Graves, et al v. Arpaio, et al

Filing 2283

FINDINGS OF FACT AND CONCLUSIONS OF LAW and Order - IT IS ORDERED that Defendants Fulton Brock, Don Stapley, Andrew Kunasek, Max Wilson and Mary Rose Wilcoxs Motion to Terminate Third Amended Judgment on Behalf of Correctional Health Services (Doc. 2142 ) is denied. By December 1, 2014, Defendants will adopt policies and procedures or amend existing policies and procedures. By December 16, 2014, Defendants will file with the Court a copy of each policy adopted or amended to comply with thi s Order and identify the specific policy provisions that demonstrate compliance. By February 27, 2015, Defendants will fully implement each of the policies ordered herein, including hiring additional staff, providing training, and making facility m odifications, as needed. By March 16, 2015, Defendants will file with the Court a summary of actions taken to implement each of the policies. Beginning March 2, 2015, Defendants will collect and summarize data for a period of 180 days that shows the extent to which Defendants are complying with this Order. On September 15, 2015, Defendants will file with the Court a report of the data collected and summarized in compliance with this Order. IT IS FURTHER ORDERED that, for the convenience of the p arties, those provisions of the Third Amended Judgment that remain in effect and the additional prospective relief granted by this Order are restated in the Fourth Amended Judgment entered this day. (See document for full details). Signed by Judge Neil V Wake on 9/30/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Fred Graves, Isaac Popoca, on their own
behalf and on behalf of a class of all pretrial
detainees in the Maricopa County Jails,

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Plaintiffs,

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v.

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Joseph Arpaio, Sheriff of Maricopa County;
Andrew Kunasek, Mary Rose Wilcox,
Denny Barney, Steve Chucri, and Clint L.
Hickman, Maricopa County Supervisors,

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Defendants.

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No. CV-77-00479-PHX-NVW
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
and
ORDER

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TABLE OF CONTENTS

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I. 

Summary .................................................................................................................. 1 

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II. 

Background .............................................................................................................. 4 

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III. 

Legal Standards ...................................................................................................... 13 

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A. 

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Termination of Prospective Relief Under the Prison Litigation Reform Act
..................................................................................................................... 13 

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B. 

Relevant Period for a “Current and Ongoing” Violation ............................ 14 

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C. 

Pretrial Detainees’ Protection from Punishment Under the Fourteenth

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Amendment ................................................................................................. 15 

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D. 

Eighth Amendment Standard for Medical and Mental Health Care ........... 17 

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E. 

Remedies ..................................................................................................... 20 

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IV. 

Findings of Fact and Conclusions of Law .............................................................. 21 

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A. 

The Parties ................................................................................................... 21 

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B. 

The Maricopa County Jail ........................................................................... 22 

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C. 

Receiving Screening .................................................................................... 25 

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D. 

Ready Access to Needed Medical and Mental Health Care ....................... 36 

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E. 

Prescription Medications Without Interruption .......................................... 53 

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F. 

Electronic Records Management ................................................................ 56 

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G. 

Remedies ..................................................................................................... 57 

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H. 

Fourth Amended Judgment to Be Entered .................................................. 58 

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I. 

Attorney Fees .............................................................................................. 58 

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V. 

Order ....................................................................................................................... 58 

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Before the Court is Defendants Fulton Brock, Don Stapley, Andrew Kunasek,
Max Wilson and Mary Rose Wilcox’s Motion to Terminate Third Amended Judgment on
Behalf of Correctional Health Services (Doc. 2142).1 The Court has considered the
parties’ briefs, memoranda, proposed findings, and evidence and argument presented on
February 25–27 and March 4–6, 2014.

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I.

Pretrial detainees held in the Maricopa County Jail brought this class action in

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1977 against the Maricopa County Sheriff and the Maricopa County Board of
Supervisors seeking injunctive relief for alleged violations of their civil rights.
Throughout the years, the injunctive relief was amended as conditions changed. Now
Defendants seek to terminate the remaining injunctive relief regarding medical, dental,
and mental health care for pretrial detainees held in the Maricopa County Jail.
Terminating the Court-ordered relief would end this class action and the Court’s
monitoring of conditions in the Maricopa County Jail, but would not end Defendants’
constitutional obligations to pretrial detainees.
The Eighth Amendment requires that the Maricopa County Jail provide pretrial

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detainees a system of ready access to adequate medical, dental, and mental health care,
which includes timely examination, diagnosis, and treatment by medical personnel
qualified to do so. It also requires that the Maricopa County Jail not be deliberately
indifferent to pretrial detainees’ serious medical, dental, and mental health needs,
including conditions that are likely to cause future serious illness and needless suffering.
The Fourteenth Amendment requires that the Maricopa County Jail not withhold

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SUMMARY

or delay medical, dental, or mental health care unless doing so is reasonably related to a
legitimate governmental objective, such as protecting a pretrial detainee from likely
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On February 20, 2014, Maricopa County Supervisors Denny Barney, Steve
Chucri, and Clint L. Hickman were added as Defendants, and Defendants Fulton Brock,
Don Stapley, and Max W. Wilson were terminated from this action. (Doc. 2221.)

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harm, protecting others from likely harm, and preserving institutional security. Lack of
resources does not justify delay or denial of medical, dental, or mental health care.
The Maricopa County Jail must make reasonable efforts to prevent a pretrial
detainee’s confinement from causing the detainee serious medical or mental health injury.
It also must make reasonable efforts to avoid depriving the detainee from obtaining or
continuing necessary medical or mental health care the detainee would have obtained or
continued outside of the Jail. But the Jail is not the County’s public health care provider.
Several hundred pretrial detainees enter the Jail daily, approximately half need some
form of health care, and nearly 40% are released within 24 hours. Only 35% stay longer
than 7 days; only 25% stay longer than 14 days. With a high-volume, short-stay inmate
population, the Jail cannot cure serious systemic inadequacies in public medical and
mental health care in Maricopa County and the State of Arizona.
Defendants have shown significant improvements in many areas relevant to the
Third Amended Judgment and have set in place practices that may cure or nearly cure
most of the previously identified ongoing constitutional violations. However, on August
9, 2013, they moved for termination of the Third Amended Judgment before collecting
evidence that the improvements had been successfully implemented and were producing
the intended results. Some of the new practices were begun only a few days before.
Thus, Defendants have not met their burden to prove that they eliminated all current and
ongoing constitutional violations as of August 9, 2013.
For example, Defendants now have at least one medical provider and additional
mental health staff assigned to the Jail’s intake center 24 hours a day, 7 days a week. But
they have not shown they have resolved systemic deficiencies in providing pretrial
detainees timely face-to-face assessment by medical and mental health providers for
serious acute or chronic complex conditions.
Defendants now have designated housing for male general population pretrial
detainees who need close monitoring and treatment during withdrawal from alcohol

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and/or drugs. But they have not shown they have resolved systemic deficiencies in
providing adequate monitoring and treatment of female pretrial detainees during
withdrawal or male pretrial detainees who are placed in housing for suicide monitoring,
close custody, administrative segregation, disciplinary segregation, or the Special
Management Unit during withdrawal.
Defendants have not shown they have resolved systemic deficiencies in
articulating and implementing criteria for placement of seriously mentally ill pretrial
detainees in the Mental Health Unit, its subunits, and outside mental health/psychiatric
facilities. Appropriate placement, transition, and transfer do not guarantee any particular
result for an individual pretrial detainee, but they do require a mental health provider’s
timely clinical assessment and judgment for each seriously mentally ill pretrial detainee.
Curing these systemic deficiencies may require more medical and mental health
providers than are currently caring for pretrial detainees in the Maricopa County Jail.
Defendants are not required to maintain specific staffing numbers or ratios, but they must
ensure that pretrial detainees with serious medical or mental health conditions are seen
face-to-face by providers, providers personally diagnose and plan treatment for pretrial
detainees with serious medical or mental health conditions, and providers’ orders for
prescriptions, lab tests, treatments, monitoring, placement, specialist referrals, and
follow-up appointments are completed with urgency ordered by the provider. Pretrial
detainees’ constitutional right to adequate medical and mental health care is best
protected by a system that permits qualified medical and mental health providers to
exercise reasonable professional judgment regarding individual pretrial detainees and that
provides the resources needed to comply with the providers’ orders.
Defendants have not shown that the prospective relief ordered in the Third
Amended Judgment is no longer necessary to correct a current and ongoing constitutional
violation or that it exceeds the constitutional minimum. On this record, the prospective
relief ordered in the Third Amended Judgment remains necessary to ensure that pretrial

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detainees have ready access to adequate medical, dental, and mental health care; are not
subjected to conditions that are likely to cause future serious illness and needless
suffering; and are not deprived of timely medical, dental, or mental health care except
where denial or delay of care is reasonably related to a legitimate governmental objective
other than financial cost.

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Having found constitutional violations, the Court must order remedies to correct
them. Defendants’ six-year history of incomplete compliance with the medical and
mental health terms of the Second Amended Judgment now requires judicial crafting of
remedies. Defendants will recognize that much of the specific relief ordered is what they
say they will do but have not yet proven to be permanent and effective. If Defendants
comply with this Order, 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 Prison
Litigation Reform Act permits another motion to terminate.

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II.

BACKGROUND
This class action was brought in 1977 against the Maricopa County Sheriff and the

Maricopa County Board of Supervisors alleging that the civil rights of pretrial detainees
held in the Maricopa County, Arizona, jail system had been violated. It applies only to
pretrial detainees, not to convicted inmates.
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, the 1981 consent decree was superseded by an Amended Judgment
entered by stipulation of the parties.
On October 22, 2008, upon motion by Defendants pursuant to the Prison
Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626 and 42 U.S.C. § 1997, and after an
evidentiary hearing, 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
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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.

(Doc. 1634.)

Other

provisions were modified or vacated, and the provisions remaining in effect, as originally
written or as modified, were restated in the Second Amended Judgment. (Doc. 1635.)
The October 22, 2008 Order stated that the Court contemplated that the parties would
“confer immediately about prompt compliance with the Second Amended Judgment, and
new proceedings will be brought at Plaintiffs’ initiative to enforce the Second Amended
Judgment if Plaintiffs are not satisfied.” On November 21, 2008, Defendants sought
appellate review of the Second Amended Judgment.
On December 5, 2008, a hearing was held regarding Defendants’ compliance with
the Second Amended Judgment, the parties’ plans for achieving compliance, and disputes
regarding selection of independent medical and mental health consultants to assist
Defendants in achieving compliance. On January 9, 2009, a hearing was held regarding
Defendants’ progress toward compliance with the nonmedical portions of the Second
Amended Judgment and selection of team leaders for medical and mental health
compliance efforts.
On January 28, 2009, upon agreement of the parties, the Court appointed Dr.
Lambert N. King, medical expert, and Dr. Kathryn Burns, mental health expert, to serve
as independent evaluators of Defendants’ compliance with the medical and mental health
provisions of the Second Amended Judgment. The independent evaluators conducted
regularly scheduled visits to the County jails and reported their findings and
recommendations to the Court beginning in June 2009.
On April 7, 2010, sixteen months after the Second Amended Judgment was
entered, significant areas of failure to comply with the Second Amended Judgment’s
medical and mental health requirements remained. (Doc. 1880.) The April 7, 2010
Order stated in part:

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Although progress has been made, it appears as though most of the
improvements made regarding medical and mental health services have
been those imposing little or no additional cost on Defendants.
Improvements appearing to be most critically needed, e.g., developing and
implementing electronic medical records and medication management
tools, increasing staffing, providing space for confidential mental health
treatment, appear to have been disregarded or postponed to avoid expense.
Further, the Court has not been advised whether Defendants are in
compliance with the food and nutritional terms of the Second Amended
Judgment.

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Previous orders and numerous court proceedings in this matter have
emphasized Congress’s intent that constitutional violations regarding
conditions of confinement be corrected expeditiously and judicial oversight
terminated as swiftly as possible. The Court has repeatedly informed the
parties of the importance of implementing long-overdue, constitutionally
required corrections as quickly as possible, both for the benefit of the
Plaintiff class and to avoid expenses incurred by unnecessary delay.
Because correction of constitutional violations has not proceeded
expeditiously to date, the parties and counsel will be ordered to meet and
confer to develop a proposed procedure for achieving and demonstrating
Defendants’ complete compliance with the Second Amended Judgment,
including a procedure for Plaintiffs to submit fee applications at appropriate
intervals to be paid promptly by Defendants. 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. To the extent fiscal choices
have to be made, the Court contemplates that compliance with the
minimum requirements of the United States Constitution in the discharge of
the Defendants’ core function of operating the county jail will take priority
over other discretionary activities of the Sheriff and the County Defendants.
The parties shall jointly file a report explaining their proposed procedure by
June 11, 2010.

