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State asks judge to throw out inmates’ lawsuit, saying it ‘borders on the ridiculous’



The state is asking federal judge to throw out a lawsuit filed on behalf of more than 34,000 inmates, saying there’s no evidence each and every prisoner is at risk.

Attorney Daniel Struck, who is leading the state’s defense, told U.S. District Court Judge Neil Wake the allegations presented by lawyers for the inmates amount to little more than “anecdotal evidence” that some prisoners may have had some problems.

Struck also argued that some of the conditions cited have been remedied. And he said there are legitimate reasons for others, like having lights on 24 hours a day in some cells.

What all that means, he argued, is there is no basis for a class-action lawsuit and Wake should throw it out.

But Struck may have an uphill battle, at least in part because of a ruling last month by the 9th U.S. Circuit Court of Appeals. There, a three-judge panel gave the go-ahead for the lawsuit on behalf of all those in state-run prisons.

Most significant in that ruling was the conclusion that the claims, if proven true, were not unique to the individual inmates but instead “systemic failures” in the prison’s health care system “that expose all inmates to a substantial risk of serious harm.” And if that is the case, appellate Judge Stephen Reinhardt said that would require a wholesale revamp of the agency’s policies — and not simply correcting the problems of the 13 inmates who were the named plaintiffs.

The state has asked the full 9th Circuit to overturn that ruling.

But attorneys for the inmates, in their own legal filing this week, told the appellate judges they should leave the decision undisturbed. David Fathi of the American Civil Liberties Union said the three-judge panel concluded the inmates had demonstrated by overwhelming and largely uncontested evidence “the existence of the statewide Arizona Department of Corrections policies and practices” that allegedly expose all inmates to a “substantial risk of serious harm.”

If Wake refuses to throw the case out, a trial is set to begin Oct. 20.

The lawsuit focuses on the more than 34,000 inmates housed in state-run facilities, whose health care is supposed to be provided by private firms under contract with the state.

Among the allegations are “lengthy and dangerous delays” and “outright denials of health care,” failure to provide necessary medication, a practice of “employing insufficient health care staff,” substandard dental care and denial of basic mental health care to suicidal and self-harming prisoners.

The lawsuit also said inmates in isolation units were denied adequate recreation and nutrition, endured constant cell illumination and suffered from inadequate mental health care staffing and treatment.

But Struck, in arguments to Wake, said the case is flawed.

Some of that is technical. For example, he said inmates are relying on opinions of expert witnesses who contend the care falls below standards. But Struck said the plaintiffs did not include any emails, documents or other records those experts reviewed and relied upon, making all of their conclusions inadmissible.

But Struck also said there is no basis to force the state to defend a suit brought on behalf of all inmates.

“The U.S. Constitution requires that each named plaintiff prove that they are actually exposed to a substantial risk of serious harm,” he wrote.

Struck also took issue with the contention there are “systemwide deficiencies,” saying the opinions of the experts “are foundationally flawed and bald conclusion (which) do not create an issue of fact.”

He said the lawsuit is not supported by evidence spanning all 10 state prisons — or even a majority of them – “but instead based on a handful of unrelated isolated incidents at a few facilities.”

He also said there have been improvements in health care in the prisons due to having that requirement contracted out and provisions in those contracts requiring certain levels of care.

And Struck took particular issue with certain claims, like the lack of radio or television.

He said the fact is that, with only some exceptions applying to some maximum custody inmates, both are available. Struck said what seems to be the issue is that the state does “does not pay for these luxuries.”

“This assertion borders the ridiculous,” Struck wrote. “Plaintiffs provide no authority for the proposition that a prison must pay for a television when an inmate cannot afford one.”

He also argued there are “penological justifications,” such as a suicide watch, for having some cells illuminated 24 hours a day. And he said maximum custody inmates are not isolated but have “daily social interaction,” including with staff, other inmates, isitors and by telephone.

Struck also provided some point-by-point counters to specific allegations of poor health care to specific inmates.

That question of class-action relief on behalf of all inmates could prove crucial to whether Wake tosses the case before trial.

In last month’s appellate court ruling, Reinhardt said it would be improper to deny legal relief to inmates if they can prove unsafe and life-threatening conditions “on the ground that nothing yet had happened to them.” And Reinhardt said the fact that not every inmate has been injured is irrelevant.

