Opinion
2:76-CV-00162-EFB
09-13-2023
DERRIL HEDRICK, DALE ROBINSON, KATHY LINDSEY, MARTIN C. CANADA, DARRY TYRONE PARKER, individually and on behalf of all others similarly situated, Plaintiffs, v. JAMES GRANT, as Sheriff of Yuba County; Lieutenant FRED J. ASBY, as Yuba County Jailer; JAMES PHARRIS, ROY LANDERMAN, DOUG WALTZ, HAROLD J. “SAM” SPERBEK, JAMES MARTIN, as members of the YUBA COUNTY BOARD OF SUPERVISORS, Defendants.
MICHAEL J. CICCOZZI COUNTY COUNSEL FOR YUBA COUNTY BY JOSEPH LARMOUR PORTER SCOTT A PROFESSIONAL CORPORATION BY CARL L. FESSENDEN ATTORNEYS FOR DEFENDANTS ROSEN BIEN GALVAN & GRUNFELD LLP BY GAY CROSTHWAIT GRUNFEID UC DAVIS CIVIL RIGHTS CLINIC BY CARTER C. WHITE ATTORNEYS FOR PLAINTIFFS
MICHAEL J. CICCOZZI COUNTY COUNSEL FOR YUBA COUNTY BY JOSEPH LARMOUR
PORTER SCOTT A PROFESSIONAL CORPORATION BY CARL L. FESSENDEN ATTORNEYS FOR DEFENDANTS
ROSEN BIEN GALVAN & GRUNFELD LLP BY GAY CROSTHWAIT GRUNFEID
UC DAVIS CIVIL RIGHTS CLINIC BY CARTER C. WHITE ATTORNEYS FOR PLAINTIFFS
SECOND AMENDED CONSENT DECREE
EDMUND F. BRENNAN JUDGE
TABLE OF CONTENTS
Page
I. INTRODUCTION
II. DEFINITION OF TERMS
III. STAFFING
A. Health Personnel
B. Psychiatrist
C. Licensed Clinical Social Worker, Licensed Marriage and Family Therapist, Licensed Professional Clinical Counselor, Associate Marriage and Family Therapist, Associate Social Worker, and/or Associate Professional Clinical Counselor...................................................... 4
IV. MENTAL HEALTH CARE...................................5
A. Procedures for New Arrestees ...................................5
B. Access to Mental Health Care ...................................7
1. Initial Mental Health Assessment ...................................7
2. Continuity of Mental Health Care ...................................8
3. Treatment for Chronic Mental Health Conditions ...................................8
4. Continuity of Community-Prescribed Mental Health Medications ...................................8
5. Medical Assistance for Intoxicated Incarcerated Persons and/or Incarcerated Persons in Withdrawal...................................10
6. Mental Health Services ...................................10
(a) Telepsychiatry ...................................12
7. Sick Call ...................................14
8. Emergency Care and Hospitalization ...................................15
9. Recordkeeping...................................16
C. Mental Health Training for Correctional Officers ...................................17
D. Suicide Prevention...................................17
V. ENVIRONMENTAL HEALTH AND SAFETY CONDITIONS ...................................18
A. Suicide Hazards ...................................18
B. Housing for Incarcerated Persons with Mental Illnesses or Who Are at Risk of Suicide ...................................19
C. Safety Cells...................................20
D. “Step-Down” Cell...................................24
VI. DUE PROCESS IN DISCIPLINE FOR INCARCERATED PERSONS WITH MENTAL ILLNESS ...................................25
VII. ADMINISTRATIVE SEGREGATION AND SEGREGATED HOUSING...................................25
A. Out-Of-Cell Time and Other Recreation and Treatment for Incarcerated People in Segregated Housing...................................26
VIII. MONITORING ...................................29
A. Third-Party Monitor (“Monitor”) ...................................29
B. Review of Documents ...................................29
C. Jail Tours ...................................30
D. Monitoring Reports ...................................31
E. Investigation of Complaints ...................................32
F. Fees for Monitoring ...................................32
G. Class Counsel ...................................32
H. Reporting of Non-compliance ...................................34
I. Notice to Incarcerated People of the SACD...................................34
IX. PROCESS FOR APPROVAL OF THE SACD ...................................35
A. Court Approval ...................................35
B. Preliminary Approval by the Court ...................................35
C. Notice to Class of the SACD Pursuant to Federal Rule of Civil Procedure 23(e) ...................................35
D. Objections to the SACD ...................................36
E. Fairness Hearing ...................................36
X. ATTORNEYS' FEES, COSTS, AND EXPENSES...................................36
XI. RESERVATION OF JURISDICTION AND ENFORCEMENT...................................37
XII. TERMINATION AND EXTENSION ...................................39
I. INTRODUCTION
On January 30, 2019, the Court entered an order adopting the Amended Consent Decree (“ACD”). Since that time, Class Counsel have monitored the conditions of the Yuba County Jail for compliance with the ACD. Pursuant to the stipulated order entered by the Court on September 26, 2022, the ACD will expire either on May 31, 2023, or upon the Court's approval of this Second Amended Consent Decree (“SACD”), whichever is sooner.
After extensive meet and confer efforts, the parties have agreed to this SACD. The primary purpose of the SACD is to extend the term of certain provisions of the ACD related to suicide prevention and the treatment of incarcerated people with mental illness and those experiencing drug and alcohol withdrawal.
It is the intent of the parties that this SACD shall go into effect as of the date it is approved by the Court. Defendants shall implement the SACD beginning on the date it goes into effect. It is the further intent of the parties that the ACD shall terminate and will no longer be in effect as of the date the Court enters the SACD. In the event the Court denies final approval of the SACD, the ACD will terminate 120 days from the date of such decision, pending any motion by Plaintiffs' counsel. The SACD is intended to terminate as set forth in Section XII.
II. DEFINITION OF TERMS
All terms used herein shall be interpreted liberally in order to reflect and effectuate the desire of all parties to operate the Yuba County Jail in full compliance with applicable state and federal law. All language shall be construed in its normal and customary usage. In addition, the following provisions shall govern the construction of the terms set forth herein.
1. Jail - The Yuba County Jail located in the County Courthouse, 2155th Street, Marysville, California.
2. Administrative Segregation - Those portions of the Jail used to house incarcerated persons pursuant to Title 15, § 1053.
3. Incarcerated Person - A person incarcerated within the Yuba County Jail, including pre-trail detainees, sentenced incarcerated people, and incarcerated people held in cooperation with other agencies.
4. Correctional Officer - A uniformed employee of Yuba County and the Yuba County Sheriff's Department who works in the Jail and who is a peace officer pursuant to California Penal Code § 830.1(c).
5. Jail Supervisor - The Jail Lieutenant employed by the Yuba County Sheriff's Department in the Jail who is directly responsible for the administration of the Jail.
6. Maintain - Make available now and in the future in a workable and usable condition, promptly replace when broken or missing, promptly repair when inoperative or malfunctioning, and continue in existence.
7. Qualified Medical Professionals - These persons include physicians, physician assistants (“PAs”), nurse practitioners (“NPs”), registered nurses (“RNs”), and/or licensed vocational nurses (“LVNs”) and others by virtue of their education, credentials, and experience are permitted by law to evaluate and care for patients.
8. Qualified Mental Health Professionals - These persons include psychiatrists, psychologists, licensed clinical social workers, licensed marriage and family therapists, and licensed clinical counselors. This definition includes unlicensed clinical social workers, marriage and family therapists, and clinical counselors who are gaining the experience required for licensure and who are registered as “associates” pursuant to Cal. Bus. & Profs. Code §§ 4996.23 et seq. The terms and scope of practice of such associates shall not exceed what is permitted of similar persons working in the community, pursuant to Cal. Code Regs., Tit. 15 § 1203.
9. Segregated Housing - Housing locations in the Jail in which incarcerated persons spend more than twenty-one (21) hours per day locked in their cell. At the time the parties entered into this SACD, the Segregated Housing units in the Jail were A-Pod, Q-1, Q-2, Q-3, S-Tank, and the medical cells.
10. Class Counsel - The law firm of Rosen Bien Galvan & Grunfeld LLP, and the University of California at Davis School of Law, King Hall Civil Rights Clinic.
11. Monitor - The person who the parties agree to or who is appointed by the court, who is responsible for discharging the duties of the Monitor, as set forth in Section VIII of this SACD.
12. Third-party Medical Provider - The entity with which Yuba County contracts to provide medical and mental health care to incarcerated people in the Jail. As of the date the parties entered into this SACD, the Third-party Medical Provider is Wellpath.
III. STAFFING
Defendants shall employ sufficient staff to meet their obligations under the United States Constitution, Title 15 of the California Code of Regulations, and this SACD.
A. Health Personnel
A Physician, NP, PA, and/or RN must be physically present at the Jail twenty-four (24) hours per day, seven (7) days per week.
B. Psychiatrist
The Jail shall employ a psychiatrist or psychiatrists to provide mental health services at the Jail. Psychiatry services will be available three (3) days per week, eight (8) hours per day. The three (3) days of psychiatry services shall not be provided on three (3) consecutive days (e.g., Monday, Tuesday, Wednesday). The Jail may use a telepsychiatry program or an on-site psychiatrist to provide these services, provided Defendants' use of telepsychiatry is consistent with this SACD and the telepsychiatry protocol entitled Wellpath Yuba County California Policies & Procedures 80874 and dated July 15, 2020.
