Federal Judge Denies Motion To Disqualify Himself From Prison Health Care Settlement

Published: Friday, May 4, 2018 - 5:25pm

The federal judge overseeing a prison health care settlement in Arizona has declined a motion from the state to disqualify himself from the case.

Attorneys defending the Arizona Department of Corrections in the settlement wrote in their motion that Magistrate Judge David Duncan had “abandoned his role as a neutral arbiter.”

After several years of overseeing the Parsons v. Ryan case, on the eve of impending sanctions from the court, the state alleged Duncan had “pre-judged the evidence and veracity of Defendants' witnesses” and “relied on an unsubstantiated media report, internet research, and previously undisclosed ex parte communications that deny Defendants the right to have this matter adjudicated by a fair and impartial fact-finder.”

The “unsubstantiated media report” the state referenced was a whistleblower account published by KJZZ of health care conditions in Arizona prisons.

In their motion to disqualify, the attorneys wrote “Magistrate Judge Duncan’s acknowledged reliance on a media story and internet research violates the codes of judicial conduct.”

The state also complained that Duncan had yelled at them while reading the story in court.

Judge Duncan called the motion a “meritless distraction” and denied it.

“Amid Defendants’ continuing failure to meet many of the requirements of the Stipulation, defendants devote energy and time to an effort to remove the judge they chose to hold their feet to the fire,” Duncan wrote in his response.

The settlement process is now more than three years old, and Duncan has noted several times in court that at the beginning of the process, both parties chose him to be the enforcer of the agreements or “stipulation” in the case.

“Sometimes the Court’s fire is necessarily hot,” Duncan wrote, “and it must surely continue to grow warmer with each failed promise and false representation of a path to compliance.”

At a status hearing in 2017, Duncan rejected the idea that he was not able to make a judgment on what to investigate in the case.

“It’s not as if I’m trying to put my nose where it doesn’t belong,” Duncan said. “I’m putting my nose where you all asked me to put it. You asked for me to be the person who would preside in this case, so you consented to me,” the judge said to the two parties in the settlement. “You chose me, and you chose somebody who didn’t just fall off the turnip cart.”

The judge went on to list his credentials and decades of experience practicing law.

“It’s as if over 30 years of practice I have learned some things about how to look at a situation and try to make intelligent decisions to help people accomplish what is our common obligation — and that is to comply with the law,” Duncan said.

Duncan said the defense was correct to note in their filing that he was “upset.”

“The judge is upset,” Duncan said, “because I participated in a resolution of a case that I really had full expectation it would not have me — years out — trying to accomplish what is fundamental.”
Judge Duncan also denied the attorney’s motion for a chief judge to rule on the motion to disqualify.

Hearings continue in the settlement as the state continues to fail agreed upon performance benchmarks and faces millions of dollars in potential fines.

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