DONALD SPECTER – 083925 RITA K. LOMIO – 254501...2020/07/20 · 1 Mr. Scofield’s June 16...

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Case No. C94 2307 CWDECLARATION OF CORENE T. KENDRICK IN SUPPORT OF PLAINTIFFS’ MOTION TO PROTECT

ARMSTRONG CLASS MEMBERS DURING COVID-19 PANDEMIC

DONALD SPECTER – 083925 RITA K. LOMIO – 254501 MARGOT MENDELSON – 268583 PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710-1916 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

MICHAEL W. BIEN – 096891 GAY C. GRUNFELD – 121944 THOMAS NOLAN – 169692 PENNY GODBOLD – 226925 MICHAEL FREEDMAN – 262850 ROSEN BIEN GALVAN & GRUNFELD LLP 101 Mission Street, Sixth Floor San Francisco, California 94105-1738 Telephone: (415) 433-6830 Facsimile: (415) 433-7104

LINDA D. KILB – 136101 DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. 3075 Adeline Street, Suite 201 Berkeley, California 94703 Telephone: (510) 644-2555 Facsimile: (510) 841-8645

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN ARMSTRONG, et al.,

Plaintiffs,

v. GAVIN NEWSOM, et al.,

Defendants.

Case No. C94 2307 CW [REDACTED] DECLARATION OF CORENE T. KENDRICK IN SUPPORT OF PLAINTIFFS’ MOTION TO PROTECT ARMSTRONG CLASS MEMBERS DURING COVID-19 PANDEMIC Judge: Hon. Claudia Wilken Crtrm.: TBD, Oakland

Case 4:94-cv-02307-CW Document 2996-3 Filed 07/14/20 of 27

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1 Case No. C94 2307 CWDECLARATION OF CORENE T. KENDRICK IN SUPPORT OF PLAINTIFFS’ MOTION TO PROTECT


I, Corene T. Kendrick, declare:

1. I am an attorney licensed to practice before the courts of the State of

California, and admitted to this Court. I am a staff attorney at the Prison Law Office

(“PLO”), and am an attorney of record to the plaintiff class in this litigation.

2. If called as a witness, I could and would testify competently to the facts

stated herein, all of which are within my personal knowledge.

3. On June 10, 2020, I observed a remote “virtual” video tour of California

Health Care Facility, Stockton (CHCF), which was conducted under the Plata v. Newsom

case by my colleague Steven Fama. The tour was conducted by a staff person at the prison

using his cell phone to connect to a Skype video chat; Mr. Fama directed the person to go

into certain housing units and building locations.

4. During that tour, we asked to see the dayrooms of dormitories where cots

had been placed to try to create more space for social distancing in the dormitories. We

visited the dayrooms in Buildings E-4A, E-4B, E-5A, and E-5B. The cots were grouped

together in clusters of eight, with electrical or duct tape on the floor to demarcate each

group or cohort. Within each cohort, the cots were close together (I would estimate no

more than three feet apart), with little space for navigation between the cots. The staff

person stated that the people were instructed to sleep head-to-foot. Class members who I

spoke with subsequent to the tour reported that they were told to alternate sleeping head-

to-foot to one another so that their faces would be farther apart from other people within

their cohort.

5. I observed cots adjacent to paths of travel within the dayrooms and very

close to the telephones used by people incarcerated in the dorms. In at least two dayrooms,

I observed canes, walkers, and other assistive devices next to the cots. I was especially

concerned to see the walkers, because based upon my nine years working on the

Armstrong case, class members who have been issues walkers frequently have serious

mobility impairments that impact many facets of their activities of daily living, and they

require multiple assistive features in their housing assignments.


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6. In at least one dayroom, we saw that one of these cot cohorts was very close

to the three dayroom pay phones; other incarcerated people were standing nearby,

apparently waiting to use the phones.

7. On June 15, Mr. Fama sent an email requesting that the CDCR attorney

assigned to Plata provide a list of all people currently housed on cots at the day rooms, and

also asking multiple questions about the placement of the cots. CDCR Office of Legal

Affairs Attorney Bryant Scofield responded the next day, and provided a list of names.

Attached herein as Exhibit 1 is a true and correct copy of Mr. Scofield’s email, without the

attachment. In his email, Mr. Scofield stated that as of June 15, 2020, there were 13 cots

in E-2A’s dayroom, nine in E-2B, 11 in E-3A, seven in E-3B, 13 in E-4A, eight in E-4B,

nine in E-5A, and eight in E-5B, for a total of 78 incarcerated people housed in cots.

8. Of the 78 people assigned to cots, 25 were Armstrong class members, with

one or more disability codes. This included 21 people with mobility impairments (coded

either DLT or DNM), and four people with kidney impairments who rely upon dialysis

(code DKD).

9. Over the next two weeks, a team of four Prison Law Office employees (me,

an investigator, a litigation assistant, and a law student) interviewed 15 of these class

members via phone, and uncovered several serious, systemic problems with the use of the

cots in the dayrooms.

10. Class members housed on the cots reported to us that there had been no

individualized assessment of whether they could safely be accommodated on a cot, but

rather that in late April, officers came through the dormitories, counted off every fourth or

fifth bunk, and told the people assigned to those bunks to move to a cot, without regard to

their medical or disability concerns.1 Most of the people we spoke with had been living on

the cots since the third week of April, 2020, and they had no idea when they would be

1 Mr. Scofield’s June 16 email confirmed that there was no written criteria setting out which people could be placed in cots. See Ex. 1 at 2.


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moved back to a regular bunk.

11. The mobility-impaired and kidney-impaired class members that we spoke

with uniformly reported that their disabilities were not accommodated by living on the

cots. They reported that it was very difficult to get on and off the cots because they were

so low to the ground. A vision-impaired prisoner stated that he had problems navigating

the dayroom with the cots. Class members stated that the cots are only a couple feet off of

the ground, lower than the regular low bunks. The cots are made of a nylon surface that

sags and gives way when people try to push off the cot, a problem that is compounded by

the fact that the cots are not bolted to the ground, and so they slide. One class member

said that when he attempts to get off a cot, he feels like “a turtle struggling to get off his

back.” Class members on dialysis who have fistulas in their arms said that having to push

off the cot with their arm caused pain near and in the fistula.

