Graves v. Penzone

          ORDER

          Neil V. Wake Senior United States District Judge

         Before the Court are the parties' proposed plans for Defendants to demonstrate compliance with the sole remaining requirement of the Revised Fourth Amended Judgment, which was entered on September 30, 2014. (Docs. 2497, 2498.) ^[1]

         Subparagraph (26) of Paragraph 5(a) of the Revised Fourth Amended Judgment states: “Defendants will adopt and implement a written policy requiring that mental health staff be consulted regarding discipline of any seriously mentally ill pretrial detainee.” (Doc. 2299 at 6.) On August 22, 2018, the Court found:

Defendants have generally shown compliance with subparagraph 5(a)(26), but not for consultation concerning disciplinary isolation. Defendants will be ordered to propose how they will demonstrate that before a seriously mentally ill pretrial detainee is placed in disciplinary isolation, CHS mental health staff are consulted and their recommendations addressing the potential effects of isolation on the pretrial detainee's mental health are received and considered.

(Doc. 2483 at 35.) The Court ordered Defendants to “file a proposed plan for demonstrating compliance with subparagraph (26) of Paragraph 5(a) of the Revised Fourth Amended Judgment concerning instances of disciplinary isolation.” (Id. 2483 at 39.)

         On January 15, 2019, the Court rejected Defendants' proposed plan for demonstrating compliance and directed Defendants to:

. . . come up with a process and contemporaneous record keeping that will show for a three-month period: all pretrial detainees for whom a DAR was issued for possible disciplinary isolation, which of them had been designated as seriously mentally ill, whether CHS mental health staff was consulted for each, the content of each consultation or recommendation, and whether disciplinary segregation was imposed or sanctions were suspended. The report should explain how sanctions proposed by MCSO were communicated to CHS, that consultations with CHS mental health staff occurred, and that recommendations by CHS mental health staff were considered by MCSO. The plan and the report pursuant to it should explain how these communications were documented and how the evidence of the communications was collected.

(Doc. 2493 at 8.) The Court reminded the parties that “the purpose of subparagraph 5(a)(26) was to articulate a minimum constitutional measure of disciplinary isolation of seriously mentally ill detainees.” (Id. at 7.) Defendants are not required to prove compliance with each term of their adopted policies and procedures, but must produce objective proof that mental health staff are consulted and such consultation reaches disciplinary decision-makers, at least as a general matter, before disciplinary isolation is imposed. (Id.)

         On May 3, 2019, after exchanging proposed plans and conferring, the parties filed separate proposals for demonstrating compliance. (Docs. 2497, 2498.) On May 16, 2019, the Court heard oral argument regarding the proposals. Upon consideration of the parties' briefing and additional information provided during oral argument, the Court will order a compliance plan through which Defendants will “demonstrate that before a seriously mentally ill pretrial detainee is placed in disciplinary isolation, CHS mental health staff are consulted and their recommendations addressing the potential effects of isolation on the pretrial detainee's mental health are received and considered.”

         IT IS THEREFORE ORDERED that:

         1. The MCSO Hearing Unit will collect all DARs created in April, May, and June 2019 for detainees designated SMI or MHCC that resulted in the detainee being placed in disciplinary isolation.

         2. The MCSO Hearing Unit will collect the email communications between CHS mental health staff and MCSO regarding each of the DARs created in April, May, and June 2019 for detainees designated SMI or MHCC that resulted in the detainee being placed in disciplinary isolation.

         3. The MCSO Hearing Unit will collect the consultation/override forms documenting final determinations made by the Custody Bureau Hearing Unit Commander.

         4. Defendants will produce to Plaintiffs all DARs created in April, May, and June 2019 for detainees designated SMI or MHCC that resulted in the detainee being placed in disciplinary isolation with the related email communications ...