Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 1 of 7 Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 1 of 11

Kirtlan G. Naylor

ISB #3569

lames R. Stoll

ISB #7182

NAYLOR & HALES, P.C.

950 W. Bannock Street, Suite 610

Boise, Idaho 83702

Phone: (208)383-9511

Facsimile: (208) 383-9516

kirt@naylorhales.com,jrs@naylorhales.com

Daniel P. Struck

AZB 012377

(Admitted Pro Hac Vice)

Timothy I. Bojanowski AZB 022126

(Admitted Pro Hac Vice)

Tara B. Zoellner

AZB 027364

(Admitted Pro Hac Vice)

STRUCK, WIENEKE & LOVE, P.L.C.

3100 W. Ray Road, Suite 300

Chandler, AZ 85226

Telephone: (480) 420-1600

Fax :

(480) 420-1696

dstruck@swlfinn.com. tbojanowski@swlfinn.com,

tzoellner@swlfirm.com

Attorneys for Defendants Timothy Wengler and Corrections Corporation of America

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

JOSHUA KELLY, JOSE PINA, ANDREW mARRA, RAY BARRIOS, RANDY ENZMJNGER, MICHAEL MIERA, PRISONER A, and PRISONER F, individually and on behalf of a class of all other persons similarly situated,

Case No. I:II -cv-OO I85-EJL STIPULATION FOR DISMISSAL

Plaintiffs,

vs .

TIMOTHY WENGLER and CORRECTIONS CORPORATION OF AMERICA, INC.

Defendants.

STIPULATION FOR DISMISSAL-I.

Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 2 of 7
Case 1:11 -cv-00185-EJL Document 25 Filed 09/20/11 Page 2 of 11
The parties to this Stipulation, by and through their attorneys of record, hereby
stipulate and agree that an order shall be entered dismissing this case with prejudice, pursuant to
the Settlement Agreement attached as Exhibit A. which is hereby incorporated by the Court. The
parties have resolved the issue of attorney's fees and costs.
DATED this 20th day of September, 20 II .
NAYWR & HALES, P.C. By lsi Kirtlan O. Naylor. Of the Firm Email: k.irt@naylorbales.col11 James R. Stoll Email: jrs@naylorhales.com
STRUCK, WIENEKE & LOVE, P.L.C. Daniel P. Struck Email: dstruck@swlfirm.com T imothy 1. Bojanowski Email: tbojanowski@swlfinn.com Tara B. Zoellner Email: tzoellner@swlfirm.com
Attorneys for Defendants Timothy Wengler and Corrections Corporation of America
AMERICAN CIVu.. LmERTlES UNION FOUNDAnON
By lsI James D. HuegJi
Email : jameshuegli@yahoo.com Stephen L. Pevar Email: pevaraclu@aoLcom Lea C. Cooper Ema il: lcoopel'@aclui daho.org
Attorneys for Plaintiffs
STIPULATION FOR DISMISSAL - 2.

Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 3 of 7 Case 1:11-cv-00 1B5-EJL Document 25 Filed 09/20/11 Page 3 of 11

CERTIFICATE OF SERVICE I hcreby cert'ify that on the 20thday of September, 2011, I electronically filed the
foregoing with the Clerk of the Court using the CMIECF system which sent a Notice of Electronic

Filing to the following persons:

• James D. Huegli, Attorney for Plaintiffs jameshuegli@yahoo.com

•

Lea Candy Cooper, Attorney for Plaintiffs

Icoopcr@acluidaho.org

• Stephen L. Pevar, Attorney for Plaintiffs PevaracJu@aol.com

M:'Corm:tioDl eo.p of Amerlu\Kelly 'I. CCA (ACLU II _OOIU)\pk.oiDga\8119_01 Stipulation for Diamlull.wpd

STIPULATION FOR DISMISSAL - 3_

Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 4 of 7
Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 4 of 11

SFrTLEM ENT AGREEMENT
Kelly, et 01. v. CCA, et 01.
1:11-cv·OO185· EJl
1. The settlement agreement addresses speclflc Issues raised by Plaintiffs In this action relating to alleged constitutional violations with respect to Inmate·on·lnmate assaults at the Idaho Correctional Center (HICCH) and the resolution of these Issues. The parties stipulate that the ter ms of this settlement agreement extend no further than necessary to satisfy the
requirements of 18 U.S.C. § 3626(a)(1}(A}.
2. CCA will agree to Investigate and prepare a report on all inmate-on-inmate assaults with findings and conclusions to determine any causes of the Incident. CCA will take appropriate action, if
necessary. These reports will be sent .to the office of Klrtlan Naylor for review and inspection by
James Huegll at a mutually convenient time.
3. CCA will agree to Investigate and report on Inmates' Inmate Concern Forms claiming a staff failure to protect from inmate-on·lnmate assault, and CCA will take appropriate action to protect t he health and safety of Inmates, If necessary. These reports will be sent to the office of Klrtlan Naylor for review and Inspection ~y James Huegll at a mutually convenient time.
4. CCA will agree to comply with the staffing pattern pursuant to eCA's contract with the Idaho Department of Correction ("IDOCH ). In addition, eCA agrees to increase the staffing pattern to include a minimum of three additional correctional officers to be utll1zed at the discretion of the warden to enhance the overall securfty of the facility.
5. CCA will immediately place Inmates who claim to be at risk of physica l assault from other Inmates into appropriate housing, as determined by staff, during the Investigation of the claim.
6. CCA will comply with IOOC Standard Operating Procedure (HSOP") with respect to Inmate discipline.
7. CCAwiil employ incentives to encourage good behavior by Inmates.
8. eeA will report to the Ada County Sheriffs Office Inmate-on-Inmate assaults that upon investigation appear to rise to the level of "aggravated battery" as defined by Idaho Code 18·
907(1)(a}.
9. CCA will make housing assignments based on all factors the facility deems appropriate for the safety of the Inmates, consistent with loDe SOP.
10. eCA will meet IDOC reporting requirements.

CCA Settlement Proposals v.3.2

EXHIBIT A

Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 5 of 7 Case 1:11-cv-00185-EJL Document 25 Filed 09/20/ 11 Page 5 of 11
11. CCA's correctional officers will meet the requirements of the State of Idaho's Peace Officer Standards and Training. as required by the IOOC contract, as well as additional training as required by CCA. The CCA training Includes: policies and procedures; Inmate rights, Including protection from assaults; emergency plans/Incident management; Institutional safety;
supervision of inmate"s; inmate manlpul~tlon; Inmate management; Inmate accountability; direct supervision; special needs offenders; and security threat groups.
12. eeA will continue to employ methods designed to reduce Inadvertent door openings.
13. The parties acknowledge and agree that the lOde will monitor the terms In Paragraphs 2
through 12 of the settlement agreement.in accordance with the CCA-IOOC contract.
14. The parties agree to dismiss this case with prejudice upon the execution of the settlement agreement.
15. in the event of non-compliance with the terms of the Agreement, the parties may seek relief as follows:
A. If there Is a dispute as to whether any .of the terms of the settlement agreement have been breached durtng the pertod of this agreement, Plaintiffs, through James Huegil, shall notify CCA, through Klrtlan Naylor, In writing of the specific grounds and facts upon which Plaintiffs allege non-compllance with Identified provisions of the agreement. CCA shall respond In writing within five (5) business days. The parties will agree to a reasonable date by which CCA will cure instances of noncompilanc~. If the dispute is not resolved, Plaintiffs shall notify CCA by letter and request that counsel meet and confer. The parties shall meet within five (5) business days of Plaintiffs' notice, or on some other mutually agreed upon date, In an attempt to arrive at an amicable resolution of the dispute. Nothing said by any party or counsel for any party during any and all meetings held under this paragraph may be used by any opposing party in subsequent litigation between the parties or in any ot her lawsuit.
B. if the dispute remaIns unresolved, the parties shall meet with the ADR Coordinator for the US District Court for the District of Idaho within three (3) business days to attempt to resolve the dispute.
C. If the dispute remains unresolved following the conclusion of such meeting or meetIngs, or If CCA does not respond to Plaintiffs' InitIal notice of dispute within five (5) business days, or If counsel do not meet and confer (or agree to a date to meet a.nd confer) within five (5) business days of PlaintIffs' request to meet and confer, Plaintiffs or CCA shall submit the dispute to the Honorable DavId O. Carter, who shall have authority to enforce the terms of this agreement In his capacIty as a Federal District Court Judge.
CCA Settlement Proposals v.3.2

Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 6 of 7 Case 1:11-cv-001 85-EJL Documen1 25 Filed 09/20/11 Page 6 of 11
D, Plaintiffs and eCA, through counsel, may mutually agree to extend any of these
deadlines on a case-by-case basis, when counsel believes the purposes of this agreement would be better served by doing so,
16. The relief granted In this agreement shall terminate on the two year anniversary of the date that the parties execute the settlement agreement.
17. This agreement constitutes the entire agreement among the parties as to all claims raised by
Plaintiffs in this action, and supersedes all prior agreements, representations, statements, promises, and understandings, whether oral or written, express or Implied, with respect to this agreement.
18. Plaintiffs allege In their Amended Class Action Complaint that CCA violated the constitutional rights of Inmates at ICC, with respect to their safety from assault, adequate staffing, adequate training of staff, and other constitutional deficiencies. CCA denies all of the allegations In the Amended Class Action Complaint filed in this case. This agreement does not constitute and shall not be construed or Interpreted as an admission of any wrongdoing or lIabflfty by any party.
19. This Is an integrated agreement and may not be altered or modified, except by a writing signed by all representatives of all parties at the time of authorization and modification.
20. This agreement shall be binding on all successors, assignees, employees, agents, and aU others working for or on behalf of CCA and Plaintiffs.
21. The parties agree that any press release Issued describing or detafling the settlement agreement shall be prepared Jointly and will be subject to the approval of both parties.
22. The parties agree that any agreement wIth respect to fees and costs shall remaIn confidentIal.
23. The parties agree to bear their own attorneys' fees and costs relating to the monitoring, enforcement or compliance with the agreement. If the Honorable David O. carter finds a material breach has oc~urred, he may award attorneys' fees and costs.
24. The attorneys represent that they have the authority to enter Into thIs agreement on behalf of their respective clients.
eCA Settlement Proposals v.3.2

Case 1:11-cv-00185-EJL Document 25 Filed 09/20/11 Page 7 of 7 Case 1:11 -cv-00185-EJL Document 25 Filed 09/20/11 Page 7 of 11

By:_--"(),--,~=----_-,-~, ,-'=.,'-,---_ Date:__4'-:- - "_~t__.-_- -1_1 _

Daniel Struck

1 By:

'1-

Date: __'7'L::.-L6J!'.~~-::...1/~7~_ __

By: .> .

J PMM---

St~npeva~
By: fJ; ~.<

a Cooper

Date: _---"1+1'-"'1~,-+-/!...!.II_ __
r -"r Oat.:_~aI-l+J/IP-f~!'I-/-/J_ _

By: -'----$-""-'-+7"""------ - Oat.:_--'-9-<-/-'-'/6'""-L/'--'11'--_ _
By: ---<d.-"~ "=='---=-t::_,f! ~ =.' ===--_ oat.:-,'-1-,/--_16-,/_./._'I _ __
Honorable David O. Carter
CCA Settlement Proposals v,3.2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

MARLIN RIGGS, individually, and JOSE PIÑA, JOE ROCHA, ANDREW IBARRA, JOSHUA KELLY, RAY BARRIOS, and RANDY ENZMINGER, individually and on behalf of a class of all other persons similarly situated,
Plaintiffs,
v.

Case No. 1:09-00010-EJL MEMORANDUM ORDER

PHILLIP VALDEZ, NORMA RODRIGUEZ, CHRISTOPHER ROSE, STEVEN DANFORTH, and WILLIAM DEAN, individually and in their official capacities, and CORRECTIONS CORPORATION OF AMERICA, Inc.,
Defendants.

INTRODUCTION This prisoner civil rights case has recently been reassigned, and several motions are currently pending before the Court. The parties have adequately presented the facts and legal arguments in their written briefing, and the Court finds that oral argument will not be necessary before resolving these matters. D. Idaho L. Civil R. 7.1(d).
MEMORANDUM ORDER - 1

For the reasons set forth below, the Court disposes of the pending motions as follows:
(1) Plaintiffs’ Motion to Sever (Dkt. 142) and Plaintiffs’ Motion to Amend (Dkt. 143) are granted. The potential class action seeking declaratory and injunctive relief will be severed from Plaintiff Riggs’s claims for monetary damages and assigned a new case number. Amended complaints will be authorized in each case. Plaintiffs’ Renewed Motion to Certify Class (Dkt. 93) will be denied without prejudice to refiling.
(2) The Associated Press’s Motion to Intervene for the Limited Purpose of Opposing Defendants’ Motion for a Restraining Order (Dkt. 137) is granted. Defendants’ Amended Motion for a Restraining Order (Dkt. 119) is denied, and Plaintiff’s Motion to Dismiss Defendants’ Motion for a Restraining Order (Dkt. 133) is denied as moot.
(3) Plaintiffs’ unopposed Motion to Unseal Documents (Dkt. 135) is granted. (4) Defendants’ Request for Relief (Dkt. 141) is deemed moot.
BACKGROUND On January 12, 2009, Marlin Riggs, then a prisoner at the Idaho Correctional Center (“ICC”), initiated this lawsuit alleging that prison employees and officials had failed to protect him from violence and were deliberately indifferent to his serious medical needs, in violation of his Eighth and Fourteenth Amendment rights. (Dkt. 3.)
MEMORANDUM ORDER - 2

Chief Judge B. Lynn Winmill consolidated Riggs’s Complaint with several other prisoner complaints that raised similar claims against ICC officials. (Dkt. 5.) When it became apparent that some prisoners had not yet exhausted their administrative remedies, Judge Winmill deconsolidated Riggs’s Complaint so that it could proceed under its own case number. (Dkt. 8.) Steven Pevar of the American Civil Liberties Union and James D. Huegli later agreed to enter the case as pro bono counsel. (Dkt. 11.)
With the assistance of counsel, Riggs filed an Amended Complaint, adding five new plaintiffs. (Dkt. 16.) In the amended pleading, all plaintiffs alleged that Defendants had failed to protect them from assaults at ICC, but Riggs sued on his own behalf and requested monetary damages while the new plaintiffs sought declaratory and injunctive relief on behalf of all similarly situated inmates at ICC. (Dkt. 16, pp. 78-80.) In other words, the Amended Complaint combined Rigg’s individual claims for monetary damages with a potential class action seeking only equitable relief.
Defendants responded by filing a Motion to Strike and arguing that the potential class action had been misjoined with Riggs’s individual claims. (Dkt. 27.) At the time, Plaintiffs objected to splitting the matter into two cases, and Judge Winmill denied Defendants’ Motion. (Dkt. 36.) Plaintiffs then amended the Complaint a second time to add a new plaintiff who raised the same claims and sought the same relief as the five other purported class representatives.1 (Dkt. 71.)
1 Plaintiffs also dismissed all claims against certain Idaho Department of Correction personnel, and no State defendants remain in this case. MEMORANDUM ORDER - 3

Defendants next filed a Motion to Dismiss the Second Amended Complaint (Dkt. 73), claiming that the new plaintiffs had not properly exhausted their administrative remedies. In an October 10, 2010 Memorandum Decision and Order, Judge Winmill concluded that, with the exception of Plaintiff Rocha, the purported class representatives had exhausted all claims in the Second Amended Complaint except a claim alleging the denial of adequate post-assault medical care. (Dkt. 92.)
In response to that decision, Plaintiffs renewed their motion seeking an order certifying a class under Rule 23 of the Federal Rules of Civil Procedure. (Dkt. 93.) Judge Winmill thereafter set deadlines to complete briefing on class certification issues, allowed the parties to begin discovery, and scheduled a hearing for May 19, 2011.2 (Dkt. 107.) In the interim, the parties submitted numerous motions, and Judge Winmill vacated the briefing schedule on class certification issues pending the resolution of these motions. (Dkt. 170.) He has since recused himself from presiding over the case, vacated the May 19 hearing date, and the matter was reassigned. (Dkt. 174.)
This Court has been fully advised in the pending motions and is prepared to rule on these matters.
PLAINTIFFS’ MOTION TO SEVER AND MOTION TO AMEND In stark contrast to their earlier position, Plaintiffs now request that the Court split Riggs’s claims for monetary damages and the potential class action claims into two
2 An earlier hearing was also set for Plaintiff’s Motion for Preliminary Injunction and Partial Summary Judgment, but was later vacated after Plaintiffs withdrew that Motion. MEMORANDUM ORDER - 4

separate cases. They also seek leave to amend the complaints in each new case. Defendants are not opposed to severance – which is consistent with their position throughout this case – but they do object to the filing of amended complaints. The Court will exercise its discretion and grant both of Plaintiffs’ requests.
Rule 15(a) of the Federal Rules of Civil Procedure governs the amendment of pleadings in a civil case. A party may amend once as a matter of course, but in all other cases the party must first receive the consent of the opposing party or leave of court. Fed. R. Civil P. 15(a). Absent a showing of bad faith, prejudice to the opposing side, undue delay, or futility, there is a strong presumption in favor of allowing a party to amend. See, e.g., Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Applying those standards here, the Court does not find that Plaintiffs have acted in bad faith, unreasonably delayed bringing their most recent amendments, or that the amendments are obviously futile. While the Court is not unsympathetic to Defendants’ argument that Plaintiffs’ counsel have created a moving target by adding new parties and allegations in a piecemeal fashion, the Court sees little actual prejudice to Defendants. The putative class action is still in its early stages, discovery is ongoing, and Defendants may raise whatever defenses to the amendments that they believe are appropriate.
Accordingly, Plaintiff Riggs’s amended Complaint (Dkt. 171-1) will proceed under this case number while the Amended Class Action Complaint for Declaratory and Injunctive Relief (Dkt. 143-2) will be severed and docketed under a new case number.
MEMORANDUM ORDER - 5

The undersigned District Judge will continue to preside over both cases. DEFENDANTS’ MOTION FOR RESTRAINING ORDER
AND THE ASSOCIATED PRESS’S MOTION TO INTERVENE The Court next considers Defendants’ request for an order prohibiting the parties and counsel from making extrajudicial statements to the media. In support, Defendants highlight what they contend are inflammatory and prejudicial comments that Plaintiffs’ counsel Steven Pevar has apparently made in press releases and interviews. Defendants assert that a restraining order is necessary to shield prospective jurors from similar comments by Mr. Pevar in the future. In response, Plaintiffs claim that once the cases are severed, Mr. Pevar will no longer represent Marlin Riggs in his damages case and will instead be counsel only in the potential class action, which would be tried to the Court. According to Plaintiffs, because Mr. Pevar would not be counsel of record in the only case that could proceed to a jury trial, a retraining order intended to protect the jury pool from his comments is moot. In addition to Plaintiffs’ response, the Associated Press (the “AP”) has also filed a request for permissive intervention under Rule 24(b) of the Federal Rules of Civil Procedure so that it may be heard in opposition to Defendants’ Motion. The Court is persuaded that the AP has shown a sufficient First Amendment interest in the outcome of this Motion, and the Court will grant its request to intervene. See, e.g., Radio & Television News Ass’n of S. Cal. v. United States District Court, 781 F.2d 1443, 1445 (9th Cir. 1986)
MEMORANDUM ORDER - 6

(holding that a media group had standing to challenge trial court’s order restraining a defense attorney from speaking to the media). However, intervention is limited solely to responding to Defendants’ present Motion, and the Court has taken the AP’s arguments into consideration.
The Court is not persuaded that a restraining order is necessary or advisable at this time. A sweeping order of the type that Defendants have proposed would be a prior restraint on free speech, see Levine v. U.S. District Court for the Central District of California, 764 F.2d 590, 595 (9th Cir. 1985), and Defendants have not justified the infringement that such an order would have on the First Amendment rights of the parties, counsel, the media, and the public. It is true that this case has garnered some media attention, but Defendants have not established that the coverage has been so pervasive or hostile to this point that their right to a fair trial is threatened absent a gag order.
Moreover, while the Court is concerned by the nature and tone of some of Mr. Pevar’s public statements, he appears to have made those statements on isolated occasions separated by several months over the course of the last year to year and a half. And though the Court is not entirely convinced by Mr. Pevar’s assertion that there is no longer any risk of prejudice to Defendants simply because he will not represent Riggs in the damages case, it agrees that the risk has been diminished somewhat by that turn of events.
Therefore, the Court is confident that Defendants’ rights will be adequately protected by voir dire examination of all potential jurors and that an impartial jury can
MEMORANDUM ORDER - 7

still be obtained in this District without the need for a restraining order. From this point forward, the Court trusts that all counsel will exercise discretion and refrain from making statements that might violate their ethical duties or jeopardize the fair administration of justice in this or any other case.
OTHER MOTIONS The final two pending motions have been resolved by the parties. Defendants’ Request for Relief (Dkt. 141) is now moot in light of the parties’ stipulation that no summary judgment motions will be filed before the close of all discovery. (Dkt. 162.) In addition, Defendants have withdrawn their objection to Plaintiffs’ Motion to Unseal Defendants’ Sealed Filings. (Dkts. 135, 175.) The Court will order the Clerk to unseal Exhibits A, B, D, E, F, and G to Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction and Partial Summary Judgment (Dkts. 127-1, 127-4). Defendants shall re-file, unsealed, Exhibit C and the errata related to Exhibit C after redacting any information that identifies the confidential affiants in that Exhibit. (Dkts. 127-2, 127-3, 130, 131.)
ORDER IT IS ORDERED: 1. Plaintiffs’ Motion to Sever (Dkt. 142) is GRANTED. The potential class
action seeking declaratory and injunctive relief is severed from Plaintiff Marlin Riggs’s claims for monetary damages.
MEMORANDUM ORDER - 8

2. Plaintiffs’ Motion to Amend (Dkt. 143) is GRANTED. The Clerk of Court shall open a new case and docket this Memorandum Order and Plaintiffs’ Amended Class Action Complaint for Declaratory and Injunctive Relief (found at Dkt. 143-2, Appendix B) under the new case number. To clarify the record, Plaintiff Riggs’s counsel shall re-file, as a separate pleading in Case No. 1:09-CV-00010-EJL, the Complaint for Damages and Violation of Constitutional Rights that he previously lodged as an attachment to a Notice (Dkt. 171-1).
3. Plaintiffs’ Amended Class Action Complaint for Declaratory and Injunctive Relief will be the operative pleading in the new case and Plaintiff Riggs’ refiled amended Complaint for Damages and Violation of Constitutional Rights will be the operative pleading in Case No. 1:09-CV-00010-EJL. The undersigned District Judge shall remain as the presiding judge in both cases.
4. Given these rulings, Plaintiffs’ Renewed Motion for Class Certification (Dkt. 93) is DENIED without prejudice.
5. The Associated Press’s Motion to Intervene for the Limited Purpose of Opposing Defendants’ Motion for a Restraining Order (Dkt. 137) is GRANTED, and the Associated Press has been permitted to intervene solely to offer its position related to Defendants’ request for a restraining order.
MEMORANDUM ORDER - 9

6. Defendants’ Amended Motion for a Restraining Order (Dkt. 119) is DENIED.
7. Plaintiff’s Motion to Dismiss Defendants’ Motion for a Restraining Order (Dkt. 133) is dismissed as MOOT.
8. Plaintiffs’ Motion to Unseal Documents (Dkt. 135) is GRANTED. The Clerk of Court shall unseal Exhibits A, B, D, E, F, and G to Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction and Partial Summary Judgment, (Dkts. 127-1, 127-4), but shall not unseal Exhibit C (Dkt. 127-2, 127-3). Defendants shall instead re-file Exhibit C and the errata related to Exhibit C in Case No. 1:09-CV-00010-EJL after redacting the names and identifying information related to confidential affiants. (Dkts. 127-2, 127-3, 130, 131.)
9. Defendants’ Request for Relief (Dkt. 141) is dismissed as MOOT. 10. The Court intends to issue scheduling orders in each case setting deadlines
for the amendment of the pleadings and joinder of parties, completion of discovery including expert disclosures, the filing of a renewed motion for class certification in the proposed class action, the filing of dispositive motions, alternative dispute resolution options, and trial dates. To that end, no later than 21 days from the date of this Order, the parties shall confer with each other and shall submit either a proposed joint litigation plan or a
MEMORANDUM ORDER - 10

stipulation in each case addressing these and any other pertinent issues or deadlines. Sample litigation plans can be found on the Court’s website at www.id.uscourts.gov/forms-dc.htm. If the parties cannot agree on a joint proposal, they may submit their own plans with proposed deadlines.
DATED: April 27, 2011 Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM ORDER - 11

 
 CaCseas1e:019:-1c1v--c0v0-01001-8E5J-ELJLDoDcuomcuemnte1n4t 31-2FileFdile0d4/0227//2111/11PaPgeag1eo1f 6o7f 67

STEPHEN L. PEVAR American Civil Liberties Union Foundation 2074 Park Street Hartford, Connecticut 06106 (860) 570-9830
LEA C. COOPER ISB # 3505 American Civil Liberties Union of Idaho Foundation P.O. Box 1897 Boise, Idaho 83701 (208) 344-9750 ext. 206
JAMES D. HUEGLI ISB # 8172 Cooperating Attorney, ACLU of Idaho Foundation 1770 W. State St., Suite 267 Boise, ID 83702 (208) 631-2947
Attorneys for Plaintiffs

(APPENDIX B)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JOSHUA KELLY, JOSE PIÑA, ANDREW

)

IBARRA, RAY BARRIOS, RANDY

)

ENZMINGER, MICHAEL MIERA,

)

PRISONER A, and PRISONER F,

)

individually and on behalf of a class of all

)

other persons similarly situated,

)

)

Plaintiffs, )

)

vs.

)

)

TIMOTHY WENGLER, and CORRECTIONS )

CORPORATION OF AMERICA, Inc.

)

)

Defendants. )

Case No. _______________ AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CaCseas1e:019:-1c1v--c0v0-01001-8E5J-ELJLDoDcuomcuemnte1n4t 31-2FileFdile0d4/0227//2111/11PaPgeag2eo2f 6o7f 67
INTRODUCTION The Idaho Correctional Center (ICC) is an extraordinarily violent prison. It is known in Idaho as "Gladiator School" for a reason. More violence occurs at ICC than at Idaho's eight other prisons combined, and the unnecessary carnage and suffering that has resulted is shameful and inexcusable. ICC not only condones prisoner violence, the entrenched culture of ICC promotes, facilitates, and encourages it. Indeed, ICC staff cruelly use prisoner violence as a management tool. Violence is epidemic at ICC for a host of reasons, including the fact that Defendants turn a blind-eye to it; they fail to adequately investigate assaults and therefore are unable to fashion effective remedial measures to prevent assaults from recurring; they refuse to discipline the guards whose malfeasance precipitated prisoner violence; they frequently place vulnerable prisoners with predators; they fail to protect prisoners who request and need protection from assault; and ICC is overcrowded, understaffed, inadequately supervised, and guards are inadequately trained. The Eighth Amendment prohibits the imposition of "cruel and unusual punishments." This means, the Supreme Court has recognized, that prison officials have a duty "to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994). People are sent to prison as punishment, not for punishment. "Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society." Farmer, 511 U.S. at 834 (internal citation omitted). Government officials "are not free to let the state of nature take its course" in America's prisons. Farmer, at 833. The administrators of ICC are ignoring this constitutional duty, resulting in wholesale fear, intimidation, and violence within the prisoner population.
2

CaCseas1e:019:-1c1v--c0v0-01001-8E5J-ELJLDoDcuomcuemnte1n4t 31-2FileFdile0d4/0227//2111/11PaPgeag3eo3f 6o7f 67
ICC is owned by the State of Idaho, was built with tax funds, and is located on public land. However, ICC is operated (for a profit) by Corrections Corporation of America pursuant to a contract with the Idaho Department of Corrections (IDOC). CCA has done a deplorable job operating ICC, making decisions based on profit rather than on responsible administration of the prison. This lawsuit seeks classwide declaratory and injunctive relief (and not damages) pursuant to the Eighth and Fourteenth Amendments to the United States Constitution in order to compel CCA to adequately protect prisoners against assault by other prisoners.
JURISDICTION AND VENUE 1. This action arises under the Eighth and Fourteenth Amendments to the U.S. Constitution
and 42 U.S.C. §1983. Jurisdiction exists pursuant to 28 U.S.C. §§1331 and 1343(a)(3) and (4). Venue is properly found in this District pursuant to 28 U.S.C. §1391(b), in that all plaintiffs reside, and plaintiffs’ claims arose, within the District.
PLAINTIFFS 2. Named Plaintiffs Joshua Kelly, Jose Piña, Andrew Ibarra, Ray Barrios, Randy
Enzminger, Micheal Miera, and Prisoners A and F are adult citizens of the United States and are or were prisoners incarcerated at the Idaho Correctional Center (ICC) under the jurisdiction of the Idaho Department of Corrections. The named plaintiffs who currently reside at ICC are Joshua Kelly, Michael Miera, and Prisoners A and F. (Prisoners A and F are pseudonyms for two prisoners who have been assaulted by other prisoners in recent months at ICC and who fear that they will be assaulted once again if their names are associated with this litigation.) The other named plaintiffs were incarcerated at ICC when their claims arose, and have been identified by the Court as having standing to
3

