(PC) Coleman v. Newsom

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA RALPH COLEMAN, et al., No. 2:90-cv-0520 KJM DB P 11 Plaintiffs, 12 v. ORDER GAVIN NEWSOM, et al., 14 Defendants.

16 As the court required, the Special Master has filed a report and recommendations on proposed processes for regular administrative updating of the court-approved remedy in this action, including a revised proposal for the updating process. See Special Master’s Amended Report on the Proposed Processes for Updating the 2018 Program Guide Revision, Related State Regulations, and Related Additions or Changes to the California Department of Corrections and Rehabilitation’s Department Operations Manual (CDCR DOM) (Updating Process Report), ECF No. 6476.1 Defendants have filed a response to the report, objecting to some of the recommendations it contains. ECF No. 6506.2 The Special Master originally filed his Updating Process Report on February 14, 2020. ECF No. 6466. He filed the amended Updating Process Report on February 20, 2020, and the court refers to the amended version throughout this order.

27 2 Defendants’ response, filed March 16, 2020, represents that it is responsive to the original Updating Process Report. See, e.g., ECF No. 6506 at 1. The court construes defendants’ response as a response to the amended Updating Process Report.

1 The Special Master makes three recommendations: that the court (1) adopt his revised proposal attached as Exhibit 1 to the Updating Process Report “as the process for annual administrative updates to the Program Guide; (2) require defendants to provide to plaintiffs and the Special Master any proposed new or substantive amendments to Program Guide-related regulations ninety days in advance of the public comment period; and (3) require further work under the supervision of the Special Master “to determine what processes will be conducted during” the ninety day advance notice period, and require the Special Master to report the results of this work within thirty days. ECF No. 6476 at 14.3 9 Defendants’ remedies for the Eighth Amendment violations in custodial practices are found in state regulations and provisions of the CDCR DOM. as well as departmental memoranda and court orders. The custody remedies are set out in a list styled “Negotiated Court- Ordered Remedial Measures Related to Custodial Issues Not Included in the 2018 Program Guide,” ECF No. 6431 at Appendix A, that the court approved on February 11, 2020 as the complete list of custodial remedies. ECF No. 6460 at 2. Throughout this order, this list is referred to as the Compendium of Custody Related Remedial Measures. Defendants object that the proposed process should not apply to the remedies contained in the Compendium of Custody Related Remedial Measures, found in state regulations, memoranda and court orders and not in the Program Guide itself, and they restate their previous objections to the recommendation that they be required to give plaintiffs and the Special Master ninety days advance notice of any proposed Program Guide-related rule making. ECF No. 6506 at 2-3.

21 Having reviewed the Updating Process Report and defendants’ response, the court makes the following findings and orders.

23 ///// ///// ///// References to page numbers in documents filed in the Court’s Electronic Case Filing (ECF) system are to the page number assigned by the ECF system and located in the upper right hand corner of the page.

1 I. BACKGROUND 2 A. Remedial Plans Covered By Updating Process Report 3 Plaintiffs are a “class of seriously mentally ill persons in California’s prisons.”

4 Brown v. Plata, 563 U.S. 493, 506 (2011). “In 1995, the court found defendants in violation of their Eighth Amendment duty to provide [the plaintiff class] with access to adequate mental health care. Coleman v. Wilson, 912 F.Supp. 1282 (E.D. Cal. 1995). The court also found Eighth Amendment violations in certain custodial practices as applied to these inmates, including use of force, segregated housing and mechanical restraints. See id.” July 9, 2019 Order, ECF No. 6214, at 1. Over the course of twenty-three years, the court has given final approval to a comprehensive set of plans for remediation of the identified violations.

11 The defendants’ remedial plan for the identified violations in the delivery of mental health care to California’s prisoners is the 12 California Department of Corrections and Rehabilitation (CDCR) Mental Health Services Delivery System (MHSDS) Program Guide 13 (Program Guide). See ECF No. 4361 at 2-6 (discussing history of development of Program Guide as remedial plan for identified 14 constitutional violations). Defendants’ proposed remedies for the Eighth Amendment violations in custodial practices are primarily 15 found in state regulations and provisions of the CDCR Department Operations Manual (D.O.M.). See, e.g., ECF No. 5190 (defendants’ 16 revised policies and plans for use of force and segregated housing involving class members, required by court order, ECF No. 5131 at 17 72-74). Other remedial measures include a court-ordered mental health staffing plan, see ECF Nos. 3613 at 2 (court order), 3693 18 (staffing plan), regular mental health bed projections, see ECF No. 3629, and concomitant planning for and building of necessary mental 19 health beds and clinical treatment space, see, e.g., ECF No. 3556.

