II\' THE UNITED STATES DISTRICT conn'
FOR THE DISTRICT OF NEW MEXICO
JESUS LIRA.. BEN GARCIA. GRACIELA

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f\1ARTlNEZ. STEPHE\i CellER, CYNTHIA ARCHER, FREDERICKGARCIA and DOUGLAS

06 HM - 7 PH 3: aI

BEIDLER. on their own behalf and on behalf of a

class of similarly situated persons, Plaintiffs,

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No. CIV.()(,._ _ _ __

DONA AI\A COUI\TY BOARD OF COMMISSIOI\ERS; Dona Ana County Detention Center administrator CHRISTOPHER BARELA, in his individual and official capacitie~; former Dona A.na County Detention Center administrator DAVID WOOLEY, in his individual and official capacities; former Dona Ana Coullty Detention Center administrator ALFONSO SOLIZ, in his indi\"idual and official capacities, and former Dona Ana County Detention Center acting administrator CHERYL ROACH. in her individual and official capacities.

Jl'RY TRIAL REQl;ESTED
Lourdes A. Martinez
William P. Lynch

Defendants.

CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL AND CONSTfTlTIO:\'AL RIGHTS AND FOR DECLARATORY AND INJL:"CTI\'E RELIEF

Plaintiffs Jesus lira, Ben Garcia, GracielaMartinez, Stephen Culler. Cynthia Archer, Frederick

Garcia and Douglas Beidler. by and through below·signed counsel. bring this Class Action Complailll

for Damages for Violations of Civil and Constitutional Rights and for Declaratory and Injunctive

Relief against Defendants Dona Ana County Board of Commissioners. Dona .A.na County Detention

Center (hereinafter "DACDC") administrator Christopher Barela. f0I111Cr DACDC administrators

David Wooley and Alfonso Soliz, and former acting administrator Cheryl Roach (hereinafter

"Defendants"). Plaintiffs allege against Defendants upon knowledgc as to themselves and allmallers

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of public rec.ord, and upon infomlation and belief as to all other matkrs. as 1;')llol\'s:

I.
JURISDICTION AND VENtE

I. This Court has jurisdiction over this action pursuant to 28 C.S.C §§ 1331 and 1343

(a)(3) and (4). The Court has jurisdiction over the state law claims pursualll to 28 C.S.C § 1367.

2. Venue is proper in this Court pursuant to 28 U.S.C § l39Hb).

II.
PARTIES

3. Plaintiff Jesus Lira("Lira") is a resident of Las Cruc.es, l\cw Mexico. Lira brings this

action on his own behalf and on behalf of a class of similarly situated persons.

4. Plainti ffBen Garcia ("Garcia") is a resident of Phoenix. Arilona. He brin:;s this action

on his own behalf and on behalf of a class of similarly situated persons.

5. PlaintiffGracielaMartinez ("Martinez") is a residelll of Las Cruces,l\ew Mexico. She

brings this action on her own behalf and on behalf of a class of similarly situated persons.

6. PlaintiffStephen Culler ("Culler") is a resident ofLas Cruces, Nel\' 'vlexico. He brings

this action on his own behalf and on behalf of a class of similarly situated persons.

7. Plaintiff Cynthia Archer ("Archer") is a resident of Las Cruces. l\ew Mexico. She

brings this action on her own behalf and on behalf of a class of similarly situated persons.

8.

PlaintiffFrederic.k Garcia ("Frederick") is a resident l)f Las Cruces. I\t\\ ~1ex iell. He

brings this action on his own behalf and on behalf of a class of similarly situated persons.

9. Plaintiff Douglas Beidler ("Beidler") is a resident of Las Cruces, l\ew \1exico. He

blings this action on his own behalf and on behalf of a class of similarly situated persons.

10. Defendant Dona Ana County Board of Commissioners ("Dona Ana County") is a

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political subdivision of the State of New Mexico. Pursuant to S .:1-46-1 "'JMSA 1978. all suits or
proccedings against a county are to be brought in the name of the board ol"county commissioners (,I" that county. At all times material hereto, Dona Ana County was a goyelllmental entity and local puhlic body as those tenllS are defined in the New Mexico Tort Claims Act. ~S -l1-4-3(B) and (C) :\MSA 1978. as amended. At all times material hereto, Dona Ana County was the employer and supelyisor ofthe individually named Defendants. Pursuant to §§ 4-44-19.33-3-3 through 8. and 33-3-13 "'JMSA 1978. Dona Ana County had a statutory obligation to provide for the confincment of prisoners incarcerated under thc county's jurisdiction. Dona Ana County had a statutory obligation to appropliate funds and otherwise provide the necessary funding to maintain and operate a facility for the incarceration of prisoners under the jurisdiction of the county.
II. Defcndant Christopher Barela ("Barela"), upon informali()n and belief: is no\\ and "I all time material hereto has been a resident ofDona Ana County. '\e\\' 'v1cxieo. Since approximately December II. 2005, Barela has been the DACDC administrator. having been duly appointed to the position by the Dona Ana County Board of Commissioners. Between February II. 200.:1. and August 23. 2004, and between August 23, 2005, and December I L 2005. Barela was one of two acting DACDC administrators, having been duly appointed by said county cOlllmissioners. In addition. at all times material hereto, Barela was a law enforcement officer and public employee as those ten1lS arc defined in the New Mexico Tort Claims Act, §§ 41-4-3(D) and (F) 1\\'ISA 1978. as amended. and was acting within the scope ofhis duties as well as under color ofla\\,. He is sued both personally and in his official capacity. The allegations herein which pertain to Barela relate to the period during which he was an acting DACDC administrator or the permanent DACDC administrator.
12. Defendant David Wooley ("Wooley"), upon information and helief. is now and :Jt all
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times material hereto has been a resident ofDona Ana County. New :'I.1exico. From August 23. 2(1)4. to August 22. 2005. Wooley was the DACDC administrator. haying been duly appointed ILl lh~ position by the Dona Ana County Board ofCommissioners. During the period Wooley was DACDC administrator. he was a law enforcement officer and public employee as those terms are defined in the J\cw Mexico Tort Claims Act. §§ 41-4-3(D) and (F) NMSA 1978. as amended. and was acting within the scope of his duties as well as under color oflaw. He is sued both personally and in his official capacity. The allegations herein which pertain to Wooley relate to the period during which he was DACDC administrator.
13. Defendant Alfonso Soliz ("Soliz"), upon information and belief. is now' and at all time material hereto has been a resident of Dona Ana County, New Mexico. Between 2000 and Febmary 10.2004. Soliz was the DACDC administrator, having been duly appointed tn the position by the Dllna 1\.na County Board of Commissioners. During the period Soliz was DACDC administrator. he was a law enforcement officer and public employee as those tenns are defined in the New !>.1exico Tort Claims Act, §§ 41-4-3(D) and (F) NMSA 1978, as amended. and was acting \\'ithin the scope of his duties as well as under color of law. He is sued both personally and in his official capacity. The allegations herein which pertain to Soliz relate to the period during which he was DACDC. administrator.
14. Defendant Cheryl Roach ("Roach''), upon infomlation and bc\ieC is now and at all time material hereto has been a resident of Dona Ana County, New ~exico. 8et\\'een February 11, 2n04. and August 23, 2004. and between August 23,2005 and December II. 2005. Roach was one of two acting DACDC administrators, having been duly appointed by said county commissioners. In addition. at all times material hereto. Roach was a law enforcement ofticcr and public employee as those tenns
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are defined in the New Mexico Tort Claims Act, §§ 41-4-3(D) and (F) KMSA 1978. as amended. and was acting within the scope of her duties as well as under color ofla\\'. Sh~ is su~d both personally and in her official capacity. The allegations herein which pertain to Roach relate to the period during which she was an acting DACDC administrator.
IS. Defendants Dona Ana County, Barela, Wooley. Soliz and Roach were responsible lor the screening. hiring. training, monitoring, supervision and disciplining of sub'lrdinate employees or DACDC, and were the authorities empowering DACDC employees to incarcerate prisoners LInder the jurisdiction of Dona Ana County. Defendants Dona Ana County, Barcia, Wooky, Soliz and Roach were directly responsible for the policy-making activities and the supervision of subordinate officers ofDACDC.
16. Defendants Dona Ana County, Barela, Wooley, Soliz and Ro<ljjhrough their officials. agents. servants, and employees. were involved in and responsible for all the acts hereinafier alleged. At all times material hereto, Defendants Dona Ana County, Barcia. Wooley. Soliz and Roach. individually and/or acting through their agents, officers and cmployees. acted in concert with one another and pursuant to a common plan and objective, and each of the Defendants is responsible for the acts and omissions of the other Defendants, and their agents. officers and cmployees. as co·
conspirators, under the doctrine ofrespondeat superior, and under other doctrines ofvicario LIS liahility.
III. CLAIMS OF THE NAMED PLAI:"lTI FFS 17. Paragraphs 1 through 16 above are incorporated herein by reference as iffully set forth in this paragraph.
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Jesus Lira
J8. Jesus Lira is J8 years old. He lives in Las Cruces. :'\cw "1exico. Lira mlenlb 1\'layfield High School and maintains a grade point average above 3.0. Prior to January J. 2(1(16. he had ne\er been arrested in his life.
19. On January 1. 2006. Lira was arrested for driving while intoxicated and was taken to the DACDC to be booked. Lira was taken to a room and ordered to disrohe. He removed his clothes and stood in the middle of the room in his underwear and socks. A DACDC officer instructed him to "take it all off." Thinking the detention officer meant his socks, he complied. The officer then informed him that he also meant his underwear, and Lira complied by removing his underwear.
20. The detention officer instructed the now naked Lira to bcnd ovcr and grab his ankles. Lira did so and had to remain in this position for sometime. The officer visually examincd his genital and anal area from behind. Nothing was found.
Ben Garcia
2 J. Ben Garcia is 22 years old. He currently lives in Phoenix. Arizona. hut was a student at "Jew Mexico State University at the time of this incident. Prior to thc C\'cnts described below, he had never been arrested in his life.
22. On August 3, 2003, Garcia was arrested for driving while intoxicated and taken to the DACDC for booking.
23. Garcia was then taken into a room by a detention officer and told to take off all his clothing. He complied with the officer's orders. While completely naked. the detention officer visually examined him. Nothing was found.
Graciela Martinez
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24. Graciela Martinez is 26 years old. She lives in La \1csa. Ne\\' Mexico and is the mother of two young children.
25. On March 22, 2004, Martinez was stopped by a law enforcement officer as she was dliving to EI Paso, Texas, to pick up a friend from the airport. She was arrested for some outstanding trartie tickets.
26. Martinez was taken to the DACDC for booking. She was then taken into a room by a detention officer and told to remove all her clothes. Martinez complied and removed all her clothing.
27. Once completely naked, Martinez was ordered by the officerto squat and cough while the ofticer visually examined her. She complied. Nothing was found.
Stephen Culler 28. Stephen Culler is 22 years old. He lives in Las Cruces, New \1exico and allends New Mexico State University. Prior to the events described below. he had ncvcr been an-ested in his life. 29. On July 18. 2003, Culler was arrested for driving while inioxicated. He was taken to the DACDC for booking. He was then taken by a detention officer into a room near the hooking area and instructed to take off all his clothes. He complied. His naked body was visually examined by the officer. Nothing was found.
Cynthia Archer 30. Cynthia Archer is 28 years old. She lives in El Paso. Texas and attends college m Careers Center of EI Paso. 31. On May 28,2004, Archer was arrested for driving while intoxicated. She \\'as taken into custody and transported to the DACDe for booking. 32. Archer was then taken by a detention officer into a room and instructed to take offall
7