12. A third area of grave concern that class members raised was their fear of

retaliation if they were to file an 1824 or request an accommodation of being moved off of

the cot. They reported that several other people with disabilities had been sent to

Administrative Segregation in April when they refused to move to a cot, and that officers

had made it clear to them that if they asked to move off the cot, or refused, that they would

either be sent to Administrative Segregation and receive a Rules Violation Report, or given

an adverse transfer to another prison. In fact, on July 2, 2020, I had a phone call with a

class member who is classified as DPM, uses a walker to ambulate, and reports having

cornea damage to both eyes, who was housed in CHCF’s Administrative Segregation unit.

He reported that he had been housed there since May 28, 2020, after he had been ordered

to move from his bunk to a cot dayroom in E-2 and refused due to his mobility and vision

problems.

13. On June 24, 2020, my colleague Amber Norris and I had a telephone

conference with CHCF Warden Eldridge and ADA Associate Warden (“AW”) Singh, to

report what class members had told us to date in the phone interviews. AW Singh

confirmed that institution ADA staff had no involvement in the process of assigning


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people to cots. He stated that in May, the institution started moving people with DPx

codes (for example, DPW, DPO, DPM, or DPV) off of the cots. Warden Eldridge and AW

Singh said they did not know how much longer the institution would be using the cots as

an alternative housing option.

14. During this call, we requested all 1824s that had been filed by people who

had been assigned to the cots. I personally reviewed these 1824s, and they echoed the

concerns raised by the class members we interviewed. Moreover, the responses by the

ADA staff to these requests for accommodation were often problematic, including denying

most requests with a response that “the RAP is not the subject matter expert for bed

moves,” even though a request for accommodation due to inaccessible housing is a

paradigmatic Armstrong accommodation request.

15. On July 6, 2020, I sent a letter to Counsel for Defendants setting forth our

concerns with the use of the cots in the CHCF dayrooms, and requested that the parties

meet within two weeks to discuss the issues. As of July 13, 2020, I have not received a

response. Attached herein as Exhibit 2 is a copy of my July 6, 2020 letter.

16. According to the July 1, 2020 monthly DECS report that Defendants

provided my office listing all Armstrong class members, as of that date there were 24 class

members listed as living on the cots.

17. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the

foregoing is true and correct.

Executed the 13th of July, 2020 at San Francisco, California.

Corene T. Kendrick

PRISON LAW OFFICE


EXHIBIT 1


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Corene Kendrick

From: Scofield, Bryant <[email protected]>Sent: Tuesday, June 16, 2020 11:27 AMTo: Steven FamaCc: Nasstaran Tara Ruhparwar; Damon McClain; Samantha Wolff; Paul B. Mello; Stafford,

Carrie@CDCR; Alison Hardy; Sara Norman; Sophie Hart; Rana AnabtawiSubject: Plata: REVISED questions following CHCF site visitAttachments: CHCF INMATES IN COTS E FAC 6-15-2020.pdf; DSCF1010.JPG; DSCF1009.JPG;

DSCF1007.JPG; DSCF1008.JPG

Good Morning Steve, This response is in reference to your email entitled Plata: REVISED questions following CHCF site visit dated 6/11/2020. Answers are included attached above, in blue below, and in some table formatted constructions below:

1. How many cots are currently (please specify the date for which information is provided) placed in the dayroom of, respectively, E2A, E2B, E3A, E3B, E4A, E4B, E5A, and E5B?

This table shows the number of cots in each dayroom as of June 15, 2020.

2. How many of the cots in each dayroom currently (please specify the date for which information is provided) have an incarcerated person assigned to it?

All the cots (same numbers as above) in the dayrooms have inmates assigned to them. There are no unassigned/unoccupied cots left in the dayroom. Unassigned/unoccupied cots are placed in storage.

3. Has the number of such cots in any Building E2-E5 dayroom been reduced from the number initially

placed in those dayrooms? A) If yes, please explain (note: we have heard the number of cots in the dayrooms was reduced in

the days before our video site visit).

Yes the number of cots has been reduced since the activation of the temporary housing plans. The number of cots in the dayroom fluctuates due to the following: inmates paroling, inmate placement into administrative segregation, inmates going out to court, inmates going out to medical, or inmates being rehoused due to a change in their level of care. The numbers of cots on the dayroom floor were reduced as a result of CHCF staff consolidating every possible bed within each pod to limit the use of cots on the dayroom floor.


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4. What plans are there to increase the number, or eliminate the use, of cots in the dayrooms of Buildings E2-E5? A) Please explain.

CHCF is continually monitoring the facility E dorms in an effort to house as many inmates as possible within the pods while maintaining the eight person cohorts and appropriate physical distancing between each cohort. The expectation is that inmates will only be placed on cots in the dayroom when doing so is necessary to achieve physical distancing in the pods.

5. Who is the manufacturer and what is the brand name and model number, if applicable, of the cots

used in the dayrooms of Buildings E2-E5?

Manufacture/Brand Name: WolfTraders Model: TurboCot 350

6. What are the names, numbers, and building and bed designation of those currently (please specify

the date for which information is provided) assigned to a cot in the dayrooms of Buildings E2-E5.

See attached pdf. 7. Are there written criteria, signed by a CHCF manager, regarding which people can be placed in such

cots? A) If yes, please provide a copy. B) If no, please explain, including whether there is any limitation regarding medical condition, age,

or disability that prohibits placement of a person on a cot.

No, there has not been any written criteria established identifying which inmates can be placed onto a cot in the dayroom. Per direction received from CDCR’s Class Action Management Unit to CHCF’s management, CHCF is restricting cot housing to inmates who do not have a placement-impacting Disability Placement Program code. Additionally, inmates’ medical and age concerns are addressed on a case-by-case basis when they are considered for a cot placement.

