Hadix v. Caruso, 4:92-CV-110.

• Decision Date: 07 December 2006
• Docket Number: No. 4:92-CV-110.,4:92-CV-110.
• Parties: Everett HADIX, et al., Plaintiffs, v. Patricia L. CARUSO, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

465 F.Supp.2d 776

Everett HADIX, et al., Plaintiffs, v. Patricia L. CARUSO, et al., Defendants.

No. 4:92-CV-110.

United States District Court, W.D. Michigan, Southern Division.

December 7, 2006.

Elizabeth Alexander, Michael Barnhart, Patricia A. Streeter, Detroit, MI, for Plaintiffs.

A. Peter Govorchin, Lansing, MI, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ENSLEN, Senior District Judge.

Step on a man's foot once, and a polite apology will do. Do it twice, and a profuse apology is in order. Do it thrice, and you have left the land of apology and entered the arena of self-defense.

I. FACTUAL FINDINGS

A. Hearing Process

1. Hearing was held in this matter on October 11-13, 2006 to receive proofs regarding three motions by Plaintiffs. After hearing, which could not accommodate all of the parties' proofs, the Court issued a scheduling Order, on October 16, 2006, to receive additional proofs (exhibits, de bene esse depositions and other proffers). Said Order required the filing of all proofs regarding Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Claims by October 31, 2006. Those proofs were duly filed and the Motion resolved by the Court's Opinion, Order and Preliminary Injunction of November 13, 2006. The balance of the supplemental proofs, regarding Plaintiffs' Motion for Further Relief and Motion for Order to Show Cause, were to be filed by November 17, 2006. That date was subsequently extended on November 17, 2006 due to the request by Defendants and in recognition of the demands of the briefing. The revised date was set for November 21, 2006. The supplemental briefing and exhibits were then timely filed by parties.¹

B. A Brief Explanation of Terms

2. This case involves a long history and a department of state government, the Michigan Department of Corrections ("MDOC"), in love with acronyms and other linguistic short-hands. The basic terms are as follows: "CMS" refers to Correctional Medical Services, the for-profit company hired to provide medical staff for the MDOC, including specialty services staff, who are, generally speaking, independent contractors. "DWH" refers to the Duane L. Waters Hospital, the in-patient care facility at the MDOC, which facility was recently "demoted" in its licensing to a Health Care Center, though the reference to hospital has persisted in practice. DWH also contains an infirmary for convalescence of hospital patients. The "Hadix facilities" refers to the set of prison facilities, including DWH, which were part of the former Central Complex of the State Prison of Southern Michigan ("SPSCC") at Jackson, Michigan and/or were created to provide services in connection with those prison facilities. "RGC" refers to the Charles Egeler Reception and Guidance Center, a Hadix facility which receives new prisoners into the MDOC system.² "JMF," a Hadix facility, refers to the Southern Michigan Correctional Facility.³ JMF also houses a dialysis unit for providing dialysis services and a "C-Unit," a unit for convalescence and care of infirm dialysis patients and others. "Parnall," a Hadix facility, refers to the Parnall Correctional Facility. The G. Robert Cotton Correctional Facility and Cooper Street Correctional Facility are also at Jackson, but are not Hadix facilities. "SERAPIS" refers to the ambulatory electronic medical record system used by the MDOC, the implementation of which has been a painfully slow process in its completion. "CCC" refers to Chronic Care Clinics, which are medical clinics used at Hadix facilities to regularly deliver care to chronically-ill prisoners.

C. Consent Decree and Violation Histories

3. This suit was filed in the United States District Court for the Eastern District of Michigan in 1980 to redress a variety of unconstitutional conditions, ineluding inadequate mental health care, at certain designated Jackson, Michigan prison facilities operated by prison officials of the MDOC pursuant to 42 U.S.C. § 1983. In 1985, a Consent Decree was entered by stipulation of the parties with the approval of United States District Judge John Feikens.

4. Section II.A of the Consent Decree pertained to medical care for prisoners within the Hadix facilities. The section promised to each Hadix prisoner "medical services consistent with contemporary professional health care standards." (Consent Decree § II.A.1.) The Decree further promised a fully-licensed hospital, medical screening, regular access to health care unimpeded by custodial staff, and staffing and new procedures sufficient to fulfill those promises. (Id. at § II.A.1-5.) In addition to other important matters, including special diets and medicines, the Decree also promised that quality assurance audit processes would be used to insure proper health care access, adequate care and supervision of care providers. (Id. at § II.A.6-12.)