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represent the class, at least temporarily. See Riggs v. Valdez, 2010 WL 4117085 at *1013 (D. Idaho 2010).
THE PLAINTIFF CLASS 3. The named plaintiffs bring this action on their own behalf and as representatives of all
other persons now incarcerated, or who in the future become incarcerated, at ICC. Class certification is sought pursuant to F.R.Civ.P. 23(a), (b)(2). Class certification is appropriate because the members of the class are so numerous that joinder of all persons is impracticable; there are questions of fact or law common to the class; the representative parties' claims are typical of the claims of the class; and the named plaintiffs will fairly and adequately represent the interests of the class. In addition, the defendants have acted or refused to act on grounds generally applicable to all members of the class, thereby making appropriate final declaratory and injunctive relief to the class as a whole, and the questions of law or fact common to members of the class predominate over any questions affecting individual members. The members of the ICC plaintiff class are not seeking damages but only declaratory and injunctive relief.
DEFENDANTS 4. Defendant Timothy Wengler is the Warden of ICC. He is sued only in his official
capacity. As the Warden of ICC, Wengler is responsible for the day-to-day administration and supervision of the facility. 5. Defendant Corrections Corporation of America (CCA) is a for-profit business incorporated under the laws of Maryland. As part of its enterprises, CCA operates ICC.
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STATEMENT OF FACTS 6. ICC was constructed on state-owned land in Kuna, Idaho, with public tax funds. ICC is
operated under the jurisdiction of the Idaho Department of Correction (IDOC). IDOC entered into a contract with CCA under which CCA is paid to manage and operate ICC. 7. Until recently, ICC housed approximately the same number of prisoners as does the Idaho State Correctional Institution (ISCI), nearly 1,500 men. Yet, during 2008 and 2009, three times as many prisoner-on-prisoner assaults occurred at ICC as at ISCI. 8. The number of assaults occurring at ICC is considerably higher than reported, perhaps three times as high. For one thing, ICC deliberately fails to document many assaults. For another, many victims of prisoner assault choose to conceal the incident out of fear of reprisal by prisoners for being a "snitch." Indeed, in a newspaper article dated April 5, 2009, an IDOC official, discussing the level of violence at ICC, told a reporter for the Associated Press: "It is fair to estimate that for every one incident we know of, there may be two that we do not." 9. For the following twelve reasons, violence at ICC far exceeds the violence in other Idaho facilities. They are: (a) deliberate indifference of many ICC employees; (b) inadequate training of staff; (c) inadequate number of staff; (d) inadequate supervision of staff; (e) the promotion of a culture throughout the facility that relies on the degradation, humiliation, and subjugation of prisoners, thereby creating excessive and unnecessary tension, stress, and frustration within the prisoner population; (f) failure to adequately investigate acts of violence, including a failure to track the number and location of assaults, so as to take appropriate remedial action; (g) failure to discipline those guards whose misconduct or malfeasance contributed to an act of violence, including those
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guards who deliberately arranged assaults or who refused to remove a prisoner from a clearly dangerous environment; (h) placement of vulnerable prisoners with predatory prisoners; (i) failure to isolate or properly discipline prisoners who attack other prisoners; (j) maintaining a "code of silence" such that staff are discouraged from reporting errors, including their own errors, that caused or contributed to an act of prisoner violence; (k) the deliberate reliance on--and encouragement of--prisoner violence as a management tool; and (l) overcrowding at ICC, which results in increased tension and anxiety within the prisoner population, inhibits proper supervision, and reduces the number of unused beds to which prisoners in dangerous situations may be moved in an emergency. 10. ICC is understaffed. At times there are only two guards supervising more than 250 prisoners in the North Wing Units and only two for more than 350 prisoners in the West Wing Units. 11. Plaintiffs' attorneys have spoken with numerous former employees of ICC, including Michele Slay, Tedi Hernandez, Creig Smith, and Tammy McCall. All of them agree that ICC is understaffed. All of them also agree that as a result of Defendants' deliberate indifference, prisoner-on-prisoner violence at ICC is much higher than it should be. 12. Training academies in Idaho instruct correctional officers and counselors to treat offenders with professionalism and courtesy and to seek to accommodate their legitimate needs. In a report issued in January 2010 by the Office of Performance Evaluations of the Idaho Legislature, "Operational Efficiencies in Idaho's Prison System" (hereinafter, "Legislative Report"), it is expressly noted: "The Department of Correction's mission is to protect the public while maintaining a professional environment that results in a mutual respect between staff and inmates." (p. 21).
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13. At ICC, in contrast, guards are encouraged to berate, humiliate, and degrade prisoners, and they frequently yell and swear at them. Indeed, employees who relate to prisoners in a professional and courteous manner are ostracized by fellow employees and by supervisors and told that they have been "compromised."
14. The net result of this oppressive, degrading, and dehumanizing behavior by staff is the creation of a hostile, frustrated, and angry set of prisoners who often resort to violence against other prisoners. Many guards not only encourage prisoner violence but manipulate it to their own ends.
15. For instance, a favorite tactic of ICC employees is to threaten a prisoner with placement in a housing unit where that prisoner is likely to be assaulted unless the prisoner consents to become an informant for the administration.
16. This is a cruel tactic. Prisoners who are found to be informants by other prisoners are routinely assaulted. See Benefield v. McDowell, 241 F.3d 1267 (10th Cir. 2001). This tactic thus coerces prisoners into placing themselves at substantial risk of severe injury. They must choose between two options, both of which are inherently dangerous: become an informant, or be placed in a housing unit where they are likely to be assaulted.
17. Ms. Slay will testify that on numerous occasions she observed prisoners, often in tears, begging unit manager Norma Rodriguez not to follow through with her threat to place them in a housing unit where Rodriguez knew they would be assaulted. Prisoners would often fabricate stories that incriminated other prisoners just to satisfy Rodriguez's demands that they become informants. Those prisoners who refused to comply with Rodriguez's requests, Ms. Slay observed, were often deliberately placed by Rodriguez in a housing unit in which they would likely be assaulted.
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18. Ms. Slay was present when the former warden of ICC, Phillip Valdez, employed that same tactic. Valdez told a prisoner that unless he became an informant, the prisoner would be sent to a housing unit in which prisoners who committed his type of crime were usually assaulted. Valdez told the prisoner: "You know you will get hurt there."
19. Brian Spaude is among the prisoners threatened by Rodriguez with transfer to a housing unit in which Rodriguez knew he likely would be assaulted. When Spaude failed to provide information that Rodriguez requested, she threatened to move him to the most violent housing unit in the prison, although ultimately she did not implement her threat.
20. Andrew Wolf is another ICC prisoner victimized by this tactic. Wolf was placed in a housing unit in which other prisoners threatened to assault him. Wolf reported these threats to Correctional Counselor J. Venem and asked to be transferred to a different housing unit. Venem agreed to transfer Wolf but only if Wolf became an informant. Venem asked Wolf to tell him which prisoner was keeping a tattoo gun in Wolf's current housing unit. Wolf told Venem that he did not know who had a tattoo gun and did not want to become an informant anyway. Venem then refused to transfer Wolf.
21. Administrative officials rely on violent prisoners to enforce their threats. A symbiotic relationship exists between certain staff and notoriously violent prisoners. This is evident by the fact that guards persistently send vulnerable prisoners to live near predatory prisoners, and when these predators commit assaults, they receive mild punishment, and often no punishment. For instance, as discussed below, prisoner Todd Butters was told by a sergeant following Butters' assault that disciplinary charges would be filed against
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his assailants, but the sergeant subsequently apologized to Butters and said that "higher ups" had instructed him not to proceed with his plans to charge them. 22. Some guards at ICC make no pretense of despising sex offenders, and their supervisors do nothing to stop them from acting on their hatred. The prevailing culture at ICC permits them to express their hatred openly. Ms. Slay will testify that one guard routinely berated sex offenders and told one such prisoner that he "should be shot." Defendants' Deliberate Indifference 23. Evidence of deliberate indifference to prisoner health and safety at ICC is copious and overwhelming. First, CCA refuses to provide funds for, and Warden Wengler refuses to hire and train, a sufficient number of correctional officers. It is impossible for ICC to provide prisoners with adequate protection from assault--or to timely intervene when an assault has commenced--with as few guards as ICC has on its staff. 24. Second, staff training at ICC is inadequate and ineffective. Former employees will testify at trial that during final examinations, answers to questions are sometimes written on the board, suggested or even given by the examiners, and that applicants rarely flunk the exam no matter how incompetent they may be. 25. Third, Defendants refuse to ensure that prisoner assaults will be adequately investigated in order to determine what steps should be taken to prevent future assaults, and fail to determine whether misconduct or malfeasance by a guard caused or contributed to the assault. 26. Fourth, Defendants fail to ensure that those guards whose malfeasance or misconduct caused or contributed to prisoner violence will be disciplined or retrained. Consequently, guards act with impunity even when they deliberately place prisoners in a housing unit
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where they are likely to be assaulted; when they refuse to remove prisoners from housing units when these prisoners report having been threatened with assault; and when they negligently (or perhaps deliberately) open the wrong doors, thereby allowing prisoners to assault one another. 27. Fifth, CCA has known for years that ICC prisoners face significant and unnecessary risk of injury from assault, and yet CCA refuses to take reasonable measures to abate that violence. During at least the past four years, Valdez and Wengler read numerous prisoner grievances complaining about assaults; read medical reports describing serious injuries that prisoners suffered from assaults; spoke with many prisoners who were assaulted; read media reports issued in 2008 and 2009 identifying ICC as an excessively violent facility; and spoke with staff who complained about the level of violence at ICC. Yet CCA and the administrators of ICC, including Wengler, have permitted a reign of terror, violence, and intimidation to pervade ICC. 28. Sixth, Defendants have a policy and practice of refusing, except in rare situations, to refer for prosecution the perpetrators of prisoner assaults. This policy and practice is motivated by a desire to conceal the carnage that is occurring at ICC. This policy and practice encourages violent prisoners to assault other prisoners because they know they can do so with relative impunity. 29. Seventh, Defendants perpetuate a "code of silence" at ICC. They discourage the reporting of official misconduct. Wengler has given staff no training or any encouragement to report misconduct committed by staff. To the contrary, those officers who report mistakes committed by officers are retaliated against by Defendants.
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30. Eighth, Defendants have a policy and practice of issuing a Disciplinary Offense Report (DOR) to the victims of assaults. This practice helps conceal the fact that guards failed to protect the victim from the attack. Victims are frequently charged with "simple assault" or "mutual combat" even when they were blind-sided by their assailants. These DORs, in addition to exposing these prisoners to disciplinary punishment by ICC, are taken into consideration by the Idaho Commission on Pardons and Parole in determining that prisoner's parole eligibility. As a result, these victims of assault are being denied parole based on DORs that should never have been issued in the first place.
31. Ninth, ICC, in order to maximize its profits, generally operates at or above its operating capacity. As noted in the 2010 Legislative Report, ICC's population in November 2009 was 100.2 percent (2,021 prisoners) of its operating capacity of 2,016 prisoners. This predicament, although profitable for ICC, is dangerous to prisoners. For instance, having a small number of empty beds makes it difficult to quickly move prisoners away from a dangerous environment. As the Legislative Report notes: "When prisons operate at or near capacity, the ability to safely manage population growth or contingencies such as emergencies or serious incidents is reduced." (p. 8).
32. Tenth, Defendants have enacted a policy and practice of permitting staff to open the wrong cell doors, thereby allowing members of rival gangs to attack one another.
33. In short, Defendants have enacted policies and practices that foster violence and fail to reduce violence, and Defendants turn-a-blind-eye to prisoner assaults. As a result of Defendants' failure to properly control and supervise staff, to hire and train enough staff, and to take reasonable steps to prevent violence, Defendants have condoned, acquiesced in, and promoted the carnage occurring at ICC.
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34. The failures described above continue to this day, placing all prisoners of ICC at unnecessary and substantial risk of being assaulted by other prisoners.
Physical layout of ICC 35. ICC was opened in 2000 and designed to hold approximately 1250 prisoners. However,
in 2006-2007, bunks were added to many existing cells, thereby increasing the population of the prison by nearly 200 prisoners (and decreasing the space many of them were provided in their cells and day rooms). In 2009, Pods D, E, and F were added to the existing structure, and a stand-alone building known as the PIE Building was also opened. Today, ICC holds approximately 2000 prisoners. 36. North Wing of ICC contains four Units, each of which contains three Pods. The Pods are grouped A, B, C; D, E, F; G, H, I and J, K, L. There is one Pod Control for each Unit. 37. West Wing of ICC contains two Units of six Pods each: M, N, O, P, Q, R, and S, T, U, V, W, X. The loss and destruction of prisoner Concern Forms 38. Many of the prisoners whose assaults are summarized below submitted written Concern Forms to guards prior to their assaults, pleading for help. The vast majority of these forms were never answered. 39. It is a common practice of ICC staff to disregard--and often discard--Concern Forms. Several former employees of ICC will testify at trial that they frequently saw Concern Forms in the trash that had been discarded by staff.
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PREVENTABLE ASSAULTS AT ICC Listed below are summaries of assaults on twenty-five prisoners that occurred at ICC since November 2006 (and several of these prisoners were assaulted on multiple occasions). Each of these assaults was entirely preventable and was the result of deliberate indifference by ICC staff. These assaults are presented in alphabetical order based on the last name of the victim. 40. The Supreme Court and the Ninth Circuit have made it clear that prison officials violate
the Eighth Amendment rights of prisoners both when they undertake an act that places a prisoner at substantial risk of serious harm and when they fail to act to abate such a risk. "Thus, violations of the Eighth Amendment may occur as a result of either 'a prison official's act or omission.' Farmer [v. Brennan], 511 U.S. [825], 834 [1994]." Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009) (emphasis supplied in Clem). 41. In all assaults summarized below, prison officials were placed on notice that the victim faced a substantial risk of serious harm, and yet these officials failed to act to abate that risk. Moreover, in many of these incidents, prison officials actually created the substantial risk by deliberately moving a prisoner into an area where the officer knew an assault was likely to occur. 1. TODD BUTTERS 42. Class Plaintiff Todd Butters was convicted of a sex offense and sentenced to the custody of IDOC. After going through the Receiving and Diagnostic Unit at ISCI to determine his placement, Butters was sent to ICC. He was placed in J-Pod, a general population housing unit. 43. ICC has identified a number of gangs operating within the facility, known by ICC as "Security Threat Groups" (STGs). Defendants are aware that members of some gangs
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will assault members of other gangs due to the level of dislike between gangs. Defendants are also aware that some gangs prey upon certain groups of general population prisoners, including sex offenders and informants (generally known in the prison as "rats" or "snitches"). 44. During 2007, ICC began filling J-Pod with STG prisoners, fully aware that these particular gang members prey on and frequently assault sex offenders and informants. Over time, many if not most of the sex offenders assigned to J-Pod who did not leave the Pod were assaulted, including Butters and other prisoners listed below. 45. On or about September 27, 2007, Butters was approached by a prisoner who asked Butters if he was a sex offender. Butters answered that he was. The prisoner told Butters that he "hated sex offenders," and informed Butters that he would no longer be permitted to use the J-Pod dayroom and would have to pay "rent" of $5 per week if he wanted to remain in J-Pod unharmed. 46. Butters told this prisoner that he would not pay rent. The prisoner left. 47. Shortly thereafter, another prisoner in J-Pod learned that Butters was going to be assaulted. This prisoner will testify at trial that he notified prison staff in writing that prisoners were planning to assault Butters at least two days before Butters was assaulted. Despite receipt of this warning, staff did nothing to protect Butters. 48. Butters was assaulted on October 5, 2007. The prisoner who had demanded rent on September 27 returned to Butters' cell and again asked for rent of $5 a week. When Butters refused, the prisoner started punching Butters in the face and body. Soon, two other prisoners arrived and they began punching Butters. Butters collapsed to the ground. He was asked if he would pay rent. When he again refused, the three prisoners
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increased the intensity of their assault, hitting and kicking Butters in the face, ribs, and kidney area. One blow landed above Butters' left eye, splitting it open to the bone, and blood began gushing out. The beating lasted several minutes. 49. Had J-Pod been adequately staffed, guards would have heard and observed the beating and taken steps to intervene. No guards intervened. 50. The next morning, two correctional officers, one of whom was Sgt. Chaney, noticed Butters' injuries and asked him what had happened. One of the assailants was standing outside Butters' cell at the time. Fearing retaliation, Butters lied and said he had fallen out of his bunk. 51. Butters was taken to the Unit Manager’s Office by Sgt. Chaney and asked about his injuries. Butters then described the assault. Chaney told Butters he would review the security video to determine which prisoners had committed the assault. 52. Butters was then questioned about the assault by Counselor Brian Titsworth and Case Manager Justin Acosta. Afterwards he was handcuffed and escorted to the infirmary. 53. At the infirmary, Butters told the attendants that he was in considerable pain, he had been kicked in the ribs repeatedly, his side hurt when he breathed, and he thought his ribs were broken. No x-rays were taken after the assault to determine whether any bones were broken or whether Butters needed hospitalization. 54. The decision not to take x-rays was made in accordance with ICC policy and custom of seeking to conceal the nature and extent of prisoner injuries resulting from assaults, and to save money that should have been spent on adequate medical care. 55. Butters was taken to segregation, where he remained for nine days. On the third day, Sgt. Chaney visited Butters after receiving a Concern Form from him. Butters asked
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Chaney whether disciplinary charges would be filed against his assailants. Chaney told Butters that they had identified the prisoners who had assaulted him and charges would be filed against them. 56. A few weeks later, Butters was going to visitation when he saw Chaney. Butters asked him about the status of the disciplinary charges against his assailants. Chaney replied: "I am sorry to tell you this, but higher-ups told us to drop the investigation." 57. Based on information and belief, ICC failed to conduct an adequate investigation followed by a written report to determine whether staff error contributed to this assault. 58. Only nine days after his assault in J-Pod, Butters was released from segregation and assigned to a cell in L-Pod, which is in the same housing unit as J-Pod. 59. Tammy McCall was a security officer assigned to J, K, and L Pods. McCall will testify that it was reckless for staff to place Butters in L-Pod, given that he had been assaulted in J-Pod. STG members inhabited L-Pod just as they inhabited J-Pod. 60. McCall witnessed Butters being placed in L-Pod. She told Butters it was "crazy" to place him there. 61. McCall immediately contacted Unit Manager Johnson to have Butters reassigned to a different Pod. Johnson told McCall that he would look into the matter later. McCall told Johnson that the situation was urgent. Johnson, however, refused act promptly. 62. Johnson's decision was deliberately indifferent to the obvious and immediate risk of injury that Butters faced. 63. Butters was forced to enter L-Pod. While Butters was unpacking, a friend of his, prisoner Phillip Fenwick, came to the cell and they began talking. Thirty minutes later,
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six prisoners from L-Pod arrived. They asked Butters and Fenwick what crimes they had committed. Butters responded that he was a sex offender. Fenwick refused to answer. 64. Butters was told by these prisoners not to bother unpacking. They then viciously attacked Butters and Fenwick, punching and kicking them in the face and body. Butters sustained injuries to his face, neck, and back. (The injuries that Fenwick sustained are discussed later in this pleading.) 65. As a guard approached, the assailants fled Butters' cell. The guard had to have seen them flee. The guard looked directly into Butters' cell. Despite all the blood on the floor and splattered on the walls, the guard kept walking. Butters ran after him. 66. The guard took the identification cards of Butters and Fenwick and said he would return. Butters, however, insisted that the guard take him and Fenwick off the Pod. The guard relented and removed Butters and Fenwick. 67. Officer McCall was assigned the task of cleaning the blood in Butters' cell after the assault. McCall will testify that it took her two hours to clean the pools of blood. McCall interviewed Butters after the assault. McCall told Butters, "I can’t believe they put you on L-Pod." 68. McCall will testify that guards knew that prisoners such as Butters and Fenwick were at substantial risk of assault in J, K, and L Pods. 69. McCall will testify that guards would jokingly wonder amongst themselves how long a sex offender would last before being assaulted in J, K, and L Pods. 70. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
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71. No staff were disciplined as a result of or in connection with the two assaults on Butters, not even the officers who placed Butters in L-Pod.
2. STOCK WARD CHEEVER 72. Stock Ward Cheever assisted in a "sting" operation in 2004 in which he wore a
recording device that helped convict a person for selling stolen guns. The defendant in that prosecution was "C.S." (his initials). Upon his conviction, C.S. was sent to ICC. Cheever learned that C.S. said that he would kill Cheever if he had the chance. 73. Three years later, Cheever was convicted of a crime. In April 2008, he was transferred to ICC. During intake at ICC, Cheever filled out a form identifying C.S. as a conflict, informing ICC authorities that C.S. might kill him. 74. Cheever was assigned to J-Pod, a general population housing unit. Several days later, with clear disregard for Cheever's health and safety, staff moved C.S. into J-Pod and assigned him a bed located two cells down from Cheever's cell. 75. Cheever assumed that C.S. was deliberately placed near him. Cheever telephoned his family and told them what had occurred. 76. A week later, on or about April 20, 2008, a prisoner entered Cheever's cell and demanded "rent" of $10 a week and Cheever's commissary items. Cheever said that he would not pay rent. The prisoner then punched Cheever in the face and ordered him to open his locked commissary box. When Cheever refused, the prisoner punched Cheever in the face several more times. Other prisoners entered the cell and began assaulting Cheever. Cheever was knocked unconscious. 77. When Cheever regained consciousness, his assailants had left. Cheever looked in the mirror. Several teeth were broken, his face was bruised, and his eyes were swollen.
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78. Just then, C.S. rushed into the cell and began pummeling Cheever, hitting him in the face and knocking him to the ground. Fortunately, another prisoner entered the cell and told C.S. to stop hitting Cheever, saying "this inmate had enough." However, the prisoner warned Cheever not to report the assault and told Cheever that he would be assaulted again if he did not start paying rent.
79. That night, Cheever waited until his cell mate was asleep and managed to give a guard a Concern Form saying that he had been assaulted and feared for his life. A short time later, he was summoned out of his cell by a guard on the intercom.
80. Cheever was taken to the multipurpose room, where he was interviewed by staff, including Captain Scott Weibye. Weibye asked Cheever for the names of his assailants. Cheever was not sure of the names other than C.S. Weibye said that he would review the video tape and identify the assailants. Weibye told Cheever that he thought Cheever's nose was broken, and Cheever thought it was broken, too.
81. Cheever was taken the ICC's infirmary. No x-rays were taken after the assault to determine whether any bones were broken or whether Cheever needed hospitalization.
82. The failure of the medical department to take x-rays to determine the extent of Cheever’s injuries was consistent with ICC's policy and practice of concealing the true extent of injuries suffered in prisoner assaults, and with the motive of saving money.
83. The next day, Cheever was interviewed by other staff, including Officer Robert Ashcroft and Investigator Brent Archibald, who took photographs of Cheever's face. Archibald showed Cheever some photographs of prisoners who lived in J-Pod. Cheever did the best he could to identify his assailants. Archibald told Cheever that the assault would be investigated and that his assailants would be punished.
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84. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
85. Cheever believes that ICC did nothing to punish his assailants. A year after the assault, Cheever sent a Concern Form to Archibald, asking whether his assailants had been punished. Archibald responded by claiming that he "was not aware of the assault."
86. Apparently, Archibald was unable to locate--or refused to look for--even the notes he took when he interviewed Cheever.
87. As a result of the assault, Cheever lost his two front teeth and suffers from headaches and other physical ailments, as well as emotional and psychological trauma.
88. No staff were disciplined as a result of or in connection with the assault on Cheever, not even the officer responsible for placing C.S. in a cell near Cheever.
3. STEVEN H. DAVIS 89. Class plaintiff Steven H. Davis is 50 years-old. During the summer of 2006, under a
subpoena, Davis testified for the prosecution against a person in Idaho ("John Roe") on trial for murder. Davis' testimony was significant. "Roe" was found guilty of murder and sentenced to imprisonment under the jurisdiction of IDOC. 90. Davis was also a prisoner under the jurisdiction of IDOC. In December 2009, Davis was incarcerated at ISCI. He applied for a transfer to ICC so that he could take a rehabilitative program that was only offered at ICC. Davis was told, however, that "Roe" was incarcerated at ICC. 91. Thus, moving Davis to ICC was risky because "Roe" and other prisoners might consider him a "rat" and assault him.
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92. Davis discussed this subject with his counselor at ISCI, Michael Schoen. Schoen told Davis that for three reasons, it would be safe to enter the rehabilitative program at ICC. First, Schoen said, the program was located in a separate building at ICC (the "PIE Building") that was detached from the main facility. Davis would live in the PIE Building and not come in contact with prisoners in the main facility.
93. Second, Schoen said, in order to qualify to live in the PIE Building, a prisoner must be close to parole eligibility. "Roe" was not close to parole eligibility and therefore would not be living in the PIE building.
94. Third, Schoen would enter "Red Flags" into Davis' prison file that would draw the attention of staff to the conflict that Davis had with "Roe." This would help guarantee, Schoen said, that Davis would not be housed any place other than the PIE Building.
95. Based on Schoen's assurances, Davis decided to transfer to ICC. He was moved from ISCI to ICC on December 14, 2009.
96. When Davis arrived at ICC, however, he was informed by two sergeants on the intake staff that there were no open beds in the PIE Building. Davis explained his predicament to them. They looked at his computerized file and confirmed the existence of the Red Flags. They summoned a lieutenant and someone else from the intake office. However, the four of them told Davis that he could not be moved to the PIE building that day. They assured Davis he would be moved there the following day.
97. Davis offered to be housed in Administrative Segregation, but the officers said there were no beds available there, either. The officers said that Davis could safely be housed for that one night in S-Pod, a general population housing unit. Reluctantly, Davis agreed.
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98. Soon after Davis entered S-Pod, a prisoner referred to his testimony against "Roe." Davis was thus at risk in S-Pod. He reported this to staff but they refused to intervene.
99. Davis was not moved to the PIE Building the next day. He informed the guards in S-Pod that he had been told he would be moved that day. The guards refused to help him.
100. The following day, while sitting at a table in S-Pod, a prisoner came up behind Davis and violently struck Davis in the side of the face, causing his nose to bleed and his eyes to water. The blow was painful, his jaw hurt, and Davis was dizzy. The prisoner ran away before Davis could identify him.
101. Davis was immediately removed by guards from S-Pod and transferred to a bed in the PIE Building. Thus, a bed was indeed available.
102. The officers who placed Davis in S-Pod and those officers who kept him there until he was assaulted exhibited deliberate indifference to his health and welfare.
103. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
104. No staff were disciplined as a result of or in connection with the assault on Davis. 4. DANIEL DIXON 105. Daniel Dixon entered ICC in September 2006, and a few days later was placed in J-
Pod, a housing unit for general population prisoners. 106. It was inherently dangerous to place Dixon in J-Pod because he is a vulnerable
prisoner, even though he is physically strong. Indeed, shortly after arriving in J-Pod, Dixon was approached by STG members who insisted that Dixon begin paying "rent." 107. Between September 2006 and December 2007, Dixon was assaulted no fewer than twelve times due to the refusal of ICC staff to place him in a safe housing environment.
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108. Dixon repeatedly begged staff, both verbally and in writing, to move him to a place where he would be safe, including if necessary to Protective Custody. He submitted at least two dozen Concern Forms, many of which were never answered. One response he received stated: "You’ll be staying where you are." When he appealed one of his Concern Forms to Chief of Security Wilkerson, Wilkerson called Dixon to his office. Wilkerson explained to Dixon that the reason Dixon was not being sent to Protective Custody was because Dixon would "win" some fights and thus he needed no protection.
109. After one assault, Unit Manager Brian Doser and Case Manager Justin Acosta asked Dixon to identify his assailants. When Dixon said that he did not know their names, these men refused to help him, even though they probably could have obtained their names had they examined the security video tape.
110. In February 2007, Dixon beseeched Doser to intervene and move him to a safer place. Doser refused, telling Dixon that he was winning many of his fights and should "just keep fighting."
111. Two months later, Dixon asked Acosta if he could be transferred out of ICC. Acosta replied Dixon would leave ICC only when he was "dead, or when his sentence ended."
112. Dixon told his family about the danger he was in. Members of his family, including his mother, called ICC to request that Dixon be moved to a place of safety. His mother called at least six times. These family members were told that their requests would be considered but that assaults sometimes did occur at ICC.
113. The incident that Dixon feared finally occurred on December 16, 2007, when five to seven prisoners entered Dixon's cell. They attacked Dixon with weapons, including homemade knives and a padlock placed in a sock that can be swung with substantial
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force. The attack lasted about five minutes, during which time Dixon repeatedly screamed for help, and also pressed the emergency button in his cell. Guards surely heard his screams and heard the emergency call, and yet no one came to his aid. Dixon suffered broken ribs, a slashed face, and broken bones around his right eye. His eyes swelled shut. As a result of the attack, Dixon continues to this day to suffer posttraumatic stress and his right eye continues to leak fluid. 114. While Dixon was dazed, injured, and alone in his cell, two more prisoners entered his cell and robbed him of $200 worth of property at knife-point. It took nearly two hours after the assault for a guard to help Dixon leave the cell and see a nurse. 115. Despite his condition, no doctor attended to Dixon. No x-rays were taken after the assault to determine whether any bones were broken or whether Dixon needed hospitalization. 116. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault. 117. Dixon was moved to ISCI soon after the assault, a move that should have occurred months earlier. 118. During the move, the box containing Dixon's Concern Forms, Grievances, and other legal materials was, Dixon was told, "misplaced" by ICC staff. When Dixon eventually received his legal materials, all of his Concern Forms and Grievances were missing and his materials were in complete disarray. 119. No staff were disciplined as a result of or in connection with any of the assaults on Dixon.
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5. HANNI ELABED 120. Hanni Elabed assisted prison administrators uncover an illegal drug ring at ICC
involving staff and certain prisoners associated with an STG in the housing unit in which he resided (the PIE Building). 121. Realizing that Mr. Elabed could be at risk for providing this information, prison officials removed him from the PIE Building. However, on January 18, 2010, less than two weeks later, Mr. Elabed was returned to the PIE Building by staff. The staff who moved him acted with deliberate indifference to his health and safety. 122. Within minutes of his arrival, Mr. Elabed was brutally attacked. While at least four ICC employees passively watched from behind a window, a prisoner grabbed Mr. Elabed and repeatedly smashed his head against a wall and against a Plexiglas window, and then stomped on his head when he fell to the floor. 123. Mr. Elabed repeatedly sought help from the staff observing the assault. However, these employees neither came to his aid nor opened a nearby door that would have permitted him to leave the room. 124. The pummeling lasted so long that the assailant got tired, sat in a chair, and took a break. When he saw that no staff cared enough about Mr. Elabed to intervene, he returned to the victim and starting attacking him again, stomping on his head repeatedly. Mr. Elabed was convulsing on the floor in a pool of blood, and he now has permanent brain damage. 125. Defendants may seek to justify their refusal to rescue Mr. Elabed by claiming that a specially trained response team is necessary to intervene in these situations, not line
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officers. However, if Defendants prevent line officers from intervening in emergencies like this, then they must ensure that their response team will respond promptly. 126. What happened to Mr. Elabed proves that Defendants are inept, incompetent, and cannot be trusted to save the lives of prisoners under attack. Indeed, every prisoner whose assault is chronicled in this pleading could have been spared injury had ICC been staffed with a sufficient number of trained, professional officers. 6. RANDY ENZMINGER 127. Named Plaintiff Randy Enzminger arrived at ICC in 2007. Enzminger lived for more than a year on K-Pod without being assaulted, although he observed many assaults on other prisoners, as ICC placed an increasing number of STG members in K-Pod. 128. Enzminger witnessed approximately twenty beatings of sex offenders and prisoners suspected of being snitches during his stay on K-Pod, at least half of whom needed medical attention as a result of their assaults. One victim was covered with bruises but refused to leave his cell until the bruises healed, for fear of being labeled a snitch if officers were seen speaking with him about his injuries. Other prisoners brought food to the victim's cell during that time. 129. In early March 2009, Enzminger began receiving demands from STG members that he pay "rent" if he wished to live unharmed on K-Pod. He refused those demands. 130. Fearing for his safety, Enzminger submitted approximately ten Concern Forms to staff, primarily the Unit Manager, asking to be moved. He received no response and he was not moved out of K-Pod. 131. Enzminger was assaulted twice in K-Pod and once in M-Pod. The first assault in KPod occurred in mid-March 2009, approximately thirty days after he began submitting
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Concern Forms asking to be moved. He suffered significant injuries, including a broken nose, deep lacerations on his forehead, possible rib fractures, and chipped teeth. 132. Enzminger was taken to the prison infirmary. No x-rays were taken after the assault to determine whether any bones were broken or whether Enzminger needed hospitalization. Enzminger requested that x-rays be taken. One guard laughed at him and asked why he needed x-rays when everyone could see that his nose was broken. 133. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault. 134. With clear indifference to his safety, staff returned Enzminger to K-Pod. He again requested to be moved. He told staff about the first assault, including Case Managers Melissa Carr and Donald Hudon. Hudon said it would take a "miracle" to move him. 135. The refusal of ICC staff to remove Enzminger from K-Pod after his initial assault exhibited deliberate indifference to Enzminger’s safety. Additional violence to Enzminger was reasonably foreseeable. 136. The second assault occurred on March 29, 2009, approximately two weeks after the first assault. Two prisoners entered Enzminger's cell and began beating him, and three more prisoners soon joined in. 137. The second beating was more severe than the first one. Enzminger believes that his nose was broken again and some ribs were broken. He was in terrible pain, and it hurt to breathe due to pain in his ribs and back. 138. Enzminger was taken to the medical department. Like the first time, no x-rays were taken to determine whether any bones were broken. Photographs were taken of his face. Enzminger was cleaned up and sent to segregation.
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139. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
140. Enzminger was issued a DOR for fighting, consistent with ICC's policy of accusing assault victims of being aggressors. The DOR was subsequently dismissed by the Hearing Officer. However, the DOR should never have been issued. Its purpose was to deflect scrutiny from the guards whose malfeasance caused the second assault to occur.
141. No staff were disciplined as a result of or in connection with the two assaults on Enzminger in K-Pod, not even the officer who returned Enzminger to K-Pod after he had already been assaulted there.
142. Enzminger was assaulted for a third time in March or April 2010. He was living in M Pod at the time. A guard watched while more than a dozen prisoners congregated just outside of Enzminger's cell. The guard failed to disperse the group even though such a large congregation of prisoners in that area violated prison rules. At least two of these prisoners entered Enzminger's cell and began punching him in the face.
143. Enzminger was severely injured. He required stitches both inside and outside his lips, two teeth were chipped, and he needed stitches to close a wound near his left eye.
144. As with the earlier assaults, ICC conducted no investigation to determine whether staff error contributed to this incident. No one was disciplined, neither staff nor prisoner.
7. PHILIP FENWICK 145. Philip Fenwick was sent to ICC on June 6, 2006. 146. While in county jail awaiting trial, Fenwick was told by other prisoners that ICC is a
violent and dangerous prison. During intake at ICC, Fenwick was interviewed by
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Psychiatric Technician Charles Fletcher. Fenwick told Fletcher that he was afraid of being assaulted if he were placed in general population. 147. With deliberate indifference, Fletcher dismissed Fenwick's concerns and said that Fenwick would have to fend for himself. 148. A sergeant told Fenwick that he was going to be housed in L-Pod, a general population housing unit. The sergeant told Fenwick that L-Pod was a "Lion's Den" and a "Gladiator Dorm." 149. As soon as Fenwick arrived on L-Pod, prisoners asked to see his "papers" that would show the crime he committed. ("Papers" are commitment papers, which disclose a prisoner's crime.) Fenwick refused to disclose his papers. 150. Fenwick endured verbal harassment on L-Pod for more than a year. Four months before he was assaulted, Fenwick told Case Manager Justin Acosta that he feared for his safety. A few weeks before the assault, Fenwick told both Acosta and Case Manager Brian Titsworth that he feared for his safety. Neither one provided any help. 151. Two months before the assault, Fenwick submitted three Concern Forms asking for help and requesting a move to a safer part of the prison. One was handed to the Housing Sergeant for L-Pod, one to the Unit Manager, and one to Case Manager Acosta. No responses were received and Fenwick was not moved out of L-Pod. 152. On October 15, 2007, a friend of his, Todd Butters, was transferred into L-Pod. Fenwick went to Butters' cell to talk with him. Fenwick had been speaking with Butters for about thirty minutes when a group of prisoners from L-Pod entered Butters' cell and asked Fenwick for his papers. Fenwick declined to show his papers.
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153. Suddenly, the group of prisoners began punching and kicking Fenwick. He was kicked in the mouth so hard that his teeth were pushed through his lower lip. His nose was broken. His body was pummeled. Blood was all over the cell, so much blood that it took Officer McCall nearly two hours to clean it up.
154. Butters summoned for help. Correctional Counselor Michael Kerr helped escort Fenwick to the infirmary. As Kerr was placing handcuffs on Fenwick, Kerr said that he could not understand why ICC housing staff kept putting people in these situations.
155. Fenwick was taken to St. Luke's Hospital in Boise. On the way to the hospital, the officer escorting him (Thompson) admitted to Fenwick that some prisoners were being placed in dangerous situations at ICC.
156. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
157. After Fenwick returned to ICC, he spent three days in the segregated medical unit and was then moved to a safer area of the prison, the area to which he had asked to be moved prior to his assault.
158. On October 29, 2007, Fenwick sent a Concern Form to Correctional Counselor Kerr asking him for the identities of the prisoners who had assaulted him and asking what had happened to those prisoners. Kerr did not reply.
159. On the same day, Fenwick sent a Concern Form to Counselor Sara Fink, asking her the same questions he had asked Kerr. Fink answered by stating that she was "not aware of how the situation was handled," and suggested that he ask Designated Hearing Officer Jeremy Hranac and Case Manager Brandon Delaney.
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160. Following Fink's advice, Fenwick sent Concern Forms to Hranac and Delaney. However, Delaney replied only: "The information is not authorized to be given out." Hranac's Concern Form was given to ICC Investigative Officer Brent Archibald, who stated only: "This is the first I have heard about your assault. Sorry."
161. Archibald's reply was disingenuous. Archibald was ICC's Investigations Officer and was the person who had taken photographs of Fenwick following the assault. Archibald therefore did know about Fenwick's assault.
162. Based on Plaintiffs' information and belief, no disciplinary action was taken against the prisoners who assaulted Fenwick nor against the staff who failed to protect him, not even Acosta or Titsworth.
163. Fenwick has permanent scars on his face from the assault. 164. Fenwick's assault was entirely preventable. His assault was the product of deliberate
indifference. 8. MICHAEL HAYES 165. Class Plaintiff Michael Hayes is a sex offender. In September 2006, Hayes was
assigned to A-Pod in ICC. Within minutes of his arrival, Hayes was threatened by several prisoners and told to leave A-Pod because he is a sex offender. 166. Hayes reported the threat to Unit Manager Brian Doser. Doser told Hayes he would not be moved. Hayes objected and was taken to segregation. While in segregation, Hayes asked Doser and Case Manager Acosta to place him in Protective Custody (PC) due to the threats made against him. Acosta stated that because Hayes had committed a sex offense, he did not deserve PC.
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167. On October 11, 2006, a three-member committee considered whether to grant Hayes' request for PC. The committee voted to deny the request. Warden Valdez affirmed that decision the next day.
168. Hayes was returned to general population. In March 2007, Hayes was living in KPod, a general population housing unit. He was approached by several STG members and told he would have to pay "rent" if he wanted to live in K-Pod. Hayes submitted a Concern Form on March 30, 2007, to Case Manager Acosta asking that he be moved for his safety. Acosta did not reply.
169. On April 2, 2007, Hayes submitted a Concern Form to Doser advising him of the threats and asking that he be moved. Doser did not reply.
170. On April 14, 2007, two prisoners entered Hayes' cell and told Hayes to give them his property for "rent." Hayes refused. The men assaulted Hayes. They had padlocks in their fists and repeatedly hit Hayes in the face and torso. They stopped to steal Hayes' property and Hayes ran out of his cell. Hayes ran up one set of stairs and then down another set of stairs pursued by one of his assailants. Guards should have observed the chase but no one intervened.
171. Hayes was overtaken by his assailant near the showers and beaten again. He was punched and kicked. (A portion of the assault, Hayes was later told, was captured on video.) Hayes managed to push the emergency button, but guards ignored it. Finally, Hayes was able to reach the foyer door and exited the Pod.
172. Hayes suffered lacerations, bruises, and swelling. Hayes was taken to medical and placed in segregation for two days.
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173. No x-rays were taken after the assault to determine whether any bones were broken or whether Hayes needed hospitalization.
174. The prisoners who assaulted Hayes were placed in segregation for ten days but were released without being charged and without being required to return the property they stole from Hayes.
175. Hayes' assault could easily have been prevented had staff taken adequate precautions to protect him. The failure to take those precautions was deliberate indifference. In addition, his assault, as with the Butters, Fenwick, Elabed, and Dixon assaults, could have been stopped had K-Pod been adequately staffed.
176. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
177. No staff were disciplined as a result of or in connection with the assault on Hayes. 9-10. LARRY and ARTHUR HOAK 178. Larry Hoak was placed in L-Pod in ICC in 2006. Hoak, who is not a sex offender,
did not start having problems in L-Pod until early 2008 when Hoak’s cell mate started complaining about his snoring. Hoak was afraid that the situation could become violent and he told Sgt. Christopher Rose, Officer Ashcroft, Dr. Khatain, and Dr. Garrett that he wanted to be moved to avoid a conflict. His requests were denied. 179. Hoak believes his cell mate convinced gang members to assault him. In February 2008, while Hoak was sleeping, two prisoners entered his cell and assaulted him. Hoak was repeatedly kicked in the head and badly beaten. The assailants also robbed him, taking nearly $100 in property. No staff interrupted the assault.
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180. After the assailants left, Hoak pushed the emergency button and guards saw his injuries. He was taken to see Dr. Garrett, who provided limited treatment.
181. No x-rays were taken after the assault to determine whether any bones were broken or whether Hoak needed hospitalization. Hoak was taken to segregation, where he remained for several days.
182. The assault was the product of staff's deliberate indifference. They failed to take reasonable steps to protect Hoak.
183. Hoak believes that guards knew which prisoners assaulted him but chose not to issue them DORs.
184. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
185. Hoak was also assaulted a second time due to the deliberate indifference of staff. Approximately six weeks after the first assault, a prisoner stated in front of several other prisoners that he was going to assault Hoak. Hoak immediately reported this threat to staff, including a sergeant, but no one did anything to protect him.
186. The prisoner who threatened to assault Hoak did, indeed, assault him a few days later. The prisoner cornered him in the bathroom, took a handicap railing off the wall, and smashed Hoak's head with it several times, sending blood flying.
187. Hoak needed twelve staples to close the wounds in his scalp. Hoak suffers from dizziness, memory loss, headaches, and trauma, and has a large contusion on his head.
188. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this second assault.
189. No staff were disciplined as a result of or in connection with either assault on Hoak.
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190. The next month, Larry Hoak's brother, Arthur, was transferred to ICC. Larry saw Arthur the day he arrived. Larry was extremely concerned for his brother's safety and believed that Arthur would likely be assaulted. Arthur looks a lot like Larry and Larry was convinced that the same prisoners who had assaulted him, or other members of their gang, would assault Arthur.
191. During the next 72 hours, Larry informed numerous staff, including Sgt. Rose, Unit Manager Rodriguez, Investigator Archibald, C.O. Ashcroft, Case Manager Hudon, and Dr. Khatain about his concern for his brother’s safety. Larry sent at least five Concern Forms to Rose and Rodriguez, but received no response.
192. Larry also told Dr. Garrett about his fears. At Larry's request, Dr. Garrett telephoned Warden Valdez and left a message explaining that Larry believed that Arthur would be assaulted if he remained at ICC.
