VICTOR ANTONIO PARSONS; SHAWN JENSEN; STEVE SWARTZ; DUSTIN BRISLAN; SONIA RODRIGUEZ; CHRISTINA VERDUZCO; JACKIE THOMAS; JEREMY SMITH; ROBERT CARRASCO GAMEZ, Jr.; MARYANNE CHISHOLM; DESIREE LICCI; JOSEPH HEFNER; JOSHUA POLSON; CHARLOTTE WELLS; ARIZONA CENTER FOR DISABILITY LAW, Plaintiffs - Appellees,
CHARLES L. RYAN and RICHARD PRATT, Defendants - Appellants
As Amended April 24, 2015.
District of Arizona, Phoenix. D.C. No. 2:12-cv-00601-NVW.
For VICTOR ANTONIO PARSONS (-: #123589), SHAWN JENSEN (-: 32465), STEVE SWARTZ (-: 102486), DUSTIN BRISLAN, SONIA RODRIGUEZ, CHRISTINA VERDUZCO, JACKIE THOMAS, JEREMY SMITH, ROBERT CARRASCO GAMEZ, Jr., MARYANNE CHISHOLM, DESIREE LICCI, JOSEPH HEFNER, JOSHUA POLSON, CHARLOTTE WELLS, Plaintiffs - Appellees: Daniel Clayton Barr, Kirstin Tekakwitha Eidenbach, Amelia M. Gerlicher, Esquire, Attorney, Perkins Coie, Phoenix, AZ; David Cyrus Fathi, Director, ACLU-American Civil Liberties Union, Washington, DC; R. Scott Medsker, Jones Day, Washington, DC; Jennifer K. Messina, JONES DAY, New York, NY; Caroline Nason Mitchell, Esquire, Jones Day, San Francisco, CA; Dan Pochoda, ACLU of Arizona, Phoenix, AZ; Donald Specter, Esquire, PRISON LAW OFFICE, Berkeley, CA; John Laurens Wilkes, JONES DAY, Houston, TX; Corene Thaedra Kendrick, Attorney, Prison Law Office, Berkeley, CA.
For ARIZONA CENTER FOR DISABILITY LAW, Plaintiff - Appellee: Kirstin Tekakwitha Eidenbach, Attorney, Amelia M. Gerlicher, Esquire, Attorney, Perkins Coie, Phoenix, AZ; David Cyrus Fathi, Director, ACLU-American Civil Liberties Union, Washington, DC; Sarah E. Kader, Attorney, Arizona Center for Disability Law, Phoenix, AZ; Cathleen Marie Dooley, Attorney, Jose de Jesus Valdez Rico, Esquire, Arizona Center for Disability Law, Tucson, AZ; Corene Thaedra Kendrick, Attorney, Prison Law Office, Berkeley, CA.
For CHARLES L. RYAN, RICHARD PRATT, Defendants - Appellants: Nicholas D. Acedo, Esquire, Attorney, Daniel Patrick Struck, Esquire, Managing Senior Counsel, Struck, Wieneke & Love, PLC, Chandler, AZ; Michael E. Gottfried, Arizona Attorney General's Office, Phoenix, AZ.
For AMERICAN FRIENDS SERVICE COMMITTEE, CENTER FOR CHILDREN'S LAW AND POLICY, CHILDREN'S RIGHTS, NATIONAL ALLIANCE ON MENTAL ILLNESS, THE ARC OF THE UNITED STATES, THE IMPACT FUND, THE NATIONAL CENTER FOR YOUTH LAW, THE NATIONAL DISABILITY RIGHTS NETWORK, THE NATIONAL IMMIGRANT JUSTICE CENTER, THE NATIONAL JUVENILE DEFENDER CENTER, THE PACIFIC JUVENILE DEFENDER CENTER, THE YOUTH LAW CENTER, Amici Curiae: Mark A. Chavez, Esquire, Counsel, Chavez & Gertler LLP, Mill Valley, CA.
Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges. IKUTA, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, CALLAHAN, BEA, and M. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc.
The panel voted to deny the petition for rehearing en banc; the petition was subsequently withdrawn. The full court was so notified.
A judge then requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R. App. P. 35.
Judge Ikuta's dissent from denial of rehearing en banc is filed concurrently with this Order.
The mandate shall issue forthwith.
IKUTA, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, CALLAHAN, BEA, and M. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:
The Supreme Court has established two straightforward principles that are applicable to this appeal. First, before certifying a class, a court must ensure that all members of the potential class have the same sort of claim, and that the claim is susceptible to classwide resolution. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Second, a prisoner does not have an Eighth Amendment claim merely because the prisoner is incarcerated in a prison with a defective medical system. See Lewis v. Casey, 518 U.S. 343, 349-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); cf. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Today, the court turns its back on both of these principles by leaving in place the opinion of a three-judge panel that affirms the certification of a class consisting of every one of the 33,000 prisoners incarcerated in the Arizona prison system on the theory that each of those prisoners has a common claim for an Eighth Amendment violation. I dissent from our failure to take this opinion en banc in order to vacate it.
The preliminary record in this case reveals serious systemwide problems with healthcare in the Arizona prison system. But the record does not establish that every one of the 33,000 prisoners in the Arizona prisons has a serious medical need, see Estelle, 429 U.S. at 104-06, and faces a similar substantial risk of serious harm due to defendants' alleged deliberate indifference to this need, see Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Rather, the evidence in the record shows a diverse group of prisoners with different health conditions and needs who require different levels of medical care. While all prisoners in some sense are exposed to the same systemic inadequacies of the Arizona prisons' medical facilities, that exposure alone does not give rise to an Eighth Amendment claim. See Estelle, 429 U.S. at 103; see also Lewis, 518 U.S. at 349-51.
Despite the lack of any support in the record, the panel nevertheless affirms the certification of this diverse class of prisoners--even though not all members of the class have an Eighth Amendment claim, let alone a common claim--in defiance of Dukes, Lewis, and the Supreme Court's Eighth Amendment jurisprudence. See Dukes, 131 S.Ct. at 2551; Lewis, 518 U.S. at 349-51; Wilson v. Seiter, 501 U.S. 294, 297-300, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Estelle, 429 U.S. at 104-06; Farmer, 511 U.S. at 832-34. The panel also creates a circuit split with the Third Circuit. See Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999) (Alito, J.). By refusing to vacate this opinion and thereby designating it as the law of our circuit, the court endorses a view of the Eighth Amendment and class actions that is at odds with the binding authority of the Supreme Court.
Thirteen inmates in custody throughout the Arizona prison system brought a class action suit (under Rule 23 of the Federal Rules of Civil Procedure) against senior officials in the Arizona Department of Corrections (ADC) in March 2012. Parsons v. Ryan ( Parsons II ), 754 F.3d 657, 662-63 (9th Cir. 2014). They alleged that through its various systemwide practices and policies regarding prisoners' medical, dental, and mental health care, the ADC is " deliberately indifferent" to the resulting " significant injury and substantial risk of serious harm" to all prisoners in violation of the Eighth Amendment. Dist. Ct. Dkt. 1 (Complaint) ¶ 26. The prisoners identified ten such practices, " including inadequate staffing, outright denials of care, lack of emergency treatment, failure to stock and provide critical medication, ...