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Graves v. Arpaio

United States District Court, D. Arizona

September 30, 2014

Fred Graves, Isaac Popoca, on their own behalf and on behalf of a class of all pretrial detainees in the Maricopa County Jails, Plaintiffs,
v.
Joseph Arpaio, Sheriff of Maricopa County; Andrew Kunasek, Mary Rose Wilcox, Denny Barney, Steve Chucri, and Clint L. Hickman, Maricopa County Supervisors, Defendants

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For Fred Graves, Isaac Popoca, Plaintiffs: James Duff Lyall, LEAD ATTORNEY, Daniel Joseph Pochoda, ACLU - Phoenix, AZ, Phoenix, AZ; Larry A Hammond, Sharad H Desai, LEAD ATTORNEYS, Christina Claire Rubalcava, Osborn Maledon PA, Phoenix, AZ; Margaret Winter, LEAD ATTORNEY, Eric Balaban, Gabriel Eber, ACLU - Washington DC, Washington, DC; Theodore C Jarvi, LEAD ATTORNEY, Law Offices of Theodore Jarvi, Tempe, AZ.

For Andrew W Kunasek, Maricopa County Supervisor, District 3, Mary Rose Wilcox, Maricopa County Supervisor, District 5, Defendants: Michele Marie Iafrate, LEAD ATTORNEY, Iafrate & Associates, Phoenix, AZ; Sherle Rubin Flaggman, Thomas P Liddy, LEAD ATTORNEYS, Maricopa County Attorneys Office - Civil, Services Division, Phoenix, AZ.

For Joseph M Arpaio, Sheriff of Maricopa County, Defendant: Michele Marie Iafrate, LEAD ATTORNEY, Iafrate & Associates, Phoenix, AZ.

For Denny Barney, Maricopa County Supervisor, District 1, Steve Chucri, Maricopa County Supervisor, District 2, Clint L Hickman, Maricopa County Supervisor, District 4, Defendants: Michele Marie Iafrate, LEAD ATTORNEY, Iafrate & Associates, Phoenix, AZ; Thomas P Liddy, LEAD ATTORNEY, Maricopa County Attorneys Office - Civil, Services Division, Phoenix, AZ.

For Todd Wilcox, Dr, Movant: Stephen C Clark, LEAD ATTORNEY, Jones Waldo Holbrook & McDonough, Salt Lake City, UT.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW and ORDER

Neil V. Wake, United States District Judge.

TABLE OF CONTENTS

I. Summary

II. Background

III. Legal Standards

A. Termination of Prospective Relief Under the Prison Litigation Reform Act

B. Relevant Period for a " Current and Ongoing" Violation

C. Pretrial Detainees' Protection from Punishment Under the Fourteenth

Amendment

D. Eighth Amendment Standard for Medical and Mental Health Care

E. Remedies 20

IV. Findings of Fact and Conclusions of Law

A. The Parties

B. The Maricopa County Jail

C. Receiving Screening

D. Ready Access to Needed Medical and Mental Health Care

E. Prescription Medications Without Interruption

F. Electronic Records Management

G. Remedies

H. Fourth Amended Judgment to Be Entered

I. Attorney Fees

V. Order

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Before the Court is Defendants Fulton Brock, Don Stapley, Andrew Kunasek, Max Wilson and Mary Rose Wilcox's Motion to Terminate Third Amended Judgment on Behalf of Correctional Health Services (Doc. 2142).[1] The Court has considered the parties' briefs, memoranda, proposed findings, and evidence and argument presented on February 25-27 and March 4-6, 2014.

I. SUMMARY

Pretrial detainees held in the Maricopa County Jail brought this class action in 1977 against the Maricopa County Sheriff and the Maricopa County Board of Supervisors seeking injunctive relief for alleged violations of their civil rights. Throughout the years, the injunctive relief was amended as conditions changed. Now Defendants seek to terminate the remaining injunctive relief regarding medical, dental, and mental health care for pretrial detainees held in the Maricopa County Jail. Terminating the Court-ordered relief would end this class action and the Court's monitoring of conditions in the Maricopa County Jail, but would not end Defendants' constitutional obligations to pretrial detainees.

The Eighth Amendment requires that the Maricopa County Jail provide pretrial detainees a system of ready access to adequate medical, dental, and mental health care, which includes timely examination, diagnosis, and treatment by medical personnel qualified to do so. It also requires that the Maricopa County Jail not be deliberately indifferent to pretrial detainees' serious medical, dental, and mental health needs, including conditions that are likely to cause future serious illness and needless suffering.

The Fourteenth Amendment requires that the Maricopa County Jail not withhold or delay medical, dental, or mental health care unless doing so is reasonably related to a legitimate governmental objective, such as protecting a pretrial detainee from likely harm, protecting others from likely harm, and preserving institutional security. Lack of resources does not justify delay or denial of medical, dental, or mental health care.

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The Maricopa County Jail must make reasonable efforts to prevent a pretrial detainee's confinement from causing the detainee serious medical or mental health injury. It also must make reasonable efforts to avoid depriving the detainee from obtaining or continuing necessary medical or mental health care the detainee would have obtained or continued outside of the Jail. But the Jail is not the County's public health care provider. Several hundred pretrial detainees enter the Jail daily, approximately half need some form of health care, and nearly 40% are released within 24 hours. Only 35% stay longer than 7 days; only 25% stay longer than 14 days. With a high-volume, short-stay inmate population, the Jail cannot cure serious systemic inadequacies in public medical and mental health care in Maricopa County and the State of Arizona.