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(Id.) The April 7, 2010 Order required the parties to meet and confer to develop a

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proposed schedule for confirming Defendants’ full compliance with the Second Amended

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Judgment or ordering specific implementing remedies that would achieve full compliance

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by the end of 2010. It further set a hearing for June 24, 2010, on the parties’ proposed

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procedure for achieving Defendants’ complete compliance with the Second Amended
Judgment. These deadlines were subsequently extended several times.
On June 18, 2010, the parties filed a joint report with their respective positions
regarding Defendants’ compliance with the nonmedical portions of the Second Amended
Judgment. On July 30, 2010, the parties filed a supplemental joint report regarding food,
discovery, and presentation of disputes.
On July 30, 2010, the parties also 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. (Doc. 1895.) 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 Court-appointed

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.
On October 13, 2010, the Ninth Circuit affirmed the Second Amended Judgment.
On October 28, 2010, Defendants moved to terminate the nonmedical portions of the
Second Amended Judgment (paragraphs 2-5 and 9-16).

On November 2, 2010,

Defendants filed a petition for rehearing en banc in the Ninth Circuit. On November 17,
2010, the Court denied Defendants’ motion to terminate the nonmedical portions of the
Second Amended Judgment for lack of jurisdiction without prejudice to refiling it after
the Court of Appeals’ mandate issued and jurisdiction was revested in this Court.

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On January 20, 2011, the parties filed a Joint Case Management Plan Regarding
Health Care, which identified Defendants’ disagreement with two recommendations of
the Court-appointed independent consultants:

(1) physician assistants or nurse

practitioners cannot substitute for licensed physicians on weekends and holidays or in
providing initial health assessments of patients with or at risk of serious acute or unstable
medical conditions, and (2) correctional staff posted to the intake center must receive
training regarding mental health issues. (Doc. 1939.) On April 4, 2011, the Ninth Circuit
mandate issued. On June 7, 2011, the parties filed a Joint Case Management Report,
which stated that an evidentiary hearing regarding the medical and mental health issues
was no longer necessary. The same day Defendants filed a motion to terminate the
nonmedical provisions of the Second Amended Judgment. (Doc. 1980.) An evidentiary
hearing on the motion was set for October 18, 2011. (Doc. 1988.)
On October 12, 2011, after conducting extensive discovery, the parties stipulated
that certain nonmedical provisions of the Second Amended Judgment should be
terminated and that other provisions should remain in effect. The stipulation stated that
Defendants would renew the motion to terminate 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 October 13, 2011,
the Court granted the parties’ stipulation and denied Defendants’ motion to terminate
except as stipulated.
On April 24, 2012, Defendants moved to terminate certain provisions of the
Second Amended Judgment pursuant to 18 U.S.C. § 3626(b), and Plaintiffs did not
oppose the motion. On May 24, 2012, Defendants’ motion was granted, and those
provisions of the Second Amended Judgment (Doc. 1635) that remained in effect were
restated in the Third Amended Judgment (Doc. 2094). The Third Amended Judgment
provides in relevant part:

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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.

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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.

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4.
Defendants shall ensure that the pretrial detainees’
prescription medications are provided without interruption where medically
prescribed by correctional medical staff.

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5.
Defendants will maintain records of their compliance with
this Third Amended Judgment and will provide quarterly summaries of
those records to Plaintiffs’ counsel.

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(Doc. 2094.)

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In January 2013, in their Tenth Reports to the Court, Dr. King and Dr. Burns

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reported significant progress toward compliance with the Third Amended Judgment and

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provided specific recommendations to achieve substantial compliance. (Doc. 2099.)

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These reports were based primarily on site visits and records reviews made in October

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2012. On February 25, 2013, the Court ordered Defendants to file a status report stating

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their views and intentions with respect to the recommendations of Dr. King and Dr.

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Burns.

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On June 14, 2013, Defendants filed a status report describing their efforts to

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address the concerns raised by Dr. King and Dr. Burns in their Tenth Reports. (Doc.

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2128.) It concluded that “Drs. Burns and King’s reports do not indicate any widespread

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systemic problems that violate inmates’ constitutional rights” and “CHS continues to

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perfect its level of care and treatment to the inmate population.” The status report also
described the temporary electronic records system then in use and progress toward
completing the permanent electronic health records system.
Regarding Dr. King’s recommendations, among other things, the status report
stated, “24 hour provider coverage was added to Fourth Avenue Intake in 2012,” “[t]he
RN and Intake provider assess (based on symptomology and medical history) which
inmates require a follow-up evaluation based on individualized history and assessment,”
and “[a]fter the health technician conducts the Pre-Intake interview, any inmate with
more significant medical issues—i.e., a chronic condition, on medications, injured, etc.—
will see the RN in the pre-Intake area for a follow-up assessment.” Statements such as
these did not show that improvements had been made after Dr. King’s October 2012 site
visit or provide evidence that any of his recommendations had been adopted and were
being implemented consistently.
Defendants expressly disagreed with Dr. King’s recommendation that policies and
procedures of the Maricopa County Sheriff’s Office (“MCSO”) be modified to (1) require
qualified medical personnel to examine each detainee after a use of force and determine
whether the detainee should be given medical treatment and (2) require involvement of
mental health professionals to attempt to obviate use of force on a detainee with probable
mental illness who is passively resisting control. In other areas, Defendants simply
described current practices, some of which did not comply with Dr. King’s
recommendations, without expressly disagreeing with his recommendations.

For

example, under the heading “Tuberculin Skin Testing Within Seven Days of Booking,”
the status report states, “CHS performs a skin test between ten to fourteen days from
Intake to coincide with the inmate’s initial health assessment.”
Regarding Dr. Burns’ recommendations, among other things, the June 14, 2013
status report described procedures for placement and treatment of mental health patients
at the Mental Health Unit at the Lower Buckeye Jail (“MHU”) and outpatient clinics. It

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stated that mental health clerk hours were increased in the intake center to provide
weekend coverage beginning in December 2012, mental health audits showed
improvements in the timeliness of providing care, and necessary psychiatric evaluations
occur within four days of booking. The status report also stated: “Medications are
provided as quickly as possible after verification.

The psychotropic drug audits

conducted quarterly show that medications are given to patients within three to four days
of booking.”

Further, the report described improvements made to address issues

associated with isolation in the 4th Avenue Special Management Unit. The June 14,
2013 status report included information regarding the number of suicides per year and
suicides per 100,000 for 2002–2012 and concluded that “CHS’s low suicide rate indicates
that patients at risk for self harm are well managed.”
On July 29, 2013, Plaintiffs responded to Defendants’ June 14, 2013 status report
with respect to specific recommendations made by Dr. King and Dr. Burns. (Doc. 2138.)
Plaintiffs acknowledged progress made since 2008, identified recommendations for
which Defendants’ status report did not establish compliance, and challenged the
accuracy of some of Defendants’ assertions about their compliance with the
recommendations. Plaintiffs asserted that Defendants’ status report did not establish
compliance with recommendations such as those regarding the electronic health records
system, provider staffing during intake, face-to-face provider evaluations during intake of
patients with serious acute or chronic medical conditions, adequate beds and facilities for
closely monitoring patients at risk for severe alcohol and drug withdrawal of all custody
levels, revision of the MCSO Use-of-Force policy, on-site availability of nursing wound
care, timeliness of transferring unstable patients from outpatient jails to the MHU,
improvement of outpatient mental health care, timely access to appropriate mental health
treatment for detainees enrolled in the Restoration to Competency Program, and issues
with isolation in the 4th Avenue Special Management Unit. For example, Plaintiffs noted
that Defendants responded to some of Dr. Burns’ concerns expressed in January 2013

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(based on October 2012 observations) regarding treatment of seriously mentally ill
patients housed in the Special Management Unit by describing improvements made in
2010. Notwithstanding Plaintiffs’ objections to Defendants’ June 14, 2013 status report
and insufficient time to prove the effectiveness of recent improvements, Defendants
moved to terminate the Third Amended Judgment pursuant to 18 U.S.C. § 3626(A)(1).
(Doc. 2142.)
On August 30, 2013, the parties stipulated to waive the automatic stay of the Third
Amended Judgment, which 18 U.S.C. § 3626(e)(2) imposes thirty days after a motion to
terminate is filed, to enable the parties to conduct additional discovery and present their
evidence to the Court and to allow the Court sufficient time to rule. (Doc. 2149.) On
September 10, 2013, the Court set deadlines for briefing Defendants’ motion to terminate
the Third Amended Judgment and set oral argument with evidentiary hearing, if
requested, for December 18, 2013. (Doc. 2156.) Subsequently, Defendants filed a
statement of facts to support their motion to terminate the Third Amended Judgment
(Doc. 2158), a controverting statement of facts responding to Plaintiffs’ additional facts
and objecting to Plaintiffs’ proposed findings of fact (Doc. 2183), proposed findings of
fact (Doc. 2184), and a motion to set evidentiary hearing (Doc. 2181). Plaintiffs filed a
response to Defendants’ motion to terminate (Doc. 2178), a response to Defendants’
statement of facts (Doc. 2179), and proposed findings of fact (Doc. 2177).
On December 12, 2013, the Court granted Defendants’ motion for evidentiary
hearing, vacated the oral argument previously set, and set an evidentiary hearing for
February 18, 2014. On January 7, 2014, upon Defendants’ motion, the evidentiary
hearing was continued to February 25, 2014. On January 13, 2014, the Court ordered
Plaintiffs to file a statement concisely identifying specifically what actions they believed
Defendants needed to take to correct any and all ongoing current violations within the
scope of the Third Amended Judgment and deadlines by which Defendants reasonably
could and should complete all of the corrective actions. On January 31, 2014, Plaintiffs

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filed their statement of proposed corrective actions. (Doc. 2210.) On February 19, 2014,
the Court issued a Final Prehearing Order, which identified material issues of fact to be
decided, including whether it should order any of the corrective actions proposed by
Plaintiffs. On February 25, 2014, Defendants filed a trial brief regarding Maricopa
County’s Medical Copayment.

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An evidentiary hearing was held on February 25, 26, and 27, 2014, and March 4,
5, and 6, 2014. On April 18, 2014, Defendants filed a supplemental brief regarding
remedies adopted by other courts where a systemic constitutional violation was found.
(Doc. 2261.) On May 8, 2014, Plaintiffs filed a memorandum regarding remedies and
post-trial proposed findings of fact and conclusions of law. (Docs. 2268, 2269.)

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The Court has considered all of the briefing, statements of facts, proposed
findings, and evidence presented by the parties.

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III.

A.

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LEGAL STANDARDS
Termination of Prospective Relief Under the Prison Litigation Reform
Act

Congress enacted the Prison Litigation Reform Act to prevent federal courts from
micromanaging prisons by mere consent decrees. Gilmore v. California, 220 F.3d 987,
996 (9th Cir. 2000). Under the PLRA, courts may not grant or approve relief that
requires prison administrators to do more than the constitutional minimum. Id. at 999.
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.

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The PLRA also provides that any order for prospective relief regarding prison
conditions is terminable upon the motion of any party one year after the district court has
entered an order denying termination of prospective relief under the PLRA. 18 U.S.C.
§ 3626(b)(1). The party seeking to terminate the prospective relief bears the burden of
proof. Gilmore, 220 F.3d at 1007; Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010)
(per curiam).
Although § 3626 refers to “immediate termination” and a “prompt ruling,” the
district court must inquire into current prison conditions before ruling on a motion to
terminate. Gilmore, 220 F.3d at 1007-08. Even if the existing relief qualifies for
termination under § 3626(b)(2), if there is a current and ongoing violation, the district
court must modify the relief to meet the PLRA standards. Id. at 1008. Therefore,
“[p]rospective 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).
Determining whether such relief meets § 3626(b)(3)’s need-narrowness-intrusiveness
criteria “will obviously rest upon case-specific factors—namely, the extent of the current
and ongoing constitutional violations.” Id. at 1206.

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B.

Relevant Period for a “Current and Ongoing” Violation

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.

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Evidence of “current and ongoing” violations must reflect conditions “as of the time
termination is sought.” Id.; accord Pierce, 526 F.3d at 1205.

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On September 10, 2013, the Court ordered that for evidence to be relevant to
Defendants’ motion to terminate the Third Amended Judgment, it must tend to show
whether any current and ongoing violation existed on August 9, 2013, the date
Defendants filed their motion. (Doc. 2156.) Relevant evidence could be obtained before
or after August 9, 2013, but it must show conditions as they existed on August 9, 2013.

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C.