her clothing. Archer questioned why she would have to take off her clathes. Thc dctention officer responded by stating that she had to search Archer. Archer then asked if they did this to everyone. The detention officer answered that they had to do this to everyone. Aftcr taking c\"erY1hing oiTe~cept for her bra, Archer was ordered to bend over and remain in that position. While she \\·as bent over. the officer visually inspected her genital and anal areas from behind. :-.Jothing was found.
33. The detention officer then ordered Archer to take off her hra. Archer explained to the officer that she did not want to take it off and felt there was no reason to do so. The ot'licer again ordered her to take it off. Again Archer expressed her desire to !cave it on. The officer eventually made luTher pull the bra away from her breasts and visually inspected them. Nothing was found.
Frederick Garcia 34. Frederick Garcia is 40 years old. He lives in Las Cruces and is a Ii felong resident of !\ew Mexico. 35. On December 29, 2004, Frederick was arrested for dri\·ing \\hile intoxicated. He was taken into custody and transported to the DACDC for booking. 36. At the DACDC, Frederick was taken by a detention ofticer into a room and ordered to take off all his clothing. Frederick complied. 37. While Frederick was naked, the officer visually examined hi III and ordered him to squat and cough. Again he complied. Nothing was found.
Douglas Beidler 38. Douglas Beidler is 26 years old and is a resident of Las Cruces, :\ew Mexico. He has a Bachelor of Nursing degree from the New Mexico State University. 39. On July 6, 2004, Beidler was arrested for driving while intoxicated. He was taken into
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custody and transported to the DACDC for booking. At the DACDC. he \\ as taken hy a detention officer into a room and ordered to take off all his clothes. He complied.
40. After Beidler removed all his clothing, he was instructed to bend over and grab his ankles. Beidler did so and had to remain in this position for some time. The officcr visually examined his genital and anal areas from behind. Nothing was found.
Allegations Common to All Named l'laintiffs 41. Defendants and their employees, agents and representati ves had no valid reason for conducting strip searches of the named Plaintiffs. Nothing in the named Plainti frs' histories. nor the circumstances of their arrests. gave Defendants reasonable suspicion that a strip search ol'the named Plaintiffs would result in the discovery of contraband or weapons. Rather. the strip search",> of the named Plaintiffs were undertaken pursuant to a blanket and indiscriminate policy of strip searching detainees processed at the DACDC, in violation of well-settled constitutional law and standards of correctional practice. 42. Plaintiffs were shocked, repulsed, humiliated. ashamed and distraught at heing subjected to these degrading and dehumanizing invasions of their privacy.
IV. CLASS ACTION ALLEGATIONS 43. Paragraphs 1 through 42, above, are incorporated herein by reference as iffully set forth in this paragraph. 44. The strip searches to which Plaintiffs were subjected were performed pursuant to the policies, practices and customs ofDefendants ofconducting strip searches ofincoll1ing detainees. The searches complained of herein wereperforrned without regard to the nature of the alleged offenses for
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which Plaintiffs had been arrested. and without Defendants or their employees. agents and representatives having a reasonable belief that the Plaintiffs so searched possessed weapons or contraband. or that there existed facts supporting a reasonable bdicfthat the searches would produce contraband or weapons.
45. This civil action is brought by Plaintiffs on their own hdlUl f and on behalf of a class of similarly situated persons. pursuant to Fed. R. Civ. P. 23. The class for which Plaintiffs seeks certification is defined as follows: all persons who, in the period from "'Iarch 3, 20()3, to the present and continuing until this matter is adjudicated and the practices complained of herein cease. were arrested and subjected to a strip search and/or body cavity search at the Dona A.na County Detention facility pursuant to a policy or practice of conducting strip searches on pre-arraignment arrestees without individualized reasonable suspicion that the search ""ould lead to the disco\'ery of contraband or weapons.
46. Plaintiffs are members of the class they seek to rcpresent, and ha\'e standing to bring this action because they were arrested and subjected to a strip search and."))' \'isual body search at thc DACDC in the absence of a reasonable suspicion that the search would be producti\'c of contraband or weapons, as set forth in more detail above.
47. Pursuant to Fed. R. Civ. P. 23, Plaintiffs, indi\'idually and on behalf of the mcmhers of the class, seek such relief as is just and equitable, including but not limited to: (i) Com p Iete disclosure of all information within the possession, custody or control of Defendanis conceming. relating to or involving the searches complained of herein;
(ii) Iudicial declaration that the searches complained of herein are unlawful: (iii) Issuance of a permanent injunction prohibiting Defendants from engaging in the searches
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complained of herein; and (iv) Judgment for compensatory and punitive damages to the fullest extent allowable by law
from Defendants in favor ofPlaintiffs and the members ofthe class for personal and economic inj ury, and deprivation of statutory and/or common law rights resulting from Defendants' practices.
48. Plaintiffs are unable to state precisely the size of the class. On information and belief. Plaintiffs allege that there often are more than ten persons per day who are anested, booked into the DACDC and subjected to the searches complained of herein as a result of Defendants' policies, practices, and customs related to said searches. Thus, the class is sufficiently numerous that joinder of all members herein is impracticable. The exact number of class nK'mbers will he ascertained through appropriate discovery, from records maintained by Defendants and their agents.
49. Questions oflaw and fact are common to the claims of Plainti frs and the members of thc class, including but not limited to (1) whether DACDC officers routinely subject persons anested to strip searches and/or body cavity searches; (2) whether persons are subjected to strip searches and!or hody cavity searches in the absence of any reasonable suspicion, based on specific and Cl11iculable facts, to believe any particular detainee has concealed drugs, weapons, and or contrahand; (3) whether the strip searehes are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches; (4) whether DACDC officers may lawfully perfonn strip searches and/or body cavity searches without reasonable suspicion, based on speeific and articulable faels, to believe any particular detainee has concealed drugs, weapons or contrahand: (5) whether strip searches and/or body cavity searches may lawfully be conducted in areas \\'here the search can be ohserved by people not participating in the search; and (6) whether or not Defendants' strip search policy and procedure is in accordance with the State and Federal Constitutions.
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50. Defendants have acted or refused to act on grounds generally applicable to the class. therehy making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
51. There is a well-defined community of interest amongst memhers of thc class. The claims of the named Plaintiffs are typical ofthe claims ofthc members of the class. The factual bases of Defendants' misconduct are common to all class members and represent a common policy and practice of blanket strip searches of detainees without reasonable suspicion. Morco\·cr. Plaintiffs' claims are based on the same legal theories as those of the class mcmbers.
52. The named Plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs are committed to prosecuting this action, and they have retained competent counsel experienced in civil litigation of this nature. Moreover, the interests of Plaintiffs arc coincident with. and not antagonistic to. those of the other members of the class.
53. The common questions oflaw and fact herein predominate ovcr questions alTecting any individual class member, and class action treatment provides a superior method for the fair and efficient adjudication of the controversy.
54. At alI times relevant to the acts alleged herein, and as to eycry causc of action asserted. Defendants acted fraudulently, oppressively, maliciously. and in knowing and conscious disregard of Plaintiffs' rights and the rights of class members, as outlined herein.
V.
FIRST CAUSE OF ACTIO:'ol (Civil Rights Violations Under 42 l.'.S.c. § 1983) 55. Plaintiffs incorporate by reference into their first cause of action the allegations of paragraphs 1 through 54 above. as fully as ifrealleged and set forth herein.
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56. The above-described acts and omissions of Defendants were unreasonable. shocking to the conscience, and were committed intentionally, maliciously, willfully :lnd'or \\·ith reckless or ddiberate indifTerence, and in violation of the following clearly established constitutional rights of which a reasonable person would have been aware:
(a) Plaintiffs' and class members' Fourth Amendment rights to be free frotllunreasonable searches and seizures; and
(b) Plaintiffs' and class members' Eighth Amendment rights to be free from cruel and unusual punishment and/or Fourteenth Amendment rights to substantive and procedural due process, and to privacy.
57. The above-described acts and omissions of Defendants were Ill()tivated by evil motive and intent, and involved recklessness and callous indifference to Plainti ffs' and class members' federally protected rights, justifying an award of punitive damages.
5S. Prior to the acts and omissions alleged herein, Defendants t:lilcd to properly create. adopt, inculcate and ensure compliance with appropriate policies and procedures for corrections officers and supen·isorypersOlmel employed by them; failed to properly train, monitor, supervise and discipline corrections officers and supervisory personnel employed by them. and failed to otherwise institute and ensure compliance with adequate procedures and policies that would protect the rights of Plaintiffs and class members. These acts and omissions were direct and proximate causes of the injuries complained of by Plaintiffs herein, as set forth below.
59. Defendants Dona Ana County, Barela, Wooley, Soliz and/or Roach maintained a custom or policy which permitted or condoned the foregoing violations of Plaintiffs' and class members' constitutional rights.
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60. The acts and omissions of the Defendants as set forth abo\"(: were unde11ak~n under colorofstatc law and operated to deprive Plaintiffs and the members of the class oftheir f~deral rights. Defendants Barela. Wooley. Soliz and Roach are liable in their individu~l and oftlcial capacities for damages proximately caused by these acts and omissions. Plaintiffs are also entitled to injunctive reliefagainst the Defendants, including a permanent injunction prohibiting Defendants from engaging in the unlawful practices and procedures complained of herein.
61. As a direct and proximate cause of Defendants ' \'iolations 0 f their c()Jlstitut ional rights, Plaintiffs and members of the class suffered damages as set 10rth helow.
VI. SECOND CAUSE OF ACTION (Claims Arising Under the New Mexico Tort Claims Act) 62. Plainti ffs incorporate by reference into their second cause of action the allegations of paragraphs 1 through 61 above. as fully as ifrealleged and set forth herein. 63. The conduct of Defendants, described above, resulted in personal injury and bodily inj ury to Plaintiffs and members ofthe class resulting from assault, battery, false imprisonment. and/or deprivation ofrights, privileges or immunity secured by the Constitution and laws of the l.'nited Slates and t\ew Mexico. 64. Defendants Barela, Wooley, Soliz and Roach, as supervisors ofDACDC officers. had the duty in any activity actually undertaken by them to exercise for the safety of others that care ordinarily exercised hy a reasonable, prudent and qualified law enforccment supcrvisor in light of the nature of what was being done. In addition, Defendants Barela. Wooley, Soliz and Roach had a duty to properly screen, hire, train, monitor, supervise andlordiscipline employees ofDACDC. Defendants Barela, Wooley, Soliz and Roach knew or reasonably should have known ofthe information described
14

above. 65. Defendants Barela, Wooley, Soliz and Roach breached th~ foregoing duties by f~liling
to properly screen, hire, train. monitor, supervise and/or discipline empk'yees of DACDC. and by failing to adopt and ensure compliance with appropriate policies, procedures alld protocols. by failing to implement appropriate supplemental training, by failing to appropriately discipline subordinate orticers, and by failing to take other appropriate and usual supervisory actions to correct the problems and to prevent the hann which resulted to Plaintiffs and members of the class as a result of the misconduct of Defendants, described above.
66. Dona Ana County is the governmental entity \\'hich had immediate supervisory responsibility over the actions of employees of the DACDC, including but not limited to Defendants Barela, Wooley, Soliz and Roach. Therefore, Dona Ana County is jointly and severally liable for all inj uries and damages caused by the negligence of any of its officials or employees under the doctrine of vicarious liability.
67. The conduct of Defendants was a direct and proximate cause of the injuries and damages to Plaintiffs and members of the class as set forth below.
68. All of the acts or omissions which constitute the basis for liability herein come within the scope of the waivers of immunity contained within the Ne\1 Mexico TlJrl Cbillls .-\Cl.
69. To the extent required, Plaintiffs have given written notice of the claims contained herein in compliance with the New Mexico Tort Claims Act. §41-4-1 ci(A H.C) '\MSA 1978. as amended.
70. As a direct and proximate cause ofDefendants' conduct, Plaillli ffs and members of the class suffered damages as set forth below.
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VII. THIRD CAUSE OF ACTIO]\" (Declaratory and Injunctive Relief)
71. Plaintiffs incorporate by reference into their fourth cause of ~ction the allegations of paragraphs 1 through 70 above, as fully as ifrealleged and set forth herein.
72. Plaintiffs, on behalf of themselves and the members of the class, seek a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants trom any further strip searches without individualized reasonable suspicion.
73. The constitutional violations alleged herein arise from oftlcial policies and practices sanctioned by Defendants. The harm which the Plaintiffs and the memhers of the class have sustained are dircctly traceable to these officially sanctioned policies and procedures.
74. Plaintiffs and members of the class do not have a plain, adequate. speedy, or complete remedy at law to address the wrongs alleged in this Complaint, and they will suffer irreparable injury as a result ofDefendants' misconduct unless injunctive and declaratoryreliefis gl"anted. Plaintiffs and members of the class are in real and immediate danger of sustaining future. direct injury as a result of Defendants' official policies and practices that are ongoing at the time of this suit.
75. 1\0 cOl,'1lizable burden will be placed on Defendants hy rcquiring thattlo strip searches be undertaken without individualized reasonable suspicion. The public interest would be greatly enhanced by enforcement of policies and practices which adhere to the requirements of the state and federal Constitutions. Absent injunctive relief, there is no guarantee that the Defendants will ccas~ their illegal policies and practices as alleged herein.
76. By reason of the foregoing, Plaintiffs and members of the class arc entitled to declaratory and injunctive relief as set forth above.
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VIII. DAMAGES
77. Paragraphs I through 76, above, are incorporated herein by reference as iffully set forth in this paragraph.
78. As a direct and proximate result ofthe wrongful antlunl;.mflll action, of DcI"cnliants. described above. Plaintiffs and the members ofthe class were iJ~jured and have suffered and continue to suffer damages, including but not limited to distress, anguish, suffering. humiliation. dcpri\'ation of constitutional rights. and other incidental, consequential, and special damages.
79. Defendants' acts and omissions, as set forth herein, were malicious. reckless. wanton,
oppressive, and/or fraudulent,justifying an award ofpunitive damages against the individually named Defendants in their personal capacities, for the purpose of punishment and to deter others 1i'om the commission oflike offenses.
WHEREFORE, Plaintiffs, on behalfof themselves, and on behalfofthe members of the class represented herein. respectfully pray for and demandjudgmcnt against the Defendants as follows:
(a) For judgment against Defendants for compensatory damages. special damages. consequential dan1ages and incidental damages under any or all of the causes of action, in an amount to be detenllined at the trial of this cause;
(b) For judgment declaring the rights of the parties; (c) For injunctive relief; (d) For reasonable attorneys' fees and costs incurred herein; (e) For pre-judgment and post-judgment interest in amounts to bc determined according
to law;
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(1) For an award ofpunitive and exemplarydanlages. in an amount to he Jetennined at the
trial of this cause; and
(g) For such other and further relief as the Court deems just and proper.
JURY TRIAL REQUEST
COME NOW Plaintiffs, by and through their counsel. below-listed. on their own behalf and
on behalf of a class of similarly situated persons, and hereby demand trial by jury pursuant to the terms
and conditions of Fed.R.Civ.P. 38 in regard to all issues in the above-referenced cause.
Respectfully submitted,
LILLEY LAW OFFICES
~1'r·.i
By: ----:1!---"~~fb-,_.~---i-----i:J:::::__ ...
Mi hael W. Lilley Jess R. Lilley Marc A. Lilley 1014 S. Main Las Cruces, N~ S80()5 (505) 524-7809 (505) 526-2462 (fax)
ROTHSTEIN, DONATELLL HUGHES, DAHLSTROM. SCHOEKBl.:RG &. BrE"lVENC. LLP
By: b='1t~ Mark H. Donatelli Robert R. Rothstei n John C. Bienvenu Post Office Box 8180 Santa Fe, New Mexico S75114-S 180 (505) 988-8004 (505) 982-0307 (fax)
Attorneys/or Plail1fijr, llnd rhe Class
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 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JESUS LIRA, BEN GARCIA, GRACIELA MARTINEZ, STEPHEN CULLER, CYNTHIA ARCHER, FREDERICK GARCIA and DOUGLAS BEIDLER, on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs,

vs.

