Full opinion text
ORDER LAWRENCE K. KARLTON, Senior District Judge. In ongoing sequelae to defendants’ January 7; 2013 motion to terminate this action (hereafter “termination motion”) (ECF No. 4275), two additional motions brought by plaintiffs for enforcement of court orders and affirmative relief are before the court. On May 9, 2013, plaintiffs filed a motion related to housing and treatment of mentally ill inmates placed in segregation units in California’s prison system (ECF No. 4580). On May 29, 2013, plaintiffs filed a motion related to use of force and disciplinary measures against members of the plaintiff class (ECF No. 4638). The matters at bar were also tendered as grounds for denying defendants’ termination motion. See Corr. Pls. Opp. To Defs. Motion to Terminate, filed Mar. 19, 2013 (ECF No. 4422) at 58-65; 87-91. The court denied the termination motion by order filed April 5, 2013, see Coleman v. Brown, 938 F.Supp.2d 955 (E.D.Cal.2013), and separately set an evidentiary hearing on plaintiffs’ motions. In relevant. part, evidentiary hearing on plaintiffs’ motions commenced on October 1, 2013, continued over twenty-eight court days and concluded on December 9, 2013. Following the filing of closing briefs and responses thereto by the parties, the matters were submitted for decision. Because the plaintiffs relied in part on the matters considered in this order, the court holds that this order is a further demonstration that the order denying the motion to terminate was properly denied. Plaintiffs’ motions present two questions: First, have defendants sufficiently remedied Eighth Amendment violations in use of force, disciplinary measures, and segregated housing relative to class members, which were identified in the court’s 1995 decision on the merits of plaintiffs’’ Eighth Amendment claims? Second, if the answer to the first question is no, what additional remedial measures are required to end ongoing Eighth Amendment violations in these areas? At the outset, the court wishes to recognize the overall significant progress the defendants have made relative to providing constitutionally required care to the plaintiffs’ class. Indeed, though defendants’ motion to terminate was clearly premature, recognition of the progress made is important. Nonetheless, for the reasons discussed below, the answer to the first question is no. The answer to the second question is determined by what the Eighth Amendment requires when seriously mentally ill individuals are incarcerated. The very difficult questions presented by the motions at bar are a consequence of the fact that California incarcerates tens of thousands of seriously mentally individuals in its state prison system., As of September 2013, there were 33,259 inmates identified in the California Department of Corrections and Rehabilitation’s (CDCR) outpatient mental health population. Pis. Ex. 2303. The number of mentally ill inmates represents approximately '28.25% of the inmate population housed in CDCR’s prison institutions. These inmates received mental health care through the CDCR’s Mental Health Services Delivery System (MHSDS), which provides four levels of mental health care. An understanding of the treatment criteria for each level of mental health care is necessary to resolution of the motions at bar. All members of the plaintiff class suffer from serious mental disorders. The Correctional Clinical Case Management System (CCCMS) provides mental health services to seriously mentally ill inmates with “stable functioning in the general population, • Administrative Segregation Unit (ASU) or Security Housing Unit (SHU)” whose mental health symptoms are under control or in “partial remission as a result of treatment.” Pis. Ex. 1200, MHSDS Program Guide, 2009 Revision, at 12-1-7. In September 2013, 28,360 mentally ill inmates were at the Correctional Clinical Case Management (CCCMS) level of care. Pis. Ex. 2303. The remaining three levels of mental health care are for seriously mentally ill inmates who, due to their mental illness, are unable to function in the general prison population. The Enhanced Outpatient Program (EOP) is for inmates with “acute onset or significant decompensation of a serious mental disorder.” Pis. Ex. 1200 at 12-1-7, 12-1-8. EOP programs are located in -designated living units at “hub institution[s].” Id. at 12-1-8. In September 2013, 4,538 mentally ill inmates were at the Enhanced Outpatient Program (EOP) level of care. Pis. Ex. 2303. Mental Health Crisis Beds (MHCBs) are for mentally ill inmates in psychiatric crisis or in need of stabilization pending transfer either to an inpatient hospital setting or a lower level of care. Pis. Ex. 1200, Program Guide at 12-1-8. MHCBs are generally licensed inpatient units in correctional treatment centers or other licensed facilities. Id. at 12-1-9. Stays in MHCBs are limited to not more than ten days. Id. at 12-5-1. Finally, several inpatient hospital programs are available for class members. With one exception the inpatient programs are operated by the Department of State Hospitals (DSH). Id. at 12-1-9. Some of those programs are on the grounds of state prisons, while others are in existing state hospitals. In addition to the foregoing, resolution of the motions at bar turns on understanding the nature of the inquiry before the court. In relevant part, in 1995 this court found that “seriously mentally ill inmates [are] being treated with punitive measures by the custody staff to control the inmates’ behavior without regard to the cause of the behavior, the efficacy of such measures, or the impact of those measures on the inmates’ mental illnesses.” Coleman v. Wilson, 912 F.Supp. 1282, 1320 (E.D.Cal.1995). The court also found that “mentally ill inmates are placed in administrative segregation and segregated housing without any evaluation of their mental status, because such placement will cause further decompensation, and because inmates are denied access to necessary mental health care while they are housed in administrative segregation and/or segregated housing.” Id. at 1320. Finally, the court found that “weapons are used on inmates with serious mental disorders, without regard to the impact of those weapons on their psychiatric condition, and without penological justification.” Id. at 1323. In analyzing the merits of plaintiffs’ claims, the court applied the well-settled principle that “[a]n Eighth Amendment violation is comprised of both an objective component and a subjective component.” Id. at 1298 (citing Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The objective component turns on whether the alleged deprivations are “sufficiently serious” to constitute the “ ‘unnecessary and wanton infliction of pain’ ” proscribed by the Eighth Amendment. Wilson, 501 U.S. at 298, 111 S.Ct. 2321 (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). The findings in the preceding paragraph formed the objective component of the Eighth Amendment violations at issue. The subjective component of an Eighth Amendment violation requires a finding that the defendants have a “sufficiently culpable state of mind”. Wilson, 501 U.S. at 298, 111 S.Ct. 2321 (citing Rhodes). This requires the court “to assess whether the conduct at issue is ‘wanton.’ ” Coleman v. Wilson, 912 F.Supp. at 1321 (quoting Jordan v. Gardner, 986 F.2d 1521, 1527 (9th Cir.1993)) The “baseline” mental state for “wantonness” is “deliberate indifference.” Id. As a general rule, the deliberate indifference standard applies where the claim is that conditions of confinement cause unnecessary suffering. Id. In contrast, the “malicious and sadistic” standard applies to claims arising out of the use of force to maintain order. See id. Coleman v. Wilson, 912 F.Supp. at 1321-22 (quoting Jordan, 986 F.2d at 1527-28). The Eighth Amendment violations at bar were all predicated on findings that defendants’ policies and practices governing the use of force, punitive measures, administrative segregation and segregated housing constituted deliberate indifference to class members’ serious mental illnesses and the serious and substantial harms to members of the plaintiff class caused by use of such measures. See Coleman v. Wilson, 912 F.Supp. at 1319-1323. Defendants now oppose plaintiffs’ motion concerning use of force and disciplinary .measures on the ground that there is no pattern and practice of malicious and sadistic use of force against mentally ill inmates. See Defs.’ Opp’n to Motion Related to Use of Force and Disciplinary Measures, filed July 24, 2103 (ECF No. 4704) at 8. To some extent, this aspect of defendants’ opposition may have been invited by some of the arguments advanced by plaintiffs in their motion. Regardless, the question of whether defendants’ policies and practices prevent or fail to prevent force applied maliciously and sadistically for the very purpose of causing harm, see Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), is not before this court. First, application of that standard to the claims at bar was rejected by the court in 1995. While a different claim or changed circumstance might justify application of that standard, that appears not to be the case here. Accordingly, the law of the case doctrine applies to the instant motion. See, e.g. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). Second, as the court discussed in its order denying defendants’ motion to terminate this action, once an Eighth Amendment violation is found and injunctive relief ordered, the focus shifts to remediation of the serious deprivations that formed the objective component of the identified Eighth Amendment violation. See Coleman v. Brown, 938 F.Supp.2d at 988. Remediation can be accomplished by compliance with targeted orders for relief or by establishing that the “violation has been remedied in another way.” Id. To the extent the subjective component of an Eighth Amendment violation remains a relevant inquiry, it is coextensive with proof of ongoing objectively unconstitutional conditions. Id. at 989. Defendants also argue that an assessment of whether defendants are subjectively deliberate indifferent should include examination of whether the conduct or regulations at issue are “without penological justification” and that the factors outlined in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) “may be instructive in evaluating whether regulations challenged under the Eighth Amendment have a legitimate penological purpose.” Defendants’ Post-Evidentiary Hearing Brief, filed January 21, 2014 (ECF No. 4988) at 7. This argument misses the mark. Violations of the Eighth Amendment are not excused by an asserted “reasonable relationship” to a legitimate penological goal. See Johnson v. California, 543 U.S. 499, 511, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); see also Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.1993) (en banc). Turner applies where the constitutional right at issue is “one which is enjoyed by all persons, but the exercise of which may necessarily be limited due to the unique circumstances of imprisonment.... Eight Amendment rights do not conflict with incarceration; rather, they limit the hardships which may be inflicted upon the incarcerated as ‘punishment.’ ” Jordan, 986 F.2d at 1530 (citing Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir.1979)). “[T]he integrity of the criminal justice system depends on full compliance with the Eighth Amendment.” Johnson, 543 U.S. at 511, 125 S.Ct. 1141. Whatever rights one may lose at the prison gates, cf. Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (prisoners have no right to unionize), the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is to protect persons convicted of crimes. Eighth amendment protections are not forfeited by one’s prior acts. Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary. The ultimate duty of the federal court to order that conditions of state confinement be altered where necessary to eliminate cruel and unusual punishments is well established. Spain v. Procunier, 600 F.2d at 193-94 (emphasis added). “The existence of a legitimate penological justification has, however, been used in considering whether adverse treatment is sufficiently gratuitous to constitute punishment for Eighth Amendment purposes.” Grenning v. Miller-Stout, 739 F.3d 1235, 1240 (9th Cir.2014) (citing Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)) (in turn quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Thus, the presence of a legitimate penological justification for conditions of confinement challenged under the Eighth Amendment may be considered in determining whether the challenged condition constitutes punishment prohibited by the Eighth Amendment. See Grenning, 739 F.3d at 1240 (discussing Chappell v. Mandeville, 706 F.3d 1052, 1058 (9th Cir.2013) and Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir.1996)). Nonetheless, in this case such consideration is necessarily delimited by the necessity of consideration of class members’ mental status. The interrelationship of these two legitimate considerations is the crux of the problem considered herein. In sum, failure to properly consider the mental state of class members requires the court to act. If defendants fail to meet their Eighth Amendment obligations, this court must enforce compliance. See Brown v. Plata, — U.S. —, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011) (citing Hutto v. Finney, 437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)). “Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 131 S.Ct. at 1928-29. Finally, defendants assert that plaintiffs have the burden of proof on this motion. Plaintiffs do not dispute this assertion. Given all the above, the court now turns to the motions at bar. I. Use of Force/Disciplinary Measures A. Use of Force The Eighth Amendment violation with respect to use of force (hereafter “use of force” or “UOF”) arises from policies and practices that permit use of force against seriously mentally ill prisoners without regard to (1) whether their behavior was caused by mental illness and (2) the substantial and known psychiatric harm and risks thereof caused by such applications of force. See Coleman v. Wilson, 912 F.Supp. at 1322. The record showed then, and still shows, that force can be and is used against seriously mentally ill inmates in circumstances that permit reflection prior to its application. See id., 912 F.Supp. at 1321-23; see also Ex. A to Declaration of Michael D. Stainer, filed March 12, 2014 (ECF No. 5111 — l). Remediation of the identified Eighth Amendment violation concerning use of force against California’s seriously mentally ill inmates requires at least three things: (1) development of policies and procedures which provide sufficient guidance and clarity to avoid the identified harm; (2) adequate implementation of those policies and practices, including but not limited to appropriate training of all staff; and (3) adequate enforcement of those policies and procedures. Whether ■the constitutional violation remains is a different question from the nature of further relief, if any, that may be required if the constitutional violation is ongoing. In addition to the legal principles set forth supra, two other principles guide the court’s consideration of the issues at bar. First, there appears to be general agreement among the appellate courts that have considered the question that “ ‘it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary....’” Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir.1996) (quoting Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984)). “This is because, even when properly used, such weapons ‘possess inherently dangerous characteristics capable of causing serious and perhaps irreparable injury to the victim.’ ” Williams, 77 F.3d at 763 (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985)). Second, at least one appellate court has found that the Eighth Amendment is violated by use of pepper spray on a mentally ill inmate who, because of mental illness, is unable to comply with directives from prison officials and nonetheless is subjected to pepper spray. See Thomas v. Bryant, 614 F.3d 1288, 1310-11 (11th Cir.2010) (“repeated non-spontaneous use of chemical agents” on mentally ill inmate “constituted an extreme deprivation sufficient to satisfy the objective prong” of Eighth Amendment deliberate indifference claim where inmate’s “well-documented history of mental illness and psychotic episodes rendered him unable to comply at the times he was sprayed such that the policy was ‘unnecessary’ and ‘without penological justification in his specific case.’ ”) Taken together, the foregoing two lines of authority suggest that the Eighth Amendment requires clear and adequate constraints on the amount, if any, of pepper spray that may be used on mentally ill inmates generally and more particularly when such inmates are confined in a space such as a cell or a holding cage, as well as significant constraints, if not a total ban, on the use of pepper spray on mentally ill inmates who because of their mental illness are unable to comply with official directives. The court now turns to the merits of plaintiffs’ motion with respect to use of force. Defendants’ written UOF policy is found in Title 15 of the California Code of Regulations at §§ 3268-3268.3 and CDCR’s Department Operations Manual Chapter 5, Article 2-Use of Force (DOM). Defs. Ex. J, Stainer Decl., filed July 24, 2013 (ECF No. 4708) at ¶ 5. The current provisions of Title 15 were revised in August 2010 and implemented thereafter. Amended Declaration of John R. Day, filed August 26, 2013 (ECF No. 4772-1) at ¶ 4. DOM provisions governing UOF have been revised twice since the conclusion of the evidentiary hearing. See Stainer Decís. (ECF Nos. 4987, 5078, 5111-1). While defendants dispute plaintiffs’ characterization of the uses of force depicted on six videotapes shown at the hearing, several of the DOM revisions appear directly aimed at preventing such uses of force. At the hearing, Michael Stainer, the Director of CDCR’s Division of Adult Institutions testified that none of the uses of force depicted in the six videotapes constituted excessive force “as defined by [CDCR] policy.” Reporter’s Transcript Re: Evidentiary Hearing (RT) at 911:23— 912:1. He further testified that in his view while none of the videos depicted excessive force “there might have been better ways of doing things, but that is tactics.... [W]e plan on addressing that with our policy revisions which provide additional guidance.” RT at 912:2-7. The court accepts Mr. Stainer’s testimony that none of the force depicted on the six videotapes was excessive under then-existing guidelines in CDCR policy. In combination with the events depicted on the videotapes, that testimony is perhaps the best evidence that the constitutional violation with respect to use of force on seriously mentally ill inmates has not yet been remedied. The court cannot credit Mr. Stainer’s testimony that what was depicted on the six videos shown at the hearing depicted acceptable “tactics.” Most of the videos were horrific; each was illustrative of one or more of the objective components of the underlying constitutional violation found in the court’s 1995 order. Defendants’ expert, Steve Martin, testified that the fact that the events depicted on the videotapes “occurred is bad enough, and, hopefully, they’re as few in number, as I believe them to be, ... But what is so bothersome and disturbing is that no — this sophisticated IERC (Institutional Executive Review Committee) with all these ranking administrators experienced as Director Stainer is, could read these .reports and not at least question the amount of spray or the tactics used.... ” RT at 1903:9-17. Mr. Martin testified that without such questioning, neither review nor corrective action occurs and the absence of corrective action is “the path to institutionalizing a culture that lends itself to harm, to institutionalized harm.” RT at 1903:22-1905:18. Even if the incidents on the videotapes were, as Mr. Martin testified, “isolated aberrations, anomalies, outliers” that “do not ... represent the vast majority of incidents” he reviewed, RT at 1795:3-8, Mr. Stainer’s testimony establishes that all of the incidents fell within the purview of defendants’ UOF policy. Furthermore, both Mr. Martin and Mr. Stainer testified that none resulted in further review beyond the IERC or, except for some “trainings”, corrective action independent of these proceedings. RT at 954:6-17 (Stainer); RT at 1901:16-1903:12 (Martin). This, in itself, demonstrates the constitutional inadequacy of either the regulations or the review process. In addition, plaintiffs’ evidence suggests that force is used against mentally ill inmates at a rate greatly disproportionate to their presence in the overall inmate population. Plaintiffs’ expert, Eldon Vail, reported that twelve of California’s prisons reported use of force incidents against mentally ill inmates at a rate more than double their representation in the prison population, three prisons reported use of force incidents against mentally ill inmates at a rate triple their representation in the prison population, and in several, 87 to 94% of the use of force incidents were against mentally ill inmates. Expert Declaration of Eldon Vail, filed May 29, 2013 (ECF No. 4638-1) at ¶¶ 9-11. As Mr. Vail opined, this is evidence, at least, of a systemic failure to understand “what a mentally ill person might be experiencing before or during a use of force incident, or of how mental illness may make it difficult for an inmate to immediately conform his or her behavior in response to an order.” Id. at ¶ 12. Mr. Stainer also testified to the need for revisions to the policy to guide staff in making “appropriate” UOF decisions and that the UOF guidelines would be “tighten[ed] down ... quite a bit.” RT at 826:16-25. The policy revisions are a critical step forward and, if fully implemented and enforced, will bring the state closer to remediation of the identified Eighth Amendment violation. Without more, however, seriously mentally ill inmates in California’s prisons will remain subject to uses of force by custody staff armed with OC pepper spray and expandable batons “without regard to the impact 'of those weapons on their psychiatric condition.” Coleman v. Wilson, 912 F.Supp. at 1323. Title 15 and the DOM divide use of force incidents into two categories: immediate and controlled. “Immediate use of force” is “[t]he force used to respond without delay to a situation or circumstance that constitutes an imminent threat to the security or the safety of persons.” 