193. These warnings were ignored. Indeed, Arthur was assigned to L-Pod, the very pod in which Larry had been assaulted the previous month. The decision to assign Arthur to LPod was reckless and callous.
194. When Arthur was moved to L-Pod, he could sense that prisoners thought he was Larry. Prisoners were giving him dirty looks and harassing him. Arthur knew that Larry had been assaulted in L-Pod, and Arthur told Sgt. Rose and Unit Manager Rodriguez that he was afraid of also being assaulted, and asked to be moved.
195. The day of Arthur’s assault, he again asked Rodriguez to move him. Rodriguez told him that she had entered an "alert" to have him returned to ISCI but that he needed to remain in his cell for now. (Subsequently, two officials at ISCI have told Arthur that there is no indication that anyone placed any "alerts" in his file.)
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196. Obeying Rodriguez's instructions, Arthur returned to his cell in L-Pod. Not long after, three prisoners entered his cell and demanded that he pay rent. They began punching him and kicking him, and told him that he should expect more beatings unless he started paying rent. He was kicked in the face so hard that the shoe left an imprint. Blood was coming out of his ear. He had significant pain in his neck and back.
197. An officer arrived (Alumbaugh) and she took Arthur to the infirmary. She told Arthur that she had seen the assailants flee from his cell and she knew who they were, and would make sure they were charged with disciplinary infractions. However, based on information and belief, Arthur's assailants were not charged.
198. Arthur was not seen by a doctor even though blood was coming out of his ear and he had been kicked so hard that a shoe print was visible on his face.
199. Photographs were taken of his face. But no x-rays were taken after the assault to determine whether any bones were broken or whether Hoak needed hospitalization.
200. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
201. After the assault, Arthur was placed in a safer housing unit where he had no further incidents, and a few weeks later, was returned to ISCI.
202. Arthur had x-rays taken at ISCI. They showed swelling behind his left eye and scar tissue in his left ear. To this day, Arthur has difficulty hearing out of that ear. He also continues to suffer emotional and psychological trauma stemming from the assault.
203. ICC staff easily could have--and should have--protected Arthur Hoak from this assault. The assault was the product of deliberate indifference.
204. No staff were disciplined as a result of or in connection with Hoak's assault.
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11. ANTONEY JONES 205. Antoney Jones is African-American and gay. While awaiting trial in early 2007, he
was housed in the Ada County Jail in Boise, Idaho. 206. Sensitive to Jones' safety, the Ada County Jail placed him in a protective custody
housing unit, where Jones was kept apart from prisoners prone to assault gay prisoners, African-American prisoners, and prisoners considered "rats." 207. Had ICC staff exhibited similar concern, Jones would not have been assaulted at ICC. 208. After his conviction in February 2007, Jones was sent to ICC and was assigned to NPod. Soon afterwards, Jones decided to testify against a criminal defendant in a California prosecution. When he returned to ICC, some prisoners considered him a "rat." 209. Jones moved to K-Pod. Jones had heard while in the Ada County Jail that J, K, and L Pods were "Gladiator Pods," in which prisoners often were assaulted. 210. Soon after his arrival in K-Pod, Jones was threatened by prisoners. He reported these threats to staff but no one did anything to protect him. Finally, Officer Tammy McCall issued him a DOR for a minor offense because, as she will testify, she knew it would result in Jones being removed to segregation where he would be safe. 211. Unfortunately, segregation was only a temporary reprieve. After he completed his sentence in segregation, Jones was notified that he was being moved to J-Pod, along with another prisoner from segregation known to Jones only by the name of "Moose." Both Jones and "Moose" told the officer escorting them that they feared for their safety if they were placed in J-Pod, but the officer refused to help them.
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212. While under escort to J-Pod, Jones saw Sgt. Ashcroft, who was assigned to monitor the hall. Jones told Ashcroft that he was afraid he would be assaulted in J-Pod. Ashcroft took Jones to see Sgt. Amy Shapherd. Jones told her about his fears.
213. Shapherd and Ashcroft told Jones that his fears were not enough to prevent the move, and that something would have to happen to Jones in J-Pod before he would be moved. The officers conducted no investigation; they simply placed him in J-Pod.
214. Tammy McCall was a correctional officer at ICC during this period of time, assigned to J, K, L Pods. McCall worked a different shift than the one during which Jones was moved to J-Pod.
215. McCall will testify that Jones should never have been housed in J-Pod, that it was reckless for Shapherd and Ashcroft to permit him to be placed there, and that these officers had to have known that Jones would likely be assaulted in J-Pod. Jones' prison file would show that the risk of assault in J-Pod was extremely high given Jones' suspicion of being a "rat," and the fact that he is gay and African-American.
216. Shapherd and Ashcroft knew that J-Pod was filled with gang members, and that moving Jones into that Pod was exceedingly dangerous.
217. Immediately after his arrival in J-Pod, Jones noticed that prisoners in nearby cells appeared to be conferring about him. Approximately thirty minutes later, Jones's cellmate asked Jones to leave the cell while the cellmate used the toilet. Jones left the cell and sat on a chair near the telephone.
218. Within minutes, a prisoner walked up to Jones and hit him violently in the face. Prisoners throughout the Pod lined the rails and began yelling "Kill the nigger," "Get the fag," and "Kill the rat." It was a mini-riot, and yet no guards intervened.
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219. Moose came to Jones' rescue and separated the assailant from Jones. However, other prisoners immediately attacked Moose and he was badly beaten. Jones ran to his cell and closed the door, locking it.
220. Jones could observe a guard watching from a window as Moose was being assaulted. It took several minutes before officers intervened, during which time Moose continued to be attacked. Once again, guards watched passively while a prisoner was being beaten.
221. Jones was in great pain and he was bleeding from his nose, and he continued bleeding from his nose for the next half-hour. He believed that his nose was fractured. His face was swollen and both eyes turned black and blue.
222. Jones was taken to the prison infirmary. No x-rays were taken after the assault to determine whether any bones were broken or whether Jones needed hospitalization.
223. Jones was placed in segregation. Jones felt desperate, depressed, and forsaken. Three days later, while still in the segregation cell, Jones attempted suicide by tying bed sheets around his neck. Jones lost consciousness. Fortunately, a guard saw him and cut him down. Jones was taken to St. Luke's Hospital, where he remained for several hours before being returned to ICC.
224. Jones does not know if Moose required medical attention. Jones has not seen Moose since the incident. However, Moose's intervention saved Jones from additional injury.
225. Jones was never interviewed concerning the incident and he believes it was not investigated. Soon after his release from segregation, a Disciplinary Hearing Officer told Jones that no charges would be filed against the prisoner who had assaulted him because the incident was viewed as "mutual combat."
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226. The assault on Jones was not "mutual combat." Jones offered no resistance. ICC employees pretended it was "mutual combat" in order to avoid the responsibility of having placed Jones in a dangerous environment. ICC, as it did with many other assaults, sought to conceal the malfeasance of staff that contributed to this violent incident.
227. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
228. No staff were disciplined as a result of or in connection with the assault on Jones, not even Shapherd or Ashcroft.
12-16. JOSHUA KELLY, JOSE PIÑA, JOE ROCHA, RAY BARRIOS, and ANDREW IBARRA 229. As noted earlier, ICC contains rival STGs whose members often assault one another
if provided the opportunity. 230. ICC employees ask prisoners during intake whether they are affiliated with a gang.
Those who admit affiliation with a particular STG should therefore be kept separated by ICC from prisoners who are known by ICC to be rival gang members. 231. On October 9, 2009, ICC employees transferred three prisoners who they knew were affiliated with a particular STG--Joshua Kelly, Joe Rocha, and Andrew Ibarra--to a living area they knew was occupied by a rival STG. Thus, staff deliberately placed these three prisoners at substantial risk of physical injury. 232. The result was predictable. While Kelly, Rocha, and Ibarra were in the cafeteria to eat their first meal, up to fifteen members of the rival STG attacked them. All three plaintiffs suffered physical injuries; Ibarra was struck in the head with such force, he was knocked unconscious, and Rocha suffered a severe injury to his knee.
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233. ICC employees knew that a fight was likely. One employee brought a video camera to the cafeteria to record it. Plaintiff Ibarra, on the way to the cafeteria, overheard one guard tell another guard: "Something is going to happen."
234. As soon as these three prisoners were informed by ICC employees that they were being moved to the area inhabited by their rivals, they beseeched those employees to change their minds.
235. Rocha asked Correctional Counselor Malcom Beach, Case Manager Cheryl Courtwright, and Officer Johnson not to move him. Beach turned to Johnson and said, "Maybe we had better not move him." However, Rocha was moved anyway.
236. Named Plaintiff Kelly asked his counselor, Sara Fink, not to move him. With deliberate indifference to his health and safety, Fink told Kelly that unless he moved, she would recommend to the Idaho Commission on Pardons and Parole that Kelly remain incarcerated for his entire sentence, and that she would have Kelly taken to segregation.
237. Plaintiff Ibarra asked Beach, Courtwright, and Officer Harold not to move him. Beach replied that Ibarra would be issued a DOR unless he obeyed the order to move.
238. Plaintiffs do not know whether the ICC Gang Coordinator, Travis Bergquist, was consulted regarding the move of these three prisoners. However, he should have been consulted and he should have strongly recommended against the move.
239. These three plaintiffs were moved at approximately 2:30 p.m. on October 9, 2009, and they were assaulted a few hours later in the cafeteria.
240. At the time these assaults commenced, Plaintiffs Piña and Barrios happened to be seated in the cafeteria near Rocha, Ibarra, and Kelly. They are not affiliated with an
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STG. However, they were assaulted, too. Plaintiffs Piña and Barrios were innocent bystanders. 241. ICC has a policy and practice of issuing DORs to the victims of assault in order to hide the prison's own errors. Consistent with this practice, all five victims of these assaults were issued DORs for fighting. 242. At their hearings, Rocha and Ibarra requested that two of the employees with whom they had spoken, Beach and Courtwright, be called to testify. However, these guards failed to appear, and the Hearing Officer proceeded to rule in their absence, finding both Rocha and Ibarra guilty as charged. 243. Plaintiff Ibarra appealed his conviction to the Warden of ICC, Phillip Valdez. Valdez admitted in his response that Ibarra had "advised staff of [his] concerns" about being assaulted. Nevertheless, Valdez affirmed the convictions, although he reduced the severity of the infraction. 244. Plaintiff Piña explained during his DOR hearing that he was an innocent bystander and a victim. Nevertheless, Plaintiff Piña was convicted of fighting. 245. The DOR against Plaintiff Kelly was dismissed by the Hearing Officer. The other four Plaintiffs were convicted as charged, although their charges and punishments were reduced on appeal. The DORs, however, should never have been issued in the first place, and the Hearing Officer should have dismissed all of them. 246. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to these five assaults. 247. No staff were disciplined as a result of or in connection with these assaults, not even Courtwright, Beach, Harold, Johnson, or Fink.
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17. MATTHEW KNAPP 248. Matthew Knapp is a sex offender. He entered ICC in April 2007. In July 2008, while
Knapp was residing in H-Pod, he was threatened by another prisoner. The prisoner referred to Knapp's offense and told him: "I'm going to get you" and "Watch your back." 249. Knapp knew that the threat was real and that he was in danger. He immediately told Officer Johnson (now Unit Manager Johnson) about the threat and begged to be transferred to another housing unit or another Idaho prison. Officer Johnson, however, refused to help Knapp. Acting with deliberate indifference, Johnson told Knapp that he would not move him. 250. Less than forty-eight hours later, the prisoner who had threatened Knapp assaulted him. The assault occurred in the chow hall. Knapp was attacked from behind and never saw it coming. He was thrown to the ground and punched and kicked in the face, resulting in the eventual loss of three teeth, a broken nose, and lacerations that required eighteen stitches. He was knocked unconscious. Knapp was taken to St. Luke’s Hospital, where he was treated for his injuries. He was returned to ICC a few hours later. 251. Three days later, medical personnel at ICC pulled three of Knapp's teeth to prevent infection. Knapp continues to suffer neck pain and headaches as a result of his beating. 252. In a subsequent conversation with Officer Johnson, Johnson assured Knapp that ICC would replace his three teeth. After several months went by and ICC hadn't replaced his teeth, Knapp sent a Concern Form to Johnson reminding him of his assurance. Johnson responded by saying that ICC would not replace his teeth. 253. After his assault, Knapp was moved to V-Pod in the West Wing of ICC, and he had no further difficulties.
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254. Had Johnson taken reasonable precautions to prevent the assault, as he should have, and moved Knapp to V-Pod sooner, the assault could have been prevented.
255. As a result of deliberate indifference, guards allowed prisoners known to be a threat to sex offenders to enter the dining facility with Knapp.
256. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
257. There have been numerous assaults in the ICC dining hall. ICC supervisors fail to assign enough staff to monitor the dining hall and allow prisoners who they know are mortal enemies to enter the dining hall at the same time. As a result, many assaults occur in the dining hall, such as the one on Matthew Knapp in July 2008.
258. Officer Johnson was not disciplined in connection with the assault on Knapp. 18. CLARENCE KNIGHT 259. When Clarence Knight entered ICC in March 2009, he informed intake staff that he
was affiliated with a particular STG. 260. Exhibiting deliberate indifference and extreme carelessness, Knight was assigned to
live in J-Pod, a general population housing unit filled with members of an STG in constant battle with the STG to which Knight belongs. 261. Within ten minutes of arrival on J-Pod, Knight was attacked by up to seven members of the opposing STG. Knight was punched and kicked at least fifteen times in the head and body. Knight believes that a lock was placed in a sock and that he was hit in the head with this weapon. Knight needed more than twenty stitches to close the wounds on his head (and the scars are still visible on the back of his skull). He had lumps on his face and his eyes were black and blue.
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262. No x-rays were taken after the assault to determine whether any bones were broken or whether Knight needed hospitalization for a skull fracture.
263. Due to the chronic understaffing, the assault was not observed or halted by ICC staff. Knight had to summon help by pushing the emergency button in his cell.
264. Knight was taken to segregation following the assault. A few days later, ICC's Gang Coordinator, Travis Bergquist, visited Knight in segregation. Bergquist admitted that placing Knight in J-Pod was a mistake. He told Knight that he had not been at work the previous day and that, had he been, Knight would not have been assigned to J-Pod.
265. Knight was also visited by Deputy Warden Prado on the same day. As with Bergquist, Prado apologized to Knight for the error.
266. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
267. The staff who assigned Knight to J-Pod were not disciplined. 19. SPENCER MASCHEK 268. Spencer Maschek was convicted in November 2008 of aiding and abetting in the
commission of arson. 269. On June 15, 2009, during his classification hearing at ISCI, Maschek notified IDOC
personnel, including Case Manager Benson and Corporal Lun, that he would be in grave danger if housed near his co-defendant, "P.M." (his initials). Maschek was assured that this information would be noted in his file and that he would be kept apart from P.M. 270. On October 26, 2009, Maschek was informed that he was being moved to ICC the next day. Maschek repeated to staff, including Officer Maldonado, of the need to keep him separated from P.M.
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271. Apparently, Maldonado notified the Shift Lieutenant of the problem because that same evening the Lieutenant asked Maschek about the conflict. Maschek told him about his fear of being assaulted if he were placed near P.M. Present in the room was Corporal Parker. Parker pulled up P.M.'s records and said that P.M. was at ISCI. Everyone then assured Maschek that he would be separated from P.M. by going to ICC.
272. The next day, October 27, 2009, when Maschek was boarding the transport vehicle to ICC, he saw that P.M. was being moved to ICC with him. Immediately upon arriving at ICC, Maschek notified every guard he saw that a terrible mistake had been made and that he must be kept apart from P.M. One guard, Livi, assured Maschek that she would speak with a supervisor about the situation and that someone would contact him very soon.
273. Maschek also told the medical personnel during intake about the dangerous error that had been made, stating that he was now experiencing great anxiety. As did Livi, these ICC employees assured Maschek that they would report this information and that Maschek was certain of being spoken to by staff about it.
274. Maschek was then interviewed by the mental health specialist. Maschek once again reiterated his anxiety about being housed with P.M. Maschek was told that a psychiatrist would visit him that evening. No psychiatrist visited him.
275. Maschek was assigned to X-Pod, a general population housing unit. After waiting a few days and not being summoned by anyone regarding the error that had occurred, Maschek submitted a Concern Form requesting help. The request was ignored.
276. Four days later, on November 3, 2009, Maschek was brutally assaulted in his cell by four prisoners, one of whom, Maschek believes, was P.M. In other words, not only did
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ICC housing personnel fail to ensure that Maschek would be kept apart from P.M., they actually placed the two of them in the same housing unit. 277. Maschek was struck in the face, then in the back of the head knocking him to the ground. Maschek was then repeatedly kicked and stomped in the head and torso. After the assault, he was told that if he did not go to Protective Custody, he would be killed. 278. No officers intervened. Had X-Pod been adequately monitored and adequately staffed, officers would have noticed the altercation and could have intervened. 279. As a result of the assault, Maschek was lying in a pool of blood and suffered a broken nose, cracked cheek bone, bruised jaw, his lips were split open, multiple lacerations, sharp pains in his kidneys, and bruises and abrasions all over his body. Maschek urinated blood for over a month after the attack. He set his nose back into position. 280. The assailants told Maschek that they would assault him again if he reported the incident. Maschek knew that many of the guards at ICC were unwilling to protect him and indifferent to his safety, and therefore he did not immediately report the assault. Finally, during the noon meal the following day, Maschek reported the assault. 281. Maschek was taken to medical but received no treatment or painkillers. No x-rays were taken after the assault to determine whether any bones were broken or whether Maschek needed hospitalization. 282. Maschek's assault could easily have been prevented, and should have been prevented. Numerous employees were alerted to the high risk of assault Maschek faced. Due to inadequate training, inadequate supervision, and deliberate indifference, ICC employees allowed this assault to occur.
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283. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
284. Consistent with Defendants' policy and practice of issuing DORs to the victims of assault, Maschek was issued a DOR for fighting. Yet there was no credible evidence to support a DOR against him, given that he had been assaulted by numerous prisoners. At his hearing, Maschek told the Hearing Officer exactly what had occurred. Nevertheless, Maschek was found guilty of fighting, sentenced to fifteen days in segregation and to a loss of commissary and visitation privileges for sixty days.
285. No staff were disciplined as a result of or in connection with the assault on Maschek, not even the staff who placed Maschek and P.M. in the same housing unit.
20. MICHAEL MIERA 286. For approximately one year, named Plaintiff Michael Miera lived in D-E-F Unit at
ICC. That Unit is comprised of six pods: D-1, D-2, E-1, E-2, F-1 and F-2. This Unit was notorious for guards opening the wrong cell doors, thereby allowing rival gangs to assault one another. 287. Doors on these pods are opened, not by the officers on the floor, but by an officer in the Control Center (the "Bubble") hitting an electronic switch. Miera witnessed wrong doors being opened ("popped") at least once a week, and saw several gang assaults that occurred as a result of these errors. 288. Miera was so afraid of being assaulted as a result of a wrongful door popping that he expressed his fears to staff more than fifty times, including Sergeant Greene, Sergeant King, Unit Manager Watts, Correctional Counselor Danforth, Counselor Fink, and various officers who worked as floor officers.
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289. The response he received was essentially that these ICC employees were aware of their problem but couldn't do anything about it. Not once did staff offer to do anything to protect him, move him, or to correct the problem.
290. Miera was involved in three physical altercations as a result of wrongful door openings. These incidents occurred on February 20, June 28, and November 24, 2010.
291. On February 20, 2010, the guard in the Bubble mistakenly unlocked Miera's cell door. Miera left his cell to fight a rival gang member in the day room. Miera received significant injuries to his face during the fight, including a laceration above his left eyebrow that required five stitches to close, and extensive cuts and bruising. Miera filed a grievance to call attention to these wrongful door openings but he received no reply.
292. Miera was issued a DOR for fighting. He pled guilty and went to segregation for seventeen days. When he completed his sentence, instead of moving him to a safer housing unit, ICC returned him to D-2 and placed in the very same call.
293. Staff knew (because they are required to keep this information) that the vast majority of STGs on D-2 were rivals of the STG with which Miera was thought to be affiliated. (Miera had informed staff that he was no longer associated with any gangs, but prisoners continued to view him as gang-affiliated.) That meant that a wrongful door popping could place him at risk of assault.
294. On June 28, 2010, Plaintiffs Miera was released from his cell for a meal. He had barely exited his cell when cell doors were wrongfully opened near Him. In an instant, three members of a rival STG rushed out of their cells to assault him and another prisoner. A guard sprayed all of them with mace.
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295. Although Miera was the victim of the June 28 attack, he was issued a DOR, consistent with Defendants' policy and practice of issuing DORs to victims of an assault. At his DOR hearing, Miera pled not guilty but was found guilty, and sent to segregation.
296. Rather than place Miera, after his release from segregation, in a safer housing area, he was returned to D-2. He asked staff to move him but his requests were denied.
297. At approximately six o'clock in the evening of November 24, 2010, the officer in the Control Center released Miera so that he could shower. While in the shower, Miera heard several inmates yell: "Watch out!" The officer in the Control Center either deliberately or accidently opened at least two cell doors, allowing three prisoners out of their cells who should have remained locked down. The three prisoners rushed Miera and assaulted him.
298. Based on information and belief, Defendants failed to conduct an investigation followed by a written report to determine whether staff should be disciplined for any of these errors, and no staff were disciplined.
21. JAMES PARMER 299. James Parmer was convicted of a sex offense. Parmer entered ICC on November 21,
2006. During intake, Parmer told Psychiatric Technician Charles Fletcher that he was afraid of being assaulted because he had heard that ICC was a "Gladiator School" in which sex offenders often were assaulted. Fletcher told Parmer: "Just don't let anyone know that you're a sex offender." Fletcher also recommended that Parmer "watch out" for prisoners demanding "rent."
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300. Parmer was assigned to K-Pod, a general population housing unit. It was well known by ICC staff that sex offenders frequently were assaulted in K-Pod. Parmer should not have been assigned there.
301. As soon as Parmer arrived at K-Pod, he met a sex offender who told him that sex offenders in K-Pod were often assaulted and, because of that, this prisoner was afraid to leave his cell.
302. As Parmer approached his cell, his cellmate asked him if he was a sex offender. Parmer admitted he was. The cellmate replied, "Get ready, you're about to get a beating."
303. Parmer immediately went to nearby guard, told him what had just happened, and said that he feared for his life. Parmer asked to be moved. The guard replied: "All I’m going to do is get you to dinner." The guard said that doing anything else for Parmer would "create problems" for the guard.
304. Parmer was too scared to eat dinner. On the way back to K-Pod from the dining hall, Parmer approached two guards standing together and told them he would be beaten if he returned to K-Pod. Parmer begged them for protection. One guard advised Parmer to "face up to it." Parmer looked at the second guard and asked, "Should I just go and be beaten?" The guard shrugged his shoulders.
305. Parmer realized he would be assaulted when he returned to K-Pod, so he removed his glasses and placed them in his sock. As soon as Parmer reached his cell, a prisoner told him he needed to leave K-pod. Parmer told him that he had tried to get moved but guards would not allow it. The prisoner then punched Parmer in the mouth, knocking him back onto his bunk bed and rendering him barely conscious.
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306. Another prisoner entered the cell and both men beat and kicked Parmer in the face and torso for several minutes. Parmer was punched and kicked more than twenty times. They left Parmer lying on the floor bleeding profusely and severely injured.
307. No officer came to intervene, despite being aware of the danger they knew Parmer faced and despite Parmer's earlier requests for help. It is possible that these guards watched the assault and chose not to intervene.
308. Parmer believes he had a broken nose, broken bones around his left eye and cheek, fractured ribs, and damaged vertebrae. Parmer could barely open his mouth. His face was bleeding. He pushed the emergency button.
309. Two officers arrived, placed him in handcuffs, and took him to the infirmary. Several guards entered the infirmary to gawk and laugh at Parmer, one of whom was the guard who had told Parmer to "face up" to the beating. When this guard saw Parmer's bleeding face, he smiled and sarcastically offered to fix Parmer's broken nose.
310. Parmer asked to see a doctor and requested that x-rays be taken. No x-rays were taken immediately after the assault to determine whether any bones were broken or whether Parmer needed hospitalization. Photographs were taken of his face.
311. A sergeant asked Parmer to provide the names of the prisoners who had assaulted him. Parmer didn't know their names. He had only arrived in K-Pod minutes earlier. Parmer would gladly have disclosed the names of his assailants had he known them.
312. Parmer was stripped of all his clothing except his shorts and sent to segregation. Parmer finally got to see a doctor after nearly a week in segregation. However, the doctor only reached his hands through the "bean slot" in the door and felt some of the broken bones in Parmer's face.
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313. After fourteen days in segregation, Parmer was moved to ISCI. 314. The long term effects of the assault are permanent facial nerve damage, lapses of
memory, cognitive deficits, chronic headaches, nose bleeds, and psychological and emotional trauma. Parmer's face still hurts when he shaves. Additionally, previous work Parmer had to fix a deviated septum was destroyed. 315. Parmer's assault was the product of deliberate indifference by staff. 316. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault. No staff were disciplined as a result of or in connection with the assault on Parmer, not even the officer who assigned him there or the officers who turned down his requests for protection. 22-25: PRISONERS "A," "B," "C," AND "D" 317. On August 10, 2010, an officer in the A-Pod Control Center opened more than twenty doors that should have remained closed, thereby allowing more than twenty prisoners to attack four rival gang members, indentified here as Prisoners A, B, C, and D. (Plaintiffs have filed documents under seal identifying these four prisoners by name. Prisoner A is a named Plaintiff.) Two of these men were beaten so badly that they required hospitalization. All four men were issued DORs. These DORs are fabrications. 318. The video tape of this incident clearly shows that these men were victims of a brutal attack. Nevertheless, Warden Wengler and his staff pursued DORs against these men and affirmed their convictions on appeal.
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319. The A-Pod assault on August 10, 2010, exemplifies two practices challenged in this lawsuit: the practice of guards opening the wrong cell doors, thereby placing prisoners at risk of assault, and the practice of issuing DORs to the victims of assault.
26. "PRISONER F" 320. Named Plaintiff "Prisoner F" was a victim of a "wrongful cell door" assault, similar to
Prisoners A, B, C, and D above, and Michael Miera. On June 28, 2010, Prisoner F was allowed out of his cell in D-2. Moments later, the officer in the Control Center permitted three prisoners to leave their cells who the officer knew were rivals of Prisoner F, and Prisoner F was assaulted by two of them. 27. MARLIN RIGGS 321. In May 2008, Marlin Riggs was living in L-Pod at ICC. L-Pod was a general population housing unit. 322. As noted earlier, beginning in 2007, ICC assigned an increasing number of prisoners affiliated with STGs to Pods J, K, and L. 323. Defendants knew by 2007 that STG members often steal property from non-members and charge them "rent," and that they enforce their demands with violence. 324. By May 10, 2008, Riggs had been living on L-Pod for some fifteen months. Riggs had seen numerous assaults on L-Pod. For instance, Riggs witnessed the brutal assaults on Larry Hoak and, later, on Arthur Hoak in L-Pod. Riggs feared that he eventually would be targeted. 325. On the evening of May 10, 2008, Riggs was approached in his cell by prisoners whose names he did not know. They told Riggs that unless he started paying "rent" to
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live in L-Pod, he would be beaten. They then stole Riggs' stereo headphones, two boxes of hobby-craft items, and all of his consumable commissary items. 326. The following evening, at least four prisoners returned to Riggs' cell and told him that he must either leave the Pod or be prepared to fight all of them. 327. Riggs took this threat very seriously. He knew he would be assaulted unless he left the housing unit. Riggs told the prisoners he would leave the Pod, and he pressed the emergency button located in front of Pod Control. 328. The emergency call was received by Correctional Officer (C.O.) Johnson in the Control Center. Riggs advised Johnson that he needed to leave the Pod. Officer Johnson opened the necessary doors for Riggs to exit the Pod. 329. Once outside the Pod, Riggs was met by C.O. Dean. Dean took Riggs to the multipurpose room. Riggs nervously told Dean what had transpired and begged Dean to transfer him to another housing unit. Dean asked Riggs to name the prisoners who had threatened him. 330. Riggs informed Dean that he did not know the prisoners' names. Riggs said that Dean could examine the video tape from the security camera to identify the prisoners, or Dean could show Riggs the photographs of L-Pod prisoners that are kept in the Control Center and Riggs would identify them. 331. Dean, however, refused to do either of those things. Instead, he ordered Riggs to return to his cell so that, Dean explained, he could watch what happened and identify the prisoners threatening or assaulting Riggs.
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332. Riggs refused to return to his cell, as he was sure he would be assaulted. For one thing, he would now be viewed as a "snitch" for pressing the emergency button and speaking with Staff. Riggs asked to speak with the Unit Sergeant.
333. A short time later, Sgt. Rose arrived and interviewed Riggs. Rose had been the Gang Coordinator at ICC, knew the threat that STGs posed, and knew that many prisoners had been assaulted in J, K, and L Pods by STG members. Rose also knew that gangs often strong-arm prisoners for "rent."
334. Riggs told Rose what had happened, including the fact that his property had been stolen, that he had been ordered to pay rent, and that he had just been threatened with assault. Riggs was extremely nervous and he asked Rose to remove him from L-Pod. Rose asked Riggs to identify the prisoners who had threatened him. Riggs told Rose that he did not know their names but that Rose could examine the security video tape or show him photographs and Riggs would identify them.
335. Rose could easily have helped Riggs, and should have helped Riggs. At the very least, Rose should have placed Riggs in a safe environment and conducted an investigation to determine whether Riggs might be at risk if he returned to his cell.
336. Instead, Rose became belligerent. He seized on Riggs' inability to identify the prisoners and used it as an excuse to avoid his own constitutional duties. He called Riggs a "son-of-a-bitch," accused Riggs of wasting his time, and told Riggs to "get out of my f****** sight." Rose told Riggs that unless he returned to his cell, he would receive a DOR for failing to obey a direct order.
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337. Riggs knew that a DOR would hurt his chances for parole and would become a permanent mark against him. He felt forced to return to his cell, even though he knew it meant he would be assaulted.
338. As he left the room, Riggs saw C.O. Danforth. Riggs told Danforth the danger he was in and begged Danforth to summon the Captain. Danforth refused.
339. Defendants Dean, Rose, and Danforth had to have known that Riggs faced a high risk--if not a 100 percent likelihood--of assault in returning to his cell.
340. Within moments of entering his cell, Riggs was attacked and savagely beaten by prisoners. After being knocked to the floor, Riggs was repeatedly kicked in the face and torso. His nose was broken and the left side of his face was smashed in. Blood was all over the cell, including on the ceiling.
341. Officer Dean, who had told Riggs to return to his cell so that Dean could identify the assailants, watched the assault unfold and entered L-Pod (although not very hurriedly). According to the incident report that Dean subsequently wrote, as Dean approached Riggs' cell, he saw a prisoner flee while another prisoner continued to kick Riggs. By the time Dean reached Riggs' cell, Riggs "was laying face down on the blood covered floor" while this prisoner continued to kick him.
342. Eventually, Dean was able to get this prisoner to stop kicking Riggs. Riggs was placed in handcuffs and taken to the prison infirmary.
343. The doctor who examined Riggs, Steven Garrett, confirmed that his nose was broken. Garrett attempted to reset it by wrenching it back towards the center of Riggs' face, but Garrett refused to order x-rays, although Riggs requested them, and no x-rays were taken.
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344. The failure to take x-rays of Riggs' extensive facial injuries was consistent with ICC's efforts to conceal the severity of injuries suffered by the victims of assault and to save money in violation of sound medical and penological practice.
345. After seeing the doctor, Riggs was taken to administrative segregation, where he remained for fifteen days.
346. During those fifteen days, Riggs was constantly bleeding from the nose and occasionally from his ear, bones in his face were loose, there was a noticeable dent in his face, and he had difficulty breathing. When he slept, Riggs would lie in a pool of blood. Riggs was in enormous and constant pain.
347. Staff issued Riggs a DOR, even though Riggs was the victim--and not the aggressor-of an assault. The issuance of a DOR to Riggs served no legitimate penological function. It was motivated by a desire to conceal the truth. The DOR issued to Riggs was eventually dismissed by ICC but it should not have been issued.
348. No staff were disciplined as a result of or in connection with the assault on Riggs, not even Rose, Dean, or Danforth.
349. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault.
28. LARRY SITTNER 350. Larry Sittner entered ICC in August 2000 after being convicted of a sex offense. 351. On or about March 1, 2004, Sittner was housed in B-Pod and was assaulted in his
cell. He pressed the emergency button during the assault but no one came to his aid. Several days later, someone else reported the assault, and Sittner was interviewed by Sgt.
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Rose. Sittner told Rose what had happened. As far as Sittner knows, no further investigation was conducted, and staff concealed the incident. 352. Sittner was assigned to J-Pod in March 2006. As noted above, in 2007 ICC began assigning an increasing number of STG members to J, K, and L Pods. Moving gang members to live with sex offenders in J-Pod exhibited deliberate indifference. Serious violence against these sex offenders was reasonably foreseeable. 353. On or about May 22, 2007, ICC assigned a known STG member to share a cell with Sittner. This decision was reckless and deliberately indifferent to Sittner's welfare. 354. Within ten minutes, the new cellmate viciously assaulted Sittner. Sittner was punched on the side of his head so hard that his left ear became partially detached from the side of his head, and his jaw was injured. He was in enormous pain. Even today, Sittner has ringing in his ears, chronic neck pain, and his jawbone pops. 355. Sittner went to the infirmary. He received a very cursory examination. No x-rays were taken after the assault to determine whether any bones were broken or whether Sittner needed hospitalization. 356. No disciplinary action was taken against the officer who had assigned a known STG member to share a cell with Sittner. 357. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault. 358. Immediately following the assault, Sittner was moved to L-Pod, which is in the same housing unit as J-Pod. This is precisely what staff did to Todd Butters: they moved him to L-Pod after having been assaulted in J-Pod. This was senseless and reckless.
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359. Sittner was in L-Pod from May 23, 2007 to February 28, 2008. While in L-Pod, Sittner observed beatings almost daily and did not feel safe, and he was frequently threatened with assault. He submitted at least eight Concern Forms asking to be moved. Among the staff he told about the threats he was receiving were Green, Swanson, Rodriguez, Acosta, and Titsworth. Most of his Concern Forms were unanswered. The only answer he ever received said "We cannot move you."
360. On February 28, 2008, an STG member approached Sittner in L-Pod and told him he had to leave L-Pod. Sittner immediately reported this to staff and, fortunately, this time he was removed.
29. BRIAN SPAUDE 361. From 2005 to 2008, Brian Spaude acted as an intern for the Therapeutic Community
(TC) at ICC. Interns in the TC program obtain information during the course of their work that might be incriminating to other prisoners. As a result, it is unfortunately the case that some ICC prisoners view TC interns as informants. Spaude knows of several former TC interns who were assaulted because other prisoners viewed them as informants. 362. Indeed, ICC officials are aware of the substantial danger of assault that TC interns face, and have arranged for TC interns to be housed separately in the West Wing and to eat meals at separate times from general population prisoners. 363. In a disastrous breach of policy and procedure, on November 17, 2009, a guard permitted general population prisoners to enter the dining facility while Spaude was eating his meal. As soon as one of these prisoners noticed Spaude in the room, this
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prisoner put down his tray and, as guards watched, circled behind Spaude and violently struck him on the side of the face, shattering his jaw and knocking him unconscious. 364. The guards who allowed general population prisoners to enter the dining facility while Spaude was present exhibited deliberate indifference to Spaude’s health and welfare. However, these guards were not disciplined. 365. Based on information and belief, ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this assault. 366. Officer French, who watched the video replay of the assault, told Spaude that he wondered why general population prisoners had been allowed into the dining room while residents of West Wing were there. 367. Brian Spaude has eight screws in his jaw. His teeth had to be wired together to promote healing. During his recovery, Spaude was fed a liquid diet through a straw and lost twenty-two pounds. He continues to suffer physical and mental trauma. 368. There have been numerous assaults in the ICC dining hall. ICC supervisors fail to assign enough staff to monitor the dining hall and, as a result, many errors are made, such as the one that resulted in the assault on Brian Spaude. 30. RICHARD WILLIAMS 369. Richard Williams entered ICC in 2006 and was assigned to L-Pod. 370. As with Butters, Fenwick, Sittner, and others, it was not until 2007 that Williams first began experiencing significant problems on L-Pod concerning his personal safety. 371. In early September 2007, Williams was assigned by unit officers to be the Chemical Porter for J, K, and L Pods, which required him to monitor and control the use of cleaning supplies for all janitors assigned to those Pods.
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372. Within the first three days of his employment, Williams was asked by several prisoners to hold contraband drugs, tobacco, and commissary items in the Chemical Room and to deliver them to other prisoners. Williams refused because he did not want to violate prison regulations.
373. On November 11, 2007, two prisoners approached Williams in his cell and told him that if he refused to help them distribute these contraband items, he needed to transfer out of the North Wing of ICC or he would be assaulted. The North Wing includes Pods A, B, C, G, H, I, J, K, and L.
374. Williams immediately went to the Pod Control Officer and informed her of what had transpired and asked for help. However, the officer told Williams that she needed to arrange for prisoners to leave the Pod for dinner, and she asked Williams to return later. After dinner, Williams again asked the officer for assistance. The officer stated she was the only officer on Pod Control and would try and help him a little later when it was not so busy. (The Pod Officer has agreed to testify in this regard.)
375. Had L-Pod been adequately staffed, the Pod Control officer could have assisted Williams immediately.
376. Williams then headed to the Chemical Room. He stopped at a table in the Multipurpose Room directly in front of the Chemical Room and began doing some paperwork. Sitting nearby was a prisoner with a walking cane.
377. Suddenly, another prisoner entered the room, grabbed the walking cane, and began beating Williams with the cane and with his fists.
378. The assault lasted over five minutes before ICC staff arrived to stop the assault. Had L-Pod been adequately staffed, guards could have intervened sooner.
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379. As a result of the assault, Williams suffered multiple lacerations, contusions, and abrasions on his forehead, arms, back, ribs and upper torso. Williams was taken to the infirmary. No x-rays were taken.
380. Williams remained in pain for at least two months after the assault. 381. ICC failed to conduct an investigation followed by a written report to determine
whether staff error or inadequate staffing contributed to this assault. 382. On January 28, 2008, approximately four months after the assault, Williams received
a subpoena to testify against one of his assailants, who was being charged with a felony in state court. A few hours later, while Williams was in the ICC Dining Hall, a prisoner approached him and warned that if Williams testified at the criminal trial, he would be assaulted again. 383. Williams immediately notified staff in writing of this threat. Williams received no reply for approximately two weeks. Finally, Alcohol Treatment Manager Susan Barker called Williams out of his housing unit to speak with him about the threat. Barker also spoke with Williams on two later occasions concerning his safety. The only thing she advised was for Williams to remain inside the housing unit. 384. However, Williams needed to eat in the dining room. Due to staff indifference, prisoners who might attack Williams were allowed into the dining room while Williams was eating. On June 23, 2008, Williams was assaulted during breakfast. He suffered a black eye, lacerations on his head, and multiple bruising. 385. ICC failed to conduct an investigation followed by a written report to determine whether staff error contributed to this second assault.
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Additional Assaults at ICC 386. The numerous assaults listed here are merely representational of scores--indeed,
hundreds--of assaults that have occurred at ICC during the past five years. 387. These additional assaults include at least thirteen that occurred between July 2009 and
November 2010 when guards either mistakenly or deliberately opened the wrong cell doors, allowing members of rival gangs to assault one another. 388. Only after Plaintiffs made a specific issue regarding these "wrongful cell door" assaults in this litigation did Defendants implement corrective actions that abated them. Had these corrective actions been undertaken after the first incident, as they could have and should have been, they would have prevented the next twelve assaults that were caused by the same staff misconduct. 389. On March 10, 2010, at least three gang-coordinated assaults occurred at ICC in different parts of the prison within minutes of one another. One of the victims was taken by ambulance to the hospital. 390. Unnecessary and entirely preventable assaults will continue to occur at ICC, as they have been occurring for years now, unless ICC administrators, including Defendant Wengler, act on their constitutional duty to take all reasonable steps to protect prisoners from assault by other prisoners.
CLAIM FOR RELIEF 391. Based on the facts set forth above, the named plaintiffs, on their own behalf and on
behalf of all ICC prisoners, current and future, assert that CCA and Warden Wengler, and their subordinates, have been and are pursuing the policies, practices, and customs described above, the result of which is to deprive the names plaintiffs and the plaintiff
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class of rights guaranteed them by the Eighth and Fourteenth Amendment to the U.S. Constitution. 392. As a result of these policies, practices, and customs, the named plaintiffs and the plaintiff class are being denied reasonable protection from assault. These policies, practices, and customs include the failure to hire an adequate number of staff; the failure to adequately train staff; the failure to adequately investigate each prisoner assault to determine whether it could have been prevented by staff and whether staff misconduct or malfeasance caused or contributed to the assault; the failure to issue adequate written findings, conclusions, and recommendations after each assault; the failure to eliminate the code of silence that pervades ICC; the failure to ensure that noncompliant or untrained staff receive the discipline they deserve or additional training they need to prevent unnecessary violence at ICC; the failure to adequately punish the violent offenders who assault prisoners; the policy, practice, and custom of issuing DORs to the victims of assault; the policy, practice, and custom of refusing to refer for prosecution that prisoners who commit these assaults; the policy, practice, and custom of opening the wrong cell doors, therefore causing prisoner violence; and the failure to provide a sufficient number of empty beds so as to permit prisoners to be moved in an emergency from an unsafe environment. 393. Relief is sought pursuant to 42 U.S.C § 1983.
PRAYER FOR RELIEF WHEREFORE plaintiffs respectfully pray that this Honorable Court will: 1. Accept jurisdiction over this cause.
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2. Grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 in favor of the plaintiffs and the class they represent, declaring that the defendants have violated and ignored their duties under the Eighth and Fourteenth Amendments to the U.S. Constitution with respect to the protection of the named plaintiffs and the plaintiff class from unnecessary and preventable assault by other prisoners.
3. Issue injunctive relief to the named plaintiffs individually and to the entire class of prisoners they represent, pursuant to Rule 65 of the Federal Rules of Civil Procedure, ordering Defendants Wengler and CCA to take all reasonable steps to ensure that prisoners at ICC will be protected against unnecessary and preventable assault by other prisoners. Defendants should be ordered, among other things, (a) to hire an adequate number of staff; (b) to adequately train staff; (c) to adequately investigate each prisoner assault to determine whether it could have been prevented by staff and whether staff misconduct or malfeasance caused or contributed to the assault; (d) to issue adequate written findings, conclusions, and recommendations following each assault as to whether the assault could have been prevented; (e) to ensure that noncompliant or untrained staff will receive the discipline they deserve or additional training they need to prevent unnecessary violence at ICC; (f) to ensure that incident reports, documents, and logs are properly made and retained regarding incidents of prisoner assault; (g) to take all reasonable steps to eliminate the code of silence that pervades ICC; (h) to stop issuing DORs to the victims of an assault, and expunge all references in prison files to DORs (regardless of their outcome) issued against prisoners, including the named plaintiffs, who were the victims of assault; (i) to report all assaults resulting in significant injury to local law enforcement officials, including those assaults that appear to be hate crimes; (j) to ensure that all proposed housing moves of prisoners will be
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4. Grant such additional and further relief, including the award of attorney's fees and costs, as the Court may deem proper under the circumstances.
DATED this 21st day of February, 2011. /s/ Stephen L. Pevar______________________ Stephen L. Pevar Lea C. Cooper James D. Huegli Attorneys for the Plaintiffs
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 Case 1:11-cv-00185-EJL Document 26 Filed 09/20/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JOSHUA KELLY, JOSE PIÑA, ANDREW IBARRA, RAY BARRIOS, RANDY ENZMINGER, MICHAEL MIERA, PRISONER A, and PRISONER F, individually and on behalf of a class of all other persons similarly situated,

