Graves, et al v. Arpaio, et al
Filing
2298
ORDER that Plaintiffs' Motion for Reconsideration (Doc. 2287 ) is granted in part. FURTHER ORDERED that the Revised Fourth Amended Judgment (Doc. 2299 ) filed concurrently with this Order shall supersede the Fourth Amended Judgment (Doc. 2284 ) and have continuing effect. See order for complete details. Signed by Judge Neil V. Wake on 12/10/14. (NKS)
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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,
No. CV-77-00479-PHX-NVW
ORDER
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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Before the Court is Plaintiffs’ Motion for Reconsideration (Doc. 2287) of five
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remedial provisions of the Fourth Amended Judgment (Doc. 2284). Having considered
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briefing by both sides, the Court will revise one paragraph of the Fourth Amended
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Judgment. The deadlines imposed by the Fourth Amended Judgment are not changed.
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1.
Timely Provider Assessments of Seriously Ill Detainees at Intake
(¶ 5(a)(2))
Paragraph 5(a)(2) of the Fourth Amended Judgment states:
If the receiving screening indicates a pretrial detainee is suffering from a
serious acute or chronic health condition, a physician, physician assistant,
or nurse practitioner will conduct a face-to-face examination of the pretrial
detainee within 24 hours after the receiving screening.
Plaintiffs request that paragraph 5(a)(2) be modified as shown in italics:
If the receiving screening indicates a pretrial detainee is suffering from a
serious acute or chronic health condition, a physician, physician assistant,
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or nurse practitioner will conduct a face-to-face examination of the pretrial
detainee on an emergency or urgent basis, no longer than within 24 hours
after the receiving screening.
The Court found that Defendants had not met their burden of proving 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.” (Doc. 2283,
¶ 40.) The Court also found, “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.” (Id., ¶ 31.)
Plaintiffs’ primary criticism has been that pretrial detainees who need to be seen
by a provider often are not seen face-to-face by a provider quickly enough to provide
timely diagnosis and/or treatment.
As currently worded, paragraph 5(a)(2) requires
Defendants to prove that these pretrial detainees are actually seen by a provider with an
outer limit of 24 hours. This requires that Defendants have a sufficient number of
qualified providers available to actually see pretrial detainees within 24 hours, which
often will occur while the pretrial detainees are in the intake center before they are
transported to a housing unit. Adding the phrase “on an emergency or urgent basis” does
not ensure that a pretrial detainee who needs to be seen by a medical provider within
minutes will be seen within minutes, not hours.
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Tuberculosis Screening (¶ 5(a)(7))
Paragraph 5(a)(7) of the Fourth Amended Judgment states:
Pretrial detainees will be tested for tuberculosis within 14 days after the
receiving screening unless they have been tested with negative results
within the past year.
Plaintiffs request that paragraph 5(a)(7) be replaced with the following provision:
At the time of the receiving screening, pretrial detainees will be screened
for tuberculosis using tuberculin skin testing, interferon-gamma release
assays, chest x-ray, or other acceptable method.
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The Court found that “Defendants have not shown that as of August 9, 2013, the
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receiving screening resulted in the timely identification, segregation, and treatment of
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pretrial detainees with TB.” (Doc. 2283, ¶ 73.) The Court did not find that the current
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tuberculosis screening program was unconstitutional, but rather that Defendants did not
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satisfy their burden of proof to show that there is no current and ongoing constitutional
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violation regarding identification, segregation, and treatment of pretrial detainees with
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communicable diseases.
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Plaintiffs contend that paragraph 5(a)(7) “permits a slackening” of Defendants’
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current practices. Defendants’ policy as of August 9, 2013, required routine tuberculin
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skin testing within 10–14 days after intake for pretrial detainees who were not identified
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during the receiving screening as being at risk for tuberculosis. There is no practical
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difference between ordering Defendants to do it within 10–14 days and ordering them to
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do it within 14 days—the maximum time permitted is the same. Previously, however,
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Defendants conducted routine tuberculin skin testing only in conjunction with an initial
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health assessment, and they did not provide an initial health assessment for all pretrial
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detainees. Moreover, routine tuberculin skin tests were suspended for a period because
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of a shortage of testing material. Some pretrial detainees, therefore, never were tested for
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tuberculosis. In contrast, paragraph 5(a)(7) requires tuberculosis testing for every pretrial
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detainee except for those who have been tested with negative results within the past year.
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To justify tuberculosis screening during intake rather than within seven days as
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recommended by the CDC, Plaintiffs rely on Dr. Cohen’s opinion, which is based on
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statistics regarding the proportion of Arizona’s tuberculosis cases found in jails and
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prisons, which do not distinguish jails from prisons. Unlike in prisons, in the Maricopa
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County Jail approximately 40% of inmates are released within 24 hours of booking, 50%
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within 2 days of booking, 65% within 7 days of booking, and 75% within 14 days of
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booking. Tuberculin skin testing includes both an injection and a subsequent assessment
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of any reaction 48–72 hours after the injection. If pretrial detainees receive skin testing
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during the receiving screening, more than half likely will be released before the skin test
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reaction can be read. Therefore, requiring tuberculin skin testing during the receiving
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screening for pretrial detainees who are not at risk for tuberculosis likely would have
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minimal benefit.
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3.
