Case 4:94-Cv-02307-CW Document 3266 Filed 05/17/21 Page 1 of 114

Case 4:94-cv-02307-CW Document 3266 Filed 05/17/21 Page 1 of 114 1 DONALD SPECTER – 083925 CALIFORNIA OFFICE OF THE RITA K. LOMIO – 254501 ATTORNEY GENERAL 2 MARGOT MENDELSON – 268583 ROB BONTA PRISON LAW OFFICE Attorney General of the State of California 3 1917 Fifth Street MONICA ANDERSON Berkeley, California 94710-1916 Senior Assistant Attorney General 4 Telephone: (510) 280-2621 ADRIANO HRVATIN Facsimile: (510) 280-2704 Supervising Deputy Attorney General 5 SEAN LODHOLZ MICHAEL W. BIEN – 096891 ANTHONY J. TARTAGLIO 6 GAY C. GRUNFELD – 121944 TRACE O. MAIORINO PENNY GODBOLD – 226925 Deputy Attorneys General 7 MICHAEL FREEDMAN – 262850 State Bar No. 179749 ROSEN BIEN 455 Golden Gate Avenue, Suite 11000 8 GALVAN & GRUNFELD LLP San Francisco, CA 94102-7004 101 Mission Street, Sixth Floor Telephone: (415) 510-3594 9 San Francisco, California 94105-1738 Fax: (415) 703-5843 Telephone: (415) 433-6830 E-mail: [email protected] 10 Facsimile: (415) 433-7104 Attorneys for Defendants Gavin Newsom 11 LINDA D. KILB – 136101 and the California Department of Corrections DISABILITY RIGHTS and Rehabilitation 12 EDUCATION & DEFENSE FUND, INC. 13 3075 Adeline Street, Suite 201 Berkeley, California 94703 14 Telephone: (510) 644-2555 Facsimile: (510) 841-8645 15 Attorneys for Plaintiffs 16 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 20 JOHN ARMSTRONG, et al., Case No. C94 2307 CW 21 Plaintiffs, JOINT CASE STATUS STATEMENT 22 v. Judge: Hon. Claudia Wilken 23 GAVIN NEWSOM, et al., 24 Defendants. 25 26 27 28 Case No. C94 2307 CW [3735965.2] JOINT CASE STATUS STATEMENT Case 4:94-cv-02307-CW Document 3266 Filed 05/17/21 Page 2 of 114 1 The parties submit this Joint Case Status Statement pursuant to the Stipulation and 2 Order entered March 28, 2011 (Doc. 1868), which provides that “[t]he parties will file 3 periodic joint statements describing the status of the litigation” every other month, 4 beginning on May 16, 2011. 5 CURRENT ISSUES1 6 A. Effect of the COVID-19 Pandemic on the Armstrong Class 7 1. Plaintiffs’ Statement 8 “COVID-19 has had a devastating and disproportionate impact on people with 9 disabilities.” U.S. Dep’t of Justice, Statement by the Principal Deputy Assistant Attorney 10 General for Civil Rights Leading a Coordinated Civil Rights Response to Coronavirus 11 (COVID-19) (Apr. 2, 2021). This certainly has been true in the California prison system, 12 where people with disabilities have been housed in unsafe and less safe areas because of 13 their disabilities, have been almost five times more likely to die of COVID-19 than their 14 peers, and have been denied equal access to the most basic of programs, services, and 15 activities during the pandemic, including the ability to communicate with loved ones, to 16 use an accessible toilet or shower, to safely transfer between a bed and wheelchair, and to 17 meaningfully participate in (and, later, potentially earn sentence-reducing credits for) 18 milestone and education programs. 19 With the roll-out of vaccinations in the prison system and in the outside community, 20 Plaintiffs are hopeful that the worst of the pandemic is behind us. We agree with Judge 21 Tigar, however, that “we can’t let down our guard,” and that we must “capture what we’re 22 learning.” See Case Management Conference, Plata v. Newsom, No. 01-1351, Tr. at 5:10- 23 6:2 (N.D. Cal. Mar. 26, 2021) (“THE COURT: And when we think COVID is over, we 24 will be wrong because variants of COVID will have emerged. My prediction is that will 25 happen to us at least once. Even if I am wrong about that, or even when those variants are 26 over new organisms will be evolving. That’s what happened here. That’s what happened; 27 1 Statements are joint unless otherwise delineated as either Plaintiffs’ Statement or 28 Defendants’ Statement. 1 Case No. C94 2307 CW [3735965.2] JOINT CASE STATUS STATEMENT Case 4:94-cv-02307-CW Document 3266 Filed 05/17/21 Page 3 of 114 1 an organism evolved, and we weren’t ready.”). 2 a. Safe, accessible housing of Armstrong class members 3 As of May 7, 2021, 268 Armstrong class members remained housed in areas not 4 designated for their disabilities, including 81 class members awaiting transfer to a mainline 5 facility from a reception center, and class members who have been mis-housed for over a 6 year. An additional 54 people were not housed in compliance with a lower bunk and/or 7 lower tier housing restriction. Although the Court Expert, on February 1, 2021, had noted 8 that these numbers were “of concern” and “the sooner the number of mis-housed class 9 members can be reduced and class members returned to designated housing, the better,” 10 Defendants appear, until recently, to have made no effort to do so. See Doc. 3201 at 8. 