by Matt Clarke

On June 30, 2022, the federal court for the District of Arizona found that the healthcare state prisoners get is frankly awful — unconstitutionally so. As is the amount of time many spend in isolation, where their psychiatric ailments are ignored, and they go hungry not only for food but also for recreation and social stimulation. So the Court vowed to issue an injunction forcing the state Department of Corrections, Rehabilitation, and Reentry (DCRR) to clean up its act.

This is not the first time the Court has found the state guilty of violating prisoners’ civil rights during the long course of this case. The suit was filed in 2012 by a group of Arizona prisoners challenging conditions of confinement in the state’s ten prison complexes. In 2013, a class was certified consisting of all DCRR prisoners, plus a subclass of those confined to their cells for at least 22 hours each day. In broad terms, the lawsuit alleges that the provision of medical, dental, and mental health services to the class is unconstitutionally inadequate. And the subclass in isolation allegedly receives inadequate out-of-cell time, opportunities for socialization, nutrition, or mental health monitoring.

In 2015, after the U.S. Court of Appeals for the Ninth Circuit affirmed certification of the class and subclass, the parties reached a settlement agreement. That agreement contained 101 healthcare performance measures, with ten more for maximum custody, along with periodic progress reporting requirements for each. Termination of the agreement was conditioned on 75% compliance with the standards during the first 12 months. During the next 12 months, the threshold rose to 80% compliance. During months 25–36, it rose again to 85% compliance. [See: PLN, Feb. 2016, p.56.]

However, DCRR never came close to 75% compliance in key performance measures. When a prisoner submitted a Health Needs Request (HNR) form, a Registered Nurse (RN) was supposed to see him within 24 hours, but that often didn’t happen. Where urgent specialty care was needed, a consultation was often still not completed 30 days after referral. Routine specialty consultation was often not completed within 60 days of referral. Also frequently forgotten was a promise to review and act upon a hospital’s treatment recommendations within 24 hours after a prisoner returned from outside treatment. Moreover, chronic care and prescription renewals for psychotropic medication did not occur without interruption or lapse.

Between 2016 and July 2021, Plaintiffs filed 12 motions seeking to enforce the agreement. The Court held numerous hearings and status conferences, issuing dozens of orders mandating compliance. Twice it held Defendants in contempt, resulting in millions of dollars in fines, which were upheld on appeal.

However, “[i]mposition of substantial fines, and threats of even more, did not prompt Defendants to make required efforts to perform as they agreed,” the Court recalled. Therefore, it rescinded the agreement and set the matter for trial on November 1, 2021. At the conclusion of the 15-day trial, the Court ruled against DCRR, finding “Defendants have failed to provide, and continue to refuse to provide, a constitutionally adequate medical care and mental health care system for all prisoners.”

“Defendants’ health care system is plainly grossly inadequate,” the Court declared.

Though “aware of their failures for years,” the Court said that DCRR had nevertheless “refused to take necessary actions to remedy the failures.” These “years of inaction” persisted “despite Court intervention” and the “imposition of monetary sanctions.” All of which “establish[es] Defendants are acting with deliberate indifference to the substantial risk of serious harm posed by the lack of adequate medical and mental health care affecting all prisoners.”

That deliberate indifference is the standard laid out in Farmer v. Brennan, 511 U.S. 825 (1994): A prison official who knows of and yet disregards a serious risk to a prisoner may be liable for harm that results, under the Eighth Amendment’s guarantee of protection from cruel and unusual punishment.

As for those prisoners held in long-term isolation — DCRR calls the accommodations “restrictive housing units” (RHU) — the Court said they are subjected to unacceptable privations. They “are not provided adequate nutrition, nor are they provided meaningful out-of-cell time for exercise or social interaction.” This “results in the deprivation of basic human needs” that the Court also called deliberate indifference.

“For years, Defendants have known of the deficiencies, highlighted by Court intervention and direction, and refused to take meaningful remedial actions,” said Senior U.S. District Judge Roslyn O. Silver. “Therefore, Defendants are acting with deliberate indifference to the substantial risk of serious harm posed to prisoners in restrictive housing units.”

The Standard for Healthcare
in Prisons

The need for adequate medical and mental health care in Arizona prisons is clear, the Court noted. Two-thirds of state prisoners are on prescription medications. One out of every four is being medicated for mental health conditions.

The Eighth Amendment does not entitle prisoners to high-quality care, of course. Likewise, accommodations must be adequate, but nothing more. Yet, Judge Silver noted, both “health care and conditions of confinement must reflect basic common decency.” They must demonstrate “a recognition of the dignity the government must accord all human beings.”

