Judge Reopens Case and Orders Trial on Conditions in Arizona Prisons

July, 2021

The Prison Law Office, and our co-counsel ACLU National Prison Project, ACLU of Arizona, and Arizona Center for Disability Law are actively working to enforce the rights of people in Arizona prisons in our case of Parsons v. Shinn.

On July 16, 2021, the Court reopened the case and ordered a trial, to start no later than November 1, 2021. The Court’s order found that “Defendants have in the past six years proffered erroneous and unreliable excuses for non-performance, asserted baseless legal arguments, and in essence resisted complying with the obligations they contractually knowingly and voluntarily assumed.” 

Below is a summary of our COVID-19 related case activity earlier in the pandemic. At the end of the page are select court filings, including briefs and declarations, and correspondence with Arizona Department of Corrections (“ADC”) officials.

Prison Law Office fact sheets for incarcerated people about COVID-19:

For information provided by ADC regarding testing and rates of infection, please see the department’s COVID-19 dashboard.

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First, on March 16, 2020, we filed an emergency motion asking District Judge Roslyn O. Silver to order ADC to consult with a correctional health care expert to develop a plan to prevent, manage, and treat any COVID-19 outbreaks in the state’s ten prisons.  The emergency motion also requested that any COVID-19 plan include steps to reduce the density of the prison population, and that the federal court order the state to suspend all policies that require incarcerated people to pay for soap and hygiene supplies, co-pays for all requests for medical care, and that prohibit the use of alcohol-based hand sanitizers in the prisons.  After we filed the motion, ADC announced that they would provide soap free of charge to incarcerated people, no longer charge $4 co-pays to people seeking medical care who reported flu-like or COVID symptoms, and permit custody and health care staff to bring hand sanitizer into the prisons.  Unfortunately, on March 23, 2020, Judge Silver denied the rest of the emergency motion for relief.

On March 27, 2020, after ADC publicly announced that multiple incarcerated people had been tested for COVID-19, but they refused to provide their names to class counsel, we filed a statement to the federal court asking Judge Silver to order ADC to provide us with the names of our clients who are suspected to have COVID-19.  On April 2, 2020, Judge Silver issued an order instructing ADC to provide the attorneys for incarcerated people the names of every person tested for COVID-19, as well as the results.  In her order, she wrote that “Defendants’ response gives the impression that they are willfully blind to the Stipulation’s raison d’etre—which is to provide for prisoners’ health care through diagnostic testing and treatment.”  She also identified that ADC’s refusal to provide this information to the attorneys for incarcerated people could reflect “Defendants’ failure to accept what may be a grave threat facing the prisoner population.”

Since that time, we have repeatedly notified ADC of our concerns about the use of punitive solitary confinement and detention units at multiple prisons for medical isolation and quarantine purposes for people with COVID-19 symptoms or confirmed positive.  They describe multiple detention units well beyond design capacity, including at times when three people are forced together in a cell designed for two, and how this forecloses any of the physical distancing that the Centers for Disease Control and Prevention (CDC) and other experts indicate are necessary. We called on ADC to describe all actions being taken to mitigate overcrowding, to adopt policies to reduce the transmission of the novel coronavirus such as social distancing and requiring face coverings, and to operate medical quarantines in accord with guidelines set forth by experts in a recent report, The Ethical Use of Medical Isolation – Not Solitary Confinement – to Reduce COVID-19 Transmission in Correctional Settings.

On May 6, 2020, we filed a motion asking Judge Silver to find ADC officials in contempt of past court orders, due to their longstanding failure to provide timely urgent specialty care for people at the Arizona State Prison Complex (“ASPC”)-Florence.  The motion details years of noncompliance with a critically important portion of the parties’ settlement agreement that requires that incarcerated people who are referred to outside specialists for urgent care are seen within 30 days of the request.  We asked the court to fine the State $400,000 for eight months of noncompliance with this measure, after the court issued an order in May 2019 directing ADC to start to comply with the measure or be fined $50,000 for each month of noncompliance.  The motion is fully briefed and we are awaiting a decision.

On May 8, 2020, we filed a motion to enforce the Stipulation that detailed ADC’s failure to comply with requirements regarding conditions in maximum custody units, including requirements about out of cell time and programming.  ADC responded to this motion on July 21, 2020. Our response was filed on October 2, 2020.  The motion is fully briefed and we are awaiting a decision.

On June 12, 2020, we filed a motion to enforce the Stipulation that detailed ADC’s failure to comply with the requirement that for all people who are not fluent in English, that health care encounters be conducted using an interpreter.  Our motion detailed how monolingual Spanish speakers and Deaf people were unable to communicate with health care staff in medical, mental health, and dental encounters.  Now, during a pandemic, it is of the highest importance that patients be able to communicate fully with health care staff, both to report concerning symptoms, but also to receive full patient education.  ADC responded to this motion on July 27, 2020, and we filed our reply on August 24, 2020. The motion is fully briefed and we are awaiting a decision.

On June 18, 2020, ADC Director David Shinn ordered custody and health care staff working in prisons to wear masks or face coverings to reduce the spread of COVID-19, but incarcerated people were  not allowed to wear masks.  On June 29, 2020 Arizona Governor Doug Ducey directed ADC to make cloth face coverings available to all incarcerated people, and that the department should no longer discipline incarcerated people for covering their faces to reduce transmission of the virus.  While the lifting of  this policy was long overdue, we hope that the provision of face coverings will mitigate the spread of the virus within the prisons.

On February 24, 2021, Judge Silver issued a sweeping order granting several of our motions and requiring ADC to address their continuing noncompliance with many aspects of the Stipulation and the performance measures. We anticipate that the ADC may try to appeal parts of this order to U.S. Court of Appeals for the Ninth Circuit. To read more on the status of the motions in the Parsons case, see the case update letter here.

While we currently cannot physically visit prisons to monitor compliance with the Parsons Stipulation, we are in constant communication with incarcerated people and their loved ones via U.S. mail.  We  conducted a remote “virtual” prison tour of ASPC-Florence in mid-July and ASPC-Tucson in mid-August 2020, and plan to continue to do so at other institutions until we can safely visit our incarcerated clients in person again. We will continue to advocate for increased testing of incarcerated people, social distancing via population reduction, and improved quarantine and medical isolation practices.

 

Links:

 

Court Filings:

 

Correspondence

 

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Attorneys from the Prison Law Office and the ACLU National Prison Project also spoke at a virtual town hall meeting on April 1, 2020, to provide an update on the prison health care lawsuit and answer questions from the community and people who have loved ones incarcerated in Arizona prisons.  Rep. Athena Salman and Rep. Diego Rodriguez also gave an update on what is happening at the state Legislature during this time.  The ACLU of Arizona’s Smart Justice team described how people can take action to ask Governor Ducey to protect people in the state’s prisons.  A recording of the April 1 town hall meeting is available on the ACLU of Arizona’s Facebook page.

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NOTE:  If you have questions or concerns about COVID-19 in Arizona prisons, please contact the Prison Law Office at office@prisonlaw.com.  Our offices are closed indefinitely under the State of California’s state of emergency order.  Our staff are working remotely, and we apologize for any delays in responding to inquiries.

 

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