VICTOR ANTONIO PARSONS; SHAWN JENSEN; STEVE SWARTZ; DUSTIN BRISLAN; SONIA RODRIGUEZ; CHRISTINA VERDUZCO; JACKIE THOMAS; JEREMY SMITH; ROBERT CARRASCO GAMEZ, JR.; MARYANNE CHISHOLM; DESIREE LICCI; JOSEPH HEFNER; JOSHUA POLSON; CHARLOTTE WELLS; ARIZONA CENTER FOR DISABILITY LAW, Plaintiffs-Appellees,
CHARLES L. RYAN; RICHARD PRATT, Defendants-Appellants
Argued and Submitted, San Francisco, California:
November 6, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Arizona. D.C. No. 2:12-cv-00601-NVW. Neil V. Wake, District Judge, Presiding.
Nicholas D. Acedo (argued) and Daniel P. Struck, Struck Wieneke & Love, P.L.C., Chandler, Arizona; Thomas C. Horne, Arizona Attorney General, and Michael E. Gottfried, Assistant Attorney General, Phoenix, Arizona, for Defendants-Appellants.
David C. Fathi (argued), ACLU National Prison Project, Washington, D.C.; Daniel Pochada, ACLU Foundation of Arizona, Phoenix, Arizona; Daniel C. Barr, Amelia M. Gerlicher, Kirstin T. Eidenbach, Perkins Coie LLP, Phoenix, Arizona; Caroline Mitchell, Jones Day, San Francisco, California; Donald Specter and Corene Kendrick, Prison Law Office, Berkeley, California; John Laurens Wilkes, Jones Day, Houston, Texas; Jennifer K. Messina, Jones Day, New York, New York, for Plaintiffs-Appellees.
Catherine Weiss, Michael Hahn, Jason Halper, and Monica Perrette, Lowenstein Sandler LLP, Roseland, New Jersey; Mark A. Chavez, Chavez & Gertler LLP, Mill Valley, California, for Amici Curiae American Friends Service Committee, Center for Children's Law and Policy, Children's Rights, Impact Fund, National Alliance on Mental Illness (NAMI), NAMI-Arizona, National Center for Youth Law, National Disability Rights Network, National Immigrant Justice Center, National Juvenile Defender Center, Pacific Juvenile Defender Center, The ARC of the United States, and Youth Law Center.
Before: Stephen Reinhardt, John T. Noonan, and Paul J. Watford, Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
The defendants, senior officials of the Arizona Department of Corrections (" ADC" ), appeal an order certifying a class and a subclass of inmates in Arizona's prison system who claim that they are subject to systemic Eighth Amendment violations. The inmates allege that numerous policies and practices of statewide application governing medical care, dental care, mental health care, and conditions of confinement in isolation cells expose them to a substantial risk of serious harm to which the defendants are deliberately indifferent. The inmates seek declaratory and injunctive relief from the alleged constitutional violations. After reviewing the substantial record compiled by the plaintiffs, which includes four expert reports, hundreds of internal ADC documents, depositions of ADC staff, and inmate declarations, the district court determined that the plaintiffs meet the standard for class certification set forth in Federal Rule of Civil Procedure 23. It therefore certified a class of inmates challenging ADC health care policies and practices, and a subclass of inmates challenging ADC isolation unit policies and practices. We conclude that the district court did not abuse its discretion in certifying the class and subclass, and therefore affirm the order of the district court.
Arizona law requires the Director of the ADC to " provide medical and health services" for the approximately 33,000 inmates in ten prison facilities who depend on the state for all basic needs. Ariz. Rev. Stat. Ann. § 31-201.01; see also id . at § 41-1604 (providing that " the director shall be responsible for the overall operations and policies for the department" ). To satisfy the duty imposed by statute on its director, ADC has promulgated extensive statewide policies governing health care and conditions of confinement that apply to all of the inmates in its custody, all of its staff, and all of its facilities.
Since July 2012, ADC has contracted with private entities to provide medical, dental, and mental-health care services to inmates. Specifically, ADC hired Wexford Health Services from July 1, 2012 through March 3, 2013, at which point it replaced Wexford with Corizon, Inc., its current partner. ADC's private contractors are required by the plain terms of their agreements to follow all ADC policies, and work with ADC to implement additional policies governing such matters as health care staffing, access to prescriptions, emergency care, and dental care. The contractors' full compliance with statewide ADC policy is constantly monitored by ADC officials.
The plaintiffs are thirteen inmates in ADC custody and the Arizona Center for Disability Law, Arizona's authorized protection and advocacy agency. See 42 U.S.C. § 10801.
