicated in the G−06 Notice. Filed by defendant County of Orange (Phillips, Wendy) (Entered: 03/23/2009)
656 NOTICE of Change of Attorney Information for attorney Jack W Golden counsel for Defendant County of Orange.James L. Turner is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by defendant County of Orange (Golden, Jack) (Entered: 03/24/2009)

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08/03/2009

657 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: account information was not updated RE: Notice of Change of Attorney Information (G−06) 655 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (vh) (Entered: 03/24/2009)
658 STIPULATION to Continue Settlement Conference from April 29, 2009 to June 4, 2009 filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 04/29/2009)
659 ORDER by Magistrate Judge Marc L. Goldman, re Stipulation to Continue 658 , ( Settlement Conference reset for 6/4/2009 09:30 AM before Magistrate Judge Marc L. Goldman.) (dmjr) Modified on 5/5/2009 (dmjr). (Entered: 04/30/2009)
660 STIPULATION to Extend Discovery Cut−Off Date to and Expert Discovery dates filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 05/14/2009)
661 MINUTES OF IN CHAMBERS ORDER MODIFYING CASE SCHEDULE held before Judge Audrey B. Collins: The parties stipulated to modify the discovery cut−off dates in this matter. Accordingly, pursuant to the parties' stipulation, the Court MODIFIES the discovery deadlines as follows: Discovery Cut−off July 10, 2009; Initial Expert Disclosures July 10, 2009; Rebuttal Expert Disclosures July 24, 2009; Expert Discovery Completion August 14, 2009. The parties did not stipulate or propose new dates for filing dispositive motions, currently set for June 8, 2009, the pre−trial conference, currently set for August 24, 2009, or trial, currently set for September 8, 2009. Accordingly, the Court MODIFIES those dates as follows: Law & Motion Filing Cut−off August 31, 2009; Pre−trial Conference November 16, 2009 at 10:00 a.m.; Trial December 1, 2009 at 8:30 a.m. In the future, the parties should modify all affected dates when submitting stipulations and proposed orders. (bm) (Entered: 05/18/2009)
662 MINUTES OF Settlement Conference held before Magistrate Judge Marc L. Goldman. The parties met this date for a mandatory settlement conference. The parties were unable to reach an agreement on disposition of the case through settlement. (db) (Entered: 06/08/2009)
663 STIPULATION to Extend Discovery Cut−Off Date filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 06/29/2009)
664 ORDER by Judge Audrey B. Collins Re Continuance of Discovery and Related Deadlines. Pursuant to the Stipulation of the Parties 663 , IT IS HEREBY ORDERED as follows: Discovery Cut−off: Aug. 24, 2009; Initial Expert Disclosure: Aug. 10, 2009; Rebuttal Expert Disclosure: Aug. 24, 2009; Expert Discovery Completion: Sept. 14, 2009; and Motion filing deadline: Sept. 21, 2009. Final Pretrial Conference and Jury Trial dates may have to be continued. (mg) (Entered: 07/02/2009)
665 NOTICE OF MOTION AND MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF filed by plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. Motion set for hearing on 9/14/2009 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Declaration Declaration of Virginia Keeny, # 2 Exhibit Exhibit A to Keeny Declaration, # 3 Exhibit Exhibit B to Keeny Declaration, # 4 Exhibit Exhibit C to Keeny Declaration, # 5 Exhibit Exhibit D to Keeny Declaration, # 6 Declaration Declaration of Barret Litt, # 7 Exhibit Exhibit A to Litt Declaration, # 8 Exhibit Exhibit B part 1 of Litt Declaration, # 9 Exhibit Exhibit B part 2 of Litt Declaration, # 10 Declaration Declaration of Richard Herman, # 11 Exhibit Exhibit A of Herman Declaration, # 12 Declaration Declaration of Peter Eliasberg, # 13 Exhibit Exhibit 1 of Eliasberg Declaration, # 14 Exhibit Exhibit 2 of Eliasberg Declaration, # 15 Exhibit Exhibit 3 of Eliasberg Declaration, # 16 Exhibit Exhibit 4 of Eliasberg Declaration, # 17 Declaration Declaration of Paula Pearlman, # 18 Declaration Declaration of Nora Quinn, # 19 Declaration Declaration of Michelle Reinglass)(Keeny, Christy) (Entered: 07/31/2009)
666 STIPULATION to Reschedule STIPULATION RE BRIEFING SCHEDULE REGARDING PLAINTIFFS' CONTINUED NOTICE OF MOTION FOR

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ATTORNEYS' FEES filed by plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Proposed Order [PROPOSED] ORDER RE BRIEFING SCHEDULE FOR RENEWED MOTION FOR ATTORNEYS' FEES)(Keeny, Christy) (Entered: 08/03/2009)
667 ORDER RE BRIEFING SCHEDULE FOR RENEWED MOTION FOR ATTORNEYS' FEES by Judge Audrey B. Collins, re Stipulation 666 : Defendant's Opposition Brief shall be filed by August 14, 2009; Plaintiff's Reply brief shall be filed by August 21, 2009. (bm) (Entered: 08/05/2009)
668 MEMORANDUM in Opposition to MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF 665 filed by Defendant County of Orange. (Choi, Jin) (Entered: 08/14/2009)
669 DECLARATION of JIN S. CHOI IN OPPOSITION TO MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF 665 filed by Defendant County of Orange. (Attachments: # 1 Exhibit A, B, C, # 2 Exhibit D, E, F, # 3 Exhibit G, H, I, J)(Choi, Jin) (Entered: 08/14/2009)
670 NOTICE OF ERRATA filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. correcting MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF 665 (Attachments: # 1 Exhibit Exhibit A)(Keeny, Christy) (Entered: 08/20/2009)
671 REPLY Support MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF 665 filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Declaration Declaration of Virginia Keeny and Exhibits 1−3, # 2 Declaration Declaration of Carol A. Sobel and Exhibits A−G)(Keeny, Christy) (Entered: 08/21/2009)
672 NOTICE of Change of Attorney Information for attorney Wendy J Phillips counsel for Defendant County of Orange.Steven C. Miller is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by defendant County of Orange (Phillips, Wendy) (Entered: 08/25/2009)
673 MINUTES OF IN CHAMBERS ORDER Re: Plaintiffs' Motion for Attorneys' Fees held before Judge Audrey B. Collins: The hearing in this matter is presently scheduled for Monday, September 14, 2009. Due to court congestion, the Court hereby CONTINUES the hearing to Monday, November 9, 2009, at 10:00 a.m. (bm) (Entered: 09/10/2009)
674 MINUTES OF IN CHAMBERS ORDER Re: Plaintiffs' Motion for Attorneys' Fees held before Judge Audrey B. Collins: The Court hereby ORDERS Plaintiffs to either submit the Commissioner's recommendation to this Court, or advise the Court that the recommendation has not yet been issued. If it is not issued, Plaintiffs must file it with this Court as soon as it becomes available. Plaintiffs may respond to this order declaration of counsel. Plaintiffs' response must be filed no later than Monday, October 19, 2009. (see document for further details) (bm) (Entered: 10/13/2009)
675 Joint STIPULATION for Extension of Time to File Pretrial Documents filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 10/29/2009)
676 ORDER TO CONTINUE DEADLINE FOR SERVICE OF PRETRIAL DOCUMENTS by Judge Audrey B. Collins, re Stipulation 675 : The Court having considered the parties' Stipulation for a continuance of service of pretrial documents, and good cause having been found, it is hereby ordered that service of pretrial documents is continued to November 09, 2009. (bm) (Entered: 11/02/2009)
677 NOTICE OF MOTION AND First MOTION IN LIMINE to Exclude and/or Limit Trial Testimony of Defense Expert Michael Gibbens, First MOTION IN LIMINE to Limit and/or exclude trial testimony of defense expert Michael Gibbens( Motion set for hearing on 11/16/2009 at 10:00 AM before Judge Audrey B. Collins.) filed by

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plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Declaration Declaration of Virginia Keeny, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3)(Keeny, Christy) (Entered: 11/02/2009)
678 NOTICE OF LODGING filed Re: Plaintiff's Proposed Order Excluding or Limiting Testimony of Defense Expert Michael Gibbens re First MOTION IN LIMINE to Exclude and/or Limit Trial Testimony of Defense Expert Michael GibbensFirst MOTION IN LIMINE to Limit and/or exclude trial testimony of defense expert Michael Gibbens 677 (Attachments: # 1 Proposed Order Plaintiff's Proposed Order Excluding or Limiting Testimony of Defense Expert Michael Gibbens)(Keeny, Christy) (Entered: 11/03/2009)
679 MINUTES (IN CHAMBERS) ORDER by Judge Audrey B. Collins taking under submission 665 Motion for Attorney Fees; Status Conference: Pending before the Court is Plaintiffs' motion for attorney's fees and costs, set for hearing on November 9, 2009 at 10:00 a.m. The Court finds the matter appropriate for resolution without oral argument and VACATES the November 9, 2009 hearing date on the motion. Fed. R. Civ. P. 78; Local Rule 7−15. The pretrial conference in this matter is currently set for Monday, November 16, 2009 and the trial is set for December 1, 2009. The Court is unavailable for trial commencing on December 1, 2009. Therefore, the parties are ORDERED to appear before the Court on November 9, 2009 at 10:00 a.m. for a status conference to discuss proposed new pretrial and trial dates in early 2010. Finally, the Court notes that, on October 9, 2009, it ordered Plaintiffs to file a declaration by October 19, 2009 indicating whether the Ninth Circuit Commissioner had made any recommendation on Plaintiffs' claims for attorney's fees on appeal. (Docket No. 674.) Plaintiffs filed nothing in response to the Court's order. Plaintiffs should be prepared to explain why they failed to comply with the Court's order and to update the Court on the status of its fee award with the Ninth Circuit Commissioner. (bm) (Entered: 11/05/2009)
680 STATUS REPORT Plaintiffs' status update regarding 9th circuit commissioner's ruling on interim attoryney fees filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Keeny, Christy) (Entered: 11/06/2009)
681 NOTICE Notice of Errata filed by Plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Exhibit Exhibit A)(Keeny, Christy) (Entered: 11/06/2009)
682 MINUTES OF STATUS CONFERENCE held before Judge Audrey B. Collins: The Court ORDERS the Pretrial Conference set January 25, 2010 at 10:00 a.m. The Court Trial estimate is 3−4 days. The Court Trial is set starting February 9, 2010 at 9:00 a.m. to February 10, 2010 and continuing to February 16, 2010 to February 17, 2010. If the court is not available on the above dates for trial, backup dates are starting March 23, 2010, March 24, 2010 and continuing to March 30, 2010 and March 31, 2010. The Court will wait for the full amount to address plaintiffs' motion for attorney fees and costs previously taken under submission November 6, 2009. Court Reporter: Sandra Becerra. (bm) (Entered: 11/12/2009)
683 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Notice of Errata 681 . Incorrect event selected. Correct event is Miscellaneous Filings (Non−Motion)−Errata. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (bm) (Entered: 11/12/2009)
684 ORDER RE: LEGAL ISSUES RAISED IN PLAINTIFFS' MOTION FOR ATTORNEY'S FEES by Judge Audrey B. Collins, re MOTION 665 : The Court concludes that Plaintiffs are prevailing parties under § 1988 and section 1021.5, but that some reduction in the amount of fees is necessary due to their limited success. The Court finds that the PLRA caps the hourly rate for attorneys, paralegals, and law clerks at $150, even though Plaintiffs pled state constitutional claims that might entitle them to fees. The Court does not decide whether Plaintiffs' 25 percent reduction in fees to reflect their limited success is reasonable, or whether some higher percentage reduction is necessary, although the Court does note that neither side has explained how the Court could adequately justify a reduction. And the Court leaves both the lodestar calculation and the ultimate award of fees until after Plaintiffs' ADA claims

