[00:00:01] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:03] Speaker 04:
Deputy Attorney General George Morris on behalf of the defendant and the appellate.

[00:00:08] Speaker 03:
Please don't tell me this is easy.

[00:00:11] Speaker 04:
I think nothing about this case is easy.

[00:00:14] Speaker 04:
But I will say that the appeal is somewhat straightforward in the sense that the Court had ordered the defendants to create a treatment plan for the CDCR's inpatient psychiatric programs.

[00:00:30] Speaker 04:
These treatments plan required minimum standards to be established.

[00:00:34] Speaker 04:
Now, these patients in the psychiatric inpatient program have the most severe mental illnesses and often pose the greatest safety and security risks.

[00:00:46] Speaker 04:
Indeed, patients who are in the next level down, which is the enhanced outpatient program that cannot tolerate 10 hours of structured treatment, are often referred to the inpatient program.

[00:01:00] Speaker 04:
Now, defendant's plan did have minimum treatment frequencies for interdisciplinary treatment meetings, for psychiatric contacts, primary clinician contacts, and out of cell activities.

[00:01:15] Speaker 03:
So I think, will you assert that the district court's reliance on prior orders adopting the special master's report is, I think you call it misplaced?

[00:01:28] Speaker 03:
the district court entitled to rely on the prior orders and special master's report in this rather lengthy remedial proceeding?

[00:01:38] Speaker 04:
Well, Your Honor, because there are no prior orders that either the court or plaintiffs have pointed to that address the situation.

[00:01:46] Speaker 04:
What we are dealing with here is treatment for these very specific psychiatric inpatients.

[00:01:56] Speaker 04:
And there have been no orders that have established a minimum number of hours that need to be provided.

[00:02:03] Speaker 04:
There are no orders that address whether or not set number of hours would even improve care.

[00:02:11] Speaker 04:
So there's nothing in the court's prior orders that it can rely on to justify the injunction here.

[00:02:18] Speaker 04:
There's nothing in the court's prior orders that performs the required PLRA analysis.

[00:02:25] Speaker 04:
the need, narrowness, and intrusive analysis here.

[00:02:29] Speaker 04:
Instead, the court just imposed the 20-hour minimum.

[00:02:32] Speaker 02:
You don't think there were any extensive factual findings in this case?

[00:02:35] Speaker 02:
Saying there's actually nothing in this case that's been litigated for three decades seems hyperbolic.

[00:02:42] Speaker 02:
Yes.

[00:02:43] Speaker 02:
Thank you.

[00:02:46] Speaker 04:
Your Honor, there were no factual findings that went to the remedy.

[00:02:52] Speaker 04:
in this case.

[00:02:53] Speaker 04:
While there were factual findings that the special master had found that there was inadequate treatment at times, that there was also

[00:03:04] Speaker 04:
marginally adequate.

[00:03:06] Speaker 04:
There's various findings by the special master, but what I'm saying is in the court's order, there are no specific findings that go to the actual remedy that the court imposed.

[00:03:16] Speaker 03:
Well, okay.

[00:03:17] Speaker 03:
If we determine that the district court may rely on its prior orders and the special master's report, have you shown that they do not support the August 2023 order?

[00:03:30] Speaker 03:
The record reflects you offered defendant's expert declaration, but did you challenge any of the specifics in the special master's report?

[00:03:41] Speaker 04:
Well, again, so the special master's report, it talked about inadequacy in different forms.

[00:03:50] Speaker 04:
So the hours requirement is just but one metric in which the special master was looking at this.

[00:03:58] Speaker 04:
So in looking at whether or not the care, and this is what we're talking about here.

[00:04:03] Speaker 04:
We're talking about the treatment that is to be provided to these inpatient programs.

[00:04:09] Speaker 04:
We're trying to figure out how to best provide that treatment and how to best analyze whether or not that treatment is being provided.

[00:04:17] Speaker 03:
Well, and why you might be entitled to some deferential treatment at some point because running a prison

[00:04:23] Speaker 03:
is different than running like a state hospital for, you know, a hospital or something.

[00:04:29] Speaker 03:
But your expert asserts that inpatient care should be based on personalized assessments and individualized treatment plans.

[00:04:37] Speaker 03:
Does this mean that courts cannot or should not set a minimum level of healthcare for inmates in, I guess what they call them, the PIPs or the PIPs?

[00:04:48] Speaker 04:
Well, not to say that the court has no authority to do

[00:04:52] Speaker 04:
to set minimum requirements.

[00:04:55] Speaker 04:
But what we're talking about here and what the court did was set a 20-hour minimum treatment requirement.

[00:05:02] Speaker 04:
And that is not, and there were no findings by the court to justify those 20 hours.

[00:05:10] Speaker 04:
The court didn't rely on any of the party's evidence.

[00:05:12] Speaker 04:
It didn't cite any of the party's evidence and came up with the 20 hours essentially on its own.

[00:05:18] Speaker 04:
And that's not something that the PLRA permits.

[00:05:22] Speaker 04:
The court has to do the work.

[00:05:23] Speaker 04:
It has to perform the need, narrowness, intrusiveness inquiry here.

[00:05:28] Speaker 04:
And that just wasn't done.

[00:05:29] Speaker 03:
But are you saying the court cannot set any minimum requirement?

[00:05:34] Speaker 04:
In this case, for the particular inpatient, the standard of care is individualized assessment and treatment.

[00:05:43] Speaker 03:
So you want total 100% deference to what you say the inmates need?

[00:05:48] Speaker 04:
Well, it's not what I say.

