Victor Parsons v. Charles Ryan , 912 F.3d 486 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR ANTONIO PARSONS; SHAWN Nos. 16-17282
JENSEN; STEPHEN SWARTZ; SONIA 17-15352
RODRIGUEZ; CHRISTINA VERDUZCO;
JACKIE THOMAS; JEREMY SMITH; D.C. No.
ROBERT CARRASCO GAMEZ, JR.; 2:12-cv-00601-
MARYANNE CHISHOLM; DESIREE DKD
LICCI; JOSEPH HEFNER; JOSHUA
POLSON; CHARLOTTE WELLS;
ARIZONA CENTER FOR DISABILITY
LAW,
Plaintiffs-Appellees,
v.
CHARLES L. RYAN, Warden, Director,
Arizona Department of Corrections;
RICHARD PRATT, Interim Division
Director, Division of Health Services,
Arizona Department of Corrections,
Defendants-Appellants.
2 PARSONS V. RYAN
VICTOR ANTONIO PARSONS; SHAWN No. 17-15302
JENSEN; STEPHEN SWARTZ; SONIA
RODRIGUEZ; CHRISTINA VERDUZCO; D.C. No.
JACKIE THOMAS; JEREMY SMITH; 2:12-cv-00601-
ROBERT CARRASCO GAMEZ, JR.; DKD
MARYANNE CHISHOLM; DESIREE
LICCI; JOSEPH HEFNER; JOSHUA
POLSON; CHARLOTTE WELLS; OPINION
ARIZONA CENTER FOR DISABILITY
LAW,
Plaintiffs-Appellants,
v.
CHARLES L. RYAN, Warden, Director,
Arizona Department of Corrections;
RICHARD PRATT, Interim Division
Director, Division of Health Services,
Arizona Department of Corrections,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David K. Duncan, Magistrate Judge, Presiding
Argued and Submitted October 18, 2017
San Francisco, California
Filed December 20, 2018
Before: Sidney R. Thomas, Chief Judge, and J. Clifford
Wallace and Consuelo M. Callahan, Circuit Judges.
PARSONS V. RYAN 3
Opinion by Judge Wallace;
Partial Concurrence and Partial Dissent by
Chief Judge Thomas;
Partial Concurrence and Partial Dissent by Judge Callahan
SUMMARY *
Prisoner Civil Rights
The panel affirmed in part and reversed in part the
district court’s rulings interpreting and enforcing a
settlement agreement, and remanded, in a civil rights class
action alleging systemic Eighth Amendment violations in
Arizona’s prison systems.
Arizona inmates alleged that the Arizona Department of
Corrections’ policies and practices governing health care
delivery in prisons and conditions of confinement in
isolation units exposed them to a substantial risk of serious
harm to which defendants were deliberately indifferent. On
the eve of trial, the parties signed a settlement agreement
(Stipulation) by which defendants agreed to comply with
more than 100 “performance measures” designed to improve
the ADC health care system and reduce the harmful effects
of prisoner isolation. Since the action settled, the parties
have engaged in several disputes over defendants’ alleged
non-compliance with the performance measures, which has
required the assigned magistrate judge to issue various
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 PARSONS V. RYAN
rulings interpreting and enforcing the Stipulation, which are
the subject of the present appeal.
The panel first held that Magistrate Judge Duncan had
jurisdiction to enter the orders at issue. The panel then
reversed the court’s February 3, 2017 order pertaining to
staffing. The panel held that the court erred in interpreting
the Stipulation as precluding the court from ordering
defendants to develop and implement a plan to increase
staffing in general as a remedy for defendants’ non-
compliance. The panel further held that, consistent with its
ruling, the district court could, in future proceedings,
consider ordering defendants to develop and implement a
plan to increase staffing in general as a remedy for
defendants’ non-compliance.
The panel affirmed the district court’s November 10,
2016 order requiring defendants to “use all available
community healthcare services” to ensure compliance with
certain performance measures that require inmates to receive
health care services within prescribed time frames (Outside
Provider Order). The panel held that in light of the district
court’s strict adherence to the dispute resolution procedure
outlined in the Stipulation and careful consideration of the
record, the district court did not abuse its discretion in
issuing the Outside Provider Order.
The panel reversed the district court’s December 23,
2016 order in which the court interpreted the isolation
subclass to include all close custody inmates not otherwise
participating in a prison jobs program (Close Custody
Order). The panel held that the court erred in concluding
that close custody inmates are subject to substantially similar
conditions as maximum custody inmates. The panel held
that the touchstone for inclusion in the subclass was not
PARSONS V. RYAN 5
“substantially similar conditions” but rather the amount of
isolation experienced by inmates.
Concurring in part and dissenting in part, Chief Judge
Thomas concurred in the majority’s conclusions as to the
staffing appeal and the Outside Provider Order. Judge
Thomas parted ways from the majority in its conclusion that
the Close Custody Order was an abuse of discretion.
Concurring in part and dissenting in part, Judge Callahan
stated she concurred in the majority’s conclusion as to
subject matter and appellate jurisdiction for the three
appeals. She also concurred in the majority’s conclusion
that the district court erred in interpreting the subclass to
include all close custody inmates not otherwise participating
in a prison jobs program. Judge Callahan could not agree
with the majority’s disposition of the staffing order and the
Outside Provider order. She would affirm the district court’s
February 3, 2017 staffing order and reverse the district
court’s November 10, 2016 Outside Provider Order.
COUNSEL
Nicholas D. Acedo (argued), Rachel Love, and Daniel P.
Struck, Struck Wieneke & Love P.L.C., Chandler, Arizona;
Michael E. Gottfried, Assisant Attorney General; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Defendants-Appellants.
Donald Specter (argued), Rita K. Lomio, Corene Kendrick,
Alison Hardy, and Mae Ackerman-Brimberg, Prison Law
Office, Berkeley, California; Amy Fettig (argued) and David
C. Fathi, ACLU National Prison Project, Washington, D.C.;
Amelia M. Gerlicher and Daniel C. Barr, Perkins Coie LLP,
6 PARSONS V. RYAN
Phoenix, Arizona; Kathleen E. Brody, ACLU Foundation of
Arizona, Phoenix, Arizona; Rose A. Daly-Rooney and Maya
Abela, Arizona Center for Disability Law, Tucson, Arizona;
for Plaintiffs-Appellees.
OPINION
WALLACE, Circuit Judge:
In March 2012, prisoners in the custody of the Arizona
Department of Corrections (ADC), together with the
Arizona Center for Disability Law, brought a civil rights
class action against senior ADC officials alleging systemic
Eighth Amendment violations in Arizona’s prison system.
The inmates alleged that ADC’s policies and practices
governing health care delivery in ADC prisons and
conditions of confinement in ADC isolation units expose
them to a substantial risk of serious harm to which
Defendants are deliberately indifferent. On the eve of trial,
the parties signed a settlement agreement (Stipulation) by
which Defendants agreed to comply with more than 100
“performance measures” designed to improve the ADC
health care system and reduce the harmful effects of prisoner
isolation. Since the action settled, the parties have engaged
in several disputes over Defendants’ alleged non-
compliance with the performance measures, which has
required the assigned magistrate judge to issue various
rulings interpreting and enforcing the Stipulation. These
rulings are the subject of the consolidated appeals now
before us.
