Clark v. California (739 F. Supp. 2d 1168, 2010)

United States District Court for the Northern District of California 2010-09-16

Citations

Full opinion text

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CHARLES R. BREYER, District Judge.

I. Introduction and Background

1. The State of California, the Governor and various state prison officials initiated the current proceedings by bringing a motion pursuant to the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626(b), to terminate the prospective relief in this case. That relief is contained in a 2001 Settlement Agreement and Order that requires these defendants to comply with a set of policies and procedures, known collectively as the Clark Remedial Plan (“CRP” or “Remedial Plan”), which they drafted to ensure that California prisoners with developmental disabilities were protected from serious injury and discrimination on the basis of their disability. See Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); U.S. Constitution amends. VIII, XIV. Defendants maintain that prospective relief should be terminated because there are no current and ongoing violations of the plaintiff class members’ rights under federal law.

2. Plaintiffs and members of the plaintiff class are prisoners with developmental disabilities incarcerated within California’s prison system. They oppose defendants’ motion and seek further injunctive relief. They argue that an order requiring compliance with the policies and procedures in the Clark Remedial Plan would be insufficient to cure those statutory and constitutional violations, and that further relief is therefore necessary.

3. Much of the evidence before the Court is not in dispute. First, there is no dispute about the nature of the class. These prisoners represent an extremely small percentage of the overall prison population who, because of their disabilities, are vulnerable to physical, sexual and verbal abuse, exploitation, theft, and harassment. They also require accommodations from the normal routines of prison life if they are to be safe and able to participate meaningfully in prison activities and programs.

4. Second, there is no dispute about the utility of the Settlement Agreement and the Clark Remedial Plan. Prison officials testified that the Remedial Plan has been valuable to the California Department of Corrections and Rehabilitation (“CDCR”). These witnesses also agreed that most of the Remedial Plan would continue regardless of the Court’s ruling.

5. What is in dispute, therefore, is whether the Order requiring compliance with the Plan, including monitoring by plaintiffs’ counsel and Court experts, is necessary. To help answer that question one of the Court’s experts, Dr. Peter Leone, conducted a systemic review of the treatment of developmentally disabled prisoners in the CDCR. Based on over 150 prisoner interviews, a review of extensive prison documents and interviews with 29 prison staff at the seven prisons that house a majority of class members, he concluded that “[wjhile some dedicated CDCR staff were providing appropriate services and support to inmates with DD, the system as a whole appeared indifferent to the needs of these inmates” and that “[t]he breadth and severity of problems described in this report suggest that with some exceptions, inmates with DD do not receive the protections and supports as described in the Clark Remedial Plan.” Report of Dr. Peter Leone, February 15, 2010, (Tr. Ex. 1) (Leone Report) at 4,19.

6. The weight of the evidence supports and amplifies Dr. Leone’s conclusions. In total the evidence demonstrates that mentally retarded prisoners and those with autism spectrum disorders are verbally, physically, and sexually assaulted, exploited, and discriminated against in California prisons. Illiterate prisoners are not given the help they need to understand or fill out important prison documents, leaving them with no way to use sick call slips or grievance forms, unless they can pay other prisoners or beg them for help. Developmentally disabled prisoners are punished for violating prison rules that they do not understand, and are punished at hearings which they do not comprehend. These conditions violate those prisoners’ rights to be free of unlawful discrimination based on their disabilities.

7. In 2001, defendants admitted “that they [had] violated the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein.” Settlement Agreement and Order, December 3, 2001 (Dkt.# 194) (Settlement Agreement & Order), ¶ 15. Today, defendants no longer admit that they are violating the federal rights of prisoners with developmental disabilities, nor that continued relief is necessary because of those violations. Based upon the evidence adduced at trial, this Court disagrees. For the reasons explained below, this Court DENIES defendants’ motion for relief. Moreover, this Court GRANTS in part and DENIES in part plaintiffs’ motion for further relief.

A. Procedural Background

8. California prisoners with developmental disabilities filed this action in 1996, claiming that defendants discriminated against them on the basis of their disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. § 12131, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794; that defendants were depriving them of due process in violation of the Fourteenth Amendment; and that plaintiffs were living under conditions that constituted cruel and unusual punishment in violation of the Eighth Amendment. First Amended Complaint, October 31, 1996 (Dkt.# 32), at 21-25. In their First Amended Complaint, plaintiffs alleged that they were denied adequate accommodations, protection, and services because of their developmental disabilities. Id. at 2-4. In particular, plaintiffs alleged that defendants did not protect the plaintiff class from physical violence and manipulation by other prisoners; denied them due process in disciplinary, grievance, parole, or other administrative proceedings; and denied them equal access to good time credits and medical and mental health care, among other prison services. Id. at 7-9,12-13.

9. In 1998, at the parties’ request, this Court ordered the appointment of two neutral experts to assist the parties and the Court by, among other things, evaluating defendants’ proposed remedial plans and modifications to, and compliance with, the plans. Order Appointing Experts and Prescribing Duties, August 18, 1998 (Dkt.# 180). The parties together chose Dr. Peter Leone and Dr. Melissa Warren to fill the expert roles. Id. at 1.

10. Over the next several years, the parties, with assistance from Dr. Leone and Dr. Warren, negotiated and agreed on specific remedial measures necessary to protect class members’ rights, formalized in the CRP. The CRP sets forth policies for identifying, classifying, housing, and accommodating each class member, based upon the individual prisoner’s level of disability. In the Settlement Agreement and Order filed with this Court on December 3, 2001, defendants admitted “that they [had] violated the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein.” Settlement Agreement & Order, ¶ 15. Defendants agreed to implement the CRP, subject to monitoring by plaintiffs’ counsel, evaluation by the Court experts, negotiation between the parties, and, if necessary, enforcement by the Court. Id. ¶¶ 5, 8. Specifically, they agreed that “[t]he Court shall retain jurisdiction to enforce the terms of this agreement. The Court shall have the power to enforce the agreement through specific performance and all other remedies permitted by law.” Id. ¶ 5. As part of the settlement, all parties agreed that Dr. Leone and Dr. Warren would continue in their roles as Court experts, with the same duties set forth in the Court’s Order from August 18, 1998. Id. ¶ 6.

