JANET RENO Attorney General of the United States ISABELLE KATZ PINZLER Acting Assistant Attorney General Civil Rights Division STEVEN H. ROSENBADM Chief Special Litigation Section MELLIE H. NELSON Deputy Chief Special Litigation Section MARK S. MASLING Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section Room 1714 P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6252

JANET NAPOLITANO
United States Attorney District of Arizona LEE STEIN
Assistant U.S. Attorney
4000 U.S. Courthouse
230 North First Avenue
Phoenix, Arizona 85025
(602) 514-7500

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RECEIVED J K COPY

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CLERK U 8 DISTRICT

US v. State of Arizona PC-AZ-002-002

UNITED STATES DISTRICT

DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,
Plaintiff, v.
STATE OF ARIZONA; J. FIFE SYMINGTON, III, Governor of Arizona; TERRY L. STEWART, Director, Arizona Department of Corrections; DALE COPELAND, Warden, Arizona Center for Women and ASPC-Alhambra; JEFF HOOD, Warden, ASPC-PERRYVILLE; JOHN HALLAHAN, Warden, ASPC-Tucson,
Defendant.

CIV97- 476PHXR0S
COMPLAINT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF ARIZONA; J. FIFE SYMINGTON, III, Governor of Arizona; TERRY L. STEWART, Director, Arizona Department of Corrections; DALE COPELAND, Warden, Arizona Center for Women and ASPC-Alhambra; JEFF HOOD, Warden, ASPCPerryville; JOHN HALLAHAN, Warden, ASPC-Tucson;
Defendants.

Civil Action No.

COMPLAINT 1. This action is brought by the Attorney General, on behalf of the United States, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 QL seq. , to enjoin the named Defendants from depriving women residing in the facilities comprising the Arizona Department of Corrections women's prisons (hereinafter "ADOC"), of their rights, privileges and immunities secured and protected by the Constitution of the United States.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345. 3. The United States is authorized to bring this action pursuant to 42 U.S.C. § 1997a.

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4. The Attorney General has certified that all prefiling requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated in this Complaint by reference.
5. Venue in the District of Arizona is proper pursuant to 28 U.S.C. § 1391. All claims set forth in the Complaint arose in said District.
DEFENDANTS 6. Defendant State of Arizona owns and operates the state prisons housing women prisoners within the State of Arizona, and is the governmental entity with ultimate authority and control over conditions within the state prison system. 7. Defendant J. Fife Symington, III is the Governor of Arizona and heads the Executive Branch of Arizona's government. He selects and appoints the Director of the Department of Corrections. 8. Defendant Terry L. Stewart is the Director of the Arizona Department of Corrections ("ADOC") and exercises administrative control of, and responsibility for, ADOC. 9. Defendant Dale Copeland is Warden of ADOC women's prison Arizona Center for Women and is Warden of ADOC women's prison ASPC-Alhambra. 10. Defendant Jeff Hood is Warden of ADOC women's prison ASPC-Perryville. 11. Defendant John Hallahan is Warden of ADOC women's prison ASPC-Tucson.
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12. The individually named defendants in paragraphs 7, 8, 9, 10 and 11 above are sued only in their official capacities as officers and officials of the State of Arizona.
13. ADOC is an institution within the meaning of 42 U.S.C. § 1997(1) .
14. Defendants are legally responsible, in whole or in part, for the operation of and conditions at ADOC.
15. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 16. Defendants are failing to protect ADOC Women inmates from sexual misconduct by correctional officers and staff. ADOC women inmates are subjected to a variety of sexual misconduct from Defendants' employees, including sexual relationships, sexual assaults, sexual touching and fondling, and without good reason, frequent, prolonged, close-up and prurient viewing during dressing, showering and use of toilet facilities. 17. Defendants have been consciously aware of, but deliberately indifferent to, the factual allegations set forth in paragraph 16 for a substantial period of time. 18. Defendants have failed to address adequately the misconduct described in paragraph 16 though they consciously knew of that misconduct.
VIOLATIONS ALLEGED 19. The acts and omissions alleged in paragraphs 16 through 18 violate the rights, privileges and immunities of women
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prisoners confined in ADOC prisons that are secured or protected by the Constitution of the United States and deprive those prisoners of such rights, privileges and immunities.
20. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 16 through 18 that deprive the women prisoners confined by ADOC of their rights, privileges or immunities secured or protected by the Constitution of the United States. Such conduct and practices have and will cause women prisoners confined by ADOC irreparable harm.
PRAYER FOR RELIEF 21. The Attorney General is authorized under 42 U.S.C. § 1997a to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, practices and omissions set forth in paragraphs 16 through 18 above, and that this Court require Defendants to take such actions as will ensure lawful conditions of confinement are afforded to inmates in ADOC's women's prisons. The United States further prays that this Court grant such other and further
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equitable relief as it may deem just and proper. Respectfully submitted,
S/s,
JANET "RENO ^ t o r n e y General of the 'United States

JAN0T NAPOUITANO Unieed States Attorney District of Arizona

ISABELLE KATZOPINZI2ER Acting Assistant Attorney
General Civil Rights Division

LEE STEIN "Assistant U.S. Attorney District of Arizona

STEVEN fi. ROSENBAUM Chief Special Litigation Section

MELLIE H. NELSON Deputy Chief Special Litigation Section

MARK S. MASLING

V

Senior Trial Attorney

U.S. Department of Justice

Civil Rights Division

Special Litigation Section

Room 1714

P.O. Box 66400

Washington, D.C. 20035-6400

(202) 514-6252

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of tfje iVttorncg (ietteral
BasJjington, B. OL 20530
CERTIFICATE OF THE ATTORNEY GENERAL
I, Janet Reno, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. The State of Arizona, et al. f I have complied with all subsections of 42 U.S.C. § 1997b(a)(l). I certify as well that I have complied with all subsections of 42 U.S. C. § 1997b (a) (2) . I further certify, pursuant to 42 U.S.C. § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United States.
In addition, I certify that I have the "reasonable cause to believe" set forth in 42 U.S.C. § 1997a to initiate this action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997, e_L seq. , have been met.
Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.
Signed this f? day of .February, 1997, Washington, D.C.
.JANET RENO Attorney General of the United States

 
 Arizona Memo
BILL LANN LEE Acting Assistant Attorney General STEVEN H. ROSENBAUM MELLIE NELSON MARK MASLING SHELLEY JACKSON CHRISTY LOPEZ U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, DC 20035 (202) 514-6252 JOSE DE JESUS RIVERA United States Attorney LEE STEIN Assistant U.S. Attorney 4000 U.S. Courthouse 230 North First Avenue Phoenix, Arizona 85025 (602) 514-7506
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, Plaintiff,
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v. STATE OF ARIZONA et al., Defendants. Civil Action No. 97-476-PHX-ROS
UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT
TABLE OF CONTENTS OF THE UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANTS' SUMMARY JUDGMENT MOTION PAGE PRELIMINARY STATEMENT ................................... 1 ARGUMENT ................................................ 5 I. A SEXUALIZED ENVIRONMENT, INCLUDING SEXUAL CONTACT, SEXUAL HARASSMENT, AND INVASIONS OF PRIVACY, PERVADES ADOC FEMALE PRISONS AND VIOLATES INMATES' CONSTITUTIONAL RIGHTS ............. 5 A. Defendants' Summary Judgment Motion Should Be Decided Under The Standards Articulated By The Sole Federal Decision To Have Addressed The Same Issues Raised By United States v. Arizona ............. 5 B. Forced Sexual Contact

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Violates the Eighth Amendment .................. 9 C. In the Circumstances of This Case, Sexual Contact Without Force Violates the Eighth Amendment ............ 10 D. Sexual Harassment Violates the Eighth Amendment .................. 15 E. Female Inmates Have A Limited Right to Privacy That Defendants are Violating .................. 17 II. DEFENDANTS ARE LIABLE FOR THE SEXUAL MISCONDUCT AND INVASIONS OF PRIVACY OCCURRING IN THEIR PRISONS, BOTH VICARIOUSLY AND BECAUSE OF THEIR DELIBERATE INDIFFERENCE TO INMATES' CONSTITUTIONAL RIGHTS A. Defendants Are Deliberately Indifferent To Sexual Misconduct And Invasions of Inmate Privacy ................ 23 B. Defendants Are Vicariously Liable For The Acts of Their Employees and Agents ..................... 29 PAGE 1. Vicarious Liability Applies In Section 1983 Cases Seeking Only Prospective, Injunctive Relief ....... 30
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2. Vicarious Liability
Applies in CRIPA Cases .................... 35
III. THE UNITED STATES HAS STANDING
TO BRING THIS SUIT, AND
THIS COURT HAS ALREADY INDICATED
ITS REJECTION OF DEFENDANTS'
STANDARD OF PROOF ARGUMENT ......................... 37
A. The United States Has Constitutional
Standing To Bring This Suit ..................... 38
B. The United States Has Statutory
Standing To Bring This Suit ..................... 40
C. This Court Has Already Indicated
Its Rejection of Defendants'
Standard of Proof Argument ...................... 43
IV. THE GOVERNOR IS A PROPER PARTY ...................... 46
CONCLUSION ............................................... 48
UNITED STATES' MEMORANDUM IN
OPPOSITION TO DEFENDANTS' SUMMARY JUDGEMENT MOTION
PRELIMINARY STATEMENT
Female inmates in Arizona's prisons are incarcerated in a sexually charged environment of daily sexual harassment and needless invasions of privacy, and in which there is a continuous pattern of sexual contact between inmates and staff, including serious sexual assaults. This pervasive and destructive environment violates the Fourth and Eighth Amendments of the United States Constitution.
In the accompanying Statement of Facts (SOF), the United States presents evidence of forced sexual contact (including at least five rapes and 30 sexual assaults), unforced sexual contact (including at least 65 incidents of sexual intercourse, oral sex, or other sexual contact), numerous incidents of sexual harassment, and daily invasions of privacy that include both prurient viewing, and unwarranted, prolonged, close up, observation by male staff of female inmates showering, toileting, and dressing.(1) SOF ## 1-4.

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Since 1992, at least 60 people (including ADOC and contract employees) who worked with Arizona female inmates have been fired, resigned, or have been disciplined as a result of sexual misconduct. SOF ## 9-14. In addition, many ADOC and contract employees have engaged in sexual misconduct and invasions of privacy without being disciplined. Many ADOC investigations of sexual misconduct are ongoing, including allegations of misconduct that arose during discovery. SOF # 9.
Sexual misconduct and invasions of privacy in Arizona women's prisons: (a) are systemic; (b) involve more than just a few problem employees, (c) occur at levels far beyond what would be expected in a prison system that made a serious, concerted effort to minimize sexual misconduct and invasions of privacy; and (d) result from ADOC's inadequate staff training, inadequate misconduct investigations, inadequate inmate education about sexual misconduct, failure to eliminate one-on-one staffing situations and to take other proactive measures to prevent sexual misconduct, failure to adopt a "knock and announce" policy to protect inmate privacy, failure to assist misconduct victims, and punishment of inmates for reporting misconduct. SOF ## 23-34.
Defendants' summary judgment motion ignores the overwhelming evidence of sexual misconduct and the serious physical and psychological harm it inflicts on female inmates. That evidence raises disputed issues of material fact that preclude a grant of summary judgment. Further, Defendants claim that the facts establishing a pattern of sexual contact, sexual harassment and needless invasions of privacy are irrelevant is unfounded. Defendants' legal arguments are fundamentally flawed, for several reasons:
First, forced sexual contact plainly violates inmates' constitutional rights.
Second, either on its own, or when considered as part of an overall pattern of sexual misconduct, sexual harassment violates inmates' constitutional rights.
Third, sexual contact occurring "without force" -- assuming the highly dubious proposition that inmates can legally or factually consent to sex with a jailer -- violates inmates' constitutional rights under the circumstances that exist in this case: Defendants know that such relationships can cause severe harm to some inmates, there is a pattern of sexual contact resulting in serious harm to some inmates, and Defendants have deliberately refused to take the necessary steps to minimize sexual contact occurring without force.
Fourth, Ninth Circuit cases directly on point -- including a case decided only a few months ago -- state explicitly that inmates have a limited constitutional right to privacy, including the right not to be subject to close-up, prolonged viewing by members of the opposite sex while toileting, showering, and dressing. Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998).
Defendants make several claims that various legal doctrines insulate them from liability even if there is a pattern of sexual misconduct at their prisons. Each of these legal claims fails:
a. Defendants devote much of their summary judgment motion to the argument that they cannot be held deliberately indifferent to sexual misconduct because they train their employees, have an adequate grievance system, and respond appropriately to substantiated misconduct. The United States, however, has offered contrary evidence on each of those issues, SOF ## 35-46, 67-69, 94-96, raising disputed issues of material fact that preclude summary judgment.
b. Defendants attempt to insulate themselves from the pattern of sexual misconduct extant in their women's prisons by claiming that they are not vicariously liable for the acts of their agents and employees. The law, however, says otherwise. The Civil Rights of Institutionalized Persons Act

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(CRIPA) authorizes injunctive relief against any party necessary to ensure institutionalized persons' constitutional rights. In any event, even if the Court accepts Defendants' erroneous argument that Section 1983 case law governs CRIPA actions, two recent Ninth Circuit cases hold explicitly that in Section 1983 actions seeking only prospective injunctive relief, Defendants are vicariously liable for the unconstitutional acts of their employees and agents. In this case, the United States seeks only prospective injunctive relief. Complaint ¶ 21 and Prayer for Relief.
c. Finally, Defendants' "standing" claim regarding the standard of proof in CRIPA cases is misplaced. In its July 9, 1997, Order denying Arizona's motion to dismiss, this Court quoted with approval a case that commented that the United State's burden of proof in a CRIPA case is the same as any other litigant's burden raising the same issues. All courts to have addressed the issue have held similarly.
The substantial factual evidence of sexual misconduct and invasions of privacy presented by the United States, and the failure of Defendants' legal arguments, preclude summary judgment in this case.
ARGUMENT
I. A SEXUALIZED ENVIRONMENT, INCLUDING
SEXUAL CONTACT, SEXUAL HARASSMENT,
AND INVASIONS OF PRIVACY, PERVADES
ADOC FEMALE PRISONS AND
VIOLATES INMATES' CONSTITUTIONAL RIGHTS
A. Defendants' Summary Judgment
Motion Should Be Decided Under
The Standards Articulated By
The Sole Federal Decision To Have
Addressed The Same Issues
Raised By United States v. Arizona
Prison conditions are subject to Eighth Amendment scrutiny, Helling v. McKinney, 509 U.S. 25, 32 (1993). Those conditions must not violate "evolving standards of decency," Rhodes v. Chapman, 452 U.S. 337, 346 (1981), for "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Helling, 509 U.S. at 31. The one federal court that applied these standards to a claim of systemic sexual misconduct throughout a female prison found that female inmates' Eighth Amendment rights were violated by systemic sexual misconduct and invasions of privacy. Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994), vacated in part on other grounds and remanded, 93 F.3d 910 (D.C. Cir. 1996), cert. denied, 117 U.S. 1552 (1997) (hereafter, "D.C. Women Prisoners>"). D.C. Women Prisoners was a class action in which female inmates in the District of Columbia alleged, among other things, that their Eighth

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Amendment rights were violated by staff sexual misconduct.
In ruling in favor of the inmates, the district court considered relevant the following evidence of sexual misconduct:
forceful sexual activity, unsolicited sexual touching, exposure of body parts or genitals and sexual comments ... a general acceptance of sexual relationships between staff and inmates which creates a 'sexualized environment' where 'boundaries and expectations or behavior are not clear' ... a lack of privacy [where] some male officers fail to announce themselves when appearing in areas where women undress ...
Id. at 639-40. The court also considered evidence of the psychological harm caused women by the various forms of sexual misconduct evidenced at the prison:
The effect of sexual harassment on women prisoners is profound. The abuse has a significant impact on a woman's concentration, and it lowers confidence and self-esteem. It leads to anxiety ... nervousness ... [anger and fear] ... depression, nausea, frequent headaches, insomnia and ... fatigue ... For women who have a history of sexual abuse the harassment often brings back memories of the prior abuse. This can lead to severe depression.
Id. at 642-43. The United States believes that D.C. Women Prisoners' legal and factual treatment of the sexual misconduct claim should serve as a model for how this Court should analyze the identical claim made by the United States against Defendants here.
In this case, the United States will present evidence of at least 34 instances of forced sexual activity and unsolicited sexual touching (SOF # 1), frequent incidents of exposure of body parts and sexual comments (SOF # 3), at least 65 sexual relationships (SOF # 2), daily invasions of privacy (SOF # 4), and severe psychological harm resulting from such acts (SOF ## 165-190).
In analyzing the evidence of sexual misconduct and resulting harm, D.C. Women Prisoners noted that, "the combination of some conditions of confinement may constitute an Eighth Amendment violation though each would not do so alone," 877 F. Supp. at 663, citing Wilson v. Seiter, 501 U.S. 294, 304 (1991). The district court then found that the evidence showed "a level of sexual harassment which is so malicious that it violates contemporary standards of decency," that forced sexual contact violated the Eighth Amendment, and that, "in combination, vulgar sexual remarks ... the lack of privacy ... and the refusal of some male guards to announce their presence in the living areas of women prisoners constitute a violation of the Eighth Amendment since they mutually heighten the psychological injury of women prisoners." Id. at 664-65.
D.C. Women Prisoners rejected the defendants' claim that they were not deliberately indifferent to sexual misconduct because -- just as Defendants claim here -- they had policies and procedures prohibiting misconduct, trained their staff, and had an inmate grievance procedure. Id. at 640. The court rejected this defense, finding that training was deficient, investigations of misconduct were deficient, victims were placed in a punitive environment (protective custody), and that defendants' response to misconduct was inadequate. Id. at 665-66. Here, the United States has produced substantial evidence of deficient training (SOF ## 35-46), deficient investigations (SOF ## 54-66), placement of victims in a punitive environment (SOF ## 98-102, 104, 106-116), and inadequate responses to sexual misconduct (SOF ## 67-69).
Thus, under the factual and legal analysis ofD.C. Women Prisoners, the United States has raised

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disputed issues of material fact concerning both sexual misconduct and Defendants' deliberate indifference to that misconduct, precluding a grant of summary judgment. Although D.C. Women Prisoners was vacated in part and remanded by the D.C. Circuit Court of Appeals, the only aspect of the district court's opinion relating to sexual misconduct that was vacated dealt with the relief awarded plaintiffs, not the district court's factual findings and legal analysis, which was left undisturbed. 93 F.3d at 929-31.
Of course, D.C. Women Prisoners is not the only federal decision addressing issues of sexual contact, sexual harassment or invasions of privacy. However, all other federal cases of which the United States is aware addressed sexual misconduct or invasions of privacy only in the context of individualized incidents of alleged misconduct. We discuss below other relevant cases, including cases cited by Defendants.
B. Forced Sexual Contact
Violates the Eighth Amendment
Forced sexual contact by staff against inmates violates the Eighth Amendment. See, e.g., Ware v. Jackson County, 150 F.3d 873 (8th Cir. 1998) (sexual assault violates Eighth Amendment); Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (in case of forced oral sex and sexual assault, "plaintiffs' deprivations from sexual assaults are sufficiently serious to constitute a violation under the Eighth Amendment"); Mathie v. Fries, 935 F. Supp. 1284, 1299-1300 (E.D.N.Y. 1996) (in case of sodomy and harassment, "sexual assault, coercion, and harassment ... violate contemporary standards of decency and can cause severe physical and psychological harm"), aff'd 121 F.3d 808 (2d Cir 1997); Thomas v. District of Columbia, 887 F. Supp. 1, 4 (D.D.C. 1995) (same, in case of two instances of forced touching of penis and sexual harassment).
The United States has presented the Court with specific facts evidencing a pattern of sexual assaults by staff against Arizona female inmates. SOF # 1 (describing more than 34 incidents of forced sexual contact by staff against female inmates, including five rapes, forced oral sex and forced touching of the genitals). Defendants repeatedly claim that any sexual misconduct that has occurred in their prisons consists of "isolated" incidents. Def. Br. at pages 3, 15, 17, 18, 19. The United States' evidence of a pattern of sexual assaults raises a disputed issue of material fact, precluding summary judgment.
C. In the Circumstances of This Case, Sexual Contact Without Force Violates the Eighth Amendment
The United States has presented the Court with specific facts evidencing a pattern of sexual contact without force between female inmates and ADOC employees. SOF # 2 (describing more than 65 incidents of sexual contact with staff including intercourse and oral sex). Defendants, citing Frietas v. Ault, 109 F.3d 1335, 1338-9 (8th Cir. 1997), claim that sexual contact between jailers and female inmates where no force is used does not violate inmates' Eighth Amendment rights. Def. Br. at pp. 2627. As we explain below, Frietas is inapposite here.
The expert witnesses in this case, including Defendants' expert psychologist, as well as ADOC Director Terry Stewart and other ADOC employees, agree that there is no such thing as 'consensual' sexual activity between staff and inmates. SOF ## 194-200. An ADOC psychiatrist stated his reasons for that conclusion as follows:
First . . . the relationship can never be equal. That clearly an inmate by their role as inmate is vulnerable and not in a parity situation with the jailor . . . who has all kinds of authority and power and potential