No. CIV 06-0179 WPJ/WPL

DONA ANA COUNTY BOARD OF COMMISSIONERS; Dona Ana County Detention Center administrator CHRISTOPHER BARELA, in his individual and official capacities; former Dona Ana County Detention Center administrator DAVID WOOLEY, in his individual and official capacities; former Dona Ana County Detention Center administrator ALFONSO SOLIZ, in his individual and official capacities, and former Dona Ana County Detention Center acting administrator CHERYL ROACH, in her individual and official capacities.

Defendants.

JOINT UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia and Douglas Beidler, individually and on behalf of the settlement class defined herein, on the one hand (hereinafter, “Plaintiffs”); and Defendants Dona Ana County Board of Commissioners, Dona Ana County Detention Center (hereinafter “DACDC”) administrator Christopher Barela, former DACDC administrators David Wooley and Alfonso Soliz, and former

acting administrator Cheryl Roach, on the other hand (hereinafter “Defendants”) (Plaintiffs and Defendants are hereinafter collectively referred to as “the Parties”), by and through their respective counsel, jointly move the Court to grant preliminary approval of a Stipulation of Settlement (“Settlement Agreement”) that has been negotiated and reached by the Parties as a proposed complete resolution of this class action case. A copy of the Settlement Agreement is attached hereto as Exhibit A. Specifically, the Parties request the Court to enter an Order, in the form attached hereto as Exhibit B: (1) preliminarily approving the Settlement Agreement; (2) conditionally certifying the Class; (3) appointing Named Plaintiffs as Class Representatives; (4) appointing counsel for the Named Plaintiffs as Class Counsel; (5) approving the form and manner of the Notice to be sent to Class Members and a Summary Notice to be published in various newspapers concerning the Settlement Agreement;1 (6) approving the forms of, and setting deadlines for submission of, claim forms, exclusion requests (“opt outs”) and objections;2 and (7) setting a date for a final fairness hearing.
This motion will explain the circumstances and terms of the settlement, and the legal grounds supporting its preliminary approval.
I. INTRODUCTION A. The Action On March 7, 2006, Plaintiffs, on behalf of themselves and all persons similarly situated, filed a complaint in the above-captioned matter (the “Action”) in which they challenged certain
1 A Copy of the proposed Notice is attached as Exhibit 2 to the Settlement Agreement. 2 A Copy of the Claim Form is attached as Exhibit 1 to the Settlement Agreement.
2

practices of Defendants including the strip search of certain detainees, and sought damages and declaratory and injunctive relief. Plaintiffs allege that they were each unlawfully subjected to a strip search performed pursuant to the policies, practices and customs of Defendants of conducting strip searches of all incoming pre-arraignment detainees. Plaintiffs allege that these strip searches were performed without regard to the nature of the alleged offenses for which Plaintiffs had been arrested, and without Defendants having a reasonable belief that the Plaintiffs possessed weapons or contraband, or that there existed facts supporting a reasonable belief that the search would produce contraband or weapons.
Plaintiffs sought damages for civil rights violations under 42 U.S.C. § 1983, and for claims arising under the New Mexico Tort Claims Act. Plaintiffs additionally sought a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches without individualized reasonable suspicion. Plaintiffs brought this action on their own behalf and on behalf of a class of similarly situated individuals.
Defendants contend that not all incoming pre-arraignment detainees were subjected to strip searches. Defendants further contend that the admissions search policies at the DACDC were and are reasonably related to legitimate penological interests in deterring the introduction of weapons, drugs and other contraband into the detention center. Defendants submit that the detention center policies are entitled to deference under the law, and that the policies should not be found to violate the Constitution or any state law. Defendants further deny that the searches of Plaintiffs violated any state or federal law.
3

Nonetheless, while denying any liability, the Defendants consider it desirable and in their interests that the Action be dismissed on the terms set forth in the Settlement Agreement in order to avoid further expense, inconvenience, and distraction, and to avoid protracted litigation.
By entering into the Settlement Agreement and taking actions pursuant to it, the Parties do not concede that any particular allegations, claims or defenses in the Action have merit. Accordingly, while Defendants join in this motion for preliminary approval of the Settlement Agreement and request that the Court enter the accompanying Order, this motion does not constitute an admission of any liability or of the propriety of class action treatment of this litigation in the event that the Court does not preliminarily or finally approve the Settlement or if such approval is overturned on appeal. In the event that final approval is not obtained and the Settlement Agreement does not become effective, nothing in this motion or the accompanying settlement pleadings may be used for any purpose in further litigation of the claims of the Named Plaintiffs or of any of the putative Class Members that they seek to represent. Similarly, even if the Settlement Agreement is finally approved and becomes effective, none of the assertions made in this motion or in any of the accompanying settlement pleadings constitutes or should be deemed an admission by any of the Defendants in any litigation commenced by any putative class member who opts out of the Settlement or by any person who does not meet the criteria for inclusion in the Class.
B. Summary of the Settlement Terms After exchanging discovery, the Parties entered into the arms-length settlement negotiations that culminated in the Settlement Agreement. Under the Settlement Agreement, the
4

Parties have stipulated that the Action should be certified as a class action under Fed.R.Civ.P. 23. The Parties agree that the Defendants will pay $5 million (the “Settlement Fund”) in compensation for the Settlement Class (as that term is defined in the Settlement Agreement), for payment of incentive compensation for each Named Plaintiff, and for Plaintiffs’ reasonable attorneys’ fees and costs. The settlement will constitute a full and complete adjudication of the claims, rights and obligations of the Parties and the Class with respect to the matters alleged in the Action and as further set forth in the Settlement Agreement. The Parties believe that they have crafted a fair, reasonable and adequate settlement of the claims at issue in this case, and one that warrants the Court’s preliminary approval.
II. FACTUAL BACKGROUND RELEVANT TO PRELIMINARY APPROVAL A. History of This Litigation The Action was filed on March 7, 2006. The Parties entered into the voluntary exchange of all relevant information pertaining to the claims raised herein, including extensive review of thousands of individual booking records. On May 14 and 15, 2007, the Parties engaged in two days of mediation sessions with experienced mediator Nancy Lesser, and, following mediation, continued negotiations until the attached Settlement Agreement was finally reached. In addition, the Plaintiffs obtained and analyzed the voluminous database maintained by the Defendants for all persons booked into the DACDC during the relevant class period (numbering in excess of 36,000 individual bookings). See Affidavit of Attorney John C. Bienvenu, filed separately. B. The Settlement Terms The terms of the settlement are fully described in the Settlement Agreement, and are
5

summarized as follows. 1. Certification of the Class
The Settlement Class is defined in the Settlement Agreement as all persons arrested on a non-VDW Offense3 who were strip searched between March 7, 2003 and March 7, 2006 at DACDC prior to arraignment. The Parties estimate that there are approximately 11,000 Settlement Class members. See Bienvenu Affidavit. The Parties agree that the Action should be conditionally certified as a class action under Fed.R.Civ.P. 23.
2. Monetary Relief to Settlement Class Members a. Payments to the Settlement Class
The Settlement Agreement provides that the Defendants will deposit a Settlement Fund of $5,000,000 into an interest-earning qualified settlement fund account within thirty days of the date of preliminary approval. The Claims Administrator will pay out of the Settlement Fund to each Settlement Class member who submits a valid and timely Claim Form a Settlement Payment calculated for that Settlement Class member under the proposed Plan of Allocation (attached to the Settlement Agreement as Exhibit 3). At this time, depending on how many Settlement Class members actually file claims, the range of expected pay-outs per individual claimants is estimated at $1,200 to $2,400. See Bienvenu Affidavit.
b. Incentive Payments Under the Settlement Agreement, the Class Representatives will be eligible to receive compensation for their contribution to the investigation and prosecution of this case, in addition
3 A “Non-VDW Offense” is defined as an offense not involving drugs, weapons or violence as identified in Exhibit 4 to the Settlement Agreement.
6

to the amounts to which they are entitled under the Plan of Allocation. The Parties have agreed that $175,000 of the Settlement Fund will be allocated for this purpose, subject to approval of the Court, representing $25,000 per Class Representative.
c. Equitable Relief The Parties have stipulated and agreed that the strip search policies at the DCADC were changed as a result of Plaintiffs’ and Plaintiffs’ counsel’s efforts preceding and during this lawsuit, and that the request for equitable relief was thereby rendered moot.
d. Attorneys’ Fees and Costs The Parties have stipulated and agreed that $1,666,667 of the Settlement Fund will be allocated to Plaintiffs’ attorneys’ fees, gross receipts tax on fees, and litigation expenses, subject to approval of the Court.
e. Release of Claims All Plaintiffs and Settlement Class members who do not opt out of the settlement will release the Defendants from any and all claims which are based upon or could be based upon or arise from the facts alleged in the Action.
f. Notice and Opt-Out Procedures The Settlement Agreement provides for a detailed Notice to be sent by mail to all Settlement Class members informing them (in English and Spanish) of their rights under the Settlement Agreement, and for a summary Notice (in English and Spanish) to be published in local newspapers informing Settlement Class members of the settlement and directing them to sources of additional information. In addition, announcements summarizing the settlement are to
7

be made in English and Spanish on three local radio stations. The Settlement Agreement provides that Settlement Class members have two options for
responding to the Notice. A Settlement Class member may (1) remain a Settlement Class member and be eligible to submit a Claim Form, or (2) request exclusion from the Settlement Class and opt out. Settlement Class members who request exclusion from the Settlement Class and opt out will not be deemed to have released the Defendants from any claims and may pursue any claims they may have against the Defendants, but will not receive any payments from the Settlement Fund. Settlement Class members who do nothing will be deemed to have released their claims, but will not receive any payments from the Settlement Fund. Settlement Class members who submit Claim Forms will be eligible to receive payments from the Settlement Fund as determined under the Plan of Allocation.
Settlement Class members who do not opt-out may also present objections to the Court at the final fairness hearing.
III. ARGUMENT A. The Settlement Agreement Merits Preliminary Approval Preliminary approval of a proposed settlement is part of a two-step process required before a class action can be settled. See Manual for Complex Litigation, Fourth (hereinafter “Manual”) § 21.632 (Fed. Jud. Ctr. 2004). In considering preliminary approval, courts make a preliminary evaluation of the fairness of the settlement. “Where the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class
8

and falls within the range of possible approval, preliminary approval is granted.” In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997); see also Manual § 21.632. “Once preliminary approval is bestowed, the second step of the process ensues: notice is given to the class members [of the terms of the proposed settlement and of a hearing] at which class members and the settling parties may be heard with respect to final court approval.” NASDAQ, 176 F.R.D. at 102; Manual at §§ 21.633-34.
In considering whether to grant a motion for preliminary approval of a proposed settlement agreement, the Court utilizes a “threshold inquiry” intended merely to reveal conspicuous defects. See In re Inter-Op Hip Prosthesis Liability Litig., 204 F.R.D. 330, 337-38 (N.D. Ohio 2001). Ultimately, of course, before a settlement can be finally approved, the Court must determine that a settlement is fair, reasonable and adequate. See Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir. 1984). At the preliminary approval stage, however, the Court should evaluate, based on the terms of the Settlement Agreement, the contents of the record, and the controlling legal authority whether “the proposed settlement is sufficiently reasonable, adequate, fair, and consistent with the requirements of Fed.R.Civ.P. 23 to warrant notice… to the class members and a fairness hearing.” See Marcus v. Kan., Dep’t of Revenue, 206 F.R.D. 509, 513 (D. Kan. 2002).
Considering the issues, evidence, and nature of the settlement negotiations, preliminary approval is appropriate in this case. First, the proposed settlement is the product of serious, informed, non-collusive negotiations. The settlement negotiations lasted many months, were adversarial in nature, and involved numerous parties with varying interests. The Parties engaged
9

in mediation with the assistance of a highly experienced mediator, Nancy Lesser on May 14 and May 15, 2007, and then continued negotiations amongst counsel through August 2006. See Bienvenu Affidavit. Thus, the course of settlement negotiations rises well above the threshold for preliminary approval.
Second, the terms of the Settlement Agreement are fair, reasonable, and adequate to resolve the dispute. Liability was hotly contested. Both sides developed evidence to support their claims and defenses. Plaintiffs believe their class would have been certified. Defendants are equally convinced they would have defeated class certification and would have been allowed to defend the claims on an individual basis. All Parties predicted protracted litigation. Most courts, in considering approval of a class action settlement, note the advantages of avoiding lengthy and expensive litigation. See, e.g., Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)(recognizing “the strong judicial policy that favors settlements, particularly where complex class action litigation is concerned”); Wald v. Wolfson (In re United States Oil and Gas Litig.), 967 F.2d 489, 493 (11th Cir. 1992) (“Complex litigation . . . can occupy a court’s docket for years on end, depleting the resources of the parties and the taxpayers while rendering meaningful relief increasingly elusive”). The Parties here recognized the advantages of settlement over continued litigation.
The Settlement Fund established here is a meaningful benefit to Settlement Class members. Plaintiffs’ counsel, who are experienced in this type of litigation, believe the Class members’ chances of obtaining better results by continuing the litigation or by pursuing separate claims are uncertain at best. See Bienvenu Affidavit. See also Duhaime v. John Hancock Mut.
10