[00:05:49] Speaker 04:
It is what the clinicians and the experts and the national standard and the program guide, which is very important here, the program guide, which was developed by the parties, the special master, and approved by the court.

[00:06:02] Speaker 04:
The program guide sets no minimum standards for these particular patients.

[00:06:07] Speaker 04:
And in fact, the program guide says, again, for patients at the other level, if they can't handle 10 hours of structured treatment,

[00:06:16] Speaker 04:
then they would refer to the inpatient treatment.

[00:06:19] Speaker 03:
So does the state go along with some of these for a while, though?

[00:06:24] Speaker 04:
I'm sorry, Your Honor.

[00:06:24] Speaker 03:
Did the state go along with this 20 hours for a certain period of time, not contest it?

[00:06:30] Speaker 04:
No, Your Honor.

[00:06:31] Speaker 04:
The state has never, well, let me, CDCR, which is the entity that was required or had the injunction imposed upon it,

[00:06:42] Speaker 04:
has never agreed to the 20 hours.

[00:06:44] Speaker 00:
Judge Graber, I'm sorry.

[00:06:46] Speaker 00:
Yeah, I was looking at ER 10 and the court makes reference there to a program operating under a process that in relevant part includes the minimum treatment standard measurement requiring that patients be offered 20 hours of treatment per week and so on.

[00:07:04] Speaker 00:
So I don't understand

[00:07:08] Speaker 00:
your statement that there is no reference in the record to 20 hours other than that the court somehow made it up.

[00:07:19] Speaker 00:
I don't really understand that argument.

[00:07:21] Speaker 04:
Well, Your Honor, I did not mean to say that the court completely made it up, but what the court did not do is make any findings that showed that

[00:07:30] Speaker 04:
20 hours was necessary, was the most narrow and least intrusive.

[00:07:36] Speaker 04:
Now, the reference to the 28th... Oh, wait.

[00:07:39] Speaker 00:
Does the court have to use those magic words?

[00:07:42] Speaker 00:
I mean, it's talking about the court... All stakeholders agree, and this court has found that the minimum treatment standards are adequate.

[00:07:51] Speaker 00:
So why isn't that enough to say that's

[00:07:57] Speaker 00:
That's adequate is not like fabulous.

[00:08:01] Speaker 00:
That's sort of what is necessary to deal with it.

[00:08:05] Speaker 00:
So is something more required that says I have looked at this, and it's not only adequate, but it's the only thing that's adequate?

[00:08:18] Speaker 04:
Well, Your Honor, that finding related to DHS, the Department of State Hospitals,

[00:08:23] Speaker 04:
not to CDCR.

[00:08:25] Speaker 04:
So that is a very important distinction here.

[00:08:27] Speaker 04:
The DSH, the Department of State Hospitals, is a different entity.

[00:08:32] Speaker 00:
Right.

[00:08:32] Speaker 00:
And the court says there's no reason to conclude that different standards should govern inpatient programs administered by CDCR.

[00:08:40] Speaker 00:
And I guess, what is the reason it should be different?

[00:08:47] Speaker 04:
That's a point that we have made in our briefing and would like to say now because

[00:08:51] Speaker 04:
That was just a conclusory statement by the court, unsupported by any findings.

[00:08:57] Speaker 04:
There is reason to differentiate between Department of State Hospitals, DHS, and CDCR.

[00:09:04] Speaker 04:
And that is because they treat different types of patients in different treatment environments.

[00:09:12] Speaker 04:
The Department of State Hospitals, they do not take the most acute, ill patients that CDCR has to treat.

[00:09:20] Speaker 00:
They also don't take certain... But it seems like you would need more than 20 hours, not less.

[00:09:27] Speaker 00:
What you're telling me is that the patients are worse off and yet they need less time?

[00:09:33] Speaker 00:
I mean, that seems to be the argument and that doesn't...

[00:09:37] Speaker 04:
While that might seem counterintuitive, we are talking about a specific group of patients here who are, again, the most psychotic and need the most individualized care.

[00:09:48] Speaker 04:
There's nothing that shows that more hours is going to solve their problems.

[00:09:53] Speaker 04:
Instead, it has to be more focused on individualized care.

[00:09:57] Speaker 04:
Again, that's what the program guide, which the plaintiffs and the special master and everybody agreed, there's no minimums in the inpatient program for that very reason.

[00:10:09] Speaker 04:
And the outpatients who get 10 hours, when they can't handle those 10 hours,

[00:10:16] Speaker 04:
They get referred to the inpatient.

[00:10:18] Speaker 04:
So both the program guide and the national standards all establish that it's not more hours that these patients necessarily need.

[00:10:26] Speaker 04:
It's more focused and individualized care.

[00:10:30] Speaker 03:
Okay, so what's the status of the relationship between the defendants, which you represent, and the special master?

[00:10:38] Speaker 03:
And are the defendants complying with the August 2023 order?

[00:10:45] Speaker 04:
The current status of that is that the defendants have put a plan in place.

[00:10:51] Speaker 04:
There was a meet and confer process with the plaintiffs.

[00:10:54] Speaker 04:
Plaintiffs disagreed about the scope of what the court's August 23 order says and actually moved for clarification in the district court.

[00:11:07] Speaker 03:
But as to your relationship, you can present this to the special master, right?

[00:11:13] Speaker 04:
Present what, Your Honor?

[00:11:14] Speaker 03:
Well, what the proposals that you're, the changes, you can talk to the special master about what you're proposing, right?