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Pretrial Detainees’ Protection from Punishment Under the Fourteenth
Amendment

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The Fourteenth Amendment Due Process Clause protects a pretrial detainee from

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punishment prior to an adjudication of guilt in accordance with due process of law. Bell

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v. Wolfish, 441 U.S. 520, 534-35 (1979). “This standard differs significantly from the

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standard relevant to convicted prisoners, who may be subject to punishment so long as it

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does not violate the Eighth Amendment’s bar against cruel and unusual punishment.”

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Pierce, 526 F.3d at 1205.

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applies to conditions of confinement for pretrial detainees and requires the government to

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do more than provide minimal necessities. Jones v. Blanas, 393 F.3d 918, 931 (9th Cir.

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2004).

The “more protective” Fourteenth Amendment standard

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To evaluate the constitutionality of pretrial detention conditions that are not

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alleged to violate any express constitutional guarantee, a district court must determine

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whether those conditions amount to punishment of the detainee. Bell, 441 U.S. at 535;

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Pierce, 526 F.3d at 1205; Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004). To

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constitute punishment, the governmental action must cause harm or disability that either

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significantly exceeds or is independent of the inherent discomforts of confinement, but it

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does not need to cause a harm independently cognizable as a separate constitutional

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violation, e.g., deprivation of First Amendment rights. Demery, 378 F.3d at 1030. To

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determine whether an action’s purpose is punitive, in the absence of evidence of express

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intent, a court may infer that the purpose of a particular restriction or condition is
punishment if the restriction or condition is not reasonably related to a legitimate
governmental objective or is excessive in relation to the legitimate governmental
objective. Pierce, 526 F.3d at 1205 (citing Bell, 441 U.S. at 539).
Legitimate governmental objectives that may justify adverse detention conditions
include maintaining security and order and operating the detention facility in a
manageable fashion. Id. “[M]aintaining institutional security and preserving internal
order and discipline are essential goals that may require limitation or retraction of the
retained constitutional rights of both convicted prisoners and pretrial detainees.” Bell,
441 U.S. at 546.

But retribution and deterrence are not legitimate governmental

objectives. Demery, 378 F.3d at 1030-31.
To determine whether detention restrictions or conditions are reasonably related to
maintaining security and order and operating the institution in a manageable fashion,
courts ordinarily should defer to the expert judgment of correction officials in the absence
of substantial evidence that indicates officials have exaggerated their response to these
considerations. Bell, 441 U.S. at 540 n.23. A reasonable relationship between the
governmental objective and the challenged condition does not require an “exact fit,” a
showing that it is the “least restrictive alternative,” or proof that the policy does in fact
advance the legitimate governmental objective. Valdez v. Rosenbaum, 302 F.3d 1039,
1045 (9th Cir. 2002). But it does require evidence that the correction officials’ judgment
is rational, i.e., they might reasonably think that the policy advances a legitimate
governmental objective. Id.
Therefore, to find that a condition of confinement for pretrial detainees constitutes
a current and ongoing violation of the constitutional minimum under the Fourteenth
Amendment, the Court must determine that the condition:
(1)

imposes some harm to the pretrial detainees that significantly exceeds or is

independent of the inherent discomforts of confinement and

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(2)

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(a) is not reasonably related to a legitimate governmental objective or
(b) is excessive in relation to the legitimate governmental objective.

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D.

Eighth Amendment Standard for Medical and Mental Health Care

Although the “more protective” Fourteenth Amendment standard applies here, any
violation of the Eighth Amendment necessarily also violates the Fourteenth Amendment.
The Eighth Amendment requires that prison officials ensure that inmates receive
adequate food, clothing, shelter, sanitation, and medical care and take reasonable
measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S. 825, 832
(1994). Courts must consider the effect of each condition of confinement in its context,
“especially when the ill-effects of particular conditions are exacerbated by other related
conditions.” Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981). “A prison that
deprives prisoners of basic sustenance, including adequate medical care, is incompatible
with the concept of human dignity and has no place in civilized society.” Brown v. Plata,
__ U.S. __, 131 S. Ct. 1910, 1928 (2011).
Specifically, prison officials must “provide a system of ready access to adequate
medical care,” including mental health care, that provides access to medical staff who are
competent to examine inmates, diagnose illnesses, and treat medical problems or refer
inmates to those who can. Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982),
abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 481-84 (1995).
Further, the system must be able to respond to emergencies promptly and adequately. Id.
Moreover, the Eighth Amendment prohibits deliberate indifference not only to an
inmate’s current health problems, but also to conditions of confinement that are very
likely to cause future serious illness and needless suffering. Helling v. McKinney, 509
U.S. 25, 33 (1993). “A medical need is serious if failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary and wanton infliction of
pain.” Peralta v. T.C. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc) (internal
quotation marks omitted).
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Deliberate indifference to serious medical needs may be manifested not only by
medical providers failing to respond to a prisoner’s needs, but also by detention officers
intentionally denying or delaying access to medical care or intentionally interfering with
prescribed treatment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A policy of
medical understaffing may show deliberate indifference. Cabrales v. County of Los
Angeles, 864 F.2d 1454, 1461 (9th 1988), vacated and remanded, 490 U.S. 1087 (1989),
reinstated, 886 F.2d 235 (9th Cir. 1989). And “[l]ack of resources is not a defense to a
claim for prospective relief because prison officials may be compelled to expand the pool
of existing resources in order to remedy Eighth Amendment violations.” Peralta, 744
F.3d at 1083; see also Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979) (cost or
inconvenience of providing adequate conditions is not a defense to the imposition of
punishment in an action for injunctive relief).
Holding inmates with serious mental illness in prolonged isolated confinement
may cause serious illness and needless suffering in violation of the Eighth Amendment.
See, e.g., Coleman v. Brown, 938 F. Supp. 2d 955, 979 (E.D. Cal. 2013) (mentally ill
inmates in administrative segregation faced substantial risk of serious harm, including
exacerbation of mental illness and potential increase in suicide risk). To determine
whether segregated confinement meets constitutional standards, courts must consider
both the length of the segregated confinement of inmates with serious mental illness and
the specific conditions of the confinement. Hutto v. Finney, 437 U.S. 678, 686 (1978).
Conditions to be considered may include: (1) the length of time prisoners with mental
illness spent in solitary confinement (approximately 22 hours or more a day); (2) the
extent to which solitary confinement interfered with prisoners’ ability to obtain adequate
mental health treatment; (3) the conditions accompanying the solitary confinement
experienced by prisoners with serious mental illness; and (4) the extent to which systemic
deficiencies at the facility, e.g., deficiencies in mental health programming, screening,
and accountability, contributed to an overreliance on solitary confinement as a means of

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controlling prisoners with serious mental illness. Coleman v. Brown, CV-90-00520LKK-DAD, Doc. 4919 (E.D. Cal. Nov. 12, 2013) (publication of the United States
Department of Justice, Civil Rights Division).
District courts have found that conditions of extreme social isolation likely would
cause some degree of psychological trauma for most inmates and likely would cause
serious mental illness or a massive exacerbation of existing mental illness for inmates
with active mental illness or a history of mental illness. Thus, the confinement in a
maximum security housing unit constituted a per se violation of the Eighth Amendment
only for inmates with active mental illness or a history of mental illness. Madrid v.
Gomez, 889 F.Supp. 1146, 1155, 1235-36, 1265-66 (N.D. Cal. 1995); Ind. Prot. &
Advocacy Servs. Comm’n v. Comm’r, Ind. Dep’t of Corr., 2012 WL 6738517 at *23 (S.D.
Ind. Dec. 31, 2012) (expressly following Madrid v. Gomez). Similarly, a district court
found that extremely isolating conditions in a Wisconsin supermaximum prison caused
psychological harm to seriously mentally ill prisoners, relatively healthy prisoners who
had histories of serious mental illness, and prisoners who had never suffered a breakdown
in the past but were prone to break down when stress and trauma became severe.
Jones’El v. Berge, 164 F. Supp. 2d 1096, 1101-02 (W.D. Wis. 2001).
Recently, nearly 20 years after first granting injunctive relief to the class of
seriously mentally ill prisoners confined in the California state prison system, a district
court recognized defendants’ significant progress overall, but found defendants’ motion
to terminate “clearly premature” because defendants had not sufficiently remedied Eighth
Amendment violations in use of force, disciplinary measures, and segregated housing for
seriously mentally ill prisoners. Coleman v. Brown, __ F.Supp.2d __, 2014 WL 1400964,
at *1 (E.D. Cal. Apr. 11, 2014). The court found that “placement of seriously mentally ill
inmates in California’s segregated housing units can and does cause serious
psychological harm, including decompensation, exacerbation of mental illness,
inducement of psychosis, and increased risk of suicide,” and “the Eighth Amendment

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prohibits placements of seriously mentally ill inmates in conditions that pose a substantial
risk of exacerbation of mental illness, decompensation, or suicide.” Id. at *20, 25. It
concluded that where clinical judgment demonstrates that a proposed placement poses an
unacceptable level of risk, that judgment cannot be overridden by custodial requirements,
and an alternative placement must be made. The court ordered defendants to develop a
protocol for placement decisions and a plan for alternative housing that would preclude
placement of any seriously mentally ill inmate in existing administrative segregation
units when clinical information demonstrates substantial risk of exacerbation of mental
illness, decompensation, or suicide from such placement. Id. at *26.
Even under the Eighth Amendment, constitutional standards for prison conditions
are not fixed:

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Underlying the eighth amendment is a fundamental premise that
prisoners are not to be treated as less than human beings. The amendment
is phrased in general terms rather than specific ones so that while the
underlying principle remains constant in its essentials, the precise standards
by which we measure compliance with it do not. It follows that when
confronting the question whether penal confinement in all its dimensions is
consistent with the constitutional rule, the court’s judgment must be
informed by current and enlightened scientific opinion as to the conditions
necessary to insure good physical and mental health for prisoners.
Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979) (citations omitted); see Trop v.
Dulles, 356 U.S. 86, 100 (1958) (“The [Eighth] Amendment must draw its meaning from
the evolving standards of decency that mark the progress of a maturing society.”).

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E.

Remedies

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“[C]onstitutional violations in conditions of confinement are rarely susceptible of

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simple or straightforward solutions.” Brown v. Plata, __ U.S. __, 131 S. Ct. 1910, 1936

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(2011). “Courts may not allow constitutional violations to continue simply because a

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remedy would involve intrusion into the realm of prison administration.” Id. at 1928-29.

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Further, “[a] history of noncompliance with prior orders can justify greater court

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involvement than is ordinarily permitted.” Sharp v. Weston, 233 F.3d 1166, 1173 (9th
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Cir. 2000) (affirming order that identified areas of noncompliance with prior injunction
and gave more specific directions regarding how to comply with the original order).
Although a district court must give prison officials opportunity to propose remedies, it
has broad discretion regarding when and how that proposal should be submitted for
consideration by the court. Graves v. Arpaio, 623 F.3d 1043, 1047 (9th Cir. 2010).

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“Once a constitutional violation has been found, a district court has broad powers
to fashion a remedy. A court may order relief that the Constitution would not of its own
force initially require if such relief is necessary to remedy a constitutional violation.”
Sharp, 233 F.3d at 1173 (internal quotation marks and citations omitted; after failure to
comply with prior injunction, district court did not abuse discretion by issuing more
specific directions that were not, in and of themselves, constitutionally required). The
PLRA authorizes prospective relief that is necessary to correct an ongoing constitutional
violation, but does not require that the relief “exactly map” onto constitutional
requirements. Graves, 623 F.3d at 1050. Although 18 U.S.C. § 3626(b)(3) requires that
prospective relief be narrowly drawn and the least intrusive means to correct the
violation, a remedy does not fail narrow tailoring simply because it will have positive
collateral effects. Plata, 131 S. Ct. at 1940.

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Federal courts may give considerable weight to expert opinion regarding how to
remedy relevant constitutional violations.

Id. at 1944.

Although “courts must not

confuse professional standards with constitutional requirements,” “expert opinion may be
relevant when determining what is obtainable and what is acceptable in corrections
philosophy,” and “courts are not required to disregard expert opinion solely because it
adopts or accords with professional standards.” Id. at 1944-45.

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IV.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

The Parties

1.

Plaintiffs are the class of all pretrial detainees who are housed in the

Maricopa County Jail, which includes multiple facilities.
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2.

Defendants Denny Barney, Steve Chucri, Clint L. Hickman, Andrew

Kunasek, and Marie Lopez Rogers2 are the current members of the Maricopa County
Board of Supervisors.
3.

Defendant Joseph Arpaio is the Maricopa County Sheriff, whose duties

under A.R.S. § 11-441 include taking charge of and keeping the county jail and the
prisoners in the county jail.
4.

Correctional Health Services (“CHS”) is an agency of Maricopa County

government and is responsible for providing health care services to those incarcerated in
the Maricopa County jail system. A.R.S. § 11-291(A).
5.

