Parsons et al v. Ryan et al

Filing 1754

ORDER: the outstanding issues from the 11/9/16 Status Conference are addressed in this order (see order for details). Signed by Magistrate Judge David K Duncan on 11/10/16. (REW) Modified on 11/10/2016 (REW).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Victor Antonio Parsons, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-12-00601-PHX-DKD

Charles L Ryan, et al.,

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Defendants.

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The outstanding issues from the November 9, 2016 Status Conference are
addressed below.

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1.

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The parties have informed the Court that they cannot resolve their impasse about

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every “X” days and PM 86 and that this dispute is not covered by their pending meet-

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and-confer about the Monitoring Manual. (Docs. 1717, 1718, 1719, 1731, 1732)

Date Calculations and Performance Measure 86.

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After a careful review of the parties’ briefing, the Court appreciates the nuances

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left untouched by the earlier Order. (Doc. 1673) To expand on the issues, the Court

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revives hypothetical Inmate PM86, whose medication was discontinued on January 10

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and is, therefore, reclassified. (Id. at 6) First, it appears that the parties do not agree on

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when to start measuring PM 86: when his medication was discontinued or when he was

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reclassified.

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minimum of six months after discontinuing medication.”

Under its plain language, PM 86 applies to MH-3D prisoners “for a
(Doc. 1185-1 at 14, 32)

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Accordingly, the start date for calculating compliance is the date that medication is

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discontinued.

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As previously noted, Inmate PM86 discontinued medication on January 10 and,

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therefore, must be seen by a mental health clinician by April 10 and again by July 10. If

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he was seen by April 10 and his record is selected for review in May or June, then it is

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compliant with PM 86 in May and June even though he was not seen in those months.

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(Id.) However, this explanation does not address the situation where Inmate PM86 is

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seen on April 15 (i.e., untimely) and his record is selected for review in May or June.

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How should compliance be assessed for May and June? Nor does it resolve when his

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second visit is due: July 10 or July 15? Another hypothetical not explicitly decided by

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the Stipulation is the result when Inmate PM86 is seen on March 15 (i.e., ahead of

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schedule). Is his second visit due on June 15 or July 10?

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Because the parties have not been able to answer these questions, the Court does

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so as follows. As noted above, measuring compliance for Inmate PM86 starts on January

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10. If Inmate PM86 is seen by a mental health clinician on April 10, his April, May, and

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June records are compliant without any additional visits.

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In contrast, if Inmate PM86 is seen by a mental health clinician on April 15 (or

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any other day after April 10), his April, May, and June records are not compliant. And

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his second visit must occur by July 10 (i.e., 90 days from when he should have been seen

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the first time). If Inmate PM86 is instead seen on March 15 (or any date ahead of the

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April 10 deadline), then his March, April, and May records are compliant without any

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additional visits. And his second visit must occur by June 15 (i.e., a minimum of 90 days

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after he was first seen).

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Although this timing analysis is based on the language of Performance Measure

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86, the Court expects that this same structure for monitoring compliance will be applied

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to other performance measures with similar issues.

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hypotheticals do not address all of the scenarios confronting the parties, they may submit

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additional scenarios for the Court’s consideration.

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However, if these additional

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2.

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The Court asks both parties to provide an update on the following matters:

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 Performance Measure 85 and reclassification of inmates from MH-3D to MH-

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Potentially Outstanding Items.

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 Maximum custody notebook document production issues;

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 Production of documents demonstrating Defendants’ response to raw CGAR

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data; and
 Status of “Access to Videos & Electronic Medical Records” (Doc. 1506) and

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the provision of paper medical records.

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If these issues remain outstanding, the Parties shall so advise the Court. The Court

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further notes that Plaintiffs did not respond to Defendants’ proposed reporting procedures

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for demonstrating compliance with Paragraphs 12, 14, and 15 of the Stipulation. (Doc.

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1703) The Court will provide Plaintiffs an opportunity to do so at the same time as the

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update on the above noted matters.

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3.

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First Remediation Plan. At the May 18, 2016 status conference, the Court ordered

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Defendants to submit a remediation plan for a delineated list of facilities and performance

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measures (“First Non-Compliant PMs”). (Docs. 1582, 1583). Defendants did so (“First

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Remediation Plan”).