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Paragraph 5(a)(12) of the Fourth Amended Judgment states:
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When a physician, physician assistant, or nurse practitioner orders a lab test
or radiological study, the physician, physician assistant, or nurse
practitioner will identify the urgency with which the test or study must be
performed, e.g., within 24 hours, 72 hours, or 7–10 days, and the urgency
with which the results of the test or study must be returned. The test or
study will be performed within the timeframe ordered by a physician,
physician assistant, or nurse practitioner.
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Laboratory and Radiology Services (¶ 5(a)(12))
Plaintiffs request that the following sentence be added to the end of paragraph 5(a)(12):
Providers will review laboratory and radiology results on a timely basis
and document their review in the medical record.
Requiring providers to review all tests and studies “on a timely basis” does not set
enforceable time limits. Further, it is extremely unlikely that a medical provider would
identify a laboratory test or radiological study as urgent, order that it be completed and
results returned within a short time, and then fail to review the results promptly. The
purpose of paragraph 5(a)(12) is to empower medical providers to obtain the information
they need as quickly as needed based on their professional judgment so that they can
provide pretrial detainees ready access to necessary medical care.
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Care for Patients Withdrawing from Drugs or Alcohol (¶ 5(a)(13))
Paragraph 5(a)(13) of the Fourth Amended Judgment states:
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 document each assessment and
identify the urgency with which the pretrial detainee should be seen by a
physician, physician assistant, or nurse practitioner. If a pretrial detainee is
not seen face-to-face by a physician, physician assistant, or nurse
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practitioner within the timeframe recommended by the nurse, the reason
will be documented in the pretrial detainee’s medical record.
Plaintiffs request that the following language be added to the beginning of paragraph
5(a)(13):
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Pretrial detainees identified during the receiving screening as being at risk
of serious harm from alcohol or drug withdrawal will have a timely face-toface assessment by a provider who will develop and initiate a plan of care
that includes clinically appropriate monitoring and treatment and
placement in clinically appropriate housing. At a minimum, . . . .
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As currently stated, paragraph 5(a)(13) requires that all pretrial detainees
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identified during the receiving screening as being at risk of serious harm from alcohol or
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drug withdrawal are assessed twice a day by a registered nurse, not just those placed in
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the Durango withdrawal unit.
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classified as a security risk, and/or placed in the infirmary, the Mental Health Unit,
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general population, or anywhere else must be assessed twice a day by a registered nurse.
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For those with acute, serious chronic, or complex multisystem medical conditions, such
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as withdrawal plus cardiac risk factors, paragraph 5(a)(2) requires that a medical provider
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conduct a face-to-face examination within 24 hours after the receiving screening, and
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paragraph 5(a)(8) requires that a pretrial detainee be evaluated face-to-face by a medical
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provider and receive an initial health assessment within 24 hours after the receiving
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screening. Paragraph 5(a)(9) requires that a medical provider develop plans for treatment
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and monitoring of pretrial detainees with serious medical conditions, which necessarily
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requires providers to develop and initiate a plan of care for pretrial detainees withdrawing
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from drugs or alcohol. Treatment necessarily includes ordering placement in clinically
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appropriate housing.
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That means that pretrial detainees who are female,
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Moreover, some withdrawing pretrial detainees do not need to be seen
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immediately by a medical provider, and a registered nurse is qualified to triage the needs.
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Requiring medical records to document the registered nurse’s assessment of urgency and
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the date and time when a medical provider actually saw the pretrial detainee face-to-face
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will not only hold Defendants accountable, but also it will enable them to identify and
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correct any communication and delivery of service deficiencies.
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5.
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Paragraph 5(a)(15) of the Fourth Amended Judgment states:
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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 face-to-face
by a mental health provider within 24 hours of the identification.
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Plaintiffs propose the following revision of paragraph 5(a)(15):
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Pretrial detainees seen by detention, intake, medical, or mental health staff
with emergent mental health needs, which include but are not limited to
those displaying active symptoms of mental illness, will be referred to and
seen face-to-face by a mental health provider on an urgent or emergent
basis, and no later than within 24 hours of the identification.
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Paragraph 5(a)(15) is not intended to require detention, medical, and low-level
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mental health staff to decide whether a pretrial detainee’s mental health needs are urgent.
It would therefore be helpful to phrase this provision in more objective, behavioral terms.
However, this paragraph is not intended to order staff to make referrals. The evidence
presented to the Court showed that various types of staff often refer pretrial detainees
whose behavior indicates deteriorating mental health. The purpose of this provision is to
give greater priority to staff referrals than to mental health Health Needs Requests.
Referrals will require face-to-face evaluation by a mental health provider within 24 hours
whereas mental health Health Needs Requests are addressed by mental health staff within
48 hours.
The Court cannot meaningfully evaluate whether Defendants have done something
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Mental Health Provider Assessments Following a Referral (¶ 5(a)(15))
“as soon as possible.” In practical effect, ordering Defendants to do something “as soon
as possible, but in no more than 24 hours” is the same as ordering them to do it within 24
hours.
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Paragraph 5(a)(15) of the Fourth Amended Judgment will be replaced with the
following provision:
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Upon referral by detention, intake, medical, or mental health staff, pretrial
detainees who display active symptoms of mental illness or otherwise
demonstrate an emergent mental health need will be seen face-to-face by a
mental health provider within 24 hours of the referral.
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IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Reconsideration (Doc.
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2287) is granted in part.
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IT IS FURTHER ORDERED that the Revised Fourth Amended Judgment (Doc.
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2299) filed concurrently with this Order shall supersede the Fourth Amended Judgment
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(Doc. 2284) and have continuing effect.
Dated this 10th day of December, 2014.
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Neil V. Wake
United States District Judge
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