DONALD SPECTER RITA K. LOMIO · 7/20/2020 · 4. In addition to the high risk spreadsheet and an...

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Case No. C94 2307 CW

DECLARATION OF GAY CROSTHWAIT GRUNFELD IN SUPPORT OF PLAINTIFFS’ MOTION TO PROTECT

ARMSTRONG CLASS MEMBERS DURING COVID-19 PANDEMIC – REDACTED

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 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 GAY CROSTHWAIT GRUNFELD IN SUPPORT OF PLAINTIFFS’ MOTION TO PROTECT ARMSTRONG CLASS MEMBERS DURING COVID-19 PANDEMIC

Judge: Hon. Claudia Wilken Crtrm: TBD

REDACTED

Case 4:94-cv-02307-CW Document 2996-4 Filed 07/14/20 of 13

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1 Case No. C94 2307 CW DECLARATION OF GAY CROSTHWAIT GRUNFELD IN SUPPORT OF PLAINTIFFS’ MOTION TO PROTECT

ARMSTRONG CLASS MEMBERS DURING COVID-19 PANDEMIC

I, Gay Crosthwait Grunfeld, declare:

1. I am an attorney duly admitted to practice before this Court. I am a partner

in the law firm of Rosen Bien Galvan & Grunfeld LLP (“RBGG”), counsel of record for

Plaintiffs. I have personal knowledge of the facts set forth herein, and if called as a

witness, I could competently so testify. I make this declaration in support of Plaintiffs’

Motion to Protect Armstrong Class Members During COVID-19 Pandemic.

2. I have represented the Plaintiff class in the above-captioned case since 2005.

My law firm is also counsel for the Plaintiff Class in the mental health class action,

Coleman v. Newsom, No. 90-520 KJM (E.D. Cal.). I am generally familiar with the data

produced to Plaintiffs’ counsel by CDCR regarding Armstrong and Coleman class

members.

3. On or about June 22, 2020, my RBGG colleague Marc Shinn Krantz

received an email from Steve Fama at the Prison Law Office containing an Excel

workbook named “PLO High Risk Population 20200608.xlsx” (“high risk spreadsheet”).

As described in greater detail in the Declaration of Ernest Galvan filed herewith, the high

risk spreadsheet describes persons the California Correctional Health Services Corporation

(“CCHCS” or the “Receiver”) has concluded have 1 or more COVID-19 risk factors, plus

persons who are 50 years or older. The high risk spreadsheet contains demographic and

medical data for all persons incarcerated in CDCR who are at increased risk of serious

illness from COVID-19.

4. In addition to the high risk spreadsheet and an updated version of it we

received on July 2, 2020, I asked paralegals working under my supervision to review the

DECS reports for disability codes, electronic medical records maintained by CCHCS,

housing movement reports generated by Defendants, and the DPP-DDP Designated Bed

Attributes spreadsheet or Housing Matrix (“housing matrix”), received by Plaintiffs on

July 13, 2020, for each of the class members discussed below. The purpose of this record

review was to determine as best we can how long class members with disabilities

impacting placement have been kept in inaccessible placements even after they have been


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cleared from quarantine or otherwise determined to be negative for COVID-19. What

follows is a summary of the record review.

5. , is a 61-year old Coleman and Armstrong class

member with serious medical conditions. He is at the Correctional Clinical Case

Management System (“CCCMS”) level of mental health care. He has a disability code of

DPM, which means he cannot walk long distances without an assistive device and can only

be housed on the ground floor with no stairs. He uses the following Durable Medical

Equipment (“DME”) to help with his disability: walkers, a mobility disability vest,

eyeglass frames, and a truss hernia support.

6. Mr. has been diagnosed with blood cancer (multiple myeloma). Due

to his anemia and a low-white blood cell count, he is also described as immunosuppressed.

The high risk spreadsheet indicates that Mr. has a COVID-19 risk level of 4.

7. According to the Housing History Report produced by Defendants on

June 15, 2020 (“housing report”), Mr. previously lived in Joshua Hall on Facility A.

The housing report indicates that staff transferred him to Mariposa Hall on May 10, 2020,

which according to the housing matrix is inaccessible to DPM class members. A review of

Mr. ’ medical records indicate that Mr. was tested for COVID-19 on May 8,

2020. On or around May 10, 2020, his test results came back positive and staff moved him

to a quarantine housing unit, which would be Mariposa Hall according to the housing

report.

8. The housing report shows that Mr. remained inaccessibly housed in

Mariposa Hall until June 1, 2020, when he transferred to Cleveland Hall, another

inaccessible housing unit on CIM’s Facility A. In Plaintiffs’ counsel’s review of the

medical records, there is no indication as to when medical staff determined Mr. was

“clinically resolved” or recovered from COVID-19. There is also no indication as to why

he moved to Cleveland Hall, while supposedly still under quarantine.

9. The medical records show that although Mr. was asymptomatic, he

remained inaccessibly housed and on quarantine status throughout the month of June. A


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June 22, 2020 note between medical providers suggests that Mr. remained on

quarantine status because his whole unit was on quarantine. Yet according to that same

note, nursing staff cleared Mr. to go to an offsite hematology/oncology appointment

for his cancer treatment on June 23, 2020. As of July 1, 2020, the most recent DECS

report produced to Plaintiffs’ counsel, Mr. remained inaccessibly housed in

Cleveland Hall on CIM’s Facility A—54 days after staff first tested him for COVID-19 on

May 8, 2020.

10. , , is a 58-year old Coleman and Armstrong class

member. Mr. is at the Correctional Clinical Case Management System (“CCCMS”)

level of mental health care. He has a disability code of DPO, which means he is an

intermittent wheelchair user. He can only be housed on the ground floor with no stairs.

He uses the following DME to help with his disability: a wheelchair, gloves and a

cushion, foot orthoses, compression stockings, therapeutic shoes, and a mobility disability

vest. According to his medical records, Mr. was designated as DPM until June 2,

2020, when staff changed his disability code to DPO. Although Mr. was not verified

as DPO until June 2, 2020, medical records indicate that he began using a wheelchair as

early as April 2, 2020. Mr. suffers from cardiovascular disease (“CVD”), high blood

pressure, leg edema, and acid reflux. The high risk spreadsheet indicates that Mr. has

a COVID-19 risk level of 1.

11. According to the DECS report received by Plaintiffs on April 2, 2020,

Mr. originally lived in Elm Hall on Facility D at CIM. On April 21, 2020, Mr.

was transferred to Colusa on Facility C, a building the housing matrix indicates is

inaccessible to wheelchair users. Medical records indicate that on April 21, 2020,

Mr. submitted a Form 7362 “Request for Health Care Services” stating that he was

experiencing body chills. Medical staff saw him in response to his request and conducted

a COVID-19 test. Mr. was put under quarantine status pending results of his

COVID-19 test. He was moved to Colusa, cell on Facility C, that same day.

According to his medical records, Mr. moved to Colusa due to his status as a


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wheelchair user, after being cleared by “Custody Administrative heads.” According to the

housing report, Mr. remained inaccessibly housed on Colusa until May 1, 2020,

when he transferred to another inaccessible building, West Dorm, on Facility D. There is

no indication in the medical records as to why Mr. was moved to another inaccessible

building while he was still under quarantine.

12. On May 3, 2020, medical records show that Mr. tested negative for

COVID-19. He remained inaccessibly housed on West Dorm for another four days. On

May 7, 2020, his physician determined him to be resolved clinically and discharged him

from quarantine status.

13. The housing report indicates that staff then moved Mr. twice after they

discharged him from quarantine. On May 7, 2020, he moved to Willow and then on

May 16, 2020, he moved a second time to Magnolia. There is no indication in the medical

records as to why Mr. moved twice in nine days. It is unclear whether staff decided

to move him for a medical or custodial reason. Although both Willow and Magnolia are

accessible housing units on Facility D, Mr. ’s seemingly random movement—both

while under quarantine and after being discharged— suggests that Defendants have little to

no plan to house Armstrong class members with impacting placement codes during this

pandemic.

14. As of July 1, 2020, the most recent DECS report produced to Plaintiffs’

counsel, Mr. remained in Magnolia on CIM’s Facility D. An updated version of the

high risk spreadsheet that CDCR produced to Plaintiffs on or around July 2, 2020, includes

information about the Earliest Possible Release Date (“ERPD”) for class members. The

spreadsheet lists Mr. ’s expected release date from CDCR to be July 15, 2020.

15. , , is a 74-year old Armstrong class member housed at

CIM. He has a disability code of DPM, which means he cannot walk long distances

without an assistive device and can only be housed on the ground floor with no stairs. He

uses the following DME to help with his disability: walkers, a cane, therapeutic shoes,

eyeglass frames, and a mobility disability vest. Mr. has a number of serious


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medical conditions. He has Type II diabetes, severe cardiovascular issues (coronary artery

disease and aortic valve stenosis), high blood pressure, and a history of liver cirrhosis,

Hepatitis C, prostate cancer, and anemia. The high risk spreadsheet indicates that

Mr. has a COVID-19 risk level of 9.


Mr. previously lived in Joshua Hall on Facility A, a building accessible for his

mobility disability. According to the housing report, on April 30, 2020, staff transferred

him to Colusa on Facility C, a housing unit that is inaccessible for Mr. ’s disability.

17. Medical records show that on the morning of April 30, 2020, Mr. was

vomiting and experiencing diarrhea. A physician ordered a Nasal Swab to test Mr.

for COVID-19 and staff transferred him that same day to Colusa under quarantine status.

On or around May 4, 2020, Mr. ’s test results came back negative, but he remained

in Colusa under COVID-19 surveillance rounds for ten more days. On May 14, 2020, his

primary care physician determined that Mr. , who had exhibited no new or

worsening symptoms of COVID-19, could be cleared for discharge from quarantine-status.

18. The housing report shows that on May 14, 2020—the same day medical had

cleared him from quarantine status—Mr. moved to Butte, a building which the

housing matrix indicates is inaccessible to DPM class members. He remained in Butte

until May 27, 2020. Instead of transferring Mr. to a housing unit that could

accommodate his disability needs, the housing report indicates that staff then moved him

to Del Norte, another inaccessible building on Facility C. Mr. remained there until

June 9, 2020, when he was transferred once again back to Butte. In Plaintiffs’ counsel’s

review of the medical records, there is no indication as to why Mr. moved to two

separate, inaccessible housing units, even after staff cleared him from quarantine status on

May 14, 2020. There is no indication in the medical records as to why he did not return to

Joshua Hall.

19. On June 12, 2020, around 12:45 p.m., medical records indicate that

Mr. was found in his cell in Butte lying on the ground next to the toilet. Records


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show he had fallen when trying to use the bathroom. He had vomited in the process and he

soon lost consciousness. Mr. was transported to an outside hospital, Chino Valley

Medical center, where staff found that he was having heart-related complications. On

June 23, 2020 and July 3, 2020, two separate tests from outside medical facilities revealed

that Mr. was positive for COVID-19.

20. Mr. reported to Plaintiffs’ counsel that he had not showered for 42

consecutive days because he was being held in inaccessible locations without grab bars or

a shower chair or bench. See Declaration of Rita Lomio in Support of Plaintiffs’ Motion to

Protect Armstrong Class Members During COVID-19 Pandemic (“Lomio Decl.”), filed

herewith under seal, ¶ 8 & Ex. F. On June 11, 2020, Plaintiffs informed Defendants of this

issue, but never received a response. Id. ¶17. After his doctor cleared Mr. from

quarantine on May 14, 2020, Mr. remained inaccessibly housed for a total of 29

days before he fell and transferred to an outside hospital.

21. As of July 13, 2020, the medical records indicate that Mr. remains in

an outside hospital.


member with serious medical conditions. Mr. is at the Correctional Clinical Case

Management System (“CCCMS”) level of mental health care. He has a disability code of

DPO, which means he is an intermittent wheelchair user and can only be housed on the

ground floor with no stairs. He uses the following DME to help with his disability: a

wheelchair, ankle foot/knee ankle foot orthoses, knee braces, foot orthoses, therapeutic

shoes, and a mobility disability vest. Mr. has advanced liver disease,

cardiovascular disease (hypertension), and dyslipidemia. He is also pre-diabetic and

Hepatitis-C positive. The high risk spreadsheet indicates that Mr. has a COVID-19

risk factor of 2.

23. According to the housing report, Mr. previously lived in Joshua Hall

on Facility A. The housing report indicates that on May 10, 2020 staff transferred him to

Mariposa Hall, a building inaccessible to wheelchair users. A review of Mr. ’s


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medical records indicate that he was experiencing chills and tightness in his chest in early

May 2020. Staff performed a swab test on Mr. on May 8, 2020 and he tested

positive for COVID-19 on or around May 10, 2020. On May 10, 2020, he was moved to

quarantine housing after his positive tests results. Mr. was apparently

asymptomatic for the rest of his time under quarantine.

24. On May 14, 2020, medical records indicate that Mr. ’s physician

evaluated him, determined him “recovered,” and removed him from the physician

COVID-19 rounds. According to the housing report, Mr. remained inaccessibly

housed in Mariposa Hall until June 1, 2020, when he was transferred to Cleveland Hall,

another inaccessible housing unit on CIM’s Facility A. In Plaintiffs’ counsel’s review of

the medical records, there is no indication as to why Mr. remained in Mariposa

Hall, or why instead of being transferred back to Joshua Hall, staff moved him to another

inaccessible housing unit.

25. As of July 1, 2020, the most recent DECS report produced to Plaintiffs’

counsel, Mr. remained inaccessibly housed in Cleveland Hall on CIM’s

Facility A— 48 days after staff determined him “recovered” from COVID-19 on May 14,

2020.


member. Mr. is at the Correctional Clinical Case Management System

(“CCCMS”) level of mental health care. He has a disability code of DPM, which means

he cannot walk long distances without an assistive device and can only be housed on the

ground floor with no stairs. He uses the following DME to help with his disability: a

walker, cane, therapeutic shoes, and a mobility disability vest. Mr. also requires

a C-PAP Machine and incontinence supplies. Mr. is immunosuppressed and

suffers from seizures, obstructive sleep apnea (“OSA”), and dyslipidemia. The high risk

spreadsheet indicates that Mr. has a COVID-19 risk level of 3.


Mr. previously lived in Joshua Hall on Facility A. The housing report indicates


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that on May 14, 2020, staff transferred to CIM’s hospital/Out-Patient

Housing Unit (“OHU”), where he resided until May 20, 2020.

28. A review of Mr. ’s medical records indicates that he originally

tested negative for COVID-19 on May 8, 2020, but was experiencing chills, headache and

malaise a few days later. Staff completed another COVID-19 swab on May 14, 2020 and

Mr. ’s results came back positive on or around May 18, 2020. According to his

records, staff were originally planning to transfer Mr. to Colusa on Facility C,

which is a housing unit not designated for DPM class members. They instead housed him

in the OHU, due to his ADA status and the fact that he needed supplemental oxygenation

for COVID-related respiratory issues.

29. The housing report for Mr. shows that on May 20, 2020, staff

decided to move him to a non-accessible cell in Colusa. A medical note from May 15,

2020, indicates that staff originally considered his discharge from OHU housing to Cedar

Hall, which would have been accessible to Mr. . A later physician note, dated

May 23, 2020, states that it was determined his DPM status could be accommodated in

Colusa. The medical records do not indicate how staff came to this conclusion.

30. The housing report indicates that Mr. remained inaccessibly

housed in Colusa until he moved twice within Facility C, once to Del Norte on May 31,

2020, and again to Butte on June 9, 2020. Both Del Norte and Butte are inaccessible

housing units. The medical records show that on May 30, 2020, a day before

Mr. transferred to Del Norte, his case of COVID-19 was determined clinically

resolved. In Plaintiffs’ review of the medical records, there is no indication as to why staff

subsequently moved Mr. to Del Norte on May 31, 2020, and then again to Butte

on June 9, 2020. There is also no indication as to why staff did not transfer Mr.

to a housing unit able to accommodate his disability needs after they considered him

recovered from COVID-19.

31. Mr. reported to Plaintiffs’ counsel on June 10, 2020 that he was

struggling to shower while housed in Butte. He informed Plaintiffs’ counsel that he


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believed staff would soon transfer him back to Joshua Hall. As of July 1, 2020, the most

recent DECS report produced to Plaintiffs’ counsel, Mr. remained inaccessibly

housed in Butte on CIM’s Facility C— 32 days after staff determined him “recovered”

from COVID-19 on May 30, 2020.


member. Mr. is at the Correctional Clinical Case Management System

(“CCCMS”) level of mental health care. He has a disability code of DPM, which means

he cannot walk long distances without an assistive device and can only be housed on the

ground floor with no stairs. He uses the following DME to help with his disability:

walkers and a mobility disability vest.

33. According to the high risk spreadsheet, Mr. suffers from the

following health conditions that increase his risk of serious illness from COVID-19:

cardiovascular diseases (hypertension and ischemic heart disease). The high risk

spreadsheet indicates that Mr. has a COVID-19 risk factor of 1.


Mr. previously lived in Alder on Facility D. The housing report indicates that on

April 6, 2020, staff transferred Mr. to Colusa on Facility C, a housing unit

inaccessible to DPM class members.

35. A review of Mr. ’s medical records indicate that he was placed on

quarantine status on March 29, 2020. On April 6, 2020, medical staff completed a

COVID-19 test after Mr. had developed a fever of 100 degrees Fahrenheit. The

notes indicate that orders were given that same day to transfer Mr. to C-Yard for

quarantine due to possible COVID-19 symptoms. On or around April 9, 2020,

Mr. tested positive for COVID-19. On April 13, 2020, Mr. experienced

symptoms of tachypnea (shortness of breath) and staff transported him to the emergency

room at Riverside University Health System medical center. Hospital staff discharged him

back to CIM the same day, with recommendations to continue to monitor his symptoms.


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36. According to the housing report, Mr. moved again to Cedar Hall on

Facility D, an accessible housing unit, on April 14, 2020. Medical records suggest this

move occurred after his return from the emergency room. There is no indication in the

medical records as to why staff moved Mr. while still under quarantine.

37. On April 22, 2020, medical staff determined Mr. to have recovered

from COVID-19 after sixteen days of quarantine with no new or worsening symptoms.

Plaintiffs’ counsel’s review of the housing report shows that Mr. was moved an

additional seven times despite no longer being quarantined. During this approximate 40-

day period, Mr. moved to both inaccessible and accessible housing units on

CIM’s D Facility.

38. The housing report shows that Mr. remained in Cedar Hall until

April 27, 2020, when he moved to an inaccessible cell in West Dorm. He stayed in West

Dorm for two days, but moved again on April 29, 2020 to Oak Hall, another inaccessible

housing unit. He remained in Oak Hall until May 1, 2020, when staff moved him a third

time to Willow, an accessible housing unit. Mr. stayed in Willow until May 23,

2020, when staff moved him a fourth time to Elm Hall. On that same day, he moved a

fifth time to Cedar Hall. On May 26, 2020, he was inaccessibly housed again in Oak Hall

until June 4, 2020, when he returned to Cedar Hall.

39. In Plaintiffs’ counsel’s review of the medical records, there is no indication

as to why on April 27, 2020, staff first moved Mr. , cleared from quarantine five

days prior, from Cedar Hall (an accessible building) to West Dorm (an inaccessible

building). There is also no indication as to the reason why, throughout the month of May,

staff then moved Mr. again, multiple times.

40. Plaintiffs’ counsel reviewed a May 26, 2020 medical note regarding

Mr. , who, according to the housing report, resided in an inaccessible cell in Oak

Hall at the time. The note indicated that Mr. had been inadvertently moved to a

designated isolation dorm in Facility D on May 26, 2020, despite medical staff having

cleared him from quarantine on April 22, 2020. After staff documented this error in


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Mr. ’s medical records, it took an additional nine days for them to move

Mr. back to Cedar Hall, an accessible building, on June 4, 2020.