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means to exert influence and pressure . . . The jailkeeper . . . [is] mandated by law and by society to fulfill a certain function and that is not to fulfill their own personal sexual needs. . . . On an individual level, if in fact, as you point out that even up to 80% of the female inmates have a history of sexual or other kinds of abuse in the past, then very likely some and maybe many, of those inmates have sufficient degree of disturbance in their identity, their self esteem . . . in their own sexuality that would make them vulnerable and not as able to make proper decisions. (Shinkoda Deposition pp. 23-24).
There are several reasons why sexual contact between inmates and staff, even if no force was used to obtain that contact, cannot be considered 'consensual' either legally or factually.
First, there is a vast power differential between staff and inmates. Because inmates cannot legally or factually 'consent' to sexual contact with their jailers,(2) it is fair to equate the absence of consent with an implied use of force.(3) This legal theorem -- that inmates cannot legally or factually consent to sexual contact with staff -- based on the testimony of expert witnesses and ADOC employees, can be the predicate for a finding of an Eighth Amendment violation.
Second, an extremely high percentage of Arizona female inmates have histories of physical and/or sexual abuse, or are mentally ill. SOF ## 128-136, 161-164. Inmates with such histories are more vulnerable to sexual predators, are less likely to be able to ward off sexual predators, and are subject to an increased risk of harm from "unforced" sexual contact with staff occurring without force. SOF ## 137-160. The United States' evidence shows that Defendants are aware of all these facts, yet have failed to take the necessary steps to prevent the harm that can result from sexual contact without use of force. SOF ## 35-164. Because the Defendants are subjectively aware of inmates' past histories of abuse and mental illness, the inmates' vulnerability to sexual approaches, and the risk of serious harm from sexual contact without force, and because Defendants failed to take reasonable steps to prevent that harm, they are deliberately indifferent to inmate rights in violation of the Eighth Amendment.
The United States also has evidence that ADOC female inmates who have engaged in sexual contact with staff without force being used have had histories of physical or sexual abuse and mental illness, and that they have incurred serious psychological harm as a result of the sexual contact. SOF ## 172-175.
One example of harm resulting from sexual contact without force is summarized in SOF # 175 and described at length in the reports of the United States' expert psychiatrist Dr. Susan Fiester and Defendants' expert psychologist Dr. Judith Becker (Exhibits D and F of the United States' Exhibits in Opposition to Defendants' Motion for Summary Judgment, pages 19-22, 20-24, respectively). In their joint interview of inmate # 6, these experts learned that this inmate, currently housed in the Flamenco mental health unit for seriously mentally ill inmates, had a history of psychiatric hospitalization beginning at age 11. She was sexually abused once or twice a week by her stepfather at ages 9-11. He would pay her $20 for oral sex or to let him touch her breasts and genitals. She was violently raped at age 15. After age 11 she lived in seven or eight foster homes. She married at age 16, and her husband beat her regularly, sometimes to the point of her losing consciousness. On one occasion he hit her with a baseball bat, necessitating plastic surgery, and he once shot her in the leg. She reported up to 100 suicide attempts. This inmate engaged in touching, fondling, and oral sex, without force being used, with an ADOC officer in 1994. As a result of that sexual contact, Inmate 6 cut her wrists so badly that she required sutures, and she had another serious suicide attempt in 1997. She experienced decreased selfesteem, humiliation, and depression from her sexual contact with the ADOC officer. Under these circumstances, the officer with whom she had sexual contact violated her Eighth Amendment rights -- as did Defendants when they failed to take the necessary and reasonable steps to prevent that sexual contact from occurring.(4)

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This is but one of many examples of harm resulting from sexual contact between inmates and staff without physical force. See expert reports of United States' and Defendants' expert psychiatrists and psychologist. Defendants are liable for the abuse of this woman by their officer. In addition, in these circumstances, where Defendants are aware of the risk of harm but fail to act to prevent such risk, Defendants are deliberately indifferent to the inmate's right to be free from sexual misconduct.
Defendants' reliance on Frietas v. Ault, 109 F.3d 1335 (8th Cir. 1997) is misplaced. With essentially no legal or factual analysis, Frietas held that voluntary sexual contact between a male inmate and female employee cannot constitute 'pain' under the Eighth Amendment. Id. at 1339. Frietas did not consider whether female inmates were legally or factually capable of 'consenting' to sexual contact with their jailers, nor did it consider inmates' past history of abuse and mental illness, their vulnerability to sexual approaches, the risk of harm from sexual contact, or Defendants' knowledge of those facts. This Court has before it considerably more information than did Frietas on the issue of the constitutionality of sexual contact occurring without force between female inmates and staff, evidence that allows this Court to reach a better reasoned, more firmly grounded opinion than was reached in that case.
Another critical distinction between Frietas and this case is that while the former addressed only a single claim of unforced sexual contact, United States v. Arizona concerns a pattern of systemic sexual contact both with and without force. The Eighth Amendment proscribes a pattern or practice in which, year after year after year, custodial staff have sexual contact with vulnerable female inmates that causes them significant harm, and prison officials know of inmates' vulnerability, but fail to act to protect them. Such a pattern violates "the evolving standards of decency that mark the progress of a maturing society." Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (standard for Eighth Amendment violations).
Finally, even if this Court held that sexual contact occurring without force could never violate the Eighth Amendment, it should allow the United States to present evidence of incidents of sexual contact occurring without force as evidence of a sexualized environment that serves to foster incidents of sexual contact with force, sexual harassment, and invasions of privacy. See D.C. Women Prisoners ("a general acceptance of sexual relationships between staff and inmates ... creates a 'sexualized environment' where 'boundaries and expectations or behavior are not clear'") 877 F. Supp. at 639-40; Ware v. Jackson County, 150 F.3d 873, 876-79 (8th Cir. 1998) (reciting considerable evidence of sexual contact without force in describing environment in which sexual assault occurred).
D. Sexual Harassment Violates the Eighth Amendment
Several cases have recognized that sexual harassment of inmates alone, even without sexual contact, may violate the Eighth Amendment, if that harassment causes serious harm. See Frietas v. Ault, 109 F.3d 1335, 1338-9 (8th Cir. 1997) ("sexual harassment or abuse of an inmate ... can, in certain circumstances [violate the Eighth Amendment] ... To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused 'pain'"); Chandler v. District of Columbia Department of Corrections, 145 F.3d 1355, 1360-61 (D.C. Cir. 1998) (citing with approval cases holding that verbal sexual harassment can violate the Eighth Amendment, if harm were sufficiently severe). Other courts have held that verbal sexual harassment, in combination with other sexual misconduct, may violate the Eighth Amendment. See Barney v. Pulsipher, 143 F.3d 1299, 1310 n.11 (10th Cir. 1998) ("Plaintiff's claims of verbal [sexual] harassment are only actionable '[i]n combination with' the [sexual] assaults"); Berry v. Oswalt, 143 F.3d 1127, 1133 (8th Cir. 1998) (Eighth Amendment claim stated when inmate "alleged that [officer] had attempted nonroutine pat downs and had verbally harassed her" and "presented evidence that these acts had caused her fear and frustration. The objective-pain component of the Eighth Amendment does not require significant injury."); D.C. Women Prisoners, supra, 877 F. Supp. at 664-5.

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Regardless of whether verbal sexual harassment alone or in combination with sexual assaults can violate the constitution, the United States has presented substantial evidence raising a disputed issue of material fact regarding the existence and extent of sexual harassment of Arizona female inmates. SOF # 3. The United States also has presented substantial evidence that sexual harassment of Arizona female inmates has caused these inmates serious harm. In the opinion of the United States' and Defendants' psychiatrists and psychologist, many of the inmates they interviewed had been seriously harmed by verbal sexual harassment. See SOF ## 176-183, and the expert reports of Drs. Susan Fiester, Jeffery Metzner, and Judith Becker.
E. Female Inmates Have A Limited Right to Privacy That Defendants are Violating
Defendants claim that inmates have no right to bodily privacy whatsoever, and that no matter what the circumstances, male staff may look at a naked female inmate while she is showering, toileting, or dressing, without violating her constitutional rights. Ninth Circuit cases, however, explicitly recognize an inmate's limited right to bodily privacy, and every Circuit (except the Seventh) to have addressed the issue has held that this right to bodily privacy includes a limited right not to be seen naked by member of the opposite sex under certain circumstances.(5)
In 1963, the Ninth Circuit said:
we cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.
York v. Story, 324 F.2d 450, 455 (9th Cir. 1963) (invasion of privacy stated constitutional claim under section 1983). Citing York, Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985), the first Ninth Circuit case to address the issue of inmate privacy rights, held that male inmates' privacy rights were not violated because they were viewed by female guards by "infrequent and casual observation, or observation at a distance. Female guards ... do not stop for prolonged inspection [and] ... do not accompany male inmates to the ... showers." Grummett, 779 F.2d at 494-95 (emphasis added).
Subsequent circuit and district court cases in the Ninth Circuit have similarly recognized inmates' limited right to bodily privacy from opposite-sex staff. See, e.g., Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988) ("We recognize that incarcerated prisoners retain a limited right to bodily privacy ... infrequent and casual observation, or observation at a distance ... are not so degrading as to warrant court interference."); Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) ("The right to bodily privacy was established in this circuit in 1963 [citing York]. We extended this right to prison inmates in 1985 [citing Grummett]."); Huffman v. Fiola, 850 F. Supp. 833, 837 (N.D. Cal. 1994) ("The Ninth Circuit explicitly recognizes a prisoner's right to bodily privacy."); Galvan v. Carothers, 855 F. Supp. 285, 291 (D. Alaska 1994) (female inmate has right "to use the toilet without being observed by members of the opposite sex, and to shower without being viewed by members of the opposite sex") (citing Ninth Circuit cases), vacated on other grounds, 110 F.3d 68 (9th Cir. 1997 (table); Rodriguez v. Kincheloe, 763 F. Supp. 463, 470-71 (E.D. Wash. 1991) (inmates have limited right to bodily privacy, citing Ninth Circuit cases), aff'd 967 F.2d 540 (9th Cir. 1992) (table).
Defendants' claims that in Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997), the Ninth Circuit failed to recognize inmate privacy rights, and that Somers is the latest Ninth Circuit case on point, are incorrect. Def. Br. at p. 21. Somers was followed by Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998). Robino held that a Hawaii female prison could assign certain posts in the prison to be staffed by females only without violating male staff Title VII employment rights. Citing Somers, the Robino court said:

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a person's interest in not being viewed unclothed by members of the opposite sex survives incarceration ... each designated female-only post is residential and requires [the staff] to observe the inmates in the showers and toilet areas ... these six female-only posts are a reasonable response to the concerns about inmate privacy and allegations of abuse by male [staff].
Robino, 145 F.3d at 1111.
Thus, under the cases cited above, Arizona female inmates have a limited right to bodily privacy under which they may not be viewed pruriently, or at a close distance on a regular and prolonged basis by male staff while they shower, toilet or dress, absent legitimate penological justification.(6) The United States has presented evidence of inmate privacy violations by male officers, SOF ## 4, 83-88, raising disputed issues of material fact that preclude a grant of summary judgment.(7)
Defendants cite Somers, Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993)(en banc), and an unpublished decision by Judge McNamee(8) to support their contention that female inmates have no right to bodily privacy whatsoever.(9) These cases simply do not support Defendants' contention.
Jordan held that random cross-gender pat-down searches of female inmates violated the Eighth Amendment, because the prison knew of the past histories of physical and sexual abuse of female inmates and the harm cross-gender pat downs could cause. This analysis is identical to the United States' argument, outlined above, that sexual contact without force is an Eighth Amendment violation under the facts presented in this case.
In explaining why it decided the constitutionality of cross-gender pat down searches under the Eighth Amendment and not the Fourth Amendment, Jordan stated, "prisoners' legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited ... while the inmates here may have protected privacy interests ... we do not reach the Fourth Amendment claims." Id. at 1524-25. Thus, Jordan did not hold that inmates have no privacy rights. Similarly, Somers v. Thurman simply noted that in 1993 inmates' right to privacy was not clearly established; Somers nowhere suggests that female inmates have no right whatsoever not to be viewed naked by male staff.
Jordan's legal analysis of why cross-gender pat-down searches of female inmates violate the Eighth Amendment supports the United States' argument that under the facts presented in this case, opposite sex viewing of female inmates violates the Eighth Amendment. Jordan recognized that female inmates with histories of physical abuse react differently to cross-gender pat-down searches than male inmates, and that there is a great probability of harm from such searches. Id. at 1525.
In this case, Defendants' expert psychologist stated explicitly that being viewed naked by male staff can cause significant harm to female inmates:
Many women with histories of maltreatment are extremely sensitive to issues of privacy and violation of their privacy. Early on in their lives their sense of body integrity was invaded by the behaviors of their perpetrators. Being exposed to the invasion of privacy while dressing, showering, or using the toilet can cause flashbacks in some women of prior abuse experiences. In others it can cause embarrassment and a sense of shame, even if they have no history of prior maltreatment.
Report of Defendants' expert Dr. Judith Becker, pages 63-64. Dr. Becker concluded that some inmates she interviewed had in fact been harmed by invasions of privacy by male staff, and in the quotation cited

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above, she opined that some inmates were at serious risk of harm from such conduct. A serious risk of harm violates the Eighth Amendment, even if no harm has yet occurred. Farmer v. Brennan, 511 U.S. 825 (1994); Helling v. McKinney, 509 U.S. 25 (1993).
Moreover, the United States' evidence shows that certain female inmates have in fact been harmed by invasions of privacy by male staff, and that inmates face a serious risk of harm. SOF ## 184-190. Thus, under Jordan, the United States has raised a material issue of disputed fact regarding whether invasions of privacy by male staff precludes a grant of summary judgment.
II. DEFENDANTS ARE LIABLE FOR THE SEXUAL MISCONDUCT AND INVASIONS OF PRIVACY OCCURRING IN THEIR PRISONS, BOTH VICARIOUSLY AND BECAUSE OF THEIR DELIBERATE INDIFFERENCE TO INMATES' CONSTITUTIONAL RIGHTS
A. Defendants Are Deliberately Indifferent To Sexual Misconduct And Invasions of Inmate Privacy
The United States has presented the Court with substantial evidence that Defendants are deliberately indifferent to sexual misconduct and invasions of privacy. Most obviously, Defendants have admitted that they treat inmates as if they have no right to bodily privacy whatsoever, SOF ## 83-86, and Defendants go so far as to assert that male staff can view naked female inmates excessively or unnecessarily without violating their constitutional rights. SOF # 87. Defendants admit that male officers are instructed to walk unannounced into areas in which female inmates are naked, SOF # 84, and they admit that male officers can view naked inmates for prolonged periods at close range. SOF # 83. As discussed extensively above, in the Ninth Circuit Defendants' explicit policies constitute deliberate indifference to inmate privacy rights.
The United States has also presented evidence that Defendants are deliberately indifferent to sexual misconduct because of the following systemic deficiencies in the way they address sexual misconduct issues: Defendants' staff training regarding sexual misconduct is deficient;(10) inmate education about sexual misconduct is deficient;(11) Defendants' investigations of sexual misconduct are deficient;(12) Defendants' responses to substantiated instances of sexual misconduct are deficient;(13) Defendants do not take proactive measures necessary to minimize occurrences of sexual misconduct;(14) Defendants' inmate grievance system is deficient;(15) Defendants discourage inmate reporting of sexual misconduct; (16) Defendants fail to offer mental health services to sexual misconduct victims;(17) and Defendants deliberately refuse to implement any of the experts' recommendations for reducing sexual misconduct and invasions of inmate privacy.(18)
Defendants cite to three cases in which inmates were sexually assaulted by staff, but prison or jail managers were held not deliberately indifferent. Def. Br. at pages 15-17. Each case, however, actually supports the United States' position that under the facts presented by the United States, there is a material issue of disputed fact that precludes a grant of summary judgment.(19)
Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997), held managerial defendants not deliberately indifferent because:
no showing [had been made] that the city had actual knowledge that its staffing policy created a substantial risk of harm to female detainees. To the contrary the city had followed the same staffing procedures since the late 1970's without any incident and had received no prior complaint of sexual assault.