Defendants have shown significant improvements in many areas relevant to the Third Amended Judgment and have set in place practices that may cure or nearly cure most of the previously identified ongoing constitutional violations. However, on August 9, 2013, they moved for termination of the Third Amended Judgment before collecting evidence that the improvements had been successfully implemented and were producing the intended results. Some of the new practices were begun only a few days before. Thus, Defendants have not met their burden to prove that they eliminated all current and ongoing constitutional violations as of August 9, 2013.

For example, Defendants now have at least one medical provider and additional mental health staff assigned to the Jail's intake center 24 hours a day, 7 days a week. But they have not shown they have resolved systemic deficiencies in providing pretrial detainees timely face-to-face assessment by medical and mental health providers for serious acute or chronic complex conditions.

Defendants now have designated housing for male general population pretrial detainees who need close monitoring and treatment during withdrawal from alcohol and/or drugs. But they have not shown they have resolved systemic deficiencies in providing adequate monitoring and treatment of female pretrial detainees during withdrawal or male pretrial detainees who are placed in housing for suicide monitoring, close custody, administrative segregation, disciplinary segregation, or the Special Management Unit during withdrawal.

Defendants have not shown they have resolved systemic deficiencies in articulating and implementing criteria for placement of seriously mentally ill pretrial detainees in the Mental Health Unit, its subunits, and outside mental health/psychiatric facilities. Appropriate placement, transition, and transfer do not guarantee any particular result for an individual pretrial detainee, but they do require a mental health provider's timely clinical assessment and judgment for each seriously mentally ill pretrial detainee.

Curing these systemic deficiencies may require more medical and mental health providers than are currently caring for pretrial detainees in the Maricopa County Jail. Defendants are not required to maintain specific staffing numbers or ratios, but they must ensure that pretrial detainees with serious medical or mental health conditions are seen face-to-face by providers, providers personally diagnose and plan treatment for pretrial detainees with serious medical or mental health conditions, and providers' orders for prescriptions, lab tests, treatments, monitoring, placement, specialist referrals, and follow-up appointments are completed with urgency ordered by the provider. Pretrial detainees' constitutional right to adequate medical and

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mental health care is best protected by a system that permits qualified medical and mental health providers to exercise reasonable professional judgment regarding individual pretrial detainees and that provides the resources needed to comply with the providers' orders.

Defendants have not shown that the prospective relief ordered in the Third Amended Judgment is no longer necessary to correct a current and ongoing constitutional violation or that it exceeds the constitutional minimum. On this record, the prospective relief ordered in the Third Amended Judgment remains necessary to ensure that pretrial detainees have ready access to adequate medical, dental, and mental health care; are not subjected to conditions that are likely to cause future serious illness and needless suffering; and are not deprived of timely medical, dental, or mental health care except where denial or delay of care is reasonably related to a legitimate governmental objective other than financial cost.

Having found constitutional violations, the Court must order remedies to correct them. Defendants' six-year history of incomplete compliance with the medical and mental health terms of the Second Amended Judgment now requires judicial crafting of remedies. Defendants will recognize that much of the specific relief ordered is what they say they will do but have not yet proven to be permanent and effective. If Defendants comply with this Order, within one year they will demonstrate that prospective relief no longer remains necessary to correct any current and ongoing violation of Plaintiffs' constitutional rights, and Court-ordered relief may be terminated before the Prison Litigation Reform Act permits another motion to terminate.

II. BACKGROUND

This class action was brought in 1977 against the Maricopa County Sheriff and the Maricopa County Board of Supervisors alleging that the civil rights of pretrial detainees held in the Maricopa County, Arizona, jail system had been violated. It applies only to pretrial detainees, not to convicted inmates.

On March 27, 1981, the parties entered into a consent decree that addressed and regulated aspects of the County jail operations as they applied to pretrial detainees. On January 10, 1995, the 1981 consent decree was superseded by an Amended Judgment entered by stipulation of the parties.

On October 22, 2008, upon motion by Defendants pursuant to the Prison Litigation Reform Act (" PLRA" ), 18 U.S.C. § 3626 and 42 U.S.C. § 1997, and after an evidentiary hearing, certain provisions of the Amended Judgment were found to remain necessary to correct a current and ongoing violation of a federal right, to extend no further than necessary to correct the violation of the federal right, to be narrowly drawn, and to be the least intrusive means to correct the violation. (Doc. 1634.) Other provisions were modified or vacated, and the provisions remaining in effect, as originally written or as modified, were restated in the Second Amended Judgment. (Doc. 1635.) The October 22, 2008 Order stated that the Court contemplated that the parties would " confer immediately about prompt compliance with the Second Amended Judgment, and new proceedings will be brought at Plaintiffs' initiative to enforce the Second Amended Judgment if Plaintiffs are not satisfied." On November 21, 2008, Defendants sought appellate review of the Second Amended Judgment.

On December 5, 2008, a hearing was held regarding Defendants' compliance with the Second Amended Judgment, the parties' plans for achieving compliance,

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and disputes regarding selection of independent medical and mental health consultants to assist Defendants in achieving compliance. On January 9, 2009, a hearing was held regarding Defendants' progress toward compliance with the nonmedical portions of the Second Amended Judgment and selection of team leaders for medical and mental health compliance efforts.