8. How many feet exist between the chairs on which people sit when using the phones mounted on the

walls of the Building E2-E5 dayrooms, and the nearest cot? A) If different in the eight different dayrooms, please provide distance if less than six feet.

During the virtual tour it was discovered that a cohort of cots on the dayroom floor did not have the appropriate six feet of physical distance between the cohort and inmates using the telephone. CHCF staff reconfigured those cohorts so that there is now more than six feet of distance between the cohorts and the inmate telephones.

9. During the site visit, an incarcerated person was heard telling Warden Eldridge, the Chief Deputy

Warden, and others that – as I understood the overheard discussion – the security lights on the ceiling of the dayroom, which remain on 24/7, should be turned off or dimmed during hours of sleep. A) Has any changes been made to the use of those lights during hours of sleep been made in

Buildings E2-E5 dayrooms since the video site visit on 6/10/20? B) Please describe any change.


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No. A lux measurement was taken and it indicated that the lighting level was similar to the other pods.

10. Regardless of whether there has been a change in the use of the security lights during hours of sleep

in the dayrooms of Buildings E2-E5, what is the current lumen lux measurements during hours of sleep in those dayrooms, both in the dayroom proper and in the study carrel areas, with the lux meter held horizontal toward the ceiling at cot level? A) What are the lumen lux measurements during hours of sleep in those measurements in the middle

of the regular dorm sections of those buildings with the lux meter held horizontal toward the ceiling at the level of the upper bunks?

In the small pods, the lighting is very low with an average of .03. In the large pods, the average is 35.99. In the dayroom where the cots are located, the average is 31.12. In the dayroom adjacent to the desk/reading area, the average is 18.28.

11. Are sleep masks issued to people assigned to cots?

A) If yes, when did that begin? B) If no, please explain.

No special sleep masks were issued. Cloth face barrier/masks for COVID were issued in April 2020.

Best, Bryant

Bryant T. Scofield Attorney Office of Legal Affairs California Dept. of Corrections & Rehabilitation 1515 S St. Suite 314-South Bldg. Sacramento, CA. 95811 Office: (916) 445-3179 Cell: (916) 224-6130 Fax: (916) 324-7117

CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information including, but not limited to, the attorney/client privilege and/or the attorney work product doctrine. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of this communication. From: Steven Fama <[email protected]> Sent: Thursday, June 11, 2020 9:31 AM


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To: Nasstaran Tara Ruhparwar <[email protected]>; Scofield, Bryant <[email protected]> Cc: Samantha Wolff <[email protected]>; Alison Hardy <[email protected]>; Rana Anabtawi <[email protected]>; Sophie Hart <[email protected]>; Sara Norman <[email protected]> Subject: Plata: REVISED questions following CHCF site visit CAUTION: This email originated from outside of CDCR/CCHCS. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear all, I’ve revised one of the questions below, to more accurately state the information requested (changes indicated by strike-throughs and text in blue font. I apologize for any inconvenience. Sincerely, Steve From: Steven Fama [mailto:[email protected]] Sent: Thursday, June 11, 2020 8:28 AM To: 'Nasstaran Tara Ruhparwar' <[email protected]>; 'Scofield, Bryant' <[email protected]> Cc: 'Samantha Wolff' <[email protected]>; Alison Hardy <[email protected]>; Rana Anabtawi <[email protected]>; Sophie Hart <[email protected]>; 'Sara Norman' <[email protected]> Subject: Plata: questions following CHCF site visit Dear Tara and Bryant, As discussed yesterday, I write to request certain information subsequent to the “video site visit” yesterday at CHCF (and thank you again for your help in arranging that; the visit was helpful although as at CIM at many points the technical problems were extremely limiting). Thank you in advance for helping to get answers to the following questions provided to me promptly:

How many cots are currently (please specify the date for which information is provided) placed in the dayroom of, respectively, E2A, E2B, E3A, E3B, E4A, E4B, E5A, and E5B? How many of the cots in each dayroom currently (please specify the date for which information is provided) have an incarcerated person assigned to it? Has the number of such cots in any Building E2-E5 dayroom been reduced from the number initially placed in those dayrooms? If yes, please explain (note: we


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have heard the number of cots in the dayrooms was reduced in the days before our video site visit). What plans are there to increase the number, or eliminate the use, of cots in the dayrooms of Buildings E2-E5? Please explain. Who is the manufacturer and what is the brand name and model number, if applicable, of the cots used in the dayrooms of Buildings E2-E5?. What are the names, numbers, and building and bed designation of those currently (please specify the date for which information is provided) assigned to a cot in the dayrooms of Buildings E2-E5. Are there written criteria, signed by a CHCF manager, regarding which people can be placed in such cots? If yes, please provide a copy. If no, please explain, including whether there is any limitation regarding medical condition, age, or disability that prohibits placement of a person on a cot. How many feet exist between the chairs on which people sit when using the phones mounted on the walls of the Building E2-E5 dayrooms, and the nearest cot? If different in the eight different dayrooms, please provide distance if less than six feet. During the site visit, an incarcerated person was heard telling Warden Eldridge, the Chief Deputy Warden, and others that – as I understood the overheard discussion – the security lights on the ceiling of the dayroom, which remain on 24/7, should be turned off or dimmed during hours of sleep. Has any changes been made to the use of those lights during hours of sleep been made in Buildings E2-E5 dayrooms since the video site visit on 6/10/20? Please describe any change. Regardless of whether there has been a change in the use of the security lights during hours of sleep in the dayrooms of Buildings E2-E5, what is the current lumen lux measurements during hours of sleep in those dayrooms, both in the dayroom proper and in the study carrel areas, with the lux meter held horizontal toward the ceiling at cot level? What are the lumen lux measurements during hours of sleep in those measurements in the middle of the regular dorm sections of those buildings with the lux meter held horizontal toward the ceiling at the level of the upper bunks?


