CARLOS MORALES FELICIANO, et al, Plaintiffs, v. SILA MARIA CALDERON SERRA, et als, Defendants.

CIVIL NO. 79-004 (PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

300 F. Supp. 2d 321; 2004 U.S. Dist.

January 26, 2004, Decided
January 26, 2004, Filed


SUBSEQUENT HISTORY: Affirmed by Feliciano v. Rullan, 2004 U.S. App. (1st Cir. P.R., Aug. 6, 2004)

PRIOR HISTORY: Feliciano v. Rullan, 303 F.3d 1, 2002 U.S. App. (1st Cir. P.R., 2002)

DISPOSITION: [**1] Defendant's motion to vacate or terminate court relief denied. Plaintiffs' cross motion granted. Motion to intervene denied.


COUNSEL: For CARLOS MORALES-FELICIANO, plaintiff: Carlos V. Garcia-Gutierrez, Jose R. Roque-Velazquez, Civil Action and Education Corporation, Manuel A. Rodriguez-Banchs, San Juan, PR.

For ALL PLAINTIFFS, plaintiff: Ricardo Alfonso-Garcia, Rafael E. Rodriguez-Rivera, Civil Action and Education Corporation, San Juan, PR.

For ALL PLAINTIFFS, plaintiff: Lillian N. Miranda-Rodriguez, Cond. La Arboleda, Guaynabo, PR.

For RAFAEL HERNANDEZ-COLON, defendant: Marcos A. Ramirez-Lavandero, Ramirez Lavandero & Associates, Rio Piedras, PR.

For JOHNNY RULLAN, defendant: Eileen Landron-Guardiola, Landron & Vega LLP, Eduardo A. Vera-Ramirez, Landron & Vera LLP, Guaynabo, PR.

For MIRLA M. RODRIGUEZ-MARIN, consolidated defendant: Esther Crespin-Credi, Department of Justice, San Juan, PR.

JUDGES: JUAN M. PEREZ-GIMENEZ, U.S. District Judge.

OPINIONBY: JUAN M. PEREZ-GIMENEZ

OPINION:
[*322] OPINION AND ORDER
On October 1, 2003, Defendant [**2] Hon. John Rullan, MD, Secretary of the Department of Health of the Commonwealth of Puerto Rico filed a Motion Under the PLRA to Vacate or Terminate the Court Relief Mandating the Transfer and Privatization of the Correctional Health Program of the Department of Health (Dkt. # 8486) (hereinafter Defendant's Motion). n1 On October 23d the Plaintiff Class opposed and filed a cross motion (Dkt. 8500) to modify the Medical and Mental Health Plans by terminating two sections of those Plans (Dkt. # 1959), and a handful of ancillary orders. A hearing was set for November 4, 2003.

n1 Although the unsigned certificate of service indicated that a copy of the PLRA Motion was served on Plaintiffs' counsel on that same date, it was not delivered to Plaintiffs until October 8, 2003, after a telephone request by Plaintiffs' counsel. The allegedly mailed copy was never received.

Over the course of several hearings Defendant presented the testimony of Dr. Hector Jose Mena Franco, MD, Executive [*323] Director of the Correctional [**3] Health Program, Dr. Aida Guzman Font, MD, who headed the Correctional Health Program from April of 1993 through March 2000 and from February 2001 through March 2003 as Chief Health Care Coordinator, Dr. Robert Dennis Jones, MD, who testified as an expert in medical, mental and dental correctional health and administration n2, and the Hon. Miguel Angel Pereira Castillo, Secretary of the Department of Corrections and Rehabilitation and acting Administrator of the Administration of Corrections. In addition, extensive documentary evidence was admitted into evidence. After the presentation of this evidence Defendant rested on the issues of alleged compliance with the Medical and Mental Health Plans and the supposed lack of current and ongoing constitutional violations.

n2 After his cross-examination plaintiffs moved to strike Dr. Jones' opinion testimony. The court declines to do so. Dr. Jones formally meets the criteria for delivering expert testimony. After his cross-examination, however, the court gives very little credence to those opinions.

[**4]
The order at issue is part of a stipulation or consent decree entered into by the parties in September 1997 as a joint alternative proposal for a remedy to substandard and chaotic conditions or denial of health care throughout the Administration of Corrections, all of which is detailed in the court's Opinion and Order, Feliciano v. Gonzalez, 13 F. Supp. 2d 151 (D.P.R. 1998). The court approved and ordered the consent decree executed, without passing on the court's own expert witness' recommendation for a receivership. One important component of the joint proposal was defendants' responsibility to set up a private not-for-profit corporation (the initial organizational communication and operational expenses to be paid for out of fine funds held by the court) which would eventually contract with the Administration of Correction to provide health care to persons in custody of the Administration of Corrections. Extensive testimony and charts were presented during the process in 1997 to be followed until the not-for-profit corporation (eventually registered as the Correctional Health Services Corporation or CHSC) could compete with other providers in Puerto Rico's newly [**5] privatized indigents' health care economy in contracting with the AOC.
The Secretary's contention in requesting termination is threefold; that the Correctional Health Services Program is performing efficiently its task of delivering health care to persons in the custody of the AOC, that the CHP is complying with the Medical and Mental Health Plans and, that prisoners' federally protected rights are no longer violated. The Secretary, on his own evidence, is wrong.
FINDINGS OF FACT
The defendant has established that by contracting with private individuals and companies he has greatly enriched the professional staffing his command. He has also established through his own witnesses that fully one fourth of inmates who request sick-call do not get it; only 55% of ambulatory care appointments in fact occur, and only 49% of extra-mural appointments are met (these are specialist consultations for serious conditions, surgery etc.). The quoted percentages are a few points below the 1996-1997 averages, and in the case of outside specialist or hospital appointments the drop is significant, from 61.8% completion in 1996-1997 to 49% at present. All of this is enough to find that there is [**6] still a present and ongoing systematic and massive denial of health care to the inmate population in the care of the Correctional Health Program.
[*324] In 1998 the court found that "the deficiencies evidenced at the hearing are the result of systematic infirmities in the correctional health scheme, which can be characterized as (a) obstructionist interference from and inefficiency within the Department of Health and other government agencies and (b) the lack of cooperation on the part of the Administration of Correction." Feliciano, 13 F. Supp. 2d 179-180. Since the Secretary has increased expenditures expenditures on professionals and private service companies n3 and inmates still fail to get health care in very substantial numbers (at eroding rates, in fact), the only finding that the court can make is that the Correctional Health Program and the Department of Health continue to fail in the administration of increased resources and continue to violate prisoners federally protected constitutional rights. The court cannot but underline that denial of health services is massive and systematic.

n3 Some of these contracts do not provide full services: the CHP has a long standing contract with Clendo Laboratories to perform laboratory services: pick-up and delivery happen once a day. ("Panic" results are transmitted to the CHP by fax when the tests show results which need immediate attention.) The CHP, however, has no capacity at all to do STAT testing. Tr. At 554:18-20. STAT test results are necessary when a patient is in critical conditions that require an immediate response. Tr. At 1160:23-1161:5.

[**7]
No matter how much the Correctional Health Program blames the Administration of Corrections for the Program's failure, the court cannot accept the present and ongoing mistreatment of plaintiffs because two cabinet secretaries - Health and Corrections - cannot get together to solve custody and transportation issues. Theirs has been and still is a joint responsibility n4 until we all deal with the consequences of Plaintiffs' motion to terminate which we discuss further on. Since 1993 Dr. Aida Guzman, M.D. has been involved with correctional health care. During the present hearings she had this to say about interagency cooperation and the failure to deliver health care:
Because the problems are the same as in 1997, same problems, problems with access.
It is the same problems, because there has been no actual change in terms of the attitude of the organization of the Administration of Correction in providing access to care; that has not changed.


Tr. at 909:4-13.

n4 Moreover, under Puerto Rico law physicians are required to make certain that their medical orders are carried out. Tr. At 900:24-901:8, 902:7-9.

[**8]
The delays in affording inmates with important extra-institutional appointments and medical care paint a grimmer picture than that of 1997. The situation is particularly critical in the Ponce Correctional Complex, Ex. 18, where a significant percentage (just over 20%) of the total inmate population live, including almost 40% of the women under the custody of the AOC. Tr. at 1158:4-7. The Master List of Medical Routes for the Ponce Complex, copy of which was marked as plaintiffs' Exhibit 18, is plagued with instances of patients that missed important medical appointments and procedures due to lack of transportation. For example, between September 23 and September 30, 2003, all of the Ponce inmates that were scheduled for extra-institutional medical appointments -- a total of 72 -- missed them. Ex. 18. Among the appointments missed during that week were 12 mammograms, 6 abdominal/pelvic sonograms, 4 brain CT scans, 2 MRI's, and various orthopedic and oncological evaluations that are described as "important" in [*325] the log. Id. On October 15 and 16, 2003, all of the 23 appointments scheduled for those 2 days were also missed. Id. The same was true with the 14 appointments scheduled [**9] for October 9, 2003, the 12 for October 7, 2003, and the 18 for October 2, 2003, to name just a few. Id. One of the appointments missed on October 2, 2003 was a surgical intervention that the inmate Luis Martinez Cruz was supposed to have that day. Id. The female Ponce inmates have been left without gynecological medical attention since the end of September 2003, Tr. at 1154:20-1155:2, and are experiencing and have experienced delays of over 6 months to have mammograms performed. Tr. at 524:1-5. Although Exhibit 17 established that such had been the case of inmate Marta Lopez Huertas, hers was not an isolated incident as evinced by Exhibit 18.
As a matter of fact, the last time that a female inmate from Ponce was taken to her scheduled mammogram was on May, 6, 2003. Since then, all of the mammogram appointments have been missed for lack of transportation. Exhibit 18. Inmate Conilia Betancourt Fernandez has been waiting to have a mammogram since April 22, 2003, Ruth Rodriguez Santiago since May 1, 2003, and Maria Cameron Alers since May 15, 2003. From then on, Conilia Betancourt Fernandez has not been taken to 6 mammogram appointments (June 3, June 19, July 15, August 28, September [**10] 30, and October 28, 2003), Ruth Rodriguez Santiago, to 4 (June 12, June 19, September 4, and October 2, 2003), and Maria Cameron Alers, to 6 (June 3, June 19, July 15, August 28, September 25, and October 30, 2003). During that same time span, various other female inmates were not transported to their scheduled mammograms on more than one occasion, to wit: Leonilda Santiago Santiago was forced to miss her appointments for August 26, September 25 and October 30, 2003, Norma Rosa Rivera and Betsy Rodriguez Vargas missed their respective appointments for August 28, September 30 and October 28, 2003, Rosa Robles Galarza missed hers for September 18 and October 21, 2003, while Ana Pena Frias had to endure the same outcome on September 23 and October 23, 2003. Ex. 18.
Such extended delays in obtaining medically ordered medical tests is simply unacceptable under any set of standards. Tr. at 1178:25-1179:12. A delay of eleven (11) months for a CT scan is equally untenable. Id. Such was the case of inmate Jose Velazquez Rivera, from Ponce Maximum. Ex. 19. The systemic infirmities caused by the AOC's lack of cooperation with the CHP persist at present. As Dr. Guzman opined:
I think [**11] that the Administration of Corrections has been consistently and historically unresponsive to the needs of the [correctional health] program and above all to the needs of the patients.


Tr. at 905:18-21.
Despite claims to have done everything possible to ensure inmate's access to appointments, Tr. at 902:17-23, the CHP has exacerbated this problem by inflexibly centralizing its services in a system which has historically suffered from problems with access to medical appointments. Tr. at 902:17-23, 1161:20-24, 1163:4-21. No example of this is more illustrative than the situation which has arisen in Bayamon 501, an institution which houses protective custody inmates, who are at risk of being attacked when placed in the general population. Since that institution's medical area was shut down, injectables can only be given at a neighboring general population institution, Bayamon 1072. Tr. at 583:3-14. This means that insulin dependent patients from Bayamon 501 have to be taken up to twice a day to Bayamon 1072 to receive their shots. Tr. at 578:15-18, 579:5-16. These protective custody inmates [*326] sometimes spend the entire day in Bayamon 1072's medical area, which has very poor security, [**12] with general population inmates. Tr. at 578:23-25; 579:2-4, 580:7-15, 581:12-25. This same procedure applies to other protective custody inmates from Bayamon 501 who require injections. Tr. at 581:12-25, 583:3-14.
No good reason was given at the hearings by defendant for having to transport these inmates to Bayamon 1072, instead of coordinating a system for providing insulin shots at Bayamon 501. Tr. at 717:6-719:18, 722:10-14, 727:6-14. This problem, seemingly a simply one to solve through mutual cooperation between AOC and CHP, eventually lead to litigation in the Puerto Rico Superior Court which resulted in an injunction being issued against the CHP requiring it to provide insulin shots in the protective custody institution. Tr. at 724; 728:10. Nevertheless, for reasons which are totally incomprehensible, this service is being provided only to the patient who requested the injunction, and the remaining insulin dependent patients are still required to move to another facility on a daily basis to receive their shots. Tr. at 728:3-16. This absurd result is a perfect example of the Department of Health's and Administration of Corrections' senseless inability to work with each other [**13] to achieve common goals. This problem is not occurring only because the AOC is not doing its part, but because there is a fundamental failure between both parties to cooperate.
The high level of tension and the utter failure of the AOC and I the CHP to coordinate, communicate, and cooperate is also evident in the fortune of the medical cadre. Developed for the purpose of ensuring security in medical areas and that medical escorts would be available to transport inmates to their medical appointments, Tr. at 770:24-771:2, this remedy has not had the expected results, again, because of the lack of cooperation between AOC and CHP, Tr. at 780:13-781:4, 782:10-16, 902:22-903:9.
Another system-wide problem which persists and downgrades the value or limits the availability of the health care provided are the inadequate physical facilities. In this regard, Dr. Guzman's testimony was also particularly telling when she characterized the facilities as "shameful for our patients and for our health professionals." Tr. at 904:12-13. Dr. Guzman explained the reasons for the progressive deterioration of the physical plant, when compared to the 1997 conditions, as follows:
There has been no success [**14] in trying to get the collaboration of the Administration of Correction in accessing patients to our services and in the physical facilities. It is the same. In fact they are worse facilities, because around seven years have passed by, in terms of the deterioration of the physical facilities, so they are worse.