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concerns, the Court adopted the First Remediation Plan. (Doc. 1619)

Remediation Plans.

(Doc. 1608)

After providing Defendants with notice of its

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The Court has reviewed the data from three months of Defendants’ operations

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under the First Remediation Plan. (Docs. 1739, 1743) After reviewing this information,

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the Court has “determine[d] that the Defendants’ [First Remediation] plan did not remedy

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the deficiencies” for the First Non-Compliant PMs. (Stipulation at ¶36)

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The Court has “the power to enforce this Stipulation through all remedies provided

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by law.”1 (Id.) Accordingly, the Court will require Defendants to use the health care

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There are, of course, express limitations on this power and, as the Court has
repeatedly noted, these limitations have removed staffing increases–the most efficient
and effective tool–from the Court’s remedial toolbox.
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services in the community to ensure compliance with the First Non-Compliant PMs.

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Specifically, Defendants shall use all available community health care services including,

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but not limited to, commercial pharmacies, community-based practitioners, urgent care

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facilities, and hospitals (collectively, “Outside Providers”) to provide the health care

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services required in the Stipulation’s Performance Measures.

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immediately following the expiration of the time-frame detailed in each PM.

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example, if a PM requires Defendants to provide an inmate with a specific type of care

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within 24 hours (or 14 days), then Defendants shall have this inmate seen by an

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appropriate Outside Provider in hour 25 (or day 15).

This shall happen
For

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The Court notes that these requirements only apply when Defendants are not able

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to comply with the Stipulation’s Performance Measures using the procedures detailed in

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their remediation plan. In other words, if Defendants can comply with the Stipulation

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without using Outside Providers, then they are under no obligation to use Outside

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Providers.

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and efficient measure denied to the Court (“the Court shall not have the authority to order

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Defendants to . . . hire a specific number or type of staff unless Defendants propose to do

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so as part of a plan to remedy a failure to comply with any provisions of the Stipulation”

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Stipulation at pp. 13-14) (emphasis added).

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Defendants have not been able to meet the Performance Measures by using their current

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procedures or by adopting the First Remediation Plan. Accordingly, the Court must order

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these additional measures to ensure compliance with the First Non-Compliant PMs. The

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Court considered and rejected requiring the Defendants to submit a revised plan because

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of its concerns, expressed earlier on the record, about Defendants’ grasp of the problem at

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hand, the failure, abject in some cases, of its first remediation plan to deliver compliance,

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and the health and safety danger posed by continued failures to meet the Performance

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Measures. See Stipulation at ¶36: “In determining subsequent remedies the Court shall

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consider whether to require Defendants to submit a revised plan.”

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Defendants also remain free to remediate deficiencies through the obvious

However, the current data show that

Second Remediation Plan. Pursuant to the Court’s Order, Defendants submitted a

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remediation plan for PM 47, 80, 94 (“Second Remediation Plan”). (Doc. 1709, 1729,

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1739) At the November 9, 2016 status conference, Defendants informed the Court that,

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depending on the PM and facility, the changes detailed in the Second Remediation Plan

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were implemented between April and August 2016. Defendants requested another 60

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days with the Second Remediation Plan to determine whether it is sufficient to establish

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compliance. The Court will provide Defendants with those additional 60 days and will

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determine the sufficiency of the Second Remediation Plan then.

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IT IS ORDERED that the Parties shall employ the timing convention explained
by the Court in this Order.

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IT IS ORDERED that 14 days from the date of this Order, both parties shall

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inform the Court of the status of the above-listed potentially outstanding items. Further,

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Plaintiffs shall respond to Defendants’ proposal detailed in Doc. 1703.

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IT IS ORDERED that, effective thirty days from this Order, when Defendants are

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not able to comply with the requirements of the Stipulation’s Performance Measures

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using their current procedures, Defendants shall use all available community health care

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services including, but not limited to, commercial pharmacies, community-based

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practitioners, urgent care facilities, and hospitals to provide the health care services

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required in the Stipulation’s Performance Measures for the facilities listed in the First

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Remediation Plan for which the August data demonstrated compliance below the 80%

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benchmark.

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Dated this 10th day of November, 2016.

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