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 66 of 88

01/04/2010 01/04/2010 01/04/2010 01/04/2010 01/07/2010 01/15/2010 01/25/2010
01/25/2010 02/01/2010
02/02/2010 02/02/2010 02/09/2010

are adjudicated. (see document for further details) (bm) (Entered: 11/25/2009)
685 Witness List filed by Defendant County of Orange.. (Sprenger, Christina) (Entered: 01/04/2010)
686 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Plaintiffs' Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Keeny, Christy) (Entered: 01/04/2010)
687 Witness List filed by Plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn.. (Keeny, Christy) (Entered: 01/04/2010)
688 JOINT Exhibit List filed by Plaintiff Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn.. (Keeny, Christy) (Entered: 01/04/2010)
689 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Defendant County of Orange. (Attachments: # 1 Exhibit A pages 16−45, # 2 Exhibit A pages 46−84, # 3 Exhibit A pages 85−109)(Sprenger, Christina) (Entered: 01/07/2010)
690 NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn. (Attachments: # 1 Proposed Order Proposed PreTrial Conference Order)(Keeny, Christy) (Entered: 01/15/2010)
691 MINUTES: FINAL PRE TRIAL CONFERENCE; PLAINTIFFS MOTION IN LIMINE TOEXCLUDE AND/OR LIMIT TRIAL TESTIMONY OF DEFENSE EXPERT MICHAEL GIBBENS [E−FILED 11/2/09−DOC #677]; Matter called. Counsel are present. Defendants counsel represents to the Court that the opposition to the motion in limine listed above will be e−filed within the trial brief. Court informs counsel of all papers received with respect to the Court trial. Court and counsel confer regarding hours deemed for Court trial. Courts amends pretrial conference order with respect to length of trial in open Court. Each side will have 11hours for opening, direct, cross−examination, and closing. Court and counsel confer regarding direct evidence by deposition to be presented at trial. Court signs pretrial conference order in open Court. Court and counsel confer regarding Court trial dates. The Court having heard from counsel, hereby dismisses the back up trial dates of March 30, 2010 and March 31, 2010. Counsel for plaintiffs and defendants are hereby ORDERED to appear on February 9, 2010 at 8:45 a.m., for Court trial, this date will take precedence over all other dates set. IT IS SO ORDERED by Judge Audrey B. Collins.Court Reporter: Katherine Stride. (ir) (Entered: 02/01/2010)
692 PRETRIAL CONFERENCE ORDER approved by Judge Audrey B. Collins (ir) (Entered: 02/01/2010)
693 MINUTES: Order regarding Bench Trial (In Chambers) This matter is set for a bench trial scheduled to commence on February 9, 2010 at 8:45 a.m. At the final pre−trial conference held on January 25, 2010, the Court allowed each side 11 hours for opening, direct, cross−examination, and closing. The Court and counsel tentatively discussed the possibility that direct testimony of experts and other witnesses could be presented by way of expert reports and deposition transcripts, and cross−examination and redirect testimony would be presented live. However, the Court has reviewed the pre−trial filings from the parties and believes that live direct testimony will be helpful to resolution of this matter. Thus, the Court will give each side up to two additional hours beyond the 11 hours already given to present the direct testimony of expert and other witnesses. The previously set additional trial dates of March 23 and March 24, 2010 remain effective, since presentation of evidence may go beyond the four dates of February 9, 10, 16, and 17, 2010 already set by the Court IT IS SO ORDERED by Judge Audrey B. Collins. (ir) (Entered: 02/01/2010)
694 TRIAL BRIEF filed by Plaintiffs Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn, Max Sanders.. (Keeny, Christy) (Entered: 02/02/2010)
695 TRIAL BRIEF filed by Defendant County of Orange.. (Attachments: # 1 Exhibit 1 and 2)(Lawrence, David) (Entered: 02/02/2010)
696 AMENDED JOINT Exhibit List filed by PLAINTIFFS Fermin Valenzuela, Laurie D Ellerston, Fred Pierce, Timothy Lee Conn.. (Keeny, Christy) (Entered: 02/09/2010)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 67 of 88

02/09/2010
02/10/2010 02/16/2010 02/17/2010 02/19/2010 02/22/2010
02/23/2010 03/10/2010 03/15/2010
03/16/2010 03/22/2010 03/23/2010 03/23/2010 03/23/2010

697 MINUTES OF COURT TRIAL (1st Day) held before Judge Audrey B. Collins denying 677 Motion in Limine to Exclude; granting 677 Motion in Limine to Limit. Opening statements made. Witneses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 2/10/2010 at 8:45 AM. Other: Doc #677, In Limine Motion, by plaintiff to exclude defense expert Michael Gibbons is DENIED and to limit trial testimony of defense expert Michael Gibbens is GRANTED. Court Reporters: Katherine Stride − AM/Lisa Gonzalez − PM. (bm) Modified on 2/12/2010 (bm). (Entered: 02/12/2010)
698 MINUTES OF Court Trial (2nd day) held before Judge Audrey B. Collins: Opening statements made. Witnesses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 2/16/2010 at 8:45 AM. Court Reporters: Katherine Stride − AM/Lisa Gonzalez − PM. (bm) (Entered: 02/12/2010)
699 MINUTES OF Court Trial (3rd day)held before Judge Audrey B. Collins: Witnesses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 2/17/2010 at 8:45 AM. Court Reporters: Katherine Stride − AM/Lisa Gonzalez − PM. (bm) (Entered: 02/18/2010)
701 MINUTES: 4th Day Court Trial; Held and continued; Witnesses called, sworn and testified. Exhibits identified. Case continued to Tuesday, 3/23/2010 08:45 AM for further trial/further jury deliberation by Judge Audrey B. Collins.Court Reporter: Katherine Stride. (ir) (Entered: 02/22/2010)
700 STIPULATION to Dismiss Case pursuant to Plaintiff Timothy Conn's Individual Damages Claims filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 02/19/2010)
702 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Stipulation to Dismiss Case 700 . The following error was found: Proposed Order has incorrect name of District Judge on signature line. Assigned Judge is District Judge Audrey B. Collins. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (ir) (Entered: 02/22/2010)
703 ORDER by Judge Audrey B. Collins pursuant to the foregoing Stipulation 700 , the individual claims for damages relating to Plaintiff Timothy Conn's incarceration at the Orange County Jail, be dismissed with prejudice. (ir) (Entered: 02/24/2010)
704 NOTICE of Filing Amended Exhibit No. 156 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 03/10/2010)
705 NOTICE Plaintiff's Designated Excerpts of Deposition filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred Pierce, Adam Ramirez, Max Sanders, Fermin Valenzuela. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Supplement Designation of Deposition Excerpts)(Keeny, Christy) (Entered: 03/15/2010)
706 REQUEST FOR JUDICIAL NOTICE filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Attachments: # 1 Declaration of Virgina Keeny, # 2 Exhibit 1)(Keeny, Christy) (Entered: 03/16/2010)
707 NOTICE Plaintiff's Designated Excerpts of Deposition filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Attachments: # 1 Supplement Designation of Deposition Excerpts)(Keeny, Christy) (Entered: 03/22/2010)
708 NOTICE of Filing Second Amended Exhibit No. 156 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 03/23/2010)
709 OBJECTIONS to Plaintiff's Notice of Deposition Excerpts and Request for Judicial Notice filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 03/23/2010)
710 MINUTES OF Jury Trial − 5th Day held before Judge Audrey B. Collins: Witnesses called, sworn and testified. Exhibits identified and admitted. Jury Trial continued to 3/24/2010 at 9:00 AM. Court Reporters: Katherine Stride− AM/Lisa Gonzalez − PM.

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 68 of 88

03/23/2010 03/24/2010 03/24/2010 03/24/2010 03/24/2010 03/24/2010 03/24/2010 03/24/2010 03/24/2010
03/25/2010 04/15/2010

(bm) (Entered: 03/24/2010)
712 MINUTES OF Court Trial (5th day )held before Judge Audrey B. Collins: Witnesses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 3/24/2010 at 9:00 AM. Court Reporters: Katherine Stride − AM/Lisa Gonzalez − PM. (bm) (Entered: 03/24/2010)
711 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Jury Trial − Held and Continued, 5th Day 710 : Due to clerical error, the following docket entry has been corrected as indicated below. Other: Incorrect docketing event was used indicateing a jury trial when it should have beena court trial. (bm) (Entered: 03/24/2010)
713 MINUTES OF Court Trial (6th Day) held and completed before Judge Audrey B. Collins: Witnesses called, sworn and testified. Exhibits identifed and admitted. Plaintiff(s) rest. Defendants(s) rest. Filed Witness & Exhibit Lists. Case Submitted. Briefs to be filed by April 15, 2010; Responsive briefs to opposing counsel briefs due April 22, 2010. Other: The Court addresses its tentative minute order issued to counsel this morning. Court Reporter: Lisa Gonzalez − AM. (bm) (Entered: 03/24/2010)
714 LIST OF EXHIBITS AND WITNESSES at trial. (bm) (Entered: 03/24/2010)
715 AMENDED JOINT Exhibit List filed by plaintiffs and defendants Michael S Carona, Timothy Lee Conn, County of Orange, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (bm) (Entered: 03/24/2010)
716 Defendant's Witness List filed by defendants Michael S Carona, County of Orange. (bm) (Entered: 03/24/2010)
717 Plaintiff's Witness List filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (bm) (Entered: 03/24/2010)
718 RECEIPT FOR RELEASE OF EXHIBITS to Counsel Upon Verdict/Judgment at Trial; Pursuant to stip of counsel and/or by Order of the Court, all exhibits listed on Joint exhibits list are returned to counsel for respective party(ies). (bm) (Entered: 03/24/2010)
719 MINUTES OF IN CHAMBERS ORDER re: Briefing Following Bench Trial held before Judge Audrey B. Collins: During the course of the bench trial in this matter, the parties have raised several issues that the Court and the parties have agreed would be best resolved with the aid of written briefs filed by the parties prior to the parties' filing of proposed findings of fact and conclusions of law. Those issues are: (1) the scope of the issues remanded by the Ninth Circuit Court of Appeals; (2) what accessibility guidelines apply to the Orange County jail facilities; (3) whether the Pretrial Conference Order includes Plaintiffs' claim of lack of notice and grievance procedure under the ADA; and (4) whether certain expert testimony must be stricken from the record. (see document for further details) The parties agreed to the Court's proposed briefing schedule that the parties would file simultaneous opening briefs addressing these issues no later than Thursday, April 15, 2010 and file simultaneous responding briefs no later than Thursday, April 22, 2010. The Court declines to set oral argument at this time, see Fed. R. Civ. P. 78; Local Rule 7−15, but it may do so. Any argument on these issues would be in addition to closing arguments. Once these matters are resolved, the Court will consult with the parties on the proposed schedule moving forward with proposed findings of fact and conclusions of law and closing arguments. (bm) (Entered: 03/24/2010)
720 NOTICE of Change of Attorney Information for attorney Hernaldo Jose Baltodano counsel for Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred Pierce, Fermin Valenzuela.HERNALDO J. BALTODANO is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by Attorney Hernaldo J. Baltodano (Baltodano, Hernaldo) (Entered: 03/25/2010)
721 MEMORANDUM OF POINTS AND AUTHORITIES RE COURT'S MARCH 24, 2010 MINUTE ORDER; DECLARATION OF DAVID D. LAWRENCE AND EXHIBITS filed by Defendant County of Orange re: Minutes of In Chambers Order/Directive − no proceeding held,,,,, 719 (Lawrence, David) (Entered: 04/15/2010)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 69 of 88

04/15/2010 04/15/2010 04/15/2010 04/22/2010 04/22/2010 04/22/2010 04/23/2010
05/04/2010
05/07/2010 05/10/2010

722 TRIAL BRIEF filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Keeny, Christy) (Entered: 04/15/2010)
723 REQUEST FOR JUDICIAL NOTICE filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (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)(Keeny, Christy) (Entered: 04/15/2010)
724 NOTICE of Errata filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Attachments: # 1 Exhibit A)(Keeny, Christy) (Entered: 04/15/2010)
725 TRIAL BRIEF Reply filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela.. (Keeny, Christy) (Entered: 04/22/2010)
726 DEFENDANT COUNTY OF ORANGE'S RESPONSE TO PLAINTIFFS' POST−TRIAL BRIEF; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CHRISTINA SPRENGER WITH EXHIBITS filed by Defendant County of Orange re: Trial Brief 722 (Lawrence, David) (Entered: 04/22/2010)
727 OBJECTIONS AND REQUEST TO STRIKE EVIDENCE SUBMITTED IN PLAINTIFFS' POST−TRIAL BRIEF AND SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE re: Request for Judicial Notice, 723 , Trial Brief 722 (Lawrence, David) (Entered: 04/22/2010)
728 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Reply 725 , Response 726 , Objections and Request 727 . The following error(s) was found: Incorrect event selected. Other error(s) with document(s) are specified below. The correct event is: Miscellaneous Filings (Non−Motion)−Reply (non−motion) 725 and link to document. Miscellaneous Filings (Non−Motion)−Response (non−motion) 726 . Miscellaneous Filings (Non−Motion)−Objections−non motion 727 . Other error(s) with document(s): Proposed order not submitted 727 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 04/23/2010)
729 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 576 filed by Fred Pierce, Timothy Lee Conn, Laurie D Ellerston, Fermin Valenzuela, CCA # 05−55829. Order received in this district on 5/4/10. The appellate Commissioner's report and recommendation is adopted in full. Accordingly, attorneys' fees of $143,472.60 are awarded in favor of Fred Pierce, Timothy Lee Conn, Fermin Valenzuela, and Laurie D. Ellerston and against the County of Orange, Michael S. Carona, and the other appellees. (cbr) (Entered: 05/04/2010)
731 ORDER RE: PRELIMINARY TRIAL ISSUES by Judge Audrey B. Collins. (bm) (Entered: 05/10/2010)
730 MINUTES OF IN CHAMBERS ORDER held before Judge Audrey B. Collins: On March 24, 2010, the Court ordered the parties to brief several issues following the bench trial in this case, which the Court has resolved in a concurrently issued Order. Pursuant to that Order, the Court will reopen trial proceedings to give each side one (1) hour to present evidence on the issue of whether Plaintiffs "were denied adequate notice of their rights under the ADA and an appropriate grievance procedure, as required by the regulations." Pierce v. County of Orange, 526 F.3d 1190, 1223 (9th Cir. 2008) (citing 28 C.F.R. §§ 35.106, 35.107). After receiving input from the parties, the Court will also set a schedule for the parties to give closing arguments and to file their proposed findings of fact and conclusions of law. The Court will holding closing arguments first. Plaintiffs will be given ninety minutes to present their closing arguments, and the County will be given ninety minutes to respond with its closing arguments. Plaintiffs will then be given twenty minutes for rebuttal. The parties will then submit their findings of fact and conclusions of law. Because Plaintiffs bear the ultimate burden of proof, Plaintiffs will submit their findings and conclusions first, and the County may file its own findings and conclusions in response. Plaintiffs may then