11. On July 24, 2009, defendants filed a motion to terminate the Settlement Agreement & Order, claiming that there are no current or ongoing violations of plaintiff class members’ federal rights. Defendants’ Motion to Terminate Settlement Agreement, July 24, 2009 (Motion to Terminate) (Dkt.# 205). In the same motion, defendants moved to dismiss relief in this case pursuant to Federal Rule of Civil Procedure 60(b)(5). Plaintiffs filed an opposition on August 7, 2009, alleging that defendants had not met their burden of proof and that current and ongoing violations of the rights of the plaintiff class justified the continuation of relief in this case. Plaintiffs’ Opposition to Defendants’ Motion to Terminate Settlement Agreement, August 7, 2009 (Opposition to Termination Motion) (Dkt.# 244). On March 9, 2010, plaintiffs filed a motion for further relief (Dkt.# 329), which defendants opposed on April 5, 2010 (Dkt.# 384).

12. This Court held an evidentiary hearing to determine whether there exist current and ongoing violations of federal law and, if so, whether further relief is necessary to cure those violations. The hearing began on May 10, 2010, and continued until May 18, 2010. Clerk’s Notice, April 12, 2010 (Dkt.# 395); Civil Trial Minutes, May 18, 2010 (Dkt.# 465).

13. In preparation for the hearing, the Court’s expert in this case, Dr. Peter Leone, visited seven institutions, spoke with 152 class members and 29 staff members, and reviewed prisoner files and other documents. Peter Leone Expert Report (Tr. Ex. 1) at 2-3. Based on these visits, Dr. Leone produced an expert report on February 15, 2010, detailing his findings and his recommendations. See generally id.

14. During the six-day trial, this Court heard testimony from three expert witnesses and more than 30 lay witnesses (18 by deposition), including class members, correctional administrators, and prison staff members. The parties also submitted into evidence close to 700 trial exhibits.

B. Statutory Framework for the Motions

1. Defendants’ Motion to Terminate or Dismiss Relief

15. Defendants move to terminate the Settlement Agreement & Order under the Prison Litigation Reform Act, 18 U.S.C. § 3626. Although that statute provides an avenue to terminate prospective relief instituted to remedy unlawful prison conditions, id. at § 3626(b)(1)-(2), termination is not appropriate if a court makes written findings, based on the record, that “prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and ... is narrowly drawn and the least intrusive means to correct the violation.” Id. § 3626(b)(3). In determining whether there is a “current and ongoing violation” of federal law, courts must “take evidence on the current circumstances at the prison[s].” Gilmore v. California, 220 F.3d 987, 1010 (9th Cir.2000). This Court has ruled that defendants, as the party moving for termination, bear the burden of proving that no such violations exist. Order Regarding Burden of Proof, April 2, 2010 (Dkt.# 382); see also Gilmore, 220 F.3d at 1007-08. As noted below, even if plaintiffs bore the burden, they have satisfied it.

16. Defendants also claim that changed circumstances necessitate the dismissal of the Settlement Agreement & Order. Under Federal Rule of Civil Procedure 60(b)(5), a court may relieve a party from its obligations pursuant to a final judgment if “applying [the judgment] prospectively is no longer equitable.” The moving party must demonstrate, however, “a significant change either in factual conditions or in law.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). In institutional reform cases, district courts must ask whether such a change “renders continued enforcement [of the judgment] ‘detrimental to the public interest.’ ” Horne v. Flores, — U.S. -, 129 S.Ct. 2579, 2593, 174 L.Ed.2d 406 (2009) (quoting Rufo, 502 U.S. at 384, 112 S.Ct. 748). Defendants’ desire to put a consent decree behind them does not justify such relief: “Rule 60(b)(5) provides that a party may obtain relief from a court order when ‘it is no longer equitable that the judgment should have prospective application,’ not when it is no longer convenient to live with the terms of a consent decree.” Rufo, 502 U.S. at 383, 112 S.Ct. 748.

17. The PLRA also requires that the Court “promptly rule on any motion to ... terminate prospective relief in an action with respect to prison conditions.” 18 U.S.C. § 3626(e)(1). Prompt resolution is necessary because, under the PLRA, a termination motion stays all prospective relief until the Court enters a final ruling. Id. § 3626(e)(2).

2. Plaintiffs’ Motion for Enforcement and Further Remedial Orders

18. Plaintiffs move for enforcement of, and further relief under, the Settlement Agreement & Order in this case. Pursuant to that Agreement, defendants committed to implement the CRP. The CRP is a series of measures developed with the assistance of Court-appointed experts and designed to address, in a “fair and reasonable” manner, the violations of federal law that plaintiffs had identified in their complaint. Settlement Agreement & Order, ¶ 15. In agreeing to the Remedial Plan, defendants acknowledged that “they had violated the federal rights of plaintiffs in a manner sufficient to warrant the relief contained herein.” Id.; see also Subia at RT 256:7-12 (“[w]hen I first came into this department ... we would just watch[ ] these inmates who are filthy and walking around looking at the sun and picking up bugs and eating them on the facility and consistently getting into trouble.”). As the Court has noted and defendants have conceded, “as of 2001, the parties agreed that there was a need at that point, there were violations at that point, there was a plan at that point, and the plan was narrowly drawn at that point.” RT 8:14-17; see also Settlement Agreement & Order at ¶ 15.

19. The Court “retain[s] jurisdiction to enforce the terms of this agreement.” Settlement Agreement & Order at ¶ 5. Moreover, the Settlement Agreement & Order contemplated that plaintiffs could bring a motion for enforcement and further relief in circumstances such as those presented here, by expressly allowing plaintiffs to move to modify “if the plan does not effectively remedy defendants’ violations or if a modification is necessary to ensure plaintiffs receive adaptive support services to which they are entitled under the ADA, § 504 [of the Rehabilitation Act], or the Constitution.” Id. ¶ 11. Plaintiffs bear the burden of proving that enforcement or modification of the Remedial Plan is necessary to address defendants’ violations of federal law.

C. Defendants’ Obligations under Federal Law

1. ADA and § 504

20. Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified individual with a disability” suffers from a “physical or mental impairment that substantially limits one or more major life activities,” including, but not limited to “caring for oneself ..., learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(1)(A), (2)(A). It is undisputed that the Clark class members fit these criteria. See Settlement Agreement & Order ¶¶ 1-2, 15; see also CRP (Tr. Ex. 476) at 1. Furthermore, state prisons are “public entities” for the purposes of Title II. Penn. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).