Each facility within the Maricopa County Jail was accredited by the

National Commission on Correctional Health Care (“NCCHC”) on March 12, 2012.
NCCHC standards serve as a framework to ensure that systems, policies, and procedures
are in keeping with nationally recognized best practices. NCCHC standards include a
continuous quality improvement program, which uses a structured process to find areas in
the health care delivery system that need improvement and to develop and implement
strategies for improvement. A quality improvement study is one of many means through
which the Maricopa County Jail can collect data to demonstrate its compliance with
constitutional standards.
6.

Compliance with NCCHC standards is not equivalent to complying with

constitutional standards. Nationally recognized best practices may exceed constitutional
standards in some areas and fall short in others.

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B.

The Maricopa County Jail

7.

The average daily population of the Maricopa County Jail is approximately

8,200, which includes both pretrial detainees and sentenced inmates. Pretrial detainees
comprise the majority of the population.
2

In May 2014, Mary Rose Wilcox resigned from the Maricopa County Board of
Supervisors, and in June 2014 the Board selected Marie Lopez Rogers to fill the vacancy.

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8.

This action applies only to pretrial detainees housed in the Maricopa

County Jail. Although some inmates housed in the Maricopa County Jail are not pretrial
detainees, most of the Jail’s conditions, policies, procedures, and practices do not
distinguish between pretrial detainees and sentenced inmates.

Therefore, the term

“inmates” used here includes both pretrial detainees and sentenced inmates, but any
determination of constitutional violation applies only to pretrial detainees.
9.

Approximately 250 to 300 arrestees are processed through the 4th Avenue

intake center each day. Many have been arrested and brought to the Maricopa County
Jail previously.
10.

The length of time that a pretrial detainee stays at the Maricopa County Jail

ranges from less than 24 hours to more than a year. The length of stay for most pretrial
detainees is relatively short. Approximately 40% of inmates are released within 24 hours
of booking, 50% within 2 days of booking, 65% within 7 days of booking, and 75%
within 14 days of booking.
11.

Housing placements are based on gender, security level classification, and

medical and mental health needs. Female pretrial detainees are housed either at the
Estrella jail or in the Mental Health Unit at the Lower Buckeye jail.
12.

Maricopa County Sheriff’s Office (“MCSO”) personnel assign each pretrial

detainee a security level classification based on certain factors, such as current offender
status, arrest and conviction history, and institutional behavior. A pretrial detainee may
be classified as requiring segregation for his own protection, for the protection of others,
and/or as a disciplinary sanction. Classification determines the extent to which the
pretrial detainee will be permitted contact with others and the number of hours per day
the pretrial detainee will be permitted outside of his cell for recreation, showers, and
other activities. Inmates classified as close custody are further classified into four levels
based on whether they are permitted out of their cells for one, two, three, or four hours a
day. MCSO staff assigns each pretrial detainee a security level classification at booking,

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but it may modify the classification at any time.

MCSO policy does not require

consultation with CHS staff regarding classification.
13.

The Maricopa County Jail has medical facilities at the 4th Avenue, Lower

Buckeye, Towers, Estrella, and Durango jail facilities.

Each facility has private

medical/mental health treatment rooms. Each facility has identified space for group
therapy sessions and programs.
14.

The Jail’s central intake center is located within the 4th Avenue jail and

includes holding cells for general population inmates; isolation cells for those who need
to be isolated for their own protection, the protection of others, or medical reasons; and
safe cells for those deemed to be suicidal or homicidal. It has its own medical and mental
health care personnel and areas for these personnel to assess pretrial detainees
confidentially.
15.

The 4th Avenue jail has a central medical clinic located in the basement and

smaller clinics on the second, third, and fourth floors. The smaller clinics each have three
examination rooms and two offices. The central clinic includes a medication room, three
examination rooms, four offices, an x-ray area, a laboratory, a medical records room, and
a dental office. The central clinic provides medications administration, sick call, chronic
care clinics, outpatient psychiatric care, dental care, and radiology services.
16.

The Lower Buckeye jail has medical, mental health, and dental facilities,

which include a 60-bed infirmary, a 260-bed Mental Health Unit (“MHU”), an outpatient
clinic, and the health services administration office. The outpatient clinic has seven
offices, a two-chair dental office, a medical records room, two medication rooms, a
specimen processing area, and four examination rooms.
17.

The Towers, Estrella, and Durango jails also have outpatient clinics. The

Towers jail has an office, a medication room, a specimen processing area, two medical
examination rooms, and a mental health interview room. The Estrella jail has an office, a
dental office, a medical records room, a medication room, a specimen processing area,

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and four examination rooms. The Durango jail has two offices, a medical records area, a
medication room, a specimen processing area, and three examination rooms.
18.

Only physicians, physician assistants, and nurse practitioners are

considered medical providers.
19.

Only psychiatrists, psychiatric nurse practitioners, or physician assistants

are considered mental health providers.

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C.

Receiving Screening

20.

Paragraph 2 of the Third Amended Judgment provides:

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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.

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21.

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Pretrial detainees coming to the Maricopa County Jail are processed at the

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4th Avenue jail intake center, beginning with an initial screening by a correctional health

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technician who takes vital signs, measures weight, and identifies emergent situations

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requiring immediate assessment by a nurse or medical provider.

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22.

After the initial screening by a correctional health technician, a registered

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nurse performs the receiving screening. The registered nurse takes a second set of vital

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signs if the first set is abnormal or the pretrial detainee has reported or shown a new

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complaint during the time between the initial screening by a correctional health

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technician and the receiving screening.

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23.

Beginning on August 5, 2013, four days before the filing of this Motion to

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Terminate, an expanded electronic integrated health screen for the receiving screening

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was implemented. The new health screen seeks responses to more than 100 questions,

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including medication and pharmacy queries, and gathers a complete set of vital signs. It

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permits the registered nurse to document impressions of the arresting officer as well as
the registered nurse’s observations. It is designed to identify serious conditions including
medical, dental, mental health, suicidal risk, substance withdrawal, communicable
diseases, disability-related needs, and special diet needs. Plaintiffs agree that the new
health screen is very well designed.
24.

indicate they are currently taking prescribed medication, respond positively to medical or
mental health questions, or have abnormal vital signs. Almost half of inmates booked
each day are identified as needing further evaluation by a registered nurse.
25.

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At least one medical provider, i.e., a physician, physician assistant, or nurse

practitioner, is assigned to the intake center 24 hours a day, 7 days a week.
26.

The medical provider assigned to the intake center may also provide

services in the 4th Avenue central clinic, which is located close to the intake center.
27.

Sometimes the medical provider assigned to the intake center also provides

coverage for other facilities and is not physically present at the intake center.

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Registered nurses are expected to consult with all pretrial detainees who

Medical Care: Timely Identification, Assessment, and Placement
28.

If a pretrial detainee is identified during the intake process as suffering

from a serious health condition, such as diabetes, hypertension, hyperlipidemia,
pregnancy, or any other condition requiring special follow-up care, intake procedures
require the condition to be documented in the detainee’s electronic record with a chronic
care condition code and the detainee to be scheduled electronically for a medical
appointment.
29.

During the receiving screening, if a pretrial detainee reports a chronic

condition, the registered nurse may call a medical provider, i.e., a physician, physician
assistant, or nurse practitioner, with information regarding current vital signs, reported
prescription medications, and reported medical history so that the medical provider can
order medications, lab work, and follow-up appointments.

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30.

not wait to verify medications with pharmacies before ordering them. Some medications
that are kept in stock in the intake center, such as blood pressure medication, may be
administered by a registered nurse during the intake process. If a medical provider
prescribes a medication that is not kept in stock in the intake center, the pretrial detainee
may be sent to the clinic to begin the medication as soon as the receiving screening is
completed.

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At the time of the receiving screening, a medical provider may decide to

31.

When the receiving screening identifies a pretrial detainee as having a

serious acute or chronic medical condition, in most cases the pretrial detainee should be
seen by a medical provider on an emergency or urgent basis, no later than within 24
hours.
32.

Even when the receiving screening has indicated that pretrial detainees

should be seen by a medical provider, many pretrial detainees have not received timely
face-to-face examinations by a medical provider.
33.

After provider coverage at intake was increased to 24 hours a day, 7 days a

week in 2012, records do not show a substantial increase in the volume of face-to-face
examinations by a medical provider or their timeliness. After the increase in provider
coverage, there continued to be instances in which pretrial detainees with complicated
and serious medical needs were not assessed and treated by a medical provider within 24
hours after the receiving screening.
34.

If a medical provider determines that a pretrial detainee should not enter jail

because of his or her medical condition, such as for a head injury or wound likely to
require surgery, the medical provider may refuse to permit a pretrial detainee to be
processed further. Then the pretrial detainee would remain the responsibility of the
arresting officer.

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35.

Some pretrial detainees requiring medical stabilization are sent directly

from the intake center to a hospital emergency department for medical clearance or
hospital admission.
36.

Some pretrial detainees who are determined to be stable for jail but

requiring a higher level of care than available in the general population are sent directly
from the intake center to the infirmary.
37.

Many pretrial detainees present at the intake center with symptoms of

alcohol or drug abuse.
38.

Acute

alcohol

withdrawal,

acute

opiate

withdrawal,

and

acute

benzodiazepine withdrawal are potentially dangerous, particularly if the pretrial detainee
has a history of withdrawal seizures.
39.

After the receiving screening, if a pretrial detainee is determined to abuse

alcohol or drugs, have a history of withdrawal seizures, and be sufficiently medically
stable to come into jail, the medical provider assigned to the intake center usually sends
the pretrial detainee to the intake clinic to begin medications for withdrawal.
40.

Defendants have not shown that as of August 9, 2013, pretrial detainees

who presented with serious medical health needs at intake consistently were timely seen
face-to-face by a medical provider.
41.

Defendants have not shown that as of August 9, 2013, necessary treatment,

including laboratory studies, consistently was initiated for pretrial detainees who
presented with serious medical needs at intake.
42.

Defendants have not shown that as of August 9, 2013, the receiving

screening consistently identified pretrial detainees who are at risk of suffering serious
harm due to withdrawal from alcohol or drugs, and it resulted in timely medication,
treatment, and appropriate monitoring for them.

26
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7

43.

consistently were provided necessary medication without interruption during or following
intake.
44.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Defendants have not shown that as of August 9, 2013, pretrial detainees

who presented with serious medical health needs at intake consistently were timely
placed in units within the Maricopa County Jail or facilities outside the Jail that provided
access to adequate treatment.

8
9

Defendants have not shown that as of August 9, 2013, pretrial detainees

Mental Health Care: Timely Identification, Assessment, and Placement
45.

The new health screen improved upon the previous screening by (a)

expanding the substance abuse and mental health queries, including specific inquiry
regarding psychotropic medication, previous hospitalization, and suicidal ideation; and
(b) establishing a mental health “queue” system.
46.

Depending on a pretrial detainee’s responses to the new health screen, the

pretrial detainee may automatically be listed in one or more mental health “queues,” such
as for those possibly suicidal, designated Seriously Mentally Ill by the county public
mental health provider,3 currently on psychotropic medication, or refusing to answer
questions.
47.

The queues indicate the priority by which pretrial detainees should be seen

for further mental health assessment, including deciding whether a pretrial detainee
should be placed in a safe cell.
48.

CHS policy requires that if a pretrial detainee has a positive mental health

screening or does not respond to all of the mental health screening questions, the detainee
is referred for further evaluation by intake mental health staff, i.e., a mental health
assistant or mental health professional, not a mental health provider.

25
26
27

3

The term “seriously mentally ill” used elsewhere in this Order includes both
those designated as “Seriously Mentally Ill” by the county public mental health provider
and those identified by CHS as having serious mental illness.

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49.

Intake mental health staff determines a pretrial detainee’s level of acuity

based on review of the mental health screening and/or face-to-face contact with the
detainee. If appropriate, an order is written for mental health follow-up for either mental
health assessment or psychiatric evaluation within 24 hours, within 72 hours, within 7–10
days, or as scheduled.
50.

Timely mental health assessment is necessary to determine a pretrial

detainee’s mental health needs and to begin treatment. The most seriously mentally ill
detainees must be seen face-to-face by a mental health provider, i.e., a psychiatrist,
psychiatric nurse practitioner, or physician assistant, to begin to receive adequate care.
51.

A quality improvement study completed in October 2012 audited the charts

of 192 randomly selected inmates with a length of stay of at least 21 days and who had
received mental health services in the Jail between October 2010 and July 2012. Of the
192 charts reviewed, 98 documented that the inmate had been designated as seriously
mentally ill, and 184 included a completed mental health assessment.

