facility construction and liability in a post realignment ... · 11/13/06 plaintiffs file motion to...

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Facility Construction And Liability In A Post Realignment World

Key Legal Issues

Joint Training Partnership April 16, 2014

Paul Mello

REALIGNMENT - BACKGROUND

THREE-JUDGE PANEL AND CALIFORNIA’S INMATE POPULATION

REDUCTION

DATE EVENT/DESCRIPTION POPULATION HOUSED IN CALIFORNIA STATE PRISONS

11/13/06 Plaintiffs file motion to convene a three-judge panel in Plata/Coleman v. Schwarzenegger under the Prison Litigation Reform Act (PLRA) claiming that overcrowding in CDCR prisons results in unconstitutional health care.

162,466

11/18/08 Three-Judge Panel Trial 11/18/08 to 12/18/08 (population date taken from 12/1/08).

155,922

02/03/09 Three-Judge Panel closing arguments 2/3/09 - 2/4/09. 153,649

08/04/09 Three-Judge Panel issues a 184-page opinion ordering the state to reduce its adult institution population to 137.5 percent of design capacity within two years.

150,118

09/03/09 The State appeals the August 4, 2009, order to the U.S. Supreme Court. 149,375

01/12/10 The Three-Judge Panel orders the state to reduce its prison population by six-month benchmarks to 137.5 percent within two years.

151, 036

01/19/10: The State files an appeal to the U.S. Supreme Court of the Three-Judge Panel’s January 12, 2010, order to reduce the prison population.

150, 958


06/14/10 The U.S. Supreme Court announces that it will take the case.

148,412

05/23/11 The U.S. Supreme Court rules 5-4 upholding the Three-Judge Panel’s finding that overcrowding is the “primary” cause of unconstitutional medical care. The court orders CDCR to release prisoners until the inmate population is reduced to 137.5 percent of the design capacity (or 109,805 prisoners) within two years.

143,435

10/1/11 Realignment Legislation begins implementation 143,664

6/15/12 The State files its monthly status report with the Three-Judge Court. The report says that on June 5, 2012, the population of California’s 33 prisons was 121,455, or 152.5 percent of design capacity. The State also noted that it had met the second benchmark (155 percent by June 27, 2012) two months early.

121,455

11/15/12 The State informs the Court that it is unlikely to achieve the third benchmark of 147 percent of design capacity by December 27, 2012, and petitions the Court to extend the third and final benchmarks by six months (i.e. 147 percent by June 27, 2013, and 137.5 percent by December 27, 2013).

120,124


1/7/13 The State files a motion to vacate or modify the population-reduction order arguing that “at the current population density, inmates are receiving health care that exceeds constitutional standards.” (On a related matter on the same day, the Governor ends the emergency proclamation from 2006 that allowed the State to send inmates to out-of-state facilities. On the same day, the State also files a motion to terminate the Coleman lawsuit; that motion is denied on April 5, 2013.)

119,192

4/11/2013 The Court denies the State’s motion to vacate or modify the population-reduction order, and orders the State to produce within 21 days a plan to reduce the prison population to 137.5 percent of design capacity.

119,547

9/12/2013 Governor Brown signs SB 105, a bipartisan bill to satisfy the Three-Judge Court’s population-reduction order by December 31, 2016, in part through the temporary use of leased in-state facilities. SB 105 also requires the State to devise “balanced solutions that are cost effective and protect public safety” and sets aside money to facilitate such solutions. SB 105 also allows the State to send more inmates to out-of-state facilities if the Three-Judge Court does not extend the deadline for compliance by three years.

120,027

10/15/2013 The U.S. Supreme Court denies “for want of jurisdiction” the State’s appeal of the Three-Judge Court’s rejection of the motion to vacate or modify the population reduction order.

120,566

2/10/2014 The Court grants the State’s request for an extension to comply with the 137.5 population cap until February 28, 2016.

117,630

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6/30/2014 CDCR’s prison population must be 143% of design bed capacity, or approximately 116,650, by this date.

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2/28/2015 CDCR’s prison population must be 141.5% of design bed capacity, or approximately 115,425, by this date.

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2/28/2016 CDCR’s prison population must be 137.5% of design bed capacity, or approximately 112,165, by this date.

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COUNTIES WITH COURT-ORDERED AND/OR SELF-IMPOSED

POPULATION CAPS

• There are more than 30 California Counties which appear to be subject to either Court ordered or self-imposed population caps on their jails.