On January 28, 2009, upon agreement of the parties, the Court appointed Dr. Lambert N. King, medical expert, and Dr. Kathryn Burns, mental health expert, to serve as independent evaluators of Defendants' compliance with the medical and mental health provisions of the Second Amended Judgment. The independent evaluators conducted regularly scheduled visits to the County jails and reported their findings and recommendations to the Court beginning in June 2009.

On April 7, 2010, sixteen months after the Second Amended Judgment was entered, significant areas of failure to comply with the Second Amended Judgment's medical and mental health requirements remained. (Doc. 1880.) The April 7, 2010 Order stated in part:

Although progress has been made, it appears as though most of the improvements made regarding medical and mental health services have been those imposing little or no additional cost on Defendants. Improvements appearing to be most critically needed, e.g., developing and implementing electronic medical records and medication management tools, increasing staffing, providing space for confidential mental health treatment, appear to have been disregarded or postponed to avoid expense. Further, the Court has not been advised whether Defendants are in compliance with the food and nutritional terms of the Second Amended Judgment.
Previous orders and numerous court proceedings in this matter have emphasized Congress's intent that constitutional violations regarding conditions of confinement be corrected expeditiously and judicial oversight terminated as swiftly as possible. The Court has repeatedly informed the parties of the importance of implementing long-overdue, constitutionally required corrections as quickly as possible, both for the benefit of the Plaintiff class and to avoid expenses incurred by unnecessary delay. Because correction of constitutional violations has not proceeded expeditiously to date, the parties and counsel will be ordered to meet and confer to develop a proposed procedure for achieving and demonstrating Defendants' complete compliance with the Second Amended Judgment, including a procedure for Plaintiffs to submit fee applications at appropriate intervals to be paid promptly by Defendants. The Court's purpose is to set a procedure by which full compliance with the Second Amended Judgment is either confirmed or specific implementing remedies are ordered and complied with by the end of this calendar year. To the extent fiscal choices have to be made, the Court contemplates that compliance with the minimum requirements of the United States Constitution in the discharge of the Defendants' core function of operating the county jail will take priority over other discretionary activities of the Sheriff and the County Defendants. The parties shall jointly file a report explaining their proposed procedure by June 11, 2010.

( Id.) The April 7, 2010 Order required the parties to meet and confer to develop a proposed schedule for confirming Defendants' full compliance with the Second Amended Judgment or ordering specific implementing remedies that would achieve

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full compliance by the end of 2010. It further set a hearing for June 24, 2010, on the parties' proposed procedure for achieving Defendants' complete compliance with the Second Amended Judgment. These deadlines were subsequently extended several times.

On June 18, 2010, the parties filed a joint report with their respective positions regarding Defendants' compliance with the nonmedical portions of the Second Amended Judgment. On July 30, 2010, the parties filed a supplemental joint report regarding food, discovery, and presentation of disputes.

On July 30, 2010, the parties also filed a joint report stating each party's position regarding the status of Defendants' compliance with the medical and mental health portions of the Second Amended Judgment. (Doc. 1895.) The parties agreed to a procedure for achieving compliance with the Second Amended Judgment regarding the medical and mental health issues that remained disputed. The Court-appointed independent evaluators would determine whether Defendants were in full compliance with the Second Amended Judgment, and if Defendants were found not to be in full compliance with any provision, the evaluators would submit detailed proposed remedies and timetables for remedial action to bring Defendants into full compliance. If neither party objected to an evaluator's finding and remedial recommendation, the finding and remedy would be adopted as an order of the Court. The Court would resolve any objections after hearing evidence on the relevant issues. But this procedure never was implemented.

On October 13, 2010, the Ninth Circuit affirmed the Second Amended Judgment. On October 28, 2010, Defendants moved to terminate the nonmedical portions of the Second Amended Judgment (paragraphs 2-5 and 9-16). On November 2, 2010, Defendants filed a petition for rehearing en banc in the Ninth Circuit. On November 17, 2010, the Court denied Defendants' motion to terminate the nonmedical portions of the Second Amended Judgment for lack of jurisdiction without prejudice to refiling it after the Court of Appeals' mandate issued and jurisdiction was revested in this Court.

On January 20, 2011, the parties filed a Joint Case Management Plan Regarding Health Care, which identified Defendants' disagreement with two recommendations of the Court-appointed independent consultants: (1) physician assistants or nurse practitioners cannot substitute for licensed physicians on weekends and holidays or in providing initial health assessments of patients with or at risk of serious acute or unstable medical conditions, and (2) correctional staff posted to the intake center must receive training regarding mental health issues. (Doc. 1939.) On April 4, 2011, the Ninth Circuit mandate issued. On June 7, 2011, the parties filed a Joint Case Management Report, which stated that an evidentiary hearing regarding the medical and mental health issues was no longer necessary. The same day Defendants filed a motion to terminate the nonmedical provisions of the Second Amended Judgment. (Doc. 1980.) An evidentiary hearing on the motion was set for October 18, 2011. (Doc. 1988.)

On October 12, 2011, after conducting extensive discovery, the parties stipulated that certain nonmedical provisions of the Second Amended Judgment should be terminated and that other provisions should remain in effect. The stipulation stated that Defendants would renew the motion to terminate after April 1, 2012, and that Plaintiffs would not contest the renewed motion if Defendants successfully accomplished certain goals for the period November

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1, 2011, through March 1, 2012. On October 13, 2011, the Court granted the parties' stipulation and denied Defendants' motion to terminate except as stipulated.

