Declaration of Jane Doe

Case 3:18-cv-00050-JD Document 17-1 Filed 01/31/18 Page 1 of 19
LAW OFFICES OF YOLANDA HUANG

1
YOLANDA HUANG, SBN 104543
2 475 14th Street, Suite 500
Oakland, CA 94612
3 Telephone: (510) 329-2140
Facsimile: (510) 580-9410
4
Email: yhuang.law@gmail.com
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DENNIS CUNNINGHAM, SBN 112910
6 115A Bartlett St.
7 San Francisco, CA 94110
Telephone: 415-285-8091
8 Facsimile: 415-285-8092
Email: denniscunninghamlaw@gmail.com
9
Attorneys for Plaintiffs
10
11 UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
12
13
JACLYN MOHRBACHER, ERIN ELLIS,
14 DOMINIQUE JACKSON, CHRISTINA
No. 3:18-cv-00050-JD
15 ZEPEDA, ALEXIS WAH, AND KELSEY
ERWIN, on behalf of themselves and others
16 similarly situated,
MEMORANDUM IN SUPPORT OF MOTION
17 Plaintiffs, FOR PRELIMINARY INJUNCTION AND
RELATED RELIEF
18 vs.
19
ALAMEDA COUNTY SHERIFF’S OFFICE, et
20 al.,
21 Defendants.
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1 Table of Contents
2
INTRODUCTION......................................................................................................................1
3
The Need for Preliminary Relief .....................................................................................2
4
STATEMENT OF FACTS ........................................................................................................4
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A. History of How Needs of Pregnant Prisoners Have been Addressed ..................4
6
B. Alameda County Sheriff’s Office Litigation History ............................................5
7 C. Alameda County Sheriff’s Office Policy and Procedures ....................................5
8 D. Defendants’ Failure to Meet Statutory, Regulatory and its Own
9 Policy Standards.......................................................................................................6
1. Denial of Medical Care……………………………………………………..6
10
2. Inadequate Nutrition, Insufficient Food and Unsanitary Food
11 Preparation Facilities .....................................................................................8
3. Lack of Feminine Hygiene and Feminine Hygiene Supplies……………….9
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4. Lack of Exercise and Outdoor Recreation…………………………………..9
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5. Retaliation…………………………………………………………………...9
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E. Harm from Defendants Failure to Comply with Statutory, Regulatory
15 and Policy Requirements on the Care and Treatment of Pregnant Prisoners ...10
16 ARGUMENT ..............................................................................................................................11
17 1. Success on the merits………………………………………………………11
a. Defendants’ Actions Are Unjustified and Violate State
18 Statute and Regulations......................................................................11
19 b. Defendants’ Actions Have No Rationale or “Redeeming
Social Benefit” ...................................................................................11
20 2. Irreparable Harm………………………………………………………….11
21 3. The Balance of Equities and the Public Interest…………………………12
22 4. No Adequate Remedy at Law……………………………………………..13
23 CONCLUSION ..........................................................................................................................13
A. Nutrition……………………………………………………………………………14
24 B. Proper Medical Care and Oversight……………………………………….……..14
C. Exercise……………………………………………………………………………..14
25 D. Feminine Hygiene……………………………………………………………….…15
26 E. Sanitation of Food Preparation Facilities………………………………………...15
F. Retaliation, Harsh Punishment and Discipline………..………………………....15
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Mohrbacher v. Alameda County Sheriff’s Office 3:18-cv-00050, MEMO I.S.O. MOTION FOR PRELIMINARY INJUNCTION
Table of Authorities
1
2 Cases
3 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .............................................11
4 Arizona Dream Act Coalition v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017)........................................13
5 Drakes Bay Oyster Co. v. Jewell 747 F3d 1073 (9th Cir. 2014) ...........................................................12
6 Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) .................................................12
7 Estelle v. Gamble, (1976) 429 US 97 .....................................................................................................4
8
Vernita Jones, et. al. v. Glenn Dyer, et. al., Alameda County Superior Court Number
9
H-114154-0, filed 02/25/1986 .........................................................................................................1, 5
10
League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton,
11
752 F.3d 755 (9th Cir. 2014) ..............................................................................................................12
12 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...............................................................................12
13 Nken v. Holder, 556 U.S. 418, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009) ..........................................12
14 Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ...........................................................................12
15 U.S. v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011) ...............................................................................13
16 Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) ......................................................13
17 Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ............................................................................11
18
Other Authorities
19
AB 478, Introduced 2/16/2005 ...............................................................................................................4
20
Regulations
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Health & Safety Code §§ 8520 et seq ...................................................................................................15
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Health & Safety Code §§ 113945-114259.4 .........................................................................................15
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Penal Code §1466 .................................................................................................................................15
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Penal Code §3406 ...............................................................................................................................3, 4
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Penal Code §3409 .............................................................................................................................6, 15
26
Penal Codes §§3410-3426 ............................................................................................................3, 4, 14
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Penal Code §3052 .................................................................................................................................15
28
ii
1 Penal Code §4122 .................................................................................................................................15

2 Penal Code §6030 .............................................................................................................................4, 14
3 Title 15 of the California Code of Regulations ...................................................................4, 6, 7, 14, 15
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MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

