Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 1 of 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LASHAWN JONES, ET AL. CIVIL ACTION No. 12-859 c/w 12-138 REF: 12-859 VERSUS MARLIN GUSMAN, ET AL. SECTION I ORDER AND REASONS Before the Court is a motion1 filed by the City of New Orleans (“the City”) to invalidate or terminate the contract, entered into by the Orleans Parish Sheriff (“the Sheriff”) and Correct Care Solutions, Inc. (“CCS”), for medical and mental health care for Orleans Parish Prison (“OPP”) inmates. The motion is fully briefed and ripe for decision. BACKGROUND A. The Consent Judgment On June 6, 2013, after extensive briefing and a comprehensive fairness hearing, the Court entered the Consent Judgment.2 The Consent Judgment is narrowly drawn, extends no further than necessary to correct the violation of the Plaintiff Class’s federal rights, and is the least intrusive means necessary to do so. See 18 U.S.C. § 3626(a)(1)(A). The Consent Judgment “contemplates that the dispute between the Parties will be resolved by the continued development and implementation of [] measures” addressed in that document.3 The Consent Judgment’s effective date was October 1 R. Doc. No. 791. R. Doc. No. 466. 3 R. Doc. No. 466, at 5. The City is not a party to the Consent Judgment, but rather is a third party defendant to claims brought by the Sheriff. For a more detailed procedural history of 2 1 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 2 of 17 21, 2013.4 One of the many purposes of the Consent Judgment is to address the “stark, sometimes shocking, deficiencies in OPP’s medical and mental health care system.”5 As the Court found in the Order approving the Consent Judgment: Inmates with mental health issues are housed in deplorable conditions. Mental health units smell strongly of feces, urine, and rotting organic matter. Several inmates had floors and walls smeared with feces when Dr. Gage visited, and many cells had “evidence of the detritus of several days’ food and utensils.” Compare Gates v. Cook, [376 F.3d 323, 338 (5th Cir. 2004)] (Living in “extremely filthy” cells with “crusted fecal matter, urine, dried ejaculate, peeling and chipping paint, and old food particles on the walls . . . would present a substantial risk of serious harm to inmates.”). Such unsanitary conditions can cause or exacerbate illness. Moreover, “mental health units, including those designed for suicide monitoring, were patently not suicide proof.” .... As with security and safety, OPP’s severe deficiencies in mental health and medical care are largely attributable to dramatically insufficient staffing. . . . Nurses report that there is no time to provide any formal mental health treatment, and that they engage in minimal contact usually only in the context of mandatory evaluations. Given the number of inmates and the number of nurses, it is impossible for the nurses to adequately evaluate and chart patients, administer medications, respond to emergencies, provide suicide monitoring, gather sick call information, and provide basic nursing services. .... The evidence presented was largely targeted towards deficiencies in mental health care, although the evidence also shows deficiencies in non-mental health care treatment, in particular sick call requests, medication administration, and emergency room visits, that relate to the risk of suicide, violence, and contraband trade. The evidence presented shows that a lack of treatment altogether, rather than inadequate treatment, contributes to severe deficiencies in medical and mental health care at OPP. Jones, 296 F.R.D. at 443, 449, 451 (footnotes omitted). The Court found that those conditions were “‘incompatible with the concept of human dignity and [have] no place in civilized society.’” Id. at the case, see Jones v. Gusman, 296 F.R.D. 416, 424-28 (E.D. La. 2013). 4 R. Doc. No. 583, at 3. 5 Jones, 296 F.R.D. at 443. 2 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 3 of 17 451 (quoting Brown v. Plata, 131 S. Ct. 1910, 1928 (2011)). Furthermore, the Court noted that the unconstitutional conditions at OPP have an impact outside the walls of the jail: The Court is well aware of New Orleans’ high homicide rate and budgetary constraints, but the evidence shows that violent crime is endemic within OPP as well. OPP inmates, and particularly inmates with mental health issues, leave the facility more damaged, and perhaps more dangerous, than when they arrived. Experts opined that OPP poses “clear and present dangers” of “life and death proportions” with respect to suicide . . . . The evidence shows that OPP itself presents a public safety crisis, which endangers inmates, staff, and the community at large. Jones, 296 F.R.D. at 457-58 (citations and footnotes omitted).6 The City was given ample opportunity to object to the Consent Judgment and to participate in the fairness hearing. Despite those opportunities, the City did not “present[] any