• [Amador, Butte, Calaveras, El Dorado, Fresno, Inyo, Kern, Kings, Los Angeles, Madera, Marin, Mariposa, Merced, Orange, Placer, Plumas, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Joaquin, Santa Barbara, Shasta, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Tulare, and Yolo]

COUNTY RATED CAPACITY AS OF 6/30/13

ADP AS OF 6/30/13

Alameda 4,716 3,421

Alpine --- ---

Amador 76 94

Butte 614 597

Calaveras 65 70

Colusa 92 74

Contra Costa 1,987 1,463

Del Norte 133 96

El Dorado 423 380

Fresno 2,744 3,123

Glenn 144 113

Humboldt 411 375


ADP AS OF 6/30/13

Imperial 376 592

Inyo 96 74

Kern 2,698 2,608

Kings 361 503

Lake 286 312

Lassen 149 129

Los Angeles 14,024 18,333

Madera 419 402

Marin 349 283

Mariposa 58 45

Mendocino 295 282

Merced 753 963


ADP AS OF 6/30/13

Modoc 48 30

Mono 48 34

Monterey 825 1,138

Napa 264 243

Nevada 251 148

Orange 5,063 6,793

Placer 648 619

Plumas 67 43

Riverside 3,834 3,882

Sacramento 3,916 4173

San Benito 142 114

San Bernardino 5,586 5,952

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ADP AS OF 6/30/13

San Diego 3,702 5,564

San Francisco 2,360 1,465

San Joaquin 1,333 1,468

San Luis Obispo 536 686

San Mateo 834 1,053

Santa Barbara 816 1,013

Santa Clara 3,825 4,064

Santa Cruz 601 402

Shasta 381 325

Sierra 14 5

Siskiyou 104 96

Solano 1,084 948


ADP AS OF 6/30/13

Sonoma 1,406 1,089

Stanislaus 1,226 1,099

Sutter 352 255

Tehama 191 170

Trinity 53 54

Tulare 1,714 1,621

Tuolumne 149 138

Ventura 1,575 1,617

Yolo 392 444

Yuba 426 415

OVERALL 75,640 81,824

**Source: Board of State and Community Corrections

Sentenced And Non-Sentenced ADP In California’s Jails As Of 6/30/2013:

Total ADP: 81,824

Non-Sentenced ADP: 51,271

Sentenced ADP: 30,553

MONTHLY EARLY RELEASES DUE TO CAPACITY PRESSURES FACED BY

COUNTIES (6/30/13):

Sentenced Offenders

– Early Releases: 5,709

Non-Sentenced Offenders

– Early Releases: 4,735

Early Releases – Examples:

• Los Angeles 1,393 Sentenced

299 Non-Sentenced

• San Diego 812 Sentenced

-0- Non-Sentenced

• Riverside 847 Sentenced

-0- Non-Sentenced

THE EARLY INDICATIONS OF REALIGNMENT’S EFFECT ON COUNTY

CRIME RATES

• Property crimes are up in California, contrary to previous state and national trends

• Violent crime is also up slightly, but those who have studied the data believe it is too early to judge the effect of realignment on violent crime rates

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PLANNED OR ANTICIPATED CONSTRUCTION OF ADDITIONAL

COUNTY JAIL BEDS

PLANNED OR ANTICIPATED CONSTRUCTION OF ADDITIONAL COUNTY JAIL BEDS

PROJECT STATUS UPDATE PHASES I AND II

Phase I Projects

• Calaveras County- Adult Detention Facility – San Andreas This jail project consists of the construction of a new facility with 160 beds, replacing an existing 65-bed facility.

• Madera County - County Jail – Madera This jail project consists of renovation and expansion of an existing facility to include the addition of 144 beds.

• San Bernardino County - Adelanto Detention Center – Adelanto This jail project consists of the construction of a 1,368-bed expansion.

Phase I Projects (continued)

• San Diego County - Women’s Detention Facility – Santee This project consists of the replacement of the existing women’s detention facility, constructing 1,270 beds.

• San Luis Obispo County - Women’s Jail and Medical/Mental Health/Program Building – San Luis Obispo This project consists of constructing a replacement women’s facility with 198 beds, as well as a medical/mental health/program building.

• Solano County - Claybank Facility II – Fairfield This jail project consists of the construction of a new 362-bed facility.

Phase II Projects

• Kings County - County Jail – Hanford This project consists of constructing a 252-bed expansion to an existing facility.

• Orange County - James A. Musick Facility – Irvine This project consists of constructing a stand-alone 512-bed facility.

• Santa Barbara County - County Jail Northern Branch – Santa Maria This proposed project consists of construction of a stand-alone 376-bed facility.

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Phase II Projects (continued)

• Stanislaus County - Public Safety Center – Modesto This project consists of adding 456 beds, a security administration facility and a programs/day reporting facility at an existing jail facility.