1
AND RELATED RELIEF
2
INTRODUCTION
3
The Alameda County Sheriff’s Office and its chiefs, commanders and other officials have
4
demonstrated, over a period of at least 33 years, that they are incapable of providing an adequate,
5 necessary, and State Law-mandated level of care for pregnant women in their custody at the Santa
6 Rita County Jail. The Sheriff’s Office agreed to do so in a lawsuit on this same topic in 1986,
7 (Vernita Jones, et. al. v. Glenn Dyer, et. al., Alameda County Superior Court Number H-114154-0);
8 and the Sheriff’s own policy and procedure §1304 adopted in 1989 requires it, as do California State
9 laws adopted in 1978 (Penal Codes §§3410 through 3424) promoting community treatment programs
10 for women instead of incarceration. When women do not qualify under state regulations (15 CCR
3355.2, 1065, and 3050, adopted in 1978), the custodian must meet minimum standards in providing
11
nutrition, exercise and medical care.
12
The Sheriff does not utilize existing community treatment programs, for which all of the named
13
plaintiffs herein, and many more women in his custody are eligible, and has developed none of his
14
own. Throughout, and still, the Sheriff et al, have egregiously failed to meet legal and agreed-to
15 responsibilities and obligations, to the great injury of pregnant prisoners and their unborn children, a
16 number of whom did not make it into the world, as noted.
17 Medical care for women in the jail, including pregnant women, is said by defendants’
18 representatives to be and have been the responsibility of the (new) defendants, CFMG Corp and its
19 employees. Plaintiffs agree that this provider, with its practitioners and employees may well be and
20 probably is co-responsible with the Sheriff et al, for a good portion of their injuries and losses and the
denial of their basic rights alleged herein, but plaintiffs deny that the County defendants are thereby
21
absolved of liability or obligation in any way. They have the custody of and total power over and
22
responsibility for the plaintiffs’ bodies---and those of their babies. Plaintiffs allege that a great deal
23
of what they (wrongfully) go through is brought about by deputies, not medics; and the women
24
definitely know who is in charge.
25 Thus, in the past year, a pregnant woman was denied medical care or any assistance when she
26 began to feel birth pains and was placed in solitary confinement. There, screaming from her labor,
27 she was completely ignored by all staff present, and left to deliver her baby alone. (Dec. D.
28 Rohrbach, ¶¶ 3-8.) Including our plaintiffs, at least three women have miscarried or suffered
1
stillbirth after varying weeks-long periods in Santa Rita within the past six months, and counsel are
1
beginning to learn of others. (Dec. J. Mohrbacher, ¶ 21; Dec. C. Zepeda, ¶¶ 12 & 14.)
2
And learn also that over the past year and longer, and today, pre-natal care at Santa Rita,
3
generally and in its specifically medical aspects, has been and now is abysmal: slapdash, heedless,
4
grudging and often callous and tyrannical, physically punitive and vindictive, as well as completely
5 insufficient, objectively, as a minimally reasonable and necessary accommodation of jailed pregnant
6 women. The treatment and maltreatment by defendants is so wholly and patently counterproductive
7 of healthy pregnancy for mother and child as to amount to ‘Deliberate Indifference to Serious
8 Medical Needs’ within the Constitutional standard, as to both ‘medical’ and all other, non-medical
9 aspects---that is nutrition, rest, warmth, fresh air et cetera, everything (say, everything the unborn
10 children are entitled to!)---to say nothing of careful, non-antagonistic performance by staff of all
kinds, which these plaintiffs complain they also very much do not get.
11
That is to say plaintiffs assert constitutional grounds, as well as long-term violations of
12
statutory and regulatory requirements and judicial agreements, for the intervention sought and to be
13
sought for members of the pregnant Sub-class asserted herein
14
The Need for Preliminary Relief
15 The plaintiffs now seek extraordinary relief from this honorable Court, in the form of a
16 comprehensive preliminary decree that will rectify the immediate problems immediately, and look
17 towards a deeper, comprehensive, permanent solution to the gross anomaly of mothers-to-be locked
18 in the County Jail, and subject to its harsh regime. In support of their earnest plea the plaintiffs by
19 their undersigned counsel represent to the Court that---as broadly and depressingly documented in a
20 wealth of declarations provided herewith---during the past year, and routinely right now, ongoing, the
following circumstances are in force at Santa Rita:
21
+ Pregnant women receive a wholly inadequate diet, lacking even a minimal amount of fresh
22
fruits and vegetables---particularly leafy green vegetables---and the food is of poor quality, nutrient
23
deficient, unwholesome, carbohydrate-ridden and totally insufficient for a developing baby (Dec. E.
24
Ellis, ¶3; Dec. Y. Huang, Ex. A.).
25 + Pregnant women are denied regular access to exercise, and the outdoors. From November
26 through mid-January, pregnant women were provided with two opportunities for a pregnancy walk.
27 (Dec. D. Jackson, ¶ 17; Dec. E. Ellis, ¶9; Dec. D. Dedrick, ¶ 21.)
28 + Pregnant women are denied medical care, and often demeaned and ridiculed when they
2
request medical care. Jail staff have typically failed to contact medical staff promptly or soon for
1
women who have complaints of bleeding. Pregnant women with documented high-risk pregnancies
2
have not received the medical care required for high risk pregnancies. (Dec. C. Zepeda, ¶ 20; Dec. J.
3
Mohrbacher, ¶¶ 11-14, 16, 18-21; Dec. D. Dedrick, ¶8, Dec. D. Jackson, ¶6.)
4
+ Nor has Santa Rita complied with its own written policies, requiring “regular evaluations of
5 OB patients and coordination with the Alameda County Medical Center (“ACMC”) for regular visits,
6 monitoring dietary and exercise needs, and evaluating medical needs other than OB related.” (ACSO
7 Policy & Proc. 13.04 III(A)(2).
8 + The kitchen where the women’s food is prepared is dirty, infested with rodents and birds,
9 not regularly or carefully cleaned, and highly unsanitary; the meats are often beyond expiration dates,
10 suspect and even riddled with foreign organisms. (Dec. of Jane Doe 1.)