evidence, including expert testimony, showing that conditions at OPP do not violate the Constitution . . . . [or] evidence with respect to an alternative, less costly or less intrusive, approach to remedying conditions at OPP.”7 The City did, however, complain about the cost and the “fact that the proposed consent judgment would provide inmates with medical and mental health care to an extent that exceeds that provided to certain non-incarcerated citizens.”8 The Court dismissed that argument, which is an early example of what has become the City’s ongoing pattern of repeated complaints about the cost of constitutional medical and mental health care coupled with a failure to articulate concrete viable alternatives. The City filed a notice of appeal9 from the Court’s entry of the Consent Judgment, but it did 6 The Court also notes that many of these issues, such as communicable diseases left untreated due to constitutionally deficient medical care, implicate the health of members of the general public who never set foot inside OPP. 7 Jones, 296 F.R.D. at 458. 8 Jones, 296 F.R.D. at 461. 9 R. Doc. No. 521. 3 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 4 of 17 not otherwise pursue an appeal. Accordingly, the Court continues to enforce the Consent Judgment’s requirements in accordance with well-established legal principles. This includes the requirements that the Sheriff (1) “ensure constitutionally adequate intake, assessment, treatment, and monitoring of prisoners’ mental health needs;”10 (2) “ensure constitutionally adequate treatment of prisoners’ medical needs;”11 and (3) “ensure that medical and mental health staffing is sufficient to provide adequate care for prisoners’ serious medical and mental health needs, fulfill constitutional mandates and the terms of [the Consent Judgment], and allow for the adequate operation of [OPP], consistent with constitutional standards.”12 B. Implementation Implementation of the Consent Judgment has moved at a “glacial pace.”13 The issue of housing inmates with mental health issues is a paradigmatic example of the ongoing struggle to bring OPP into compliance. As early as May 2013, the Court emphasized “the need for cooperation between the City and the Sheriff to formulate an appropriate plan” regarding mental health treatment, but “despite the fact that the Sheriff and the City had more than a year to resolve such issues, no agreement was reached.”14 As a result of this lack of collaboration, the Court was forced to rule on a motion filed by the Sheriff to approve a short-term housing plan for severely mentally ill inmates and to compel the City to pay for it.15 Neither the City nor the Sheriff was blameless in 10 R. Doc. No. 466, at 24. R. Doc. No. 466, at 34. 12 R. Doc. No. 466, at 31. 13 R. Doc. No. 738, at 6. 14 R. Doc. No. 738, at 4. 15 See R. Doc. No. 738. Furthermore, a long-term solution for housing inmates with acute and subacute mental health issues also remains elusive. R. Doc. No. 738, at 5. 11 4 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 5 of 17 connection with that unnecessary dispute.16 In connection with that motion, the City continued to offer inappropriate rhetoric regarding the costs of providing constitutional care,17 once again failing to articulate a concrete, viable alternative plan.18 Another aspect of the ongoing attempts to bring OPP into compliance (and the target of the instant motion) has been the Sheriff’s solicitation, negotiation, and execution of a contract with CCS, an entity “in the business of administering correctional health care services.”19 On March 17, 2014, the Sheriff issued a Request for Proposals for a medical and mental health care contract.20 The Sheriff appointed a five-member selection committee which included the City’s Health Director as the City’s sole representative.21 The City notes that it voiced many concerns about the transparency and speed of the contract 16 R. Doc. No. 738, at 6 (“When confronted with the City’s ill-advised attempt to politicize a non-political issue and a lack of management by the Sheriff, one begins to understand the glacial pace at which the Consent Judgment has been implemented thus far and the growing frustration of this Court.”) (footnote omitted). 17 R. Doc. No. 738, at 5-6 & n.23 (“For example, the City described its concerns as ‘not so much about the relocation of these inmates at Hunt for up to three years but the costs and logistics of such a proposal.’ At the evidentiary hearing, however, the City’s arguments included rhetoric more befitting a press conference than a judicial proceeding.”) (footnotes omitted). 