Arizona Appeals Federal Order to Take Over Prison Health Care After 14 Year Lawsuit

The Arizona Department of Corrections appealed a federal judges order placing prison health care under outside control, escalating a legal battle over medical and mental health services in state prisons.

ADCRR filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit challenging U.S. District Judge Roslyn Silvers order that appointed a receiver to oversee all health care services in nine state prisons. The order does not cover nearly 10,000 people incarcerated in private prisons for state convictions.

The ruling came after nearly 14 years of litigation. Judge Silver issued the order on February 19 following her 2022 determination that Arizona violated prisoners rights by providing inadequate care that led to suffering and preventable deaths.

Arizona prison officials have been dogged by criticism that their health care system for 25,000 inmates in state run prisons was run shoddily and callously. The state vowed to overhaul medical and mental health services in a 2014 settlement but was soon accused of failing to keep many promises.

That led to 2.5 million in contempt of court fines against the state and eventually the revocation of the agreement. Silver explained corrections officials showed little interest in making changes.

In her February order Silver wrote the state had not achieved compliance with court ordered changes and the Constitution after nearly 14 years of litigation. She said this approach has not only failed completely but if continued would be nothing short of judicial indulgence of deeply entrenched unconstitutional conduct.

The judge said prisoners remain exposed to an intolerable grave and immediate threat of continuing harm and suffering because systemic deficiencies pervade the administration of health care.

The order gave the state and attorneys representing prisoners 60 days to submit a list of candidates to run health and mental health care operations in prisons.

Governor Katie Hobbs expressed dissatisfaction with the order along with ADCRR which said it strongly disagrees with the courts decision as it disregards the immense progress made.

In February ADCRR vowed to aggressively pursue an appeal to the order. If this decision stands an exorbitantly expensive unnecessary receiver risks disrupting the significant progress made in prisons all with no time clock on its authority. Department Director Ryan Thornell stated they will be promptly appealing the decision while continuing work to comply with court orders and running a secure safe and accountable prison system.

Lawyers for prisoners said Arizona has made few improvements since the verdict and asked the judge for the more drastic remedy of creating a receivership. They argued the system remains broken and prisoners who need care are still in danger.

This decision means an independent authority will be able to implement the systemic changes necessary to ensure medical and mental health care meets constitutional standards. This is a life saving intervention and brings hope that the preventable suffering and deaths that have haunted Arizonas prison system for over a decade can finally end. David Fathi one of the lawyers representing prisoners said.

Corrections officials say the opposing side refuses to acknowledge their progress and focus on the reputation and circumstances of the past rather than recognizing or even supporting the good work of the present.

Lawyers for the department said the agency leadership had been acting in good faith with the courts orders.

Two competing proposals now exist for the receivers role. Plaintiffs in the long running lawsuit argue the receiver must be granted powers over administration control management operation and financing on par with the departments director.

Counsel for the plaintiffs claim an obvious and profound leadership gap. They argue the receiver should have authority to oversee the departments contract with its health care vendor NaphCare. This could include authority to petition to waive a state law that requires the department to use a private contractor for prison health care services.

As for funding plaintiffs argue the receiver should be able to take some of the reins from the director in the budgeting process with a process to challenge a lack of funding from the state budget in a court hearing.

I do think the receiver should be encouraged to work with the Legislature in part because the Legislature needs to understand that this is something they need to fund. But there needs to be a backstop so if things fail if negotiations fail the consequences are not just as they always are borne by the people in prison. Sophie Hart attorney for the Prison Law Office said.

And as far as ongoing monitoring plaintiffs request unrestricted access to department facilities staff incarcerated people and documents and full cooperation. Limiting the Receivers access or requiring the Receiver to seek permission each time they need to access a facility or document would unduly delay and hinder progress.

The department proposes a more limited role. They seek a three year timeline with limited scope and compliance with existing state laws.

Because the appointment of a Receiver is extraordinary relief that replaces State authority over a State function with a federally appointed entity the application of State law and adoption of clear processes to end the Receivership and return authority to State government are critical to a narrowly drawn Receivership. Mary OGrady attorney for the department wrote.

For one the department proposes terminating the receivership after three years unless an evidentiary hearing shows a continued need. They ask the receiver to serve a three year term with the option to renew for two more years.

As for funding the receiver would have a seat at the table in state budget negotiations and be required to undergo an annual audit and submit reports every four months. Counsel also urged the receiver to comply with state statute in its duties but in the case there ultimately is a petition to waive any state law the department requests a 60 day notice to the governor the Senate president and the speaker of the House before taking any action in court.

This gives state officials an opportunity to consider changes to address the Receivers concern through the legislative or rule making process. OGrady wrote.

She also asked that the Legislature be permitted to defend state law in court.

The state and plaintiffs must now await the appellate courts decision on the appeal before the timeline for implementation becomes clear.

The lawsuit stems from the class action Jensen v Thornell first filed in 2012 by the American Civil Liberties Union the Prison Law Office and Disability Rights Arizona. They filed the complaint against the Arizona Department of Corrections on behalf of all people incarcerated in the state prison system claiming systemic failures had led to suffering and death.

Federal judges have issued three orders finding unconstitutional care and levied three contempt sanctions against the department totaling 2.5 million. Over the past 14 years the class action has sought changes to the policies and practices of the Department of Corrections but attorneys for plaintiffs do not seek any monetary damages on behalf of its class leaving inmates to pursue it for themselves.

Corene Kendrick deputy director of the ACLU National Prison Project and an attorney for plaintiffs in Jensen v Thornell said the interplay between the class action and individual cases typically occurs when judges weigh deliberate indifference or whether prison staff knowingly disregarded the risk of harm.

One of the big defenses the department can make in these individual cases is we were not aware of the problems. Kendrick said.

Kendrick noted cases are often brought to the departments attention either through plaintiffs counsel or through court monitors in the class action. It is hard for them to say in an individual case later on we did not realize that this person had a problem because there is evidence of it.

Gary Jerome Harper sued the department in 2018 claiming treatment or lack thereof for his bladder dysfunction thyroid disorder and history of Hodgkins lymphoma. In 2020 a federal judge rejected an attempt to dismiss the case by the Arizona Department of Corrections and Corizon the health care vendor at the time.

Judge David Campbell found deliberate indifference by the department and its health care provider. He cited Harpers own requests for help unfulfilled follow ups and referrals from medical staff and letters from Rita Lomio an attorney on the health care class action who raised the issue of Harpers continued inadequate treatment in multiple letters to then ADCRR Director Charles Ryans counsel.

A similar sequence played out in a later case filed by David Shores an inmate who claimed inadequate treatment by the department and its new vendor Centurion for excessive prostate pain.

As in Harpers case an attorney for the Prison Law Office Thomas Nosewicz wrote multiple letters to the departments counsel flagging the need for medical care. Campbell denied the departments motion for summary judgment.

Individual cases continue at various stages as the legal battle unfolds. The state appeal adds a new layer to a dispute that has persisted for over a decade and continues to affect prisoners across Arizona state prisons.