5. Judge Feikens initially transferred enforcement of the medical care provisions of the Consent Decree to this Court by Order of June 5, 1992 pursuant to 28 U.S.C. § 1404(a). Hadix v. Johnson, 792 F.Supp. 527, 528 (E.D.Mich.1992). The purpose of the Order was to promote uniformity and effectiveness of remedy in light of this Court's enforcement of a Consent Decree involving the same issues in a separate suit—United States v. Michigan, Case No. 1:84-cv-63. Id. See also Hadix v. Johnson, 228 F.3d 662, 665 (6th Cir. 2000) (discussing history of suit).

6. Despite the success of the Decree in fostering improved conditions as to many aspects of the Decree, the provision of health care has remained both a troubled and troubling aspect of the Decree. Progress in this suit was delayed between 1996 and 1999 due to appeals involving the interpretation and constitutionality of section 802 of the Prison Litigation Reform Act ("PLRA"), P.L. 104-134, codified at 18 U.S.C. § 3626. In December 1999, after such delay, the Court conducted a compliance hearing. The result of that hearing was a February 18, 2000 set of Findings of Fact and Conclusions of Law, which determined that certain provisions of the Decree should be terminated, but found constitutional violations as to other portions requiring self-remedy by Defendants. (See Feb. 18, 2000 Findings of Fact & Conclusions of Law; Feb. 18, 2000 partial termination Order; Oct. 29, 2002 Findings of Fact & Conclusions of Law ("2002 Findings") at 1.)

7. Another evidentiary hearing was held in May 2002, which charted the progress of such self-remedy. The 2002 Findings following that hearing filled 266 pages and discussed hundreds of cases of inadequate or neglected medical care. Of particular concern in those Findings were the following failures: (a) the failure of the health care system to provide timely access to care to patients with urgent and emergent serious medical problems (2002 Findings ¶¶ 217 & 324); (b) the failure of the system to provide timely access to specialty care, which failures include the delaying of surgery of a lung cancer patient for over a year and the repeated failure to transport another patient to chemotherapy appointments (with one exception), which failures caused death in both cases (2002 Findings ¶¶ 728, 729 & 860); and (c) the failure of the system to provide a readable, comprehensive and current medical record to care providers (2002 Findings ¶¶ 790-867).

8. As a consequence of these and other Eighth Amendment violations, the Court enjoined Defendants to comply with the instructions for remedy in Section XIII of the Findings. (Order & Inj., Oct. 29, 2002.) Phase one of the medical remedy was the appointment of a medical monitor. (Id. at ¶¶ 1437-38.) After interview of candidates, Robert Cohen, M.D., was appointed medical monitor pursuant to an Order of this Court authorizing independent monitor F. Warren Benton to so appoint him.⁴ (Order of Apr. 21, 2003.) This appointment was to be followed by the development of a remedial plan by the Monitor and the parties. (See 2002 Findings ¶ 1440.) However, the requirement of a remedial plan was later vacated, not because it was inappropriate, but it was contained in the same paragraph which required a heat-related remedy as to which the parties came to an agreed resolution which involved vacating that paragraph. (See id. at ¶ 1442; Order of June 6, 2003.)⁵ However, apart from those technical details, there continued at the time a mounting crisis in health care, which has fully consumed the resources of the parties, the Court and the Medical Monitor in seeking solution. We have been bailing, not sailing.

C. Medical Status Reports and Preliminary Injunction Plan

9. Dr. Cohen's first medical Status Report was filed with the Court on July 13, 2004. The second was filed on January 13, 2005. The third was filed on September 12, 2005. The basic similarity between all three was extensive commentary on gross failures of care, inadequate care, and preventable injury, disease, and loss of life. The Court also received emergency correspondence concerning systemic failures (collapse of pharmacy and the death of T.S.), which are discussed further. (Letter of June 2, 2006, Dkt. No.2035; Letter of Aug. 14, 2006, Dkt. No.2088.)

10. In particular, the Third Report noted a "crisis" in medical service provider staffing as of March 2005, which was exacerbated by the discharge of a delinquent doctor, Dr. Faghihnia. Another problem was that additional physician responsibilities were being placed upon the medical staff with the transfer of "C-Unit"—a unit for treatment of dialysis patients and other chronically-ill patients too sick to live in general population—to the Hadix facilities. (Third Report at 13 (Dkt. No. 1897 and also received as Pis.' Ex. 5A).)

11. Problem cases noted in the Third Report included, by way of example: patient 1, a patient who died of an untreated staph infection and gastro-intestinal bleeding while housed in administrative segregation (id. at 11); patient 2, a patient with HIV, Sicca Syndrome (chronic extreme dryness of the...