They filed this suit in March 2012, claiming that ADC's policies and practices governing medical care, dental care, and mental health care expose all inmates " to a substantial risk of serious harm, including unnecessary pain and suffering, preventable injury, amputation, disfigurement, and death." The plaintiffs support these general allegations with detailed references to nearly a dozen specific ADC policies and practices, including inadequate staffing, outright denials of care, lack of emergency treatment, failure to stock and provide critical medication, grossly substandard dental care, and failure to provide therapy and psychiatric medication to mentally ill inmates.
The plaintiffs also claim that conditions in ADC isolation units constitute cruel and unusual punishment. They allege, for example, that prisoners in isolation often go months or years without any meaningful interaction with other persons, that these inmates are frequently denied adequate nutrition, that some receive no outdoor exercise at all for months or years on end, and that most inmates held in isolation are confined to cells with 24-hour-a-day illumination. The plaintiffs add that " [t]he predictable outcomes of these cruel conditions of isolation are psychiatric deterioration, self-injury, and death."
With respect to both the health care and isolation unit claims, the plaintiffs allege that ADC is aware of these constitutionally defective conditions and has deliberately ignored the resulting risk to which it has exposed inmates. For example, the plaintiffs allege that, in 2009, the ADC Director of Medical Services responded to a prison physician's complaint that ADC was failing to provide adequate care by agreeing that ADC was " probably" violating inmates' rights and stating that " I do think that there would be numerous experts in the field that would opine that deliberate indifference has occurred."
The plaintiffs seek declaratory and injunctive relief to eliminate identified systemic deficiencies in ADC's statewide health care system and isolation units.
After the district court denied a motion to dismiss, the plaintiffs moved for class certification. They supported their motion with the detailed factual allegations in the Complaint, hundreds of documents that they had obtained from the defendants in discovery, expert reports by four specialists in prison medical care and conditions of confinement, and declarations by the named plaintiffs. The discovery materials included assessments of ADC staffing, reports by contractor monitors, internal communications between ADC officials, and letters exchanged between ADC and Wexford. In their response, the defendants relied on a few declarations by some ADC officials in which those officials summarized formal ADC policies--several of which had been modified mere days before the defendants filed their brief in the district court. The defendants did not submit rebuttal expert declarations, nor did they offer evidence that the newly revised written statements of ADC policy reflected the actual policy and practice of the ADC facilities. Further, the defendants did not address the individual policies and practices complained of by the plaintiffs nor present evidence meant to deny their existence. Rather, the defendants argued in a general
fashion that ADC written policies are the only statewide policies and practices.
A. Factual Allegations in the Complaint
The 74-page complaint in this case contains detailed factual allegations concerning the existence of uniform, statewide policies and practices in all ADC facilities. In the plaintiffs' view, these policies and practices expose all ADC inmates to a substantial risk of harm. With respect to their health care claims, the plaintiffs allege the existence of the following policies and practices: (1) creation of " lengthy and dangerous delays in receiving" care and " outright denials of health care" ; (2) failure to " provide prisoners with timely emergency treatment" ; (3) failure to " provide necessary medication and medical devices to prisoners" ; (4) a practice of " employ[ing] insufficient health care staff" ; (5) failure to " provide prisoners with care for chronic diseases and protection from infectious diseases" ; (6) failure to " provide timely access to medically necessary specialty care" ; (7) provision of " substandard dental care" ; (8) provision of " substandard mental health care" ; (9) denial of " medically necessary mental health treatment," including " psychotropic medication, therapy, and inpatient treatment," to mentally ill prisoners; and (10) denial of " basic mental health care" to " suicidal and self-harming prisoners." With respect to the isolation units claims, the plaintiffs allege the existence of the following policies and practices: (1) denial of adequate recreation; (2) constant cell illumination; (3) extreme social isolation; (4) denial of adequate nutrition; and (5) failure to provide adequate mental health care staffing and treatment.
For each of these alleged policies and practices, the Complaint contains several paragraphs or pages of particularized factual allegations. For example, with regard to the alleged policy and practice of failing to provide necessary medication and medical devices, the Complaint alleges that the " [d]efendants have a policy and practice of not providing prisoners with the full course of their medication, not providing prisoners medication as prescribed or in a timely fashion, and inappropriately starting and stopping medication." The Complaint further alleges that " psychotropic medications that are to be taken daily regularly go undelivered, without explanation or warning," prisoners " are given expired medication or incorrect dosages of medication," the defendants " routinely substitute doctor-approved drug regimens with drugs on the ADC-approved formulary," and the defendants fail to provide " medically necessary devices, thus depriving . . . prisoners of basic sanitation." The Complaint also includes factual allegations that demonstrate the kinds of serious harm to which members of the proposed class are exposed by ADC policies and practices.