[00:11:23] Speaker 04:
In the, like, from, as a result of the August 20-23 order?

[00:11:29] Speaker 03:
Well, I don't know.

[00:11:30] Speaker 03:
I'm, that's what, are you complying with August 20-23?

[00:11:32] Speaker 04:
Where we're at right now is, well, we've, like I said, we have put, developed a plan that the plaintiffs have disputed, right?

[00:11:43] Speaker 04:
Is that compliance?

[00:11:44] Speaker 04:
So it's not really, the issue here and why we're here on appeal is because these are 20 hours that are ordered.

[00:11:51] Speaker 04:
And so there's no room for negotiation with a special master based upon the court order that offer 20.

[00:11:59] Speaker 04:
And I will say that for DSH, which we've also- Okay, so that's in effect.

[00:12:02] Speaker 03:
You're saying that's in effect.

[00:12:04] Speaker 03:
You can't do that.

[00:12:05] Speaker 03:
So you're not complying with August, 2023.

[00:12:08] Speaker 03:
So what do you want us to do here?

[00:12:11] Speaker 04:
Well, this this what we'd like here is for a reversal of the order because, again, there were no pillar findings that established that the 20 hour minimum.

[00:12:22] Speaker 04:
was necessary.

[00:12:25] Speaker 03:
Well, when you say that the district court, if I want to go back to the hyperbolic, you say the district court didn't consider the PLRA.

[00:12:34] Speaker 03:
The district court talked about it, so the district court maybe didn't give it your interpretation of the PLRA, but to say that the district court didn't consider

[00:12:45] Speaker 04:
Your Honor, I'm sorry if I misspoke and to say that it didn't consider it because they... Well, didn't you say something like that, like the district court ignored that?

[00:12:53] Speaker 04:
Did not follow its mandate.

[00:12:54] Speaker 04:
That I agree with.

[00:12:55] Speaker 04:
It does lay out the standard.

[00:12:56] Speaker 04:
The district court did recognize that it had the obligation and the duty to perform the need and narrowness intrusive standard, but the order does not reflect that that analysis was done.

[00:13:06] Speaker 03:
So you want us to say the district court was wrong.

[00:13:09] Speaker 03:
What should the district court have done?

[00:13:10] Speaker 04:
The district court should have considered

[00:13:13] Speaker 04:
all the evidence before it and presented specific findings about why 20 hours, why 20 hours is the constitutional minimum, why it's 20 hours that is required and not, for example, the court invited the US Department of Justice to weigh in and while the US Department of Justice says, I don't really know CDCR's inner workings here, but what I can say is there's been some cases where we have done

[00:13:41] Speaker 04:
consent decrees based on patient assessment.

[00:13:44] Speaker 04:
We've also done 10 hours.

[00:13:46] Speaker 04:
So we don't even have any discussion or consideration of anything less than 20 hours.

[00:13:51] Speaker 02:
Why can't the district court rely on the record that was before it?

[00:13:54] Speaker 02:
You have an extensive record of going through so many years and so much extensive litigation.

[00:14:02] Speaker 02:
There's nothing in the Ninth Circuit law that requires the district court to make extensive findings in this instance, right?

[00:14:08] Speaker 04:
well this is a specific 20 hours right so if this was just something like you know the the something broader but here to remedy what is.

[00:14:19] Speaker 04:
not just the, these are findings from the special master that says inadequate.

[00:14:24] Speaker 04:
But again, that's just, the hours is just a piece of it.

[00:14:27] Speaker 04:
There's other issues, there's staffing issues, there's other issues that are presented here.

[00:14:31] Speaker 02:
But why couldn't the district court rely on the special master's extensive findings?

[00:14:36] Speaker 02:
I understand that your experts may disagree with that, but how is that abuse of discretion?

[00:14:41] Speaker 04:
Because the special master has never made any findings that 20 hours, a 20 hour minimum,

[00:14:47] Speaker 04:
is the constitutional floor for treatment.

[00:14:51] Speaker 04:
And as a matter of fact, the special master is the one who recommended that these plans get put in place.

[00:14:57] Speaker 04:
And the recommendation says nothing about you have to set a certain number of hours.

[00:15:02] Speaker 04:
It just said you have to establish minimum treatment standards.

[00:15:05] Speaker 04:
And I think that reflects the fact that there are many issues, not just the amount of hours, but there is other aspects that need to be addressed that just simply is not addressed by slapping a 20-hour minimum requirement.

[00:15:18] Speaker 04:
And so the special master never made findings that 20 hours is required.

[00:15:24] Speaker 04:
And so the court, there's nothing for the court to rely on in a special master's findings that would justify its 20 hour minimum requirement.

[00:15:33] Speaker 04:
And that is, again, we have the program guide, which is the remedial document in this case.

[00:15:42] Speaker 04:
And that document does not require any set number of hours for the inpatient programs.

[00:15:47] Speaker 04:
And again, I know we keep going back to this, but it does reflect that patients who cannot tolerate 10 hours of structured treatment get referred to the PIPs.

[00:15:58] Speaker 04:
And that's, again, based upon the understanding that that treatment has to be individualized.

[00:16:04] Speaker 04:
It has to be based on individual assessments.

[00:16:06] Speaker 04:
And there's no way just slapping a minimum hour requirement is necessarily going to improve care.

[00:16:13] Speaker 02:
Can we touch on your security concerns?

[00:16:15] Speaker 02:
If the district court previously allowed treatment while patients were secured in cages, why wouldn't that accommodate any security concerns you have?