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 70 of 88

05/18/2010 05/18/2010
06/03/2010 06/08/2010 06/09/2010 06/09/2010 06/10/2010
06/10/2010 06/21/2010 06/23/2010 07/15/2010

have an opportunity to file a reply. The parties are ORDERED to meet and confer and lodge a proposed order no later than Monday, May 17, 2010, proposing the following dates: (1) the date on which each side will present an additional one (1) hour of evidence on the notice and grievance issue; (2) the date of closing arguments; and (3) the schedule for submitting proposed findings of fact and conclusions of law after closing arguments. In setting the briefing schedule after closing arguments, the parties should allow themselves at least three weeks between each brief. In setting dates for proceedings to be held in Court, the parties should be aware that, because of duties as Chief Judge, the Court is unavailable on May 19 through May 26, June 11, July 7 through July 9, August 16 through August 20, and August 27 through September 6, 2010. (bm) (Entered: 05/10/2010)
732 NOTICE OF LODGING filed re Minutes of In Chambers Order/Directive − no proceeding held,,,,,,,, 730 (Attachments: # 1 Proposed Order Regarding Post Trial Dates and Briefing Schedule)(Keeny, Christy) (Entered: 05/18/2010)
733 ORDER REGARDING POST TRIAL DATES AND BRIEFING SCHEDULE by Judge Audrey B. Collins: Pursuant to this Court's order of May 10, 2010 and the joint submission of the parties in response to such order, the following post trial dates and briefing schedules are set: 1) The court will hear an additional two hours of evidence regarding whether Plaintiffs were denied adequate notice of their rights under the ADA and an appropriate grievance procedure on June 10, commencing at 8:45 a.m. 2) The court will hear closing argument from the parties on June 23, commencing at 8:45 a.m. 3) Plaintiffs will submit their Proposed Findings of Fact and Conclusions of Law on August 5, 2010. 4) Defendants will submit their Proposed Findings of Fact and Conclusions of Law on August 5, 2010. 5) Plaintiff will submit any rebuttal or reply brief on August 26, 2010. (bm) (Entered: 05/19/2010)
734 NOTICE OF PLAINTIFFS DESIGNATION OF DEPOSITION EXCERPTS REGARDING GRIEVANCE PROCEDURE UNDER ADA filed by Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Attachments: # 1 Exhibit Plaintiffs Notice Deposition of Person Most Knowledgeable, # 2 Exhibit Designated Excerpts of Peterson's Depo)(Keeny, Christy) (Entered: 06/03/2010)
735 MINUTES OF IN CHAMBERS ORDER re POST TRIAL HEARING held before Judge Audrey B. Collins: On the court's own motion, the above matter, noticed for hearing on June 10, 2010 at 8:45 a.m., is hereby advanced to June 10, 2010 at 8:30 a.m. Counsel of record to appear on date and new time specified. (bm) (Entered: 06/08/2010)
736 JOINT AMENDED Exhibit List filed by Defendant County of Orange.. (Sprenger, Christina) (Entered: 06/09/2010)
737 Witness List filed by Defendant County of Orange.. (Sprenger, Christina) (Entered: 06/09/2010)
738 MINUTES OF Court Trial (7th (Post) day)held before Judge Audrey B. Collins: Witnesses called, sworn and testified. Exhibits identified and admitted. Filed Witness & Exhibit Lists. Other: post Court trial held re: further evidence with respect to plaintiffs' denial of adequate notice of rights under ADA and appropriate grievance procedure; case continued for further closing arguments to June 23, 2010 at 8:45 a.m. Court Reporter: Katherine Stride. (bm) (Entered: 06/11/2010)
739 LIST OF EXHIBITS AND WITNESSES at trial. (bm) (Entered: 06/11/2010)
740 DECLARATION of Lieutenant Michael Toledo filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 06/21/2010)
741 MINUTES OF Court Trial (8th (Post) Day) held and completed before Judge Audrey B. Collins: Post Court trial closing arguments held; Counsel reminded that the plaintiffs' proposed findings of fact & conclusion of law due July 15, 2010; defendants due August 5, 2010; plaintiffs' rebuttal or reply brief due August 26, 2010. Court Reporter: Katherine Stride. (bm) (Entered: 06/25/2010)
742 NOTICE OF LODGING filed PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW re Bench Trial − Completed (Court Decision), Bench Trial − Completed (Court Decision) 741 (Attachments: # 1 Exhibit A)(Keeny, Christy)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 71 of 88

08/05/2010 08/06/2010
08/24/2010 08/25/2010
08/26/2010 08/27/2010 08/27/2010
09/01/2010 09/07/2010 01/07/2011 02/18/2011

(Entered: 07/15/2010)
743 Defendant's [Proposed] Findings of Fact and Conclusions of Law filed by Defendant County of Orange (Sprenger, Christina) (Entered: 08/05/2010)
744 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: [Proposed] Findings of Fact and Conclusions 743 . The following error(s) was found: Incorrect event selected. Other error(s) with document(s) are specified below. The correct event is: Notices−Notice of Lodging. Other error(s) with document(s): [Proposed] Findings of Fact and Conclusions of Law should be submitted as a separate, additional attachment to a Notice of Lodging. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 08/06/2010)
745 OBJECTIONS to Notice of Lodging 742 RE: PLAINTIFFS PROPOSED FINDINGS OF FACT filed by Defendant County of Orange. (Sprenger, Christina)***DOCUMENT IS STRICKEN PURSUANT TO COURT ORDER DATED 8−25−10, DOC #746*** Modified on 8/25/2010 (lw). (Entered: 08/24/2010)
746 MINUTE (IN CHAMBERS) ORDER STRIKING Defendant's Objections to Plaintiff's Proposed Findings of Fact (Docket no. 745) by Judge Audrey B. Collins: striking Objections 745 . On August 24, 2010, Defendants County of Orange, et al. (the "County"), filed a document entitled "Defendant's Objections to Plaintiff's Proposed Findings of Fact."(Docket No. 745.) The filing of this document violates the post−trial briefing schedule set by the Court, which allowed theCounty until August 5, 2010 to file its proposed findings of fact and conclusions of law. Moreover, the County offers no explanation why it waited nearly six weeks after Plaintiffs filed their proposed findings of fact on July 15, 2010 to file purported objections to them. The document is STRICKEN and the Court has not considered the matters stated therein. (lw) (Entered: 08/25/2010)
747 NOTICE OF LODGING filed re Notice of Lodging 742 (Attachments: # 1 Exhibit Plaintiffs Reply Brief in Support of Proposed Findings of Fact and Law)(Keeny, Christy) (Entered: 08/26/2010)
748 NOTICE filed by Plaintiffs Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. NOTICE OF CHANGE IN FIRM NAME (Litt, Barrett) (Entered: 08/27/2010)
749 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Name Change 748 . The following error(s) was found: Other error(s) with document(s) are specified below. Other error(s) with document(s): Document should be filed as a Notice of Change of Attorney Information (G−06) using relief Notices−Change of Attorney Information (G−06). In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 08/27/2010)
750 EX PARTE APPLICATION for Consideration of /Judicial Notice of Court Filings; Memorandum of Points and Authorities; Declaration of David D. Lawrence and Exhibits filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 09/01/2010)
751 ORDER by Judge Audrey B. Collins granting 750 Ex Parte Application for Judicial Notice of Court Filings: Defendant COUNTY OF ORANGE, having submitted its UNOPPOSED EX PARTE APPLICATION FOR JUDICIAL NOTICE OF COURT FILINGS, and Plaintiffs having no opposition to same, the Court hereby takes judicial notice of the documents attached to the ex parte application which already exist in the Court's file at docket numbers 452, 462, 478, and 484. (bm) (Entered: 09/07/2010)
752 FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Audrey B. Collins. (ir) (Entered: 01/10/2011)
753 RESPONSE filed by Defendant County of Orangeto Findings of Fact & Conclusions of Law 752 (Sprenger, Christina) (Entered: 02/18/2011)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 72 of 88

03/11/2011 03/14/2011 03/15/2011
03/28/2011 04/05/2011 04/06/2011
04/19/2011 04/20/2011
05/02/2011 05/02/2011 05/19/2011

754 REPLY filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela to Response (non−motion) 753 (Attachments: # 1 Exhibit 1)(Keeny, Christy) (Entered: 03/11/2011)
755 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Reply (non−motion) 754 . The following error(s) was found: Local Rule 11−6 Memorandum brief exceeds 25 pages. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (db) (Entered: 03/15/2011)
756 MINUTE ORDER IN CHAMBERS re ORDER Granting Leave for Defendant to File Reply Brief and Continuing Hearing and Status Conference by Judge Audrey B. Collins: The Court has reviewed both Defendant County of Orange's (the "County's") Proposed Plan in response to the Court's Findings of Fact and Conclusions of Law (Docket No. 753) and Plaintiffs Fred Pierce, et al.'s Reply (Docket No. 754). The Court believes that a response from the County to Plaintiffs' Reply would be helpful and GRANTS the County LEAVE to file a responsive brief no later than Monday, April 11, 2011. The Court CONTINUES the hearing and status conference in this matter to Monday, April 25, 2011 at 10:00 a.m. The parties are strongly encouraged to meet and confer to discuss the issues raised by Plaintiff's reply brief and resolve as much as possible before the County files its response. (bm) (Entered: 03/15/2011)
757 NOTICE of Appearance filed by attorney Radhika Sainath on behalf of Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred Pierce, Fermin Valenzuela (Sainath, Radhika) (Entered: 03/28/2011)
758 EXPARTE APPLICATION for Extension of Time to File Response to Plaintiffs' Objections to the Proposed ADA Plan; Memorandum of Points and Authorities filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 04/05/2011)
759 ORDER FOR A BRIEF EXTENSION TO RESPOND To Plaintiff's Objections To The Proposed ADA Plan by Judge Audrey B. Collins granting 758 Ex Parte Application: Pursuant to the agreement of the parties, Defendant's Ex Parte Application, and good cause appearing therefor, IT IS HEREBY ORDERED as follows: 1. Defendant is granted through and including April 25, 2011 to submit its responsive briefing. 2. The hearing currently scheduled for April 25, 2011, is continued to May 23, 2011, at 10:00 a.m., in Courtroom 680, of the United States District Court, located at 255 East Temple Street, Los Angeles, CA 90012. (bm) (Entered: 04/06/2011)
760 EX PARTE APPLICATION to Exceed Page Limitation Response to Plaintiffs' Objections to the Proposed Plan, EXPARTE APPLICATION for Extension of Time to File Response to Plaintiffs' Objections to the Proposed Plan filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 04/19/2011)
761 ORDER FOR 1. AN EXTENSION OF THE PAGE LIMIT FOR DEFENDANTS BRIEFING, AND 2. A FOUR−DAY EXTENSION TO RESPOND TO PLAINTIFFS' OBJECTIONS TO THE PROPOSED ADA PLAN by Judge Audrey B. Collins:IT IS HEREBY ORDERED as follows: 1. An extension of the standard page limit to 45 pages to submit the County's revised proposed ADA Plan as well as its direct responses to each of Plaintiffs' objections to the prior proposed ADA Plan. 2. Defendant is granted through and including May 2, 2011 to submit its responsive briefing. granting 760 Ex Parte Application (lw) (Entered: 04/22/2011)
762 Defendant's Amended Proposed Plan (Sprenger, Christina) (Entered: 05/02/2011)
763 Defendant's Compendium of Plaintiffs' Objections and Defendant's Responses Thereto (Sprenger, Christina) (Entered: 05/02/2011)
764 MINUTE ORDER IN CHAMBERS by Judge Audrey B. Collins:A hearing is set for Monday, May 23, 2011 at 10:00 a.m. for the parties to discuss the outstanding objections to the Countys Amended Plan, filed on May 2, 2011. (Docket No. 762.) The Court has prepared a tentative Order addressing the issues outlined in the Countys Compendium of Plaintiffs Objections (Docket No. 763), which the Court will send to the parties via email concurrently with this Minute Order. The parties are ORDERED