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In the instant case, however, the United States has presented substantial evidence that Defendants actually admit that their policy of allowing male staff to be alone with inmates increases the risk of sexual misconduct, SOF ## 70-71, and have refused to take any steps to eliminate that policy and subsequent risk. SOF ## 72-74. Moreover, Defendants have had the same policy for years, which has caused repeated incidents of sexual assault, sexual contact, and sexual harassment of which Defendants are aware. SOF ## 1-3.
Berry v. Oswalt, 143 F.3d 1127, 1130-31 (8th Cir. 1998), held defendants not deliberately indifferent because the only evidence plaintiff presented of the defendants' custom or policy was that it was "possible that [the defendant] had heard of complaints ... [and had] only a general concern about men guarding women." Here the United States has presented specific facts evidencing a pattern of sexual misconduct of which Defendants have been aware for many years. SOF ## 1-4.
Barney v. Pulsipher, 143 F.3d 1299, 1306 (10th Cir. 1998), held defendants not deliberately indifferent because:
the [two] sexual assaults ... were the only incidents of sexual misconduct by ... jailors of which [the] Sheriff ... was aware during his more than thirty-year tenure ... The Commissioners likewise lacked knowledge of any alleged sexual misconduct ...
Consequently, no pattern of violations existed to put the County on notice that its training program was deficient.
Again, the United States has presented substantial evidence in this case that a pattern of sexual misconduct of which Defendants are aware has been extant for many years. SOF ## 1-4.
Because Defendants have been on notice for many years of a pattern of sexual misconduct in their female prisons(20), they can be deemed to be deliberately indifferent to that pattern. Federal Circuit courts have held that a pattern of unconstitutional conduct can serve as the predicate for a finding of deliberate indifference. See Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1998) ("'custom or usage' is demonstrated by ... [t]he existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees"); Barney v. Pulsipher, 143 F.3d 1299, 1307-8 (10th Cir. 1998) ("The deliberate indifference standard [to impose municipal liability] may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation ... In most instances, notice can be established by proving the existence of a pattern or tortious conduct.").
Finally, federal courts have rejected Defendants' argument that they are not deliberately indifferent because they have extensive policies against misconduct and train their employees when, as here, there is substantial evidence that policies and training are not followed. See Ware v. Jackson County, 150 F.3d 873, 882, 884 (8th Cir. 1998) ("The existence of written policies ... are of no moment in the face of evidence that such policies are neither followed nor enforced ... neither the County's written policies prohibiting unconstitutional misconduct nor evidence of its employee training can insulate it from § 1983 liability where there is evidence of a pattern of misconduct."); Thomas v. District of Columbia, 887 F. Supp. 1, 5 (D.D.C. 1995) ("Defendants argue that there is no practice or custom of permitting sexual harassment or assault because District of Columbia regulations expressly prohibit intimate relations between prison guards and inmates. This argument misses the point. While the regulations may exist, violations of them, or a pattern of such violations, may themselves be a practice or custom. The District of Columbia is not off the hook merely because regulations exist ... the failure of the District of Columbia to safeguard against known unconstitutional conduct may amount to a tacit approval of the

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conduct.").
In sum, the United States has presented substantial evidence that Defendants are deliberately indifferent to sexual misconduct and invasions of privacy, precluding the grant of summary judgment.
B. Defendants Are Vicariously Liable For The Acts of Their Employees and Agents
Defendants attempt to insulate themselves from the pattern of sexual misconduct and privacy invasions occurring in their prisons by claiming that they are not vicariously liable for acts committed by their employees or agents, citing cases decided under 42 U.S.C. § 1983, in which plaintiffs sought monetary damages. This case, however, was brought under CRIPA, which explicitly authorizes the United States to seek equitable relief against any entity necessary to remedy a pattern or practice of constitutional violations against institutionalized persons. Moreover, even if the law developed under § 1983 applies to this case, the Ninth Circuit has held explicitly that vicarious liability applies in § 1983 cases in which only prospective injunctive relief is sought. See Chaloux v. Killeen, 886 F.2d 247, 250 (9th Cir. 1989); Los Angeles Police Protective League v. Gates, 995 F.2d 1469 (9th Cir. 1993).(21) Here, the United States seeks only prospective injunctive relief.
1. Vicarious Liability Applies In Section 1983 Cases Seeking Only Prospective, Injunctive Relief
In Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 (1978), the Supreme Court held that a municipality could be held liable under 42 U.S.C. § 1983.(22) In Monell, where plaintiffs sought only retrospective relief,(23) the Court held that municipal liability could attach only if a government's "policy or custom" had caused the constitutional violation. Monell, 436 U.S. at 694. Monell recognized that the contours of § 1983 liability would need to be more expressly defined in future decisions. Id. at 695.
Although the Supreme Court has yet to address whether the requirement of an "official policy or custom" to hold § 1983 defendants liable applies even where plaintiffs request only prospective injunctive relief, this issue has been decided in the Ninth Circuit. Chaloux v. Killeen, 886 F.2d 247, 250 (9th Cir. 1989), held that § 1983 plaintiffs seeking prospective relief were not required to show that constitutional violations resulted from an "official policy or custom." In Chaloux, the plaintiffs sought to enjoin county officials from garnishing their governmental benefits pursuant to state garnishment proceedings. The district court, relying on Monell, dismissed the action, ruling that the plaintiffs had failed to establish that the defendants had inflicted the alleged constitutional violations pursuant to an official county policy. The Ninth Circuit reversed, stating,
Monell does not apply here. Unlike Monell, this case presents solely a claim for prospective relief ... We find no persuasive reasons for applying the Court's 'official policy or custom' requirement to suits ... only for prospective relief.
Id. at 250-251.
Chaloux's rationale was based on its analysis of the policy justifications animating the decision in Monell. Chaloux reasoned that Monell set forth the "official policy or custom" requirement to "limit § 1983 damage awards against municipalities" in order to "alleviate the imposition of financial liability on local governments based solely on a respondeat superior theory." Id. (citing Monell at 691 and Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)).
Cases decided after Chaloux show that it is the nature of the relief sought (i.e., prospective or

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retrospective), and not the "financial liability" at issue that determines whether a plaintiff needs to prove that constitutional violations resulted from a "custom or policy" of defendants. Los Angeles Police Protective League v. Gates, 995 F.2d 1469 (9th Cir. 1993), decided subsequent to Chaloux, re-affirmed Chaloux and held that a police officer dismissed for his refusal to comply with an unconstitutional search of his home was entitled to prospective, but not retrospective, equitable relief. In Gates, the court had previously held in a related case that the unconstitutional search was not conducted pursuant to any "official policy or custom." Gates made clear that the officer was nevertheless entitled to prospective equitable relief from the County:
As a threshold matter, we note that equitable relief, such as reinstatement of [the officer's] job and pension rights, is not barred by the prior rulings of this court on immunity from liability for damages ... Further, the City can be subject to prospective injunctive relief even if the constitutional violation was not the result of an "official custom or policy."
Gates, 995 F.2d 1469, 1472, citing Chaloux. Gates thus explicitly distinguished between "retrospective" and "prospective" equitable relief in deciding what relief the plaintiff could seek. Gates refused to grant the officer back pay, because back pay was retrospective relief, Gates at 1472 n.1. But Gates permitted the officer to seek job reinstatement and reinstatement of pension rights, because those remedies were prospective -- even though job reinstatement and pension rights could potentially result in a greater financial burden on the County than an award of back pay.(24)
Even if CRIPA cases were governed by § 1983 case law, Chaloux and Gates make it clear that in cases such as this one, where the United States seeks solely prospective injunctive relief in order to prevent further violations of constitutional rights, Monell's "official policy or custom" requirement does not apply. Arizona may be held liable for violations of inmates' constitutional right to be free from sexual misconduct and invasions of privacy even if those violations were not caused by an Arizona custom or policy.
Chaloux clearly states that in cases in which plaintiffs seek only prospective injunctive relief, defendants can be held vicariously liable for the actions of their employees and other agents:
The 'official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.
Chaloux at 250. Other courts have also held that in § 1983 actions plaintiffs seeking injunctive relief may rely on a respondeat superior theory to hold an employer or governmental agency liable. See American Association of State Troopers, Inc. v. Preate, 825 F. Supp. 1228, 1229 (E.D. Pa. 1993) (rejecting defendant's claim that respondeat superior does not apply to Section 1983 claims, since defendant sued in official capacity for prospective relief, citing Chaloux); Malik v. Tanner, 697 F. Supp. 1294, 1304 (S.D.N.Y. 1988) (in prison case, "a claim for injunctive relief, as opposed to monetary relief, may be made on a theory of respondeat superior in a § 1983 action"); Ganguly v.New York State Department of Mental Hygiene, 511 F. Supp. 420, 424 (S.D.N.Y. 1981) ("state defendants may be liable for the acts of their subordinates under the doctrine of respondeat superior as long as injunctive and declarative relief is sought" citing cases).
Thus, if § 1983 precedents applied to this CRIPA case, Arizona would be liable for the acts of its employees and agents that violated inmates' constitutional rights, because the United States seeks only prospective injunctive relief.

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2. Vicarious Liability
Applies in CRIPA Cases
Quite apart from the foregoing arguments, the language and structure of CRIPA make it clear that vicarious liability applies in CRIPA cases. CRIPA 42 U.S.C. § 1997a(a), provides that when the Attorney General
has reasonable cause to believe that any ... official, employee or agent [of a State], or other person acting on behalf of a State ... is subjecting persons residing in or confined to an institution [to unconstitutional conditions] ... the Attorney General ... may institute a civil action against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities ...
(Emphasis added). The above-quoted language shows that the Attorney General has the authority to institute a CRIPA action based on deprivations of federal rights by individual officials, employees or other agents of a State. At the same time, Section 1997a(a) makes it equally clear that injunctive relief under CRIPA is to run against such parties as are appropriate to insure that appropriate corrective measures are taken -- i.e., those management-level officials, such as the Defendants in this case, who have control and authority over the subordinate officials, agents, and/or employees whose unconstitutional conduct caused the Attorney General to file suit. Thus, CRIPA Section 1997a(a) imposes vicarious liability for injunctive relief on management officials for the conduct of their subordinates.
Equitable relief only against day care workers who abuse persons in mental retardation facilities, nurses who chemically restrain patients in nursing homes, food service workers who serve inedible food in psychiatric hospitals, or line officers who sexually abuse female inmates, would not be equitable relief "against such party ... as may be appropriate to insure the full enjoyment" of constitutional rights. Effective remedies for systemic constitutional violations require that the institution's management be involved in solving the problems, even when the harm is being caused by non-management employees. Vicarious liability therefore is essential in CRIPA litigation.
The foregoing analysis is supported by two cases, decided this year, in which the Supreme Court held that employers were vicariously liable for the sexual misconduct of their supervisory employees under Title VII. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998); Faragher v. Boca Raton, 118 S.Ct. 2275 (1998). These decisions were based in part on the fact that Title VII's definition of the term 'employer' included the term 'agents,' and the Supreme Court interpreted this to mean that Congress intended that Title VII be interpreted under agency principles. Like Title VII, CRIPA requires the application of vicarious liability agency principles to be as fully effective as Congress intended.(25)
In addition, CRIPA's statutory scheme differs significantly from § 1983, providing a "notice" structure that makes a showing of "official policy or custom" unnecessary. Under § 1983, a private litigant can file suit under § 1983 without any prior notice or opportunity for defendant to alleviate constitutional infirmities. CRIPA, however, mandates that before a state or local government can be sued, the potential defendant must be notified that the Department of Justice has determined that constitutional violations exist and what remedy is necessary to correct the constitutional violation. 42 U.S.C. § 1997b. The United States cannot resort to litigation until after the defendant has been given the opportunity, and refused, to voluntarily come into compliance with the United States' findings. Thus, CRIPA's prelitigation notice requirements provide the appropriate public decision makers with specific notice of constitutional problems that is absent from § 1983 litigation, and provide another reason why these

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decision makers should be liable for the actions of their subordinates.
III. THE UNITED STATES HAS STANDING
TO BRING THIS SUIT, AND
THIS COURT HAS ALREADY INDICATED
ITS REJECTION OF DEFENDANTS'
STANDARD OF PROOF ARGUMENT
Defendants intermingle three distinct arguments in claiming that the United States lacks standing to bring this action. They appear to be claiming (1) that the United States lacks Article III standing under the Constitution, Def. Br. at pages 8-9, (2) that the United States lacks statutory standing under CRIPA, Def. Br. at pages 6-10, and (3) that CRIPA, at 42 U.S.C. § 1997a(a), establishes the standard of proof at trial, Def. Br. at page 8. All three claims are incorrect.
A. The United States Has Constitutional
Standing To Bring This Suit
Defendants' argument that the United States lacks constitutional standing is difficult to understand since this suit was brought under CRIPA, by which Congress explicitly granted the United States standing to litigate prison conditions in federal court. United States v. Pennsylvania (Ebensburg Center), 902 F. Supp. 565, 578 (W.D. Pa. 1996) ("'CRIPA is a standing statute.'"), aff'd, 96 F.3d 1436 (3d Cir. 1996), quoting United States v. Tennessee, 798 F. Supp. 483, 488 (W.D. Tenn. 1992). It is difficult to understand how Defendants can challenge the United States' standing to bring this case, when Congress enacted CRIPA for the express purpose of providing that standing.
Under a traditional constitutional standing analysis, the United States clearly has standing to bring this case. In Steel Company v. Citizens For A Better Environment, 118 S.Ct. 1003, 1016 (1998) the Supreme Court summarized the required elements to satisfy constitutional standing:
The irreducible constitutional minimum of standing contains three requirements ... First and foremost, there must be alleged (and ultimately proven) an injury in fact--a harm suffered by the plaintiff that is concrete and actual or imminent, not 'conjectural' or 'hypothetical.' ... Second, there must be causation--a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant ... And third, there must be redressability--a likelihood that the requested relief will redress the alleged injury ...[citations and quotations omitted]
Under this analysis the United States has constitutional standing to bring this case. First, the United States has presented evidence that sexual misconduct and unnecessary invasions of privacy have caused actual harm to inmates.(26) Second, that harm has been caused by defendants' and their employees' and agents' actions. Third, remedial measures exist that would reduce sexual misconduct and invasions of privacy. SOF ## 123-124. The United States therefore satisfies all three elements of Article III standing requirements.
Defendants suggest that the United States lacks constitutional standing because sexual misconduct and invasions of privacy are not ongoing and have occurred only in the past. Def. Br. at page 9. The United

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States' Statement of Facts shows that sexual misconduct and invasions of privacy were occurring in defendants' prisons in 1992, 1993, 1994, 1995, 1996, 1997, and 1998. SOF ## 1-4. Thus, constitutional harm continues.
B. The United States Has Statutory
Standing To Bring This Suit
Defendants erroneously claim that the United States lacks statutory standing because it cannot prove a pattern or practice of flagrant or egregious conditions, a standard taken from CRIPA § 1997a(a). Def. Br. at pages 6-10.(27) This argument fails for three reasons. First, CRIPA's legislative history shows that Congress intended that courts should not review the Attorney General's "reasonable cause" determination under Section 1997a(a). Second, federal courts have refused to examine the Attorney General's "reasonable cause" determinations concerning other civil rights statutes. Third, judicial review of the exercise of the Attorney General's discretionary authority is extremely limited even where judicial review is allowed, and is not warranted here.
CRIPA § 1997a(a) reads in part:
(a) Discretionary authority of Attorney General; preconditions. Whenever the Attorney General has reasonable cause to believe that any State ... is subjecting persons ... to egregious or flagrant conditions ... pursuant to a pattern or practice ... the Attorney General ... may institute a civil action ...
The terms a "pattern or practice" of "egregious and flagrant" conditions are elements of the Attorney General's "reasonable cause" determination of whether to file a CRIPA suit.
This Court has already ruled, on July 9, 1997, that it cannot judicially review the Attorney General's compliance with CRIPA's presuit requirements in § 1997(b) because of the express prohibition on judicial review set forth in CRIPA's legislative history. CRIPA's legislative history contains a parallel prohibition on judicial review of the Attorney General's "reasonable cause" determination in § 1997a(a).
In the Senate Report on CRIPA, the Judiciary Committee stated:
[C]ourts have consistently held that the decision of the Attorney General to initiate such pattern or practice litigation is not a proper subject for judicial inquiry [citing cases]. The committee intends that under the grant of authority in [§ 1997a(a)], the decision of the Attorney General to file suit shall be similarly unreviewable.
S. Rep. No. 96-416 (1980) reprinted in 1980 U.S.C.C.A.N. 810-11.
Thus, Congress has directed that Defendants cannot challenge the Attorney General's "reasonable cause" determination that a pattern or practice or flagrant and egregious conditions merited the initiation of litigation in this case.
The phrase "reasonable cause" appears in other civil rights statutes authorizing suits by the Attorney General, and federal courts have held that they will not judicially review such "reasonable cause" determinations. For example, the Fair Housing Act, 42 U.S.C. § 3614(a) provides:
Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of rights granted by this subchapter ...

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the Attorney General may commence a civil action in any appropriate United States district court.
Numerous courts have held that the Attorney General's "reasonable cause" determination under the Fair Housing Act is not subject to judicial review. See, e.g., United States v. City of Philadelphia, 838 F. Supp. 223, 227 (E.D. Pa. 1993), aff'd, 30 F.3d 1488 (3d Cir. 1994); United States v. Yonkers Board of Education, 624 F. Supp. 1276, 1291 n.9 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055 (1988); United States v. Housing Authority of Chickasaw, 504 F. Supp. 716, 726 (S.D. Ala. 1980).
If courts may not review the Attorney General's "reasonable cause" determination of whether to file suit under the Fair Housing Act, there is no reason why they should be able to review that same discretionary decision in CRIPA cases, especially in light of CRIPA's legislative history forbidding such review. See also Salvador v. Bennett, 800 F.2d 97, 99 (7th Cir. 1986) (no judicial review of EEOC's "no reasonable cause" determinations); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) (same).
Finally, it is axiomatic that federal courts "will not interfere with the Attorney General's prosecutorial discretion unless it is abused to such an extent as to be arbitrary and capricious and violative of due process." United States v. Welsh, 572 F.2d 1359, 1360 (9th Cir. 1978). CRIPA § 1997a(a) begins with the phrase "discretionary authority of Attorney General." Even if this Court can review the Attorney General's "reasonable cause" determination, Defendants have not and cannot offer any evidence that the Attorney General's decision to file suit in this case was abusive or arbitrary and capricious. In fact, as the factual record reflected in the parties' pleadings on Defendants' 1997 motion to dismiss proves, the decision to file suit was taken only after years of discussion, negotiation, and Defendants' recalcitrance.
As this Court succinctly noted in its July 25, 1997, denial of Defendants' motion for reconsideration of the Court's denial of their motion to dismiss, Defendants cannot deny the United States access to state facilities to investigate allegations of unconstitutional conditions and then complain that the United States abused the process by filing suit. The Court should not interfere with the Attorney General's prosecutorial discretion to file CRIPA suits, especially when Defendants refused to cooperate with the pre-suit investigation.
C. This Court Has Already Indicated
Its Rejection of Defendants'
Standard of Proof Argument
Defendants' "standing" argument, as they themselves say, is really an argument about the standard of proof necessary for the United States to prevail at trial. Def. Br. at page 8 ("The 'egregious and flagrant' requirement [reflects] ... Congressional intent to impose this higher burden of proof on the United States at trial ...").
Defendants in previous CRIPA cases also have argued that Section 1997a(a) sets forth the standard of proof at trial. All courts to have considered this argument have rejected it. Both United States v. Pennsylvania (Ebensburg Center), 902 F. Supp. 565, 578-80 (W.D. Pa. 1996), aff'd 96 F.3d 1436 (3d Cir. 1996), and United States v. Pennsylvania (Embreeville Center), 863 F. Supp. 217 (E.D. Pa. 1994), subjected arguments identical to Defendants' to a rigorous legal analysis and rejected them completely. Both courts held that the language in § 1997a(a) relates solely to the Attorney General's determination of whether she has reasonable cause to initiate a civil action under CRIPA, and not to the definition of the standard of proof at trial. See also Messier v. Southbury Training School, 916 F. Supp. 133, 137 (D.