Tr. at 909:23-910:4.

There has also been longstanding chronic neglect of the physical facilities for medical area services. Tr. at 761:11-13. The facilities available are small and deteriorated. Tr. at 498:6-7. The lack of appropriate facilities clearly affects the CHP's ability to deliver health services. Tr. at 497:25-498:2.
Infirmary beds are often full and obligate the CHP to keep patients in the emergency room. Tr. at 788:9-13. There is a long waiting list for medical dormitory beds because there are not enough beds to take care of the patients with chronic conditions for whom such housing is necessary. Tr. at 788:16-20. Areas designated for medical dormitories were taken over years ago (in fact, before the Court's 1998 findings) by the AOC for other uses (housing for inmates) and were never returned [*327] to CHP for use as medical dormitories. Tr. at 788:20-789: [**15] 2. There are no isolation rooms for the management of patients with active tuberculosis. 989:23-990:24.
There are now less Psychiatric Intensive Care Unit (PICU) beds for patients who need acute mental health care services than there were in 1997, twenty, while there has been an increase in the inmate population. Paragraph 8 of the Mental Health Plan requires 2 PICU beds per 1,000 inmates. In 1997, the court found that 25 such beds were required, which left a shortage of 5. At present 30 PICU beds would be required, while there are only 18 PICU beds, Tr. at 811:15-812:4, two of which no longer really function as a PICU. Tr. at 820:18-24. Hence the shortage of PICU beds has now more than doubled when compared to 1997.
The CHP expects to acquire 13 additional beds, but the current waiting list is of 70 patients. Tr. at 598:16-18. Generally throughout the system there are 1,311 inmates, equivalent to 8.7% of the total population, that are being housed in areas that do not provide them with the level of care that their chronic medical or mental conditions require, Tr. at 1260:2-6, all in violation of paragraphs 28 and 29 of the Medical Plan. Ultimately what this means is that persons [**16] having medical conditions which require a certain level of constant oversight and attention will simply have to go without.
The CHP again attempts to place the onus of this problem on the AOC. However, although the interagency agreement between AOC and the Department of Health states that the AOC shall provide necessary space for medical services, 708:17-24, the fact is that the Medical Care Plan places responsibility upon the Health Department as well as the AOC for the provision of adequate medical facilities. Tr. at 735:3-14. In fact, the Department of Health through the CHP has and maintains the correctional psychiatric hospital for the exclusive benefit of the inmates under the custody of the AOC. Even though under the circumstances it may not be reasonable to expect the CHP to build all the facilities it needs, they certainly have not reached out to the Court to request its assistance with this problem, and, from the evidence presented there is no suggestion that they have endeavored to do much more than write a few strongly worded letters and attend a handful of meetings. Tr. at 536: 10-25-537:3-20.
Although, the medical doctors at CHP prescribe medical diets, Tr. at 599: [**17] 11-18, medical diets are still not being provided to inmates, 1087:1-5, 1088:3-4, 1088:15-17, slowly but surely endangering the health and well being, and in some cases the lives of those patients who require them. Feliciano v. Gonzalez, 13 F. Supp. 2d 151, 197 (D.P.R. 1998) Among those who require special diets are insulin dependent diabetics, non-insulin diabetics, patients with renal and hepatic conditions and heart disease. Tr. at 600:1-17. In the April, May and June quarter of 2003, 3,120 diets were prescribed and not provided. Tr. at 609:15-18. Although food service is administered by the Administration of Corrections, there is no evidence that the CHP does anything whatsoever to remedy the longstanding problem of medical diets.
Defendant makes much ado of improvements to the system relating to the CHP's fiscal and administrative autonomy. Tr. at 1305:1-10. In fact, over the past few years since the Court's May 1998 Order, the improvements in the CHP that can be observed are due entirely to the Court's direct intervention. The fiscal and administrative autonomy as well as the power to contract directly with professionals and service providers were [**18] rooted in orders issued by this Court:
[*328] "Q. Doctor, based on your years of experience in the program, what has happened that has assisted the program in achieving, progressing, staffing, supplies, etcetera.
[Dr. Aida Guzman] I think that if you look at this longitudinally, one of the big problems that the program faced in 1997 was the lack of administrative autonomy, everything had to go through a facility, which was the operational branch of the Department of Health. The administrative offices of the program at that time, in 1997 were just offices where documents went by, went through and there was no decision making at the program level. I think that a number of things happened that allowed the program to obtain the administrative autonomy that it needed so that it could recruit, retain, buy, and so forth and so on, all the administrative functions and it started with the Court order in 1997 authorizing the chief health care coordinator to process and sign all contracts and had the responsibility of hiring professional services under contract. That started it. There were a number of administrative orders from the Secretary of Health, I believe there were two of them, that partially, [**19] during late 1997 and 1998, partially gave some functions to the program in terms of administrative autonomy, but actually they were not really enforced. In 1999 when the AFASS, which again was the operational branch of the Department of Health, closed down, a few months before the closing down of the AFASS agency the program received an administrative order from the Secretary of Health, 141 which really gave autonomy to the program. It gave the authority to appoint temporary positions, it gave autonomy to contract hospital and services in the community, it also gave the authority to prepare and negotiate and present some budgets to the office of management and budget. It allowed the program to establish and develop the auction board which was very important in terms of obtaining equipment, materials, medications, etcetera, because the program up until then depended entirely on a facility, so that it gave the program the autonomy that it really needed to enhance the recruitment of very much needed professional personnel. And I think that that really helped.


Tr. at 887:17-889:10; see also Tr. at 672:1-21, 674:16-19, 676:11-13, 676:17-677:4. In fact, the administrative order [**20] Dr. Guzman refers to states that it is issued, in part, under authority of the Orders of the Morales Feliciano case. Dr. Mena, the present Executive Director of the CHP, continues to benefit from those court orders even though he is not, in point of fact, covered by them. Tr. at 678:1-17. In addition, the infectious disease control program began to function properly when the Court allocated fine monies to the purchase of computer equipment and software necessary for the program's day to day work. Tr. at 848:19-851.
Despite these improvements, the Department of Health has been unable to comply, substantially or otherwise, with constitutional norms and with the Medical and Mental Health Care Plans. The CHP still suffers from a whole string of problems that adversely affect inmates' health care.
Having written manuals and guidelines is necessary in order to maintain accountability in the provision of health services. Tr. at 1187:20-1188:3. Nevertheless, only 1 of 8 treatment protocols for mental conditions has been prepared for a meager 12.5% compliance rate with paragraph 9 of the Medical Plan, which requires "written protocols for the delivery of medical, dental and mental health [**21] services." Tr. at 1262:23-1263:13. The suicide protocol [*329] (prevention manual) is still wanting while suicides have substantially increased from 1 in 2002 to 7 during the first 9 months of 2003. Tr. at 1075:25-1076:5, 1189:13-21, 1077:20-22.
There are currently 1085 inmates with an HIV diagnosis; yet there are only 340, or 31.3%, undergoing treatment for that condition. Tr. at 1263:24-1264:7. Likewise, there is no protocol currently in place for the management of HIV patients. Tr. at 531:16-8. Hepatitis C Virus ("HCV") has reached epidemic proportions by infecting 4,828 inmates or close to a third of the total population. Tr. at 1165:20-1166:4. Yet, there were only 117 inmates undergoing treatment for that condition during the last quarter of fiscal year 2002-03. Tr. at 659:6-10.
Dr. Mena attempted to explain the abysmal disproportion between those numbers by testifying that 73.4% of the infected inmates did not meet the established treatment criteria. Tr. at 660:1-6. However, Dr. Jones clarified during his cross-examination that that figure did not mean that those inmates would never meet the criteria. Tr. at 1170:4-8.
A pilot study conducted in the West Detention Center during the [**22] last quarter of 2001-2002 found that almost a quarter (23%) of all HCV inmates did not meet the treatment criteria although they did have elevated liver enzymes twice in a period less than 6 months. Based on those findings and in light of the disease's progression, Dr. Jones opined that he would expect a high number of those inmates to have elevated liver enzymes when tested after the 6 months threshold period, thus becoming eligible for treatment. Tr. at 1175:14-1176:3. Dr. Jones further opined that those patients would have to be followed-up closely and that, treatment should be initiated immediately after they met the criteria. Tr. at 1176:6-14. Although Dr. Jones testified that he understood that the required, close follow-up was being provided, he could not offer a satisfactory explanation of why the most current data at the CHP concerning the HCV epidemic was more than six-months-old, dating back to April of 2003. Tr. at 1172:7-1174:7. Meanwhile, deaths caused by HCV increased fourfold in 2002, jumping to 12 from the 3 deaths that occurred in both 2000 and 2001. Exhibit 14. The number of deaths caused by HCV as of September 30, 2003 has already doubled each of the totals for [**23] 2000 and 2001. Id.
While inmate mortality rates are on the rise, the CHP is not addressing that phenomenon with the sense of urgency that the situation requires. Inmate deaths up-surged in 2002 to 73 from 50 in 2001 and 47 in 2000. Exhibit 14. That is roughly a 25% increase over the two preceding years. Tr. at 1059:21-1060:8. Inmate deaths as of September 30, 2003 have already surpassed the total deaths that occurred in each of 2000 and 2001. n5

n5 The accuracy of the 2003 death statistics came into question during the cross-examinations of doctors Mena and Jones. While the Mortality Report, a copy of which was admitted into evidence as plaintiffs' Exhibit 14, recorded 51 deaths until September 30, 2003, plaintiffs presented 62 death summaries for that same period, which were marked as Exhibit 16. While Dr. Mena was not able to explain the discrepancy in the numbers, Dr. Jones ventured to say that the Mortality Report only recorded deaths with a known cause. Tr. at 1122:20-1123:2, 1126:6-19; 1127:6-8.

Under [**24] Puerto Rico Law, the Institute of Forensic Medicine is obliged to conduct an autopsy in each of the following set of circumstances:


(4) When the death occurs while in custody of the Police or officers of law and order; while in prison, or as a result of [*330] sickness or injury occurring while in prison, or suspicion thereof.
...

(6) When it is due to acute intoxication with alcohol, narcotics, or any other type of drug or controlled substances or suspicion of such.

(7) When it is due to suicide or suspicion of such.


34 LPRA § 3011. Even though Puerto Rico law requires autopsies under these circumstances, autopsies are not routinely practiced upon persons who die while incarcerated and it appears that the CHP does nothing to compel the Forensic Science Institute to observe this requirement. Tr. at 1111:10-12, 1071:20-1072:13, 1073:14-20, 1105:14-1106:13. No doubt this hinders the CHP's ability to fully review the medical circumstances surrounding deaths which occur within the system. Although Dr. Jones generally opined that the CHP was properly monitoring, investigating and addressing the increased inmate mortality rate, he was forced to admit that the Annual [**25] Report of the Central Level Quality Assurance Committee for fiscal year 2002-03 did not discuss or mention the topic as it should have had. Tr. at 1129:6-1130:8. He further admitted that he did not verify whether appropriate mortality review documents are compiled by the CHP. Tr. at 1125:6-14, 1127:15-1128:4.
Pursuant to paragraph 70 of the Medical Health Plan, one of the matters that the Quality Assurance Committee must evaluate and monitor is precisely inmate mortalities. ("At a minimum, the Quality Assurance Committee shall review inmate mortalities ...") Although the latter have been increasing since 2002, the Defendant did not present a shred of evidence that would permit the Court to infer that the situation is being adequately addressed. Quite to the contrary, the Quality Assurance Committee, which is supposed to hold quarterly meetings, did not meet during the April, May and June quarter of 2003. Tr. at 516:13-25. In fact, there was a dramatic increase in withdrawal deaths in 2002, jumping from a stable trend of 1 or 2 per year to 9 in 2002 and 6 during the first nine months of 2003. Tr. at 1060:16-22, 1068:19-25, 1069:3-11. Even though Defendant's expert, based on his [**26] interviews with clinicians, concluded that the rise in these deaths is due to a new designer drug, Fentanyl, Tr. at 1063:10-17, 1066:9-14, 1068:14-17, from his own testimony it appears that the CHP has taken no precautions to alert medical personnel throughout the system of this increased risk. Tr. at 1187:10-19. And the failure to do death review properly increases the probability of never finding out whether the hypothetical Fentanyl or other designer or vulgar drugs are causing the deaths.
Wellness clinics, yet another requirement of the Medical Plan, are not performed at satisfactory levels as admitted by Dr. Mena. During fiscal year 2002-03 the overall compliance rate fluctuated from 29% in the first quarter, to 36% in the second quarter, 29% in the third quarter and 14% in the last quarter of the year. Tr. at 644.
The CHP continues to have serious problems with retrieving medical records, especially in cases of readmissions. During fiscal year 2002-03, there were 3,997 inmates re-admitted to the AOC system. CHP retrieved the records for only 1,315 of them. This means that the medical records of 2,682 re-admitted inmates were not found. That is, CHP was able to retrieve the [**27] medical records for only 29.2% of the re-admitted inmate population during the fiscal year ended on June 30, 2003. Tr. at 1265:15-1268:10. Once again the Secretary has had recourse to the private sector to alleviate the missing-records problem and hired Iron Mountain, Inc. to organize records.
[*331] The CHP is still suffering from a shortage of psychiatrists. Tr. at 836:4-10. This is particularly critical at Guerrero, which is not only an intake center but has a psychosocial unit. Tr. at 121:2-14, 240:13-17, 432:20-25, 613:20-614:5, 705:23-24. Guerrero has been without the services of a psychiatrist for several months. Tr. at 614:1-5. In fact, although staffing is much better than it once was, there continue to be generally some important gaps in terms of required professional medical staff. Tr. at 524:1-5, 525:15-19, 613:17-24, 614:1-5, 836:4-10, 885:21-886:7, 1090:10-16, 1156:19-24.
In 1997, psychiatric and mental health services reached only 25% of the inmates in need of them. In 2003, the situation has improved, since, according to Dr. Guzman's most recent estimates, the CHP is reaching 60% of the inmates in need of psychiatric and mental health care. Tr. at 842:14-18. However, the [**28] current level is still far short of the 95% targeted rate. Feliciano, 13 F. Supp. 2d, at 179.
The critical nature of the problems still confronted by inmates whose health is seriously jeopardized because of the way medical services are administered by the CHP and the AOC is attested to by the significant number of grievances filed by them pursuant to the administrative remedies procedure of the CHP. Tr. at 1178:7-10, Ex. 19. And the CHP directs complainants to file a grievance with the Administration of Corrections.
THE REMEDY
Under the Prison Litigation Reform Act ("PLRA"), "Prospective relief shall not terminate if the court makes written findings based on 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).
What must be first considered and borne in mind in dealing with health care in this case is that the Administration of Corrections runs a "mixed" [**29] jail/prison incarceration system with prisoners locked up in forty (40) institutions dispersed throughout the length and breadth of Puerto Rico: some are grouped in "complexes" of five or six institutions near important urban centers (Rio Piedras, Bayamon, Ponce) and some are isolated and near nothing much by way of hospital and specialist availability. There are five admission, intake facilities at Rio Piedras, Bayamon, Vega Alta, Ponce and Guerrero. The second consideration that must be taken into account is the longstanding, documented time and again history of noncompliance with Court orders. n6 Compliance and care are in direct inverse proportion to the seriousness of these constitutionally deep-rooted rights of the plaintiff class. The frequency of transfers added up to those factors make it necessary for the Court to fashion and grant system-wide relief.

n6 The Court has set out this history in detail, Feliciano v. Gonzalez, 13 F. Supp. 2d 151, 156-159 (D.P.R. 1998).