I.
The Stipulation went into effect on February 25, 2015,
the date on which Magistrate Judge David Duncan granted
PARSONS V. RYAN 7
final approval. Consistent with the district court’s earlier
class certification order, Parsons v. Ryan, 289 F.R.D. 513(D. Ariz. 2013), aff’d, 754 F.3d 657 (9th Cir. 2014), the
Stipulation defines one class and one subclass. The class is
defined as “[a]ll prisoners who are now, or will in the future
be, subjected to the medical, mental health, and dental care
policies and practices of the ADC.” Stipulation ⁋ 3. This
covers approximately 33,000 inmates in 10 state-operated
prisons. The subclass is defined as “[a]ll prisoners who are
now, or will in the future be, subjected by the ADC to
isolation, defined as confinement in a cell for 22 hours or
more each day or confinement in [five enumerated] housing
units.” Id. This isolation subclass covers the approximately
3,000 inmates in ADC custody classified as “maximum
custody.”
The Stipulation requires Defendants to comply with
103 health care performance measures at each of the
10 state-operated prisons. The performance measures
obligate Defendants to adopt certain standards and practices
across a wide spectrum of health care categories, including
diagnostic services, preventative services, mental health, and
access to care. For example, Performance Measure 13
provides that “[c]hronic care and psychotropic medication
renewals will be completed in a manner such that there is no
interruption or lapse in medication.” Performance Measure
33 mandates that “[a]ll inmates will receive a health
screening by an LPN [licensed practical nurse] or RN
[registered nurse] within one day of arrival at the intake
facility.” Defendants are required to measure and report their
compliance with the health care performance measures on a
monthly basis.
The Stipulation also requires Defendants to comply with
nine performance measures specific to “maximum custody”
8 PARSONS V. RYAN
inmates. For example, pursuant to Maximum Custody
Performance Measure 1, all maximum custody inmates
housed at the ADC’s maximum custody facilities must be
offered a minimum number of hours of out-of-cell time per
week. As with the health care performance measures,
Defendants must measure and report their compliance with
the maximum custody performance measures on a monthly
basis.
The performance measures require Defendants to meet
or exceed a certain threshold rate of compliance based upon
how long the Stipulation has been in effect. For example, for
the first 12 months after the Stipulation went into effect,
Defendants were required to meet or exceed a 75 percent rate
of compliance. Stipulation ⁋⁋ 10, 20. For the second
12 months, the required threshold increased to 80 percent.
Id. Defendants’ duty to measure and report on a particular
performance measure terminates if (1) the performance
measure meets the required compliance threshold for
18 months out of a 24-month period and (2) the performance
measure has not been out of compliance for three or more
consecutive months within the previous 18-month period.
The Stipulation also provides the process by which the
parties resolve disputes over compliance. In the event
Plaintiffs believe Defendants are in non-compliance with
one or more of the performance measures, Plaintiffs must
first provide Defendants a written statement describing the
alleged non-compliance, to which Defendants must provide
a written response. Stipulation ⁋ 30. The parties must then
meet and confer in an attempt to resolve the dispute
informally and, if informal efforts fail, participate in formal
mediation. Id. ⁋⁋ 30, 31. If the dispute is not resolved
through formal mediation, either party may file a motion to
enforce the Stipulation in the district court. Id. ⁋ 31.
PARSONS V. RYAN 9
Finally, the Stipulation explains the nature and scope of
the magistrate judge’s authority to resolve disputes arising
out of the Stipulation. The relevant provision, Paragraph 36,
provides as follows:
In the event the Court finds that Defendants
have not complied with the Stipulation, it
shall in the first instance require Defendants
to submit a plan approved by the Court to
remedy the deficiencies identified by the
Court. In the event the Court subsequently
determines that the Defendants’ plan did not
remedy the deficiencies, the Court shall
retain the power to enforce this Stipulation
through all remedies provided by law, except
that the Court shall not have the authority to
order Defendants to construct a new prison or
to hire a specific number or type of staff
unless Defendants propose to do so as part of
a plan to remedy a failure to comply with any
provision of this Stipulation. In determining
the subsequent remedies the Court shall
consider whether to require Defendants to
submit a revised plan.
Stipulation ⁋ 36.
The appeals now before us are from various rulings of
Magistrate Judge Duncan (acting on behalf of the district
court) interpreting and enforcing the Stipulation. The first
appeal involves Plaintiffs’ challenge to the district court’s
ruling that the Stipulation precludes the court from ordering
Defendants to develop a general staffing plan as a remedy
for Defendants’ non-compliance. The second appeal
concerns Defendants’ challenge to the magistrate judge’s
10 PARSONS V. RYAN
order dated November 10, 2016, in which he ordered
Defendants to use “all available community health care
services” to meet their obligations under the Stipulation. The
final appeal concerns Defendants’ challenge to the
magistrate judge’s interpretation of the Stipulation’s
subclass to include inmates classified as “close custody.” For
the reasons set forth below, we affirm the district court’s
November 10, 2016 order, but reverse the other two rulings.
II.
We review de novo the district court’s interpretation of a
stipulation of settlement. See Jeff D. v. Andrus, 899 F.2d 753,
759 (9th Cir. 1989). “[W]e defer to any factual findings
made by the district court in interpreting the settlement
agreement unless they are clearly erroneous.” City of
Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th Cir.
2010).
We review the district court’s enforcement of a
settlement agreement for abuse of discretion. Wilcox v.
Arpaio, 753 F.3d 872, 875 (9th Cir. 2014). Under abuse-of-
discretion review, we will reverse only if the district court
made an error of law, or reached a result that was illogical,
implausible, or without support in the record. United States
v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009).
III.
Before turning the merits, we consider first the issue of
subject matter jurisdiction over all three appeals. See Munoz
v. Mabus, 630 F.3d 856, 860 (9th Cir. 2010). After three and
a half years of litigating this case, Defendants move to
dismiss the appeals on the ground that Magistrate Judge
Duncan did not have jurisdiction to enter the orders at issue.
“We review de novo whether a magistrate judge has
PARSONS V. RYAN 11
jurisdiction,” Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th
Cir. 2012), recognizing that “our appellate jurisdiction
depends on the proper exercise of magistrate judge
jurisdiction,” Anderson v. WoodCreek Venture Ltd.,
351 F.3d 911, 911 (9th Cir. 2003).
The Federal Magistrates Act, 28 U.S.C. §§ 631–39,
governs the jurisdiction and authority of federal magistrate
judges. United States v. Reyna-Tapia, 328 F.3d 1114, 1118
(9th Cir. 2003). The Act provides that “[u]pon consent of the
parties, a full-time United States magistrate judge . . . may
conduct any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case, when
specially designated to exercise such jurisdiction by the
district court.” 28 U.S.C. § 636(c)(1). Thus, two
requirements must be met before a magistrate judge may
properly exercise civil jurisdiction: (1) the parties must
consent to the magistrate judge’s authority and (2) the
district court must “specially designate[]” the magistrate
judge to exercise jurisdiction. Columbia Record Prods. v.
