Judge asks whether prison health care deal should be tossed

A federal judge who has criticized Arizona’s persistent noncompliance with a settlement requiring improvements to health care for prisoners has ordered lawyers for the state and inmates to decide whether they want to throw out the 5-year-old deal and instead bring the case to trial.

Holding a trial is one of three options offered Friday in an order by Judge Roslyn Silver, who said the state can also make a good-faith reaffirmation of its promise to comply with the settlement or draw up a replacement agreement.

Silver said tossing the settlement is the only option available if the state, which is in violation of the deal, continues to argue that the court lacks the power to enforce the agreement.

The judge said she was previously hesitant about throwing out the settlement and calling an expensive, time-consuming trial. But she said a lawyer for the state recently told an appeals court that scrapping the settlement was a possible path forward.

Silver, who took over the case about a year ago, made it clear she won’t tolerate the state’s failure to follow through on its promises, saying “it makes very little sense for defendants to expend public funds paying attorneys to defend their undisputed breaches of the agreed upon stipulation (settlement).”

The judge’s order came about a week after a court-appointed expert issued a report saying under-staffing, inadequate funding and privatization of health care services are significant barriers in improving health care for the 34,000 inmates in Arizona’s 10 state-run prisons.

Corene Kendrick, an attorney representing the inmates, said the lawyers for the prisoners are reviewing the benefits and drawbacks of each of the three options presented by the judge.

“The court is frustrated with ADC’s failure to comply with the stipulation and the frivolous arguments they have made — first at the district court and at the 9th Circuit (Court of Appeals) — that this agreement they signed five years ago has no binding effect on them and the court has no power to enforce it,” Kendrick said.

The Department of Corrections didn’t immediately respond to a request late Monday morning to comment on Silver’s order.

The state’s noncompliance has so far been costly.

In the summer of 2018, then-Corrections Director Charles Ryan was found to be in civil contempt of court and the state was fined $1.4 million for noncompliance with elements of the settlement.

Earlier this year, Silver threatened a second contempt fine, which could be as high as $1.2 million, for its continued noncompliance.

The state is appealing the first contempt finding, arguing another judge who made the decision didn’t have contempt powers available to enforce the settlement.

If the state decides to keep the current settlement, its lawyers will have to identify the enforcement mechanisms available to the court, Silver wrote.

“It is foolish to believe the parties meant for the court to have no enforcement mechanisms,” Silver wrote.

The settlement resolved a 2012 lawsuit that said Arizona’s prisons didn’t meet the basic requirements for providing adequate medical and mental health care. It said some prisoners complained that their cancer went undetected or that they were told to pray to be cured after begging for treatment.

The state denied allegations that it was providing inadequate care, and the lawsuit was settled without the state acknowledging any wrongdoing.