DCRR, the judge concluded, has failed to clear even that low bar.

When this suit was filed in March 2012, DCRR employed its own staff of medical professionals to provide healthcare to state prisoners. But just four months later, a new law took effect. Arizona 2011 HB 2154 mandated privatization of all prison healthcare services. Private contractor Wexford Health Sources assumed responsibility. When its contract ended, Corizon Health, Inc. took over on March 4, 2013. Its contract also ended, and Centurion of Arizona replaced it on July 1, 2019, with a contract valued around $216 million per year. However, one thing has remained constant through the rotating cast of private contractors: Each of them has apparently failed to provide constitutionally adequate healthcare to Arizona’s prisoners.

Dueling Experts

During the trial before Judge Silver, as often happens in this type of case, both sides marshalled expert witnesses to testify about the provision of medical and mental health care in DCRR. What is notable is that the Court found Defendants’ witnesses unbelievable.

Dr. Owen Murray testified on medical issues for the defense. He oversees healthcare provision in the Texas prison system, which spends far less per prisoner than any other prison system in the U.S. His testimony was one of those the Court found unpersuasive. How could DCRR’s healthcare be described as “adequate” when the performance measures showed it was not? Murray failed to explain, the Court noted.

“And of crucial importance, by offering and relying on Dr. Murray as their sole witness to establish a functioning health care system, Defendants effectively demonstrate satisfaction with the existing, completely highly inadequate system,” the Court added.

Defense expert Dr. Joseph V. Penn, who oversees the provision of mental health care in the same prison system where Murray works, testified for Defendants, too. The Court found him equally unpersuasive, especially his testimony that a one-minute mental health assessment could be adequate, or that any level of staffing set by the contract would automatically suffice.

By contrast, the Court found Plaintiffs’ experts far more thorough, competent, and persuasive. One was Dr. Todd Wilcox, Medical Director of Utah’s Salt Lake County Jail System. He testified that DCRR provides “grossly inadequate healthcare.” Moreover, he said the prison system has “provided dangerously substandard care for years,” which “continues to harm many patients and continues to place all at substantial risk of serious harm.”

The most fundamental problem, Dr. Wilcox testified, was a lack of appropriate qualified staff. “By design, healthcare decisions in the [DCRR system] are pushed down to the lowest possible level — nurses who are practicing poorly and far outside the scope of their licenses.”

“There is a clear pattern of failure by nurses to complete an adequate nursing assessment,” Wilcox said. They also fail to “take patient reports seriously,” fail to “recognize dangerous symptoms,” and fail to “elevate concerns to providers,” he added.

“Too often, nurses simply send patients back to their housing unit and tell them to submit another written sick call request if symptoms worsen,” Wilcox testified.

Understaffing Is the Core Problem

“The core issue,” the Court said, “is that staffing levels are so inadequate that the provision of constitutionally mandated care is impossible.” During the trial, current provider Centurion admitted that DCRR healthcare staffing would be inadequate even if all of its contracted positions were filled. However, only 77% of those contract positions are filled statewide. At the state prison complex in Florence, the share filled was only 63%.

Centurion Vice President Tom Dolan testified that he told DCRR more contract positions were needed. But he said the agency responded it was not open to amending the contract. DCRR Assistant Director Larry Gann also testified. He had earlier sat for a deposition in which he said that DCRR set the contract staffing levels and had done so for many years. But “incredibly” at trial, the Court noted, Gann “contradicted his deposition testimony and claimed DCRR relies on Centurion to report how many health care staff[ers] are needed.”

Regardless of who is responsible for setting contract staffing levels, the evidence showed there are massive vacancies: Nearly a quarter of all DCRR healthcare positions are unfilled. The Court concluded that understaffing is the root cause of many of the prison system’s healthcare failures. It said that “[g]iven these undisputed actual staffing numbers, Defendants’ position that there is no cause for concern — and they are providing care that meets or exceeds the community standard — is incredible.”

The state prison complex in Yuma “illustrates the contract staffing levels are insufficient,” the Court continued. “Yuma is overstaffed by seventeen positions” more than are contractually required. But “nearly thirteen of [those] are nursing assistants, medical assistants, or LPNs,” the Court noted. So “[d]espite being ‘overstaffed’ as contemplated by the contract,” the prison still failed to meet “numerous health care performance measures.”

Concluding that current staffing levels are “woefully insufficient,” the Court said that “[t]hese staffing problems persist and recur” because both DCRR and Centurion fail to “adequately analyze, monitor, or take responsibility for addressing them.”

