by Douglas Ankney

On June 21, 2023, Judge Anthony J. Battaglia of the federal court for the Southern District of California signed an order in a suit alleging violations at San Diego County jails of the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126, § 12101 et seq. The Court provisionally identified a subclass of jail detainees with hearing or mobility disabilities, directing defendant jail officials to take specific actions to address jail deficiencies.

San Diego County jails have been in “crisis mode” for over 15 years, with lawsuits related to jail deaths, use of excessive force and other misconduct costing county taxpayers over $60 million in payouts in the past five years alone, as PLN reported. [See: PLN, Nov. 2022, p.1.]

Detainees Darryl Dunsmore, Andree Andrade, Ernest Archuleta, James Clark, Anthony Edwards, Lisa Landers, Reanna Levy, Josue Lopez, Christopher Nelson, Christopher Norwood, Jesse Olivares, Gustavo Sepulveda, Michael Taylor and Laura Zoerner sued San Diego County, its Sheriff’s Office (SDSO) and the county Probation Department over substandard conditions that have long plagued county jails.

On April 25, 2023, Plaintiffs moved for a Preliminary Injunction and Provisional Class Certification seeking to ensure that Defendants “(1) provide incarcerated people with hearing disabilities effective communication through sign language interpretation; and (2) house incarcerated people with mobility disabilities in accessible locations, where they can safely access sleeping, toileting, and showering facilities,” in compliance with ADA, the Rehabilitation Act (RA), 29 U.S.C. § 701 et seq., and California Government Code Section 11135. The County opposed the motions, arguing that many of Plaintiffs’ “factual allegations were incorrect and because the County was already in the process of renovating its policies and facilities.” After extensive discussions, the parties stipulated that:

1. The proposed provisional subclass be approved for settlement purposes only and defined as “all qualified individuals with a hearing and/or mobility disability, as that term is defined in 42 U.S.C. section 12102, 29 U.S.C. section 705(9)(B), and California Government Code section 12926(j) and (m), and who are now, or will be in the future, incarcerated in the Jail.”

2. The showers at Men’s Central Jail be made ADA compliant; new showers must be constructed but shower chairs may be used in the interim.

3. “[S]ome of the existing cells in celled housing units at Central Jail are too small to accommodate the floor spaces for turning, bed transfer, and/or toilet transfer required by the ADA,” though toilets in dormitories required minor modifications to become ADA-compliant.

4. “[T]riple bunks should not be used for housing of individuals with mobility disabilities” and Defendants’ policy “will be amended such that an existing middle bunk does not qualify as a lower bunk and clarifying that lower bunk/lower tier placement is required rather than recommended in certain situations.”

5. “[R]emedial measures are necessary to ensure accessibility for incarcerated people with mobility disabilities during intake screening and other intake processes consistent with the ADA.”

6. Defendants’ policies regarding sign language interpreters must be modified to “provide effective communication to incarcerated people whose primary method of communication is Sign Language, consistent with the requirements of the ADA.”

Stipulation Details

The Stipulation provided that within 60 days of Court approval, Defendants must develop and provide Plaintiffs with “a plan to remedy the accessibility and effective communication issues” identified. Plaintiffs’ requested remedies included:

1. Sign Language Interpretation for all medical, mental health, booking, classification, investigation and disciplinary proceedings for detainees whose primary means of communication is Sign Language.

2. Screening during booking for a hearing or speaking disability as well as the person’s primary means of communication (sign language, written notes, hearing aids, etc), which is to be documented and used by staff and contractors when communicating with the person;

3. Ensuring that incarcerated people with mobility disabilities using a wheelchair are not assigned to any bed in a triple bunk;

4. Not assigning anyone with a mobility disability to the top bed of a triple bunk; and

5. Providing accessible toileting to those with mobility disabilities.

Within 15 days of receipt of Defendants’ Plan, Plaintiffs will provide “feedback” and the parties will confer. The proposed Plan will then be submitted to the Court, and the parties will agree on qualified independent experts to oversee Plan implementation. Class counsel is provided by Rosen Bien Galvan & Grunfeld LLP, DLA Piper LLP and the Law Office of Aaron J. Fischer. See: Dunsmore v. San Diego Cty. Sheriff’s Dep’t, USDC (S.D. Cal.), Case No. 3:20-cv-00406.

Sheriff Kelly Martinez, who assumed office in 2023, blames the jail system’s shortcomings on the usual “culprits”: shortstaffing, overworked deputies, inability to retain trained employees. Eight people died in SDSO’s custody between January 1 and July 3, 2023, with a record 20 others dying in 2022. The situation is so dire that former Sheriff Bill Gore resigned midterm after a February 2022 audit described conditions “so dangerous in San Diego County jails that new legislation was needed to reform the system.”

Martinez touted her reforms to the booking process, medical services, mental health treatment and drug addiction treatment. But while these are steps in the right direction, Martinez continues to reject calls from the civilian review board, grand juries, and other professionals for routine drug screening of SDSO employees to prevent the drugs from entering the jails.

As for legislation, California Assemblywoman Dr. Akilah Weber introduced the Saving Lives in Custody Act in the 2022 legislative session, requiring individual screening during jail intake by qualified mental health care professionals, a minimum four hours annual guard training in mental and behavioral health, a minimum 12 hours annual continuing education in carceral health and mental health care for medical staff, as well as adding a licensed health care provider and mental health care provider to the Board of State and Community Corrections. Even though the Act passed in the legislature, it was vetoed by Gov. Gavin Newsom (D), who objected to its provisions expanding the Board. Weber then reintroduced the measure in the 2023 session, where it passed again—and this time was signed into law by Newsom on October 4, 2023.  

Additional source: San Diego Tribune

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