NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON ADVOCACY CENTER; METROPOLITAN PUBLIC DEFENDER SERVICES, INC.,

Plaintiffs

- Appellants,

v. PATRICK ALLEN, Director of the Department of Human Services, in his official capacity; DOLORES MATTEUCCI, Superintendent of Oregon State Hospital, in her official capacity,

Defendants

- Appellees. No. 20

- 35540
D.C. No. 3:02

- cv - 00339

- MO

MEMORANDUM *

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding Argued and Submitted May 6, 2021 Submission Withdrawn May 7, 2021 Resubmitted August 16, 2021 Portland, Oregon Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK, * * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. 

# FILED

AUG 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Since 2002, the Oregon State Hospital and the Oregon Health Authority (collectively “OSH”) have been subject to a permanent injunction that requires the hos pital to admit certain mentally incompetent pretrial detainees “in a reasonably timely manner,” and “not later than seven days” after the issuance of a n order finding in competenc e
. Or. Advoc. Ctr. v. Mink , CV No. 02

- 339, 2002 WL 35578910, at *7 (D. Or. May 10, 2002) ; s ee also Or. Advoc. Ctr. v. Mink , 322 F.3d 1101, 1105 (9th Cir. 2003). Those pretrial detainees are known as “.370 patients.” 1
On April 17, 2020, in light of the COVID

- 19 pandemic, OSH filed a motion in the district court seeking a modifi cation of the Mink injunction’s seven

- day deadline for admitting .370 patients until “it is medically safe for OSH to begin accepting patients in the normal course again.” The district court granted the motion over the objection of Plaintiff Oregon Advoca cy Center, which advocates for the rights of individuals with mental illnesses. This appeal followed. We v acate and remand. We review a district court’s grant of a motion to modify a permanent injunction for abuse of discretion. See United States v. A sarco Inc. , 430 F.3d 972, 978 (9th Cir. 2005). To prevail in its motion to modify the Mink injunction, OSH

1 Under Oregon law, if a court finds that a defendant is incompetent to stand trial and that he requires a hospital level of care, the cour t may order that the defendant be committed to OSH. Or. Rev. Stat. § 161.370. Such orders are known as “.370 orders.”3

had to demonstrate a significant change in factual conditions that made compliance with the injunction “more onerous, unworkable, or detrimental to the public interest.” Id. at 979 (quoting Small v. Hunt , 98 F.3d 789, 795 (4th Cir. 1996))

. If OSH made such a showing, the district court could fashion a modification or der that was “suitably tailored to resolve the problems created” by the changed factual conditions. Am. Unites for Kids v. Rousseau , 985 F.3d 1075, 1097 (9th Cir. 2021) (quoting Asarco , 430 F.3d at 979)

. 1. OSH met its burden to demonstrate that the COVID

- 19 pandemi c made compliance with the Mink injunction more onerous. In response to the pandemic, OSH reconfigured units at both of its campuses to allow for isolation of potentially infected patients and protection of high

- risk patients. For new admissions, OSH
ope ned two admissions monitoring units, each of which could safely receive between fifteen and nineteen new .370 patients every two weeks. Opening those units required transferring patients among units at both campuses, all while attempting to prevent an out break among the patient population. Unsurprisingly, this proved burdensome for OSH during the pandemic’s early stages. 2. The district court abused its discretion by failing to issue a modification order that was suitably tailored to the factual circum stances. Citing the district court’s 2002 order in Mink , Plaintiffs argue that j ails cannot provide adequate mental health treatment to individuals with .370 orders

. As the district court stated4

in 2002, “[d]epriving [individuals with .370 orders] of nec essary medical treatment increases the likelihood that they may decompensate and suffer unduly,” meaning that their conditions may worsen, or they may have difficulty gaining competency. At the same time, jails primarily employ disciplinary tools

— such as solitary confinement

— to control inmates’ behaviors. These tools are ineffective when used to manage people with mental illnesses, and they can be very harmful

. I ndividuals with .370 orders have a “high suicide risk,” and disciplinary actions “exacerbate[ ] their mental illness.” Consequently, according to the district court in 2002, “[e]very day of delay in transport harms those found unfit to proceed and hampers their ability to defend themselves.” The district court’s modification order relaxes the Mink injunction’s mandatory seven

- day deadline for OSH to admit .370 patients without imposing meaningful parameters to ensure that the interests of those patients are served to the greatest possible extent. The modification order’s only oversight requirement s are that OSH provide progress reports to the court and to Plaintiffs “every three weeks , ” and that OSH appear at status conferences. 2 Although the circumstances presented by a new pandemic were certai nly challenging, the district court had other options available. For example, t he district court could have adopted

2 Although we do not base our holding on events that postdate the district court’s decision, we note that the court’s reporting requir ements have not been consistently followed.5

parameters such as a sunset date after which the order would terminate (thereby requiring a new motion from OSH i f it still wanted relief from the seven

- day requirement ), or it could ha ve imposed a concrete alternative timeline for admitting individuals with .370 orders if seven days proved unworkable, or both. Alternatively, the district court could have ordered the modification to terminate at some date that would be tied to public he alth policy milestones, such as the lifting of Oregon’s State of Emergency. To be sure, the district court faced a difficult task during an unprecedented time. But an open

- ended modification order is inconsistent with the urgent need to transfer individua ls with .370 orders out of jails. The order is thus not “suitably tailored” to the factual circumstances. Rousseau , 985 F.3d at 1097. On remand, the district court is instructed to reconsider whether a modification to the permanent injunction is needed , and, if so, to craft a more

“ suitabl y tailored” modification order. Id. ; c f. Hook v. Arizona , 120 F.3d 921, 926 (9th Cir. 1997)

. The examples listed above are not directives; the district court should have the flexibility to conduct further factfinding and consider a lternatives before issuing any further order

. VACATED AND REMANDED.