C. Licensed Clinical Social Worker, Licensed Marriage and Family Therapist, Licensed Professional Clinical Counselor, Associate Marriage and Family Therapist, Associate Social Worker, and/or Associate Professional Clinical Counselor
The Jail shall employ Licensed Clinical Social Workers (“LCSWs”), Licensed Marriage and Family Therapists (“LMFTs”), Licensed Professional Clinical Counselors (“LPCCs”), Associate Marriage and Family Therapists (“AMFTs”), Associate Clinical Social Workers (“ACSWs”), and/or Associate Professional Clinical Counselors (“APCCs”). The Jail shall employ LCSWs, LMFTs, LPCCs, AMFTs, ASWs, and/or APCCs for a total of eighty (80) hours per week and at least eight (8) hours per day. At least forty (40) of the eighty (80) hours per week shall be provided by LCSWs, LMFTs, and LPCCs.
Individuals in these positions must be able to provide mental health screenings for those identified as possibly needing mental health services, conduct psychosocial assessments to include a mental status examination and diagnosis, conduct suicide risk assessments, develop treatment plans, provide psychosocial therapy as clinically indicated with the intent of coordinating care beyond the walls of the Jail and into the community upon release, refer incarcerated persons for psychiatric evaluation to determine if psychotropic medication is needed, conduct mental health evaluations to determine whether an incarcerated person should be placed in or removed from a safety cell or transferred to a psychiatric hospital, and coordinate care with custody and medical staff as necessary. An AMFT, ASW, or APCC shall not approve the removal of an incarcerated person from a safety or step-down cell unless the AMFT, ASW, or APCC first confers with a psychiatrist, LMFT, LCSW, or LPCC who approves the decision. A psychiatrist, LMFT, LSW, or LPCC must be available for such conferences at all times during which an AMFT, ASW, or APCC is working in the Jail. Any conference between an AMFT, ASW, or APCC and a psychiatrist, LMFT, LSW, or LPCC regarding removing someone from a safety or step-down cell shall be documented in the incarcerated person's medical record.
IV. MENTAL HEALTH CARE
Although an incarcerated person is entitled to all of the mental health services contained herein, he or she may refuse to accept any or all of the offered services unless ordered by a competent court for involuntary medication administration.
A. Procedures for New Arrestees
Defendants' Intake and Booking Screening Plan shall include standards and timelines to ensure that arriving incarcerated persons are promptly screened for urgent and emergent mental health needs by a PA, NP, or RN in an area that provides for confidentiality. Translators and interpreters will be used whenever necessary to ensure effective communication.
As part of the intake process, the PA/NP/RN shall assess whether an arriving incarcerated person must be excluded from the Jail and sent for mental health evaluation and treatment to Rideout Hospital, Sutter-Yuba Behavioral Health Services, or to comparable facilities. The PA/NP/RN shall also review the Jails' medical records to determine if the person has a history of mental illness and/or substance abuse.
The PA/NP/RN must also assess whether an arriving incarcerated person is intoxicated and/or suffering from withdrawal or is at high risk for withdrawal from alcohol or other drugs. Only after the examining PA/NP/RN certifies that the new arrestee is fit for incarceration may the arrestee be incarcerated. Incarcerated persons who display signs of non-acute alcohol or drug intoxication or withdrawal will be accepted into the Jail and will be treated in accordance with Wellpath's policy, entitled HCD-110F-04 Medically Supervised Withdrawal and Treatment, Policy #77029, and dated February 17, 2021..
Defendants shall continue treating newly-booked incarcerated people with medication-assisted treatment (“MAT”) if medical staff determine MAT is medically necessary for the person (e.g., pregnant women who are taking MAT upon booking). Defendants shall explore ways to create and fund a program to initiate MAT for incarcerated people and to continue MAT for people booked into the Jail who were receiving MAT in the community but for whom MAT is not medically necessary. Defendants shall provide an update to Plaintiffs on a quarterly basis regarding its efforts to create and fund this more expansive MAT program. The update shall be included in the quarterly document production.
If an arrestee is taken to an emergency mental health facility for a mental health evaluation and clearance prior to booking, documented evidence of such evaluation, treatment, and clearance must be returned to the Jail so as to become part of the incarcerated person's medical record. The incarcerated person shall be seen at the next mental health sick call to determine the future course of treatment, if any.
The mental health condition of a new arrestee found fit for incarceration by an examining health care professional, but requiring mental health care, shall be considered when making housing decisions.
Any new arrestee who states that he or she has a mental illness or who the medical booking staff identifies as having a mental illness or knows is receiving care from the Sutter-Yuba Behavioral Health Services, or other similar provider of behavioral healthcare services, must be seen by a Qualified Mental Health Professional within policy timeframes (emergent referrals are addressed immediately, urgent referrals are addressed within twenty-four (24) hours, and routine referrals are addressed within seven (7) days). As part of the intake screening, medical staff shall review the incarcerated person's Jail medical record to determine if records from any prior incarcerations in the Jail reflect issues related to mental health. Medical staff shall consider any relevant information gathered from the medical record review when determining if and how quickly a new arrestee shall be seen by Qualified Mental Health Professional.
Any new arrestee accepted into the Jail who the booking medical staff identifies as having any current suicidality shall have a risk assessment completed as soon as possible but no later than within four (4) hours of the identification of current suicidality. Only Qualified Mental Health Professionals, PAs, NPs, or RNs who have been trained regarding how to conduct a suicide risk assessment shall conduct such assessments. A suicide risk assessment shall be conducted by a Qualified Mental Health Professional if one is on-site at the Jail. A suicide risk assessment may be conducted by a PA, NP, or RN if no Qualified Mental Health Professional is on-site at the Jail or there is no Qualified Mental Health Professional available to timely complete the assessment due to servicing the urgent needs of other incarcerated persons. If the PA, NP or RN conducts the risk assessment, within two (2) hours after administering a suicide risk assessment, the staff member who conducted the assessment must consult with a Qualified Mental Health Professional (either on-site or by phone) to determine an appropriate plan of treatment and the appropriate level, if any, of suicide precaution. If the person is placed on suicide watch, safety cell protocol will be followed. If the suicide risk assessment establishes that the incarcerated person is at risk of suicide, the incarcerated person will, at minimum, be placed on the next psychiatrist sick call. The Qualified Mental Health Professional who conducts the suicide risk assessment or with whom the PA, NP, or RN who conducted the assessment consults, can, if necessary, consult with an on-site (if available) or on-call psychiatrist at any time, refer the incarcerated person to be seen by a psychiatrist before the next psychiatrist sick call, or cause the incarcerated person to be transferred to a hospital for evaluation.
B. Access to Mental Health Care
To address the provision of care for incarcerated persons with mental health needs and to ensure they receive timely treatment appropriate to the acuity of their conditions, Defendants are to provide the following:
1. Initial Mental Health Assessment
As part of the initial health assessment required by Title 15 that must be conducted within fourteen (14) days of booking, the Jail shall conduct a mental health assessment of all newly-incarcerated persons, unless an earlier assessment has been conducted by a Qualified Mental Health Professional pursuant to Section IV.A. If, during the 14-day mental health assessment, the incarcerated person states that he or she has a mental illness or is taking psychiatric medications, or if the medical booking staff otherwise identifies the person as having a mental illness or knows the person is receiving care from the Sutter-Yuba Behavioral Health Services or other similar provider of behavioral healthcare services, then the Jail will see the person at the next mental health sick call. As part of the initial health assessment, medical staff shall conduct a full review of the incarcerated person's Jail mental health records to determine if records from any prior incarcerations in the Jail reflect issues related to mental health. Medical staff shall consider any relevant information gathered from the medical record review when determining if and how quickly a new arrestee shall be referred for mental health services.
A medical file must be opened for each incarcerated person at the time of assessment. Incarcerated persons must be advised at the commencement of the mental health assessment that they have a right to such an assessment but that they also have a right to refuse all or any portion of the assessment. The health assessment must also include an oral explanation of the health services available. Provision shall be made to communicate this information to non-English speaking incarcerated persons and to incarcerated persons with disabilities. The incarcerated person shall also be informed that detailed mental health education information is available in pamphlet form.
2. Continuity of Mental Health Care
Defendants shall maintain a system of mental health care to provide services that resemble what is provided in the community, including developing treatment plans and providing therapy in confidential settings as clinically indicated, with appropriate language interpretation services, with the intent of coordinating care beyond the walls of the Jail and into the community upon release.
3. Treatment for Chronic Mental Health Conditions
Defendants shall maintain systems for managing patients with chronic mental health conditions through screening, identifying, monitoring, and providing treatment to these patients while detained at the Jail. Any patient whose chronic mental health condition cannot be managed at the Jail will be transferred offsite for appropriate treatment and care.
