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Graves v. Penzone

United States District Court, D. Arizona

March 1, 2017

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.
Paul Penzone, Sheriff of Maricopa County; Bill Gates, Steve Gallardo, Denny Barney, Steve Chucri, and Clint L. Hickman, Maricopa County Supervisors, Defendants.

          ORDER

          Neil V. Wake Senior United States District Judge

         TABLE OF CONTENTS

         I. Prison Litigation Reform Act ...................................................................................... 1

         II. Background ................................................................................................................. 2

         III. Plaintiffs' Motion for Evidentiary Hearing (Doc. 2380) .......................................... 14

         IV. Plaintiffs' Motion to Enforce the Revised Fourth Amended Judgment (Doc. 2373) 16 A. 2014 Findings, Conclusions, and Orders ............................................................. 19

         B. 2015 Evidence ..................................................................................................... 27

         V. Compliance with the Revised Fourth Amended Judgment ....................................... 34

         A. Subparagraph 5(a)(1): A registered nurse will perform the receiving screening for each pretrial detainee processed in the 4th Avenue jail intake center. . ......... 36

         B. Subparagraph 5(a)(2): If the receiving screening indicates a pretrial detainee is suffering from a serious acute or chronic health condition, a physician, physician assistant, or nurse practitioner will conduct a face-to-face examination of the pretrial detainee within 24 hours after the receiving screening. . ............................................................................................................ 36

         C. Subparagraph 5(a)(3): If the receiving screening indicates a pretrial detainee has symptoms of tuberculosis, the pretrial detainee immediately will be placed in an Airborne Infection Isolation Room and evaluated promptly for tuberculosis. . ........................................................................................................ 37

         D. Subparagraph 5(a)(4): If the receiving screening indicates a pretrial detainee is known to have HIV infection or is at risk for HIV infection with unknown status, a chest x-ray of the pretrial detainee will be performed and the results reviewed by a physician, physician assistant, or nurse practitioner before the pretrial detainee is placed in a housing unit. . ...................................................... 38

         E. Subparagraph 5(a)(5): If a pretrial detainee has a positive mental health screening or does not respond to all of the mental health screening questions, the detainee will be assessed by mental health staff while the pretrial detainee is in the intake center. The mental health staff will identify the urgency with which the pretrial detainee must be seen by a mental health provider, i.e., a psychiatrist, psychiatric nurse practitioner, or physician assistant ...................... 39

         F. Subparagraph 5(a)(6): If the receiving screening indicates a pretrial detainee is at risk for suicide, a psychiatrist, psychiatric nurse practitioner, or physician assistant will conduct a face-to-face assessment of the pretrial detainee within 24 hours after the receiving screening ................................................................. 40

         G. Subparagraph 5(a)(7): Pretrial detainees will be tested for tuberculosis within 14 days after the receiving screening unless they have been tested with negative results within the past year .................................................................... 41

         H. Subparagraph 5(a)(8): Pretrial detainees with serious acute and chronic medical conditions will be evaluated face-to-face by a medical provider and will receive an initial health assessment within 24 hours after the receiving screening. . ............................................................................................................ 42

         I. Subparagraph 5(a)(9): A medical provider will develop plans for treatment and monitoring for pretrial detainees with serious medical conditions. . ............ 43

         J. Subparagraph 5(a)(10): All medical Health Needs Requests will be triaged within 24 hours of their submission. . .................................................................. 44

         K. Subparagraph 5(a)(11): Each pretrial detainee who submits a medical Health Needs Request stating or indicating a clinical symptom will be seen by a nurse within 48 hours of submitting the Health Needs Request. . ................................. 44

         L. Subparagraph 5(a)(12): When a physician, physician assistant, or nurse practitioner orders a lab test or radiological study, the physician, physician assistant, or nurse practitioner will identify the urgency with which the test or study must be performed, e.g., within 24 hours, 72 hours, or 7-10 days, and the urgency with which the results of the test or study must be returned. The test or study will be performed within the timeframe ordered by a physician, physician assistant, or nurse practitioner ............................................................. 45