18 For example, the City floated a last-minute idea of renovating Templeman V as a shortterm housing solution for male inmates with acute and subacute psychiatric conditions, without ever putting “pencil to paper” or presenting a “formal plan.” R. Doc. No. 738, at 22. The Court rejected that proposal because “the City failed to present any specific plan regarding the use of Templeman V prior to the hearing, or even any evidence supporting such a plan at the hearing.” R. Doc. No. 738, at 23; see also R. Doc. No. 738, at 24 (dismissing as “baffling” the City’s argument that its own vague proposal was the least intrusive means to correct conditions at OPP); R. Doc. No. 738, at 11 (“[T]he City has failed to offer any means by which adequate staff could be provided by OPP to Hunt without further endangering the staff and inmates remaining at OPP.”); R. Doc. No. 738, at 12 (“Moreover, the City has not identified any evidence that CorrectHealth comes at an unreasonable cost. Once again, the City has failed to offer an alternative solution, and the Court finds the criticism of CorrectHealth unpersuasive.”). 19 R. Doc. No. 791-10, at 1. 20 R. Doc. No. 791-6, at 1. 21 R. Doc. No. 791-6, at 1. 5 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 6 of 17 selection process, a lack of meaningful opportunity to provide input, and the price of the proposals.22 For example, by the middle of July, the City expressed concern about the Sheriff’s acceleration of the selection process, and it flagged potential issues regarding “the City’s ability to fund a contract in the $8 million to $14 million range.”23 Furthermore, at least no later than August 4, 2014, the City was aware of and expressed to the Sheriff “significant concerns . . . regarding the proposed pricing offered by” CCS, including the “overall cost, per diem price offering, and annual expenditure inflation rates.”24 The City does not, however, take issue with the fact that prior to filing this motion on March 19, 2015, it never argued to this Court that the Sheriff lacked legal authority to enter into a contract with CCS. Ultimately, the Sheriff and CCS executed an “Agreement for Inmate Health Care Services for the Orleans Parish Sheriff’s Office,”25 which went into effect on November 1, 2014.26 The most recent report from the Consent Judgment Monitor, filed on February 25, 2015, states that the “transition period for [CCS] will be at least six months, as there were few inmate medical or mental health files, records, or even an understanding of the basics of medical operations.”27 Accordingly, the most recent Monitor’s report states that there is still “insufficient health and mental health care” at OPP.28 Nonetheless, the Monitor has expressed cautious optimism that “the contract [with CCS] for these services which began in November 2014 provides hope for immediate and long-term 22 R. Doc. No. 791-1, at 3-7. R. Doc. No. 791-1, at 4; R. Doc. No. 791-5, at 1. 24 R. Doc. No. 791-3, at 1. 25 R. Doc. No. 791-10, at 1. 26 R. Doc. No. 791-10, at 21. 27 R. Doc. No. 790, at 9. 28 R. Doc. No. 790, at 3. 23 6 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 7 of 17 changes.”29 It is against this backdrop that the City has filed a motion30 to invalidate or terminate the CCS contract–the same contract which “provides hope for immediate and long-term changes.” As explained at the in-court status conference on March 26, 2015, the City agreed to reimburse the Sheriff under protest for the monthly payments due on the CCS contract while this motion is pending. DISCUSSION A few practical observations are warranted prior to addressing the legal issues presented by the City’s motion. First, the City recognizes and acknowledges its obligation “to ensure appropriate custodial care of prisoners at OPP pursuant to the terms of the Consent Judgment and consistent with constitutional standards,” with the understandable additional goal of “being vigilant as to costs.”31 The City also acknowledges (as it must) the “deplorable conditions at the OPP.”32 As the Court has explained before, “[i]t is well established that inadequate funding will not excuse the perpetuation of unconstitutional conditions of confinement, nor will an allegedly contrary duty at state law.” Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980) (citations omitted); see also Gates v. Collier, 501 F.2d 1291, 1322 (5th Cir. 1974) (“That it may be inconvenient or more expensive for [the City] to run its prison in a constitutional fashion is neither a defense to this action or a ground for modification of the judgment rendered in this case.”). Accordingly, while the Court shares in principle the City’s intention to “pursue a more financially responsible contract while 29 R. Doc. No. 790, at 3. R. Doc. No. 791. 31 R. Doc. No. 791-1, at 2. 32 R. Doc. No. 817, at 3. 