Life Ins. Co., 177 F.R.D. 54, 69 (D. Mass. 1997) (approving settlement agreement and noting that settlement “provides class members with timely relief without having to risk the uncertainty of outcome, duration, and expense inherent in continuing the litigation”).
Finally, the Settlement Agreement does not grant unduly preferential treatment of class representatives or segments of the class. NASDAQ, 176 F.R.D. at 102. In this instance, through non-collusive negotiation, the Parties have agreed that the Settlement Agreement should include incentive awards to the Class Representatives. The Plaintiffs submit that the proposed incentive awards are reasonable and are intended to recognize the significant time and efforts expended by the Class Representatives on behalf of the Class and the risks that they undertook in bringing the lawsuit. Ingram v. The Coca Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001)(“‘Courts routinely approve incentive awards to compensate named plaintiffs for the services they provide and the risks they incurred during the course of the class action litigation’” (quoting In re Southern Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)). The Class Representatives contributed substantial time and energy in support of the action, including extensive participation in discovery, case strategy, case management, and mediation. Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995) (in considering an incentive award, the court may consider the risk to the class representatives, both financial and otherwise; the personal difficulties encountered by the class representatives; the amount of time and effort spent on litigation; the duration of the litigation; and the personal benefit—or lack thereof—enjoyed by the class representative as a result of the litigation). Given their contributions throughout the litigation, these individual payments are reasonable and not excessive. Cf. Ingram, 200 F.R.D. at
11

694 (approving $300,000 incentive award to each named plaintiff); see also, Bienvenu Aff., (payments of $42,500 per named plaintiff approved by United States District Judge Bruce Black in Leyba, et al. v. Santa Fe County Board of Commissioners, et al., No. CIV 05-0036 BB/ACT). The Defendants have agreed to neither oppose nor support the amounts proposed to be paid to the Class Representatives as an incentive.
B. The Court Should Appoint Class Representatives and Class Counsel and Conditionally Certify the Class
The instant case, which alleges that the Defendants’ practices affected a large group of individual detainees at the DCADC, is exactly the sort of dispute that Fed.R.Civ.P. 23 is designed to remedy. For that reason, the Parties urge the Court to appoint Class Representatives and Class Counsel, and to conditionally certify the Class under Rule 23. Courts have regularly certified classes of a similar nature. See e.g. Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004) (upholding certification of class of arrestees challenging counties’ alleged policies of conducting routine strip searches of all pre-arraignment detainees); Blihovde v. St. Croix County, Wis., 219 F.R.D. 607 (W.D. Wis. 2003) (certifying class of persons strip searched at county jail); Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000) (certifying class of pre-arraignment female detainees challenging county’s policy of routine subjecting female pre-arraignment detainees to strip searches without individualized reasonable suspicion). Because Plaintiffs meet all the technical requirements of Rule 23, and because it is fair and efficient to resolve all the claims together, the Court should conditionally certify the Class in this case.
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1. The Court Should Appoint the Class Representatives and Class Counsel This Motion seeks appointment of Named Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia and Douglas Beidler as Class Representatives. All of these Named Plaintiffs are appropriate Class Representatives because they were subject to the same policies and practices that allegedly violated the rights of the Class members. Furthermore, all of these Plaintiffs have acted in the best interest of the Class and none of these Plaintiffs has a conflict of interest which would preclude him or her from serving as a representative of the Class. This Motion also seeks appointment of Robert R. Rothstein, John C. Bienvenu and Mark H. Donatelli of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, and Michael W. Lilley and Marc A. Lilley, Lilley Law Offices, as Class Counsel. These lawyers are experienced in the areas of civil rights law and class action litigation, and none has any conflict of interest which would preclude him from serving as Class Counsel. All of these lawyers have been involved in the litigation from the time the lawsuit was filed, and all participated in the negotiations that led to the Settlement Agreement.
2. The Proposed Settlement Class Meets the Requirements of Rule 23(a) A class must have the following prerequisites in order to be certified under Fed. R. Civ. P. 23(a): “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” See Lopez v. City of Santa Fe, 206
13

F.R.D. 285, 288 (D.N.M. 2002)(certifying settlement class); Fed. R. Civ. P. 23(a). Here the proposed Class clearly satisfies all of the Rule 23(a) requirements.
a. The Class Is So Numerous that Joinder Is Impracticable The Settlement Class in this case is estimated to include approximately 11,000 individuals. See Bienvenu Affidavit. Joinder of so many individual members would be impracticable, and accordingly this Court should find that the numerosity requirement of Rule 23(a) is satisfied in this case. See 1 H. Newberg & A. Conte, Newberg on Class Actions §3:5, at 246 (4th. ed. 2002)(in most cases where class size numbers in the hundreds, numerosity is not an issue).
b. There Are Questions of Law and Fact Common to the Class The commonality requirement is met if plaintiffs’ grievances share a common question of law or fact. Lopez, 206 F.R.D. at 288. “Commonality requires only a single issue common to the class, and the fact that the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.” Id. at 289 (internal quotations marks & citations omitted); see also Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). The claims on behalf of the Class before the Court share numerous common questions of fact and law. Most importantly, the case is dominated by the factual and legal questions of whether the Defendants’ policies and procedures with respect to strip searches of pre-arraignment detainees violated the rights of the Settlement Class members. Resolving these questions would depend in large part upon evidence that would apply to the Settlement Class as a whole. Thus,
14

the Rule 23(a)(2) commonality requirement is satisfied. c. Plaintiffs’ Claims Are Typical of the Settlement Class and There Are No Conflicts
The proposed Class Representatives present claims that are typical of those of the Settlement Class. “A… plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and if his or her claims are based on the same legal theory.” Lopez, 206 F.R.D. at 289 (internal quotation marks & citations omitted); see also In re American Medical Systems, Inc., 75 F.3d 1069, 1082 (6th Cir. 1996) (citing Newberg on Class Actions §3.13, at 3-76 (3d. ed. 1992)).
In this case, each of the proposed Class Representatives claims that he or she was strip searched in violation of his or her rights. See Compl. ¶¶ 18-42. These claims are also brought on behalf of the Settlement Class. See Compl. ¶¶ 44-53. The Complaint alleges that the Named Plaintiffs’ claims arise out of the same events, practices and course of conduct that give rise to the class-wide injury at issue. See Compl. at ¶¶ 44-53. As such, it is manifest that the typicality requirement is met.
d. The Class Representatives Have Fairly and Adequately Protected the Interests of the Settlement Class
The purpose of the adequacy of representation requirement is to “protect the legal rights of absent class members.” Lopez, 206 F.R.D. at 289 (internal quotation marks & citation omitted); see also Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 721 (11th Cir. 1987). “In order to adequately represent the class, two requirements must be met: (1) the class representative must not have interests antagonistic to those of the class, and (2) the attorneys
15

representing the class must be qualified, experienced, and generally able to conduct the proposed litigation.” Lopez, 206 F.R.D. at 289-9; see also Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993); Cross v. Nat’l Trust Life Ins. Co., 553 F.2d 1026, 1031 (6th Cir. 1977).
The first requirement, an absence of any conflicts between the Class Representatives and the Settlement Class, is satisfied because both the Class Representatives and the Settlement Class members allege they have been harmed by the Defendants’ allegedly unlawful practices. Because all Class Representatives and the Settlement Class Members have allegedly suffered harm as a result of the Defendants’ practices, there are no antagonistic or conflicting interests that would prevent the Class Representatives from safeguarding the rights of absent Settlement Class members.
The second requirement is also met. Counsel for the Plaintiffs are qualified and experienced in class action and civil rights litigation. Bienvenu Affidavit. Class Counsel have diligently pursued this case on behalf of the Named Plaintiffs and absent Settlement Class members and are continuing to do so. Thus, the adequacy requirement is met.
3. The Proposed Settlement Class Satisfies the Rule 23(b) Requirements Once the Court finds that the prerequisites of Rule 23(a) are satisfied, the Court must determine whether or not the action is maintainable as a class action under one or more provisions of Rule 23(b). See, e.g., Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). Courts have certified class actions under both Rules 23(b)(2) and (b)(3) when both monetary compensation and equitable relief are at issue. See, e.g., Molski v. Gleich, 318 F.3d
16

937 (9th Cir. 2003); Senter v. Gen. Motors Corp., 532 F.2d 511 (6th Cir. 1976). As the claims here satisfy the requirements of both Rule 23(b)(2) and (b)(3), the Court should certify the Class.
a. Rule 23(b)(2) Certification Is Appropriate Certification is appropriate under Rule 23(b)(2) where the defendant has “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2); Marcus v. Kan., Dep’t of Revenue, 206 F.R.D. 509, 513 (D. Kan. 2002). This case involves a class of individuals who claim that they were unlawfully strip searched pursuant to a blanket policy. See Compl. ¶¶ 44, 48. This is precisely the type of case where certification under Rule 23(b)(2) is appropriate. See Marcus, 206 F.R.D. at 513 (finding certification appropriate under Rule 23(b)(2) where defendant had allegedly violated the law “in a manner that is generally applicable to the class”); Wilfong v. Rent-A-Center, Inc., No. 00-CV-680, 2001 WL 1795093, at *7-8 (S.D. Ill. Dec. 27, 2001).
b. Rule 23(b)(3) Certification Is Appropriate Class certification under Rule 23(b)(3) is appropriate when “questions of law or fact common to the members of the class predominate” and “a class action is superior to other available methods” of adjudicating the controversy. Fed. R. Civ. P. 23(b)(3); Wilfong, 2001 WL 1795093, at *7-8. Here, Plaintiffs’ claims are properly certified under Rule 23(b)(3) because Plaintiffs satisfy both the “predominance” and the “superiority” requirements. To satisfy the predominance requirements, Plaintiffs must show that one or more common issues predominate over individual issues and that one trial of common issues is superior to conducting literally
17

hundreds or thousands of separate trials. See Fed. R. Civ. P. 23(b)(3). The primary purpose of Rule 23(b)(3) is to promote efficiency and to take advantage of the economy that results from jointly adjudicating a large number of claims that share one or more common questions. See Fed. R. Civ. P. 23 Advisory Committee Notes, 1966 Amendments; see also Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1196 (6th Cir. 1988) (goal of Rule 23(b)(3) is “to achieve the economies of time, effort, and expense”).
“Common issues predominate within the meaning of Rule 23(b)(3) when they constitute a significant part of the litigation.” Wilfong, 2001 WL 1795093 at *8; see also Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir. 1986). The predominance requirement addresses efficiency by making certain that class wide issues outweigh individual issues. See Sterling, 855 F.2d at 1197. The claims in the Action are based on what Plaintiffs allege to be a single course of conduct: the Defendants’ unconstitutional policy of strip searching all pre-arraignment detainees without individualized reasonable suspicion. Thus, Plaintiffs face a common set of factual and legal issues and a common cause of injury that predominates over individual questions.
Since all Settlement Class members have the right to opt out of the settlement, there is nothing that prevents any plaintiff from continuing to prosecute his or her claim for monetary relief individually. See, e.g., In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 330, 347 (N.D. Ohio 2001); Fed. R. Civ. P. 23(b)(3)(A). Further, the relief provided in the Settlement Agreement would not be available in the absence of the class treatment. See Hip Prosthesis, 204 F.R.D. at 347-48.
C. The Court Should Approve the Proposed Settlement Notices and Authorize Their Dissemination 18

“[I]n any proceeding [that] is to be accorded finality,” due process requires that interested parties be provided with “notice reasonably calculated, under… the circumstances, to apprise [them] of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The notice must be reasonably calculated to reach interested parties and where the names and address of the interested parties are known, due process requires mailed notices. Id. at 318-19; Dejulius v. Sprint Corp., 429 F.3d 935 (10th Cir. 2005).
The contents of class notice must ‘“fairly apprise the . . . members of the class of the terms of the proposed settlement and of the options that are open to them in connection with [the] proceedings.”’ Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1995) (quoting Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir. 1982)). Class notice is sufficient if it “may be understood by the average… class member.” In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1104 (5th Cir. 1997); see also Churchill Village L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)(“Notice is satisfactory if it generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.”)(internal quotation marks & citation omitted).
Here, the proposed notices and their method of dissemination meet these requirements. The proposed notices clearly and concisely inform Settlement Class members of all the relevant aspects of the litigation: (a) the Class definition and statement of claims; (b) the litigation history; (c) the terms of the Settlement Agreement; (d) the binding effect of any judgment approving the Settlement on those who do not opt out; (e) the right to object to the Settlement and the
19

procedure for doing so; (g) whom to contact to obtain additional information regarding the

Settlement or the litigation; (h) the amount of compensation requested for the Class

Representatives to compensate them for their services to the Class; and (i) the amount requested

for reasonable attorneys’ fees and costs. Thus, the notices provide all the information necessary

for Settlement Class members to make an informed decision with respect to whether to remain in

or opt out of the Settlement Class or whether to object to the proposed Settlement. Further,

delivery by first class mail to the Settlement Class members’ last known addresses is designed to

reach the members in the most expeditious and economical way. In addition, summary notice of

the Settlement will be published in local newspapers and will be broadcast on three local radio

stations in order to notify Settlement Class members who are not notified of the Settlement

through other means.

D. The Court Should Schedule a Fairness Hearing and Approve the Proposed Schedule for the Mailing of Settlement Notices, the Return of Opt-Outs, and the Filing of Objections

The Parties propose the following sequence of events and deadlines, assuming the Court

grants this Motion for Preliminary Approval:

Mailing of Notice Package to Class: 45 days after preliminary approval.

Opt out deadline:

45 days after mailing of Notice Package.

Objections to settlement:

45 days after mailing of Notice Package.

Fairness Hearing:

At least 135 days after preliminary approval.

Claims Deadline:

30 days after final approval hearing.