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Conn. 1996).
Moreover, this Court already has indicated its disagreement with Defendants' argument that § 1997a(a) establishes the standard of proof in CRIPA actions. In its July 9, 1997, Order denying Defendants' motion to dismiss, this Court cited with approval Messier v. Southbury Training School, 916 F. Supp. 133, 137 (D. Conn. 1996), and included the following quote from Messier in the text of its opinion at pages 8 and 9:
Once the Attorney General has brought suit, having determined that CRIPA's prerequisites are satisfied, [t]he United States is treated no differently than any other litigant, and has neither a greater nor lessor burden of proof than that faced by an individual institutional resident bringing suit on his or her behalf.
Thus, this Court has previously indicated its agreement with the United States' position that once the Attorney General authorizes the filing of a CRIPA lawsuit, the United States must demonstrate at trial that Defendants exhibit a pattern or practice of violations of the constitutional rights of institutionalized persons(28) -- and not the factors taken into consideration by the Attorney General in deciding to file suit.
If Defendants' interpretation of § 1997a(a) were correct, the United States would have to meet a far higher standard of proof than any private litigant who brings an action to remedy unconstitutional conditions at a state prison. If a female inmate sued Arizona raising sexual misconduct claims, Arizona obviously would not be able to argue that the "reasonable cause" criteria of § 1997a(a) constituted the standard of proof that the inmate would have to meet to prevail at her trial. To establish that the United States had a greater burden than other plaintiffs, Defendants would have to demonstrate that Congress intended Arizona female inmates to have less protection of their constitutional rights in suits brought pursuant to CRIPA than that afforded them under 42 U.S.C. § 1983. But whether sexual misconduct violates the constitution should not depend on the identity of the plaintiff. See United States v. Pennsylvania (Embreeville Center), 863 F. Supp. at 219 ("[CRIPA's language]
does not . . . indicate that the United States must prove at
trial that a case is more serious than one that may have been
brought by any other plaintiff.").
IV. THE GOVERNOR IS A PROPER PARTY
Defendants argue that the Governor should be granted summary judgement because she "has no further involvement in the ADOC" other than appointing its Director, and because "the authority to manage the prison system is vested solely with the Director." Def. Br. at pages 28-29. Arizona statutes and cases, however, directly contradict Defendants' characterizations of the Governor's relationship with ADOC.
First, not only does the Governor have the power to appoint ADOC's director (subject to consent of the State Senate), she has the power to remove him as well, for any reason at all. See Ariz. Statute 41-1603 ("The director of the department [of corrections] shall be appointed by the Governor ... and shall serve at the pleasure of the governor."); Ahern v. Bailey, 451 P.2d 30, 33 (Ariz. 1969) (Governor has "the power to select subordinates and to remove them if they are unfaithful ... the power to remove is an executive function").
Second, the Governor has statutory "charge and control" over Arizona prisons. See Ariz. Statute 41-901

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("The governor shall have charge and control of the .. state prison and other state institutions the management of which is not otherwise provided by law."); Litchfield Elementary School v. Babbit, 608 P.2d 792, 798 (Ct. App. Ariz. 1980) (noting Governor has "charge," "control," and "management" authority over Arizona prisons).
The Governor can, and presumably would, fire an ADOC director who refuses to feed inmates. The Governor has the ultimate authority over state institutions. Either inmates are treated the way she wants, or she can remove the director, and succeeding directors, until conditions are to her satisfaction.
Thus, the Governor has the ultimate authority over Arizona prisons for women, through the power to appoint and remove the Director, and the power to take "charge" and "control" of state prisons. As discussed above, CRIPA authorizes suit against any person necessary for the United States to obtain appropriate equitable relief to remedy systemic unconstitutional conditions of confinement. As the elected official with the ultimate authority and control over Arizona's prisons, the Governor wields the greatest power to effect institutional change within Defendants' prisons. The Governor, therefore, is a necessary and proper party for injunctive relief.
CONCLUSION
For the foregoing reasons, the United States requests that the Court deny Defendants' summary judgment motion in its entirety.
Respectfully submitted,
Bill Lann Lee
Acting Assistant
Attorney General
Steven H. Rosenbaum
Mellie Nelson
Mark Masling
Shelley Jackson
Christy Lopez
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66400
Washington, D.C. 20035-6400

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(202) 514-6252
Jose de Jesus Rivera
United States Attorney
District of Arizona
Lee Stein
Assistant U.S. Attorney
4000 U.S. Courthouse
230 North First Avenue
Phoenix, Arizona 85025
(602) 514-7506
1. Moreover, the incidents of sexual misconduct and invasions of privacy revealed in discovery reflect only a portion of the sexual misconduct and privacy invasions occurring in Arizona women's prisons. SOF ## 20-21.
2. Indeed, Arizona inmates' legal inability to consent to sexual contact with ADOC employees was recently made explicit by a state law, enacted at ADOC's request, which makes sexual contact between inmates and employees a felony offense. See A.R.S. § 13-1419.
3. This is not a novel doctrine. Most, if not all, states have statutes that criminalize sexual contact with persons who are incapable consenting to such contact because of physical or mental conditions. See, e.g., Martin v. Kassulke, 970 F.2d 1539 (6th Cir. 1992).
4. Defendants are also vicariously liable for that Eighth Amendment violation, as discussed infra.
5. See, e.g., See Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995) ("Prisoners do retain a limited constitutional right to bodily privacy, particularly as to searches viewed or conducted by members of the opposite sex [citing cases]."); Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) ("We are persuaded to join other circuits in recognizing a prisoner's constitutional right to bodily privacy because most people have 'a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be demeaning and humiliating.'") quoting Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981); Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) ("convicted prisoner maintains some reasonable expectations of privacy ... related to forced exposure to strangers of the opposite sex."); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) ("We have little doubt that society is prepared to recognize as reasonable the retention of a limited right of bodily privacy even in the prison context."); Cookish v. Powell, 945 F.2d 441, 446 (1st Cir. 1991) ("inmate's constitutional right to privacy is violated when guards of the opposite sex regularly observe him/her engaged in personal activities, such as undressing, showering, and using the toilet."); Kent v. Johnson, 821 F.2d 1220, 122627 (6th Cir. 1987) ("[T]here must be a fundamental constitutional right to be free from forced exposure of one's person to strangers of the opposite sex when not reasonably necessary for some legitimate, overriding, reason, for the obverse would be repugnant to notions of human decency and personal

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integrity.").
6. Defendants mistakenly assert that the United States believes that inmates have a right to bodily privacy from same gender staff. Def. Br. page 20, n. 8. This assertion is baseless. Similarly, there is no basis for Defendants' assertion that the United States believes that prison officials can never legally view inmates while they are dressing, showering or using toilet facilities. Def. Br. page 21. There are situations in which a male officer would have a legitimate penological interest in being in toilet or shower areas while they are in use.
7. Defendants have admitted that female inmates may be closely observed on a routine basis by male officers as they shower, toilet, and dress, and that male officers are instructed not to announce their presence as they enter these areas. SOF ## 83-86. ADOC Director Stewart testified that even unnecessary or excessive viewing of female inmates by male staff does not violate inmates' constitutional rights. SOF # 87.
8. Defendants have violated this Court's oral order at a hearing in 1997 not to cite to unpublished decisions. This order was issued at Defendants' request, as they objected to the United States citing unpublished decisions.
9. Defendants also cite Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995). Defendants' interpretation of Johnson was, however, explicitly called into question by a subsequent Seventh Circuit case, Peckham v. Wisconsin Department of Corrections, 141 F.3d 694 (7th Cir. 1998).
10. ADOC staff training is deficient because employees (including ADOC officers, and maintenance and contract workers) do not receive adequate training concerning sexual misconduct and invasions of privacy. SOF ## 35-46.
11. ADOC fails to give inmates either written or verbal information about sexual misconduct or how to report it when they enter ADOC, and ADOC has not even provided inmates with specific information regarding the recently-enacted Arizona statute that makes it a felony for an inmate and an ADOC employee to be involved in sexual conduct. SOF ## 47-53.
12. ADOC fails to provide its investigators with special training on prison investigations, fails to seek out and interview all appropriate witnesses, fails to ensure that its investigators determine whether the alleged perpetrators have been the subject of previous allegations of sexual misconduct, fails to maintain a central file of incident reports, lacks the ability to track the number or type of sexual misconduct complaints, and fails to continue investigations after employee resignations. SOF ## 54-66.
13. ADOC allows guilty employees to resign instead of firing them, fails to continue investigations after employees resign, fails to talk to staff about substantiated incidents, and fails to encourage prosecution of sexual misconduct that may violate criminal statutes. SOF ## 67-69.
14. ADOC fails to search proactively for allegations of sexual misconduct and invasions of privacy, and fails to end practices that facilitate sexual misconduct and invasions of privacy, most notably its failure to change its practice of allowing female inmates and ADOC staff to be alone together. SOF ## 70-82.
15. ADOC's grievance system is deficient in addressing inmate complaints, and the manner in which inmate complaints are retained and organized by ADOC renders the complaint system useless in any effort to identify and resolve systemic problems related to sexual misconduct and invasions of privacy. SOF ## 94-96.

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16. Many Arizona female inmates do not report sexual misconduct regarding themselves or others because they fear going to detention or other punishment -- a fear that is warranted, since ADOC admits that its policies and practices permit sending a female inmates to detention for participating in, witnessing, or reporting sexual misconduct. SOF ## 97-116.
17. ADOC fails to offer mental health services to inmates who have been involved in sexual misconduct despite the fact that mental health experts retained by both parties believe that such services are appropriate, and despite the substantial evidence regarding the very high percentage of Arizona female inmates with histories of pre-incarceration physical or sexual abuse or mental illness and the increased vulnerability of these inmates to sexual misconduct and to harm resulting from that misconduct. SOF ## 117-122.
18. SOF ## 125-127.
19. The United States disputes Defendants' Statement of Facts in support of their summary judgment motion. Many of Defendants' facts relate to employee training. Defendants' Facts 7-8, 10-20. But as ADOC's expert penological witness and its Director testified, training cannot be assessed by a paper review alone -- it must be assessed by its results. SOF ## 36-37. The United States' Statement of Facts shows clearly the results of ADOC employee training: hundreds of incidents of sexual misconduct, from rape to invasions of privacy. SOF ## 1-4. Many of Defendants' other facts are wrong or are in dispute. For example, the United States disputes that ADOC managment utilizes a comprehensive strategy to deal with sexual misconduct, SOF ## 35-122, that inmates routinely report misconduct, SOF ## 97-116, and that ADOC promptly and aggressively investigates allegations of misconduct, SOF ## 54-66.
20. See Admissions ## 120-235 in Defendants' Third Amended Answers to United States Requests To Admit, containing admissions about instances of sexual misconduct occurring in Arizona women prisons from 1992 to 1998.
21. Each case cited by Defendants' in support of their argument that they cannot be held vicariously liable was decided prior to these cases.
22. Defendants cite Felder v. Casey, 487 U.S. 131, 148 (1988), as support of their statement that CRIPA cases brought by the United States are a type of § 1983 case. Felder merely notes that one section of CRIPA (1997e) establishes that adult prisoners must exhaust administrative remedies prior to bringing suit under § 1983. Felder does not address whether CRIPA suits brought by the United States are a type of Section 1983 action.
23. The Monell plaintiffs, a class of female employees of the city of New York challenging city policy that compelled pregnant employees to take unpaid leaves of absence regardless of medical need, originally sought injunctive and declaratory relief as well as backpay. However, the district court held the injunctive claims moot after defendants changed their policies relating to maternity leaves. Monell 436 U.S. at 661. These claims were thus not before the Supreme Court.
24. Federal district courts in the Ninth and other circuits have followed Chaloux and Gates. See,e.g., Joyce v. City and County of San Francisco, 846 F. Supp. 843, 861 (N.D. Cal. 1994) ("Where prospective relief only is sought the Ninth Circuit has provided that the 'official policy or custom requirement' does not apply."); Santiago v. Miles, 774 F. Supp. 775, 792 (W.D.N.Y. 1991) (In prison case, "The [Chaloux] court held that the Monell doctrine did not limit plaintiff's ability to sue to enjoin state officials from the continued violation of constitutional rights.") (emphasis added).

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25. CRIPA contains similarly expansive language, authorizing the Attorney General to bring suit against a state or locality when she has reasonable cause to believe that constitutional rights are being violated by "any State . . . official, employee, or agent thereof, or person acting on behalf of a State . . . ." § 1997a(a).
26. Under CRIPA, the United States stands in place of the inmates whose rights the United States seeks to vindicate. In addition, remedying ongoing constitutional violations serves the interests of all citizens, not only the persons institutionalized.
27. The evidence presented to the Court in the accompanying Statement of Facts and supporting exhibits raises a disputed issue of material fact concerning whether there is a pattern or practice of flagrant and egregious conditions, precluding summary judgment.
28. The United States must prove at trial that defendants are guilty of a "pattern or practice" of constitutional violations. The United States must prove a "pattern or practice" because it seeks institution-wide reform, and systemic relief would not be warranted if the United States could prove only sporadic and isolated constitutional violations.

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 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Wishington, D.C. 20035

v , FxnT-P«,«, Ma i 1
Via. C X p i S S I v l l L

August 8, 1996 U S v' State of Arizona

The Honorable J. Fife Symington Governor, State of Arizona 1700 West Washington Phoenix, Arizona 85007

PC-AZ-002-001

Re: CRIPA Investigation of Arizona Women's Prisons

Dear Governor Symington:

On February 8, 1995, we notified you of our intention to investigate allegations of sexual abuse and violations of privacy rights of female inmates confined in Arizona Department of Corrections ("ADOC") facilities, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. §§ 1997 et seq. The purpose of this letter is to advise you of our findings, supporting facts, and recommended remedial measures, pursuant to 42 U.S.C. § 1997b(a)(1).

As a result of our investigation, we have concluded that there exists at ADOC women's facilities an unconstitutional pattern or practice of sexual misconduct and constitutionally unacceptable invasions of privacy rights, and that ADOC officials have not addressed these problems adequately. These conclusions, and the more specific findings and recommendations set out below, must be read in the context of ADOC's refusal to cooperate with our investigation. Although ADOC has provided some relevant data, our requests for other information have been denied or gone unanswered. Most importantly, ADOC officials have refused to grant us access to female inmates, correctional staff, or ADOC women's facilities. Both the legislative history of CRIPA and federal case law make it clear that the Attorney General may consider state officials' failure to cooperate with an investigation in her decision to bring suit under the Act. United States v. Michigan, 868 F. Supp. 890, 896 (W.D. Mich. 1994) .

Nevertheless, we offer our findings and recommendations in a cooperative spirit. We hope that ADOC will be willing to discuss these matters with us promptly and in appropriate detail, rather

- 2-
than continuing its adversarial posture.
Our findings and recommended remedial measures are offered in the context of the current state of the law regarding the unconstitutionality of sexual misconduct against female inmates and the analytical framework for assessing the constitutionality of invasions of privacy rights of female inmates.
I. FINDINGS AND SUPPORTING FACTS
A. Physical Sexual Misconduct.
We have received significant evidence, some of it confirmed by ADOC records, that during the past few years at least 14 female inmates have been subjected to sexual assaults and other non-consensual sexual behavior by guards, including rape, sodomy, touching and fondling, masturbation, urination, removal of clothing, nude dancing, indecent exposure, and offensive sexual comments.
We also have received significant evidence, some of it confirmed by ADOC records, that during the past few years a number of female inmates have engaged in supposedly "consensual" sexual behavior with ADOC staff, sometimes in return for special privileges not available to other inmates. In the context of a prison environment, in which inmates necessarily surrender virtually all self-control over every aspect of their lives and are at the mercy of staff for their basic needs, there cannot be any "consensual" sexual behavior between staff and inmates. Moreover, a prison environment which fosters or tolerates "consensual" sexual behavior between staff and inmates significantly increases the probability of nonconsensual sexual misconduct by staff.
In two letters dated September 22, 1995, and December 6, 1995, copies of which are attached, we provided Arizona state officials with detailed information on sexual misconduct in ADOC women's facilities. We received some of this information in the form of 13 sworn "Jane Doe" affidavits of inmates whose identities were confidential. In addition, detailed information on some of the sexual misconduct summarized above is contained in a document provided to us by ADOC (referred to by ADOC as the "Matrix"), a copy of which is also attached.1/ ADOC officials have conceded that ADOC settled one case in which a CSO was accused of raping a female inmate; and we have received information that contract employees have requested sexual favors from female inmates in exchange for better job assignments.
1/ ADOC has provided us with self-selected documents relating to the incidents covered by the Matrix.

- 3-
The evidence outlined above, considered in light of the fact that ADOC officials have refused to permit us to interview female inmates, indicates that sexual misconduct is occurring in ADOC women's facilities with constitutionally unacceptable frequency. The sexual misconduct cases included in A D O C s own Matrix reflect only those incidents that ADOC chose to investigate through its Inspections and Investigations ("I & I") unit after the incidents happened to come to ADOC's attention. ADOC has raised the possibility that other complaints regarding sexual misconduct were not investigated by I & I, but to date ADOC has not responded to our request for information concerning that possibility. The common-sense inference that the sexual misconduct cases included in the ADOC Matrix constitute only a portion of the actual number of such cases is supported by the fact that our investigation uncovered numerous additional allegations of sexual misconduct -- about which ADOC apparently was not aware -- notwithstanding ADOC's refusal to permit us to interview female inmates. We note also that a number of the Jane Doe affidavits suggest that female inmates fear retaliation if they report sexual misconduct to ADOC of f icials. 2./
B. Constitutionally Unacceptable Invasions of Privacy.
We have received significant information -- including five of the Jane Doe affidavits and Case #22 in the ADOC Matrix -- that female inmates' privacy rights are violated by male correctional officers who, without good reason, engage in frequent, prolonged, close-up and prurient viewing of female inmates showering and using toilet facilities.
Arizona's refusal to cooperate in our lawful federal investigation of allegations of civil rights violations in ADOC women's facilities allows us to draw adverse inferences from the self-selected evidence that we have obtained from ADOC and from the evidence derived from non-ADOC sources. That evidence, and the adverse inferences derived from that evidence, indicate the presence of constitutionally unacceptable invasions of privacy in ADOC women's facilities.
C. ADOC Responses Regarding Sexual Misconduct and Unlawful Violations of Privacy Rights.
Our investigation indicates that ADOC has responded to the related problems of sexual misconduct and unlawful invasions of privacy in a manner that has some positive aspects, but which is not constitutionally adequate.
2.1 The Task Force Survey results also indicate that a substantial number of female inmates are reluctant to report problems to ADOC staff.

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1. Screening of potential employees. At least on paper, ADOC's system for evaluating and screening potential employees in terms of their propensity for sexual misconduct appears to be appropriate in substantial measure. However:
a. We do not have sufficient information to evaluate how well the screening process works in practice -although in at least one instance, involving ADOC Matrix Case #3 6, it appears that ADOC ignored significant evidence that the employee may have had psychological problems relating to sex.
b. ADOC's policy of checking with criminal justice agencies in jurisdictions where an applicant has lived for the past five years (IMP 103.1.15.6.1.1) is insufficient; we would suggest that the check should cover at least the past ten years.
c. ADOC policy provides for checking with each applicant's references (IMP 103.1.15.6.1.4); we do not know what other efforts, if any, are made to identify and contact past employers.
d. We have no evidence that contract employees who work in ADOC facilities are subject to ADOC's pre-employment screening.
We note also that pre-employment screening by itself is unlikely to weed out all candidates who might be tempted to engage in sexual misconduct.
2. Training. On paper, ADOC's training program with respect to issues relating to sexual misconduct appears to be adequate. However, it is unclear how much of that training focuses on the supervision and searching of female inmates, and we cannot confirm the adequacy of that training program without speaking to correctional staff. Nor do we know whether contract employees receive the same training as ADOC employees.
3. Initiation of investigations. We regard it as positive that ADOC has initiated investigations in response to several different sources, including inmate and staff allegations, rumors, and anonymous written statements. However, as noted previously, ADOC has not responded to our requests for information on the frequency with which inmate grievances regarding sexual misconduct have not been referred to I & I for investigation.
4. Thoroughness of investigations. Several of ADOC's investigations into allegations of sexual misconduct were timely, thorough, and well documented. However, other investigations were not adequate (e.g., the investigation in ADOC Matrix Case

- 5-
# 36). Moreover, the routine use of male investigators to interview female victims is likely to impede the thoroughness and accuracy of investigations of alleged sexual misconduct.
5. Sanctions. In some cases in which ADOC employees were found to have engaged in sexual misconduct with female inmates, ADOC has imposed adequate sanctions (i.e. . dismissal) .3./ In other cases, however, employees have received little or no discipline despite substantial evidence that they engaged in such misconduct (see Matrix Cases 7, 15, 32, and 36). It is problematic that ADOC policies (IMP 103.1.8) permit lenient sanctions for sexual misconduct (even for second offenses). We also are concerned that ADOC policy (IMP 206.7.6.7) permits the rehiring or reinstatement of an employee who resigns in lieu of dismissal after only two years; an employee who resigns in lieu of dismissal after being accused of sexual misconduct should be permanently disqualified from future employment with ADOC.
6. Efforts to determine the nature and extent of sexual misconduct and unlawful invasions of privacy. At least until very recently, ADOC simply had reacted to allegations of sexual misconduct that came to its attention, with no affirmative effort to determine the extent to which sexual abuse and harassment were occurring in female facilities. In this regard, former Director Lewis's recent appointment of a Task Force appeared to be a potentially positive step. However, the information that Mr. Lewis provided with his letter of December 4, 1995, to Attorney General Reno indicates that the manner in which the Task Force proceeded was seriously flawed in terms of investigating the extent of sexual misconduct at ADOC women's facilities. Most obviously, administering the inmate and staff surveys on a non-confidential, face-to-face basis, apparently using ADOC staff as interviewers, created inherent barriers to the communication of information regarding sexual misconduct by ADOC employees.4./ Given the sensitive nature of the inquiry and the likelihood that female inmates will be fearful about the consequences of reporting sexual misconduct by ADOC employees, an affirmative investigation by an outside entity -- such as the Department of Justice -- is necessary.
3./ We note with favor that ADOC has referred some sexual abuse incidents to prosecutorial authorities.
4./ Notwithstanding the problems in the Task Force surveys, those surveys did disclose additional information regarding such matters as the inadequacy of staff training, female prisoners' reluctance to report sexual misconduct, and the concerns of a portion of the inmate population with unlawful invasions of privacy by male staff members.