30 7 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 8 of 17 ensuring that OPP inmates receive medical care consistent with constitutional standards,”33 compliance with the Consent Judgment must take precedence. Second, the City once again complains about cost without proposing a cheaper viable alternative. Although it criticizes the “staggering $80 million” cost of the CCS contract,34 the City fails to offer any detail regarding how or when it could procure a less expensive contract for medical and mental health care, or how care would continue at OPP if the CCS contract is immediately declared null and void as the City requests. The City also cites less expensive health care contracts at other jails but, consistent with its past practice of speaking in generalities, it omits whether those jails are also subject to federal court oversight based on decades of unconstitutional conditions or whether those jails lacked “an understanding of the basics of medical operations,”35 as was the case at OPP.36 Third, the City’s complaint that the Sheriff excluded it “from any meaningful participation in the selection and negotiation process”37 is in some material respects valid. Given the expense that the City would be shouldering to provide constitutionally adequate health care at OPP as well as its limited revenues, and notwithstanding the Sheriff’s willingness to have Dr. Charlotte Parent, the City’s Health Director, serve as a member of the selection committee, the Court is convinced that the Sheriff should have worked with the City in a more meaningful way to obtain input into the CCS contract. Such collaboration during the process might have avoided this dispute entirely. Fourth, the Court takes no position with respect to whether the Sheriff should have entered 33 R. Doc. No. 791-1, at 1. R. Doc. No. 791-1, at 10. 35 R. Doc. No. 790, at 9. 36 R. Doc. No. 791-1, at 12. 37 R. Doc. No. 791-1, at 3. 34 8 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 9 of 17 into the CCS contract or the cost of the contract. The Court similarly takes no position with respect to the appropriate jail population and the City’s hope to reduce the same. These matters are better discussed within the various branches of City government including the Orleans Parish Criminal District Court. THE CCS CONTRACT Proceeding to the legal issues, the City argues that the contract is void because state law prohibits the Sheriff from entering into it or, alternatively, that the contract should be terminated pursuant to its own terms because the City has not appropriated funding for it.38 The Court will address each argument, guided by the foundational premise, agreed upon by all parties, that there must be constitutionally adequate medical and mental health care at OPP. A. Validity of the CCS Contract The City’s primary argument is that state law authorizes only the City, not the Sheriff, to contract for medical and mental health care services at OPP.39 The City relies on Louisiana Revised Statute § 15:703, which states that “the governing authority of each parish shall appoint annually a physician who shall attend the prisoners who are confined in parish jails whenever they are sick.” Id. § 15:703(A) (emphasis added). Alternatively, “[i]n lieu of appointing a physician, the governing authority of any parish may enter into a contract with a health care provider, licensed or regulated by the laws of this state, to provide requisite health care services, as required in this Section.” Id. 38 R. Doc. No. 791-1, at 1-2. R. Doc. No. 791-1, at 8-9. The City also argues that (1) the CCS contract is not binding on the City because the Sheriff lacked authority to bind the City and did not comply with contracting requirements contained in the City’s Home Rule Charter for appropriation of funds as required by the contract, R. Doc. No. 791-1 at 9-11; and (2) the cost of the CCS contract exceeds the amount the City is obligated to pay pursuant to Louisiana statute. R. Doc. No. 791-1, at 11-12. 39 9 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 10 of 17 § 15:703(B) (emphasis added).40 According to the City, these “provisions establish that the sole authority to determine if a contract for a health care provider should be executed and, certainly, to enter into the contract rests with the City.”41 Consequently, the Sheriff purportedly “ventured outside his legal authority by entering into a long-term, high-priced Agreement with CCS absent approval by the City and prior to the City Council appropriating funds.”42 According to the City, the CCS contract “is void ab initio.”43 In response, the Sheriff asserts that “[t]here is no law which limits the Sheriff’s authority to provide healthcare to the prisoners which the City arrests and whom the Sheriff houses.”44 Furthermore, the Sheriff contends that the City should be estopped from invoking § 15:703 in this manner based on the City’s long-term failure to comply with its own duties pursuant to that statute.45 The Sheriff’s estoppel argument has some appeal. The City, having failed to pursue its appeal of the Consent Judgment, cannot plausibly claim to be surprised that the Sheriff would take affirmative steps to comply with the Consent Judgment’s requirements that he ensure 40 No party disputes that the City of New Orleans is the governing authority of Orleans Parish. As the issue is presented, the Court is not required to interpret what § 15:703 requires the City to do with respect to health care at OPP. Rather, the Court is presented only with the question of what effect, if any, the City’s clear statutory authority to contract for health care at OPP has on the Sheriff’s ability to enter into the CCS contract. The Court notes that § 15:703(D) states that the City’s “sole responsibility . . . mandated by the provisions of this Section with respect to providing health care services for prisoners shall be the appointment of a physician and the payment of the salary of that physician or its contractual obligations with a health care provider selected in accordance with this Section.” (emphasis added). 