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Are sleep masks issued to people assigned to cots? If yes, when did that begin? If no, please explain.

It would be appreciated if you could by close of business Monday provide answers to as many of the above a questions as you and CHCF can provide by that time, and an indication of when you believe any remaining questions will be answered. Thanks again, Steve


REDACTED VERSION OF EXHIBIT 2 to

DECLARATION OF CORENE KENDRICK


Board of Directors Penelope Cooper, President Michele WalkinHawk, Vice President • Marshall Krause, Treasurer

Harlan Grossman • Christiane Hipps Margaret Johns • Cesar Lagleva Jean Lu Laura Magnani Michael Marcum Ruth Morgan Seth Morris Vishal Shah

PRISON LAW OFFICE General Delivery, San Quentin, CA 94964

Telephone (510) 280-2621 Fax (510) 280-2704 www.prisonlaw.com

VIA EMAIL ONLY

July 6, 2020

Ms. Tamiya Davis, Office of Legal Affairs

California Department of Corrections & Rehabilitation

[email protected]

RE:

Armstrong v. Newsom

Use of Alternative Housing at CHCF During the COVID-19 Pandemic

Dear Tamiya:

I write regarding the practice at the California Health Care Facility, Stockton

(CHCF), of moving people to live on cots in the dayrooms in an attempt to provide some

measure of social distancing in the dorms of E-2, E-3, E-4, and E-5. We have spoken to

multiple Armstrong class members who have lived on the cots for months, reviewed 1824s

filed regarding this housing practice, and observed some of the dayroom living units during

a Plata virtual tour on June 10, 2020.

We have serious concerns regarding (1) the process by which class members were

assigned to cots, (2) the accessibility of the cots and the living conditions in the dayrooms,

and (3) the viability of the 1824 process to detect and address accessibility issues and class

members’ concerns about retaliation or adverse transfers if they raise accessibility issues.

We also are concerned that, even by moving people to the dayrooms, people are unable to

successfully maintain six foot distancing from persons not in their cohorts.

Please let us know when you are available in the next two weeks to discuss these

issues. We would like to discuss the institution developing a formal process to select people

to go to the cots and for an immediate review of the appropriateness of continuing the cot

placement for the individuals currently assigned to the cots, given the fact that some people

have been living on the cots for more than two months. We are also concerned about the

Reasonable Accommodation Panel’s (RAP) responses to 1824s filed about the cots.

//

Director: Donald Specter Managing Attorney: Sara Norman Staff Attorneys: Rana Anabtawi Patrick Booth Steven Fama Alison Hardy Sophie Hart Corene Kendrick Rita Lomio Margot Mendelson


Ms. Tamiya Davis

Re: Armstrong v. Newsom

Use of Alternative Housing at CHCF

During the COVID-19 Pandemic

July 6, 2020

Page 2

1. Failure to Consider Disabilities When Assigning Class Members to Cots

Since late March 2020, Plaintiffs repeatedly have raised concerns about the

accessibility of alternative living areas, including gyms, tents, chapels, and dayroom cots,

which Defendants have designated in response to the pandemic. Unfortunately, it appears

that there was no process to consider or evaluate the appropriateness of the cots for class

members at CHCF. Multiple class members we have interviewed reported that in late April,

custody staff went through the dormitories and counted off approximately every fourth or

fifth bunk, and ordered the persons living there to move to a cot without regard to their

medical or disability conditions.

During our June 24, 2020 phone conference with Warden Eldridge and Associate

Warden Singh, AW Singh confirmed that the prison’s ADA staff were not involved in

assigning people to cots, and that individualized assessments were not done before moving

people to cots. AW Singh told us during our call that in the weeks and months after the

initial move of people to the dayrooms, class members with DPx codes were eventually

moved out of the cots, but according to the list we received on June 16, 2020, class members

with the DLT and DKD codes are still housed on cots more than two months later, with no

end in sight.1 During the Plata virtual tour on June 10, we saw several walkers in the spaces

next to cots, which indicates these people have relatively serious mobility impairments,

regardless of their current assigned code. See Appendix 1 for a summary of reports that we

have received to date from class members about the failure to consider disabilities when

assigning people to the cots.

2. Accessibility of the Dayroom Living Area

Both the class members we interviewed, and persons filing 1824s regarding the

living conditions of the cots, reported that the cots are narrow, and made of a nylon material

that was not level or stable, but rather sagged. People with mobility impairments, and DKD

class members on dialysis, reported difficulty in getting on-and-off the cots because they are

lower to the ground than regular bunks, and because the surface sags and gives when they

try to push off the cot. One class member said that when he attempts to get off a cot, he

feels like “a turtle struggling to get off his back.” Class members on dialysis who have

fistulas in their arms said that having to push off the cot with their arm caused pain near and

1 We proposed to AW Singh that the institution consider rotating cohorts between the

dayroom and the dorms, given there appears to be no end-date in sight for the use of the cots

in the dayrooms, but he was noncommittal, stating that he would “look into it.”


Ms. Tamiya Davis




July 6, 2020

Page 3

in the fistula site. Multiple class members compared sleeping on the cot to being on a

hammock, one person stated in an 1824 that he felt as if he was sleeping in a “caved in

taco.” Since the cots are not bolted or fixed to the ground, they often slide across the

smooth concrete floor when people get on or off of them, causing a risk of falling. We also

spoke to vision-impaired class members assigned to the cots who reported difficulty

navigating the dayroom, and tripping over the cots that are low to the ground.

One illustrative example is Mr. , (DPO/DNH), E- , filed an 1824

(E-20- ) on April 26, 2020, stating that he had been told to move to a cot in the day

room despite the fact that he uses a wheelchair, has back problems and COPD and that there

would not be space for his wheelchair, and there was no electrical outlet for his CPAP

machine.2 The DVP form completed on May 5, 2020 by Dr. confirmed that he is

DPO and needs electrical outlets for his CPAP, but stated that “Patient is able to safely go

from sitting to standing from a wheelchair seat level surface.” According to the roster report

we received on May 12, 2020, he was no longer on a cot by that date, and his medical record

shows that he was on quarantine in the OHU after an off-site medical appointment.

