United States District Court, D. Arizona
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 to Enforce the Revised Fourth Amended
Judgment (Doc. 2434) and Defendants' Motion to Strike
Plaintiffs' Reply (Doc. 2451) ................ 15
IV.
Plaintiffs' Motion to Re-Open Discovery and for a
Scheduling Order (Doc. 2435)
.......................................................................................................................
18
V.
Compliance with the Revised Fourth Amended Judgment
.................................... 21
A.
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. . ....................................... 22
1.
General Population
...................................................................................
22
2.
Mental Health Unit
...................................................................................
23
B.
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
..................................................................................
24
C.
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. .
......................................................... 26
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. .
......................................................... 26
D.
Subparagraph 5(a)(24): Defendants will adopt and implement a
written policy regarding the use of discipline for behavior
resulting from serious mental illness
..................................................................................................
27
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 ............................... 27
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. ... ............................................ 27
E.
Subparagraph 5(a)(27): A potentially suicidal pretrial
detainee will not be placed in isolation without constant
supervision. . ......................................... 33
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.”
..............................................................................................................
33
F.
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. .
..................................................... 35
Before
the Court are the following:
(1) Defendants' Report Regarding Corrective Actions,
Compliance Data Collection Procedures and Compliance Data
Summaries for April, May, and June 2017 (Doc. 2417),
Defendants' supplemental report (Doc. 2425),
Plaintiffs' response (Doc. 2436), Defendants' reply
(Doc. 2444), and Defendants' second supplemental report
(Doc. 2473);
(2) Plaintiffs' Motion to Enforce Fourth Amended Judgment
and for Additional Relief (Doc. 2434), Defendants'
response (Doc. 2441), Plaintiffs' reply (Doc. 2449),
Defendants' motion to strike Plaintiffs' reply (Doc.
2451), Plaintiffs' response to the motion to strike (Doc.
2452), and Defendants' reply supporting the motion to
strike (Doc. 2454); and
(3) Plaintiffs' Motion to Re-Open Discovery and for a
Scheduling Order (Doc. 2435), Defendants' response (Doc.
2442), and Plaintiffs' reply (Doc. 2447).
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 additional discovery and another
evidentiary hearing is required to decide those issues. On
June 21, 2018, 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
Although
this case's lengthy history has been summarized in
previous orders, for the sake of completeness, much of it is
repeated here because the issues presented for decision can
be fully understood only in context. 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 Jails brought
this class action in 1977 against the Maricopa County Sheriff
and the Maricopa County Board of Supervisors seeking
injunctive relief for 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 Jails. 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.
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. By virtue of 18 U.S.C. § 3626(e), once
that motion was not ruled on within 90 days, the consent
injunction was automatically stayed. Defendants were no
longer required to comply with the consent injunction after
February 12, 2004. On April 3, 2008, the case was reassigned
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.
With
respect to Paragraph 57 of the Amended Judgment, regarding
access to medical services and facilities, the Court 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.
. . . .
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.
(Doc. 1634 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.)
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. 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 Jails, 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
continued the prospective relief in the Third Amended
Judgment, and Paragraph 5 of the Fourth Amended Judgment
defined specifically how Defendants would prove their
compliance with Paragraphs 2, 3, and 4. Paragraph 5(a)
identified the 31 specific requirements for providing medical
and mental health care that were 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. (Doc. 2299.)
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.)
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 ...