20 Id. at 2. The Special Master has provided the Updating Process Report after nearly three years of effort to update the Program Guide to reflect current policies and practices, to achieve the filing of current comprehensive remedial documents on the record, and to develop processes for regular administrative updates to those remedial documents. See ECF No. 6476 at 2-8. The Updating Process Report is focused on the first two remedial documents: the Program Guide and the Compendium of Custody Related Remedial Measures.

26 B. Relevant History 27 A number of relevant events preceded the Special Master’s submission of the Updating Process Report now before the court. In December 2017, the court ordered the parties, supervised by the Special Master, to complete and file, on or before March 31, 2018, a “current consolidated Program Guide “incorporating all court-ordered modifications required since” the Program Guide was approved in March 2006. December 15, 2017 Order, ECF No. 5750, at 4.

4 After receiving extensions of time, on June 29, 2018, the Special Master filed three proposed Program Guide appendices and a report containing four recommendations. ECF No. 5844. On July 20, 2018, the court required the Special Master to “file the entire current consolidated Program Guide, including the 2009 Revised Program Guide, proposed Appendices A and B, thereto” and an index to Appendix A. ECF No. 5860. On July 30, 2018, the Special Master filed the entire current consolidated Program Guide with five appendices. ECF Nos. 5864, 5864-1.

10 The current consolidated Program Guide is denominated the Program Guide 2018 Revision, ECF No. 5864-1, and is referred to as the 2018 Program Guide Revision.

12 One of the recommendations in the Special Master’s June 29, 2018 Report was the same as his current second recommendation, that defendants be required to give plaintiffs and Special Master notice ninety days ahead of any public comment period for “‘any proposed Program Guide-related regulations. . . .’” Compare ECF No. 6476 at 14 with ECF No. 5844 at 10. Defendants objected to this recommendation, see ECF No. 5862 at 4, while plaintiffs supported it, see ECF No. 5875 at 2.

18 In July 2019, this court issued a comprehensive order giving final approval to the 2018 Program Guide Revision and Appendices A through D, ECF No. 5864-1, and directing the preparation of the document identifying all custody related remedial measures, now referred to as the Compendium of Custody Related Remedial Measures. July 9, 2019 Order, ECF No. 6214 at 19.4 In addition, the court renewed its direction, with refinements, for development of an “improved method” for regular administrative updates to the Program Guide as well as “a process for updates and revisions to any part of the remedy found in state regulations and/or provisions of The court’s initial order was filed July 3, 2019. ECF No. 6211. An amended order was issued July 9, 2019 to clarify the 2018 Program Guide Revision Appendices approved by the order. See ECF No. 6214 at 1 n.1. The Special Master in his Updating Process Report refers to both orders, as he correctly observes that for purposes of his Updating Process Report the amended order made no substantive changes to the initial order. See ECF No. 6476 at 1 n.2. For ease of reference, in this order all citations to those directives are to the amended order, ECF No. 6214.

1 the” CDCR DOM. Id. This latter part of the July 2019 order led to the Updating Process Report currently before the court.

3 In the July 2019 order, the court declined to reach the Special Master’s recommendation concerning advance notice of proposed regulatory changes. The court found the “recommendation recognizes the complexity of this case, the law of the case and the need to protect the court-ordered remedy to avoid material modification of the remedy through the state regulatory process and without approval by this court” and that it was “consistent with the court’s primary purpose in requiring submission of an updated Program Guide: ensuring ease of reference and agreement on the contents of the complete remedy, covering mental health services and custodial considerations as well.” Id. at 15-16. However, the court found the recommendation premature “given the complex issues implicated by the interface of the Program Guide, state regulations and/or the D.O.M., and the range of work that remains to be done in the All-Parties Workgroup.” Id. at 16. The court referred the matter back to the All Parties Workgroup with the following direction: 15 With its eye firmly focused on the twin needs to protect the approved remedy and preclude disagreement about all of the remedy’s 16 contours as the case moves through the final stages of remediation - - compliance, enforcement as necessary, and durability – the court 17 will defer resolution of the fourth recommendation at this time.