The people living in the cots said that they were not allowed to put their mattresses

from their bunk on the cot to provide more cushioning or a more level surface. Others

reported attempting to place items underneath the cot to create a flatter surface and/or to

elevate their legs for medical reasons, and that does not work. We also heard concerns

about the fact that the lights are on even at night, and that given the noise and activity during

the day, it is very noisy. This is especially problematic for class members with kidney

disabilities who undergo dialysis, as they report that they are exhausted after their dialysis

sessions and normally need to sleep in the hours after the sessions. See Appendix 2 for a

full summary of reports regarding the lack of accessibility and problems living on the cots.3

2 We observed during the Plata virtual tour that people in the cots do not have access

to any electric outlets, and as a result cannot have a fan, or entertainment such as a

television or other electronics at their cots, like others have on their bunks. 3 Multiple people also reported in interviews and in 1824s that they cannot maintain

necessary social distancing from other people not in their cohorts for two reasons: first,

because they are in the day room, the incarcerated people back in the dorms have to walk

near their cots to get to the phones, dayroom, and outside; and second, because they are not

allowed to have any property with them at the cots, their property is still stored at their

previous bunks, and every time they need to retrieve a personal item or a KOP medication,

they come within six feet of a cohort within the dorm. We have raised some of our concerns

regarding the social distancing on the cots under the Plata v. Newsom case.


Ms. Tamiya Davis




July 6, 2020

Page 4

3. The Failure of the 1824, Reasonable Accommodation Request, Process

There also appears to be breakdowns in the process for class members to request a

reasonable accommodation of not being moved to a cot, or to request that they be removed

from the cots.

First, as detailed in Appendix 1, people were not told what to do if they had

problems living on the cots.

Second, as detailed in Appendix 3, multiple people who we interviewed who are

experiencing problems on the cots said that they were scared to ask for an accommodation

or file an 1824 asking to move back to a bunk, because they have been threatened with a

write-up or with being sent to Administrative Segregation.

Third, when people actually filed 1824s regarding the cots, the RAP’s responses

were problematic. We found numerous RAP responses denying the requests for

accommodations would state that “the RAP is not the subject matter expert regarding bed

moves.” This is an inappropriate response – a request for a bed move due to the current

placement not accommodating a person’s disability falls squarely within the bailiwick of the

RAP. Additionally, we identified multiple problematic Disability Verification Process

reviews by health care staff, such as the one for Mr. , described on page 3.

See Appendix 4 for a listing of inappropriate 1824 responses.

We look forward to speaking with you soon.

Sincerely yours,

Corene Kendrick

Staff Attorney

cc: Co-Counsel

Ed Swanson, Court Expert

Nicholas Meyer, Erin Anderson, Alexander Powell, Amber Lopez,

[email protected], Patricia Ferguson (OLA)

Lois Welch, Steven Faris (OACC)

Adam Fouch, Teauna Miranda, Laurie Hoogland, Landon Bravo (DAI)


Ms. Tamiya Davis




July 6, 2020

Page 5

John Dovey, Vince Cullen, Don Meier, Laurene Payne, Ceasar Aguila, Samantha

Lawrence-Chastain, Olga Dobrynina, [email protected],

Alexandrea Tonis, Barbara Pires, Bruce Beland, Bryan McCloughan, Cathy

Jefferson, Ceasar Aguila, Cindy Flores, Dawn Malone-Stevens, Desiree Collum,

Donald Meier, Gently Armedo, John Dovey, Laurene Payne, Lynda Robinson, Ngoc

Vo, Robin Hart, Steven Blum, Joseph Williams (CCHCS)

Adriano Hrvatin, Joanna Hood, Damon McClain, Sean Lodholz (DOJ)

Annakarina De La Torre-Fennell (OAG)


Appendix 1: Failure to Consider Peoples’ Disabilities When Assigning Them To Cots

Reports regarding the failure to conduct individualized assessments prior to assigning

people to the cots include, but are not limited to the following class members:

Mr. , DLT, E , reported that people were assigned “randomly” to

the cots in the dayroom. He was told that he would be moved to the cot without any

explanation.

Mr. , DPM, E , reported that in April in E , the officers selected

every fourth bunk and told the persons living in them to move the cots.

Mr. , DNM, E , reported that he has been assigned to a cot in

the dayroom since June 1. He reported that when he was moved out to the day room,

a third watch officer did not ask him if he could be accommodated in a cot. The

officer also did not tell him what to do if he had problems when moved to the cot.

Mr. , DLT, E , reported that staff did not ask him if he could be

safely housed in a cot given his disabilities, nor what to do if he encountered

problems. He has been assigned to a cot for two months.

Mr. , DLT, DNH, E , reported that officers did not ask him if he

could be safely housed in a cot given his disabilities, nor what to do if he encountered

problems.

Mr. , DKD, E , said he had “no choice in the matter” about being

housed in the dayroom on a cot, and was not told how to request assistance if he had

problems being on the cot.

Mr. , DLT, E reported that there was no staff evaluation of his

ability to be assigned to a cot. He stated that the officers went through the dorm and

counted off every fourth or fifth bed and told that person to go move to a cot.

Mr. , DKD, E , reported that he was given no explanation as to

why he was being moved to the cots in the dayroom, nor was he told how he could

request an evaluation of the suitability of being on the cot.4

Mr. , DLT, DNH, E , reported that when he was assigned to the cot,

a sergeant told him to move. When he mentioned that a cot would be difficult for him

to use because of his disabilities, staff told him that it was an emergency situation and

he needed to move. He was not told how he might address his concerns.

Another person who has been sleeping on a cot for over a month in E-5 reported that

when he was ordered to go sleep on the cot, the officer did not ask him if or how he

could be accommodated in the cot, and did not explain what to do if he was not

accommodated. The class member said of the interaction, “it was more assertive. It

was an order, simple and plain.”