20

IV. CONCLUSION For the foregoing reasons, the Parties respectfully request that the Court issue its Order, substantially in the form attached hereto as Exhibit B, (1) Preliminarily approving the Settlement Agreement; (2) Conditionally certifying the proposed Settlement Class; (3) Appointing Named Plaintiffs as Class Representatives; (4) Appointing counsel for Named Plaintiffs herein as Class Counsel; (5) Approving the form and manner of Notice to be sent to Settlement Class
Members and Summary Notice to be published in various newspapers in accordance with the Settlement Agreement; (6) Approving the forms for, and setting deadlines with respect to, claims, opt outs, and objections; and (7) Setting a date for a final fairness hearing.
Respectfully submitted, ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP Robert R. Rothstein Mark H. Donatelli John C. Bienvenu Post Office Box 8180 Santa Fe, New Mexico 87504-8180 By:Electronically Signed 9/19/07 Attorneys for Plaintiffs
21

LILLEY LAW OFFICES
By: Electronically Signed Michael W. Lilley Marc A. Lilley 1014 S. Main Las Cruces, NM 88005 (505) 524-7809 Attorneys for Plaintiffs
CARRILLO LAW, LLC
By: Electronically Signed Raul A. Carrillo, Jr. P.O. Box 457 937 E. Lohman Ave. Las Cruces, NM 88001
Attorneys for Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach
KELEHER & McLEOD, P.A.
By: Electronically Signed Kurt Wihl Gary J. Van Luchene P.O. Drawer AA Albuquerque, NM 87103 (505) 346-4646
Attorneys for Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach
S:\JBienvenu\6639\Settlement Documents\Motion for Preliminary Approval.wpd
22

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

JESUS LIRA, BEN GARCIA, GRACIELA MARTINEZ, STEPHEN CULLER, CYNTffiA ARCHER, FREDERICK GARCIA and DOUGLAS BEIDLER, on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs,

vs.

No. CIV 06-0179 WPJIWPL

,

DONA ANA COUNTY BOARD OF COMMISSIONERS; Dona Ana County Detention Center administrator CHRISTOPHER

,

BARELA, in his individual and official capacities;

L

former Dona Ana County Detention Center

",

administrator DAVID WOOLEY, in his

individual and official capacities; former

Dona Ana County Detention Center

administrator ALFONSO SOLIZ, in his

individual and official capacities, and former

Dona Ana County Detention Center acting

administrator CHERYL ROACH, in her

individual and official capacities.

Defendants. STIPULATION OF SETTLEMENT

I

Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer,

Frederick Garcia and Douglas Beidler, individually and on behalf of the settlement class defined

herein, on the one hand (hereinafter, "Plaintiffs"); and Defendants Dona Ana County Board of

Commissioners, Dona Ana County Detention Center (hereinafter "DACDC") administrator

Christopher Barela, former DACDC administrators David Wooley and Alfonso Soliz, and

EXHffiIT "A"

fonner acting administrator Cheryl Roach, on the other hand (hereinafter "Defendants")

(plaintiffs and Defendants are hereinafter collectively referred to as "the Parties"), by and

,

through their respective counsel, hereby enter into the following Stipulation of Settlement

("Stipulation of Settlement" or "Agreement").

I.

RECITALS

On March 7, 2006, Plaintiffs, on behalf of themselves and all persons similarly situated,

filed a complaint in the above-captioned matter in which they challenged certain practices of

Defendants including the strip search of certain detainees, and sought damages and declaratory

.L

and injunctive relief Plaintiffs allege that they were each unlawfully subjected to a strip search

performed pursuant to the policies, practices and customs of Defendants of conducting strip

searches of all incoming pre-arraignment detainees. Plaintiffs allege that these strip searches

were performed without regard to the nature of the alleged offenses for which Plaintiffs had been

arrested, and without Defendants having a reasonable belief that the Plaintiffs possessed weapons or contraband, or that there existed facts supporting a reasonable belief that the search would

I,

~

produce contraband or weapons.

Plaintiffs sought damages for civil rights violations under 42 U.S.c. § 1983, and for

claims arising under the New Mexico Tort Claims Act. Plaintiffs additionally sought a judgment

declaring that Defendants must cease the activities described herein and enjoining Defendants

2

from any further strip searches without individualized reasonable suspicion. Plaintiffs brought

this action on their own behalf and on behalf of a class of similarly situated individuals.

Defendants contend that not all incoming pre-arraignment detainees were subjected to

strip searches. Defendants further contend that the admissions search policies at the DACDC

were and are reasonably related to legitimate penological interests in deterring the introduction of

weapons, drugs and other contraband into the detention center. Defendants submit that the

c

detention center policies are entitled to deference under the law, and that the policies should not

"

be found to violate the Constitution or any state law. Defendants further deny that the searches

j

,

of Plaintiffs violated any state or federal law.

"

The Parties entered into the voluntary exchange of all relevant infOimation pertaining to

the claims raised herein.

On May 14 and 15,2007, the Parties engaged in two days of mediation sessions with

experienced mediator Nancy Lesser, and, following mediation, continued negotiations until they

L

arrived at this agreed Stipulation of Settlement which, subject to the approval of the Court, settles this action in the manner and upon the terms set forth below and fully resolves the dispute.

I

~

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between

the Parties, as follows:

II.

DEFINITIONS

3

1. "Administrator" means a claims administrator as appointed by the Court to review

and determine the validity and amount of claims submitted by Settlement Class Members

!

("SCMs"), according to the procedures set forth herein. The selection ofthe Administrator and

the terms and conditions of the administration agreement shall be subject to mutual approval by

counsel for the Parties, but all Parties shall cooperate in good faith.

2. The "Bar Date" is the date established by the Court by which any SCM who

wishes to receive payment pursuant to the Stipulation of Settlement must file hislher Claim Form(s), objections to this Stipulation of Settlement, or request to be excluded from the class

I,

(opt-out).

"

3. "Charge List" means the list of charges attached hereto as Exhibit 4.

4. The "Claim Form" is the form required to be used to make a claim for payment

under this settlement. A copy of the proposed Claim Form is attached as Exhibit" I."

5. "Class Counsel" means, collectively, Robert R. Rothstein, John C. Bienvenu and

Mark H. Donatelli of the Law Offices of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg

& Bienvenu, LLP; and Michael W. Lilley, Jess R. Lilley, and Marc A. Lilley of the Lilley Law

Offices.

6. The "Class Notice" means the notice in a form substantially similar to that
attached hereto as Exhibit "z" (Notice by Mail), and the summary notice substantially in the

form attached hereto as Exhibit "3" to be published in newspapers identified in Paragraph 50

herein, and posted in the DACDC and announced on radio as referenced in Paragraph 51 herein.

4

7. The "Class Period" is March 7, 2003 through March 7, 2006.

8. The "Database" is the infonnation to be provided in hard copy and/or electronic

I

form by the Defendants to the Administrator and Class Counsel no later than the later of thirty

(30) days from the Parties' selection ofthe Administrator or thirty (30) days from the date the

United States District Court grants preliminary approval of the terms oftrus Stipulation of

Settlement. The Database includes, to the extent practicable, the name, last known addresses,

date of birth, Social Security Number, date(s) of arrest and charges of all SeMs arrested during
the Class Period; date(s) ofbooking(s), housing(s) and first appearance(s) of each member ofthe

"
,

L

class. The Database shall not be provided by the Administrator or Class Counsel to any parties

"

or to any seMs.

9. The "Effective Date" means the date upon which ajudgment entered by the Court

approving the Stipulation of Settlement becomes final. Thejudgment will be deemed final only

upon expiration of the time to appeal or, if a Notice of Appeal is filed, upon exhaustion of all

,

appeals and petitions for writs of certiorari.

,

10. ''Non-VDW Offense" means an offense not listed on the Charge List (Exhibit 4.)

II. "VDW Offense means an offense which appears on the Charge List (Exhibit 4.)

12. An "Opt-Out" is any potential Settlement Class Member who files a timely

request for exclusion as specified in Paragraph 44.

13. "Released Persons" means Defendants and their affiliates. subsidiaries,

predecessors, successors, and/or assigns, together with past, present, and future officials,

5

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:

employees, representatives, attorneys and/or agents of the Dona Ana County Board of

,I,

Commissioners, DACDC, Christopher Barela, David Wooley and Alfonso Soliz, or any of them.

I

"Released Persons" also includes any and a11 insurance carriers, or risk pools, for the Released

, ,

Persons.

14. A "Settlement Class Member" ("SCM") means any member of the Settlement

Class including representatives, successors and assigns, who does not file a valid and timely

i

Request for Exclusion as provided in Paragraph 44 of this Stipulation of Settlement. 15. "Settlement Class" means all persons arrested on a non-VDW Offense who were

I

strip searched during the Class Period at DACDC prior to arraignment.

, L"

16, "Strip search" means a search conducted upon intake and booking by a corrections

i:

officer in which the person was required to remove all of his or her clothing, including

underwear, in the presence of the corrections officer.

! !:
17. "Verified claims" means claims that are made in writing on the Claim Forms and

that are signed under oath by the SCM.

,u

18. This Stipulation of Settlement is for settlement purposes only, and neither the fact

:
of, nor any provision contained in this Stipulation of Settlement or its exhibits, nor any action

taken hereunder shall constitute, be construed as, or be admissible in evidence as any admission

of the validity of any claim or any fact alleged by Plaintiffs or SCMs in this action or in any other

pending or future action or of any wrongdoing, fault, violation oflaw, or liability of any kind on

the part of Defendants or admission by Defendants of any claim or allegation made in this aClion

6

I
, ~

or in any other action, nor as an admission by any of the Plaintiffs, SCMs or Class Counsel of the

validity of any fact or defense asserted against them in this action or in any other action.

I

Defendants deny all allegations of wrongdoing and deny any liability to Plaintiffs or to any other

,

class members. The Parties have agreed that, in order to avoid long and costly litigation, this

controversy should be settled pursuant to the terms of this Stipulation of Settlement, subject to

the approval of the Court.

m.
TERMS AND EFFECT OF STIPULATION OF SETTLEMENT

"
,

19. The Parties agree solely for the purposes ofthi5 settlement and implementation

l

that the within action shall proceed as a class action, with the Settlement Class as defined in

Paragraph 15, and that attorneys for the Class are Class Counsel defined in Paragraph 5; but if

such settlement fails to be approved or otherwise fails of consummation, then this Stipulation of

Settlement is hereby withdrawn.

20. SCMs who comply with the requirements set forth in this StipUlation of

Settlement will be paid specified sums determined by the process set forth herein in full

satisfaction of all claims.

21. The Parties hereto stipulate and agree that the strip search policies at the DCADC

were changed as a result of Plaintiffs' and Class Counsel's efforts preceding and during this

lawsuit and that the request for equitable relief was thereby rendered moot.

22. The Stipulation of Settlement, as ofthe Effective Date, resolves in full all claims

7

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I

against the Released Persons by all of the SCMs, including the named Plaintiffs, involving

violation oflaw or constitutional rights, including their Fourth Amendment rights, their

I

Fourteenth Amendment rights, or of any other federal, state or local law, regulation, duty, or

obligation which are based upon or could be based upon or arise from the facts alleged in the

lawsuit. 'When the Stipulation of Settlement is final, as of the Effective Date, all SeMs, including

the named Plaintiffs, hereby release all such claims.

!

23. The Parties agree that the Court, by preliminarily approving the Stipulation of Settlement, will be certifying the class as defined in Paragraph 15, as the Settlement Class,

i"

l

subject to final approval ofthe Settlement at the fairness hearing and that the Court shall retain

, , "

c

exclusive and continuing jurisdiction of the action, Parties, SCMs, and the Administrator to

interpret and enforce the terms, conditions and obligations under this Agreement.

24. As ofthe Effective Date of this Stipulation of Settlement, the SCMs, including

I-

e

the named Plaintiffs, hereby waive any and all rights to pursue, initiate, prosecute, or commence

i'

any action or proceeding before any court, administrative agency or other tribunal, or to file any

I

complaint with regard to acts of commission or omission by the Released Persons respecting

~

such SCMs with respect to any strip search by Defendants that occurred during the Class Period.

25. This Stipulation of Settlement together with its exhibits contains all the tenns and

conditions agreed upon by the Parties hereto regarding the subject matter of the instant

proceeding, and no oral agreement entered into at any time nor any written agreement entered

8

into prior to the execution of this StipUlation shall be deemed to exist. or to bind the Parties

hereto, or to vary the teInlS and conditions contained herein, except as expressly provided herein.

26. Each SCM shall be deemed to have submitted to the jurisdiction of the Court.

27. No Opt-Out shall share in any monetary benefits provided by this Stipulation of

Settlement.

28. This settlement is subject to and conditioned upon the final approval ofthis

i

r

Stipulation of Settlement and the issuance of the final order and judgment of dismissal by the

Court, providing the below specified relief, which relief shall be pursuant to the terms and

conditions ofthis Stipulation of Settlement and the Parties' performance of their continuing

rights and obligations hereunder. The order and judgment will be deemed [mal only upon

expiration of the time to appeal, or if a Notice of Appeal is filed, upon exhaustion of all appeals

and petitions for writs of certiorari. Such final order and judgment shall:

a. Dismiss with prejudice all claims in the action as to the Released Persons

including all claims for declaratory and injunctive relief;

b. Order that all SCMs are enjoined from asserting against any Released

Person, any and all claims which the SCMs had, has, or may have in the

future arising out of the facts alleged in the Complaint;

c. Release each Released Person from the claims which any SCM has, had or

may have in the future, against such Released Person arising out ofthe

facts alleged in the Complaint;

9

I
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d. Detennine that this Stipulation ofSettiement is entered into in good faith,

is reasonable, fair and adequate, and in the best interest of the Class; and

I

e. Reserve the Court's continuing and exclusive jurisdiction over the Parties

to this Stipulation of Settlement, including Defendants and seMs, to

administer, supervise, construe and enforce the Stipulation of Settlement

in accordance with the tenns for the mutual benefit of all the Parties.