Case No. 1:11-cv-00185-EJL ORDER FOR DISMISSAL

Plaintiffs,

vs.

TIMOTHY WENGLER and CORRECTIONS CORPORATION OF AMERICA, INC.

Defendants.

This matter having come before the Court on stipulatoi n between these parties filed in this matter; and the Court having found good cause;
IT IS HEREBY ORDERED that the above-entitled action is dism issed with prejudice pursuant to the Stipulation ofDismissal, which is hereby incorporated by the Court. The parties have resolved the issue of attorney’s fees and costs.
DATED: September 20, 2011

Honorable Edward J. Lodge U. S. District Judge

ORDER FOR DISMISSAL - 1.

 
 Case 1:11-cv-00185-EJL Document 76 Filed 09/16/13 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JOSHUA KELLY, JOSE PIÑA, ANDREW IBARRA, RAY BARRIOS, RANDY ENZIMINGER, MICHAEL MIERA, PRISONER A, and PRISONER F, Individually and on behalf of a class of all other persons similarly situated,
Plaintiffs,
v.
TIMOTHY WENGLER, and CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendants.

Case No. 1:11-CV-185-S-EJL
MEMORANDUM DECISION AND ORDER

INTRODUCTION Before the Court is the issue of whether Defendants Timothy Wengler and Corrections Corporation of America (“Wengler,” “CCA,” and collectively “Defendants”) should be found in civil contempt for violating the Settlement Agreement (Dkt. 25, Ex. A, hereafter “Settlement Agreement”) by which the Parties agreed to settle this case. The Settlement Agreement at Paragraph 15 separately allows for the Court to rule on whether a party has committed a breach. After considering all filings and the testimony from hearings on August 7 and 8, 2013, the Court hereby finds Defendants were in civil contempt of the Settlement
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Agreement (and thus that they also breached the agreement). They did not take all reasonable steps to comply with the Settlement Agreement,1 they regularly fell short of their obligation to staff positions that are mandatory under their contract with the Idaho Department of Correction (IDOC). Even in the weeks prior to the hearings, CCA was still not filling all mandatory posts.
This is not a case where staffing-related concerns appeared out of nowhere—in the year prior to the Settlement Agreement, these issues were raised in correspondence between IDOC and Defendants. Defendants had compelling reasons to regularly and thoroughly check that they were complying with the staffing requirements in the IDOC contract and Settlement Agreement. They had promised the state to improve recordkeeping to make it easier to track staffing assignments. And yet it is clear that there was a persistent failure to fill required mandatory positions, along with a pattern of CCA staff falsifying rosters to make it appear that all posts were filled. Defendants did not keep clear records, did not specifically inquire about compliance with staffing levels, and thus they did not take all reasonable steps to comply with the Settlement Agreement.
As such, Defendants have deprived Plaintiffs of a key provision of the Settlement Agreement, one that Defendants promised to meet, and that was bargained for as a condition of resolving this case.
The Court will first briefly discuss the background to this Order, then outline further evidence it finds clearly and convincingly shows Defendants’ failure to comply
1 The Court has previously ruled (Dkt. 56) that the Settlement Agreement was incorporated into the order dismissing the case and thus became an order of the court, enforceable through contempt and breach proceedings.
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with the Settlement Agreement. It will then address competing arguments about the appropriate relief. The Court declines at this time to impose some of the remedies Plaintiffs suggest, but reserves the ability to modify this order.
BACKGROUND On April 11, 2013, CCA issued a press release, Plaintiff’s Exhibit (“Pls’ Ex.”) 106, announcing that it had “concluded an extensive internal investigation” and found that there “were some inaccuracies” in staffing records over a seven-month period. The company said it regretted “decisions made by certain ICC staff members” and said it would take remedial steps, including compensating Idaho for unverified hours.2 IDOC’s press release, Pls’ Ex. 105, provided additional details. It noted that there were nearly 4,800 hours over seven months where records indicated a correctional officer was staffing a security post but the post was actually vacant. IDOC announced that CCA acknowledged falsification of staffing records, and IDOC also said that Idaho State Police would examine the findings and evidence to review whether a criminal investigation was justified.3 CCA began investigating falsified shift records in December 2012, after an investigator on an unrelated case, a harassment allegation, received information about mandatory posts going unfilled. See Pls’ Ex. 130. On January 23, 2013, the investigator
2 CCA does not directly bill IDOC per hour of officer work. Rather, the company is paid by a formula that calculates “inmate days”—the number of inmates and the number of days the inmates are housed. In correspondence, CCA has told IDOC that it would reduce one invoice by $117,024 as an indication of their desire to resolve the issue. Pls’ Ex. 119. If the reduction is meant to fully compensate IDOC for about 4,800 in missing hours, that compensation rate works out to about $24.50 per missing hour. 3 As far as the Court is aware, that state police review has not concluded. IDOC and CCA have also not reached a resolution about CCA compensating the state for the falsified hours.
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reported preliminary findings to Scott Craddock, CCA’s assistant general counsel. Craddock determined the allegation of falsified hours was credible. CCA informed IDOC of the investigation and allegation of falsified records of mandatory posts. It also told ICC Warden Tim Wengler about the case, and placed Assistant Chief of Security Daniel Melody and Chief of Security Brian Jepsen on leave. On February 5, 2013, CCA retained a law firm to take over the staff investigation. By mid-March, the lawyers confirmed falsified night shift records. On April 9, Craddock and various CCA officials briefed state police, the attorney general, and IDOC on their findings.
In June 2013, Plaintiffs filed motions seeking discovery, and asking for proceedings to consider a finding of contempt against Defendants. This case, Kelly et al. v. CCA et al., 1:11-cv-0185-EJL, had alleged constitutional violations at ICC because of high levels of inmate-on-inmate violence, inadequate staffing and training, inadequate investigation of assaults, and various other defects. In short, Plaintiffs had accused Defendants of turning a blind eye to a level of violence at ICC that was several times higher than other prisons in the state.
During a settlement conference in September 2011 that lasted 46 hours over three days, the Parties reached an agreement to settle the case in its entirety. They filed with the district court their Settlement Agreement, which was incorporated to the order dismissing the case (Dkt. 26). The Settlement Agreement provided at Paragraph 15 that Judge Carter, who sits in Idaho by special designation, would have authority to resolve disputes about compliance with the Settlement Agreement in his capacity as a federal district court judge. In addition to agreements about issues that included training, investigations, and
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disciplining inmates, CCA agreed “to comply with the staffing pattern pursuant to CCA’s contract with the Idaho Department of Correction.” Settlement Agreement ¶ 4. CCA also agreed to add three correctional officers to their staffing pattern to be used at the discretion of Defendant Wengler, the warden at ICC at the time.4 The Settlement Agreement and all its agreements are set to expire on the two-year anniversary of its execution, meaning in September 2013.
Further facts shall be discussed below as part of the Court’s findings and analysis. LEGAL STANDARD
Criminal contempt is shown where there is a clear and definite court order, the contemnor knows of the order, and he or she willfully disobeys it. United States v. Rose, 806 F.2d 931, 933 (9th Cir. 1986). A criminal contempt sanction both vindicates the Court’s authority and punishes the contemnor. United States v. Doe, 125 F.3d 1249, 1256 (9th Cir. 1997).
A civil contempt proceeding differs in that failure to comply with a court’s order does not need to be willful. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949); Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir. 1985). The purpose of civil contempt is to coerce compliance with a court order or to compensate another party for the harm caused by the contemnor. Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 443 (1986). Whether contempt is civil or criminal thus turns on the “character and purpose” of the sanction. Int'l Union, United Mine Workers of America v.
4 Wengler retired in May, at the age of 46.
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Bagwell, 512 U.S. 821, 827 (1994) (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911)).
“A court has wide latitude in determining whether there has been contemptuous defiance of its order.” Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir. 1984). To find a party in civil contempt, which is the only form of contempt at issue here, the contempt must be shown by clear and convincing evidence. Battaglia v. United States, 653 F.2d 419, 422 (9th Cir. 1981). “Failure to comply consists of not taking ‘all the reasonable steps within [one’s] power to insure compliance with the order.’” Balla v. Idaho State Board of Corrections, 869 F.2d 461, 466 (9th Cir. 1989) (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir. 1976)).
Courts also have “broad equitable power to order appropriate relief in civil contempt proceedings,” SEC v. Hickey, 322 F.3d 1123, 1128 (9th Cir. 2003) (citing McComb, 336 U.S. at 193). When considering a sanction to make a defendant comply with a court order, the court should consider “the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.” United States v. United Mine Workers, 330 U.S. 258, 304 (1947).
DISCUSSION There are three chief reasons that the Court finds Defendants in civil contempt of the Settlement Agreement. First, they had ample reason over the past two years to proactively check that they were in compliance with staffing requirements for mandatory
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positions. Many of the problems found in the CCA and IDOC investigations were previously raised in the months prior to the Settlement Agreement.
Second, it is clear that the non-compliance was far worse than the report of about 4,800 hours would lead one to believe. That figure came from attorneys CCA hired to investigate, and who primarily examined staff rosters and timecard records for the night shift from April 2012 through October 2012. Testimony showed that there were significant day shift vacancies, which would not be included in the 4,800 figure. There is also no reason to believe the problem only began in April 2012 and was solved after October 2012. Indeed, even in the weeks prior to the contempt hearings, mandatory posts5 were still going unfilled—thus there remains persistent staffing pressure that is the backdrop to prison employees fabricating records. The difference today is that CCA may finally be presenting an accurate picture of its inability to fully staff its prison.
The third reason for the Court’s finding of contempt is that Defendants’ arguments in opposition are not convincing. Having clearly violated the staffing requirements, they contend that their remedial steps should suffice to resolve the problem, and that these steps show they took all reasonable steps to comply with the Settlement Agreement. After considering and rejecting this argument, as well as several others that Defendants make, the Court will turn to remedial measures, including an extension of the Settlement Agreement.
5 Typically there were 55 posts on the day shift classified as mandatory, and 37 on the night shift.
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1. Defendants knew, or should have known, of challenges in filling staff posts
On November 3, 2010, Shane Jepsen, the chief of security at ICC,6 sent a
memorandum to Warden Wengler regarding staffing, and copied two assistant wardens
(Kessler and Perez). Jepsen noted several issues:
-Using supervisors and staff with case management duties7 to fill correctional officer positions when such a practice should not happen, in part because those staff members already have other duties -Staff listed as working two to three posts during a shift without explanation as to how this could be possible8 -“Standing down” officer posts late in the evening, and other shortages of staff See Pls’ Ex. 109. Jepsen recommended hiring to fill vacancies and amending the contract
to allow for CCA to drop to lighter staffing in certain hours when needed. He wrote that
he did not have the answer to avoiding putting supervisors and case managers in
correctional officer positions, “as this has always been a common practice.” Id. He noted
that if all vacancies were filled, it would likely help.
IDOC also raised staffing concerns at the end of 2010. In a memo dated December
20, 2010, Natalie Warner, an IDOC official, detailed concerns that included:
- Shift supervisors “posted to provide ancillary tasks”
6 Jepsen was fired in April. CCA determined that complying with the staffing pattern was his responsibility, and that “evidence exists which suggest that you may have had some knowledge of vacancies or inaccuracies in staffing records but failed to investigate and take corrective action.” Pls’ Ex. 108. The assistant chief of security, Daniel Melody, also was fired. 7 For example, a case manager would more typically have a social work background and education, rather than a corrections officer’s training and background. 8 A shift supervisor typically typed up rosters at the end of the day to reflect shift assignments, and changes the supervisor had made when deciding where to assign staff to cover required positions. The supervisor would usually be a captain, or sometimes a lieutenant. The supervisor would sign the final roster, which would then usually go to the assistant chief of security, Daniel Melody, or to Jepsen. Warden Wengler testified that he regularly examined rosters.
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- Employees assigned to multiple posts on the same day - Case managers were assigned correctional officer posts, which is “an unacceptable practice” Pls’ Ex. 113. With respect to assigning employees to multiple posts on a shift, CCA’s response was, according to the memo, a promise to modify shift rosters to have the level of detail needed to determine “varying coverage of multiple posts during a 12 hour shift.” Defendant Wengler replied to Warner’s memo in January 2011. Pls’ Ex. 114. Wengler wrote that “CCA is committed to ensuring that all mandatory posts are filled at all times,” and he reiterated the commitment to shift rosters with the detail needed for IDOC to monitor the practice of having multiple employees cover the same post. Pls’ Ex. 114. Warner wrote a CCA Vice President in June 2011 to inform CCA that it would not be pursuing damages under the contract, or further remedial action. Pls’ Ex. 115. The letter warned, however, that there were five recent cases where a required housing unit post was not filled during the first shift, either in part or for the entire shift. Id. At the contempt hearing, Plaintiffs’ counsel asked Warden Wengler whether it was a fair statement to say that he must have known, by the time of the Settlement Agreement in September 2011, that he needed “to stay on top of things and make a special effort to ensure compliance with the requirement of full staffing.” “As this says [referring to the June 2011 letter], yes,” Wengler said. “We knew there was a challenge and we were meeting their expectations to fix it.” Timothy Higgins, IDOC’s deputy warden for the contract prison oversight unit,
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testified at the contempt hearing that CCA’s shift rosters would, up until recently, merely reflect if coverage was split among more than one employee (for example “Floor Post #1: Smith/Johnson,”) but they would not specify what hours were worked. This made it difficult to spot actual double posting (i.e., where an employee could not possibly be in two posts at the same time), because it was possible that officers were merely being rotated from post to post. This level of detail is now available in CCA’s rosters, but only after the falsified records came to light. Such a step is clearly part of a reasonable attempt to comply with the Settlement Agreement, and the correspondence from before the Settlement Agreement shows that Defendants knew they had to make this type of improvement.
In his hearing testimony, Warden Wengler said that using supervisors and case managers as floor officers in the past two years would only be done if absolutely necessary, and stated that this had to be done two to three times per week. What IDOC flagged before the Settlement Agreement as an “unacceptable practice,” was a regular occurrence, one that continued during the Settlement Agreement. Jepsen testified that if the prison had, for example, 15 officer job vacancies from the number of jobs CCA had budgeted for, there could be a non-correctional officer covering a correctional officer’s shift four times a week.
Thus, Defendants had ample reason to examine whether they were meeting staffing requirements under the Kelly Settlement Agreement. They had already been put on notice of several signs of staffing shortages. They had already been informed that their records raised concerns both about listing an employee on more than one post and about
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not having enough detail about multiple postings, such as specific hours worked. They promised then, as they promised in the Settlement Agreement, and as they promise going forward, that they would fill the mandatory positions under their contract. 2. There are far more unfilled hours for mandatory posts than the 4,800 figure
It is clear that there were a significant number of vacant mandatory posts beyond the seven-month period that CCA examined in detail during its investigation. From its press release on the findings, CCA stated that its internal investigation was “extensive,” and that the unverified hours are but a fraction of total staffing requirements. Pls’ Ex. 106. Nowhere did CCA mention that they were publicizing only the tally from a detailed examination of night shift records, and not numbers from any review of the day shift.
At the time, CCA knew there were also day shift posts that were not filled. The attorneys it retained had looked at day shift records for May 2012. They examined them in less detail than their review of the night shift and excluded a subset of mandatory posts less connected to security positions.9 They found 152.8 undocumented hours. Pls’ Ex. 118 at 8. A check of June 2012 day shift records, again in less detail than the night shift review, found about 300 undocumented hours, according to testimony from Scott Craddock, assistant general counsel for CCA.10
9 There are mandatory 8-hour posts, such as unit managers and addiction treatment counselors, and mandatory 12-hour posts, such as the typical floor corrections officer. CCA’s review looked at the 12-hour posts and not the 8-hour posts. As the attorneys noted, the day shift calculations are far more complicated than the night shift because there are more mandatory positions, and those positions include posts that are less directly related to security. 10 Craddock testified that the examination of night shift records also assumed that if someone was listed at both a non-mandatory post and a mandatory post, the mandatory post would be the one actually staffed. This wouldn’t necessarily be true. As Kevin Myers, a managing director for
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Testimony from two former ICC employees, Jaune Sonnier and Annette Mullen,
also supports a finding that there were unmanned mandatory posts, and that these
shortages were obvious to spot if Defendants had taken reasonable steps to investigate.
Mullen worked as a corrections officer from September 2008 to May 2010, and
then as a corrections counselor (a supervisor) from May 2010 until she left ICC in January 2013.11 She worked in the West Wing, A Pod Segregation, the DEF unit, and the PIE unit. Mullen testified credibly that she saw regular, glaring absences in 2012,12 and
complained frequently to her superiors to try to fix the problem. She testified that she
went up the chain, including to assistant warden Thomas Kessler. She was usually told
either to make do with the officers she had or, in the case of Kessler and another official, the chief of unit management, was told to complain to her direct supervisor.13 Staffing
shortages were, as Mullen testified, common knowledge at the prison.
In the PIE unit, one mandatory post was unfilled “more often than not,” Mullen
testified, and about once a week two officers were missing. Mullen also testified that she
had seen her name on rosters as double-posted. Sonnier, a former addictions treatment
counselor who worked in the PIE unit, testified that she regularly had to wait, sometimes
CCA testified, sometimes staff would post someone to a non-mandatory shift instead of the mandatory shift, depending on the circumstances. 11 Mullen testified that she told CCA’s human resources department that she liked her job, and she testified that she left because of childcare duties and because the job did not make sense for her financially. 12 This does not include June through October of 2012, when Mullen was out on maternity leave. 13 Mullen testified that she reported her concerns through an employee reporting system online either in November 2012 or December 2012. Counsel for CCA stated at the hearing that CCA would look into whether such a report existed. CCA officials had testified that no reports about unfilled mandatory posts were received through the employee reporting systems in place. The Court is not aware of the result of the inquiry CCA said it would make.
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as long as 20 minutes, to reach an officer in the unit so that she could be let out at the end of her shift. At least one missing corrections officer, for a mandatory post, happened often, she said. Generally, a housing area in ICC has a handful of officers assigned to posts.14 So, for example, a unit might have three correctional officers assigned to walk the floor. A missing officer is more noticeable in this context than if one were trying to spot the missing officer in a prison layout with 20 mandatory floor officer posts in a single building.
IDOC follow-up examinations of staffing also show more extensive and ongoing violations of the Settlement Agreement. Deputy Warden Higgins testified that now that CCA provides documents clearly showing mandatory posts and the times they were filled, as well as a separate report whenever a post was left empty, his staff is able to keep better tabs on staffing issues. Higgins’ staff has examined about 20 days of data, chosen from April 2013 onward. They found that mandatory post vacancies on a given day have ranged from 18 hours to about 40. Assuming the 20 days are not outliers, and taking the low end of vacant hours—18 per day—this would suggest 540 hours of vacant mandatory posts might be found in one month (30 days x 18 hours = 540).
There has yet to be a detailed examination of vacancies for the duration of the Settlement Agreement, nor has there been a detailed examination of day shift vacancies.15 But from what was presented at the contempt hearings, it is clear that nearly two years after the Settlement Agreement was entered into, there are still significant staff shortages
14 The Court is vague in describing assignments because it agrees with Defendants that publicizing specific staffing assignment numbers could cause security problems for the facility. 15 An accounting firm is currently working on such a report, according to Higgins.
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that lead to mandatory posts going unfilled. For example, on July 23, 2013, the shift supervisor closed three mandatory officer posts for certain hours because of staff shortages.
Unfortunately, the problem of short-staffing seems likely to take considerable time to resolve. Plaintiffs have introduced evidence showing that this has been a problem from the beginning of the settlement period, see Pls’ Ex. 116, through to the present. In an informal spreadsheet to monitor “key performance indicators,” prison officials throughout 2012 recorded consistently being short of a CCA-authorized hiring number of 213 security officers. See Pls’ Ex. 111. The shortage ranged from 18 to 6 over 2012; there was never a surplus. Id. CCA reports difficulties recruiting and retaining enough officers, but its current warden, Jason Ellis, and his managing director, Kevin Myers, both testified that they would be attempting to hire 10 officers above their usual budget for correctional officers.16 This means there is a double hurdle—CCA must first clear the officer total that it has budgeted for, then it must go above this number in the hope that this will be enough officers.17
Put simply, Plaintiffs deserve the relief they bargained for in the Settlement Agreement and, with respect to staffing, they are still waiting for the promised compliance. Even the specific three officers that were added as a result of the Kelly
16 These extra officers were authorized by CCA management in April. Training classes take 7 to 8 weeks, and CCA plans two training classes to begin in September. The decision to start those classes, according to managing director Myers, was made a week before the contempt hearing. 17 Defendants’ Exhibit 4, a snapshot of the staffing at ICC as of July 19, 2013, indicates that the prison has almost cleared the first hurdle. This is as of three months after the press releases, and six months after CCA first determined there was a credible allegation of covering up vacant posts.
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Settlement Agreement, to be used at the warden’s discretion, had some vacancies on at least thirteen days in 2012. See Pls’ Ex. 134.18
* * *
CCA’s own investigation noted that “[f]acility senior management, including the
Warden and Assistant Wardens, were aware of acute personnel shortages in the spring, summer, and fall of 2012.” Pls’ Ex. 118 at 4.19 Yet Warden Wengler testified he did not
check at any point in 2012 for vacancies “specifically,” nor did he ever walk around the
prison and compare the staff roster to the officers on required posts. When asked if he felt
he met the expectations of his job when it came to filling the mandatory posts, Wengler
testified that, “to the extent of going back and checking more often on the people that were responsible for it, no.”20 CCA managing director Kevin Myers testified that he now
visits ICC monthly, and specifically asks his employees to show him how they can prove
that they are filling all required positions. That is a promising development; it is also the
sort of diligence that should have been present for the past two years. The Court finds
that this responsibility to check on mandatory staffing posts falls higher than Wengler’s subordinates: it falls on him, and it falls on CCA.21
18 This includes one day where no officers were assigned to these posts. These assignments were noted as “Warden’s Utility” on the rosters. They worked a weekday day shift and were usually assigned to the most troubled unit, DEF. 19 The report went on to note that all senior management denied knowing mandatory posts were vacant, “or that rosters were being completed in a fashion that could make it difficult to detect vacancies.” 20 Wengler testified that he did regularly look at shift rosters, but did not see vacant mandatory posts, or an officer working multiple posts. As noted in Section 1, this is a blindspot of his (and CCA’s) own making because of the poor quality of CCA record keeping. 21 In other portions of their testimony, both Wengler and his supervisor, Myers, did admit that they bore a portion of the responsibility for staffing shortages.
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3. Defendants’ counterarguments A. Defendants’ reliance on Vertex is not persuasive Defendants contend that they cannot be held in contempt for the same reason that
the defendant in Vertex Distributing, Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885 (9th Cir. 1982), was not in contempt. They read Vertex for the idea that a court should not hold a defendant in contempt if, after discovering it violated a court order, CCA “took steps to correct” the violation “before plaintiffs moved for an order of contempt.” Defendants’ Hearing Brief (Dkt. 62, “Ds’ Hearing Br.”) at 4.
In Vertex, the Ninth Circuit decided that a district court was within its discretion to deny the plaintiff’s applications for civil contempt. Plaintiffs had sued for trademark infringement, and the parties reached a consent judgment by which, as is relevant here, the defendants were expressly prohibited from using “Falcon Foam Plastics, Inc.” as their name for commercial or publicity purposes. Id. at 887. Defendants then used that name for two listings in one edition of a phone directory. Id. at 892. They put evidence before the trial court that the violation had been found and steps taken to correct it before plaintiffs moved for contempt. Id. The appellate court determined it was not abuse of discretion, under those facts, to find that “defendants made every reasonable effort to comply with the court’s order.” Id.
Here, Defendants’ actions are simply not on the scale of the minimal harm caused by two erroneous phonebook listings. Defendants knew prior to the Settlement Agreement that they had problems staffing all posts, and hiring enough correctional officers. They knew this during the Settlement Agreement’s enforcement period as well;
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their internal spreadsheets showed them consistently below their staffing budget numbers. They had both notice and a long time to realize that they needed to check on their ability to staff mandatory positions.
It is a positive step that CCA investigated in December, found the allegations credible in January, and worked out a plan of action in March and April (including planning to hire more staff, training existing staff to prevent falsifying records, and finally improving their record keeping).22 But this is not a particularly speedy response, not when the Settlement Agreement is winding down and any new recruits must go through about two months of training.23 And while the newfound transparency in record keeping is also for the better, this is a long overdue move. It was part of the reasonable steps CCA should have taken years ago, and it is not a reason to find that CCA should not be held in contempt.
B. A finding of breach, and contempt, does not depend on an increase in violence resulting from the breach
Defendants have repeatedly argued that there should be no breach given that the touchstone of Plaintiffs’ lawsuit was the levels of inmate violence at ICC. See, e.g., Ds’ Reply at 5. They contend that unless Plaintiffs can show short staffing led to more violence, they cannot justify the contempt sanctions they seek. Id. This overly simplifies
22 Defendants appear to be stretching the facts when they contend that they learned “of a vague allegation of roster discrepancies in January 2013.” See Defendants’ Reply Brief (Dkt. 66, “Ds’ Reply”) at 3. Scott Craddock, CCA’s lawyer, testified that he learned of the allegation in December 2012. See also Craddock Decl., Pls’ Ex. 130 at ¶ 3. It was in January that he determined the allegation was credible. 23 The time it takes to get an officer hired is actually longer, given that it takes some time to recruit enough applicants that can pass initial screenings.
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the relief Plaintiffs sought, and it ignores that the Settlement Agreement makes clear what
is a significant breach. Defendant CCA agreed to “comply with the staffing pattern” in its
contract with IDOC and to add three correctional officers. That is not a qualified
commitment; it does not provide the sort of leeway that CCA now seeks.
Plaintiffs were, of course, deeply concerned with levels of violence at ICC, and
they contest the claim violence has decreased. But that is not the only concern they had.
Having enough correctional officers can deter violence, but also it also offers other
benefits, such as having enough staff on the prison floor to accurately track the levels of
violence in the first place. A court should be wary of ignoring the terms of an agreement in favor of writing a “no harm, no foul” principle into the agreement.24
Similarly, the argument that perfect staffing “simply is not realistic,” Ds’ Reply at
3, distracts from the point of civil contempt proceedings, which focus on whether a party
took all the reasonable steps it could to comply. Balla, 869 F.2d at 466. The outcome here
(that Plaintiffs did not get the relief promised in the Settlement Agreement) matters, but
most important for contempt is the fact that Defendants should have done more to inquire
about staffing compliance.
24 As the Vertex court noted, “Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” 689 F.3d at 893 (citation omitted).
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C. Casting this as a modification of the Settlement Agreement does not change the outcome
After Defendants filed the hearing brief that the Court agreed to allow, they then filed a Reply and raised a new argument that extending the Settlement Agreement is a modification of a decree. Ds’ Reply at 6 (citing Labor/Cmty. Strategy Ctr. v. Los Angeles Cnty. Metro. Transp. Auth., 564 F.3d 1115, 1120 (9th Cir. 2009)).
“A party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 393 (1992). Failing to substantially comply with the terms of a consent decree can qualify as the significant change in circumstances that justifies extending the decree. Labor/Cmty Strategy Ctr., 564 F.3d at 1120-21. Given the serious doubt that there was ever compliance with Paragraph 4 of the Settlement Agreement, narrowly tailored relief should include extending the duration of the agreement. The Court thus agrees with Plaintiffs that the outcome here would be the same as it is under the contempt standard. 4. Remedies
When considering a sanction to make a defendant comply with a court order, the court should consider “the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.” United Mine Workers, 330 U.S. at 304.25
25 Defendants argue that a Court must find willfulness to impose a coercive sanction. Ds’ Reply at 4. As their own explanatory parenthetical makes clear, willfulness is a factor a court should
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The Court shall consider Plaintiffs’ proposed remedies in turn. A. Two year extension of the consent decree The Court agrees with Plaintiffs that they have not received a key provision of the Settlement Agreement, and that this failure has lasted nearly as long as the duration of the Settlement Agreement. For CCA staff to lie on so basic a point—whether an officer is actually at a post—leaves the Court with serious concerns about compliance in other respects, such as whether every violent incident is reported. CCA represents that it is waiting for a state investigation to finish before it takes any further discipline (beyond the two staff fired). That is a decision the Court does not second-guess. But this also means that the same supervisors who signed falsified record sheets remain on the job, which leaves the Court concerned about compliance with the Settlement Agreement. Plaintiffs and the Court must be able to know with confidence that every required post is filled, without exception or excuse. The Court rejects Defendants’ contention that the most significant problems occurred within seven months, and thus only a seven-month extension would be appropriate. Seven months is one set of evidence, but only because Defendants limited their investigation, and state investigations and an audit are not yet complete. The evidence outlined above makes clear that this Court concludes the vacancies extended well beyond the seven month period, and that one reason the truth is hard to find is that Defendants kept records that obscured who was working at what posts and at what times.
consider, but not a finding that must be made. See id. (citing Sublime v. Sublime Remembered, 2013 WL 3863960 at *6 (C.D. Cal. July 22, 2013) (“When imposing a coercive civil contempt sanction, a court should consider . . . the willfulness of the violating party.”).
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From the employees falsifying records there was clear willfulness but, as the Court noted above, there is an element of willfulness from higher ups in (1) not verifying compliance with the Settlement Agreement when they had ample reason to do so, based on knowledge of staffing pressures and past problems listing multiple employees at the same post; and (2) not fixing record-keeping problems when they promised to, and when the harm (multiple posting) had already been raised. For the above reasons, the Court finds that this extension narrowly draws the proposed relief to correct the violation.
B. Independent monitor and report to the Court As part of its proposed solution to Plaintiffs’ motion for contempt and breach, prior to the hearings, Defendants offered to hire an independent monitor on the issue of staffing. They contend now that such a monitor is unnecessary, and that IDOC keeps close tabs on them with the help of now-sufficient staffing records. The Court agrees with Plaintiffs that an independent monitor is an appropriate resolution here. Checking compliance necessarily involves examining a set of staffing rosters, going over time-entry records, and other random audit methods (such as inperson checks). Relying on IDOC, a non-party to this case, imposes an added duty on the state agency to promptly report vacancies to this Court. This duty is most fairly handled by a monitor with a direct obligation to this Court and to the terms of the Settlement Agreement. The Court directs both sides to confer about an appropriate monitor. If the Parties cannot agree on a monitor within five days of this Order, they must submit their choice to the Court for decision. The Court shall then choose the monitor.
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C. Predetermined fines for vacant mandatory posts in the future and a threshold at which they would be triggered
Plaintiffs ask the Court to set a predetermined hourly fine of $500 for any vacant mandatory posts above a threshold of 10 missing hours. By this proposal, the 11th missing hour in a given month would trigger a $500 fine. CCA’s position is that $500 is an arbitrary, punitive figure, and that 10 missing hours is less than one full shift. This means one employee missing a shift on a mandatory post (with no one able to come in to cover, or to switch from a non-mandatory post) would lead to a fine. Instead, CCA proposes that if there are more than 100 hours of vacancies in a month, “an inquiry should be made as to the reason for the vacancy,” Ds’ Reply at 8, and then the Court should decide how to proceed.
The Court rules as follows: Any vacant mandatory post hours over 12 hours (the duration of one shift) in one month will lead to a fine of $100 per hour over that 12th hour. The Court’s decision is based on a principle of escalating sanctions if a lower amount does not work.26 If CCA continues to fall short of the staffing requirements, it should expect to see escalating fines in the future. Plaintiffs’ $500 per hour proposal—or higher—may well become necessary to compel CCA to comply.27
26 CCA contends that there may be absurd results if, for example, the laundry room is closed and thus the mandatory laundry officer post is vacant. CCA can petition the Court for relief in that narrowest circumstance. 27 CCA insists that Plaintiff’s proposed $500 fine is obviously punitive. Ds’ Reply at 8 n.5. As an example, they note that this number, if applied to the 4,800 falsified hours, would be $2.4 million. Defendants miss the point: the amount of fine, if it succeeds in making them comply, should prevent the fine from reaching millions because Defendants will fix their behavior and begin living up to their promise in the Settlement Agreement. If a prospective fine leads to $2.4 million in penalties, CCA has no one to blame but itself.
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D. Ordering CCA to discipline more employees The Court does not find it appropriate to order CCA to discipline more staff in response to the falsified records. As discussed above, the fact that supervisors who signed falsified rosters remain at ICC is a concern for compliance going forward. But the Court will not intrude on CCA staffing decisions when a state criminal investigation is ongoing. E. Determining additional vacancies The Court also declines to order CCA to conduct an audit to find all missing staffing hours. IDOC, through Tim Higgins, has represented to the Court that such an audit is underway. Further, IDOC has its contractual remedies against CCA; it is up to that agency to determine what compensation it pursues for having been lied to. F. Attorneys’ fees The Settlement Agreement provides that this Court may award attorneys’ fees and costs if it finds a material breach of the Agreement. These fees and costs are limited to those incurred in connection with the contempt motion and resulting discovery and hearings. Plaintiffs are directed to submit documentation of those fees and costs.
ORDER NOW THEREFORE IT IS HEREBY ORDERED:
1) Defendants are held to be in contempt and breach of the Settlement Agreement, as incorporated into the Order for Dismissal.
2) The Court GRANTS a two-year extension to the Settlement Agreement. The Court sets midnight on September 20, 2015, as the new date for the Settlement Agreement to expire.
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3) The Court GRANTS a request to set a predetermined hourly fine, and sets that fine at $100 per hour for any vacant mandatory post hours over 12 hours in one month. The Court reserves the ability to modify this amount prospectively, and puts Defendant CCA on notice that it will consider escalating the fine amount as needed to achieve compliance.
4) The Court DENIES at this time both requests to determine additional vacancies, or to discipline staff, deferring at this time to the ongoing state investigations that may result in criminal prosecutions.
5) The Court ORDERS Plaintiffs to submit documentation of their attorney hours and requested fees and costs associated with pursuing contempt/breach of the Settlement Agreement.
DATED THIS 16th day of September, 2013. _________________________________________ DAVID O. CARTER, United States District Judge For the Central District of California Sitting by Special Designation
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JOSHUA KELLY, JOSE PIÑA, ANDREW IBARRA, RAY BARRIOS, RANDY ENZIMINGER, MICHAEL MIERA, PRISONER A, and PRISONER F, Individually and on behalf of a class of all other persons similarly situated,
Plaintiffs,
v.
TIMOTHY WENGLER, and CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendants.

Case No. 1:11-CV-185-S-EJL
ORDER REGARDING ATTORNEYS’ FEES AND COSTS

Before the Court are the Plaintiffs’ motions for attorneys’ fees and costs. See Dkts. 96, 102. The Court finds this matter suitable for decision without oral argument. After considering the moving and responding papers, the Court GRANTS Plaintiffs’ motions.