+ Pregnant women do not receive nearly enough clean laundry: clothes, blankets, towels, etc.;
11
nor adequate supplies for ordinary female hygiene, despite the clear requirement of the law, in Sec.
12
3406 of the Penal Code. And the unsanitary laundry apparently contributes to the problematic
13
transmittal of UTI and trichomonas among the women (Dec. of Erin Ellis, ¶ 4; Dec. A. Wah, ¶ 9-10;
14
Dec. D. Rohrbach, ¶ 10; Dec. D. Dedrick, ¶ 5).
15 + Women who wish to file grievances are denied grievance forms, or retaliated against with
16 reduced POD time, or having lights left on all night. (Dec. D. Dedrick, ¶¶ 13-14, 26; Dec. D. Jackson
17 ¶¶ 11&15; Dec. A. Wah ¶12; Dec. N. Garrido ¶3.)
18 + California Penal Codes §§3410-3426 mandate that women with minor children under the
19 age of six (6) be provided with “community treatment programs” for them and their minor children.
20 Alameda County Sheriff’s Office has failed to provide any such “community treatment programs.”
In particular, plaintiffs Jaclyn Mohrbacher,1 Erin Ellis, and Dominique Jackson, have each
21
experienced continuing difficulty in their pregnancies, as will be shown, and have been and are being
22
pointedly and systematically refused and denied needed, necessary medical care, and accommodation
23
of any sort—balanced, healthy and adequate diet; counseling, exercise, blankets and warm clothes,
24
etc.—for their delicate condition, by defendant jail guards and supervisors at Santa Rita. Instead,
25 they have been repeatedly told they should get abortions. They are hungry. They are denied medical
26 care. In two and a half months, these women were provided with two (2) opportunities to go on walks
27
1
28 Plaintiff Mohrbacher was removed from Santa Rita to the federal jail at Dublin shortly after this
action was filed; but she remains the lead plaintiff herein.
3
and rather than 3 hours of outdoor recreation per week, they receive only two hours per month.
1
Plaintiffs have also experienced a form of programmatic coercion for abortions; and when
2
pregnant prisoners refuse abortions, there is often an escalation of defendants’ neglect and abusive
3
treatment. (Dec. C. Zepeda, ¶ 6.) The fact that numerous women pregnant while in defendants’ the
4
custody and control suffer one or another form of termination of pregnancy before term, and all of
5 them frequently have serious medical issues, demonstrates the validity of the fears and concerns
6 expressed, as more fully set out in the attached Declarations and the within Complaint.
7 STATEMENT OF FACTS
8 A. History of How Needs of Pregnant Prisoners Have been Addressed.
9 Considerable effort has been made in recent decades to address the systematic failures of
10 correctional systems to meet the critical medical needs of pregnant prisoners, activity which
encompassed both community organizing and extensive litigation, as well as legislative and
11
regulatory efforts. The seminal case of Estelle v. Gamble, (1976) 429 US 97, whereby the United
12
States Supreme Court established the current constitutional standard for determining whether a prison
13
system failed to provide adequate medical care to prisoners, spurred significant changes in the
14
treatment of prisoners. In the 1970s, California undertook legislative reform on behalf of women by
15 enacting Penal Code §3406 et seq., providing for pregnancy tests, and medical services including a
16 physician for pregnant women. Penal Code §§3410 through 3424 were significantly amended in
17 1982 to provide and emphasize community programs for women with young children.
18 In 2005, the California legislature again amended the penal code by enacting Penal Code §6030
19 regarding treatment of pregnant women including the end of shacking for women in labor and in
20 post-partum recovery; mandating that the prison system enact specific standards for a balanced,
healthy nutritious diet, prenatal information and health care, and regular dental cleanings. AB 478,
21
Introduced 2/16/2005.2
22
In 2008, Title 15 of the California Code of Regulations was updated to comply with Penal Code
23
§6030 providing specific and current standards for the treatment of incarcerated pregnant women
24
who were not eligible for the community treatment program. Pregnant women’s diets are to comply
25
26 2 California Bill Analysis, A.B. 478 Assem., 3/29/2005
“The CDC's current rules and regulations do not stipulate the care the CDC will provide to pregnant inmates. The
27 regulations concerning medical and dental services do not direct the CDC on what services to provide to pregnant
inmates. The regulations concerning food service do not address the dietary needs of pregnant inmates. Finally, the
28 regulations concerning physical restraint do not limit the use of restraint on inmates during labor while outside of the
prison facility.”
4
with the National Academy of Science recommendations plus two (2) extra fresh vegetables and two
1
(2) extra fresh fruits per day. 15 CCR §3050(a); 3050(a(3)).
2
B. Alameda County Sheriff’s Office Litigation History
3
In 1986, two non-profit organizations, Public Advocates, Inc. and Legal Services for Prisoners
4
with Children sued then Alameda Sheriff Glenn Dyer on behalf of pregnant and post-partum women
5 incarcerated at Santa Rita Jail. (Jones et al v. Glenn Dyer, Sheriff, et al., H-114154-0. Alameda
6 County Superior Court, filed 02/25/1986) Pursuant to the settlement of the lawsuit, (Settlement
7 agreement attached as Dec. of Ellen Berry, Ex. A) the Alameda Sheriff agreed to provide a balanced
8 nutritious diet, prenatal and post-partum health care, dental care, detailed staffing requirements,
9 specific protocols, requirement of a peer review of the medical practices at the Jail, regular outdoor
10 exercise, meals meeting specific nutrition standards and sufficient food for pregnant women
including that “Pregnant women may receive extra portions of food at each meal and receive a night
11
snack…” (Dec. of Ellen Berry, Ex. B, p. 6, L25 – p7/2). The Alameda Sheriff agreed to develop
12
protocols and a checklist of all necessary services to perinatal care. More importantly, the settlement
13
required the Sheriff to “utilize all existing means available to place pregnant women prisoners in
14
alternative programs and placements other than the Santa Rita Jail when possible”. (Dec. of Ellen