“Based on the testimony and evidence, the only reasonable conclusion is the current staffing level is inadequate,” the Court declared. Moreover, “even if all positions contemplated by the contract were filled, it is more probable than not the staffing would be insufficient.”

“In essence,” the Court summarized, “it is Defendants’ position that access to any care, no matter how poor, satisfies their constitutional obligations.”

“In Defendants’ view, prisoners have access to nurses, and those nurses can in theory escalate matters to higher level providers when appropriate,” the Court said. “But the evidence shows that they do not do so.”

Taking prisoners with serious medical needs and giving them access only to healthcare staffers “who lack the training and authority to address their needs” is “never enough,” the Court said, adding: “Access to health care necessarily involves access to health care performed by competent staff.” In DCRR, however, it is flatly “impossible for nurses to meaningfully consult with or refer many prisoners to providers,” the Court declared. Why? “[B]ecause there are simply not enough higher-level providers available to see them.”

NCCHC Accreditation

Defendant prison officials relied heavily on DCRR’s accreditation by the National Commission on Correctional Health Care (NCCHC). However, the Court found that NCCHC’s “essential standards” used in the accreditation process did not incorporate a substantive review of the healthcare administered to prisoners. Rather, the standards simply “ensure some policies and procedures are in place to create a health care delivery system.” Further, the Court noted that Centurion and Corizon Health, its predecessor at DCRR, are “far from neutral because they are prominent NCCHC sponsors.”

The Consequences for
Arizona Prisoners

Because of a general shortage of RNs and higher-level providers — including Physician Assistants and Nurse Practitioners, as well as physicians — Centurion uses lower level Licensed Vocational Nurses (LVNs) to screen the HNR forms that prisoners use to request medical care. But there is a problem with putting a low-level nurse between the patient and provider: LVNs are not trained to recognize symptoms of serious illness. Thus, prisoners with life-threatening conditions are sent away without being seen by a provider or being scheduled to see one — often with fatal consequences. The Court detailed 14 cases in which prisoners died after nurses failed to recognize serious symptoms and then delayed or denied access to a higher-level care provider.

One was Kenneth Barker, 68. He was seen by nurses at the Tucson prison complex six times over the course of three months, each time complaining about pain in his foot. But his foot was never examined until the sixth visit, in June 2019, when a one-inch diameter ulcer was documented on the sole of his left foot. It was another two weeks before he saw a care provider. By then the wound had become necrotic — clustered with dead tissue. Barker also had edema — swelling from fluid buildup — all the way from his left knee to his ankle. Sent to a hospital, he lost his lower left leg to amputation. He died a few weeks later, on October 5, 2019.

Barker was a diabetic, for whom foot wounds are common but serious. His treatment “illustrates [how] the system relies on nurses to assess patients, even when the patient makes repeated complaints for the same issue,” the Court said.

Prisoner James Edwards, 29, submitted an HNR form complaining of leg and stomach pain in October 2019, while held at the Eyman prison complex. He wasn’t seen at all for a month, and then only by a nurse. Nine days later, a second nurse saw him. After he complained about a lump on his collar bone, he was given a referral. By the time he saw the care provider a week later, he was complaining of severe hip pain. He was diagnosed with mild osteoarthritis.

Another 24 days passed. On the 70thday — ten weeks — after submitting his HNR, Edwards declared a health needs emergency and was seen by a care provider for “shoulder pain.” Three days after that, he declared another emergency for “weakness and discomfort” and being “unable to keep water down.” A nurse saw him and helpfully instructed him “to drink more water in slow sips.” Ten days later, Edwards became unresponsive and was taken to a hospital. There he died on New Year’s Day 2020 of valley fever, a life-threatening fungal infection that is growing more common as drought conditions continue to plague the desert Southwest. “The mortality review accurately concluded nurses failed to recognize signs or symptoms, delayed access to care, and failed to follow clinical guidelines,” the Court noted.

A third case cited was that of Kamaka Solo, 58, who was held at the Tucson prison complex. For four months beginning in June 2019, he “complained of unremitting and extreme [abdominal] pain.” But “[t]he response by nursing staff, on multiple occasions, was to do nothing.” In fact, Defendants did less than nothing; the record showed that Solo’s “unremitting” pain was treated with laxatives. Finally, his case was “elevated to a [care] provider,” who ordered diagnostic tests. But they were not performed. Meanwhile, the Court noted, Solo continued to be “given effectively no treatment for his pain.”