Hot Wax Records, Inc., 966 F.2d 515, 516 (9th Cir. 1992).
We conclude both of these requirements were satisfied here.
First, Defendants do not dispute they voluntarily
consented to the magistrate judge’s jurisdiction. After
settling the case, the parties filed a joint motion to refer the
case to Magistrate Judge Duncan in which they stated
“[p]ursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the
parties hereby consent to have Magistrate Judge David
Duncan conduct all further proceedings in this case.” This is
sufficient to demonstrate Defendants’ explicit, voluntary
consent to the magistrate judge’s jurisdiction. See Anderson,
351 F.3d at 915; Gomez v. Vernon, 255 F.3d 1118, 1125–26
(9th Cir. 2001).
12 PARSONS V. RYAN
Second, the district court “specially designated”
Magistrate Judge Duncan to exercise jurisdiction. In our
decision in Columbia Record Productions, we suggested
that designation generally derives from an “individual
district judge.” 966 F.2d at 516–17; see also Hill v. City of
Seven Points, 230 F.3d 167, 168–69 (5th Cir. 2000)
(equating “special designation” to “[t]he district court’s
order of reference”). That is what occurred here. On October
22, 2014, District Judge Diane Humetewa entered a written
order referring the case to Magistrate Judge Duncan and
directing the clerk of court to reassign the case accordingly.
Thus, Magistrate Judge’s Duncan designation was effective,
and he had jurisdiction to enter the orders from which the
parties appeal.
Defendants contend Magistrate Judge Duncan lacked
jurisdiction because the parties “hand-picked” him, thereby
disregarding the district court’s case assignment procedures.
Citing the Seventh Circuit’s decision in Hatcher v.
Consolidated City of Indianapolis, 323 F.3d 513 (7th Cir.
2003), Defendants argue that “magistrate judge assignment
is a matter for the court to decide, not the parties,” and
therefore the district judge’s referral of the case to the
parties’ hand-picked choice was invalid. Id. at 518.
Hatcher does not control the outcome here. In Hatcher,
the parties entered into a settlement agreement by which they
agreed to refer an unresolved legal fees issue to a named
magistrate judge. Id. at 514–15. The Seventh Circuit
concluded that the parties’ referral to a specific magistrate
judge via settlement agreement could not be carried out
because it disregarded the district court’s procedures for
assigning magistrate judges. Id. at 517–19. Here, by contrast,
it was the district court itself that referred the case to
Magistrate Judge Duncan, not the parties. Although the
PARSONS V. RYAN 13
parties specifically requested referral to Magistrate Judge
Duncan, they did not proceed on the authority of their own
“referral” as in Hatcher. Rather, they proceeded based on the
district court’s designation by written order. This judicial
designation validates the referral here, and differentiates it
from the invalid referral in Hatcher. Therefore, Defendants’
reliance on Hatcher is unavailing.
Defendants also argue the district judge was precluded
from referring the case specifically to Magistrate Judge
Duncan because the District of Arizona’s Local Rules
require that magistrate judges be assigned by automated
random selection. But although the Local Rules provide for
magistrate judge jurisdiction “when the case is . . . randomly
assigned by the Clerk to a Magistrate Judge upon the filing
of the case,” the Rules also allow for magistrate judge
jurisdiction “when a case is initially assigned to a District
Judge and thereafter the case is reassigned to a Magistrate
Judge with the District Judge’s approval.” LRCiv
72.2(a)(13). There is nothing in the Rules that requires
“reassign[ment] to a Magistrate Judge with the District
Judge’s approval” to occur by automated random selection.
Rather, the phrase “with the District Judge’s approval”
implies that the reassignment decision is one of discretion,
not random assignment. The broader structure of the Rules
confirms this reading. See LRCiv 3.7(a)(1) (stating that the
Clerk of Court must initially assign civil cases by automated
random selection and in a manner that does not permit the
parties to choose a particular judge “[u]nless otherwise
provided in these Rules or ordered by the Court”); LRCiv
73.1(d) (stating, in part, that cases assigned to a magistrate
judge by random automated selection “shall remain with the
Magistrate Judge to whom assigned unless otherwise
ordered by the Court”). Therefore, we reject the argument
14 PARSONS V. RYAN
that the district court’s referral of the case to Magistrate
Judge Duncan violated the Local Rules.
We conclude Magistrate Judge Duncan’s jurisdiction
was proper. Defendants’ motion to dismiss the appeals for
lack of jurisdiction is denied.
IV.
We turn now to Plaintiffs’ appeal from the district
court’s February 3, 2017 order in which the court concluded
that the Stipulation precluded it from ordering Defendants to
develop a plan to increase staffing. The district court
reasoned that such a plan would violate the Stipulation’s
provision “that the Court shall not have the authority to order
Defendants . . . to hire a specific number or type of staff.”
Plaintiffs contend this interpretation violates the plain
language of the Stipulation and runs contrary to principles of
contract interpretation.
A.
As a preliminary matter, we address briefly Defendants’
jurisdictional challenge to this appeal. Defendants argue this
appeal is untimely because Plaintiffs filed it more than
30 days after the district court stated during a September
2016 status hearing that the Stipulation bars the court from
issuing a general staffing order. This argument is groundless.
The main purpose of the September 2016 status hearing was
to evaluate the effectiveness of Defendants’ remediation
plan, not to resolve definitively a dispute about whether the
Stipulation allows the district court to issue a general staffing
order. The magistrate judge did not purport to resolve this
issue conclusively until the parties briefed it, after which he
issued a written order on February 3, 2017, denying
Plaintiffs’ motion for an order requiring Defendants to
PARSONS V. RYAN 15
develop a staffing plan. It is this order that is the relevant
decision for starting the appeals clock. See Campbell Indus.,
Inc. v. Offshore Logistics Int’l Inc., 816 F.2d 1401, 1404 (9th
Cir. 1987) (“Only when a judge acts in a manner which
clearly indicates an intention that the act be final, and a
notation of that act has been entered on the docket, does the
time for appeal begin to run.”). Plaintiffs filed their notice of
appeal on February 17, 2017, well within 30 days of the
February 3 order. Therefore, the appeal is timely. See Fed.
R. App. P. 4(a)(1)(A).
B.
We proceed now to the merits. Our interpretation of the
Stipulation is governed by “principles of local law which
apply to interpretations of contracts generally.” Jeff D.,
899 F.2d at 759. Here, we apply Arizona contract law
because the parties entered into the Stipulation in Arizona,
Defendants are senior officials of the Arizona Department of
Corrections, and the Stipulation concerns the policies and
practices of the Arizona prison system. See Kelly v. Wengler,
822 F.3d 1085, 1095 (9th Cir. 2016); Jeff D., 899 F.2d at
759–60.