15 C.C.R. § 3268(a)(4); see also DOM § 51020.4. “Controlled use of force” is defined as “[t]he force used in an institution/facility setting when an inmate’s presence or conduct poses a threat to safety or security and the inmate is located in an area that can be controlled or isolated.” 15 C.C.R. § 3268(a)(5); see also DOM § 51020.4. The DOM provisions expand on the regulations by providing that immediate uses of force may be used by employees without prior authorization, while controlled uses of force require authorization and presence of specific personnel. See DOM § 51020.4. The differences between these two categories are significant to the remedy in this case. “Immediate” uses of force are applied without the reflection and intervention that can avoid or prevent the serious harm suffered by members of the plaintiff class when force is used. See RT at 1967:6-12. Thus, the definition of immediate use of force must be adequate to exclude uses of force in circumstances where “time, distance and delay” can be taken before force is used. See RT at 1966:17-1968:4 (testimony of Steven Martin that if an officer could have “waited and taken time, distance and delay” instead of immediately using force “the force obviously was not necessary.”) Plaintiffs’ expert, Eldon Vail, testified that the appropriate criteria for immediate use of force is already in California’s use of force policy, which on its face requires an “imminent threat” to justify an immediate use of force. RT at 436:7-8, 436:24-473:3; see also RT at 1935:11-14 (testimony of defense expert Steven Martin that “immediate use of force is supposed to be used only if there’s some imminent harm that needs to be stopped.”) Mr. Vail’s principal critique of the written policy was a then-existing exception in § 51020.11.2 of the DOM which allowed immediate use of force against inmates who refused to relinquish their food ports. See Ex. A to Stainer Deck (ECF No. 4708-1) at 5. Mr. Vail testified that was a “really huge flaw” in defendants’ use of force policy. RT at 553:5-554:4. Newly amended § 51020.11.2 has removed that exception and no longer authorizes immediate use of force when an inmate refuses to relinquish a food port. Instead, “[i]n the event the inmate does not relinquish control of the food port, the officer shall back away from the cell and contact and advise the custody supervisor of the situation. Controlled force will be initiated while custody staff continue to monitor the inmate.” Ex. A to Stainer Decl. (ECF No. 5111-1) at 9. Mr. Stainer averred that the revisions to the DOM concerning the food ports were made “to emphasize CDCR’s policy that the immediate use of pepper spray is only authorized in response to an emergent or imminent threat.” Stainer Deck (ECF No. 5111-1) at ¶ 3. As revised,'defendants’ current written policy concerning immediate use of force appears to be adequate on its face. However, testimony at the hearing and the nature of the revisions to the DOM highlight both the importance of adequate training in the revisions to the policy and the necessity of monitoring immediate uses of force to ensure that they are limited to “imminent threats.” The record before the court suggests that for an extended period of time CDCR staff have been working with a broad definition of “imminent threat.” In addition to the food/security port exception, there was evidence at the hearing that immediate use of force was authorized by policy when, even without an imminent threat, inmates kicked their cell doors. RT at 436:5-9. Defendants’ expert Steve Martin testified that “[t]here are substantially more use of force incidents [in CDCR] that are immediate and not controlled.” RT at 1966:9-13. He testified concerning a high percentage of immediate use of force incidents at Pelican Bay in the period from January to October 2012. RT at 1935:18-1937:3. He reviewed 180 incidents of use of force, 174 of which had been characterized as “ ‘immediate applications of force.’ ” RT at 1935:15-1936:9. In reviewing those incidents, he “identified fairly quickly a number of incidents” categorized as “immediate” uses of force that evidence showed “could have been managed through ‘controlled force.’ RT at 1936:17-19. Those incidents evidenced unnecessary uses of force. See RT at 1967:17-1968:4 (“immediate” use of force where “controlled use of force” was possible demonstrates unnecessary use of force “because if you could have waited and taken time, distance and delay, the force obviously was not necessary”) The foregoing suggests that heretofore immediate use of force has been used with far greater frequency than authorized by the written policy testified to by Mr. Stainer. It will be necessary going forward for defendants to provide adequate staff training and to closely monitor all UOF incidents, particularly those classified as “immediate” uses of force, to ensure that these policy revisions are actually effected. The issues with respect to controlled use of force are different. They concern (1) whether defendants obtain the relevant information concerning an inmate’s mental illness prior to application of force; and (2) what is done with the information that is obtained. Section 51020.4 of the DOM defines controlled use of force as the force used in an institution/facility setting, when an inmate’s presence or conduct poses a threat to safety or security and the inmate is located in an area that can be controlled or isolated. These situations do not normally involve the immediate threat to loss of life or immediate threat to institution security. All controlled use of force situations require the authorization and the presence of a First or Second Level Manager, or Administrative Officer of the Day (AOD) during non-business hours. Staff shall make every effort to identify disabilities, to include mental health concerns, and note any accommodations that may need to be considered. Ex. A to Stainer Decl. (ECF No. 5111-1) at 6. In addition to the definitional provision, several other DOM provisions are relevant to the issues before the court. The use of force options available to CDCR officers are set forth in DOM § 51020.5. That section provides: Use of Force options do not have to be utilized in any particular sequence, but should be the force option staff reasonably believes is sufficient. Verbal persuasion or orders should be issued prior to resorting to force and are required to be provided before controlled force is used.... Use of force options include but are not limited to: • Chemical agents • Hand-held batons • Physical strength and holds. A choke hold or any other physical restraint which prevents the person from swallowing or breathing shall not be used unless the use of deadly force would be authorized. • Less-lethal weapons. A less lethal weapon is any weapon that is not likely to cause death. A 37mm