On April 24, 2012, Defendants moved to terminate certain provisions of the Second Amended Judgment pursuant to 18 U.S.C. § 3626(b), and Plaintiffs did not oppose the motion. On May 24, 2012, Defendants' motion was granted, and those provisions of the Second Amended Judgment (Doc. 1635) that remained in effect were restated in the Third Amended Judgment (Doc. 2094). The Third Amended Judgment provides in relevant part:

2. Defendants shall provide a receiving screening of each pretrial detainee, prior to placement of any pretrial detainee in the general population. The screening will be sufficient to identify and begin necessary segregation, and treatment of those with mental or physical illness and injury; to provide necessary medication without interruption; to recognize, segregate, and treat those with communicable diseases; to provide medically necessary special diets; and to recognize and provide necessary services to the physically handicapped.
3. All pretrial detainees confined in the jails shall have ready access to care to meet their serious medical and mental health needs. When necessary, pretrial detainees confined in jail facilities which lack such services shall be transferred to another jail or other location where such services or health care facilities can be provided or shall otherwise be provided with appropriate alternative on-site medical services.
4. Defendants shall ensure that the pretrial detainees' prescription medications are provided without interruption where medically prescribed by correctional medical staff.
5. Defendants will maintain records of their compliance with this Third Amended Judgment and will provide quarterly summaries of those records to Plaintiffs' counsel.

( Doc. 2094.)

In January 2013, in their Tenth Reports to the Court, Dr. King and Dr. Burns reported significant progress toward compliance with the Third Amended Judgment and provided specific recommendations to achieve substantial compliance. (Doc. 2099.) These reports were based primarily on site visits and records reviews made in October 2012. On February 25, 2013, the Court ordered Defendants to file a status report stating their views and intentions with respect to the recommendations of Dr. King and Dr. Burns.

On June 14, 2013, Defendants filed a status report describing their efforts to address the concerns raised by Dr. King and Dr. Burns in their Tenth Reports. (Doc. 2128.) It concluded that " Drs. Burns and King's reports do not indicate any widespread systemic problems that violate inmates' constitutional rights" and " CHS continues to perfect its level of care and treatment to the inmate population." The status report also described the temporary electronic records system then in use and progress toward completing the permanent electronic health records system.

Regarding Dr. King's recommendations, among other things, the status report stated, " 24 hour provider coverage was added to Fourth Avenue Intake in 2012," " [t]he RN and Intake provider assess (based on symptomology and medical history) which inmates require a follow-up evaluation based on individualized history and assessment," and " [a]fter the health technician conducts the Pre-Intake interview, any inmate with more significant medical issues--i.e., a chronic condition, on medications,

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injured, etc.--will see the RN in the pre-Intake area for a follow-up assessment." Statements such as these did not show that improvements had been made after Dr. King's October 2012 site visit or provide evidence that any of his recommendations had been adopted and were being implemented consistently.

Defendants expressly disagreed with Dr. King's recommendation that policies and procedures of the Maricopa County Sheriff's Office (" MCSO" ) be modified to (1) require qualified medical personnel to examine each detainee after a use of force and determine whether the detainee should be given medical treatment and (2) require involvement of mental health professionals to attempt to obviate use of force on a detainee with probable mental illness who is passively resisting control. In other areas, Defendants simply described current practices, some of which did not comply with Dr. King's recommendations, without expressly disagreeing with his recommendations. For example, under the heading " Tuberculin Skin Testing Within Seven Days of Booking," the status report states, " CHS performs a skin test between ten to fourteen days from Intake to coincide with the inmate's initial health assessment."

Regarding Dr. Burns' recommendations, among other things, the June 14, 2013 status report described procedures for placement and treatment of mental health patients at the Mental Health Unit at the Lower Buckeye Jail (" MHU" ) and outpatient clinics. It stated that mental health clerk hours were increased in the intake center to provide weekend coverage beginning in December 2012, mental health audits showed improvements in the timeliness of providing care, and necessary psychiatric evaluations occur within four days of booking. The status report also stated: " Medications are provided as quickly as possible after verification. The psychotropic drug audits conducted quarterly show that medications are given to patients within three to four days of booking." Further, the report described improvements made to address issues associated with isolation in the 4th Avenue Special Management Unit. The June 14, 2013 status report included information regarding the number of suicides per year and suicides per 100,000 for 2002-2012 and concluded that " CHS's low suicide rate indicates that patients at risk for self harm are well managed."

On July 29, 2013, Plaintiffs responded to Defendants' June 14, 2013 status report with respect to specific recommendations made by Dr. King and Dr. Burns. (Doc. 2138.) Plaintiffs acknowledged progress made since 2008, identified recommendations for which Defendants' status report did not establish compliance, and challenged the accuracy of some of Defendants' assertions about their compliance with the recommendations. Plaintiffs asserted that Defendants' status report did not establish compliance with recommendations such as those regarding the electronic health records system, provider staffing during intake, face-to-face provider evaluations during intake of patients with serious acute or chronic medical conditions, adequate beds and facilities for closely monitoring patients at risk for severe alcohol and drug withdrawal of all custody levels, revision of the MCSO Use-of-Force policy, on-site availability of nursing wound care, timeliness of transferring unstable patients from outpatient jails to the MHU, improvement of outpatient mental health care, timely access to appropriate mental health treatment for detainees enrolled in the Restoration to Competency Program, and issues with isolation in the 4th Avenue Special Management Unit. For example, Plaintiffs noted that Defendants responded to some of Dr. Burns'

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concerns expressed in January 2013 (based on October 2012 observations) regarding treatment of seriously mentally ill patients housed in the Special Management Unit by describing improvements made in 2010. Notwithstanding Plaintiffs' objections to Defendants' June 14, 2013 status report and insufficient time to prove the effectiveness of recent improvements, Defendants moved to terminate the Third Amended Judgment pursuant to 18 U.S.C. § 3626(a)(1). (Doc. 2142.)

