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Parsons v. Ryan

United States District Court, D. Arizona

June 22, 2018

Victor Antonio Parsons, et al., Plaintiffs,
Charles L. Ryan, et al., Defendants.


          David K. Duncan United States Magistrate Judge.

         In October 2014, the parties settled this case and signed a Stipulation to end the litigation. The Court approved the settlement and Stipulation after a fairness hearing in February 2015. (Doc. 1185 at 16; Doc. 1455) Under the Stipulation, Defendants agreed to provide health care to the Class Members as measured by 103 Performance Measures. (Doc. 1185)

         In April 2016, after Defendants failed to meet many Performance Measures, Plaintiffs filed their first Motion to Enforce the Stipulation. (Doc. 1555) At the May 2016 Status Conference, the Court ordered Defendants to submit a responsive remediation plan (“First Remediation Plan”). (Docs. 1582, 1583, 1754) The Court thereafter informed Defendants of its concerns about the efficacy of the First Remediation Plan but, in deference to the Stipulation's framework, adopted it nonetheless. (Doc. 1619)

         In November 2016, after three months under the First Remediation Plan, the Court “‘determine[d] that the Defendants' [First Remediation] plan did not remedy the deficiencies' for the First Non-Compliant PMs. (Stipulation at ¶ 36).” (Doc. 1754) Citing to the Stipulation's acknowledgment that “[t]he Court has ‘the power to enforce this Stipulation through all remedies provided by law, '” the Court ordered Defendants “to use the health care services in the community to ensure compliance with the” Performance Measures covered by the First Remediation Plan.” (“Outside Provider Order”) (Doc. 1754) The Court noted that “the current data show that Defendants have not been able to meet the Performance Measures by using their current procedures or by adopting the First Remediation Plan.” (Doc. 1754) The Court further explained that it had “considered and rejected requiring the Defendants to submit a revised plan because of its concerns, expressed earlier on the record, about Defendants' grasp of the problem at hand, the failure, abject in some cases, of its first remediation plan to deliver compliance, and the health and safety danger posed by continued failures to meet the Performance Measures.”

         In May 2017, Defendant Pratt testified that he did not know of any instances of compliance with the Outside Provider Order. (Doc. 2071 at 742:1-4)

         The Court continued to conduct monthly status conferences with the parties. These monthly status conferences were often lengthy and constituted the Court's efforts to understand the impediments to compliance and to prompt Defendants to meet their obligations under the Stipulation. The centerpiece of the status conferences, as with the Stipulation, was (and is) Defendants' compliance with the Stipulation as measured by the CGAR (Code Green Amber Red) results. The CGARs are the monthly report card on Defendants' performance under the Stipulation. For many of the PM/locations, particularly PMs addressing critical components of inmates' healthcare, compliance remained unattainable.

         On June 14, 2017, the Court informed Defendants that, effective immediately, every single failure to comply with certain performance measures at certain prisons (“OSC PMs”) would result in an order to show cause as to why a $1, 000 fine should not be imposed. (Doc. 2124) Based on Plaintiffs' suggestion that Defendants should have time to cure their ongoing failure to comply with the Stipulation, the Court held off until October 2017 to enter its Order “that, effective immediately, Defendants shall comply” with specific performance measures at specified prisons “for every class member” (“OSC Order”). (Doc. 2373 at 3) The October 2017 Order required Defendants to “file a list of every instance of non-compliance with this Order during December 2017” by Friday, January 5, 2018. At the November 2017 Status Hearing, the Court added Performance Measure 52 at Eyman. (Doc. 2456) An order to show cause hearing was set for Tuesday, January 9, 2018. (Doc. 2373 at 4)

         Defendants requested and received several extensions for submitting the list of every instance of non-compliance (the “OSC List”) and for holding the show cause hearing. (Doc. 2456, 2526, 2605, 2620, 2640) As part of these extension requests, Defendants informed the Court-for the first time-that there was no system for collecting real time data on compliance with any performance measure covered by the Stipulation. Defendants submitted a partial OSC List but, without explanation or warning, did not timely comply with the Court's OSC Order for PM 54 at Eyman. (Doc. 2583) Subsequently, Defendants filed multiple revised OSC Lists. (Doc. 2595, 2648, 2662, 2786, 2812)