21. Section 504 of the Rehabilitation Act guarantees the same right of nondiscrimination to disabled individuals “under any program or activity receiving Federal financial assistance .... ” 29 U.S.C. § 794(a). Because Title II of the ADA was modeled on § 504, “courts have applied the same analysis to claims brought under both statutes.” Zukle v. Regents of Univ. of Cal, 166 F.3d 1041, 1045 n. 11 (9th Cir.1999) (citations omitted); see also 42 U.S.C. § 12133 (“The remedies, procedures, and rights set forth in [§ 504] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination in violation of [section 12132 of this title].”). Moreover, “courts routinely look to Rehabilitation Act case law to interpret the rights and obligations created by the ADA.” Zukle, 166 F.3d at 1045 n. 11. Like Title II of the ADA, § 504 applies to state prisons. Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir.1997).

22. Under the ADA and the Rehabilitation Act, defendants must provide Clark class members with “reasonable accommodations” and “reasonable modifications” so that they can avail themselves of prison services and participate in prison programs and activities. 29 U.S.C. § 794; 28 C.F.R. § 35.130(b)(7); see also The Americans with Disabilities Act Title II Technical Assistance Manual, § II-3.6100 (requiring public entities to make reasonable modifications to their policies, practices, or procedures to avoid discrimination), available at http://www.ada.gov/ tamarfi.html. To be “reasonable” the accommodation or modification must give disabled prisoners “meaningful access” to the service, program, or activity in question. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985).

23. The ADA encompasses all services, programs, and activities provided by a prison to its prisoners. See, e.g., Crawford v. Ind. Dep’t of Corrs., 115 F.3d 481, 483 (7th Cir.1997) (“The use of a library is, equally clearly, an activity, and so, only a little less clearly, is the use of the dining hall.”); Chase v. Baskerville, 508 F.Supp.2d 492, 506 (E.D.Va.2007) (defining the provision of “telephones, computers, cable televisions, and books” as “services” under the ADA). Thus, “virtually every interaction between prison officials and disabled inmates potentially exposes the State[ ] to liability ... unless the State[ ] promptly provide[s] reasonable accommodation.” Chase, 508 F.Supp.2d at 505 (citing Kiman v. N.H. Dep’t of Corrs., 451 F.3d 274, 289-90 (1st Cir.2006); Chisolm v. McManimon, 275 F.3d 315, 327-30 (3d Cir.2001)).

2. Eighth Amendment

24. The Eighth Amendment prohibits the government from exacting “cruel and unusual punishment” on its citizens. U.S. Const, amend. VIII. “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). As such, prison officials “must provide humane conditions of confinement ... and must take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotations and citations omitted).

25. For an Eighth Amendment violation to lie, the deprivation suffered by the prisoner must be sufficiently serious, and prison officials must be “deliberately indifferent” to the deprivation. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. A prisoner need not establish that he actually suffered a sufficiently serious deprivation; he must show only that “he is incarcerated under conditions posing a substantial risk of serious harm.” Id. (citing Helling, 509 U.S. at 35, 113 S.Ct. 2475). As explained by the Supreme Court, it would be illogical “to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them .... [A] remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33, 113 S.Ct. 2475.

26. “[D]eliberate indifference can be predicated upon knowledge of a victim’s particular vulnerability (though the identity of the ultimate assailant not known in advance of attack), or, in the alternative, an assailant’s predatory nature (though the identity of the ultimate victim not known in advance of attack).” Brown v. Budz, 398 F.3d 904, 915 (7th Cir.2005).

3. Fourteenth Amendment Due Process

27. The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property[] without due process of law.” U.S. Const, amend. XIV, § 1. In the prison context, “States may under certain circumstances create liberty interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Youngberg v. Romeo, 457 U.S. 307, 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (involuntarily committed, mentally retarded individual had “constitutionally protected liberty interests under the Due Process Clause”). Specifically, due process protections attach to state actions that (1) affect a prisoner’s sentence in an unexpected manner, or (2) impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293.

D. The Clark Remedial Plan

28. In 2001, the parties agreed that the CRP represented the narrowest, least intrusive set of procedures that could effectively ensure the federal rights of developmentally disabled prisoners. From that time, the CRP has served as the cornerstone of defendants’ efforts to comply with the Settlement Agreement reached by the parties and effectuated by this Court.

1. Identification

29. As a threshold matter, defendants must ensure that developmentally disabled prisoners are properly identified in order to provide reasonable accommodations to those prisoners under the ADA and § 504. See Armstrong v. Davis, 275 F.3d 849, 876 (9th Cir.2001) (because regulations implementing ADA require public entity to accommodate persons identified as disabled, tracking system is necessary part of compliance). The CRP also requires that “[e]fforts to identify inmates with developmental disabilities ... be continuous.” CRP at 14.

2. Reading and Writing Assistance

30. A developmentally disabled prisoner’s literacy level can impede his or her ability to use prison services or participate in prison activities or programs. Garcia v. Taylor, No. 07-cv-474, 2009 WL 2496521, at *11 (N.D.Fla. Aug. 11, 2009). Thus, the regulations implementing the ADA require public entities to “take appropriate steps” to ensure that the communication of information concerning prison services, activities, and programs is “as effective” for the disabled as for the non-disabled. 28 C.F.R. § 35.160. In doing so, the prisons must provide such services as are necessary “to afford an individual with a disability an equal opportunity to participate in” prison programs and activities. Id. In determining what services are necessary, defendants must give “primary consideration to the requests of the individual.” Id.

31. As stated by one appellate court charged with determining whether a prison library provided meaningful access to its materials, “[i]t is not enough simply to say the books are there, when the plaintiffs contend that they do not have the assistance necessary to use the books properly.” Cruz v. Hauck, 627 F.2d 710, 720 (5th Cir.1980).