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 73 of 88

05/20/2011 05/23/2011
06/06/2011 06/06/2011 06/06/2011 06/07/2011
06/08/2011 06/10/2011
06/23/2011 06/23/2011

to review the Courts tentative Order and bring copies of it, the Countys Amended Plan, and the Compendium of Plaintiffs Objections to the hearing. The parties should also be prepared to discuss the Countys proposal to appoint Stephen Connolly as monitor and any alternate proposal from Plaintiffs, including the identity of any alternate monitor proposed by Plaintiffs. IT IS SO ORDERED. (ab) (Entered: 05/19/2011)
765 PLAINTIFFS' PROPOSAL RE COURT APPOINTED MONITOR filed by Plaintiff Timothy Lee Conn (Keeny, Christy) (Entered: 05/20/2011)
766 MINUTES OF Status Conference held re: Outstanding Objections to the Amended Plan before Judge Audrey B. Collins:Matter called. Court inquires with counsel as to tentative given prior to Court appearance via− email. Court and counsel confer regarding tentative with respect to certain rulings on objections. The Court having heard from counsel, allows counsel for defendant to file supplemental material as to ruling on numbers 27 and 41 of the Courts tentative due by no later than June 6, 2011. Plaintiff may e−file response no later than June 10, 2011. Court and counsel discuss appointment of monitor. The Court declines appointment of Stephen J. Connolly and Heidi Olguin. Counsel ORDERED to meet and confer to exchange names as to appointment of a monitor by June 2, 2011, and submit name to the Court by June 6, 2011. Court and counsel discuss judgment of final plan. Counsel for defendant ORDERED to submit final plan and judgment by no later than June 23, 2011. Court and counsel discuss verbiage to be used in judgment. Plaintiff will have until June 28, 2011 to submit any objections to the plan and final judgment. The Court will sign judgment thereafter if, no objections have been submitted Court Reporter: Katherine Stride. (lw) (Entered: 05/24/2011)
767 Submission of Proposed Monitors Pursuant to the Court's May 23, 2011 Order filed by Defendant County of Orange re: Status Conference,,,, 766 (Sprenger, Christina) (Entered: 06/06/2011)
768 Supplemental Briefing re Numbers 27 and 41 of the Court's May 19, 2011 Tentative Ruling filed by Defendant County of Orange re: Status Conference,,,, 766 (Sprenger, Christina) (Entered: 06/06/2011)
769 NOTICE NOTICE OF PLAINTIFFS AMENDED PROPOSAL RE COURT APPOINTED MONITOR AND OBJECTION TO DEFENDANTS PROPOSED MONITORS filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Keeny, Christy) (Entered: 06/06/2011)
770 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Supplemental Briefing 768 . The following error(s) was found: Incorrect event selected. The correct event is: Miscellaneous Filings (Non−Motion)−Brief (non−motion non−appeal). In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 06/07/2011)
771 REPLY filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred Pierce, Adam Ramirez, Max Sanders, Fermin Valenzuela to Miscellaneous Document 768 (Keeny, Christy) (Entered: 06/08/2011)
772 RULINGS ON FINAL OBJECTIONS TO AMENDED PLAN by Judge Audrey B. Collins, re Defendant's Compendium of Plaintiffs' Objections and Defendant's Responses Thereto 763 : The County is ORDERED to submit a final plan and judgment consistent with the Court's rulings herein no later than June 23, 2011. Plaintiffs may respond to the proposed plan no later than June 28, 2011, although the Court encourages Plaintiffs to respond earlier to ensure the Court can enter final judgment by June 28, 2011. (see document for further details) (bm) (Entered: 06/10/2011)
773 Defendant's Final Proposed Plan filed by Defendant County of Orange (Sprenger, Christina) (Entered: 06/23/2011)
774 NOTICE OF LODGING filed re Status Conference,,,, 766 (Attachments: # 1 [Proposed] Judgment)(Sprenger, Christina) (Entered: 06/23/2011)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 74 of 88

06/27/2011 06/27/2011 06/28/2011 06/28/2011 06/28/2011 06/28/2011
07/07/2011 07/07/2011
07/12/2011 07/21/2011 07/25/2011
07/25/2011

775 OBJECTIONS to Miscellaneous Document 773 PLAINTIFFS OBJECTIONS TO FINAL JUDGMENT AND PLAN PROPOSED BY DEFENDANT COUNTY OF ORANGE filed by Plaintiff Timothy Lee Conn. (Keeny, Christy) (Entered: 06/27/2011)
776 MINUTE ORDER IN CHAMBERS RE Final Proposed Plan and Final Judgment by Judge Audrey B. Collins: The County is ORDERED to lodge the Proposed Final Plan consistent with the Order by 12 p.m. (noon) on Tuesday, June 28, 2011. (see document for further details) (bm) (Entered: 06/27/2011)
777 NOTICE OF LODGING filed Amended Final Proposed Plan re Minutes of In Chambers Order/Directive − no proceeding held, 776 (Attachments: # 1 Amended Final Proposed Plan)(Sprenger, Christina) (Entered: 06/28/2011)
778 NOTICE OF LODGING filed (AMENDED NOTICE OF LODGING DEFENDANT'S FINAL PROPOSED PLAN) re Notice of Lodging 777 , Minutes of In Chambers Order/Directive − no proceeding held, 776 (Attachments: # 1 Proposed Order ON DEFENDANT'S AMENDED FINAL PLAN)(Sprenger, Christina) (Entered: 06/28/2011)
779 ORDER ON DEFENDANT'S AMENDED FINAL Plan Submitted Pursuant To The Court's June 27, 2011 Order by Judge Audrey B. Collins. (bm) (Entered: 06/28/2011)
780 JUDGMENT by Judge Audrey B. Collins: This matter came on for trial before the Court on February 9, 2010; the Honorable Audrey B. Collins, District Court Judge presiding. The parties have submitted post−trial briefing and objections. The evidence has been considered, the issues have been heard, and the objections have been ruled upon. Defendant has submitted its Final Proposed Plan, which the Court has reviewed. IT IS HEREBY ADJUDGED that the Court accepts Defendant's Final Proposed Plan, that Plaintiffs are the prevailing party, and that judgment be entered in favor of Plaintiffs. (MD JS−6, Case Terminated). (bm) (Entered: 06/28/2011)
781 STIPULATION for Hearing re Motion for Attorneys' Fees, STIPULATION for Extension of Time to File Motion for Attorneys' Fees filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Attachments: # 1 Proposed Order [Proposed] Order Regarding Dates for Briefing and Hearing on Motions for Attorneys Fees)(Keeny, Christy) (Entered: 07/07/2011)
782 ORDER REGARDING DATES FOR BRIEFING AND HEARING ON MOTIONS FOR ATTORNEYS FEES by Judge Audrey B. Collins, re Stipulation for Hearing, Stipulation for Extension of Time to File,, 781 , Plaintiffs' moving papers on both motions for attorneys' fees (under 42 U.S.C. Section 1988 and under the ADA) shall be filed no later than 8/16/2011; Any oppositions due by 9/29/2011, Reply briefs due by 10/7/2011., The hearing on the two Motions will be held on 10/17/2011 at 10:00 AM before Judge Audrey B. Collins. (lw) (Entered: 07/08/2011)
783 APPLICATION to the Clerk to Tax Costs against Defendant County of Orange re: Judgment,, 780 , filed by Plaintiffs Laurie D Ellerston, Timothy Lee Conn, Fred Pierce, Fermin Valenzuela. Application set for hearing on 7/28/2011 at 10:00 AM before Clerk of Court. (Attachments: # 1 BILL OF COSTS (CV−59))(Keeny, Christy) (Entered: 07/12/2011)
784 OBJECTIONS to APPLICATION to the Clerk to Tax Costs against Defendant County of Orange re: Judgment,, 780 , APPLICATION to the Clerk to Tax Costs against Defendant County of Orange re: Judgment,, 780 , 783 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 07/21/2011)
785 REPLY In Support Of APPLICATION to the Clerk to Tax Costs against Defendant County of Orange re: Judgment,, 780 , APPLICATION to the Clerk to Tax Costs against Defendant County of Orange re: Judgment,, 780 , 783 PLAINTIFFS REPLY BRIEF IN SUPPORT OF MOTION TO TAX COSTS; DECLARATION OF VIRGINIA KEENY & EXHIBITS IN SUPPORT THEREOF filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Keeny, Christy) (Entered: 07/25/2011)
786 NOTICE OF DISCREPANCY AND ORDER: by Judge Audrey B. Collins: Letter received 7/19/11 filed by Joshua Foster is NOT to be filed, but instead REJECTED and is ORDERED returned to counsel. Denial based on Pursuant to Local Rule

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 75 of 88

08/02/2011
08/05/2011 08/11/2011 08/11/2011 08/12/2011
08/12/2011
08/12/2011 08/22/2011 08/30/2011 09/06/2011

83−2.11 Letters are improper communication to the Court. (ir) (Entered: 07/26/2011)
787 MINUTE ORDER IN CHAMBERS RE Letter from Pretrial Detainee by Judge Audrey B. Collins: On August 1, 2011, the Court received a letter from John Whitaker, a pretrial detainee in the Orange County jail system and a class member in this case. Under Local Rule 83−2.11, "[a]ttorneys or parties to any action or proceeding shall refrain from writing letters to the judge...All matters shall be called to a judge's attention by appropriate application or motion filed in compliance with the[] Local Rules." This letter does not comply with the Local Rules, so the Court REJECTS it for filing. Nevertheless, the Court has read the letter and informs Mr. Whitaker that he should contact the attorneys representing the class members in this case to address the issues he raises. (bm) (Entered: 08/02/2011)
788 NOTICE OF DISCREPANCY AND ORDER: by Judge Audrey B. Collins, ORDERING Letter by Joshua Forster re: declaration of Joshua Forster submitted by Joshua Forster received on 8/2/11 is not to be filed but instead rejected. Denial based on: Local Rule 83.2−11 − No letter format accept by Court. (bm) (Entered: 08/10/2011)
789 (Attachments: # 1 Letter Letter to J Whitaker re: his letter)(Herman, Richard) (Entered: 08/11/2011)
790 Supplemental Memo (Attachments: # 1 Letter D Lawrence)(Herman, Richard) (Entered: 08/11/2011)
791 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Memorandum 789 , Supplemental Memo 790 . The following error(s) was found: Other error(s) with document(s) are specified below. Other error(s) with document(s): Docket entry text is blank, not matching caption of attached document 789 . Incorrect event selected. Correct event should be Miscellaneous Filings (Non−Motion)−Supplement (non−motion) 790 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 08/12/2011)
792 NOTICE OF MOTION AND MOTION for Attorney Fees Related to Claims under the ADA filed by plaintiff Fred Pierce. Motion set for hearing on 10/17/2011 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Declaration Virginia Keeny, # 2 Exhibit A−C, # 3 Exhibit D−I, # 4 Declaration Barrett S. Litt, # 5 Exhibit A, # 6 Exhibit B pt.1, # 7 Exhibit B pt.2, # 8 Exhibit B pt. 3, # 9 Exhibit B pt. 4, # 10 Exhibit B pt. 5, # 11 Exhibit C−D, # 12 Declaration Peter J. Eliasberg, # 13 Exhibit 1−3, # 14 Declaration Paula D. Pearlman, # 15 Exhibit A−C)(Keeny, Christy) (Entered: 08/12/2011)
793 SUPPLEMENT Filing in Support of Motion For Attorneys Fees Related to Constitutional Claims filed by Plaintiff Fred Pierce. (Attachments: # 1 Declaration Virginia Keeny, # 2 Exhibit A, # 3 Exhibit B pt. 1, # 4 Exhibit B pt. 2, # 5 Exhibit B pt. 3, # 6 Exhibit B pt. 4, # 7 Exhibit B pt. 5, # 8 Exhibit C−D, # 9 Declaration Barrett S. Litt, # 10 Exhibit E)(Keeny, Christy) (Entered: 08/12/2011)
794 NOTICE OF DISCREPANCY AND ORDER: by Judge Audrey B. Collins: Motion for Order directing Attorney of Record to Interview Petitioner received 8/18/11 is NOT to be filed, but instead REJECTED, and is ORDERED returned to counsel. Denial based on: Local Rule 83−2.11 No Communication with the Judge. Parties shall refrain from writing to the judge, unless opposing counsel is present. All matters shall be called to the Judge's attention by appropriate application or motion filed in compliance with these Local Rules. (ir) (Entered: 08/23/2011)
795 STIPULATION to AMEND Order 779 filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 08/30/2011)
796 ORDER RE AMENDMENTS To Correct Inaccuracies in the Court's June 28, 2011 Final Order on Defendant's Proposed Plan by Judge Audrey B. Collins, re Stipulation to Amend/Correct 795 (PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS) (lw) (Entered: 09/07/2011)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 76 of 88

09/27/2011 09/28/2011 09/29/2011 09/29/2011 09/29/2011 09/29/2011 10/07/2011 10/07/2011 10/07/2011
10/07/2011 10/12/2011