Rather, this matter, as indicated and as consistent with the Special 18 Master’s second recommendation, will be referred back to the Workgroup to finalize a process for updates to the remedy as 19 contained in the 2018 Program Guide Revision. The process for updating and revising any parts of the remedy not incorporated in the 20 2018 Program Guide Revision, and instead found in state regulations and/or the D.O.M., also will be referred back to the Workgroup to be 21 developed under the guidance of the Special Master.

22 Id. 23 In its July 2019 order, which was a comprehensive order, the court “clarifie[d] for the record that remedial planning for this action is substantially complete” and also made clear that, with the submission of the additional document identifying custodial remedial measures not included in the Program Guide, remedial planning for this action is complete “except for specific disputes identified in th[e] order” and thereafter the full content of the remedy would be “made ///// fully transparent and serve as a reference point for the court and the parties going forward.”

2 Id. at 4-5.5 3 The court identified the outstanding disputes as limited to: (1) a final proposed policy for use of telepsychiatry; (2) submission of a final proposed addendum for exceptions to the twenty-four hour transfer timeline to mental health crisis beds (MHCBs); (3) setting a date certain for “taking all temporary MHCBs offline and, as necessary, replacing them with permanent licensed MHCB units”; and (4) use of therapeutic treatment modules (TTMs) in inpatient settings. Id. at 18. Since the court’s July 2019 order, the first two issues have been resolved. See ECF Nos. 6539 (approving CDCR’s Telepsychiatry Policy); 6295 (approving addendum for exceptions to MHCB twenty-four hour transfer timeline requirement). In addition, in its order, the court noted the ongoing review of certain policies to determine whether they should be included in the Program Guide, and clarification of interpretation of some Program Guide revisions, but beyond those specifically identified disputes determined that “no substantive disputes regarding the provisions of the 2018 Program Guide Revision” remained. Id. at 18.

15 The court initially directed that proposed processes for regular administrative updates to the Program Guide and the custodial remedies were due November 15, 2019. ECF No. 6214 at 19. Shortly before the November due date, the Special Master and the plaintiffs realized that defendants intended to “include mental health regulations into the HC DOM [Health Care Department Operations Manual]” administered by the California Correctional Health Care Services (CCHCS) under the auspices of the Receiver in Plata v. Newsom, Case No. C01-1351 JST (N.D. Cal.). ECF No. 6476 at 6. In its order granting an extension of time until February 14, 2020 to file the proposed processes, the court made clear it was not signaling it would “‘accept any particular proposal to integrate mental health regulations, including but not limited to provisions of the Program Guide, into the HC-DOM.’” Id. at 8 (quoting ECF No. 6441 at 6).

25 The court understands defendants have not renewed the HC-DOM proposal; the Special Master 5 The court also made clear that substantial completion of remedial planning was “separate and apart” from findings regarding implementation of the remedy, and that “[t]he record makes clear . . . a number of implementation tasks remain.” Id. at 5. That finding is confirmed by this order.

1 specifically notes it would likely prompt an “arduous and lengthy process,” the time for which has not arrived, and that the issue has been “left for another day.” ECF No. 6476 at 11. If defendants plan to revive such a proposal during the pendency of this action, the court directs defendants to provide timely advance notice to the Special Master and plaintiffs, who would need to be fully involved in all discussions of the proposal.

6 Defendants filed the Compendium of Custody Related Remedial Measures on December 19, 2019. ECF No. 6431. On the same date, the Special Master filed a report recommending the court approve and adopt the list. ECF No. 6432. The Compendium of Custody Related Remedial Measures is a list styled “Negotiated or Court Ordered Remedial Measures Related to Custodial Issues Not Included in the 2018 Program Guide Revision” that is divided into two sections: the first is a list of regulatory measures and policy memoranda, and the second is a list of court orders. ECF No. 6431 at 4-8. On February 11, 2020, the court approved the list and adopted it “as the complete list of remedies in this action related to custodial measures not already included in the Program Guide.” ECF No. 6460 at 2. The court required that the list “be updated and filed annually simultaneously with the updated Program Guide, consistent with the process and on the schedule to be proposed by the Special Master on or before February 14, 2020.” Id. 18 II. DISCUSSION 19 The Special Master recommends adoption of the following updating process: 20 Whenever a party presents a proposed policy to the other party and the Special Master, the presenting party shall: (1) indicate whether 21 the proposed policy would revise the operative version of the Program Guide, (2) provide a written rationale for the proposed 22 changes and any other relevant context necessary to understand the proposed policy, and (3) state whether members of the Special 23 Master team have had an opportunity to review and provide input regarding the proposed policy.