By August 27, 2019, he was having seizures and throwing up bile. Solo was taken to a hospital emergency room. There a CT scan revealed “a large pancreatic mass and multiple hepatic lesions, likely metastatic,” the Court recalled. Solo suffered a stroke and died a few days later on September 15, 2019. The mortality review noted that “[a]larming symptoms were missed and/or not elevated, and pain was not addressed adequately.”

Michael Voden, 77, repeatedly complained of extreme chest pain and severe edema while held at the Florence prison complex in 2018 and 2019. He was seen by nurses nine times over seven months, including three times on an emergency basis, before he was finally referred to a care provider. The nurses repeatedly treated him for acid reflux and COPD, telling him again and again to “increase fluid intake,” despite having severe edema in his legs.

When Voden was finally sent to a hospital, he was diagnosed with heart failure, pleural effusions, severe non-rheumatic aortic stenosis, cellulitis of the legs, COPD, and acute renal failure. He suffered cardiac arrest and died on June 16, 2019.

“Voden’s mortality review noted a pattern of nursing staff acting beyond their expertise and failing to recognize when referral to a provider was necessary,” the Court said. His case “presents a situation where nursing staff ineffectively repeatedly attempted to treat him without referring him to a provider. In doing so, nursing staff missed obvious signs of other conditions and gave wrong treatment advice.”

Lessons Learned From
Mortality Reviews

“The mortality reviews illustrate the harm that routinely befalls prisoners because they do not receive timely and adequate health care,” the Court declared. “The common theme is nurses repeatedly are unable to properly diagnose health care issues and fail to refer prisoners to a provider.” Yet, the Court noted, “[d]espite these reviews, Defendants still maintain nurses act reasonably in evaluating prisoners.”

The failures documented in the mortality reviews are systemic, but DCRR has failed to use them to “identify and address the causes of many of these problems,” the Court continued. That includes “nurses practicing outside the scope of practice, insufficient physician-level oversight, and failure to refer the patient to someone qualified to diagnose and treat them.”

Worse, the Court said, “[t]he same failures arise in mortality reviews over and over and over — nurses not recognizing conditions, nurses not referring prisoners to providers, and diagnostic testing not being ordered or promptly obtained and reviewed.” Remarkably, though, Defendants have not yet put forward any plan to take corrective action. “This,” the Court said, “constitutes systemic conscious disregard of the risk prisoners face.”

Management of Complex Cases

When confronted with a sick prisoner,the court found that DCRR fails to employ a “diagnostic strategy.” The standard approach by physicians is called differential diagnosis. This involves an examination for various possible causes and ruling them out, one by one, until the one left is then the most likely. But DCRR does not use such an objective approach to test for the underlying cause of an illness. In fact, it has no strategy at all.

“The absence of differential diagnoses is particularly problematic because prisoners often do not see the same health care provider [repeatedly],” the Court noted. “On top of this multi-provider problem, the electronic heath records system used does not provide health care providers with information in an easily usable format to facilitate evaluation allowing an effective course of treatment. The lack of differential diagnoses and progression through ruling out aliments is pervasive and is shown through the treatment provided to many prisoners.”

After Kendall Johnson complained of worsening numbness in her legs and feet in September 2017, she stumbled and fell for more than two years as she was seen multiple times by nurses and care providers. They noted her unsteady gait. They agreed that she might have multiple sclerosis (MS), or maybe idiopathic nerve damage. But no tests were ordered. Finally, 28 months after she started complaining, a diagnostic MRI showed it was likely she had MS.

But tests to confirm the diagnosis were not performed for another 11 months. During that period, she remained untreated while the disease progressed and her mobility declined. It was another six months before she began receiving medications to slow the disease progression. “Had that medication been started earlier, Johnson ‘might have staved off her more severe symptoms for months or even years,’” the Court noted, quoting a specialist who reviewed the prisoner’s case. Prison officials insist that any delay in Johnson’s treatment was merely negligent. But the Court said her case was “far from negligent.”

“It was — and may continue to be — a paradigmatic example of the most callous and inhumane indifference,” the Court declared. Johnson didn’t even begin getting assistance with daily activities from the prison until DCRR was shamed into providing it by her pretrial deposition. That’s when Johnson testified “that she had to pay other prisoners to help her,” the Court recalled. “To conclude that Johnson’s treatment has been appalling substantially understates the pain and indifference she has suffered.”