Remaining Projects With A Conditional Award

Phase I Projects • Amador County – Adult Detention Facility

Award: $22,712,000 This proposed project consists of constructing a 165-bed replacement facility.

• San Joaquin County – John J. Zunino Detention Facility Award: $80,000,000 This proposed project consists of an addition of 1,280 beds to the existing facility.

Phase II Projects

• Imperial County - Medium Security Detention Facility Award: $33,000,000 This proposed project consists of construction of a 232-bed facility.

• Kern County - Justice Facility Award: $100,000,000 This proposed project consists of construction of a new 790-bed facility.

• Los Angeles County -Pitchess Detention Center Women’s Village Award: $100,000,000 This proposed project consists of construction of a 1,024-bed facility.

• Madera County - County Jail Award: $3,000,000 This proposed project consists of remodeling an existing facility to add one special use medical bed and construct a kitchen.

• Monterey County - County Jail Award: $36,295,000 This proposed project consists of constructing a 288-bed addition to the existing facility.

Phase II Projects • Riverside County - Indio Jail

Award: $100,000,000 This proposed project consists of expanding and renovating an existing facility, adding 1,250 beds.

• San Benito County - County Jail Award: $15,053,000 This proposed project consists of adding 60 beds to the existing facility.

• Siskiyou County - County Jail #2 Award: $24,140,000 This proposed project consists of constructing a stand-alone 150-bed facility.

• Sutter County - County Jail Award: $9,741,000 This proposed project consists of expanding and renovating an existing facility, adding 42 beds.

• Tulare County - South County Detention Facility Award: $60,000,000 This proposed project consists of constructing a stand-alone 514-bed facility.

Realignment The Operational Impact

• Conversion of county jails into local prisons

• Housing inmates long-term with special needs (i.e., chronic medical conditions, serious

mental health issues, serious dental needs, and significant disabilities requiring accommodations)

• Focused attention on county jails

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Realignment The Operational Impact (continued)

• Operational costs to run facilities on an ongoing basis - for correctional officers, other personnel, food, health care, education, programs and services, etc. - generally far exceed construction costs. They also expose jurisdictions to numerous other litigation risks.

EXAMPLES OF CURRENT PUTATIVE CLASS ACTION

LITIGATION AGAINST COUNTY JAILS

COUNTY DESCRIPTIONS

Alameda ADA

Contra Costa ADA, Rehabilitation Act, Education claims

Fresno Medical, Mental health, Dental, Substandard housing, Failure to protect from violence

Monterey Medical, Mental health, Substandard housing, Failure to protect from violence

Riverside Medical, Mental health care

Why Are Correctional Class Action Lawsuits So Attractive To Plaintiffs’ Attorneys?

• Constitutional compliance/dismissal at State level

• Attorneys’ fees are recoverable

• Consent decrees, remedial phase, monitoring

• Easy target: complex systems, security concerns, aging population

• Plaintiffs’ attorneys are already touring county facilities in other cases – for example, the Armstrong case

Warning Signs That Your County Or Facility May Be Targeted

• Increased grievances and/or individual cases relating to medical care, mental health care, and/or meaningful access to programs

• Shortages of clinicians, difficulties associated with access to care

• Elimination of programs and/or difficulties associated with access to programs

• Inadequate systems in place to track health care and mental health care needs/access

• No screening tools, inappropriate housing, paths of travel, cell door widths, compliant showers, and eating facilities

• Inadequate/antiquated data collection systems that can demonstrate compliance with the Constitution and/or federal and state law

Realities

• Success with individual cases does not necessarily translate to class actions: – Pro per vs. highly skilled Plaintiffs’ counsel with

sophisticated “experts”

– Class representatives generally present strong claims

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CORRECTIONAL CLASS ACTION LITIGATION:

CAUSES OF ACTION & STANDARDS

Class Action Litigation: Cause of Action Trends

• ADA (Title II v. Title III claims), Rehabilitation Act and other litigation not subject to attorneys’ fees caps

• Medical, Mental Health, Dental • Protection from injury and violence from other

prisoners • Conditions of solitary confinement • Use of lockdowns/modified programs • Religion: meals, artifacts, and expression • Access to law library; 1st Amendment censorship

Standards Deliberate Indifference

Plaintiffs alleging violations of the Eighth and Fourteenth Amendments must prove

deliberate indifference: knowing disregard of an excessive risk to inmate safety or health. Stated another way – the public agency or official knowingly subjects class members to a substantial risk of harm.

