ORDER

ROSLYN O. SILVER, Senior District Judge.

The conclusion of Dr. Marc Stern's analysis and the receipt of his report requires determining how this case will proceed. As set out below, the history of Defendants' behavior after a settlement agreement was reached means the parties will be required to select from three options regarding the future course of this case.1

BACKGROUND

In October 2014, the parties, apparently in good faith, entered into a stipulation to settle this litigation. (Doc. 1185). That stipulation required Defendants "comply with the health care performance measures" the parties agreed upon. (Doc. 1185 at 3). The stipulation did not contemplate perfect compliance with each performance measure but it did require that, as of two years after the stipulation's effective date, Defendants would comply with every performance measure at least 85% of the time. Now, approaching the five-year anniversary of the stipulation's acceptance, Defendants are in violation of that agreement because they are not complying with every performance measure 85% of the time. And crucially, the failing performance measures relate to the core aspects of health care delivery: provision of medication, access to specialty care, and ensuring adherence to outside providers' recommendations.

Based on Defendants' continued non-compliance with the stipulation and questions regarding the accuracy of the compliance numbers themselves, the Court appointed Dr. Stern to assess the manner in which Defendants were monitoring their compliance and to assess Defendants' "substantial noncompliance with critical aspects of health care delivery." (Docs. 3079, 3089). On October 2, 2019, Dr. Stern provided his report. His report confirms the Court's long-held belief that pervasive issues have precluded accurate monitoring of certain performance measures and that even the low compliance levels reported in some instances may be worse. The report sets forth recommendations to ensure accurate monitoring of performance measures as well as recommendations that certain performance measures be retired and others be altered to more realistically capture whether required health care is being provided to prisoners. The report also describes in detail how Defendants' behavior creates a significant risk of serious harm to prisoners' health and concluded that additional funding would be necessary to provide required healthcare. The Before delving into the specifics of Dr. Stern's report, it is imperative that the Court determine whether to continue down the path of trying to bring Defendants into compliance or, with the parties' agreement, switch to an alternate path.2

ANALYSIS

Dr. Stern's report raises serious questions whether it is realistic or appropriate to expect that Defendants will perform the obligations they accepted years ago. And given that Defendants' continued failure to comply with crucial performance measures appears to pose a significant risk of serious harm to plaintiffs, the Court cannot delay any longer. (Doc. 3379 at 72). The Court sees three possible options.

A. Enforcement of Stipulation

The first is for Defendants to reaffirm that they wish to comply in good faith with the stipulation such that the Court should pursue enforcement efforts to bring Defendants into compliance. This option would require the Court go through Dr. Stern's recommendations with immense care and decide which of those recommendations should be adopted and which rejected. This option would also require the Court become much more active in ensuring Defendants perform their obligations. In particular, the Court would have to determine what to do when Defendants do not perform their obligations.

In the past, the Court concluded monetary fines in the form of contempt sanctions might convince Defendants to come into compliance. Defendants did not agree the Court had the power to pursue contempt fines and Defendants are presently appealing that issue. But while Defendants continue to argue contempt fines cannot be imposed, Defendants have never identified another realistic enforcement mechanism the Court should invoke. It is foolish to believe the parties meant for the Court to have no enforcement mechanisms. The stipulation itself states the Court shall have "the power to enforce [the] 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." (Doc. 1185 at 14-15). Thus, if Defendants wish to continue down the path of attempting to come into compliance with the stipulation, they will first have to outline the parameters of their view of "all remedies provided by law." That is, Defendants will be required to outline each and every enforcement mechanism that is authorized by the stipulation and general principles of law. Plaintiffs will be required to do the same.

In considering whether to select this option, the parties should carefully review Dr. Stern's observations that the performance measures poorly reflect the adequacy of care being provided. In other words, Dr. Stern believes that even if Defendants were complying with all the performance measures, prisoners would still not be receiving the required level of care. If compliance with the performance measures would not, in fact, provide the level of care Defendants are obligated to provide under the Constitution, Defendants would be susceptible to massive lawsuits based on the actual provision of care.

B. New Settlement

The second option is for the parties to negotiate a new settlement, perhaps with the assistance of Magistrate Judge Fine who is involved in this case and will soon have under consideration the parties' maximum custody disputes. As noted earlier, Dr. Stern identified numerous performance measures that should be eliminated and proposed revisions to other performance measures. Dr. Stern's recommendations appear to be a solid basis on which the parties could craft a supplemental settlement agreement. Such an agreement would result in a much more focused effort aimed at ensuring the delivery of required health care. Importantly, a supplemental agreement could include automatic enforcement mechanisms in the event of noncompliance.

It is noteworthy that this option offers the immense benefit of possibly resolving the entire controversy, including all matters before this Court and the Ninth Circuit.3 Significantly, the window for resolving this matter by settlement will not be extensive.

C. Trial

The third and final option is for the Court to hold that Defendants' inability or refusal to come into compliance with all their obligations under the stipulation merits setting aside the stipulation and proceeding to a trial on the merits. Previously, the Court was hesitant to pursue this time consuming, highly expensive, and potentially harsh course. But at a recent oral argument before the Ninth Circuit, Defendants' counsel specifically identified setting aside the stipulation as a plausible path forward. Counsel's remark was made in response to Judge Callahan questioning Defendants' position that the Court lacked the authority to enforce the stipulation through its contempt powers.

Thus, Defendants apparently believe the Court should consider setting aside the stipulation. And if Defendants continue to argue the Court lacks meaningful authority to coerce them into complying with the stipulation, setting aside the stipulation likely is the only solution. If this is the preferred course for Defendants, and Plaintiffs do not object, the Court is willing to schedule a trial in the immediate future, which will be costly to the taxpayers of Arizona.

D. Parties' Preference

The Court does not have a preference between the three options outlined above. The Court notes, however, that Dr. Stern concluded the "severe level of underfunding of health care services . . . is the single most significant barrier to compliance with the [performance measures] in this case." (Doc. 3379 at 94). Whether or not that is accurate, as mentioned in a prior Order, Defendants have spent millions of dollars on the present litigation and Defendants appear determined to spend millions more in the future. (Doc. 3057 at 8-9). Defendants are free, of course, to spend their funds as they wish and believe necessary to protect their interests. But it makes very little sense for Defendants to expend public funds paying attorneys to defend their undisputed breaches of the agreed upon stipulation.

Finally, the Court reiterates that Defendants' past behavior of not providing required health care will not be allowed to continue. The Court has spent substantial time and effort trying to get Defendants to do what they agreed to do years ago. Once the Court receives the parties' positions, the Court will take immediate steps to enforce Defendants' compliance with the stipulation, send the parties for settlement negotiations, or set the case for trial.

Accordingly,

IT IS ORDERED no later than October 16, 2019, the parties shall confer and inform the opposing side which of the three options they plan to pursue.

IT IS FURTHER ORDERED no later than October 23, 2019, each side shall file a statement outlining how that side wishes to proceed. That statement shall address the following: