Gates v. Gomez
| Decision Date | 03 August 1995 |
| Docket Number | Nos. 94-15259,94-15884,s. 94-15259 |
| Parties | Jay Lee GATES; John Ronald Bertram, Plaintiffs-Appellees, v. James GOMEZ; * Nadim Khoury, M.D., Assistant Deputy Director--CDC Health Services; Kenneth Shepard, Chief Deputy Warden for CMF Clinical; Nicholas Poulos, M.D.; Thor Daniel, Chief Physician and Surgeon, CMF; Paul Morentz, Chief Psychiatrist--CMF Outpatient Program, H MD; Bruce Baker, A R MD, Chief Psychiatrist Northern Reception Center; D. Michael O'Connor; Douglas G. Arnold, Acting Director of the California Department of Mental Health; Clyde Murrey, Acting Deputy Director for State Hospitals; Sylvia RN, Executive Director DMH Vacaville Psychiatric Program; Eddie Yslt, Defendants-Appellants, and George Deukmejian, Defendant. Jay Lee GATES, Plaintiff-Appellee, v. James GOMEZ, * et al., Defendants-Appellants, and George Deukmejian, Governor, Defendant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James E. Flynn, Deputy Atty. Gen., Sacramento, CA, and Allen R. Crown, Deputy Atty. Gen., San Francisco, CA, for defendants-appellants.
Sanford Jay Rosen and Michael W. Bien, Rosen, Bien & Asaro, San Francisco, CA, for plaintiffs-appellees.
Appeals from the United States District Court for the Eastern District of California.
Before: GIBSON, ** GOODWIN, and HUG, Circuit Judges.
This case originated as a civil rights class action under 42 U.S.C. Sec. 1983 and 29 U.S.C. Sec. 794 challenging medical care, psychiatric care, and conditions of confinement at the California Medical Facility and Main Northern Reception Center ("CMF") in Vacaville, California. 1 The suit also challenged the care and confinement of a subclass of HIV-infected inmates. The case went to trial in September, 1989. After plaintiffs rested their case, settlement negotiations culminated in a consent decree which was approved March 8, 1990. The operation of the consent decree has thus far given rise to two published appellate opinions: Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994), and Gates v. Deukmejian, 987 F.2d 1392 (9th Cir.1993). This opinion is the third.
This opinion consolidates two appeals from enforcement orders under the consent decree. One appeal, No. 94-15884, is from an injunction modifying defendants' policy on the use of 37mm riot-control guns to control mentally ill inmates locked in their cells. The other appeal, No. 94-15259, is from a district court order awarding plaintiffs disputed attorneys' fees for compliance and monitoring work under the consent decree during 1991. We have jurisdiction to hear these two appeals pursuant to 28 U.S.C. Sec. 1291, and as to both, we affirm in part and reverse in part.
In this appeal, defendants challenge a district court order modifying their use of the 37mm gun to control mentally ill inmates locked in their cells. The district court ordered this modification pursuant to Sec. V.F.1 of the Consent Decree. Defendants argue that the consent decree does not cover their use of the 37mm gun. They also argue that even if the decree does cover such use, the district court erred by not applying an Eighth Amendment standard to judge compliance with the decree. Finally, defendants argue that the district court abused its discretion by ordering the modifications because the district court order was not supported by the record and defendants were, in fact, in compliance with the decree.
We affirm the district court order in all respects except one. We hold that the district court abused its discretion by ordering the modification of defendants' 37mm gun policies to preclude the gun's use to protect property. Such a modification was not adequately supported by the record.
Beginning in March 1992, two years after the decree was approved, defendants began using a 37mm grenade launcher shooting multiple rubber baton rounds (hereinafter "37mm gun") to control mentally ill inmates. Each discharge of the 37mm gun shoots four hard rubber projectiles against mentally ill patients in closed cells. The gun makes a sound like a firecracker or cherry bomb when fired. The practice at issue in this appeal is defendants' use of the gun to extract violent or agitated mentally ill inmates from their cells. Before the gun is fired, the inmate is warned that the gun will be used. If he remains uncooperative, a warning shot is fired away from the inmate. If the inmate is still uncooperative, a second shot is ricocheted in his direction.
Plaintiffs objected to this practice on the ground that it violates Sec. V.F.1 of the Consent Decree. They contend that use of the 37mm gun on mentally ill inmates poses unreasonable risks of serious psychological harm and physical trauma, that defendants use the gun to extract mentally ill prisoners from their cells when there is no important reason to remove them, that defendants fail to exhaust non-physical alternatives before using the gun, and that they fail to meaningfully consult with clinical staff before using the gun. Instead of the 37mm gun, plaintiffs advocate use of Management of Aggressive Behavior ("MAB") techniques, 2 which are used by all other psychiatric prison facilities in the country to manage aggressive behavior and are approved by the American Psychiatric Association. In contrast, only defendants use the 37mm gun to control mentally ill inmates, and such use has not been approved by the American Psychiatric Association, the American Medical Association, or any correctional standard setting body.
The parties engaged in informal mediation of this issue. After two evidentiary hearings, no agreement was reached and the mediator entered his findings and recommendations on June 18, 1993. Both parties filed objections. The magistrate judge adopted the mediator's findings and a modified version of his recommendations on February 23, 1994. Defendants filed objections to the magistrate judge's findings and recommendations. The district court ruled on March 22, 1994, adopting the magistrate judge's findings and recommendations,
and entered its order on July 20, 1994. The district court denied defendants' request for a stay pending appeal of this order.