I. Factual and Procedural Background In April 2011, Plaintiffs filed a class action complaint for declaratory and
injunctive relief. Plaintiffs alleged that the level of violence at the Idaho Correctional Center (ICC) violated Plaintiffs’ and other inmates’ constitutional rights. See Amended Class Action Complaint (“Compl.”) (Dkt. 1). ICC is run by Corrections Corporation of America (“CCA”), a private corporation that contracted with the Idaho Department of Corrections (“IDOC”) to operate ICC. After extensive settlement talks and before class
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certification, the parties agreed to settle the case and signed a Settlement Agreement. See Settlement Agreement (Dkt. 25 Ex. A). One of the terms of the Settlement Agreement stated that CCA would “agree to comply with the staffing pattern pursuant to CCA’s contract with [IDOC].” Settlement Agreement ¶ 4. The Settlement Agreement set out a dispute resolution procedure that included submission of disputes to this Court for resolution. See Settlement Agreement ¶ 15. The Settlement Agreement was set to expire two years from its date of signature, placing its initial termination date in September 2013. Id. ¶ 16. The Settlement Agreement also provided that, should this Court find a material breach of the Settlement Agreement, the Court may award attorneys’ fees and costs. Id. ¶ 23.
In December 2012, CCA discovered possible problems with the staffing at ICC. While investigating a harassment claim, CCA found evidence that mandatory posts in ICC were going vacant. See Pls’ Ex. 130. On January 23, 2013, the investigator on the harassment matter raised the issue with CCA’s assistant general counsel, Scott Craddock. Craddock determined the allegation of falsified staffing hours was credible, and informed IDOC and then-Warden Wengler. CCA hired a law firm to oversee the investigation. In March 2013, the law firm verified that falsifications had taken place. On April 9, 2013, CCA informed state police, the attorney general, and IDOC.
On April 11, 2013, IDOC and CCA each issued a press release about the investigation. CCA’s press release stated that the corporation had “concluded an extensive internal investigation of staffing records” and “determined that during a seven-
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month period last year there were some inaccuracies.” CCA Press Release, Pls’ Ex. 106. The press release further stated that CCA would compensate the state for any identified unverified staffing hours, and that “[t]he unverified hours represent a fraction of the total staffing requirements, and there was no apparent increase in violence or other security incidents during the period in question.” Id. IDOC’s press release, Pls’ Ex. 105, provided additional details. It noted that there were nearly 4,800 hours over seven months for which records indicated a correctional officer was staffing a security post that was actually vacant. IDOC announced that CCA acknowledged falsification of staffing records and that Idaho State Police would examine the findings and evidence to review whether a criminal investigation was justified.
In June 2013, Plaintiffs initiated contempt proceedings against CCA. See Motions (Dkts. 39-40). On July 16, 2013, CCA sent Plaintiffs an email offering a settlement with three provisions: 1) an extension of the Settlement Agreement until June 30, 2014; 2) a specific individual named in the offer would act as independent monitor to review ICC staffing for the remainder of the Settlement Agreement; and 3) payment of Plaintiffs’ reasonable attorneys’ fees and costs incurred in moving for contempt.
See Reply Ex. 1.
The Court granted expedited discovery and held a contempt hearing on August 7 and 8, 2013. On September 16, 2013, the Court issued a memorandum decision and order (“Memorandum Decision”) (Dkt. 76) finding CCA in contempt, extending the
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Settlement Agreement for two years, setting a system for sanctions if compliance did not improve, and implementing compliance monitoring. The Court instructed the parties to agree to a monitor and directed Plaintiffs to submit a motion for attorneys’ fees and costs pursuant to the Settlement Agreement. Id. at 23.
II. Legal Standard Plaintiffs state that they seek attorneys’ fees under the Settlement Agreement and
42 U.S.C. § 1988, but acknowledge that the Prison Litigation Reform Act (“PLRA”) limits fee awards under § 1988. See Reply at 3. CCA agrees that the PLRA’s limits on attorneys’ fees apply, as stated in 42 U.S.C. § 1997e(d)(1). CCA does not appear to dispute that the normal framework under § 1988 governs this determination, as limited by the PLRA.
a. Attorneys’ Fees Under § 1988 Under 42 U.S.C. § 1988, the Court may, in its discretion, grant a reasonable attorneys’ fee as part of the costs to the prevailing party. 42 U.S.C. § 1988(b). The lodestar formula should be used to determine a reasonable figure for an award of attorneys’ fees. A lodestar figure is calculated by “multiplying the hours spent on a case by a reasonable hourly rate of compensation for each attorney involved.” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563 (1986). “A ‘strong presumption’ exists that the lodestar figure represents a ‘reasonable’ fee, and upward adjustments of the lodestar are proper only in ‘rare’ and ‘exceptional’ cases.” Jordan v.
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Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987) (quoting Delaware Valley, 478 U.S. at 565).
A plaintiff is considered a prevailing party if it succeeds on any significant issue in litigation that gives some benefit that plaintiff sought in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). To satisfy this requirement, the suit must have produced a material alteration of the legal relationship between the parties. Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001). This alteration may be the result of an enforceable judgment or comparable relief through a consent decree. Farrar v. Hobby, 506 U.S. 103, 111 (1992).
Once the Court has determined that attorneys’ fees are warranted in a given case, the Court must then assess whether the amount of fees requested is reasonable. “In setting a reasonable attorney’s fee, the district court should make specific findings as to the rate and hours it has determined to be reasonable.” Gracie v. Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000) (quoting Frank Music Corp. v. Metro-Goldwyn Mayer Inc., 886 F.2d 1545, 1557 (9th Cir. 1989)). The first step the district court must take is to “determine the presumptive lodestar figure by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly rate.” Gracie, 217 F.3d at 1070 (internal quotation marks and citation omitted). Next, the district court should, where appropriate, “adjust the ‘presumptively reasonable’ lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), that
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have not been subsumed in the lodestar calculation.” Id. (internal citation and quotation marks omitted).
b. Limits Under the PLRA The Prison Litigation Reform Act (“PLRA”) applies to all civil rights actions by prisoners. The PLRA limits the availability of attorneys’ fees under § 1988 “[i]n any action brought by a prisoner who is confined to any jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(d)(1). Under the PLRA, attorneys’ fees can be awarded for post-judgment work in enforcing and monitoring the court’s prior judgments. Webb v. Ada County, 285 F.3d 829, 835 (9th Cir. 2002).
Under 42 U.S.C. § 1997e(d)(1), the Court may award fees to prisoners only to the extent that (1) the fees were “directly incurred in proving an actual violation of the plaintiff’s rights,” § 1997e(d)(1)(A); and (2) the fees are either “proportionately related to the court ordered relief for the violation” or “directly and reasonably incurred in enforcing the relief ordered for the violation,” § 1997e(d)(1)(B). See Jimenez v. Franklin, 680 F.3d 1096, 1099 (9th Cir. 2012). The PLRA also states that “[n]o award of attorney’s fees . . . shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel.” 42 U.S.C. § 1997e(d)(3).
III. Discussion a. Prevailing Party
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Plaintiffs are clearly the prevailing party for purposes of attorneys’ fees. Plaintiffs moved to find CCA in contempt for failing to meet its staffing obligations under the Settlement Agreement. The Court found CCA in contempt and ordered relief: an extension of the Settlement Agreement for two years, appointment of an independent monitor, a set sanction amount per vacant post hour over twelve hours per month, and attorneys’ fees and costs. See Order (Dkt. 76). CCA does not appear to dispute that the Plaintiffs prevailed, but rather raises objections to reasonableness and relatedness under the PLRA. The Court addresses these concerns below.
b. Reasonable Rate The parties agree that the appropriate rate for attorneys under the PLRA’s limitations is $213/hour, and that the rate for paralegals is $65/hour. See Motion at 7; Opp’n at 7. CCA does dispute the use of the $65/hour rate for the work of two secondyear law students. See Opp’n at 7. However, District of Idaho has already found the $65/hour rate to be appropriate for summer associates. See Balla v. Idaho State Bd. of Correction, CV-81-1165-S-BLW, 2013 WL 501646 (D. Idaho Feb. 8, 2013). The Court agrees with this assessment and sees no reason to reduce the hourly rate for second-year law students any further. See Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009).
c. Reasonable Hours Mr. Pevar submits billing records showing 533.9 hours and Mr. Eppink submits billing records showing 253.2 hours. The two paralegals and two law students submit records showing a total of 174.1 hours. The total fee amount for attorney time using the
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PLRA-capped hourly rate is thus $167,652.30, and the total fee amount requested for paralegal and law student time is $11,316.50. Mr. Pevar and Mr. Eppink request total combined costs of $16,598.13. CCA submits a series of objections to the appropriate time calculation for lodestar purposes, which the Court addresses here.
i. Whether Fees Should be Reduced Because of the Press Releases or the Settlement Offer
CCA argues that Plaintiffs cannot recover their full fees because they failed to prove anything beyond what CCA had already admitted in their April 2013 press release, and failed to obtain any relief beyond the settlement CCA offered:
Here, the issue is a “material breach” of the parties’ Settlement Agreement, and for Plaintiffs to obtain the entire fee award they seek, they must prove that the fee was reasonably incurred in prosecuting their contempt motion. Plaintiffs are unable to do so because Plaintiffs did not prove anything beyond what CCA had already acknowledged prior to the contempt motion and hearing and did not receive relief greater than that offered to Plaintiffs prior to the discovery phase of these proceedings. . . .
Any fees incurred after CCA offered to extend the settlement agreement, retain an independent staffing monitor, and pay reasonable attorney’s fees and costs incurred in bringing Plaintiffs’ contempt motion, are not “reasonably incurred” or “proportionately related to the court ordered relief” because Plaintiffs (1) did not prove anything beyond what CCA had
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already acknowledged prior to Plaintiffs’ contempt motion and (2) did not receive relief greater than what CCA offered prior to engaging in discovery and the hearing.
Opp’n at 6-7.
The Court disagrees. Turning first to whether the Plaintiffs proved any facts beyond the statements in the CCA and IDOC press releases, the Court rejects CCA’s position. The IDOC and CCA press releases stated the following facts: 1) that CCA had “concluded an extensive internal investigation of staffing records” and “determined that during a seven-month period last year there were some inaccuracies”; 2) that CCA would compensate the state for any identified unverified staffing hours; 3) that “[t]he unverified hours represent a fraction of the total staffing requirements, and there was no apparent increase in violence or other security incidents during the period in question”; 4) that there were nearly 4,800 hours over seven months where records indicated a correctional officer was staffing a security post but the post was actually vacant; 5) that CCA acknowledged falsification of staffing records; and 6) that Idaho State Police would examine the findings and evidence to review whether a criminal investigation was justified.
At best, these press releases could be said to show that CCA acknowledged that 4,800 recorded staffing hours were falsified. But Plaintiffs were required to prove far more than this to merit the contempt finding. Plaintiffs had to prove by clear and
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convincing evidence not only that CCA had violated the Settlement Agreement, but also that CCA had failed to take “all reasonable steps within its power” to comply. See Memorandum Decision at 6. The Court found that CCA had ample opportunity to ensure compliance because it was aware of the problem for months. The Court further found that the 4,800 vacant hours constituted a significant underestimate, and that posts had been empty even in the weeks before the contempt hearings. See id. at 7. Finally, the Court found that CCA’s remedial efforts did not cure the violations. Id.
First, Plaintiffs produced evidence showing that CCA was aware of, and should have been acting to remedy, serious staffing problems as early as 2010. See id. at 8. The evidence showed correspondence on this issue between CCA and IDOC in late 2010 and early 2011, including acknowledgment by warden Wengler that staffing issues persisted. See id. at 8-9. Testimony also showed that problems with staffing reports continued until just before the contempt hearing, and that practices deemed “unacceptable” by IDOC before the Settlement Agreement were in fact regular occurrences after the Settlement Agreement. See id. at 10. CCA acknowledged none of these facts in its press release, but the Court relied on each of them, among others, in finding CCA in contempt.
Second, the fact that the press releases acknowledged 4,800 vacant staffing hours does not justify reducing Plaintiffs’ fee award. Plaintiffs produced evidence showing that the 4,800 vacant hours were a significant underestimate for the seven-month period reviewed and that posts were frequently vacant before the seven-month period. See id. at 11-12. Plaintiffs showed that the 4,800 hour estimate covered only vacant night shift
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hours, even though CCA knew that day shifts were also left vacant. Id. at 11. Testimony also showed that even the number of vacant night shift hours could be a substantial underestimate. Id. at 11 n.10. The Court found specifically that: “from what was presented at the contempt hearings, it is clear that nearly two years after the Settlement Agreement was entered into, there are still significant staff shortages that lead to mandatory posts going unfilled.” Id. at 13-14. Plaintiffs therefore proved far more than the 4,800 hours CCA acknowledged, and the Court specifically relied on this additional evidence in holding CCA in contempt.
Plaintiffs also proved that Warden Wengler and CCA itself was responsible for the staffing shortages. The Court noted that CCA had ample evidence of the staffing problem after the Settlement Agreement, yet did nothing to remedy the problem. CCA officials, including Wengler, acknowledged this fact in their hearing testimony. Id. at 15. Neither press release admitted or alluded to this level of knowledge or culpability.
Overall, then, it cannot be seriously argued that Plaintiffs proved nothing more than what the CCA and IDOC press releases already stated. Plaintiffs’ investigations produced significant and crucial evidence of the extent of the staffing violations, the length of time the violations had been occurring, and the knowledge and notice that CCA and Warden Wengler had of the violations. Plaintiffs met the heavy burden of proving civil contempt and produced exemplary results for their clients. The Court thus declines to reduce Plaintiffs’ requested fees on this basis.
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The Court similarly rejects CCA’s argument that its settlement offer would have given Plaintiffs the same relief that they eventually achieved. The settlement offer provided an extension of the settlement agreement until June 30, 2014 (roughly nine months longer than the original termination date), a specific independent monitor to “review ICC staffing” for the remainder of the Settlement Agreement term, and an offer to pay reasonable attorneys’ fees. Plaintiffs were already entitled under the Settlement Agreement to seek reasonable fees in the event of breach, however, and so CCA’s offer to pay reasonable fees was duplicative at best. Plaintiffs achieved greater relief on both other issues included in the settlement offer: the Settlement Agreement was extended for a full two years, and an independent monitor agreeable to both parties and accountable to the Court was appointed. Furthermore, Plaintiffs achieved relief beyond these three issues: Plaintiffs obtained a finding of contempt against CCA, a Court order mandating compliance with the remedies ordered, a sanctions structure designed to encourage full compliance with the Settlement Agreement, and extensive factual findings showing repeated and long-term breaches of the staffing terms of the Settlement Agreement. This relief is unquestionably far beyond the benefits that Plaintiffs would have gained from accepting CCA’s offer, particularly given that Plaintiffs had legitimate concerns about CCA’s willingness to accurately review and correct its staffing.
Therefore, the Court declines to reduce Plaintiffs’ fee award either because they failed to achieve relief beyond the settlement offer or because they proved nothing beyond CCA’s earlier admissions. Plaintiffs efforts at the contempt hearing were fruitful
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far beyond these modest limits, and the Court finds those efforts were entirely “reasonably incurred” and “proportionately related to the court ordered relief” under 42 U.S.C. § 1997e(d)(1)(B).
To the extent that CCA argues that Plaintiffs are not entitled to fees because they did not prove specifically that violence levels increased at ICC as a result of any breach of the Settlement Agreement, the Court also rejects this argument. The Court discussed in its Order why it is unnecessary for Plaintiffs to show that violence increased as a result of the staffing violations. Memorandum Decision at 18-19. There is no need to expound on these issues further, and the Court declines to reduce Plaintiffs’ fees on this basis.
ii. Specific Objections CCA also makes specific objections to particular parts of Plaintiffs’ claim for fees, which the Court now addresses in turn.
1. Unnecessary, Duplicative, Vague, etc. First, CCA claims that certain claimed fees are unnecessary, duplicative, and vague. CCA details these 113 objections in Exhibit B to its Opposition. The Court addresses them in groups by topic.
a. Objections 1-3, 6, 16, 23-24, 32, 62, 65, 79, 81-82, 89, 108: Work Associated with ICC Staff and Inmates
CCA objects to a variety of activities associated with individuals CCA argues have “no apparent role in this litigation.” All of these time entries appear to relate to either CCA staff or ICC inmates regarding the staffing situation. The Court interprets CCA’s
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objection to be that because these individuals did not testify or were not cited in the Court’s Order, any fees for efforts expended on interviewing these individuals and drafting declarations for them were not “directly and reasonably incurred” under § 1997e(d). The Court disagrees. A full investigation of the staffing complaints was absolutely necessary to develop an appropriate strategy for the contempt hearing, which was limited in time and so could not accommodate all witnesses. It cannot be true, however, that interviewing a reasonable number of potential witnesses and gathering data from those witnesses is not reasonable and directly related to presenting the strongest case possible. Were these witnesses clearly peripheral or associated with a failed claim, the Court would hold differently. But, where only one claim is asserted and the witnesses are all individuals able to directly comment on the facts underlying that claim, the Court sees no reason to deny fees on this basis. These objections are therefore denied, and Plaintiffs may recover these fees.
The Court finds the same to be true for the objections to work associated with Susan Fry, a former CCA corrections officer. To diligently investigate the contempt claim, Plaintiffs had to locate and interview former officers to determine the extent of the staffing problems. There is no evidence that any of these officers could not be expected to have pertinent information, or could not be expected to materially further the investigation. The fact that not all of the officers were able to testify does not render work spent on their declarations or interviews “unreasonable” or not “directly related.”
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b. Objections 4-5, 7, 15-16, 33-38, 93, 97, 106-07, 10913: Clerical Tasks
CCA objects to a series of tasks as clerical in nature. First, the Court notes that several of these objections are for fee entries completed by paralegals or law students. It seems to the Court that paralegals and law students are entirely appropriate individuals to complete these tasks, including formatting, correspondence, and taking notes. Similarly, time that counsel spent corresponding with opposing counsel, plaintiffs, and possible witnesses is entirely within the purview of a lawyer’s tasks, and CCA has failed to rebut this supposition. See Blackwell v. Foley, 724 F. Supp. 2d 1068, 1079 (N.D. Cal. 2010). To the extent that CCA objects to tasks that might be performed by clerical staff in a large law firm, including arranging travel and preparing exhibits, the Court finds these tasks reasonable for Plaintiffs’ counsel to perform. Mr. Pevar and Mr. Eppink submitted supplemental declarations stating that they have only limited support from paralegal staff and work essentially as sole practitioners. See Reply Exs. 2, 3. It is therefore entirely appropriate for Mr. Pevar and Mr. Eppink to perform some clerical work. The Court will not punish them for the lack of resources that often accompanies nonprofit legal work. See Parks v. D.C., 895 F. Supp. 2d 124, 133 (D.D.C. 2012). CCA’s objections on this basis are therefore denied.
c. Objections 21, 28, 50-61, 66, 68-69, 73-78, 80, 83, 8687, 90-91, 97: Vagueness
CCA makes several objections to specific time entries it claims are vague. The Court agrees with CCA regarding objections 50-61 (4 hours), 66 (0.2 hours), 69 (0.2
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hours), 78 (0.2 hours), 87 (0.2 hours), and 90 (0.7 hours). The Court therefore reduces the fees billed for Mr. Eppink by 5.5 hours. The Court denies the other vagueness objections and finds those entries sufficiently specific to warrant fees.
d. Objections Regarding Jaune Sonnier CCA objects to a variety of fee entries associated with the testimony of Jaune Sonnier. The Court relied directly on Sonnier’s testimony in its contempt order. See Memorandum Decision at 12. The Court thus finds counsel’s efforts in interviewing and preparing Sonnier’s testimony to be entirely reasonable and directly related to the relief received. These objections are denied.
e. Objections to Time Spent Briefing Fee Enhancement CCA further objects to time spent researching and obtaining documentation related to the request for a multiplier. The Court addresses these arguments below in its discussion of the propriety of a multiplier in this case.
f. Fees for Claims Not Advanced CCA objects to several fee entries related to claims not asserted as remedies for the breach, particularly the question of possible substitution of the new warden into the suit. In the same way that it is reasonable to investigate witnesses who do not ultimately testify, it seems entirely reasonable to the Court to investigate possible avenues of relief and claims that are not ultimately viable. CCA does not show that it was unreasonable to investigate this issue, and the Court finds no other basis on which to disagree with Plaintiffs that this was time well spent. CCA cites authority suggesting that if the Court
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believed these efforts were spent on irrelevant or frivolous matters, it could exclude the associated fees. See Washington State Dep’t of Transp. v. Washington Natural Gas Co., Pacificorp, 59 F.3d 793, 806 (9th Cir. 1995); Desena v. Lepage, 847 F. Supp. 2d 207, 213 (D. Me. 2012). The Court finds that the fees in this case, however, were reasonable and appropriate under the circumstances. The Court declines to reduce fees on this basis.
2. Duplicative Deposition Fees CCA challenges fees incurred when both of Plaintiffs’ attorneys attended depositions. A Court may reduce fees if it finds them to be duplicative or excessive. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). In this case, however, it seems clear to the Court that the compressed litigation schedule and volume of discovery in this case justified using two attorneys at the depositions. Mr. Pevar and Mr. Eppink had limited resources and limited time, and so it was reasonable for both to attend the depositions. This is especially true in light of their limited support staff. The Court therefore declines to reduce the fee award on this basis.
3. Expenses not Sufficiently Supported CCA challenges Mr. Pevar and Mr. Eppink’s costs and expenses as insufficiently supported. Mr. Pevar and Mr. Eppink submitted supplemental declarations, including receipts, which satisfy the Court that the expenses requested are reasonable and adequately documented. The Court therefore declines to reduce the requested expenses on this basis.
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4. Assorted Additional Objections CCA’s remaining objections are narrow and specific to several individual fee entries. Several objections for block billing are unconvincing, as the entries are sufficiently detailed to give an accurate sense of the tasks performed during the time billed. See Pierce v. Cnty. of Orange, 905 F. Supp. 2d 1017, 1030 (C.D. Cal. 2012). After reviewing and considering the remaining objections, the Court finds them unpersuasive and declines to reduce fees on any of the grounds requested.
iii. Time for Fee Application CCA objects to Plaintiffs’ request for reimbursement for time spent requesting fees to the extent that the fee request is unsuccessful, and to the extent that it requests a multiplier. As noted above, the Court will address below the fee request based on the briefing for a multiplier. Plaintiffs agree that fees requested for time spent briefing the multiplier issue should be denied if no multiplier is granted.
iv. Conclusion Regarding Reasonable Hours After reviewing Plaintiffs’ timekeeping records, the Court is satisfied that the hours billed are reasonable and appropriate in this case. The Court declines to reduce the hours beyond the small reduction for vagueness of several individual time entries, as discussed above.
d. Presumptive Lodestar The presumptive lodestar calculation (including for the moment all fees claimed for briefing the attorneys’ fees issue) is as follows:
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Litigation Fees: Stephen Pevar Richard Eppink Zachary Kohl Jeremy Shafer Ingrid Andrulis Andrew Masser

Hours
533.9 247.7 78.1 19.8
68 8.2

PLRA Rate

$

213.00

$

213.00

$

65.00

$

65.00

$

65.00

$

65.00

Total
$ 113,720.70 $ 52,760.10 $ 5,076.50 $ 1,287.00 $ 4,420.00 $ 533.00

Fees Reply Brief: Stephen Pevar Richard Eppink

50.8 $ 12.4 $

213.00 213.00

$ 10,820.40 $ 2,641.20

Costs: Stephen Pevar Richard Eppink

Total fees: Total costs:

$ 191,258.90
$ 14,619.45 $ 1,978.68 $ 16,598.13

Total Fees and Costs: e. Whether a Lodestar Enhancement is Appropriate

$ 207,857.03

Plaintiffs’ counsel requests a 2.0 multiplier. A fee applicant bears the burden of

proving that a fee enhancement is necessary, and must produce “specific evidence”

supporting the award. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010).

“[I]n appropriate cases, the district court may adjust the ‘presumptively reasonable’ lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc. . . .” Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 2002) (quoting Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 622 (9th Cir. 1993)). The Kerr factors are: 1) the time and labor required; 2) the novelty and difficulty of the questions involved; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other
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employment by the attorney due to acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation, and ability of the attorneys; 10) the undesirability of the case; 11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Kerr, 526 F.2d at 70. “The court need not consider all . . . factors, but only those called into question by the case at hand and necessary to support the reasonableness of the fee award.” Cairns, 292 F.3d at 1158 (citing Kessler v. Assocs. Fin. Servs. Co. of Hawaii, 639 F.2d 498, 500 n.1 (9th Cir. 1981)).
In adjusting an award, however, the district court must focus on the Kerr factors “that are not already subsumed in the initial lodestar calculation.” Morales v. City of San Rafael, 96 F.3d 359, 363-64 (9th Cir. 1996) opinion amended on denial of reh’g, 108 F.3d 981 (9th Cir. 1997). Factors one through four and six are considered subsumed in the lodestar calculation. Id. at 364 n.9. Those Kerr factors determined not subsumed in the lodestar calculation therefore include: “(5) the customary fee, . . . (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.” Id.; Kerr, 526 F.2d at 70; see Graves v. Arpaio, 633 F. Supp. 2d 834, 842 (D. Ariz. 2009) aff’d, 623 F.3d 1043 (9th Cir. 2010).
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A lodestar amount generally may not be enhanced on the basis of “the novelty and complexity of a case,” or “the quality of an attorney’s performance.” Perdue, 559 U.S. at 553. Similarly, because the Supreme Court has held that the outcome or result of the suit is generally subsumed in the lodestar calculation, this is normally not an appropriate basis for enhancement. See Blum v. Stenson, 465 U.S. 886, 900 (1984). Only in cases of “exceptional success” should such a consideration warrant an upward adjustment. Id. (quoting Hensley, 461 U.S. at 435).
Plaintiffs’ counsel argue that this multiplier is appropriate for three essential reasons: 1) it is difficult for prisoner plaintiffs to find qualified counsel to take cases for which only declaratory relief or injunctive relief might be available because of the low compensation; 2) the PLRA’s fee cap undervalues Plaintiffs’ counsel significantly; and 3) Plaintiffs achieved extraordinary results. CCA responds that: 1) attorneys routinely bring prisoner lawsuits; 2) the statutory maximum hourly rate under the PLRA prevents any fee enhancement that brings the hourly rate over the maximum; 3) Plaintiffs did not have difficulty getting counsel in this case; 4) the prevailing rate of attorneys is not as high as Plaintiffs claim; and 5) the results in this case were not sufficiently “extraordinary” to warrant a fee enhancement.
i. Extraordinary Results and Undervaluing Counsel The Court considers the arguments for a multiplier based on extraordinary results and on undervaluing counsel together. The Supreme Court recently addressed the extent to which extraordinary results may justify a fee enhancement. See Perdue 559 U.S. at
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554. The Perdue Court treated the “quality of an attorney’s performance” and “the results obtained” as one factor, determining that “superior results are relevant only to the extent it can be shown that they are the result of superior attorney performance.” Id. Circumstances in which attorney performance can justify enhancement are “‘rare’ and ‘exceptional,’ and require specific evidence that the lodestar fee would not have been ‘adequate to attract competent counsel.’” Id. (quoting Blum, 465 U.S. at 897). The only such “rare and exceptional” circumstance detailed by the Perdue Court that is relevant here is where “the method used in determining the hourly rate employed in the lodestar calculation does not adequately measure the attorney’s true market value, as demonstrated in part during the litigation.” Id. at 554-55. If the district court does find an enhancement appropriate, it “should adjust the attorney’s hourly rate in accordance with specific proof linking the attorney’s ability to a prevailing market rate.” Id. at 555.
Plaintiffs’ counsel achieved excellent results for their clients under extreme time pressure and with very limited resources. Counsel’s lodestar hours do not fully reflect this success because the quality of the work that produced these results is underrepresented in the hourly fee. Plaintiffs uncovered substantial evidence of noncompliance with the Settlement Agreement and long-term knowledge of that noncompliance by high-ranking individuals at CCA. Plaintiffs successfully obtained a contempt finding and meaningful remedies for their clients. Plaintiffs submit affidavits from an attorney with comparable experience to that of Mr. Pevar stating that the attorney’s normal hourly rate is approximately $435/hour. See Sinclair Decl. ¶ 3.
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Plaintiffs also submitted an affidavit from an attorney with less experience than Mr. Pevar stating that the attorney was awarded fees in non-PLRA § 1983 litigation in the same district at a rate of $300/hour. See Wood Decl. ¶ 6. Mr. Eppink’s declaration states that he requested fees in a non-PLRA § 1983 case in the same district based on a $275/hour rate. See Eppink Decl. ¶ 19. Plaintiffs also provide affidavits stating that the PLRA-mandated hourly rate is too low to attract competent counsel to these cases. See Sinclair Decl. ¶ 4; Wood Decl. ¶¶ 2-4. The Court does not find CCA’s argument that the PLRA-mandated hourly rate is the market rate in light of CCA’s counsel’s “blended rate” of $198/hour. It is not clear how a “blended rate” that is otherwise unexplained rebuts evidence directly on point of the market hourly rate for an experienced and competent attorney. The Court therefore finds this evidence unconvincing and tangential, and declines to use it as a basis for measuring either Mr. Eppink’s or Mr. Pevar’s market value as an attorney.
CCA argues that the PLRA’s 150% cap on the base hourly rate is a maximum cap on all fees for this matter, suggesting that no multiplier may be granted. The Court disagrees. Judges in at least one district have enhanced fees despite the PLRA’s limits in order to reasonably compensate counsel. See Ginest v. Bd. of Cnty. Comm'rs of Carbon Cnty., WY, 423 F. Supp. 2d 1237, 1241 (D. Wyo. 2006) (granting a 25% multiplier despite the PLRA’s cap on hourly rate); Skinner v. Uphoff, 324 F. Supp. 2d 1278, 1287 (D. Wyo. 2004) (same). This does not appear to run afoul of the plain language of § 1997e(d), which states only that “[n]o award of attorney’s fees . . . shall be based on an
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hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel.” 42 U.S.C. § 1997e(d)(3) (emphasis added). This suggests not that the average hourly rate of the final fee cannot exceed an overall cap, but rather that the initial lodestar calculation cannot use, or be “based on,” an hourly rate that starts above the PLRA cap. Where a fee award is multiplied upward to account for factors not subsumed in the lodestar calculation, it is still “based on” the initial lodestar fee rate; the fee is increased from that base point to ensure reasonable compensation of counsel in those very narrow circumstances when the lodestar undervalues counsel. To read the statute as setting an absolute maximum arguably eliminates the well-established enhancement framework in § 1988 litigation, a drastic step. The Court therefore finds no basis in the PLRA to categorically deny any enhancement multiplier.
The Court therefore finds a multiplier appropriate to reasonably compensate counsel for extraordinary performance yielding extraordinary results. Plaintiffs have submitted evidence suggesting that Mr. Pevar’s market billing rate is roughly $435/hour, and that Mr. Eppink’s rate is more closely estimated between $300/hour and $275/hour. See United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (“Affidavits of the plaintiff’s attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiff's attorney, are satisfactory evidence of the prevailing market rate.”). The Court accordingly grants a 2.0 multiplier for Mr. Pevar’s hours and a 1.3 multiplier for
Order Regarding Attorneys’ Fees and Costs - 24

Case 1:11-cv-00185-EJL Document 129 Filed 02/20/14 Page 25 of 27
Mr. Eppink’s hours. The Court grants Plaintiffs their fees incurred in briefing the fee request and reply, including the enhancement issue. See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir. 2008).
ii. Risk and Incentives to Obtain Competent Counsel Plaintiffs also argue that a multiplier is appropriate in light of the risk in taking contingent civil rights cases and the need to give other counsel incentives to take similar cases. A district court may enhance a fee award when “payment for attorney’s services is contingent upon success and the attorney bears the risk of nonpayment in case of failure.” Bernardi v. Yeutter, 951 F.2d 971, 975 (9th Cir. 1991) (internal citation and quotation marks omitted). This type of enhancement is appropriate if “two prerequisites” are met: “First, . . . without an adjustment for risk the prevailing party would have faced substantial difficulties in finding counsel in the local or other relevant market,” and, “[s]econd, any enhancement for contingency must reflect the difference in market treatment of contingent fee cases as a class, rather than . . . the riskiness of any particular cases.” Id. (quoting Fadhl v. City and County of San Francisco, 859 F.2d 649, 650 (9th Cir. 1988)) (internal citations and quotation marks omitted).
The Court finds persuasive Plaintiffs’ arguments that this case warrants an enhancement under this theory. Plaintiffs’ counsel submits declarations supporting its assertions that the limited fees available for injunctive and declaratory relief prison lawsuits prevent private attorneys from accepting those cases, as a class. See, e.g., Wood Decl. ¶¶ 2-5; Belodoff Decl. ¶¶ 8-10. Although CCA provides an affidavit stating that
Order Regarding Attorneys’ Fees and Costs - 25

Case 1:11-cv-00185-EJL Document 129 Filed 02/20/14 Page 26 of 27
many lawsuits are filed on behalf of prisoners, it does not specify whether these lawsuits request only injunctive relief. See Struck Decl., Opp’n Ex. A. Plaintiffs’ affidavits state that it is very difficult to find counsel willing to take such cases because the cases are complex, labor-intensive, have a significant risk of non-payment, and are then only compensated at a reduced rate. The Court credits these affidavits, particularly because CCA presents no direct rebuttal. The Court is also unconvinced by CCA’s argument that the no enhancement is warranted because counsel in this action were already counsel of record. Plaintiffs’ affidavits make clear that plaintiffs seeking counsel for injunctive relief lawsuits face significant difficulty in finding such counsel, and that current counsel were likely the only attorneys willing to accept their case. See Gomez v. Gates, 804 F. Supp. 69, 78 (C.D. Cal. 1992). The Court similarly finds CCA’s arguments regarding the PLRA hourly fee cap unconvincing in this context for the reasons stated above.
The Court finds that the multiplier amounts set out in the previous section are sufficient to serve the interests articulated here. This analysis thus serves as an alternate sufficient basis for the same fee enhancement granted above. As discussed above, the Court awards fees for time Plaintiffs’ counsel spent briefing the fees issue, including the multiplier.
Order Regarding Attorneys’ Fees and Costs - 26

Case 1:11-cv-00185-EJL Document 129 Filed 02/20/14 Page 27 of 27

f. Final Calculation Based on the foregoing, the Court awards attorneys’ fees and costs as follows:

Fees (total): Stephen Pevar Richard Eppink Zachary Kohl Jeremy Shafer Ingrid Andrulis Andrew Masser

Hours
584.7 260.1 78.1 19.8
68 8.2

PLRA Rate
$ 213.00 $ 213.00 $ 65.00 $ 65.00 $ 65.00 $ 65.00

Multiplier
2 1.3

New Rate 426 276.9
Total fees:

Total
$ 249,082.20 $ 72,021.69 $ 5,076.50 $ 1,287.00 $ 4,420.00 $ 533.00 $ 332,420.39

Costs: Stephen Pevar Richard Eppink

Total costs:

$ 14,619.45 $ 1,978.68 $ 16,598.13

IV. Disposition

Total Fees and Costs: $ 349,018.52

After considering the totality of the record and the arguments by counsel, the

Court awards Plaintiffs’ counsel $349,018.52 in fees and costs. The Court finds this

award is reasonable and appropriate based on its analysis. Plaintiffs’ Motions (Dkts. 96,

102) are GRANTED.

DATED this 20th day of February, 2014.