4. Continuity of Community-Prescribed Mental Health Medications
Continuation and bridging of all medications begun prior to incarceration is essential to the health and well-being of incarcerated persons. The Jail shall make its best effort to ensure that incarcerated persons will not miss any medications.
All incarcerated persons who, at the time of booking, are prescribed mental health medications in the community, and it is verified those medication are currently being taken, shall be timely continued on those medications, or prescribed comparable appropriate medication, unless a physician, NP, PA, or psychiatrist makes a clinical determination, via a face-to-face assessment (which includes use of tele psychiatrist under appropriate standards and policies), that the medications are not necessary for treatment, and documents the clinical justification for discontinuing a community-prescribed medication. Defendants shall not discontinue community-prescribed psychiatric medications based solely on an incarcerated person's history of substance abuse.
Any incarcerated person who, at the time of booking, reports to Defendants that he or she is taking medications in the community but his or her medications cannot be verified, shall be timely assessed by a physician, PA, NP, or psychiatrist and timely prescribed medications necessary to treat his or her mental health needs, to ensure continuity of care. If there is a question regarding the propriety of a medication, a physician, PA, NP, or psychiatrist must be contacted before the prescription medication is denied.
At the time of booking, if an arrestee reports that he or she needs certain psychiatric medications, that person shall be seen at the next psychiatrist sick call, unless it is determined that the person cannot wait until then, in which case the person shall be sent promptly to an appropriate off-site facility for evaluation and treatment.
Incarcerated persons who are prescribed psychiatric medication by a physician, PA, NP, or psychiatrist, or who are continued on community-prescribed psychiatric mediation, will be re-evaluated by a psychiatrist every thirty (30) days until the condition is stable, then every thirty (30) to ninety (90) days at the clinical discretion of the psychiatrist. More frequent evaluations will be scheduled as determined by the incarcerated person's health care provider.
5. Medical Assistance for Intoxicated Incarcerated Persons and/or Incarcerated Persons in Withdrawal
If there is reasonable cause to believe that a person is experiencing or will soon be experiencing symptoms of withdrawal from a controlled substance or alcohol, the incarcerated person must be timely assessed and, if indicated, treated by a Qualified Medical Professional at the Jail or transported immediately to an appropriate hospital facility, such as Rideout Memorial Hospital.
Detoxification from alcohol, opiates, hypnotics, other stimulants, and sedative hypnotic drugs, when performed in this facility, will be done under medical supervision in accordance with the Third-party Medical Provider's policies and protocols. MAT for withdrawal will be considered.
Custody staff shall conduct health and safety checks for those incarcerated persons placed in a sobering cells. Health and safety checks shall occur every 30 minutes at irregular and unpredictable intervals or more frequently if medical or mental health staff believe more frequent checks are necessary to protect the health and safety of an incarcerated person.
A Qualified Medical Professional shall evaluate incarcerated persons in sobering cells upon admission and then every six (6) hours thereafter or sooner if requested by custody staff. Defendants shall keep complete, accurate, and contemporaneous logs of each health and safety check and shall review such logs for compliance. Sufficient custody staffing must also be maintained to allow medical staff to enter the sobering cells to make vital checks.
Incarcerated persons experiencing severe, life threatening intoxication (an overdose) or withdrawal which cannot be addressed in the Jail by available medical staff, shall be transferred under appropriate security conditions to a hospital or other facility where specialized care is available.
6. Mental Health Services
The Jail will ensure that incarcerated persons are provided timely access to inpatient and outpatient mental health care as needed. Mental health services at the Jail shall include, at a minimum, mental health screenings and evaluations, suicide risk assessments, diagnosis, and treatment - including psychosocial therapy, and psychotropic medications as needed, and referral services. While incarcerated persons are entitled to assessment and treatment, they must be informed that they are also entitled to refuse such treatment. Incarcerated persons requiring services beyond the on-site capability of the Jail shall be referred to appropriate off-site providers.
Any incarcerated person who, either during the booking process or at any time during their incarceration in the Jail, is identified as having any current suicidality shall have a suicide risk assessment completed within four (4) hours of the identification of current suicidality. Only Qualified Mental Health Professionals, PAs, NPs, or RNs who have been trained regarding how to conduct a suicide risk assessment shall conduct such assessments. A suicide risk assessment shall be conducted by a Qualified Mental Health Professional if one is on-site at the Jail. A suicide risk assessment may be conducted by a PA, NP, or RN if no Qualified Mental Health Professional is on-site at the Jail or there is no Qualified Mental Health Professional available to timely complete the assessment due to servicing the urgent needs of other incarcerated persons. If the PA, NP, or RN conducts the risk assessment, within two (2) hours after administering the risk assessment the staff member who conducted the assessment must consult with a Qualified Mental Health Professional (either on-site or by phone) to determine an appropriate plan of treatment and the appropriate level, if any, of suicide precaution. If the person is placed on suicide watch, safety cell protocol will be followed. If the suicide risk assessment establishes that the incarcerated person is at risk of suicide, the incarcerated person will, at a minimum, be placed on the next psychiatrist sick call. The Qualified Mental Health Professional who conducts the suicide risk assessment or with whom the PA, NP, or RN who conducted the assessment consults, can, if necessary, consult with an on-site (if available) or on-call psychiatrist at any time, refer the incarcerated person to be seen by a psychiatrist before the next psychiatrist sick call, or cause the incarcerated person to be transferred to a hospital for evaluation.
Qualified Mental Health Professionals shall evaluate whether an incarcerated person's mental illness or risk of suicide requires that he or she be sent to Sutter-Yuba Behavioral Health Services or an inpatient setting for evaluation and treatment, up to and including psychiatric hospitalization where warranted, and shall issue all suicide precaution orders including placement in or removal from housing for incarcerated persons at risk of suicide, and confidential follow-up assessments at clinically appropriate intervals.
On a weekly basis a Qualified Mental Health Professional shall consult with Correctional Officers to exchange information with respect to the mental health of the incarcerated persons. The Qualified Mental Health Professional must respect the confidential nature of communications to him or her, but has an obligation to take steps to assure the safety of an incarcerated person who indicates that he or she may attempt to commit suicide or harm another.
Whenever possible, custody staff shall provide medical staff with advanced notice of an incarcerated person's release from the Jail. If medical staff receive sufficient notice of an incarcerated person's release, medical staff shall provide medical discharge planning to the person, including providing written instructions for continuity of essential care, the name and contact information for community providers for follow-up appointments, and a 28-day prescription for any chronic care or psychotropic medications the person was receiving at the time of release. Defendants shall call the 28-day prescription into a local pharmacy and pay for seven (7) days of the medication(s).
(a) Telepsychiatry
Defendants shall adhere to the telepsychiatry protocol entitled Wellpath Yuba County California Policies & Procedures 80874 and dated July 15, 2020. Defendants shall provide at least 30-days notice to Plaintiffs' counsel prior to implementing any changes to this protocol. If Plaintiffs object to the changes the parties shall meet and confer before the changes go into effect.
Telepsychiatry can be used to provide psychiatry services unless it is determined, prior to or during a telepsychiatry visit, that telepsychiatry services are not appropriate for the incarcerated person. In determining whether telepsychiatry is appropriate, the following will be considered: the incarcerated person's acuity and severity of mental illness, including whether the person's mental illness affects their ability to communicate effectively with the psychiatrist by video; whether the incarcerated person has any disabilities that would make communicating with the psychiatrist by video difficult; whether any language barriers would render communication with the psychiatrist by video ineffective; whether the person has refused to be seen by the telepsychiatrist because the psychiatry services are not being provided in person; and any other considerations relevant to whether telepsychiatry is appropriate for the incarcerated person. If the Qualified Mental Health Professional determines that telepsychiatry services are not appropriate for the incarcerated person, the incarcerated person must be seen expeditiously by a psychiatrist in person.
If a telepsychiatrist determines during a telepsychiatry visit that telepsychiatry services are not appropriate for the incarcerated person, the psychiatrist shall note that finding in the medical record and Defendants shall then ensure that the incarcerated person is seen expeditiously by a psychiatrist in person. Reasonable efforts shall be made to ensure continuity of care so that incarcerated persons are seen by same psychiatrist throughout the duration of their incarceration.
Before a psychiatrist provides telepsychiatry services to incarcerated people in the Jail, Defendants shall provide the telepsychiatrist with a briefing regarding the mental health and suicide prevention programs at the Jail, the available options if a person experiences a mental health emergency or otherwise requires care at a level not capable of being provided at the Jail, and any other information necessary to treat people in the Jail. The briefing shall also include an in-person or virtual tour of the Jail's safety and stepdown cells and, once completed, the new building constructed with SB 863 funding.
7. Sick Call
Daily sick call must be provided by an RN/PA/NP to all incarcerated persons requesting mental health attention. All incarcerated persons experiencing mental health issues must be permitted to fill out a sick call request form. Sick call request forms shall be readily available to incarcerated persons, and Correctional Officers shall promptly provide these forms to incarcerated persons upon request. Sick calls slips that raise issues relating to mental health shall be triaged within twenty-four (24) hours. If it is unclear from the language on a sick call slip whether or how quickly a person needs to be evaluated by a Qualified Mental Health Professional, the PA, NP, or RN shall meet with the person and attempt to clarify the person's request for care within twenty-four (24) hours of receipt.