“After all, every inmate in ADC custody is necessarily subject to the same medical, mental health and dental care policies and practices” he said. In fact, Reinhardt said “it would indeed be surprising if any given inmate did not experience such a health care need while serving his sentence.”


  1. middlegroundprisonreform

    Dan Struck and the State are the ones bordering on the edge of reality. I have been an advocate for prisoners in Arizona for more than 33 years. Medical care (which includes dental, optical and mental health) has never been worse. Vital prescription medications are allowed to lapse, with huge gaps in time until they are re-filled, and this includes medications for mental health patients who immediately begin to decompensate. Appointments with specialists are promised, but delayed for months at a time. Appointments are made with specialists, but the inmate is taken to the appointment without necessary prep work, records or other items required, so the appointment has to be rescheduled. Inmates document serious pain, lumps, bodily fluid changes, blood discharges, and nothing is done to immediately address the issues. Units are extremely short-staffed of doctors, qualified nurses and other medical providers. Records are not kept up to date or at all. Surgeries are botched and never repaired. Medication for pain control ordered by hospital doctors for post-surgery care is not provided or is provided for a limited amount of time. Diabetics are told that blood sugar levels of 200+ are “acceptable.” Suspicious lumps or symptoms of cancer are ignored until it is usually too late and the patient is in a Stage IV situation. THIS is the medical care situation within the Arizona Department of Corrections. Advocates, such as myself, can sometimes move things along or make demands that result in care being provided. But why should inmates need to beg for help to an outside non-profit agency for medical care that is constitutionally mandated? What about prisoners who don’t know about Middle Ground Prison Reform? What about the letters we don’t have the time or resources to respond to?
    This is not the way to provide professional and constitutionally-mandated care to the incarcerated.

  2. Familymemberofincarceratedperson

    I have had to advocate for my family member to receive appropriate treatment several times in a short time of incarceration. The last wait to see a doctor was a month to get prescriptions filled. In the past my family member has gone several months without the meds needed. They have had to instruct the staff on how to administer med and it was botched one time. Staffing is inadequate. The inmates have some legitimate complaints.

  3. Thank You Donna Hamm with Middle ground reform,

    I certainly wish our family would have known about you when my nephew Tony Lester was sentenced to a 12 yr mitigated prison sentence on a first time offense, perhaps the outcome would have been different.

    Tony was ALLOWED to make the decision not to take his court ordered psychotropic medications : court ordered by Rule 11 commissioner Stephen Holding who court ordered that Tony remain on all psychotropic medication that kept him at a minimal level of competency and safe from self mutilation.

    Shortly after Tony was sentenced to Prison in May of 2010, I along with his criminal defense attorney begged for one person within the ADOC to assist us in keeping Tony safe from the many alternative personalities .

    I pleaded with then Deputy Director CHARLES FLANAGAN along with Tony’s criminal defense attorney to transfer Tony to a mental health unit : FLAMENCO.

    The reply was that Tony was in the appropriate unit and that Tony was deemed a manipulator by Mr. Flanagan and several mental health staff within the Tucson Complex, but the most compelling tragedy to this whole story is that several correctional staff stood around for 23 minutes watching and waiting for Tony to die!
    What kind of human being does this ??? If this is not deliberate indifference to human life I certainly do not know what is!!
    It was not until that Ms. Wendy Halloran of KPNX 12 News began fighting along side our family in exposing exactly what happened on that night in July of 2010, She along with KPNX 12 News fought a vicious two year battle to retrieve the ONLY physical evidence that exists : The ICS video taken the night Tony committed suicide,

    The State of AZ and ADOC placed a protective order upon this video if it were not for Ms. Halloran’s KPNX 12 News epic battle to retrieve this video this dark secret would have remained buried exactly where the State of AZ and ADOC would have liked it to be.
    Since 2010 the suicide rate is 60 percent higher than the national average. It is time that the State’s attorney’s stop wasting AZ tax dollars .
    Donna Hamm has advocated for prisoner rights for many decades she has witnessed the many failed administrations!! She truly understands prisoner right issues and prison reform! I don not know another more qualified individual to speak out on such prison issues than Ms. Hamm.

  4. Here is the 911 call of the incident on the Night Tony committed suicide Judge for yourself????

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