“The purpose of contract interpretation is to determine
the parties’ intent and enforce that intent.” Grosvenor
Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593 (Ct. App.
2009). To determine the parties’ intent, we “look to the plain
meaning of the words as viewed in the context of the contract
as a whole.” Earle Invs., LLC v. S. Desert Med. Ctr.
Partners, 242 Ariz. 252, 255 (Ct. App. 2017). “If the
contractual language is clear, we will afford it its plain and
ordinary meaning and apply it as written.” Liberty Ins.
Underwriters, Inc. v. Weitz Co., LLC, 215 Ariz. 80, 83 (Ct.
App. 2007).
16 PARSONS V. RYAN
Here, the Stipulation is clear on the limits of the district
court’s authority to enforce the Stipulation. The relevant
provision, Paragraph 36, provides that “the Court shall retain
the power to enforce this Stipulation through all remedies
provided by law, except that the Court shall not have the
authority to order Defendants to . . . hire a specific number
or type of staff unless Defendants propose to do so as part of
a plan to remedy a failure to comply with any provision of
this Stipulation.” Stipulation ⁋ 36. Under this provision, the
district court could not, for example, order Defendants to
hire 20 additional employees at the Yuma facility or
10 additional registered nurses at the Tucson facility.
However, Paragraph 36 does not, by its plain language,
preclude the district court from ordering Defendants to
develop and implement a plan to increase staffing in general.
Such a general staffing order would not, without more,
violate the Stipulation because Defendants would retain
discretion over the specific number and type of personnel to
hire pursuant to such an order. For example, Defendants
could develop a plan that relied on a small number of new
hires, while emphasizing structural reforms to the prison
health care delivery system. Or, Defendants could develop a
plan that relied on significant increases in hiring in one
specific job category, while leaving other staffing levels in
place. Regardless of Defendants’ specific decisions, the key
is that a general staffing order would not bind Defendants to
“hire a specific number or type of staff” dictated by the
district court. That decision would remain within
Defendants’ discretion. Therefore, we conclude the plain
language of the Stipulation permits the district court to order
Defendants to develop a general staffing plan. The district
court’s contrary conclusion was error.
PARSONS V. RYAN 17
Defendants make two arguments for why the district
court’s interpretation of the Stipulation is correct. First,
Defendants advance the position the district court accepted
below: that an order to develop a plan to increase staffing in
general is the “functional equivalent” of an order requiring a
specific number and type of staff. We disagree. A general
staffing order by the district court would not intrude upon
Defendants’ discretion to determine the “specific number or
type of staff” they believe is appropriate. As explained
earlier, Defendants could develop a plan that places more
emphasis on structural changes than on new hires, or a plan
that limits new hires to a specific job category. Although it
is true that a general staffing order would require Defendants
to make staff hiring part of the solution, it would preserve
Defendants’ discretion to determine the number and type of
staff to hire as part of that solution. Accordingly, we reject
the argument that a general staffing order is the “functional
equivalent” of an order to hire a specific number and type of
staff.
Second, Defendants contend we must defer to the district
court’s interpretation because that interpretation was based
on the district court’s first-hand understanding of the parties’
intent. But Defendants’ reference to the district court’s
understanding of the parties’ intent is to a statement the court
made during a status hearing months before the court’s
written order. We do not review oral statements from the
bench on a matter later committed to writing; we review
instead the written order entered by the district court.
Playmakers LLC v. ESPN, Inc., 376 F.3d 894, 896 (9th Cir.
2004) (“Where the record includes both oral and written
rulings on the same matter, ‘we review the written opinion
and not the oral statements.’”) (internal quotation marks
omitted). In his written order, the magistrate judge
concluded he could not enter a general staffing order on the
18 PARSONS V. RYAN
ground that such an order would necessarily involve
ordering a specific number or type of staff. This order—
which followed briefing by the parties—makes no mention
of the district court’s understanding of the parties’ intent.
Under these circumstances, we will not treat the district
court’s earlier oral remarks as a basis for its later written
decision. Ellison v. Shell Oil Co., 882 F.2d 349, 352 (9th Cir.
1989) (“Oral responses from the bench may fail to convey
the judge’s ultimate evaluation. Subsequent consideration
may cause the district judge to modify his or her views.”).
Therefore, we reject Defendants’ attempt to invoke the
district court’s first-hand understanding of the parties’ intent
as a basis for its interpretation.
In sum, we conclude the district court erred in
interpreting the Stipulation as precluding it from ordering
Defendants to develop and implement a plan to increase
staffing in general. We therefore reverse the district court’s
February 3, 2017 order. Consistent with our ruling, the
district court may, in future proceedings, consider whether a
general staffing order that does not require Defendants to
hire a specific number or type of staff is an appropriate
remedy for Defendants’ non-compliance.
V.
We turn now to Defendants’ appeal from the district
court’s November 10, 2016 order requiring Defendants to
“use all available community healthcare services” to ensure
compliance with certain performance measures (“Outside
Provider Order” or “OPO”).
The district court entered the Outside Provider Order to
remedy Defendants’ non-compliance with certain
performance measures that require inmates to receive health
care services within prescribed time frames. For example,
PARSONS V. RYAN 19
Performance Measure 37 provides: “Sick call inmates will
be seen by an RN within 24 hours after an HNR [Health
Needs Request form] is received (or immediately if
identified with an emergent need, or on the same day if
identified as having an urgent need).” Defendants’
compliance rates with this and related performance measures
were as low as 34 percent at the time the district court
entered the OPO.
After giving Defendants an opportunity to remedy their
non-compliance under their own remediation plan, the
district court entered the OPO. The OPO provides:
Defendants shall use all available community
health care services including, but not limited
to, commercial pharmacies, community-
based practitioners, urgent care facilities, and
hospitals (collectively, “Outside Providers”)
to provide the health care services required in
the Stipulation’s Performance Measures.
This shall happen immediately following the
expiration of the time-frame detailed in each
PM. For example, if a PM requires
Defendants to provide an inmate with a
specific type of care within 24 hours (or
14 days), then Defendants shall have this
inmate seen by an appropriate Outside
Provider in hour 25 (or day 15).
The Court notes that these requirements only
apply when Defendants are not able to
comply with the Stipulation’s Performance
Measures using the procedures detailed in
their remediation plan. In other words, if
Defendants can comply with the Stipulation
20 PARSONS V. RYAN
without using Outside Providers, then they
are under no obligation to use Outside
Providers.
The district court did not abuse its discretion in issuing
the Outside Provider Order. After finding Defendants in
substantial non-compliance with certain performance
measures, the district court properly ordered Defendants to
submit a remediation plan, and then approved that plan
despite the court’s skepticism that it represented a serious
solution. The district court then gave Defendants three
months to demonstrate compliance, and later granted them
additional time to comply even as the data indicated “a
serious failure to be even close on a number of the
performance measures.” Finally, only after the latest data
showed that Defendants remained in substantial non-
compliance did the district court issue the OPO. In light of
the district court’s strict adherence to the dispute resolution
procedure outlined in the Stipulation and careful
consideration of the record, we conclude the district court
did not abuse its discretion in issuing the OPO.