[**30]
The Prison Litigation Reform Act of 1995, dismembered and codified in various titles of the United States Code, sets a Sphinx's question for courts and litigants who must seek and order relief for violations of jail and prison inmates' constitutional rights: § 3626 of Title 18, at various places requires the parties not to request, and orders that the courts of the United States "shall not grant or approve any prospective relief unless the court finds [*332] that such relief is [simultaneously] narrowly drawn, extends no further than necessary to correct the violation of the Federal right and is the least intrusive means necessary to correct the violation of the federal right." Additionally, "the court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." § 3626(a) and (b) passim. This language mimics long standing requirements for injunctive relief under Rule 65 of the Federal Rules of Civil Procedure. Referred to in the cases as the "need-narrowness-intrusiveness findings" this is the old "over broadness" doctrine used to measure garden variety injunctive [**31] relief under Rule 65.
A decade before the PLRA was enacted, Federal courts had well settled doctrines and standards on the issuance of equitable relief. It is well worth quoting in extenso from Toussaint v. McCarthy, 801 F2d 1080, 1086-1087 (9th Cir. 1986) which discusses pre-PLRA standards and doctrines in relation to constitutional violations by state actors in contextualized language:
We agree with the Fifth Circuit's description of the role of the federal courts. Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation. See Milliken v. Bradley, 433 U.S. 267, 280, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977) (remedy must be related to condition alleged to offend the constitution); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971) (task is to correct, by a balancing of the interests, the condition that offends the constitution; judicial powers may be exercised only on the basis of a constitutional violation); Hoptowit v. Spellman, 753 F.2d 779, 785 (9th Cir. 1985) (judge must [**32] order correction of specific violations and may require only that these corrections bring the conditions above constitutional minima); Newman v. Alabama, 683 F.2d 1312, 1319 (5th Cir. 1982) (relief must be no broader than necessary to remedy the constitutional violation), cert. denied, 460 U.S. 1083, 76 L. Ed. 2d 346, 103 S. Ct. 1773 (1983); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (function of court is limited to determining whether a constitutional violation has occurred and to fashioning a remedy that does no more and no less than correct that particular constitutional violation); Ruiz v. Estelle, 679 F.2d 1115, 1144-46 (1982) (court must fashion the least intrusive remedy that will still be effective). "The federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States." Meachum v. Fano, 427 U.S. 215, 229, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976).
In fashioning a remedy for constitutional violations, a federal court must order effective relief. Smith v. Sullivan, 611 F.2d 1039, 1044 (5th Cir. 1980). Therefore, [**33] a federal 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. See North Carolina State Board of Education v. Swann, 402 U.S. 43, 46, 28 L. Ed. 2d 586, 91 S. Ct. 1284 (1971); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16, 91 S. Ct. 1267, 28 L. Ed. 2d 554. A defendant's history of noncompliance with prior court orders is a relevant factor in determining the necessary scope of an effective remedy. Hutto v. Finney, 437 U.S. 678, 687, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978); Hoptowit v. Ray, 682 F.2d at 1247; Ruiz v. Estelle, 679 F.2d at 1155-56. [Emphasis added.]
However, our goal is to cure only constitutional violations. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 16; Wright v. Rushen, 642 F.2d 1129, 1133-34 (9th [*333] Cir. 1981). The commission of a federal judge is not a "general assignment to go about doing good." Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir. 1978). Accordingly, [**34] injunctive restraints that exceed constitutional minima must be narrowly tailored to prevent repetition of proved constitutional violations, and must not intrude unnecessarily on state functions. Ruiz v. Estelle, 679 F.2d at 1156. See generally Mishkin, Federal Courts as State Reformers, 35 Wash. & Lee L. Rev. 949 (1978).
The Ninth Circuit is blunter:
Although the PLRA significantly affects the type of prospective injunctive relief that may be awarded, it has not substantially changed the threshold findings and standards required to justify an injunction. To this extent we agree with the Sixth Circuit [sic] that "the (PLRA) merely codifies existing law and does not change the standards for determining whether to grant an injunction." Smith v. Ark. Dept's of Correction, 103 F3d 637, 647 (8th Cir. 1996).


Gomez v. Vernon, 255 F3d 1118, 1130 (9th Cir. 2001).
Finding the "need -- narrowness - intrusiveness" equation in a given case seems a gamble in the absence of contextuality and lends itself to gross linguistic, two-level manipulation. The Second Circuit provides an example in Benjamin v. Fraser, 343 F.3d 35, 53-54 (2d Cir. 2003): [**35]
The City also contests as overly broad and burdensome the court's requirement that all windows designed to be opened must be operational. Contending that under the PLRA the district court was obliged to consider the utility of each window individually, the City observes:
The effect of a window defect depends upon the nature and degree of the defect, and the nature of the housing area, as well as the outside temperature. For example, a single window in a dayroom or modular unit that is stuck open a crack in mild weather, or one window that will not open among many windows that are operational in a particular area, will not cause unconstitutional conditions in that area. (Def. Br. at 48).
But it is ironic that the City, which strenuously opposes the OCC's continued participation, invokes the PLRA, which was intended in part to prevent judicial micro-management, in support of the proposition that the district court was required to examine every window. We agree with the district court that a comprehensive repair program would be more effective and less intrusive than an individual review of each window at the various facilities.
Although the PLRA's requirement that relief be "narrowly [**36] drawn" and "necessary" to correct the violation might at first glance seem to equate permissible remedies with constitutional minimums, a remedy may require more than the bare minimum the Constitution would permit and yet still be necessary and narrowly drawn to correct the violation. Given the impracticability of the court examining each window, ordering comprehensive repairs was a necessary and narrowly drawn means of effectuating relief-even though the Constitution would certainly permit a broken window or two.


See also Jones El v. Berger, 164 F. Supp. 2d 1096, 1116 (W.D. Wis. 2001), citing Smith v. Arkansas Dep't of Correction, 103 F.3d 637, 647 (8th Cir. 1996) (preliminary injunction standard not changed.)
In this case three quite different remedies to the long-standing, current and ongoing violations of plaintiffs' health care constitutional rights have been presented. The defendants propose themselves, in the face of historical, systematic failure and current and ongoing massive violations: hope that peripheral improvements continue [*334] and maybe, sometime in the future, plaintiffs will actually receive health care. The defendants' own [**37] evidence established that as of today a quarter of those who request sick calls do not get them, and half of those who must travel to extrainstitutional appointments, which are ordered in serious cases of medical need, do not make it to the appointment. Half of prisoners who must be moved intrainstitutionally do not make their appointments and the CHP does not reach 40% of prisoners in need of mental health care. In spite of higher levels of budgeting and staffing the defendants still cannot provide care to their charges. The most daunting of the reasons, the principal reason offered by the defendants' evidence is the utter inability of the Correctional Health Program, which depends on the Department of Health, to coordinate with the Administration of Corrections for custody and transportation. This particular institutional failure exists ever since the Department of Health took over by court order and interagency agreement the responsibility for the delivery of health care to persons under the custody of the Administration of Corrections. Under Commonwealth law the Administration of Corrections is charged with the responsibility for prisoners' health care. 4 LPRA § 1112(f). n7 [**38]

n7 The only competence, in correctional health under the laws of the Commonwealth assigned to the Secretary of Health is stated at 4 LPRA § 1112(l) which refers to procedures under the Security Measures of Puerto Rico's Penal Code, arts. 66 et seq. 33 LPRA § § 3351 et seq. which are not in use. The only explanation for the Secretary of Health to be involved in this matter at all is that the parties agreed to bring the Secretary of Health and the Secretary of Anti-Addiction Services together with the Administrator of Corrections in one section of the Correctional Health Plan (Amended Sixty-Second Report of the Court Monitor) (Docket # 1959) and order adopting the stipulated plan (Docket # 2465). The plaintiff class has moved to terminate that section of the medical plan and the defendants have joined them.

In 1997 the Court commissioned an expert witness, Vincent M. Nathan, Esq. to prepare reports on compliance with the then extant remedial orders and to submit the health care report first of all. The expert witness [**39] complied and proposed that correctional health care be placed in a receivership because the Correctional Health Program could not deliver. The plaintiffs opposed the creation of a receivership and proposed the creation of a private not-for-profit corporation as an alternative remedy. The defendants opposed both the receivership and the not-for-profit corporation in their historical denial of reality. After two weeks of hearings an agreement between the parties was reached and a joint request was presented to the Court to allow the development and to fund the organization of a nonprofit corporation. Feliciano v. Gonzalez, 13 F. Supp. 2d 151 (D.P.R. 1998).
The Court granted in 1998 a necessary remedy and among the three alternatives chose the creation of a nonprofit corporation proposed jointly by the parties as the least intrusive and most narrowly drawn. The very fact that the defendants chose to join the plaintiffs in selecting this remedy would seem to mean - and must be taken to mean -- that they understood it to be precisely tailored to the needs of the occasion, that it is narrowly drawn and least intrusive - in fact not intrusive at all. n8 [**40]

n8 There must be no doubt that this court's order of May 15, 1998 approved the joint proposal for the creation of a not-for-profit corporation as part of the remedy to the violations of plaintiffs' constitutional rights to health care. The order ended by requiring counsel for the parties to report on progress, Feliciano, 13 F. Supp. 2d at 214, which led to any number of meetings and to substantial financial support for the development of the corporation, all of which is spread on the record.

[*335] It is not happenstance that so many of the violations shown by the defendants' proof at the present hearings have to do with delays in transportation to outside appointments. The CHP is over-dependent on the use of the Puerto Rico Medical Center for hospital and specialist services. This was to be expected. The CHP depended in 1997, as it depends now, on outside hospital facilities and specialist services: for decades indigents and then prisoners had depended on the services rendered by the Department [**41] of Health through AFASS (Administration for Health Facilities and Services). In 1993 the structures and economy of hospital and health services began to change, and dramatically so.
With the approval of the Puerto Rico Health Insurance Act in September 1993, 24 LPRA 7001 et seq. the dependence on the Department of Health for uninsured indigents began to crumble away and as the Health Reform progressed throughout the decade it became obvious that it was best to place prison inmates in the hands of the Administration of Corrections and a not-for-profit corporation than to leave them stranded as the sole charges of a Department of Health denuded of health care capabilities: this became critical when AFASS was dissolved and public, especially regional, hospitals were sold.
The Legislative Intent of the Puerto Rico Health Insurance Act, 24 LPRA § 7001 of 1993 has an eerie resemblance to the reform history of this case, in part it reads:
From the beginning of this century, Puerto Rico's public policy has revolved around the attitude that the Government has the responsibility of offering direct health services.
Pursuant to such policy, two health systems have evolved which are notably [**42] unequal. In general terms, we can state that the quality of health care in Puerto Rico has come to depend predominantly on the financial capability of the person to cover the cost thereof with his/her own resources.
Within this scheme, the Department of Health has assumed the care of the medically indigent sector of our population. The well-intended efforts of its officials have not been sufficient to counter the adverse effects which factors such as the following have had on the quality of the Department's services: budget insufficiency; increasing costs of technology and medical supplies; bureaucracy and government centralization; and political partisan interference with its efforts. [Emphasis added.]
Since 1967, there have been several attempts in Puerto Rico to reform medical-hospital services offered by the Department. However, it has not been possible to narrow the ever growing gap between the quality of public and private services.