Unfortunately, Johnson’s case is typical of those noted in the Court’s opinion. Another prisoner identified as A.D., 44, suffered long-term paralysis because of a spinal abscess that went undiagnosed for months, after his complaints of neck pain began in February 2021. The problem was never caught by DCRR or Centurion; it was only discovered after he was sent to a hospital. As a result, what could have been short-term spinal nerve damage instead became long-term.

Jesse Boldrey’s metastatic lung cancer was not diagnosed until years after he started complaining of severe weight loss in 2015. He told a doctor that he suspected cancer. But it wasn’t until his weight dropped from 190 to 110 pounds that he was sent to a hospital. There, a CT scan indicated lung tumors. But after he was returned to prison, he went over a year without treatment before returning to the hospital — and dropping another ten pounds.

By that point he required intravenous feeding because a tumor was blocking his throat. Palliative care was recommended. But Centurion blocked that order. The reason: Boldrey had a “do not resuscitate” directive in his file. Yet that “has nothing to do with the need for palliative care,” the Court observed. “[R]efusing extraordinary measures in the event of death is not a request to die suffering, in excruciating pain.”

“The cruelty of Centurion’s behavior is hard to fathom,” the Court added.

“Unquestionably, Boldrey did not suffer from simple medical malpractice,” it continued. “Basic testing of differential diagnoses would have resulted in a much earlier determination of the cause for his complaints. A functioning health care delivery system would never suffer the magnitude of breakdowns reflected in Boldrey’s seven-year odyssey of incompetence, cruelty, and eventual death.”

Medical Care Conclusions

After examining these and other cases, the Court found that staffing “is patently insufficient, and more often than not incompetent … to adequately meet prisoners’ needs.” On top of that, “[t]he majority of medical care staff do not have necessary training or licensure to provide the type of care that is necessary to provide constitutionally adequate care.” Calling this “a completely ineffective and toxic combination,” the Court got down to the obvious: “The patterns of delay and indifference are pervasive in [DCRR’s] own mortality reviews.” By “refus[ing] to remediate these practices,” Defendants also refuse “to comply with their constitutional obligations.”

Mental Health Care

Of DCRR’s 27,794 prisoners at the time of trial, 8,548 (31%) were on the “mental health caseload,” meaning they “require ongoing treatment for an active mental health diagnosis.” Once again, the Court found Defendants’ expert, Dr. Penn, less credible than Plaintiffs’ expert when testifying about the care this group of prisoners received. Appearing for Plaintiffs was Dr. Pablo Stewart, clinical professor and psychiatrist at Burns School of Medicine at the University of Hawai’i and attending psychiatrist at Oahu Community Correctional Center.

The Court noted that, as with medical care, many of the problems with mental health care provision in DCRR stem from chronic understaffing. At the time of the trial, Centurion’s contract called for 199.00 full-time-equivalent (FTE) mental health positions. But only 149.55 (73%) were filled. Also, similar to the problems with medical care, many of the vacancies were in higher-level positions, leaving the system structured so that the vast majority of care is provided by low-level employees: behavioral health technicians, nurses, or psychological associates. These act as a gateway through which patients must pass to see the higher-level employees who can order medication or treatment.

The court noted that many witnesses, including some employed by DCRR or Centurion, testified that more mental health staff is needed beyond the number of FTEs in the contract. DCRR Mental Health Program Director Dr. Bobbie Pennington-Stallcup sent several emails to Centurion Regional Mental Health Care Director Dr. Stefanie Platt expressing concern that there would be understaffing even if contracted staffing levels were met. In trial testimony, though, Pennington-Stallcup reversed herself; she told the Court that she had performed a “new analysis” and was no longer concerned that contract staffing levels were inadequate. The Court called this new analysis “incredible and nonsensical.”

On the other hand, Dr. Platt testified that she believed the contract staffing levels were too low and had raised the issue with her superiors. Dr. Stewart, Plaintiff’s expert, also testified that staffing levels were too low to permit the provision of mental health services. He reported “observ[ing] a ‘disturbing pattern’ of ‘mental health staff without pharmacological training serv[ing] as de facto gatekeepers of patients’ access to psychiatric prescribers.’”

The consequences of failing to provide adequate mental health care can be just as severe as those resulting from inadequate medical care: Both can be fatal. Mental health patients who are not given adequate treatment and medication can harm themselves or others, and little can be done to prevent that if they are not in inpatient care. For instance, M.S., a 32-year-old diagnosed with “Schizoaffective Disorder, bipolar type,” had a history of self-harming behavior such as “cutting open his own abdominal cavity” and “attempting to cut his own throat.” He was able to cut a seven-inch-long laceration an inch deep into his right arm, swallow three razor blades, and insert three spork handles into his abdominal scar — all while on “continuous watch” at a prison that has no in-patient psychiatric facility. M.S. was under the care of a mid-level psychiatric staff member who, according to Dr. Stewart, was clearly out of his league.

