Parsons et al v. Ryan et al

Filing 3635

ORDER re: 3613 Discovery Dispute: IT IS ORDERED Defendants are required to respond to RFPs 66, 74, 122, 133, 134, and 138 as detailed herein within seven days of this Order. Defendants are not required to respond to RFP 116. Signed by Senior Judge Roslyn O Silver on 6/19/2020. (CLB)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Victor Antonio Parsons, et al.,
Plaintiffs,

10
11

ORDER

v.

12

No. CV-12-00601-PHX-ROS

David Shinn, et al.,

13

Defendants.

14
15

Pursuant to the parties’ Stipulation, “Plaintiffs’ counsel and their experts shall have

16

reasonable access to the institutions, staff, contractors, prisoners and documents necessary

17

to properly evaluate whether Defendants are complying with the performance measures

18

and other provisions of this Stipulation.” (Doc. 1185 at 12). That provision allows

19

Plaintiffs to pursue information and materials during the remedial phase of this action. The

20

parties recently filed a Statement of Discovery Dispute outlining their disagreements

21

regarding Defendants’ response to seven requests for production of documents (RFP).

22

(Doc. 3613). The Court will address each request and will require Defendants to respond

23

to RFPs 66, 74, 122, 133, 134, and 138.

24

26

1. RFP 66 – The number of class members in each mental health category
and within each category, the number prescribed psychotropic
medications: MH-1, MH-2, MH-3A, MH-3B, MH-3C, MH-3D, MH-3E,
MH-4, MH-5, and SMI.

27

Upon preparation of the parties’ joint submission, Defendants agreed to produce

28

documents responsive to this request. If not already disclosed, the Court will require that

25

1

the documents be produced within seven days of this Order. This portion of the dispute,

2

however, should not have been presented to the Court. In the future, if one side abandons

3

its position in a dispute only after the other side prepares a discovery dispute submission,

4

the party forced to prepare the dispute will be entitled to its fees in preparing to present or

5

defend the abandoned dispute.

6
7
8

2. RFP 74 – Any planned or implemented changes in policy governing
suicide or other mental health watches.
As to this request, Defendants maintain that no responsive documents exist and

9

point to existing ADC policies, specifically Director’s Instructions 357 and 366. Plaintiffs,

10

however, describe a September 1, 2019 memorandum titled “MH [Mental Health] Watches

11

and ISO [Isolation] Assignments” that was observed during the October 17-18, 2019 Yuma

12
13
14
15
16
17
18
19
20
21
22
23
24
25

Complex tour. Plaintiffs requested that a photograph be taken of the memorandum, but it
was not produced with the other tour photographs. The memorandum was eventually
produced by Defendants, but they maintain it contained an error and did not reflect a change
in policy. Plaintiffs also aver that Warden Hetmer reported a transition from periodic
watches to “constant watches” at the Dakota Unit, reflecting a modification of the policy
governing mental health watches.
Defendants do not explain the obvious discrepancy between their categorical denial
of any policy changes and the existence of modifications to existing policies. One possible
explanation is that Defendants believe only system-wide amendments to policies are
responsive to Plaintiffs’ request. The Court does not view Plaintiffs’ request so narrowly
and the adaptation of policies even at single locations must be disclosed. The Yuma
Complex Warden plainly modified DI 357 to meet the complex’s needs. Those types of
adjustments must be disclosed to Plaintiffs and any policy modifications or adaptations
must be disclosed within seven days of this Order.

26
27

3. RFP 116 – All mental health staff whose licensure status is incorrectly
listed in eOMIS, and the nature of the error.

28

Certain Performance Measures require that a licensed mental health care provider
-2-

1

perform specific functions. For example, PM 73 requires that all MH-3 minor prisoners

2

be seen by a licensed mental health clinician a minimum of every thirty days. If the health

3

care provider’s licensure status is incorrect in the medical records, it is more difficult to

4

assess compliance. Plaintiffs therefore seek a comprehensive list of mental health staff

5

whose licensure status may not be properly identified in eOMIS, the electronic medical

6

records system. Defendants object to the request because it would require them to create

7

a document and not simply disclose one. Further, Defendants point out that Plaintiffs have

8

a current roster of mental health staff and their licensure status, and so they can identify

9

whether any errors exist.