41 R. Doc. No. 791-1, at 9. 42 R. Doc. No. 791-1, at 9. 43 R. Doc. No. 791-1, at 11. 44 R. Doc. No. 807, at 5. 45 R. Doc. No. 807, at 6-7. 10 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 11 of 17 constitutionally adequate medical and mental health care as well as the staffing required to provide that care, including entering into a health care services contract.46 The record reflects that the Sheriff requested proposals for a health care services contract on March 17, 2014.47 The City filed this motion on March 19, 2015.48 It is utterly inexplicable that, as the Sheriff solicited, negotiated, executed, and implemented the contract with CCS, the City stood by for a year, only challenging the advisability of the Sheriff entering into the CCS contract and not his legal authority to enter into it. Nonetheless, for the reasons set forth below, the Court does not need to reach the question of estoppel to deny the City’s motion. Section 15:703 is plainly intended to promote health care for inmates by providing the City an opportunity to contract for it in lieu of appointing a physician for the jail. The City has not done so; instead, medical and mental health care is being provided to inmates pursuant to the CCS contract entered into by the Sheriff. Voiding the contract now, not having anything to take its place, would jeopardize all of the efforts that have been expended to date to meet constitutional standards with respect to inmate medical and mental health issues.49 Furthermore, § 15:703 allows the City to contract for health care at OPP, but it is completely silent as to the Sheriff. It is not apparent why the City’s unexercised authority to contract for health care should preclude the Sheriff from contracting to comply with his independent duty to provide medical and mental health care to inmates in his custody. E.g., Jones v. St. Tammany Parish Jail, 46 R. Doc. No. 466, at 24, 31, 34. R. Doc. No. 791-6, at 1. 48 R. Doc. No. 791. 49 This Court once again cannot emphasize enough the remarkable efforts made by the Monitors to bring about meaningful change at the prison. Their participation has been a critical part of the effort to achieve constitutional standards at OPP. 47 11 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 12 of 17 4 F. Supp. 2d 606, 613 (E.D. La. 1998) (“Under Louisiana law, it is the Sheriff’s office that has the obligation to provide medical care for the prisoners.”); Landry v. E. Baton Rouge Parish Sheriff’s Office, No. 14-733, 2015 WL 1033767, at *2 (La. App. 1 Cir. Mar. 9, 2015) (“Under Louisiana law, confining authorities, such as a sheriff in charge of a parish jail, still maintain a legal obligation to provide medical treatment for prisoners.”). Certainly, the Court would not read § 15:703 to absolve the Sheriff of his duty to provide medical care to inmates at OPP if the City had contracted for such care. See Landry, 2015 WL 1033767, at *2 (rejecting an argument that “because [§ 15:703] requires the governing authority of each parish to arrange and pay for the health care services provided to prisoners confined in parish jails, the Louisiana Legislature relieved [a sheriff] of responsibility regarding the health care so provided”). The Court likewise declines to read § 15:703 as interfering with the Sheriff’s ability to comply with his duty to provide care by contracting for medical and mental health services when the City has not done so. Constitutionally adequate medical and mental health care, as well as sufficient staffing to provide that care, cannot be delayed until the City contracts for it at some indeterminate point in the future. Were the Court to declare the CCS contract to be void, there would be a real possibility that the Sheriff would be unable to comply with the Consent Judgment. There is furthermore an absence of any clear indication from the Louisiana legislature or courts that § 15:703 should be interpreted to have that effect.50 The City’s motion to declare the CCS contract null and void should be denied.51 50 The City refers to Louisiana Revised Statute § 13:1375, which authorizes the Sheriff “to employ a physician to care for the inmates of the parish prison of the parish of Orleans.” R. Doc. No. 791-1, at 9 n.22. But that statute is specifically addressed to retention of a physician for $5,000.00 per year at the state’s expense and has little obvious bearing on the relationship between the Sheriff and the City. 51 The City raises other arguments that do not implicate the validity of the CCS contract and are easily rejected. 