Judge refuses to step down from case

A U.S. District Court judge refused to disqualify himself from an ongoing prison health-care lawsuit despite an Arizona Department of Corrections allegation that he is biased.

In an order posted Wednesday, U.S. Magistrate Judge David Duncan wrote, “Amid Defendants’ continuing failure to meet many of the requirements of the Stipulation, Defendants devote energy and time to an effort to remove the judgetheychose to hold their feet to the fire. This is a meritless distraction.”

Duncan is considering whether to find the department in contempt of court for that “continuing failure” and whether to assess fines against the department for non-compliance that could add up to millions of dollars.

“The record here demonstrates only a judge’s increasing frustration with defendants’ three-year failure to deliver the healthcare they promised when they settled this case,” he wrote.

The class-action suit, Parsons vs. Ryan, was brought in 2012 by the Arizona Center for Disability Law on behalf of 13 inmates in Department of Corrections prisons, alleging the department provided inadequate care. It was joined by attorneys from the American Civil Liber-

ties Union and the California-based Prison Law Office.

Parties in the case reached a settlement that was signed by Duncan in 2015. The judge has continued to monitor compliance with the agreement.

But by June 2017, Duncan was becoming increasingly upset that the DOC and Corizon Correctional Healthcare, the company with which it subcontracts medical care, were not complying with the terms of the settlement.

In October, he issued an order to show cause why the DOC should not be held in contempt of court and, by November , he was threatening to fine the DOC and Corizon $1,000 for each instance of non-compliance.

Attorneys for the state acknowledged that they had at least 1,000 lapses in December alone, which would amount to $1 million in fines just for that month.

At a hearing on Dec. 20, , Duncan exploded after reading an article posted online by radio station KJZZ suggesting that Corizon was tutoring medical providers on how to avoid having to report non-compliance and making “an end run around the monitoring program.” That story led to further hearings.

In late March, the state’s defense attorney, Daniel Struck, filed a motion asking for Duncan to step down or be removed from the case, saying that Duncan’s increasingly angry demeanor and statements in the courtroom “call into serious question his ability to be fair and impartial in this case.”

“Magistrate Judge Duncan’s tone and demeanor changed in 2017,” the motion stated. “His earlier frustration, and even anger, over defendants’ instance of noncompliance with certain performance measures escalated to hostility, confrontation, personal animus, and bias and prejudice, devoid of impartiality.”

The motion then went on to list examples of his emotive statements and claimed his seeking out the KJZZ article amounted to “improperly obtained out-of-court information.”

The last hearing took place on April 10, and Duncan took the DOC to task over its contract with Corizon, which stipulates that Corizon and not the state of Arizona is responsible for any fines assessed.

“If the state undertook an obligation to perform something and they went out and hired somebody else to satisfy that obligation and that somebody else wasn’t able to meet the requirements of the obligation,” he said at that hearing, “why should I say the state gets a pass because this third party wasn’t able to accomplish the tasks when fundamentally, it was the responsibility of the state to serve that purpose, to provide that service? And upon its failure, why should I say that they get a pass because they turned it over to somebody else who hasn’t done that?”