After plaintiffs objected to the gun's use but before the evidentiary hearings, defendants implemented written policies on their use of the 37mm gun, which are set out in the California Department of Corrections Operations Manual at 55050.30 (March 19, 1993). Under these policies, the final decision to utilize the 37mm gun is made by custody personnel, although the inmate's file is reviewed by clinical staff.
Specifically, only the warden or chief deputy warden, or during nonbusiness hours the administrative officer-of-the-day, can authorize the gun's use. In a life-threatening or extensive property-threatening emergency, when time does not permit prior approval, the watch commander may authorize the gun's use. The gun can only be used: (1) in self-defense or defense of others; (2) to prevent escape or serious injury to persons or damage of a substantial amount of property; (3) to contain a violent situation or prevent serious injury threatened by a group of inmates; (4) to prevent suicide or self-inflicted injury by an inmate barricaded within a cell or other enclosed area; or (5) to accomplish a necessary change in location after the inmate has been given reasonable opportunity to cooperate in the relocation process. In this last situation, the inmate must be given notice that the gun will be used if he does not cooperate, and lesser alternatives must be explored. A medical technical assistant must be present during the gun's use. The gun cannot be fired directly at the inmate; it must be ricocheted in the direction of the inmate. And if the inmate has a psychiatric classification, then either a psychiatrist, psychologist, licensed clinical social worker, or psychiatric nurse must review the inmate's file to identify any contraindications to the use of the gun. But the policy does not prevent the warden from ordering the gun's use over a clinician's objection.
The district court ordered the following revisions to defendants' policy on the use of the 37mm gun:
A. The 37mm gun will be used on inmates in psychiatric classification in cells or other confined areas only as a last resort after custodial and clinical staff have determined that the situation cannot be controlled by non-physical intervention or lower levels of force.
B. The Warden or the Administrative Officer acting in the Warden's place will certify in writing that the 37mm gun may be used on a specific inmate to:
1. prevent or stop serious assaultive behavior;
2. prevent an ongoing escape;
3. prevent suicide or imminent serious self-inflicted injury; or
4. accomplish a necessary change in location required for serious medical or health reasons after the inmate has been given a reasonable opportunity to cooperate and has refused.
C. A psychiatrist will review the medical file of the patient on whom use of the 37mm gun is being considered and personally evaluate the inmate to determine whether there are any medical or psychiatric reasons why the gun should not be used. The psychiatrist will approve or disapprove use of the 37mm gun in writing for the record.
D. If the psychiatrist approves the use of the 37mm gun, he or she will remain and observe the use of the gun on the inmate through completion of the cell extraction.
E. If the psychiatrist does not approve the use of the 37mm gun on the inmate, the Warden or Administrative Officer acting in the Warden's place will order alternative methods of restraint approved by CDC policy.
F. In emergency cases constituting actual life threatening situations wherein time does not permit prior approval, the Watch Commander may authorize the use of the 37mm gun. However, immediately following the emergency situation,...
To continue reading
Request your trial
-
U.S. v. Gonzales
...for attorney's fees information that is privileged or attorney work product if the showing is otherwise sufficient, see Gates v. Gomez, 60 F.3d 525, 535 (9th Cir.1995), or they may seek a protective order to avoid disclosure of that information. See Reed v. Rhodes, 934 F.Supp. 1492, 1502 (N......
-
Nehmer v. U.S. Dept. of Veterans Affairs
...will uphold a district court's `reasonable' interpretation of a consent decree." Nehmer III, 284 F.3d at 1160 (quoting Gates v. Gomez, 60 F.3d 525, 530-31 (9th Cir. 1995)). III. Before we consider whether the district court reasonably interpreted the Consent Decree, we must examine our own ......
-
Pierce v. Cnty. of Orange
...documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked.” Gates v. Gomez, 60 F.3d 525, 534 (9th Cir.1995) (quotation marks and citations omitted). Once that burden is carried, “[t]he party opposing the fee application has a burd......
-
Armstrong v. Davis, 01-15779.
...his client's interest" in the case at bar. Hasbrouck, 879 F.2d at 638 (internal quotation marks omitted); see also Gates v. Gomez, 60 F.3d 525, 535 (9th Cir.1995) (awarding fees pursuant to § 1988 for filing an amicus brief with a district Defendants next argue that Hasbrouck is an antitrus......
-
Practice and Discovery Under the Anti-SLAPP Statutes
...to demonstrate with specific evidence that the hours or rates claimed are not reasonable.” ( See Gates v. Gomez (9th Cir. 1995) 60 F.3d 525, 534.) To deny compensation, “it must appear that the time claimed is obviously and convincingly excessive under the circumstances.” ( Perkins v. Mobil......
-
Practice and Discovery Under the Anti-SLAPP Statutes
...to demonstrate with specific evidence that the hours or rates claimed are not reasonable.” ( See Gates v. Gomez (9th Cir. 1995) 60 F.3d 525, 534.) To deny compensation, “it must appear that the time claimed is obviously and convincingly excessive under the circumstances.” ( Perkins v. Mobil......
-
Sample Pleading - Memorandum of Points and Authorities in Support of Motion for Award of Reasonable Attorneys’ Fees
...to demonstrate with specific evidence that the hours or rates claimed are not reasonable.” (See Gates v. Gomez (9th Cir. 1995) 60 F.3d 525, 534.) To deny compensation, “it must appear that the time claimed is obviously and convincingly excessive under the circumstances.” (Perkins v. Mobile ......