         The Court heard testimony on March 26, March 27, and April 10, 2018, from the following witnesses: Arizona Department of Corrections Director Charles Ryan, Deputy Director Richard Pratt, Division Director Carson McWilliams, Dr. David Robertson, and William Upton. (Docs. 2689-1 at 5, 2769, 2770, 2724) Mr. Pratt has primary responsibility to ensure compliance with the Stipulation's performance measures. (Doc. 2769 at 48) Mr. McWilliams is in charge of prison operations. (Doc. 2724 at 167) Dr. Robertson works as a physician monitor in ADC's Monitoring Bureau. (Doc. 2671 at 87) Mr. Upton is a member of the Plaintiff class. (Doc. 2671 at 60)

         At the conclusion of testimony, Defendants informed the Court that they were re-reviewing the OSC Lists. (Doc. 2782 at 136-139) The parties agreed that Defendants would provide the persons most knowledgeable about the procedure used to compile the OSC Lists. (Doc. 2782 at 148-149) Because counsel did not timely inform the Court about witness availability, Defendants filed declarations instead. (Docs. 2807 at 92-93; 2808; 2809)


         The Parties' Stipulation empowered the Court to enforce it “through all remedies provided by law” with two exceptions not relevant here. (Doc. 1185 ¶ 36) Thus the Court's remedial power necessarily includes civil contempt proceedings. See 18 U.S.C. § 401(3) (“A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as [. . .] [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.”); Spallone v. United States, 493 U.S. 265, 276 (1990) (“[C]ourts have inherent power to enforce compliance with their lawful orders through civil contempt”) (quotation marks and citation omitted).

         Before finding civil contempt, a court must determine by clear and convincing evidence that: (1) a valid court order exists that is “specific and definite” (Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 465 (9th Cir. 1989)); (2) the party had knowledge of the order, and notice of and an opportunity to be heard about the alleged noncompliance (Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994); United States v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999)); and (3) the party failed to take “all reasonable steps to comply with the order.” Kelly v. Wengler, 822 F.3d 1085, 1096 (9thCir. 2016) (emphasis in original).

         Civil contempt “need not be willful, and there is no good faith exception to the requirement of obedience to a court order.” In Re Dual-Deck Video Cassette Recorder Antitrust Litig. v. Motion Picture Ass'n of Am., 10 F.3d 693, 695 (9th Cir. 1993) (internal quotation marks and citation omitted). Should a party seek to defend against a contempt finding by arguing inability to comply, it must show “categorically and in detail” why it is unable to comply. N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973).


         To show that they had taken all reasonable measures, Defendants presented testimony about their engagement with the State's prisoner health care provider Corizon and their efforts with Performance Measure 35, the only Performance Measure on the OSC List that ADC has not delegated to Corizon.

         ADC's Oversight of Corizon

         Written Demands

         (1) Defendants have chosen to contract with a third-party to provide Plaintiffs with heath care and awarded that contract to Corizon in 2013. (Doc. 2770 at 61-62, Ex. 99, 103)

         (2) Since the OSC Order was issued, ADC sent at least six letters to Corizon about its lack of compliance. (Doc. 2770 at 181-182, 199-201; Exs. 18, 30, 35, 36, 87, 193)

         (3) As a result of the OSC Order, ADC's Monitoring Bureau reclassified one staff position from clerical duties to a liaison position. (Doc. 2770 at 155) In addition, ADC sent several letters to Corizon demanding performance. (Doc. 2770 at 108, 114; Exs. 20, 30, 31, 33, 97)

         (4) In February or March 2018, ADC began requiring Corizon to provide additional details about staffing efforts because “additional staff were required to fill a current gap.” (Doc. 2770 at 112, 208:12-13) Director Ryan testified that he thought Corizon might have flown in additional health care staff but he did not know how many people, what positions, what prison complexes were impacted, when they arrived, how long they stayed, or if they were still here. (Doc. 2769 at 72-73)

         (5) Deputy Director Pratt testified that he believed Corizon did bring in staff to assist in Arizona but he did not know how many people came. (Doc. 2770 at 208-209) Corizon did not provide him with any specifics about flying in additional staff. (Doc. 2769 at 158) Mr. Pratt believes that up to a dozen nurses may have come but he does not know when they arrived and there was no testimony about how long they stayed and no written communication about any staffing increases. (Doc. 2770 at 209-210) Corizon may add five additional monitors but have not yet done so. (Doc. 2770 at 153-154)

         Meetings with Defendant Ryan and Defendant Pratt

         (6) In November 2017, Defendants Ryan and Pratt began to meet every other week with Corizon leadership to discuss performance measures, staffing, and compliance with the OSC Order. (Doc. 2770 at 112, 130, 179; Doc. 2769 at 22, 35, 39) In these meetings, ADC had asked Corizon to increase the use of telemedicine because Corizon did not regularly use telemedicine; however, ADC has not made a written demand to Corizon to do so. (Doc. 2671 at 208; Doc. 2769 at 95, 160-163; Doc. 2770 at 49-51, 23-26; Ex. 160) In these meetings, ADC had also asked Corizon to fill the staff positions that were required by the then-current contract but had not asked Corizon to add more staff. (Doc. 2769 at 95)