If while triaging a sick call slip or other request relating to mental health care the PA, NP, or RN determines that the incarcerated person should see a Qualified Mental Health Professional, or other mental health specialist, the PA, NP, or RN shall make an appropriate referral. For emergent requests, a Qualified Mental Health Professional shall see the person immediately or Defendants shall transfer the person to an outside facility for immediate assessment. For urgent request, a Qualified Mental Health Professional shall see the person within twenty-four (24) hours. For routine requests, a Qualified Mental Health Professional shall see the person within seven (7) days. Correctional Officers shall ensure that the incarcerated person is transported to the proper person or facility.
If a healthcare professional or Qualified Mental Health Professional believes that tests, evaluation, or treatment by a mental health specialist are medically indicated, the healthcare professional or Qualified Mental Health Professional shall fill out a referral slip for the test, evaluation, or treatment.
Defendants shall develop and implement a process to track and assess the timeliness of providing sick call services for mental health-related requests. Defendants shall review and assess that information on a quarterly basis, at a minimum. Defendants shall produce documentation of these quarterly assessments of mental health sick call timeliness as part of the quarterly production of documents to Class Counsel and the appointed Monitor. The mental health staff shall, on a monthly basis, meet to discuss the provision of mental health care services in the Jail, including addressing the timeliness of sick calls and prescription renewals, identification of causes of systematic delays or other impediments to providing timely access to mental health care, and develop protocols and practices to address such issues. If the cause of any ongoing delays or issues that last for three (3) months or more is related to insufficient mental health staffing, the Jail shall take all reasonable steps to revise their mental health staffing plan and obtain funding to retain any additional positions deemed to be necessary.
8. Emergency Care and Hospitalization
Emergency psychiatric care must be available twenty-four (24) hours per day, seven (7) days a week. In an emergency mental health situation, or at the request of health care personnel, an incarcerated person must be transported to the appropriate hospital for treatment and evaluation. Security requirements and concerns cannot unreasonably delay the incarcerated person's transportation.
For individuals who are in acute psychiatric distress and in need of urgent inpatient psychiatric care that cannot be provided at the Jail, whether or not awaiting transfer to a state hospital pursuant to court order, the Jail shall comply with the following plan:
1. The incarcerated person will be taken to Rideout Hospital, where Sutter Yuba Behavioral Health (SYBH) has staff on site, or similar facility.
2. The purpose of taking the incarcerated person to Rideout or similar facility is to determine whether the incarcerated person requires care that cannot be provided at the Jail.
(a) If a determination is made in writing that the person does not require psychiatric care that cannot be provided at the Jail, that person will be returned to the Jail with instructions for further evaluation and care, if any.
(b) If a determination is made that the person does require psychiatric
care that cannot be provided at the Jail, the expectation is that SYBH, or similar facility will care for that individual (either at Rideout or its psychiatric care facility) or locate bed space at another facility.
3. Jail staff shall, as needed, cooperate with Sutter-Yuba Behavioral Health to locate appropriate bed space at another facility.
The Jail shall not, for security reasons, unreasonably deny or delay in providing transportation for emergency psychiatric hospitalization which is medically indicated.
The Jail shall provide incarcerated persons with adequate care when they are awaiting transfer to and have returned from such facilities. All incarcerated person returning from emergency psychiatric treatment at an outside facility will be (a) screened at intake for continuity of care (which will include, if necessary, consultation with a physician or psychiatrist for continuity of prescribed medications) and to ensure that the Jail has all relevant records, labs, and orders from the incarcerated person's treatment at an outside facility; (b) seen at the next sick call by a Qualified Mental Health Professional for incarcerated person returning from mental health treatment; and (c) seen at the next available sick call conducted by a psychiatrist.
9. Recordkeeping
Qualified Medical and Mental Health Professionals must maintain complete, current, and accurate records regarding an incarcerated person's mental health care treatment and prescription drug use. An individual record (hereinafter referred to as the “Jail medical record”) must be kept for each incarcerated person, and a copy of this record must be kept in a separate file in the Jail or in an electronic database. These records must be standardized so as to facilitate communication among staff. Provision in the records must be made to allow entry of the following information: history, complaints, treatment plan, and progress notes. All entries must be dated and the time noted. In addition, Qualified Medical and Mental Health Professionals must record the fact that a drug or other prescribed treatment was administered, at what time, in what dosage, and by whom on the form available for that purpose.
All clinical contacts, diagnoses, and treatments by Qualified Medical and Mental Health Professionals must be entered in the Jail record. All Qualified Medical and Mental Health Professionals shall be trained to recognize the common side effects associated with use of psychotropic medications. If a nurse observes that an incarcerated person is experiencing any of these side effects, they will document their observations in the medical record and schedule the patient to see a medical provider at the next available sick call.
If a prescribed substance is refused or withheld, a notation will be made in the incarcerated person's medical record and the prescribing medical provider shall be notified after three consecutive refusals.
Following the medication administrations, the nursing staff shall also notify the physician promptly of the following: (a) Any adverse reaction or response by a patient to a medication; and/or (b) Any error in the administration of a medication to a patient.
C. Mental Health Training for Correctional Officers
Defendants shall ensure that all Correctional Officers receive annual training regarding the provisions of this SACD and the requirements of Title 15 related to mental health and suicide prevention.
D. Suicide Prevention
Qualified Mental Health Professionals shall be available on-site seven (7) days per week and on-call as necessary to evaluate whether an incarcerated person's risk of suicide requires that he or she be sent out of the Jail for evaluation and treatment, up to and including psychiatric hospitalization where warranted, and shall issue all suicide precaution orders, including placement in or removal from housing for incarcerated person at risk of suicide, and confidential follow-up assessments at clinically appropriate intervals.
Custody and health services staff shall be trained and alerted to the need and continuously monitor incarcerated person behavior for suicide potential during incarceration.
Custody, mental health staff shall maintain open lines of communication to ensure that all parties are kept apprised of suicide potential; suicide precaution placement, retention, and release status; monitoring findings including general status reporting through time of event and end-of-shift reporting and on call contacts to insure appropriate continuity of care and follow-up.
All custody and health care staff shall receive suicide awareness, preventions, and emergency response training during new employee orientation, and at least annually. All such training shall be provided by or in collaboration with a Qualified Mental Health Professional, or other person qualified to provide training in an area of suicide risk, having expertise in correctional suicide prevention and the use of a suicide risk assessment form. Regularly scheduled training for all custody and health care staff shall include, at a minimum, identification and management of suicidal behavior in a jail setting including high-risk periods of incarceration, suicidal risk profiles, and recognition of verbal and behavioral cues that indicate potential suicide.
The Jail shall undertake a mortality-morbidity review for every incarcerated person who dies from suicide while in custody of Defendants, regardless of whether the incarcerated person dies in the Jail or in a hospital or other facilities after being transferred from the Jail.
V. ENVIRONMENTAL HEALTH AND SAFETY CONDITIONS
A. Suicide Hazards
Pursuant to Section VI.A of the ACD, Defendants retained James Sida and Richard Bryce to conduct evaluations of suicide hazards at the Jail. Mr. Sida issued his report on April 24, 2019, and Mr. Bryce issued his report on April 18, 2022 and a response to issues raised by Defendants on May 6, 2022. As of the date of this SACD, Defendants have remediated the hazards identified in those reports. However, Mr. Bryce indicated in his report that he was unable to complete his evaluation because Defendants did not provide him with some requested information regarding two suicides that took place in the Jail on December 1, 2021, and February 2, 2022. Defendants shall provide Mr. Bryce with information regarding the means and methods of the two suicides (e.g., tie-off points), as well as with any findings regarding failures of staff to comply with policy that may have contributed to the suicides, so that Mr. Bryce can complete his evaluation. If, following the receipt of this information, Mr. Bryce requires additional information to complete his evaluation, Defendants shall provide that information to Mr. Bryce upon request. If, once Mr. Bryce completes his evaluation, he provides any additional recommendations regarding further steps needed to eliminate suicide hazards at the Jail, the parties shall meet and confer regarding the recommendations.
For as long as this SACD is in effect, Defendants shall have a qualified consultant conduct a follow up safety assessment of the Jail every two (2) years, at a minimum. The first evaluation shall be completed by no later than May 31, 2024. The Monitor can conduct the follow-up safety assessment if qualified to do so.
If any of the changes to the physical plant at the Jail that Defendants made in response to the reports issued by Mr. Sida or Mr. Bryce is damaged, breaks, or otherwise becomes inoperable or ineffective, Defendants shall immediately replace or repair the element.
B. Housing for Incarcerated Persons with Mental Illnesses or Who Are at Risk of Suicide
An incarcerated person's serious mental illness and suicide risk will be considered when deciding where to house the incarcerated person. Housing decisions for incarcerated persons with serious mental illness shall take into account that availability of sufficient structured and unstructured out-of-cell time and increased observation and supervision commensurate with the incarcerated person's risk of suicide, as well as the risk posed by suicide hazards in various parts of the Jail.