[00:16:25] Speaker 04:
Well, what we talked about with security concerns, that's in the comparison to the DSH hospitals, where they don't have the same security concerns.

[00:16:35] Speaker 02:
They have- But they also have levels of security, don't they?

[00:16:39] Speaker 02:
Those hospitals, because they're often treating incarcerated inmates.

[00:16:42] Speaker 02:
Are they not?

[00:16:43] Speaker 04:
They are.

[00:16:44] Speaker 04:
But at the most here, we have the intermediate level, which allows all of the patients, even the incarcerated patients, to live in an open dorm, kind of open mall setting.

[00:16:57] Speaker 04:
And that is just simply not the case with CDCR.

[00:17:00] Speaker 04:
And really, the important part about that is,

[00:17:06] Speaker 04:
DSH who, again, they were not court ordered to provide these 20 hours.

[00:17:11] Speaker 04:
They voluntarily provided them or offered to have them provided because of their unique set of patients and their treatment environment.

[00:17:20] Speaker 04:
They were able to at least aspire to this 20 hour goal.

[00:17:25] Speaker 04:
But the difference here is that CDCR just does not have that same flexibility in terms of having patients that can

[00:17:33] Speaker 04:
interact on a regular basis with other inmates or patients, or the ability to sort of travel around and go from a different treatment environment or classroom environment.

[00:17:47] Speaker 02:
Was it the DSH also ordered to develop the same standards?

[00:17:51] Speaker 04:
They were ordered to come up with a CEQA process.

[00:17:56] Speaker 04:
So it's a quality improvement process.

[00:17:59] Speaker 04:
Now, that was not nearly the same as what happened here.

[00:18:03] Speaker 04:
That was come up with a process, and so DSH did that.

[00:18:10] Speaker 04:
And as a part of that, DSH decided, given its patient population and its treatment environment.

[00:18:17] Speaker 02:
What's the specific security concern with the 20 hours?

[00:18:21] Speaker 04:
The specific concern, it's not necessarily that there's a security concern with the 20 hours.

[00:18:28] Speaker 04:
It's that these patients,

[00:18:31] Speaker 04:
who have the most severe mental illness and who sometimes do have the most safety and security risks, they simply don't utilize or it's not clinically indicated for them to have the 20 hours.

[00:18:48] Speaker 04:
And so these patients

[00:18:51] Speaker 04:
are just, they're a completely different set of, well, not completely different set, but there is a very big difference between the DA's, DA's of patients.

[00:19:00] Speaker 03:
Well, is it possible that you can lose here because you haven't shown an abuse of discretion and that you didn't really adequately, I mean, you want the district court to believe you're expert and that you didn't accurately talk the district court out of the,

[00:19:19] Speaker 03:
by your detail of what the special master report said, is it possible, I mean, you could mount a challenge in the future, but that you didn't make it here.

[00:19:28] Speaker 04:
I don't believe that's correct, Your Honor, because again, I do think that we show that there's a use of discretion.

[00:19:34] Speaker 03:
Well, I know.

[00:19:35] Speaker 03:
But let's say we don't.

[00:19:38] Speaker 03:
Are you forever, it's that you didn't make it here.

[00:19:41] Speaker 03:
Isn't it possible you could still attack the special master's findings?

[00:19:48] Speaker 03:
and possibly at some point erode on them.

[00:19:52] Speaker 04:
Well, again, the special master's findings was just the sort of piece of the puzzle.

[00:19:55] Speaker 04:
What we have to be concerned about here is the district court's order, which requires the 20 hours.

[00:20:00] Speaker 04:
And that was, again, the hours requirement came up, and that was based upon the district court.

[00:20:07] Speaker 03:
But if we found that you didn't carry your burden here and you didn't show an abuse of discretion, I don't think that precludes in the future that you might be able to challenge it.

[00:20:19] Speaker 03:
But I've taken you over time.

[00:20:20] Speaker 03:
Let me find out if my colleagues have any questions.

[00:20:25] Speaker 03:
They don't.

[00:20:26] Speaker 03:
So you really actually have no rebuttal time, but I'll give you two minutes.

[00:20:29] Speaker 03:
I appreciate that.

[00:20:30] Speaker 03:
Thank you.

[00:20:43] Speaker 03:
Good morning again, I think.

[00:20:44] Speaker 01:
Good morning.

[00:20:46] Speaker 01:
Yes, it's still morning.

[00:20:47] Speaker 01:
Good morning again.

[00:20:48] Speaker 01:
I am Lisa Ells.

[00:20:49] Speaker 01:
I represent the point of class, who are appellees.

[00:20:54] Speaker 01:
In the face of uncontested findings that treatment levels in the PIPs are woefully inadequate, the district court here tried repeatedly to defer to the state to fix the problems without further intervention, but deference failed.

[00:21:09] Speaker 01:
After a decade of findings of deep entrenched problems in the PIPs, the special master finally in 2021 recommended that the state be required to develop minimum treatment standards.

[00:21:21] Speaker 01:
Not only did the state not say those standards were unnecessary, they agreed to implement them voluntarily.

[00:21:29] Speaker 01:
But then they never did.

[00:21:30] Speaker 01:
And even then, and even as the special master

[00:21:34] Speaker 01:
specifically linked the ongoing violations in the PIPs to the lack of minimum treatment standards, the District Court again deferred in 2022.

[00:21:44] Speaker 01:
Finally, after deference failed, the District Court, consistent with the mandate in PLATA in the Supreme Court, finally acted to effectuate the rights of the plaintiff class and required development of a minimum treatment standard.