- 6-
7. Failure to implement State's own policies. The information that ADOC officials have provided to us does not indicate that ADOC has made an adequate effort to reduce opportunities for its employees to engage in sexual misconduct with or unlawfully invade the legitimate privacy interests of female inmates.
II. RECOMMENDATIONS
We wish to make two preliminary points about the recommendations that follow. First, some of the recommendations are necessarily general because the relevant details depend on information that ADOC has refused to provide. Second, the recommendations are not non-negotiable demands. As indicated earlier, we hope that ADOC will be willing to discuss the recommendations with us with the goal of avoiding litigation.
A. Overall Goals.
We recognize that as a practical matter, no measures can completely eliminate the possibility that some ADOC employees will engage in sexual misconduct with, or unlawfully invade the privacy of, female inmates. However, the complete elimination of such conduct should be ADOC's goal, and ADOC should take all necessary and prudent measures to minimize sexual misconduct and unlawful invasions of privacy in its women's facilities.
B. Screening of Employees.
ADOC should:
1. Ensure that evaluation and screening of prospective employees at least comply with existing ADOC policies.
2. Check with criminal justice agencies in all jurisdictions in which each applicant has resided for at least the preceding ten years.
3. Include all former employers in the routine background check.
4. Develop procedures to ensure that ADOC responds appropriately to evidence that a prospective or current employee may have psychological problems relating to sexual conduct. (This would be a suitable responsibility for the Women's Facilities Administrator, discussed in Section II(H), below.)
5. Require that contract employees undergo the same background check as regular employees.

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C. Training.
At minimum, ADOC should:
1. Ensure that all employees who are assigned to female
facilities actually receive proper training on staff-inmate relationships as well as the supervision and searching of female inmates.
2. Ensure that contract employees who are assigned to work in female facilities receive proper training on inmate-staff relationships as regular employees.
D. Investigations of Allegations of Sexual Misconduct and Unlawful Invasion of Privacy.
With respect to complaints or other allegations of sexual misconduct or unlawful invasions of privacy:
1. ADOC should initiate investigations in response to allegations in any form, and from any source.
2. ADOC should ensure that all investigations are prompt, thorough, and well documented. All potential witnesses, including inmates, should be identified and interviewed.
3. Investigations should be conducted by outside investigators, or by ADOC personnel who are not under the command of facility administrators.
4. Female investigators should be available to interview alleged female victims and any other female witnesses who may be reluctant to discuss intimate details with male investigators.
5. In each facility, one official should be designated to review all allegations and investigations of sexual misconduct and unlawful invasion of privacy. All such allegations and investigations also should be reviewed by the Women's Facilities Administrator (see Section II(H), below).
E. Sanctions for Sexual Misconduct and Unlawful Invasions of Privacy: Referrals to Prosecutorial Authorities.
1. There should be a single sanction for employees engaging in rape, sodomy, touching and fondling, masturbation, urination, removal of clothing, nude dancing, and indecent exposure: termination from employment. The current system of sanctions permits punishments that are too lax to deter future offenses.

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2. ADOC should refer to prosecutorial authorities all cases in which there is any credible evidence to support the filing of criminal charges, even when ADOC has concluded that, on balance, the evidence does not prove the charge. Prosecutors, rather than ADOC employees, should decide whether the evidence developed by ADOC justifies the filing of criminal charges or further criminal investigation.
3. An employee who resigns in lieu of dismissal after being accused of sexual misconduct should be permanently disqualified from future employment with ADOC.
F. Efforts to Determine the Nature and Extent of Sexual Misconduct and Unlawful Invasions of Privacy.
Given the problems inherent in any attempt by ADOC personnel to determine the nature and extent of sexual misconduct and unlawful invasions of privacy in ADOC's own women's facilities, ADOC should arrange for an investigation of these issues by an independent outside agency or expert.
G. Necessary Proactive Steps to Address Sexual Misconduct and Unlawful Invasions of Privacy.
There are a number of steps that ADOC should take to minimize the opportunities for sexual misconduct and unlawful invasions of privacy, including the following:
1. ADOC should devise measures to minimize the possibility of sexual misconduct in situations in which a single employee (male or female) is alone with one or two female inmates in locations where sexual misconduct could go undetected. Those measures should include the assignment of CSOs and other staff who have received proper training in staff-inmate relationships and the supervision and searching of female inmates, and might include the use of surveillance cameras in selected areas.
2. ADOC should increase the presence of supervisory staff in living and work areas; and the supervisory staff should actively engage inmates and lower level staff in conversation about conditions of confinement, including sexual misconduct. A more active role for supervisory staff would send the message that inmate-staff relations are being monitored closely, and it would provide more meaningful opportunities for inmates and lower level staff to approach supervisors with comments or complaints.

- 9-
3. Because inmates housed in mental health units are most vulnerable to sexual misconduct, ADOC should assign to those units CSOs and other staff who have received proper training regarding staff-inmate relationships and the supervision and searching of mentally ill female inmates. ADOC also should take special care in mental health units to avoid staffing patterns and procedures that place staff in one-on-one situations with female inmates.
4. ADOC should promulgate and enforce rules that require female inmates to wear appropriate clothing at all times. Such rules would reduce both the opportunities for male staff to engage in voyeurism and the inadvertent or intentional incitement of sexual responses.
5. ADOC should take appropriate steps to protect female inmates from unlawful invasions of their privacy rights. Such steps should include the assignment of CSOs and other staff who have received proper training in staff-inmate relationships and the supervision and searching of female inmates, and might include the installation of visual barriers in showering and toilet areas that protect privacy without unduly interfering with legitimate security interests.
H. Women's Facilities Administrator.
ADOC's female facilities are adjuncts to predominantly male prisons, and there are no wardens for female units (only deputy wardens). Moreover, all of the ADOC wardens except one (Meg Savage) are male; and Ms. Savage's experience is with male facilities. Thus, the unique issues raised by incarcerated females are likely to be underappreciated and dealt with on a facility-by-facility, rather than system-wide, basis. We note that one respondent to the Task Force Survey indicated that ADOC training was characterized by a negative attitude toward working with females.
One way to mitigate these problems without restructuring the entire Department would be to create a new position in ADOC's Central Office, the "Women's Facilities Administrator," whose sole responsibility would be to serve as a liaison between the women's facilities and ADOC's Director and Deputy Director. This addition to ADOC's organizational structure -- which preferably should be filled by someone with experience at male and female correctional facilities -- would add "organizational sensitivity" with regard to issues concerning female inmates, and it would provide a basis for instituting appropriate policy changes throughout the system.

- 10 -
Pursuant to CRIPA, the Attorney General may institute a lawsuit to correct deficiencies of the sort identified in this letter 4 9 days after the appropriate state officials have been notified of those deficiencies. 42 U.S.C. § 1997b(a)(1). We
continue to hope, however, that litigation will not be necessary.
We therefore urge ADOC officials promptly to provide us with access to persons, facilities, and information that so far has been withheld, and to discuss with us the issues raised in this letter.
Sincerely,
Deval L. Patrick Assistant Attorney General
Civil Rights Division
Enclosures
cc: The Honorable Grant Woods Attorney General State of Arizona
Mr. Terry L. Stewart Director Arizona Department of Corrections
Mr. Hal Cardin, Warden Ms. Denise Andre, Deputy Warden Arizona Center for Women
Mr. Dale Copeland, Warden Ms. Judy Drigo, Deputy Warden ASPC-Perryville
Mr. Sam Sublett, Warden Ms. Mary Vermeer, Deputy Warden ASPC-Tuscon
Mr. Hal Cardin, Warden Mr. Blaine Marshall, Associate Deputy Warden ASPC-Alhambra
Janet Napolitano, Esquire United States Attorney District of Arizona

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, v.
STATE OF ARIZONA fit

) ) ) ) ) Civil Action ) No. 97-476-PHX-ROS

Defendants.

I. INTRODUCTION

SETTLEMENT AGREEMENT

On March 10, 1997, the United States initiated this litigation alleging that Defendants were violating the constitutional rights of inmates incarcerated in Arizona women's prisons to be free from sexual misconduct and unlawful invasions of privacy. While Defendants believe the United States' Complaint had no basis in fact, to avoid the cost, inconvenience, and uncertainty of trial, the parties have agreed to resolve this litigation. Nothing contained in this Settlement Agreement is to be construed as an admission that Defendants violated the constitutional rights of any female inmate. This Settlement Agreement incorporates and refers to those areas in which ADOC will continue current policies and practices that are designed to eliminate inappropriate staff-inmate behavior.

II. DEFINITIONS

1. "ADOC" means the Arizona Department of Corrections.
2. "Inmate" means any female inmate incarcerated in ADOC.
3. "Staff" means correctional officers, maintenance workers, kitchen workers, teachers, counselors, and any other person with direct access to inmates, whether employed by ADOC or some other entity.
4. "Management" means Director, Deputy Director, Warden, Deputy Warden and/or Female Programs Administrator.
5. "DOJ" means the United States Department of Justice.
6. "Inappropriate staff-inmate behavior" means one or more of the following: (a) sexual contact between inmates and staff; (b) unprofessional conduct by staff, including overfamiliarity, improper comments, and other acts prohibited by ADOC policies, and (c) inappropriate invasions of "privacy" interests, as
US v. State of Arizona

PC-AZ-002-003

defined below1

"

—- - -

7. . "Serious sexual misconduct" means one or more of the
following: oral sexual contact, sexual intercourse, or any direct
or indirect touching, fondling or manipulating of any part of the
genitals, anus or female breast by any part of the body or by any
object or causing a person to engage in such contact.

8 . "Privacy" means the interest of female inmates not to be viewed by male staff while dressing, showering, or toileting absent a legitimate security interest that cannot be reasonably accomplished by female staff.

9. "Consult" means only provision of written and/or oral comments to counsel.

III. ADOC POLICIES AND PROCEDURES

A. Policies And Procedures Regarding Misconduct ADOC will obtain policies and procedures relating to inappropriate staffinmate behavior from the Federal Bureau of Prisons, the Georgia Department of Corrections, the National Institute of Corrections, and other states that ADOC believes have comprehensive policies and procedures relating to inappropriate staff-inmate behavior. Where necessary, ADOC will revise its current policies and procedures utilizing concepts and materials obtained from these sources to ensure that its policies and procedures are simple, direct, and explicitly define and prohibit inappropriate staffinmate behavior. Prior to final adoption of any revised policy and procedure, ADOC will provide DOJ with a reasonable opportunity to review the proposed policy and procedure and to consult with ADOC regarding the proposed policy and procedure.

B. Policies And Procedures Regarding This Settlement Agreement (1) ADOC will revise as necessary its policies and procedures to ensure that all of the provisions of this Settlement Agreement are incorporated into ADOC policies and procedures. (2) Prior to final adoption of any revised policy and procedure, ADOC will provide DOJ with a reasonable opportunity to review the proposed policy and procedure and to consult with ADOC regarding the proposed policy and procedure. (3) Defendants agree that policies and procedures adopted pursuant to this Settlement Agreement will continue to be implemented after the Complaint has been dismissed; provided, however, that this provision is not intended to, nor does it, prevent ADOC from changing its policies for purposes of confronting issues that could arise in the future. (4) Within three months of executing this Settlement Agreement, ADOC will notify affected employees of the changes in policy and practice and require each employee to verify that he or she is aware of the changes.

IV. PRE-EMPLOYMENT SCREENING
A. Current Non-Correctional Staff With Inmate Contact: Within six months of the execution of this Settlement Agreement, ADOC will conduct background checks on all current noncorrections staff with inmate contact who have not already undergone background checks to determine whether they have been convicted of or pled guilty or nolo contendere to any felony charge either before or after their employment with ADOC. ADOC will remove any staff that has been convicted of or pled guilty or nolo contendere to any felony charge from contact with female inmates.
B. Future Correctional Staff ADOC will continue to utilize at least the following measures prior to hiring correctional staff: tests to assess personality to be scored by a professional psychologist; fingerprints to be sent to the Federal Bureau of Investigation; investigation of information in background questionnaire including information about drivers license number and record, past employment, past education, references, criminal arrest and conviction record; National Crime Information Center record check; law enforcement agency check of agencies where applicant has lived; military discharge status; investigation of whether applicant has ever worked in ADOC prisons, and if so, whether they were the subject of investigations and allegations of inappropriate staff-inmate behavior.
C. Future Non-Correctional Staff With Significant Inmate Contact ADOC will utilize the same pre-employment screening measures for non-correctional staff who will have significant inmate contact as it does for correctional staff. If the noncorrectional staff is employed by an entity other than ADOC, ADOC will require the entity employing the non-correctional staff to utilize those same pre-employment screening measures, and will require that entity to demonstrate that each employee has passed those measures. Non-correctional staff with significant inmate contact means maintenance, kitchen, teaching, recreation, medical, dental and mental health staff; investigators; contract paralegals; off-site supervisors of work crews; substance abuse counselors; chaplains; and volunteers.
V. STAFF TRAINING
A. Training Materials ADOC will obtain pre-service and in-service training material relating to inappropriate staffinmate behavior from the Federal Bureau of Prisons, the Georgia Department of Corrections, the National Institute of Corrections, and other states that ADOC believes have comprehensive preservice and in-service training materials relating to inappropriate staff-inmate behavior. Where necessary, ADOC will

revise its current training materials utilizing concepts and materials obtained from these sources so that it will have a current, complete set of training materials relating to inappropriate staff-inmate behavior. Prior to final adoption of any new training materials, ADOC will provide DOJ with a reasonable opportunity to review the proposed training materials and to consult with ADOC regarding the proposed materials.
ADOC will revise its current training materials to incorporate all of the provisions of this Settlement Agreement. Prior to final adoption of any such revised training materials, ADOC will provide DOJ with a reasonable opportunity to review the proposed training materials and to consult with ADOC regarding the proposed materials.
ADOC will create a video describing inappropriate staffinmate behavior, how to report it, and the disciplinary action staff will incur for engaging in inappropriate staff-inmate behavior. ADOC will show the video to all current staff and all staff hired after execution of this Settlement Agreement. ADOC will enact a policy that all staff must acknowledge in writing viewing of the video, and will place a copy of this statement in their personnel files. This video will be shown yearly to all staff during in-service training. Prior to final approval for a staff training video, ADOC will provide DOJ with a reasonable opportunity to review the video, and to consult with ADOC regarding its contents.
B. Training Topics Regarding Inappropriate Staff-Inmate Behavior ADOC will continue to include in both its pre-service and in-service staff training, or will add to such training, at least the following concepts: (1) identification of what constitutes inappropriate staff-inmate behavior; (2) explanation of how inmates are harmed by inappropriate staff-inmate behavior; (3) description of how the security of the facility is jeopardized by inappropriate staff-inmate behavior; (4) a statement of the legal consequences of participating in inappropriate staff-inmate behavior; (5) a description of how to report inappropriate staff-inmate behavior, including when, how, and to whom it should be reported, with emphasis on staffs' obligation to monitor, observe, and report the behavior of other staff regarding inappropriate staff-inmate behavior and disciplinary consequences for failure to report; (6) instruction on supervising, observing, and interacting with opposite gender inmates; and (7) instruction on the privacy interests women retain while incarcerated.
C. Routine Inservice Training Subsequent to this initial in-service training, the Director of ADOC, after consultation with the Female Programs Administrator (see Section VII(A) (3) (e) below) and the Administrator for Staff Development and Training Programs, will determine the number of hours of mandatory in-

service training" covering the topics described in Section V(B) to. be required of all management, corrections officers, and noncorrectional staff with inmate contact..
D-. Pre-employment Training ADOC will include at least sixteen hours of pre-employment training covering the topics described in Section V(B) above for all newly hired management and corrections officers, and eight hours of pre-employment training covering the same topics for non-correctional staff with inmate contact. The parties disagree as to whether ADOC has in the past provided sixteen hours of preemployment training covering those topics.
VI. INMATE EDUCATION
A. Reception As part of inmates' orientation process, ADOC will provide inmates with both written (see Section VI(B) below) and oral information concerning at least the following concepts: (1) identification of what constitutes inappropriate staff-inmate behavior; (2) a statement that ADOC prohibits inappropriate staff-inmate behavior; (3) a statement of the consequences of participating in inappropriate staff-inmate behavior; (4) a description of how to report inappropriate staffinmate behavior, including when, how, and to whom it should be reported; (5) a statement on the consequences of reporting misconduct as a victim and as a witness, including assurances of confidentiality and non-retaliation, and that investigatory detention differs in significant respects from punitive detention (see Section VII(A)(3)(b)-(d) below); (6) information on the rules regarding interacting with opposite gender staff; (7) information concerning the privacy interests women retain while incarcerated; and (8) the name and address of the Female Programs Administrator to whom inmates may report inappropriate behavior.
ADOC will provide non-English speaking inmates with both oral and written translations of at least the information set forth in Section VI(A) above.
B. Inmate Handbook The information set forth in Section VI(A) above shall be provided in the inmate handbook.
C. High Visibility Reminders ADOC will post in all inmate living areas, and in other areas (such as work, recreation, and dining) in which inmates spend significant time, signs that remind readers of ADOC's prohibition of inappropriate staffinmate behavior.

VII. FACILITATION AND ENCOURAGEMENT OF INMATE AND STAFF REPORTING OF ALLEGATIONS OF INAPPROPRIATE STAFF-INMATE BEHAVIOR
A. Tnmate Reporting ADOC will take all reasonable measures to encourage inmates to report inappropriate staffinmate behavior, and to reduce fear of reporting inappropriate staff-inmate behavior, including, but not limited to, the following. The parties disagree as to whether ADOC has in the past taken all reasonable measures to encourage inmate reporting of inappropriate staff-inmate behavior.
1. Verbal reporting ADOC will continue its practice of allowing inmates to orally report inappropriate staff-inmate behavior, and will respond to such oral allegations as it would a written complaint.
2. Grievances/Kites/Letters ADOC will continue to encourage inmates who allege to have suffered from inappropriate staff-inmate behavior to report such allegations through grievances, kites or letters.
3. Minimization of Deterrents to Reporting
a. Limits on Investigative Detention Inmates will continue to be confined for investigative detention a maximum of thirty days, unless extension is authorized by the Deputy Director of Prison Operations, for exigent circumstances.
b. Conditions of Investigative Detention ADOC management will take all reasonable measures to make conditions of investigative detention as similar to regular housing as possible. ADOC will minimize the restrictions on the conditions of investigative detentions, including, but not limited to, allowance of property pursuant to policy, out-of-cell time, noninmate visitation, mail and phone calls. The parties disagree as to whether ADOC has in the past taken all reasonable measures to make conditions of investigative detention as similar as possible to regular housing.
c. Confidentiality ADOC will take all reasonable steps to ensure the confidentiality of inmates who report inappropriate staff-inmate behavior, including, but not limited to, warnings not to discuss investigations, and disciplinary action if the confidentiality of an investigation is compromised intentionally by an inmate.
d. Prohibition of Retaliation Aaainst Inmates ADOC will continue to prohibit retaliation by staff or inmates against inmates who report inappropriate staff-inmate behavior by maintaining its policy of investigating reports of retaliation

and by continuing to allow inmates.-feo present retaliation as a defense in disciplinary violation proceedings.
e. Female Programs Administ-.rai-.nr' ADOC will appoint a Female Programs Administrator, who will be based at Central Office. Inmates will be permitted to write the Female Programs Administrator in confidence about allegations of inappropriate staff-inmate behavior; such confidentiality, however, will not preclude ADOC investigations of inmate allegations. Information about the Female Programs Administrator will be provided to inmates at orientation and in the inmate handbook. The Female Programs Administrator will have appropriate experience and training necessary to address inappropriate staff-inmate behavior in women's prisons, including but not limited to the training identified in Section VIII(A) below. The Female Programs Administrator will conduct frequent random interviews of inmates regarding, at a minimum, inappropriate staff-inmate behavior. These interviews will be documented and the interview notes preserved. The Female Program Administrator will have the authority to request a criminal or administrative investigation of any allegations of inappropriate staff-inmate behavior.

B. Staff Reporting ADOC will continue to take all reasonable measures to encourage staff to report inappropriate staff-inmate behavior, and to reduce fear of reporting inappropriate staff-inmate behavior, including, but not limited to the following:

1. Confidentiality ADOC will continue to ensure the confidentiality of staff who report inappropriate staff-inmate behavior, including, but not necessarily limited to, warnings not to discuss investigations, and disciplinary action if the confidentiality of an investigation is compromised intentionally by an employee.

2. Prohibition of Retaliation Against Staff ADOC will continue to prohibit retaliation by staff against staff who report inappropriate staff-inmate behavior.

VIII.