The charts

indicated that 66% of the inmates were seen as scheduled after intake, 26% were not seen
as scheduled after intake, and 8% were identified as not in need of clinical follow up after
intake. It is unclear what percentage of seriously mentally ill detainees were not seen as
scheduled after intake and whether there were legitimate reasons for not seeing them as
scheduled.
52.

A substantial number of pretrial detainees who report they are taking

psychotropic medications at the time of booking may not be seen by any mental health
staff. A quality improvement study of a sample of 80 inmates booked in April 2012 with
a length of stay of at least 7 days and who admitted taking psychotropic medications
found that 49 of the 80 inmates (61.3%) received a mental health assessment and 43 of
the 49 (87.8%) were assessed within 7 days after booking. That is, only 43 of 80 inmates
who admitted taking psychotropic medications and remained in the Jail for at least 7 days

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received a mental health assessment within 7 days after booking, and 31 of 80 did not
receive a mental health assessment at all.
53.

Some pretrial detainees have been moved from the intake center to close

custody housing without clearance from a mental health provider that it is safe to do so.
54.

Some pretrial detainees who require psychiatric stabilization and/or are at

risk for suicide are sent directly from the intake center to the Mental Health Housing
Units (“MHU”). However, no quality improvement study or other evidence shows that
as of August 9, 2013, pretrial detainees who required psychiatric stabilization or were
identified as being at risk for suicide during the intake process consistently were timely
transferred to the MHU.
55.

On August 9, 2013, Magellan Health Services administered public

behavioral health services for Maricopa County.

Magellan’s records system for

monitoring its patients designated as Seriously Mentally Ill permitted the jail mental
health professionals to access a summary of diagnoses, prescription medications, and the
last date a medication was prescribed for pretrial detainees being treated through
Magellan. For those pretrial detainees, the system provided medication and diagnosis
verification without a release signed by the pretrial detainee.

On April 1, 2014,

responsibility for public behavioral health services in Maricopa County was transferred to
Mercy Maricopa Integrated Care.
56.

The system used to obtain information from Magellan cannot be used to

obtain treatment records for pretrial detainees receiving mental health treatment from
private providers or the Veterans Administration.
57.

From October 2010 through July 2012, the records of a substantial number

of pretrial detainees who reported a mental health treatment history did not include
signed releases of medical information. Defendants have not shown that as of August 9,
2013, pretrial detainees’ records included more signed releases, treatment records were
obtained without signed releases (e.g., through Magellan), or the records stated reasons

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for not obtaining a signed release, e.g., the detainee was physically unable to sign a
release.
58.

entering the Jail may not be receiving medication without interruption.

21
22
23
24
25
26

A quality

improvement study of 86 inmates booked in October 2012 who admitted taking
psychotropic medications during the receiving screening and who stayed in the Jail for at
least eight days showed that medication verification was initiated for 93% of the inmates,
it was completed for 73% of the inmates, and medication was ordered for 70% of the
inmates. Of the 60 inmates for whom medication was ordered, 52 received a psychiatric
evaluation, and 8 did not receive a psychiatric evaluation even though medication was
ordered. For those pretrial detainees who received medication, the average length of time
from booking to giving first medication was 4.2 days. Of the 26 patients for whom
medication was not ordered, the health records of 18 had no documented rationale for not
ordering medications.
59.

Defendants have not shown that as of August 9, 2013, pretrial detainees

who presented with serious mental health needs at intake consistently were timely
assessed by a mental health provider to initiate or continue necessary mental health
treatment, including continuation of psychotropic medications prescribed before arrest.

19
20

Pretrial detainees who were prescribed psychotropic medications before

Communicable Diseases: Identification, Segregation, and Treatment
60.

In 2006, the Centers for Disease Control and Prevention (“CDC”) updated

its guidelines for the prevention and control of tuberculosis (“TB”) in correctional and
detention facilities to include both short- and long-term confinement facilities.

A

disproportionately high percentage of TB cases in the United States occur among persons
incarcerated in correctional facilities.

TB is spread through the air, and immediate

isolation of infectious pretrial detainees can interrupt the spread of TB throughout a
facility.

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61.

The CDC recommends that facilities like the Maricopa County Jail screen

all new detainees on entry for symptoms of TB. Those with symptoms of TB should be
immediately placed in an Airborne Infection Isolation Room (negative pressure isolation
room) and evaluated promptly for TB. Those who are deemed infectious should remain
in isolation until treatment has rendered them noninfectious.
62.

The CDC recommends that detainees without symptoms of TB be further

screened within seven days of arrival by tuberculin skin testing, QuantiFERON-TB Gold
blood testing, or a chest x-ray.
63.

The CDC guidelines do not exempt detainees who had a previous negative

TB test on a prior jail admission.
64.

The CDC recommends that detainees known to have HIV infection, and

those at risk for HIV infection but whose HIV status is unknown, have a chest x-ray as
part of the initial screening.
65.

During the receiving screening at the Maricopa County Jail, pretrial

detainees are asked whether they have a history of TB or a positive TB skin test. If they
answer affirmatively, further questions are asked using a TB Symptom Assessment form.
66.

On December 6, 2013, Defendants reported their procedure requires that

inmates with a risk of TB and a positive symptom assessment at intake be provided a
mask and chest x-ray and be housed in the infirmary. If the symptom assessment is
negative, a chest x-ray is ordered unless there is a chest x-ray on file that is negative. A
registered nurse may initiate the chest x-ray based on the Medical Director’s standing
order. A provider subsequently reviews the chest x-ray result and orders any necessary
follow up visits. The standard procedure for all other inmates is to perform a skin test
coinciding with the initial health assessment 10-14 days after intake and repeat the skin
test annually.
67.

In 2014, Defendants presented testimony at trial stating that if the receiving

screening indicates that a pretrial detainee may have active TB, the pretrial detainee

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would be provided a mask and placed in a negative air flow room in isolation. A medical
provider would be contacted. The pretrial detainee would be transported to the infirmary
where the provider would write orders to do three sputum samples over a 24-hour period,
which are analyzed by the Maricopa County lab. If the sputum samples are positive, a
fourth sample usually would be collected and sent to the Arizona state lab for further
testing. At that point, the medical provider may begin treating the pretrial detainee with
medication.
68.

CHS policy requires all pretrial detainees to be provided a tuberculin skin

test between 10 and 14 days after the receiving screening to coincide with the detainee’s
initial health assessment and the skin test to be repeated annually.
69.

Although the initial health assessment is to be conducted within 14 days

after intake for most detainees, it is not conducted for (1) newly arriving detainees who
have had jail-administered initial health assessments within the previous year with no
change in health status and (2) detainees who received initial health assessments as part
of a hospitalization or prenatal care visit but may not have been tested for TB. .
70.

The CHS standard operating procedure for TB management and infection

control states that on September 13, 2013, CHS suspended the placement of routine TB
skin tests because of a nationwide shortage of the necessary testing material, and “only
high-risk individuals will be tested/screened based on a positive symptom assessment.”
71.

The Maricopa County Jail usually identifies about three cases of TB

annually.
72.

Defendants have not shown that as of August 9, 2013, pretrial detainees

consistently were tested for TB within 14 days after intake and the test results were
timely reviewed.
73.

Defendants have not shown that as of August 9, 2013, the receiving

screening resulted in the timely identification, segregation, and treatment of pretrial
detainees with TB.

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74.

latent TB to active TB.
75.

18
19
20
21
22
23
24
25
26

During the intake process, pretrial detainees are questioned regarding HIV

to determine if further evaluation is immediately necessary. If the pretrial detainee
answers that he is HIV positive or indicates an HIV risk, then the registered nurse
conducts an assessment and history. The nurse decides whether ordering chest x-rays for
pretrial detainees with HIV or who are at risk for HIV infection with unknown status
should be discussed with a medical provider. If the registered nurse’s assessment and
discussion with a medical provider indicate that a chest x-ray is required, a chest x-ray
may be ordered immediately based on the pretrial detainee’s symptomology.
76.

Pretrial detainees are tested for HIV with a blood test at the initial

assessment, which is to be conducted for most detainees 10 to 14 days after the receiving
screening.
77.

Defendants have not shown that as of August 9, 2013, timely chest x-rays

to screen for TB were consistently performed on pretrial detainees with HIV.

16
17

Concomitant HIV infection is a leading risk factor for the progression of

Sufficiency of the Receiving Screening
78.

Defendants have shown that the receiving screening recently has been

significantly improved by the expanded electronic integrated health screen, use of mental
health queues to prioritize additional assessment needs, registered nurses performing the
screening, and increased medical provider availability for the 4th Avenue intake center.
79.

Defendants have not shown that as of August 9, 2013, the receiving

screening is sufficient to identify and begin necessary segregation and treatment of those
with mental or physical illness and injury.
80.

Defendants have not shown that as of August 9, 2013, the receiving

screening results in timely face-to-face examination by a medical provider for pretrial
detainees presenting with serious medical and/or mental health conditions.

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81.

Defendants have not shown that as of August 9, 2013, the receiving

screening results in timely placement of pretrial detainees who presented with serious
medical and/or mental health needs at intake in units within the Maricopa County Jail or
facilities outside the Jail that provided access to adequate treatment.
82.

Defendants have not shown that as of August 9, 2013, the receiving

screening results in providing pretrial detainees necessary medication without
interruption.
83.

Defendants have not shown that as of August 9, 2013, the receiving

screening results in timely recognition, segregation, and treatment of pretrial detainees
with communicable diseases.
84.

Defendants have not proven compliance with Paragraph 2 of the Third

Amended Judgment as of August 9, 2013.
85.

The prospective relief ordered in Paragraph 2 of the Third Amended

Judgment 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 is
narrowly drawn and the least intrusive means to correct the violation.

17
18
19
20
21
22
23
24
25
26
27
28

D.

Ready Access to Needed Medical and Mental Health Care

86.

Paragraph 3 of the Third Amended Judgment provides:

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.
87.

Ready access to care to meet serious medical and mental health needs

means that pretrial detainees with serious medical and mental health needs will be seen
face-to-face by a medical or mental health provider, i.e., physician, psychiatrist,
physician assistant, or nurse practitioner, for timely diagnosis, treatment, and ordering of
lab tests, radiology, and prescription medication. In most cases, a pretrial detainee should
- 36  

1
2
3

be seen by a provider for follow up. Defendants have not shown that pretrial detainees
with serious medical and mental health needs consistently have ready access to care to
meet their serious medical and mental health needs.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Initial Health Assessments
88.

A CHS standard operating procedure revised September 13, 2013, states

that the physical examination portion of the initial health assessment must be completed
within 14 days of booking during the intake process, a scheduled physical exam, or the
first clinical visit. The physical examination may be completed by a physician, physician
assistant, nurse practitioner, or registered nurse who has completed the Certified Nurse
Examiner training. A physician reviews and signs the health assessments completed by
nurse practitioners, physician assistants, and registered nurses with Certified Nurse
Examiner training.
89.

On June 14, 2013, Defendants projected that when the Electronic Health

Record system was implemented, health assessments would be completed during the
intake process, and all pretrial detainees would be screened for TB within 7 days of
booking.
90.

Defendants state that registered nurses in the intake center refer all pretrial

detainees with serious acute and chronic medical conditions to a medical provider for
face-to-face evaluation in the intake center.
91.

Defendants state that pretrial detainees with serious medical needs are

proactively assessed and treated within 24 hours after the receiving screening, including
ordering and accessing basic laboratory tests.
92.

Defendants have not shown that pretrial detainees with serious medical

needs are proactively assessed and treated within 24 hours after the receiving screening,
including ordering and accessing basic laboratory tests.

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22

93.

screening, all pretrial detainees identified as having a significant acute or chronic medical
condition have initial health assessments.
94.

25
26
27

Pretrial detainees who were seen at a hospital within 14 days before

arriving at the Jail usually do not receive initial health assessments.
95.

Pretrial detainees readmitted to the Jail who had a health assessment within

the past 12 months and for whom the receiving screening shows no change in health
status usually do not receive initial health assessments.
96.

Pretrial detainees who do not receive an initial health assessment usually

will not be tested for TB because TB testing usually is performed concurrently with the
initial health assessment.
97.

Pretrial detainees who do not receive an initial health assessment usually

will not be tested for HIV and syphilis because HIV and syphilis testing usually is
performed on blood drawn at the initial health assessment.
98.

Registered nurses with Certified Nurse Examiner training perform the

majority of the initial health assessments.
99.

Registered nurses with Certified Nurse Examiner training are not qualified

to perform comprehensive assessment of serious medical conditions and plan treatment
and monitoring for serious medical conditions.
100.

Defendants have not shown that a medical provider performs the

comprehensive assessment and develops plans for treatment and monitoring for pretrial
detainees with serious medical conditions.

23
24

Defendants have not shown that within 24 hours after the receiving

Health Needs Requests
101.