29. The Parties will take all necessary and appropriate steps to obtain preliminary

approval of the Stipulation ofSettiement, final approval ofthe Settlement, and dismissal of the
action with prejudice. Ifthe Court fmally approves this Stipulation of Settlement, and if there is

an appeal from such decision, Defendants will not oppose Plaintiffs' efforts to defend the

Stipulation of Settlement.

IV.

RESOLUTION AND PAYMENT OF CLAIMS FOR DAMAGES

30. The settlement amount, which shall be used to pay all verified claims of SCMs,

administrative costs, incentive bonuses to Class Representatives, and attorneys' fees and costs, is

$5,000,000.00 (Five Million Dollars) ("Settlement Fund"). The Settlement Fund will be

distributed as follows, subject to approval of the Court:

a. $175,000.00 will be allocated for payment to Plaintiffs collectively to

acknowledge their participation and efforts in this lawsuit in securing

damages for personal injury for SCMs. This amount is separate and apart

10

from any payment due for their individual claims as SCMs and shall be

paid within ten days of the Effective Date. Defendants agree not to contest

Plaintiffs' request for approval of this payment to Plaintiffs. In the event

the Court approves less than this amount, the balance remaining in the

Settlement Fund will be added to the amount allocated to pay verified

claims.

r

b. $\,666,667.00 will be allocated for payment of Plaintiffs' attorneys' fees, gross receipts tax on Plaintiffs' attorneys' fees, and Plaintiffs' litigation

,

L

expenses and costs through the date that this settlement becomes final, to

"

be paid within ten days of the Effective Date. Defendants agree not to

,

contest Plaintiffs' request for approval of this amount for fees, gross

receipts tax, and litigation expenses. In the event the Court approves less

than this amount, the balance remaining in the Settlement Fund will be

added to the amount allocated to pay verified claims.

c. Actual costs of claims administration, providing notice to the Class, and

processing and administering the Settlement ofSCMs' claims will be paid

from the Settlement Fund. Invoices for services provided by the

Administrator shall be approved first by Class Counsel and then by

Defendants' counsel, and then paid by check from the Settlement Fund.

11

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,

d. The balance of the Settlement Fund, after payment of all amounts

enumerated above, will be distributed, pro-rata as described in Paragraph

I

33 below, among the SCMs who timely file qualifying Claim FOiTIlS, as

r

soon as practicable after the Effective Date.

31. Within 30 days of preliminary approval by the United States District Court of the

tenns ofthis Stipulation ofSettiement, Defendants will transmit by wire transfer or certified

funds the Settlement Fund to the Administrator or the Administrator's designee for deposit in an

interest-bearing qualified settlement fund, and all interest earned on the Settlement Fund shall

inure to the benefit of the SCMs.

32. The Parties agree to make an application to the Court to appoint the Administrator

an officer of the Court for the purpose of implementing the terms of this Stipulation of

Settlement. The Administrator shall be subject to judicial immunity to the fullest extent

permitted by law. The Administrator shall be subject to the jurisdiction of the Court with respect to any dispute arising between the Administrator and the Parties regarding the implementation of

j:
,l

the terms and conditions of the administration agreement.

V.

PROCEDURES FOR RECEIVING PAYMENT UNDER THIS STIPULATION OF SETTLEMENT

33. All SCMs who were strip searched during the Class Period, prior to arraignment,

at the DACDC following arrests on a Non-VDW Offense, shall be entitled to receive a pro-rata

share of the funds allocated for payment of SCM claims, with up to a maximum of two searches

12

during the Class Period being counted as separate claims. Payment shall be in full satisfaction of

each and every claim of such SCMs.

I

34. If the Administrator receives Claim Forms identifying infonnation substantially

different from that on the Database so that the Administrator is unable to determine if the persons

submitting the Claim Fonns are SCMs or are otherwise entitled to payment, the Administrator

shall forward copies of the Claim Forms to Defendants' counsel and Class Counsel who shall

consult in an attempt to agree on the eligibility of the questioned claimants to receive payments. If Defendants' counsel and Class Counsel cannot agree, the Administrator will notify the

I

L

claimant(s) that additional information must be submitted to be postmarked or received within 14

, "

days to substantiate their eligibility. If information is submitted, the Administrator will be

I,,.
, ,

responsible for making the determination of eligibility. Ifno information is received, the

claimant(s) will be excluded.

35. If the Administrator receives Claim Fonns from persons whom it cannot locate on

u

the Database, it will the notify the persons submitting the Claim Forms that they are not on the Database and request that such persons submit information to substantiate their eligibility to be

I

, ~

postmarked or received within 14 days. Ifno further information is timely provided, the

claimants will be ineligible. If further information is provided, the Administrator will determine

eligibility.

36. The Parties expressly agree that the funds paid herein are not for economic

13

damages or for punitive damages but are attributable to damages on account of alleged personal

injuries, including but not limited to bodily injury, mental and emotional distress, and pain and

suffering, arising from an occurrence, within the meaning of § 104(a)(2) of the Internal Revenue

Code of 1986, as amended.

37. Any SCM who fails to submit a Claim Form completed in accordance with the

instructions contained therein by the Bar Date or any other Court mandated extension, shall be

c

forever barred from receiving any payment pursuant to the Stipulation of Settlement. Such SCM shall in all other respects be bound by all of the terms of the Stipulation of Settlement, and the

I

L

judgment entered herein, including but not limited to the release of all Released Persons of all

"

claims resolved herein.

38. To receive payment, an SCM shall be required to submit to the Administrator an

executed Claim Form signed under penalty ofpeIjury with questions completed in accordance

with the instructions provided. All Claim Forms must be submitted by the Bar Date unless such

period is extended by order ofthe Court.

39. The Claim Form shan be submitted by first class mail and shall be deemed

submitted upon the date ofthe postmark thereon or the date of receipt, whichever is earlier.

40. SCMs who submit valid and timely claims and whose names appear on the

Database will be paid by mail at the address specified on the Claim Form as soon as practicable

after the Effective Date.

14

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41. The Administrator shall determine whether or not a person who has submitted a

Claim Form is an SCM and shall reject claims by persons who are not SeMs. The Administrator

I

will determine the dollar amount of each payment to an eligible SCM based upon the

r

Administrator's review of the SeMs' responses to questions on the Claim Form, the number of

claims and the funds available in the settlement fund.

42. If either the Defendants or Class Counsel contests a claim on the ground of fraud

or administrative error, the contesting party will notify the other party, the Administrator and the claimant. The other party andlor the claimant will have 10 days within which to respond to the

I,

notice. After the deadline for response, the contesting party will submit any remaining issue to

!

the District Court in accordance with local motion practice. The decision of the District Court

will be final and unappealable. The contesting party will have the burden of proof

43 For any Claim Form that the Administrator determines to be invalid or incorrect,

the Administrator will provide written notice to the SCM that will include procedures and time

limits for seeking reconsideration of the Administrator's determination. If the SCM timely and

properly contests the Administrator's determination of the validity or correctness ofthe Claim

Form, the Administrator will reconsider the Claim Form and make a second determination. If the

Administrator determines a second time that the Claim Form is invalid or incorrect the

Administrator will notify the SCM of his or her right to appeal to the District Court within thirty

days of notice ofthe Administrator's second determination. The District Court's written decision

on appeal from the Administrator's second detennination will be final and unappealable.

15

VI.

EXCLUSION FROM THE SETTLEMENT CLASS

I

44. Any potential SCM who wishes to be excluded from the Settlement Class must

submit a request to be excluded from the class in the form attached hereto as Exhibit 5 to the

Administrator, so that it is postmarked or otherwise delivered on or before the Bar Date or as the

Court may otherwise direct.

45. Any potential SCM who does not timely file a Request for Exclusion shall conclusively be deemed to have become an SCM and to be bound by this Stipulation of

I

L

Settlement and all subsequent proceedings, orders and judgments herein.

"

46. Any SCM who does not elect to be excluded from the Settlement Class may, but

need not, enter an appearance through his or her own attorney.

47. The Administrator will report all Opt-Out elections to all counsel upon receipt,

and will determine and report to counsel for the Parties not later than ten (10) days after the Bar

,

!;

Date the total number of timely and valid Opt-Out elections. Ifthe total number of potential SCMs submitting timely and valid Opt-Out elections equals or exceeds the number stated in a

I

separate confidential letter [more than 50 potential SCMs]. then the Defendants, in their sole

discretion, may rescind their acceptance of this Agreement, in which case the Agreement will be

rendered null and void and of no effect. To exercise this right of rescission, the Defendants must

serve on the Administrator and Class Counsel a written notice of rescission not later than thirty

(30) days after the Administrator serves counsel for the Defendants with its totals of valid and

16

rt

timely Opt-Out elections received. In the event the Defendants validly and timely exercise their

right ofrescission, the funds deposited by Defendants pursuant to Paragraph 31 herein, together

with any interest earned thereon, will be returned to Defendants, less any expenses, fees and costs

incurred by the Administrator.

VII.

OBJECTING TO THE PROPOSED SETTLEMENT

,

48. Any SCM who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed settlement. The Court will enter an

I

L

appropriate order setting forth the procedure for SeMs to submit comments or objections to the

"

proposed settlement.

VTII. NOTICE

49. Notice to SeMs shall be by first class mail, postage prepaid, to all individuals

, ,

whose addresses are on record in the Database and any other databases and records maintained

by Defendants or to such other, better addressees identified by the Administrator, and by

publication and broadcast as set forth below. All notices and infOImation provided to SCMs

shall be in English and Spanish.

50. The Administrator shall cause to be published in English and Spanish languages,

in three newspapers to be determined by the Parties in consultation with the Administrator, twice

a week in each of six consecutive weeks, notices in a fonn substantially similar to that attached

hereto as Exhibit 3, describing this settlement, the claims procedure and the procedure to object

17

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j-

andlor to Opt-Out of the settlement. Notices in a [onn substantially similar to that attached hereto as Exhibit 3 shall also be posted in the DCADC.

,
I

51. Announcements summarizing the proposed settlement in English and Spanish

I

will be made on four radio stations to be determined by the Parties in consultation with the

Administrator, seven times during a week, during six successive weeks.

IX.

ADMINISTRATIVE COSTS

"

52. All reasonable costs incurred in the administration of this Stipulation of Settlement, including but not limited to the fees of the Administrator, costs of disseminating

I

" , notice to seMs, costs of receiving and evaluating claims, and any additional administration fees,

will be paid from the Settlement Fund. Following preliminary Court approval of the Stipulation

of Settlement, the Administrator shall submit monthly invoices to Class Counsel and Counsel for

the Defendants for services rendered and for expense reimbursement. All invoices will indicate

I.
L

I'

the dates upon which services were performed, the titles of the employees performing the services, the number of hours worked by each such employee for each date, the hourly rate for

I

each such employee, and the total fee for the services performed. The hourly rates shall be in

~

accordance with the agreement between the Parties and the Claims Administrator.

IX. DISPUTE RESOLUTION

53. The Parties may bring an issue directly before the District Court when exigent

18

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f

facts or circumstances require immediate District Court action to prevent a serious violation of

the terms of this Agreement, which otherwise would be without meaningful remedy.

I

X.

;

GOVERNING LAW

54. This Agreement will be subject to, governed by, and construed and enforced

pursuant to the laws of New Mexico.

XI.

r

ENTIRE AGREEMENT 55. The tenns of this Agreement and its attachments are the exclusive and final

i

expression of all agreements by Plaintiffs and Defendants with respect to full and final settlement

of this matter, but the Agreement does not, and is not intended to, constitute the entirety of

agreements among the Defendants and their respective insurers. The Parties have entered into

this Agreement based solely upon its tenns and not in reliance upon any representations or

promises other than those contained in this Agreement. The terms of this Agreement may not be

contradicted either by evidence of any prior or contemporaneous agreement or by the use of any

fonn of extrinsic evidence whatsoever in any judicial, administrative, or other legal proceeding

involving this Agreement.

19

09/19/20071LlI

Lilly Law Firm

(PAX) 50552&2642

P. 002
i-
,,~

ROTHSTEIN, DONATELLI, HUGHES,

DA:YROM, SCHO~BURG & BIENVENU, LLP
By: tf~#tf6c -

Robert R. Rothstein

John C. Bienvenu

Mark H. Donatelli

P.O. Box 8180

1215 Paseo de Peralta

Santa Fe, New Mexico 87504-8180

(505) 988-8004

Attorneys/or Plaintiffs LILLEY LfW/..oFl!lCES
By: ~. !,lj'..- \r""

I
,I

lchael W. Lilley

Jess R. Lilley

Marc A. Lilley

1014 S. Main

Las Cruces, NM 88005

(505) 524-7809

Attorneys/or Plaintiffs

CARRILLO LAW, LLC

..

By: Silt I\tr'l-Ctt.'e-I> Raul A. Carrillo, Jr.

~

P.O. Box 457

,

937 E. Lohman Ave.

Las Cruces, NM 88001

AttorneysJor Defendants Dona Ana County Board of
Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach

20

SEP-19-2007(WEO) Is,sa 0010

(FAX) SOSGa 71 aGl

P.003/00l

f

I

, [

ROTHSTEIN, DONATELL!, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, UP

By:
~R-ob~'-rt~R~.R~o~t~h~'I-'cm~---------

John C. Bienvenu

Mark H. Donatelli

P,O. Box 8180

1215 Pasco de Peralta

Santa Fe, New Mexico 87504-8180

(505) 988-8004

Attorneys/or Plaintiffs

c..

