Parsons et al v. Ryan et al

Filing 2179

ORDER denying 2135 Motion for Reconsideration of the Court's $1000 Sanction Order. Signed by Magistrate Judge David K Duncan on 7/13/17.(DXD)

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WO

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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.,

No. CV-12-0601-PHX-DKD

Plaintiffs,

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v.

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Charles L. Ryan, et al.,

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ORDER

Defendants.

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Defendants have moved for reconsideration of the Court’s Order setting an order

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to show cause hearing where the Court will consider the imposition of a $1,000 fine for

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each instance of non-compliance with an enumerated list of healthcare performance

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measures at specified locations (“Chronically Non-Compliant Location/PMs”). (Doc.

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2135) A response is not necessary. LRCiv. 7.2(g).

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Motions for reconsideration should be granted only in rare circumstances.

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Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D.Ariz. 1995).

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“Reconsideration is appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J,

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Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions

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should not be used for the purpose of asking a court “‘to rethink what the court had

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already thought through — rightly or wrongly.’” Defenders of Wildlife, 909 F.Supp. at

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1351 (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101

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(E.D.Va. 1983)). Defendants are not entitled to reconsideration.

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As the Court has repeatedly explained on the record, the Stipulation was not a

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promise to meet a sampling benchmark. It was a promise to provide the contracted

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service to every inmate. The Stipulation’s benchmarks (now 85%) are for the purpose of

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determining whether a PM/Location is meeting the Stipulation’s underlying requirement

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of care. The benchmark is the canary in the coal mine: if the benchmark is met, then the

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Stipulation deems the Defendants to be in compliance. If the benchmark is not met, then

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Defendants are not in compliance with the Stipulation and the Court’s remedial power is

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in no way limited by the Stipulation’s compliance percentage benchmark or sample size

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specification. Instead, the Court must take measures to ensure Defendants provide the

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bargained for benefit to each and every inmate.

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The Court has provided Defendants over two years to try all of their proposed

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solutions for the Chronically Non-Compliant Location/PMs. Nothing has worked. Now,

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the Court must find a way to compel the necessary remedial action.

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Finally, in response to Defendants’ argument regarding a lack of resources to

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tabulate the failures to satisfy the Performance Measures, the Court notes that it is not

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ordering Defendants to hire anyone. How they accomplish compliance with this Court’s

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Order is for Defendants to determine, not the Court. If Defendants determine that the

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only way to comply with this Order is to hire more staff, nothing in the Stipulation

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prevents them from doing so. (It is hard for the Court to accept this conclusion given that

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it appears from the Court’s tour of the Lewis facility this day that there are current

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employees who are willing and able to work overtime but are precluded by management

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from doing so.)

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...

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...

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...

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-2-

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IT

IS

THEREFORE

ORDERED

denying

Defendants’

Reconsideration of the Court’s $1000 Sanction Order (Doc. 2135).
Dated this 13th day of July, 2017.

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-3-

Motion

for