12 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 13 of 17 B. Termination of the CCS Contract In the alternative, the City contends that the CCS contract should be terminated pursuant to its terms. Article 9.1 of the CCS contract governs termination if the City fails to appropriate funding: 9.1 TERMINATION FOR LACK OF APPROPRIATIONS. It is understood and agreed that this AGREEMENT shall be subject to annual appropriations by City of New Orleans. 9.1.1 Recognizing that termination for lack of appropriations may entail substantial costs for CCS, the OPSO shall act in good faith and make every effort to give CCS reasonable advance notice of any potential problem with funding or appropriations. 9.1.2 If future funds are not appropriated for this AGREEMENT, and upon exhaustion of existing funding, the OPSO may terminate this AGREEMENT without penalty or liability, by immediately providing a written notice to CCS.52 The contract also allows either the Sheriff or CCS to terminate it without cause upon 120 days First, the City cites Louisiana Revised Statute § 15:705(E), which states that “a parish governing authority shall not be liable to pay to a health care provider for health care services provided to a prisoner in an amount greater than the lesser of the actual amount billed by the health care provider, one hundred ten percent of the Medicare rate of compensation, or the health care provider’s actual costs, unless the rate of compensation for such health care services is subject to a contractual agreement entered into between the parish governing authority and the health care provider.” The City contends that the price of the CCS contract “far exceeds” this statutory limitation. R. Doc. No. 791-1, at 11. The Sheriff responds that it is improper “to take the entire cost of the [CCS] contract to provide a medical and mental health program, divide it among a number of prisoners, and then treat it as if that is the cost of healthcare to each prisoner.”R. Doc. No. 807, at 4. Section 15:705(E) potentially implicates the City’s fiscal responsibility for the CCS contract, but not whether the Sheriff validly entered into it. At any rate, the City has not established at this time that it has overpaid for “health care services provided to a prisoner,” so any interpretation of § 15:705(E) would be premature. The City also contends that the City cannot be bound by the CCS contract because it did not authorize the Sheriff to act on its behalf and because the Sheriff did not use the City’s contracting procedures. R. Doc. No. 791-1, at 9-10. This contention misses the point, however; the City’s argument does not implicate the validity of the contract between the Sheriff and CCS, nor does it displace the City’s independent state-law obligation to fund medical and mental health care at OPP. 52 R. Doc. No. 791-10, at 21. 13 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 14 of 17 written notice,53 and to terminate it for failure to comply with any provision of the contract upon 60 days written notice, subject to an opportunity to address the basis for the termination.54 The City has not appropriated funds for the CCS contract; consequently, it contends that the Court should terminate the contract pursuant to Article 9.1.2.55 In response, the Sheriff does not address Article 9.1.2 of the CCS contract except perhaps to assert that “the City Council has acted recklessly in failing to allocate any funds for the provision of healthcare of the City’s inmates, [but] 53 R. Doc. No. 791-10, at 22. R. Doc. No. 791-10, at 21-22. Specifically, the CCS contract provides that: 9.3 TERMINATION FOR CAUSE. The AGREEMENT may be terminated for cause under the following provisions: 9.3.1 TERMINATION BY CCS. Failure of the OPSO to comply with any provision of this AGREEMENT shall be considered grounds for termination of this AGREEMENT by CCS upon sixty (60) days advance written notice to the OPSO specifying the termination effective date and identifying the “basis for termination.” The OPSO shall pay for services rendered up to the date of termination of the AGREEMENT. Upon receipt of the written notice, the OPSO shall have ten (10) days to provide a written response to CCS. If the OPSO provides a written response to CCS which provides an adequate explanation for the “basis for termination” and the OPSO cures the “basis for termination” to the satisfaction of the CCS, the sixty (60) day notice shall become null and void and this AGREEMENT will remain in full force and effect. Termination under this provision shall be without penalty to CCS. 9.3.2. TERMINATION BY OPSO. Failure of CCS to comply with any provision of this AGREEMENT shall be considered grounds for