LILLEY LAW OFFICr;S

j

By: =.,---=:-:-:::-_ ___

,

Michuel W. Lilley

L

Jess R. Lilley

"

Marc A. Lilley

1014 S. Main

Las Cruces, NM 88005

(505) 524-7809

Attonle Pfaimijfo

937 E. Lohman Avo. Lac; Cruces, NM 88001 Attorneysfor Defertd(Jn~ Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach
20

SEP. 19.2007 2:44PM KELEHER &Me LEaD

NO. 240 P. 3

"'-,NLCLf'YU, P.A.

P.O, Drawer AA Albuquerque) NM (505) 346-4646

~C~o:m~m~~is~s~io,n~e:r~s.;t:.~,~D2onBaaArenla.CDmamvi~d WBooaorledy.of

Alfonso Soliz

Roach

,,
!

,,

"

I
I

21 •

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F

CLAIM FORM

DONA ANA COUNTY DETENTION CENTER STRIP SEARCH LAWSUIT

CLASS ACTION CLAIM FORM

(LIRA V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL.)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO CASE NO. CV 06-0179 WPJIWPL
FILL OUT THIS FORM IF:

I

,

YOU WERE ARRESTED FOR ANY CHARGE NOT INVOLVING

VIOLENCE, DRUGS OR WEAPONS AND WERE STRIP SEARCHED AT

THE DONA ANA COUNTY DETENTION CENTER IN LAS CRUCES,

NEW MEXICO, PRIOR TO ARRAIGNMENT, ON OR BETWEEN MARCH

7,2003, AND MARCH 7, 2006.

You must complete and submit Ihis claim form no latcr than

, to qualify for payment from settlement of this class action strip

r

search case against Dona Ana County and others. Tryou do not return a completed claim fonn by the due date you will receive no money

from the settlement.

Please enter your correct name, and address here if it does not appear to the len.

,

Name: _______________________________________________

Address:____________________________________________

Plellse provide the (ollowing Information: Phone Number: ________________________________________

New Mexico Driver's License No.:_____________________________

Social Security Number:_________________________________

Date ofBinh:_________________________________________

, "

ANSWER TIDS QUESTION

Yes No

\Ye1"(' you arrested and strip searched, (Hiol" to arraignment. at

the Dona Ana County Detention Center in Las Cruces, Nc\", "lexico.

ot ony timc 011 or betwecn March 7. 2003. and "larch 7, 2006'1

o o

If you answered "yes" to the above, or if you are unsure of the date, please read the rest of the Claim Fonn.

Exhibit 1

cu.ss Amos cv.L\! fOR-\!

PAGEIOF2

t t
Note: Not all persons strip searched at the Dona Aria County Detention Center during the class period (March 7, 2003, 10 March 7, 2006) will be entitled 10 payment. If you were charged with a crime involving drugs, weapons or violence, you will not be entitled to payment Eligibility will be based on records maintained by Dona Alla County.
Use the return envelope (or any other envelope) and mail the completed claim form to: Class Claim Administrator: Lira v. Dona Ana County Strip Search Class Action, c/o Claims Administrator, _Iaddressll____,

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF NEW MEXICO THAT THE ABOVE IS TRUE AND CORRECT.

DATED: _ _ _ _ _ _ __

SIGNATURE:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

The information given here is private and will remain confidential. If you have any questions about this lawsuit, wrile to the Claims

Administralor al Lira v. Dona Ana County Strip Search Class AClion, do Claims Adminislrator, _[address}

[toll-free

phone number] or visillhe website at _J[~w~'hb'~it~'11_ _ __

THIS CLAIM FOR\1 ,\lUST UE SIGi\EIl A:\[) RIiTUIP'ED

WITH A POST;VlARK NO LATER TI--I:\1\ - - - - - -

,.

If you would like your settlement check mailed to an address other than that on the first page of the Claim

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Form, provide it here: Address, if different, to which settlement check should be mailed:

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PAGE10Fl

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

Uyou were arrested and strip searched at Doia Ana County Detention Center in Las Cruces, New Mexico before your arraignment on or between March 7, 2003, and March 7, 2006, you may be entitled to compensation under a class action settlement.

There is presently pending a lawsuit filed as a class action in the United States District Court for the District of New Mexico. The parties have proposed a Settlement which, if it receives fmal approval, will provide that certain persons subject to pre-arraignment strip searches at the Dona Ana County Detention Center in Las Cruces, New Mexico will receive money. Records of the Dona Ana County Detention Center show that you

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may have been subjected to a strip search after an arrest and before your arraignment. To receive monetary

compensation in this pending Settlement, you must fill out and mail a Claim Form.

If You Wi~h 10 Claim .\loHctnry Compellsation, Ohl:Jin. Fill out aud ;VI:,il the Claim Form as Soon as r()~:-.ihle out :\0 l.ater lh'll1

For more information, please read this notice.

PLEASE READ THIS ENTIRE NOTICE CAREFULLY. YOU MAY BE ENTITLED TO RECEIVE A SUBSTANTIAL PAYMENT.

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There is now pending in the United States District Court for the District of New Mexico, an action filed as a

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class action on behalf of persons allegedly illegally strip searched by employees at the Doiia Ana County

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Detention Center on or between March 7, 2003, and March 7, 2006. A Stipulation of Settlement, approved

preliminarily by the Court, defines the Class as follows:

All persons arTl'sled 011 charges uot involving violencl', drugs 0'· wcapom;. on
or be("ween ~larch 7. 20tlJ, ,Inti .\Iarch 7. 2006, who were strip searched at the 0011::1 Ana County Detentiou Center pdor to :J.lTaignmcnt.

You have received this Notice either because DaDa Ana County Detention Center records indicate that you may

be in the Class or because you contacted the Claims Administrator. Whether or not you qualify as a Class

member will be based upon information you submit in your Claim Form and records maintained by Dona Ana County Detention Center. If Detention Center records do not contain your name and show you to be within the definition of the Class, you will not qualify.

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This Notice is to inform you that a settlement has been proposed in this action and that, as a potential Class

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member, your rights may be affected by the Settlement. This Notice also sununarizes the terms and effect of

the proposed Settlement, what you can do to participate in it, how you may obtain money under the Settlement

and what you must do if you choose to exclude yourself from the Class.

SUMMARY OF THE PROPOSED TERMS

A Settlement Agreement (Settlement) was entered into after intensive negotiations between the parties, conducted with the assistance of a third party mediator. The Parties are requesting that the Court approve the Settlement.

A. Parties to the Settlement. The parties to the Settlement are the Plaintiffs named in Lira, et af. v. Dona Ana County Board of
Exhibit 2

NonCE OF PROPOSEO SETlLEMENT OF ClASSACTIONSTRIP SEARCH CASE

Pa~ \ of'

r,t
Commissioners, et al., United States District Court for the District of New Mexico, Case No. CV 06-0179 WPJIWPL filed on behalf of themselves and the Class, and various Defendants including Dona Ana County Board of Commissioners and named individual employees. Counsel for the Class are Robert R. Rothstein, John C. Bienvenu and Mark H. Donatelli, of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Post Office Box 8180, 1215 Paseo de Peralta, Santa Fe, New Mexico 87504-8180; and Michael W. Lilley, Jess R. Lilley, and Marc A. Lilley, of the Lilley Law Offices, 1014 S. Main St., Las Cruces, New Mexico, 88005-2919.

B. Defendants Do Not Admit Any Liability
Plaintiffs allege that the acts andlor omissions which are the subject of the claims covered by this action (strip searches) violated various state and federal laws. Defendants deny all allegations of wrongdoing and deny any liability to Plaintiffs or to any other Class members. The parties have agreed that, in order to avoid long and costly litigation, this controversy should be settled pursuant to the tenns of the Settlement as described in this Notice, subject to the approval of the Court.

C. Monetary Terms of Settlement

1. Payment of Claims

Defendants shall pay $5,000,000.00 (Five Million Dollars) under the tenns of the Settlement which will

be referred to as the Class Fund.

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The Class Fund will be used to pay the claims submitted and the claims of the representative Plaintiffs,

the expenses of the Claims Administrator, and attorneys' fees and costs of $1,666,667.00, subject to

approval of the Court.

2. Payment to Representative Plaintiffs

Under the tenns of the Settlement, representative Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia and Douglas Beidler, will each receive an amount of $25,000.00, in addition to whatever they amounts they are entitled to as class members, subject to approval of the Court.
3. Payment to Class Members Who File Claims
Money for the Class will be paid on the following basis:
All of the Claim Fonns received by the Bar Date will be reviewed and compared to the database of all eligible claimants. Those Claim Fonns which qualify for payment will be counted and the amount of money available for satisfaction of individual claims submitted by Class members will be divided by the total number of claims which qualify for payment and each claimant will receive his or her pro-rata share of the Settlement. All persons who were arrested on charges not involving violence, drugs or weapons, as defmed in Exhibit 4 to the Stipulation of Settlement, on or between March 7, 2003, to March 7, 2006, who were strip searched at the Dona Ana County Detention Center in Las Cruces, New Mexico, prior to arraignment, will be entitled to receive compensation under this Settlement. Read the rest of this Notice to fmd out how to get a Claim Fonn.
D. Strip Search Policy
Effective , 2006, the Dona Ana County Detention Center implemented a strip search policy under which

NOTICE OF PROPOSEO SETTLEMENT OF ClASS AcnON STRIP SEARCH CASE

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pre-arraignment detainees charged with offenses not involving violence, drugs or weapons will not be strip

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searched upon admission without reasonable suspicion that a strip search would be productive of contraband or

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weapons. The strip search policy implemented on - ' is not challenged in this lawsuit.

E. Your Options as a Class Member

1. Be Bound by and Participate in the Settlement. To qualify for a payment, you must send in a completed Claim Form, signed under penalty of perjury, to

I

the Claims Administrator. Ifyou receive a notice by First Class Mail, a Claim Form will be included in

the notice package. You can also get a Claim Form by: (1) calling this toll free number:

(toll free

number]

; (2) visiting the website

Iwebsite]

; or (3) writing the Claims

Administrator at: Lira v. DOIia Alia COUllty Strip Search Class Action, clo Claims Administrator,

[address).

You have until __, to submit a claim or to opt -out of the Settlement.

Mail your completed Claim Form to: Lira v. DOIia Alia COUllfy Strip Search Class Action, clo Claims Administrator, _[addressJ_,

Remember, if you do not submit a Claim Form, you cannot get a payment. Ifyou submit a Claim Form,

you will be bound by the Settlement and receive money (if you are a Class member). If you do not

submit a Claim Form but do not exclude yourself from the Class (as explained in the next paragraph),

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you will be bound by the terms of the Settlement and dismissal entered in this case, but you will not

receive any money.

By participating in this Settlement you will be waiving all your rights to all claims up to and including March 7, 2006, related to strip searches at Dona Ana County Detention Center in Las Cruces, New Mexico, even those of which you are not presently aware.

2. Exclude Yourself From the Class

You do not have to take part in the Settlement or be a member of the Class. This is called excluding yourself. If you exclude yourself, you cannot get a payment and you cannot object to the Settlement. Any Court orders will not apply to you. To exclude yourself, you must sign an Opt-Out Form that states that you want to be excluded from Lira v. Dona Ana County. et al., United States District Court for the District of New Mexico, Case No. CV 06-0179 WPJIWPL. Your Opt-Out Form must be mailed and postmarked before - ' to: Lira v. Dona Ana Cou"ty Strip Search Class Action, cia Claims Administrator, __[addressJ_,

If you do not follow these instructions properly, you will lose your right to exclude yourself. If you exclude yourself, you cannot get any money from the Settlement of this case and you cannot tell the Court you do not like the Settlement (which is called objecting). If you exclude yourself, you are no longer part of the Class or the Settlement, but you can sue or be part of a different lawsuit about the claims in this case.

F. Fairness Hearing and Process for Objections.

A Fairness Hearing will be held on - ' at .m., at the United States District Court for the District of New Mexico, 333 Lomas N.W., Albuquerque, New Mexico. If you are a Class member and do not exclude yourself, you can tell the Court you do not like the Settlement or some part of it at this hearing. This is called objecting to the Settlement. For example, you can say you do not think the Settlement is fair or adequate. The

NonCE OF PROPOSED SETTlEMENT OF ClASS ACTION STRIP SEARCH Cl\SE

Page J of.

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Court will consider your views.

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At the Fairness Hearing, the Court may schedule further hearings without further notice to the Class. The

matters considered at such future hearings may include, but shall not be limited to, further consideration of the

fairness and adequacy of the proposed Settlement, the detennination of the Settlement of individual claims filed

by Class members, consideration of the request for attorneys' fees and reimbursement of costs and expenses to Class Counsel, and the form and entry of the fmaljudgment of dismissal in the event the proposed Settlement is approved by the Court.

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Individually, or through counsel, any Class member has the right to object to the proposed Settlement as a

whole, to the amount of attorneys' fees and costs of Class Counsel, or to any portion of either. ANY SUCH

OBJECTIONS MUST BE FILED IN WRITING ON OR BEFORE _ _, IN THE UNITED STATES

DISTRICT COURT, DISTRICT OF NEW MEXICO, 333 LOMAS N.W., ALBUQUERQUE, NEW MEXICO

87102, ATTENTION: CLERK, RE: LIRA V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL.,

CASE NO. CV 05-0179 WPJIWPL. If you wish to appear and present your objections at the Fairness Hearing,

you must also submit a Notice of Intention to Appear that identifies the case, contains your name and address,

and explains the reason the appearance is desired. The Notice of Intention to Appear and any objections must

,.

be filed with the Court on or before _ _. You may be represented by your own attorney. If you are to be

represented by an attorney at the hearing, his or her name, address and telephone number must be included in

the Notice ofIntention to Appear as well.

