NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON ADVOCACY CENTER; No. 20-35540

METROPOLITAN PUBLIC DEFENDER

SERVICES, INC., D.C. No. 3:02-cv-00339-MO

Plaintiffs-Appellants,

MEMORANDUM*

v.

PATRICK ALLEN, Director of the Department of Human Services, in his official capacity; DOLORES MATTEUCCI, Superintendent of Oregon State Hospital, in her official capacity,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Argued and Submitted May 6, 2021 Submission Withdrawn May 7, 2021 Resubmitted August 16, 2021 Portland, Oregon

Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Since 2002, the Oregon State Hospital and the Oregon Health Authority

(collectively “OSH”) have been subject to a permanent injunction that requires the

hospital to admit certain mentally incompetent pretrial detainees “in a reasonably

timely manner,” and “not later than seven days” after the issuance of an order

finding incompetence. Or. Advoc. Ctr. v. Mink, CV No. 02-339, 2002 WL

35578910, at *7 (D. Or. May 10, 2002); see also Or. Advoc. Ctr. v. Mink, 322 F.3d

1101, 1105 (9th Cir. 2003). Those pretrial detainees are known as “.370 patients.”1

On April 17, 2020, in light of the COVID-19 pandemic, OSH filed a motion in the

district court seeking a modification of the Mink injunction’s seven-day deadline

for admitting .370 patients until “it is medically safe for OSH to begin accepting

patients in the normal course again.” The district court granted the motion over the

objection of Plaintiff Oregon Advocacy Center, which advocates for the rights of

individuals with mental illnesses. This appeal followed. We vacate and remand.

We review a district court’s grant of a motion to modify a permanent

injunction for abuse of discretion. See United States v. Asarco Inc., 430 F.3d 972,

978 (9th Cir. 2005). To prevail in its motion to modify the Mink injunction, OSH

1 Under Oregon law, if a court finds that a defendant is incompetent to stand trial and that he requires a hospital level of care, the court may order that the defendant be committed to OSH. Or. Rev. Stat. § 161.370. Such orders are known as “.370 orders.”

2 had to demonstrate a significant change in factual conditions that made compliance

with the injunction “more onerous, unworkable, or detrimental to the public

interest.” Id. at 979 (quoting Small v. Hunt, 98 F.3d 789, 795 (4th Cir. 1996)). If

OSH made such a showing, the district court could fashion a modification order

that was “suitably tailored to resolve the problems created” by the changed factual

conditions. Am. Unites for Kids v. Rousseau, 985 F.3d 1075, 1097 (9th Cir. 2021)

(quoting Asarco, 430 F.3d at 979).

1. OSH met its burden to demonstrate that the COVID-19 pandemic made

compliance with the Mink injunction more onerous. In response to the pandemic,

OSH reconfigured units at both of its campuses to allow for isolation of potentially

infected patients and protection of high-risk patients. For new admissions, OSH

opened two admissions monitoring units, each of which could safely receive

between fifteen and nineteen new .370 patients every two weeks. Opening those

units required transferring patients among units at both campuses, all while

attempting to prevent an outbreak among the patient population. Unsurprisingly,

this proved burdensome for OSH during the pandemic’s early stages.

2. The district court abused its discretion by failing to issue a modification

order that was suitably tailored to the factual circumstances. Citing the district

court’s 2002 order in Mink, Plaintiffs argue that jails cannot provide adequate

mental health treatment to individuals with .370 orders. As the district court stated

3 in 2002, “[d]epriving [individuals with .370 orders] of necessary medical treatment

increases the likelihood that they may decompensate and suffer unduly,” meaning

that their conditions may worsen, or they may have difficulty gaining competency.

At the same time, jails primarily employ disciplinary tools—such as solitary

confinement—to control inmates’ behaviors. These tools are ineffective when

used to manage people with mental illnesses, and they can be very harmful.

Individuals with .370 orders have a “high suicide risk,” and disciplinary actions

“exacerbate[] their mental illness.” Consequently, according to the district court in

2002, “[e]very day of delay in transport harms those found unfit to proceed and

hampers their ability to defend themselves.”

The district court’s modification order relaxes the Mink injunction’s

mandatory seven-day deadline for OSH to admit .370 patients without imposing

meaningful parameters to ensure that the interests of those patients are served to

the greatest possible extent. The modification order’s only oversight requirements

are that OSH provide progress reports to the court and to Plaintiffs “every three

weeks,” and that OSH appear at status conferences.2 Although the circumstances

presented by a new pandemic were certainly challenging, the district court had

other options available. For example, the district court could have adopted

2 Although we do not base our holding on events that postdate the district court’s decision, we note that the court’s reporting requirements have not been consistently followed.

4 parameters such as a sunset date after which the order would terminate (thereby

requiring a new motion from OSH if it still wanted relief from the seven-day

requirement), or it could have imposed a concrete alternative timeline for admitting

individuals with .370 orders if seven days proved unworkable, or both.

Alternatively, the district court could have ordered the modification to terminate at

some date that would be tied to public health policy milestones, such as the lifting

of Oregon’s State of Emergency.

To be sure, the district court faced a difficult task during an unprecedented

time. But an open-ended modification order is inconsistent with the urgent need to

transfer individuals with .370 orders out of jails. The order is thus not “suitably

tailored” to the factual circumstances. Rousseau, 985 F.3d at 1097.

On remand, the district court is instructed to reconsider whether a

modification to the permanent injunction is needed, and, if so, to craft a more

“suitably tailored” modification order. Id.; cf. Hook v. Arizona, 120 F.3d 921, 926

(9th Cir. 1997). The examples listed above are not directives; the district court

should have the flexibility to conduct further factfinding and consider alternatives

before issuing any further order.

VACATED AND REMANDED.

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