15 Berry, Ex. B, p. 15, L. 3-7.) Highlighting alternative programs and placements was in recognition
16 that the Jail is an ill-suited institution for meeting the needs of perinatal women.
17 C. Alameda County Sheriff’s Office Policy and Procedures
18 In 1989, the Sheriff adopted for Santa Rita Jail, a written policy and procedure which codified
19 the agreements reached through the settlement and reflected the standards in the state penal code.
20 Alameda County Sheriff’s Office’s Policy and Procedure §13.04 mandate that all women
incarcerated in County jails shall “have access to community standards of medical service;” and that
21
the care for all OB patients shall be in “coordination with the Alameda County Medical Center
22
(ACMC) for regular visits, monitoring dietary and exercise needs, and evaluating medical needs other
23
than OB related;” (Dec. of Y. Huang, Ex. A: ACSO Policy and Procedure §13.04.) This policy has
24
been updated, the latest in 2016. The Sheriff has ample knowledge of the standards and the
25 requirements for the incarceration of pregnant prisoners.
26 Women prisoners are held by the Alameda County Sheriff’s Office in its Santa Rita Jail facility.
27 Due to State-wide “realignment” under Prop 47, the current population of Santa Rita runs between
28 2,500 to 3,000 prisoners, some ten percent (10%) of whom are women. Among these, there are
5
roughly ten who are pregnant at any given time; so, in the course of a year, plaintiffs estimate 150
1
pregnant women will cycle through Santa Rita Jail.
2
D. Defendants’ Failure to Meet Statutory, Regulatory and its Own Policy Standards
3
1. Denial of Medical Care
4
Complaints and concerns were raised this past year, when a pregnant woman know by plaintiffs
5 only as “Candace,” was put in solitary confinement when she began labor, instead of being provided
6 care. She was then ignored by Jail staff and deputies, with no help summoned for many hours, while
7 she screamed in pain and finally delivered her baby alone. The Sheriff, in a press conference in early
8 January admitted that this incident occurred, explaining that Candace had been ‘examined’ and found
9 to be in false labor (“Braxton-Hicks syndrome”). Period. There was and is no explanation of why
10 the woman was left alone in solitary confinement despite her screaming. She later recounted that the
baby came out with the umbilical cord wrapped around its neck, and that she had to poke down its
11
throat to start the baby breathing; and she dealt with all this alone, by guesswork, and with no
12
assistance or advice. Women who were in custody with Candace observed that she appeared “very
13
pregnant” before that night, complained of severe abdominal and back pain, and had trouble walking
14
(Dec. D. Rohrbach, ¶¶ 3-8.)
15 Soon thereafter, plaintiff Christina Zepeda miscarried at Santa Rita. Christina’s declaration
16 states that when she complained of sickness and discomfort, a deputy sheriff wrongfully handcuffed
17 her behind her back, put her in the back of a police car, unsecured, and then jail staff repeatedly
18 pressured her to terminate her pregnancy, without providing any medical care. Instead she was put in
19 a room that was empty except for a bed, and left. Ultimately, she miscarried and lost the baby. (Dec.
20 C. Zepeda, ¶ 9-11.)
Plaintiff Jaclyn Mohrbacher was treated even worse. When Jaclyn Mohrbacher complained of
21
pain, or stated that she was vaginally bleeding, defendant deputies’ put her in Solitary, strip-searched
22
her repeatedly, and accused her of being on drugs. They refused to contact the doctor or nurse, and
23
finally she miscarried. (Dec. J. Mohrbacher, ¶¶ 3-7, 11-23.)
24
In the last few months, a number of women have decided to step forward and seek legal redress
25 for this situation in the Jail, which has been pervasive and long-standing; indeed, mistreatment of
26 pregnant women is part and parcel of defendants’ broader continuing unequal treatment of women as
27 compared to men as complained of elsewhere herein; for the failure of Santa Rita Jail to meet the
28 requirements of Penal Code §3409 to provide women prisoners with the materials necessary for
6
women’s feminine hygiene and reproductive health; and for failure to develop and/or implement
1
appropriate plan of care for pregnant women as required by 15 CCR §3355.2. Pregnant women face
2
routine and regular, wrongful, oppressive coercion to abort the pregnancy. (Dec. E. Ellis, ¶4; D.
3
Dedrick, ¶ 10.) At least once, when a plaintiff refused an abortion and said she wished to carry her
4
fetus to term, defendants sent male officers who tried to forcibly take her to the hospital for an
5 abortion, and pressures her to agree to go (Dec. J. Mohrbacher, ¶ 8).
6 When pregnant women complain that they are not feeling well, the guards’ response is often to
7 accuse them of using illegal drugs, and, instead of seeking care for these women, they are routinely
8 placed in solitary confinement and subjected to repeated strip searches and body cavity searches.
9 (Dec. C. Zepeda, ¶ 20; Dec. J. Mohrbacher, ¶¶ 11-14, 16, 18-21; Dec. D. Dedrick, ¶ 8.) Plaintiff
10 Mohrbacher has been told repeatedly that she refuses abortion because she is a drug user, and
numerous other women have been similarly accused, with or without the abortion demand. This
11
regular and routine harassment also includes interrupting plaintiffs’ sleep at 2am to take vital signs
12
for no good reason, and making plaintiffs stand up for searches at 6 a.m. in the morning. (Dec. C.
13
Zepeda, ¶ 16.) And very bright lights are often left on all night, making sleep difficult to say the least.
14
(Dec. D. Dedrick, ¶ 26.)
15 Defendants are required to develop a care plan for pregnant prisoners, under (15 CCR 3355.2
16 (b)(1), and ASCO Policy & practice, §13.04, but within memory have not done so. Instead, plaintiffs
17 are awakened in the middle of the night, as noted, for vital signs; or not, for weeks on end. (Dec. J.
18 Mohrbacher, ¶¶ 3-6.) On court days, plaintiffs and members of the proposed class are required to rise
19 at 4:00 a.m., and not returned to their cells until after 8:00 p.m. (Dec. J. Mohrbacher, ¶¶ 6-7.)
20 Plaintiffs spend most of those days in concrete holding cells, where they must stand, or else sit or lay
on the cold concrete floor, because there are not nearly enough places to sit. (Dec. C. Zepeda, ¶ 7.)
21
The only seats are metal benches affixed to tables where pregnant women cannot sit because their