The responding party will have 30 days to provide written comments, 25 which shall include, but not be limited to, the party’s position regarding whether the policy is Program-Guide related, as well as 26 proposed alternative language. The responding party may request an extension if required, that will not exceed 21 days. Within 21 days 27 of receipt of the responding party’s comments, the parties, along with the Special Master, shall meet and confer to determine if agreement 1 can be reached on the substance of the policy as well as its inclusion in the Program Guide.

If an agreement is not reached during the first meet and confer, the 3 party that presented the proposed policy has 45 days to request, in writing, another meet and confer session. The responding party will 4 submit its final position in writing within 21 days of the request for a second meet and confer. If the parties believe that a second meet 5 and confer is warranted, that further session will be scheduled within days of receipt of the responding party’s final position.

If the parties cannot reach an agreement following the second meet- 7 and-confer session, they will submit their positions and proposed language to the Special Master for review within 30 days. The 8 Special Master will, within 30 days of receiving the parties’ positions, provide the parties with his guidance and recommendation.

9 If the parties are unable to reach agreement after receipt of the Special Master’s input, the Special Master will file a 10 recommendation with the Court within 45 days.

11 If an agreement is reached through the above-outlined process, the parties will submit the agreed-upon modification to the Court for 12 approval through a filing capturing all agreed-upon policy revisions reached in the prior 12 months. This modification will be filed 13 annually beginning March 1, 2021.

14 By mutual agreement, any deadlines in this process may be extended by a reasonable amount of time to ensure that complex and 15 meaningful negotiations are not arbitrarily truncated. If one party requests an extension of time, but the other party does not agree that 16 one is warranted, the parties will submit the dispute to the Special Master for resolution.

18 ECF No. 6476 at 16-17. For the reasons explained below, the court now gives provisional approval to a modified version of the process proposed by the Special Master.

20 A. Application of the Proposed Updating Process to Custodial Remedies 21 Defendants first object that the proposed updating process should not apply to the Compendium of Custody Related Remedial Measures. See ECF No. 6506 at 2. Defendants object that “[p]laintiffs and the Special Master insist that the new Program Guide includes all negotiated or Court-ordered remedial measures adopted in this action and that are not included in the 2018 Program Guide Revision.” Id. Consistent with the court’s direction to create the list of custody remedies, the Compendium of Custody Related Remedial Measures consists by definition of measures not included in the Program Guide. Defendants contend they “cannot agree” that the remedial measures in the Compendium of Custody Related Remedial Measures “establish the constitutional floor for compliance purposes.” Id. at 4.6 They contend many of the policies and regulations have general application to all CDCR inmates and, that “[w]hile all of these policies are important for running a correctional facility, none are required for an inmate mental health system to meet the Eighth Amendment standard.” Id. Therefore, according to defendants, the remedial measure in the list “do not ‘represent defendants’ assessment . . . of what is required to remedy the Eighth Amendment violation in this action’. . ., and should not be part of the Program Guide.” Id. at 4-5 (quoting ECF No. 4631 at 3 (emphasis in original)). Defendants’ contention misses the mark. All of the remedial measures in this action are grounded in the requirements of the Eighth Amendment, and defendants have been tasked with planning those measures, including Program Guide provisions, see id., as well as the revised custodial policies and practices, see, e.g., August 11, 2014 Order, ECF No. 5196 (discussing April 10, 2014 Order, ECF No. 5131, directing defendants to work under Special Master’s guidance to revise several custodial policies and practices required to remedy constitutional violations identified in this action).