4 Mr. is monolingual Spanish speaking and said that there’s been little

information provided about coronavirus in Spanish.


Appendix 2: Accessibility Problems From Sleeping on Cots in Dayrooms

Representative examples of the lack of accessibility that class members have

encountered while living on the cots include, but are not limited to:

Mr. , DLT, E , reported he needs to use his cane to help get up

from the cot because it is so low to the ground. He said when he sits down or stands

up, the cot slides across the smooth concrete floor, causing a risk of falling.

Mr. , DNM, E , is 74 years old and said the cot “is like a

hammock, it’s terrible,” and that he wakes up every day with back and shoulder pain.

Mr. , DLT, E , reported the cot is uncomfortable because it dips

down in the middle. He has problems with his hips, back, and shoulders that are

exacerbated by the sagging cot. He reported that when he attempts to get out of the

cot he feels like “a turtle struggling to get off his back.” He attempted to flatten out

the cot by placing extra clothes in the middle, but it doesn’t help.

Mr. , DLT, DNH, E , said the cot makes his back hurt since it

bows in the middle. He said it is difficult to get up from the cot – he has to fling his

legs into the air to get momentum. He said that although he has tried to place things

underneath his legs to raise them (he has diabetes), he is unable to do so on the cot.

Mr. , no code, E- , (chronos for LB, orthopedic shoes, and knee

braces), filed an 1824 (E-20- ) on 4/24/20 reporting he had been reassigned to a

cot in the dayroom and that due to his height and his knee, ankle, and hand

limitations, he had difficulty getting out of the cot because it is so low to the ground.

Mr. , no code (no DME worksheet attached to the 1824), CCCMS,

E- , filed an 1824 (E-20- ) on 5/16/20 stating that on April 24, he was moved

to a “hammock-type cot that has no back support and causes me to sink into the cot

which triggers an asthma attack” because he is unable to breath, and his lungs need a

flat firm surface. He stated that he cannot lay on his side and breathe comfortably,

and that as he falls asleep, “I quickly wake up because my air is cut off which creates

a panic attack which results in an asthma attack.” He also notes that on May 1, 2020,

he spoke to Dr. who told him that it is a custody issue, but “Custody says

it’s a medical issue.” Mr. filed a second 1824 (E-20- ) on 5/31/20, again

reiterating his request for a flat surface.

Mr. , DLT, E , reported that the lights are on all the time, and it is

very noisy especially during the day. Staff say they are dimming the lights but there

are still four or five lights left on. He is having a very hard time on the cot – due to

his back problems (he’s awaiting surgery), he needs to sleep on a firm surface but the

cot sags. The cot is lower to the ground than the bunks.

Mr. , DNM, CCCMS, E- , filed an 1824 (E-20- ) on 5/4/20

stating that sleeping on the cot is causing back pain which affects his daily living.

Mr. , DKD, E , said the cot is “like a hammock” and difficult to

sleep on. It is causing a lot of back pain. He has dialysis for 3-/12 hours, three times

a week, and is exhausted after his treatments. Normally he would sleep much of the


day after a dialysis session, but since he’s been on the cots he can’t sleep during the

day because it is so loud due to everyone being in the day room and the television.

Mr. , DPO, DNH, E- , filed an 1824 (E-20- ) on 4/26/20,

stating that he had been told to move to a cot in the day room despite the fact that he

uses a wheelchair, there would not be space for his wheelchair, and there was no

electrical outlet for his CPAP machine. The 5/5/20 DVP by Dr. confirmed

he is DPO and needs outlets for his CPAP, but stated that “Patient is able to safely go

from sitting to standing from a wheelchair seat level surface.”

Mr. , no code (but he says in his 1824 he is on dialysis; he also has

DME chronos for canes, knee brace, walker, and a mobility impaired vest), , filed

an 1824 (E-20- ) on 4/24/20 stating that he had been designated to move to a cot,

and requesting that he not be moved to the cots because of his disabilities.

Mr. , DLT, DNH, E , reported that shortly after moving to the cots,

he submitted an 1824 about the difficulty using the cot. He said he has not received a

response. He reported that because of his low vision, he has almost tripped over the

cot and has almost fallen off the cot because he cannot see the edge of it. He also

reported that the middle of the cot sinks too low and hurts his back. In addition, he

finds it more difficult to get up out of the cot compared to his regular bunk.

Mr. , DKD, E , reports that it is colder on the cot than in the dorm.

He reported that when it is colder, his fistula hurts.

A class member in E-5 reported that it is difficult for him to get into and out of his

cot because the cot isn’t bolted to the floor and it slides across the floor. He also

reported that the cot dips in the middle, so he sinks into it when standing up or sitting

down. He reported that trying to sit down onto the cot causes him pain.

Mr. , DNM, CCCMS, E , filed an 1824 (E-20- ) that was

undated but stamped received on 4/29/20, that stated he is DNM and had knee

surgery, and stated that he was “being housed in the dayroom on a cot that’s not

stable” and it was causing him pain in his back and left knee.

Mr. , DPM, E- , filed an 1824 (E-20- ) on 5/24/20 stating that

he had a spinal fusion surgery and “cannot sleep on a flexible nylon cot” because it

“does not provide the support that I get from a frame with a mattress and an egg

crate,” and asked to be placed on a regular bunk. The DVP completed on 5/29/20 by

Dr. states that the “patient needs sleeping surface that allows for neutral

spinal positioning.” The RAP response dated 6/26/20 notes that Mr. was

moved to a lower bunk on 6/22/20 as a result of the review.

Mr. , no code (DME report not attached to 1824 that we received),

E , filed an 1824 (E- on 5/31/20, stating that he “can’t get out of the cot that they

put me on, I bearly [sic] fit in it, and can’t go to sleep due to it caved in like a taco,”

that he has arthritis in both knees and shoulders, and asks to return to his regularly

assigned bunk. The DVP report by Dr. dated 6/3/20, states that Mr.