22
bellies intervene, and they don’t fit.
23
Plaintiff Dominique Jackson has been diagnosed as having a high-risk pregnancy. She is
24
carrying twins and had previously had a cardiac arrest. (Dec. D. Jackson, ¶ 3; Dec. Y. Huang, Ex.
25 A.) The Alameda County policy 13.04 requires that Santa Rita consult and coordinate with the
26 County public health department, to ensure appropriate care and for review of the care, nutrition and
27 exercise provided. Plaintiff Dominique Jackson did not get transported to any medical appointments
28 in December, and did not receive her first medical appointment with Highland Hospital until January
7
17, 2018. (Dec. of Y. Huang, ¶ 4.) Ms. Jackson is chronically hungry because the portions of the
1
poor food provided are not enough. (Dec. of D. Jackson, ¶ 10.)
2
2. Inadequate Nutrition, Insufficient Food and Unsanitary Food Preparation Facilities
3
Indeed, instead of a “wholesome, nutritionally balanced diet” 15 CCR§3050(a), or a healthy,
4
nutritious diet for pregnant women, pregnant prisoners are given an unvarying mono-diet, consisting
5 of oatmeal and bread for breakfast, two peanut butter sandwiches and two rations of milk for lunch
6 and snack. Dinner is beans or some other protein such as a soy paddy, some carbohydrate and
7 perhaps carrots. The quantity is insufficient and instead of the recommended 5 fruits and vegetables
8 per day, there are seldom any fresh fruits or vegetables and no leafy green vegetables. Breakfast is
9 served between 3:30 and 4:30 a.m. (Dec. C. Zepeda, ¶16), lunch at noon and dinner between 4 and
10 4:30 p.m. Women allergic to peanuts and peanut butter are forced to do without lunch and snack as
there are no substitutes. (Dec. Y. Huang, ¶ 14.) The caloric value is low and insufficient; pregnant
11
women constantly complain of being hungry. (Dec. D. Jackson, ¶ 10; Dec. C. Zepeda, ¶¶ 10&16;
12
Dec. Y. Huang, ¶ 14.)
13
One prisoner reported that she told the nurse she was allergic to peanuts, and so needed some
14
alternative to the peanut butter & jelly sandwiches pregnant women are given every day. She was
15 told to buy something different for herself in the commissary. This woman later developed a medical
16 emergency and was released early. Apparently, her baby survived. (Dec. Y. Huang, ¶ 15.)
17 Mostly, prisoners receive baloney sandwiches; and pregnant women get peanut butter. Plaintiffs
18 and other women prisoners attribute their hunger also to the lack of sanitation in the kitchen, and poor
19 quality and sometimes decaying baloney: white spots on the lunch meat. Birds and rodents live in the
20 kitchen, and food not stored in vermin-proof containers is frequently contaminated by rodents. (Dec.
Jane Doe 1, ¶¶ 11&12; Dec. A. Wah, ¶ 14.)
21
Megan Bower, a prenatal care specialist with Highland Hospital, in reviewing the nutritional
22
level and care provided by Santa Rita Jail, recommended that Dominique Jackson be released to
23
home care because Santa Rita has been unable to provide the necessary care to Ms. Jackson. (Dec. of
24
Y. Huang, Ex. A.)
25 There are widespread complaints of unhygienic conditions in food preparation. The Jail is no
26 longer screening inmate workers for communicable diseases including hepatitis or tuberculosis; there
27 is no regular cleaning of the kitchen; there is no soap to wash hands in the bathrooms for kitchen
28 workers as mandated by state law; the kitchen is infested with rodents and birds and animal feces;
8
and the meats are often old and expired which contributes to the white spots on the lunch meat. (Dec.
1
A. Wah, ¶ 14; Dec. Jane Doe 1, ¶¶ 6-8, 11-12.)
2
3. Lack of Feminine Hygiene and Feminine Hygiene Supplies
3
Currently, the nursing staff is diagnosing widespread trichomonas vaginalis among the women
4
prisoners. Trichmonas vaginalis is spread through contact with vaginal discharge. (Dec. Scafidi, ¶
5 6.) All of the women complain that the laundry is not clean, that laundry is distributed which is
6 stained and contain pubic hair. (Dec. A. Wah, ¶ 10; Dec. D. Jackson, ¶ 9; Dec. E. Ellis, ¶ 5.) Santa
7 Rita’s response is to hand out antibiotics rather than provide clean laundry. The women are forced to
8 hand-wash their laundry, which requires soap. Soap must be obtained through the commissary.
9 (Dec. A. Wah, ¶ 10; Dec. Jane Doe 1, ¶ 10.) Women are not provided adequate menstrual pads.
10 (Dec. A. Wah, ¶ 9; Dec. E. Ellis, ¶ 7; Dec. D. Dedrick, ¶ 14.) When plaintiff Jaclyn Mohrbacher was
started bleeding due to a miscarriage, Defendant Divine refused to provide her with a clean menstrual
11
pad, and instead offered her used materials from a garbage can. (Dec. J. Mohrbacher, ¶ 13.)
12
Untreated UTI and trichomonas can cause can lead to kidney issues, miscarriage, premature
13
labor, and/or low birth weight. (Dec. J. Scafidi, ¶ 6.) While the Santa Rita medical provider was
14
correct in treating the UTI and trichmonas, excessive or inappropriate antibiotics can also result in
15 significant birth defects such as esophageal atresia, diaphragmatic hernia and cleft lip or palate
16 depending on the trimester and antibiotic used. (Dec. J. Scafidi, ¶ 6.)
17 4. Lack of Exercise and Outdoor Recreation
18 State regulations, and Santa Rita’s own policies provide for at least three hours of outdoor
19 recreation per week. Plaintiffs and declarants have stated that over a two-month period, there was
20 only one pregnancy walk. (Dec. D. Jackson, ¶ 17; Dec. E. Ellis, ¶ 9; Dec. D. Dedrick, ¶ 21.)
Plaintiffs, instead of receiving the mandated three hours per week of outdoor recreation, are fortunate
21
to get two hours a month. (Dec. J. Mohrbacher, ¶ 4.) Exercise for pregnant women is an essential
22
component for having a healthy pregnancy and a healthy baby. (Dec. J. Scafidi, Ex. B, p. 1100.)
23
5. Retaliation
24
As plaintiffs attempted to speak out and seek review of these horrendous conditions, defendants
25 took active steps to deny plaintiffs access to counsel. Sheriff’s deputies told the women prisoners
26 that they were barring plaintiffs’ counsel from contact with plaintiffs. (Dec. D. Jackson, ¶ 13.)
27 Plaintiffs’ counsel in response, immediately sought a temporary restraining order. Defendants agreed
28 to provide plaintiffs’ counsels with access to plaintiffs and potential members of the plaintiff class
9
only after the filing of plaintiffs’ application. (Dec. Y. Huang, ¶ 3.)

