AP file photo

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.

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 said 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, inmates 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 that inmates in isolation units were denied adequate recreation and nutrition, constant cell illumination and 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.

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.

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” for having some cells illuminated 24 hours a day like suicide watch. And he said that maximum custody inmates are not isolated but have “daily social interaction,” including with staff, other inmates, with visitors 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.” Reinhardt said the fact that not every inmate it is irrelevant 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.”

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