Defendants shall maintain suicide watch and suicide precaution procedures to ensure that incarcerated persons who pose a risk of suicide are not placed in punitive, unsanitary, and dangerous conditions. Where clinically warranted as decided by a medical or mental health care professional, an acutely suicidal incarcerated person shall be placed on suicide watch under constant observation until such time as a Qualified Mental Health Professional determines that the incarcerated person is no longer at risk of self-harm. Health and safety checks shall also be conducted every 15 minutes in locations where incarcerated persons are housed who pose a high suicide risk, and every 30 minutes in locations where incarcerated persons are housed who pose a moderate suicide risk. Whether a person poses a high, moderate, or low risk of suicide shall be determined by a Qualified Mental Health Professional. If it is determined a suicidal incarcerated person cannot be safely monitored and cared for within the Jail, the incarcerated person shall be transferred to the hospital for inpatient psychiatric care. All steps taken to expeditiously transfer such incarcerated persons shall be documented.
Defendants shall limit the use of Segregated Housing, including Administrative Segregation and safety cells, for incarcerated persons with serious mental illness or who present a serious suicide risk, and shall have procedures to mitigate the impact of Segregated Housing on persons with mental illness. Custody staff shall conduct health and safety checks for incarcerated person who are at risk of suicide in a manner that allows staff to personally view the incarcerated person to assure his or her well-being and security. Health and safety checks shall require visual observation and, if necessary to determine the incarcerated person's well-being, verbal interaction with the incarcerated person. Custody staff shall conduct the checks at irregular and unpredictable intervals to minimize incarcerated persons' ability to plan around anticipated checks, and shall document their checks in a format that does not have pre-printed times. Video surveillance may not be used as an alternative to rounds by custody staff. Defendants shall keep complete, accurate, and contemporaneous logs of each health and safety check and develop measures to ensure review of such logs for compliance.
C. Safety Cells
Defendant shall maintain a Safety Cell Policy. As set forth in that policy, an incarcerated person shall only be placed in a safety cell if the incarcerated person is identified as an imminent threat to himself/herself or others, and then only as a temporary measure until the incarcerated person is able to be transferred to different housing or, where clinically warranted, to a hospital or inpatient facility.
Custody staff must visually observe each incarcerated person who is placed in a safety cell at least twice every thirty (30) minutes. The observations must be conducted at irregular and unpredictable intervals and must be documented.
An incarcerated person must receive a medical assessment by a physician, PA, NP, or RN within one (1) hour (unless unsafe to do so under the circumstances of placement into a safety cell), to determine whether said placement is appropriate. The physician, PA, NP, or RN must evaluate whether the incarcerated person can safely be housed in a less restrictive environment than a safety cell and/or requires transfer to an inpatient medical or mental health facility. If the physician, PA, NP, or RN is unable to conduct a hands-on assessment of the incarcerated person, including a check of vital signs, within six (6) hours of placement in the safety cell, the incarcerated person shall immediately be transferred to a hospital.
If a Qualified Mental Health Professional is on site at the time an incarcerated person is placed in a safety cell, the Qualified Mental Health Professional shall conduct an evaluation of the person, including a suicide risk assessment, as soon as possible but no later than within four (4) hours of placement.
If a Qualified Mental Health Professional is unable to conduct an evaluation within four (4) hours of placement of a person in a safety cell-either because a Qualified Mental Health Professional is not on site during the four (4) hour period or is on site but is unable to timely evaluate the person because he or she is addressing the urgent needs of other incarcerated people-then a Physician, PA, NP, or RN shall conduct a suicide risk assessment as soon as possible, but no later than within four (4) hours of safety cell placement. Only Physicians, PAs, NPs, or RNs who have been trained regarding how to conduct a suicide risk assessment shall conduct such assessments.
If a Physician, PA, NP, or RN conducts the suicide risk assessment, within two (2) hours after administering the suicide risk assessment, the staff member who conducted the suicide risk assessment must consult with a Qualified Mental Health Professional (either on-site or by phone) to determine an appropriate plan of treatment and the appropriate level, if any, of suicide precaution. In addition, if a Physician, PA, NP, or RN conducts the suicide risk assessment, then a Qualified Mental Health Professional must evaluate the person as soon as possible but no later than within two (2) hours of the start of the next shift of a Qualified Mental Health Professional.
If the person is placed on suicide watch, safety cell protocol will be followed. If the suicide risk assessment established that the incarcerated person is at risk of suicide, the incarcerated person will, at a minimum, be placed on the next psychiatrist sick call. The Qualified Mental Health Professional who conducts the suicide risk assessment or with whom the Physician, PA, NP, or RN who conducted the suicide risk assessment consults, can, if necessary, consult with a psychiatrist at any time, refer the incarcerated person to be seen by a psychiatrist before the next psychiatrist sick call, or cause the incarcerated person to be transferred to a hospital for evaluation.
For incarcerated persons who are found to be at risk of suicide, the suicide risk assessment shall be used to determine the level of suicide precautions necessary in the immediate term (e.g., constant observation), and whether the incarcerated person needs to be transferred to an in-patient psychiatric facility or hospital in lieu of suicide watch/suicide precautions at the Jail.
All incarcerated persons placed in safety cells shall be evaluated at least once every seven (7) hours by medical staff and at least once every thirteen (13) hours by a Qualified Mental Health Professional.
Defendants recognize that the goal is to have the incarcerated person remain in a safety cell for the shortest possible amount of time. Every thirteen (13) hours, custody, medical, and mental health care staff must review whether it is appropriate to retain an incarcerated person in a safety cell or whether the incarcerated person can be transferred to a less restrictive housing placement.
An incarcerated person who has been placed in a safety cell for twenty-four (24) consecutive hours or for thirty-six (36) total hours in any one-hundred-and-twenty (120) hour period must either be transferred to a less restrictive setting or transferred to an inpatient mental health facility or to a hospital emergency room for assessment and care. In addition, an incarcerated person may not be placed in a safety cell more than two times in any one-hundred-and-twenty (120) hour periods. If Defendants seek to place an incarcerated person in a safety cell for a second time within any one-hundred-and-twenty (120) hour period, Jail medical or mental health staff shall consult with a psychiatrist regarding that placement. An arriving incarcerated person that is unable to care for his/her personal needs despite being provided food, clothing, and shelter by the Jail, shall not be maintained in a safety cell and instead shall be immediately transferred to a hospital for treatment.
A Qualified Mental Health Professional may authorize the release of an incarcerated person from a safety cell. The order authorizing the release of an incarcerated person from a safety cell shall, if appropriate, include instructions regarding transitioning the incarcerated person from suicide precautions or suicide watch.
An incarcerated person released from a safety cell or a step-down cell to housing will be seen at the first mental health sick call following their release and at least two (2) additional times within seven (7) days of their release.
Defendants shall ensure that a safety cell is clean before placing a person in it. Defendants shall also ensure than an occupied safety cell is cleaned at least twice per day at approximately 8:00 a.m. and 8:00 p.m., unless it is not possible to do so because of safety concerns. Defendants shall clean a safety cell once a person is removed from it. Defendants shall indicate on the safety cell log when an occupied safety cell is cleaned.
Defendants shall not close the shutters to the windows on the safety cell doors. Defendants may, upon request of an incarcerated person in a safety cell or if circumstances otherwise warrant, cover up to half of the window on a safety cell door in order to protect the privacy of the incarcerated person in the safety cell or incarcerated persons in other parts of the booking area. If Defendants cover any part of a window on a safety cell door, Defendants shall document the reasons on the safety cell check sheet. Defendants shall never cover or obstruct the windows at the back of the safety cells.
Incarcerated persons held in safety cells shall be offered food at least three times within a 24-hour period. Incarcerated persons held in safety cells shall be provided water with each meal and upon request. Defendants shall record on each incarcerated person's safety cell log each time the incarcerated person is provided with or declines an offer of food or water.
D. “Step-Down” Cell
Defendants shall maintain a “step-down” cell. The purpose of the step-down cell is to house incarcerated persons who, because of their risk of suicide, require increased monitoring and a suicide-safe environment, but do not require housing in a safety cell. For purposes of this SACD, the step-down cell is a less restrictive setting than a safety cell. The step-down cell shall be free of suicide hazards. Defendant shall, either by constructing a surface on which incarcerated persons can sleep or by providing an alternative sleeping surface, ensure that all incarcerated persons placed in the step-down cell have a sleeping surface off the ground. Staff shall ensure that the step-down cell is clean and sanitized.
Custody staff must visually observe each incarcerated persons who is placed in the step-down cell at least once every thirty (30) minutes. The observations must be conducted at irregular and unpredictable intervals and must be documented.
If a person is placed directly into a step-down cell for mental health issues or suicidality, and is not first placed in a safety cell, then the requirements set forth in Section V.C regarding timelines for initial medical and mental health evaluations and a suicide risk assessment shall apply.
All incarcerated persons placed in the step-down cell shall be evaluated at least once every seven (7) hours by medical staff and at least once every thirteen (13) hours by a Qualified Mental Health Professional.
Incarcerated persons may be housed in a step-down cell for more than twenty-five (25) consecutive hours so long as every twenty-five (25) hours a Qualified Mental Health Professional, after consulting with the psychiatrist, agrees to continued placement in the step-down cell.