On August 30, 2013, the parties stipulated to waive the automatic stay of the Third Amended Judgment, which 18 U.S.C. § 3626(e)(2) imposes thirty days after a motion to terminate is filed, to enable the parties to conduct additional discovery and present their evidence to the Court and to allow the Court sufficient time to rule. (Doc. 2149.) On September 10, 2013, the Court set deadlines for briefing Defendants' motion to terminate the Third Amended Judgment and set oral argument with evidentiary hearing, if requested, for December 18, 2013. (Doc. 2156.) Subsequently, Defendants filed a statement of facts to support their motion to terminate the Third Amended Judgment (Doc. 2158), a controverting statement of facts responding to Plaintiffs' additional facts and objecting to Plaintiffs' proposed findings of fact (Doc. 2183), proposed findings of fact (Doc. 2184), and a motion to set evidentiary hearing (Doc. 2181). Plaintiffs filed a response to Defendants' motion to terminate (Doc. 2178), a response to Defendants' statement of facts (Doc. 2179), and proposed findings of fact (Doc. 2177).

On December 12, 2013, the Court granted Defendants' motion for evidentiary hearing, vacated the oral argument previously set, and set an evidentiary hearing for February 18, 2014. On January 7, 2014, upon Defendants' motion, the evidentiary hearing was continued to February 25, 2014. On January 13, 2014, the Court ordered Plaintiffs to file a statement concisely identifying specifically what actions they believed Defendants needed to take to correct any and all ongoing current violations within the scope of the Third Amended Judgment and deadlines by which Defendants reasonably could and should complete all of the corrective actions. On January 31, 2014, Plaintiffs filed their statement of proposed corrective actions. (Doc. 2210.) On February 19, 2014, the Court issued a Final Prehearing Order, which identified material issues of fact to be decided, including whether it should order any of the corrective actions proposed by Plaintiffs. On February 25, 2014, Defendants filed a trial brief regarding Maricopa County's Medical Copayment.

An evidentiary hearing was held on February 25, 26, and 27, 2014, and March 4, 5, and 6, 2014. On April 18, 2014, Defendants filed a supplemental brief regarding remedies adopted by other courts where a systemic constitutional violation was found. (Doc. 2261.) On May 8, 2014, Plaintiffs filed a memorandum regarding remedies and post-trial proposed findings of fact and conclusions of law. (Docs. 2268, 2269.)

The Court has considered all of the briefing, statements of facts, proposed findings, and evidence presented by the parties.

III. LEGAL STANDARDS

A. Termination of Prospective Relief Under the Prison Litigation Reform Act

Congress enacted the Prison Litigation Reform Act to prevent federal courts from micromanaging prisons by mere consent decrees. Gilmore v. California, 220 F.3d 987, 996 (9th Cir. 2000). Under the PLRA, courts may not grant

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or approve relief that requires prison administrators to do more than the constitutional minimum. Id. at 999. The PLRA requires that prospective relief regarding prison conditions " extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." 18 U.S.C. § 3626(a)(1). Relief must be narrowly drawn, extend no further than necessary to correct the violation, and be the least intrusive means necessary to correct the violation. Id. Further, courts must " give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." Id.

The PLRA also provides that any order for prospective relief regarding prison conditions is terminable upon the motion of any party one year after the district court has entered an order denying termination of prospective relief under the PLRA. 18 U.S.C. § 3626(b)(1). The party seeking to terminate the prospective relief bears the burden of proof. Gilmore, 220 F.3d at 1007; Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam).

Although § 3626 refers to " immediate termination" and a " prompt ruling," the district court must inquire into current prison conditions before ruling on a motion to terminate. Gilmore, 220 F.3d at 1007-08. Even if the existing relief qualifies for termination under § 3626(b)(2), if there is a current and ongoing violation, the district court must modify the relief to meet the PLRA standards. Id. at 1008. Therefore, " [p]rospective relief shall not terminate if the court makes written findings based upon the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation." 18 U.S.C. § 3626(b)(3). If prospective relief remains necessary to correct a current and ongoing violation, the district court's authority to modify the existing prospective relief includes authority to expand or diminish the existing relief. See Pierce v. Orange County, 526 F.3d 1190, 1204 n.13 (9th Cir. 2008). Determining whether such relief meets § 3626(b)(3)'s need-narrowness-intrusiveness criteria " will obviously rest upon case-specific factors--namely, the extent of the current and ongoing constitutional violations." Id. at 1206.

B. Relevant Period for a " Current and Ongoing" Violation

To make the findings required to terminate prospective relief, the Court must take evidence on current jail conditions, at least with respect to those conditions Plaintiffs do not concede comply with constitutional requirements. See Gilmore, 220 F.3d at 1010. Evidence of " current and ongoing" violations must reflect conditions " as of the time termination is sought." Id.; accord Pierce, 526 F.3d at 1205.