1
Defendants reduced plaintiffs’ “pod” time, which is time out of their cells, when they can
2
mingle. Plaintiffs are in generally held in Housing Unit 24, A, B or C pods---meaning small units.
3
All three pods normally share a two-hour pod time. With the retaliation, instead of two (2) hours in
4
the morning and two (2) hours in the evening, the morning POD time was moved to very early
5 between 5:30 and 6:30 so that few prisoners utilized that time. (Dec. D. Jackson, ¶ 15.) The evening
6 POD time was reduced to half an hour per POD. Instead of having all three PODs out together, each
7 POD was given only a half hour of POD time, alone. (Dec. N. Garrido, ¶ 5; Dec. E. Ellis, ¶ 7; Dec.
8 D. Dedrick, ¶¶ 23-26.)
9 In addition, for on many nights starting soon after the case was filed, the very bright overhead
10 lights in Unit 24 were left on, or turned on intermittently through the night, which obviously---
intentionally---made sleep difficult for all prisoners. (Dec. D. Dedrick, ¶ 26.)
11
E. Harm from Defendants Failure to Comply with Statutory, Regulatory and Policy
12 Requirements on the Care and Treatment of Pregnant Prisoners
13 The failure of defendants to carry out their obligations under state statutes and regulations is
14 now causing irreparable injuries right that will only worsen with time. Gestation is brief;
15 development is rapid; vital growth and development of specific organs and facilities, including
16 cognition and neurological development occur within limited and specific time frames. The denial of
17 necessary nutrients has been documented to cause birth defects, including lowered IQ. Undue stress
is likewise harmful, threatening not only birth defects, but stillbirth. Further particulars and details
18
are contained in the 13 supporting declarations filed with this motion. The discussion below can only
19
begin to describe the damaging effects of defendants’ actions and inactions.
20
The Sheriff’s wrongful actions generates immediate and long term consequences. The
21
immediate consequences include the death of unborn babies. The long term consequences include a
22 lifetime of diminished capacities, lower IQ, congenital defects, diminished earning capacities, and
23 medical burdens on families and society. The lack of necessary nutrients in utero can lead to a
24 lifetime of health problems including obesity, cardiovascular disease, issues with bone health,
25 cognition issues, immunity function issues and potentially diabetes. (Dec. J. Scafidi, ¶ 2.) The
26 medical requirements for treating birth defects will likely bring more children into government child
27 welfare services programs, further increasing government costs. Health problems and resulting
illness lowers the productivity and potential earning capacity of these individuals.
28
10
1 ARGUMENT
2 By familiar rules, a preliminary injunction is warranted where the plaintiffs can establish that
(1) they are “likely to succeed on the merits,” of their claim, (2) they are “likely to suffer irreparable
3
harm in the absence of preliminary relief,” (3) “that the balance of equities” between the parties tips
4
in their favor in the circumstances, and (4) that an “injunction is in the public interest.” Alliance for
5
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Winter v. Nat. Res. Def.
6
Council, 555 U.S. 7, 20 (2008)). Plaintiffs can readily meet all four of these elements, as follows:
7 1. Success on the merits
8 a. Defendants’ Actions Are Unjustified and Violate State Statute and Regulations.
9 Defendants actions are unjustified and unjustifiable. Their conduct violates multiple, long-
10 standing state statute and regulations, which were developed as part of a framework, with the specific
11 goal of providing as much needed care as an unborn child requires. This framework was forty years
12 in the making, and defendants were active participants in the development and structure of this
framework, giving them notice, information, details and communication on not just the standards but
13
the purpose of these standards. Most egregious in the unjustifiable category, defendants agreed to
14
litigation settlements mandating conformance with state statutes and adopted policies to address these
15
requirements. Yet, on a continual and routine basis, defendants have not, and do not meet these
16
obligations and duties.
17 b. Defendants’ Actions Have No Rationale or “Redeeming Social Benefit”
18 Prison rules and regulations, harsh and dehumanizing for all who are confined, were originally
19 developed for an overwhelmingly male population convicted of violent crimes. This system has been
20 largely unresponsive to changes required for an overwhelmingly non-violent population of
21 incarcerated women and especially pregnant women, many of them with addiction issues. There is
22 no demonstrated benefit from harsh, dehumanizing punishment for pregnant women. No studies are
found that show the contrary. Since the injuries and potential for injuries and loss to plaintiffs are so
23
patent and strong, and since defendants cannot justify in any way the many defects and defaults in
24
their supposed care of pregnant women in the jail, it seems clear plaintiffs are likely to prevail on the
25
merits herein.
26
2. Irreparable Harm
27 Two of the plaintiffs have already suffered irreparable injury in the loss of their unborn children.
28 The right to life, is clearly a constitutional right, and whenever a party suffers deprivation of a
11
constitutional right, this “unquestionably constitutes irreparable injury.” Melendres v. Arpaio, 695
1
F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d
2
547 (1976)). Plaintiff Jackson’s treating medical provider has opined that home release is preferable
3
because defendant Alameda County Sheriff’s Office has shown itself incapable of providing the care
4
required for the healthy pregnancy of plaintiff Jackson’s two twins, and for Jackson herself. (Dec. Y.
5 Huang, Ex. A). The current circumstances show that this continuing irreparable harm is not just
6 possible, but overwhelmingly likely, in the absence of preliminary injunctive relief.
7 3. The Balance of Equities and the Public Interest
8 The final two elements of the preliminary injunction test—the balance of equities and the
9 weight of the public interest—merge when the government is a party. See League of Wilderness
10 Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). Rather
than approaching the public interest assessment as a “balancing of the hardships, it is better seen” as a
11
separate element with an inquiry on the “impact on non-parties rather than parties.” See id. at 766.
12
Where the government is a party, the two factors merge. Drakes Bay Oyster Co. v. Jewell 747 F3d
13
1073, 1092 (9th Cir. 2014), citing Nken v. Holder, 556 U.S. 418, 129 S. Ct. 1749, 173 L. Ed. 2d
14
550 (2009). “[C]ourts must be mindful that the Government's role as the respondent in every
15 removal proceeding does not make the public interest in each individual one negligible…]. Nken v.
16 Holder, 556 U.S. 418, at 435.
17 The Alameda County Sheriff’s Office, a governmental entity, has no legitimate interest in failing
18 and refusing to comply with state statutes and regulations. “[I]t cannot suffer harm from an
19 injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th
20 Cir. 2013). And, any argument defendants raise to the effect that complying with existing California
state statute and regulations will require resources is, by definition, not compelling. Complaints that
21
a preliminary injunction is “prohibitively burdensome” on the government, have been considered
22
flawed even where there are “severe logistical difficulties”, possibly involved in government
23
compliance with applicable statutes and/or avoiding practices that may run afoul of the Constitution.
24
Id at 1145.
25 An effective injunction will also further public health. Unborn children can suffer the
26 ultimate, irremediable injury by failing to thrive and failing to reach term due to lack of nutrition,
27 lack of essential medical care, or injury resulting from defendants’ conduct, including excessive strip
28 searches and body cavity searches. (Dec. J. Mohrbacher, ¶¶ 10-14; Dec. D. Dedrick, ¶¶ 2, 6-11.)
12
Miscarriages resulting from Defendants wrongful conduct created mental and emotional burdens
1
requiring community mental health interventions for several of these mothers, which are avoidable
2
burdens on community medical services. (Dec. of C. Zepeda, ¶ 13.) Defendants’ complained-of
3
conduct will cause injuries to unborn children through inadequate nutrition and denial of needed
4
medical care leading to low birth weight, and the host of medical problems associated with low birth
5 weight, including burdens on emergency and community healthcare services and reduction of overall
6 public health. (Dec. J. Scafidi, ¶ 2.) Defendants’ conduct leading to injuries to children in utero will
7 lead to diminished physical and mental capacities, reducing earning capabilities and the ability to
8 contribute to their families and communities, potentially placing greater burdens on communities to
9 provide for and care for these children, (Dec. J. Scafidi, ¶¶ 2 & 6) and most particularly, through the
10 irremediable injury of a termination of pregnancy before term.