If an incarcerated person has been housed for one-hundred-and-twenty (120) consecutive hours in a combination of safety cells and the step-down cell cannot be returned to a setting in the Jail that is less restrictive than the step-down cell, he or she shall be immediately transferred to an inpatient mental health facility or to a hospital emergency room for assessment and care.
The parties agree that as part of the first monitoring report prepared by the Monitor, the Monitor shall evaluate the policy set forth in the preceding paragraph. In advance of the evaluation, the parties shall meet with the Monitor to discuss the parameters of the evaluation. In the first monitoring report, the Monitor shall provide a recommendation regarding whether the policy should remain as is and, if not, what alternative policy or policies should be put in place. The parties shall then meet and confer regarding the recommendation.
VI. DUE PROCESS IN DISCIPLINE FOR INCARCERATED PERSONS WITH MENTAL ILLNESS
If the Jail Supervisor believes that an incarcerated person's mental illness was a significant factor in causing a rule violation, the incarcerated person shall be referred for a mental health evaluation and possible treatment.
Should the Jail Supervisor charge a person determined to have a mental illness which caused or contributed to the violation, the Jail Supervisor must consult with a Qualified Mental Health Professional prior to imposing any sanction in order to determine whether the proposed sanction is likely to exacerbate an incarcerated person's mental health symptoms and expose the incarcerated person to an increased risk of danger. If there is a danger that a proposed sanction will exacerbate an incarcerated person's mental illness or expose him to increased risk of danger, an alternate sanction shall be imposed, if at all, unless safety security reasons dictate otherwise.
VII. ADMINISTRATIVE SEGREGATION AND SEGREGATED HOUSING
Administrative Segregation is a housing classification decision. Every assignment of a person to Administrative Segregation shall be based on a written report providing an explanation of the facts and circumstances requiring the segregation. This report shall be written as soon as possible and in no case later than forty-eight (48) hours after the initiation of the assignment to Administrative Segregation. Said reports shall be retained.
Custody staff shall conduct appropriate health and welfare checks on all incarcerated people placed in Segregated Housing sufficient to ensure safety and security and minimize the risk of suicide.
Incarcerated persons moved from the general population to Segregated Housing who either (a) have not yet received their 14-day Initial Health Assessment or (b) have received their 14-day Initial Health Assessment and are on the mental health case load will be screened for suicide risk by a Qualified Mental Health Professional as soon as possible but no later than forty-eight (48) hours after placement.
A Qualified Mental Health Professional shall conduct rounds for those in Segregated Housing four (4) times per week.
Defendants shall not house incarcerated persons with serious mental illness in Administrative Segregation (A-Pod, S-tank) or the medical cells unless those incarcerated persons demonstrate a current threat to Jail security, safety of incarcerated persons, or officer safety, as documented by custody staff, that prevents them from being safely housed in less restrictive locations. Incarcerated persons shall not be housed in Administrative Segregation solely because they have a mental illness.
A. Out-Of-Cell Time and Other Recreation and Treatment for Incarcerated People in Segregated Housing
Defendants shall maximize out-of-cell time for incarcerated people in Segregated Housing. Defendants shall offer incarcerated persons in Segregated Housing the use of their respective day rooms or equivalent indoor recreation space continuously from 6 a.m. to 10 p.m. All incarcerated persons in Segregated Housing shall be offered, at a minimum, one (1) hour out-of-cell time in the day room or other indoor area per day. After each incarcerated person in a Segregated Housing unit has been offered one (1) hour out-of-cell time during a given day, the remaining hours of day room availability shall be offered to the incarcerated persons in the Segregated Housing unit in a manner such that the incarcerated persons are offered approximately equal additional out-of-cell time measured on a weekly basis. Defendants shall document the time that each incarcerated person in Segregated Housing spends out-of-cell.
To the maximum extent possible, Defendants shall offer each incarcerated person in Segregated Housing the opportunity for out-of-cell time with as many other incarcerated persons as possible, so long as concerns over safety and security do not prevent the incarcerated person from being placed in the same space as other incarcerated persons.
All incarcerated people in Segregated Housing shall be offered a minimum of at least fifteen (15) combined hours of indoor and outdoor out-of-cell time per week. In addition, the Jail shall undertake reasonable and good faith efforts to provide additional out of cell time. This may include, but is not limited to, additional day room use, additional use of the outdoor recreation yards, programing time, or mental health contacts.
Defendants shall continue to provide radios to incarcerated persons in Segregated Housing. Issuance of radios is deemed a deterrent to sensory deprivation experienced by some incarcerated persons in Segregated Housing. One radio shall be provided per Segregated Housing cell. The Jail will maintain a policy regarding use of the radios, which will include the right of custody staff to remove the radio from a cell and/or an incarcerated person for safety, security or disciplinary reasons.
As of the date of the parties entered into this SACD, the Jail has made available a number of electronic tablets for use by incarcerated persons in Segregated Housing and other areas of the Jail. Defendants shall continue to permit incarcerated persons in Segregated Housing to use the tablets.
As of the date the parties entered into this SACD, persons in Segregated Housing have generally only been able to use the tablets when they are outside of their cells. Defendants shall make reasonable efforts to provide incarcerated persons in Segregated Housing with opportunities for in-cell access to the tablets, taking into account the number of available tablets and the number of incarcerated persons in Segregated Housing who are eligible for tablet use.
Defendants may deny persons the right to use tablets for safety, security or disciplinary reasons. Defendants shall not be required to provide tablets to persons in Segregated Housing in accordance with the preceding two paragraphs if the cost of providing tablets unreasonably increases or the service of providing tablets becomes unavailable for all in the jail.
Incarcerated persons in Administrative Segregation shall have access to a telephone, a television, and a bicycle exercise machine. Board games, cards, and other recreation equipment shall be maintained and available to administratively segregated incarcerated persons upon request.
Defendants shall strive to limit the placement of incarcerated persons in Segregated Housing for prolonged periods of time. An incarcerated person may request a review of classification or placement in Segregated Housing by completing an incarcerated person request slip. Classification shall also review the placement of incarcerated persons in Segregated Housing at least once a month, though more frequently if necessary for certain categories of incarcerated persons, such as individuals with serious mental illness. Classification shall also consult medical staff concerning each incarcerated person's progress toward the goal of placing the incarcerated person in general population. If other reasonable housing options exist that will provide for the safety of the incarcerated person, the incarcerated person should be moved out of segregation. In reviewing an alternative housing decision, the safety of the incarcerated person shall receive the utmost consideration.
Defendants have broken ground on construction of a new building at the Jail using state funding pursuant to SB 863. Defendants agree that, once they have begun to plan for the manner in which the building will be used, Defendants will meet and confer with Plaintiffs regarding the mental health services to be offered in the building if the SACD is still in place.
VIII. MONITORING
A. Third-Party Monitor (“Monitor”)
Prior to execution of this SACD, the parties will meet and confer and attempt to reach an agreement as to the identity of an independent third-party who shall be appointed to monitor Yuba County's compliance with the terms of the SACD (“the Monitor”). If the parties cannot reach agreement on appointment of the Monitor, the parties shall provide names of proposed monitors to the Court, which will then select the Monitor.
The Monitor's role is to assess and advise the parties and the Court concerning whether the Jail is in substantial compliance with the terms and conditions of this SACD. The parties shall cooperate in good faith so that the Monitor may fulfill the obligation sets forth below. The parties may, but are not required to, communicate with the Monitor on an ex parte basis.
The Monitor shall:
1. Participate in an initial orientation meeting and Jail tour within thirty (30) days of the SACD being approved. The purpose of this meeting and tour is to provide the Monitor with general background and information about the Jail and the issues addressed in this SACD.
2. Review documents including those provided on a quarterly basis, as described below.
3. Conduct one Jail monitoring tours every 6-month period from the date the SACD is approved.
4. Prepare monitoring reports within thirty (30) days of each monitoring tour.
5. Investigate complaints relating to Defendants' compliance with the SACD.
6. Provide testimony, if required, in any court proceeding concerning the SACD.
B. Review of Documents
On a quarterly basis, Defendants shall provide the Monitor with all relevant documents in each of the categories identified in Exhibit A. If, after the effective date of this SACD, either party or the Monitor wishes to modify the list of documents that are produced on a quarterly basis, the parties and the Monitor shall meet and confer on the issue.
In addition to these quarterly document productions, the Monitor may request any other documents maintained by the County or the Third-party Medical Provider which relate to compliance with this SACD. The County shall produce records requested within a reasonable time. Any documents requested by and provided to the Monitor shall also be provided to Class Counsel.
Records and documents requested that contain class members' protected health information shall be produced consistent with the Stipulation and Order entered by the Court on May 17, 2021, Dkt. 265. Defendants and any third-party with whom Defendants contract to provide medical or mental health care to class members in the Yuba County Jail, including but not limited to the Third-party Medical Provider or its affiliated entities, shall produce to the Monitor medical and mental health records for specific class members so long as the Monitor articulates in its request for such records a statement of good cause and the time period covered by the request. The term “good cause” shall mean that the Monitor has articulated a reason for reviewing the records that is related to its monitoring of Defendants' compliance with the SACD.
