Judge: Arizona prison medical care "grossly inadequate"

PHOENIX — The care provided by the state at prison is “plainly grossly inadequate” and state officials are acting “with deliberate indifference’’ to the substantial risk of harm to inmates, a federal judge ruled Thursday.

In a 200-page order, Judge Roslyn Silver lays out facts she said that show not only were top prison officials aware of conditions that resulted in serious — and unnecessary — physical injury and death to inmates but that they actively ignored the problems.

Nor is this news to prison or state officials — or Gov. Doug Ducey.

The lawsuit was filed in 2012 on behalf of inmates. The state agreed to a settlement which was signed in 2015, Ducey’s first year in office, promising to do better. And the state was fined $1.4 million in 2018 for failing to live up to the performance measures to which it had agreed, with Silver imposing another $1.1 million penalty just last year.

But the problems persist, Silver said.

The Department of Corrections, Rehabilitation and Reentry; David Shinn, its current director; and Larry Gann, director of the agency’s Medical Services Contract Monitoring Bureau, are refusing to make the necessary fix, the judge said. And they even have been purposely turning a blind eye to the unconstitutional conditions in the system that is responsible for more than 33,000 inmates, Silver said.

“Despite years of knowledge, driven by this litigation and defendants’ monitoring of private health-care contractors’ performance, defendants have in fact made no significant attempts to substantively change the health-care system and compel sufficient staffing,” Silver wrote.

“Thus, defendants are acting with deliberate indifference to plaintiffs’ serious medical and mental health-care needs,” she continued. And the judge said the testimony from both Shinn and Gann during the trial “provides compelling evidence of knowledge of the failures but a refusal to take meaningful measures to correct systemic flaws.”

The judge even accused Shinn of being more interested in protecting himself than protecting inmates. Silver cited his decision to send a letter about staffing level to Centurion, the company that had the contract to provide health care for prisoners, but then concluding he didn’t need to follow up.

“The only possible conclusion to draw is that Shinn had little interest in changing the underlying reality,” the judge said. “Rather, his letter appears to have been nothing more than a half-hearted effort to generate a piece of paper he could cite to avoid contempt.”

And that’s just part of it.

“Shinn’s testimony also made it clear he has adopted a strategy of pretending the problems he knows about do not exist,” the judge said. “Shinn’s actions are not the type of actions a concerned administrator would have taken if he was actually interested in ensuring the undisputed failures were being resolved.”

And she said that Shinn’s claims on the stand that inmate access to care exceeds that available to people in the community “is completely detached from reality.”

It isn’t just the lack of health care that Silver found violated constitutional requirements prohibiting cruel and unusual punishment. She also found that the Department of Corrections was guilty of “extreme social isolation” of inmates in maximum security, lack of legally required recreation and even insufficient nutrition.

C.J. Karamargin, press aide to the governor, who hired Shinn in 2019, had no response, saying the report was still being studied. The Corrections Department did not return calls on Friday.

But Rep. Walt Blackman, R-Snowflake, who has advocated for reforming the prison system since being elected in 2018, told Capitol Media Services what he read in the report convinces him that there need to be wholesale changes in the agency, starting at the top with the governor firing Shinn. And he rejected the idea that decision should be left to whoever replaces Ducey who now has just six months left on his term.

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“He is still governor til the last day until the new governor gets sworn in,” Blackman said. “And it’s his responsibility as the chief executive that we have prisons that are going to keep the community safe.”

Blackman said the judge’s conclusion that Shinn was ignoring obvious problems and saying everything is just fine at the agency is not a surprise. He said he saw the same thing when the director was called before lawmakers to answer findings by the state Auditor General’s Office about other problems in the system.

But Blackman said the firings shouldn’t stop with Shinn, saying the state needs to “clean house” of deputy directors and wardens who have been there for years and are running their facilities as if they are independent operations.

“So instead of taking their directions from the director ... they are doing their own thing,” he said. “And that’s a problem.”

What remains to be seen, however, is what the judge can do to get the state to finally comply, given that the millions of dollars of fines have not worked.

One problem until now was that there was only a settlement agreement, with the prison system monitoring its own performance subject to checks by plaintiffs and the court, said David Fathi, director of the National Prison Project for the American Civil Liberties Union, which sued on behalf of the inmates. Now, Fathi said, there is an actual judgment, one that can be enforced in a variety of ways.

One, he said, is that the judge could simply order the agency to actually hire additional doctors and nurses.

Silver, in her ruling, said the evidence shows that one reason inmates are not getting care is that staffing is “significantly below” the levels for which the state contracted. And even if it had been at contracted levels — a provision she said the state has failed to enforce — even Centurion has admitted that would be “insufficient.”

And that, the judge said, is just part of the problem.

“The majority of medical staff care do not have necessary training or licensure to provide the type of care that is necessary to provide constitutionally adequate care,” she explained. “This is a completely ineffective and toxic combination.”

There’s an even more radical solution: Place the prison system into receivership. That would take the management away from the government, including hiring necessary staff and implementing policies, and giving it to someone appointed by — and answering directly — to the court. And Fathi said there is legal precedent to force the state to pay for anything that is ordered.

Attorneys for the state did not dispute the multiple examples that Silver cited of inmates who died or were harmed due to lack of medical care. Instead, they argued these were “simply isolated occurrences’’ that do not show a pattern or practice of providing deficient health care.

The judge wasn’t buying it.

“The overwhelming evidence shows these cases indicate the opposite,” Silver wrote, pointing out the number of encounters each of these inmates had with the prison medical system, including many different personnel.

“It is impossible to conclude their treatment represented isolated occurrences,” she said. “Rather, these outcomes show that if a prisoner develops as serious health condition while in ADCRR custody, he or she is at substantial risk of grievous harm or death due to medical personnel’s inability to accurately assess and diagnose such conditions.”

Earlier this year, the state awarded a new contract for providing health care to NaphCare, taking it away from Centurion. But Silver, in her extensive ruling, made it clear she thinks the problem is not with who is hired to provide health care but the failure of the state to do what is necessary to comply with the law and provide proper care.