INVESTIGATION OF ALLEGATIONS OF INAPPROPRIATE STAFFINMATE BEHAVIOR

A. Investigator Training ADOC investigators will receive training specific to conducting inappropriate staff-inmate behavior investigations in a prison setting. Investigators will continue to have on-the-job investigative experience regarding general investigations techniques.

B. Temporary Transfer of Employee ADOC will continue its practice of removing staff accused of serious sexual misconduct

from all-contact with female inmates pending the outcome-of-the investigation. ADOC will revise- its policies to reflect this practice.
C. Timely Investigations Absent unusual circumstances, ADOC will complete investigations of allegations of inappropriate staff-inmate behavior within 30 days of receipt of the allegation. The investigator must document in writing the reasons why an investigation cannot be completed in 30 days, and that document will be reviewed by ADOC investigative management. The parties disagree as to whether in the past ADOC has consistently completed investigations in thirty days.
D. Complete. Effective. And Unbiased Investigations
1. Interviewing Witnesses ADOC will interview all potential witnesses in inappropriate staff-inmate behavior investigations, and will actively seek out potential witnesses by interviewing inmates who live or work with the alleged victim and staff who work with the alleged suspect. Inmate witnesses will be interviewed for equal lengths of time when that is necessary to eliminate the perception that some inmates were more cooperative with the authorities than others. The parties disagree as to whether in the past ADOC has consistently interviewed all potential witnesses.
2. Following Leads ADOC will interview all persons named as possible witnesses, victims, or suspects, by other witnesses, victims, or suspects in inappropriate staff-inmate behavior investigations. The parties disagree as to whether in the past ADOC has consistently followed all investigative leads.
3. Polygraphs ADOC will continue to routinely offer inmates and staff the opportunity of polygraph examinations to support their contentions.
4. gearch For Past Conduct ADOC will ensure that every inappropriate staff-inmate behavior investigation includes a search for past investigations concerning inappropriate staffinmate behavior, whether or not sustained, against the alleged perpetrator, and that investigators include previous investigations or discipline related to inappropriate staffinmate behavior in their investigation of current allegations. Gathering this information will be the final step in the investigative process before forwarding findings to the approving authority or prosecutor.
5. Continuation Of Investigations and Other Inquiries Following an Employee's Resignation ADOC will continue its practice of continuing criminal investigations of inappropriate staff-inmate behavior even after an employee resigns. When an employee resigns during the course of an administrative
8

investigation of inappropriate staff-Inmate behavior, ADOC wardens and deputy wardens will have the discretion to continue an inquiry into whether there are sufficient administrative concerns (e.g.. an interest in determining the full scope of any inappropriate- conduct,^ or an interest in determining whether* the •^ alleged inappropriate"conduct has systemic implications that should be considered by ADOC) that warrant a continued inquiry into the subject matter of the investigation. ADOC wardens and deputy wardens will have the discretion to discuss any information obtained from administrative investigations in which the staff member resigned in the Post-Incident Management Review meetings described at IX(G) below.
E. Inference Regarding Staff Members Who Rpsion While Under Investigation The resignation of a staff member while that staff member is under investigation for inappropriate staffinmate behavior shall be considered an admission that the staff member did in fact engage in the inappropriate behavior unless there is credible evidence to the contrary, and shall prevent that staff from being rehired by ADOC.
F. Mandatory Staff Participation In Investigations ADOC will discipline (up to and including dismissal) staff who are accused of sexual misconduct and who refuse to cooperate with an investigation.
G. Response to Allegations Arising In This Lawsuit ADOC will continue or begin to investigate all allegations of sexual misconduct and invasions to privacy set forth in the expert reports and exhibits to expert reports in this case, or in depositions in this case.
IX. PROACTIVE SEARCH FOR AND APPROACH TO INAPPROPRIATE STAFFINMATE BEHAVIOR
A. Minimization of One on One Situations ADOC will implement a new policy that requires male staff to notify their supervisor when they will be alone in a secluded area with a female inmate and require the supervisor to be responsible for monitoring the situation. Existing policy will include language to the effect that staff shall minimize the situation where a female inmate and male staff are alone together. The following exceptions apply to this provision: emergencies, medical care, counseling, questioning during investigations, and reporting of confidential information. This provision will be satisfied if one staff is in the presence of two or more inmates.
B. Minimization of Access to Secluded Areas ADOC will undertake an examination of its female facilities to determine inmate and staff access to secluded areas conducive to inappropriate staff-inmate behavior. ADOC will take all

reasonable measures to eliminate access to secluded areas that is not necessary for the operation of those facilities.
C. Monitoring For Secluded Areas ADOC will increase the monitoring of secluded areas that are necessary for female facility operations by ensuring that supervisors conduct rounds of secluded areas at routine intervals not to exceed one hour between intervals.
D. Random Inmate Interviews By Female Programs Administrator As discussed above, the Female Programs Administrator will conduct random, periodic, confidential, and private interviews with inmates and staff, regarding, at a minimum, inappropriate staff-inmate behavior. These interviews will be documented and interview notes preserved consistent with the state's records retention schedule. Nothing in this provision shall be interpreted to mean that the Female Programs Administrator can not, in order to initiate or assist in an investigation of inappropriate staff-inmate behavior, share with ADOC investigators and management information obtained by the Administrator in random inmate and staff interviews.
E. Creation of Inappropriate Staff-Inmate Behavior Files ADOC will maintain its central data base storing information concerning inappropriate staff-inmate behavior, consisting of investigations, whether substantiated or not. The data base will continue to be searchable by, at a minimum, inmate and staff name, and by type of inappropriate staff-inmate behavior. Investigators, management and personnel officers will have access to this data base. The data base will be queried prior to accepting staff transfers or re-hires.
F. Automatic Review Of Employees Who Are The Subject Of Multiple Allegations Using the data base described in Section IX(E) above, ADOC will create a tracking system of inappropriate staff-inmate behavior allegations against staff that allows ADOC to know when a staff person has been the subject of more than two inappropriate staff-inmate behavior allegations within the past five years. ADOC will conduct a quarterly search of the data base. All staff who are shown in a quarterly review to have been the subject of more than two inappropriate staff-inmate behavior allegations within the past five years shall be the subject of a management review during which appropriate action will be taken regarding the employee, including, but not limited to, the following options: a meeting with supervisors, a referral to an employee assistance program, retraining, or reassignment to a different facility. Quarterly reviews and all action taken pursuant to this paragraph will be documented.
G. Post-Incident Management Review ADOC management will conduct semi-annual meetings, which will include the Female Programs Administrator, to discuss substantiated incidents of
10

inappropriate staff-inmate behavior and how they couid -have been avoided. Significant information resulting from such review will be considered for inclusion in ADOC training materials.
X. RESPONSE TO SUBSTANTIATED MISCONDUCT
A. Staff Discipline Staff who resign in lieu of termination during an inappropriate staff-inmate behavior investigation will not be eligible for rehire.. The parties disagree as to whether ADOC has consistently in the past made such staff ineligible for rehire after two years. ADOC will continue its policy that progressive discipline will not be allowed in serious substantiated sexual misconduct cases. ADOC will continue to investigate and take disciplinary action against any staff member who had knowledge of substantiated inappropriate staff-inmate behavior and failed to report it.
B. Inmate Psychological Services ADOC will offer psychological services to any inmate involved or alleged to have been involved in inappropriate staff-inmate behavior with staff, to assist in recovering from the misconduct and to protect them from future incidents of misconduct.
XI. INMATE PRIVACY WHILE DRESSING, SHOWERING, AND TOILETING
A. Showers and Dressing At Manzanita ADOC will, in its sole discretion, at the ASPC-Tucson, Manzanita Unit, either (a) install privacy screens in the toilet and shower areas, or (b) schedule two daily fifteen-minute time periods for inmates to shower and/or dress. During these designated time periods, ADOC will make its best efforts to have only female staff monitoring the shower and dormitory areas, absent exigent circumstances, so that inmates who are concerned about showering and/or dressing when male staff are present, may have the opportunity to shower and/or dress under the supervision of female staff. Nothing in this provision shall affect equal employment opportunity rights.
B. Knock And Announce Policies ADOC will emphasize appropriate cross-gender supervision in pre-service and inservice training. Correctional officers will be trained that absent exigent circumstances and reasonable suspicion of inappropriate behavior, male officers will, in ADOC's view, as a courtesy, announce their presence into areas where inmates could be in a state of undress.
XII. SPECIAL PROTECTIONS FOR JUVENILES AND PERSONS WITH MENTAL ILLNESS OR MENTAL RETARDATION
ADOC will provide special protections for juvenile inmates and inmates with mental illness or mental retardation, including but not limited to, the following: (a) ADOC will continue its
11

current staffing policies—regarding juvenile inmates and inmates confined in the Flamenco Mental Health Unit; (b) -special emphasis on random inmate interviews by the Female Programs Administrator of such inmates; (c) training for all staff regarding the identification and particular vulnerability to inappropriate staff-inmate behavior of such inmates; and (d) the Female Programs Administrator will assess the feasibility of eliminating situations in*which such inmates can be alone with staff.

XIII.

SCREENING OF INMATES REGARDING PAST HISTORIES OF PHYSICAL OR SEXUAL ABUSE

ADOC will continue to have trained mental health professionals conduct adequate screening of all current and new inmates regarding pre-incarceration histories of. physical and/or sexual abuse, and will ensure that such inmates are provided mental health services upon their request so that they may minimize the likelihood that they will become victims of inappropriate staff-inmate behavior.

XIV. QUALITY ASSURANCE PROGRAM

ADOC will establish a quality assurance program to assess regularly (a) the background investigation process to screen ADOC and non-ADOC employees with inmate contact; (b) inmate understanding of the rules and regulations governing inappropriate staff-inmate behavior, how to report misconduct and privacy violations, and the consequences of reporting; and (c) the competency of inappropriate staff-inmate behavior investigations, including compliance with policy. ADOC will continue to review on a quarterly basis, its pre-service and inservice training programs.

XV. MONITORING OF SETTLEMENT AGREEMENT, TIME FRAME FOR SUBSTANTIAL COMPLIANCE, AND TERMINATION OF THE LITIGATION

A. Conditional Dismissal Under Rule 41(a) Upon execution of this Settlement Agreement, the parties will jointly move the Court for entry of an Order conditionally dismissing this action, pursuant to Fed. R. Civ. P. 41(a)(2), conditional upon Defendants achieving substantial compliance with its terms, and will attach this Settlement Agreement to such motion. The motion will request that the case be placed on the Court's inactive docket, though the Court shall retain jurisdiction over the case until a final dismissal.
B. Reactivation Of Litigation If Defendants fail to achieve substantial compliance with the terms of this Settlement Agreement within the time frames and under the conditions listed below, the United States may file a motion to restore this case to the Court's active docket for purposes of litigating the
12

- a-1 legations in the Complaint. However, the Unite'd States reserves the right to -file a motion to restore this case to the Court's active docket for purposes of litigating the allegations in the Complaint at any time if it believes that defendants are not making a good faith effort- to substantially comply with the Settlement Agreement. Plaintiff shall give defense counsel 14 calendar day written notice before the filing of such motion.
C. Monitoring And Time Frames For Compliance DOJ and a jointly agreed on expert, who must be selected and contracted with before this Settlement Agreement is executed, will have reasonable access to female inmates and staff, ADOC documents, information relating to implementation of this Settlement Agreement, and to allegations of inappropriate staff-inmate behavior for the purpose of monitoring Defendants' implementation of the Settlement Agreement. The parties will equally fund the joint expert's activities.
No more than one DOJ attorney, one ADOC attorney, and the joint expert will conduct initial on-site compliance monitoring tours of ADOC female facilities approximately three months after execution of this Settlement Agreement. Neither DOJ nor the joint expert shall add provisions or expand the scope of this Settlement Agreement in any manner. Within 3 0 days of the end of the initial compliance tour, the joint expert shall inform the parties in writing of his or her opinion of Defendants' compliance with each of the terms of this Settlement Agreement, including identifying any deficiencies in compliance.
No more than one DOJ attorney, one ADOC attorney, and the joint expert will conduct a second on-site compliance monitoring tour of ADOC female facilities approximately six months after execution of this Settlement Agreement. Within 3 0 days of the end of the second compliance tour, the joint expert shall inform the parties in writing of his or her opinion of Defendants' compliance with the terms of this Settlement Agreement, including identifying any deficiencies in compliance. If the joint expert determines that Defendants have substantially complied with each of the terms of the Settlement Agreement, the parties will file a stipulation to dismiss containing the following language: "The United States agrees that dismissal of this action is appropriate. There is no pattern or practice of Defendants violating female inmates' constitutional rights to be free from sexually inappropriate behavior and unnecessary invasions of privacy. The Arizona Department of Corrections remains committed to eliminating inappropriate staff-inmate behavior."
If necessary, no more than one DOJ attorney, one ADOC attorney, and the joint expert shall conduct a third compliance tour approximately nine months after execution of this Settlement Agreement. Within 3 0 days of the end of the third compliance
13

tour, the joint expert-shall inform the parties in writing of his or her opinion of Defendants' compliance with each of the terms of this Settlement Agreement," including whether any deficiencies in compliance identified by the joint expert"after the second compliance tour have been remedied. If the joint expert determines that Defendants have not substantially complied with the Settlement Agreement, DOJ may file a motion to restore the case to the Court's active docket for purposes of litigating the allegations in the Complaint, and Defendants agree not to contest such motion. Neither DOJ nor the Defendants shall file a motion or suit for specific performance of the Settlement Agreement. However, if the joint expert determines Defendants have substantially complied with the Settlement Agreement, consistent with the time lines set forth above, the parties will file a stipulation to dismiss containing the above-quoted language.
D. Substantial Compliance "Substantial compliance" with the terms of the Settlement Agreement will fully satisfy the Settlement Agreement. Isolated and unintentional incidents will not constitute noncompliance.
XVI. EVIDENCE
In the event this action goes to trial, nothing contained in this Settlement Agreement will be introduced as evidence.
Dated:
FOR THE PLAINTIFF

JOSE DE JESUS RIVERA United States Attorney District of Arizona

RILL LANN LEE Acting Assistant Attorney General Civil Rights Division

STEVEN H. ROSENBAUM Chief Special Litigation Section

14

BOB BARTELS Special Assistant. United States AttorneyCollege of Law Arizona State University Tempe, Arizona -85287 (602) 965-7053
FOR THE DEFENDANTS:

NELLIE NELSON MARK MASLING SHELLEY JACKSON CHRISTY LOPEZ Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6252
TERRY Directc Arizona Department of Corrections
JEANNE GARCIA-RILEY WILLIAM C. WILDER JAMES R. MORROW Assistant Attorneys General Arizona Attorney General Office 1275 West Washington Phoenix, Arizona 85007 (602) 542-7632

15

 
 U.S. District Court Web PACER(v2.4) Docket Report

Page 1 of 20

Docket as of January 18, 2003 2:21 am

Web PACER (v2.4)

U.S. District Court
U.S. District Court for the District of Arizona (Phoenix)
CIVIL DOCKET FOR CASE #: 97-CV-476
USA v. Arizona, State of, et al
Filed: 03/10/97 Assigned to: Judge Roslyn O Silver
Demand: $0,000 Nature of Suit: 440 Lead Docket: None Jurisdiction: US Plaintiff Dkt# in other court: None Cause: 42:1983 Civil Rights Act

UNITED STATES OF AMERICA pla

Robert Donald Bartels, Esq FAX (480)965-2427 [COR LD NTC usa] Arizona State University College of Law PO Box 877906 Tempe, AZ 85287-7906 (480)965-5379
Mark S Masling [COR LD NTC -] Mellie H Nelson FTS 514-6220 FAX (202)514-0212 [COR LD NTC -] US Dept of Justice Civil Rights Division PO Box 66400 Room 1714 Washington, DC 20035-6400 (202)514-6252
Lee David Stein, Esq Below Address Terminated on 5/15/00 [COR LD NTC -] US Attorney's Office 2 Renaissance Sq 40 N Central Ste 1200 Phoenix, AZ 85004-4408

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========================
ARIZONA, STATE OF dft

(602)514-7500
Jeanne Garcia-Riley, Esq FAX (602)364-0080

======================== JOHN FIFE SYMINGTON, III, Governor of Arizona
dft [term 08/19/98]
======================== TERRY STEWART, Director, Arizona Department of Corrections
dft
======================== DALE COPELAND, Warden, Arizona Center for Women and ASPCAlhambra
dft

[COR LD NTC ret] William Charles Wilder FAX (602)364-0080 [COR LD NTC ret] Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007-2997 (602)542-4951
Jeanne Garcia-Riley, Esq FAX (602)364-0080 [COR LD NTC ret] Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007-2997 (602)542-4951
Jeanne Garcia-Riley, Esq FAX (602)364-0080 [COR LD NTC ret] William Charles Wilder FAX (602)364-0080 [COR LD NTC ret] Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007-2997 (602)542-4951
Jeanne Garcia-Riley, Esq FAX (602)364-0080 [COR LD NTC ret] William Charles Wilder FAX (602)364-0080 [COR LD NTC ret] Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007-2997 (602)542-4951

========================

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JEFF HOOD, Warden, ASPCPerryville
dft
======================== JOHN R HALLAHAN, Warden, ASPCTucson
dft
======================== JANE D HULL, Governor of Arizona
dft
======================== SHAWNA POLLARD

Jeanne Garcia-Riley, Esq FAX (602)364-0080 [COR LD NTC ret] William Charles Wilder FAX (602)364-0080 [COR LD NTC ret] Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007-2997 (602)542-4951
Jeanne Garcia-Riley, Esq FAX (602)364-0080 [COR LD NTC ret] William Charles Wilder FAX (602)364-0080 [COR LD NTC ret] Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007-2997 (602)542-4951
Jeanne Garcia-Riley, Esq FAX (602)364-0080 [COR LD NTC ret] William Charles Wilder FAX (602)364-0080 [COR LD NTC ret] Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007-2997 (602)542-4951
David L Sandweiss, Esq

intervenor

[COR LD NTC -] David L Sandweiss Ltd 5045 N 12th St Ste 102 Phoenix, AZ 85014 277-4076
Bruce E Blumberg, Esq FAX (602)271-4119 [COR LD NTC -] Blumberg & Associates 45 W Jefferson Ste 210 Phoenix, AZ 85003 (602)277-6180

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DOCKET PROCEEDINGS

DATE #

DOCKET ENTRY

3/10/97 1 3/12/97 2 3/12/97 3 3/12/97 4 3/12/97 5 3/12/97 6 3/19/97 7 3/31/97 9 3/31/97 10 3/31/97 11 3/31/97 12 4/1/97 8
4/2/97 13

COMPLAINT FILED (ms) [Entry date 03/12/97]
RETURN OF SERVICE EXECUTED of s/c upon dft Jeff Hood on 3/11/97 (jh) [Entry date 03/13/97]
RETURN OF SERVICE EXECUTED of s/c upon dft Dale Copeland on 3/10/97 (jh) [Entry date 03/13/97]
RETURN OF SERVICE EXECUTED of s/c upon dft Arizona, State of on 3/10/97 (jh) [Entry date 03/13/97]
RETURN OF SERVICE EXECUTED of s/c upon dft Terry L Stewart on 3/10/97 (jh) [Entry date 03/13/97]
RETURN OF SERVICE EXECUTED of s/c upon dft J Fife Symington III on 3/10/97 (jh) [Entry date 03/14/97]
RETURN OF SERVICE EXECUTED of s/c upon dft John Hallahan on 3/10/97 (jh) [Entry date 03/20/97]
MOTION to stay discovery by dfts [9-1] (jh) [Entry date 04/02/97]
MOTION for more definite statement by dfts [10-1] (jh) [Entry date 04/02/97]
MOTION to dismiss by (all) dfts [11-1] (jh) [Entry date 04/02/97]
NOTICE OF HEARING by dft setting motion to dismiss by (all) dfts [11-1] at 1:30 12/8/97 (jh) [Entry date 04/02/97]
ORDER by Judge Roslyn O. Silver ; status hearing set for 9:00 4/21/97, before Judge Roslyn O. Silver (cc: all counsel) (la) [Entry date 04/01/97]
MINUTE ORDER IT IS ORDERED setting motion for more definite statement by dfts [10-1] at 11:00 on 5/21/97 before Judge Roslyn O. Silver in Courtroom 5, 6th Floor. (cc: JS; all counsel) [13-2] (ph) [Entry date 04/02/97]