If a dispute arises as to the existence of good cause for the production of requested records, the parties and the Monitor shall meet and confer to resolve such issues. If the parties and the Monitor cannot resolve a dispute over whether good causes exists for the production of requested records, the Monitor may seek relief in Court.
Medical and mental health records produced to the Monitor are subject to the Stipulated Protective Order entered by the Court on February 7, 2017, Dkt. 188.
C. Jail Tours
The Monitor shall conduct a minimum of one Jail tour during each 6-month period that the SACD remains in effect. The Monitor shall conduct a minimum of four Jail tours. The Monitor shall conduct three tours by no later than April 15, 2024. The Monitor shall be conduct the fourth tour by no later than August 15, 2024. If the SACD is extended beyond January 31, 2025, the Monitor shall conduct one monitoring tour every six months until the SACD is terminated.
The Monitor and his or her experts shall be entitled to an inspection of the Jail upon written notice provided at least (72) hours prior to said inspection. The tour shall be conducted in a manner that does not unreasonably interfere with Jail operations. The Monitor shall have reasonable access to all parts of the Jail that are covered by or involve a provision of this SACD. During the tour, if reasonable and practical under the circumstances, the Monitor shall have access to Jail staff, staff of the Third-party Medical Provider (including, but not limited to, Qualified Mental Health Professionals and administrators), and incarcerated people.
If, at any time other than a Jail tour, the Monitor requests to speak to Jail staff, staff of the Third-party Medical Provider, or incarcerated people in order to discharge the Monitor's duty to monitor Defendants' compliance with the SACD, the Jail shall reasonably cooperate in making the person available to the Monitor.
The parties agree that after this SACD becomes effective, the Monitor should conduct the first monitoring tour as soon as practicable.
D. Monitoring Reports
Within thirty (30) days of each monitoring tour, the Monitor shall issue a draft monitoring report that states his or her opinion as to whether Defendants are in substantial compliance with the terms of the SACD and shall identify those provisions, if any, with which Defendants are not in substantial compliance. Within thirty (30) days of the issuance of each draft monitoring report, the Parties may provide written responses to the draft monitoring report. The Monitor shall consider these responses, if any, and shall issue a final monitoring report that addresses these responses no later than thirty (30) days following issuance of the draft monitoring report. If neither Party submits a written response to a draft monitoring report, the draft report shall become the final report thirty (30) days after issuance of the draft report.
The Monitor shall issue a minimum of four (4) monitoring reports. The third monitoring report shall be issued no later than July 15, 2024. The fourth monitoring report shall be issued no later than November 15, 2024. If the SACD is extended beyond January 31, 2025, the Monitor shall issue a minimum of one (1) monitoring tour report every six months until the SACD is terminated.
The monitoring reports shall not be confidential, but shall not be publicly posted unless the parties comply with the Stipulated Protective Order, Dkt. 188.
The first monitoring report shall make a recommendation regarding the issue identified in Section V.D of the SACD concerning step down cells.
E. Investigation of Complaints
The Monitor shall investigate relevant complaints or reports relating to Jail conditions related to the SACD received from class members or from Class Counsel. Class members may submit complaints or other information about conditions at the Jail directly to the Monitor, who shall then investigate any relevant issues raised by the class member or class members. Defendants shall cooperate in good faith with the Monitor's investigations. The Monitor shall identify the resolution of any complaints in the monitoring reports. Nothing in the SACD shall be interpreted as precluding Class Counsel from conducting their own investigations of complaints related to Defendants' compliance with the SACD.
F. Fees for Monitoring
The Monitor shall be entitled to reasonable fees for work performed. Twice a year, the Monitor shall submit a fee request to the County of Yuba. Those fees shall be paid within thirty (30) days. If there is a dispute as to the fees, an undisputed portion shall be paid within that thirty (30) day timeframe. Any dispute as to fees may be submitted to the Court for resolution.
G. Class Counsel
Class Counsel has been appointed by the court to represent the interests of the class members as to issues raised in the SACD. Nothing in the SACD shall be interpreted as limiting Class Counsel's ability to represent the Class in this matter or to monitor Defendants' compliance with the SACD. However, Class Counsel acknowledges that the intent of the parties in agreeing to have a Monitor is to have the Monitor be primarily responsible for monitoring Defendants' compliance with the SACD.
The County shall produce to Class Counsel all documents produced to the Monitor.
Class Counsel shall be permitted to accompany and observe the Monitor during all of the Monitor's tours of the Jail.
On a quarterly basis, Defendants shall provide to Class Counsel the same documents, set forth in Exhibit A that are produced to the Monitor.
In addition to these quarterly document productions, Class Counsel may request any other documents maintained by the County or its contracted mental health provider which relate to compliance with this SACD. The County shall produce records requested within a reasonable time.
Records and documents requested that contain class members' protected health information shall be produced consistent with the Stipulation and Order entered by the Court on May 17, 2021, Dkt. 265. Defendants and any third-party with whom Defendants contract to provide medical or mental health care to class members in the Yuba County Jail, including but not limited to the Third-party Medical Provider or its affiliated entities, shall produce to Class Counsel medical and mental health records for specific class members so long as Class Counsel articulates in its request for such records a statement of good cause and the time period covered by the request. The term “good cause” shall mean that Class Counsel has articulated a reason for reviewing the records that is related to its monitoring of Defendants' compliance with the SACD.
If a dispute arises as to the existence of good cause for the production of requested records, the parties shall meet and confer to resolve such issues. If the parties cannot resolve a dispute over whether good causes exists for the production of requested records, Class Counsel may seek relief in Court.
Medical and mental health records produced to Class Counsel are subject to the Stipulated Protective Order entered by the Court on February 7, 2017, Dkt. 188.
Nothing in this SACD shall affect Class Counsel's ability to obtain medical or mental health records for individual class members by presenting a signed authorization to Defendants that authorizes the release of such records to Class Counsel. Medical and mental health records produced by Defendants to Class Counsel in response to a signed authorization shall not be subject to the Stipulative Protective Order in this case.
Class Counsel and their designated agents shall be allowed to interview any incarcerated person within the Jail related to Defendants' compliance with the SACD, unless that particular incarcerated person states that he or she does not want to speak to Class Counsel. Class Counsel will not seek attorney fees for communications that are not related to Defendants' compliance with the SACD. Visits by Class Counsel or their designated agents to speak with incarcerated persons shall be handed the same as all attorney visits. Students enrolled in the King Hall Civil Rights Clinic at the University of California at Davis School of Law shall be permitted to conduct attorney visits with incarcerated persons without their supervising attorney being physically present at the Jail so long as the Supervising Attorney for the Clinic sends, in advance and in writing, the names of any Clinic students to the Jail Captain and Jail Lieutenant.
As set forth in the Section X, Class Counsel shall be entitled to fees for work related to this SACD.
H. Reporting of Non-compliance
The Sheriff shall be responsible for reporting to the Monitor and Class Counsel any material variances between the procedures and practices in the Jail and the provisions of this SACD. Such variances must be reported in writing within ten (10) days of becoming aware of the variance.
I. Notice to Incarcerated People of the SACD
At the time of booking, each new arrestee shall be given a copy of a booklet which accurately summarizes the provisions of this SACD. Spanish translations of this booklet must be made available. If an individual cannot read the booklet, good faith efforts must be made to read or otherwise inform the incarcerated person of the content of the summary.
Defendants shall provide notice of the SACD and the names and contact information of the Monitor and Class Counsel on a poster, prominently displayed in English and Spanish (1) in the booking area in a place where all incarcerated people being booked into the Jail can see it, (2) in all housing units, (3) in the library, (4) in the area of the Jail where Defendants provide mental health care to incarcerated people, and (5) in the Jail Handbook.
IX. PROCESS FOR APPROVAL OF THE SACD
A. Court Approval
The SACD will be subject to approval by the Court. The parties agree that time is of the essence and that all reasonable efforts will be made to have final approval of this SACD granted as soon as possible.
B. Preliminary Approval by the Court
As soon as possible, but no more than fifteen (15) days of signing the fully executed SACD, Plaintiffs and Defendants will jointly submit a request to the Court to: (i) preliminarily approve the SACD, including a preliminary finding that the SACD satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A); (ii) direct notice to the Class; (iii) set forth procedures and deadlines for comments and objections to the SACD; and (iv) schedule a fairness hearing.
C. Notice to Class of the SACD Pursuant to Federal Rule of Civil Procedure 23(e)
The Parties will jointly request approval by the Court of notice pursuant Federal Rules of Civil Procedure Rule 23(e). To the extent the Court determines that any modifications to the notice are required, the parties will make such modifications prior to distribution of the notice to the class. Following the Court's issuance of a preliminary approval order, the parties will immediately provide notice of the proposed SACD, advising members of the Class of the terms of the proposed SACD and their right to object to the proposed SACD. The parties will jointly request that the Court order a thirty (30) day period for members of the Class to object to the SACD. Within three (3) days after the Court has issued a Preliminary Approval Order the notice will be posted: (1) on the County's official website (www.co.yuba.ca.us/); and (2) in all Jail facilities operated by Defendants, including, but not limited to, in all dayrooms, all medical clinic spaces, the visiting area, and the intake area.