But Dr. Stewart found numerous other instances of mismanaged symptoms and misdiagnosed mental illness. Outrageously, some mental health staff encouraged patients to self-harm and encouraged staff to use pepper spray on patients.

In one case, a mental health patient at the Phoenix prison complex was banging his head for several days. Guards repeatedly pepper-sprayed him in a futile attempt to make him stop. No treatment plan was devised for the prisoner because the only trained mental health staff member was “out of town.” When consulted, the Regional Director of Mental Health said that prison staff should continue to use pepper spray as needed until the treatment plan was developed.

A video recording then showed a mental health nurse goading the prisoner to start banging his head so guards could use a restraint chair on him. Though not banging his head at that moment, he soon obliged and began doing so.

Inadequate Treatment
for Suicidal Prisoners

It is those prisoners suffering tendencies to self-harm who are most likely to suffer fatal consequences from failure to provide adequate mental health treatment.

State prisoner Reuben Neal died by suicide on August 27, 2020, at age 29. In the months preceding his death, he saw mental health staff five times. Each encounter lasted between five and ten minutes. Neal complained of anxiety and insomnia and was prescribed subtherapeutic doses of two medications. But when that didn’t help, his medication was not adjusted. Eight days prior to his death, he was transferred to a higher security level, which “increased his anxiety level and negatively affected his sleep and concentration,” the Court recalled.

Dr. Stewart, Plaintiff’s expert, concluded that Neal received “exceedingly poor counseling care and psychiatric care in the weeks leading up to [his] death.” He had encounters with staff, but they were not qualified to assess his needs. What he needed but didn’t get was “more frequent and thorough assessments” by higher-level staff.

Twenty-five-year-old Eric Haag’s story was similar to Neal’s. Despite a history of paranoid schizophrenia, even hearing voices, he was taken off his meds sometime after entering prison in 2016. During a five-minute encounter with a psychiatric associate on July 11, 2020, he complained of stress from his prison job and asked to restart his medications. The request was ignored. Nine days later, a mid-level prescribing provider noted Haag was experiencing irritability, depression, and anxiety. But his medications were still not restarted. Haag’s final visit with staff — a psychiatric associate — lasted three minutes, during which he refused to engage, according to the records. He died by suicide a few weeks later on September 13, 2020.

Mental Health Care Conclusions

The Court concluded that “[t]he overwhelming evidence demonstrates the lack of mental health staffing — both in terms of overall staffing and insufficient higher-level staff — demonstrates inadequate care.” Because prisoners receive “ineffective treatment,” they “remain potentially, and unnecessarily, profoundly symptomatic for extended periods of time.” Part and parcel of this understaffing problem “is that mental health encounters are extremely short in duration, remarkably so.”

There are performance measures in place, the Court noted, for duration and frequency of mental health encounters, as well as provision of psychotropic medication. But Defendants were unable to meet them. Defendants’ expert, Dr. Penn, claimed that only 5% of mental health patients did not have access to mental health care. But even that incredible claim, if true, would not be good enough; “that is unconstitutional,” the Court said. It also wasn’t having Penn’s breezy analysis — he “failed to take a single note during his chart and record reviews” — nor his apparent opinion that “the only outcome that should qualify as ‘bad’ is ‘death.’” Such “obstinance — and indifference — was devastating to his credibility and renders his opinions unworthy of any weight,” the Court concluded.

Electronic Healthcare
Records Insufficient

It is “undisputed” that DCRR’s electronic healthcare records system “is very inefficient,” the Court noted. This presents yet another impediment to health care delivery and contributes to the substantial risk of serious harm prisoners face. During cross-examination of Plaintiffs’ expert Dr. Wilcox, Defense counsel “struggled to maneuver through a patient’s medical record” to find information. “To expect this from physicians who are expected to see 18-20 patients per day is unreasonable,” the Court said.

Language Interpretation

The Court also found DCRR’s provision of language interpretation services was inadequate. The focus is on English and Spanish, as if no one spoke any other language. Staffers are allowed to determine their own level of foreign language fluency, leaving prisoners “routinely denied language interpretation services” and “necessarily resulting in the deprivation of appropriate medical and mental health care.” Even when there is a known need for an interpreter’s services, “Centurion may not provide one.” Instead staffers use “[G]oogle translation for interpretation of questions and responses.”