or 40mm launcher and any other weapon used to fire less lethal projectiles is a less lethal weapon. • Lethal weapons. A firearm is a lethal weapon because it is used to fire lethal projectiles. A lethal weapon is any weapon that is likely to result in death. Ex. A to Stainer Decl. (ECF No. 4708-1), at 3. DOM section '51020.12 sets forth the general requirements for controlled use of force. Ex. A to Stainer Decl. (ECF No. 5111-1) at 9-10. It requires that mental health concerns “be taken into account pri- or to any controlled use of force.” Id. at 10. It also requires that all controlled uses of force be preceded by a cool down period of reasonable length to allow the inmate an opportunity to comply with staff orders. During the cool down period, clinical intervention by a licensed practitioner shall be attempted, regardless of the mental health status of the inmate. The length of the cool down period can vary depending upon the circumstances. In situations involving participants in the mental health program, Incident Commanders, on-site Managers, and licensed health care practitioner shall discuss concerns that may affect the length of the cool down period. The First or Second Level Manager, or the AOD, shall determine the length of the cool down period and communicate this to the Incident Commander.... A controlled use of force shall not be accomplished without the presence of a licensed health care practitioner. Id. at 10. Controlled uses of force must be video recorded. See id., DOM § 51020.12.1. DOM § 51020.12.1 vests the Incident Commander with the responsibility for “determining what force options shall be used and the order in which they will be applied.” Ex. A to Stainer Decl. (ECF No. 5111-1) at 11. The Incident Commander is required to “consider”, inter alia, the inmate’s “apparent mental state” when determining those force options. Id. The First or Second Level Manager/AOD must “identify themselves on camera and confirm they are authorizing the controlled use of force, including the force options as stated by the Incident Commander.” Id. The attempted clinical intervention, which is described as “efforts made to verbally counsel the inmate and persuade the inmate to voluntarily come out of the area without force” is to be recounted on camera by the licensed health care practitioner who attempted the intervention; the actual intervention is not recorded. Id. DOM § 51020.12.2 contains specific provisions for controlled uses of force involving seriously mentally inmates, as follows: When inmates are housed in departmental hospitals, infirmaries, Correctional Treatment Centers (CTC), Enhanced Outpatient Program Units (EOP), or Psychiatric Services Units (PSU), or has an EOP level of care designation, or any inmate who is acting in a bizarre, unusual, uncharacteristic manner, the controlled use of force shall occur as follows: • A licensed health care practitioner designated by the Chief Executive Officer (CEO) shall be consulted prior to the use of chemical agents (see Chemical Agents Restrictions). • Clinical intervention by a licensed practitioner shall be attempted. Clinical intervention shall also precede the extraction of any inmate who is being extracted upon the written order of a medical doctor, psychiatrist, or psychologist to facilitate a change in housing for treatment purposes. • The clinician shall attempt to verbally counsel the inmate and persuade the inmate to voluntarily come out of the area without force. These efforts shall continue during the cool down period. • "Whenever circumstances permit, the clinician shall be a mental health provider; i.e., Psychiatric Technician, Licensed Clinical Social Worker, Psychologist, or Psychiatrist. Id. at 12. Former DOM § 51020.12.2 was substantially similar; the amendment adds language extending its provisions to “any inmate who is acting in a bizarre, unusual, uncharacteristic manner.” See Ex. A to Stainer Decl. (ECF No. 5078-1) at 8. The provisions of DOM § 51020.12.2 are “additional safeguards and requirements” to be followed for controlled UOF on mentally ill inmates; the other provisions of the UOF policy also continue to apply. RT at 806:17-807:24. The amendments to the DOM change in significant ways the amount of pepper spray authorized in controlled UOF incidents. Amended DOM § 51020.15 lists the specific types of pepper spray authorized for use, the number of applications, and the duration of each application. Ex. A to Stainer Decl. (ECF No. 5111-1) at 14-15. Staff must wait a minimum of three minutes after an application of pepper spray before applying another application, and the Incident Commander and Response Supervisor must assess the effectiveness of each application. Id. at 15. No more than four applications of pepper spray are permitted, except that “[i]n exigent or unusual circumstances it may be necessary to exceed the 4 allowed applications.” Id. Additional applications must be specifically authorized by the First or Second Level Manager/AOD, and each must be explained on the video recording. Id. The Incident Commander and the Response Supervisor are required to consult with each other and “consider, the totality of circumstances to determine the best course of action.” Id. Additional consultation is required for mentally ill inmates: If the inmate is a participant in the mental health program and has not responded to staff for an extended period of time, including during the cool down period, laying motionless on bunk or floor, sitting on edge of bunk head down, no eye contact, and it appears that the inmate does not present an imminent physical threat, additional consideration and evaluation should occur before the use of chemical agents is authorized. This additional evaluation should include input from the assigned housing unit staff and licensed health care practitioners regarding the inmates recent behavior, file review for recent history of violence, previous cell extractions, etc. The rationale shall be explained on camera by the on-site Manager. Id. Amended DOM § 51020.15.1 limits the OC products that can be used in “one/two person celled housing, single person expanded metal holding cells, showers, or any other small space.” Ex. A to Stainer Decl. (ECF No. 5111-1) at 16. In addition, this section contains specific language governing use of pepper spray in controlled use of force incidents involving mentally ill inmates at the EOP level of care or higher: For controlled use of force incidents involving inmates housed in departmental hospitals, infirmaries, CTCs, EOPs, and PSUs, or who haye an EOP level of care designation, a licensed health care employee designated by the Chief Executive Officer (CEO) shall be consulted prior to the use of chemical agents: • The licensed health care practitioners shall document his/her recommendation regarding whether or not there is a contraindication for the use of chemical agents on a Medical Chrono (CDC 128C). This document shall be included in the incident package. • If, during the 'consultation, the licensed health care practitioners express concerns regarding the use of chemical agents, the First/Second Level Manager authorizing the use of force and licensed health care practitioners shall discuss the matter to determine the best course of action. The licensed health care practitioner shall consider in providing their consultation, the potential for injury