This history of failing reform is what this case's long history of health care violations parallels.
The remedies fashioned by the court to correct the constitutional violations pertaining to Plaintiffs rights in the area of medical [**43] and mental health care have run the gamut from general injunctions, to more specific injunctions, to detailed and itemized plans, to pertinent modifications fine tuning particular portions of those plans, to complementary orders addressed to particular obstacles to the delivery of adequate care to inmates, to, finally, the 1998 Opinion and Order which attempts to alter the way mental and medical health services to inmates are delivered, in order to make this delivery more efficient and competitive. All of this in an effort to [*336] correct what continues to be the unconstitutional manner in which inmates' health care is provided or not provided at all in the AOC. The record of this case demonstrates that pre-1997 efforts to correct current and ongoing constitutional violations in the medical area, have failed. It is, therefore, indisputable that in order to be effective, it is necessary that the relief ordered by this court reach out for new solutions. Instead of the relief proposed by the court's expert in 1997, receivership, this court approved the less intrusive remedy proposed in the joint proposal of 1997 to create the Correctional Health Services Corporation. This was and continues [**44] to extend no further than necessary to correct the violation of the Federal right, and is narrowly drawn and constitutes the least intrusive means to correct the violation. See 18 U.S.C. § 3626(b)(3).
The best remedy was and remains a nonprofit corporation which when finally operational can work in the new private medical and health services economy. The defendants' evidence shows beyond speculation that right now the CHP depends at a disadvantage on the private sector on everything from lab testing and record storage and retrieval to medical and nursing personnel. Tr. at 552:2-5, 554:8-9, 601:1-24, 680:23-681:22. This is done in an ad hoc, helter-skelter way, as the need arises and failure is specifically disastrous - a psychiatrist is missing at the Guerrero facility which is supposed to operate two programs for mental health patients and addicts (La Posada - a psychosocial unit -- and intake) and a pharmacist at Zarzal. Tr. at 121:2-14, 240:13-17, 432:20-25, 613:20-614:5, 705:23-24. The Corporation can contract with the Administration of Corrections to provide services and plan: at present the Corporation, for example, has developed a telemedicine [**45] program to provide psychiatric services at Guerrero to correct for the impoverished availability of mental health personnel in the Western half of Puerto Rico. Tr. at 503:9-12. Thus, the creation of the not-for-profit corporation will lead to the restoration of the AOC's authority under Commonwealth law as the provider of health care to inmates, eliminate the present and intolerable duality in authority, and discharge the Secretary of Health from his court-imposed responsibilities.
The Court has financed through the use of fine funds the development of a modern health care services infrastructure: computerized health records to solve the age old danger of the untransported or lost charts and the treatment disasters that tens of thousands of expedientillos or temporary records produced; the system is scheduled to begin in April 2004. Tr. at 670:18-671:1. The Corporation is now at an acute point in the training of personnel to use that system and to abort that development would cause imminent and grievous harm to the plaintiffs by perpetuating a patently unconstitutional denial of their health care.
The only intrusion the Corporation represents is the need to access information [**46] and the attendance of personnel at training sessions. The need to remedy constitutional violations which are current and ongoing in undisputable and legally mandated. Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); North Carolina State Board of Education v. Swann, 402 U.S. 43, 28 L. Ed. 2d 586, 91 S. Ct. 1284 (1971); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971). If Federal courts are to exercise the judicial power of the United States, then they must provide a remedy to a plaintiff who complains about and proves violations of his constitutional rights when a case and controversy is properly presented within the court's jurisdiction. The court cannot understand how the work [*337] performed by the Corporation is either overintrussive or overbroad: access to records has worked out so well that there is now a computerized systemwide network due to begin operations as soon as personnel are trained. And the few hours needed to train personnel is an intrusion de minimis compared to the health care benefits that will accrue to the plaintiff class. The government has not done it, the Corporation has.
The Corporation [**47] is not meant to have an exclusive, perennial right to deliver health care to prisoners. Once organized and structured it will compete in a free market with others. One or two years of Court overseen contracting will prepare the Administration of Corrections - under Commonwealth law the government agency responsible for prison health care - for the task of negotiating with the private sector and making whatever choice is legally available.
The parties were instructed at the beginning of the hearing on these matters that they should limit their evidence to the existence or not of constitutional violations to the members of Plaintiff Class. Tr. at 172:2-9. Defendant wishes, further, to present evidence on the necessary-narrow-least intrusive inquiry. Tr. at 171:10-21. Given the severe time constraints imposed by the PLRA, and the potentially unnecessary delay in the implementation of much needed improvements generated by the CHSC, and the halting of functions already provided by the CHSC, the Court requested that Defendant Rullan make a proffer as to the evidence he wishes to present in this regard. Tr. at 1321:2-13. Based on the proffer made by Defendant Rullan in open Court, the evidence [**48] he wishes to present in this regard will add nothing to the inquiry this Court must make in order to resolve defendant Rullan's PLRA motion, it is simply irrelevant.
When first asked to make a proffer, Defendant responded through counsel with a generalized allegation that, "the Corporation is not the least intrusive remedy because they, as of this date have not provided the type of medical services that are being provided by the Correctional Health program" Tr. at 1321:21-24. When doing nothing is "intrusive" was not explained and the assertion was made in bad faith. The Corporation's development is behind schedule but it has already provided computer equipment and established an interinstitutional communication network at the central level, and contributes with the administrative part in purchases, personnel and in accounting and finance and in addition, to medical billing, according to Dr. Mena's testimony. Tr. 502-503. When the court insisted upon the specifics, Defendant stated that he wished to take discovery on the matter. Tr. at 1322:7-15. Why Defendant could not have prepared himself by taking discovery prior to filing the PLRA motion rather than burdening this court's already [**49] constrained time to issue a decision on his PLRA motion was not explained. n9 Regardless of whatever need may exist to obtain particularized facts in order to more efficiently present their evidence, the matters Defendant Rullan proposes to conduct discovery on have no bearing on the issues to be decided by this court. Rather, it appears that Defendant Rullan wishes to conduct a smear campaign in an effort to show that the persons operating the CHSC are corrupt or somehow morally reprehensible and/or incompetent and that the CHSC is not ready at present to provide the necessary health care - a point which is not disputed [*338] by any one since the CHSC has not completed its organization.

n9 The defendant also issued and served trial subpoenas requiring the production, from the Corporation and its board members, a broad spectrum of documents for five or six years.

The presentation of such evidence is unnecessary to the court because it in no way addresses the question of whether the challenged relief is "narrowly drawn, [**50] extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." Rather, the evidence Defendant Rullan wishes to present is directed to whether the CHSC is operating as it should in light of state law requirements and the orders of this Court. n10 None of the factual matter specified by Defendant Rullan in his proffer suggest any need for alarm; but if Defendant Rullan has concerns about how the CHSC is being operated, etc., he should feel free to bring those to the Court's attention in order to request that the Court take steps to address those concerns. These facts do not, however, render the relief entered by the Court in 1998 more intrusive, less narrow or less necessary; nor do they implicate any serious need to modify that relief.

n10 Any violation of commonwealth law however unspecific would be a matter for Commonwealth courts and other agencies, not for this Court. And the utter absence of specificity in Defendant's proffer denudes the proffer of any credibility.

[**51]
On January 14, 2004 a unanimous Supreme Court decided Frew v. Hawkins, 540 U.S. , 157 L. Ed. 2d 855, 124 S. Ct. 899 (2004). n11 The Court stated the controversy involved thus: "Judicial enforcement of [a] 1996 consent decree is the subject of the present dispute. The decree is a detailed document about 80 pages long that orders a comprehensive plan for implementing the federal statute. In contrast with the brief and general mandate in the statute itself, the consent decree requires the state officials to implement many specific procedures". Frew, 157 L. Ed. 2d 855, 124 S. Ct. 447. The Court further explained: "To ensure the enforcement of federal law, however, the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law. Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). This standard allows courts to order prospective relief see Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Milliken v. Bradley, 433 U.S. 267, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977), as well as measures ancillary to appropriate prospective relief, Green v. Mansour, 474 U.S. 64, 71-73, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1986) [**52] [...]"

n11 Frew arises under a Medicaid program, Early and Periodic Screening, Diagnosis and Treatment. (ESPDT), Title 42 USC § § 1396a(a)(43), 1396d(r)).

The Court then goes on to describe the nature of a consent decree in terms that fit nicely the issues before the court:
Consent decrees have elements of both contracts and judicial decrees. Firefighters v. Cleveland, 478 U.S. 501, 519, 92 L. Ed. 2d 405, 106 S. Ct. 3063(1986). A consent decree "embodies an agreement of the parties" and is also "an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 116 L. Ed. 2d 867, 112 S. Ct. 748 (1992). Consent decrees entered in federal court must be directed to protecting federal interests. In Firefighters, we observed that a federal consent decree must spring from, and serve to resolve, [**53] a dispute within the court's subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and [*339] must further the objectives of the law upon which the complaint was based. 478 U.S., at 525.


Frew, 157 L. Ed. 2d 855, 124 S. Ct. 899 . This is especially pertinent to the court's decision because the joint proposal, the court's approval in May 1998 and subsequent orders brings this matter within the Firefighters doctrine. In Frew the Court went on to restate the obvious: "Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced." Slip Opinion at 9.
Finally the Court teaches
When a federal court has entered a consent decree under Ex parte Young, the law's primary response to these concerns has its source not in the Eleventh Amendment but in the court's equitable powers and the direction given by the Federal Rules of Civil Procedure. In particular, Rule 60(b)(5) allows a party to move for relief if "it is no longer equitable that the judgment should have prospective application." The Rule encompasses the traditional power of a court of equity to modify its decree [**54] in light of changed circumstances. In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 116 L. Ed. 2d 867, 112 S. Ct. 748 (1992), the Court explored the application of the Rule to consent decrees involving institutional reform. The Court noted that district courts should apply a "flexible standard" to the modification of consent decrees when a significant change in facts or law warrants their amendment. Id., at 393. See also Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114 (CA3 1979) (modifying consent decree implementing Pennsylvania's EPSDT program in light of changed circumstances).
Rufo rejected the idea that the institutional concerns of government officials were "only marginally relevant" when officials moved to amend a consent decree, and noted that "principles of federalism and simple common sense require the [district] court to give significant weight" to the views of government officials. 502 U.S., at 392, n. 14. When a suit under Ex parte Young requires a detailed order to ensure compliance with a decree for prospective relief, and the decree in effect mandates the State, through its named officials, to administer [**55] a significant federal program, principles of federalism require that state officials with front-line responsibility for administering the program be given latitude and substantial discretion.
The federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials. As public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities. A State, in the ordinary course, depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. The basic obligations of federal law may remain the same, but the precise manner of their discharge may not. If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.


Frew, 157 L. Ed. 2d 855, 124 S. Ct. 899 The Secretary, however, has not moved for modification but for termination.
The court has no doubt that [**56] the moving defendant's own evidence establishes [*340] that the Correctional Health Program is still malfunctioning, that the medical and mental health Plans are not nearly being complied with and that egregious and systematic violations of plaintiffs federal, constitutional rights to health care are being violated. The CHCC is still necessary: the Correctional Health Program of the Department of Health is simply not doing the job. The Administration of Corrections is blamed and the AOC by itself is not prepared to take over the task. The Corporation has been developing systems and can continue to help along the agency charged by Commonwealth law to do the job.
Far from proving Defendant Rullan's case, the evidence presented shows that there currently continue to be ongoing constitutional violations of the rights of Plaintiff Class in the areas of medical and mental health care and that Defendant is not in compliance with the Medical and Mental Health Care Plan. Plaintiffs request that, based on the evidence presented by Defendant, judgment be entered denying Defendant's PLRA Motion under Fed. R. Civ. P. 52(c).
APPLICABLE LAW
The duty of [**57] prison authorities to incarcerated inmates is well settled law. The Eighth Amendment prohibits punishments which are incompatible with "the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 100-101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958); Weems v. United States, 217 U.S. 349, 378, 54 L. Ed. 793, 30 S. Ct. 544 (1910), or which "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). Government officials are therefore required by the Constitution to provide medical care to those who are incarcerated:


An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested [**58] in modern legislation codifying the commonlaw view that "it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."
We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.


Estelle v. Gamble, 429 U.S. 97, 103-106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (citations and footnotes omitted). Thus, it is required that mental, see Torraco v. Maloney, 923 F 2d 231, 234 (1st Cir. 1991) (citations omitted) (there is "no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.'") and medical health services [**59] be provided at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards. U.S. v. DeCologero 821 F.2d 39, 43 (1st Cir. 1987). A lack of funds will not excuse [*341] the failure of correctional systems to maintain a certain minimum level of medical service necessary to avoid the imposition of cruel and unusual punishment. Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991).
A constitutional violation is therefore established when government officials show deliberate indifference to those medical needs which have been diagnosed as mandating treatment, conditions which obviously require medical attention, conditions which significantly affect an individual's daily life activities, or conditions which cause pain, discomfort or a threat to good health. Brock v. Wright, 315 F.3d 158, 162 (2nd Cir. 2003); see also McNally v. Prison Health Servs., 28 F. Supp. 2d 671, 673-4 (D. Maine 1998) (treatment for HIV). Accordingly, the following have been held to implicate Eighth Amendment rights in the area of mental and medical health care:


a. Neglecting to fully [**60] screen incoming inmates or to detect mental health problems. DeGidio v. Pung, 920 F.2d 525, 529-33. (8th Cir. 1990); LaReau v. Manson, 651 F.2d 96, 109 (2nd Cir. 1981); Inmates of Occoquan v. Barry, 717 F. Supp. 854 (D.D.C. 1989).

b. Failing to provide a sick call system that ensures access to care and that is capable of effectively handling emergencies. Bass v. Wallenstein, 769 F.2d 1173 (7th Cir. 1985).

c. Failure to take steps to minimize the risk of inmate suicide, see generally, Partridge v. Two Unknown Police Officers, 791 F.2d 1182 (5th Cir. 1986), and appropriate treatment for suicidal patients, Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001).

d. "Interfering with the treatment once prescribed." Estelle, 429 U.S. at 105. Examples of this form of deliberate indifference are


i. the failure to appropriately administer necessary medication, Montgomery v. Pinchak, 294 F.3d 492 (3rd Cir. 2002) (HIV); Wynn v. Southward, 251 F.3d 588 (7th Cir. 2001) (heart medication); Roberson v. Bradshaw, 198 F.3d 645 (8th Cir. 1999) [**61] (diabetes);

ii. the failure to provide transportation to scheduled specialty appointments and other therapy, Kaminsky v. Rosenblum, 929 F.2d 922 (2nd Cir. 1991); Waldrop v. Evans, 871 F.2d 1030 (11th Cir. 1989); and

iii. The failure to provide prescribed medical diets. Roberson v. Bradshaw, 198 F.3d 645 (8th Cir. 1999); Kyle v. Allen, 732 F. Supp. 1157 (S.D. Fla. 1990).


e. Delays in diagnosing and administering appropriate treatment. Clement v. Gomez, 298 F.3d 898 (9th Cir. 2002); H.C. v. Jarrard, 786 F.2d 1080 (11th Cir. 1986)

f. The failure to provide appropriate post surgical care. Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991); Wood v. Sunn, 865 F.2d 982 (9th Cir. 1988).