Defendants’ challenge the OPO on several grounds.
First, Defendants argue the OPO effectively re-writes the
Stipulation to require 100 percent compliance with the
performance measures, rather than 80 percent. As an
example, Defendants point to the OPO’s impact on
Performance Measure 37, which requires sick call inmates
to be seen by an RN within 24 hours of submitting a health
needs request form. Pursuant to the OPO, Defendants must
ensure sick call inmates not seen by an RN within 24 hours
are seen within 25 hours. In Defendants’ view, the difficulty
of tracking inmate-provider contact after hour 24 effectively
forces Defendants to ensure all inmates are seen within
24 hours, lest they risk violating the OPO.
PARSONS V. RYAN 21
We disagree. Although the OPO requires Defendants to
use outside providers if Defendants cannot otherwise treat
inmates within the prescribed time frame, it does not, in fact,
change the threshold for substantial compliance. The
threshold for substantial compliance remains 80 percent. In
other words, the OPO is simply a remedy to address
Defendants’ non-compliance, it does not change what
constitutes compliance for purposes of avoiding judicial
enforcement. So long as Defendants meet or exceed the
80 percent benchmark provided in the Stipulation, the OPO
has no effect. Therefore, we disagree with the notion that the
OPO effectively requires 100 percent compliance.
Second, Defendants argue that the district court abused
its discretion by entering the OPO without considering
alternative remedies. Not so. Not only does the record
indicate the district court considered alternatives on its own
accord, see, e.g., Transcript of November 9, 2016 status
hearing, District Ct. Dkt. 1765 at 9 (stating that the OPO is
“the only [remedy] that I have been able to conclude that
could work”), the court also stressed that Defendants should
identify alternatives as soon as it became clear their
preferred plan was not working. Defendants did not do so.
Although Defendants now point out they have developed an
“open-clinic concept” that has led to increased compliance
with one of the performance measures, Defendants made no
mention of this plan until after the district court issued the
OPO. We will not fault the district court for failing to adopt
a partial solution that Defendants did not timely propose.
Third, Defendants contend the OPO creates an
“unprecedented” security risk by requiring Defendants to
transport “hundreds of inmates on a daily basis” to outside
medical facilities. We reject this argument because it relies
on a premise not supported by the record. Although the OPO
22 PARSONS V. RYAN
requires Defendants to use outside providers if Defendants
cannot otherwise comply with the performance measures,
the OPO does not require Defendants to transport a specific
number (or any number) of inmates to outside facilities. As
the district court pointed out, Defendants can avoid
transporting inmates offsite by bringing outside providers to
the prisons, or by simply hiring more healthcare providers to
work within the prison system. Defendants can also avoid
transporting inmates offsite by making greater use of
information technology to provide clinical care remotely, or
by adopting internal changes—such as the open clinic
concept Defendants are currently implementing—that
ensure compliance with the Stipulation. In light of the
considerable discretion Defendants have in deciding how to
connect inmates with outside providers, the presumption that
the OPO requires large-scale transportation of inmates
offsite is unwarranted.
Fourth, Defendants argue the OPO imposes an
“impossible” logistical burden because the potential volume
of inmate transports would require vehicles and staff beyond
Defendants’ current resources. This argument is similar to
the argument regarding “security risks” addressed above,
and fails for the same reason—the OPO does not require any
specific number of inmates to be transported offsite. As
explained above, if Defendants prefer not to transport
inmates offsite, they have alternatives for ensuring inmates
receive the care to which they are entitled. Thus, we reject
Defendants’ argument that the OPO is excessively
burdensome. Cf. Armstrong v. Schwarzenegger, 622 F.3d
1058, 1071 (9th Cir. 2010) (“A demonstration that an order
[issued to vindicate the federal rights of prisoners] is
burdensome does nothing to prove that it was overly
intrusive.”).
PARSONS V. RYAN 23
Finally, Defendants argue that the district court erred in
certifying the OPO as compliant with the Prisoner Litigation
Reform Act (PLRA). Under the PLRA, a court may not order
“any prospective relief [with respect to prison conditions]
unless the court finds that such relief is narrowly drawn,
extends no further than necessary to correct the violation of
the Federal right, and is the least intrusive means necessary
to correct the violation of the Federal right.” 18 U.S.C.
§ 3626(a)(1)(A). Defendants assert the OPO does not
comply with the PLRA because the district court never
determined that a constitutional violation occurred.
Defendants are incorrect. In approving the Stipulation,
the district court held “[b]ased upon the entire record in this
case and the parties’ Stipulation” that the Stipulation was
“necessary to correct the violations of the Federal right of
the Plaintiffs.” This conclusion necessarily required a
finding of a constitutional violation—that is, if there were no
violation of a federal right, there would be nothing for the
Stipulation to “correct.” Therefore, the district court found
the requisite constitutional violation in granting the initial
prospective relief in this case.
Nor do we accept Defendants’ suggestion that the district
court was required to make new findings of a constitutional
violation before entering the OPO. The district court issued
the OPO to enforce compliance with the Stipulation (which
the parties agreed was necessary to correct violations of
Plaintiffs’ federal rights); it did not issue the OPO as
prospective relief in response to new violations of federal
rights. That is, the same constitutional violations upon which
the Stipulation rests are the same violations the OPO is
intended to remedy. Accordingly, the district court was not
required to make new findings of a constitutional violation
before enforcing the Stipulation with the OPO.
24 PARSONS V. RYAN
In sum, we conclude the district court did not abuse its
discretion in issuing the Outside Provider Order.
VI.
The final issue before us involves the district court’s
December 23, 2016 order (“Close Custody Order”), in which
the court interpreted the subclass to include all close custody
inmates not otherwise participating in a prison jobs program.
Defendants contend the district court erred in adopting this
interpretation because the amount of out-of-cell time offered
to close custody inmates places them outside the definition
of the subclass.
The Stipulation defines the subclass as follows:
All prisoners who are now, or will in the
future be, subjected by the ADC to isolation,
defined as confinement in a cell for 22 hours
or more each day or confinement in the
following housing units: Eyman–SMU I;
Eyman–Browning Unit; Florence–Central
Unit; Florence–Kasson Unit; or Perryville–
Lumley Special Management Area.
Stipulation ⁋ 3.
At the time the Stipulation went into effect, the five
housing units in the subclass definition made up the entirety
of Arizona’s maximum custody prison facilities.
In October 2016, Plaintiffs sought records for two
inmates housed in Florence-Central and Eyman-SMU I to
assess compliance with the maximum custody performance
measures. In response, Defendants informed the district
court that although the inmates in question were housed at
PARSONS V. RYAN 25
those units, they were classified as “close custody,” rather
than maximum custody. Defendants explained that close
custody inmates are offered at least 15.5 hours of out-of-cell
time per week, placing them outside the definition of the
subclass and therefore outside the coverage of the maximum
custody performance measures. The district court found to
the contrary, concluding that “close custody inmates are
subject to substantially similar conditions as maximum
custody inmates and, therefore, are part of the Subclass.”