797 STIPULATION for Consideration of To Address Cost Bill Issues at Upcoming Hearing on Plaintiffs' Motions for Attorney's Fees filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 09/27/2011)
798 ORDER by Judge Audrey B. Collins, The Court having considered the parties Stipulation Re Intent to Address Cost Bill Issues at Upcoming Hearing on Plaintiffs Motions for Attorneys Fees 797 , and good cause having been found, it is hereby ordered that the Court will permit the parties to address the prevailing party issue at the hearing currently set for October 17, 2011. (ir) (Entered: 09/29/2011)
799 Objections to Declarations of Barry S. Litt, Peter J. Eliasberg, Paula Pearlman and Virginia Keeny [Two Declarations] Submitted by Plaintiffs in Support of Their Motions for Attorney's Fees and Costs in opposition re: MOTION for Attorney Fees Related to Claims under the ADA 792 and Constitutional Claims filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 09/29/2011)
800 DECLARATION of Lyle R. Riggs and Daniel S. Cha with Exhibits in Support of Defendant's Oppositions to Plaintiff's Motions for Attorneys' Fees under the ADA and Constitutional Claims MOTION for Attorney Fees Related to Claims under the ADA 792 and Constitutional Claims filed by Defendant County of Orange. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Sprenger, Christina) (Entered: 09/29/2011)
801 OPPOSITION to Plaintiff's Motion for Attorneys' Fees and Costs Related to Constitutional Claims; Memorandum of Points and Authorities in Support Thereof re: MOTION for Attorney Fees Related to Claims under the ADA 792 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 09/29/2011)
802 OPPOSITION to Plaintiff's Motion for Attorneys' Fees and Costs Under the ADA; Memorandum of Points and Authorities in Support Thereof re: MOTION for Attorney Fees Related to Claims under the ADA 792 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 09/29/2011)
803 REPLY in Support of MOTION for Attorney Fees Related to Claims under the ADA 792 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Max Sanders, Fermin Valenzuela. (Keeny, Christy) (Entered: 10/07/2011)
804 REPLY in Support of MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF 665 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Max Sanders, Fermin Valenzuela. (Keeny, Christy) (Entered: 10/07/2011)
805 DECLARATION of Virginia Keeny, Ben Stormer and Larry Dee in Support of MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF 665 , MOTION for Attorney Fees Related to Claims under the ADA 792 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Max Sanders, Fermin Valenzuela. (Attachments: # 1 Exhibit Exh 1 Decl of Virginia Keeny, # 2 Exhibit Exh 2 Decl of Virginia Keeny, # 3 Exhibit Exh 3 Decl of Virginia Keeny, # 4 Exhibit Exh 4 Decl of Virginia Keeny, # 5 Exhibit Exh 5 Decl of Virginia Keeny, # 6 Declaration Decl of Ben Stormer, # 7 Exhibit Exh A Decl of Ben Stormer, # 8 Exhibit Exh B Decl of Ben Stormer, # 9 Declaration Decl of Larry Dee)(Keeny, Christy) (Entered: 10/07/2011)
806 Objections to Evidence Submitted by Defendant in Opposition to Application for Attorneys' Fees re: MOTION for Attorney Fees PURSUANT TO 42 U.S.C. SECTION 1988 AND C.C.P. SECTION 1021.5; DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF 665 , MOTION for Attorney Fees Related to Claims under the ADA 792 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Max Sanders, Fermin Valenzuela. (Keeny, Christy) (Entered: 10/07/2011)
807 MINUTE ORDER IN CHAMBERS re Motions for Attorney's Fees and Costs by Judge Audrey B. Collins re Motions for Attorney's Fees and Costs 665 : Pending before the Court are two motions for attorney's fees filed by Plaintiff Fred Pierce, et al.: the first filed on July 31, 2009 and supplemented on August 12, 2011 (which the Court deferred until trial on the remaining claims) (Docket Nos. 665, 793); and the second filed on August 12, 2011 (Docket No. 792). Also pending is Plaintiffs' request to tax costs, referred to the Court for resolution of the prevailing party issue. (Docket

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 77 of 88

02/01/2012
02/07/2012 02/08/2012 02/08/2012 02/09/2012
02/10/2012 02/13/2012 03/02/2012
03/07/2012

Nos. 783, 798.) These matters are now fully briefed and the Court finds them appropriate for resolution without oral argument. Fed. R. Civ. P. 78; Local Rule 7−15. Therefore, the Court VACATES the October 17, 2011 hearing date and takes these matters UNDER SUBMISSION. (bm) (Entered: 10/12/2011)
808 MINUTE ORDER IN CHAMBERS re Status Conference by Judge Audrey B. Collins: The Court has received the Monitor's second quarterly report, dated January 2012, and ORDERS the parties to appear for a status conference on Monday, February 13, 2012 at 3:00 p.m. to discuss several issues raised in the report regarding Defendant County of Orange, et al.'s (the "County's") compliance with the Court's Order on Defendant's Amended Final Plan. (Docket No. 779.) The Court commends the County on the substantial progress made on required physical modifications during the first six months following the Court's Order, but the County has not complied with several significant parts of the Court's Order, including the housing of class members and the implementing of required programmatic changes. The Court is particularly concerned with the following information from the Monitor's report: (see document for further details). (bm) (Entered: 02/01/2012)
809 NOTICE OF LODGING filed re Minutes of In Chambers Order/Directive − no proceeding held, Set/Reset Deadlines/Hearings,,,,,, 808 (Attachments: # 1 Supplement Information)(Keeny, Christy) (Entered: 02/07/2012)
810 Plaintiffs Memorandum (Attachments: # 1 Exhibit 1)(Herman, Richard) (Entered: 02/08/2012)
811 STATEMENT Plaintiffs' Statement In Preparation for Status Conference re: Minutes of In Chambers Order/Directive − no proceeding held, Set/Reset Deadlines/Hearings,,,,,, 808 . (Keeny, Christy) (Entered: 02/08/2012)
812 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Memorandum 810 . The following error(s) was found: Other error(s) with document(s) are specified below. Other error(s) with document(s): Incorrect event selected. Correct event to be used is Miscellaneous Filings (Non−Motion)−Brief (non−motion non−appeal). Docket entry text does not match caption of attached document 810 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 02/09/2012)
813 DECLARATION of Christina M. Sprenger with Exhibit in Preparation for the Upcoming Status Conference filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 02/10/2012)
814 MINUTES OF Status Conference held before Judge Audrey B. Collins: Case called. Counsel makes appearances. Court discuss papers received. Court inquires of status of case. Court and counsel discuss certain issues raised in Courts order with respect to defendants' amended final plan. The Court having heard from counsel, acknowledges that a meet and confer will take place after the Court hearing to try and resolve matters. Counsel to e−file notice to the Court as to the outcome of the meet and confer.Court Reporter: Katherine Stride. (lw) (Entered: 02/21/2012)
815 ORDER RE: PLAINTIFFS' MOTIONS FOR ATTORNEYS FEES AND COSTS; PLAINTIFFS' REQUEST TO TAX COSTS by Judge Audrey B. Collins granting 792 Motion for Attorney Fees: The Court awards Plaintiffs the following: $508,179.85 in reasonable fees for work done on constitutional claims (see Attachment A hereto); $1,821,557.13 in reasonable fees for pre−appeal work done on ADA claims (see Attachment A hereto); $589,686.75 in reasonable fees for post−appeal work done on ADA claims (see Attachment B hereto); $70,346.15 in fees for bringing the fees motions; and $225,147.53 in litigation expenses. The Court REFERS the pending application to tax costs to the Court Clerk to tax costs consistent with the directions in this Order. Plaintiffs are ORDERED to lodge a proposed Order consistent with the Court's award no later than 10 days from the date of this Order. (bm) (Entered: 03/02/2012)
816 NOTICE Re Outcome of Recent Meet and Confer filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 03/07/2012)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 78 of 88

03/08/2012 03/08/2012
04/24/2012 04/26/2012 05/08/2012 05/08/2012 06/29/2012 06/29/2012 07/24/2012

817 NOTICE OF LODGING filed Re [Proposed] Order Re Plaintiffs' Motions for Attorneys' Fees and Costs re Order on Motion for Attorney Fees,,, 815 (Attachments: # 1 Proposed Order Re Plaintiffs' Motions for Attorneys' Fees and Costs)(Keeny, Christy) (Entered: 03/08/2012)
818 ORDER RE PLAINTIFFS' MOTIONS FOR ATTORNEYS' FEES AND COSTS by Judge Audrey B. Collins: NOTE CHANGES MADE BY THE COURT. IT IS HEREBY ORDERED THAT: 1) Plaintiff's Motion for Attorneys' Fees Pursuant to 42 U.S.C. Section 1988 is granted in part as more specifically set forth in this Court's order of March 2, 2012; 2) Plaintiff's Motion for Attorneys' Fees Related to Claims under the ADA is granted in part as more specifically set forth in this Courts order of March 2, 2012; 3) The Court awards Plaintiffs the following amounts as fees and non−taxable costs: a) $508,179.85 in reasonable fees for work performed on the constitutional claims (as detailed in Attachment A to this Courts March 2, 2012 order); b) $1,821,557.13 in reasonable fees for pre−appeal work done on the ADA claims (as detailed in Attachment A to this Court's March 2, 2012 order); c) $589,686.75 in reasonable fees for post−appeal work done on the ADA claims (as detailed in Attachment B to this Courts March 2, 2012 order); d) $70,346.15 in attorneys' fees for bringing the two fee motions; and e) $225,147.53 in litigation expenses. IT IS FURTHER ORDERED THAT: Plaintiffs' pending Application to Tax Costs, filed on July 12, 2011, which was referred to this Court, shall be sent back to the Court Clerk with instructions to tax costs in favor of plaintiffs and, once the taxable costs are determined, divide the total amount of taxable costs incurred pre−appeal (prior to May 15, 2008) in half and deduct 30% from that amount. The Court Clerk then is directed to award the remaining 20% of that portion of taxable costs, plus the remaining 50% percent of costs incurred prior to May 15, 2008, plus the full amount of taxable costs incurred after May 15, 2008 to the Plaintiffs in this case. Both parties may file a supplemental declaration with the Court Clerk to specify the dates on which specific costs were incurred, if that information is not already in the record before the Clerk. Such supplemental declarations shall be filed no later than 10 days after entry of this order. (bm) (Entered: 03/09/2012)
819 NOTICE of Change of Attorney Information for attorney Cindy Panuco counsel for Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred Pierce, Adam Ramirez, Max Sanders, Fermin Valenzuela. Adding Cindy Panuco as attorney as counsel of record for Plaintiffs Fred Pierce, et al. for the reason indicated in the G−06 Notice. Filed by Plaintiffs Fred Pierce, et al. (Panuco, Cindy) (Entered: 04/24/2012)
820 DECLARATION re APPLICATION to the Clerk to Tax Costs against Defendant County of Orange re: Judgment,, 780 , APPLICATION to the Clerk to Tax Costs against Defendant County of Orange re: Judgment,, 780 , 783 , Order,,,,,,,, 818 Supplemental Declaration of Virginia Keeny In Support of Application to the Clerk to Tax Costs as Ordered by the District Court filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Keeny, Christy) (Entered: 04/26/2012)
821 DECLARATION of Daniel S. Cha in Response to Supplemental Declaration of Virginia Keeny in Support of Application to Tax Costs filed by Defendant County of Orange. (Cha, Daniel) (Entered: 05/08/2012)
822 DECLARATION of Virginia Keeny In Reply to Daniel Cha's Supplemental Declaration Re Application to Tax Costs filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Keeny, Christy) (Entered: 05/08/2012)
823 NOTICE of Change of Attorney Information for attorney Christy Virginia Keeny counsel for Plaintiff Fred Pierce.Christy Virginia Keeny is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by Plaintiff Fred Pierce, et al. (Keeny, Christy) (Entered: 06/29/2012)
824 NOTICE of Change of Attorney Information for attorney Dan Stormer counsel for Plaintiff Fred Pierce. Changing firm name to Hadsell Stormer Richardson & Renick LLP. Filed by plaintiffs Fred Pierce, et al. (Stormer, Dan) (Entered: 06/29/2012)
825 STIPULATION to Amendments to Clarify Language in the Court's June 28, 2011 Final Order on Defendant's Proposed Plan filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 07/24/2012)

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07/30/2012 07/30/2012
08/26/2012 08/27/2012
02/21/2013 06/03/2013 06/07/2013 06/10/2013 06/10/2013