On September 10, 2013, the Court ordered that for evidence to be relevant to Defendants' motion to terminate the Third Amended Judgment, it must tend to show whether any current and ongoing violation existed on August 9, 2013, the date Defendants filed their motion. (Doc. 2156.) Relevant evidence could be obtained before or after August 9, 2013, but it must show conditions as they existed on August 9, 2013.

C. Pretrial Detainees' Protection from Punishment Under the Fourteenth Amendment

The Fourteenth Amendment Due Process Clause protects a pretrial

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detainee from punishment prior to an adjudication of guilt in accordance with due process of law. Bell v. Wolfish, 441 U.S. 520, 534-35, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). " This standard differs significantly from the standard relevant to convicted prisoners, who may be subject to punishment so long as it does not violate the Eighth Amendment's bar against cruel and unusual punishment." Pierce, 526 F.3d at 1205. The " more protective" Fourteenth Amendment standard applies to conditions of confinement for pretrial detainees and requires the government to do more than provide minimal necessities. Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004).

To evaluate the constitutionality of pretrial detention conditions that are not alleged to violate any express constitutional guarantee, a district court must determine whether those conditions amount to punishment of the detainee. Bell, 441 U.S. at 535; Pierce, 526 F.3d at 1205; Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004). To constitute punishment, the governmental action must cause harm or disability that either significantly exceeds or is independent of the inherent discomforts of confinement, but it does not need to cause a harm independently cognizable as a separate constitutional violation, e.g., deprivation of First Amendment rights. Demery, 378 F.3d at 1030. To determine whether an action's purpose is punitive, in the absence of evidence of express intent, a court may infer that the purpose of a particular restriction or condition is punishment if the restriction or condition is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective. Pierce, 526 F.3d at 1205 (citing Bell, 441 U.S. at 539).

Legitimate governmental objectives that may justify adverse detention conditions include maintaining security and order and operating the detention facility in a manageable fashion. Id. " [M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees." Bell, 441 U.S. at 546. But retribution and deterrence are not legitimate governmental objectives. Demery, 378 F.3d at 1030-31.

To determine whether detention restrictions or conditions are reasonably related to maintaining security and order and operating the institution in a manageable fashion, courts ordinarily should defer to the expert judgment of correction officials in the absence of substantial evidence that indicates officials have exaggerated their response to these considerations. Bell, 441 U.S. at 540 n.23. A reasonable relationship between the governmental objective and the challenged condition does not require an " exact fit," a showing that it is the " least restrictive alternative," or proof that the policy does in fact advance the legitimate governmental objective. Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002). But it does require evidence that the correction officials' judgment is rational, i.e., they might reasonably think that the policy advances a legitimate governmental objective. Id.

Therefore, to find that a condition of confinement for pretrial detainees constitutes a current and ongoing violation of the constitutional minimum under the Fourteenth Amendment, the Court must determine that the condition:

(1) imposes some harm to the pretrial detainees that significantly exceeds or is independent of the inherent discomforts of confinement and

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(2) (a) is not reasonably related to a legitimate governmental objective or
(b) is excessive in relation to the legitimate governmental objective.

D. Eighth Amendment Standard for Medical and Mental Health Care

Although the " more protective" Fourteenth Amendment standard applies here, any violation of the Eighth Amendment necessarily also violates the Fourteenth Amendment. The Eighth Amendment requires that prison officials ensure that inmates receive adequate food, clothing, shelter, sanitation, and medical care and take reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Courts must consider the effect of each condition of confinement in its context, " especially when the ill-effects of particular conditions are exacerbated by other related conditions." Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981). " A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society." Brown v. Plata, __ U.S. __, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011).

Specifically, prison officials must " provide a system of ready access to adequate medical care," including mental health care, that provides access to medical staff who are competent to examine inmates, diagnose illnesses, and treat medical problems or refer inmates to those who can. Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Further, the system must be able to respond to emergencies promptly and adequately. Id.

Moreover, the Eighth Amendment prohibits deliberate indifference not only to an inmate's current health problems, but also to conditions of confinement that are very likely to cause future serious illness and needless suffering. Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). " A medical need is serious if failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Peralta v. T.C. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc) (internal quotation marks omitted).

Deliberate indifference to serious medical needs may be manifested not only by medical providers failing to respond to a prisoner's needs, but also by detention officers intentionally denying or delaying access to medical care or intentionally interfering with prescribed treatment. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A policy of medical understaffing may show deliberate indifference. Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th 1988), vacated and remanded, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989), reinstated, 886 F.2d 235 (9th Cir. 1989). And " [l]ack of resources is not a defense to a claim for prospective relief because prison officials may be compelled to expand the pool of existing resources in order to remedy Eighth Amendment violations." Peralta, 744 F.3d at 1083; see also Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979) (cost or inconvenience of providing adequate conditions is not a defense to the imposition of punishment in an action for injunctive relief).