Defendants appealed.
A.
As a threshold matter, we address Plaintiffs’ argument
that the district court’s Close Custody Order was
insufficiently “final” and therefore not appealable under
28 U.S.C. § 1291.
We generally have jurisdiction over only final decisions
of the district courts. 28 U.S.C. § 1291. A “final decision” is
typically “one which ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.”
United States v. Washington, 761 F.2d 1404, 1406 (9th Cir.
1985) (citation omitted). Under the collateral order doctrine,
however, an order that does not strictly end the litigation
may nonetheless be considered sufficiently final when it is
“too important to be denied review and too independent of
the merits of the case to require deferral of review.” Plata v.
Brown, 754 F.3d 1070, 1075 (9th Cir. 2014) (citation and
internal quotation marks omitted). “To warrant review under
the collateral order doctrine, the order must ‘(1) conclusively
determine the disputed question, (2) resolve an important
issue completely separate from the merits of the action, and
(3) be effectively unreviewable on appeal from a final
judgment.’” Id. (quoting Will v. Hallock, 546 U.S. 345, 349
(2006)).
26 PARSONS V. RYAN
We have jurisdiction to review the Close Custody Order
under the collateral order doctrine. The Order is conclusive
in that it is the district court’s final determination of whether
close custody inmates are part of the isolation subclass. The
Order involves “an important issue completely separate from
the merits” because it decides a question of law not
connected to the merits of Defendants’ liability for Eighth
Amendment violations. Finally, the Order is “effectively
unreviewable on appeal” because Defendants’ good-faith
compliance with the Order would, in effect, deprive
Plaintiffs of the opportunity to challenge it. If Defendants
comply with the Close Custody Order, Plaintiffs would have
no reason to move to enforce it, which would close off the
most likely avenue for appeal indefinitely. Accordingly, we
conclude we have jurisdiction over Defendants’ appeal from
the Close Custody Order.
Plaintiffs’ first argument to the contrary is that the Close
Custody Order is not “final” because it does not require
Defendants “to take, or refrain from taking, any action
whatsoever.” That is incorrect. The district court’s ruling
requires Defendants to apply the maximum custody
performance measures to close custody inmates when, prior
to the Close Custody Order, those performance measures
applied only to maximum custody inmates. Thus, by
extending the application of the maximum custody
requirements to close custody inmates, the Close Custody
Order does, in fact, require Defendants to take action.
Plaintiffs also argue the Close Custody Order is not
“final” because it only asks the parties to take the
intermediate step of developing a plan for implementing the
court’s interpretation of the subclass. This argument
misreads the Order. The district court’s request that the
parties develop a plan for implementation was in reference
PARSONS V. RYAN 27
to the classification of a subset of inmates who work
20 hours per week as part of a prison jobs program—inmates
the court found were not members of the subclass. The
district court did not ask the parties to develop a plan
concerning its ruling that all close custody inmates not in the
jobs program are part of the subclass. It is this latter ruling
that Defendants challenge. Therefore, Plaintiffs’ reliance on
the district court’s request that the parties develop a plan
does not make the Close Custody Order any less “final” for
purposes of our jurisdiction.
B.
We turn now to the merits. Defendants argue the district
court erred in interpreting the subclass to include close
custody inmates offered 15.5 hours or more out-of-cell time
each week.
In interpreting the subclass to include close custody
inmates, the district court concluded that “close custody
inmates are subject to substantially similar conditions as
maximum custody inmates, and therefore, are part of the
Subclass.” This was error. The touchstone for inclusion in
the subclass is not “substantially similar conditions” but
rather the amount of isolation experienced by inmates. The
subclass is defined as inmates who are confined in a cell for
22 hours or more each day (i.e., inmates who receive less
than 14 hours of out-of-cell time each week). Therefore, by
concluding that inmates offered 15.5 hours of out-of-cell
time each week fall within the subclass, the district court
effectively rewrote the subclass definition. The parties set
the benchmark for inclusion in the subclass at 14 hours; the
district court cannot unilaterally move that benchmark to
15.5 hours. See Isaak v. Mass. Indem. Life Ins. Co., 623 P.2d
11, 14 (Ariz. 1981) (“It is not within the power of [a] court
to ‘revise, modify, alter, extend, or remake’ a contract to
28 PARSONS V. RYAN
include terms not agreed upon by the parties.”) (citation
omitted).
Plaintiffs contend the district court did not err in
interpreting the subclass because Defendants did not prove
that inmates who are offered 15.5 hours or more out-of-cell
time per week actually take the time offered. For example,
Plaintiffs assert that out-of-cell activities offered to close
custody inmates include visitation and religious services, but
that the record does not show that all such inmates receive
visitors or participate in religious services. On this ground,
Plaintiffs argue the district court was correct to conclude that
out-of-cell time offered to close custody inmates is merely
“theoretical,” and therefore an insufficient basis for treating
close custody inmates differently than maximum custody
inmates.
We disagree. The subclass definition turns on the amount
of time an inmate is “confine[d] in a cell” each day.
Confinement, of course, connotes a lack of control over
whether to leave a particular place. See Oxford English
Dictionary (online ed. 2018) (defining “confinement” as “the
fact or condition of being confined, shut up, or kept in one
place”). On this understanding, an inmate given an
opportunity to participate in out-of-cell activities cannot be
considered “confined” in a cell during that time even if the
inmate may theoretically decide not to take advantage of the
opportunity. See Judith Resnik et al., Time-In-Cell: Isolation
and Incarceration, 125 Yale L.J. F. 212, 219 (2016)
(characterizing prisoner isolation as a condition of
confinement in which opportunities for social contact, “such
as out-of-cell time for exercise, visits, and programs,” are
restricted). For example, a close custody inmate who is
offered 15 hours of out-of-cell time per week for education,
PARSONS V. RYAN 29
but turns it down, is in a much different position than a
maximum custody prisoner who does not have that option.