_________________________________________ DAVID O. CARTER, United States District Judge for the Central District of California Sitting by Special Designation

Order Regarding Attorneys’ Fees and Costs - 27

 
 979 F.Supp.2d 1237 (2013)
Joshua KELLY, Jose Piña, Andrew Ibarra, Ray Barrios, Randy Enziminger, Michael Miera, Prisoner A, and Prisoner F, Individually
and on behalf of a class of all other persons similarly situated, Plaintiffs, v.
Timothy WENGLER, and Corrections Corporation of America, Inc., Defendants.
Case No. 1:11-CV-185-S-EJL.
United States District Court, D. Idaho.
July 12, 2013. Ordered Unsealed August 16, 2013.
James D. Huegli, Attorney at Law, Lea Candy Cooper, Richard Alan Eppink, ACLU of Idaho, Boise, ID, Stephen L. Pevar, American Civil Liberties Union, Hartford, CT, for Plaintiffs.
Daniel Patrick Struck, Tara B. Zoellner, Timothy J. Bojanowski, Struck, Wieneke & Love, P.L.C., Chandler, AZ, James R. Stoll, Kirtlan G. Naylor, Naylor & Hales, P.C., Boise, ID, Lisa S. Wahlin, Jones Skelton & Hochuli PLC, Gary Harold Burger, Phoenix, AZ, for Defendants.
MEMORANDUM DECISION AND ORDER
(Filed Under Seal)
DAVID O. CARTER, District Judge.
Before the Court is a Motion for a Contempt-Phase Discovery Plan (Dkt. 40, 40, "Motion for Discovery") filed by Plaintiffs, and a Motion for an Order to Show Cause Why Defendants Should not be Held in Contempt (Dkt. 39, "Motion for an OSC"). There is also a separate issue, to be resolved in a later order, about whether the motions and submissions should be unsealed (see Dkt. 50).
I. Introduction
Plaintiffs seeks a hearing and discovery on the issue of whether Defendant Corrections1238*1238 Corporation of America ("CCA") should be held in civil contempt for violating the Settlement Agreement (Dkt. 25, Ex. A). The issue that spurred Plaintiffs' Motions is that CCA admitted its employees falsified staffing records. Plaintiffs contend those actions violate the Settlement Agreement (and thus the Order Granting Dismissal) and that there are likely more staffing violations than what CCA has admitted. CCA contends that contempt proceedings and further discovery are not appropriate because the Settlement Agreement is "not an `order' of this Court. It is a private agreement negotiated by the parties." Ds' Response to Plaintiffs' Motions (Dkt. 51) at 2. After Plaintiffs' filed a Motion to Unseal (Dkt. 50), Defendants filed a Response to Plaintiffs' Supplement (Dkt. 54, "Ds'

Response to Supplement"), and Plaintiffs filed a further response (Dkt. 55). Further, CCA contends that Rule 70(e), which states that a court may hold a party in contempt for disobeying a judgment, cannot be invoked because there has been no violation of a "judgment." Id. Thus, by this argument, Plaintiffs are really arguing for a finding of breach under the Settlement Agreement. Id. CCA then contends that while it did breach the agreement, it has taken steps to investigate and fix its mistakes, and that Plaintiffs' proposal for discovery followed by a hearing is an unnecessary step. See id. at 9.
For the reasons below, and after having reviewed all submissions and exhibits, this Court GRANTS Plaintiffs' Motion for Discovery, and GRANTS the Motion for an OSC. Further factual contentions will be discussed below.
II. Analysis
CCA argues that the Court cannot consider contempt because the "Settlement Agreement is not a consent decree." Ds' Response at 2. This is because the terms were not made part of the Order for Dismissal (Dkt. 26)—either by a provision retaining jurisdiction, or by incorporating the terms of the settlement agreement in the Order for Dismissal. Ds' Response to Supplement at 3 (citing Kokkonen v. Guardian Life Ins., Co.,511 U.S. 375, 381, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)).
To understand why the Court rejects CCA's position, the Court will first discuss Kokkonen, then put the Settlement Agreement in context, and then discuss consent decrees and the Prison Litigation Reform Act.
a. Kokkonen
In Kokkonen, the parties (Kokkonen and Guardian Life Insurance) settled a civil, diversityjurisdiction case during trial. They put their agreement on the record and filed a stipulation and order of dismissal with prejudice. Id. at 376-77, 114 S.Ct. 1673. The judge signed the stipulation and order with the notation "It is so ordered." Id. at 377, 114 S.Ct. 1673.
Later, the parties disagreed about whether Kokkonen was complying with the agreement. Id. Guardian Life Insurance moved to enforce the agreement, and Kokkonen opposed and argued that the court had no subject-matter jurisdiction. The Supreme Court considered whether the district court had jurisdiction to enforce the settlement agreement under an inherent supervisory power. Id. One purpose of the doctrine of ancillary jurisdiction is to allow a court to manage its proceedings, "vindicate its authority, and effectuate its decrees." Id. at 380, 114 S.Ct. 1673 (citing, among other cases, Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)). The Supreme Court held that the district court did not have jurisdiction over the motion to enforce the settlement agreement because the only order 1239*1239 at issue in the case was simply to dismiss the case. Id.
If parties "wish to provide for the court's enforcement of a dismissal-producing settlement agreement, they can seek to do so," the Supreme Court noted. Id. at 381, 114 S.Ct. 1673. If the dismissal is pursuant to Federal Rule of Civil Procedure 41(a)(2), which requires dismissal upon "such terms and conditions as the court deems proper," the court could (1) make compliance with the settlement part of the terms of dismissal in the order, or (2) make "`retention of jurisdiction' over the settlement contract" one of the terms of the dismissal order. Id. Either option "has the same effect." See id. at 382, 114 S.Ct. 1673. Even if the

settlement is by Rule 41(a)(1)(ii), which allows dismissal without court order when the stipulation is signed by all parties who have appeared, "we think the court is authorized to embody the settlement contract in its dismissal order (or, what has the same effect, retain jurisdiction over the settlement contract) if the parties agree." Id. at 381-82, 114 S.Ct. 1673. But in Kokkonen, there was no such attempt to reserve jurisdiction or embody the settlement contract in the dismissal order: "indeed, it did not so much as refer to the settlement agreement." Id. at 377, 114 S.Ct. 1673.
b. The three-step sequence of Settlement Agreement, Stipulation of Dismissal, and Order for Dismissal
Kokkonen examined whether a court continues to have jurisdiction to hear a claim that a settlement was breached. However, CCA does not argue that this court lacks jurisdiction. Rather, CCA cites Kokkonen to show that the nature of the agreement is a private settlement, rather than a consent decree. See Ds' Response at 2.[1]
The Settlement Agreement is a somewhat unusual arrangement. Judge Edward J. Lodge, of the District of Idaho, referred settlement negotiations in this case to this Court, which sits in Idaho by special designation (see Dkts. 16, 27). After days and evenings of negotiation in September 2011, the parties came to an agreement that addressed Plaintiffs' allegations of constitutional violations stemming from inmate-on-inmate assaults at the Idaho Correctional Center ("ICC"). Settlement Agreement ¶ 1. By the terms of the Settlement Agreement, "In the event of non-compliance," the parties can seek relief by (A) exchanging letters and meeting and conferring; (B) meeting with the Alternative Dispute Resolution Coordinator; and then, (C), they "shall submit the dispute to the Honorable David O. Carter, who shall have authority to enforce the terms of this agreement in his capacity as a Federal District Court Judge." Id. ¶ 15, (A)-(C). All parties in this case signed the Settlement Agreement, as did this Court (Judge Carter).
Having thus characterized this Court's capacity to enforce the agreement (not merely as an arbitrator, but as "a Federal District Court Judge"), the parties filed a Stipulation of Dismissal.
In that Stipulation of Dismissal, the parties stipulated and "agree[d] that an order shall be entered dismissing this case with prejudice, pursuant to the Settlement Agreement attached as Exhibit A, which is hereby incorporated by the Court." Stip. of Dismissal (Dkt. 25) at 1 (emphasis omitted). 1240*1240 Note that an order of dismissal would not be necessary under Rule 41(a)(1)(ii). But, as the Court in Kokkonen noted, even in that circumstance, "the court is authorized to embody the settlement contract in its dismissal order (or, what has the same effect, retain jurisdiction over the settlement contract) if the parties agree." 511 U.S. at 38182, 114 S.Ct. 1673. The same day, Judge Lodge issued an Order for Dismissal (Dkt. 26). The Order for Dismissal ordered that the case was "dismissed with prejudice pursuant to the Stipulation of Dismissal, which is hereby incorporated by the Court." Order for Dismissal at 1.
So, going in order:
• The parties reached a Settlement Agreement by which they agreed on this Court's capacity to enforce the agreement "in his capacity as a Federal District Court Judge"); • In the next step, the parties' Stipulation of Dismissal, they made clear that

• They were agreeing that the Court would dismiss the case "pursuant to" the Settlement Agreement, and • They were agreeing that the Settlement Agreement, which they attached, would be "incorporated by the Court" in its Order. See Stip. Of Dismissal at 1. • The Court (Judge Lodge) ordered dismissal with prejudice "pursuant to the Stipulation of Dismissal," and that the Stipulation of Dismissal was "hereby incorporated by this Court." Order for Dismissal at 1.
Given the summary above, CCA's arguments are not persuasive. CCA argues that Judge Lodge did not "approve the terms of the Settlement Agreement; he merely signed the Order for Dismissal. Although this Court [Judge Carter] signed the Settlement Agreement," a "judge's mere awareness and approval of the terms of the settlement agreement do not suffice to make them part of his order." Ds' Response to Supplement at 3 (citing Kokkonen, 511 U.S. at 381, 114 S.Ct. 1673).
Here, the involvement of the Court goes beyond "mere awareness and approval" of a settlement through a later order. The involvement of the Court (Judge Carter) was bargained for by the parties in Paragraph 15; the Court (Judge Carter) signed the Settlement Agreement; the parties, although not needing judicial authority to settle, seeFed.R.Civ.P. 41(a)(1)(ii), agreed to terms of dismissal that included dismissal "pursuant to" the Agreement, with the Agreement attached and "incorporated by the Court." Stip. of Dismissal at 1. Judge Lodge's Order for Dismissal then incorporated the Stipulation of Dismissal. This creates a clear chain by which the Settlement Agreement is part of the Court's Order for Dismissal.
CCA's argument that "Although the Settlement Agreement was attached to the Stipulation for Dismissal by the parties, the Order for Dismissal does not expressly incorporate its terms," Ds' Response to Supplement at 3 n. 3, makes too much of "terms" as a magic word. Kokkonen offered examples of how a court can "embody the settlement contract in its dismissal order," 511 U.S. at 381, 114 S.Ct. 1673. This could be done by "separate provision (such as a provision `retaining jurisdiction' over the settlement agreement)," or by incorporating "the terms of the settlement agreement in the order." Here, the parties did both: they put a provision in the Settlement Agreement to retain the authority of the Court (Judge Carter) to adjudicate disputes, and they kept the Settlement Agreement as a filed court document, which they agreed to have the Court (Judge Lodge) incorporate into the Order for Dismissal.
1241*1241 CCA also cites a decision by Judge Lodge in Riggs v. CCA, 1:09-cv-0010-EJL, a case originally part of Kelly until the class action allegations were severed. In ruling about whether to unseal the settlement agreement (Dkt. 214, "Riggs Order"), Judge Lodge noted that this Court mediated the settlement, but that the parties did not need the Court (Judge Carter) to approve it. This is consistent with Rule 41(a)(1)(ii), and the discussion above that the parties can choose to have a court retain jurisdiction, and can choose to make their settlement part of a court's order for dismissal. The parties in that case made such a choice—the parties in Riggs did not, see Riggs Order at 2—and what matters is the agreement that resolved the case, not the character of the initial assignment of the judge to help mediate settlement.
i. Reasons this Court can order discovery and hold a hearing

Thus, there are two reasons that this Court has the power to order discovery and to hold hearings. First, simply by the terms of the settlement, Judge Carter has the authority of a District Court Judge to resolve disputes. This authority would reasonably include discovery where necessary, and argument as needed to resolve whether the settlement has been breached. Indeed, CCA concedes as much with their proposal to produce witnesses to explain to the Court the steps it has taken to remedy the violation of the Settlement Agreement. See Ds' Response at 9.
Second, based on the discussion in subsection b, it is clear that compliance with the Settlement Agreement is part of the Order for Dismissal. Thus, separately the Court can hear a Motion for Contempt and order discovery related to that issue. See California Dep't of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1033 (9th Cir.2008).
c. PLRA and Consent Decrees
The parties stipulated that the terms of their agreement "extend no further than necessary to satisfy the requirements of 18 U.S.C. § 3626(a)(1)(A)." Settlement Agreement ¶ 1. The statutory reference is to part of the Prison Litigation Reform Act (the "PLRA").[2] The PLRA "outlines appropriate remedies in civil litigation regarding prison conditions." Hines v. Anderson, 547 F.3d 915, 917 (8th Cir.2008) (citing 18 U.S.C. § 3626). Thus, the parties invoked the framework of, and compliance with, the PLRA in defining their agreement.
It would thus seem logical to turn to the PLRA and related cases as an informative backdrop for whether this is a consent decree. The Ninth Circuit has said in this context that "the key distinction between a private settlement and a consent judgment" is that "courts are bound to enforce the terms" of consent decrees. Gilmore v. People of the State of California, 220 F.3d 987, 995 (9th Cir.2000). The Second Circuit, sitting en banc, has noted that an agreement leading to a consent decree usually sets out "actions and forbearances to which the defendant agrees," and then conditions the settlement "on being so-ordered by the court." Benjamin v. Jacobson, 1242*1242 172 F.3d 144, 157 (2d Cir.1999). Here the parties could have reached agreement without court involvement, but instead agreed to an arrangement by which Defendant agreed to take certain steps, with authority vested in the Court to enforce those promises. They then asked the Court to end the case, pursuant to their agreement to incorporate the Settlement Agreement.
The Second Circuit further noted that, according to the PLRA, settlements and private agreements are mutually exclusive:
A consent decree is defined as relief "entered by the court," 18 U.S.C. § 3626(g)(1), and it is well established that a federal court ordinarily has the power to enforce its own orders and judgments, see, e.g., Peacock v. Thomas, 516 U.S. 349, 356-57, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996); Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). A private settlement agreement, in contrast, is defined as relief that is "not subject to judicial enforcement." 18 U.S.C. § 3626(g)(6).
Benjamin, 172 F.3d at 157 (parallel citations omitted). This distinction, and the Settlement Agreement's invocation of the PLRA, appears to further support finding that contempt is an appropriate way for this Court to enforce the promises CCA made. However, because the Parties did not discuss this aspect in their briefing, the Court goes no farther than to outline this issue as further support.

III. Appropriateness of further discovery and contempt proceedings
CCA admits "mandatory posts were not staffed for 4,778 hours during a seven[]-month period in 2012." Ds' Response at 8. But it contends it has fixed the isolated problems caused by a few employees, and "[t]he only thing that Plaintiff's' proposed discovery may reveal is more undocumented hours in the past." Id. Such discovery "is not helpful to enforce the Settlement Agreement prospectively." Id. at 9.
It is a mystery why CCA believes it does not have to fully account for past actions that violate the Settlement Agreement (and the Court's Order incorporating that Agreement). CCA admits that employees falsified shift rosters, and states that their review of records "focused on staffing during the night shift." Id. at 5. CCA does not say its investigation looked at staffing at other times—indeed, it states that it "has never represented that the reported number of undocumented hours was anything more than" the falsified hours it found from reviewing the night shift. See id. at 8.
Plaintiffs have brought forth affidavits from two current CCA employees and one former employee, all alleging more unfilled posts than CCA has admitted to. Upon review of those affidavits (Dkts. 41-43), the Court notes that the allegations appear to be verifiable if Plaintiffs can depose CCA witnesses and examine CCA records. For example, if CCA counted employees with little security training as having manned watch posts, records could show this. If employees were listed on more than one post, or listed as on duty when they were elsewhere, this should be provable. Given CCA's admissions, Plaintiffs must have a fair opportunity to examine whether there are more violations. Only then can the Court decide on the appropriate remedy.
IV. Conclusion
For the above reasons, Plaintiff's Motion for Discovery and Motion for an OSC are both GRANTED. The Court orders Defendants to show cause why they should not be found in breach of the Settlement Agreement, and/or in contempt of the 1243*1243 Court's Order for Dismissal that incorporated the Settlement Agreement.
A hearing on this matter is set for August 7, 2013, and continuing to August 8 if necessary, beginning at 8:30 a.m., 6th Floor, Courtroom #1, of the James A. McClure Federal Building and U.S. Courthouse, in Boise, Idaho. Because the hearing dates approach quickly, Plaintiffs Motion for Discovery is GRANTED to the extent that the Court will approve the depositions and number of interrogatories Plaintiffs propose, but the deadlines must be revised. Plaintiffs and Defendants are thus ordered to confer and file a joint status report by Tuesday, July 16, 2013, that sets out their plans to complete discovery in time for the hearing.
[1] Admittedly whether compliance is part of a court's order, thus leading to jurisdiction, has some overlap to whether the resolution amounts to a consent decree. Nonetheless, Kokkonen's holding dealt only with jurisdiction, and thus is not the best source for answers about the distinction between consent decrees and private settlements. See subsection c, infra.
[2] The cited section, titled "Prospective relief," states that such "relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least

intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief."
	  

 
 Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 1 of 20
LC6,RFSETL,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.1 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:11−cv−00185−EJL

Kelly et al v. Wengler et al Assigned to: Judge Edward J. Lodge Referred to: Judge David O. Carter (Settlement) related Cases: 1:09−cv−00010−EJL
1:11−cv−00225−CWD Case in other court: 9CCA, 13−35972
9CCA, 14−35199 Cause: 42:1983 Prisoner Civil Rights Plaintiff
Joshua Kelly

Date Filed: 04/27/2011 Date Terminated: 09/20/2011 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Richard Alan Eppink American Civil Liberties Union of Idaho Foundation P.O. Box 1897 Boise, ID 83701 208−344−9750 ext. 1202 Fax: 208−344−7201 Email: reppink@acluidaho.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli Attorney at Law 1770 West State #267 Boise, ID 83702 208−631−2947 Email: jameshuegli@yahoo.com ATTORNEY TO BE NOTICED

Lea Candy Cooper ACLU of Idaho P.O. Box 1897 Boise, ID 83701 (208) 344−9750 Fax: (208) 433−9271 Email: lcooper@acluidaho.org TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Stephen L Pevar AMERICAN CIVIL LIBERTIES UNION 330 Main St., First Floor Hartford, CT 06106 860−570−9830 Fax: 860−570−9840 Email: Pevaraclu@aol.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jose Pina

represented by Richard Alan Eppink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli (See above for address)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 2 of 20

ATTORNEY TO BE NOTICED

Lea Candy Cooper (See above for address) TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Stephen L Pevar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Andrew Ibarra

represented by Richard Alan Eppink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli (See above for address) ATTORNEY TO BE NOTICED

Lea Candy Cooper (See above for address) TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Stephen L Pevar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ray Barrios

represented by Richard Alan Eppink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli (See above for address) ATTORNEY TO BE NOTICED

Lea Candy Cooper (See above for address) TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Stephen L Pevar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Randy Enzminger

represented by Richard Alan Eppink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli (See above for address) ATTORNEY TO BE NOTICED

Lea Candy Cooper

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 3 of 20

(See above for address) TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Stephen L Pevar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Michael Miera

represented by Richard Alan Eppink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli (See above for address) ATTORNEY TO BE NOTICED

Lea Candy Cooper (See above for address) TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Stephen L Pevar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Prisoner A

represented by Richard Alan Eppink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli (See above for address) ATTORNEY TO BE NOTICED

Lea Candy Cooper (See above for address) TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Stephen L Pevar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Prisoner F

represented by Richard Alan Eppink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Huegli (See above for address) ATTORNEY TO BE NOTICED

Lea Candy Cooper (See above for address) TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 4 of 20

Stephen L Pevar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Timothy Wengler

represented by Daniel Patrick Struck Struck, Wieneke & Love, PLC 3100 W. Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 420−1696 Email: dstruck@swlfirm.com PRO HAC VICE ATTORNEY TO BE NOTICED
Gary Harold Burger JONES SKELTON & HOCHULI PLC North Central Avenue #800 Phoenix, AZ 85012 602−291−4805 PRO HAC VICE
James R. Stoll Office of Attorney General 2270 Old Penitentiary Road Boise, ID 83712 208−332−8509 Email: james.stoll@isda.idaho.gov TERMINATED: 12/11/2013
Joseph J Popolizio Jones Skelton & Hochuli PLC 2901 North Central Avenue, Suite 800 Phoenix, AZ 85012 602−263−1741 Email: jpopolizio@jshfirm.com TERMINATED: 07/06/2011 PRO HAC VICE
Kirtlan G Naylor NAYLOR & HALES 950 W Bannock Ste 610 Boise, ID 83702 (208) 383−9511 Email: kirt@naylorhales.com ATTORNEY TO BE NOTICED
Lisa S Wahlin Jones Skelton & Hochuli PLC 2901 N Central Ave, Suite 800 Phoenix, AZ 85012 602−263−7323 Fax: 602−200−7811 Email: lwahlin@gbmlawpc.com TERMINATED: 04/27/2011 PRO HAC VICE
Tara B Zoellner Struck, Wieneke & Love, P.L.C.

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 5 of 20

3100 West Ray Road, Suite 300 Chandler, AZ 85226 480−420−1600 Fax: 480−420−1695 Email: tzoellner@swlfirm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy J Bojanowski Struck, Wieneke & Love, P.L.C. 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 480−420−1604 Fax: 480−420−1693 Email: tbojanowski@swlfirm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Corrections Corporation of America, Inc

represented by Daniel Patrick Struck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gary Harold Burger (See above for address) PRO HAC VICE

James R. Stoll (See above for address) TERMINATED: 12/11/2013

Joseph J Popolizio (See above for address) TERMINATED: 07/06/2011 PRO HAC VICE

Kirtlan G Naylor (See above for address) ATTORNEY TO BE NOTICED

Lisa S Wahlin (See above for address) TERMINATED: 04/27/2011 PRO HAC VICE

Tara B Zoellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy J Bojanowski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Interpleader Associated Press, The

represented by Charles A Brown PO Box 1225 Lewiston, ID 83501 (208) 746−9947 Fax: 1−208−746−5886 Email: CharlesABrown@cableone.net

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 6 of 20
David A Schulz Levine Sullivan Koch & Schulz, LLP 321 West 44th St, Suite 510 New York, NY 10036 212−850−6103 Email: dschulz@lskslaw.com PRO HAC VICE
Steven D Zansberg Levine Sullivan Koch & Schulz, LLP 1888 Sherman St, Suite 370 Denver, CO 80203 303−376−2409 Email: szansberg@lskslaw.com PRO HAC VICE

Date Filed 04/27/2011 04/27/2011 05/04/2011
05/04/2011
05/16/2011 05/16/2011 05/16/2011 05/18/2011 05/18/2011

# Docket Text
1 AMENDED CLASS ACTION COMPLAINT TO DECLARATORY AND INJUNCTIVE RELIEF against Corrections Corporation of America, Inc, Timothy Wengler, filed by Prisoner A, Michael Miera, Andrew Ibarra, Randy Enzminger, Joshua Kelly, Ray Barrios, Prisoner F, Jose Pina.(dks)
2 MEMORANDUM ORDER (Docketed in CV 09−10−S−EJL and also ordered to place in new CV 11−185−S−EJL). Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
3 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler of Filing Redacted Exhibit C to Defendants' Response to Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment, and Related Errata (Attachments: # 1 Affidavit of Melodee Armfield (redacted), # 2 Exhibit to Melodee Armfield Affidavit (Part I of IV Parts), # 3 Exhibit Melodee Armfield Affidavit (Part II of IV Parts), # 4 Exhibit Melodee Armfield Affidavit (Part III of IV Parts), # 5 Exhibit Melodee Armfield Affidavit (Part IV of IV Parts))(Zoellner, Tara)
4 AMENDED DOCUMENT by Corrections Corporation of America, Inc, Timothy Wengler. Notice of Filing Redacted Exhibit C to Defendants' Response to Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment, and Related Errata. (Attachments: # 1 Exhibit Notice of Errata, # 2 Affidavit of Melodee Armfield (Redacted), # 3 Exhibit to Melodee Armfield Affidavit (Part I of IV Parts), # 4 Exhibit to Melodee Armfield Affidavit (Part II of IV Parts), # 5 Exhibit to Melodee Armfield Affidavit (Part IIII of IV Parts), # 6 Exhibit to Melodee Armfield Affidavit (Part IV of IV Parts))(Struck, Daniel)
5 MOTION to Dismiss Plaintiffs Miera and "Inmate F" Daniel Patrick Struck appearing for Defendants Corrections Corporation of America, Inc, Timothy Wengler. Responses due by 6/9/2011 (Struck, Daniel)
6 MEMORANDUM in Support re 5 MOTION to Dismiss Plaintiffs Miera and "Inmate F" filed by Corrections Corporation of America, Inc, Timothy Wengler. (Attachments: # 1 Exhibit Affidavit of Chester Penn with Attachment A)(Struck, Daniel)
7 ANSWER to 1 Complaint, Complaint Plaintiffs' Amended Class Action Complaint for Declaratory and Injunctive Relief by Corrections Corporation of America, Inc, Timothy Wengler.(Struck, Daniel)
8 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Ray Barrios, Corrections Corporation of America, Inc, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F, Timothy Wengler re 7 Answer to Complaint, 1 Complaint, Consent/Objection to Magistrate due by 7/21/2011. (jm)
9 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Corrections Corporation of America, Inc, Timothy Wengler. (Struck, Daniel)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 7 of 20

05/24/2011 05/24/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/13/2011
06/13/2011 06/16/2011 06/28/2011 07/05/2011
07/06/2011 07/13/2011
07/18/2011

10 RESPONSE to Motion re 5 MOTION to Dismiss Plaintiffs Miera and "Inmate F" filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A. Replies due by 6/10/2011. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Pevar, Stephen)
11 SCHEDULING ORDER−Amended Pleadings due by 6/15/2011. Discovery due by 1/15/2012. Joinder of Parties due by 6/15/2011. Motions due by 2/13/2012.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
12 MOTION to Certify Class Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 7/5/2011 (Pevar, Stephen)
13 MEMORANDUM in Support re 12 MOTION to Certify Class filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Errata)(Pevar, Stephen)
14 Sealed Document Re: 13 Memorandum in Support of Motion, Memorandum in Support of Motion. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Pevar, Stephen)
15 REPLY to Response to Motion re 5 MOTION to Dismiss Plaintiffs Miera and "Inmate F" filed by Corrections Corporation of America, Inc, Timothy Wengler. (Attachments: # 1 Exhibit)(Zoellner, Tara)
16 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT this matter shall be referred to The Honorable David O. Carter, United States District Judge for the Central District of California, for the purpose of conducting a settlement conference. Local Rule 16.4. A telephone status conference shall be held with counsel and Judge Carter on Thursday, June 23, 2011 at 3:30 p.m. (Mountain time), which is 2:30 p.m. (Pacific time) to discuss potential dates for the settlement conference in this case, and also in Riggs v. Rodriguez (CV−09−10−S−EJL). The parties shall use the following call−in information: Phone Number (816) 650−0725, with the Prompt Code as 5443366. Counsel may contact Susie Headlee, the ADR Director, at (208) 334−9067 if they have questions. Signed by Judge Edward J. Lodge. (sbh)
Set/Reset Hearings: Telephonic Scheduling Conference set for 6/23/2011 03:30 PM in Other before Judge David O. Carter. (dks) (Entered: 06/14/2011)
17 NOTICE of Change of Address by Daniel Patrick Struck (Struck, Daniel)
18 MOTION to Withdraw as Attorney (Joseph J. Popolizio) Tara B Zoellner appearing for Defendants Corrections Corporation of America, Inc, Timothy Wengler. Responses due by 7/22/2011 (Zoellner, Tara)
19 MOTION to Stay Class Certification Briefing Daniel Patrick Struck appearing for Defendants Corrections Corporation of America, Inc, Timothy Wengler. Responses due by 7/29/2011 (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion to Stay Class Certification Briefing (Dkt. #19), # 2 Exhibit A through D)(Struck, Daniel)
20 ORDER granting 18 Motion to Withdraw as Attorney. Attorney Joseph J Popolizio terminated for dfts, Corrections Corporation of America and Wengler. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
21 ORDER SETTING SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE QUESTIONNAIRE, ( Settlement Conference set for 9/13/2011 through 9/15/2011 08:30 AM in Boise − Courtroom 1 before Judge David O. Carter.). Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks) (Entered: 07/14/2011)
22 STIPULATION re 19 MOTION to Stay Class Certification Briefing by Corrections Corporation of America, Inc, Timothy Wengler. (Zoellner, Tara)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 8 of 20

07/19/2011
07/22/2011 09/02/2011
09/15/2011 09/20/2011 09/20/2011 12/16/2011 12/26/2011 01/04/2012 01/23/2012 05/25/2012
08/08/2012 08/17/2012 11/16/2012 02/21/2013 03/01/2013

23 ORDER adopting 22 Stipulation filed by Timothy Wengler, Corrections Corporation of America, Inc; Defendants response to Plaintiffs Motion for Class Certification is due no later than 60 days from the date the Court rules on Defendants Motion to Dismiss, Finding as moot: 19 MOTION to Stay Class Certification Briefing filed by Timothy Wengler, Corrections Corporation of America, Inc.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
The 60 day deadline has expired. Case will remain with District Judge. No more notice of availability will be sent out. (cjm)
24 ORDER to Transport ; IDOC to take appropriate measures to transport Andrew Ibarra, Joshua Kelly and Michael Miera to Courtroom #1, 6th Floor, 550 W Fort St., Boise, ID on 9/13/11 − 9/15/11 beginning at 8:30 a.m. (Notice sent to USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
27 Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 9/15/2011, Sealed Document. (so) (Main Document 27 replaced on 3/25/2014 to correct case number) (so). (Entered: 09/21/2011)
25 STIPULATION of Dismissal w/Exhibit A by Corrections Corporation of America, Inc, Timothy Wengler. (Naylor, Kirtlan)
26 ORDER granting 25 Stipulation of Dismissal with prejudice filed by Timothy Wengler, Corrections Corporation of America, Inc. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
28 MINUTE ORDER. (sealed) Signed by Judge David O. Carter. (jm)
29 MOTION to Alter Judgment Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A. Responses due by 1/20/2012 (Pevar, Stephen)
30 RESPONSE to Motion re 29 MOTION to Alter Judgment filed by Corrections Corporation of America, Inc, Timothy Wengler. Replies due by 1/23/2012.(Naylor, Kirtlan)
31 REPLY to Response to Motion re 29 MOTION to Alter Judgment filed by Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A.(Pevar, Stephen)
32 NOTICE of Substitution − Attorney Richard Alan Eppink for Ray Barrios,Richard Alan Eppink for Randy Enzminger,Richard Alan Eppink for Andrew Ibarra,Richard Alan Eppink for Joshua Kelly,Richard Alan Eppink for Michael Miera,Richard Alan Eppink for Jose Pina,Richard Alan Eppink for Prisoner A,Richard Alan Eppink for Prisoner F added. Attorney Lea Candy Cooper terminated. (Eppink, Richard)
33 ORDER denying 29 Plaintiffs' Motion to Alter or amend. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)
34 RETURN MAIL undelivered as to Gary Harold Burger re: 33 Order on Motion to Alter Judgment (dks)
35 MINUTE ORDER. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
36 STIPULATION by Ray Barrios, Corrections Corporation of America, Inc, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F, Timothy Wengler. (Naylor, Kirtlan)
37 STIPULATION Re: Addendum to Release Agreement by Ray Barrios, Corrections Corporation of America, Inc, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Timothy Wengler. (Attachments: # 1 Exh. A−Addendum to Release Agmt.)(Naylor, Kirtlan)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 9 of 20

03/01/2013
06/11/2013 06/11/2013 06/11/2013 06/11/2013 06/11/2013 06/12/2013 06/13/2013 06/14/2013 06/20/2013 06/20/2013 06/21/2013 06/21/2013
06/21/2013 06/24/2013
06/24/2013
06/24/2013 06/25/2013

38 ORDER re 37 Stipulation, filed by Randy Enzminger, Jose Pina, Michael Miera, Timothy Wengler, Ray Barrios, Joshua Kelly, Andrew Ibarra, Corrections Corporation of America, Inc, 36 Stipulation filed by Michael Miera, Timothy Wengler, Ray Barrios, Joshua Kelly, Andrew Ibarra, Randy Enzminger, Prisoner A, Jose Pina, Prisoner F, Corrections Corporation of America, Inc. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
39 First SEALED MOTION Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 7/5/2013 (Pevar, Stephen)
40 Second SEALED MOTION Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 7/5/2013 (Pevar, Stephen)
41 Sealed Document Re: 39 First SEALED MOTION Affidavit A in Support of First Sealed Motion. (Eppink, Richard)
42 Sealed Document Re: 39 First SEALED MOTION Affidavit B in Support of First Sealed Motion. (Eppink, Richard)
43 Sealed Document Re: 39 First SEALED MOTION Affidavit C in Support of First Sealed Motion. (Eppink, Richard)
44 ORDER (sealed) Re: 40 Second SEALED MOTION , 39 First SEALED MOTION . Signed by Judge Edward J. Lodge. ((krb)
45 ORDER. Re: 40 Second SEALED MOTION Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb) (Entered: 06/14/2013)
Reset Deadlines as to 40 Second SEALED MOTION . Responses due by 6/21/2013 (krb)
46 Sealed Document Re: 40 Second SEALED MOTION , 39 First SEALED MOTION . (Naylor, Kirtlan)
47 Sealed Document Re: 46 Sealed Document . (Eppink, Richard)
48 Sealed Document Re: 40 Second SEALED MOTION , 39 First SEALED MOTION . (Attachments: # 1 Appendix)(Eppink, Richard)
49 ORDER re 40 Second SEALED MOTION filed by Michael Miera, Ray Barrios, Joshua Kelly, Andrew Ibarra, Randy Enzminger, Prisoner A, Jose Pina, Prisoner F, 39 First SEALED MOTION filed by Michael Miera, Ray Barrios, Joshua Kelly, Andrew Ibarra, Prisoner A, Randy Enzminger, Jose Pina, Prisoner F. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
Set/Reset Deadlines as to 40 Second SEALED MOTION , 39 First SEALED MOTION . Responses due by 6/24/2013 (krb)
50 SEALED MOTION Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 7/18/2013 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Pevar, Stephen)
51 SEALED RESPONSE to Motion re 40 Second SEALED MOTION , 39 First SEALED MOTION filed by Corrections Corporation of America, Inc, Timothy Wengler. Replies due by 7/11/2013. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Struck, Daniel)
52 Sealed Document Re: 45 Order, Document Sealed Defendants' Briefing Re: Sealed Pleadings. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Struck, Daniel)
53 Sealed Document Re: 50 SEALED MOTION . (Attachments: # 1 Exhibit, # 2 Exhibit)(Eppink, Richard)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 10 of 20

06/26/2013 06/27/2013 07/12/2013 07/16/2013
07/16/2013 07/16/2013 07/31/2013
07/31/2013 08/06/2013
08/07/2013 08/07/2013 08/08/2013 08/08/2013 08/12/2013

54 SEALED RESPONSE to Motion re 39 First SEALED MOTION , 50 SEALED MOTION filed by Corrections Corporation of America, Inc, Timothy Wengler. Replies due by 7/15/2013. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Struck, Daniel)
55 SEALED RESPONSE to Motion re 50 SEALED MOTION , 39 First SEALED MOTION filed by Ray Barrios, Corrections Corporation of America, Inc, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina. Replies due by 7/15/2013.(Pevar, Stephen)
56 SEALED ORDER re 39 First SEALED MOTION; 40 Second SEALED MOTION . Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm) Modified on 10/28/2013 to reflect Order unsealed per Order 68 entered 8/16/2013 (cjm).
57 ORDER OF TRANSPORT; IDOC to take appropriate measures to transport Michael Miera #91654 (ICC), Andrew Ibarra #40889 (IMSI), and Joshua Kelly #63736 (IMSI) to Boise, Courtroom #1 on 8/7/2013 beginning at 8:00 a.m. The Clerk of Court shall provide notice to the applicable IDOC staff (Notice sent to USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
CERTIFICATE OF SERVICE by Clerk of Court of emailing 57 Order of Transport to jcash@idoc.idaho.gov, vbates@idoc.idaho.gov, sthompso@idoc.idaho.gov. (cjm)
58 Sealed Document . (Eppink, Richard)
59 DOCKET ENTRY ORDER − Dockets 39−56 and 58 are currently under seal. The Court anticipates unsealing those documents, with very limited redactions supported by specific concerns. The parties should submit by e−mail to ADR Coordinator Susie Boring−Headlee any limited redactions that they propose to those documents. Such proposed redactions shall be due by Thursday, August 1, 2013, 7:00 p.m. (Mountain Standard Time). Signed by Judge David O. Carter (sbh).
60 ORDER ON MOTION TO UNSEAL granting 50 Sealed Motion. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb) (Entered: 08/01/2013)
61 ORDER UNSEALING DOCKETS 44 THROUGH 50, 53 THROUGH 55, AND 58 re 48 Sealed Document, 58 Sealed Document, 46 Sealed Document, 53 Sealed Document, 47 Sealed Document, 44 Sealed Document, 54 Sealed Response to Motion, filed by Timothy Wengler, Corrections Corporation of America, Inc, 45 Order, Document Sealed, 49 Order, Sealed Order,, 50 SEALED MOTION filed by Michael Miera, Ray Barrios, Joshua Kelly, Andrew Ibarra, Randy Enzminger, Prisoner A, Jose Pina, Prisoner F, 55 Sealed Response to Motion, filed by Michael Miera, Ray Barrios, Joshua Kelly, Andrew Ibarra, Randy Enzminger, Jose Pina, Corrections Corporation of America, Inc. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
Set/Reset Hearings: Show Cause Hearing Continued to 8/8/2013 08:00 AM in Boise − Courtroom 1 before Judge David O. Carter. (so) (Entered: 08/08/2013)
63 Minute Entry for proceedings held before Judge David O. Carter: Show Cause Hearing held on 8/7/2013, ( Show Cause Hearing set for 8/8/2013 08:00 AM in Boise − Courtroom 1 before Judge David O. Carter.). (Court Reporter/ESR Christina Rhodes.) (krb) (Entered: 08/09/2013)
62 MEMORANDUM/BRIEF filed by Corrections Corporation of America, Inc, Timothy Wengler − Defendants' Hearing Brief. (Struck, Daniel)
64 Minute Entry for proceedings held before Judge David O. Carter: Show Cause Hearing held on 8/8/2013. (Court Reporter/ESR Christine Rhodes.) (krb) (Entered: 08/09/2013)
65 TRIAL BRIEF by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Pevar, Stephen)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 11 of 20

08/14/2013 08/14/2013 08/16/2013
08/16/2013 08/16/2013 08/16/2013 08/16/2013 08/16/2013 09/12/2013 09/13/2013
09/16/2013 09/23/2013 09/25/2013 09/26/2013 09/26/2013

66 SUPPLEMENT by Defendants Corrections Corporation of America, Inc, Timothy Wengler re 62 Memorandum/Brief (generic) . (Attachments: # 1 Exhibit Deposition Excerpts)(Struck, Daniel)
67 TRIAL BRIEF Plaintiffs' Response to Defendants' Supplemental Hearing Brief by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. (Eppink, Richard)
68 ORDER RESOLVING REMAINING ISSUES ON SEALED DOCUMENTS The documents at Dockets 39, 40, 51−2 (meaning only Exhibit 2 to Docket 51), 51−3 (only Ex. 3) 56, are unsealed with no redactions. The documents at Dockets 41−43, 51 (main document), and 51−1 (only Ex. 1) are unsealed with limited redactions performed by the Court. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
69 REDACTION to 41 Sealed Document by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. (Per Order Docket 68) (jp)
70 REDACTION to 42 Sealed Document by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. (as per Order dkt 68) (jp)
71 REDACTION to 43 Sealed Document by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. (Per Order dkt 68) (jp)
72 REDACTION to 51 Sealed Response to Motion, by Corrections Corporation of America, Inc, Timothy Wengler. (Per Order dkt 68)(jp)
73 REDACTION to 51 −1 Exhibit 1, by Corrections Corporation of America, Inc, Timothy Wengler. ( Per Order dkt 68)(jp)
74 MOTION to Expedite and Motion to Temporarily Extend Deadline Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 10/7/2013 (Pevar, Stephen)
75 ORDER TEMPORARILY EXTENDING SETTLEMENT AGREEMENT granting 74 Motion to Expedite. The Courts considers the Motion on an expedited basis, and the Settlement Agreement is extended for a period of 15 days. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
76 MEMORANDUM DECISION AND ORDER re 75 Order on Motion to Expedite,. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
77 MOTION to Clarify [Dkt. 76] Daniel Patrick Struck appearing for Defendants Corrections Corporation of America, Inc, Timothy Wengler. Responses due by 10/18/2013 (Struck, Daniel)
78 MOTION for Extension of Time to File Motion For Attorney Fees Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 10/21/2013 (Pevar, Stephen)
79 ORDER REGARDING AN INDEPENDENT MONITOR re 76 Order, ( Case Management deadline set for 9/30/2013.). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
80 DOCKET ENTRY ORDER − Pending before the Court is the Motion for an Extension of Time 78 for filing a Motion for Attorney Fees. The Court having considered the pleadings shall grant the Motion. IT IS HEREBY ORDERED THAT the Motion for an Extension of Time is granted, and it shall be filed within fourteen (14) days after the Court issues a decision on CCA's Motion to Clarify 77 . Signed by Judge David O. Carter (sbh).