41. Mr. was housed inaccessibly for a total of 13 days after staff

determined him “recovered” from COVID-19 on April 22, 2020.

42. , , is a 68-year old Armstrong class member with

serious medical conditions. He has a disability code of DPO, which means he is an

intermittent wheelchair user. He can only be housed on the ground floor with no stairs.

He uses the following DME to help with his disability: a wheelchair, gloves and a cushion,

a mobility disability vest, and a truss hernia support. He has chronic obstructive

pulmonary disease (“COPD”), cardiovascular disease, and dyslipidemia. He currently

takes blood thinners related to his heart problems. The high risk spreadsheet indicates that

Mr. has a COVID-19 risk factor of 8.

43. According to the housing report, Mr. previously lived in Joshua

Hall on Facility A. Mr. ’s medical records show that medical staff performed a

COVID-19 test on Mr. on or around May 8, 2020. On or around May 11, 2020,

Mr. tested positive for the virus and staff transferred him to a quarantine unit.

According to the housing report, this unit would have been Mariposa Hall, a building

unable to accommodate wheelchair users. Mr. was asymptomatic for the virus

until May 17, 2020, when he started exhibiting a mild cough and headache.

44. The housing report shows that Mr. remained housed in Mariposa

Hall until May 22, 2020. Mr. reported to Plaintiffs’ counsel that while he was in

Mariposa, he had great difficulty showering and standing up from the toilet, because there

were no grab bars and it was too low to the ground.

45. Medical records indicate that on May 22, 2020, Mr. transferred out

of Mariposa Hall to the emergency room at a local hospital, after experiencing respiratory

issues and decreased oxygenation. Mr. returned from the emergency room that

same day on May 22, 2020. Hospital staff determined he had pneumonia-like symptoms

possibly related to COVID-19.


[3575729.31

1 46. Medical records show that Mr. continued to experience decreased

2 oxygenation after he returned from the outside hospital. Staff moved him to CIM's

3 Hospital/Out-Patient Housing Unit ("OHU") shortly thereafter so that he could better

4 receive a higher level of care needed to monitor his oxygen saturation levels. Medical

5 records indicate that Mr. again transferred to an outside hospital on May 28,

6 2020 due to his respiratory issues. Mr. remained housed at the local hospital for

7 almost three weeks while medical staff continued to monitor his oxygen levels. He

8 returned to CIM and was placed in OHU housing on June 11, 2020.

9 47. The medical records show that on June 18, 2020, after five days of stable

10 oxygenation and no fever, Mr. 's physician took him off quarantine status and

11 discharged him to the yard. Yet Mr. remained isolated in the OHU for another

12 twelve days because there were no ADA-accessible beds available to him on Facility A.

13 Medical records indicate that Mr. only moved back to Joshua Hall on Facility A

14 on July 1, 2020. On June 29, 2020, medical staff documented a Form 7362 "Request for

15 Health Care Services" that Mr. wrote a few days prior. On the Form 7362,

16 Mr. wrote that he believed he was being housed in CIM's OHU "against his

17 will." Mr. submitted a declaration in support of this Motion stating that the

18 OHU "cells [he] stayed in did not have grab bars near the toilets and the sinks were placed

19 too high to use from [his] wheelchair." See Declaration of , ,r 9.

20 Mr. remained housed in the OHU, a restrictive housing setting, 12 days after

21 staff cleared him from quarantine on June 18, 2020.

22 I declare under penalty of perjury under the laws of the United States of America

23 that the foregoing is true and correct, and that this declaration is executed at San Francisco,

24 California this 14th day of July, 2020.

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DECLARATION OF GAY CROSTHWAIT GRUNFELD IN SUPPORT OF PLAINTIFFS' MOTION TO PROTECT ARMSTRONG CLASS MEMBERS DURING COVID-19 PANDEMIC


DONALD SPECTER RITA K. LOMIO · 7/20/2020 · 4. In addition to the high risk spreadsheet and an...

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