         M. Subparagraph 5(a)(13): Pretrial detainees identified during the receiving screening as being at risk of serious harm from alcohol or drug withdrawal will be assessed by a registered nurse twice a day for at least seven days regardless of whether they are assigned to a housing unit designated for withdrawing inmates or their classification status. The nurse will document each assessment and identify the urgency with which the pretrial detainee should be seen by a physician, physician assistant, or nurse practitioner. If a pretrial detainee is not seen face-to-face by a physician, physician assistant, or nurse practitioner within the timeframe recommended by the nurse, the reason will be documented in the pretrial detainee's medical record. . .................................. 46

         N. Subparagraph 5(a)(14): All mental health Health Needs Requests stating or indicating a clinical symptom will be triaged face-to-face within 48 hours of their submission. . ................................................................................................. 46

         O. Subparagraph 5(a)(15): Upon referral by detention, intake, medical, or mental health staff, pretrial detainees who display active symptoms of mental illness or otherwise demonstrate an emergent mental health need will be seen face-to-face by a mental health provider within 24 hours of the referral. . ...................... 47

         P. Subparagraph 5(a)(16): Mental health providers will assess pretrial detainees in an area outside of their cells that affords sound privacy except when there are legitimate safety, security, and treatment reasons for not doing so. . ............ 49

         Q. Subparagraph 5(a)(17): Defendants will adopt and implement written criteria for placing pretrial detainees in each level of mental health care, including subunits within the Mental Health Unit. . ............................................................ 51

         R. Subparagraph 5(a)(18): A mental health provider will determine the placement of each seriously mentally ill pretrial detainee after performing a face-to-face assessment, including upon admission into, transfer within, and discharge from the Mental Health Unit. . ...................................................................................... 52

         S. Subparagraph 5(a)(19): Pretrial detainees discharged from the Mental Health Unit will be assessed by mental health staff within 48 hours after discharge ..... 54

         T. Subparagraph 5(a)(20): MCSO will consult with CHS mental health staff before placing a seriously mentally ill pretrial detainee in any type of segregated confinement. . ..................................................................................... 54

          U.Subparagraph 5(a)(21): Seriously mentally ill pretrial detainees who are confined to single cells for 22 or more hours a day will have face-to-face communication with mental health staff at least twice per week. . ...................... 55

         V. Subparagraph 5(a)(22): A mental health provider or professional will be consulted before each planned use of force or involuntary treatment on a seriously mentally ill pretrial detainee. . .............................................................. 56

         Subparagraph 5(a)(23): Mental health staff will be involved in the implementation of any planned use of force or involuntary treatment on a seriously mentally ill pretrial detainee. . .............................................................. 56

         W. Subparagraph 5(a)(24): Defendants will adopt and implement a written policy regarding the use of discipline for behavior resulting from serious mental illness. . ................................................................................................................. 58

         Subparagraph 5(a)(25): Defendants will adopt and implement a written policy regarding the use of isolation in a disciplinary segregation unit as a sanction against seriously mentally ill pretrial detainees. . ................................................ 58

          Subparagraph 5(a)(26): Defendants will adopt and implement a written policy requiring that mental health staff be consulted regarding discipline of any seriously mentally ill pretrial detainee. . .............................................................. 58

         X. Subparagraph 5(a)(27): A potentially suicidal pretrial detainee will not be placed in isolation without constant supervision ................................................. 58

         Y. Subparagraph 5(a)(28): A potentially suicidal pretrial detainee will be placed into a suicide-resistant cell or safe cell only with “direct, continuous observation until a treatment plan is determined by medical staff.” ................... 59

         Z. Subparagraph 5(a)(29): When a pretrial detainee is discharged from suicide watch or a safe cell, the pretrial detainee will be assessed by mental health staff within 24 hours of discharge. . ............................................................................. 59

         AA. Subparagraph 5(a)(30): Defendants will document in pretrial detainees' health records evidence of timely administration of prescription medications or reasonably diligent efforts to administer all medications prescribed and explanation for any delay. . .................................................................................. 60

         BB. Subparagraph 5(a)(31): A pretrial detainee's psychotropic medications will not be prescribed, altered, renewed, or discontinued without a face-to-face examination by a psychiatrist, psychiatric physician assistant, or psychiatric nurse practitioner in an area that affords sound privacy. . ................................... 61

         Before the Court are the following:

         (1) Defendants' Report of Data Collected and Summarized (Doc. 2333) regarding Defendants' compliance with Paragraph 5 of the Revised Fourth Amended Judgment, Defendants' supplemental report (Doc. 2336), Plaintiffs' response (Doc. 2372), and Defendants' reply (Doc. 2378);

         (2) Plaintiffs' Motion to Enforce Fourth Amended Judgment and for Additional Relief (Doc. 2373), Defendants' response (Doc. 2376) and Plaintiffs' reply (Doc. 2379); and

         (3) Plaintiffs' Motion for Evidentiary Hearing (Doc. 2380), Defendants' response (Doc. 2384), and Plaintiffs' reply (Doc. 2389).