         (7) In November 2017, Corizon informed ADC that it was “prepared with detailed analyses of the root causes of non compliance.” (Doc. 33) This analysis consists of flow charts that identify potential fail points for different performance measures. (Doc. 2770 at 113-114, 133, 147-148; 152-153, 223-224; Doc. 2781 at 72-73; Exs. 52-74) There is no evidence that these flow charts address or analyze facility-specific fail points. Further, there is no evidence that these flow charts were based on past performance at Arizona prisons.

         (8) Defendant Ryan had conversations with Corizon's CEO “almost on a weekly basis.” (Doc. 2769 at 35) But not until January 31, 2018, did Defendants Ryan and Pratt have an ad hoc meeting with Corizon leadership and ADC operations staff about the OSC Order issued in October.

         Meetings with Regional and Site Staff

         (9) In November or December 2017, ADC began to conduct daily meetings at each facility to discuss facility-level issues such as inter-facility transportations, missed medical appointments, staffing issues, and nursing lines. (Doc. 2781 at 9-10, 36) These meetings are attended by the warden, facility health administrator, ADC monitor, transportation sergeant, and deputy warden of operations. (Doc. 2781 at 9)

         (10) ADC Wardens are expected to have daily meetings with their prison's health administrator to solve problems. (Doc. 2769 at 44) Corizon conducts monthly meetings at each prison to discuss corrective actions plans. These meetings have been expanded to include ADC Monitoring Bureau staff and ADC's outside counsel. (Doc. 2770 at 84, 113, 133-134) Corizon posted training materials for its field staff but there were no classes for staff. (Doc. 2770 at 138-147; Exs. 41-51)

         (11) ADC regional operations staff meets every other week with the Corizon team to discuss the performance measures in the OSC Order and staffing levels. (Doc. 2770 at 112; Doc. 2769 at 35-36) Specific performance measures are discussed at this meeting. (Doc. 2770 at 129) As a result of the OSC Order, ADC expanded its weekly meeting with Corizon to include more people. (Doc. 2770 at 112, 128, 129)

         Mortality Reviews

         (12) ADC conducts mortality reviews for each inmate who dies in custody. (Doc. 2671 at 95-100) Starting in February or March 2018, an individual from Corizon's Continuous Quality Improvement (“CQI”) team started to call into ADC's mortality reviews. (Doc. 2671 at 131:15-16; Doc. 2770 at 7, 28-29) The ADC Mortality Review team has made recommendations to Corizon's CQI representative and those recommendations have received “a mixed response” and have not generated a solution for expediting specialty consults. (Doc. 2770 at 8:25, 9)

         (13) These mortality reviews consistently show a failure to properly document the medical care provided to inmates and a failure in written and verbal communication among the health care staff. (Doc. 2671 at 137-138) Of the 18 mortality reviews submitted into evidence during the OSC hearing, ADC checked “yes” 6 times to the question: “Could the patient's death have been prevented or delayed by more timely intervention.” (Exs. 30, 35, 36, 37, 40, 47) ADC checked “yes” 8 times to the question: “Is it likely that the patient's death was caused by or affected in a negative manner by health care personnel.” (Exs. 30, 33, 35, 36, 37, 40, 46, 47)

         Escalation List

         (14) In the summer of 2017, Dr. Robertson was speaking to Dr. FallHowe, Corizon's Western Regional Director, almost daily about obtaining specialty care for specific patients because their consults were languishing and prisoners were not being seen on a timely basis. (Doc. 2671 at 146-147) Dr. Robertson felt “that Utilization Management was being arbitrary.” (Doc. 2671 at 147:15-16) Subsequently, Dr. FallHowe “and her team decided to have meetings on every one of the[] cancer patients in the Tucson complex.” (Doc. 2671 at 147:16-18)

         (15) By August 2017, Tucson's Assistant Facility Health Administrator had started circulating a weekly email update to ADC and Corizon staff about high acuity inmates at Tucson with cancer. (Doc. 2671 at 143-144, 148; Ex. 84) These emails were “to make sure the patients that were high acuity that needed care got the care.” (Doc. 2671 at 143:21-22) There was a regular meeting about the patients on this email list. (Doc. 2671 at 143-144) There is no evidence ...

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