United States District Court, D. Arizona
ORDER
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT
JUDGE
Defendants
have moved for relief from two of the Court's earlier
Orders under Federal Rule of Civil Procedure 60(b)(6) and to
stay several other Orders. (Docs. 2931, 2932, 2971). The
Court will deny these motions. The Court will also grant the
pending motion to set a status hearing (Doc. 2999) and set a
hearing for December 6, 2018, at 1:30 p.m.
BACKGROUND
A.
The Stipulation
In
October 2014, after two-and-a-half years of litigation, the
parties signed a Stipulation to settle this matter and
jointly moved to refer the remainder of this case to Judge
Duncan. (Docs. 1185, 1186). After receiving nearly 250
comments from class members, Judge Duncan conducted a Federal
Rule of Civil Procedure 23(e) Fairness Hearing in February
2015 and granted the parties' Motion to Approve
Stipulation. (Docs. 1208-1463).
Under
the Stipulation, Defendants agreed to improve the healthcare
provided to inmates. In particular, Defendants agreed that
over the course of three years, they would reach a minimum
level of compliance regarding 103 healthcare performance
measures (PMs) based on national standards for correctional
healthcare. Defendants were required to meet or exceed a 75%
compliance score during the first year, 80% during the second
year, and 85% thereafter. Defendants further agreed to
monitor and report on their progress. The Arizona Department
of Corrections' pre-existing Monitoring Bureau was tasked
with monitoring Defendants' efforts on each PM. Because
the Stipulation only contained high-level definitions for
each PM, the Monitoring Bureau drafted a “Monitoring
Guide” for its employees to use.
As set
out in the Monitoring Guide, every month, for each PM, the
Monitoring Bureau reviews a certain number of healthcare
records and, applying the standards applicable to that PM,
determines whether each record is compliant. As of February
2017, if 85% or more of the records reviewed are compliant
with the criteria in the Monitoring Guide, ADC is compliant
with that PM for that prison for that month. After ADC
generates a compliance number, it engages in an informal
rebuttal process with its private contractor, Corizon Health,
Inc. (Corizon). During that informal process, Corizon has the
opportunity to offer additional information or context to
explain why a particular PM is actually compliant. At the
conclusion of that rebuttal process, ADC enters the
compliance information into a spreadsheet called the CGAR
report. This CGAR report, generated by the Monitoring Bureau,
determines whether each prison facility is complying with the
Stipulation's PMs.
B.
Efforts to Compel Compliance with the Stipulation
In
February 2016-approximately one year after the Court approved
the parties' stipulation-Plaintiffs filed a motion to
compel, seeking production of information they believed
necessary to assess Defendants' compliance with the
Stipulation. (Doc. 1506). In April 2016, Plaintiffs filed
their first Motion to Enforce the Stipulation involving PMs
related to chronic care treatment, inpatient care in prison
infirmaries, medication administration, diagnostic testing,
access to mental health care, monitoring of psychotropic
medications, access to non-medication treatment, inadequate
suicide prevention, and monitoring confinement in isolation
for the mentally ill. (Docs. 1506, 1576). That filing
resulted in the Court spending a tremendous amount of time
trying to ascertain why Defendants were unable to comply with
the obligations they accepted under the Stipulation. The
Court held status conferences in April 2016 and again in May,
June, August, September, October, November, and December.
(Docs. 1549, 1559, 1582, 1619, 1645, 1678, 1708, 1780, 1831).
These conferences covered Defendants' remediation plans
for non-compliant PMs, Plaintiffs' access to
Defendants' new electronic medical records system, and
interpretations of key terms in the Stipulation. In the
latter half of 2016, the Court also conducted telephonic
hearings on discovery disputes, scheduled a prison tour, and
addressed allegations of retaliation during the prison tour.
(Docs. 1666, 1723, 1734).
In late
2016, the parties began presenting disputes for the Court to
resolve about how to interpret the data and to assess
compliance, including disputes about how to evaluate timing,
e.g., whether something done within 30 days means it is done
within one month; how to assess compliance when care needs to
be provided within a specified number of days; and whether a
prisoner is “seen” by a mental health care
provider in a group setting or in their cell. (Doc. 1673).
The Court also rejected Defendants' use of partial credit
to assess compliance and held that if one part of a
prisoner's file is deficient, it cannot be counted as
compliant. (Doc. 1831).
In
2017, the Court continued to conduct monthly status hearings,
emergent telephonic hearings, and evidentiary hearings.
(Docs. 1895, 1933, 1964, 2029, 2061, 2124, 2185, 2186, 2205,
2233, 2236, 2245, 2249, 2285, 2313, 2317, 2330, 2403, 2437,
2456, 2474, 2526). The frequent of hearings continued in
2018. (Docs. 2560, 2559, 2586, 2601, 2658, 2659, 2686, 2700,
2720, 2735, 2757, 2764, 2816, 2843, 2844, 2850, 2854, 2860,
2879, 2880, 2882). The Court also sought clarification about
the methodologies used to assess compliance and, therefore,
held an evidentiary hearing beginning in March 2017 on how
data is collected. (Docs. 1964, 1980, 1996).
Throughout
this time, the motion practice continued apace with the
hearings. (Docs. 1583, 1673, 1709, 1727, 1745, 1754, 1762,
1833, 1862, 1907, 1910, 1917, 1918, 1951, 2030, 2117, 2118,
2119, 2147, 2179, 2225, 2235, 2353, 2382, 2483, 2504, 2551,
2604, 2620, 2644, 2789, 2791, 2810, 2833, 2856). In April
2017, the Court informed the parties that it was considering
the appointment of a Special Master under Federal Rule of
Civil Procedure 53. (Doc. 2029). The Court contemplated that
an expert would serve in multiple capacities to oversee the
monitoring program and to provide guidance to the Court on
what remedial measures would be most effective. Plaintiffs
argued that the Court should instead appoint an expert under
Federal Rule of Evidence 706. (Docs. 2043, 2083). Defendants
argued that such an appointment would violate the Stipulation
and that “there is no question that this Court is best
suited to oversee the monitoring and enforcement of the
Stipulation.” (Doc. 2067 at 4:8-9). The Court ordered
the parties to meet-and-confer about possible experts for
appointment under Rule 706 and then submit names for the
Court's consideration.
At the
conclusion of this process, the Court appointed Mr. Millar of
The Advisory Group as an expert in October 2017. (Docs. 2133,
2236, 2249, 2437, 2483). The Court recognized that the
failure to meaningfully comply with the Stipulation was
ultimately a matter of staffing, but the Stipulation
precluded the Court from ordering that Defendants hire
additional staff. Thus, the Court directed Mr. Millar to
identify where Defendants failed to meet their own
established staffing levels and to identify the underlying
cause of that failure. Mr. Millar submitted his final report
in June 2018. (Doc. 2880). The Court thereafter ordered
Defendants to “file their plan to implement the
recommendations contained in the final Advisory Group
report.” (Doc. 2904). Defendants submitted a plan and
Plaintiffs have challenged that plan as insufficient. (Doc.
2948).
C.
Contempt Proceedings Due to Pervasive Noncompliance with the
Stipulation ...