         Collectively, Defendants' compliance reports and Plaintiffs' motions dispute whether the Revised Fourth Amended Judgment should be terminated, whether additional prospective relief under the Prison Litigation Reform Act is required, and whether another evidentiary hearing is required to decide those issues. On February 15, 2017, oral argument was heard regarding the pending motions and Defendants' proof of compliance with the Revised Fourth Amended Judgment.

         I. PRISON LITIGATION REFORM ACT

         Congress enacted the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626 and 42 U.S.C. § 1997, to prevent federal courts from micromanaging prisons by consent decrees. Gilmore v. California, 220 F.3d 987, 996 (9th Cir. 2000). 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.

         A party seeking to terminate prospective relief under § 3626(b) bears the burden of proof. Gilmore, 220 F.3d at 1007; Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam). “Prospective 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).

         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.

         II. BACKGROUND

         The issues presented for decision can be fully understood only in the context of this case's lengthy history, particularly the past eight years during which all parties have made substantial efforts to improve jail conditions with significant court involvement. See David Marcus, Finding the Civil Trial's Democratic Future After Its Demise, 15 Nev. L.J. 1523, 1530-46 (2015). 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. 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, upon stipulation of the parties, the 1981 consent decree was superseded by the Amended Judgment. The stipulated Amended Judgment expressly did not represent a judicial determination of any constitutionally mandated standards applicable to the Maricopa County Jail. The 116-paragraph Amended Judgment included specific requirements regarding population and housing limitations; dayroom access; access to reading materials; access to religious services; mail; telephone privileges; clothes and towels; sanitation, safety, hygiene, and toilet facilities; access to law library; medical, dental and psychiatric care; intake areas; mechanical restraints and segregation; recreation time outside; inmate classification; visitation; food; staff members, training, and screening; facilities for the handicapped; disciplinary policy and procedures; inmate grievance policy and procedures; reports and record keeping; and security override. The Amended Judgment included the following provisions:

56. 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.
57. All pretrial detainees confined in the jails shall have access to medical services and facilities which conform to the standards designated as “essential” by the National Commission on Correctional Health Care (“NCCHC”) Standards for Health Services in Jails, as amended from time to time. 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.
61. Defendants shall ensure that the pretrial detainees' prescription medications are provided without interruption where medically prescribed by correctional medical staff.

(Doc. 705 at 12-13.)

         In November 2003, Defendants renewed a prior motion to terminate the Amended Judgment, an evidentiary hearing was initiated, and the parties engaged in further discovery, but the motion was not decided. On April 3, 2008, the case was assigned to the undersigned judge. On April 25, 2008, Defendants' motion to terminate the Amended Judgment was set for evidentiary hearing commencing August 12, 2008.

         Although evidence of “current and ongoing” violations usually must reflect conditions as of the time termination is sought, Defendants had been seeking termination for nearly five years. Therefore, it was necessary to determine the period for which evidence would be considered relevant to current conditions. The Court initially ordered the parties to plan for discovery and trial regarding jail conditions during the period of July 1, 2007, through June 30, 2008. Subsequently, upon request of the parties, the relevant evidentiary period for evaluating current conditions was reduced to July 1, 2007, through May 31, 2008, to facilitate providing information to expert witnesses before their tours and inspections of jail facilities.

         In August and September 2008, a thirteen-day evidentiary hearing was held to decide whether prospective relief in the Amended Judgment should be continued, modified, or terminated. On October 22, 2008, the Court made detailed findings of fact and conclusions of law and entered the Second Amended Judgment. 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. Other provisions were modified or vacated based on the evidence presented. The provisions remaining in effect, as originally written or as modified, were restated in the Second Amended Judgment.