32. The CRP recognizes that developmentally disabled prisoners “may have poor ability to express themselves ... in writing.” CRP at 6. Further, “[t]hey will likely have difficulty with any task requiring reading or processing written material,” and, in particular, “they may have difficulty with disciplinary, classification, and/or appeal processes[, which] require reading and understanding.” Id. Accordingly, corrections officers are duty-bound to provide reading and writing assistance to the Clark class members who need it. See id. at 42 (officers must “[p]rovide support services as directed by [the prisoner’s Interdisciplinary Support Team]”). And designated institutions “must ensure that [CDCR] notices, orientations packages, announcements, and similar printed materials are accessible to inmates with developmental disabilities.” Id. at 45.

3. Meaningful Assistance in Disciplinaiy, Administrative, and Classification Proceedings

32. As noted above, defendants must, under the ADA, “take appropriate steps” to ensure that staff members’ communications with developmentally disabled prisoners are “as effective” as their communications with non-disabled prisoners. 28 C.F.R. § 35.160. Accordingly, defendants must not only provide staff assistants to developmentally disabled prisoners in disciplinary, administrative, and classification proceedings, but they also must ensure that those staff assistants are providing the prisoners with effective communication. Cf. Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir.1996) (reversing summary judgment in favor of prison on deaf prisoner’s claim that he was denied qualified interpreter at disciplinary hearing in violation of ADA). The Remedial Plan expressly recognizes this obligation. CRP at 8; see also id. at 42 (DDP counselor must serve as staff assistant as required), 61-62 (requiring training for staff assistants).

34. Only through effective communication can defendants guarantee that developmentally disabled prisoners have meaningful access to these proceedings and, thus, satisfy their obligations to plaintiff class members under federal law. And, “[b]y ensuring that inmates have meaningful access to ... [such] proceedings ..., the goals of both the institution and the Rehabilitation Act are served.” Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988).

35. The ADA also requires that prison staff try to counsel Clark class members, rather than subjecting them to the disciplinary process, when they break prison rules that they do not understand. The Ninth Circuit has “repeatedly recognized that facially neutral policies may violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.2004) (citations omitted); cf. Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir.1998) (in employment context, entity “may not use established policies regulating behavior to short-circuit the required analysis of whether ... a reasonable accommodation” is due to disabled person). In accordance with that precedent, the CRP mandates that, when addressing prisoner misconduct, staff members “must take into consideration the severity of the inmate’s disability and the inmate’s need for adaptive services when determining the [appropriate] method of discipline.” CRP at 49. When the prisoner does not understand that he has broken a rule, staff should provide the “reasonable accommodation” of “direct instructions, prompting, or verbal counseling.” Id. Only if the developmental^ disabled prisoner continues to engage in the misconduct should the employee resort to the disciplinary process. Id.

36. Like the ADA, § 504, and the CRP, the Due Process Clause requires that staff assistants provide effective communication to developmentally disabled prisoners during disciplinary proceedings where there is a protected liberty interest at stake.

37. “Due process [also] requires that a prisoner have ‘an opportunity to present his views’ to the official ‘charged with deciding whether to transfer him to administrative segregation.’” Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir.1990) (quoting Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)).

4. Meaningful Access to Prisoner Grievance Procedures

38. Prison grievance procedures must be “readily available to all ... inmates,” and staff must make “appropriate provisions” to communicate those procedures to “the impaired and the handicapped.” 28 C.F.R. § 40.3. Moreover, institutions must “ensure that the procedure[s are] accessible to impaired and handicapped inmates.” Id. § 40.4. The regulations implementing the ADA also require defendants to “adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by [the Act].” 28 C.F.R. § 35.107(b).

39. Because access must be “meaningful,” Alexander, 469 U.S. at 301, 105 S.Ct. 712, prison staff must ensure that developmentally disabled prisoners can submit grievances. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.1995) (“The right of meaningful access to the courts extends to established prison grievance procedures.” (citation omitted)). In recognition of this obligation, the Clark Remedial Plan requires staff members to “provide the necessary assistance to all DDP inmates on a case-by-case basis to ensure that those who have difficulty ... communicating in writing will be provided reasonable access to [grievance] procedures.” CRP at 45.

40. The right of meaningful access to grievance procedures is particularly important because a prisoner must exhaust the prison’s administrative remedies by complying with that procedure before he can access the courts. 42 U.S.C. § 1997e(a). As the Ninth Circuit has recognized, “[t]he reality and substance of any of a prisoner’s protected rights are only as strong as his ability to seek relief from the courts or otherwise to petition the government for redress of the deprivation of his rights.” Bradley, 64 F.3d at 1280.

5. Assistance with Self-Care and Daily Living Activities

41. Like almost all services provided by a prison, daily living activities such as the use of showers, the exchange of laundry, and the receipt of medication constitute “services, programs, or activities” under the ADA and § 504. See, e.g., Phipps v. Sheriff of Cook County, 681 F.Supp.2d 899, 916 (N.D.Ill.2009) (“showering, toileting, and lavatory use ... regarded as programs and/or services under the ADA”).

42. In recognition that developmentally disabled prisoners “may show evidence of poor self caret, such as] seldom bathing, soiled or unkempt clothing, poor eating habits,” and a “disorganized” or “dirty” living area, the CRP extends the same obligations to defendants. CRP at 6, 8; see also id. at 42 (officers must “[p]rovide support services as directed by [the prisoner’s Interdisciplinary Support Team]”).

6. Protection from Abuse

43. Defendants acknowledge that they “have a duty to protect all inmates, including members of the [p]laintiff class, from violence at the hands of other inmates.” Defendants’ Trial Brief, March 26, 2010 (Dkt.# 361), at 15 (citing Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir.2009)). Defendants also recognize that the developmental disabilities of Clark class members put those prisoners at greater risk for abuse and exploitation than non-developmentally disabled prisoners. Subia at RT 247:8-15. Specifically, developmentally disabled prisoners “may give up possessions to other inmates” or “become vulnerable to sexual predators [or] manipulation by other inmates.” CRP at 6. Accordingly, in adopting the CRP, defendants acknowledged that it was necessary for prison staff members to monitor these prisoners to promote their personal safety. Id. at 8, 42. Also for safety reasons, defendants agreed to accommodate Clark class members in the housing assignment process. For example, DDls with abuse concerns and DD2s “must only be placed in the building designated for [them],” and “[n]on-DDP inmates with a history of sexual [abuse] and/or predatory behavior against ‘weaker’ individuals’ must not be housed in ... designated buildings.” Id. at 39-40.