g. Cohabitation of severely mentally ill patients with the general population without being tendered any type of mental health treatment, Cortes-Quinones v. Jimenez Nettleship, 842 F.2d 556, 560-61 (1st Cir. 1998).

h. Failure to provide a sick call system that ensures the needed care. Bass by Lewis v. Wallenstein, 769 F.2d 1173 (7th Cir. 1985). [**62]

i. Failure to provide adequate facilities and equipment. Langley v. Coughlin, 888 F.2d 252 (2nd Cir. 1989), Inmates of Allegheny County Jail v. Wecht, 874 F.2d. 147 (3rd Cir. 1989).

j. Inadequate record keeping and records management which are critically important to the continuity of medical care, otherwise, the possibility for disaster is created. Montgomery v. [*342] Pinchak, 294 F.3d 492 (3rd Cir. 2002); Miranda v. Munoz, 770 F.2d 255 (1st Cir 1985).
These and other wrongs of constitutional import have been found by this Court to exist and to constitute violations of the rights of the Plaintiff Class as set out in this Court's Opinion and Order of 18 May 1998. Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151, 179 (D.P.R. 1998). The historical systemic indifference to inmates' medical and mental health needs and the institutional failures which up to this day continue to threaten the health and the medical safety and well-being of the Plaintiff Class require the continued operation of relief granted in favor of the Class as well as the continued supervision of this Court. [**63] See generally, LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993).
Based on the evidence presented by Defendants there can be no doubt that all of the above conditions continue to prevail at AOC. These demonstrate that relief remains necessary to address current and ongoing constitutional violations in the areas of medical and mental health care.
The Medical and Mental Health Plans unequivocally impose a joint responsibility upon both the AOC and the Department of Health for the delivery of health care to the inmates. See P1 of the Medical Plan. The Plans further require interdepartmental cooperation between both agencies to achieve its goals. See P4 of the Medical Plan. By doing so, the Medical and Mental Health Plans adopted the principles of cooperation, trust and teamwork between the medical and correctional components of a prison system that are required under every set of standards, be it the Constitution, ACA or NCCHC, to be able to provide timely and adequate medical services to the inmates. Tr. at 1096-97.
When this restructuring of responsibilities, agreed to and voluntarily undertaken by all parties involved, was initiated, it involved executive [**64] and administrative orders issued by state officials under state law to transfer primary healthcare responsibilities to the Secretary of Health. See e.g. Ex. D. These orders were issued pursuant to and under the authority of a consent decree. Simply put, under the Constitution and Medical and Mental Health Plans the AOC and the DOH are partners or co-venturers in the delivery of the medical and mental health services to the Plaintiff Class. Wilson v. Town of Mendon, 294 F.3d 1, 14-15 (1st Cir. 2002) (Joint venture theory succeeds where a defendant "'associated himself with the venture, participated in it as something he wished to bring about, and sought by his actions to make it succeed.'"); see also cases relating t joint liability under § 1983 Northington v. Marin, 102 F.3d 1564 (10th Cir. 1996); Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993); Finch v. City of Vernon, 877 F.2d 1497 (11th Cir. 1989).
Hence, Defendant Rullan's pretension of putting the blame for the serious and pervasive access problems, the sheer inadequacy of the physical facilities and the failure to provide medical diets exclusively on [**65] the shoulders of the AOC, fails as a matter of law.
As discussed above, based on the record of this case and on the evidence brought before the Court the relief relating to the CHSC was and continues to extend no further than necessary to correct the violation of the federal right, and is narrowly drawn and constitutes the least intrusive means to correct the violation. 18 USC § 3626(b)(3).
PLAINTIFFS' CROSS MOTION
In their opposition to Defendant's Motion the plaintiff class cross-moved to terminate two sections of the Medical Plan assigning the primary responsibility of inmates [*343] health care to the Department of Health so that responsibility would return to the Administration of Correction, which is the agency designated by Commonwealth law to provide medical, dental and mental health services to the inmate population, 4 LPRA § 1112(f). By returning to the Administration of Corrections the plaintiffs seek to unify responsibility and accountability. At present the Secretary of Health blames the Administrator of Corrections for his flagrant failures and nothing, it seems, can be done to make both agencies work together. The Defendant joins the plaintiffs. [**66] Typically the defendants join because, in any case, they will continue the same disastrous present arrangements by interagency agreement as a matter of "public policy". n12 They will of course do so at their peril. The defendants and their counsel have not brought forth any basis for this unknown public policy.

n12 The Supreme Court of Puerto Rico has unequivocally stated that the Commonwealth's public policy is established by the Constitution of Puerto Rico, the statutes enacted thereunder and their judicial interpretation. Hernandez Torres v. Hernandez Colon, 129 P.R. Dec. 824, 878, 1992 Juris P.R. 16 (1992), citing Ocasio Carrasquillo v. Rosa Berrios, 21 P.R. Offic. Trans. 29, 121 P.R. Dec. 37, 1988 Juris P.R. No. 42 (1988); Ortiz Andujar v. ELA; 122 P.R. Dec. 817, 22 P.R. Offic. Trans. 774, 1988 Juris P.R. 147 (1988); Hurd v. Hodge, 334 U.S. 24, 92 L. Ed. 1187, 68 S. Ct. 847 (1948). The last volume of the Supreme Court's decisions to be published in English is volume 100.

The plaintiffs' request is framed thus:
The scheme set up to place control and responsibility in the DOH has not worked because of conflicting [**67] patterns of authority and command lines. For years on end the conflict has survived even when the defendants have called on the Court's authority to help out. The plaintiffs continue to suffer, as shown above, by such inter-departmental conflicts. The plaintiffs must request that the Court terminate Part I (A) (1) and (2) of the Medical Plan. The plaintiffs also move that all orders relating to the Medical Cadre be terminated: these are Order to Implement Medical Cadre Plan, Dkt. # 6977; Order To Assign Correctional Officers to the Medical Cadre (several docket numbers are: 7345; 7417; 7453, and 7574). Other Orders referring to budget and transitory matters touching the Medical Cadre are docket numbers 7106; 7418; 7611.
There are a number of orders requested by the parties to dispose of all kinds of problems with administration and execution of the Medical and Mental Health Plans, all of them, usually requested by defendants and plaintiffs, attend transient matters, are now useless and sometimes confusing. They are: Order that the Chief Correctional Health Care Coordinator Take All Necessary Contractual Steps to Maintain Continuity of Services to Inmates in the Custody [**68] of the Administration of Corrections, (Dkt. # 6558); Order Regarding Compensation Scale for Correctional Health Employees and Contractors (Dkt. # 6830); Order Regarding Purchase of Vehicles for Correctional Health Program (Dkt. # 6855); Order stating that Dr. Ernesto Torres Arroyo, MD as Executive Director of the Correctional Health Program shall take all necessary steps to enforce his line of authority, etc. (Dkt. # 7573); Endorsed Order of 6/30/97 regarding Joint Motion Stating the Fiscal Arrangements Which Shall Be Made to Pay for the Professional Services Contracted for by the Chief Health Care Coordinator Pursuant to the Court's order of 16 May 1997 (Dkt. # 6567).
THE MOTION TO INTERVENE
The Union General de Trabajadores, affiliated to the SEIU, Local 1199 on November [*344] 7, 2003 filed a motion to intervene under Rule 24 (b) of the Federal Rules of Civil Procedure to join the Secretary's motion, to argue that the privatization of services will put at risk health services and to announce the pendency of two resolutions in the Commonwealth Legislative Assembly and suggesting that it would be prudent to wait until the [**69] Senate and House investigations are over before holding hearings (Dkt. # 8523). The court took the motion under advisement and invited counsel to remain; counsel left. The Motion for intervention certainly is not timely, the Union has not specified the commonality of fact or law required by the Rule and has left in the hands of management's lawyers the unions representation. The Union's participation in this case would add nothing but complexity and confusion. The bizarre arrangement whereby the Union's interest are represented by counsel for management is unintelligible.
RULE 52 (c)
Under Rule 52(c), district courts are authorized to enter judgments based on partial findings once a party has presented its evidence with respect to a particular issue:


Judgment on Partial Findings. If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until [**70] the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.


Fed. R. Civ. P. 52 (c). According to Moore's, "A judgment of partial findings may be invoked when: (1) The party pursuing the claim has not demonstrated the elements of the claim either in fact or in law; or (2) the evidence of the party pursuing the claim has established one of the opposing party's defenses as a matter of fact or law." James Wm. Moore et al., Moore's Federal Practice, P52.50[2] (3d ed 2003). In this case the Rule is properly invoked on both counts: the defendant Secretary has failed to prove his allegations and has established to the satisfaction of even the PLRA, that massive numbers of plaintiffs fail to access and receive health care services for very serious conditions because the systems in place do not work.
Upon the findings and conclusions set out above IT IS SO ORDERED AND ADJUDGED that:


(1) Defendant's Motion Under the PLRA to Vacate or Terminate the Court Relief Mandating the Transfer and Privatization of the Correctional Health Program of the [**71] Department of Health is denied.

(2) Plaintiffs' Cross Motion is granted. Therefor Part I(A)(I) and (2) of the Medical Plan is terminated, as well as Order to Implement Medical Cadre Plan, (Dkt. # 6977) and the various orders to assign officers to the Medical Cadre (Dkt. # 7345); (Dkt. 7417); (Dkt. 7453); (Dkt. 7574); (Dkt. 7106); (Dkt. # 7418), and (Dkt. 7611). Other orders terminated are: Order that the Chief Correctional Health Care Coordinator Take All Necessary Contractual Steps to Maintain Continuity of Services to Inmates in the Custody of the Administration of Corrections, (Dkt. # 6558); Order Regarding Compensation Scale for Correctional Health Employees and Contractors (Dkt. # 6830); Order Regarding Purchase of Vehicles for Correctional Health Program (Dkt. # 6855); Order stating that Dr. Ernesto Torres Arroyo, MD as Executive Director of the [*345] Correctional Health Program shall take all necessary steps to enforce his line of authority, etc. (Dkt. # 7573); Endorsed Order of 6/30/97 regarding Joint Motion Stating the Fiscal Arrangements Which Shall Be Made to Pay for the Professional Services Contracted for by the Chief Health Care Coordinator Pursuant [**72] to the Court's order of 16 May 1997 (Dkt. # 6567).

(3) The Union de Trabajadores Motion To Intervene is denied.
IT IS FURTHER ORDERED that the Secretary of Corrections and the plaintiff class shall meet and file with the Court within forty-five (45) days of the entry of this order a plan on how the Administrator of Corrections will assume his legal responsibility to provide health care to inmates.
At San Juan, Puerto Rico, this 26 day of January 2004.
JUAN M. PEREZ-GIMENEZ
U.S. District Judge

Feliciano v. Rullan, 378 F.3d 42 ( 08/06/2004)

[1] United States Court of Appeals For the First Circuit


[2] No. 04-1300


[3] 378 F.3d 42, 2004


[4] August 06, 2004


[5] CARLOS MORALES FELICIANO ET AL., PLAINTIFFS, APPELLEES,
v.
JOHN A. RULLAN, SECRETARY OF THE PUERTO RICO DEPARTMENT OF HEALTH, ET AL., DEFENDANT, APPELLANT.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


[7] Carlos A. Del Valle Cruz, with whom Anabelle Rodr¡guez, Secretary of Justice, Eileen Landrón Guardiola, Eduardo A. Vera Ram¡rez, and Landrón & Vera, Llp, were on brief, for appellant.


[8] Carlos V. Garc¡a Gutiérrez, with whom Alejandra Bird López, Manuel A. Rodr¡guez Banchs, Ricardo Alfonso Garc¡a, and Civil Action and Education Corporation were on brief, for appellees.


[9] Before Selya, Lynch and Lipez, Circuit Judges.


[10] The opinion of the court was delivered by: Selya, Circuit Judge


[11] Like the legendary Phoenix, this class action litigation involving prison conditions in Puerto Rico is seemingly incapable of eternal rest. The iteration now before us focuses on prospective injunctive relief ordered by the district court in 1998 (the centerpiece of which is the proposed privatization of medical and mental health care throughout the correctional system). Despite his predecessor's enthusiastic assent to that arrangement, the Commonwealth's Secretary of Health (the Secretary), acting in his official capacity, sought five years later to vacate or terminate the consent decree embodying that relief. *fn1 Following an evidentiary hearing, the district court rejected that initiative. Morales Feliciano v. Calderón Serra, 300 F. Supp. 2d 321 (D.P.R. 2004) (Morales IV). The Secretary now attacks this decision on several fronts. He asserts, inter alia, that the court acted ultra vires; that the court's 1998 order was void ab initio for failure to meet the requirements of section 802 of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321-66, § 802 (1996), codified at 18 U.S.C. § 3626; and that in all events, the order should be terminated because the district court's supportive factfinding was clearly erroneous and infected by errors of law. As a fallback, he argues that the district court bungled the evidentiary hearing and that, at a bare minimum, the matter should be remanded for reconsideration. Finding these importunings unpersuasive, we affirm the decision below.