15 The court’s direction to develop a process for regular updates to the Program Guide and the Compendium of Custody Related Remedial Measures may have resulted in a conflation of the two sets of remedial plans and a suggestion that both now be encompassed entirely in the annually updated Program Guide. See, e.g., ECF No. 6476 at 10-11 (reporting that on day report was filed, defendants suggested proposed updating processes should not apply to Compendium of Custody Related Remedial Measures and, therefore, “the parties were unable to stipulate to an agreed upon process for annual administrative updates to the Program Guide in its entirety.”). The court now clarifies that the Compendium of Custody Related Remedial Measures is not, by reason of any of this court’s prior orders, required to be incorporated into the Program Guide. Instead, beginning on September 1, 20217 and continuing annually 6 Defendants contend obliquely “that that floor changes annually.” Id. at 4. It is unclear whether they are suggesting the constitutional floor changes annually or, instead, that the applicable regulatory and policy landscape changes annually. The court presumes the latter.

7 The Special Master recommends an initial filing date of March 1, 2021. In order for a full year to precede the next updates, the deadline will be set at September 1, 2021.

1 thereafter until further order of the court, both the Program Guide and the Compendium of Custody Related Remedial Measures shall be filed together on the docket as one docket entry entitled “Annual Update to Program Guide and Compendium of Custody Related Remedial Measures” (hereafter “Annual Update”), with the updated Program Guide entered as one attachment to the docket entry and the updated Compendium of Custody Related Remedial Measures entered as a separate attachment to the same entry.

7 Defendants’ objection also has a substantive component. As noted, they argue that many of the custodial policies and regulations in the Compendium of Custody Related Remedial Measures apply to all CDCR inmates, not just members of the plaintiff class. And they say they need flexibility in amending those measures in order to properly manage their prison system. This contention misses the mark.

12 Defendants have adopted and implemented numerous custodial regulations, policies and practices as part of the remedial process in this action, most recently, but not exclusively, as the result of litigation before the court in 2013 and 2014 over use of force and other custodial practices applied to class members. See, e.g., August 11, 2014 Order, ECF No. 5196. Those remedies were required by the Eighth Amendment. See, e.g., ECF No. 5131, at 2-3 (order on plaintiffs’ May 9, 2013 motion related to housing and treatment of class members in administrative segregation, ECF No. 4580, finding defendants had not yet “sufficiently remedied Eighth Amendment violations in use of force, disciplinary measures, and segregated housing relative to class members” and applying Eighth Amendment standards to); and, e.g., 13 (discussing what “remediation of the identified Eighth Amendment violation” requires). Consistent with the legal principles the court discussed in its April 24, 2020 order, defendants in this action “may not rely solely on state law to take unilateral action that undermines” those remedies. ECF No. 6639 (citing Hook v. Arizona Dept. of Corrections, 107 F.3d 1397, 1402-03 (9th Cir. 1997) and Valdivia v. Schwarzenegger, 599 F.3d 984, 995 (9th Cir. 2010)). Whether or not some or all of the regulations or policies extend more broadly, to the extent they are part of the court-ordered and/or approved remedies in this action, they cannot be modified with respect to members of the plaintiff class without approval of this court.

1 The Special Master recommends the same process be used to complete the annual updates to both the Program Guide and the Compendium of Custody Related Remedial Measures. Defendants have not shown why that process is not appropriate for proposed updates to the items listed in the Compendium of Custody Related Remedial Measures insofar as those items apply to or affect class members and are part of the court-ordered remedy in this action.

6 Accordingly, the proposed updating process will be modified to reflect that it applies to both the Program Guide and the Compendium of Custody Related Remedial Measures and, so modified, will be adopted.

9 B. Ninety-Day Notice of Proposed Updates to Remedy-Related Regulations 10 Defendants also object to the Special Master’s recommendation that plaintiffs and the Special Master be given ninety days’ notice prior to the public comment period for consideration of either amendments to existing Program Guide-related regulations or new enactment of Program Guide-related policies into state regulation. To the extent defendants propose to use the state regulatory process to make substantive changes to the court-ordered remedy in this action, the same legal principles discussed above apply: defendants may not rely on provisions of state law to unilaterally make substantive changes to the court-ordered remedy in this case. Defendants must obtain court approval, either by presenting a stipulation of the parties approved by the Special Master, or by motion based on Federal Rule of Civil Procedure 60, before making any substantive change to the remedy in this action. See ECF No. 6639 (discussing Hutto v. Finney, 437 U.S. 678, 690 (1978) and Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 443 (2004)).