Medical and Mental
Health Conclusions

Turning to the question of who is to blame, the Court determined that the overwhelming evidence showed that DCRR Director David Shinn and Assistant Director Gann were aware of the inadequate medical and mental health care provided in state prisons. They also knew it is caused largely by understaffing. And they knew the resulting substantial risk of serious harm to prisoners. But they remained deliberately indifferent to the risk because, despite having known about it for many years, they have not taken effective actions to remedy the problems. Instead, Shinn tried to gaslight the Court, testifying that state prisoners’ “access to care ‘exceeds’ the access to care enjoyed by people in the community” — a claim Judge Silver called “shocking” and “completely detached from reality.”

Restrictive Housing Subclass

At the time of the trial, there were 2,667 prisoners in the RHU subclass, confined to their cells at least 22 hours a day. This included prisoners formally assigned to “maximum custody,” pursuant to Department Order (DO) 801; those being detained temporarily (usually awaiting resolution of disciplinary action), pursuant to DO 804; those placed on mental health watch (for suicide or self-harm), pursuant to DO 807; and those in “close custody,” pursuant to DO 813.

Prisoners in maximum custody are eligible to participate in a program, regulated by DO 812, that is designed to increase privileges in exchange for good behavior, proceeding by steps until they eventually graduate from maximum custody to close custody. DO 812 also requires classification reviews of maximum custody prisoners every 180 days. But trial evidence showed that each review was allocated only around 30 seconds. As a result, the Court concluded that “DO 812 is not being applied in a systematic and consistent way.”

“Prisoners sometimes change step levels … but those actions occur almost at random,” the Court noted. Other prisoners proceed all the way to the highest level and then “remain at that step for years.” But DCRR doesn’t know; it does not track how long a prisoner has been in maximum custody or at any particular step. “A conscientious effort to follow DO 812 would, at the very least, require … a way of ensuring prisoners progressed through the steps on a timely basis,” the Court offered.

Overuse of Isolation

With 9.5% of state prisoners in restrictive housing — more than double the national average — the Court found it was being overused. “The number of prisoners in maximum custody (1849) and detention (746) dwarf the number of prisoners on mental health watch (50) and close management status (22),” the Court noted. The policy itself, DO 801, is “designed such that large numbers of prisoners are classified as maximum custody, even when the prisoner’s characteristics would support a lower custody level.”

A related policy requires prisoners with a new life sentence to spend at least their first two years in maximum custody, leaving many prisoners there despite classification scores that justified placement in minimum custody. Once in maximum custody, life-sentenced prisoners can languish there much longer than two years. Other prisoners placed in maximum custody may linger there five or even ten years with no intervening misconduct.

Even after they are no longer classified as maximum custody, prisoners can remain there, still treated in every aspect like maximum custody prisoners. Around 150 of approximately 500 prisoners held in maximum custody housing at the Eyman prison complex were not classified as maximum custody.

Conditions in Restrictive Housing

Most RHU subclass members are housed in windowless cells measuring “less than 8 feet by 12 feet,” the Court noted. It is “a bare concrete box with a metal stool, shelf, toilet/sink and either a single or double slab for a bed.” The perforated steel cell doors are windowless. Built-in lighting provides round-the-clock illumination. Combined with the lack of a natural light cycle, sleep is difficult. “Overall, the ‘cells give a sense of being entombed in a small, concrete box’ and are ‘barren, stark, and … dehumanizing,’” the Court said, quoting Dr. Craig Haney, a Professor of Psychology at the University of California, Santa Cruz, who has been involved with the case almost from its inception.

He documented cells “infested with insects, roaches and crickets,” and “also with rodents.” Some are moldy and wet due to leaky plumbing. The cell door has a slot through which food trays are passed just twice daily — not three times. Worse, the food is often cold, “‘repetitive, unappetizing, and insufficient.’” So prisoners “‘remain hungry most of the time’” and “often must supplement their meals by purchasing food [from the prison commissary], if they have the funds to do so.”

Restrictive housing prisoners “have effectively no regular social contact,” the Court noted. Their only regular human contact comes from “‘brief, routinized ‘interactions’ that occur twice a day, when they receive their meals,’ assuming prisoners are fed that day,” since the Court also found that some prisoners were not fed for days at a time.

Encounters with mental health staff are often “cell-front” and not private, making “prisoners … uncomfortable talking about their issues.”