[12] I. BACKGROUND


[13] Given the long and tortuous history of this litigation - two years ago, we acknowledged that "the lore of this case is Byzantine," Morales Feliciano v. Rullán, 303 F.3d 1, 3 (1st Cir. 2002) (Morales III) - we confine our introductory comments to those events that are most directly germane to this appeal. The shelves of any well-stocked law library will satisfy the appetites of readers who hunger for more exegetic detail. See, e.g., Morales III, 303 F.3d 1; Morales Feliciano v. Parole Bd., 887 F.2d 1 (1st Cir. 1989); Morales IV, 300 F. Supp. 2d 321; Morales Feliciano v. Rosselló Gonzalez, 124 F. Supp. 2d 774 (D.P.R. 2000); Morales Feliciano v. Rosselló Gonzalez, 13 F. Supp. 2d 151 (D.P.R. 1998) (Morales II); Morales Feliciano v. Hernandez Colon, 775 F. Supp. 487 (D.P.R. 1991); Morales Feliciano v. Hernandez Colon, 775 F. Supp. 477 (D.P.R. 1991); Morales Feliciano v. Hernandez Colon, 771 F. Supp. 11 (D.P.R. 1991); Morales Feliciano v. Hernandez Colon, 754 F. Supp. 942 (D.P.R. 1991); Morales Feliciano v. Hernandez Colon, 704 F. Supp. 16 (D.P.R. 1988); Morales Feliciano v. Hernandez Colon, 697 F. Supp. 51 (D.P.R. 1988); Morales Feliciano v. Hernandez Colon, 672 F. Supp. 627 (D.P.R. 1987); Morales Feliciano v. Hernandez Colon, 697 F. Supp. 26 (D.P.R. 1986); Morales Feliciano v. Romero Barcelo, 672 F. Supp. 591 (D.P.R. 1986); Morales Feliciano v. Romero Barcelo, 605 F. Supp. 967 (D.P.R. 1985); Morales Feliciano v. Romero Barcelo, 497 F. Supp. 14 (D.P.R. 1979) (Morales I).


[14] In the 1970s, a group of prison inmates initiated a class action alleging "dire shortcomings in virtually every aspect of prisoner confinement" in the Puerto Rican correctional system. Morales III, 303 F.3d at 3. The district court found the plaintiffs likely to succeed on the merits and issued preliminary injunctive relief. Morales I, 497 F. Supp. at 39-41. The defendants made little progress and the district court, in March of 1986, appointed a monitor. See Morales III, 303 F.3d at 3; Morales Feliciano v. Romero Barcelo, 672 F. Supp. at 621. The court charged the monitor with studying various elements of the correctional system and recommending remedial action. With the monitor's assistance, the court became more proactive and issued a torrent of orders, including temporary restrainers and contempt citations. The court thereafter imposed multimillion dollar fines for the most egregious failures to comply with its directives.


[15] In 1990, the court ordered the implementation of medical and mental health care plans recommended by the monitor. These plans transferred the primary responsibility for medical and mental health care in the correctional system from the Administrator of Corrections (the AOC) to the Secretary. The plans also required that the Secretary employ for a minimum of three years a chief health care coordinator (the CHCC) who would bear responsibility for easing the transition and coordinating compliance.


[16] Over time, prison conditions improved. In 1996, the district court entered a partial final judgment that settled several disputed issues and urged attempts at consensus-based compliance efforts as to other issues. Despite improvements in many areas, the delivery of medical and mental health care lagged behind.


[17] In April of 1997, a court-appointed expert found the existing health care programs incapable of meeting constitutional standards and suggested, as an alternative, the appointment of a receiver. The parties (who, over a quarter of a century, have agreed on little else) unanimously opposed this recommendation. They suggested instead the formation of a private non-profit corporation to provide medical and mental health services to the inmate population. On September 26, 1997, the parties drafted, executed, and filed a stipulation embodying this consensus. Under the terms of the stipulation, a non-profit corporation was to be formed. The corporation would be structured to provide health care services, consistent with the 1990 plan, to all individuals held in institutions operated by the AOC. The stipulation pledged the parties' full cooperation, required the Secretary and the AOC to lay the groundwork for a transition, and offered to subject the process of privatization to the supervision of the district court. Finally, the stipulation memorialized the parties' agreement to engage in further discussions concerning the role and authority of the CHCC.


[18] The district court endorsed the stipulation and, thus, assumed ownership of the privatization plan that had been conceived by the parties. See Morales III, 303 F.3d at 3-4; see also Morales II, 13 F. Supp. 2d at 212-14 (justifying the adoption of the privatization remedy by elaborating on the grave constitutional deficiencies that continued to haunt the existing programs). The order, as it pertains to this appeal, has retained its original substance. The non-profit entity, known as the Correctional Health Services Corporation (the CHSC), has been formed.


[19] The parties and the district court envisioned the CHSC as a key piece of the privatization machinery. Withal, the CHSC was intended as a transitional device rather than as the exclusive provider of inmate health care services in perpetuity. The parties expected that within a few years of its full implementation, the CHSC would compete with private health care providers for contracts to furnish health care services to those persons held in the AOC's custody. This expectation remains in force.


[20] The CHSC has a checkered history. Originally, the parties hoped that it would begin to function as early as July 1, 1998, and become fully operational as a provider of health care to the inmate population by the end of that year. That prediction proved wildly optimistic. Although the district court, using accrued fines, has made substantial funding available to the CHSC - as of the date of the district court's decision, roughly $55,000,000 had been spent on the privatization solution - this monetary infusion has not yet brought the project to fruition. While the CHSC has made substantial progress toward reaching its stated goals, the pace has been much slower than anticipated. To this point, the CHSC has developed an administrative infrastructure, fashioned an impressive set of substantive programs, and constructed needed facilities. As a result, it has begun contributing to the management of payroll, staff assignments, inventory, purchasing, billing, and financing. The CHSC's achievements in formulating substantive programs include the creation of an electronic database for health records, patient tracking, and the keeping of appointments; the design of a telemedicine program to enable remote diagnosis and treatment of psychiatric illnesses; and the training of personnel to maximize the efficacy of these (and other) programs. The CHSC also has improved the quality of the facilities and equipment dedicated to the provision of inmate health care. In the same vein, it has purchased and installed computers at most of the institutions operated by the AOC. Last - but far from least - it is in the process of developing a new acute care hospital.


[21] Without in any way minimizing either the value or extent of these accomplishments, it is evident that the CHSC has lagged far behind the timetable that its proponents originally envisioned. Part of the reason is that court supervision has made the process cumbersome (for example, lengthy periods of time have been consumed in the submission and approval of budget proposals). Other factors, such as snail's-pace negotiations with outside contractors, false starts, and resistance to change, have contributed to the delay. Though this lag time may have been unavoidable, the fact remains that, to this date, not a single patient has been treated by the CHSC.


[22] On October 1, 2003, the Secretary, emphasizing this protracted period of delay and the mounting costs of completing the necessary infrastructure, filed a motion under the PLRA to vacate or terminate the privatization component of the extant consent decree. The plaintiffs cross-moved to modify the medical and mental health plans by terminating sections of the decree that assigned the primary responsibility for inmate health care to the Secretary. See Morales IV, 300 F. Supp. 2d at 342-43. The cross-motion went unopposed and the district court granted it. Id. at 343.


[23] Following an evidentiary hearing on the main motion, the court found that pervasive and persistent constitutional violations continued to shackle the delivery of health care in Puerto Rico's correctional system. Id. at 323-31. The court also found that the contemplated relief - privatization - satisfied the requirements of the PLRA. Id. at 331-38. Accordingly, the court upheld the challenged portion of the consent decree and directed the AOC to meet with the plaintiff class and submit a further plan for achieving constitutional compliance. Id. at 344-45. The Secretary now appeals. *fn2


[24] II. APPELLATE JURISDICTION


[25] We start by clarifying the extent of our jurisdiction. It is beyond serious question that we have jurisdiction over the main elements of this appeal. See 28 U.S.C. § 1292(a)(1) (conferring jurisdiction over interlocutory orders refusing to terminate injunctions). The Secretary, however, has also attempted to raise a tangential issue. With regard to that issue, appellate jurisdiction is more problematic.


[26] The circumstances are as follows. As part of its ruling below, the district court ordered the AOC to "meet [with the plaintiff class] and file with the Court within forty-five (45) days . . . a plan on how the [AOC] will assume his legal responsibility to provide health care to inmates." Morales IV, 300 F. Supp. 2d at 345. The Secretary asserts that this order, ex proprio vigore, violates the PLRA and contravenes Supreme Court precedent regarding limitations on the power of federal courts to enforce state law against state officers. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 (1984) ("[A] federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when . . . the relief sought and ordered has an impact directly on the State itself."). We cannot reach the merits of these claims for we have no jurisdiction over them.


[27] This result is largely dictated by the rationale of our decision in a prior phase of this seemingly endless litigation. In Morales III, we ruled that an order that "was within the lower court's reserved power to establish procedures for compliance with the court's earlier decrees" was not immediately appealable. 303 F.3d at 10. That reasoning is apposite here. A necessary correlate of the lower court's duty to supervise the ongoing process of privatization is the power to issue subsidiary orders in aid of that objective. We thus have no jurisdiction to entertain an interlocutory appeal from this portion of the court's decision (or even to consider the plaintiffs' contention that the Secretary lacks standing to register such a protest). *fn3


[28] III. THE MERITS


[29] We proceed to examine the remainder of the Secretary's asseverational array. He has loosed a scattershot attack. Only four of his claims are worthy of extended discussion, namely, (i) that the lower court lacked general equitable power to grant a privatization remedy; (ii) that the PLRA mandates vacation of the 1998 order as void ab initio; (iii) that, after almost five years of wheel-spinning, the PLRA now mandates termination of the prospective relief; and (iv) that the court repeatedly erred in the course of the evidentiary hearing. *fn4 We address these issues (some of which have subparts) sequentially.


[30] A. General Equitable Powers.


[31] The Secretary's first broadside need not detain us. He posits that the relief ordered here is an invalid exercise of federal equitable power. Because this argument presents a purely legal issue, it engenders de novo review. See Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 111 (1st Cir. 1994).


[32] At the outset, we note that this argument quite likely is by the boards. The Secretary's predecessor in office stipulated to the privatization remedy, and there is no claim that he lacked authority to do so. Normally, that would constitute a waiver, which would prevent the Secretary from making this argument altogether.


[33] Even if the Secretary is not bound by his predecessor's acquiescence - a matter on which we take no view - the Secretary did not present this argument to the district court and attempts to raise it for the first time on appeal. "It is a bedrock rule that when a party has not presented an argument to the district court, [he] may not unveil it in the court of appeals." United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992). At the least, then, the argument is forfeited.


[34] We nonetheless inquire briefly into the merits, as forfeited arguments (unlike waived arguments) ordinarily warrant review for plain error. Gómez v. Rivera Rodr¡guez, 344 F.3d 103, 118 (1st Cir. 2003). That type of review "entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant's] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).


[35] The Secretary concedes that injunctions - like this one - that have been issued pursuant to 42 U.S.C. § 1983 are limited only by the court's inherent equitable powers. See, e.g., Giles v. Harris, 189 U.S. 475, 486 (1903) (Holmes, J.). He insists, however, that a federal court's equitable powers are restricted to the remedies that were available in equity in 1789 (at the time of the passage of the First Judiciary Act). This proposition is a correct statement of the law, see Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc., 527 U.S. 308, 318-19 (1999), but the Secretary's application of it fails plain error review.


[36] Specifically, the Secretary characterizes privatization as "a fairly recent endeavor" and claims, therefore, that there is no reasonable basis for holding that court-imposed privatization of duties ordinarily ascribed to the government is within the district court's armamentarium. Appellant's Br. at 29. If this crabbed view reflected the state of the law, equitable remedies would be frozen in time and new remedial applications could never be developed to meet contemporary needs. The view, however, is fundamentally at odds with the core principle that equity must evolve over time "in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition in which new primary rights and duties are constantly arising and new kinds of wrongs are constantly committed." Union Pac. Ry. Co. v. Chicago, Rock Island & Pac. Ry. Co., 163 U.S. 564, 601 (1896).


[37] Consistent with this principle, the Supreme Court has made clear that the inquiry into the availability of equitable relief in a particular case focuses upon whether the general manner of relief sought was available at equity in 1789. See Grupo Mexicano, 527 U.S. at 322. This inquiry is informed by a recognition that equity is flexible and that the boundaries of permissible relief are broad. Id. Thus, the relevant question is not whether a specific application of relief was available in 1789, but, rather, whether that general type of relief was available.


[38] In this case, the answer to that question is affirmative. At bottom, the endorsed anodyne - privatization - calls for relief in the nature of a mandatory injunction, and injunctive relief is a classic equitable remedy. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 211 n.1 (2002); Mertens v. Hewitt Assocs., 508 U.S. 248, 256 (1993); Griggs v. E.I. Dupont de Nemours & Co., 237 F.3d 371, 384 (4th Cir. 2001). A survey of contemporary applications of this rule supports this conclusion. Courts consistently have upheld relief in equity notwithstanding the fact that the particular remedial application was not available in 1789. School busing orders exemplify this point. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30 (1971); Morgan v. Kerrigan, 530 F.2d 401, 414-15 (1st Cir. 1976). If the Secretary's argument were sound, all such orders would be beyond the equitable power of a federal court.


[39] The short of it is that a federal district court, faced with pervasive and persistent constitutional violations, has not only the power but also the duty to render a decree that will, insofar as is possible, return matters to a constitutionally acceptable level. While the privatization remedy constitutes extraordinary relief and can be justified in only the most exceptional circumstances, the nature of the remedy is no different than that of a garden-variety mandatory injunction. Seen in this light, we conclude that the district court did not commit plain error in determining that it had the authority to approve and implement a privatization remedy jointly proposed by the parties.


[40] B. Compliance with the PLRA.


[41] In 1996, Congress enacted the PLRA, partially in an effort to curb the involvement of the federal judiciary in day-to-day prison management. See 141 Cong. Rec. 13,319 (1995) (statement of Sen. Abraham); id. at 14,418 (statement of Sen. Hatch). This ambient intent must guide our interpretation of the statutory text. See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997).


[42] The PLRA establishes standards for the entry and termination of all prospective relief in civil actions challenging prison conditions. See Miller v. French, 530 U.S. 327, 333 (2000). The term "prospective relief" encompasses "all relief other than compensatory monetary damages." 18 U.S.C. § 3626(g)(7). The statute requires that prospective relief "shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." Id. § 3626(a)(1). It further provides that a federal court "shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." Id. A party is entitled to immediate termination of any relief that has been granted in the absence of findings as to these criteria. Id. § 3626(b)(2). Conversely, however, prospective relief "shall not terminate if the court makes written findings based on the record that prospective relief [meets the above requirements]." Id. § 3626(b)(3).


[43] This statutory backdrop provides the setting for the Secretary's next challenge to the propriety of the privatization order. This challenge has three foci, each spawned by the PLRA. We deal with them in order.