[00:22:00] Speaker 01:
But the state submitted a manifestly non-compliant proposal that contained no minimum whatsoever for structured therapeutic treatment, much less a plan for implementing and measuring compliance.

[00:22:13] Speaker 01:
The district court, who knows this record better than any of us ever will, did not abuse its discretion in rejecting that plan, finding that it would have only maintained the unacceptable status quo of unconstitutional conditions in the PIPs, whereas the special master has found in report after report

[00:22:33] Speaker 01:
Treatment is driven by resource limitations, not by individual patient need, and individual treatment planning and delivery does not exist.

[00:22:44] Speaker 01:
Instead, the district court reasonably looked to the audit standards that the other defendant in this case, Department of State Hospitals, developed for the specific purpose of implementing a durable, constitutionally adequate

[00:23:00] Speaker 01:
program in its state hospitals for the exact same levels of care and the exact same patients as the ones we're talking about today.

[00:23:09] Speaker 01:
The district court correctly found there was no meaningful difference between DSH and CDCR for the purposes of the minimums that DSH selected and the state has identified none today.

[00:23:21] Speaker 01:
DSH standards mandate that every patient be offered 20 hours of weekly therapeutic structured treatment unless their clinicians say they need less.

[00:23:32] Speaker 02:
But how is a 20 hour requirement individualized care?

[00:23:36] Speaker 01:
So the program guide, well, two things.

[00:23:40] Speaker 01:
So first of all, it does require a minimum.

[00:23:43] Speaker 01:
So it requires more than the operative remedial plan, which is the program guide.

[00:23:48] Speaker 01:
The program guide provided for no minimum treatment levels.

[00:23:52] Speaker 01:
And over the course of 20 years, we have discovered the program guide has failed to remediate the violations in this case.

[00:23:59] Speaker 01:
And that's why the district court and the special master recommended the development of minimum treatment standards.

[00:24:05] Speaker 01:
because the lack of any standards in the program guide for this structured therapeutic treatment has failed to remediate the violations under the Armstrong 2014.

[00:24:14] Speaker 02:
That's still not an answer to the question.

[00:24:16] Speaker 01:
How is that individualized, a required 20 hours?

[00:24:20] Speaker 01:
First of all, it's required to be offered.

[00:24:23] Speaker 01:
Patients can always refuse treatment.

[00:24:25] Speaker 01:
Second of all, the clinicians that work in these places, if they find that a patient, for example, is too ill to engage in 20 hours of treatment, they're allowed to offer less.

[00:24:36] Speaker 01:
They just have to document why that is, why it's clinically appropriate to do that.

[00:24:41] Speaker 01:
and then they have to work with the patient to engage in more therapy.

[00:24:44] Speaker 01:
That is the purpose of an inpatient program.

[00:24:47] Speaker 01:
Third, there is individualized treatment planning within the 20 hours.

[00:24:52] Speaker 01:
So the program guide requires, and we all agree it's appropriate, that care should be individualized.

[00:24:57] Speaker 01:
That means that, for instance, within these 20 hours, the state has provided the opportunity to provide and offer only individual therapy sessions, only group therapy sessions,

[00:25:10] Speaker 01:
within the 10 hours of course and also they're allowed to design whatever sort of treatment modalities they want to use if they want if it's appropriate for this individual patient to provide for instance anger management clinicians are provided the opportunity to you know to provide that but but the problem in the pips today is that

[00:25:31] Speaker 03:
It's a fiction, individualized treatment planning of the type that... But if we affirm the district court, are we saying there's a constitutional right to 20 hours?

[00:25:43] Speaker 01:
No, Your Honor.

[00:25:44] Speaker 01:
This court has made very clear, and the Supreme Court in Plata has made clear, that the remedy evolves within the context of the case.

[00:25:53] Speaker 01:
So in this particular case, with the decades of noncompliance, with managing this extremely complicated remedial plan,

[00:26:01] Speaker 01:
The court has looked at the other program that treats the exact same patients at the exact same levels of care, which it chose to provide 20 hours of structured therapeutic treatment a week, downward departures allowed where appropriate for clinical reasons.

[00:26:18] Speaker 01:
And it said, there is no difference.

[00:26:20] Speaker 00:
And moreover, the... Can I ask a variant, I think, of the question that Judge Callahan just asked?

[00:26:30] Speaker 00:
Because the other program was developed voluntarily, 20 hours may be more than the constitutional minimum.

[00:26:41] Speaker 00:
And I guess that's the one question I have.

[00:26:44] Speaker 00:
20 hours is adequate, but what if 15 were the smallest number that would render the care adequate?

[00:26:57] Speaker 00:
You know, maybe this doesn't seem like a big thing, these numbers of hours, but it does seem rather arbitrary to say that one of the defendants came up with this on their own, and therefore it's the constitutional minimum.

[00:27:16] Speaker 01:
So a few things, Your Honor.

[00:27:18] Speaker 01:
First of all, the Supreme Court in Plata and Graves, Melendrez, and other Armstrong cases in this court make very clear that the district court did not need to specify that there's an exact match between the constitutional floor and the remedy imposed.

[00:27:39] Speaker 01:
What is required according to the plot of Supreme Court decision is to ensure a fit between the remedy's ends and the means chosen.

[00:27:47] Speaker 01:
In Graves, this court described that requirement as just being satisfied that the distance between the constitutional violation and the remedy is not so far apart as to be illogical or without support in the record.

[00:28:01] Speaker 01:
There is clearly support in the record.