4. No Adequate Remedy at Law
11
Plaintiffs in the present case have no other remedy available which could come close to what this
12
Court can do and ought to do. Clearly, no money damages could possibly timely enforce standards of
13
care needed to protect and sustain plaintiffs’ unborn children. “[I]t is clear that it would not be
14
equitable or in the public's interest to allow the state to violate the requirements of federal law,
15 especially when there are no adequate remedies available.” Valle del Sol Inc. v. Whiting, 732 F.3d
16 1006, 1029 (9th Cir. 2013)(quoting U.S. v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011)); Arizona
17 Dream Act Coalition v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017).
18 Plaintiffs have demonstrated a strong prospect of success on the merits, and have established
19 irreparable harm if defendants are permitted to continue violating state statute and regulations and
20 Constitutional rules. The balance of equities and the public interest likewise point to a single
conclusion: the Court should award preliminary relief.
21
CONCLUSION
22
In the circumstances shown, this Court should find unequivocally that pre-natal care at Santa
23
Rita, medical and otherwise, is shown to be altogether inadequate, and deleterious to women who get
24
put in jail while with child and their babies---who are obviously innocent victims of defendants’
25 dereliction and must be protected along with their mothers. Both are in need of protection to a degree
26 and in ways which require immediate judicial remediation as well as long-term solutions; and so,
27 The Court should, and is earnestly asked to, grant preliminary relief, in an Order directing the
28 defendant Alameda County Sheriff’s Office, et al to find appropriate alternative community
13
placement for the pregnant women in their custody, pursuant to Sections 3410-3424 of the Penal
1
Code; and, where it is at all possible, plaintiffs should be referred and transferred to appropriate
2
community treatment programs forthwith.
3
In the alternative, where removal from the Jail is not practicable, defendants must be firmly
4
ordered that all pregnant women held at Santa Rita be assisted and protected by appropriate, specific,
5 Court-ordered measures and practices, including the following:
6 A. Nutrition. Provide a sufficient and wholesome, nutritionally balanced diet which is
7 defined as two 8 ounces of milk and 2 fresh fruits and 2 fresh vegetables in addition to meeting the
8 Recommended Dietary Allowances and Dietary Reference Intakes as established by the Food and
9 Nutrition Board of the Institute of Medicine, National Academy of Science. (15 CCR §3050(a);
10 3050(a(3)) for pregnant women with one fetus, and for those with twins, increase nutrition per the
Journal of Obstetrics and Gynecology Vol 114, N.5;3 and such balanced, nutritious diet be approved
11
by a doctor as required by Penal Code §6030; 15 CCR §3050(a) & 3050(a(3); ACSO §13.04.
12
B. Proper Medical Care and Oversight. Provide proper health care and standard medical
13
services for prenatal and post-partum women. Sheriff’s deputies and staff shall contact either a Nurse
14
Practitioner or Doctor trained in obstetrics for an initial examination of any prisoner found to be
15 pregnant, and these practitioners---not Sheriff’s deputies or other unqualified persons---will
16 determine the appropriate care plan under 15 CCR 3050 and be available whenever any of the
17 conditions listed in Alameda County Sheriff’s Office Policy & Procedure 13.04 III(b)(3)4 exist,
18 particularly if there is any complaint of bleeding, observed bleeding, abdominal or pelvic pain.
19 Proper health care and standard medical services for prenatal and post-partum women must be
20 provided in coordination with the Alameda County Medical Center, the ACMC monitoring of dietary
and exercise needs, and ACMC practitioners must be involved in evaluating pregnant women’s
21
medical needs beyond obstetrics issues, per Penal Code §6030(d)(2); 15 CCR §3355.2; ACSO
22
Policy & Proc.§13.04III(A)2; Penal Code §6030(d)(2); 15 CCR §3355.2; ACSO §13.04.
23
C. Exercise. Plaintiffs and all pregnant and post-partum women shall receive at the very
24
least three (3) hours a week of outdoor exercise, per 15 CCR 1065; ACSO Policy & Proc.
25 §13.04III(C)6, and more, on a daily basis, where possible. Highland Hospital recommends a
26
27
3
Optimal Nutrition for Improved Twin Pregnancy Outcome, Goodnight, William, MD, MSCR and Neuman, Roger, MD.
28
14
minimum of 30 minutes of exercise per day.