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 12 of 20

09/27/2013 09/30/2013
10/07/2013 10/09/2013 10/10/2013
10/16/2013
10/18/2013 10/18/2013 10/23/2013 10/28/2013 10/29/2013 10/29/2013 10/29/2013 10/29/2013 10/30/2013

81 STIPULATION re 79 Order, Set Deadlines/Hearings,, for Independent Monitor by Corrections Corporation of America, Inc, Timothy Wengler. (Naylor, Kirtlan)
82 ORDER for New Monitor Proposals re 81 Stipulation filed by Timothy Wengler, Corrections Corporation of America, Inc. By 5:00 p.m. Mountain Time on 10/7/13, the parties are ORDERED to either: 1) jointly file the name, with resume or CV, of an agreed−upon monitor, OR 2) separately file the names, with resumes or CVs, of two possible monitors that each party considers appropriate. ( Case Management deadline set for 10/7/2013). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
83 STIPULATION re 79 Order, Set Deadlines/Hearings,, 82 Order, Set Deadlines/Hearings,,,, for Independent Monitor by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina. (Eppink, Richard)
84 RESPONSE to Motion re 77 MOTION to Clarify [Dkt. 76] filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Replies due by 10/28/2013.(Pevar, Stephen)
85 ORDER Approving Stipulation and Apponting Independent Monitor, re 76 Order, 83 Stipulation, Edward Leach is hereby APPOINTED as the Court's monitor. Proposed plan should be submitted to the Court via email to the ADRCoordinator and provided to both parties on or before October 25, 2013: (Case Management deadline set for 10/25/2013). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
86 NOTICE OF APPEAL as to 76 Order, 45 Order 79 Order, 85 Order, 68 Order, 60 Order , 61 Order, 75 Order , 56 Order, 82 Order,by Corrections Corporation of America, Inc, Timothy Wengler. Filing fee $ 455, receipt number 0976−1072426. (Notice sent to Court Reporter & 9th Cir) (Attachments: # 1 Representation Statement)(Struck, Daniel) Modified on 10/17/2013 to edit text (jp).(13−35972).
87 USCA Case Number 13−35972 for 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. (jp)
88 USCA Time Schedule Order as to 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. (Notice sent by e−mail to Court Reporter) (jp)
89 REPLY to Response to Motion re 77 MOTION to Clarify [Dkt. 76] filed by Corrections Corporation of America, Inc, Timothy Wengler.(Zoellner, Tara)
90 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler − Transcript Designation (Struck, Daniel)
91 ORDER denying 77 Motion for Clarification. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
CORRECTIVE ENTRY − The entry docket number 90 Notice (Other) filed by Timothy Wengler, Corrections Corporation of America, Inc was filed using the incorrect docket event. The filing party shall re−submit their filing using "Appeal Transcript Request" so the 9CCA and court reporter get notified properly. (jp)
92 ORDER APPROVING MONITORING PLAN AND SETTING SCHEDULE. Signed by Judge David O. Carter. (Attachments: # 1 ICC Independent Monitor Final Action Plan)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
93 DOCKET ENTRY ORDER − The date in the first line of the Order 77 Denying the Motion for Clarification 76 shall be corrected to September 16, 2013 instead of May 29,2013. Signed by Judge David O. Carter (sbh).
94 DOCKET ENTRY ORDER CORRECTION − The date in the first line of the Order 91 filed October 29, 2013, Denying the Motion for Clarification 76 77 shall be corrected to September 16, 2013 instead of May 29, 2013. Signed by Judge David O. Carter (sbh).

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 13 of 20

10/30/2013
11/01/2013
11/04/2013 11/04/2013 11/05/2013 11/06/2013 11/06/2013 11/07/2013 11/07/2013 11/13/2013
11/13/2013 11/20/2013 11/25/2013
11/25/2013

95 TRANSCRIPT REQUEST by Corrections Corporation of America, Inc, Timothy Wengler for proceedings held on August 7 and 8, 2013 before Judge David O. Carter, (Notice sent by e−mail to Court Reporter) (Struck, Daniel) (Modified on 10/30/13 to indicate Per counsel this is NOT a new request. Transcripts have already been ordered− jp).
96 MOTION for Attorney Fees Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 11/25/2013 (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Affidavit, # 9 Affidavit)(Pevar, Stephen)
97 SEALED Transcript of Proceedings held on 8/7/13 before Judge David O. Carter. Court Reporter/Transcriber Christine Rhodes, Telephone number 208−345−3704. This transcript is sealed.(jp)
98 SEALED Transcript of Proceedings held on 8/8/13 before Judge David O. Carter. Court Reporter/Transcriber Christine Rhodes, Telephone number 208−345−3704. This transcript is sealed.(jp)
99 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler re 92 Order, to the court of Submitting Requested Redactions to Monitoring Plan (Zoellner, Tara)
100 REDACTIONS TO MONITORING PLAN, re 92 Order. (jp)
101 NOTICE of Intent to Request Redaction by Tara B Zoellner re 97 Transcript, 98 Transcript. (Zoellner, Tara)
102 MOTION for Attorney Fees and Costs Richard Alan Eppink appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Responses due by 12/2/2013 (Eppink, Richard)
103 SECOND RETURN MAIL undelivered as to Gary Harold Burger re: 92 Order, (jp) (Entered: 11/08/2013)
104 DOCKET ENTRY ORDER re 102 MOTION for Attorney Fees and 96 MOTION for Attorney Fees filed by Michael Miera, Ray Barrios, Joshua Kelly, Andrew Ibarra, Prisoner A, Randy Enzminger, Jose Pina, Prisoner F.: Plaintiffs filed a brief requesting attorney fees and costs on 11/1/2013. (Dkt. 96.) Plaintiffs filed it in the CM/ECF system as a motion even though it was entitled a brief that was unaccompanied by a motion. On 11/7/2013, in response to the Clerk of Courts inquiry regarding why a brief was filed as a motion without an accompanying motion, Plaintiffs filed a motion for attorney fees and costs to supplement their earlier filing, explaining that they believed the settlement agreement permitted them to file a brief without a motion to seek attorney fees and costs. (Dkt. 102.) As a result of the two filings (Dkts. 96 & 102) addressing the same subject matter, the CM/ECF system has generated two response dates (11/25/2013 and 12/2/2013). As a matter of clarification, IT IS ORDERED that one response to both filings (Dkts. 96 & 102) shall be due by December 2, 2013. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)
Set/Reset Deadlines as to 102 MOTION for Attorney Fees and Costs, 96 MOTION for Attorney Fees . Per Docket Entry Order dkt 104 Responses due by 12/2/2013 (jp)
105 AMENDED ICC INDEPENDENT MONITOR FINAL ACTION PLAN, re 100 , re 92 by Edward Leach. (jp)
106 AMENDED DOCUMENT by Corrections Corporation of America, Inc, Timothy Wengler. Amendment to 85 Order, Set Deadlines/Hearings,,,, 68 Order, 76 Order, 60 Order on Sealed Motion, 44 Sealed Document, 61 Order,,, 86 Notice of Appeal, 75 Order on Motion to Expedite, 91 Order on Motion to Clarify, 45 Order, Document Sealed, 105 Redacted Document, 92 Order, 79 Order, Set Deadlines/Hearings,, 56 Order, Sealed Order, Terminate Motions, Set Deadlines/Hearings,,,, 82 Order, Set Deadlines/Hearings,,,, − AMENDED Notice of Appeal. (Struck, Daniel)
107 CERTIFICATE OF SERVICE by Corrections Corporation of America, Inc, Timothy Wengler re 106 Amended Document,, − AMENDED to include filing with the Ninth Circuit Court of Appeals (Struck, Daniel)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 14 of 20

12/02/2013 12/11/2013 12/11/2013 12/19/2013 12/19/2013 12/19/2013
12/20/2013 12/20/2013 12/20/2013 12/20/2013
12/23/2013 12/23/2013
12/23/2013 12/23/2013 12/27/2013 01/03/2014

108 RESPONSE to Motion re 102 MOTION for Attorney Fees and Costs, 96 MOTION for Attorney Fees filed by Corrections Corporation of America, Inc, Timothy Wengler. Replies due by 12/19/2013. (Attachments: # 1 Affidavit Ex A − Affidavit of Daniel P. Struck, # 2 Exhibit Exhibit B − Itemized Objections)(Zoellner, Tara)
NOTICE TO COURT that counsel Gary Burger wishes to no longer be noticed electronically on this case as of the date of this notice. (per telephone request by co−counsel) (jp)
109 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler Termination of ECF as Attorney (Naylor, Kirtlan)
110 REPLY to Response to Motion re 102 MOTION for Attorney Fees and Costs filed by Ray Barrios, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. (Attachments: # 1 Exhibit Pevar Declaration, # 2 Exhibit Eppink Declaration)(Pevar, Stephen)
111 MOTION for Leave to File Excess Pages Stephen L Pevar appearing for Plaintiffs Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. (Pevar, Stephen)
CORRECTIVE ENTRY − The entry docket number 111 MOTION for Leave to File Excess Pages filed by Michael Miera, Ray Barrios, Joshua Kelly, Andrew Ibarra, Randy Enzminger, Prisoner A, Jose Pina, Prisoner F, 110 Reply to Response to Motion, filed by Michael Miera, Ray Barrios, Joshua Kelly, Andrew Ibarra, Prisoner A, Jose Pina, Prisoner F were filed incorrectly in this case as it pertains to the Certificate of Service only. The filing party shall refer to ECF Procedures #8 and re−submit their correct certificate of service using the event of "Certificate of Service" located under Service of Process and link to dockets 110 and 111.(cjm)
112 CERTIFICATE OF SERVICE by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F re 110 Reply to Response to Motion, (Pevar, Stephen)
113 CERTIFICATE OF SERVICE by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F (Pevar, Stephen)
114 CERTIFICATE OF SERVICE re 111 Motion for Leave to File Excess Pages by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F (Pevar, Stephen) Modified on 12/20/2013 to add linked document (cjm).
115 DOCKET ENTRY ORDER − Pending before the Court is the Motion for Leave to File Excess Pages 111 . The Court having considered the pleading shall grant both motion, and the 13−page brief shall be ordered filed. Signed by Judge David O. Carter. Caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (sbh).
116 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler re 108 Response to Motion, of Supplemental Authority (Zoellner, Tara)
117 ORDER Pursuant to the process set out in the Court's Order approving the monitoring plan and schedule (Dkt. 92 ), a redacted copy of the Independent Monitor's first monthly report to the Court is to be filed on the docket under seal. The parties should file any requested redactions by 1/3/14. After the Court has considered those redactions, the final approved copy of the report will be filed on the public docket. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
118 Sealed Document Re: 117 Order (jp)
119 Sealed Document Re: 117 Order (jp)
120 RESPONSE re 116 Notice (Other) filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F . (Attachments: # 1 Affidavit)(Pevar, Stephen)
121 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler re 119 Sealed Document re Proposed Requested Redactions (Zoellner, Tara)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 15 of 20

01/16/2014 01/16/2014 01/24/2014 01/24/2014 01/24/2014
01/31/2014 01/31/2014 02/20/2014
02/24/2014
02/24/2014
02/24/2014
02/28/2014 02/28/2014 02/28/2014 03/10/2014
03/11/2014 03/14/2014 03/17/2014 03/17/2014

122 Independent Monitor's Monthly Report − December 16, 2013, by Edward Leach (jp)
123 Appendix 6 filed Edward Leach Related document: 122 Notice filed by Edward Leach. (jp)
124 Sealed Document re 117 Order. (cjm)
125 Sealed Document re: 117 Order. (cjm)
126 ORDER. The parties are to file requested redactions of the Independent Monitor's second monthly report to the Court on or before 1/31/2014. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
127 Independent Monitor's Monthly Report − 1/15/2014, by Edward Leach. (cjm) (Entered: 02/03/2014)
128 Appendix 6 − Staffing Assessment filed by Edward Leach Related document: 127 Independent Monitor's Monthly Report − 1/15/2014, filed by Edward Leach. (cjm) (Entered: 02/03/2014)
129 ORDER REGARDING ATTORNEYS' FEES AND COSTS granting 96 Motion for Attorney Fees; granting 102 Motion for Attorney Fees. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
130 MOTION to Unseal Document 97 Transcript, 98 Transcript as to Majority of Transcript of Proceedings Held on August 7 and 8, 2013 Tara B Zoellner appearing for Defendants Corrections Corporation of America, Inc, Timothy Wengler. Responses due by 3/20/2014 (Zoellner, Tara)
131 MOTION to Seal Document 130 MOTION to Unseal Document 97 Transcript, 98 Transcript as to Majority of Transcript of Proceedings Held on August 7 and 8, 2013 as to Exhibits 1A − 1E Tara B Zoellner appearing for Defendants Corrections Corporation of America, Inc, Timothy Wengler. Responses due by 3/20/2014 (Zoellner, Tara)
132 Sealed Document Re: 131 MOTION to Seal Document 130 MOTION to Unseal Document 97 Transcript, 98 Transcript as to Majority of Transcript of Proceedings Held on August 7 and 8, 2013 as to Exhibits 1A − 1E . (Attachments: # 1 Exhibit 1B, # 2 Exhibit 1C, # 3 Exhibit 1D, # 4 Exhibit 1E)(Zoellner, Tara)
133 ORDER The parties are to file requested redactions of the Independent Monitor's third monthly report to the Court on or before March 10, 2014. Signed by Judge David O. Carter. (jp) Modified on 5/2/2014 to edit text (jp).
134 Sealed Document Re: 133 Order. (jp) Modified on 5/2/2014 to unseal per Order dkt 156 (jp).
135 Sealed Document Re: 133 Order. (jp) Modified on 5/2/2014 to unseal per Order dkt 156 (jp).
136 RESPONSE to Motion re 131 MOTION to Seal Document 130 MOTION to Unseal Document 97 Transcript, 98 Transcript as to Majority of Transcript of Proceedings Held on August 7 and 8, 2013 as to Exhibits 1A − 1E filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Replies due by 3/27/2014.(Eppink, Richard)
137 NOTICE by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F (Pevar, Stephen)
138 NOTICE OF APPEAL as to 129 Order on Motion for Attorney Fees,,, by Corrections Corporation of America, Inc, Timothy Wengler. Filing fee $ 505, receipt number 0976−1133029. (Notice sent to Court Reporter & 9th Cir) (Struck, Daniel)(14−35199)
139 USCA Case Number 14−35199 for 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. (jp)
140 USCA Time Schedule Order as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. (Notice sent by e−mail to Court Reporter)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 16 of 20

03/19/2014 03/24/2014
03/27/2014
03/27/2014
03/27/2014 03/28/2014
03/28/2014 04/01/2014 04/03/2014
04/29/2014 04/29/2014 05/02/2014
05/02/2014 05/02/2014 05/02/2014
05/02/2014 05/02/2014

(jp)
141 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler re 138 Notice of Appeal, − Notice of Transcript Designation (Struck, Daniel)
142 REPLY to Response to Motion re 131 MOTION to Seal Document 130 MOTION to Unseal Document 97 Transcript, 98 Transcript as to Majority of Transcript of Proceedings Held on August 7 and 8, 2013 as to Exhibits 1A − 1E, 130 MOTION to Unseal Document 97 Transcript, 98 Transcript as to Majority of Transcript of Proceedings Held on August 7 and 8, 2013 filed by Corrections Corporation of America, Inc, Timothy Wengler. (Attachments: # 1 Exhibit 1)(Zoellner, Tara)
143 RESPONSE to Motion re 131 MOTION to Seal Document 130 MOTION to Unseal Document 97 Transcript, 98 Transcript as to Majority of Transcript of Proceedings Held on August 7 and 8, 2013 as to Exhibits 1A − 1E filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Replies due by 4/14/2014.(Pevar, Stephen)
144 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT an in−person status conference with Stephen Pevar (ACLU), Kirt Naylor (CCA), and Mark Kubinski, Idaho Department of Correction shall be held on Tuesday, April 1, 2014 at 9:00 a.m., Courtroom #2, 6th Floor of the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho. The Court also requests attendance of monitors Sheriff Chris Smith and Tad Leach at 8:30 a.m. ACLU attorney Ritchie Eppink is excused from attending due to his travel schedule. Signed by Judge David O. Carter (sbh).
Set/Reset Hearings: Per Order dkt 144, Status Conference set for 4/1/2014 09:00 AM in Boise − Courtroom 2 before Judge David O. Carter. (jp)
145 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT the starting time of the in−person status conference in this case with Stephen Pevar (ACLU), Kirt Naylor (CCA), and Mark Kubinski, Idaho Department of Correction shall be moved from 9:00 a.m. to 7:30 a.m. Please make note of the new starting time. Signed by Judge David O. Carter (sbh).
Set/Reset Hearings: Per Order 145, Status Conference RESET for 4/1/2014 07:30 AM in Boise − Courtroom 2 before Judge David O. Carter. (jp)
146 SEALED Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 4/1/2014 Time in Court 4 hrs 20 min. (Court Reporter/ESR not recorded.) (so) (Entered: 04/03/2014)
147 ORDER GRANTING DEFENDANTS' MOTION TO UNSEAL AND MOTION TO SEAL 130 131 . Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) (Entered: 04/04/2014)
148 Redaction of 97 Transcript for Show Cause Hearing 8/7/13. (jp) (Entered: 05/01/2014)
149 Redaction of 98 Transcript of Show Cause Hearing 8/8/13. (jp) (Entered: 05/01/2014)
150 ORDER The parties are to file requested redactions of the Independent Monitor's fourth monthly report to the Court on or before 5/9/14 ( Case Management deadline set for 5/9/2014). Signed by Judge David O. Carter. (jp) Modified on 5/2/2014 to edit text (jp).
151 Sealed Document Re: 150 Order (jp) (Unsealed per Order dkt 157)
152 Sealed Document Re: 150 Order (jp) (Unsealed per Order dkt 157)
153 ORDER, The parties are to file requested redactions of the Independent Monitor's fifth monthly report to the Court on or before 5/9/14 ( Case Management deadline set for 5/9/2014). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
154 Sealed Document Re: 153 Order (jp) (Unsealed per Order dkt 157).
155 Sealed Document Re: 153 Order (jp) (Unsealed per Order dkt 157)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 17 of 20

05/02/2014
05/05/2014
05/22/2014
05/22/2014 05/22/2014 05/28/2014 05/30/2014 05/30/2014
06/11/2014 06/11/2014 06/11/2014 06/11/2014 06/11/2014 06/11/2014 07/01/2014 07/08/2014

156 ORDER REGARDING UNSEALING DOCUMENTS the Independent Monitor's reports (Dkts. 134 and 135 ) shall be unsealed as there were no requested redactions from the parties. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
157 ORDER REGARDING UNSEALING DOCUMENTS The fourth and fifth Independent Monitor's reports (Dkts. 151 , 152 , 154 and 155 ) shall be unsealed as there were no requested redactions from the parties. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
158 ORDER Pursuant to the process set out in the Court's Order approving the monitoring plan and schedule (Dkt. 92 ), a redacted copy of the Independent Monitor's sixth monthly report to the Court is to be filed on the docket under seal. The parties are to file requested redactions on or before 6/2/14. After the Court has considered those redactions, the final approved copy ofthe report will be filed on the public docket. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
159 Sealed Document Re: 158 Order, (jp) (Unsealed per dkt 163)
160 Sealed Document Re: 158 Order, (jp) (unsealed per dkt 163)
161 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler Re: No Redactions to Independent Monitor's Sixth Monthly Report (Doc. 159 & 160) (Zoellner, Tara)
162 Statement Response to Order re: Monitor's Sixth Report filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F.(Pevar, Stephen)
163 ORDER REGARDING UNSEALING DOCUMENTS. IT IS HEREBY ORDERED THAT the sixth Independent Monitor's reports 159 and 160 shall be unsealed as there were no requested redactions from the parties. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
164 REDACTED EXHIBITS filed per 147 Order Granting Defendants' Motion to Unseal and Motion to Seal. Exhibit 104, (Attachments: # 1 Exhibit 107, # 2 Exhibit 109, # 3 Exhibit 110, # 4 Exhibit 116, # 5 Exhibit 117, # 6 Exhibit 119)(jp)
165 REDACTED EXHIBIT 122 filed per 147 Order Granting Defendants' Motion to Unseal and Motion to Seal. (Attachments: # 1 pp 17−33)(jp)
166 REDACTED EXHIBIT 118 (parts 1−4) filed per 147 Order Granting Defendants' Motion to Unseal and Motion to Seal. (Attachments: # 1 part 2, # 2 part 3, # 3 part 4)(jp)
167 REDACTED EXHIBIT 118 (parts 5−8) filed per 147 Order on Motion to Unseal Document, Order on Motion to Seal Document. (Attachments: # 1 part 6, # 2 part 7, # 3 part 8)(jp)
168 REDACTED EXHIBIT 118 (parts 9−12) filed per to 147 Order Granting Defendants' Motion to Unseal and Motion to Seal (Attachments: # 1 part 10, # 2 part 11, # 3 part 12)(jp)
169 REDACTED EXHIBIT 118 (parts 13−15) filed per 147 Order Granting Defendants' Motion to Unseal and Motion to Seal (Attachments: # 1 part 14, # 2 part 15)(jp)
170 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler (Naylor, Kirtlan)
171 ORDER Pursuant to the process set out in the Court's Order approving the monitoring plan and schedule (Dkt. 92 ), a redacted copy of the Independent Monitor's seventh monthly report to the Court is to be filed on the docket under seal. The parties are to file requested redactions on or before 7/15/14. After the Court has considered those redactions, the final approved copy of the report will be filed on the public docket. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 18 of 20

07/08/2014 07/08/2014 07/15/2014 07/15/2014 07/22/2014
07/22/2014 07/22/2014 07/22/2014
07/24/2014 07/29/2014
07/29/2014 07/31/2014 08/01/2014 08/06/2014

at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
172 Sealed Document Re: 171 Order. (jp)
173 Sealed Document Re: 171 Order. (jp)
174 NOTICE by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F re 173 Sealed Document, 171 Order,, 172 Sealed Document Plaintiffs' Notice Re: Monitor's Seventh Monthly Report (Eppink, Richard)
175 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler re: No Redactions to Independent Monitor's Seventh Monthly Report (Docs. 172 & 173) (Zoellner, Tara)
176 ORDER Pursuant to the process set out in the Court's Order approving the monitoring plan and schedule (Dkt. 92 ), the Court makes a redacted copy of that report available to the parties before public filing. The redacted copy of the summary report is to be filed on the docket under seal. The parties are to file requested redactions on or before 7/29/14. After the Court has considered those redactions, the final approved copy of the report will be filed on the public docket. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
177 Sealed Document Re: 176 Order. (jp)
178 Sealed Document Re: 176 Order. (jp)
179 ORDER As part of the Independent Monitor's duties, the Court requested that the monitor compile any institution−wide violence statistics available. In the interest of transparency and providing as much of the monitor's work to the parties as feasible, the Court authorizes the under−seal filing of the attached tables prepared by the Monitor. If the parties have any proposed redactions, they may file them on or before 7/29/14. If there are no objections, the Court will publish these tables to the public docket. Signed by Judge David O. Carter. (Attachments: # 1 sealed attached tables)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
180 NOTICE by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F re 179 Order,, 178 Sealed Document, 177 Sealed Document, 176 Order,, Plaintiffs' Request for Filing Dkt. 177, 178, and 179−1 without Redactions (Eppink, Richard)
181 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler re 179 Order,, 178 Sealed Document, 177 Sealed Document DEFENDANTS NOTICE RE: NO REDACTIONS TO INDEPENDENT MONITORS SUMMARY REPORT AND COMPREHENSIVE VIOLENCE REPORT AND MOTION TO PROVIDE PARTIES WITH UNREDACTED INDEPENDENT MONITORS SUMMARY REPORT AND COMPREHENSIVE VIOLENCE REPORT (Zoellner, Tara) Modified on 7/30/2014 to show as pending motion. Responses due 8/22/14 (jp).
Set/Reset Deadlines as to 181 MOTION to Unseal Document. Responses due by 8/22/2014 (jp) (Entered: 07/30/2014)
182 RESPONSE to Motion re 181 MOTION to Unseal Document filed by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina, Prisoner A, Prisoner F. Replies due by 8/18/2014.(Eppink, Richard)
183 ORDER Any further filings on this issue should be filed on or before August 6, 2014. re 179 , 181 . Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
184 Second MOTION PROVIDE PARTIES WITH UNREDACTED INDEPENDENT MONITORS SUMMARY REPORT AND COMPREHENSIVE VIOLENCE REPORT re 179 Order,, 178 Sealed Document, 177 Sealed Document Tara B Zoellner appearing for Defendants Corrections Corporation of America, Inc, Timothy Wengler. Responses due by 9/2/2014 (Zoellner, Tara)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 19 of 20

08/18/2014
08/18/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014
08/29/2014
09/12/2014 09/13/2014
10/09/2014 05/23/2016 05/23/2016

185 ORDER Defendants' motion (Dkt. 184 ) is GRANTED IN PART. The Monitor shall file with the Court complete copies of the Violence Report and Summary Report (Dkts. 177 , 178 ), including any addenda or appendices. The Monitor is to redact any names and identifying information of anyone the Monitor interviewed in the course of his duties. These documents shall be filed under seal within 14 days of this order. Pursuant to the Court's procedures in this matter, the parties shall then have 14 days after the filing to request additional information or further redactions. Requests for further redactions will be reviewed by the Court. A final copy of the Monitor's documents, including all final redactions, will then be filed to the public docket. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
Set Deadlines/Hearings: Per Order dkt 185, docs due within 14 days: Case Management deadline set for 9/1/2014. (jp)
186 ORDER (Sealed). Signed by Judge David O. Carter. (jp)
187 Sealed Document Re: 186 Sealed Order. (jp)(unsealed per Order dkt 194)
188 Sealed Document Re: 186 Sealed Order. (jp)(unsealed per Order dkt 194)
189 Sealed Document Re: 186 Sealed Order. (jp) (unsealed per Order dkt 194)
190 Sealed Document Re: 186 Sealed Order. (jp) (unsealed per Order dkt 194)
191 Sealed Document Re: 186 Sealed Order. (Attachments: # 1 sealed document, # 2 sealed document, # 3 sealed document, # 4 sealed document, # 5 sealed document, # 6 sealed document, # 7 sealed document, # 8 sealed document, # 9 sealed document, # 10 sealed document, # 11 sealed document, # 12 sealed document, # 13 sealed document, # 14 sealed document, # 15 sealed document, # 16 sealed document, # 17 sealed document, # 18 sealed document, # 19 sealed document, # 20 sealed document, # 21 sealed document, # 22 sealed document, # 23 sealed document, # 24 sealed document, # 25 sealed document, # 26 sealed document, # 27 sealed document, # 28 sealed document)(jp) (unsealed per Order dkt 194)
192 NOTICE by Corrections Corporation of America, Inc, Timothy Wengler re 191 Sealed Document,, 189 Sealed Document, 187 Sealed Document, 186 Order, Sealed Order, 188 Sealed Document, 190 Sealed Document DEFENDANTS NOTICE RE: NO REDACTIONS TO INDEPENDENT MONITORS SUMMARY REPORT, APPENDIX 3, APPENDIX 5, APPENDIX 6 AND COMPREHENSIVE VIOLENCE REPORT (Doc. 187, 188, 189, 190 & 191) (Struck, Daniel)
193 NOTICE by Ray Barrios, Randy Enzminger, Andrew Ibarra, Joshua Kelly, Michael Miera, Jose Pina (Pevar, Stephen)
194 DOCKET ENTRY ORDER − In compliance with the Court's August 29, 2014, Order 186 , Plaintiffs 193 and Defendants 192 have notified the Court that they do not seek any further redactions to the Independent Monitors Redacted Summary Reports. Therefore, IT IS HEREBY ORDERED THAT the following documents shall be unsealed: Independent Monitor's Redacted Summary Reports 187 188 189 191 , and the Redacted Comprehensive Violence Report 190 . SO ORDERED. Signed by Judge David O. Carter (sbh).
195 DOCKET ENTRY ORDER − Before the Court is Correction Corporation of America's Motion to Unseal 181 . In light of the filing of the Court's Order 194 , the Motion is hereby deemed moot. Signed by Judge David O. Carter (sbh).
196 OPIONION of USCA as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc, 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. AFFIRMED. (cjs) Modified on 5/23/2016 to edit text from order to opinion (cjs).
197 ORDER of USCA as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc, 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. Appellants Request for Judicial Notice is GRANTED. (cjs)

Case 1:11-cv-185 Document <docnum> Filed <datefiled> Page 20 of 20

06/07/2016
07/07/2016 07/11/2016 07/18/2016 08/25/2016 08/29/2016 10/24/2016

198 ORDER of USCA as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc, 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. Appellants' unopposed motion for an extension of time, up to and including June 13, 2016, within which to file a petition for rehearing is GRANTED. (jp)
199 ORDER of USCA as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc, 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. The petition for rehearing en banc is DENIED. (jp)
200 ORDER of USCA as to 138 Notice of Appeal, 86 Notice of Appeal. Appellees' unopposed motion to extend the deadline to file a request for attorneys' fees until 7/29/16, is GRANTED. (jp) (Entered: 07/12/2016)
201 MANDATE of USCA as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc, 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc (jp)
202 ORDER of USCA re 13−35972, 14−35199. Appellees' motion for attorneys' fees, filed July 27, 2016, is referred to Appellate Commissioner Peter L. Shaw. (jp) (Entered: 08/26/2016)
203 ORDER of USCA as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc, 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. The motion for attorneys fees is referred to the Circuit Mediator, who will contact the parties. (cjs)
204 ORDER of USCA (13−35972 & 14−35199) as to 138 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc, 86 Notice of Appeal, filed by Timothy Wengler, Corrections Corporation of America, Inc. (km) (Entered: 10/25/2016)

 
 Kelly v. Wengler, 822 F.3d 1085 (2016)

822 F.3d 1085 United States Court of Appeals,
Ninth Circuit.
Joshua KELLY; Jose Pina; Andrew Ibarra; Ray Barrios; Randy Enzminger; Michael Miera;
Prisoner A; Prisoner F, Individually and on behalf of a class of all other persons similarly situated, Plaintiffs–Appellees, v. Timothy WENGLER; Corrections Corporation of America, Inc., Defendants–Appellants.
Nos. 13–35972, 14–35199. |
Argued and Submitted Oct. 13, 2015. |
Filed May 23, 2016.
Synopsis Background: State prisoners filed putative class action against warden and contractor that operated state prison, alleging that level of violence at prison violated their constitutional rights. Parties entered into settlement agreement, which was incorporated into order dismissing action. The United States District Court for the District of Idaho, David O. Carter, J., 979 F.Supp.2d 1237, granted prisoners’ motion for order to show cause, later, 979 F.Supp.2d 1104, found contractor in civil contempt for violating settlement agreement, and subsequently, 7 F.Supp.3d 1069, awarded attorney fees and costs to prisoners. Contractor appealed.
Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
[1] district court had ancillary jurisdiction to enforce settlement agreement;
[2] contractor failed to take all reasonable steps to comply with settlement agreement, and thus contractor was in contempt of court;
[3] two-year extension of settlement agreement was compensatory civil sanction for contempt, not a criminal sanction, and thus contempt finding was civil in nature;
[4] modification of settlement agreement by extending its terms for two years was well within court’s inherent

power to modify court orders in changed circumstances;
[5] extension of entire settlement agreement did not violate limitations set forth in Prison Litigation Reform Act (PLRA) on prospective relief;
[6] evidence supported district court’s enhancement of lodestar figure due to superior performance when awarding attorney fees; and
[7] district court acted within its discretion in enhancing lodestar figure to ensure that it was adequate to attract competent counsel in comparable cases.
Affirmed.
Attorneys and Law Firms
*1090 Nicholas D. Acedo (argued), Daniel P. Struck, Tara B. Zoellner, Struck Wienecke & Love, P.L.C., Chandler, AZ, for Defendants–Appellants.
Stephen L. Pevar (argued), American Civil Liberties Union Foundation, Hartford, CT; Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, ID, for Plaintiffs–Appellees.
Appeal from the United States District Court for the District of Idaho, *1091 David O. Carter, District Judge, Presiding. D.C. Nos. 1:11–cv–00185–EJL.
Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and CLAUDIA WILKEN,* Senior District Judge.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs–Appellees (“Plaintiffs”) brought a putative class action in the District of Idaho under 42 U.S.C. § 1983 against Defendants–Appellants Timothy Wengler and the Corrections Corporation of America, Inc. (collectively “CCA”), alleging that CCA staffed the Idaho Corrections Center (“ICC”) with an inadequate number of security guards, in deliberate indifference to the health and safety of prisoners. The parties settled, and CCA agreed to staff ICC with a specified number of security personnel. The
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district court dismissed the case with prejudice, incorporating the parties’ settlement agreement into its dismissal order.
After learning that staffing reports at ICC had been falsified over a seven-month post-settlement period, Plaintiffs moved the district court to hold CCA in contempt for violating the dismissal order. After a twoday hearing, the district court found CCA in contempt, ordered remedial measures, and awarded Plaintiffs attorney’s fees and costs. CCA challenges various aspects of the district court’s orders, including the award of attorney’s fees. We affirm.
I. Background
A. Initial Suit and Settlement
ICC is a state-owned prison in Kuna, Idaho. When this suit was filed in April 2011, CCA operated ICC under a contract with the Idaho Department of Corrections (“IDOC”). Plaintiffs’ complaint alleged CCA failed to hire an adequate number of security guards and, as a result, ICC staff failed to protect inmates from assault by other inmates. The complaint alleged CCA was deliberately indifferent to the safety and health of ICC inmates in violation of the Eighth Amendment. Plaintiffs requested declaratory relief and an injunction ordering, inter alia, that CCA hire an adequate number of security personnel.
In September 2011, the parties met with a judicial mediator, District Judge David O. Carter of the Central District of California. They reached a settlement after three days of negotiation. In a signed settlement agreement, CCA agreed to comply with the staffing requirements contained in its contract with IDOC. CCA also agreed to provide three additional officers, known as the “Warden’s Crew,” whom the warden could use in his discretion to enhance security. The parties signed a stipulation for dismissal. The stipulation incorporated the settlement agreement, which was attached as an exhibit to the stipulation. District Judge Edward J. Lodge of the District of Idaho signed an order on September 20, 2011, dismissing the case with prejudice. His order explicitly incorporated the parties’ stipulation.
B. Order to Show Cause

Between December 2012 and January 2013, CCA and IDOC received reports that staffing records at ICC had been falsified during the post-settlement period. IDOC initiated an audit of ICC’s staffing records, and CCA hired an investigator. On April 11, 2013, IDOC issued a press release, stating that CCA’s employees had falsified staffing records to represent that *1092 correctional officers were staffing mandatory security posts when, in fact, those posts had been vacant for a total of nearly 4,800 hours during a seven-month period in 2012. That same day, CCA issued its own press release stating there were “some inaccuracies” in its staffing records.
In June 2013, Plaintiffs moved in the district court for an order to show cause (“OSC”) why CCA should not be held in contempt for violating the court’s dismissal order. The district court referred the motion to Judge Carter, sitting by special designation in the District of Idaho. CCA opposed the motion, partly on the ground that the district court did not have jurisdiction to enforce the settlement agreement. The district court held it had jurisdiction to enforce the settlement agreement and issued the requested OSC.
C. Contempt Order
After a two-day hearing, the district court entered an order on September 16, 2013, holding CCA in contempt and ordering remedial measures. The order was entered almost exactly two years after the entry of the order dismissing the suit and incorporating the settlement agreement.
The district court found CCA had materially breached the settlement agreement and, indeed, that there was “serious doubt” whether CCA had ever substantially complied with it. The court relied in part on CCA’s own investigative report, which indicated that from April to October 2012 approximately 4,800 mandatory post hours had been left vacant. The reported 4,800–hour figure included only night-shift hours during that seven-month period. In addition, evidence presented at the hearing showed vacancies had occurred during day-shifts over the period covered by the report, and additional vacancies had occurred after that period. For example, with respect to vacancies during the period covered by the report, ICC Warden (and Defendant) Timothy Wengler testified that CCA’s investigation revealed roughly 150 vacant dayshift hours in May 2012 and 300 vacant day-shift hours in June 2012. IDOC official Timothy Higgins testified that IDOC had received reports from inmates at ICC that “the only time there was ... full staffing was when our
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monitors were there.” Higgins testified, with respect to vacancies after the period covered by the report, that daily staffing reports showed vacant mandatory post hours at ICC for June and July 2013 ranged from 18 to 41 hours per day.
The district court found further that CCA had “compelling reasons to regularly and thoroughly check that” it was in compliance, and that it knew or should have known it was in material breach of the settlement agreement. Before the parties executed the settlement agreement, multiple sources had informed the warden and assistant wardens at ICC that the facility was experiencing acute staffing shortages, and indications of ICC’s staffing difficulties continued even after the parties entered into the settlement agreement. According to CCA’s internal investigative report, members of ICC’s senior management were aware of acute personnel shortages in the post-settlement period, during the spring, summer, and fall of 2012. The report was corroborated by several witnesses who testified they informed CCA officials, including Warden Wengler, about staffing shortages.
Finally, the district court found CCA had not taken all reasonable steps to comply with the settlement agreement. For example, Higgins testified that CCA’s reports of shift rosters indicated whether a post was covered by two or more employees but did not indicate the hours worked by each employee. This manner of reporting made it difficult to determine whether an employee was reported as having been *1093 simultaneously posted at more than one post (“double posted”). Warden Wengler, Assistant Warden Thomas Kessler, and Managing Director Kevin Myers testified that they neither checked for vacancies nor reviewed staffing records to ensure that the prison was fully staffed.
CCA eventually took a number of steps to ensure compliance with the settlement agreement, but it did so only after there had been an investigation into its staffing and recordkeeping. After the investigation, CCA implemented a “corrective action plan” including hiring more guards, maintaining more detailed staffing records, comparing staffing rosters with actual staffing, maintaining open lines of communication about potential staffing difficulties, and reviewing incidents resulting in vacancies. The district court found CCA should have taken these measures before the investigation.
The district court ordered several remedial measures. The settlement agreement was supposed to last for only two years, but the court extended it for another two years. The court appointed an independent monitor, to be paid by CCA. Finally, the court established a fine schedule. Under the schedule, CCA would be required to pay $100 for

each hour that a mandatory post was left vacant in excess of twelve hours in any calendar month. The court indicated it would increase the amount of the fines, if $100 per hour proved insufficient to compel compliance. In the end, the court never imposed fines for noncompliance. The court declined to impose several remedies requested by Plaintiffs, including ordering CCA to discipline more of its staff, conducting an audit to determine the total number of vacant hours since the execution of the settlement agreement, and requiring the submission of reports to the district court.
D. Attorney’s Fees
Plaintiffs’ counsel, American Civil Liberties Union (“ACLU”) attorneys Stephen Pevar and Ritchie Eppink, requested attorney’s fees and costs associated with the contempt proceedings. Pevar sought compensation for 533.9 hours, and Eppink sought compensation for 253.2 hours. They also sought compensation for 174.1 hours of work performed by legal assistants, as well as $16,598.13 in costs. Plaintiffs’ counsel based their attorney’s fees request on an hourly rate of $213 per hour, which, at the time of the contempt proceedings, was 150 percent of the hourly rate set for counsel appointed in criminal cases, the maximum base rate allowed in cases governed by the Prison Litigation Reform Act (“PLRA”). They based their request for paralegal and student-intern fees on an hourly rate of $65 per hour. The court did not award fees for some of the hours Plaintiffs’ counsel claimed because several time entries were vague, but otherwise determined Plaintiffs’ requested hours, rates, and costs were reasonable.
Plaintiffs’ counsel also requested a 2.0 multiplier of their fees. The court agreed to enhance the fee award, though not by the full amount requested. The court gave two reasons for the enhancement. First, Plaintiffs’ counsel provided superior performance under extreme time pressure and with very limited resources. Second, prisoners in Idaho have such difficulty obtaining counsel for civil rights cases seeking declaratory and injunctive relief that Plaintiffs’ counsel were likely the only attorneys willing to accept Plaintiffs’ case.
Based on evidence of the hourly rates of Idaho attorneys with similar experience, the district court applied a 2.0 multiplier to the fees associated with Pevar’s work and a 1.3 multiplier to the fees associated with Eppink’s work, on the ground that these fees would compensate Plaintiffs’ counsel *1094 for their superior performance and would be sufficient to induce competent Idaho
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attorneys to accept appointment in meritorious prisoner civil rights cases seeking declaratory and injunctive relief. In total, the court awarded $349,018.52 in attorney’s fees and costs.
Pursuant to 28 U.S.C. § 1291, CCA timely appealed the district court’s orders finding the court had subject matter jurisdiction to enforce the settlement agreement, finding CCA in contempt, and awarding attorney’s fees and costs. See Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 854 (9th Cir.1992) (holding that post-judgment contempt orders imposing sanctions are final for purposes of § 1291).
II. Standards of Review
[1] [2] [3] [4] [5] [6] We review de novo whether a district court has subject matter jurisdiction to enforce a settlement agreement, Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir.2003), a district court’s interpretation of federal statutes, San Luis & Delta–Mendota Water Auth. v. United States, 672 F.3d 676, 699 (9th Cir.2012), and its interpretation of a settlement agreement, City of Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th Cir.2010). We review for abuse of discretion a district court’s civil contempt order, FTC v. EDebitPay, LLC, 695 F.3d 938, 943 (9th Cir.2012), and its award of attorney’s fees, Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir.1991). We review the district court’s factual findings in connection with a contempt order for clear error. EDebitPay, 695 F.3d at 943.
III. Discussion
A. Subject Matter Jurisdiction
The district court dismissed Plaintiffs’ suit with prejudice after the parties reached a settlement. CCA contends the district court did not have subject matter jurisdiction to enforce the settlement agreement because the court’s jurisdiction terminated when it dismissed the case. In other words, CCA maintains the parties’ agreement is not enforceable in federal court. We disagree. The district court had federal question jurisdiction over Plaintiffs’ suit under 28 U.S.C. § 1331; the settlement agreement was incorporated into the court’s dismissal order; and the district court therefore had ancillary jurisdiction to enforce the settlement agreement.