during the use of physical force, as well as the medical implication of exposure to chemical agents. After the consultation, the decision to use chemical agents or physical force shall rest with the First or Second Level Manager authorizing the use of force. • If a decision is made to use chemical agents in spite of any contraindications, the decision shall be articulated and written justification provided. The written justification must include specific determinations and considerations to justify the need to over-ride the contraindications, beyond the statement of safety to staff or security of the institution. Consideration shall be given to the inmate’s mental health status and current mental state. Id. at 16. Unlike amended DOM § 51020.12.2, the provisions of this section do not extend to “any inmate who is acting in a bizarre, unusual, uncharacteristic manner.” See id. In addition, the amended provisions stand in contradistinction to DOM § 51020.14.1, which prohibits the use of less lethal weapons on seriously mentally ill inmates “housed in departmental hospitals, infirmaries, or other CDCR medical facilities, or who have an EOP level of care designation” in controlled use of force incidents unless authorized by the Institution Head, Chief Deputy Warden, or AOD and “[c]ircumstances [aye] serious in nature calling for extreme measures to protect staff or inmates, i.e., the inmate may be armed with a deadly weapon.” Ex. A to Stainer Deck (ECF No. 4708-1) at 6. Once again, the DOM revisions concerning controlled use of force evidence an effort to heighten consideration of the impact of UOF measures on mentally ill inmates. Nonetheless, it appears to the court that the measures do not meet Eighth Amendment standards. First, defendants’ policy concerning controlled use of force on the seriously mentally ill inmate fails to require consideration of the inmate’s ability to conform his or her conduct to the order or directive giving rise to the use of force. Defendants’ expert, Steve Martin, testified that “without qualification” the inmate’s ability to comply with orders must be considered if policy permits use of force for disobedience with an order, and that it is not appropriate to use of pepper spray tq obtain compliance with orders a seriously mentally ill inmate cannot and does not understand. RT at 1871:14-25, 1872:6-24. This factor must be considered. Cf. Thomas v. Bryant, 614 F.3d at 1311. Second, the policy revisions do not vest mental health clinicians with sufficient authority in decisions concerning use of force. In every instance, final decision-making responsibility and authority for all uses of force rest with custodial staff. While consultation with mental health staff is required, custody staff is authorized to override clinical judgments without sufficient guidance about which clinical judgments, if any, may be overridden and under what circumstances. Cf. Gates v. Gomez, 60 F.3d 525, 533 (9th Cir.1995) (interpreting consent decree; “since CMF is a prison health care facility, no custody decision should be made that is medically contraindicated.”) Mr. Stainer is to be commended for the steps he has taken to “tighten down” the use of force guidelines for use of force against members of the plaintiff class. The fact that additional work remains does not take away from the court’s recognition that Mr. Stainer appears to have taken his responsibility in this area seriously. The court anticipates that with continued diligence, full remediation can be achieved. Defendants must complete the work begun by Mr. Stainer so that their policies and practices relative to use of force on seriously mentally ill inmates include (1) consideration of the role of mental illness in an inmate’s,ability to comply with staff directives; (2) adequate guidance concerning the role of mental health clinical judgments in use of force on class members and when, if ever, those judgments may be overridden by custody staff; and (3) alternatives to use of force on seriously mentally ill inmates where there is no imminent threat to life and force is contraindicated by the inmate-patient’s mental health. Plaintiffs also challenge the use of the expandable baton on class members. Both plaintiffs’ expert, Mr. Vail, and defendants’ expert, Mr. Martin, agreed that the expandable baton is an impact weapon whose primary function is self-defense. See Vail Decl. (ECF No. 4638-1) at ¶¶ 31-32; Ex. 1 to Declaration of Lori E. Rifkin (ECF No. 4638-8) at 8. At the time of the hearing, the court heard testimony that the expandable baton is worn by California correctional officers.as “standard issue” on their duty belts. RT at 88:18-23 (Vail); RT at 1811:5-9. Defendants’ expert testified that there is not “sufficient guidance in either the regs or training materials” concerning the use of these batons. RT at 1812:17-19. Although it is not clear, it appears that defendants’ revised use of force policy may have changed the practice of standard issuance of expandable batons. See Ex. A to Stainer Decl. (ECF No. 5111-1) at 12 (DOM § 51020.12.3 including expandable baton in list of extraction equipment to “be issued” if extraction is necessary). Defendants will be directed to clarify this. Defendants shall work under the guidance of the Special Master to make the additional revisions to the use of force policy and the clarifications and guidance concerning the use of the expandable baton required by this order. The Special Master, shall provide expertise where necessary, and shall ensure that plaintiffs are provided notice and an opportunity for input as appropriate. The revisions shall be completed within sixty days. B. Disciplinary Measures Plaintiffs also contend that further remedial orders are required to remedy the identified constitutional violation in defendants’ use of disciplinary measures against mentally ill inmates. The constitutional violation was based in a finding that seriously mentally ill inmates “ ‘who act out are typically treated with punitive measure without regard to their mental status.’ ” Coleman v. Wilson, 912 F.Supp. at 1320. The court found “substantial evidence in the record of seriously mentally ill inmates being treated with punitive measure by the custody staff to control the inmates’ behavior without regard to the cause of the behavior, the efficacy of such measures, or the impact of those measures on the inmates’ mental illnesses.” Id. In 1995, the violation was attributed in substantial part to inadequate training of custody staff in the signs and symptoms of mental illness. Id. During the remedial phase of this action, defendants have developed a mental health assessment process for prison disciplinary proceedings involving most seriously mentally ill inmates. By September 2001, defendants had completed a final draft of a policy that required a mental health assessment of all EOP and MHCB inmates charged with rules violations “to determine if the behavior of the inmate resulting in the rule violation was influenced by a mental disorder.” Ex. 3 to Declaration of Jane E. Kahn, filed May 29, 2013 (ECF No. 4640) at 34. Formulation of policy for mental health assessment of CCCMS inmates charged with rules violations has proceeded more slowly. See Seventeenth Monitoring Report of the Special Master, Part B, filed April 2, 2007 (ECF No. 2180-1) at 44-47; Twenty-Third Round Monitoring Report of the Special Master, filed December 1, 2011 (ECF No. 4124) at 31-39. The relevant history is set forth in the Special Master’s Twenty-Third Round Monitoring Report. See Twenty-Third Round Monitoring Report (ECF No. 4124) at 31-39; see also Kahn Decl.