[00:28:03] Speaker 01:
In addition to the DSH,

[00:28:05] Speaker 01:
Audit requirements, plaintiff's evidence, including expert evidence, fully substantiated that 20 hours is appropriate.

[00:28:14] Speaker 01:
That is what we asked for, and that is what the court ordered.

[00:28:18] Speaker 02:
Do you think that's the constitutional minimum in this case?

[00:28:21] Speaker 01:
I think, so again, the remedy evolves within the context of the case.

[00:28:26] Speaker 01:
The court has ruled that a less intrusive remedy that provides for no minimums is

[00:28:34] Speaker 01:
is not appropriate and will not remediate the violations.

[00:28:38] Speaker 01:
It then found that this is an appropriate proxy because 20 hours- So that's a yes?

[00:28:44] Speaker 02:
Is that a yes?

[00:28:45] Speaker 01:
It is, within the context of this case, it is appropriate to remediate the constitutional violations.

[00:28:52] Speaker 00:
But that's very, you know, you're very careful in your answer because there is no way to tell if 15 would have been enough.

[00:29:02] Speaker 00:
I guess it just seems incredibly arbitrary to me to say that 20 is what you wanted, 20 is what the other defendant voluntarily chose.

[00:29:17] Speaker 00:
But the court's job, I think, is to figure out what is the minimum that would remedy

[00:29:25] Speaker 00:
in this situation.

[00:29:27] Speaker 00:
I mean, 50 hours might have been better, but that's a lot.

[00:29:31] Speaker 00:
So we're dealing with, and I know that between 15 and 20 seems small, but it represents a huge amount of resource differential.

[00:29:44] Speaker 00:
And so my concern is how we figure out or how the district court figured out that that is what is necessary

[00:29:54] Speaker 00:
not merely appropriate, but necessary to remedy the violation.

[00:29:58] Speaker 00:
And I understand that the court clearly said having no minimum is a no-go.

[00:30:04] Speaker 00:
I'm fine with that.

[00:30:05] Speaker 00:
That was pretty clear.

[00:30:06] Speaker 00:
But picking this number seems to me rather out of thin air.

[00:30:14] Speaker 01:
Your Honor, I would direct you to a couple of things.

[00:30:16] Speaker 01:
The first is the specific context in which the Department of State Hospitals elected

[00:30:22] Speaker 01:
20 hours as the appropriate remedial minimum for those programs.

[00:30:28] Speaker 01:
In 2017, the court ordered DSH to develop a CQIT program in order to impose standards and figure out if they were being met.

[00:30:39] Speaker 01:
that would effectuate the constitutional remedy.

[00:30:42] Speaker 01:
So it was chosen in a very specific context, and it was chosen for the purpose of remediating the violations.

[00:30:48] Speaker 03:
Well, I guess what my concern, a little bit like what Judge Graber said.

[00:30:53] Speaker 03:
OK, but we're looking at this for abuse of discretion.

[00:30:56] Speaker 03:
So I'm trying to look at it from the standpoint.

[00:30:59] Speaker 03:
And I think I said to the state that when they said the judge didn't consider the PRLA, I think the record belies that.

[00:31:08] Speaker 03:
But abusive discretion is a fairly, it would have been the defendants would have to show that the judge abused the discretion.

[00:31:17] Speaker 03:
There was evidence in the record about the 20 hours and all of that.

[00:31:23] Speaker 03:
But I guess my concern, like what Judge Graber said, if they had done better on the record here,

[00:31:33] Speaker 03:
Is there a way to assail that 20 hours in the future?

[00:31:37] Speaker 03:
I have concerns about if maybe there was no abuse of discretion on this record, but maybe there could be on a better record by the defendants.

[00:31:49] Speaker 03:
Can that never happen?

[00:31:53] Speaker 01:
So, so two things for the record that was developed here.

[00:31:57] Speaker 01:
Well, I'll get to your second question first, because it's very simple.

[00:32:00] Speaker 01:
Yes, a rule 60 motion, just like in the last appeal would be appropriate here if the state can establish that some change circumstances warrant reducing the number of hours.

[00:32:10] Speaker 01:
But to your first point, which is a continuation of the question that Judge Graber had.

[00:32:15] Speaker 01:
The Supreme Court and this court in the Armstrong 2014 case very clearly said that if the state has a different proposal, it has to establish that it would be equally effective at remediating the violations.

[00:32:30] Speaker 01:
The state did not propose 15 hours.

[00:32:33] Speaker 01:
The state provided no minimum whatsoever.

[00:32:36] Speaker 01:
So that's what we're talking about here.

[00:32:38] Speaker 01:
Plaintiff's evidence and the DSH standards requiring flexible minimums of 20 hours

[00:32:44] Speaker 01:
unless not clinically appropriate.

[00:32:47] Speaker 01:
And on the other hand, no minimum whatsoever, which would just maintain the unconstitutional status quo.

[00:32:54] Speaker 01:
So for the same reason that the Plata Court in the Supreme Court, so the court there was looking at a minimum percentage of crowding reduction.

[00:33:07] Speaker 01:
The state refused to put forth any number whatsoever and just said no reduction is appropriate.

[00:33:14] Speaker 01:
And we put forth evidence saying 145 percent was appropriate.

[00:33:18] Speaker 01:
And the court essentially looked at their evidence and said, you've given me nothing to work with.

[00:33:23] Speaker 01:
I can't defer to that.

[00:33:25] Speaker 01:
And similarly here, the state is not asking for a different lower set minimum.