termination of this AGREEMENT by the OPSO who shall provide sixty (60) days advanced written notice specifying the termination effective date and identifying the “basis for termination.” The OPSO shall pay for services rendered up to the date of termination of the AGREEMENT. Upon receipt of the written notice CCS shall have ten (10) days to provide a written response to the OPSO. If CCS provides a written response to the OPSO which provides an adequate explanation for the “basis of termination,”or cures the “basis for termination” to the satisfaction of the OPSO within the time specified but not less than fifteen calendar days, the notice shall become null and void and this contract will remain in full force and effect. Termination under this provision shall be without penalty to the OPSO. R. Doc. No. 791-10, at 21-22. 55 R. Doc. No. 791-1, at 11; R. Doc. No. 817, at 4-5. 54 14 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 15 of 17 the City Council’s budgetary process has no legal effect on either the Sheriff of the Parish of Orleans or this Court.”56 Pursuant to the plain language of Article 9.1.2, the Sheriff may terminate the contract immediately upon written notice to CCS “[i]f future funds are not appropriated for [the contract], and upon exhaustion of existing funding.”57 Clearly the City’s unwillingness to appropriate funds for the CCS contract is a precondition to the Sheriff’s discretionary termination of the contract pursuant to Article 9.1.2, but standing alone that fact does not require that the Sheriff terminate the contract. Moreover, because the City has failed to provide an alternative to the CCS contract, immediate termination of the contract would disrupt medical or mental health treatment at OPP. On numerous occasions, this Court has advised the parties that such a disruption would be unacceptable for obvious reasons, not the least of which is that the Sheriff could not comply with the Consent Judgment. Constitutionally adequate medical and mental health care must be provided to inmates at OPP. The City must fund medical and mental health care at OPP. E.g., Amiss v. Dumass, 411 So. 2d 1137, 1141 (La. App. 1 Cir. 1982), writ denied, 415 So. 2d 940 (1982). The City is forewarned; the Court will not permit the Orleans Parish Prison to fall short of constitutional standards because of inadequate funding by the City. Until there is some other viable proposal on the table, the CCS contract is the only existing means of providing medical and mental health care and the City must continue paying for it pursuant 56 57 R. Doc. No. 807, at 3. R. Doc. No. 791-10, at 21 (emphasis added). 15 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 16 of 17 to its state-law obligation. Simply put, the City has not yet offered a constitutionally adequate means of providing such care outside the CCS contract. C. Proceeding Forward Moving forward, not backward, is the only path acceptable to the Court. OPP must and will be brought into compliance with the Consent Judgment. The Court is agnostic as to how compliance is achieved, but by now it is obvious that any successful long-term solution will require cooperation and consensus among all of the stakeholders. The failure of the City and the Sheriff to maturely work together toward a common goal is a primary reason why implementation of the Consent Judgment continues to stall. The Court is informed that with the Monitor’s assistance, the City, the Sheriff, and CCS have begun a process to renegotiate a contract on terms that are more palatable to the City. The Court is hopeful that this is a step in the right direction and that the Sheriff will improve what has at times been an insufficient effort to facilitate this process. Notwithstanding the denial of the City’s motion, if the City is unable to reach an accord with CCS, it is clear that § 15:703(B) authorizes the City to contract for health care at OPP. Accordingly, the City has the legal authority to enter into a different contract with a health care provider that will allow the Sheriff to comply with the Consent Judgment. Negotiation of any such contract will require the active involvement of the Sheriff who is in a unique position to know what kind of services will ensure compliance with the Consent Judgment. The Court expects the Sheriff to cooperate with the City fully and in good faith if the City pursues this option. If the City does elect to enter into a different contract with a provider other than CCS, the onus will be on the Sheriff to take appropriate steps to avoid consequences associated with the existence of duplicative contracts 16 Case 2:12-cv-00859-LMA-MBN Document 837 Filed 05/29/15 Page 17 of 17 for health care at OPP. CONCLUSION For the foregoing reasons, IT IS ORDERED that the City’s motion to invalidate or to terminate the CCS contract is DENIED. New Orleans, Louisiana, May 29, 2015. ________________________________ LANCE M. AFRICK UNITED STATES DISTRICT JUDGE 17