Parsons v. Ryan

          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 ...