Pretrial detainees needing or wanting to access care between appointments

and/or who did not identify health needs during intake may request an appointment via
the Health Needs Request (“HNR”) system. All HNRs are recorded electronically, along
with follow-up triage and appointments.

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9

102.

Defendants state that all medical HNRs are triaged within 24 hours.

103.

Defendants state that any pretrial detainee who submits a medical HNR

stating a clinical symptom is seen and evaluated by a nurse within 48 hours.
104.

triaged by mental health staff within 48 hours based on face-to-face assessments.
105.

12
13
14

clinical symptom is seen and evaluated by a nurse within 48 hours, and all mental health
HNRs stating a clinical symptom are triaged face-to-face within 48 hours.
Laboratory and Radiology Services
106.

17
18
19
20
21
22
23
24
25
26
27

Defendants have not shown that lab tests and radiological studies

consistently are timely performed after ordered by a provider.
107.

Defendants have not shown that the results of lab tests and radiological

studies consistently are available for review and reviewed on a timely basis.

15
16

Defendants have not shown that as of August 9, 2013, all medical HNRs

are triaged within 24 hours, any pretrial detainee who submits a medical HNR stating a

10
11

Defendants state that all mental health HNRs stating clinical symptoms are

Alcohol and Drug Withdrawal
108.

Alcohol and benzodiazepine withdrawal can be life threatening.

109.

Withdrawal from opiates is a serious medical need that generally causes

severe pain, which may be reduced by appropriate therapy.
110.

Both MCSO and CHS personnel are provided training regarding

recognition of withdrawal symptoms and procedures for reporting pretrial detainees
identified with withdrawal symptoms.
111.

MCSO is notified by CHS of a pretrial detainee’s need for heightened

monitoring via a notification form.
112.

Pretrial detainees identified during the receiving screening as being at risk

for alcohol or drug withdrawal are ordered to have withdrawal assessments twice a day
for seven days. These assessments include a full set of vital signs and a symptom
assessment completed by a registered nurse.

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4

113.

withdrawing pretrial detainees who require more intensive clinical service and
monitoring. Only male pretrial detainees who have general population classification can
be housed in the withdrawal unit at the Durango jail.

5
6

114.

9

115.

12
13

units to which they are assigned.
116.

16
17
18

withdrawal. Pretrial detainees receive medication based on the results of the COWS
assessments.
117.

21

Assessments (“CIWA”).

24
25
26
27

In 2013, CHS implemented the CIWA-b to better assess

benzodiazepine withdrawal symptoms distinguished from the CIWA-ar scale used to
assess alcohol withdrawal.
118.

CHS’s COWS and CIWA protocols are not designed as a substitute for the

clinical judgment of a physician and may be inadequate for pretrial detainees with
complex multisystem illnesses.

22
23

Pretrial detainees undergoing alcohol or benzodiazepine withdrawal at the

Durango jail receive medications based on their Clinical Institute of Withdrawal

19
20

In 2011, CHS implemented the Clinical Opiate Withdrawal Scale

(“COWS”) at the Durango jail to identify and assist pretrial detainees undergoing opiate

14
15

Defendants state that pretrial detainees undergoing withdrawal who are not

housed in the infirmary or the Durango withdrawal unit are monitored in the housing

10
11

The infirmary contains 60 beds, some of which can be assigned to pretrial

detainees undergoing severe withdrawal.

7
8

In April 2013, a housing area at the Durango jail was designated for

119.

Pregnant opiate-addicted pretrial detainees receive methadone via a Drug

Enforcement Agency (“DEA”) waiver secondary to medical necessity of the unborn
child.
120.

The federal government controls methadone licensing through a lengthy

process that CHS began in 2011. Although CHS has taken steps toward obtaining
methadone licensing, it does not yet have the ability to treat opiate-dependent patients,

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7
8

other than pregnant women, with methadone. CHS intends to continue its efforts to
obtain methadone licensing.
121.

Defendants have not shown that designating a housing area at the Durango

jail and the availability of bed space in the infirmary have resulted in pretrial detainees in
withdrawal who need more intensive clinical service and monitoring actually receiving it.
122.

Defendants have not shown that pretrial detainees in withdrawal who are

not placed in the Durango withdrawal unit or the infirmary consistently receive adequate
monitoring and treatment in their assigned housing units.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Medical Examination Following Use of Force
123.

MCSO Policy CP-1 regarding Use of Force applies to any deputy, detention

officer, reserve deputy, or posse member who is engaged in the performance of law
enforcement or detention duties for MCSO.
124.

Under MCSO Policy CP-1, before deciding whether to use force, officers

must consider whether there is an immediate threat to the officer or others; a subject is
resisting arrest or attempting to evade arrest by flight; the situation threatens the safety or
security of a jail’s operations; the situation is tense, uncertain, or rapidly evolving; and
the crime is severe.
125.

MCSO Policy CP-1 requires that an officer’s decision to use force or

control be based on the totality of the circumstances known to the officer at the time of
the incident, his training, and the subject’s actions. Considerations include the type of
resistance used by the subject.
126.

MCSO Policy CP-1 defines the actions an officer may use in an attempt to

control a subject: (a) the officer’s presence and identification of the officer’s authority;
(b) verbal direction; (c) soft, empty-hand control (“techniques that have minimal chance
of causing injury, such as escort position, handcuffing, and leg cuffs”); (d) hard, emptyhand control (“techniques that have a probability of causing injury such as closed fist
strikes, palm-heel strikes, kicks, and knee strikes”); (e) intermediate weapons and control

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3

(“force that has a probability of causing injury, but is unlikely to result in death, when
properly used”); (f) deadly force (“force that is likely to cause death or serious physical
injury”).

4
5
6

127.

medical treatment should be obtained when necessary.”
128.

11
12
13
14
15
16
17
18
19
20
21
22
23

129.

26
27

Following a use-of-force incident, if detention officers recognize that a

pretrial detainee has an injury, they take the pretrial detainee to medical staff unless the
pretrial detainee refuses and signs a medical refusal form. The officers’ perception of an
injury is to be recorded in the operations manual and in the separate, written use-of-force
report.
130.

In addition, following a use-of-force incident, a pretrial detainee may

submit a medical and/or mental health Health Needs Request.
131.

The unwritten practice is that an MCSO supervisor responds to every use of

force incident and the involved officer is moved away from the location of the incident.
132.

Every month a committee that includes the commanders of all Jail facilities

meets to review all use-of-force reports to determine whether procedures are being
followed and, if not, what additional training is needed.
133.

On this record, MCSO’s use-of-force policy and practices do not deny

pretrial detainees ready access to adequate medical, dental, or mental health care as
required by Paragraph 3 of the Third Amended Judgment.

24
25

MCSO Policy CP-1 leaves to the discretion of detention officers whether to

request a medical examination for a pretrial detainee on whom force has been used.

9
10

“Officers should determine whether an

individual has sustained any injury as a result of the use of force or control. Appropriate

7
8

MCSO Policy CP-1 states:

Copayment Policy
134.

MCSO Policy DQ-1 states that inmates may be charged a copayment for

each non-emergency medical service (including dental and mental health care) requested
by an inmate and provided by CHS and a copayment for each prescription that is written.

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135.

Under the heading “Non-Emergency Medical Treatment,” MCSO Policy

DQ-1 states: “All inmates will receive the same level of healthcare, regardless of their
ability to pay.”
136.

A.R.S. § 31-161 permits MCSO to charge a reasonable fee or copayment of

not more than ten dollars for each inmate-initiated health service that is provided; for
each medical visit to a physician that is referred by a physician, physician assistant, or
nurse practitioner; or for prescription drugs that CHA dispenses to an inmate. The statute
provides, “An inmate shall not be refused health services for financial reasons.”
137.

CHS Policy J-A-01 regarding access to care states that CHS schedules a

health care visit for any inmate who requests health care without regard for ability to pay.
138.

The CHS list of copayment charges, effective July 1, 2013, set the amount

of copayment at $5.00 for nursing assessments and general health medications (each
medication and each refill). It set the amount at $10.00 for seeing a medical doctor, nurse
practitioner, physician assistant, dentist, and specialty provider. It also set the amount at
$10.00 for admission to a hospital, the infirmary, or the MHU. Although the list of
charges does not say copayment will be charged only on inmate-initiated services, it does
say that no one will be denied care based on their ability to pay for services and that the
copayment will occur “if you have money in your inmate fund account.”
139.

The MCSO Inmate Rules and Regulations, which are provided in English

and Spanish to inmates at booking, state: “There is no charge for care that the medical
staff or mental health services staff initiates.”
140.

The MCSO Inmate Rules and Regulations also state: “You WILL NOT

BE REFUSED health care services because you are indigent. The medical staff has no
knowledge of your account balance.”
141.

The MCSO Inmate Rules and Regulations also inform inmates that, if a

copayment is charged, it will be deducted from the inmate’s Inmate Fund Account. If an
inmate’s account does not have sufficient funds to cover the copayment, a record of

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balance due will be kept, and the amount owed will be deducted when money is
deposited into the account.
142.

Inmates may purchase food from the Canteen, which is in addition to meals

provided for all inmates. Canteen charges are paid from Inmate Fund Accounts. The
MCSO Inmate Rules and Regulations caution inmates that when ordering from the
Canteen, they should keep in mind that any health care copayments will be deducted
from their Inmate Fund Accounts.
143.

If a pretrial detainee has money in his Inmate Fund Account, he may be

charged a copayment for non-emergency medical, dental, and mental health services and
for prescription medications that he requests, which may reduce the amount that he can
spend at the Canteen.
144.

If a pretrial detainee does not have money in his Inmate Fund Account, he

will not be denied non-emergency medical, dental, and mental health services and
prescriptions.
145.

If a pretrial detainee who has money in his Inmate Fund Account avoids

seeking non-emergency medical, dental, and mental health services and prescriptions
because he prefers to spend money at the Canteen, he may do so, just as he is able to do
outside of the Maricopa County Jail.
146.

Most of pretrial detainees’ serious medical, dental, and mental health

conditions that are likely to cause serious illness and needless suffering should be
identified during the receiving screening or initial health assessment. Therefore, most of
the constitutionally required medical and mental health services should be initiated by
CHS staff, not by pretrial detainees.
147.

On this record, the MCSO/CHS copayment policies and practice do not

deny pretrial detainees ready access to adequate medical, dental, or mental health care as
required by Paragraph 3 of the Third Amended Judgment.

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Mental Health Care: Access to Adequate Care
148.

CHS employs different levels of mental health staff at the Jail. Mental

health professionals are licensed professional counselors or licensed social workers.
They review and triage mental health Health Needs Requests submitted by inmates and
referrals made by detention staff and medical providers. They also perform mental health
assessments, specialized treatment planning, re-entry planning, and individual and group
counseling. Mental health associates work under the supervision of a mental health
professional and primarily perform functions related to re-entry planning. Psychologists
provide services for pretrial detainees with more complex needs, but do not prescribe
medications.
149.

Psychiatrists are physicians with an M.D. or D.O. degree, who provide

psychiatric evaluations and prescribe psychiatric medications. CHS nurse practitioners
and physician assistants provide the same functions.
150.

Mental health office assistants obtain inmates’ records and prescription

verifications from outside the Jail and assist in scheduling appointments for inmates.
151.

The term “mental health provider” refers to a psychiatrist, psychologist,

psychiatric physician assistant, or a psychiatric nurse practitioner.
152.

Defendants state that pretrial detainees who submit a mental health Health

Needs Request stating clinical symptoms are assessed face-to-face by mental health staff
within 48 hours.
153.

The Maricopa County Jail provides multiple types of mental health care for

pretrial detainees housed in general population units, segregation or close custody units,
the infirmary, and the Mental Health Unit at the Lower Buckeye jail.
154.

Defendants have created areas in each jail facility in which mental health

appointments can be conducted with sound privacy.
155.

Medication management, individual therapy, group therapy, cognitive

restructuring group, release planning group, and other forms of psychosocial treatment

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are provided through outpatient clinics for pretrial detainees placed in general population
housing.
156.

Pretrial detainees who are classified as close custody, administrative

segregation, disciplinary segregation, or Special Management Unit do not have access to
all of the mental health treatment programs available to those in the general population.
However, they may receive psychiatric prescription medication, psychiatric medication
management by a psychiatrist, and individual psychological counseling, and they may
participate in programs that involve handouts and worksheets, such as for substance
abuse or personal growth.
157.

When mental health providers are in the segregated housing units, they

provide care in the anteroom of the cells, which provides sound privacy, but not visual
privacy. The providers are given an MCSO radio to ensure that the detention staff can be
contacted when needed, but detention staff does not remain within earshot of the
treatment.
158.

The most seriously mentally ill inmates and those determined to be at risk

of harming themselves or others are housed in the Mental Health Unit at the Lower
Buckeye jail.
159.