The broader structure of the Stipulation supports this
reading: many of the provisions relating to maximum
custody inmates require Defendants to offer inmates a
minimum amount of out-of-cell time, not compel inmates to
take that time. See Stipulation ⁋⁋ 22, 24–26. This framing of
the out-of-cell-time requirement makes perfect sense:
although Defendants can control whether to provide
meaningful opportunities to inmates for out-of-cell
activities, it cannot control whether an inmate’s individual
preferences, family situation, or subjective motivations will
lead or allow the inmate to take advantage of the time
offered. Here, Defendants have shown that close custody
inmates are offered meaningful opportunities for weekly
out-of-cell time that far exceeds 14 hours per week,
including for education, library visits, recreation, dinner,
showers, religious group worship, and visitation. This is
sufficient to place these inmates outside of the subclass. 1
1
In his partial dissent, Chief Judge Thomas emphasizes that the
district court could have plausibly found that the list of out-of-cell
opportunities potentially available to close custody inmates may not have
actually been available to many of these inmates. See Partial Dissent at
34. The Chief Judge states, for example, that not all close custody
inmates will be able to take advantage of visitation hours or participate
in programming for which the number of slots is limited. Id.We do not dispute that not all close custody inmates will be able to,
or want to, take advantage of every offered opportunity for out-of-cell
activity. But the fact that there may be variances in the extent to which
close custody inmates can take advantage of out-of-cell opportunities
does not support the district court’s conclusion that these inmates are, as
a class, subject to the same conditions as maximum custody inmates. For
one thing, the opportunity not to be confined itself provides inmates a
30 PARSONS V. RYAN
Plaintiffs next argue the plain language of the subclass
definition supports the district court’s reading because that
language refers not only to hours confined in a cell, but also
to confinement in five specific housing units. Plaintiffs
contend that the reference to specific housing units means
any inmate housed in those units is part of the subclass
regardless of how much out-of-cell time the inmate receives.
We reject this interpretation. Although the subclass
refers to inmates housed in specific units, this reference
merely captures what was known to the parties and the court
at the time the court certified the subclass: that the
enumerated housing units composed all of the maximum
custody facilities in the Arizona prison system. Thus,
enumeration of the maximum custody facilities in the
subclass did not expand the subclass to include close custody
inmates; it simply reflected the focus of the subclass on those
inmates subjected to the most isolating conditions of
confinement.
Adopting Plaintiffs’ interpretation would lead to absurd
results. Under Plaintiffs’ reading, a close custody inmate
who received 40 hours of out-of-cell time per week, but
happens to be located at one of the maximum custody
degree of control and agency that is absent when no such opportunity
exists. As stated above, a close custody inmate who is offered 15 hours
of out-of-cell time per week for education, but does not take it,
experiences much different confinement conditions than a maximum
custody inmate who does not have that option. Furthermore, as explained
above, Defendants cannot control whether a close custody inmate has the
ability or desire to take advantage of out-of-cell time offered, and so this
cannot be the touchstone for defining the subclass. A definition of the
subclass that turned in large part upon the subjective motivations or
individual preferences of an inmate is not a definition that could
meaningfully separate inmates who are “isolated” from those who are
not. Accordingly, we disagree with the Chief Judge’s analysis.
PARSONS V. RYAN 31
facilities such as Florence-Central, would nonetheless be
subjected to the maximum custody performance measures.
Those performance measures, however, require Defendants
to offer inmates between 7.5 to 22.5 hours of out-of-cell time
per week. Under Plaintiffs’ interpretation, then, a close
custody inmate offered 40 hours of out-of-cell time per week
would only need to receive a portion of that time for
Defendants to comply with the Stipulation. Such a result
would directly undercut one of the fundamental aims of the
agreement—to reduce inmate isolation. We therefore reject
the argument that an inmate’s mere location in a housing
unit, rather than the amount of time confined in a cell,
suffices to place the inmate within the subclass. See
Bryceland v. Northey, 160 Ariz. 213, 216 (Ct. App. 1989)
(“We will interpret a contract in a manner which gives a
reasonable meaning to the manifested intent of the parties
rather than an interpretation that would render the contract
unreasonable.”).
VII.
For the foregoing reasons, we affirm the district court’s
November 10, 2016 Outside Provider Order; reverse the
district court’s February 3, 2017 ruling that the Stipulation
precludes it from issuing a general staffing order; and
reverse the district court’s December 23, 2016 ruling that
close custody inmates are part of the subclass. Consistent
with this opinion, the district court may, in the future,
consider ordering Defendants to develop and implement a
plan to increase staffing in general as a remedy for
Defendants’ non-compliance. In addition, offering close
custody inmates 15.5 hours or more out-of-cell time per
week is sufficient to place these inmates outside of the
subclass for purposes of monitoring compliance with the
Stipulation.
32 PARSONS V. RYAN
The parties shall bear their own costs on appeal. Any
pending motions are DENIED.
AFFIRMED in part, REVERSED in part, and
REMANDED.
THOMAS, Chief Judge, concurring in part and dissenting in
part:
I concur in the majority’s conclusions as to the staffing
appeal and the outside providers appeal. I also concur in the
majority’s conclusion that we have jurisdiction over the
Close Custody Order appeal. However, I part ways from the
majority in its conclusion that the Close Custody Order was
an abuse of discretion. The Close Custody Order was based
on factual findings that were plausible in light of the
evidence presented by Defendants. I would affirm the
district court.
I
Defendants appeal from the district court’s December
23, 2016 Close Custody Order and from the district court’s
February 6, 2017 order denying their motion for relief under
Federal Rule of Civil Procedure 60(b). We review for an
abuse of discretion the district court’s enforcement of the
settlement agreement in the Close Custody Order, Doi v.
Halekulani Corp., 276 F.3d 1131, 1136 (9th Cir. 2002), and
the denial of the Rule 60(b) motion, Delay v. Gordon,
475 F.3d 1039, 1043 (9th Cir. 2007). Abuse of discretion
review presents a high threshold for appeal on questions of
fact. See Anderson v. City of Bessemer City, 470 U.S. 564,
573–74 (1985) (“If the district court’s account of the
evidence is plausible in light of the record viewed in its
PARSONS V. RYAN 33
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.”).
II
The district court did not abuse its discretion. In its
November 8, 2016 order, the district court held that the
subclass would thereafter consist of inmates who are
subjected to isolation, defined as containment in a cell for
22 hours or more each day (i.e., less than 14 hours of out-of-
cell time each week). The district court asked Defendants to
present competent, admissible evidence demonstrating that
the close custody inmates in enumerated housing units were
not subject to these conditions.1
On November 22, 2016, Defendants presented to the
district court a list of activities that were “offered” to close
custody inmates each week. In its December 23, 2016 Close
Custody Order, the district court concluded that Defendants
had “provided a theoretical explanation of what close
custody inmates may experience without showing that any
particular inmate actually has experienced these out-of-cell
options.” By contrast, the district court concluded that
1
Defendants and the majority note that the district court asked
Defendants to present evidence that the close custody inmates were
subject to “substantially different” conditions than the maximum custody
inmates. Defendants and the majority contend that this impermissibly
expanded the subclass. We need not reach this issue. As discussed infra,
the district court concluded that Defendants did not present sufficient
evidence that close custody inmates were offered more than 14 hours of
out-of-cell time each week—thereby placing them within the subclass
definition agreed to by Defendants. The district court did not need to
find that close custody inmates were subject to “substantially similar
conditions” as maximum custody inmates; it found that they were subject
to the same conditions.
34 PARSONS V. RYAN
Defendants had provided sufficiently detailed and specific
evidence that 276 close custody inmates worked in different
positions for, on average, 30 hours per week. Defendants
had provided job titles and the number of inmates working
in each position. The district court concluded that these
inmates experienced different confinement conditions than
the maximum custody inmates, and thus, they would not be
considered members of the subclass.