[44] 1. Validity of the 1998 Order. The Secretary first argues that, when originally entered in 1998, the order approving privatization did not meet the PLRA's requirements and, thus, "must be set aside without further consideration." Appellant's Br. at 31. Because the district court did not make the findings specifically required by the PLRA coincident with the entry of its 1998 order, the Secretary's thesis runs, the order was void ab initio. *fn5


[45] The Secretary's thesis hinges on the premise that when prospective relief does not meet the PLRA's requirements at the moment of issuance, the decree is void without reference to the statutory termination procedure. On this premise, the termination procedure applies only to (i) prospective relief entered before the effective date of the PLRA and (ii) prospective relief entered after that date which is accompanied by the requisite narrowness-need-intrusiveness findings. Prospective relief entered after the PLRA's effective date but unaccompanied by narrowness-need-intrusiveness findings is simply void.


[46] There is no textual support for the Secretary's position. He relies on the mandatory language of 18 U.S.C. § 3626(a), which states that "[t]he court shall not grant or approve any prospective relief" in the absence of specific findings. But this subsection sets forth the standard district courts must follow when determining whether prospective relief not yet ordered is permitted by the PLRA. Gilmore v. California, 220 F.3d 987, 999 (9th Cir. 2000) ("If prospective relief has already been granted by a court, § 3626(b) controls."). Here, however, privatization constitutes the status quo (and the Secretary advanced no PLRA-based argument at the time that privatization was originally approved).


[47] The only authority cited by the Secretary - Rouse - does not support his point of view. He asserts that Rouse drew a distinction between orders issued prior to the enactment of the PLRA and those issued subsequent thereto. That is incorrect. Rouse drew a distinction between "existing federal court orders" and those "not yet obtained." 129 F.3d at 654. That distinction contradicts the position that the Secretary advocates in this appeal.


[48] Accordingly, we hold that the procedure limned in 18 U.S.C. § 3626(b) applies to any existing prospective relief, regardless of when that relief was first ordered. See Miller, 530 U.S. at 333 (stating that section 3626(b) applies to "existing injunctions"); Harvey v. Schoen, 245 F.3d 718, 720 (9th Cir. 2001) (holding that prospective relief made "in the absence of the required findings" is immediately terminable "regardless of when ordered"); see also Rouse, 129 F.3d at 654 (suggesting that the termination procedures set forth in section 3626(b) apply to all existing federal court orders).


[49] Since privatization is required by a pre-existing court order, the situation is controlled by subsection (b), not subsection (a). See Rouse, 129 F.3d at 654. That makes a significant difference. Nothing in subsection (b) or in its legislative history speaks of vacating consent decrees but only of terminating them. That linguistic shift has practical consequences. "While terminating a consent decree strips it of future potency, the decree's past puissance is preserved . . . ." Id. at 662.


[50] That gets the grease from the goose. Although 18 U.S.C. § 3626(b) entitles a defendant to termination of existing prospective relief ordered in the absence of the requisite findings, that proviso excepts cases in which the court supportably finds that the particular form of prospective relief remains at the time of the challenge narrowly tailored, necessary, and relatively unintrusive. See id.; see also Guajardo v. Tex. Dep't of Crim. Justice, 363 F.3d 392, 394 (5th Cir. 2004) (per curiam). There is no time limitation present in section 3626(b)(2), nor does its language suggest that it reaches only those orders issued prior to the PLRA's effective date.


[51] To cinch matters, section 3626(b) provides that any order made in the absence of the required findings is subject to "immediate termination." This word choice is significant. See Rouse, 129 F.3d at 662. The verb "terminate" means "to put an end to" or "to end." Black's Law Dictionary 1482 (7th ed., 1999). If Congress had intended that orders issued in the absence of the required findings be void ab initio, it would almost certainly have chosen a phrase such as "void."


[52] To sum up, the PLRA grants the Secretary a right to move for the termination of prospective relief. The PLRA does not, however, confer any right to argue, five years after the fact, that an order should be deemed void ab initio for lack of contemporaneous findings. Therefore, this aspect of the Secretary's challenge founders.


[53] 2. The Constitutional Violations. Upon a motion to terminate prospective injunctive relief under the PLRA, a court may continue the relief only if it supportably finds that there are ongoing constitutional violations. 18 U.S.C. § 3626(b). The district court purposed to make such findings in this instance. See Morales IV, 300 F. Supp. 2d at 323-31, 342. The Secretary counters that the record does not show infirmities sufficient to justify ongoing relief and that the district court's contrary findings are clearly erroneous.


[54] An inquiry into whether current prison conditions constitute an ongoing violation of a federal right "comprises a mixed question of fact and law, the answer to which we review along a degree-of-deference continuum, ranging from plenary review for law-dominated questions to clear-error review for fact-dominated questions." Rouse, 129 F.3d at 661. Here, the question is fact-intensive - the Secretary frontally challenges the lower court's factfinding - so our standard of review is deferential. See id.; see also Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992) (admonishing that appellate courts should respect the trial court's findings of fact unless convinced, after a careful review of the record, that a mistake has been made). If there are two permissible views of the evidence, the factfinder's choice between them must be respected. See Fed. Refin. Co. v. Klock, 352 F.3d 16, 29 (1st Cir. 2003). The lower court's factual findings easily pass muster under this deferential standard.


[55] We have painstakingly reviewed the record and examined the numerous findings of fact, mindful that a trial court generally is considered the most informed interpreter of its own prior rulings and findings. See Rouse, 129 F.3d at 661. In this instance, the court was very careful to update the record and to consider the ways in which conditions had changed since its original endorsement of the privatization concept. See Morales IV, 300 F. Supp. 2d at 323-31. The court painted a compelling, record-rooted picture of how and in what respects health care for inmates in Puerto Rican prisons remains constitutionally deficient. See id. On this grim record, it is simply implausible to suggest that these findings are clearly erroneous.


[56] The district court characterized the denial of medical and mental health services as "massive and systematic." Id. at 324. That characterization seems apt. No useful purpose would be served by rehearsing the court's findings in minute detail. We offer instead a few of the more glaring examples. As of 2003, one-fourth of all inmates who requested sick call did not get it; only 55% of all ambulatory care appointments actually took place; only 49% of specialist consultations deemed necessary for serious conditions were arranged; as a rule, medically prescribed diets for inmates were habitually ignored; only 31.3% of inmates who had been diagnosed HIV-positive were receiving treatment; and inmate mortality rates were rising. See id. at 323-31. These are but the tip of a particularly unattractive iceberg. Despite the CHSC's efforts, physical facilities for inmate health care remain inadequate and there is an acute shortage of psychiatric expertise. See id. at 326-27, 331. Basic health care is critical to maintaining a decent quality of life, and Puerto Rico's correctional system is not delivering a constitutionally acceptable level of health care to its captive population.


[57] We acknowledge that in the course of making these findings, the district court largely disregarded the testimony of the Secretary's expert witness as lacking in credibility. Although the Secretary complains bitterly about this rejection, it is hornbook law that matters of credibility are ordinarily for the court of first instance, not for the appellate court. Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004). Unless the record mandates a contrary finding - and this record most assuredly does not - the court of appeals ought not disturb a trial court's credibility determination. See Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2586 (2d ed. 1994) (collecting cases). Here, moreover, there is much to commend the district court's assessment of the witness's dubious credibility (for example, the witness provided haphazard and inconsistent testimony and, on cross-examination, withdrew or corrected a myriad of statements).


[58] The Secretary accurately observes that some noteworthy advances have been made in the delivery of health care to inmates. He overlooks, however, that notwithstanding these improvements, the district court found substantial deficiencies attendant to virtually every aspect of the inmate health care system. Morales IV, 300 F. Supp. 2d at 324. However laudable the advances may be, the district court's supportable finding that constitutional violations persist suffices to satisfy the requirements of the PLRA and to justify a comprehensive injunctive decree.


[59] To say more on this subject would be supererogatory. We hold, without serious question, that the district court's findings and conclusions about the incidence of continuing constitutional violations are adequately anchored in the record.


[60] 3. The Narrowness-Need-Intrusiveness Findings. The PLRA mandates "the termination of extant consent decrees altogether unless the district court makes the specific findings that are necessary to keep a particular decree alive." Rouse, 129 F.3d at 655. In addition to ongoing constitutional violations, this compendium includes a finding that the ordered relief satisfies the statutory narrowness-need-intrusiveness criteria. See 18 U.S.C. § 3626(b). The district court made such findings here. See Morales IV, 300 F. Supp. 2d at 342. The Secretary argues that the facts of this case, as found, require termination of the decree because the chosen remedy - privatization -does not meet the narrowness, need, and intrusiveness requirements delineated in the PLRA.


[61] Congress plainly intended the PLRA to operate as a mechanism that would decrease federal judicial involvement in prison administration. See Rouse, 129 F.3d at 655. Congress left room, however, for needed injunctive relief. The Secretary's insistence that Congress did not want courts involved in prison administration begs the real question - which is whether a particular set of facts, measured under the statutorily specified criteria, warrants continued judicial involvement. We think that this is a close call in the case at hand, but for the time being, we find supportable the district court's conclusions regarding narrowness, need, and lack of intrusiveness.


[62] The narrowness-need-intrusiveness criteria are, to some extent, self-explicating. The devil is in the details attendant to their application. The application of those criteria is case-specific and must be undertaken in light of both the magnitude of existing constitutional violations and the available remedial alternatives. *fn6 See, e.g., Clement v. Cal. Dep't of Corrections, 364 F.3d 1148, 1153 (9th Cir. 2004). The constitutional violations here are substantial in both scope and degree. They have defied correction for more than two decades. The district court has tried more conventional measures, but found them wanting. It has afforded the Commonwealth ample opportunity to bring pre-existing mechanisms up to speed or otherwise to correct the phalanx of problems. It has witnessed the Commonwealth's continued inability to cure the constitutional infirmities plaguing the delivery of health care in the correctional system. This record of abject failure matters in the narrowness-need-intrusiveness inquiry. See Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003) (upholding narrowness-need-intrusiveness findings "in light of the district court's finding that the [defendant's] compliance with its remedial responsibilities has been consistently incomplete and inadequate").


[63] The need for continued prospective injunctive relief is patent. The lower court has been dealing with the deficiencies of Puerto Rico's correctional system since 1979, and we acknowledge that the sheer passage of so much time counsels restraint in ordering further extensions of prospective injunctive relief. See, e.g., Spangler v. Pasadena City Bd. of Educ., 611 F.2d 1239, 1241 (9th Cir. 1979). However, the correctional system is sprawling, the problems with which the court has had to grapple are massive, the Commonwealth's acceptance of the need for reforms has ranged from inconsistent to grudging (witness the current state of affairs in which the AOC embraces privatization as the Secretary seeks to dismantle it), and progress has been correspondingly slow. Insofar as health care is concerned, the level of improvement still falls well short of bringing serious violations into constitutional compliance. Morales IV, 300 F. Supp. 2d at 323-31. In some respects, backsliding has occurred. See id. at 324. In light of these facts, we have no difficulty affirming the district court's finding that a need for ongoing injunctive relief exists.


[64] We next consider the district court's findings regarding narrow tailoring and lack of intrusiveness. In 2003, the district court was keenly aware of its duty to ensure that prospective remediation complies with the PLRA's requirements. See Morales IV, 300 F. Supp. 2d at 331. It was, however, faced with a constitutional crisis and only three proposed solutions: turning back the health care clock to reinstate the system that had failed miserably for two decades, placing the system into receivership, or persisting with the plan for privatization (which the parties had conceived and to which they originally had agreed). The status quo ante alternative had proven to be ineffective, and, thus, was undesirable. No one favored the receivership alternative. That left privatization. Against this mise-în-scéne, we cannot say that the lower court's choice of that alternative was unreasonable.


[65] The Secretary nonetheless argues that privatization is much broader than necessary to forfend against cruel and unusual treatment of inmates. If this were the district court's first attempt at remediation, we quite likely would agree. But the district court has attempted narrower, less intrusive alternatives - and those alternatives have failed to restore the constitutional balance. For this reason, a more innovative remedy is justifiable. The increased intrusiveness and broader scope of the privatization remedy is a direct response to the unique need created by the Commonwealth's own failure - for more than twenty years - to correct serious constitutional inadequacies. Drastic times call for drastic measures.


[66] The Secretary has one final shot in his sling. He laments that privatization is far behind schedule and has accomplished very little to date. Nevertheless, a great deal of time, effort, and money has been spent in constructing facilities, procuring equipment, creating programs, and building a more responsive infrastructure. Perhaps more important, the CHSC has developed a functional information technology system. Knowledge is power, and that platform seems reasonably likely to contribute measurably to the long-term success of the prison health care system. It provides a means of maintaining accurate records and thus creating accountability. See, e.g., Carol Gentry, Health-Care Firms Face Costly Change, Wall St. J., Jan. 3, 2000, at A3 ("By speeding up the transmission and improving the accuracy of information, health plans should be able to do a better job of monitoring the quality of care."); Laura Landro, Health Care Goes Digital: Doctors and Hospitals Find They Can't Stay Offline Any Longer, Wall St. J., June 10, 2002, at R6 ("There is a clear linkage now between technology and better patient outcomes."). The district court has cultivated this tree patiently and at great expense, and it would be rash for us to insist that it be uprooted just when it shows promise of bearing fruit.


[67] The Secretary's related complaint - that the ineffectiveness of privatization to date defeats the finding of narrowness - is unpersuasive for two reasons. First, a determination of narrowness requires a court to decide whether ordered relief is tailored to rectify existing constitutional violations. See Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir. 2000) ("The court must make new findings about whether the relief currently complies with the need-narrowness-intrusiveness requirements, given the nature of the current violations."); see also Castillo v. Cameron County, 238 F.3d 339, 354 (5th Cir. 2001). Whether a remedy is capable of successfully ameliorating constitutional violations has no necessary correlation with whether it is narrowly drawn. Narrow relief can be completely ineffectual. See Morales II, 13 F. Supp. 2d at 157-58 (noting the failure of limited injunctive orders to bring the Puerto Rican correctional system into constitutional compliance). That the privatization concept has been slow to come to fruition does nothing to prove that the order is overly broad (or overly intrusive, for that matter).