All of the cells in the Mental Health Unit are single cells.

160.

The Mental Health Unit is not a licensed inpatient psychiatric hospital.

161.

Pretrial detainees who need inpatient psychiatric care may be placed in the

Mental Health Unit while CHS staff attempts to get them admitted to the state psychiatric
hospital.

Although Defendants cannot control whether pretrial detainees who need

inpatient psychiatric care will be admitted to the state psychiatric hospital, Defendants are
responsible for identifying those detainees and making reasonable efforts to obtain their
admission to the state psychiatric hospital.
162.

The Mental Health Unit includes subunits for different levels of care,

including acute, sub-acute, and stepdown treatment subunits. A stepdown placement is

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interim housing where treatment can continue until the inmate is sufficiently stable to
move to general population housing.
163.

Group programs are provided in the treatment subunits of the Mental

Health Unit.
164.

Some pretrial detainees are transferred directly from an acute unit to

general population housing without transition placement within the Mental Health Unit,
they are not stable enough to remain in general population housing, and they are
transferred back to the Mental Health Unit.
165.

CHS requires that pretrial detainees transferred out of the Mental Health

Unit be seen by a mental health provider within 24–48 hours after the transfer.
166.

One subunit of the Mental Health Unit houses inmates classified at a

security level greater than general population regardless of their level of acuity.
167.

In May and June 2010, therapeutic cubicle spaces were built in two

subunits of the Mental Health Unit in which mental health providers can conduct group
therapy sessions with high security or mixed classification pretrial detainees.
168.

Evaluating a pretrial detainee’s mental health condition, developing or

modifying the pretrial detainee’s treatment plan, and deciding when a pretrial detainee
should be placed in or discharged from a specific facility to obtain appropriate mental
health care must be performed by a mental health provider after the provider has assessed
the pretrial detainee face-to-face in space that at least provides sound privacy.
169.

Many pretrial detainees with serious mental health needs do not remain in

the Jail long enough to receive a full psychiatric evaluation, but every pretrial detainee
with a mental health condition identified as urgent by detention, intake, medical, or
mental health staff can and must be seen face-to-face by a mental health provider within
24 hours of identification.
170.

Although there are criteria for placement in each level of mental health

care, including subunits within the Mental Health Unit, Defendants have not shown that

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the placement criteria are clearly articulated in writing and consistently and timely
applied.
171.

placement of each pretrial detainee needing mental health care after the provider has
performed a face-to-face assessment, especially for admission into and discharge from
the Mental Health Unit.
172.

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Defendants have not shown that pretrial detainees placed in acute units of

the Mental Health Unit are provided sufficient opportunity to become clinically stable in
stepdown treatment units before they are transferred out of the Mental Health Unit.
173.

Defendants have not shown that pretrial detainees transferred out of the

Mental Health Unit are assessed by a mental health professional or provider within 24–48
hours after the transfer.
174.

Defendants have not shown that a mental health provider timely assesses

face-to-face each pretrial detainee with a mental health condition identified as urgent by
detention, intake, medical, or mental health staff.
175.

Defendants have not shown that pretrial detainees who submit mental

health Health Needs Requests stating clinical symptoms are assessed face-to-face by
mental health staff within 48 hours.

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Defendants have not shown that a mental health provider determines the

Mental Health Care: Segregation/Isolation
176.

Many pretrial detainees in the Maricopa County Jail are housed in single

cells with limited or no time outside of their cell and limited or no interaction with other
people during a 24-hour day.
177.

The longer a pretrial detainee with mental illness is in isolation, the greater

the risk the pretrial detainee’s mental condition will deteriorate.
178.

The record does not show how many pretrial detainees are placed in

segregated confinement for specific lengths of time or how many of those have or
possibly have serious mental illness.

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179.

Mental health staff is not consulted before a pretrial detainee identified as

having serious mental health needs is classified by detention staff as close custody or
administrative segregation.
180.

Weekly mental health rounds in segregation are conducted for pretrial

detainees identified as having serious mental health needs to identify adverse effects of
segregation on their mental health status. The record does not show how often pretrial
detainees identified as having serious mental illness and placed in segregation actually
are assessed by a mental health professional and seen face-to-face by a mental health
provider.
181.

Some pretrial detainees do not manifest symptoms of serious mental illness

until after placement in segregated confinement.
182.

Pretrial detainees placed in segregated confinement are not provided mental

health assessments if they have not been identified as seriously mentally ill, but they may
submit mental health HNRs and/or detention staff may refer them for mental health care.
183.

In the Mental Health Unit, pretrial detainees confined to an intake, acute, or

suicide watch subunit remain in their cells 24 hours a day, except when taken out for a
health care assessment or treatment. Pretrial detainees in sub-acute units are offered
recreation and use of a dayroom alone for one hour daily. Pretrial detainees in a close
custody subunit are permitted no contact with other inmates and are moved from cells
only in leg restraints and handcuffs, escorted by two officers. In the stepdown treatment
subunits, pretrial detainees are allowed out of their cells for seven hours a day and can
have contact with other inmates.
184.

Defendants have not shown that pretrial detainees are timely transferred

from more restrictive to less restrictive subunits of the Mental Health Unit when their
mental health condition permits.

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185.

week would mitigate the risks of isolation inherent in segregated confinement for pretrial
detainees with serious mental illness.

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186.

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communication with mental health staff at least twice per week.
187.

segregated confinement.
Mental Health Care: Involuntary Treatment/Use of Force

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188.

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Involuntary treatment includes the use of restraints, the use of seclusion,

and forced medication, which can place pretrial detainees at substantial risk of serious
harm.
189.

Mental health staff have specialized training that makes them especially

equipped to de-escalate a potential confrontation with detention staff and avoid the need
for use of force or involuntary treatment.
190.

Some use of force incidents arise because of a mental health order and can

be avoided by the provider modifying the order.
191.

Defendants have not shown that a mental health provider or professional is

consulted before each planned involuntary treatment or use of force on a seriously
mentally ill pretrial detainee.
192.

Defendants have not shown that mental health staff is involved in the

implementation of any planned involuntary treatment or use of force on a seriously
mentally ill pretrial detainee.

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26

Defendants have not shown that mental health staff is consulted before a

pretrial detainee identified as being seriously mentally ill is placed in any type of

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Defendants have not shown that seriously mentally ill pretrial detainees

who are confined to single cells for 22 or more hours a day have face-to-face

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Face-to-face communication with mental health staff at least twice per

Mental Health Care: Discipline
193.

Seriously mentally ill pretrial detainees should not be disciplined for

behavior resulting from mental illness without the approval of a mental health provider.

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194.

a disciplinary sanction.
195.

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The fact that a pretrial detainee has not been designated Seriously Mentally

Ill by the county public mental health provider does not mean the pretrial detainee does
not have serious mental illness.
196.

Defendants do not have a written policy regarding the use of discipline for

behavior resulting from serious mental illness.
197.

Defendants do not have a written policy regarding the use of isolation in a

disciplinary segregation unit as a sanction against pretrial detainees with serious mental
illness.
198.

Defendants do not require that mental health staff be consulted regarding

discipline of a pretrial detainee identified as having serious mental illness.

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Seriously mentally ill pretrial detainees should not be placed in isolation as

Mental Health Care: Suicide Prevention
199.

Five inmates housed in the Maricopa County Jail died from suicide each

year in 2009, 2010, and 2011. In 2012, there were no deaths by suicide in the Jail. In the
first eight months of 2013, two inmates died from suicide.
200.

The receiving screening performed by a registered nurse at intake includes

questions regarding whether the inmate is suicidal, has ever attempted suicide in the past,
or has a family history of suicide, and includes questions to follow any positive
responses. It includes asking the arresting officer whether the individual appears to be at
risk to self or others and documenting the registered nurse’s observations.
201.

If an inmate indicates that he attempted suicide within the past year,

receiving screening procedures require that mental health staff see him while he is in the
intake center.
202.

If an inmate indicates that he has attempted suicide, but not within the past

year, receiving screening procedures require the registered nurse to schedule a follow-up

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appointment in an outpatient clinic within 24 hours unless mental health staff can see him
while he is in the intake center.

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203.

Mental health staff decides whether an inmate should be placed in a safe

204.

Defendants have not shown that mental health staff consistently assesses

cell.

each pretrial detainee discharged from a safe cell within 24 hours of discharge.
205.

MCSO Policy DA-5 states that certain signs and symptoms can often

foretell a possible suicide attempt and directs detention officers to err on the side of
caution by alerting CHS staff immediately if they have any doubt about whether an
inmate is suicidal.
206.

MCSO Policy DA-5 states that most suicides occur within the first 48 hours

of incarceration.
207.

MCSO Policy DA-5 also states: “Isolation greatly increases the likelihood

of suicide; therefore, a potentially suicidal inmate shall never be placed into isolation
unless the inmate is constantly supervised.”
208.

MCSO Policy DA-5 provides: “If officers have a reason to believe that an

inmate may be suicidal, they shall take immediate action which includes, but is not
limited to” reporting any signs or symptoms immediately to CHS staff, removing the
inmate’s clothing and placing the inmate in a suicide-resistant blanket or smock, and
placing the inmate into a suicide-resistant cell or safe cell with “direct, continuous
observation until a treatment plan is determined by medical staff.”
209.

MCSO Policy DA-5 requires that all jail personnel who interact with

inmates be trained regarding understanding, identifying, and managing suicidal inmates.
It further requires that personnel involved in making decisions about the initiation of a
suicide watch complete more specialized training provided by a licensed mental health
professional using curriculum approved by CHS.

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210.

requirements that a potentially suicidal inmate never be placed into isolation unless the
inmate is constantly supervised and that a potentially suicidal inmate is placed into a
suicide-resistant cell or safe cell only with “direct, continuous observation until a
treatment plan is determined by medical staff.”

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Mental Health Care: Specialized Training for Detention Officers
211.

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Defendants provide training for detention officers related to mental illness

and suicide prevention. The training provides general awareness of these subjects, but
does not—and should not—train detention officers to substitute for mental health staff.
212.

Detention officers perform an important role in identifying pretrial

detainees who are at risk and referring them to mental health staff for prompt assessment.
213.

Detention officers perform a critical role in maintaining institutional

security and protecting the safety of pretrial detainees and others, especially during
planned and unplanned uses of force, suicide prevention, and disciplinary actions.
214.

Whenever policies or procedures regarding planned and unplanned uses of

force, suicide prevention, disciplinary actions, and communications between MCSO and
CHS staff regarding pretrial detainees with mental illness are adopted or amended,
Defendants must continue to train both MCSO and CHS staff to implement them.

19
20

Defendants have not shown that they comply with MCSO Policy DA-5’s

Ready Access to Needed Medical and Mental Health Care
215.

Defendants have not proven compliance with Paragraph 3 of the Third

Amended Judgment as of August 9, 2013.
216.

The prospective relief ordered in Paragraph 3 of the Third Amended

Judgment 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 is
narrowly drawn and the least intrusive means to correct the violation.

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E.

Prescription Medications Without Interruption

217.

Paragraph 4 of the Third Amended Judgment provides:
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Defendants shall ensure that the pretrial detainees’ prescription medications
are provided without interruption where medically prescribed by
correctional medical staff.
218.

The CHS intake process requires all inmates taking prescription

medications to be seen by a registered nurse, and medication verification to be initiated.
219.

Defendants attribute some past delay in medication verification to not

having a mental health office assistant on weekends, but now weekend staffing has been
added for the purpose of obtaining inmate medical and mental health records.
220.

During the intake process, some inmates do not report they have been

prescribed medications, some report medications they have not been taking recently, and
some cannot identify a pharmacy or provider who can verify their prescriptions. Some
pharmacies and providers do not respond promptly to prescription verification requests.
221.

In some cases, medications have not been timely ordered at intake, and

medications have been discontinued at intake without documenting a reason for doing so.
222.

The new health screening process may have increased the likelihood that

medications are provided without interruption unless clinically justified, but Defendants
have not produced evidence of that yet.
223.

The newly implemented Electronic Health Records system likely has or

will result in more information being documented in pretrial detainees’ health records,
but Defendants have not produced evidence of that yet.
224.

Pretrial detainees’ health records should show timely administration of

prescription medications or reasonably diligent efforts to administer all medications
prescribed. If a medication is not administered as prescribed, a detainee’s health record
should show whether the detainee signed a written refusal form, affirmatively refused
verbally or nonverbally, did not appear for medication administration without
explanation, or did not appear for medication for known reasons, such as a court
appearance.

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225.

Even when prescriptions have been verified, there may be clinical reasons

for a medical or mental health provider to modify or discontinue a pretrial detainee’s
previous prescription. Pretrial detainees’ records should include the provider’s clinical
reasons for each prescription modification and discontinuance.
226.