826 ORDER by Judge Audrey B. Collins, re Stipulation 825 . The Court's Final Order of June 28, 2011, is amended as follows: At page 7, line 17, the phrase ", if their classification status meets that of inmates housed in the Barracks and their medical conditions permit," is added between the phrases "Module and" and "in the Inmate Programs Building (IPB)"; Numbered paragraph 13 on page 8 is stricken. (ir) (Entered: 07/30/2012)
827 MINUTES: ORDER Correcting Clerical Error in Order re Plaintiffs Motions forAttorneys Fees and Costs (In Chambers): The Court clarifies its Order (Docket No. 818) by deleting the above−quoted language and replacing it with the following: Plaintiffs' pending application to Tax Costs, filed on July 12, 2011,which was referred to this Court, shall be sent back to the Court Clerk with instructions to tax costs in favor of Plaintiffs. Once the taxable costs are determined, the Clerk shall award Plaintiffs 85% of the taxable costs incurred pre−appeal (prior to May 15, 2008), plus the full amount of taxable costs incurred after May 15, 2008 (See document for further details) IT IS SO ORDERED by Judge Audrey B. Collins. (ir) (Entered: 07/30/2012)
829 BILL OF COSTS. Costs Taxed in amount of $ 32361.66 in favor of Fred Pierce, et al. and against Defendant,.County of Orange. RE: 780 , 783 (mb) (Entered: 08/28/2012)
828 MINUTES: August 2012 Monitor's Report (In Chambers): The Court has received the Monitor's fourth quarterly report, dated August 2012. The Court commends the parties on the significant progress in the physical modifications required by the Court's Order in this case. There has been less progress on the County's compliance with the procedural and programmatic aspects of the Courts Order. The Court appreciates the County's attempts at compliance when the Monitor has identified issues, but the Court also shares the Monitors concerns that it has been one year since the Court's Order was issued and the Monitor continues to find key areas of noncompliance. One area of particular concern is outdoor recreation: the Monitor found that, at Module O of Theo Lacy, outdoor recreation in the enclosed recreation area was offered before 6:00 a.m. 49% ofthe time, and it was always declined. (Monitor Report 15, 17.) Even if this does not technically run afoul of the terms of the Courts Order, it certainly undermines the Court's intent to ensure class members can reasonably take advantage of outdoor recreation. The Court will not issue any further orders at this time, but it strongly encourages the County to take a more proactive approach to complying with the procedural and programmatic portions of Court'sOrder as it has done with physical modifications. That includes ensuring that outdoor recreation is offered at times with at least a reasonable probability of class members taking advantage of it. Offerings before 6:00 a.m. do not fall into that category IT IS SO ORDERED by Judge Audrey B. Collins. (ir) (Entered: 08/27/2012)
830 NOTICE of Change of Attorney Information for attorney Christina M Sprenger counsel for Defendant County of Orange. Changing address to 2677 North Main Street, Suite 370, Santa Ana, CA 92705. Filed by DEFENDANT COUNTY OF ORANGE (Sprenger, Christina) (Entered: 02/21/2013)
831 NOTICE OF MOTION AND MOTION for Order for Extending Injunctive Relief for 2 years filed by Plaintiff Fred Pierce. Motion set for hearing on 7/1/2013 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Declaration Cindy Panuco, # 2 Exhibit 1−11, # 3 Exhibit 12−35, # 4 Exhibit 36−38, # 5 Exhibit 39, # 6 Exhibit 40−41, # 7 Proposed Order)(Panuco, Cindy) (Entered: 06/04/2013)
832 STIPULATION for Order on REQUEST FOR BRIEFING SCHEDULE filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 06/07/2013)
833 OPPOSITION re: MOTION for Order for Extending Injunctive Relief for 2 years 831 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 06/10/2013)
834 ORDER ON REQUEST FOR BRIEFING SCHEDULE by Judge Audrey B. Collins: IT IS HEREBY ORDERED as follows: 1. The hearing on Plaintiff's Motion to Extend the Injunction is continued to Monday, September 9, 2013. The related briefing deadlines are continued per the federal rules; and 2. The briefing schedule for Defendant's Motion to Terminate the Injunction is as follows: a. Motion filing deadline: August 5, 2013.b. Opposition filing deadline: August 19, 2013.c. Reply filing deadline: August 26, 2013.d. Hearing date: Monday, September 9, 2013 at 10:00 a.m. re: granting 832 Stip to cont Mot (lw) Modified on 6/11/2013 (lw). (Entered:

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 80 of 88

06/11/2013 07/31/2013 08/01/2013
08/12/2013 08/12/2013
08/12/2013 08/12/2013 08/13/2013 08/14/2013 08/14/2013 08/14/2013 08/15/2013 08/16/2013 08/19/2013

06/11/2013)
835 NOTICE OF CLERICAL ERROR: Due to clerical error the docket entry has been corrected Re: Order on Motion for Order,, 834 . Docket Entry corrected from: granting #831 Motion to re: GRANTING #832 STIP TO CONT MOT (lw) (Entered: 06/13/2013)
836 EX PARTE APPLICATION to Continue Hearing and Modify Briefing Schedule on Defendant's Motion to Terminate Injunctive Relief; Sprenger Declaration in Support Thereof filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 07/31/2013)
837 ORDER RE EX PARTE APPLICATION FOR CONTINUANCE OF HEARING DATE AND BRIEF EXTENSION OF THE BRIEFING SCHEDULE by Judge Audrey B. Collins: granting 836 Ex Parte Application to Continue. IT IS HEREBY ORDERED: The briefing schedule for Defendant's Motion to Terminate the Injunction is modified as follows: Motion filing deadline: August 12, 2013. Opposition filing deadline: August 26, 2013. Reply filing deadline: September 2, 2013. Hearing date: September 23, 2013 at 10:00 a.m. THE HEARING ON PLAINTIFF'S MOTION TO EXTEND THE INJUNCTION IS ALSO CONTINUED TO SEPTEMBER 23, 2013 AT 10:00 A.M. (bp) (Entered: 08/02/2013)
838 NOTICE of Manual Filing filed by Defendant County of Orange of Defendant. (Sprenger, Christina) (Entered: 08/12/2013)
839 NOTICE OF MOTION AND MOTION for Relief from Injunction Under the Prison Litigation Reform Act [18 U.S.C. 3626(b)] and FRCP 60(b)(5); Memorandum of Points and Authorities in Support Thereof filed by Defendant County of Orange. Motion set for hearing on 9/23/2013 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Declarations in Support Thereof, # 2 Declaration of Chiang in Support Thereof)(Sprenger, Christina) (Entered: 08/12/2013)
840 EX PARTE APPLICATION for Order for Protective Order; Declaration of Christina M. Sprenger in Support Thereof filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 08/12/2013)
841 SUPPLEMENT to MOTION for Order for Extending Injunctive Relief for 2 years 831 Plaintiff's Supplemental Brief in Support of Motion for Order Extending Injunctive Relief for an Additional Two Years filed by Plaintiff Fred Pierce. (Attachments: # 1 Declaration of Cindy Panuco, # 2 Exhibit 1−3)(Panuco, Cindy) (Entered: 08/12/2013)
842 MEMORANDUM of Points and Authorities in Opposition filed by Plaintiff Fred Pierce. Re: EX PARTE APPLICATION for Order for Protective Order; Declaration of Christina M. Sprenger in Support Thereof 840 (Attachments: # 1 Declaration of Cindy Panuco)(Panuco, Cindy) (Entered: 08/13/2013)
847 SEALED DOCUMENT− DEFENDANT'S APPLICATION Pursuant to Local Rule 79−5 for Leave to File Under Seal the Declaration of Dr. Chiang in Support of Defendant's Motion to Terminate Injunctive Relief. (mat) (Entered: 08/20/2013)
848 SEALED DOCUMENT− ORDER for Leave to File Under Seal. (mat) (Entered: 08/20/2013)
849 SEALED DOCUMENT− DECLARATION of Doctor C. Hsien Chang in Support of Defendant's Motion to Terminate Injunctive Relief Under the Prison Litigation Reform ACT [18 USC 3626(b) and FRCP 60(B)(5). (mat) (Entered: 08/20/2013)
843 MEMORANDUM of Points and Authorities in Support filed by Defendant County of Orange. Re: EX PARTE APPLICATION for Order for Protective Order; Declaration of Christina M. Sprenger in Support Thereof 840 (Li, Haiyang) (Entered: 08/15/2013)
844 RESPONSE filed by Plaintiff Fred Pierceto Memorandum of Points and Authorities in Support (non−motion) 843 of Ex Parte Application for Protective Order (Attachments: # 1 Declaration of Cindy Panuco, # 2 Exhibit 1−4)(Panuco, Cindy) (Entered: 08/16/2013)
845 OBJECTIONS TO, AND REQUEST TO STRIKE, PLAINTIFFS' UNAUTHORIZED FILING RE THE PENDING APPLICATION FOR EX PARTE RELIEF filed by

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 81 of 88

08/20/2013 08/20/2013
08/21/2013 10/03/2013 10/11/2013 10/28/2013 10/29/2013 11/01/2013

Defendant County of Orange. (Li, Haiyang) (Entered: 08/19/2013)
846 NOTICE OF REASSIGNMENT OF CASE due to Unavailability of Judicial Officer filed. The previously assigned Magistrate Judge is no longer available. Pursuant to directive of the Chief Magistrate Judge and in accordance with the rules of this Court, the case has been returned to the Clerk for reassignment. This case has been reassigned to Magistrate Judge Andrew J. Wistrich for any discovery and/or post−judgment matters that may be referred.. Case number will now read SACV 01−00981 ABC(AJWx). (rn) (Entered: 08/20/2013)
850 MINUTES (IN CHAMBERS): ORDER DENYING Defendant's Ex Parte Application for Protective Order by Judge Audrey B. Collins: The Court agrees with Plaintiffs that the ex parte application was procedurally improper. Defendant states that the delay in bringing the ex parte stemmed from the fact that it did not receive the Monitor's Eighth Quarterly Report until July 31, 2013. (Reply at 6: Declaration of Haiyang Alle Li 3.) That excuse, however, does not address Plaintiffs' contention that, for the better part of this year, Defendant has been responding to the Monitor's requests, about the criteria used to identify class members by claiming that the answer lies in Plaintiffs' medical records, it should have sought a protective order much earlier. The Court therefore DENIES Defendant's ex parte application. The parties are, of course, encouraged to engage in informal meet and confer to resolve this issue, which may very well result in a stipulated protective order. In any event, it is clear that the current briefing schedule and hearing date on the cross−motions to extend or terminate the injunction will not allow sufficient time to resolve the HIPAA and privacy issues related to class members' medical records. As such, the September 23, 2013 hearing date is TAKEN OFF CALENDAR. The parties are ORDERED to inform the Court when the HIPAA and privacy issues are resolved. 840 (bp) (Entered: 08/21/2013)
851 Notice of Appearance or Withdrawal of Counsel: for attorney Haiyang Li counsel for Defendant County of Orange. Adding Haiyang Allen Li as attorney as counsel of record for County of Orange for the reason indicated in the G−123 Notice. Filed by Defendant County of Orange. (Li, Haiyang) (Entered: 08/21/2013)
852 NOTICE OF MOTION AND MOTION to Clarify Joint Discovery Stipulation Pursuant to the Court's August 20, 2013 Order; Sprenger Declaration with Exhibits; Panuco Declaration with Exhibits filed by Defendant County of Orange. Motion set for hearing on 10/28/2013 at 10:00 AM before Magistrate Judge Andrew J. Wistrich. (Attachments: # 1 Declaration, # 2 Exhibit A (Motion and Decl, # 3 Exhibit A (0001−0271), # 4 Exhibit A (0272−0531), # 5 Exhibit A (0532−0797), # 6 Exhibit A (0798−0908), # 7 Exhibit A (0909−1058, # 8 Exhibit B (Suppl Motion and Decl), # 9 Exhibit B (1−173), # 10 Exhibits C − E, # 11 Declaration Exhibits 1 and 2)(Sprenger, Christina) (Entered: 10/03/2013)
853 SUPPLEMENT to MOTION to Clarify Joint Discovery Stipulation Pursuant to the Court's August 20, 2013 Order; Sprenger Declaration with Exhibits; Panuco Declaration with Exhibits 852 filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 10/11/2013)
854 MINUTES OF Discovery Hearing RE JOINT MOTION TO CLARIFY JOINT DISCOVERY STIPULATION PURSUANT TO THE COURT'S AUGUST 20, 2013 ORDER held before Magistrate Judge Andrew J. Wistrich. Court directs counsel to work during recess on a proposed order regarding the issues discussed as well as a proposed protective order. LATER AND AFTER RECESS AND ON THE RECORD; The parties inform the Court that they have resolved their differences and will prepare a joint proposed order that addresses the matters discussed today as well as a proposed protective order. Court directs that the proposed order be submitted to the Court by the end of the week.Court Recorder: CS10−28−2013. (yb) (Entered: 10/28/2013)
855 Notice of Appearance or Withdrawal of Counsel: for attorney Dan Stormer counsel for Plaintiff Fred Pierce. Radhika Sainath is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Plaintiff Fred Pierce. (Stormer, Dan) (Entered: 10/29/2013)
856 [PROPOSED] ORDER ON THE PARTIES' JOINT DISCOVERY STIPULATION AND PROTECTIVE ORDER GOVERNING THE DISCLOSURE OF INMATE MEDICAL INFORMATION FOR USE IN THIS LITIGATION filed by Defendant County of Orange re: Discovery Hearing,, 854 (Sprenger, Christina) (Entered:

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 82 of 88

11/04/2013 11/27/2013 12/04/2013
12/12/2013 12/13/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013