         The sixteen-paragraph Second Amended Judgment included requirements for the number of detainees per cell, court holding cell capacities, maximum housing temperature for detainees who take prescribed psychotropic medications, provision of cleaning supplies, toilet and wash basin facilities in intake areas and court holding cells, length of stay in intake areas, outdoor recreation, nutrition, recordkeeping, and visual observation of intake areas, court holding cells, the Lower Buckeye jail psychiatric unit, and segregation units. Paragraph 6 of the Second Amended Judgment continued Paragraph 56 of the Amended Judgment, regarding receiving screenings, without modification. Paragraph 8 of the Second Amended Judgment continued Paragraph 61 of the Amended Judgment, regarding continuity of prescription medications, without modification.

         With respect to Paragraph 57 of the Amended Judgment, regarding access to medical services and facilities, the Court found that “pretrial detainees have a constitutional right to access to adequate health care, but there is no constitutional requirement that the adequacy of health care be defined by the NCCHC.” (Doc. 1634 at 43, ¶ 180.) The Court further found:

182. Paragraph 57 of the Amended Judgment does not exceed the constitutional minimum to the extent it requires Defendants to ensure pretrial detainees' ready access to care to meet their serious medical, dental, and mental health needs, which means that in a timely manner, a pretrial detainee can be seen by a clinician, receive a professional clinical judgment, and receive care that is ordered.
211. Some of the seriously mentally ill pretrial detainees are housed in the psychiatric unit at the Lower Buckeye jail, and the most seriously mentally ill of those are housed in cells that do not permit psychiatrists and pretrial detainees to have visual contact while communicating or to have private therapeutic communications. Mental health staff frequently provide cell-side treatment without privacy in other housing units as well. In some cases, this detriment to therapeutic treatment is necessary to preserve the safety and security of staff and pretrial detainees; in some cases, it is not.
212. Many of the pretrial detainees housed at the Lower Buckeye jail psychiatric unit need hospital level psychiatric care.
213. The psychiatric unit at the Lower Buckeye jail does not provide hospital level psychiatric care.
214. Many of the pretrial detainees housed at the Lower Buckeye jail psychiatric unit are maintained in segregation lockdown with little or no meaningful therapeutic treatment, which results in needless suffering and deterioration.
216. Regarding paragraph 57 of the Amended Judgment, Defendants do not ensure that pretrial detainees receive access to adequate medical and mental health care because Correctional Health Services does not provide timely in-person assessment of the urgency of their need for treatment, is not able to readily retrieve information from pretrial detainees' medical and mental health records and housing records, and does not identify and appropriately treat many pretrial detainees with serious mental illness.

(Id. at 43, 46-47.) Therefore, Paragraph 57 of the Amended Judgment was renumbered as Paragraph 7 of the Second Amended Judgment and modified to state:

7. 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.

(Doc. 1635 at 2-3.)

         In addition to making detailed findings and entering the Second Amended Judgment on October 22, 2008, the Court ordered the parties to confer immediately regarding prompt compliance and to submit status reports. A status conference was held on December 5, 2008. On January 9, 2009, a hearing was held regarding Defendants' progress toward compliance with the nonmedical portions of the Second Amended Judgment. On January 28, 2009, upon stipulation of the parties, the Court appointed a medical expert and a mental health expert to serve as independent evaluators of Defendants' compliance with the medical and mental health provisions of the Second Amended Judgment. In June 2009, the Court began receiving quarterly reports from the experts. By April 2010, the Court concluded that “significant areas of failure to comply with the Second Amended Judgment's medical and mental health requirements remain” and ordered the parties to jointly “develop a proposed procedure for achieving and demonstrating Defendants' complete compliance with the Second Amended Judgment.” (Doc. 1880 at 3-4.) In the April 7, 2010 Order, the Court stated: “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.” (Id. at 4.)

         On July 30, 2010, the parties 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. 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 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.

         In January 2011, the parties reported Defendants' disagreement with two of the independent evaluators' recommendations, but in June 2011 the parties jointly reported that an evidentiary hearing regarding medical and mental health remedies was no longer necessary. On June 7, 2011, Defendants filed a motion to terminate the nonmedical provisions of the Second Amended Judgment. An evidentiary hearing on the motion was set, and the parties conducted extensive discovery. However, on October 12, 2011, the parties stipulated that certain nonmedical provisions should be terminated and others should remain in effect without an evidentiary hearing. The stipulation stated that Defendants would renew the motion to terminate the remaining nonmedical provisions after April 1, 2012, and that Plaintiffs would not contest the renewed motion if Defendants successfully accomplished certain goals for the period November 1, 2011, through March 1, 2012.