D. Objections to the SACD
Incarcerated people may object to the proposed SACD by submitting their objection to the Court in writing no later than a date set by the Court in this case after preliminary approval of the SACD.
E. Fairness Hearing
The Parties will jointly request that the Court schedule and conduct a fairness hearing to decide whether to grant approval to the SACD. At the fairness hearing, the Parties will jointly move for the Court: (i) to grant final approval to the SACD, including a finding that the SACD satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A) in that the SACD is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right of the Plaintiffs; (ii) to retain jurisdiction over the parties to enforce the terms of the SACD until the date the SACD terminates.
X. ATTORNEYS' FEES, COSTS, AND EXPENSES
The parties acknowledge that Plaintiffs' counsel has a right to request reimbursement of reasonable attorneys' fees, expenses, and costs incurred for representing the Class.
Plaintiffs may petition the Court for an award of no more than $75,000 per year in attorneys' fees, expenses, and costs arising from representing the Class. The lodestar used for all monitoring work shall be at the hourly rate then authorized by the PLRA. The monitoring year for purposes of attorneys' fees, expenses and costs shall begin on the date the SACD is approved by the Court. The parties have agreed that once a Monitor is selected, that person is to immediately begin monitoring responsibilities set forth in section VIII. The parties acknowledge the need to take all necessary steps to make the monitoring process as cost efficient as possible. To that end, Defendant shall cooperate in good faith in providing requested information to Class Counsel, including the quarterly documents required to be produced as set forth in this SACD, and Plaintiffs shall use the University of California at Davis School of Law Clinic as may be reasonable under the circumstances for monitoring.
If in a given year Plaintiffs believe additional reimbursement for representing the Class is required, the parties shall meet and confer to attempt to resolve the issue. If the issue cannot be resolved, then Plaintiff's counsel may file a motion to establish good cause for the need for additional reimbursement for representing the Class.
The $75,000 annual cap does not apply to litigation in the District Court or future appeals, if any. If Plaintiffs' counsel pursues litigation or appeal, a separate motion for attorneys' fees, expenses, and costs must be filed. Prior to doing so, the parties are to meet and confer and attempt to reach an agreement on the attorneys' fees, expenses, and costs.
The parties agree that Plaintiffs' counsel shall submit, on a semi-annual basis, requests for attorneys' fees, litigations expenses, and costs to Defendants to cover their reasonable fees and costs spent on representing the Class. Prior to submitting any application or motion for attorney fees, expenses, and costs, the parties shall meet and confer in order to attempt to come to an agreement on the amount that is recoverable. As part of the meet and confer process, Plaintiffs' counsel shall provide all documentation relating to the attorneys' fees, expenses, and costs being claimed.
XI. RESERVATION OF JURISDICTION AND ENFORCEMENT
The parties consent to the reservation and exercise of jurisdiction by the Court over all disputes between and among the parties arising out of this SACD. Defendants will not assert, after the final approval by the Court of the SACD, that the Court lacks the authority to enforce the terms of this SACD, or raise any jurisdictional defense to any enforcement proceedings permitted under the terms of this SACD.
If Class Counsel believes the Defendants are violating any provision of this SACD, they shall first meet and confer in good faith with Defendants to attempt to remedy the claimed violation, as set forth below. If the meet and confer efforts fail, Class Counsel may file a motion with the Court to seek an order that the Defendants are not in substantial compliance with the SACD. In the event the Court finds that Defendants have not substantially complied with the SACD, it shall in the first instance require Defendants to submit a plan for approval by the Court to remedy the deficiencies identified by the Court. Plaintiffs shall have an opportunity to file objections to any plan submitted to the Court by Defendants. In the event the Court subsequently determines that the Defendants' Court-approved plan did not remedy the deficiencies, the Court shall retain the power to enforce this SACD through all remedies provided by law.
The Court shall retain jurisdiction to enforce the terms of this SACD through specific performance and all other remedies permitted by law or equity.
The Court shall be the sole forum for the enforcement of this SACD. Any order to achieve substantial compliance with the provisions of this SACD shall be subject to the applicable provisions of the Prison Litigation Reform Act, 18 U.S.C. § 3626.
As identified above, the parties are required to meet and confer prior to involving the Court in any dispute. If Class Counsel believes that Defendants are not substantially complying with any of the acts required by this SACD they shall notify Defendants in writing of the facts supporting their belief. Defendants shall investigate the allegations and respond in writing within thirty (30) days. If Class Counsel are not satisfied with Defendants' response, the parties shall conduct negotiations to resolve the issue(s). If the parties are unable to resolve the issue(s) satisfactorily, either party may move the Court for any relief permitted by law or equity. In cases of particular urgency that are central to the purpose of the SACD, a party may opt to bring disputes directly to the Court.
This SACD may be enforced only by the parties hereto. Except as set forth above, nothing contained in this SACD is intended or shall be construed to evidence an intention to confer any rights or remedies upon any person other than the parties hereto.
XII. TERMINATION AND EXTENSION
The SACD shall terminate on January 31, 2025, unless prior to December 1, 2024, Plaintiffs file a motion to extend the term of the SACD, in which case the SACD shall remain in place until the Court rules on Plaintiffs' motion. If the Monitor does not, as required by Section VIII.D, file its fourth monitoring report by November 15, 2024, then Plaintiffs' deadline for filing a motion to extend the term of the SACD shall be extended by the number of days by which the Monitor's fourth report exceeds the November 15, 2024 deadline.
By no later than August 1, 2024, the parties shall meet and confer regarding whether Defendants are not in substantial compliance with all or part of the SACD. Prior to the meet and confer, Plaintiffs shall, in writing, provide Defendants with notice of any provisions of the SACD with which Plaintiffs contend Defendants are not in substantial compliance. At the meet and confer, the parties shall in good faith attempt to resolve any disputes about compliance. The Monitor shall attend and participate in the meet and confer. If the parties are unable to reach agreement, the parties shall also meet and confer regarding a discovery plan in connection with a motion to extend the term of the SACD.
Nothing in this Second Amended Consent Decree shall limit the parties' rights to challenge or appeal any finding as to whether Defendants are not in substantial compliance with the Second Amended Consent Decree or consequent orders entered by the District Court, IT IS SO STIPULATED.
Exhibit A
Quarterly Document Production
• A list, generated on the last day of each month in the quarter, of all incarcerated people who are on the mental health case load
• A list, generated on the last day of each month in the quarter, of all incarcerated who are prescribed psychotropic medication
• Check Sheets prepared by the County and Wellpath for following cells: Safety/Isolation Cells; Sobering Cells; Holding Cells; Step-Down Cells
• All memoranda documenting late safety and security checks on people in safety and Step-Down
• Exercise Yard Logs for Restrictive Housing units, including, but not limited to, APod; S-Tank; M-Cells; Q-1; Q-2; Q-3; Safety Cells; Holding Cells
• Mental Health Sick Call Logs for the 2d, 5th, 13th, 14th, 18th, 24th, 26th, and 30th of each month
• Quarterly Analysis for QA Meetings that relate to mental health care or any other issues covered by the Second Amended Consent Decree.
• Wellpath Staffing Reports created for the county, if any
• Random Selection of Monthly Intake Health Screenings consisting of 10% of all forms completed each quarter, unless Plaintiffs make a showing that an additional number shall be produced for a certain month
• All non-confidential or non-attorney-client Death in Custody Reports and Morbidity & Mortality Reports and meeting minutes
• All non-confidential or non-attorney-client privileged Quality Assurance and/or Quality Improvement documents, if provided to the county, that are related to the provision of mental health care or any other issues covered by the Second Amended Consent Decree. These may include Wellpath morbidity and mortality reports.
• Quarterly assessment of the timeliness of providing sick call services for mental health-related requests
• Complete set of all County and Wellpath Policies related to mental health care or any other issues covered by the Second Amended Consent Decree that were updated within the last quarter
• Hallway Logs which show out-of-cell time for incarcerated people in all Restrictive Housing, including, but not limited to: A Pod; S-Tank; M-Cells; Q-1; Q-2; Q-3; Safety Cells; Holding Cells
• Logs of all prisoners found incompetent to stand trial showing how long they have been at the Jail
• A monthly point in time snapshot list of incarcerated people placed in Administrative Segregation during the quarter generated on the last day of each month in the quarter
• 25% of Classification Reports during the quarter for incarcerated people placed or retained in Administrative Segregation
• 100% of clearance forms received by Wellpath from Rideout or other local hospitals allowing the return of incarcerated people to the jail after emergency mental health treatment
• Referral Forms generated by Wellpath when transferring incarcerated people to an inpatient psychiatric or other mental health facility or local hospital for emergency or mental health care
• Documents reflecting the involuntary administration of psychotropic medications
• 25% of logs documenting Wellpath Mental Health Rounds in Administrative Segregation, unless Plaintiffs make a showing that an additional number shall be produced for a certain month
• A list of all incarcerated people referred to tele-psychiatry
• Update regarding Defendants' efforts to create and fund a more expansive medication-assisted treatment program