To take another example of the medical care claims, the Complaint alleges the existence of a policy and practice of " failing to provide prisoners with specialty care, or doing so only after extensive and unreasonable delays, often resulting in unnecessary pain and suffering, permanent injuries, and death." The Complaint further alleges that, even though ADC sends prisoners to contracted outside specialists, " [f]or much of 2009 and 2010, Defendants had no contracts in place with outside providers, and even today have few outside specialists under contract to treat ADC prisoners." The Complaint elaborates that from FY 2009 to FY 2011, " spending on specialty services had plummeted by 38% . . . while there was no corresponding decline in the number of prisoners in ADC's custody." The Complaint quotes ADC physicians who stated that " the referral system has broken down" and that specialist referrals are " falling through the cracks," and alleges that the defendants " have a policy and practice of failing to order or approve outside diagnostic testing, including biopsies of suspicious tumors and growths." 
A third example of the Complaint's medical care allegations is the alleged statewide ADC policy and practice of " not providing prisoners with timely emergency responses and treatment, and [failing to provide] an adequate system for responding to health care emergencies." The Complaint further alleges that " there is not an adequate number of on-duty health care staff to respond to possible emergencies," " [d]efendants have not adequately
trained security and health care staff on how to handle health care emergencies," " [l]ower level medical staff, who serve as the first line of response to prisoners' requests for medical assistance, often do not recognize when a prisoner is experiencing an emergency," and " even when properly responding to an emergency, medical staff face barriers to providing timely emergency assistance." 
Turning to the dental care claims, the Complaint alleges that the defendants " have a policy and practice of failing to provide medically necessary dental services." It further alleges that " prisoners wait months or years for basic dental treatment and suffer significant pain and other harm," " the primary service provided by Defendants is tooth extraction, even if a much less invasive procedure . . . is medically appropriate and necessary," and " prisoners who are fortunate enough to get fillings are not given permanent fillings, but rather temporary fillings that are not designed to last more than a few months at most." The Complaint contains allegations concerning several inmates who have faced " the horrible dilemma of saving a tooth and suffering pain, or ending the pain and losing a tooth that otherwise could be saved."
With respect to the mental health care claims, the Complaint alleges that the defendants systematically " fail to provide prisoners with adequate mental health care." It first alleges that the defendants have a policy and practice of " denying treatment to or providing inadequate treatment to prisoners with serious mental health needs." It elaborates that the defendants lack sufficient staff to treat mentally ill inmates; that the defendants fail to monitor and provide follow-up treatment after prescribing psychotropic medications; that prisoners who are on psychotropic medications that increase heat sensitivity are exposed to dangerous levels of heat; and that the defendants rely on unqualified nurses and medical assistants for ongoing monitoring of prisoners on psychotropic drugs.
The Complaint then separately alleges that the defendants " deprive suicidal and self-harming prisoners of basic mental health care." In support of this allegation, it charges that the defendants " have a policy and practice of housing prisoners with serious mental health needs in unsafe conditions that heighten their risk of suicide," and reports that ADC prisoners have a suicide rate double the national average in state prisons. The Complaint adds that, as a matter of statewide policy and practice, ADC suicide watch facilities " offer no meaningful treatment" ; " suicide watch cells are often filthy, with walls and food slots smeared with other prisoners' blood and feces, reeking of human waste" ; suicide watch cells are maintained at " very cold temperatures" while prisoners " are stripped of all clothing and given only a stiff suicide smock and a thin blanket, making the extreme cold even harder to tolerate" ; the defendants unjustifiably use chemical agents on suicidal inmates; and the defendants provide inadequate nutrition to inmates on suicide watch, force them awake every ten to 30 minutes around the clock, and leave bright lights on 24 hours a day.
Finally, the Complaint alleges that the defendants have a policy and practice " of confining thousands of prisoners in isolation . . . in conditions of enforced idleness, social isolation, and sensory deprivation." It further alleges as follows: " prisoners in isolation leave their cells no more than three times a week, for a brief shower and no more than two hours of 'exercise' in the 'rec pen' -- a barren, windowless concrete cell with high walls [and] no exercise equipment" ; " some prisoners in isolation receive no outdoor exercise at all for months or years on end; others receive insufficient exercise to preserve their physical and mental health" ; " most or all of these prisoners are held in cells with a solid steel door and no window to the outside" ; " cells are often illuminated 24 hours a day" ; " chronic sleep deprivation is common" ; " property is extremely limited" ; " prisoners in isolation often go months or years without any meaningful human interaction" ; and the defendants " deny prisoners in isolation adequate nutrition." The Complaint adds that the harm to inmates' mental and physical health from these conditions is " exacerbated by the policy and practice of Defendants of failing to provide adequate mental health care staffing and treatment."
In sum, the lengthy and comprehensive complaint in this case alleges that there exist a number of statewide, uniform ADC policies and practices concerning health care and isolation units, and that these
policies and practices expose all members of the proposed class and subclass to a ...