Court nixes AZ's bid to delay takeover of prison health care

In a brief order late Tuesday, the 9th Circuit Court of Appeals rejected Arizona's last-minute request to delay U.S. District Court Judge Roslyn Silver's order naming Annette Chambers-Smith to oversee health care for the approximately 25,000 inmates in state-run facilities. The three-judge panel did not immediately explain its order.

The judges did agree to give attorneys for Ryan Thornell, director of the Department of Corrections, Rehabilitation and Reentry, a chance to convince them to overturn their order.

Only thing is, they set a briefing schedule on any such request that likely means they won't hear arguments until December. But the order installing Chambers-Smith, former Ohio prisons chief, is effective Sept. 21.

That means, absent any intervention by the U.S. Supreme Court, Chambers-Smith will be installed to take control of the health system.

The moment she takes control, Silver has given her complete authority, including broad powers to hire and fire state workers and to alter and end contracts the prison system has with a private company to provide care to inmates. Attorneys who sought the receiver say that system has resulted in companies putting profits above patient care.

"We disagree with the ruling,'' said Christian Slater, press aide to Gov. Katie Hobbs, saying "the progress towards compliance has been ignored."

'A blank check to spend taxpayer money'

In arguing for a delay, Andrew Pappas, an attorney representing the state, wrote: "The upshot is that a single private individual will imminently assume sole responsibility for thousands of state employees and contractors, control hundreds of millions of public dollars and oversee the provision of healthcare to roughly 25,000 inmates in nine prisons across Arizona."

Pappas is with the private firm of Osborn Maledon, which the state has hired to argue that, despite 14 years of litigation over care for inmates, the court takeover of the system is improper and illegal.

Pappas acknowledges that the lawsuit against the state over inadequate healthcare has now been going on for 14 years. He also doesn't deny that Silver made prior efforts to bring the state into what she says is compliance with constitutional requirements, including having court-appointed monitors and fines of millions of dollars.

But he said Silver has ignored the progress that has been made since the judge issued a scathing 200-page order in 2022 finding that the care provided by the state at prisons is "plainly grossly inadequate'' and state officials were acting "with deliberate indifference'' to the substantial risk of harm to inmates.

In that order, Silver said the facts show top prison officials were aware of conditions that resulted in serious and unnecessary physical injuries and deaths to inmates but actively ignored the problems. She issued a 2023 injunction ordering the state to fix the problems.

The state is not arguing that those problems have gone away. But Pappas told the appellate judges they should recognize what has been done already, all without a receiver.

"The department has more than doubled its healthcare spending,'' he said. "It has grown its healthcare staff by over 50%. It has opened new healthcare facilities and improved existing ones. It has increased access to substance-use disorder treatment and specialty care.''

Silver nonetheless decided to install Chambers-Smith as a receiver. Pappas noted that the order puts her in charge of fixing the healthcare system for five years, which he said is a recognition that it was impossible for the state to do so within the three years before Silver ran out of patience.

Slater, speaking on behalf of the governor, echoed some of the same arguments.

"The court is imposing unrealistic demands and timelines that fail to account for the complexity of these challenges,'' he said.

Slater criticized not just the appointment of Chambers-Smith but the requirement to pay her $500,000 a year for five years and to give the receiver "essentially a blank check to spend taxpayer money.''

'Risk of grave harm to the prisoners'

Attorneys for inmates countered those arguments.

Sophie Hart of the Prison Law Office pointed out to the appellate judges that Silver wrote that Thornell and state officials "dragged their feet, delayed, exploited ambiguity, and fought compliance at every level.''

"Faced with the evidence compiled over the last decade, the district court concluded that appointment of a receiver was necessary to remedy these 'pervasive constitutional violations' and the 'risk of grave harm to the prisoners that has persisted since the outset of the litigation,' '' Hart told the appellate judges.

She also said that, despite what Pappas argued, Silver did say in her order appointing a receiver that she had considered the state's claims of substantial progress.

"The court found it overstated and unpersuasive when weighed against voluminous evidence showing they had made very little progress implementing the (2023) injunction,'' Hart said.

She pointed to Silver's conclusion that, even if the state has some commitment to now immediately come into compliance, the judge said "the record is rife with examples of their willful inability to institute constitutionally adequate healthcare in compliance with the injunction.''

"The court went on to conclude that defendants' violations of the injunction 'are brought to life — or death — by the individuals who experienced profound delays in receiving treatment or who failed to receive treatment at all,' '' Hart said.

The state's claims that things have gotten better since Hobbs installed Thornell to run the prison system in 2023 also are unsupported by the record, she said.

Hart said Silver found there was "a stark lack of leadership able to effectively implement the requirements of the injunction.'' The judge cited what she said was a tendency of the state to blame any problems on the private firm it hired to provide care.