22 In the interests of judicial economy and efficiency, to ensure that no substantive changes to the remedy in this action are made without court approval, the court will require any party proposing a regulatory, rule-making or policy change that would affect one or more provisions of either the Program Guide or the Compendium of Custodial Remedial Measures to provide advance notice of such proposal to the Special Master and the opposing party as follows.

27 In the case of amendments to, or enactments of, state regulations, the notice shall be given not less than ninety days prior to the public comment period for consideration of such amendments or enactments. In the case of any proposed rule-making or policy action not subject to a public comment period, the notice shall be given not less than ninety days prior to implementation of the proposed change. The notice shall be accompanied by a statement of the proposing party’s view of whether the proposed rule, regulation or policy or amendment thereto, would, if adopted, effect a material modification of the court-approved remedy in this action,8 and, if so, which part or parts of the remedy would be affected. Within fourteen days after receiving a notice, the Special Master shall make a determination whether the proposal would make a material modification of the court-approved remedy in this action and shall notify all parties of his decision with a statement of reasons therefor.

10 All proposed changes deemed by the Special Master not to effect a material modification of the remedy in this case may proceed without going through the updating process provisionally approved by this order.

13 All proposed changes deemed by the Special Master to effect a material modification of one or more parts of the remedy in this case shall proceed through the updating process provisionally approved by this order.

16 Any party may seek reconsideration of a decision by the Special Master concerning whether or not that a proposed change is a material modification of the remedy in this case by submitting a request for reconsideration to this court within five days of that decision, accompanied by the proposed change, the Special Master’s decision and statement of reasons, and a short statement presenting the basis on which reconsideration is sought. The proposed change may be submitted to the updating process provisionally approved by this order at any time after the Special Master makes his decision, including while a request for reconsideration is pending before this court, at the election of the party proposing the change. All proposed changes determined to be a material modification of the remedy in this case by the Special Master, as In a case of this complexity, at this stage, “material modifications of the court-approved remedy” are not susceptible to comprehensive definition. The remedial orders of this court and the Special Master’s experience of twenty-four years’ guiding development of the remedy and monitoring its implementation as well as the good faith of all parties and common sense application of the terms “material” and “modification” will be critical to development of a working definition of the phrase as understood and shared by all stakeholders.

1 described above, or by this court after reconsideration must proceed through the updating process provisionally approved by this order before inclusion in the Annual Update and, if such changes are implemented after proceeding through the process, must be noted as substantive changes affecting the remedy at the time the Annual Update is filed. The Annual Update will guide implementation and, as necessary, enforcement of full remediation in this action.

6 C. ADDITIONAL MATTERS 7 As with many of the other remedial steps previously taken in this action, implementation of the updating process the court provisionally approves in this order will require a trial period to ensure the process in fact serves its purpose and does not unduly constrain defendants’ operation of aspects of prison management not governed by the remedy in this case.

11 It will likely take time to develop a process for determining when and whether proposed amendments to more comprehensive regulations listed in the Compendium of Custody Related Remedial Measures will affect class members. There may be state regulations, provisions in departmental operations manuals maintained by either CDCR or the Department of State Hospitals (DSH), or other CDCR or DSH policies that are intertwined with or directly affect implementation or operation of provisions of the Program Guide; if so, those provisions also should be updated in accordance with the process provisionally approved by this order. In addition, any or all defendants may, in the regular course of their duties, seek to promulgate new regulations or other policy provisions that could impact one or both of the remedial plan documents the court addresses in this order; as discussed above, such new regulations or policy provisions would also have to proceed through the update process provisionally approved by this order to ensure they do not work a substantive change in the remedy in this case or, if they do, that such change is approved in advance by the court.

24 To be clear, the court requires an annual updating process for two purposes: first, to ensure that complete updated remedial documents are filed annually so the scope of the remedy is transparent and readily accessible to all; and second, to limit, to the extent possible, potential conflicts between the court-ordered remedy in this case and provisions of state law that affect the operation of that remedy.