         On April 24, 2012, Defendants moved to terminate the remaining nonmedical provisions of the Second Amended Judgment, and Plaintiffs did not oppose the motion. On May 24, 2012, Defendants' motion was granted, and those provisions of the Second Amended Judgment that remained in effect were restated in the Third Amended Judgment. The remaining substantive provisions were:

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.

(Doc. 2094.) Thus, the Third Amended Judgment of 2012 essentially consisted only of Paragraphs 56, 57, and 61 of the Amended Judgment of 1995.

         In October 2012, the independent evaluators visited the jails, conducted interviews, and reviewed medical records. In January 2013, the evaluators reported that Defendants had made significant progress toward compliance with the Third Amended Judgment, and the evaluators provided specific recommendations for achieving substantial compliance. In June 2013, Defendants filed a status report describing their efforts to address the evaluators' concerns and identified certain recommendations with which they disagreed. In response, Plaintiffs identified recommendations for which Defendants had not shown evidence of compliance and also challenged the accuracy of some of Defendants' assertions about their compliance with the evaluators' recommendations.

         On August 9, 2013, Defendants moved to terminate the Third Amended Judgment. The Court ordered that for evidence to be relevant to the motion, it must tend to show whether any current and ongoing constitutional violation existed on August 9, 2013. In addition to filing briefs and statements of facts with supporting exhibits, the parties presented evidence and argument for six days in February and March 2014.

         On September 30, 2014, the Court made detailed findings of fact and conclusions of law regarding whether and to what extent prospective relief in the Third Amended Judgment should be terminated. In many instances, Defendants demonstrated they had recently adopted or revised policies and procedures designed to correct deficiencies identified by the independent evaluators and/or Plaintiffs, but they were unable to produce evidence that the revised policies and procedures had been fully and consistently implemented or that the identified systemic deficiencies had been corrected. For example, an expanded electronic integrated health screen for the receiving screening at intake was implemented on August 5, 2013, only four days before Defendants filed their motion to terminate. Defendants also developed a new electronic health records system, but it was not fully implemented until September 2013, after the relevant evidentiary period. The Court found:

238. An electronic health records system is not itself constitutionally required, but managing the health records, housing locations, [Health Needs Requests], prescriptions, appointment scheduling, and necessary follow up for thousands of pretrial detainees to ensure ready access to health care and continuity of medications likely would be impossible without one.

(Doc. 2283 at 58.) Because Defendants did not prove compliance with any of the three substantive paragraphs of the Third Amended Judgment, i.e., sufficient screening at intake, ready access to care for serious medical and mental health needs, and continuity of prescription medications, the Court found that the prospective relief ordered in those three paragraphs remained necessary to correct current and ongoing constitutional violations.

         Also on September 30, 2014, after six years of reviewing evidence, expert opinion, and legal argument regarding conditions in the Maricopa County Jail, and after allowing both parties opportunity to propose remedies to correct constitutional deficiencies, the Court ordered remedies that did not exactly track constitutional standards but were practical, concrete measures necessary to correct constitutional violations. Defendants were ordered to, within 60 days, adopt new policies or amend existing policies regarding 31 specific requirements for providing medical and mental health care, implement the policies within 150 days, collect and summarize compliance data for a period of 180 days after implementation of the policies, and report documentation showing completion of each stage. The Court stated, “If Defendants comply with this Order and its deadlines, 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 PLRA permits another motion to terminate.” (Doc. 2283 at 5960.)

         Therefore, Paragraphs 2, 3, and 4 of the Fourth Amended Judgment continue the prospective relief in the Third Amended Judgment, and Paragraph 5 of the Fourth Amended Judgment defines specifically how Defendants will prove their compliance with Paragraphs 2, 3, and 4. Paragraph 5(a) identifies the 31 specific requirements for providing medical and mental health care that are expected to become institutionalized through appropriate policies, staffing, training, and monitoring.