44. Failing to accommodate plaintiff class members in these manners also raises concerns under the Eighth Amendment. When a prisoner demonstrates either that he has suffered physical or sexual assault at the hands of other prisoners, or that he lives with the “substantial risk” of such assault, he establishes “sufficiently serious deprivation” and, presuming the institution’s deliberate indifference to that deprivation, the infliction of cruel and unusual punishment. See Berg v. Kincheloe, 794 F.2d 457, 460-61 (9th Cir.1986) (prisoner who was beaten and raped by another prisoner stated an Eighth Amendment claim); Johnson v. Johnson, 385 F.3d 503, 524-27 (5th Cir.2004) (Eighth Amendment protects prisoners from assault occasioned by staffs failure to respond to known risk of assault). As explained below, the crucial question with regard to the Eighth Amendment is whether it has been established that Plaintiffs, on a class basis, have proved the necessary deliberate indifference.

7. Adequate Notice of Parole Conditions

45. The ADA and § 504 mandate that defendants effectively communicate conditions and terms of parole to developmentally disabled prisoners. Because defendants provide notice of parole conditions as a service to their prisoners, they must afford plaintiff class members the “reasonable accommodation” of effective communication to ensure that the prisoners understand what they must do to avoid being reincarcerated. Armstrong, 275 F.3d at 861-62.

46. Furthermore, “due process mandates that [a] petitioner cannot be subjected to a forfeiture of his liberty for [otherwise non-criminal] acts unless he is given prior fair warning [that the acts are proscribed].” United States v. Grant, 816 F.2d 440, 442 (9th Cir.1987) (internal quotation and citation omitted). While Grant addressed the conditions of probation, not parole, the Supreme Court has recognized that, from a due process standpoint, parole and probation are analogous. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (same liberty interests at stake in probation revocation and parole revocation hearings). As such, the Fourteenth Amendment requires that prisoners approaching parole are notified of the conditions of their parole.

47. It is axiomatic that, to fulfill the requirements of due process, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties” of that which is noticed. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Given that many developmentally disabled prisoners either cannot read or do not fully comprehend what they read, the only way for defendants to ensure that plaintiff class members receive sufficient notice of their parole conditions before leaving prison is for prison staff members to effectively communicate those conditions. Cf. Mastrangelo v. U.S. Parole Comm’n, 682 F.2d 402, 405 (2d Cir.1982) (it would be “manifestly unfair” if petitioner was reincarcerated because he was unaware of conditions of special parole).

48. CDCR rules track federal law in this regard. Wells at RT 500:21-24. Under those rules, “what’s required is to have a staff member to be present ... to effectively communicate with the inmate.” Id. at 504:18-505:1. As an extension of this obligation, the Remedial Plan requires “[p]arole staff [to] ensure that upon reporting to a parole unit, parolees with developmental disabilities are provided parole instructions in such a manner as to ensure that the parolee understands ... the parole process, the parolee’s responsibilities, and the available assistance and services.” CRP at 57. So that parole staff can provide this service, institutions must “notify parole field staff ... of any inmate with a verified developmental disability, as well as identified adaptive deficits and prescribed support services.” Id. at 56.

E. Characteristics of CDCR and the Clark program

49. Basic facts regarding the California prison system and the CRP are not in dispute.

50. CDCR includes 33 prisons, 12 community facilities, and 41 conservation camps throughout the State of California. Joint Proposed Final Pretrial Order (Dkt. #366) at 6; Subia at RT 218:11-16. There are currently approximately 166,000 prisoners in the 33 prisons. Subia at RT 226:25. There are over 100,000 parolees in California at any given time. Id. at 230:14-18. Every year, CDCR receives approximately 130,000 new prisoners and releases approximately the same number. Id. at 230:19-231:1. CDCR employs 66,-000-67,000 people with approximately 600-900 custodial staff per institution. Id. at 231:2-7.

51. There are 1,348 prisoners currently identified as members of defendants’ Developmental Disability Program (DDP). Salz at RT 85:19-86:8. That is the “highest [ ] point” for the number of prisoners the CDCR has had in the DDP. Wells at RT 560:6-10. In the past 10 years, the number of budgeted positions for DDP staff has been reduced from 143 total positions to 137 total positions. Id. at 556:3-23. Not all of these 137 budgeted DDP staff positions are filled. Id. at 561:21-562:13. Every prison in California has developmentally disabled prisoners from time to time. Salz at RT 133:17-25. The biggest challenge defendants face in maintaining compliance with the Clark Remedial Plan is the size of CDCR. Subia at RT 230:7-13.

52. At present, seven institutions are designated for permanent placement of mildly to moderately disabled prisoners (categorized as “DD1” and “DD2”): Central California Women’s Facility; California Men’s Colony (CMC); California Medical Facility (CMF); California State Prison-Corcoran; California Rehabilitation Center (CRC); California State Prison-Los Angeles County (Lancaster); and the California Substance Abuse Treatment Facility and State Prison at Corcoran (SATF). Joint Proposed Final Pretrial Order (Dkt.# 366) at 7. Five prisons are designated for permanent placement of more severely disabled prisoners (categorized as “DD3”): California State Prison-Sacramento; Central California Women’s Facility; CMC; CMF; and Valley State Prison for Women. Id.

53. Richard J. Donovan Correctional Facility (R.J. Donovan) currently houses prisoners who are dually diagnosed DDP and Enhanced Outpatient Program (EOP) (specialized housing for mentally ill prisoners) and retains some DDP staff. Id. Within these institutions, staff usually designate specific units for placement of developmentally disabled prisoners. Id. Approximately 300 developmental^ disabled prisoners are not housed in designated institutions. Salz at RT 133:12-16.

54. To better accommodate the particular needs of prisoners designated as developmentally disabled, CDCR “clusters” these prisoners in designated institutions. Joint Proposed Final Pretrial Order (Dkt.# 366) at 7. In other words, CDCR aims to place prisoners with similar needs together. Id.

55. Although most plaintiff class members are sent to designated prisons, medical and psychiatric needs may override the clustering criteria. Id. Thus, class members with serious medical or mental health needs may be housed in a health care setting. Id.