“saw cardiology 5/28/20 unclear if patient’s heart function is stable with

deep squats or movements increasing introthoracic pressures.” The RAP response

dated 6/26/20 grants the appeal, and states he was moved to a lower bunk on 6/22/20.


Class members also raised concerns regarding the general conditions in the dayroom,

such as the noisiness and the brightness. They also described their inability to maintain a

six foot distance from other incarcerated people not in their cohorts.

Mr. , DLT, E , reported that when he was moved to the dayroom

cot, the person previously in the cot was moved to his bed in the dorm. His property

is still in the locker underneath the bunk in the dorms, and he has to enter that cohort

to retrieve personal property. He reported that people not in his cohort are “walking

all over,” including next to his cot. The three phones in the dayroom are only three

feet apart. All phones are typically in use, especially on free call days. On free call

days, people also line up or sit at the remaining tables in the dayroom while waiting

to make calls. Because the cots take up so much space, people cannot spread out, and

instead congregate in more concentrated groups near the phones. He reported that

movement in the dayroom is constant and noisy. Furthermore, unlike in the dorms

where the lights are dimmed at 9PM, only the dayroom lights nearest to the control

booth are turned off at night; in his area, “there’s no nighttime.”

Mr. , DNM, E , reported that he cannot maintain physical

distance from individuals in other cohorts. He also reported that the other three cots

within his cohort are only four hand-lengths (or three feet) apart – less than half of

the distance between bunks in the dorms.

Mr. , DLT, E , reported that he is assigned to a cot closest to the

dayroom. He reported that his cot is near the path of travel to and from the dayroom,

so frequently, people walk within six feet of his cot. He reported that the breakfast

line goes right by his cot.

Mr. , DLT, DNH, E , reported that he is in a cot closest to the

dayroom. He reported that “all day long” people walk within six feet of his cot in

order to get to and from the dayroom.

Mr. , DLT, E , reported that there are 15 cots in his day room

and the 15 people are unable to stay more than six feet apart from one another, nor

from the people who walk through to go to the day room.

Mr. , DKD, E , reported that his property and KOP meds are stored

at his old bed and locker, so when he needs to get stuff out of there, he has to get

within six feet of those cohorts.

Mr. , DLT, E , reported that his personal property and KOP meds

are in his locker amidst other cohorts, and he has to enter into that cohort area four to

five times a day to retrieve his medication and any needed personal property. The

cots in the day room are 3 feet apart, and they are told to sleep head-to-foot so then

they are supposedly six feet apart. Other people still living in the dorm section come

into the day room to watch TV, or to sit at the tables, or to go in and out of the

entrance. His cot is far enough away from the path of travel, but there are others in

his group who are “inches” from the people walking back and forth. The day room is

open from 8:30 to 4:30, so everyone can come and go during those times.


Mr. , DKD, E , reports that he has high blood pressure, and his

KOP medications are with his property in his locker. He has to go back to his old

bunk and be very close to those people when he gets the medicine. He said that some

of the cots in the day room are very close to the tables.

Mr. , no code, CCCMS, E , LB chrono, filed an 1824 (E-20-

) that was received on 4/27/20 stating that the cots in the day room were not six

feet apart, and that people needed to be spaced out more, including outside.

Mr. , DLT, DNH, E , reported that his cot is near the middle of the

dayroom. He reported that people often walk within less than six feet from his cot in

order to get to the dayroom. He reported that sometimes people bump into his cot,

making it difficult to sleep. He reported that he has difficulty sleeping because the

dayroom is noisier than the dorm where he used to live.

Mr. , DKD, E , reported that he is assigned to a cot toward the

back of the dayroom, near the desks. He said that ever since a TV was installed near

his bed, others who are not assigned to his cot area come within six feet of his bed in

order to watch the TV.


Appendix 3: Class Members’ Concerns About Asking for an Accommodation

Multiple class members were unwilling to be named regarding their concerns of

retaliation by receiving a RVR and/or being sent to Administrative Segregation, if they

requested an accommodation of being moved off the cot.

Mr. , DPM, E- , reported that he has been in Ad Seg since May 28,

2020, because he objected to being moved to a cot. He reported that when he was

housed at E- , officers ordered him to give up his bunk in the dorm section and

switch places with a person on a cot. Mr. told the officers that he cannot get up

and down off of a cot, as he uses a walker and has a bad back. He also said he told

the officers that he has recently had eye surgery, with more planned, and that having

the lights on all the time in the day room would be damaging to his eyes. He was

sent to Ad Seg for refusing an order. He reported that he is set to be released from

CDCR at the end of August, and would rather stay in Ad Seg until his release,

because he is sleeping on a bunk, and he thinks he is more protected from contracting

COVID-19 by living in a cell instead of the dorms or in a dayroom.

Mr. , DLT, E , reported that the officer who told him to move to

the cots previously sent several people to Ad Seg after they asked that their

disabilities be accommodated.

Mr. , DNM, E , reported that he feared refusing because one

person in the unit had already been sent to Ad Seg for refusing a move to the cots.

Another person sleeping on a cot in E-2 who did not want us to give his name stated

that he did not feel comfortable saying that he did not want to move because the

officer indicated to the incarcerated people that anyone who objected or refused

would be sent to administrative segregation. He said that has not filed an 1824 or

grievance asking for a move, because he did not want to sacrifice others having to

come to the cots; he wouldn’t want to “force someone else out on the floor, and take

their bunk like they took mine.” He finds the cots very uncomfortable, but described

the situation as “kind of like a catch-22.”

Mr. , DLT, E , has been on a cot for over two months, and

reported that he filed an emergency 602 about being on a cot, given his mobility

impairments, and requested to be moved back to his bunk. He stated that he wrote on

the 602 that he does not want retaliation. He said he was interviewed by Sgt.

about the 602 and she told him that “Sacramento ordered it.” He said that officers in

his unit tell people that if they complain about being on a cot, they will be charged

with refusing an order or trying to instigate a riot, and sent to Ad Seg or transferred to

a different prison. He is aware of at least four people who were sent to Ad Seg two

months ago when the cots were first brought out.