Standards The PLRA

Litigation relating to conditions of confinement is governed by the Prison Litigation Reform Act of 1995 (PLRA), which imposes strict limitations on the relief that can be awarded in civil actions.

The PLRA also imposes a “comprehensive set of standards to govern prospective relief in prison condition cases.” Gilmore v. California, 220 F.3d 987, 998 (9th Cir. 2000).

Standards Attorneys’ Fees

The PLRA places a cap, currently $172.50, on the hourly rate at which attorneys representing prisoners can be reimbursed through a fee award.

There is no cap for non-PLRA cases, such as those brought under the ADA.

PREVENTION AND DEFENSE STRATEGIES

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Prevention • Clear, solid policies and ensure compliance

• Evaluate and ensure access to programs and services – Audits, both internal and external

– Adequate space and supplies for the institution population

• Ensure facilities employ (or contract with) competent clinicians and service providers – Adequate numbers of healthcare personnel, peer review,

etc.

• Ensure an adequate medical records system is in place

• Quality assurance systems

Prevention (continued)

• Construction of new facilities

– Compliance with ADA and Rehabilitation Act Requirements (See, e.g., U.S. Department of Justice, Civil Rights Division, Disabilities Rights Section ADA/Section 504 Design Guide. See handout; see also, http://www.ada.gov/accessiblecells.htm)

– If possible, negotiate indemnification clauses relating to facility construction.

Defense Strategies First Steps in Defending Case

Assess and audit county facilities, programs, and policies to determine whether they meet minimum legal standards for the existing jail population.

Defense Strategies Internal Discovery

• Determine whether access to care and programs has been internally evaluated, and whether related documents are covered by any privilege

• Determine whether appropriate discipline and/or peer review has been conducted, and whether related documents are covered by any privilege

Defense Strategies Obtain Solid, Experienced Legal Defense

• Litigation is expensive and can lead to intrusive and extended federal judicial oversight of county operations.

• Be sure to retain an experienced legal team aware of common pitfalls in litigation, including overbroad consent decrees

• Hire appropriate and qualified consultants and experts

HANSON BRIDGETT

http://www.ada.gov/accessiblecells.htm

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Public Sector Experience

• Hanson Bridgett’s longstanding public agency practice, representing the State, cities, counties, transit agencies, transportation authorities, and other special districts and educational institutions.

• The firm has more than 160 lawyers engaged in a diversified general practice, with several areas of strong public agency specialization.

• Expertise gleaned from more than 40 years of practice in public agency law, and extensive experience relating to correctional systems, public construction law, public employment law, and litigation defense on behalf of public entities.

Correctional Class Action Experience

• Plata v. Brown. Class action concerning the delivery of medical care at the California Department of Corrections and Rehabilitation’s 33 institutions.

• Valdivia v. Brown. Class action concerning constitutionality of adult parole revocation process. Obtained dismissal of decades-old case.

• L.H. v. Brown. Class action concerning constitutionality of juvenile parole revocation process. Court recently dismissed the case. Obtained dismissal of longstanding case.

• Wheat/Klemaske

Hanson Bridgett’s Correctional Class Action Team Leader

Paul Mello, Partner • Extensive experience representing

public and private sector clients in putative and certified class actions in complex employment and correctional litigation

• Represented Department of Corrections at trial during prison overcrowding proceedings

Paul Mello – Relevant Presentations

• Corrections & Realignment: Avoiding Litigation, co-speaker, CSAC Annual Conference Innovation Summit (November 2013)

• Correctional Class Action Litigation Following Realignment: Current Trends and Litigation Strategies, co-presenter, County Counsels’ Association of California, 2013 Annual Meeting (September 2013)

• Correctional Class Action Litigation: Risks, Prevention, & Litigation Strategies, co-speaker, San Joaquin Valley Regional Association of California Counties (October 2012)

• Prison and Jail Class Action Litigation: Overcrowding Litigation and Other more Typical Class Action Litigation, County Counsels’ Association of California Annual Meeting (Monterey, April 2008)

• Review of Major Correctional Litigation, National Sheriffs’ Association Annual Winter Conference (New Orleans, Jan. 2008)

Closing Thoughts

• Correctional class action litigation is on the rise without an end in sight

• Do not wait to evaluate and address risks and/or problem areas

Contact Information

Paul Mello Hanson Bridgett LLP Walnut Creek Office

1676 North California Blvd., Suite 620 Walnut Creek, CA 94596 Phone: (925) 746-8460

San Francisco Office 425 Market Street, 26th Floor

San Francisco, CA 94105 Phone: (415) 995-5883

[email protected]

mailto:[email protected]

facility construction and liability in a post realignment ... · 11/13/06 plaintiffs file motion to...

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