         On October 14, 2014, Plaintiffs moved for reconsideration of five remedial provisions of the Fourth Amended Judgment. On December 10, 2014, the Court granted Plaintiffs' motion in part, amended one of the 31 subparagraphs of Paragraph 5(a) of the Fourth Amended Judgment, and entered the Revised Fourth Amended Judgment.

         In January 2015, the Court clarified that Plaintiffs' counsel were permitted to tour the jail facilities, speak with pretrial detainees and staff, review records on-site, and review copies of records off-site upon reasonable request. It further stated that the Revised Fourth Amended Judgment “requires Defendants to meet a series of deadlines and anticipates that Plaintiffs will promptly bring to the Court's attention any perceived lack of compliance with each requirement.” (Doc. 2309.) On September 14, 2015, the Court further explained Plaintiffs' role:

[T]he time for monitoring Defendants' compliance actions required by the Revised Fourth Amended Judgment began in December 2014 when Defendants filed their newly adopted or revised policies. It continued through the 180-day period when Defendants were required to demonstrate their implementation of those policies. Plaintiffs' counsel has had opportunity to conduct on-site tours and interviews as well as off-site record reviews to confirm that Defendants are in fact doing what they say they are doing. Data collection for 180 days enabled Defendants to monitor implementation, make any needed corrections, and satisfy their burden of proof. Defendants' September 15, 2015 report will be a summary of the compliance data, which Plaintiffs may challenge. But Plaintiffs do not need additional counsel to begin investigation of potential constitutional violations after the report is filed. To be clear, this litigation is now strictly limited to whether Defendants have satisfied the requirements of Paragraph 5 of the Revised Fourth Amended Judgment. Plaintiffs' class counsel has no authority to investigate any potential constitutional violations outside of Paragraph 5.

(Doc. 2331, emphasis added.) Also on September 14, 2015, the Court clarified that Defendants were to collect and summarize data showing the extent of their compliance and to report to the Court only a summary of their evidence showing compliance related to each of the 31 subparagraphs of Paragraph 5(a) of the Revised Fourth Amended Judgment.

         On September 15, 2015, Defendants filed a report of the data they had collected and summarized pursuant to the Revised Fourth Amended Judgment. On September 16, 2015, the Court ordered Defendants to file a supplemental report regarding seven subparagraphs of Paragraph 5(a), explaining why the reported compliance rates should be considered sufficient to establish proof of compliance. On September 25, 2015, Defendants filed a supplemental report. On October 15, 2015, the Court granted Plaintiffs' request that they be permitted to file their response to Defendants' compliance reports by January 15, 2016. The Court further ordered that Plaintiffs' response address only whether Defendants had demonstrated compliance with Paragraph 5 of the Revised Fourth Amended Judgment related to each of the 31 subparagraphs of Paragraph 5(a):

The Revised Fourth Amended Judgment required Defendants to collect and summarize data for a period of 180 days that showed the extent to which Defendants were complying with the Revised Fourth Amended Judgment and to file a report of the data collected and summarized on September 15, 2015. (Doc. 2299.) The Court clarified that Defendants' report should address the 31 subparagraphs of Paragraph 5(a) of the Revised Fourth Amended Judgment, explaining what and how data was collected to determine compliance and what level of compliance was found. (Doc. 2332.) . . . .
Plaintiffs' response to Defendants' compliance reports will be limited to addressing whether Defendants have demonstrated compliance with the 31 subparagraphs of Paragraph 5(a) of the Revised Fourth Amended Judgment. The time has expired for Plaintiffs to object to the policies and procedures adopted or amended to comply with the Revised Fourth Amended Judgment and the actions taken to implement each of the policies (e.g., hiring staff, training, modifying facilities), which Defendants reported December 16, 2014, and March 16, 2015, respectively. Only two issues remain to be decided: (1) whether Defendants' compliance reports accurately portray the extent to which the relevant policies and procedures have been implemented and (2) whether the reported levels of compliance demonstrate that the remedies ordered by the Revised Fourth Amended Judgment have been sufficiently implemented to resolve the systemic deficiencies previously found by the Court. (See Findings of Fact and Conclusions of Law (Doc. 2283).)

(Doc. 2344, emphasis added.) Plaintiffs moved for reconsideration of that order, requesting opportunity for Plaintiffs and their experts to review individual medical records off-site and to conduct a site visit at the jail to review medical records.