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4/2/97 14 4/4/97 15
4/10/97 16 4/10/97 17 4/10/97 18 4/16/97 19 4/18/97 20 4/21/97 21
4/21/97 22 4/21/97 23 4/21/97 24 4/21/97 25 4/21/97 26 4/28/97 27 5/2/97 28

MINUTE ORDER; IT IS ORDERED setting motion to stay discovery by dfts [9-1] at 11:00 on 5/12/97 before Judge Roslyn O. Silver in Courtroom #5, 6th Floor (cc: JS; all counsel) [14-2] (ph) [Entry date 04/02/97]
AMENDED MINUTE ORDER IT IS ORDERED setting motion for more definite statement by dfts [10-1], and setting motion to stay discovery by dfts [9-1] at 11:00 on 5/12/97 before Judge Roslyn O. Silver, Courtroom #5, 6th floor. (cc: all counsel/JS) [15-2] (rg) [Entry date 04/04/97]
Memo of Law in opposition (RESPONSE) by pla USA to motion to stay discovery by dfts [9-1] (jh) [Entry date 04/10/97]
Memo of Law in opposition (RESPONSE) by pla USA to motion for more definite statement by dfts [10-1] (jh) [Entry date 04/10/97]
Memo of Law in opposition (RESPONSE) by pla USA to motion to dismiss by (all) dfts [11-1] (jh) [Entry date 04/10/97]
Unopposed MOTION to reschedule oral argument on mtn to dismiss by pla USA [19-1] (jh) [Entry date 04/17/97]
ORDER by Judge Roslyn O. Silver granting motion to reschedule oral argument on mtn to dismiss by pla USA [19-1]; re-setting motion to dismiss by (all) dfts [11-1] at 9:00 7/18/97 (cc: all counsel) (ms) [Entry date 04/18/97]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances: Robert Bartels for Plas; Jeanne Garcia-Riley, James Morrow, Darrin Delunge for Dfts. Status hearing held. Pla exhibits 1 and 2 marked and admitted. Robert Bartels sworn and examined. The Court finds no reason at this time to recuse itself. Cnsl may file a motion to recuse within 10 days of today. Cnsl to confer to resolve the issue of the records. IT IS FURTHER ORDERED, upon request of counsel, resetting motion to dismiss by (all) dfts [11-1] from 7/18/97 to 7/11/97 at 9:00 am. [cc: JS [21-2] (rg) [Entry date 04/21/97]
REPLY by dft to response to motion to dismiss by (all) dfts [11-1] (jh) [Entry date 04/22/97]
REPLY by dft to response to motion to stay discovery by dfts [9-1] (jh) [Entry date 04/22/97]
REPLY by dft to response to motion for more definite statement by dfts [10-1] (jh) [Entry date 04/22/97]
EXHIBIT LIST submitted by pla (jh) [Entry date 04/24/97]
EXHIBIT LIST submitted by dft (jh) [Entry date 04/24/97]
ATTORNEY APPEARANCE for pla USA by Robert Donald Bartels (jh) [Entry date 04/30/97]
NOTICE concerning recusal by dft (jh) [Entry date 05/07/97]

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5/12/97 29
5/13/97 30 5/16/97 31 5/30/97 32 6/3/97 33 6/4/97 34
6/6/97 35 6/11/97 36 6/17/97 37 6/19/97 38

MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances: Shelley Jackson, Robert Bartels, Mark Masling, Lee Stein for Pla; Jeanne Garcia-Riley, Darrin DeLange, James Morrow for Dfts. Motion hearing held. IT IS ORDERED denying motion to stay discovery by dfts [9-1], denying motion for more definite statement by dfts [10-1]. Counsel are advised to bring discovery disputes to the attention of the Court. Counsel are to file mtns in limine prior to the final pretrial conference and a brief memorandum of law. All issues will be resolved at the final pretrial conference. The Court has submitted the recusal matter to another judge for determination. [cc: JS [29-1] (rg) [Entry date 05/12/97]
ORDER by Judge Roslyn O. Silver denying motion for more definite statement by dfts [10-1], denying motion to stay discovery by dfts [9-1] (cc: all counsel) (ms) [Entry date 05/13/97]
ORDER by Judge Roslyn O. Silver re: notice [28-1], ORD matter referred by lot to Judge SMM for the purpose of determing whether recusal is appropriate; in conjunction with this evaluation a copy of the transcript of the hrg of 4/21/97 will be provided to Judge McNamee (cc: all counsel/SMM) (jh) [Entry date 05/19/97]
MOTION for reconsideration of Court's Order of 5/12/97 by dfts (all) [32-1] (ms) [Entry date 06/02/97]
NOTICE to the court re discovery issue in dispute to be discussed at 6/4/97 telephnc conf by dft (jh) [Entry date 06/04/97]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances telephonic: Mark Masling for Pla; James Morrow, Darrin Delange for Dfts. Discovery dispute hearing held. IT IS ORDERED counsel are to meet and confer to draft an order to the Court, for signature, regarding the discovery disputes resolved today. [cc: JS [34-2] (rg) [Entry date 06/04/97]
MEMORANDUM by USA re inmates' right to speak privately w/US Reps & US' right not to provide dfts w/advance notice of particular inmates to be interviewed (jh) [Entry date 06/10/97]
ORDER by Judge Roslyn O. Silver denying motion for reconsideration of Court's Order of 5/12/97 by dfts (all) [32-1] (cc: all counsel) (jh) [Entry date 06/11/97]
STATEMENT on proposed R.16 scheduling order by USA (jh) [Entry date 06/18/97]
NOTICE of service of initial disclosure statement pursuant to FRCivP 26(a) by Arizona, State of, J Fife Symington III (jh) [Entry date 06/20/97]

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6/19/97 39 6/23/97 40
6/23/97 41 6/23/97 42 6/24/97 43
6/24/97 44 6/25/97 45 6/26/97 46 6/30/97 47 7/3/97 48 7/9/97 50 7/11/97 49
7/15/97 51

NOTICE by pla USA of additional authority (jh) [Entry date 06/20/97]
MINUTE ORDER Upon request of parties, IT IS ORDERED setting a telephonic dispute re: Rule 16 Order at 1:30 p.m. on 6/24/97 before the Honorable Roslyn O. Silver.(cc: all counsel/JS) [40-1] re: order [40-1] (rg) [Entry date 06/23/97]
NOTICE by dft of lodging proposed order re inmate interviews & depositions (jh) [Entry date 06/24/97]
NOTICE of initial disclosures pursuant to FRCivP 26(a) by USA (jh) [Entry date 06/24/97]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances telephonic: Mark Masling for Pla; Jeanne Garcia-Riley, James Morrow, Darrin Delange for the Dfts. Hearing on discovery dispute held. IS ORDERED parties are to resubmit the Rule 16 Order and the Case Management Plan by 7/3/97. Parties are to draft an order for the Court's signature re: the resolution of the discovery disputes The Rule 16 hearing is set on July 11, 1997 at 9:00 a.m. [cc: JS [43-2] (rg) [Entry date 06/24/97]
MEMORANDUM & Three Expert Declarations Concerning Safety During Private Inmate Interviews by USA (jh) [Entry date 06/25/97]
ORDER by Judge Roslyn O. Silver ; prel scheduling conf set for 9:00 7/11/97 (cc: all counsel) (jh) [Entry date 06/25/97]
TRANSCRIPT of proceedings by Court Reporter: Gary Moll for the following date(s): 6/24/97 (jh) [Entry date 06/27/97]
NOTICE by dft of service of response to request for prod of docs (jh) [Entry date 07/01/97]
Proposed Case Mgmt Plan: 42c due 7/1/98; Discovery cutoff 4/30/98; Motion filing ddl is 7/1/98 (jh) [Entry date 07/04/97]
STATEMENT RE TWO DISCOVERY DISPUTES TO BE ARGUED ON 7/11/97 by pla, all dfts (la) [Entry date 07/14/97]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: GARY MOLL Hearing held denying motion to dismiss by (all) dfts [11-1]. Deft may have until 7/23/97 to file their Answer to the complaint. Discovery issues argued and rulings made as stated on the record. Scheduling conference held. The Court will enter its scheduling order. [49] (mi) [Entry date 07/11/97]
ORDER by Judge Roslyn O. Silver denying motion to dismiss by (all) dfts [11-1]; vacating the hearing set for 9:00 am on Fri, 7/11/97 to hear oral argument on dft's motion to dismiss (cc: all counsel) (la) [Entry date 07/15/97]

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7/16/97 52 7/16/97 53 7/17/97 54 7/18/97 55 7/23/97 56 7/28/97 59 7/28/97 60 7/29/97 57 7/29/97 58
7/30/97 61
7/31/97 62 8/4/97 63

ORDER by Judge Stephen M. McNamee recusing himself from cnsideration of whether Judge Silver should recuse herself; this matter has been reassigned by random lot to Judge Broomfield for consideration of the recusal issue (cc: all counsel/ROS/RCB) re: order [52-1] (la) [Entry date 07/16/97]
TRANSCRIPT of Rule 16 scheduling conference by Court Reporter: Gary Moll for the following date(s): 7/11/97 (mm) [Entry date 07/17/97]
MINUTE ORDER: status hearing re Joint Pretrial Schedule filed 7/3/97 set for 2:00pm, MONDAY, SEPTEMBER 15, 1997 before Judge Broomfield, Courtroom #3, Seventh Floor (cc: all counsel) [54-2] (bl) [Entry date 07/17/97]
MINUTE ORDER: status hearing 9/15/97 set in error and is VACATED;in court hearing re Recusal issue of Judge Silver set for 4:30pm, TUESDAY, JULY 29, 1997 before Judge Broomfield, Courtroom #3, Seventh Floor (cc: all counsel/SMM/ROS) [55-4] (bl) [Entry date 07/18/97]
ANSWER by (all) dfts (jh) [Entry date 07/25/97]
NOTICE by pla of service of 1st set of interrogs (jh) [Entry date 07/30/97]
Parties' STATEMENTS re discovery dispute to be argued 7/30/97 by pla (jh) [Entry date 07/30/97]
ORDER by Judge Roslyn O. Silver denying motion for reconsideration of Court's Order of 5/12/97 by dfts (all) [32-1] (cc: all counsel) (la) [Entry date 07/29/97]
MINUTE ENTRY: Judge Inits: RCB: Crt Rptr: R.Huckaby-Cotton ECR:in court hearing held. cnsl to submit to RCB w/i 5 days documents in which they agree w/a letter to that agreement; if there is no agreement on the documents to be submitted, cnsl will be given an additional 5 days to submit the additional documents. [cc: SMM/ROS] [58-2] (bl) [Entry date 07/29/97]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances: Robert Bartels, Shelley Jackson (telephonic) for Pla; Darrin DeLange, James Morrow for Dfts. Discovery dispute hearing held. IT IS ORDERED parties are to file a brief not more than 5 pages in length. The Court will determine if further hearing is needed. IT IS FURTHER ORDERED denying the confidential informer privilege and request protective order. [cc: JS [61-1] re: minute entry [61-1] (rg) [Entry date 08/01/97]
NOTICE by dft of service of discovery (jh) [Entry date 08/02/97]
ORDER by Judge Roslyn O. Silver that pla's supplemental brief shall be filed no later than Mon, 8/11/97; that dft's supplemental brief shall be filed no later than Thurs,

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8/5/97 64 8/7/97 65 8/11/97 66 8/12/97 67 8/13/97 68 8/19/97 69 8/21/97 70 8/25/97 71
8/27/97 73
8/27/97 74 8/28/97 72 9/4/97 75 9/8/97 76 9/10/97 77 9/16/97 78

8/21/97; hearing to resolve discovery dispute set for 1:30 8/25/97 (cc: all counsel) (la) [Entry date 08/04/97]
NOTICE by dft of submitting documents to Judge Broomfield to assist in determining recusal issue (jh) [Entry date 08/07/97]
TRANSCRIPT of proceedings held by Court Reporter: Gary Moll for the following date(s): 4/21/97 (jh) [Entry date 08/08/97]
SUPPLEMENTAL Brief re appropriate options to address the impact of ARS Sec 13-1419(B) on discovery by pla USA (jh) [Entry date 08/12/97]
SUPPLEMENTAL legal memo to notice concerning recusal by dft (jh) [Entry date 08/13/97]
TRANSCRIPT of proceedings by Court Reporter: Gary Moll for the following date(s): 4/21/97 (jh) [Entry date 08/14/97]
ORDER by Judge Robert C. Broomfield denying notice (motion) for recusal (cc: all counsel/ROS) (la) [Entry date 08/19/97]
RESPONSE by Arizona, State of, J Fife Symington III to pla's supplemental brief [66-1] (jh) [Entry date 08/22/97]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances: Robert Bartels for Pla; Jeanne Garcia-Riley Darrin DeLange, James Morrow for Dfts. Discovery dispute hearing held re: inmate interview/work product privilege for Pla's attorney's and expert's mental impressions. IT IS ORDERED taking this matter under advisement. [cc: JS [71-2] (rg) [Entry date 08/26/97]
TRANSCRIPT of Proceedings by Court Reporter: Gary Moll for the following date(s): 7/30/97 (jh)
[Entry date 08/29/97]
TRANSCRIPT of Proceedings by Court Reporter: Gary Moll for the following date(s): 8/25/97 (jh) [Entry date 08/29/97]
MOTION for reconsideration by dft [72-1] (jh) [Entry date 08/29/97]
NOTICE by all dfts of service of discovery responses (la) [Entry date 09/05/97]
RESPONSE by pla to motion for reconsideration by dft [72-1] (jh) [Entry date 09/10/97]
ORDER by Judge Robert C. Broomfield denying motion for reconsideration by dft [72-1] (cc: all counsel) (jh) [Entry date 09/10/97]
PROTECTIVE ORDER by Judge Roslyn O. Silver : re: minute entry [71-2], granting pla's request for a protective order

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9/29/97 79 10/6/97 80
10/10/97 81 10/10/97 82 10/15/97 83
11/4/97 85 12/1/97 86 12/11/97 87 12/15/97 88 12/15/97 89 12/18/97 90 12/22/97 91 12/29/97 92
12/29/97 93

(cc: all counsel) (jh) [Entry date 09/16/97]
NOTICE by dft of service of discovery (jh) [Entry date 10/01/97]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances: Lee Stein, Mark Masling, Kristy Lopez, Robert Bartels for Pla; Darrin Delange, James Morrow, Jeanne Garcia-Riley for Dfts. Discovery dispute re: confidentiality of depos hearing held and resolved as stated in Court this date. Counsel is to prepare and Order for the Courts signature regarding what persons are allowed access to the depositions. [cc: JS [80-1] re: minute entry [80-1] (rg) [Entry date 10/06/97]
SEALED Document: ME of 10/10/97 (jh) [Entry date 10/15/97]
TRANSCRIPT of proceedings by Court Reporter: Gary Moll for the following date(s): 10/6/97 (jh) [Entry date 10/15/97]
ORDER by Judge Roslyn O. Silver re: minute entry [80-1], only atys for ptys, their paralegals & legal assistants & crt reporters may attend inmate depos; all inmate depos shall be sealed... (cc: all counsel) (jh) [Entry date 10/15/97]
SEALED Document (jh) [Entry date 11/14/97]
SEALED Document (jh) [Entry date 12/02/97]
NOTICE by dft of service of discovery (jh) [Entry date 12/12/97]
MOTION for contempt by Christina Acker [88-1] (jh) [Entry date 12/15/97]
SCHEDULING ORDER by Judge Roslyn O. Silver ; discovery due 8/1/98 ; dispositive motions due 9/1/98 ; pretrial order due 9/1/98 (cc: all counsel) (jh) [Entry date 12/15/97]
STIPULATION concerning confidentiality of ADOC records (jh) [Entry date 12/19/97]
SUPPLEMENTARY exhibits to previously filed motion for contempt by Christina Acker (Note: Christina Acker not a party to the case) (jh) [Entry date 12/23/97]
ORDER by Judge Roslyn O. Silver granting stipulation; that dfts provide pla with copies of complete employee files, complete inmate master files & DO 608....; that pla disclose these documents only to their experts retained to testify at trial & return the documents to dfts at the close of this action (cc: all counsel) re: order [92-1] (ld) [Entry date 12/29/97]
NOTICE by all dfts of lodging amended order re inmate depositions (ld) [Entry date 12/31/97]

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12/30/97 94 1/6/98 96 1/13/98 97
1/15/98 99 1/15/98 100 2/6/98 101 2/19/98 103 2/26/98 104 3/3/98 105 3/3/98 106 3/6/98 107
3/6/98 108
3/11/98 109 3/11/98 110 3/13/98 111

NOTICE by all dfts of service of discovery (ld) [Entry date 01/02/98]
NOTICE of supplemental disclosure pursuant to FRCivP 26(a) by dft (jh) [Entry date 01/07/98] [Edit date 01/22/98]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Telephonic Appearances: Mark Massling, Jeanne Garcia-Riley, Larry DeRespino. Status hearing held. Ptys advise the Court of the stipulation regarding the depositions. IT IS ORDERED the stipulation is granted. A formal order is signed in Court this date. [cc: JS [97-1] re: minute entry [97-1] (rg) [Entry date 01/14/98]
SEALED Document (jh) [Entry date 01/16/98]
MOTION for contempt (of court) by Barbara Ruth Cram [100-1], for sanctions (agnst Dep Warden Judy Frigo) [100-2] (jh) [Entry date 01/16/98]
NOTICE by dft of lodging 4th amended order regarding inmate depositions (jh) [Entry date 02/10/98]
NOTICE by dft of service of discovery (jh) [Entry date 02/20/98]
MOTION for request to be allowed materials to communicate with the court by Barbara Ruth Cram [104-1] (jh) [Entry date 02/27/98]
MOTION for permission to file supplemental brief by Barbara Ruth Cram [105-1] (jh) [Entry date 03/05/98]
CERTIFICATE of mailing (re motion #105) by Barbara Ruth Cram (jh) [Entry date 03/05/98]
ORDER by Judge Roslyn O. Silver striking motion for request to be allowed materials to communicate with the court by Barbara Ruth Cram [104-1] from the record; FUR clk of crt transmit copy of attached pleading (re mtn #104) to cnsl for all parties (cc: all counsel w/cy of mtn #104) (jh) [Entry date 03/06/98]
ORDER by Judge Roslyn O. Silver striking motion for permission to file supplemental brief by Barbara Ruth Cram [105-1]; FUR clk of crt transmit attached pleading (#105) to all cnsl (cc: all counsel w/cy of mtn #105) (jh) [Entry date 03/06/98]
NOTICE by dft of service of discovery (jh) [Entry date 03/12/98]
2nd SUPPLEMENTARY exhibits to previously filed motion for contempt (#88) by Christina Jay Acker (jh) [Entry date 03/12/98]
2nd SUPPLEMENTARY exhibits to previously filed motion for