Holding inmates with serious mental illness in prolonged isolated confinement may cause serious illness and needless suffering in violation of the Eighth Amendment. See, e.g., Coleman v. Brown,

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938 F.Supp.2d 955, 979 (E.D. Cal. 2013) (mentally ill inmates in administrative segregation faced substantial risk of serious harm, including exacerbation of mental illness and potential increase in suicide risk). To determine whether segregated confinement meets constitutional standards, courts must consider both the length of the segregated confinement of inmates with serious mental illness and the specific conditions of the confinement. Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Conditions to be considered may include: (1) the length of time prisoners with mental illness spent in solitary confinement (approximately 22 hours or more a day); (2) the extent to which solitary confinement interfered with prisoners' ability to obtain adequate mental health treatment; (3) the conditions accompanying the solitary confinement experienced by prisoners with serious mental illness; and (4) the extent to which systemic deficiencies at the facility, e.g., deficiencies in mental health programming, screening, and accountability, contributed to an overreliance on solitary confinement as a means of controlling prisoners with serious mental illness. Coleman v. Brown, CV-90-00520-LKK-DAD, Doc. 4919, (E.D. Cal. Nov. 12, 2013) (publication of the United States Department of Justice, Civil Rights Division).

District courts have found that conditions of extreme social isolation likely would cause some degree of psychological trauma for most inmates and likely would cause serious mental illness or a massive exacerbation of existing mental illness for inmates with active mental illness or a history of mental illness. Thus, the confinement in a maximum security housing unit constituted a per se violation of the Eighth Amendment only for inmates with active mental illness or a history of mental illness. Madrid v. Gomez, 889 F.Supp. 1146, 1155, 1235-36, 1265-66 (N.D. Cal. 1995); Ind. Prot. & Advocacy Servs. Comm'n v. Comm'r, Ind. Dep't of Corr., 2012 WL 6738517 at *23 (S.D. Ind. Dec. 31, 2012) (expressly following Madrid v. Gomez ). Similarly, a district court found that extremely isolating conditions in a Wisconsin supermaximum prison caused psychological harm to seriously mentally ill prisoners, relatively healthy prisoners who had histories of serious mental illness, and prisoners who had never suffered a breakdown in the past but were prone to break down when stress and trauma became severe. Jones'El v. Berge, 164 F.Supp.2d 1096, 1101-02 (W.D. Wis. 2001).

Recently, nearly 20 years after first granting injunctive relief to the class of seriously mentally ill prisoners confined in the California state prison system, a district court recognized defendants' significant progress overall, but found defendants' motion to terminate " clearly premature" because defendants had not sufficiently remedied Eighth Amendment violations in use of force, disciplinary measures, and segregated housing for seriously mentally ill prisoners. Coleman v. Brown, 28 F.Supp.3d 1068, 2014 WL 1400964, at *1 (E.D. Cal. 2014). The court found that " placement of seriously mentally ill inmates in California's segregated housing units can and does cause serious psychological harm, including decompensation, exacerbation of mental illness, inducement of psychosis, and increased risk of suicide," and " the Eighth Amendment prohibits placements of seriously mentally ill inmates in conditions that pose a substantial risk of exacerbation of mental illness, decompensation, or suicide." 28 F.Supp.3d 1068, [WL] at *20, 25. It concluded that where clinical judgment demonstrates that a proposed placement poses an unacceptable level of risk, that judgment

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cannot be overridden by custodial requirements, and an alternative placement must be made. The court ordered defendants to develop a protocol for placement decisions and a plan for alternative housing that would preclude placement of any seriously mentally ill inmate in existing administrative segregation units when clinical information demonstrates substantial risk of exacerbation of mental illness, decompensation, or suicide from such placement. 28 F.Supp.3d 1068, [WL] at *26.

Even under the Eighth Amendment, constitutional standards for prison conditions are not fixed:

Underlying the eighth amendment is a fundamental premise that prisoners are not to be treated as less than human beings. The amendment is phrased in general terms rather than specific ones so that while the underlying principle remains constant in its essentials, the precise standards by which we measure compliance with it do not. It follows that when confronting the question whether penal confinement in all its dimensions is consistent with the constitutional rule, the court's judgment must be informed by current and enlightened scientific opinion as to the conditions necessary to insure good physical and mental health for prisoners.

Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979) (citations omitted); see Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (" The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." ).

E. Remedies

" [C]onstitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions." Brown v. Plata, __ U.S. __, 131 S.Ct. 1910, 1936, 179 L.Ed.2d 969 (2011). " Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration." Id. at 1928-29. Further, " [a] history of noncompliance with prior orders can justify greater court involvement than is ordinarily permitted." Sharp v. Weston, 233 F.3d 1166, 1173 (9th Cir. 2000) (affirming order that identified areas of noncompliance with prior injunction and gave more specific directions regarding how to comply with the original order). Although a district court must give prison officials opportunity to propose remedies, it has broad discretion regarding when and how that proposal should be submitted for consideration by the court. Graves v. Arpaio, 623 F.3d 1043, 1047 (9th Cir. 2010).

" Once a constitutional violation has been found, a district court has broad powers to fashion a remedy. A court may order relief that the Constitution would not of its own force initially require if such relief is necessary to remedy a constitutional violation." Sharp, 233 F.3d at 1173 (internal quotation marks and citations omitted; after failure to comply with prior injunction, district court did not abuse discretion by issuing more specific directions that were not, in and of themselves, constitutionally required). The PLRA authorizes prospective relief that is necessary to correct an ongoing constitutional violation, but does not require that the relief " exactly map" onto constitutional requirements. Graves, 623 F.3d at 1050. Although 18 U.S.C. § 3626(b)(3) requires that prospective relief be narrowly drawn and the least intrusive means to correct the violation, a remedy does not fail narrow tailoring simply because it will have positive collateral effects. Plata, 131 S.Ct. at 1940.