1
D. Feminine Hygiene. All women must receive “all materials necessary for personal
2
hygiene with regard to her menstrual and reproductive cycle.” This includes clean laundry, soap, and
3
menstrual pads. Penal Code §3409, 15 CCR 1065, 1483; ACSO §13.04
4
E. Sanitation of Food Preparation Facilities. The kitchen and related facilities at Santa
5 Rita must be kept clean and regularly inspected to guarantee proper conditions with respect to
6 cooking, food storage, food handling, clean-up, vermin infestation, and evaluation of CDC risk
7 factors with regard to food preparation, by the Alameda County Department of Environmental
8 Health. 15 CCR §§ 1245, 1466, 3052, 4122; Health & Safety Code §§ 8520 et seq; 113945 thru
9 114259.4.
10 F. Retaliation, Harsh Punishment and Discipline. Prohibition of harsh and unwarranted

punishments, including solitary confinement or isolation in excess of 15 minutes, unjustified or
11
redundant strip searches and body cavity searches, purposeful disruption of sleep and rest including
12
waking plaintiffs up in the middle of the night or leaving lights on past 11 pm, and other pointed
13
torments.
14
Women continue to come forth to affirm the grim factual basis for plaintiffs’ charges and
15 demands for relief and redress that are shaping up in this case. Plaintiffs believe their testimony, if
16 nothing else, will make it plain to the Court that substantial and detailed intervention on its part is
17 absolutely needed to protect the fundamental human as well as Constitutional and Statutory rights of
18 these women and their children-to-be. A basic humanity requires no less.
19
20 Dated: January 30, 2018 Respectfully submitted,
LAW OFFICE OF YOLANDA HUANG
21
/s/ Yolanda Huang______
22 YOLANDA HUANG
23
DENNIS CUNNINGHAM
24 /s/ Dennis Cunningham___
DENNIS CUNNINGHAM
25
26 ATTORNEYS FOR PLAINTIFFS
27
28
15

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Case 3:18-cv-00050-JD Document 17-1 Filed 01/31/18 Page 1 of 19

LAW OFFICES OF YOLANDA HUANG

1 Penal Code §4122 .................................................................................................................................15

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

only after the filing of plaintiffs’ application. (Dec. Y. Huang, ¶ 3.)

10 irremediable injury of a termination of pregnancy before term.

minimum of 30 minutes of exercise per day.

10 F. Retaliation, Harsh Punishment and Discipline. Prohibition of harsh and unwarranted

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