56. According to the sole defense expert, it is “essential to have a plan such as the [Clark Remedial Plan] for developmentally disabled prisoners.” Scaramozzino at RT 891:8-12. Other witnesses agreed: the Clark Remedial Plan is “very beneficial, and ... all parties have agreed on that from the beginning.” Salz at RT 157:23-158:1. It is “a program that makes sense.” Id. at 159:4-23. The Clark Remedial Plan is “very useful.” Subia at RT 255:24-256:18. “[I]t’s ... a good thing to have the [Clark Remedial Plan] and in terms of how [CDCR is] administering the prisons, it’s helpful.” Id. at 257:3-6. The DDP works very well and is a necessary program. Serna at RT 355:16-19, 356:19-21. The Clark Remedial Plan “made some savings to the operation of the prison” by managing the problems that developmentally disabled prisoners face. Scaramozzino at RT 892:2-14. The Clark Remedial Plan “creates a safer environment for [CDCR] staff and for the inmates.” Subia at RT 256:19-257:2.

57. Providing the services required by the Clark Remedial Plan does not create a burden for defendants. Subia at RT 256:19-257:2. The placement of developmentally disabled prisoners in the DDP ensures that these prisoners no longer “carr[y] a lot of staff time” and saves defendants money by not requiring “a lot of higher, more expensive levels of custody.” Id. at 159:17-23. “[I]t’s not a very expensive program to run.” Salz at RT 159:9.

F. Definition and Characteristics of Developmental Disabilities

58. The parties are in full agreement regarding the definition and characteristics of people with developmental disabilities. CRP at 1-2; Joint Proposed Final Pretrial Order (Dkt.# 366) at 6. There is no dispute that individuals with developmental disabilities have cognitive deficits and functional impairments. CRP at 6-7; Dkt. # 366 at 6. The parties agree that such individuals require support accommodations and are entitled to receive them in prison. CRP at 1-3, 7-9; Dkt.# 366 at 6. The only dispute in this case is whether prisoners with developmental disabilities are being adequately identified and accommodated.

1. Individuals with Developmental Disabilities

59. Prisoners with developmental disabilities are not always easy to distinguish from non-disabled prisoners. According to Dr. Nancy Cowardin, only a small percentage of people with developmental disabilities have identifying physical characteristics or impairments in physical or motor skills. Expert Report of Nancy Cowardin, Ph.D. (Tr. Ex. 5) (Cowardin Report) at 10. Dr. Donald Salz, a CDCR Chief Psychologist with oversight of the Clark program as it applies to mental health issues, agrees. Salz at RT 42:4-9, 91:5-8.

60. In addition, many developmentally disabled people work hard to mask their disabilities. Cowardin Report at 10, 16; Cowardin at RT 626:15-23. Masking behavior is even more common among developmentally disabled people who are considered to be higher functioning with only “mild” support needs — the majority of developmentally disabled prisoners. Cowardin Report at 16. Masking results in compensatory behaviors such as wearing a broken watch to provide a reason to ask another person what time it is or carrying a book to pretend to be literate. Cowardin at RT 624:4-625:2. Thus, plaintiff class members may appear to have skills in areas in which they actually require help.

61. Individuals with developmental disabilities also have inconsistent and uneven skill development, which can mask areas of impairment. Cowardin at RT 621:7-20, 626:4-14; Salz at RT 75:25-76:16; Leone at RT 781:18-25. A person with adequate self-care skills, for example, may have significant functional impairments in other areas. Cowardin at RT 621:7-20. Dr. Salz described encountering a prisoner who was able to read entire novels yet was so impaired socially that he required a very high level of supervision. Salz at RT 75:25-76:16.

62. People with developmental disabilities might have deficits in information durability. In other words, they might need repeated reminders, even if the task is one they have undertaken before. Cowardin Report at 12-13; Cowardin at RT 621:21-623:3.

63. Many individuals with developmental disabilities have trouble transferring information: taking a skill they have learned in one area and applying it to a similar task in another area. Cowardin Report at 12-13. At the evidentiary hearing, Dr. Cowardin described how a developmentally disabled prisoner might learn to stay inside the yellow boundary lines painted in his housing unit, but may not apply that skill to another prison if transferred. Cowardin at RT 623:4-624:3; see also Leone at RT 769:6-10.

64. People with developmental disabilities can function well in highly structured environments such as prisons, where personal choices regarding food, clothing and activities are eliminated. Cowardin Report at 36. Prisons, however, also have numerous and complex rules. Id. The stress of learning, understanding, remembering, and complying with the multitude of rules that govern prison life can offset the potential benefits of the highly structured environment for developmentally disabled prisoners. Id.

64. Dr. Cowardin reports that myths about the functional capacities of people with developmental disabilities perpetuate the idea that such “people ... perform poorly due to ignorance, insufficient education, or poor motivation/effort ....” Id. at 10. In fact, “a developmental disability is a severe, chronic condition that manifests in the developmental period (birth through age 18), requires an array of mild to intensive supports, and is expected to last for a lifetime. Developmental disabilities may be cognitive, physical, or a combination of both.” Id.; see also CRP at 1.

Mental Retardation

66. The most common form of developmental disability is mental retardation. Cowardin Report at 14. Mental retardation is characterized by limitations in intellectual functioning, typically reflected in intelligence quotients of approximately 70 or below and concurrent limitations in adaptive behavior originating prior to the age of 18. Id. Limitations in adaptive behavior required to meet the criteria include deficits in at least one of the following: conceptual skills (reading, writing, math), social skills (gullibility, interpersonal skills, following rules) and practical skills (such as activities of daily living, safety, use of money). Id.

67. Mental retardation is commonly classified as “mild,” “moderate,” or “severe” in diagnostic and clinical settings. Id. at 15. However, the term “mild” mental retardation is misleading. In fact, everyone with mental retardation has significant functional impairments, compared to people without mental retardation. Id. at 15-16; Cowardin at RT 630:4-631:18. “People with mental retardation have sub-average abilities in multiple areas that impact learning and adaptive functioning.” Cowardin Report at 12. Thus, compared to people without mental retardation, they have “low functional skills across the board (e.g., communication, socialization, community/home, independence, and functional academics).” Id.