Outdoor recreation is permitted in an 11-by-12-foot concrete-enclosed area called a “chute.” About 15 feet tall, it has a metal mesh covering. “A chute has ‘no exercise equipment in it, it’s just sort of a barren area that [the prisoners] are allowed to go out in,’” the Court said, again quoting Haney. Chutes are extremely hot and insect-infested in the summer, and prisoners in them have no access to water or restroom facilities.

There are larger recreational areas available with some recreational equipment and water jugs, where multiple prisoners might gather in the same enclosure for social interaction. But these are so rarely used as to be effectively unavailable. The culprit again is severe understaffing, which means that any type of recreation — even in a “chute” — is discouraged and rarely offered. In fact, the Court found that guards frequently cancelled recreation and wrote that the prisoner had refused it.

Denial of Recreation and Hygiene

Recreation refusal rates at some prisons were as high as 92%. This indicated that prisoners were not being offered recreation, the Court noted, or that unreasonable conditions were being attached it, such as being left outside in the heat for several hours without water or access to a restroom. Likewise, a high number of shower refusals — showers are offered only three times a week, anyway — probably means unacceptable conditions were attached to them, too, such as being left in the shower room for hours waiting to be let out again.

Starving Prisoners

DCRR documents showed one prisonerat the Lewis Bachman detention unit was offered only one shower and seven meals in the course of an entire week. Other prisoners were given only one or two meals in a week.

Court Findings

The Court found that DCRR failed to provide class members with timely access to medically necessary health care, chronic disease care, medication, specialty care, and emergency treatment. There was insufficient health care staffing and a failure to provide necessary mental health treatment to mentally ill class members, including those who are suicidal or self-harming.

The Court also found that members of the RHU subclass did not receive adequate psychiatric monitoring due to chronic understaffing, nor did they receive adequate opportunities for recreation and exercise, subjecting them to unconstitutional amounts of social isolation — on top of which they also lack sufficient nutrition.

As a result, for their medical and mental health care claims, the Court found that Plaintiffs had satisfied both the objective and subjective prongs of the test for an Eighth Amendment violation, pursuant to Disability Rights Montana v. Batista, 930 F.3d 1090 (9th Cir. 2019), Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014) and Farmer v. Brennan, 511 U.S. 825 (1994). The same was true for the restrictive housing claims, under Johnson v. Lewis, 217 F.3d 726 (9th Cir. 2000) and Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010), as well as Farmer. Thus, relief was warranted. The parties were ordered to nominate experts to assist in crafting an appropriate injunction. See: Jensen v. Shinn, 2022 U.S. Dist. LEXIS 132468 (D. Ariz.).

The Court then appointed an expert to help craft its injunction: Dr. Marc F. Stern, the former Assistant Secretary for Health Services for the Washington State Department of Corrections (DOC). On September 12, 2022, it also approved his choices to assist in the “mental health and maximum custody aspects of the injunction,” Bart Abplanalp, Ph.D, Chief Psychologist for the Washington DOC and Tucson attorney John-Michael C. McGrath. Meanwhile a notice to the Class was also developed and approved on October 14, 2022.

Plaintiffs are represented by attorneys Alison Hardy, Sara Norman, and Donald Specter, of the Prison Law Office in Berkeley, California; David Fathi, Corene Kendrick, and Maria Morris, of the ACLU in Washington, DC; as well as Daniel Barr and John Gray, of Perkins Coie LLP in Phoenix. See: Jensen v. Shinn, USDC (D. Ariz.), Case No. 2:12-cv-00601.

New Contractor Hired

On May 27, 2022, DCRR announced it was awarding its next contract for prisoner health care to Alabama-based NaphCare, a company which paid almost $694,000 to the U.S. Department of Justice in 2021 to settle allegations of filing false claims for services that were never provided to prisoners held by the federal Bureau of Prisons.

Under the five-year contract, DCRR will pay $30.65 per prisoner per day. The total annual cost of $279,681,250 includes an estimated $10 million annual profit for the firm. The rate is nearly double the $16.604 that Centurion earned under its 2019 contract, which was extended for 15 months in 2021 at a rate of $17.5778.

NaphCare’s contract includes 1,106.2 FTEs, a reduction of 109 positions from an initial bid that put it close to the 1,214.25 FTEs Centurion said were necessary to provide adequate health care. The new contract also contains provision for modification at DCRR’s discretion, depending on the outcome of Jensen v. Shinn.

DCCR Assistant Director Gann, who helped evaluate the NaphCare contract and made recommendations, worked for the firm from 2006 to 2015, serving last as company vice-president. DCRR insisted there was no conflict of interest. 

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