(ECF No. 4640) at ¶¶ 19-20 (citing Twenty-Third Round Monitoring Report). In August 2007, defendants were ordered to develop and plan “for identifying and developing changes necessary to broaden the impact of the then-existing mental health assessment process in CDCR prison disciplinary matters for 3CMS inmates.” Twenty-Third Round Monitoring Report (ECF No. 4124) at 31-32. Initially defendants submitted a revised plan to the Special Master on May 1, 2008, with several representations, including completion of a pilot by August 5, 2008, and a representation that by November 1, 2008 they would “develop an implementation plan that includes a procedure for effective monitoring of the RVR process.” Id. at 34. However, defendants submitted nothing further to the Special Master for over three years after the May 2008 report. Id. In June 2011, after repeated requests from the Special Master, defendants produced a report on the pilot which showed that key elements had never been implemented or piloted. Id. at 35-36. Moreover, the June 2011 report “concluded with a list of five actions for statewide application that bore very little resemblance to” the May 2008 plan and “signalled too much of a retreat for the original assessment process of 1998, when a mental health evaluation was required for every Coleman caseload inmate who received an RVR.” Id. The Special Master reported that [i]t appeared that defendants had lost sight of the original identified problem and the goal of the pilot to resolve that problem. Given the limited character of what defendants proposed as their plan, appropriate use of the mental health assessments in the disciplinary process for 3CMS inmates may well have ended up being even more limited than it was before the plan was ordered. Id. at 38. On May 10, 2011, defendants circulated a new field memorandum directing completion of mental health assessments for 3CMS inmates charged with the most serious disciplinary infractions. Id. Thereafter, the Special Master and the parties had a “handful of meetings in September and October 2011” which resulted in an agreement between the parties and approved by the Special Master for a newly revised policy for mental health assessments for CCCMS inmates charged with rules violations. Id. at 38-39. In October 2011, defendants distributed a training plan. Id. At the time of the writing of the Twenty-Third Round Monitoring Report, the parties and the Special Master had agreed “that the training portion of the plan will be updated with regard to the definition and extent of the penalty-mitigation envisioned by the plan,” that “CDCR staff will verify that the training is consistent with existing applicable Program Guide provisions,” and that implementation and operation of the plan would “then be reviewed in the course of regular Coleman monitoring activities.” Id. At the hearing, plaintiffs expert Eldon Vail testified that CDCR’s prison disciplinary process does not “systematically take[] into account the mental illness of inmates in their system, and the result is that inmates are often punished for their mental illness.” RT at 464:21-465:2. Mr. Vail’s opinion in this regard is based on, inter alia, review of “more than 268 RVR reports,” all of defendants’ expert’s file for the termination proceedings, and CDCR’s RVR policies and procedures. Expert Declaration of Eldon Vail in Support of Reply Brief, filed August 23, 2013 (ECF No. 4766-2) at ¶ 2. Mr. Vail also testified that although defendants have policies and procedures designed to account for the role of mental illness in rules violations, defendants do not capture sufficient “aggregate data” to assess whether these policies and procedures are in fact working. RT at 465:3-12. He testified that during his review he “looked at lots of examples, individual examples, granular examples” where they were not working. RT at 465:13-15. The testimony of defendant’s expert Steve Martin in this regard was similar. Mr. Martin testified that he reviewed over 400 rules violation reports issued to inmates who refused orders to cuff up and were subsequently charged with obstructing or disobeying a peace officer and, where they were completed, the mental health assessment forms completed as part of the RVR process. RT at 1943:1-1944:19. He found that sometimes clinicians did a good job of explaining whether the inmate’s mental illness caused or contributed to the incident and sometimes they did not. RT at 1944:20-1945:4. He also found “varying levels of communication between the clinical staff and custody as to how that mental health assessment process was working,” with R.J. Donovan standing alone in the quality of communication between clinical and custodial staff in the rules violation process. RT at 1947:6-20. He testified that it was difficult to monitor what, if any, role the mental health assessment plays in the rules violation process. RT at 1948:2-16. He also testified that he rarely, if ever, found diversion of mentally ill inmates from sanctions even though in his opinion that “should happen” at least sometimes if the information on the form is properly gathered and used. RT at 1951:14-1952:8. Based on the foregoing, the issue relative to the disciplinary process turns on the adequacy of defendants’ implementation of the plan agreed to by the parties and approved by the Special Master in 2011. Accordingly, the court will direct the Special Master to report to the court within six months whether defendants have adequately implemented the RYR policies and procedures agreed to in 2011. At the hearing, the court also received evidence of a practice referred to as “Management Status.” Director Stainer testified that “management status” was then part of local operating procedures at a majority of, but not all, prison institutions. RT at 887:7-12. He testified that it differed from the rule violation process because it was not imposed as part of the disciplinary process but is an alternative sanction imposed as an “indirect response to a set of threatening behaviors to stop those behaviors from continuing.” RT at 889:15-21. He also testified that his office had received local operational procedures for management status from every prison that “has this process in their local operating procedure” and was “in the process of reviewing it for consistencies.” RT at 888:6-14. His office was “going to come out with a formatted operational procedure for each institution to, again, fill in only site specific issues so we have a consistent application of those processes, making sure that appropriate due processes are in place for the inmates, and checks and balances for the application for these precautions in the management cell status” and to avoid “arbitrary placement of an individual on these type of sanctions.” RT at 888:13-20, 891:2-3. Defendants will be directed to work with the Special Master on a timeline for completion of the review process testified to by Mr. Stainer so that defendants’ use of management status can be reviewed by the Special Master as part of his review of the implementation of defendants’ RVR policies and procedures. II. Segregated Housing By their May 6, 2013 motion, plaintiffs seek additional remedial orders related to housing of seriously mentally ill inmates in administrative segregation and segregated housing units. Serious issues concerning placement of class members in administrative segregation and segregated housing units have plagued this litigation since its inception. In 1995, the court found that defendants were violating the Eighth Amendment in housing mentally ill inmates in “ ‘administrative segregation and segregated housing at Pelican Bay SHU and statewide ... because mentally ill inmates are placed in administrative segregation and segregated housing without any evaluation of their mental status, because such placement will cause further decompensation, and because inmates are denied access to necessary mental health care while they are housed in administrative segregation and/or segregated housing.’ ” Coleman v. Wilson, 912 F.Supp. at 1320 (internal citation omitted). As recently as last year, it was evident that the constitutional violation had not been remedied. In the April 2013 order denying defendants’ termination motion, the court specifically identified the need to address “ongoing issues related to placement of EOP (Enhanced Outpatient) inmates in administrative segregation, particularly those housed in such units for over 90 days” as a “ ‘critically important’ goal[ ] ... necessary to remedy the Eighth Amendment violation in this action.” Coleman v. Brown, 938 F.Supp.2d at 969 (internal citation omitted). Specifically, the court found this “critical goal” centers on treatment of mentally ill inmates in administrative segregation, particularly those whose stays in these units exceed ninety days and those who are placed in administrative segregation for non-disciplinary reasons. These inmates face substantial risk of serious harm, including exacerbation of mental illness and potential increase in suicide risk. See Twenty-Fifth Round (ECF No. 4298) at 36. The evidence before the court shows that a disproportionate number of inmate suicides occur in administrative segregation units. Remedial efforts over the past six years have focused on reducing the length of time EOP inmates remain in administrative segregation and providing appropriate clinical care for EOP inmates housed in such units. See id. at 34-35. In their motion, defendants contend that they have “developed and implemented procedures for placing and retaining inmates with mental health needs in any administrative segregation or security housing unit.” Termination Motion (ECF No. 4275-1) at 29. Defendants contend that while mentally ill inmates are in these units their mental health needs are “being appropriately met” and that there is no evidence to the contrary. Id. This contention is not supported by defendants’ own experts. Defendants’ experts describe the “environment of administrative segregation” as “generally non-therapeutic.” Clinical Exp. Rpt. (ECF No. 4275-5) at 20. They recommend that housing inmates with serious mental disorders be “as brief as possible and as rare as possible.” Id. at 25.FN41 Defendants’ experts noted the “statistical overrep-resentation of completed suicides” in administrative segregation units when compared to other housing units, accordingly, recommend that “placement of inmates who require an EOP level of care be housed in Administrative Segregation Units only when absolutely necessary for the safety of staff or other inmates, and only for as long as it absolutely necessary.” Id. at 23. They also reported finding, at two prisons, “some inmates waiting for EOP Special Needs Yard beds and reportedly housed in an Administrative Segregation Unit for their own protection; not because they posed a danger to others.” Id. at 21.FN42 They recommended that such inmates be “placed in the front of any waiting list.” Id. FN41. They also "applaud CDCR’s efforts to expedite the transfer of EOP inmates out of administrative segregation” but they don’t describe what those efforts are. Id. at 20. FN42. Defendants’ experts describe a single case at California Medical Facility (CMF) as having "no systemic implications” but they reiterate their recommendation that such inmates be "moved to the top of the transfer list.” Id. at 24. In the Twenty-Fifth Round Report, the Special Master reported an ongoing need for improvement in treatment provided to inmates needing an Enhanced Outpatient (EOP) level of care who are placed into administrative segregation units. See Twenty-Fifth Round Report (ECF No. 4298) at 34-38. The Special Master reports an “elevated proportion of inmates in administrative segregation who are mentally ill” and describes a series of issues to be addressed, including reduction of risks of decompensation and/or suicide, alternatives to use of administrative segregation placements for non-disciplinary reasons, access to treatment/mitigation of harshness of conditions in the administrative segregation units, suicide prevention, and reduction of lengths of stay in administrative segregation. Id. at 38. The Special Master’s findings identify remaining issues that are also identified by defendants’ experts. These issues, until remedied, mean that seriously mentally ill inmates placed in administrative segregation units continued to face a substantial risk of harm. Id. at 979-980. The principal question before the court is whether there have been sufficient changes in defendants’ present policies and practices over the past year to cure the identified systemic constitutional violations and, if not, whether additional remedies are necessary. Defendants oppose plaintiffs’ motion in part by contesting the evidence and opinions of plaintiffs’ expert, Dr. Craig Haney, concerning the harmful effects of segregated housing on certain mentally ill inmates. Defendants contend that “Dr. Haney’s opinions are derived from studies that do not stand up to modern scientific scrutiny.” Defs. Opp. to Pis.’ Mot. Related to Housing and Treatment of Mentally Ill Inmates in Segregation, filed July 24, 2013 (ECF No. 4712), at 12. Defendants tendered their own expert, Dr. Charles Scott, who summarized “various longitudinal studies” and avers that those studies “indicate that segregation does not cause the type and severity of psychological harm previously described in descriptive studies.” Declaration of Charles Scott, M.D., filed July 24, 2013 (ECF No. 4715) at ¶28. At the hearing, Dr. Scott testified concerning two of those studies, the only two studies he relied on, the so-called Zinger study published in the Canadian Journal of Criminology in January 2001 and the so-called O’Keefe study published in 2013 in the Journal of the American Academy of Psychiatry Law. See Exs. 1 and 2 to Defs. Ex. WWW. The court is not persuaded by the conclusions Dr. Scott draws from those studies. First, both studies expressly reject extrapolation of their findings to other jurisdictions. See Ex. 2 to Defs. Ex. WWW at 32-33 (Zinger study cautions that “it would be ill advised to attempt to extrapolate the findings of this study (a) beyond 60 days of administrative segregation, and (2) to other jurisdictions. For example, the findings of this study are somewhat irrelevant to current segregation practices in the United States where prisoners can sometimes be segregated for years for disciplinary infractions with virtually no distractions, human c