Autism and Spectrum Disorders

68. Autism and autism spectrum disorders are also developmental disabilities. Id. at 13-14. Autism is a severe cognitive disorder that “originat[es] in infancy or early childhood” and is “characterized by self-absorption, an inability to interact socially, repetitive behavior, language dysfunction, inflexible adherence to specific nonfunctional routines or rituals, stereotyped and repetitive motor mannerisms, and persistent preoccupation with parts of objects.” Id. at 13; see also Cowardin 632:7-633:24. Asperger’s Syndrome, which is an autism spectrum disorder and “considered a ‘milder’ variant of autism, is characterized by social isolation, clumsiness, and obsessive preoccupation with limited conversation topics.” Cowardin Report at 13; see also Cowardin at RT 633:18-24 (characterized by “perseveration on a topic” of conversation), 633:7-9 (explaining perseveration as a fixation on a particular area).

Other Developmental Disabilities

69. Epilepsy, cerebral palsy, and traumatic brain injury are also developmental disabilities. Cowardin Report at 11. Mental illness, on the other hand, is not a developmental disability. Cowardin at RT 631:22-24. Mental illness can co-occur with developmental disabilities, but not all developmentally disabled people have mental illness, and vice versa. Id. at 631:25-632:6. Mental illness is not a cognitive disability; it does not affect intelligence. Id. at 635:16-636:1.

2. Functional Impairments of Prisoners with Developmental Disabilities

70. The parties agree that plaintiff class members may require assistance in multiple areas. CRP at 6-7; Salz at RT 82:21-84:16; Leone at RT 749:4-10; see generally Cowardin Report at 18-36. The Court finds the following are examples of areas in which developmentally disabled prisoners have deficits.

71. Many developmentally disabled prisoners have impaired communication skills. CRP at 6; Cowardin Report at 26. Many are unable to read and write. Salz at RT 83:4-7, 116:18-21. They have difficulty understanding instructions, especially multi-step instructions, and difficulty with any task that requires writing, such as filling out requests for medical or mental health care and grievances. Cowardin Report at 25-27, 29-30, 32-33. It is difficult for them to express themselves, and they often need assistance choosing words to make their point. Id. at 26. As a result, developmental^ disabled prisoners often have difficulty communicating, self-advocating, and understanding what takes place during prison administrative proceedings and grievance processes. Id. at 25-28; CRP at 6; Salz at RT 83:13-17. They are therefore at risk for unintentionally waiving their rights. CRP at 6.

72. Many prisoners with developmental disabilities have poor socialization skills. Id.; Cowardin Report at 18-21; Salz at RT 83:18-25. These prisoners have a “mental youngness,” Cowardin at RT 620:19, and are naive with respect to prison culture and routines. Cowardin at RT 625:3-13; CRP at 6; Salz at RT 83:18-25. This “mental youngness” is especially problematic in prison settings because prisoners exhibiting this characteristic are vulnerable to abuse and manipulation by other prisoners. Cowardin Report at 19-21; Salz at RT 123:11-14, 124:21-125:4; CRP at 6. These prisoners become easy targets for abuse “as their weaknesses becomes obvious to other prisoners in their housing units.” Cowardin Report at 19. They might make poor social choices, such as giving their property to other prisoners, increasing their vulnerability and risk of abuse. Id.; CRP at 6; Salz at RT 84:4-16. They are susceptible to becoming involved in a cycle of disciplinary infractions involving other prisoners and staff members as a result of their lack of judgment and inability to understand consequences. CRP at 6; Leone at RT 765:23-766:2; see also Cowardin Report at 18 (failure to “understand the fine points or nuance of complex social situations ... increases the risk that they will misunderstand changing rules and regulations, make poor decisions based on confusion or misunderstanding, and get into trouble”).

73. Many prisoners with developmental disabilities are also naive about health and safety. These prisoners have difficulty identifying, treating, or preventing illness, administering first aid to themselves, and understanding sexuality and basic safety. CRP at 7; Cowardin Report at 30. This deficit is especially problematic among developmentally disabled prisoners with poor self-advocacy skills. Because these prisoners may be masking their disabilities, are simply unaware that there is a problem, or do not know how to access assistance, they are not likely to request help. Cowardin Report at 24-25; Cowardin at RT 624:4-12. If they do attempt to self-advocate, they have difficulty complying with multistep procedures for accessing resources, such as medical and dental services, grievances, the law library, and religious services. Cowardin Report at 30-33.

74. Many developmentally disabled prisoners have poor self-care skills. Id. at 28-30; see also CRP at 6; Salz at RT 84:4-5. They may need reminders to bathe, brush their teeth, and wash their clothes, and they can have soiled or unkempt clothing, poor eating habits, and dirty or disorganized cells. CRP at 6; Cowardin Report at 28. Poor hygiene further increases plaintiff class members’ risk for abuse in a prison environment. Cowardin Report at 29; Salz at RT 113:18-114:8.

75. Prisoners are subject to “an abundance of rules regarding all aspects of their lives.” Cowardin Report at 30. Developmentally disabled prisoners often have difficulty following rules and seeking needed assistance. CRP at 6; Salz at 114:9-115:2. Because they have “[i]ssues pertaining to durability of learning,” they require repeated reminders about the same rules. Cowardin Report at 31. Developmentally disabled prisoners might have difficulty understanding some rules that may be intuitive to others. Id. at 30-31. Thus, “[s]taff members who suspect a prisoner of being in violation of a rule must consider whether his or her disability was a factor in the transgression.” Id. at 31. In addition, to the extent that rules are posted in writing, many plaintiff class members have difficulty reading and comprehending them. Id.

76. Developmentally disabled prisoners often have difficulty with self-direction and making choices. CRP at 7; Cowardin Report at 36. It is difficult for such prisoners to follow schedules, initiate activities that are appropriate to particular settings, complete required tasks, problem-solve, and demonstrate appropriate assertiveness and self-advocacy. CRP at 7. For example, these prisoners have difficulty choosing and initiating leisure activities and appropriately engaging in those activities by taking turns, communicating with others, and behaving in an acceptable manner. Id. A lack of self-direction can increase their vulnerability. Cowardin Report at 18-19.

77. Similarly, these prisoners have difficulty maintaining work assignments due to inappropriate social behavior and a lack of relevant work skills. Id. at 7. They may be unable to apply functional academic skills to work assignments including managing oneself at work and communicating with individuals in the workplace. Id.