1 The court does not intend by this order to create a cumbersome layer of process on top of the challenging road to complete implementation of the remedy that lies ahead. Rather, the court’s focus remains on complete remediation of the Eighth Amendment violations identified in this action twenty-five years ago. It is the court’s view that defendants have, after years of laborious and extended effort under the guidance of the Special Master and with input from plaintiffs, achieved a set of comprehensive remedial plans. Complete remediation should be furthered by limiting further substantive changes to those plans, if not avoiding completely, while allowing defendants the latitude to make adjustments as necessary to both achieve full implementation of those plans and continue effective management of their prison and hospital systems. It is the court’s hope and expectation that after one year of working with the provisional process it adopts here, the court, Special Master and the parties will gain a sense of what constitutes a material modification of the remedy in this action and the number of those will be few, easing the way to a streamlined updating process. See note 8 supra. 14 As the court discusses in its July 28, 2020 order, ECF No. 6791, and as must be acknowledged here, the COVID-19 pandemic has caused defendants to temporarily depart from a number of Program Guide requirements. See ECF No. 6791 at 2. As the court explained in that order, the Program Guide is based in Eighth Amendment requirements and, although the court has yet to issue an opinion on whether and if so for how long the pandemic might justify emergency departures from Eighth Amendment requirements, the Program Guide and other court-approved remedies provide the Eighth Amendment floor. Defendants cannot subject class members indefinitely to conditions that violate the Eighth Amendment. “‘The ultimate duty of the federal court to order that conditions of state confinement be altered when necessary to eliminate cruel and unusual punishments is well established.’” Coleman v. Brown, 28 F.Supp.3d 24 1068, 1077-78 (E.D. Cal. 2014) (quoting Spain v. Procunier, 600 F.2d, 189, 194 (9th Cir. 1979)).

25 For these reasons, the court will provisionally approve the updating process for the first year and the court will direct the parties to file a joint submission on the efficacy of the process on September 1, 2021, with input from the Special Master, along with their submission of ///// the first Annual Update to the Program Guide and the Compendium of Additional Remedial Measures. With their joint submission, the parties may propose amendments to the process.

3 III. CONCLUSION 4 The court’s purpose in requiring the filing of an Annual Update to the Program Guide and the Compendium of Custody Related Remedial Measures, and for requiring a process for accomplishing those annual updates and ensuring proposed material modification changes are fully vetted first, is to ensure the contents of all components of the remedy in this action are “fully transparent” and available to “serve as a reference point for the court and the parties going forward.” ECF No. 6214 at 5. The court has approved and adopted both the 2018 Program Guide Update and the Compendium of Custody Related Remedial Measures. See ECF Nos. 6214, 6460.

11 In provisionally approving the updating process described here, the court reinforces that the substance of the remedy in this action, which has taken decades to complete and is not yet fully implemented, may not be changed without leave of court. At the same time, the updating process will give defendants the flexibility necessary to update procedures that do not effect a material modification of the remedy going forward.

16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. The Special Master’s Amended Report on Proposed Processes for Updating the 2018 18 Program Guide Revision, Related State Regulations, and Related Additions or 19 Changes to the CDCR Operations Manual, ECF No. 6476, and the recommendations 20 contained therein are adopted to the extent consistent with this order.

21 2. The following process is provisionally approved and shall be followed for one year in 22 updating the Program Guide, ECF No. 5864-1, and the Compendium of Custody 23 Related Remedial Measures, ECF No. 6431: 24 All proposed new regulations or policies, and all proposed regulatory or policy changes that may affect the court-approved remedy in this 25 action shall be presented to the Special Master. In the case of proposed regulatory changes or enactments, this presentation shall 26 be made not less than ninety days’ notice prior to the public comment period. In the case of other proposed changes not subject to a public 27 comment period, defendants shall give the Special Master not less than ninety days’ notice prior to implementation of any proposed 28 rule-making or policy action that would affect one or more of the 1 remedial measures the court has approved and ordered implemented.

The notice shall be accompanied by a statement of the proposing 2 party’s view of whether the proposed rule, regulation or policy, or amendment thereto, would, if adopted, be a material modification of 3 the court-approved remedy in this action, and, if so, and which part or parts of the remedy would be affected. Within ten days, the 4 Special Master shall make a determination whether the proposal would make a material modification of the court-approved 5 remedy in this action and shall notify the proposing of his decision with a statement of reasons therefor.