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3/16/98 112
3/30/98 113 4/1/98 114 4/6/98 115 4/9/98 116 4/28/98 118 4/29/98 119 5/15/98 120 5/15/98 121 5/19/98 122
5/29/98 123 6/5/98 124 6/10/98 125 6/23/98 126 7/2/98 127

contempt (#88) by Christina Jay Acker (Note: Duplicate of Doc #110 filed 3/11/98) (jh) [Entry date 03/13/98]
ORDER by Judge Roslyn O. Silver striking "2nd supplementary exhibits to previously filed motion for contempt; striking motion for contempt by Christina Acker [88-1]; striking supplementary exhibits filed on 12/22/97; that the Clerk of the Court transmit a copy of this order and the attached pleadings, a copy of the motion for contempt and a copy of the supplementary exhibits to counsel for all parties (cc: all counsel) (ld) [Entry date 03/16/98]
SEALED Motion for immunity order by USA [113-1] (jh) [Entry date 03/31/98]
STIPULATION concerning extension of time for production of expert reports (jh) [Entry date 04/02/98]
ORDER by Judge Roslyn O. Silver granting stipulation that USA shall have until 4/10/98 to produce its expert reports (cc: all counsel) (jh) [Entry date 04/06/98]
RESPONSE by dft to motion for immunity order by USA [113-1]
(jh) [Entry date 04/10/98]
STIPULATION for extension of time for production of dfts expert reports by all parties. (dmt) [Entry date 04/30/98]
ORDER by Judge Roslyn O. Silver granting stipulation extending time to 6/1/98 for production of expert reports by dfts. (cc: all counsel) (dmt) [Entry date 04/30/98]
First NOTICE by dft of discovery & settlement (jh) [Entry date 05/19/98]
NOTICE by dft of service of discovery (jh) [Entry date 05/19/98]
ORDER by Judge Roslyn O. Silver: parties furnish the court with a ntc of status of discovery or settlmnt 4 months from this order (9/19/98) (cc: all counsel) re: order [122-1] (jh) [Entry date 05/19/98]
NOTICE by dft of service of discovery (jh) [Entry date 06/02/98]
STIPULATION concerning extensionos of time and notification to witnesses (ld) [Entry date 06/09/98]
ORDER by Judge Roslyn O. Silver granting stipulation concerning extensions of time and notification of immunized witnesses (cc: all counsel) (ld) [Entry date 06/10/98]
NOTICE of service of discovery by dft. (jh) [Entry date 06/25/98]
NOTICE by pla OF TAKING DEPO OF Kay Monaco on the following date(s): 8/4/98 (jh) [Entry date 07/03/98]

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7/2/98 128 7/28/98 129
7/30/98 130 7/31/98 131 8/5/98 132
8/10/98 133 8/12/98 134 8/13/98 135 8/13/98 136
8/13/98 137
8/14/98 138 8/19/98 139 8/19/98 140

NOTICE by pla OF TAKING DEPO OF Anabelle M. Romero on the following date(s): 8/5/98 & 8/6/98 (jh) [Entry date 07/03/98]
SEALED Minute Entry Appearances by telephone:Shelley Jackson and Jeannie Garcia-Riley. CtReporter:Gary Moll; emergency telephonic conf held; Parties stipulate to add an additional prisoner to the list ORDER of 4/16/98, DOC# 117, purs to 18:6000; The Prisoner is: Tina Thompson. Stipulatioon GRANTED; USA shall submit a form of order for the Court's signature. ; cc: JS CD Cnsl[129-2] (ph) [Entry date 07/29/98]
STIPULATION concerning extensions of time (re psychiatric reports, dispositive motions) (jh) [Entry date 08/05/98]
NOTICE of service of discovery by Arizona, State of, J Fife Symington III. (jh) [Entry date 08/05/98]
ORDER by Judge Roslyn O. Silver granting stipulation that pla's expert psychiatric reports be provided to dfts' cnsl nlt 8/7/98; dfts' report be provided to pla's cnsl nlt 8/22/98; ; all dispositive motions be filed nlt 9/30/98 (cc: all counsel) (jh) [Entry date 08/05/98]
JOINT MOTION to vacate Court's oral order of 7/29/98 as to adding an inmate to the Court's immunity order of 4/16/98 {117-1] [133-1] (dmt) [Entry date 08/13/98]
STATEMENT by pla, dft re discovery dispute to be argued on 8/13/98 at 4:15 PM (jh) [Entry date 08/13/98]
ORDER by Judge Roslyn O. Silver striking motion for contempt (of court) by Barbara Ruth Cram [100-1], striking motion for sanctions (agnst Dep Warden Judy Frigo) [100-2] (cc: all counsel) (jh) [Entry date 08/13/98]
ORDER by Judge Roslyn O. Silver granting motion to vacate Court's oral order of 7/29/98 as to adding an inmate to the Court's immunity order of 4/16/98 {117-1] [133-1]; court's oral order of 7/29/98 is vacated (cc: all counsel) (jh) [Entry date 08/13/98]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances telephonic: Mark Massling for Pla; Jeanne Garcia-Riley for Dfts. Discovery dispute hearing held. IT IS ORDERED counsel is to provide the Court with an Order for signature regarding the deadlines that parties have agreed to today. [cc: JS [137-1] re: minute entry [137-1] (rg) [Entry date 08/14/98]
NOTICE by pla USA OF TAKING DEPO OF Terry Stewart on the following date(s): 9/1/98 (ms) [Entry date 08/18/98]
NOTICE OF SUBSTITUTION OF ADDITIONAL DEFENSE COUNSEL for dfts by William Charles Wilder (ld) [Entry date 08/20/98]
NOTICE of service of discovery by dfts. (ld) [Entry date 08/20/98]

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8/21/98 141 8/21/98 142 9/3/98 143 9/4/98 144 9/8/98 145 9/9/98 146 9/11/98 147
9/11/98 149 9/16/98 150
9/30/98 151 10/2/98 152
10/2/98 153 10/2/98 154 10/2/98 155

NOTICE by dft OF TAKING DEPO OF Susan J Fiester M.D. on the following date(s): 9/10/98 (ms) [Entry date 08/25/98]
NOTICE by dft OF TAKING DEPO OF Jeffrey L Metzner M.D. on the following date(s): 8/26/98 (ms) [Entry date 08/25/98]
NOTICE of service of discovery by dfts Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull . (kg) [Entry date 09/08/98]
STIPULATION concerning Extensions of time by attys for plt and dfts (kg) [Entry date 09/08/98]
NOTICE by dft OF TAKING DEPO OF George E. Sullivan on the following date(s): 9/15/98 (jh) [Entry date 09/09/98]
STIPULATION amending order regarding inmate depositions (re sealed order of 2/11/98) (jh) [Entry date 09/10/98]
ORDER by Judge Roslyn O. Silver granting stipulation that dfts' expert psychiatric report shall be provided to pla's cnsl NLT 8/25/98; date set forth in paragraph R of the court's scheduling order shall be changed to 10/1/98 (cc: all counsel) (jh) [Entry date 09/11/98]
2nd NOTICE of discovery & settlement by dft. (jh) [Entry date 09/15/98]
ORDER by Judge Roslyn O. Silver: parties furnish court with another notice of status of discovery or settlement in 4 months of this order; status hearing set for 11:00 10/19/98, before Judge Roslyn O. Silver (cc: all counsel) (jh) [Entry date 09/16/98]
MOTION to exceed the page limit for motion for summary judgment by dft [151-1] (LODGED: motion; stmt of facts; exhibits/Dkt Clk) (jh) [Entry date 10/01/98]
ORDER by Judge Roslyn O. Silver granting motion to exceed the page limit for motion for summary judgment by dft [151-1] (LODGED: motion; stmt of facts; sealed document/ exhibits/Dkt Clk) (cc: all counsel) (jh) [Entry date 10/02/98]
MOTION for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] (jh) [Entry date 10/02/98]
STATEMENT OF FACTS by dft re motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] (jh) [Entry date 10/02/98]
EXHIBITS to dfts' statement of facts/Motion for summary judgment (Re: [153-1]) (Volumes 1 & 2) (jh) [Entry date 10/02/98]

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10/2/98 156 10/2/98 157 10/6/98 158 10/8/98 159 10/15/98 160
10/19/98 161
10/27/98 162 10/29/98 163 11/3/98 164
11/18/98 165 11/20/98 166
11/25/98 167

SEALED Document (jh) [Entry date 10/02/98]
NOTICE OF HEARING by dft setting motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] at 1:30 4/26/99 (jh) [Entry date 10/06/98]
NOTICE of service of discovery by dft. (jh) [Entry date 10/07/98]
STIPULATION concerning access of federal criminal law enforcement personnel to inmate depositions concerning former employee Thomas Bond by pla and dfts (ld) [Entry date 10/13/98]
ORDER by Judge Roslyn O. Silver granting stipulation that the court's 2/11/98 order re inmate depositions is amended to allow federal criminal law enforcement personnel, FBI, federal prosecutors, federal grand jurors to have access to inmate & employee deposition testimony re former ADOC officer Thomas Bond (cc: all counsel) (jh) [Entry date 10/15/98]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll Appearances: Robert Bartels and Mark Masling for Pla; William Wilder, Jeanne Garcia-Riley for Dfts. Status hearing held. The Parties are advised as to the availability of a Magistrate Judge or District Court Judge for the purposes of settlement conferences. [cc: JS [161-2] (rg) [Entry date 10/22/98]
Notice of filing original AFFIDAVIT (of Terry L. Stewart) (jh) [Entry date 10/28/98]
STIPULATION (pla/dfts) concerning extensions of time to file response & reply to motion for summary judgment (jh) [Entry date 10/30/98]
ORDER by Judge Roslyn O. Silver granting stipulation that pla respond NLT 11/18/98 & dfts reply NLT 12/18/98 to motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] (cc: all counsel) (jh) [Entry date 11/03/98]
STIPULATION (pla/dfts) concerning extensions of time (re response to motion for summary judgment) (jh) [Entry date 11/20/98]
ORDER by Judge Roslyn O. Silver granting stipulation that pla has to 11/25/98 to file/serve opposition to motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1]; dfts surrebuttal report be produced after 11/20/98 on a date to be determined in accordance with the surrebuttal expert's schedule (cc: all counsel) (jh) [Entry date 11/20/98]
MOTION to exceed the page limit (re Memo in opposition to

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11/25/98 168 11/25/98 169 11/25/98 170 11/25/98 171 11/25/98 172 11/25/98 173 11/25/98 174 11/25/98 175 12/2/98 176 12/3/98 177
12/8/98 178
12/9/98 179
12/18/98 180

dfts' motion for summary judgment) by USA [167-1] (LODGED/ Dkt Clk: Memo) (jh) [Entry date 11/25/98]
CERTIFICATE of service of motion to exceed page limit etc by USA (jh) [Entry date 11/25/98]
ORDER by Judge Roslyn O. Silver granting motion to exceed the page limit (re Memo in opposition to dfts' motion for summary judgment) by USA [167-1] (LODGED/ Dkt Clk: Memo) (cc: all counsel) (jh) [Entry date 11/25/98]
Memo in opposition (RESPONSE) by USA to motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] (jh) [Entry date 11/25/98]
SEALED Document: Statement of Facts (jh) [Entry date 11/25/98]
SEALED Document: Exhibits re response #170 (Volume 1) (jh) [Entry date 11/25/98]
SEALED Document: Exhibits re response (#170) (Volume 2) (jh) [Entry date 11/25/98]
SEALED Document: Exhibits re response (#170) (Volume 3) (jh) [Entry date 11/25/98]
SEALED Document: Exhibits re response (#170) (Volume 4) (jh) [Entry date 11/25/98]
MOTION to expedite oral argument on motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] by USA [176-1] (jh) [Entry date 12/03/98]
RESPONSE by dft to motion to expedite oral argument on motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] by USA [176-1] (jh) [Entry date 12/04/98]
REPLY by USA to response to motion to expedite oral argument on motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] by USA [176-1] (jh) [Entry date 12/09/98]
ORDER by Judge Roslyn O. Silver denying motion to expedite oral argument on motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] by USA [176-1] (cc: all counsel) (jh) [Entry date 12/09/98]
MOTION to extend deadlines (until 12/23/98) relating to summary judgment motion by dfts [180-1] (jw) [Entry date 12/23/98]

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12/23/98 181 12/24/98 182 1/4/99 183 1/4/99 184 1/4/99 185 1/7/99 186
1/7/99 187 1/7/99 188 1/7/99 189 1/13/99 191 1/19/99 192 2/12/99 193
3/11/99 194

ORDER by Judge Roslyn O. Silver granting motion to extend deadlines (until 12/23/98) relating to summary judgment motion by dfts [180-1] (cc: all counsel) (ld) [Entry date 12/23/98]
MOTION to exceed the page limit (re reply to motion for summary judgment) by dfts [182-1] (proposed reply and sealed motion lodged at docket clerk's desk) (ld) [Entry date 12/29/98]
Notice of ERRATA by dft (re dfts' motion to strike pla's stmt of facts & dfts' supplemental stmt of facts filed 12/24/98) (jh) [Entry date 01/05/99]
SEALED Motion to strike pla's statement of facts in opposition to dfts' motion for summary judgment by dft [184-1] (jh) [Entry date 01/05/99]
SEALED Document: Supplemental stmt of facts in support of dfts' motion for summary judgment (jh) [Entry date 01/05/99]
ORDER by Judge Roslyn O. Silver granting motion to exceed the page limit (re reply to motion for summary judgment) by dfts [182-1] (proposed reply and sealed motion lodged at docket clerk's desk) (cc: all counsel) (jh) [Entry date 01/07/99]
REPLY by dft to memo in opposition to motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] (jh) [Entry date 01/07/99]
SEALED Motion to strike pla's stmt of facts in opposition to dfts' motion for summary judgment by dft [188-1] (jh) [Entry date 01/07/99]
SEALED Document: dfts' supplemental stmt of facts in support of dfts' motion for summary judgment (jh) [Entry date 01/07/99]
STIPULATION (pla/dfts) concerning extension of time (jh) [Entry date 01/20/99]
Third NOTICE of status of discovery & settlement by pla, dft (jh) [Entry date 01/20/99]
ORDER by Judge Roslyn O. Silver: parties furnish the court with a notice of status of discovery or settlement in 2 months (4/12/99) of this order (cc: all counsel) re: order [193-1] (jh) [Entry date 02/12/99]
MINUTE ENTRY Judge Inits: ROS Crt Rptr: Gary Moll. Appearances: Mark Masling for Plas. Jeanne Garcia-Riley for Dfts., both appeared telephonic. Case settled. Vacating hearing re motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1] [cc: JS [194-1] (lf) [Entry date 03/12/99]

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3/11/99 195 3/16/99 196
4/7/99 197 9/24/99 199
9/30/99 200 10/5/99 201 10/29/99 202 11/17/99 203 11/22/99 204 12/2/99 205

Joint MOTION for conditional dismissal (of case subject to dfts' compliance with the settlement agreement) by pla/dfts [195-1] (jh) [Entry date 03/12/99]
ORDER by Judge Roslyn O. Silver: re motion for conditional dismissal (of case subject to dfts' compliance with the settlement agreement) by pla/dfts [195-1], matter is stayed 6 months until a stip to dismiss or a motin to lift the stay & restore the case to active status is filed & granted;
; stay deadline set for 9/16/99 , case stayed as to entire case; FURTHER status hearing set for 4:00 10/12/99, before Judge Roslyn O. Silver to be vacated if stip for dismissal is filed & ordered by 10/12/99 (cc: all counsel) (jh) [Entry date 03/16/99]
SEALED Document: Stipulation amending order re inmate depositions (jh) [Entry date 04/08/99]
ORDER by Judge Roslyn O. Silver: DENYING AS MOOT-- motion for summary judgment (on all claims) by Arizona, State of, Terry L Stewart, Dale Copeland, Jeff Hood, John Hallahan, Jane D Hull [153-1], motion to strike pla's statement of facts in opposition to dfts' motion for summary judgment by dft [184-1], motion to strike pla's stmt of facts in opposition to dfts' motion for summary judgment by dft [188-1] without prejudice to dfts' right to reinstate them; FURTHER entire matter is stayed for 6 months until a stipulation of dismissal or a motion to restore the case to active status is filed & granted ; stay deadline set for 3/24/00 , case stayed as to entire case (cc: all counsel) (jh) [Entry date 09/24/99]
Joint MOTION to continue status hearing (set 10/12/99) by pla, dft [200-1] (jh) [Entry date 10/01/99]
SEALED Order granting motion to continue status hearing (set 10/12/99) by pla, dft [200-1] ; status hearing set for 1:30 12/17/99, before Judge Roslyn O. Silver; if a stipulation for dismissal is filed & ordered by the court by 12/13/99, the status hearing will be vacated (jh) [Entry date 10/05/99]
SUPPLEMENTARY exhibit to agreement signed 3/11/99 by Christina Jay Acker (jh) [Entry date 10/29/99]
SEALED Document: Stipulation concerning destruction of documents & sealed inmate depositions (jh) [Entry date 11/18/99]
SEALED Order granting stipulation; pla may destroy rather than retrun the documents dfts produced in discovery .... (ld) [Entry date 11/22/99]
ORDER by Judge Roslyn O. Silver: counsel meet, confer & determine whether to waive the disqualification; if both sides agree, counsel are to reduce the waiver agreement to writing & file it by 12/27/99 (cc: all counsel) re: order [205-1] (jh) [Entry date 12/02/99]

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12/13/99 206 12/17/99 207 5/12/00 208 5/18/00 209 5/25/00 210 5/30/00 211
6/22/00 212
7/5/00 213 9/18/00 214
10/10/00 215
9/18/01 216

STIPULATION by pla, dfts to dismiss (with attachments to Exhibit 1 to stipulation, Tabs A thru O; 3 volumes) (jh) [Entry date 12/14/99]
ORDER by Judge Roslyn O. Silver granting stipulation that this case is dismissed terminating case (cc: all counsel) (jh) [Entry date 12/17/99]
SUPPLEMENTAL exhibit challenging validity of 3/11/99 agreement by Christina Acker (exhibits 1-21 attached) (stricken per order of 5/18/00) (rg) [Entry date 05/15/00] [Edit date 05/30/00]
ORDER by Judge Roslyn O. Silver striking a pleading styled Supplementary exhibit challenging the validity of 3/11/99 agreement (doc #208) (cc: all counsel) (rg) [Entry date 05/18/00]
SUPPLEmentary exhibits challenging validity of 3/11/99 agreement (stricken from the record per order of 5/30/00) (rg) [Entry date 05/25/00] [Edit date 05/30/00]
ORDER by Judge Roslyn O. Silver striking from the record a pleading styled " Supplementary exhibit challenging the validity of 3/11/99 agreement. FURTHER ORDERED the Clerk of Court will not accept any further pleadings from Christine Acker in this closed case (cc: all counsel) (rg) [Entry date 05/30/00]
ORDER by Judge Roslyn O. Silver the Clerk of Court shall return the letter to Ella Morendo, ADC#107897,B34C244, Arizona State Prison Complex, Perryville, Santa Maria Unit, P.O. Box 3400, Goodyear, AZ. 85338 (cc: all counsel, letter sent to Ella Morendo) re: order [212-1] (rg) [Entry date 06/22/00]
RETURNED MAIL addressed to: Ella Morendo [212-1] "name and number do not match" (rg) [Entry date 07/07/00]
ORDER by Judge Roslyn O. Silver that the Clerk of Court shall return the attached letter to Christina Acker #78733, AZ State Prison-Perryville, CDU-A7, P.O. Box 3400, Goodyear, AZ, 85338 (letter is dated 7/6/00, recd by Clerk 9/11/00, addressed to Ms Riley) (cc: all counsel/letter and copy of the order sent to Christina Acker) re: order [214-1] (rg) [Entry date 09/18/00] [Edit date 09/18/00]
ORDER by Judge Roslyn O. Silver that the Clerk of Court shall return the attached letter to Christina Acker, #78733, Arizona State Prison-Perryville, CDU-A7, P.O. Box 3400, Goodyear, AZ. 85338 (a copy of this order and the letter, received stamped 10/4/00, addressed to Judge Silver, returned to Christina Acker at the above address) (cc: all counsel) re: order [215-1] (rg) [Entry date 10/10/00] [Edit date 10/10/00]
MOTION to Intervene by Shawna Pollard [216-1], and for Order Lifting Prior Sealed Orders to gain access to certain depositions previously sealed by Order of this Court by

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10/3/01 217 10/9/01 218 10/15/01 219

intervenor Shawna [216-2] (kg) [Entry date 09/19/01]
RESPONSE by dfts to motion for Order Lifting Prior Sealed Orders to gain access to certain depositions previously sealed by Order of this Court by intervenor Shawna [216-2] (rg) [Entry date 10/04/01]
STIPULATION to add to the list of persons authorized to gain access to the depositions and statements by intervenor, pla, dfts (rg) [Entry date 10/10/01]
ORDER by Judge Roslyn O. Silver granting stipulation to add to the list of persons authorized to gain access to the depositions and statements by intervenor, pla, dfts; David Sandweiss, Bruce Blumberg, Daniel Ortega and Thomas Toone are added to the list (cc: all counsel) (rg) [Entry date 10/15/01]

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