11/01/2013)
857 ORDER ON THE PARTIES' JOINT DISCOVERY STIPULATION AND PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Miscellaneous Document, 856 . See document for details. (yb) (Entered: 11/04/2013)
858 STATUS REPORT PURSUANT TO THIS COURT'S AUGUST 20, 2013 ORDER filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 11/27/2013)
859 MINUTE ORDER IN CHAMBERS Re: Briefing Schedule on Motions to Terminate/Extend Injunctive Relief by Judge Audrey B. Collins: As such, the Court GRANTS the parties' request to move forward with briefing and hearing on the pending Motions to Terminate/Extend Injunctive Relief (Docket Nos. 831, 839) and SETS the following deadlines: November 27, 2013: Defendant shall disclose to Plaintiffs and the Monitor the relevant medical records relied upon by Dr. Chiang in his analysis of the eight inmates discussed in Dr. Chiang's Declaration submitted in support of Defendant's Motion to Terminate Injunctive Relief; December 16, 2013: Plaintiffs shall file their Opposition to Defendant's Motion to Terminate Injunctive Relief; December 16, 2013: Defendant shall file its Response to Plaintiffs' Supplemental Brief in Support of Plaintiffs Motion to Extend Injunctive Relief for an Additional Two Years; January 13, 2014: Plaintiffs shall file their Reply Brief in Support of Plaintiffs' Motion to Extend Injunctive Relief for an Additional Two Years; January 13, 2014: Defendant shall file its Reply Brief in Support of Defendant's Motion to Terminate Injunctive Relief; January 31, 2014 at 10:00 a.m.: Hearing on the Motions to Terminate/Extend Injunctive Relief. The Court ORDERS Keith Rohman, the court appointed Monitor, to attend the hearing on January 31, 2014 to address any issues raised by the parties or the Court. See Docket No. 831 at 2, n. 1 (Monitor "is available to appear for the hearing on this Motion if the Court is inclined to request [his] attendance"). To the extent practicable, the Court will issue a Minute Order with questions for the Monitor in advance of the hearing. (bm) (Entered: 12/04/2013)
860 OBJECTIONS To The Monitor's Submission Of A Ninth Quarterly Report; Memorandum Of Points And Authorities; Declaration Of Christina M. Sprenger With Exhibit In Support Thereof filed by Defendant County of Orange. (Li, Haiyang) (Entered: 12/12/2013)
861 RESPONSE filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuelato Objections − non−motion 860 Plaintiffs' Response to Defendant County of Orange's Objections to the Monitor's Submission of a Ninth Quarterly Report (Attachments: # 1 Declaration Declaration of Cindy Pnuco, # 2 Exhibit Exhibits 1−4)(Panuco, Cindy) (Entered: 12/13/2013)
862 NOTICE of Manual Filing filed by Plaintiff Fred Pierce of Objections to Declaration of C. Hsien Chiang and Proposed Order. (Panuco, Cindy) (Entered: 12/16/2013)
863 OPPOSITION re: MOTION for Relief from Injunction Under the Prison Litigation Reform Act [18 U.S.C. 3626(b)] and FRCP 60(b)(5); Memorandum of Points and Authorities in Support Thereof 839 filed by Plaintiff Fred Pierce. (Attachments: # 1 Declaration of Cindy Panuco, # 2 Exhibit 42−46, # 3 Supplement Evidentiary Objections, # 4 Proposed Order re: Evidentiary Objections)(Panuco, Cindy) (Entered: 12/16/2013)
864 OPPOSITION /Response to Plaintiffs' Supplemental Brief in Support of Plaintiffs' Motion to Extend Injunctive Relief for an Additional Two Years; Memorandum of Points and Authorities; Declarations in Support Thereof filed by Defendant County of Orange. (Li, Haiyang) (Entered: 12/16/2013)
865 Evidentiary Objections and Motion to Strike Exhibits Offered by Plaintiffs in Support of Their Motion to Extend and Their Supplemental Brief re: MOTION for Order for Extending Injunctive Relief for 2 years 831 filed by Defendant Michael S Carona. (Attorney Haiyang Li added to party Michael S Carona(pty:dft))(Li, Haiyang) (Entered: 12/16/2013)
866 APPLICATION to File Under Seal Plaintiffs' Evidentiary Objections to Declaration of C. Hsien Chiang and Proposed Order in Support of Motion to Terminate Injunctive Relief Under the Prison Litigation Reform Act [18 U.S.C. 3626(b)] and FRCP 60(b)(5) filed by plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 83 of 88

12/18/2013 12/18/2013 12/19/2013 12/31/2013 01/02/2014
01/02/2014
01/08/2014 01/10/2014
01/21/2014 01/21/2014 01/21/2014

Pierce, Adam Ramirez, Max Sanders, Fermin Valenzuela. (lw) (Entered: 12/19/2013)
868 ORDER ALLOWING PLAINTIFF TO FILE UNDER SEAL PLAINTIFFS' EVIDENTIARY OBJECTIONS To Declaration Of C. Hsien Chiang In Support Of Motion To Terminate Injunctive Relief Under the Prison Litigation Reform Act [18 U.S.C. 3626(b)] And FRCP 60(b)(5) by Judge Audrey B. Collins granting 866 Application to Seal. (bm) (Entered: 12/23/2013)
869 SEALED DOCUMENT − PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DECLARATION OF C. HSIEN CHIANG IN SUPPORT OF MOTION To Terminate Injunctive Relief Under The Prison Litigation Reform Act [18 U.S.C. 3626(b)] and FRCP 60(b)(5) (bm) (Entered: 12/23/2013)
867 NOTICE of Errata re: Defendant's Evidentiary Objections and Motion to Strike Exhibits Offered by Plaintiffs in Support of Their Motion to Extend and Their Supplemental Brief filed by Defendant County of Orange. (Li, Haiyang) (Entered: 12/19/2013)
870 STIPULATION to Continue the Hearing on the Parties' Cross−Motions to Terminate/Extend Injunctive Relief from January 31, 2014 to February 10, 2014 filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 12/31/2013)
871 MINUTE ORDER IN CHAMBERS Re: Monitor's Ninth Quarterly Report by Judge Audrey B. Collins: Although the Court is well aware that the Monitor's Ninth Quarterly Report falls outside of the eight reports anticipated by the injunction, the Court will consider the Report in ruling on the pending motions. The Report is the Monitor's most recent evaluation of compliance with the injunction, he has already expended time in preparing it, and Defendant admits it does not raise any new substantive issues that would affect the determination of the pending motions. The Monitor shall not issue any further reports. (see document for further details) (bm) (Entered: 01/03/2014)
872 ORDER TO CONTINUE THE HEARING ON THE PARTIES' CROSS−MOTIONS TO TERMINATE/EXTEND INJUNCTIVE RELIEF by Judge Audrey B. Collins, re Stipulation to Continue, 870 : The Court having read and reviewed the Parties' Joint Stipulation to continue the hearing on the cross−motions to terminate/extend injunctive relief and GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: The hearing on the parties' pending Motions to Terminate/Extend InjunctiveRelief shall be continued from January 31, 2014, to February 10, 2014, at 10:00 a.m. (bm) (Entered: 01/03/2014)
873 EXPARTE APPLICATION for Extension of Time to File the Parties Reply; Declaration of Christina M. Sprenger and Exhibit in Support Thereof filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 01/08/2014)
874 ORDER RE: DEFENDANT'S EX PARTE APPLICATION BASED UPON THE STIPULATION OF THE PARTIES FOR A ONE−WEEK EXTENSION TO FILE THE REPLY BRIEFS by Judge Audrey B. Collins granting 873 Ex Parte Application: The Court having read and reviewed the Defendant's ex parte application and the parties' Stipulation for a one−week extension to file the reply briefs, and GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: Both parties' reply briefs on the pending cross−motions to terminate/extend injunctive relief shall be filed on January 21, 2014. (bm) (Entered: 01/10/2014)
875 NOTICE of Manual Filing filed by Defendant County of Orange of Supplemental Declaration of Chiang in Support of Defendant's Reply to Opposition to Terminate Injunctive Relief. (Sprenger, Christina) (Entered: 01/21/2014)
876 NOTICE of Manual Filing filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela of Declaration of Cindy Panuco and Exhibit 47 in Support of Plaintiffs Reply Brief in Support of Motion for Order Extending Injunctive Relief for an Additional Two Years. (Panuco, Cindy) (Entered: 01/21/2014)
877 REPLY Support MOTION for Order for Extending Injunctive Relief for 2 years 831 Plaintiffs Reply Brief in Support of Motion for Order Extending Injunctive Relief for

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 84 of 88

01/21/2014 01/21/2014 01/21/2014 01/22/2014
01/22/2014
01/22/2014 01/23/2014 01/23/2014 01/27/2014 01/28/2014

an Additional Two Years filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Panuco, Cindy) (Entered: 01/21/2014)
878 RESPONSE IN SUPPORT of MOTION for Relief from Injunction Under the Prison Litigation Reform Act [18 U.S.C. 3626(b)] and FRCP 60(b)(5); Memorandum of Points and Authorities in Support Thereof 839 Declarations In Support Thereof filed by Defendant County of Orange. (Li, Haiyang) (Entered: 01/21/2014)
879 Defendant's Evidentiary Objections and Motion to Strike Exhibits Offered by Plaintiffs in Support of Plaintiffs' Opposition to Motion to Terminate Injuctive Relief filed by Defendant County of Orange (Sprenger, Christina) (Entered: 01/21/2014)
884 SEALED DOCUMENT − SUPPLEMENTAL DECLARATION OF CHIANG IN SUPPORT OF DEFENDANT'S REPLY TO OPPOSITION TO TERMINATE INJUNCTIVE RELIEF (bm) (Entered: 01/24/2014)
880 RESPONSE IN SUPPORT of MOTION for Order for Extending Injunctive Relief for 2 years 831 Plaintiffs Response to Defendants Evidentiary Objections and Motion to Strike Exhibits Offered by Plaintiffs in Support of Motion for Order Extending Injunctive Relief for an Additional Two Years filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Panuco, Cindy) (Entered: 01/22/2014)
881 NOTICE of Manual Filing filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela of Application to File under Seal the Declaration of Cindy Pnuco and Exhibit 47 in Support of Plaintiffs Reply Brief in Support of Motion for Order Extending Injunctive Relief for an Additional Two Years; [Proposed] Order Allowing Plaintiffs to File under Seal the Declaration of Cindy Pnuco and Exhibit47 in Support of Plaintiffs Reply Brief in Support of Motion for Order Extending Injunctive Relief for an Additional Two Years; and Declaration of Cindy Pnuco and Exhibit 47 in Support of Plaintiffs Reply Brief in Support of Motion for Order Extending Injunctive Relief for an Additional Two Years. (Panuco, Cindy) (Entered: 01/22/2014)
883 APPLICATION to File Declaration of Cindy Panuco and Exhibit 47 in support of Plaintiff's Reply brief in support of Motion for Order extending Injunctive Relief for an additional two years under seal filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (ir) (Entered: 01/24/2014)
882 ORDER by Judge Audrey B. Collins: Plaintiffs are authorized to file the Declaration of Cindy Panuco and Exhibit 47 in support of Plaintiff's Reply brief in support of Motion for Order extending Injunctive Relief for an additional Two years under seal. (ir) (Entered: 01/24/2014)
888 SEALED DOCUMENT − DECLARATION of Cindy Panuco and Exhibit 47 In Support Of Plaintiff's Reply Brief In Support Of Motion For Order Extending Injunctive Relief For An Additional Two Years filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela. (Attachments: # 1 Part 2, # 2 Part 3)(bm) (Entered: 01/29/2014)
885 APPLICATION TO CROSS−EXAMINE KEITH ROHMAN AND CHRISTINA DALTON PURSUANT TO L.R. 7−6 AND 7−8; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CHRISTINA SPRENGER IN SUPPORT THEREOF filed by Defendant County of Orange re: Order, Set/Reset Motion Hearing and R&R Deadlines,,,, 872 (Li, Haiyang) (Entered: 01/27/2014)
886 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Application to Cross−Examine 885 . The following error(s) was found: Incorrect event selected. Hearing information is missing, incorrect, or not timely. Other error(s) with document(s) are specified below. The correct event is: Applications−Order. Other error(s) with document(s): Hearing information is not indicated in caption of attached document, and the noticed for hearing date in docket entry text is untimely. These applications are generally ruled on by submission and not noticed for a hearing date. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 01/28/2014)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 85 of 88

01/28/2014 01/31/2014
01/31/2014
02/03/2014 02/06/2014
02/06/2014 02/06/2014 02/07/2014 02/07/2014