[00:33:33] Speaker 01:
It is asking for no minimum.

[00:33:35] Speaker 01:
And the court did not abuse its discretion based on this record and its leadership of this case, this extremely complicated case for the last 20 years.

[00:33:45] Speaker 01:
Again, the court knows this record better than any of us ever will.

[00:33:50] Speaker 01:
It has lived with this case and managed this extremely complicated remediation for 20 years.

[00:33:56] Speaker 01:
And there is no abuse of discretion.

[00:33:58] Speaker 01:
The court, I mean, excuse me, the state points to none.

[00:34:02] Speaker 01:
I'd like to address the point that DSH is somehow different.

[00:34:07] Speaker 01:
It's simply not.

[00:34:09] Speaker 01:
The court made a factual finding that this court reviews for clear error that there's no meaningful distinction between DSH and CDCR for the purposes of this 20-hour minimum.

[00:34:21] Speaker 01:
So to be clear, there's no evidence showing that there's any difference between these patients.

[00:34:26] Speaker 01:
The levels of care provided in the hospital at DSH are the same levels of care that are provided in the PIPs.

[00:34:34] Speaker 01:
And the DSH hospitals do take acutely ill and even violent patients.

[00:34:40] Speaker 01:
They take people who are by definition violent and treat them, including sexually violent predators.

[00:34:46] Speaker 01:
And they also treat MDOs, mentally disordered offenders, who are by definition violent.

[00:34:51] Speaker 01:
That is how they are committed on the basis of their violence.

[00:34:54] Speaker 01:
So, to say that there's no way to treat these patients within CDCR is just illogical, and it's not supported by the record.

[00:35:05] Speaker 01:
And more importantly, this court has accepted that even where— This 20 hours doesn't mean they have to see a psychiatrist for 20 hours.

[00:35:15] Speaker 01:
No.

[00:35:17] Speaker 01:
No.

[00:35:17] Speaker 03:
There's no— That just seems impossible.

[00:35:19] Speaker 01:
Your Honor, there were separate minimums proposed for psychiatric contract frequencies.

[00:35:25] Speaker 01:
in the PIPs as part of the other parts of their plan, and we didn't object to those.

[00:35:30] Speaker 01:
So no, it's nowhere near 20 hours.

[00:35:32] Speaker 02:
Don't you think it's a little bit conclusory?

[00:35:34] Speaker 02:
The district court just said there's no reason to conclude different standards should govern the inpatient programs administered by CDCR, and that's about the extent.

[00:35:44] Speaker 02:
Shouldn't it have looked a little bit more deeply into whether there would be any differences between DSH and CDCR that would have required perhaps a different standard?

[00:35:54] Speaker 01:
Well, again, Your Honor, the court knows the record very, very well in the special master's findings.

[00:35:59] Speaker 01:
But more importantly, the state hasn't ever identified in the district court or this court any meaningful difference.

[00:36:05] Speaker 01:
What they've said is that these are different patients, that they're more violent, that they're more complicated.

[00:36:11] Speaker 01:
And none of that is true.

[00:36:12] Speaker 01:
And none of it is borne out by the record.

[00:36:14] Speaker 01:
The state needs to show clear error with that statement.

[00:36:17] Speaker 01:
And they have no evidence.

[00:36:19] Speaker 01:
And they don't even have any argument about why that is actually a clearly erroneous statement.

[00:36:24] Speaker 01:
and moreover manifestly it is true.

[00:36:27] Speaker 01:
And the other thing I would say is that even in CDCR's outpatient.

[00:36:30] Speaker 03:
Let's say we agree that on this record the state did not meet its burden to show that.

[00:36:42] Speaker 03:
I guess on a better record, I mean can they make a better record and show that or are we giving you on a silver platter

[00:36:54] Speaker 03:
If you don't get 20 hours, it's a constitutional violation.

[00:36:59] Speaker 01:
Well, Your Honor, I mean, they had the opportunity to present evidence and even to articulate something here.

[00:37:03] Speaker 03:
So are you saying they can never attack that again?

[00:37:05] Speaker 01:
No, they're allowed to bring a motion to modify if there is a basis.

[00:37:11] Speaker 03:
But for now, we are giving you on a silver platter 20 hours is a constitutional violation.

[00:37:17] Speaker 01:
You are affirming a very careful district court decision that is owed deference from this court.

[00:37:23] Speaker 01:
for its oversight of this extremely complicated remedial plan.

[00:37:28] Speaker 01:
And in the context of that plan, it found that 20 hours is the appropriate minimum requirement for treatment in the PIPs, which are undisputably unconstitutional right now.

[00:37:39] Speaker 01:
And in that context, 20 hours is the constitutional minimum.

[00:37:43] Speaker 01:
And that was what was required

[00:37:44] Speaker 01:
to be mapping to the constitutional violation in this context under grades.

[00:37:50] Speaker 03:
How close was the state to complying with the 2023 order?

[00:37:55] Speaker 03:
Did they do anything?

[00:37:57] Speaker 01:
Well, the 2023 order is the first time that requirement was established.

[00:38:03] Speaker 01:
The state represented that they've rolled out a policy.

[00:38:08] Speaker 01:
In fact, they have not.

[00:38:10] Speaker 01:
There is no policy in place right now.

[00:38:12] Speaker 01:
That's a separate issue.

[00:38:14] Speaker 01:
But there is no policy in place that complies with the obligations of this order.

[00:38:21] Speaker 01:
And there is a pending motion to clarify the scope of that order in the district court that doesn't affect anything that we're talking about here.