3. Support Services Required by Prisoners with Developmental Disabilities

78. The parties agree that prisoners with developmental disabilities require varied support services to access programs, services, and protection in prison. CRP at 7-9; Salz at RT 82:25-84:16,128:6-17; see generally Cowardin Report at 18-37.

79. Many developmentally disabled prisoners require prompting to begin or complete activities, such as showers, tooth-brushing, access to medical care, laundry exchange, and timely attendance at work and meals. Id.; Cowardin Report at 28-30; Salz at RT 112:19-25.

80. Prisoners with developmental disabilities require assistance by trained staff members to understand and participate in disciplinary, classification, and administrative processes. CRP at 8; Salz at RT 83:13-17. They require staff assistance to understand what is taking place during these proceedings. Salz at RT 83:13-17. They also need help choosing appropriate words to describe their positions. Cowardin Report at 26. Where forms or documents are provided, they need help reading, writing, and understanding those forms. Salz at RT 83:4-7; Cowardin Report at 25-28.

81. Developmentally disabled prisoners often require monitoring and additional supervision of their safety, property, behavior, and self-care. CRP at 8; Cowardin Report at 18-24. Staff members must closely monitor the behavior of developmentally disabled prisoners to ensure that they are not being manipulated to give up property or to violate prison rules. Cowardin Report at 31-32; Leone at RT 771:18-24, 772:16-20. Monitoring is required so that developmentally disabled prisoners do not fall prey to prolonged abuse without understanding that help is available. Cowardin Report at 21; Leone at RT 807:10-16.

82. Many prisoners with developmental disabilities require coaching, especially in work and academic assignments, to acquire the skills necessary to complete the activities independently. CRP at 8; see also Salz at RT 84:17-85:1.

4. All Developmentally Disabled Prisoners Require Individualized and Proactive Help

83. The parties agree that the level of support required by each prisoner varies. Cowardin Report at 17; Salz at RT 82:25-84:16, 85:2-5. Moreover, staff members must consider the individual support needs of each prisoner when providing adaptive support. Leone at RT 755:5-16, 762:23-763:8; see also Salz at RT 122:23-123:10 (officers must monitor developmentally disabled prisoners in proceedings that implicate their due process rights). Simply making generalizations about prisoners based on their classifications as DD1, DD2, or DD3 will not account for uneven skill development and anomalies in support needs that exist between prisoners with the same classification. Cowardin Report at 17-18; Salz at RT 75:25-76:16. Staff members must communicate frequently with developmentally disabled prisoners to determine what adaptive supports they require to access prison programs and services. Cowardin Report at 35-36; see also Salz at RT 122:6-123:2.

84. Because of plaintiff class members’ individualized support needs and uneven skill development, it is impossible to make broad generalizations about the support needs of an individual prisoner. Cowardin at RT 621:7-622:19; Leone Report at 2; Leone at RT 749:11; Salz at RT 75:25-76:16, 91:2-18. Rather, an individualized classification system that identifies a prisoner’s required level of help in multiple areas is more appropriate. Cowardin at RT 653:12-654:4.

85. Developmentally disabled prisoners who are considered higher functioning and are masking their deficits may forgo asking for help if they think it will make them appear disabled. Cowardin Report at 16. Further, prison culture dictates that prisoners avoid seeking help from prison staff. Salz at RT 122:6-13. It also discourages revealing instances of abuse to staff. Id. at 122:14-19, 126:17-127:9.

86. Thus, it is important for staff to provide proactive assistance and to monitor the support needs of all developmentally disabled prisoners, even those who appear high functioning. Cowardin Report at 16, 35-37; see also Salz at RT 122:6-123-10.

5. CDCR Classification System for Prisoners with Developmental Disabilities

87. Defendants have developed a system for classifying prisoners with developmental disabilities into three categories— DD1, DD2, and DD3 — based on their level of support needs. CRP at 21-23; Salz at RT 75:3-24. Prisoners classified as DD1 are equivalent to those with “mild” mental retardation. Cowardin Report at 16-18. Although considered higher functioning, DD1 prisoners still require a variety of adaptive supports. Cowardin Report at 17; CRP at 21-22; Salz at RT 75:5-10. Prisoners classified as DD2 function in the “moderate” range of mental retardation and, therefore, require more frequent prompts and adaptive supports than DD1 prisoners. Cowardin Report at 17; CRP at 22-23; Salz at RT 75:11-16. Prisoners classified as DD3 are in the “severe” range of impairment and require regular, intensive prompts and assistance to complete self-care and daily living tasks. Cowardin Report at 17; CRP at 23; Salz at RT 75:17-24. The majority, approximately 55%, of the prisoners identified as developmentally disabled by defendants are DDL Cowardin Report at 16. DD2 prisoners comprise 40%, and DD3 prisoners 5%, of the prisoners in the DDP. Id.

II. The Weight of the Evidence Demonstrates Current and Ongoing Violations of the Federal Rights of the Plaintiff Class

A. Expert Testimony

88. In addressing the central issue of whether there exist current and ongoing violations of the federal rights of plaintiff class members, the Court places great weight on the conclusions of Dr. Peter Leone, who has served as the Court’s expert for 12 years. Order Appointing Experts and Prescribing Duties, August 18, 1998 (Dkt.# 180), at 1. Dr. Leone, who was selected and agreed upon by both parties, is highly qualified to serve as an expert. Id. He has a Ph.D. in special education, has long standing memberships in the Council for Exceptional Children and the American Statistical Association, has received numerous research grants over the years, and is currently a professor at the University of Maryland, where his research focuses on, among other things, behavioral problems in institutional settings. Leone at RT 716:21-718:13. Dr. Leone also has extensive experience working with adult corrections in Maryland, Florida, Texas, Illinois, Pennsylvania, New York, Connecticut, and New Hampshire. Leone at RT 719:14-719:24. Dr. Leone has prepared teachers in the Maryland Department of Corrections to work with developmentally disabled individuals and researched and prepared a report for the National Institute of Corrections on the Texas Mentally Retarded Offender Program. Leone at RT 719:2-719:13. Defendants have never previously challenged his ability to assess compliance with the Remedial Plan. Leone at RT 726:8-726:11. Nor have defendants previously questioned Dr. Leone’s expertise to opine about the Developmentally Disabled Program (DDP) in the prisons. Leone at RT 721:17-21.

89. To rea