         The Court granted Plaintiffs' motion for reconsideration to the extent that Plaintiffs' counsel and their medical experts were permitted to review individual medical records on-site within certain limitations, Defendants were permitted to produce paper copies of some of the requested records, and Plaintiffs' time to respond to Defendants' compliance reports was extended to February 26, 2016. The Court further ordered that Plaintiffs' records review would focus on the accuracy of Defendants' compliance reports and the significance of any lack of compliance. The Court explained:

To clarify, at this stage of the litigation, the question is not whether the remedies ordered have in fact resolved the previously found systemic deficiencies, but whether the remedies have been implemented consistently enough. What is “enough” is context-specific. The Court has already determined that adequate compliance with the specific standards previously stated will meet minimum constitutional standards. The Court will not go behind those determinations in the current proceedings, and Plaintiffs will not be granted discovery to attempt to argue and prove some other measure of constitutional requirements. This case has always been about systemic failures amounting to constitutional violations. Proof of some individual failures does not establish systemic constitutional failures, and discovery regarding mere individual failures is not warranted.
In its September 30, 2014 Findings of Fact and Conclusions of Law, the Court explained that because Defendants had not shown they had resolved certain systemic deficiencies after six years, it was necessary for the Court to craft remedies to correct constitutional violations. (Doc. 2283 at 6.) After giving Plaintiffs and Defendants opportunity to propose and debate specific remedies, the Court ordered “remedies that do not exactly track constitutional standards but that are practical measures necessary to correct constitutional violations.” (Id. at 59.) Each remedy was intentionally written to provide a clear standard by which compliance could be decided even though the Eighth and Fourteenth Amendments do not demand a particular action. Therefore, the Court will evaluate Defendants' compliance with the 31 subparagraphs of Paragraph 5(a) of the Revised Fourth Amended Judgment exactly as they are written.
However, Plaintiffs are not required to accept as true Defendants' assertions about their compliance. They are entitled to examine how data were collected, whether the reported data were relevant to the ordered remedy, and whether the data show sufficient compliance.

(Doc. 2352, emphasis added.)

         After several delays in providing Plaintiffs with copies of requested medical records, Plaintiffs' time to respond to Defendants' compliance reports was extended to April 1, 2016. In addition to filing a response, Plaintiffs also filed a motion requesting the Court to order additional specific relief regarding Paragraph 3 of the Revised Fourth Amended Judgment. Subsequently, Plaintiffs moved for an evidentiary hearing to resolve factual disputes related to Paragraph 5 and their motion to enforce Paragraph 3.

         III. PLAINTIFFS' MOTION FOR EVIDENTIARY HEARING (DOC. 2380)

         Plaintiffs request that the Court set an evidentiary hearing “to resolve factual disputes between the parties as to Defendants' compliance with the general orders and the thirty-one implementing remedies of the [Revised] Fourth Amended Judgment, as well as the existence of current and ongoing constitutional violations in the provision of medical and mental health care at the Jail.” (Id. at 12.) Plaintiffs also request that the Court “order its own mental health expert, Kathryn Burns, M.D., to report to the Court on Defendants' current compliance with the mental health remedies.” (Id.)

         As previously explained, Paragraph 5 of the Revised Fourth Amended Judgment specifies what Defendants must prove to show compliance with the general orders of Paragraphs 2, 3, and 4. After finding that Defendants had not proved that the prospective relief ordered in Paragraphs 2, 3, and 4 of the Third Amended Complaint no longer remained necessary to correct a current and ongoing violation of pretrial detainees' constitutional rights, and after considering remedies proposed by the parties, the Court identified 31 requirements that Defendants must satisfy to prove they had corrected the remaining constitutional deficiencies. To increase the likelihood that Defendants would continue compliance after court monitoring ends, in Paragraph 5 of the Revised Fourth Amended Judgment the Court ordered Defendants to adopt or revise policies regarding the 31 requirements, file the new or revised policies on the public record, and fully implement each of the policies, including hiring additional staff, providing training, and making facility modifications, as needed. The Court ordered Defendants to report actions taken to implement each of the policies and then to collect data showing consistent implementation of those policies for 180 days. Plaintiffs were expected ...


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