11 The number of mis-housed class members, over three months later, remained largely 12 unchanged. See id. (noting that, as of January 22, over 310 class members were not 13 housed in accordance with their DPP codes and approximately 60 class members were not 14 housed in accordance with their lower/lower designations). 15 The cause may be two-fold. First, Defendants apparently made no effort to 16 expedite or prioritize the movement of mis-housed Armstrong class members, even 17 though, in April 2021 alone, there were 4,390 transfers of people between prisons. 18 Second, Defendants had not, until recently, designated accessible post-transfer quarantine 19 space at all institutions. Indeed, as of April 9, 2021, a number of Armstrong class 20 members were endorsed to prisons that had no post-transfer quarantine beds designated to 21 accommodate their disabilities. It is critical that Defendants ensure that class members are 22 expeditiously transferred out of non-designated areas, and that, as programming begins to 23 open up statewide, class members—particularly those housed in restrictive reception 24 center settings—are able to receive equivalent access to programs and credit-earning 25 opportunities available to incarcerated people without disabilities. 26 Even after the conclusion of this pandemic, the issue of sufficient accessible 27 housing for people with disabilities will remain a concern. Defendants have stated that 28 they are “considering long-term strategies for a safer and more resilient prison system into 2 Case No. C94 2307 CW [3735965.2] JOINT CASE STATUS STATEMENT Case 4:94-cv-02307-CW Document 3266 Filed 05/17/21 Page 4 of 114 1 the future,” and that “[n]ew consideration must be given to the long term use of 2 dormitories, placements of older inmates, and the need for dedicated space to isolate 3 inmates in the event of additional outbreaks of either COVID-19 or other airborne 4 communicable diseases.” See Governor’s Budget Summary – 2021-22, at 177 (Jan. 8, 5 2021), available at http://www.ebudget.ca.gov/2021-22/pdf/BudgetSummary/ 6 FullBudgetSummary.pdf. Many Armstrong class members are housed in dormitory 7 settings and, due to advanced age and underlying medical conditions, are particularly 8 vulnerable to communicable diseases. There currently are a limited number of accessible 9 cells throughout the prison system. 10 b. Core failures in Defendants’ disability accommodation system 11 The pandemic also has laid bare pre-existing foundational infirmities in Defendants’ 12 disability accommodation system. One foundational problem is frequent turnover of, and 13 lack of formal training for, critical ADA staff at each institution. Indeed, in the past twelve 14 months, 23 of the 35 institutions had at least one change in the ADA Coordinator, who 15 oversees the Reasonable Accommodation Panel, and ten institutions had multiple changes 16 at that position. Many instances of disability discrimination and serious harm that should 17 have been identified and resolved at the institution level during the pandemic were not. 18 And we continue to see seriously flawed responses to requests for disability 19 accommodations, particularly by new ADA Coordinators. See, e.g., Exhibit A, Letter 20 from Rita Lomio & Tania Amarillas, Plaintiffs’ Counsel, to Alexander Powell, CDCR 21 Office of Legal Affairs, Operation of the CDCR 1824 Process at SATF (Apr. 8, 2021). 22 And, more generally, Defendants provide inadequate guidance to, and oversight of, 23 ADA staff at the institutions to ensure appropriate implementation of pandemic response 24 plans and other ADA requirements. Put differently, in some cases, the requisite policy is 25 clear—either through Court order or a headquarters directive—but institutions either do 26 not implement it or do so in a punitive and discriminatory manner. It was only during 27 Plaintiffs’ monitoring of institutions’ pandemic response plans that these important issues 28 were uncovered. For example: 3 Case No. C94 2307 CW [3735965.2] JOINT CASE STATUS STATEMENT Case 4:94-cv-02307-CW Document 3266 Filed 05/17/21 Page 5 of 114 1 Non-Compliance with the Court’s 2015 Administrative Segregation Order: 2 Defendants self-report, through monthly logs, near-perfect compliance with the Court’s 3 2015 order. See Doc. 2496 at 4 (“The Court orders that if Defendants place an Armstrong 4 class member in administrative segregation due to the lack of an accessible bed, they must 5 fully document their reasons for doing so” and produce specific, detailed information to 6 Plaintiffs’ counsel). But Plaintiffs identified an instance earlier in the pandemic where an 7 institution (in this case, SATF) failed to identify or report placement of a full-time 8 wheelchair user in administrative segregation because no other accessible housing was 9 available.

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