10

It is unclear why Plaintiffs are not able to verify licensure status with the information

11

they possess or whether licensure status errors are replete within prisoners’ medical records

12

that a complete review is necessary to document them. Plaintiffs have not established that

13

Defendants should be required to prepare the document they seek nor have Plaintiffs

14

established Defendant Pratt should be required to affirm under oath that ADC does not

15

verify licensure status.

16

19

4. RFP 122 – Documents and communications regarding the unavailability
of custody staff at any ASPC and the impact upon medication
administration and/or health care services.
5. RFP 133 – Documents regarding staffing vacancies in the maximum
custody units.

20

Compliance with any of the Stipulation’s performance measures, both health care

21

and maximum custody, requires the support of and coordination with corrections officers

22

to facilitate the movement of prisoners. Critical staffing shortages, therefore, impede

23

Defendants’ ability to perform these obligations under the Stipulation. Plaintiffs seek

24

documents addressing the impact critical staffing shortages are having on Defendants’

25

performance.

17
18

26

Defendants object to production of any documents responsive to this request

27

because the Stipulation does not mandate specific staffing levels. Defendants are correct

28

but it would be impossible for Defendants to achieve compliance with the Stipulation

-3-

1

without necessary corrections officers. Plaintiffs correctly observe that the severe staffing

2

shortages have a cascading effect on the provision of out-of-cell time as required by the

3

maximum custody performance measures and the administration of medication and

4

escorting prisoners to health care appointments as required by the health care performance

5

measures. Defendants must produce documents responsive to this request. The parties are

6

required to confer within seven days to identify search terms to identify responsive

7

documents.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

6. RFP 134 – Documents sufficient to show average length of stay for
prisoners in maximum custody units, including the average length of
stay in Step 1, Step 2, and Step 3 under DI 326/DO 812.
7. RFP 138 – A list of all prisoners held in maximum custody units at the
Florence, Eyman, and Lewis complexes including date classified to
maximum custody and current step level under DI 326/DO 802.
The maximum custody performance measures mandate minimum levels of out-ofcell time for prisoners. The Stipulation also requires Defendants “implement DI 326 and
the Step Program Matrix for all eligible prisoners.” (Doc. 1185 at 9). DI 326 and the “Step
Program Matrix” refer to a program that allowed prisoners in maximum custody to move
between “Steps” whereby if the prisoner engaged in positive behavior, he would advance
through the “Steps” and receive additional recreational opportunities. Thus, prisoners
could earn extra out-of-cell time and access to additional privileges with good behavior.
DI 326 was later reenacted as DO 812, which remains in effect today. Under DO 812,
prisoners must remain at a particular Step for a minimum amount of time but there is no
maximum time specified. Plaintiffs seek documents showing the length of time prisoners
remain at each Step, obviously to ascertain whether prisoners are progressing through the
Step Matrix.
Defendants contend the Stipulation does not have any parameters on the length of
time a prisoner must remain in each Step, thus, Plaintiffs’ request is irrelevant. Further,
Defendants maintain that producing the requested material would require a manual review
of all maximum custody files to synthesize the information.
Theoretically, Defendants’ position may have merit. But a review of DO 812’s
-4-

1

requirements reflects that prisoners are eligible to move between Steps every 30 days. If

2

the data reflects that prisoners remain stagnant within the Step Matrix for extended periods

3

of time, the Court may be forced to decide whether that stagnation is contrary to the

4

Stipulation. In essence, if prisoners are not actually able to advance through the Steps,

5

Defendants may be in violation of the Stipulation. But the Court need not resolve this issue

6

now. Because Plaintiffs are entitled to monitor compliance, they need to review the data

7

regarding Step progression. Defendants claim this would require that they manually

8

compile straightforward data about maximum custody prisoners, which would be

9

troubling. Plainly how it is possible for Defendants to comply to ensure prisoners are

10

moved through the Step Matrix unless the data is readily available? Defendants will be

11

required to produce the requested information within seven days.

12

Accordingly,

13

IT IS ORDERED Defendants are required to respond to RFPs 66, 74, 122, 133,

14

134, and 138 as detailed herein within seven days of this Order. Defendants are not

15

required to respond to RFP 116.

16

Dated this 19th day of June, 2020.

17
18
19

Honorable Roslyn O. Silver
Senior United States District Judge

20
21
22
23
24
25
26
27
28

-5-