Psychotropic medications should not be prescribed, altered, renewed, or

discontinued without a face-to-face examination by a mental health provider in an area
that affords sound privacy.
227.

CHS requires quarterly audits of placement of inmates on psychotropic

medications and timely renewal of medications, but Defendants have not shown that
psychotropic medications are administered without interruption.
228.

CHS conducted a psychotropic medication audit for a sample of 81 inmates

who were booked in July 2013, admitted to taking psychotropic medications, and
remained in the Jail for at least 7 days. Of the 81 inmates in the sample, 66 (81%) had
medication verification initiated, 54 (67%) had the medication verification completed, 52
(64%) received a psychiatric evaluation, and the average number of days from booking to
psychiatric evaluation for the 52 who received a psychiatric evaluation was 4.8. Of the
49 inmates for whom medication was ordered, 45 received a psychiatric evaluation. Of
the 32 health records of the inmates for whom medication was not ordered, 8 contained
rationale for not ordering medication and 24 did not.
229.

Defendants have not proven compliance with Paragraph 4 of the Third

Amended Judgment as of August 9, 2013.
230.

The prospective relief ordered in Paragraph 4 of the Third Amended

Judgment 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 is
narrowly drawn and the least intrusive means to correct the violation.

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F.

Electronic Records Management

2

231.

As of August 2013, CHS used its electronic Jail Management System to

3

manage medical records, track inmate locations for pretrial detainees with medical needs,

4

and produce reports necessary for health care staff and detention officers to provide

5

access to adequate health care until the permanent Electronic Health Records system was

6

fully implemented.

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232.

The Jail Management System included urgency codes to triage inmates and

8

electronically schedule appointments.

9

prioritize appointments.

10

233.

It generated a daily schedule to manage and

The Electronic Health Records system includes the expanded electronic

11

integrated health screen that identifies serious conditions and veterans, which was

12

implemented at the 4th Avenue intake center on August 5, 2013.

13
14

234.

The Electronic Health Records system tracks HNRs, including date of

submission, date triaged, and date the inmate was seen.

15

235.

In 2013 CHS purchased 80 laptop computers that nursing staff can use with

16

the Electronic Health Records system during medication passes so that medication

17

administration can be tracked in real-time.

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236.

In August 2013, CHS completed its wireless network.

19

237.

In September 2013, the Electronic Health Records system was fully

20

implemented in all Jail facilities.

21

238.

An electronic health records system is not itself constitutionally required,

22

but managing the health records, housing locations, HNRs, prescriptions, appointment

23

scheduling, and necessary follow up for thousands of pretrial detainees to ensure ready

24

access to health care and continuity of medications likely would be impossible without

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one.

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239.

Remedies that will be ordered require Defendants to collect and summarize

data showing they have implemented certain policies and procedures. Defendants may,
but are not required to, obtain the data from the Electronic Health Records system.
G.

Remedies

240.

Defendants have had adequate opportunity to propose remedies for current

and ongoing Jail policies and practices that Plaintiffs contend violate constitutional
requirements, respond to Plaintiffs’ proposed remedies for those constitutional violations,
and show whether any of the challenged Jail policies and practices are reasonably related
to legitimate governmental objectives, such as Jail security and the safety of inmates or
staff. Defendants had those opportunities for nearly five years before they filed this
Motion to Terminate.
241.

Having found constitutional violations, the Court may not allow

constitutional violations to continue merely because remedies intrude into functions of
prison administration, and Defendants’ history of noncompliance with prior orders
justifies greater court involvement than usually permitted.
242.

Having found constitutional violations, the Court will order remedies that

do not exactly track constitutional standards but that are practical measures necessary to
correct constitutional violations.
243.

For each constitutional violation found, Defendants will be ordered to (1)

adopt new policies or amend existing policies within 60 days as specifically ordered, (2)
implement the new or amended policies within 150 days, (3) collect and summarize
compliance and results/outcome data for a period of 180 days after implementation of the
new or amended policies, and (4) report to the Court and to Plaintiffs documentation of
their completion of each of the three preceding requirements within 15 days after each
deadline.
244.

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

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current and ongoing violation of Plaintiffs’ constitutional rights, and Court-ordered relief
may be terminated before the PLRA permits another motion to terminate. 18 U.S.C.
§ 3626(b)(1).

4

H.
245.

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8
9

Fourth Amended Judgment to Be Entered
Based on the foregoing findings of fact and conclusions of law,

Defendants’ motion to terminate the Third Amended Judgment will be denied, and
additional prospective relief will be ordered to remedy ongoing constitutional violations.
The Court will enter by separate document a Fourth Amended Judgment that restates the
Third Amended Judgment and adds the specific relief required by this Order.

10

I.
246.

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Attorney Fees
Pursuant to 42 U.S.C. § 1988(b) for the award of attorney fees, Plaintiffs

12

are the prevailing party on Defendants’ Motion to Terminate Third Amended Judgment

13

on Behalf of Correctional Health Services (Doc. 2142).

14

247.

Subject to the limitations of 42 U.S.C. § 1997e(d), Plaintiffs are entitled to

15

award of attorney fees incurred in defending against the Motion to Terminate. Fees may

16

be claimed under the procedures in Fed. R. Civ. P. 54(d)(2) and LRCiv 54.2 upon entry

17

of this Order. If enforcement proceedings become necessary, future fees may be claimed

18

and will be determined and awarded at appropriate intervals during the enforcement

19

proceedings.

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V.

ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS ORDERED that Defendants Fulton Brock, Don Stapley, Andrew Kunasek,

Max Wilson and Mary Rose Wilcox’s Motion to Terminate Third Amended Judgment on
Behalf of Correctional Health Services (Doc. 2142) is denied.
IT IS FURTHER ORDERED:
1.

By December 1, 2014, Defendants will adopt policies and procedures or
amend existing policies and procedures to require the following:

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a.

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pretrial detainee processed in the 4th Avenue jail intake center.
b.

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physician assistant, or nurse practitioner will conduct a face-to-face

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examination of the pretrial detainee within 24 hours after the

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receiving screening.
c.

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Airborne Infection Isolation Room and evaluated promptly for

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tuberculosis.
d.

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status, a chest x-ray of the pretrial detainee will be performed and

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the results reviewed by a physician, physician assistant, or nurse

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practitioner before the pretrial detainee is placed in a housing unit.
e.

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detainee will be assessed by mental health staff while the pretrial

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detainee is in the intake center. The mental health staff will identify

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the urgency with which the pretrial detainee must be seen by a

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mental health provider, i.e., a psychiatrist, psychiatric nurse

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If a pretrial detainee has a positive mental health screening or does
not respond to all of the mental health screening questions, the

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If the receiving screening indicates a pretrial detainee is known to
have HIV infection or is at risk for HIV infection with unknown

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If the receiving screening indicates a pretrial detainee has symptoms
of tuberculosis, the pretrial detainee immediately will be placed in an

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If the receiving screening indicates a pretrial detainee is suffering
from a serious acute or chronic health condition, a physician,

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A registered nurse will perform the receiving screening for each

practitioner, or physician assistant.
f.

If the receiving screening indicates a pretrial detainee is at risk for
suicide, a psychiatrist, psychiatric nurse practitioner, or physician
assistant will conduct a face-to-face assessment of the pretrial
detainee within 24 hours after the receiving screening.

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g.

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the receiving screening unless they have been tested with negative

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results within the past year.
h.

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an initial health assessment within 24 hours after the receiving

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screening.
i.

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j.

k.

within 48 hours of submitting the Health Needs Request.
l.

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nurse practitioner will identify the urgency with which the test or

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study must be performed, e.g., within 24 hours, 72 hours, or 7–10

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days, and the urgency with which the results of the test or study must

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be returned.

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The test or study will be performed within the

timeframe ordered by a physician, physician assistant, or nurse

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When a physician, physician assistant, or nurse practitioner orders a
lab test or radiological study, the physician, physician assistant, or

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Each pretrial detainee who submits a medical Health Needs Request
stating or indicating a clinical symptom will be seen by a nurse

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All medical Health Needs Requests will be triaged within 24 hours
of their submission.

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A medical provider will develop plans for treatment and monitoring
for pretrial detainees with serious medical conditions.

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Pretrial detainees with serious acute and chronic medical conditions
will be evaluated face-to-face by a medical provider and will receive

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Pretrial detainees will be tested for tuberculosis within 14 days after

practitioner.
m.

Pretrial detainees identified during the receiving screening as being
at risk of serious harm from alcohol or drug withdrawal will be
assessed by a registered nurse twice a day for at least seven days
regardless of whether they are assigned to a housing unit designated
for withdrawing inmates or their classification status. The nurse will

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document each assessment and identify the urgency with which the

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pretrial detainee should be seen by a physician, physician assistant,

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or nurse practitioner. If a pretrial detainee is not seen face-to-face by

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a physician, physician assistant, or nurse practitioner within the

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timeframe recommended by the nurse, the reason will be

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documented in the pretrial detainee’s medical record.
n.

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clinical symptom will be triaged face-to-face within 48 hours of their

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submission.
o.

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face-to-face by a mental health provider within 24 hours of the

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identification.
p.

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are legitimate safety, security, and treatment reasons for not doing

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so.
q.

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subunits within the Mental Health Unit.
r.

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face assessment, including upon admission into, transfer within, and

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A mental health provider will determine the placement of each
seriously mentally ill pretrial detainee after performing a face-to-

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Defendants will adopt and implement written criteria for placing
pretrial detainees in each level of mental health care, including

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Mental health providers will assess pretrial detainees in an area
outside of their cells that affords sound privacy except when there

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Pretrial detainees with a mental health condition identified as urgent
by detention, intake, medical, or mental health staff will be seen

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All mental health Health Needs Requests stating or indicating a

discharge from the Mental Health Unit.
s.

Pretrial detainees discharged from the Mental Health Unit will be
assessed by mental health staff within 48 hours after discharge.

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t.

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seriously mentally ill pretrial detainee in any type of segregated

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confinement.
u.

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communication with mental health staff at least twice per week.
v.

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mentally ill pretrial detainee.
w.

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ill pretrial detainee.
x.

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15

y.

against seriously mentally ill pretrial detainees.
z.

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mentally ill pretrial detainee.
aa.

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25

Defendants will adopt and implement a written policy requiring that
mental health staff be consulted regarding discipline of any seriously

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Defendants will adopt and implement a written policy regarding the
use of isolation in a disciplinary segregation unit as a sanction

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Defendants will adopt and implement a written policy regarding the
use of discipline for behavior resulting from serious mental illness.

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Mental health staff will be involved in the implementation of any
planned use of force or involuntary treatment on a seriously mentally

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13

A mental health provider or professional will be consulted before
each planned use of force or involuntary treatment on a seriously

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Seriously mentally ill pretrial detainees who are confined to single
cells for 22 or more hours a day will have face-to-face

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MCSO will consult with CHS mental health staff before placing a

A potentially suicidal pretrial detainee will not be placed in isolation
without constant supervision.

bb.

A potentially suicidal pretrial detainee will be placed into a suicideresistant cell or safe cell only with “direct, continuous observation
until a treatment plan is determined by medical staff.”

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cc.

2

cell, the pretrial detainee will be assessed by mental health staff

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within 24 hours of discharge.

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dd.

5

reasonably diligent efforts to administer all medications prescribed

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and explanation for any delay.

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ee.

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examination by a psychiatrist, psychiatric physician assistant, or

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psychiatric nurse practitioner in an area that affords sound privacy.
2.

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specific policy provisions that demonstrate compliance.
3.

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and making facility modifications, as needed.
4.

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5.

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Beginning March 2, 2015, Defendants will collect and summarize data for
a period of 180 days that shows the extent to which Defendants are

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By March 16, 2015, Defendants will file with the Court a summary of
actions taken to implement each of the policies.

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By February 27, 2015, Defendants will fully implement each of the
policies ordered herein, including hiring additional staff, providing training,

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20

By December 16, 2014, Defendants will file with the Court a copy of each
policy adopted or amended to comply with this Order and identify the

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A pretrial detainee’s psychotropic medications will not be
prescribed, altered, renewed, or discontinued without a face-to-face

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15

Defendants will document in pretrial detainees’ health records
evidence of timely administration of prescription medications or

6

12

When a pretrial detainee is discharged from suicide watch or a safe

complying with this Order.
6.

On September 15, 2015, Defendants will file with the Court a report of the
data collected and summarized in compliance with this Order.

IT IS FURTHER ORDERED that, for the convenience of the parties, those
provisions of the Third Amended Judgment that remain in effect and the additional

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prospective relief granted by this Order are restated in the Fourth Amended Judgment
entered this day.
Dated this 30th day of September, 2014.

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