Federal courts may give considerable weight to expert opinion regarding how to remedy relevant constitutional

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violations. Id. at 1944. Although " courts must not confuse professional standards with constitutional requirements," " expert opinion may be relevant when determining what is obtainable and what is acceptable in corrections philosophy," and " courts are not required to disregard expert opinion solely because it adopts or accords with professional standards." Id. at 1944-45.

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. The Parties

1. Plaintiffs are the class of all pretrial detainees who are housed in the Maricopa County Jail, which includes multiple facilities.

2. Defendants Denny Barney, Steve Chucri, Clint L. Hickman, Andrew Kunasek, and Marie Lopez Rogers[2] are the current members of the Maricopa County Board of Supervisors.

3. Defendant Joseph Arpaio is the Maricopa County Sheriff, whose duties under A.R.S. § 11-441 include taking charge of and keeping the county jail and the prisoners in the county jail.

4. Correctional Health Services (" CHS" ) is an agency of Maricopa County government and is responsible for providing health care services to those incarcerated in the Maricopa County jail system. A.R.S. § 11-291(A).

5. Each facility within the Maricopa County Jail was accredited by the National Commission on Correctional Health Care (" NCCHC" ) on March 12, 2012. NCCHC standards serve as a framework to ensure that systems, policies, and procedures are in keeping with nationally recognized best practices. NCCHC standards include a continuous quality improvement program, which uses a structured process to find areas in the health care delivery system that need improvement and to develop and implement strategies for improvement. A quality improvement study is one of many means through which the Maricopa County Jail can collect data to demonstrate its compliance with constitutional standards.

6. Compliance with NCCHC standards is not equivalent to complying with constitutional standards. Nationally recognized best practices may exceed constitutional standards in some areas and fall short in others.

B. The Maricopa County Jail

7. The average daily population of the Maricopa County Jail is approximately 8,200, which includes both pretrial detainees and sentenced inmates. Pretrial detainees comprise the majority of the population.

8. This action applies only to pretrial detainees housed in the Maricopa County Jail. Although some inmates housed in the Maricopa County Jail are not pretrial detainees, most of the Jail's conditions, policies, procedures, and practices do not distinguish between pretrial detainees and sentenced inmates. Therefore, the term " inmates" used here includes both pretrial detainees and sentenced inmates, but any determination of constitutional violation applies only to pretrial detainees.

9. Approximately 250 to 300 arrestees are processed through the 4th Avenue intake center each day. Many have been arrested and brought to the Maricopa County Jail previously.

10. The length of time that a pretrial detainee stays at the Maricopa County Jail ranges from less than 24 hours to more than a year. The length of stay for most

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pretrial detainees is relatively short. Approximately 40% of inmates are released within 24 hours of booking, 50% within 2 days of booking, 65% within 7 days of booking, and 75% within 14 days of booking.

11. Housing placements are based on gender, security level classification, and medical and mental health needs. Female pretrial detainees are housed either at the Estrella jail or in the Mental Health Unit at the Lower Buckeye jail.

12. Maricopa County Sheriff's Office (" MCSO" ) personnel assign each pretrial detainee a security level classification based on certain factors, such as current offender status, arrest and conviction history, and institutional behavior. A pretrial detainee may be classified as requiring segregation for his own protection, for the protection of others, and/or as a disciplinary sanction. Classification determines the extent to which the pretrial detainee will be permitted contact with others and the number of hours per day the pretrial detainee will be permitted outside of his cell for recreation, showers, and other activities. Inmates classified as close custody are further classified into four levels based on whether they are permitted out of their cells for one, two, three, or four hours a day. MCSO staff assigns each pretrial detainee a security level classification at booking, but it may modify the classification at any time. MCSO policy does not require consultation with CHS staff regarding classification.

13. The Maricopa County Jail has medical facilities at the 4th Avenue, Lower Buckeye, Towers, Estrella, and Durango jail facilities. Each facility has private medical/mental health treatment rooms. Each facility has identified space for group therapy sessions and programs.

14. The Jail's central intake center is located within the 4th Avenue jail and includes holding cells for general population inmates; isolation cells for those who need to be isolated for their own protection, the protection of others, or medical reasons; and safe cells for those deemed to be suicidal or homicidal. It has its own medical and mental health care personnel and areas for these personnel to assess pretrial detainees confidentially.

15. The 4th Avenue jail has a central medical clinic located in the basement and smaller clinics on the second, third, and fourth floors. The smaller clinics each have three examination rooms and two offices. The central clinic includes a medication room, three examination rooms, four offices, an x-ray area, a laboratory, a medical records room, and a dental office. The central clinic provides medications administration, sick call, chronic care clinics, outpatient psychiatric care, dental care, and radiology services.

16. The Lower Buckeye jail has medical, mental health, and dental facilities, which include a 60-bed infirmary, a 260-bed Mental Health Unit (" MHU" ), an outpatient clinic, and the health services administration office. The outpatient clinic has seven offices, a two-chair dental office, a medical records room, two medication rooms, a specimen processing area, and four examination rooms.

17. The Towers, Estrella, and Durango jails also have outpatient clinics. The Towers jail has an office, a medication room, a specimen processing area, two medical examination rooms, and a mental health interview room. The Estrella jail has an office, a dental office, a medical records room, a medication room, a specimen processing area, and four examination rooms. The Durango jail has two offices, a medical records area, a medication room, a specimen processing area, and three examination rooms.

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18. Only physicians, physician assistants, and nurse practitioners are considered medical providers.

19. Only psychiatrists, psychiatric nurse practitioners, or physician assistants are ...


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