The district court’s conclusions are plausible in light of
the record. As Plaintiffs argue, some of the activities in
Defendants’ list of offerings may not have actually been
made available to many of the close custody inmates. For
example, Defendants list visitations as an offered activity,
but many inmates may not have any visitors. Defendants list
visits to the store to pick up purchases as an offered activity,
but many inmates may not have any money to make
purchases at the store (and thus may not be allowed to go
pick up purchases). Some of the programming activities that
Defendants list—such as “Re-Entry,” “Substance use/AA,”
and “Cognitive Behavior”—have a limited number of slots,
and thus would not be made available to all inmates. Given
these limitations, the district court concluded that
Defendants’ list of possible activities was not sufficient to
show that any particular inmate is actually offered more than
14 hours of out-of-cell time each week. 2 This conclusion
2
Defendants argue that they could not produce such evidence,
because they had no reason to monitor activities of the close custody
inmates prior to the district court’s December 23, 2016 order clarifying
that such inmates were part of the subclass. This is unpersuasive. Prior
to the district court’s November 8, 2016 order asking Defendants to
produce such evidence, the subclass had unambiguously encompassed
all inmates in the five enumerated housing units. This included all the
close custody inmates at issue here. Defendants were responsible for
monitoring the activities of those inmates. It is only when the district
PARSONS V. RYAN 35
was not implausible in light of the record. Therefore, I do
not believe the district court abused its discretion in ruling
that close custody inmates were part of the subclass. For this
reason, I respectfully dissent from the majority’s contrary
holding, but concur in all other respects.
CALLAHAN, Circuit Judge, concurring in part and
dissenting in part:
I concur in the majority’s conclusion as to subject matter
and appellate jurisdiction for the three appeals. I also concur
in the majority’s conclusion that the district court erred in
interpreting the subclass to include all close custody inmates
not otherwise participating in a prison jobs program (Part VI
of the majority opinion). However, I cannot agree with the
majority’s disposition of the staffing appeal and the outside
providers appeal (Parts IV and V, respectively). I would
affirm the district court’s February 3, 2017 staffing order and
reverse the district court’s November 10, 2016 outside
providers order.
I.
The district court’s role in this case is purely to interpret
and enforce the terms of the Stipulation. Although the
court began to pare down the subclass to include only inmates subject to
isolation that the membership of the close custody inmates in the
subclass came into question. The district court contracted, rather than
expanded, the subclass definition. Further, the argument that inmates
might decide not to take advantage of opportunities is irrelevant to the
district court’s finding that the Defendants had not presented sufficient
evidence that any close custody inmate was actually offered more than
14 hours of out-of-cell activities each week.
36 PARSONS V. RYAN
Stipulation authorizes the district court to remedy non-
compliance, at the bargaining table, the parties removed one
particular “tool,” as the district court put it, from the court’s
“remedial toolbox.” The Stipulation expressly prohibits the
court from “order[ing] Defendants to . . . hire a specific
number or type of staff unless Defendants propose to do so
as part of a plan to remedy a failure to comply with any
provision of this Stipulation.” The majority concludes that
although the Stipulation prevents the district court from
ordering Defendants to hire a specific number of staff, the
court may order Defendants to increase staffing in general.
I cannot agree. Instead, I agree with the district court’s
interpretation of the Stipulation that the court may not do
indirectly what the Stipulation prohibits it from doing
directly.
The majority states that a general staffing order would
preserve Defendants’ discretion to determine the exact
number and type of staff to hire. But, assuming the court has
the power to issue a general staffing order, the court
presumably would not (and, arguably, could not) approve a
proposed staffing plan unless it were to deem the plan
adequate. Certainly, a vague statement by Defendants that
they would “increase” staffing in some undisclosed way
would not be deemed adequate. Rather, the adequacy of a
general staffing order could not be determined without
considering the number and type of staff. Additionally,
under the majority’s rationale, if Defendants’ compliance
were to remain unsatisfactory after an increase in staff,
nothing would prevent the court from again deeming staffing
inadequate and again ordering a “general” staffing increase.
This process could continue until the court finally deems
staffing adequate. Perhaps other than being much more
costly, such a protracted process—whereby the court
effectively tells Defendants to “keep trying” over-and-over
PARSONS V. RYAN 37
until they have sufficiently increased staffing—bears no
meaningful difference from directly ordering Defendants to
hire a specific number of staff.
I agree with the district court that an order to develop a
plan to increase staffing in general is the “functional
equivalent” of an order requiring a specific number and type
of staff, which the Stipulation prohibits. I would thus affirm
the district court’s February 3, 2017 order.
II.
I cannot agree with the majority’s decision to affirm the
outside providers order. The majority rejects Defendants’
argument that the order effectively requires 100 percent
compliance, contrary to the 80 percent benchmark provided
in the Stipulation. But the majority’s interpretation of the
order conflicts with Judge Duncan’s own interpretation of
his order. At the November 9, 2016 hearing where Judge
Duncan announced his intention to order Defendants to use
outside providers, he stated that he was requiring 100 percent
compliance. Likewise, in his order denying Defendants’
Rule 60(b) motion, Judge Duncan characterized the outside
providers order as “requir[ing] Defendants to pursue 100%
compliance.” I would defer to Judge Duncan’s own
interpretation of his order and agree with Defendants that
such a ruling erroneously modifies the Stipulation.
Its issuance of the outside providers order one day after
orally announcing the intended decision also prevented the
district court from adequately taking into account the
security risks created by ordering Defendants to transport
hundreds of inmates on a daily basis to outside medical
facilities. In my view, the majority is too quick to dismiss
this concern.
38 PARSONS V. RYAN
I would thus reverse the district court’s November 10,
2017 outside providers order.
III.
For the foregoing reasons, I would affirm the staffing
order and reverse the outside providers order. 1 I otherwise
concur in the majority’s opinion.
1
The majority’s reversal of the staffing order warrants vacatur of
the outside providers order. The majority’s decision fails to account for
the fact that the staffing order and the outside providers order were
interrelated. It is plain from the record that the district court viewed an
order to increase staffing as the “preferred” remedial measure and issued
the outside providers order only because it interpreted the Stipulation as
preventing the issuance of a staffing order. In the outside providers
order, before stating that it would require Defendants to use outside
providers, the district court observed that, under its interpretation of the
Stipulation, “the most efficient and effective tool”—the power to order
increased staffing—had been removed “from the Court’s remedial
toolbox.” Judge Duncan also stated at the November 9, 2016 hearing
that ordering Defendants to use outside providers was “not as preferred
as some other tools” but that the other tools had been “taken out of my
toolbox.” Because the majority is reversing the district court’s decision
as to the staffing order, thereby placing that tool back in Judge Duncan’s
“remedial toolbox,” prudence dictates that the outside providers order be
vacated. Of course, on remand, nothing prevents the district court from
revisiting its prior remedial decisions to consider anew possible remedies
in light of the reversal of the staffing order.