[68] Second, we think that the PLRA is too blunt an instrument for addressing this concern. As said, the PLRA limits courts to terminating prospective relief. Not every unforseen difficulty in implementing injunctive decrees necessitates the total abandonment of a remedy. It is true that the CHSC has lagged far behind the original schedule and that the corporation has, to date, not accomplished its ultimate goals. It is also true that an ineffective remedy is a cause for concern. In light of the substantial progress that has been made, however, the mere fact that privatization is behind schedule does not convince us that it fails the narrowness-need-intrusiveness test. *fn7


[69] We are well aware that federal oversight of Puerto Rico's correctional system cannot - and should not - last forever. We strongly urge both the district court and the litigants to move the privatization process forward with all practicable speed. For now, however, we conclude, based on the record evidence and the factual findings of the district court, that the privatization order meets the PLRA's requirements. The privatization solution has not yet been put into practice and common sense dictates that it be given a fair chance to work. The order appealed from provides that chance.


[70] C. The Evidentiary Hearing.


[71] The Secretary's fallback position is that the district court committed reversible error in its manner of conducting the evidentiary hearing on the motion to terminate prospective relief. This contention has four branches. All of them are acarpous.


[72] 1. Burden of Proof. The Secretary first suggests that the district court impermissibly shifted the burden of proof. This suggestion derives primarily from the court's decision to order the proof by directing the Secretary (rather than the inmate class) to come forward, at the start of the hearing, with his evidence.


[73] It is axiomatic that district courts enjoy wide latitude in matters concerning the ordering of proof and the presentation of evidence. See, e.g., United States v. Holmquist, 36 F.3d 154, 163 (1st Cir. 1994); Elgabri v. Lekas, 964 F.2d 1255, 1260 (1st Cir. 1992); see also Fed. R. Evid. 611(a). We review a trial court's determinations concerning the mode and order of proof for abuse of discretion. Nat'l R.R. Pass. Corp. v. Certain Temporary Easements, 357 F.3d 36, 42 (1st Cir. 2004). We will reverse only if a determination has unfairly prejudiced the complaining party. Id.


[74] The decision to require the Secretary to present his proof first was not an abuse of discretion. In arriving at its decision on the motion to terminate, the court was free to rely on any aspect of the record that tended to shed light on whether constitutional violations persisted. See Laaman v. Warden, N.H. State Prison, 238 F.3d 14, 17-18 (1st Cir. 2001) (noting that the court's familiarity with the record and its receipt of periodic reports may afford it "comprehensive knowledge of whether a prison is, or is not, continuing to violate the consent decree"). At the beginning of the hearing, the court had before it a full evidentiary record, developed over many years, together with a cache of periodic reports as to progress under the consent decree. This plethoric evidence was sufficient, if unrebutted, to support a finding that constitutional violations endured. With this in mind, it was sensible for the court to invite the Secretary to offer evidence to the contrary.


[75] To be sure, a trial court's authority to regulate the order of proof does not include the power to shift the burden of proof. Brown Daltas & Assocs., Inc. v. Gen. Accid. Ins. Co., 48 F.3d 30, 37 (1st Cir. 1995) (reversing a judgment because the trial court erroneously shifted the burden of proof); see also 9 J. Wigmore, Evidence § 2489 (J. Chadbourn ed. 1981). But that is not what happened here: the court's election to hear the Secretary's evidence first in no way betokened reallocation of the burden of proof. In its subsequent review of the evidence, the court said nothing that indicated any misunderstanding as to where the burden of proof rested. Rather, it supportably determined that the facts presented by the Secretary lacked sufficient probative force to blunt the thrust of the accumulated evidence of record. Morales IV, 300 F. Supp. 2d at 339-40 (relying on the Secretary's own evidence to find continuing constitutional violations). In short, the contention that the lower court impermissibly shifted the burden of proof has no footing in the record.


[76] 2. The Agreement Between the Parties. The Secretary next maintains that the district court erred by relying on the existence of a "private agreement" (by private agreement, he means the stipulation that was signed in 1997 by, inter alios, his predecessor in office). Specifically, the Secretary asserts that the fact that there was an agreement between the parties should have had no bearing on the continuing viability of the subsequent order approving privatization (entered in 1998). This assertion overlooks that the so-called private agreement was embodied in a stipulation presented to and adopted by the district court. Upon its adoption, the private agreement became a judicially enforceable consent decree. Frew ex rel. Frew v. Hawkins, 124 S. Ct. 899, 903 (2004) ("A consent decree embodies an agreement of the parties and is also an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees." (internal quotation marks omitted)); In re Pearson, 990 F.2d 653, 658 (1st Cir. 1993) (similar).


[77] This is significant because the Secretary's argument blurs the crucial distinction, for PLRA purposes, between private side agreements and consent decrees. The latter may serve as a vehicle for prospective relief under the PLRA; the former may not. See 18 U.S.C. § 3626(a); see also id. § 3626(c)(1).


[78] In all events, the lower court did not rely impermissibly on the parties' original agreement. Although the court noted the existence of that agreement and scolded the Secretary for trying to renege on it, the holding in Morales IV was in no way premised either on an estoppel or on the fact that the parties previously had agreed to explore a privatization alternative. For these reasons, the Secretary's argument fails.


[79] 3. The Exclusion of Evidence. The Secretary also contends that the district court erred in refusing to allow him to introduce evidence as to the narrowness-need-intrusiveness criteria. On this point, as is so often true in litigation, context is decisive.


[80] After the Secretary had presented his evidence as to the existence vel non of continuing constitutional violations, the district court asked him to summarize the evidence that he planned to adduce on the narrowness-need-intrusiveness criteria. The Secretary proceeded to make an offer of proof. Having heard the proffer, the court determined that nothing in it bore directly upon the narrowness of, need for, or potential intrusiveness of the privatization remedy. Consequently, the court rejected the Secretary's offer of proof on relevancy grounds.


[81] We descry no error. In many instances, relevancy boils down to a judgment call. See generally Fed. R. Evid. 401 (deeming evidence relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). Accordingly, district courts enjoy wide latitude in determining the relevancy vel non of evidence. Laaman, 238 F.3d at 18-19; United States v. Tierney, 760 F.2d 382, 387 (1st Cir. 1985). In this instance, the district court concluded that the offer of proof had no bearing on the appropriateness of the remedy under the PLRA's narrowness-need-intrusiveness criteria. Morales IV, 300 F. Supp. 2d at 337-38. Having reviewed the offer of proof, we find that this ruling was within the realm of the district court's discretion. We explain briefly.


[82] By way of his offer of proof, the Secretary proposed to introduce evidence designed to show the ineffectiveness of the remedy. He began the proffer by alleging generally that the non-profit corporation was not a viable remedy because it had not yet treated a single patient. The district court asked for elaboration, and the Secretary expressed a desire to take discovery on the matter. Morales IV, 300 F. Supp. 2d at 337. When the court refused that untimely request, the only details proffered by the Secretary tended to show that the CHSC was not complying with either the district court orders or Puerto Rico laws, and that it was not ready to begin treating patients. Id. at 338. This is a distinct line of inquiry. See Hadix v. Johnson, 228 F.3d 662, 673 (6th Cir. 2000) (explaining that inquiries into compliance and inquiries into necessity under the PLRA are separate and distinct). As the district court sagely noted, compliance was not at issue in the evidentiary hearing. Morales IV, 300 F. Supp. 2d at 338.


[83] We - like the district court - do not see how the Secretary's offer of proof informs a determination of whether the privatization remedy is a narrowly tailored, relatively unintrusive response to the serious constitutional violations that the district court found still existed. We note, moreover, that the Secretary has not explained the connection. We thus cannot fault the district court either for the rejection of the offer of proof or for its consequent exclusion of the proffered evidence.


[84] 4. Rule 52(c). Finally, the Secretary assigns error to the district court's use of Fed. R. Civ. P. 52(c) as an adjudicative tool. See Morales IV, 300 F. Supp. 2d at 344. Rule 52(c) provides a court conducting a bench trial with a means for issuing a judgment on partial findings. The rule is designed for use when "a party has been fully heard on an issue and the court finds against the party on that issue." Fed. R. Civ. P. 52(c).


[85] The district court invoked that procedure here. The Secretary asseverates that this was not permissible on the facts of this case. We reject this asseveration. To be frank, we find the Secretary's argument difficult to fathom. The text of the rule is clear. When a party has finished presenting evidence and that evidence is deemed by the trier insufficient to sustain the party's position, the court need not waste time, but, rather, may call a halt to the proceedings and enter judgment accordingly. See Fed. R. Civ. P. 52 advisory committee note ("Subdivision (c) . . . authorizes the court to enter judgment at any time that it can appropriately make a dispositive finding of fact on the evidence."); see also Atl. Track & Turnout Co. v. Perini Corp., 989 F.2d 541 (1st Cir. 1993). The fact that the inmate class had the burden of proof did not place Rule 52(c) off limits. A judgment under Rule 52(c) can be entered for or against either a plaintiff or a defendant, regardless of the allocation of the burden of proof. See Bursztajn v. United States, 367 F.3d 485, 488 (5th Cir. 2004); Fed. Refin. Co., 352 F.3d at 26; see also 9A Wright & Miller, supra § 2573.1. Here, the Secretary had advanced his proof and the district court supportably concluded that the Secretary's evidence could not withstand the probative force of the historical record. In other words, even after taking the Secretary's case into account, the court determined that the plaintiffs had sustained their burden of showing pervasive and persistent constitutional violations. Morales IV, 300 F. Supp. 2d at 340-42. The court also supportably determined that the privatization remedy satisfied the narrowness-need-intrusiveness criteria, and that the Secretary's offer of proof did not include any relevant evidence to the contrary. Based on these findings, the district court appropriately entered judgment pursuant to Rule 52(c). That the court made a series of credibility calls in reaching these conclusions in no way detracts from the legitimacy of its approach. See Wright & Miller, supra § 2573.1, at 497-99 (noting that the court's task under Rule 52(c) is to weigh the evidence, without drawing any special inferences in the non-movant's favor, resolve any conflicts in the evidence, and "decide for itself where the preponderance lies").


[86] IV. CONCLUSION


[87] We are sensitive both to Congress's manifest desire to limit federal judicial oversight of state correctional systems and to the length of time that Puerto Rico's prisons have been under federal hegemony. These concerns impel us to counsel the parties and the district court to move forward as swiftly as possible to cross the threshold of constitutional adequacy so that federal judicial involvement may cease. For now, however, we accept the well-documented judgment of the district court -a court intimately acquainted with the details of this litigation and the intricacies of the Puerto Rican correctional system - that inmate health care remains constitutionally unacceptable and that the privatization remedy holds promise for bringing inmate health care into compliance with constitutionally mandated standards. *fn8 Consequently, we reject the Secretary's current effort to vacate or terminate the existing consent decree.


[88] We add a few words of caution. There are now significant financial reserves (in the form of accumulated fines) available for improvements in health care delivery, and the AOC seems willing to work for change. We urge the district court to move toward extricating itself from the toils of this litigation as soon as it can do so without defaulting on its responsibilities under the Constitution.


[89] We need go no further. For the foregoing reasons, we affirm the district court's denial of the Secretary's motion to vacate or terminate the pertinent portions of the existing consent decree. We take no view of the district court's procedural order, see supra Part II, as we lack jurisdiction to review that order on this interlocutory appeal.


[90] Affirmed. Costs shall be taxed in favor of the plaintiffs.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[91] *fn1 We note that a new administration, representing a different political party, took office following the general election held in November of 2000.


[92] *fn2 The AOC has not appealed, and the district court's ukase has not been stayed. We are advised that meetings between the AOC and the plaintiffs are proceeding apace.


[93] *fn3 With only isthmian exceptions, the courts of appeals are prohibited from exercising pendent appellate jurisdiction. See Swint v. Chambers County Comm'n, 514 U.S. 35, 49-51 (1995); Limone v. Condon, 372 F.3d 39, 51-52 (1st Cir. 2004). The Secretary offers no developed argumentation on this point and, as matters stand, we believe that this case is not a credible candidate for the exercise of pendent appellate jurisdiction.


[94] *fn4 The Secretary makes a fifth argument: that the relief ordered by the district court requires Puerto Rican officials to act in contravention of local law. The district court refused to address this argument on the ground that the Secretary did not sufficiently specify the nature of the alleged violations. That ruling is supportable, and it precludes reliance on the argument here. See Teamsters Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1991) (holding that arguments not squarely raised in the trial court cannot be advanced on appeal). In all events, the Secretary's appellate presentation suffers from the same lack of specificity; he alleges the violations in the most general terms and does not inform us of where in the record we might find any evidence of them. This lack of developed appellate argumentation constitutes an independently sufficient basis for deeming the argument abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.").


[95] *fn5 Although we assume arguendo the correctness of the Secretary's assessment of what transpired in 1998, we note that the district court made a series of contemporaneous written findings, which may well have satisfied the narrowness-need-intrusiveness requirements. See Morales II, 13 F. Supp. 2d at 212 (holding that privatization "is necessary to protect the members of the plaintiff class from cruel and unusual punishment through constitutionally unacceptable health care services," that the remedy "extends no further than is necessary to correct the violation of the Federal rights of members of the plaintiff class," that "such relief is narrowly drawn," and that there "is no less intrusive means to correct the violation of plaintiffs' Federal rights").


[96] *fn6 We reject out of hand the Secretary's argument that an order to privatize is a per se violation of the narrowness requirement of the PLRA. The narrowness of a remedy necessarily involves a close examination of a particular set of facts and a determination concerning what steps are reasonable to cure the ongoing constitutional violations. Because this will necessarily be influenced by a variety of factors, we are wary of adopting ironclad rules.


[97] *fn7 It may well be that modification, or some other more limited adjustment, is appropriate to address such concerns, see Fed. R. Civ. P. 60(b)(5) - but that issue is not before us.


[98] *fn8 Should the circumstances change, or a substantial interval pass without significant progress, the Secretary is, of course, free to ask the lower court to re-examine these findings and reconsider the advisability of the ordered relief.