[00:38:31] Speaker 01:
But it is a misstatement by the state that they have imposed that or that they have implemented this requirement.

[00:38:40] Speaker 01:
The only other thing that I would like to point out here is a couple of very important findings that provide the basis for this court's, I'm sorry, for the district court's findings.

[00:38:53] Speaker 01:
The first is that the court had already found that

[00:39:00] Speaker 01:
that 10 hours would not be adequate treatment in the inpatient programs.

[00:39:05] Speaker 01:
The state has never contested that.

[00:39:08] Speaker 01:
So that's a baseline threshold.

[00:39:10] Speaker 01:
And the special master made a specific factual finding that the state did not object to, that the lack of minimum treatment standards in the PIPs

[00:39:20] Speaker 01:
was precipitating the ongoing violations.

[00:39:24] Speaker 01:
And that's at ER 478.

[00:39:27] Speaker 01:
And that was just months before this order issued.

[00:39:31] Speaker 01:
And again, the state didn't object to that finding or say that it was wrong.

[00:39:35] Speaker 01:
And finally, I just would like to point out that the district court made a number of factual findings that the state's plan, which lacked any specific objective or verifiable standards, would not provide any basis to provide the care that the program guide requires, which requires

[00:40:00] Speaker 01:
offering inpatient program patients varied treatment to assess their needs.

[00:40:06] Speaker 01:
It needs to be intensive.

[00:40:08] Speaker 01:
And with the lack of any minimum standards, that could never happen.

[00:40:12] Speaker 01:
There's no clear error with that holding.

[00:40:15] Speaker 01:
Similarly, as we all know, standards drive resources.

[00:40:19] Speaker 01:
The PIPs are currently drastically understaffed.

[00:40:22] Speaker 01:
They are under-resourced, and care cannot be provided.

[00:40:26] Speaker 01:
because there is nothing to guide the planning or the resources that are directed in the PIPs.

[00:40:32] Speaker 01:
A minimum provides a target for that that approaches constitutional compliance and would remediate the violations.

[00:40:39] Speaker 01:
Those are clear error review.

[00:40:41] Speaker 01:
The state here points out no error with any of that.

[00:40:45] Speaker 01:
So in this context where we have a complex remedy that the district court has been overseeing for decades at this point,

[00:40:54] Speaker 01:
and in the face of these uncontested violations that minimum standards are necessary, which the state has conceded, there is no abuse of discretion in setting 20 hours as the minimum threshold when the other state hospital employs the exact same standard for the exact same patients at the exact same levels of care.

[00:41:13] Speaker 01:
Thank you.

[00:41:14] Speaker 03:
Thank you.

[00:41:18] Speaker 03:
All right, you have two minutes.

[00:41:25] Speaker 04:
The state's plan did not have minimum standards because that is what the program guide that was developed by the parties and the special master established was the standard for inpatient care, where there were hour requirements that was stated elsewhere, but it's not in the program guide.

[00:41:43] Speaker 03:
So did you give the district court the choice of zero hours and 20?

[00:41:48] Speaker 04:
So it is not a matter of zero hours, because that sort of misconstrues what's happening here.

[00:41:53] Speaker 04:
It is individualized treatment, which the record shows these patients are not receiving zero hours of treatment.

[00:42:00] Speaker 04:
They are receiving care, but it is individualized, which is exactly how care needs to be provided for these patients.

[00:42:06] Speaker 03:
But you've been repeatedly told that what you're doing is not enough, and then what you're saying, your individualized plan as it presently is being implemented is enough.

[00:42:16] Speaker 04:
What we have been told is not that your hours are not enough.

[00:42:19] Speaker 04:
And it is incorrect that there was any findings that there was a minimum number of 10 hours that needed to be provided for inpatient care.

[00:42:26] Speaker 04:
That does not exist.

[00:42:27] Speaker 04:
If that happened, that would have been in the special master's recommendation.

[00:42:30] Speaker 04:
That would have been in the court's order.

[00:42:32] Speaker 04:
That does not exist.

[00:42:34] Speaker 04:
And so if the court wanted to change the individualized treatment plan that was in the program guide, then it was incumbent upon the court to do that.

[00:42:43] Speaker 04:
It had to make specific PLRA findings.

[00:42:46] Speaker 04:
which it did not do here.

[00:42:47] Speaker 04:
And that, you were talking about an abuse of discretion, not following the PLRA, not making those specific findings is an abuse of- Well, if the court had followed the PLRA, what would the answer be?

[00:42:58] Speaker 03:
Could the court have gotten to 20 hours?

[00:43:01] Speaker 04:
That I don't know, because the court did not do its job.

[00:43:04] Speaker 04:
It did not make any findings about that a minimum was even necessary, let alone the 20 hours.

[00:43:10] Speaker 04:
As Judge Graber said, 20 hours, it could be something else.

[00:43:13] Speaker 04:
It could be 15, but it is not

[00:43:15] Speaker 04:
the state's burden to establish a better record, it was the court's obligation to establish that it had specific findings that 20 hours was the constitutional minimum of care.

[00:43:28] Speaker 04:
The court did not do that here.

[00:43:30] Speaker 04:
It needs to be remanded and reversed to go back for the court to actually justify the 20 hours if it is going to deviate from the program guide, which has been in place by the parties and the special master for years.

[00:43:41] Speaker 03:
Okay, thank you for both of your arguments.

[00:43:45] Speaker 03:
And this matter will be submitted, and the court is in recess until tomorrow at 9 AM.