The Special Master’s decision that a proposed change would not 7 make a material modification of the remedy in this case shall be final and binding on all parties, and any such proposed change may 8 proceed without further vetting through the updating process described in this order. Any proposed change the Special Master 9 determines would make a material modification of the remedy in this case shall proceed through the updating process below.

Any party may seek reconsideration of the Special Master’s decision 11 that a proposed change would make a material modification of the remedy in this case by submitting a request for reconsideration to this 12 court within five days of that decision, accompanied by the proposed policy change, the Special Master’s decision and statement of 13 reasons, and a short statement presenting the basis on which reconsideration is sought. The proposed change may be submitted 14 to the update process below at any time after the Special Master’s decision is made, including while a request for reconsideration is 15 pending before this court, at the election of the party proposing the change. Any proposed change the Special Master or the court after 16 reconsideration determines would be a material modification of the remedy in this case must proceed through the update process below 17 before incorporation into the Annual Update to the Program Guide and the Compendium of Custody Related Remedial Measures and 18 must be noted as a substantive change affecting the remedy at the time the Annual Update is filed.

In order to be included in an Annual Update, all proposed changes 20 that the Special Master or the court after reconsideration determine would be a material modification of the remedy in this case must 21 proceed through the following update process. To commence the update process, the proposed change shall be presented to the other 22 party. The presenting party shall: (1) indicate whether the proposed policy would revise the operative version of the Program Guide or 23 the Compendium of Custody Related Measures, (2) provide a written rationale for the proposed change and any other relevant context 24 necessary to understand the proposed policy, and (3) include the Special Master’s short statement of reasons why the change is 25 substantive.

26 The responding party will have 30 days to provide written comments, which shall include, but not be limited to, the party’s position 27 regarding how the proposed policy would affect either the Program Guide or the Compendium of Custody-Related Measures and which 28 part or parts thereof; as well as proposed alternative language. The 1 responding party may request an extension if required, that will not exceed 21 days. Within 21 days of receipt of the responding party’s 2 comments, the parties, along with the Special Master, shall meet and confer to determine if agreement can be reached on the substance of 3 the policy as well as its inclusion in the Program Guide or the Compendium of Custody Related Measures.

If an agreement is not reached during the first meet and confer, the 5 party that presented the proposed policy has 45 days to request, in writing, another meet and confer session. The responding party will 6 submit its final position in writing within 21 days of the request for a second meet and confer. If the parties believe that a second meet 7 and confer is warranted, that further session will be scheduled within days of receipt of the responding party’s final position.

If the parties cannot reach an agreement following the second meet- 9 and-confer session, they will submit their positions and proposed language to the Special Master for review within 30 days. The 10 Special Master will, within 30 days of receiving the parties’ positions, provide the parties with his guidance and recommendation.

11 If the parties are unable to reach agreement after receipt of the Special Master’s input, the Special Master will file a 12 recommendation with the Court within 45 days.

13 If an agreement is reached through the above-outlined process, the parties will submit the agreed-upon modification to the Court for 14 approval through a filing capturing all agreed-upon policy revisions reached in the prior 12 months.

By mutual agreement, any deadlines in this process may be extended 16 by a reasonable amount of time to ensure that complex and meaningful negotiations are not arbitrarily truncated. If one party 17 requests an extension of time, but the other party does not agree that one is warranted, the parties will submit the dispute to the Special 18 Master for resolution.

19 3. Beginning September 1, 2021, and continuing annually thereafter until further order of 20 the court, the parties shall jointly file an updated Program Guide and an updated 21 Compendium of Custody Related Remedial Measures, which shall be approved by the 22 Special Master before filing, as one docket entry entitled “Annual Update to Program 23 Guide and Compendium of Custody Related Remedial Measures,” with the updated 24 Program Guide entered as one attachment to the docket entry and the Compendium of 25 Custody Related Remedial Measures entered as a separate attachment to the same entry.

26 ///// ///// ///// 1 4. With the September 1, 2021 updates, the parties shall separately file a joint submission, 2 with input from the Special Master, on the efficacy of the updating process the court 3 provisionally approves in this order together with, as appropriate, any proposed 4 amendments to the process. Thereafter, the court will give final approval to a process 5 for updating the remedial plans covered by this order.

6 DATED: August 1, 2020.