Appeals court postpones takeover of Arizona prisons' health care

In a brief order late Friday, the 9th U.S. Circuit Court of Appeals acknowledged that Arizona has not complied with a 2023 injunction issued by U.S. District Court Judge Roslyn Silver in a lawsuit against the Department of Corrections, Rehabilitation and Reentry that's been going on since 2012.

But the appeals court, in the unsigned order, also said the state is raising "serious questions'' about the authority of a federal judge to take over health care in a prison system.

So the appellate judges said they will leave in place Silver's decision to appoint former Ohio prisons chief Annette Chambers-Smith as the receiver. They also will not overturn Silver's orders to create an operational plan and start working on issues including compensation, staffing, office space and financing.

But they said that, for the moment, they will block Silver's order putting Chambers-Smith in charge of the health system, which was scheduled to take effect Monday, Oct. 19. For now, that leaves the program under the control of Ryan Thornell, the Arizona prisons chief.

How quickly all this can be resolved remains unclear. At the very least, the new order postpones takeover of the health system until Dec. 7, when attorneys for the state will make their case directly to the appellate court that Silver exceeded her authority.

The lawyers for Arizona already conceded that the care being provided to 25,000 inmates in state-run prisons does not meet the standards the state agreed to in 2023 as part of the injunction. But they contend Silver failed to acknowledge the progress that has been made.

There's another issue: How much power a federal judge has to wrest control of part of a state agency from the oversight and control of state officials.

Put simply, lawyers for the state contend Silver exceeded her authority.

That argument gained some traction with the appellate judges.

"Under the Prison Litigation Reform Act, all prospective relief against state prisons shall extend no further than necessary to correct the violation of the federal right of a particular plaintiff or plaintiffs,'' the appellate judges wrote. They also said federal law requires that courts use "the least intrusive means necessary to ensure compliance.''

The appellate judges said they also want to hear arguments that the state is harmed because a receiver will be able to take over full control of the prison health system, including the ability to implement policy changes, make contracts, direct state spending on health care staffing and potentially waive compliance with any state laws, regulations and contracts that keep the receiver from doing her job.

"Appellants have a strong public interest in protecting Arizona's sovereignty and control over its prison system,'' the appellate judges said. The Dec. 7 hearing will give lawyers for the state a chance to make those arguments directly to the court.

But in their Friday order, the judges also made it clear there are other interests that must be taken into account.

"It also is always in the public interest to prevent the violation of a party's constitutional rights,'' they wrote. 

"The deprivation of a prisoner's constitutional right to adequate medical care is irreparable harm,'' the appellate judges wrote. They noted that Silver made "extensive findings'' that inmates have not only suffered from "constitutionally defective medical care'' but that conditions have not been fixed since the 2023 injunction.

In her 83-page order, Silver made it clear she had run out of patience.

She detailed complaints that go back to 2012 about inadequate physical and mental health care at the 10 prison complexes across the state. Those include a history of promises to do better, injunctions, and multimillion-dollar fines.

"But now, after nearly 14 years of litigation with defendants having not gained compliance, or even a semblance of compliance with the injunction and the Constitution, this approach has not only failed completely but, if continued, would be nothing short of judicial indulgence of deeply entrenched unconstitutional conduct,'' Silver wrote.

"Plainly, only the imposition of the extraordinary can bring an end to this litigation and the reasons it was brought,'' Silver continued. "An end to unconstitutional preventable suicides. An end to unconstitutional preventable deaths. An end to unconstitutional failures to treat those in severe pain.''

All that, the appellate judges said, factors into their decision to not overturn Silver's decision to appoint a receiver. They said to do so "risks extending the violations found by the district court.''

And they will leave in place the parts of Silver's order that allow Chambers-Smith to start planning the receivership.

But the actual transfer of control of the health system to her, the appellate judges said, will have to wait until they hear arguments and decide if Silver exceeded her authority.