[7] [8] [9] [10] Federal courts are courts of limited subject matter jurisdiction. A party alleging subject matter jurisdiction has the burden of establishing it. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When a district court dismisses an action with prejudice pursuant to a settlement agreement, federal jurisdiction usually ends. O’Connor v. Colvin, 70 F.3d 530, 532 (9th Cir.1995). Ordinarily, a dispute arising under a settlement agreement is “a separate contract dispute requiring its own independent basis for jurisdiction.” Id.
[11] [12] [13] However, federal district courts have ancillary jurisdiction over certain matters “otherwise beyond their competence” that are “incidental to other matters properly before them.” Kokkonen, 511 U.S. at 378, 114 S.Ct. 1673. A federal court has jurisdiction to “manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 380, 114 S.Ct. 1673. When a court’s order dismissing a case with prejudice incorporates the terms of a settlement agreement, the court retains ancillary jurisdiction to enforce the agreement because a breach of the incorporated agreement is a violation of the dismissal order. Id. at 381, 114 S.Ct. 1673.
[14] [15] CCA contends the district court did not have subject matter jurisdiction *1095 to enforce the settlement agreement in this case because the court’s dismissal order did not incorporate the terms of the settlement agreement. CCA is wrong as a matter of law. Under federal law, a document incorporated into a dismissal order is part of the order. See Saint John’s Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1059 (9th Cir.2009). The district court’s order explicitly incorporated the parties’ stipulation for dismissal. The stipulation is therefore part of the dismissal order.
[16] [17] [18] Stipulations for dismissal are construed according to the “basic contract principles” of local law. Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir.1989). Here, we apply Idaho contract law, because the parties entered into the stipulation in Idaho, Plaintiffs are Idaho residents, and the stipulation relates to CCA’s business in Idaho. Under Idaho law, incorporation of a document into a contract makes the document part of the contract. City of Meridian v. Petra Inc., 154 Idaho 425, 299 P.3d 232, 242 (2013). The stipulation for dismissal explicitly incorporated the parties’ settlement agreement and attached the agreement as an exhibit, thereby making the settlement agreement part of the stipulation. Thus, the parties’ settlement agreement is incorporated into the court’s dismissal order, and by violating the settlement agreement, CCA violated the order.
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[19] The district court dismissed this case under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), which provides that an action may be dismissed when the plaintiff files “a stipulation of dismissal signed by all parties who have appeared.” The Supreme Court has held that a district court that dismisses a case under this rule may “embody the settlement contract in its dismissal order ... if the parties agree.” Kokkonen, 511 U.S. at 381–82, 114 S.Ct. 1673 (emphasis added). Here, the parties agreed the district court would retain ancillary jurisdiction to enforce the agreement. Paragraph 15 of the agreement establishes a three-step procedure for resolving disputes. Under this procedure, the parties must first attempt to resolve the dispute themselves. If they are unable to do so, they must then attempt to resolve the dispute with the Alternative Dispute Resolution Coordinator for the District of Idaho. If that attempt fails, the parties may “submit the dispute to the Honorable David O. Carter, who shall have authority to enforce the terms of this agreement in his capacity as a Federal District Court Judge.” (Emphasis added.) Paragraph 15 thus provides that the district court shall have authority to enforce the agreement once the parties have taken a dispute through the first two steps of the dispute-resolution process.
Paragraph 1 of the agreement supports this interpretation of Paragraph 15. Paragraph 1 provides that the agreement will “extend no further than necessary to satisfy the requirements of 18 U.S.C. § 3626(a)(1)(A).” Under this provision of the PLRA, a federal district court may not order “prospective relief” unless it finds the relief is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A); id. § 3626(g)(7) (defining “prospective relief”). These limitations on “prospective relief” do not apply to private settlement agreements. Id. § 3626(c)(2). Paragraph 1’s reference to § 3626(a)(1)(A) thus evinces the parties’ intention to make the settlement agreement enforceable in federal court. We therefore conclude the district court had ancillary jurisdiction to enforce the settlement agreement, the terms of which were incorporated into the district court’s dismissal order. For convenience, we hereafter refer only to the *1096 settlement agreement, with the caveat that the court’s jurisdiction was based on CCA’s violation of the dismissal order incorporating the agreement’s terms.
B. Finding of Contempt and Ordering of Remedies
The district court found by clear and convincing evidence

that CCA was in civil contempt because it violated the settlement agreement and had failed to take all reasonable steps to comply. It is not seriously disputed that CCA was in substantial violation of the settlement agreement. The only serious disputes concern whether CCA’s noncompliance justified a finding of contempt and whether the remedies ordered were appropriate. Because CCA has ceased providing staffing for ICC, the contempt and remedies ordered by the district court are no longer relevant to CCA’s operation of ICC. However, they remain relevant for purposes of CCA’s appeal because the attorney’s fees award depends on the correctness of the court’s conclusion that CCA was in contempt and on the appropriateness of the remedies ordered.
1. All Reasonable Steps
[20] CCA first contends the district court’s contempt finding was an abuse of discretion because CCA implemented a number of corrective measures immediately after discovering that it was not in compliance with the settlement agreement. CCA’s argument is based on a misunderstanding of well established law.
[21] A contemnor in violation of a court order may avoid a finding of civil contempt only by showing it took all reasonable steps to comply with the order. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir.2014). CCA emphasizes the steps it took to comply with the settlement agreement, but fails to mention other reasonable steps it could have taken. For example, after the parties signed the settlement agreement, CCA increased the number of budgeted security staff positions at ICC. CCA failed, however, actually to fill a substantial number of those budgeted positions. Further, although Warden Wengler convened meetings to review staffing requirements, in some of those meetings he was informed that ICC was experiencing acute staffing difficulties. Yet CCA failed to address those difficulties. Finally, CCA contends its senior management may not have known that ICC staff members were falsifying staffing rosters. CCA failed, however, to take all reasonable steps that would have allowed it to discover that records had been falsified.
Citing our decision in Vertex Distributing, Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885 (9th Cir.1982), CCA contends it should not have been found in contempt because it took immediate corrective action after learning of the inaccurate staffing reports. The facts in Vertex, however, are far afield from the facts here. In Vertex, the
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plaintiff requested the court find the defendant in contempt for violating a consent judgment that prohibited the defendant from using a particular trade name for publicity purposes. 689 F.2d at 887–88. Although the plaintiff proved the defendant was listed under that name in a local yellow pages directory, in violation of the judgment, we upheld the district court’s decision not to find the defendant in contempt because the defendant had otherwise complied with the consent judgment and had taken steps to remove the trade name from its yellow pages listing as soon as it discovered the listing. Id. at 891–92.
Here, by contrast, the district court found CCA had not substantially complied with the settlement agreement and had *1097 failed to take several reasonable steps to ensure compliance. Moreover, the court found CCA’s “corrective action plan” was itself inadequate. Indeed, just one month before the contempt proceedings began, mandatory posts at ICC were still left vacant between 18 and 41 hours per day.
2. Nature of the Sanctions
[22] CCA objects to two of the ordered remedies—the extension of the settlement agreement and the prospective fine schedule—on the ground that they are criminal sanctions and that the district court did not follow procedures that would have allowed it to hold CCA in criminal contempt.
[23] Unlike civil contempt, criminal contempt requires the procedural safeguards applicable in criminal proceedings, including proof beyond a reasonable doubt. F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1139 (9th Cir.2001). It is undisputed that when the district court found CCA in contempt the court did not provide all of the procedural protections required in criminal proceedings. Thus, if the district court’s contempt finding and the associated remedies were criminal in nature, the finding and remedies were improper and would have to be reversed.
[24] [25] [26] Whether contempt is civil or criminal turns on the nature of the sanction or sanctions involved. Int’l Union, United Mine Workers v. Bagwell (Bagwell ), 512 U.S. 821, 827–28, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). “[A] sanction generally is civil if it coerces compliance with a court order or is a remedial sanction meant to compensate the complainant for actual losses. A criminal sanction, in contrast, generally seeks to punish a ‘completed act of disobedience.’ ” Ahearn ex rel. N.L.R.B.

v. Int’l Longshore & Warehouse Union, Locals 21 & 4, 721 F.3d 1122, 1129 (9th Cir.2013) (quoting Bagwell, 512 U.S. at 828, 114 S.Ct. 2552).
We conclude the extension of the settlement agreement is a compensatory civil sanction. Rather than punishing CCA, this sanction sought to return Plaintiffs as nearly as possible to the position they would have occupied had CCA not violated the agreement. The settlement agreement required CCA to provide a certain number of security personnel at ICC for two years. CCA failed to provide the required number of personnel during that twoyear period. By extending the settlement agreement for two years, the district court thus ordered the relief to which Plaintiffs were originally entitled under the agreement but that CCA had failed to provide.
We need not reach the question whether the fines would have been coercive and therefore civil, for the district court never actually imposed fines. The court merely informed CCA of the fines that would have resulted had CCA continued to violate the settlement agreement after the conclusion of the contempt proceedings. Informing CCA of the prospective fine schedule was not itself a sanction. Cf. S.E.C. v. Hickey, 322 F.3d 1123, 1127–28 (9th Cir.2003) (holding a contempt order announcing a fine is not final for purposes of 28 U.S.C. § 1291 until the court imposes the fine).
We therefore conclude the court’s contempt finding is civil in nature.
C. Extension of the Settlement Agreement
[27] CCA contends the district court’s decision to extend the settlement agreement by two years was an abuse of discretion. We disagree.
The settlement agreement’s original terms, which were incorporated into the district court’s dismissal order, provided that the agreement would terminate “on the two year anniversary of the date” it was executed. The extension of the settlement *1098 agreement was therefore a modification of a court order.
[28] [29] Courts have long had inherent power to modify court orders in changed circumstances. See United States v. Swift & Co., 286 U.S. 106, 114–15, 52 S.Ct. 460, 76 L.Ed. 999 (1932). This power is now codified at Rule 60(b) of the Federal Rules of Civil Procedure. Bellevue Manor Assocs. v. United States, 165 F.3d 1249, 1252 (9th Cir.1999). Under well established law, substantial
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violation of a court order constitutes a significant change in factual circumstances. See Labor/Cmty. Strategy Ctr., 564 F.3d at 1120–22; Thompson v. U.S. Dep’t of Hous. & Urban Dev., 404 F.3d 821, 828–29 (4th Cir.2005); David C. v. Leavitt, 242 F.3d 1206, 1212 (10th Cir.2001); Holland v. New Jersey Dep’t of Corrs., 246 F.3d 267, 283–84 (3d Cir.2001); Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1019–20 (6th Cir.1994). Further, a modification of a court order is “suitably tailored to the changed circumstance” when it “would return both parties as nearly as possible to where they would have been absent” the changed circumstances. Pigford v. Veneman, 292 F.3d 918, 927 (D.C.Cir.2002) (emphasis omitted). Here, the court’s extension of the settlement agreement returned Plaintiffs to the position they would have occupied had CCA not violated the agreement from its inception. The modification of the settlement agreement was therefore well within the court’s inherent power.
[30] CCA further contends the district court abused its discretion by extending the entire settlement agreement instead of extending only the staffing requirements embodied in paragraph 4. In particular, CCA argues there is no evidence that it failed to comply with the settlement agreement’s other provisions, including requirements that CCA investigate and prepare a report on all inmate-oninmate assaults, encourage good behavior by inmates, report aggravated batteries to the Ada County Sheriff’s Office, and make housing assignments consistent with IDOC’s Standard Operating Procedure.
The district court’s findings were not confined to the failure of CCA to fulfill the staffing requirements. The court found, in addition, that the “same supervisors who signed falsified record sheets remain[ed] on the job,” and that CCA’s shoddy record keeping “obscured who was working at what posts and at what times.” In light of these findings, the district court doubted CCA’s “compliance in other respects, such as whether every violent incident is reported.” Further, the district court was reasonably concerned that CCA’s failure to comply with staffing requirements affected its ability to comply with the settlement agreement’s other requirements. The court’s conclusion that the extension of the entire agreement was suitably tailored to correct CCA’s non-compliance was thus not an abuse of discretion.
[31] For the same reason, we reject CCA’s contention that extending the entire settlement agreement violates 18 U.S.C. § 3626(a)(1)(A)’s limitations on prospective relief. Plaintiffs brought this case under 42 U.S.C. § 1983 for alleged violations of their Eighth Amendment rights. When the district court and the parties approved the settlement agreement, there was no dispute that its

remedies were narrowly drawn, necessary, and the least intrusive means to bring ICC into compliance with the Eighth Amendment, in accordance with § 3626(a)(1)(A). The same remedies remain narrowly drawn, necessary, and the least intrusive means to rectify CCA’s continued Eighth Amendment violations.
D. Attorney’s Fees
The district court awarded Plaintiffs attorney’s fees and costs associated with the contempt proceedings. CCA contends the *1099 attorney’s fees award violates the PLRA. We disagree.
1. Attorney’s Fees in Prisoner Civil Rights Cases
[32] The PLRA was enacted “to deter frivolous prisoner lawsuits that needlessly wasted judicial resources.” Woods v. Carey, 722 F.3d 1177, 1182 (9th Cir.2013). Congress sought to “reduce the quantity and improve the quality of prisoner suits.” Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Toward this end, Congress introduced a “variety of reforms designed to filter out the bad [prisoner] claims and facilitate consideration of the good.” Jones v. Bock, 549 U.S. 199, 204, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Among the reforms were changes to the manner in which attorney’s fees are determined in prisoner civil rights cases.
[33] [34] [35] The PLRA’s provisions relating to attorney’s fees apply to “any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under [42 U.S.C. § 1988].” 42 U.S.C. § 1997e(d)(1). Section 1988 is an exception to the “American Rule” that each party ordinarily bears its own attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Section 1988 authorizes courts to award “a reasonable attorney’s fee as part of the costs” to a “prevailing party” in cases brought under various civil rights statutes, including § 1983. 42 U.S.C. § 1988(b). Section 1988 is asymmetrical, awarding attorney’s fees to civil rights plaintiffs if they are prevailing parties, but awarding attorney’s fees to prevailing civil rights defendants only if plaintiffs’ claims are frivolous. See Hughes v. Rowe, 449 U.S. 5, 14–15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). The purpose of § 1988 is “to ensure that federal rights are adequately enforced.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). Thus, “a reasonable attorney’s
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fee” is one that is “sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Id. at 552, 130 S.Ct. 1662.
[36] [37] [38] [39] Federal courts employ the “lodestar” method to determine a reasonable attorney’s fees award under § 1988. The lodestar method is a two-step process. Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1119 (9th Cir.2000). First, a court calculates the lodestar figure by multiplying the number of hours reasonably expended on a case by a reasonable hourly rate. Id. A reasonable hourly rate is ordinarily the “prevailing market rate [ ] in the relevant community.” Perdue, 559 U.S. at 551, 130 S.Ct. 1662 (citation omitted). The lodestar figure “roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case,” id. (emphasis omitted), and is therefore a presumptively reasonable fee. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir.2013). Second, the court determines whether to modify the lodestar figure, upward or downward, based on factors not subsumed in the lodestar figure. See Perdue, 559 U.S. at 553–54, 130 S.Ct. 1662; Morales v. City of San Rafael, 96 F.3d 359, 363–64 & n. 8 (9th Cir.1996), as amended on denial of reh’g, 108 F.3d 981 (9th Cir.1997).
The PLRA alters the lodestar method in prisoner civil rights cases in three fundamental ways. First, rather than hours reasonably expended in the litigation, hours used to determine the fee award are limited to those that are (1) directly and reasonably incurred in proving an actual violation of the plaintiff’s rights and (2) either proportionately related to court-ordered relief or directly and reasonably incurred *1100 in enforcing such relief. 42 U.S.C. § 1997e(d)(1). Second, in actions resulting in monetary judgments, the total amount of the attorney’s fees award associated with the monetary judgment is limited to 150 percent of the judgment. Id. § 1997e(d)(2); see Jimenez v. Franklin, 680 F.3d 1096, 1100 (9th Cir.2012). This limitation does not apply to actions (or parts of actions) resulting in non-monetary relief. Third, the hourly rate used as the basis for a fee award is limited to 150 percent of the hourly rate used for paying appointed counsel under the Criminal Justice Act, 18 U.S.C. § 3006A (the “CJA rate”). 42 U.S.C. § 1997e(d)(3). Hereafter, we refer to 150 percent of the CJA rate as the “PLRA rate.” Notably, the PLRA is silent as to the second step of the lodestar method, in which a court may adjust the lodestar figure based on factors not subsumed in that figure.

2. The Fee Enhancements Under the PLRA
The district court concluded Plaintiffs were entitled to reasonable attorney’s fees and costs because they were “prevailing part[ies]” in a case brought under § 1983. See 42 U.S.C. § 1988. The court used the lodestar method, as modified and limited by the PLRA, to determine reasonable attorney’s fees. The court first multiplied the number of hours directly and reasonably expended in enforcing the settlement agreement by the PLRA rate to arrive at the lodestar figure. The court then enhanced the lodestar figure based on factors not already subsumed in that figure.
CCA contends the attorney’s fees award violates the PLRA. According to CCA, in a suit for injunctive or declaratory relief, the PLRA prohibits an attorney’s fees award exceeding the amount determined by multiplying the number of hours permitted under § 1997e(d)(1) by the PLRA rate specified in § 1997e(d)(3). That is, CCA contends the PLRA forbids a court from enhancing the lodestar figure, even if the enhancement is based on factors not subsumed in that figure. We disagree and conclude the PLRA allows enhancement of the lodestar figure in appropriate circumstances. Our conclusion follows from two principles of statutory interpretation.
[40] First, a “party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change.” Green v. Bock Laundry Mach. Co., 490 U.S. 504, 521, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). When Congress enacted the PLRA, the lodestar method for determining a reasonable attorney’s fees award under § 1988 had already “achieved dominance in the federal courts.” Gisbrecht v. Barnhart, 535 U.S. 789, 801, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002). As explained above, the lodestar method is a twostep process. A court first determines the lodestar figure by multiplying the hours reasonably expended by a reasonable hourly rate; it then determines whether to adjust that figure upward or downward. See, e.g., Blum v. Stenson, 465 U.S. 886, 892–96, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (addressing hourly rates); id. at 896– 902, 104 S.Ct. 1541 (addressing enhancements); Hensley, 461 U.S. at 433–34, 103 S.Ct. 1933 (addressing hourly rates); id. at 434–37, 103 S.Ct. 1933 (addressing enhancements). There is nothing in the attorney’s fees provisions of the PLRA that instructs a court not to take both steps in this process.
A comparison to the attorney’s fees provision of the Individuals with Disabilities in Education Act (“IDEA”) is instructive. The IDEA specifies that attorney’s fees awarded under that statute shall be “based on rates prevailing in the community.” 20 U.S.C. § 1415(i)(3)(C).
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Kelly v. Wengler, 822 F.3d 1085 (2016)
The next sentence, in language not found in the PLRA, then specifies: “No bonus or multiplier may be *1101 used in calculating the fees awarded under this subsection.” Id. As this sentence illustrates, Congress knows how to instruct a court not to adjust the lodestar figure. Yet such instruction is conspicuously absent from the PLRA. Congress’ silence is “strong evidence that the usual practice should be followed.” Jones, 549 U.S. at 212, 127 S.Ct. 910. That is, Congress’ silence is strong evidence that the PLRA contemplates the continuation of the normal practice under § 1988 of adjusting the lodestar figure by factors not subsumed in that figure.
[41] [42] Second, when “Congress includes particular language in one section of a statute but omits it in another—let alone in the very next provision—[federal courts presume] that Congress intended a difference in meaning.” Loughrin v. United States, ––– U.S. ––––, 134 S.Ct. 2384, 2390, 189 L.Ed.2d 411 (2014) (citation omitted). In cases involving monetary judgments, the PLRA expressly limits the total amount of the attorney’s fees award associated with the monetary judgment to 150 percent of the judgment. 42 U.S.C. § 1997e(d)(2); see Jimenez, 680 F.3d at 1100. By contrast, § 1997e(d)(3), addressed to attorney’s fees awards not associated with monetary judgments, does not express a limitation on the total amount of those awards. Instead, it limits only the hourly rate that an award may be “based on.” 42 U.S.C. § 1997e(d)(3). We infer from the presence of an express limitation on the total amount of attorney’s fees awards in § 1997e(d)(2), and the absence of such a limitation in § 1997e(d)(3), that Congress did not intend the latter section—the section relevant to this appeal—to “cap” the total amount of attorney’s fees awards. We therefore hold that, while the PLRA limits the hours and the hourly rate used in calculating the lodestar figure, it does not cap the total amount of attorney’s fees awards in cases seeking declaratory and injunctive relief, and it continues to authorize a court to enhance the lodestar figure based on non-subsumed factors.
CCA makes several specific objections to this conclusion, none of which is persuasive. First, CCA contends the Supreme Court’s decision in Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999), compels us to treat the hourly rate prescribed in § 1997e(d)(3) as a maximum hourly rate that cannot be enhanced by a nonsubsumed factor. The Court’s opinion in Martin stated that the PLRA “places a cap on the size of attorney’s fees that may be awarded in prison litigation suits.” Id. at 350, 119 S.Ct. 1998. CCA contends this statement tells us that § 1997e(d)(3) caps the total amount of attorney’s fees awards, but CCA quotes the statement out of context. The Court continued: “Court-appointed attorneys in the Eastern District of Michigan are compensated at a

maximum rate of $75 per hour, and thus, ... the PLRA fee cap for attorneys working on prison litigation suits translates into a maximum hourly rate of $112.50.” Id. When read in context, the Court’s statement merely invokes the undisputed proposition that § 1997e(d)(3) limits the hourly rate that may be used for determining the lodestar figure.
Second, CCA contends § 1997e(d)(3) already provides for the possibility of an enhancement. According to CCA, the CJA rate is the presumptive hourly rate under the PLRA, and § 1997e(d)(3) affirmatively authorizes fee enhancements not exceeding 150 percent of that rate. CCA does not cite, nor have we been able to find, any authority supporting this contention. As we have noted above, the PLRA explicitly refers to § 1988 as the governing framework for determining a reasonable attorney’s fees award. 42 U.S.C. § 1997e(d)(1). Attorney’s fees awards under § 1988 are determined by first multiplying the relevant hourly rate by the *1102 number of hours reasonably spent. Section 1997e(d)(3) provides only that fee awards may not “be based on an hourly rate greater than 150 percent” of the CJA rate. That is, the rate limited by § 1997e(d)(3) is the base rate used to calculate the lodestar figure, which is the PLRA’s counterpart to the prevailing market rate used in nonPLRA cases. Only after calculating the lodestar figure using this base rate does a court then determine whether to apply an enhancement to that figure.
[43] [44] Third, CCA contends allowing enhancements under the PLRA renders the 150 percent limitation in § 1997e(d)(3) a dead letter. The 150 percent limitation on the base hourly rate for calculating an attorney’s fees award is meaningless, CCA contends, if the district court may enhance that hourly rate. CCA overstates the matter, ignoring important limitations on a district court’s determination of attorney’s fees awards and its discretion to enhance them. Not only does the PLRA limit the hours for which attorney’s fees may be awarded and the total fees that may be awarded in a case resulting in a monetary award, see § 1997e(d)(1) & (d)(2), but enhancements to the lodestar figure are available only “in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.” Perdue, 559 U.S. at 554, 130 S.Ct. 1662. Further, the fee applicant bears the “the burden of proving that an enhancement is necessary” and “must produce specific evidence that supports the award.” Id. at 553, 130 S.Ct. 1662 (citations and internal quotation marks omitted). Finally, even when an enhancement is appropriate, of course, it may not be based on considerations already subsumed in the PLRA rate.
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Kelly v. Wengler, 822 F.3d 1085 (2016)
3. Justifications for the Enhancement
The remaining question is whether the district court in this case provided clear reasons, supported by specific evidence in the record, for enhancing the lodestar figure. We conclude it did. The district court relied on two nonsubsumed factors to justify its attorney’s fees enhancement—superior performance and the need to attract competent counsel. We consider these factors in turn.
a. Superior Performance
[45] The district court enhanced the lodestar figure in part because it found Plaintiffs’ counsel had provided superior performance. In Perdue, the Supreme Court held, although the lodestar figure typically subsumes “the novelty and complexity of a case” and “the quality of an attorney’s performance,” a court may enhance the lodestar in “rare” and “exceptional” circumstances when the lodestar figure does not adequately represent counsel’s “superior performance and commitment of resources.” 559 U.S. at 553–54, 130 S.Ct. 1662 (citation omitted). The Court gave several examples of such circumstances, including one that is relevant here. A court may enhance the lodestar figure when “the method used in determining the hourly rate employed in the lodestar calculation does not adequately measure the attorney’s true market value, as demonstrated in part during the litigation.” Id. at 554– 55, 130 S.Ct. 1662. Thus, in non-PLRA civil rights cases, a court may enhance the lodestar figure if plaintiff’s counsel demonstrates the value of her services exceeds what the court determines to be the prevailing market rate for otherwise comparable attorneys.
[46] [47] In PLRA cases, the analysis is similar to that in other civil rights cases, though a court must calculate the lodestar figure using a base rate no greater than *1103 the PLRA rate specified in § 1997e(d)(3). In other words, the PLRA rate virtually always replaces the prevailing market rate as the presumptively reasonable rate in the court’s determination of the lodestar figure because actual prevailing rates are very unlikely to be as low as the PLRA rate. See, e.g., Webb v. Ada Cnty., 285 F.3d 829, 838–39 (9th Cir.2002); Graves v. Arpaio, 633 F.Supp.2d 834, 854–55 (D.Ariz.2009); Ilick v. Miller, 68 F.Supp.2d 1169, 1174 (D.Nev.1999); Lozeau v. Lake Cnty., 98 F.Supp.2d 1157, 1171 (D.Mont.2000); Rodriguez v. Cnty. of L.A., 96 F.Supp.3d 1012, 1021 (C.D.Cal.2014). Like the prevailing rate in a non-PLRA case, the PLRA rate generally subsumes the factors relevant to the determination of a reasonable attorney’s fee, including the

novelty and complexity of the case and the quality of the attorney’s performance. However, as in non-PLRA cases, the district court may enhance the lodestar figure when plaintiff’s counsel’s “superior performance and commitment of resources” is “rare” and “exceptional” as compared to the run-of-the-mill representation in such cases. Perdue, 559 U.S. at 553–54, 130 S.Ct. 1662 (citation omitted).
[48] Citing Perdue, the district court found “Plaintiffs’ counsel achieved excellent results for their clients under extreme time pressure and with very limited resources.” The court found further that Plaintiffs’ counsel provided “extraordinary performance yielding extraordinary results,” and that “the quality of the work that produced these results [was] underrepresented in the hourly fee.” We conclude the district court did not abuse its discretion in so finding.
The district court’s justification for enhancing the lodestar figure was supported by specific evidence in the record. The court’s statement that Plaintiffs’ counsel labored “under extreme time pressure and with very limited resources” was, if anything, an understatement. Plaintiffs’ counsel had only twenty-six days to conduct discovery in preparation for the contempt hearing. During that period, Plaintiffs’ two attorneys not only engaged in extensive motions practice, writing numerous pre-trial briefs; they also conducted an extraordinary amount of discovery. They interviewed, deposed, and prepared numerous witnesses in three states and obtained and reviewed roughly 7,000 pages of discovery. Most of the documents were produced for their review only five days before the beginning of the hearing. Some were even produced for review on the first evening of the hearing. Despite these constraints, Plaintiffs’ counsel uncovered substantial evidence of noncompliance with the settlement agreement. Based on this evidence, they obtained a contempt finding and secured significant remedies for their clients.
CCA does not dispute the constraints under which Plaintiffs’ counsel labored, but it contends counsel did not achieve extraordinary results. First, CCA contends the remedies obtained did “nearly nothing” for Plaintiffs because Plaintiff Miera was the only named Plaintiff who remained incarcerated at ICC during the contempt hearing. CCA is wrong in so contending. The parties settled the suit before the district court decided whether to certify a class, but the suit had been filed as a putative class action, and the settlement agreement’s intended beneficiaries were all prisoners at ICC. Plaintiffs’ counsel achieved significant results for these beneficiaries by obtaining a contempt finding against CCA and a two-year extension of the settlement agreement. See Hook v. Ariz.
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Dep’t of Corr., 972 F.2d 1012, 1014–15 (9th Cir.1992) (intended beneficiaries may enforce a court order).
Second, CCA seeks to minimize the importance of the relief obtained by Plaintiffs’ *1104 counsel by pointing to an offer it made during negotiations preceding the contempt hearing. Three weeks before the start of the hearing, CCA offered, in exchange for not being subject to a finding of contempt, to extend the settlement agreement for one year; to hire a monitor of its own choosing to review staffing at ICC; and to pay Plaintiffs’ reasonable attorney’s fees and costs associated with the OSC. CCA compares this offer to the relief ultimately granted by the court and contends the additional relief ordered by the court, over and above CCA’s offer, was insignificant. Again, CCA is wrong in so contending. After the hearing, Plaintiffs obtained an express finding of contempt and a two-year extension of the settlement agreement. This relief is substantially more than was offered by CCA. Moreover, Plaintiffs’ counsel had initiated contempt proceedings a month before CCA made its offer of settlement, and CCA’s offer was the product of the work Plaintiffs’ counsel had already put into the case.
b. Attracting Competent Counsel
[49] The district court also enhanced the lodestar figure because it found the limited fees available in prisoner civil rights cases, without enhancement, are insufficient to induce private attorneys in Idaho to accept cases, such as this one, seeking declaratory and injunctive relief. The court found Plaintiffs’ counsel “were likely the only attorneys willing to accept” Plaintiffs’ case.
[50] CCA contends the district court’s rationale is an impermissible ground for enhancing the lodestar figure in a case governed by the PLRA because it undermines the PLRA’s goal of reducing the number of prisoner lawsuits. CCA’s position would maximize one of the PLRA’s goals by eviscerating the other. The PLRA’s purposes are to “reduce the quantity and improve the quality of prisoner suits.” Porter, 534 U.S. at 524, 122 S.Ct. 983 (emphasis added). Thus, while the PLRA was an effort to “eliminate frivolous lawsuits,” it was not an effort to “eliminate the ameliorative effect achieved by valid constitutionallybased challenges.” Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir.2014); see Woods, 722 F.3d at 1182–83.
Improving the quality of prisoner suits requires that plaintiffs with meritorious civil rights cases be able to secure competent counsel. When the lodestar figure based

on the PLRA rate is insufficient to induce competent attorneys to accept appointment in meritorious civil rights cases, it is by definition not a reasonable fee. See Perdue, 559 U.S. at 552, 130 S.Ct. 1662. When a plaintiff demonstrates with specific evidence that no competent attorney is willing to take on a meritorious civil rights case because of insufficient fees, the district court furthers the PLRA’s purpose by enhancing the lodestar figure by an amount reasonably calculated to induce competent lawyers in the relevant community to take such cases. See id. at 554, 130 S.Ct. 1662 (a fee enhancement is appropriate when there is “specific evidence that the lodestar fee would not have been adequate to attract competent counsel” (citation and internal quotation marks omitted)).
Based on evidence in the record, the district court found that, due to the inadequacy of the unenhanced PLRA rate, Idaho attorneys, save for Plaintiffs’ counsel, have been unwilling to accept appointment in prisoner civil rights cases seeking injunctive and declaratory relief. Plaintiffs’ lead counsel, Stephen Pevar, stated in a declaration that he was not aware of any attorney or organization, other than his organization and attorneys associated with Idaho Legal Aid Services, Inc., that had filed a prisoner class action in Idaho seeking injunctive relief since the PLRA was *1105 enacted. However, Legal Aid Services is now unable to represent prisoners in PLRA cases. Howard Belodoff, the Associate Director of Idaho Legal Aid Services, Inc., stated in a declaration that since 1996 a federal regulation has prohibited his organization from representing plaintiffs in cases governed by the PLRA, on pain of losing its primary source of funding. Finally, J. Walter Sinclair, Jason Monteleone, and Jason Wood, three Idaho practitioners, stated in declarations that they were unaware of any attorney or organization in Idaho, other than the ACLU, that would litigate PLRA suits seeking only declaratory and injunctive relief. Accordingly, we conclude the district court did not abuse its discretion in enhancing the attorney’s fees award to ensure that it was adequate to attract competent counsel in comparable cases.
4. Challenges To Line Items in the Fee Request
CCA contests some of the line items for which Plaintiffs were awarded attorney’s fees. Specifically, CCA contends Plaintiffs should not have been awarded attorney’s fees for two attorneys to attend depositions, and they contend Plaintiffs should not have received attorney’s fees for the performance of certain clerical tasks. We conclude the district court did not abuse its discretion in awarding fees
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Kelly v. Wengler, 822 F.3d 1085 (2016) for these items.

AFFIRMED.

Conclusion
For the foregoing reasons, we affirm the district court’s contempt order and its order awarding attorney’s fees.

All Citations
822 F.3d 1085
	  

Footnotes	  

	  

*	  

The	  Honorable	  Claudia	  Wilken,	  Senior	  District	  Judge	  for	  the	  U.S.	  District	  Court	  for	  the	  Northern	  District	  of	  California,	  sitting	  

	  

by	  designation.	   	  

	  
End	  of	  Document	   	  

©	  2016	  Thomson	  Reuters.	  No	  claim	  to	  original	  U.S.	  Government	  Works.	   	  

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