A landmark Arizona prison health care case has reached a potential turning point.
Five years after a settlement was reached in the class-action lawsuit Parsons v. Ryan, lawyers at the American Civil Liberties Union and the Prison Law Office, representing 30,000-plus plaintiffs who are incarcerated in Arizona state prisons, are asking a federal judge to go to trial.
Attorneys for the state Department of Corrections are asking to renegotiate the years-old settlement, which spelled out how the Department of Corrections was supposed to measurably improve its woefully inadequate medical care to inmates.
Lawyers for both sides filed their requests on November 4 in Arizona U.S. District Court, after Judge Roslyn Silver ordered them on October 11 to select one of three options for proceeding with the case: opt to continue with the current settlement, negotiate a new one, or go to trial.
There was no clear timeline for the judge's decision.
Silver's order followed what she called Arizona's "continued non-compliance" with a 2014 stipulation from the settlement requiring the Department of Corrections to reach at least 85 percent compliance with roughly 100 healthcare performance measures.
Five years later, that method to fix a broken prison health care system, one long plagued by preventable deaths, illnesses, and injuries, has clearly broken down — if it ever worked at all.
“Now, approaching the five-year anniversary of the stipulation’s acceptance, Defendants are in violation of that agreement,” Judge Silver wrote in October. “And crucially, the failing performance measures relate to the core aspects of health care delivery: provision of medication, access to specialty care, and ensuring adherence to outside providers’ recommendations.”
Lawyers for the plaintiffs wrote in their November 4 filing that they would be still be willing to negotiate a new settlement “pending trial under certain conditions,” including an independent and neutral monitor for any subsequent agreement, an enforceable judgment, and a limited negotiated period.
Corene Kendrick, a staff attorney with the Prison Law Office who is co-counsel on the case, explained that they felt the pressure of a trial was necessary.
“Given the history of the case, we felt like, basically, we need a trial date out there to force [the Department of Corrections] to negotiate in good faith,” Kendrick told Phoenix New Times. “For the past five years, as Judge Silver has pointed out, [the department] and their attorneys have spent all of their time and taxpayer dollars arguing that the settlement is not enforceable."
In a declaration that Kendrick filed on Monday, she included specific cases of plaintiffs who were still failing to receive adequate medical care, including for mental health. They detailed suicides and attempts, severe delays in allowing patients with serious symptoms to see doctors, and in some cases, the denial of sufficient medical care. Apathy, too, appeared rife.
One man died by suicide two days after a prison doctor declared, “He seems to be at low risk for self-harm … No need for urgent [mental health] intervention.” Another woman, a few days after being told she could not see a psychiatric associate, hung herself, according to records filed with the court.
Another man, who used a colostomy bag, reported being given a bag that was the wrong, so that it would fall off. When Kendrick alerted Wendy Orm, the regional medical director for Centurion, the private prison health care company with which the department contracts, Orm replied, “I can’t do anything about that right now.”
In her October 11 order, Judge Silver noted that when the court has tried to levy fines on the department to force it to comply with the performance measures, the state fought it fiercely, arguing that the court didn’t have the power to impose these sanctions.
“Defendants have never identified another realistic enforcement mechanism the Court should invoke,” she wrote. “It is foolish to believe the parties meant for the Court to have no enforcement mechanisms.”
She cited a report compiled October 2 by a court-appointed expert, Dr. Marc Stern, which she said “describes in detail how Defendants’ behavior creates a significant risk of serious harm to prisoners’ health.”
Judge Silver has yet to decide on whether to impose a $1.2 million fine on the department for failing to comply with performance measures.
In their request for new settlement negotiations, private attorneys for the corrections department argued that Stern’s report showed that the number of healthcare performance measures should be lowered, a reduction that could be accomplished through negotiations.
“That would allow resources and efforts to target and cure those performance measures that remain non-compliant,” these attorneys — Daniel Struck, Rachel Love, Timothy Bojanowski, and Nicholas Aceda — wrote in their November 4 filing.
If the plaintiffs refused to renegotiate, they added, then the court “should pursue continued enforcement of the Stipulation.”
The lawyers' claim follows Silver’s note from October that the defendants fought the imposition of fines as a method of enforcement, while never identifying an alternative.
Attorneys for the Department of Corrections were not able to respond by deadline to questions from New Times.
Ducey recently appointed a new director for the department, David Shinn, who took over in mid-October. (Former director Chuck Ryan abruptly retired in early August.)
On Thursday, in an interview with ABC15 (KNXV-TV), Shinn responded to a question about Parsons v. Ryan by saying, “I think that some of this has been largely dramaticized.”
He told ABC15 that “of course” the department had failed, and that it would “absolutely do better,” before adding that he believed it was important to focus on “meaningful” things rather than “things that other people have made up.”
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In response to detailed questions from New Times regarding Parsons v. Ryan and Shinn's comments, Ducey spokesperson Pat Ptak issued the following statement: "We support the director. He shares our commitment to ensure that every inmate receives quality healthcare. We cannot comment on pending litigation beyond that."
In a statement sent after deadline, the Department of Corrections said that the health of inmates in its care was "a priority."
"The state has an obligation to provide inmates the constitutionally-mandated health care they are entitled," department spokesperson Andrew Wilder wrote. "We remain committed to improving inmate health care and listening — not just to inmates and staff, but family members and community partners."
This story has been updated with a statement from the Arizona Department of Corrections.