Another person in E-4 living on the cots said that officers threatened him and others

living on the cots with 115s if they complained about the conditions in the day room.


A third person living in a dayroom in E-4 said that he is afraid to tell anybody about

his problems with being on the cots because he doesn’t want to be transferred to

another prison.

A person living on a cot in E-5 who wanted to remain anonymous said that he was

ordered to move to a dayroom cot about a month ago. He told the officer he did not

want to move, but the officer said that if he refused, he would be issued a 115 and

moved to Ad Seg. The officer knew that the class member has an upcoming release

date, and said that if the class member refused, he would lose his release date. He

was particularly concerned because he knew of two other people with lower bunk

accommodations who had been sent to Ad Seg for refusing to move to the dayroom

cots.


Appendix 4: Inappropriate RAP Responses

We reviewed multiple 1824s that had inappropriate RAP or DVP responses.

Mr. , DNM, CCCMS, E- (E-20- ) that was undated but

stamped received on 4/29/20, requesting an accommodation and to be moved off the

cots. The RAP response, dated 5/27/20, denied the request for accommodation on

the basis that “the low bunk Chrono does not mean he has to be housed in a bunk,

rather that the sleeping surface has to not be elevated.”

Mr. , DPO, DNH, E- , filed an 1824 (E-20- ) on 4/26/20,

requesting an accommodation and to be moved off the cots. The RAP response,

dated 5/27/20, states that “[t]he RAP is not the subject matter expert regarding

neither anticipated action nor bed moves.”

Mr. , DNM, CCCMS, E- , filed an 1824 (E-20- ) on 5/4/20,

requesting an accommodation and to be moved off the cots. The DVP worksheet

dated 5/5/20 states that “patient is mistaken, the LB chrono does not mean he has to

be housed in a bunk, rather that the sleeping surface has to not be elevated.” The

RAP response, dated 6/1/20, denied the request that he be moved back.

Mr. , no code, E- , (chronos for LB, orthopedic shoes, and knee

braces), filed an 1824 (E-20- ) on 4/24/20, requesting an accommodation and to

be moved off the cots. The RAP rejected the appeal on the basis that “a lower bunk

chrono does not mean placement in a bunk, rather a sleeping surface that is not

elevated,” that he was “housed adequately in a lower tier and a lower bunk,” and that

“[t]he RAP is not the subject matter expert regarding bed moves.”

Mr. , no code (says in his 1824 he is on dialysis; he has chronos for

canes, knee brace, walker, and a mobility impaired vest), , filed an 1824 (E-20-

) on 4/24/20, requesting an accommodation and to be moved off the cots. The

RAP rejected the appeal on the basis that “a lower bunk chrono does not mean

placement in a bunk, rather a sleeping surface that is not elevated,” and that “[t]he

RAP is not the subject matter expert regarding bed moves.”

Mr. , no DPP code (note DME worksheet not attached), CCCMS,

E- , filed an 1824 (E-20- ) on 5/16/20, requesting an accommodation and to be

moved off the cots. The RAP response dated 6/16/20 states that “[t]he RAP is not

the subject matter expert regarding bed moves/classification issues.”

Mr. , DPW, DPH, CCMS, E- , filed an 1824 (E-20- ), on

4/24/20 stating he is DPW and would not be able to transfer in and out of a cot. He

asked to be able to stay in his bunk. The RAP response states that he is “requesting

an accommodation that he already has[,] and submitted [a] request for an anticipated

action,” and that “[t]he RAP is not the subject matter expert regarding bed moves.”

Mr. , DPW, E- , filed an 1824 (E-20- ), on 4/24/20, stating

that he is DPW and the policy of forcing people to go to cots was not considering his

disability and not a reasonable accommodation. The Disability Verification Process

form completed by P&S, PMR states that “Move to dayroom relates to


means [sic] to mitigate safety concerns relating to COVID. Patient mistaken lower

bunk chrono does not mean placement in a bunk rather a sleeping surface that is not

elevated and doe not specify bedding / bed components/arrangement. RAP is

requested to address accessibility concerns, not dayroom placement.” The RAP

response is that he is “requesting an accommodation that he already has[,] and

submitted [a] request for an anticipated action,” and that “[t]he RAP is not the subject

matter expert regarding bed moves.”

Mr. , DNM, DNH, filed an 1824 (E-20- ), on 6/1/20, stating

that he cannot bring himself to a sitting position out of his bunk without using a strap

attached to the upper bunk to help himself up, and that he should not be moved to a

cot in the day room. He requested to remain in his present lower bunk. Dr.

DVP dated 6/5/20 states that he “has difficulty with sit to stand transfers

from deep seated position such as from a cot with slinging surface.” The RAP

response dated 6/25/20 states that “[t]he RAP is not the subject matter expert

regarding anticipated actions,” and that “[p]er the DVP, Inmate will

continue to be housed in a lower bunk.”

Mr. , no code, CCCMS, E- , LB chrono, filed an 1824 (E-20-

) that was received on 4/27/20 stating that the cots in the day room were not six

feet apart, and that people needed to be spaced out more, including outside. He asked

that people be housed in the chapel. It is unclear if he was housed in a cot at the time

of filing. The RAP rejected the appeal, stating that “[t]he RAP is not the subject

matter expert regarding bed moves[,]” and that the “[d]ayroom placements are being

made to mitigate COVID 19 concerns as a safety measure.”

Mr. , DPM, DNH, E- , filed an 1824 (E-20- ) on 6/1/20 stating

that “custody wants to put me on a cot” despite his permanent disability and four

herniated back disks. He requested a chrono stating that he is permanently disabled.

The RAP rejected the appeal on the basis that he “continues to be housed in a lower

bunk and not a cot.”


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