The court’s February 24, 2021 order was the latest move to compel ADOC to comply with its obligations. Under the Stipulation, ADOC must comply with 103 PMs designed to improve its healthcare systems and reduce the harmful effects of isolation for about 33,000 prisoners at 10 prisons. [See: PLN, Feb 2016, p. 56, Sept. 2012, p. 34.]
Since the Stipulation was approved, the Ninth Circuit Court of Appeals upheld a district court order that required ADOC to create and implement a plan to comply and to use all available community resources. The Ninth Circuit also upheld a June 2018 district court order fining ADOC $1.44 million for failing to meet PMs.
In its latest order, the district court denied a motion by ADOC that sought relief from the court to prevent it from providing documents relating to the average length of stay in maximum custody units. ADOC argued the Stipulation, “does not mandate prescribed and guaranteed progression through the [Step Program Matrix].” The court disagreed, finding the Stipulation “requires the program exist and [compliant] prisoners be allowed to progress through the steps” and be released from isolation.
“If Defendants mean that they did not have intent to ‘implement’ the Step Matrix Program, then they acknowledge they entered into the Stipulation in bad faith,” wrote Judge Roslyn O. Silver in denying ADOC’s motion and finding Plaintiffs are entitled to fees.
The court then found ADOC had failed to comply with 22 PMs in May 2020. It fined ADOC $50,000 for each violation, totaling $1.1 million. The court then pointed out that it warned ADOC on January 31, 2020, that it would assess fines monthly at a rate of $100,000 for each instance of noncompliance after March 1, 2020. ADOC professed confusion about that order and it failed to file a brief explaining its failure to comply. The court ordered ADOC to file a brief on an expedited basis concerning “their failures to bring into, or maintain, compliance with the PMs in the January 2020” show cause order.
The court further found ADOC was failing to comply with the Stipulation by not randomly selecting 10 prisoners monthly for compliance with the maximum custody performance measures (MCPMs). It ordered ADOC to provide documentation concerning prisoners who consistently refused out-of-cell time.
A bright-line rule would be applied in the future concerning offers of out-of-cell time. Those offers were to “be made in a normal speaking voice, i.e., not a whisper.” They also were not to be made before 6 a.m., and the showers and recreation enclosures were ordered to be cleaned too, or the offers for them may be deemed unreasonable. Prisoners are also ordered to be provided appropriate clothing for outdoor activities.
The court further found the Stipulation was being violated because staff knew when it was monitoring week. “Any indication that staff members were aware in advance of which week would be monitored will result in a failing score for that location on all MCPMs,” wrote Judge Silver. She also said that chronic staff shortages are not “unexpected” and they cannot support an excuse for the failure to offer out-of-cell time.
The court further found ADOC was not providing appropriately sized enclosures for recreation. What was required as detailed, and ADOC was warned that the failure to provide the recreation enclosures of the size mandated by the Stipulation would be unsatisfactory. ADOC was given ten days to inform class counsel of the steps it was taking to come into compliance.
As to medical care PMs, ADOC was ordered to explain how class members who are not fluent in English will be identified and informed of their entitlement to interpretation services. The court found that 130 of the 191 encounters with prisoners either on suicide watch or non-watch visits received less than the required 10 or 30 minutes, respectively, for mental health visits. ADOC was ordered to have its officials review a prisoner’s file over the last five rounds and explain whether the encounter was or was not meaningful in the context of the overall treatment of the prisoner.
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