887 NOTICE OF ERRATA filed by Defendant County of Orange. correcting Miscellaneous Document, 885 (Li, Haiyang) (Entered: 01/28/2014)
889 MINUTE ORDER IN CHAMBERS Re: Defendant's Request to Cross−Examine Keith Rohman andChristina Dalton by Judge Audrey B. Collins: The Court has reviewed Defendant's Request to Cross−Examine Keith Rohman and Christina Dalton Pursuant to Local Rules 7−6 and 7−8, filed on January 27, 2014. (Docket No. 885.) The Court has also received a letter from Keith Rohman, the Monitor, dated January 29, 2014. Having reviewed the parties' submissions, the Court does not find cross−examination of the Monitor or Ms. Dalton is necessary at the hearing. Therefore, the request is DENIED. The Court also notes that it previously indicated it may issue a Minute Order with questions for the Monitor. (Docket No. 859.) At this time, the Court does not anticipate it will have questions for the Monitor in advance of the hearing. (bm) (Entered: 01/31/2014)
890 MINUTE ORDER IN CHAMBERS Re: Defendant's Request to Cross−Examine Keith Rohman and Christina Dalton by Judge Audrey B. Collins: The Court has reviewed Defendant's Request to Cross−Examine Keith Rohman and Christina Dalton Pursuant to Local Rules 7−6 and 7−8, filed on January 27, 2014. (Docket No. 885.) The Court has also received a letter from Keith Rohman, the Monitor, dated January 29, 2014. Having reviewed the parties' submissions, the Court does not find cross−examination of the Monitor or Ms. Dalton is necessary at the hearing. Therefore, the request is DENIED. The Court also notes that it previously indicated it may issue a Minute Order with questions for the Monitor. (Docket No. 859.) At this time, the Court does not anticipate it will have questions for the Monitor in advance of the hearing. (bm) (Entered: 02/03/2014)
891 NOTICE OF CLERICAL ERROR: Due to clerical error Re: MINUTE ORDER IN CHAMBERS Re: Defendant's Request to Cross−Examine 890 . Other: These minutes are a duplicate of document 889 Minutes and should not have been docketed. Please disregard. (bm) (Entered: 02/03/2014)
892 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Evidentiary Objections and Motion to Strike 879 . The following error(s) was found: Other error(s) with document(s) are specified below. The correct event is: Miscellaneous Filings (Non−Motion)−Objections − non−motion, and Motions−Strike. Other error(s) with document(s): Documents should have been e−filed as separate, stand−alone documents. Docket entry text does not indicate noticed motion hearing date of 2/10/14 indicated in caption of attached document. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 02/06/2014)
893 If counsel is seeking to bring any type equipment in the Courtroom for the upcoming hearing it must be in writing with a separate proposed order as an attachment for the Judge to approval. A. Bridges, Court Clerk to Judge Collins. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ab) TEXT ONLY ENTRY (Entered: 02/06/2014)
894 APPLICATION for Order for Re: App for Use of Electronic Equipment filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Adam Ramirez, Max Sanders, Fermin Valenzuela. Application set for hearing on 2/10/2014 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Proposed Order Re App Electronic Equipment)(Panuco, Cindy) (Entered: 02/06/2014)
895 APPLICATION for Order for Defense Counsel's Use of Electronic Equipment in Courtroom filed by Defendant County of Orange. Application set for hearing on 2/10/2014 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Proposed Order Granting Defendant's Application to Use Electronic Equipment in Courtroom)(Li, Haiyang) (Entered: 02/07/2014)
896 ORDER re PLAINTIFFS' APPLICATION TO USE ELECTRONIC EQUIPMENT IN COURTROOM by Judge Audrey B. Collins denying 895 Application: DENIED BY ORDER OF THE COURT. (bm) (Entered: 02/10/2014)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 86 of 88

02/10/2014
02/10/2014
02/24/2014 02/25/2014 02/25/2014 02/25/2014 02/27/2014
02/27/2014 03/04/2014

897 MINUTES OF MOTION FOR ORDER EXTENDING INJUNCTIVE RELIEF FOR AN ADDITIONAL TWO YEARS [DOCUMENT 831]; MOTION FOR RELIEF FROM INJUNCTION UNDER PRISON LITIGATION REFORM ACT 18 USC [DOCUMENT 839] Hearing held before Judge Audrey B. Collins: Matter called. Counsel makes appearances. Tentative given to counsel. Court and counsel confer regarding tentative. Oral arguments made by counsel. Court having heard from counsel, will maintain tentative. The Court signs tentative order in open Court, which reflects the ruling of the above motions. Court Reporter: Katherine Stride. (bm) (Entered: 02/12/2014)
898 ORDER DENYING MOTION TO EXTEND AND GRANTING MOTION TO TERMINATE INJUNCTIVE RELIEF by Judge Audrey B. Collins denying 831 Motion; granting 839 Motion for Relief: "It is well established that judges and juries must defer to prison officials' expert judgments." Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2009). "[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Procunier v. Martinez, 416 U.S. 396, 404−05 (1974). In light of the reality that "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform" (id.), and having found that the injunction is no longer necessary because the three areas in which Plaintiffs seek to extend the injunction do not present current or ongoing violations, the Court DENIES Plaintiffs' motion to extend injunctive relief and GRANTS Defendant's motion to terminate the injunction. (see document for further details) (bm) (Entered: 02/12/2014)
899 NOTICE OF MOTION AND MOTION for Attorney Fees filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred Pierce, Adam Ramirez, Max Sanders, Fermin Valenzuela. Motion set for hearing on 3/31/2014 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Declaration of Dan Stormer, # 2 Exhibit 1−14, # 3 Declaration of Cindy Panuco, # 4 Exhibit 15−21, # 5 Declaration of Teresa Traber)(Panuco, Cindy) (Entered: 02/24/2014)
900 NOTICE OF LODGING filed re MOTION for Attorney Fees 899 (Attachments: # 1 Proposed Order re Pltfs' Second Mtn for Attorneys' Fees)(Panuco, Cindy) (Entered: 02/25/2014)
901 Table of Contents and Table of Authorities re: MOTION for Attorney Fees 899 (Panuco, Cindy) (Entered: 02/25/2014)
902 TRANSCRIPT ORDER as to Defendant County of Orange Court Smart (CS). Court will contact Donna Adams at dadams@lbaclaw.com with any questions regarding this order. Transcript portion requested: Other: 10/28/13 by CourtSmart. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Sprenger, Christina) (Entered: 02/25/2014)
903 TRANSCRIPT for proceedings held on 10/28/13 10:02 a.m. & 11:14 a.m.. Court Reporter/Electronic Court Recorder: Babykin Courthouse Services, phone number (626) 963−0566. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/20/2014. Redacted Transcript Deadline set for 3/30/2014. Release of Transcript Restriction set for 5/28/2014. (ha) (Entered: 02/27/2014)
904 NOTICE OF FILING TRANSCRIPT filed for proceedings 10/28/13 re Transcript 903 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ha) TEXT ONLY ENTRY (Entered: 02/27/2014)
905 TRANSCRIPT ORDER re: Transcript (CV),, 903 , as to Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela Court Smart (CS). Court will contact Dan Stormer at dstormer@hadsellstormer.com with any questions regarding this order. Transcript portion requested: Other: October 28, 2013. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Stormer, Dan) (Entered: 03/04/2014)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 87 of 88

03/04/2014 03/06/2014 03/10/2014 03/17/2014 03/26/2014
03/27/2014 03/31/2014
04/14/2014 04/16/2014

906 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Transcript Designation and Ordering Form (G−120), 905 . The following error(s) was found: ITEM # 15 SHOULD BE "COURTSMART" (not Babykin). You must electronically refile the above referenced Request for Transcript in this case to correct this deficiency. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ha) TEXT ONLY ENTRY (Entered: 03/05/2014)
907 TRANSCRIPT ORDER re: Text Only Notice of Deficiency re Request for Transcript, 906 , as to Plaintiff Timothy Lee Conn, Laurie D Ellerston, Fred Pierce, Fermin Valenzuela Court Smart (CS). Court will contact Dan Stormer at dstormer@hadsellstormer.com with any questions regarding this order. Transcript portion requested: Other: October 28, 2013. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Stormer, Dan) (Entered: 03/06/2014)
908 OPPOSITION IN OPPOSITION re: MOTION for Attorney Fees 899 ;DECLARATION OF A. LI AND EXHIBITS A−I IN SUPPORT THEREOF filed by Defendant County of Orange. (Attachments: # 1 Exhibit A−H (1 OF 2), # 2 Exhibit I (2 OF 2))(Li, Haiyang) (Entered: 03/10/2014)
909 REPLY In Support of Plaintiffs' 2nd Mtn for Attorneys' Fees MOTION for Attorney Fees 899 filed by Plaintiffs Timothy Lee Conn, Laurie D Ellerston, Jonathan Nelson, Fred Pierce, Adam Ramirez, Max Sanders, Fermin Valenzuela. (Attachments: # 1 Declaration of Cindy Panuco in Support of Plaintiffs' Reply, # 2 Exhibit in Support of Panuco Declaration, # 3 Declaration of Dan Stormer in Support of Plaintiffs' Reply, # 4 Exhibit in Support of Stormer Declaration, # 5 Declaration of Mohammad Tajsar in Support of Plaintiffs' Reply)(Panuco, Cindy) (Entered: 03/17/2014)
910 MINUTES (IN CHAMBERS) ORDER Taking Plaintiffs' Second Motion for Attorneys' Fees UNDER SUBMISSION by Judge Audrey B. Collins taking under submission 899 Motion for Attorney Fees: Pending before the Court is Plaintiffs' Second Motion for Attorneys' Fees, filed on February 24, 2014. (Docket No. 899.) Defendant County of Orange opposed on March 10 and Plaintiffs replied on March 17. (Docket Nos. 908, 909.) The Court finds this matter appropriate for resolution without oral argument and VACATES the March 31, 2014 hearing date. Fed. R. Civ. P. 78; Local Rule 7−15. The Court takes the matter UNDER SUBMISSION. (bm) (Entered: 03/26/2014)
911 STIPULATION to Continue /Postpone Ruling on Plaintiffs' Second Motion for Attorneys' Fees filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 03/27/2014)
912 ORDER TO POSTPONE ISSUANCE OF A WRITTEN RULING ON PLAINTIFFS' SECOND MOTION FOR ATTORNEYS' FEES by Judge Audrey B. Collins, re Stipulation to Continue 911 :NOTE: CHANGES MADE BY THE COURT. The Court having read and reviewed the parties' Stipulation to postpone a written ruling on Plaintiffs' Second Motion for Attorneys' Fees, and GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: The Court will postpone issuing a ruling on Plaintiffs' Second Motion for Attorneys' Fees until April 21, 2014. The parties shall file a joint report, indicating whether the motion has been resolved informally or whether the issues have been narrowed, no later than April 14, 2014 (bm) (Entered: 03/31/2014)
913 Second STIPULATION to Continue /Postpone Ruling on Plaintiffs' Second Motion for Attorneys' filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 04/14/2014)
914 ORDER TO POSTPONE ISSUANCE OF A WRITTEN RULING ON PLAINTIFFS SECOND MOTION FOR ATTORNEYS FEES by Judge Audrey B. Collins, re Stipulation to Continue 913 : NOTE: CHANGES MADE BY THE COURT. The Court having read and reviewed the parties' Second Stipulation to postpone a written ruling on Plaintiffs' Second Motion for Attorneys' Fees, and GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: The Court will postpone issuing a ruling on Plaintiffs' Second Motion for Attorneys Fees until May 5, 2014. The parties shall file a joint report, indicating whether the motion has been resolved informally or whether the issues have been narrowed, no later than April 28, 2014. (bm) (Entered: 04/16/2014)

Case: 8:01-cv-981 As of: 11/13/2014 11:58 AM PST 88 of 88

04/28/2014 04/30/2014
06/16/2014 06/17/2014
07/31/2014 07/31/2014 08/06/2014
09/09/2014 09/30/2014

915 STATUS REPORT [JOINT] filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 04/28/2014)
916 ORDER by Judge Audrey B. Collins, re Status Report 915 , The Court having read and review parties Joint Status Report on Plaintiffs' Second Motion for Attorneys' Fees, and GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: The Court strikes plaintiffs' second motion for attorney's fees, which was taken under submission on March 31, 2014. The parties are ORDERED to file a joint status report on or before June 16, 2014, updating the Court on the status for this matter. re: Set deadlines (Status Report due by 6/16/2014.) (lw) (Entered: 04/30/2014)
917 STATUS REPORT Re Resolution of Plaintiffs' Second Motion for Attorney Fees filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 06/16/2014)
918 ORDER FOR FURTHER STATUS REPORT RE RESOLUTION OF PLAINTIFFS' SECOND MOTION FOR ATTORNEYS' FEES by Judge Audrey B. Collins, re Status Report 917 , The Court having reviewed the parties Second Joint Status Report on Plaintiffs' Second Motion for Attorneys' Fees, and GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: The parties shall file a further Status Report on or before July 31, 2014 to advise the Court regarding the status of their agreement resolving the issue of Plaintiffs' request for attorneys' fees and costs. re: ( Status Report due by 7/31/2014.) (lw) (Entered: 06/19/2014)
919 STATUS REPORT Re RESOLUTION OF PLAINTIFFS' SECOND MOTION FOR ATTORNEYS' FEES filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 07/31/2014)
920 STIPULATION for Attorney Fees filed by Defendant County of Orange. (Attachments: # 1 Proposed Order)(Sprenger, Christina) (Entered: 07/31/2014)
921 ORDER ON ISSUE OF ATTORNEYS' FEES AND COSTS AND FURTHER STATUS REPORT TO THE COURT by Chief Judge George H. King. IT IS HEREBY ORDERED THAT: Defendant shall pay to Plaintiffs' counsel the sum of $115,000.00 as full and final resolution of all claims for attorneys' fees and costs remaining in this litigation in accordance with the r terms of the Settlement Agreement and General Release entered into by the parties on June 25, 2014. The parties shall file a further Status Report on or before September 30, 2014, to advise the Court of the completion of the terms of the agreement. Re: Stipulation for Attorney Fees 920 (lw) (Entered: 08/07/2014)
922 NOTICE of Change of Attorney Business or Contact Information: for attorney Dan Stormer counsel for Plaintiff Fred Pierce. Changing Firm Name to Hadsell Stormer & Renick LLP. Filed by Plaintiff Fred Pierce. (Stormer, Dan) (Entered: 09/09/2014)
923 STATUS REPORT [FOURTH JOINT] filed by Defendant County of Orange. (Sprenger, Christina) (Entered: 09/30/2014)