A copy of the Statement of Objection andlor Notice of Intention to Appear must also be mailed to: Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Post Office Box 8180, 1215 Paseo de Peralta, Santa Fe, NM 87504·8180, Attention: Robert R. Rothstein/Jolm C. BienvenuIMark H. Donatelli; Lilley Law Offices, 1014 S. Main, Las Cruces, NM 88005,Attention: Michael W. Lilley/Jess R. Lilley/Marc Lilley; and Carrillo Law, LLC, P.O. Box 457, 437 E. Lohman Ave., Las Cruces, NM, 88001, Attention: Raul A. Carrillo, Ir.

F. How to Obtain Further Information

For additional information regarding the Settlement and Claim Fonn, or a copy of the Settlement Agreement,

Claim Fonn or Class Counsel's Application for Attorneys' Fees, you or your counsel should contact: Lira v.

Dona Ana COUllty Strip Search Class Action, c/o Claims Administrator, [address]. You may also check the

Class Administrator's website at

[website]

or call

[toll free numberl

. You may also obtain detailed information about the case by examining the Court file located in the

-o"f!j:::,c-e-o-f::-th"e Clerk of the United States District Court for the District of New Mexico, 333 Lomas N.W.,

Albuquerque, New Mexico 87102.

H. Court Approval

Although the Court has reviewed the proposed Settlement, no decision has been, or will be, reached by the Court, until the Fairness Hearing. This Notice does not indicate that the Court has approved the Settlement.

Dated: _ _ _ _ __

William P. Jolmson United States District Judge

NonCE OF PROPOSEIl SETTlEMENT OF ClASS ACnON STRIP SEARCIi CASE

Pago 4 oJ 4

IF YOU WERE STRIP SEARCHED AT DONA ANA COUNTY DETENTION CENTER, PRIOR TO YOUR ARRAIGNMENT, ON OR BETWEEN
MARCH 7, 2003, AND MARCH 7, 2006, YOU MAY BE ENTITLED TO A SUBSTANTIAL PAYMENT UNDER A CLASS ACTION SETTLEMENT

Thera Is a proposed Selllement of a Class Action lawsuit, Uta v. Dona Ma C<Junty Board ofCommissionero, at al., pending In the United Stales District Court for the District of New Mexico. The lawsuit concerns the strip search polIcy and procUces at the Doi'la
Ana O:lunly Oetention Center In Las Cruces, New Mexico.

What 15 the LItigation About? Plaintiff alleged thai Defendants violated various federal and stale laws by strip searching certain persons al the Doila Ana County Detention Cenler In Las Cruces. New Mexico. between March 7, 2003, and March 7, 2006.

Who 16 Involved? You may be II member of \he SetUemenl Class if you were strip searched at the Dolla Ana County Detention Center In Las Cruces, New Mexico, prior to arralgnmenl between March 7, 2003, and March 7, 2006. To see If you may qualify for a paymenl you should chec!c the websile or call the loll free number below.

Whilt ell'll the Terms? The tolalsetuemenlln this case Is 55,000,000.00. AI the conclusion of the Claims Period, the amount available for payment of claims will be divided by the number of qualifying claims submitted.

Class Counsel will apply to the Court for an attomeys' fee and cost aWCIrd of $1,666.667.00. Representative PlainUffs will apply for aWCIrds of $25,000 each. AClual IXISts InClJrred by the Claims Adminlslratorwill be paid from the setuement

For more Information or to receive a claim form, consult the website or call the loll free number below.

What are My Legal Rights? If you wish to share In the SetUement Fund you must file a claim as discussed below. If the Court approves the Proposed
Settlemenl, you will reC9l>Je a payment If you qualify. You will also be bound by all of the Court's orders. This means you will drop
and release any dillms you may have agalnslthe Defendants covered by this Setllement

If you wish 10 participate in this settlement you musl complete a Claim Form. You can get a Claim Form by rontacting the Claims Administrator, In writing, althe address given below, or by calling the loll free number. Claim Forms musl be signed under penalty of perjury and returned to the Claims Adminlslrator post-mar'\ed no later than _ _'

If you do not wish to be a member of the Settlement Class, you must sign an Opt·Out Form as outlined In the SUpulation of
Setuement and Notice which you can download from the website or gel from the Claims AdminIstrator. Your Opt·Out Form musI be
signed, under penalty of perjury, and returned to the Claims Administrator posl·marKed no later than _ _'

When WIll the Settternent be Approved?

The United States District Court for the District of New Mexico will hold a Fairness Hearing 10 decide if the proposed settlement is

fair, reasonable and adequate al _ _.m. on

,at the United States District Court, Courtroom of Judge William P.

Johnson, 333 Lomas Blvd N.W., Suite 610, Albuquerque, New Mexico 87102. At the hearing the Court will also considerwhether

Class Counsel's request for attorneys' fees and costs Is rair. reasonable, and adequate.

If you remilln a member of \he Settlement Class you or your counsel have the right to appear before the Court and to object to the Settlement. However. in order to object, you must lile a written objection, as oullined in the Stipulation of Settlement and long form
notice. Objections must be filed wilh \he Court by _ _'

FOR INFORMATION ON THE PROPOSED SETILEMENT, YOUR RIGHTS, AND A COPY OF THE NOTICE:

VISIT: _ _ _["w"e"b"s"lt"el'---_ _ _ Call: _ _JJ!t"'o!!lI~fr"e"'eC!n!!u!.!Jm"'bi!!e"rLJ_ _ __

or Write: lira v. Dona Ana County Strip Search Class Action, c/o Claims Administrator, [address]

PLEASE DO NOT CAll THE COURT

Exhibit 3

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LIST OF EXAMPLE OFFENSES INVOLVING DRUGS, WEAPONS OR VIOLENCE (Exhibit 4 to Stipulation of Settlement)
Charges involving drugs, weapons or violence means the following or substantially similar New Mexico statutory, federal, tribal, andlor local offenses:

§ 30-31-20 Trafficking controlled substances; violation

§ 30-31-21 Distribution to a minor

§ 30-31-22 Cootrolled or counterfeit substances; distribution prohibited

§ 30-31-23 Controlled substances; possession prohibited

,,,.

§ 30-31-24 Controlled substances; violations of administrative provisions

§ 30-31-25 § 30-31-25.1
§ 30-31-41

Controlled substances; prohibited acts Possession, delivery or manufacture of drug paraphernalia prohibited; exceptions Anabolic steroids; possession; distribution; penalties; notice

I,

§ 30-3 1A-4 Manufacture, distribution [or possession] of imitation controlled

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substance.

§ 30-3IA-5 Sale to a minor

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§ 30-3IA-6 Possession with intent to distribute an imitation controlled substance

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§ 30-3IB-I New Mexico Drug Precursor Act

30-3IB-12 Drug precursors; prohibited acts; penalties

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§ 30-28-1

Attempt to commit a felony (if involving the preceding offenses)

§ 30-28-2 Conspiracy (if involving the preceding offenses)

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§ 30-28-3

Criminal solicitation (if involving the preceding offenses)

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:

Exhibit 4

Page 1 of 4

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NMSA 1978, Unlawful Carrying of a Deadly Weapon

30-7-2

30-7-2_1

Unlawful Carrying of a Deadly Weapon on School Premises

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30-7-2.2 Unlawful Possession of a Handgun

30-7-2.4 Unlawful Carrying of Firearm on University Premises

30-7-3

Unlawful Carrying of Firearm in Liquor Establishment

§ 30-7-4

Negligent Use of a Deadly Weapon

30-7-5

Dangerous Use of Explosives

30-7-6

Negligent Use of Explosives

30-7-7

Unlawful Sale, Possession, or Transportation of Explosives

30-7-8

Unlawful Possession of Switchblade

§ 30-7-12

Bus Crimes

§ 30-7-13

Weapon on a Bus

§ 30-7-16

Felon in Possession

§ 30-7-19

Possession of Explosives

§ 30-7-19.1 Possession of Explosive or Incendiary Device

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§ 30-7-20

Hoax Bomb

§ 30-28-1

Attempt to commit a felony (if involving the preceding offenses)

;

§ 30-28-2

Conspiracy (if involving the preceding offenses)

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§ 30-28-3

Criminal solicitation (if involving the preceding offenses)

,,!.

Page 2 of4

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NMSA 1978, Murder 30-2-1 30-2-I(A) First Degree Murder

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30-2-I(B) Second Degree Murder

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30-2-3

Manslaughter

30-2-3(A) Voluntary Manslaughter

§ 30-2-3(B) Involuntary Manslaughter

§ 30-3-2 § 30-3-3

Aggravated Assault
Assault w/intent to commit violent felony (incl. murder, mayhem, esp,

robbery and burglary)

§ 30-3-5

Aggravated Battery

30-3-7

Injury to Pregnant Woman

30-3-8

Shooting at dwelling place or at or from vehicle

30-3-8(A) Shooting at dwelling place

I § 30-3-8(B) Shooting at or from vehicle

I § 30-3-9

AssaultIBattery on School Personnel

I § 30-3-9.1 AssaultIBattery on Sports Official

I § 30-3- \3

Aggravated Assault on a Household Member

I § 30-3-14

Aggravated Assault on HHM wI intent to commit violent felony

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I § 30-3-15

Battery Against a Household Member

I § 30-3-16

Aggravated Battery Against a Household Member

I § 30-3A-3.1 Aggravated Stalking

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I § 30-4-1

Kidnapping

F

§ 30-6-

Child Abuse

I(D)(2)

I § 30-6A-3 I § 30·6A-4 I § 30-9-11 I § 30-9-12 I § 30-9-13 I § 30-16·2 I § 30-16-4 I § 30-17-5(A)

Sexual Exploitation of Children Sexual Exploitation of Children by Prostitution Criminal Sexual Penetration Criminal Sexual Contact Criminal Sexual Contact of a Minor Robbery Aggravated Burglary Arson

1§30-17-6
I § 30-20-2

Aggravated Arson Public affray

30-20-11 Dueling

30-20-16 Bomb scares unlawful

30-20A-3 I fAntiterrorism Actl Unlawful acts; penalty

30-21-1

Sabotage

30-22-1.\ Aggravated fleeing a law enforcement officer

30-22-11 Assisting escape

30-22-12 Furnishing articles for prisoner's escape

Page 3 of4

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30-22-16 Possession of deadlY weanon or exolosive bv prisoner

30-22-17 Assault by orisoner

30-22-21 30-22-22 30-22-23 30-22-24

Assault upon peace officer Aggravated assault UDon oeace officer Assault with intent to commit violent felony upon peace officer Batterv UDon peace officer

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30-22-25 Aggravated battery UDon peace officer

30-22-26 Assisting in assault UDon oeace officer

30-22-27 Disannine a oeace officer

§ 30-24-

Bribery or intimidation ofa witness; retaliation against a witness

3(A)(2)(3) &
I (B)

I § 30-28-1

Attempt to commit a felony (involving the preceding offenses)

30-28-2 Conspiracy (if involving the preceding offenses

30-28-3 Criminal solicitation (if involving the preceding offenses

30-47-4 Abuse of a resident; criminal oenalties

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Page 4 of4

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OPT-OUT FORM

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DONA ANA COUNTY STRIP SEARCH LAWSUIT LIRA v. DONA ANA COUNTY BOARD OF COMMISSIONERS, et 01.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
No. CIV-06-0179 WPJIWPL

IN ORDER TO EXCLUDE YOURSELF FROM THE SETTLEMENT CLASS THAT HAS BEEN CERTIFIED IN THIS PROCEEDING, YOU MUST SUBMIT THIS OPT-OUT FORM SO THAT IT IS POSTMARKED OR OTHERWISE DELIVERED NO LATER THAN

IF THIS OPT-OUT FORM IS TIMELY AND PROPERLY SUBMITTED, THEN

YOU WILL BE EXCLUDED FROM THE SETTLEMENT CLASS AND YOU WILL

NOT BE ENTITLED TO ANY BENEFITS UNDER THE SETTLEMENT AGREEMENT,

YOU WILL NOT BE ENTITLED TO OBJECT TO THE SETTLEMENT AGREEMENT,

AND YOU WILL NOT BE BOUND BY THE RELEASE OF CLAIMS SET FORTH IN

THE SETTLEMENT AGREEMENT AND SUMMARIZED IN THE NOTICE OF

PROPOSED SETTLEMENT OF DONA ANA COUNTY CLASS ACTION STRIP

j.

SEARCH CASE.

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Before electing to opt-out and exclude yourself from the Settlement Class, you should read the

, • •

enclosed Notice of Proposed Settlement of Dona Ana County Class Action Strip Search Case to

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understand the effect of either opting out of the Settlement Class or not opting out of the

Settlement Class. You have the right to confer with Plaintiffs' Class Counselor counsel of your

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own choosing. before executing this Opt-Out Form. Ifyou have any questions regarding the effect ofopting out of the Settlement Class or not opting out of the Settlement Class, or need any further information or assistance, please contact the Claims Administrator [address, website, toll-

I

free number].

f

INSTRUCTIONS:

1. Questions 1-6 of the Sworn Affidavit below must be answered.

2. The Opt-Out Form must be signed under penalty ofpeIjury.

3. The completed Opt-Out Form must be sent to the following address so that it is

postmarked or otherwise delivered no later than

: Administrator

[ADDRESS]

Exhibit 5

4. After submitting the completed Opt-Out Form, you may be required to submit additional

proof, including a photocopy of your passport, birth certificate, or other identifying

docwnent.

STATE OF _ _ __ )

SWORN AFFIDAVIT

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) SSe
COUNTY OF _ _ __ )

!,,

1. My name is: --;;;c::;,--===---,,=,-------

(first)

(middle) (last)

2. My home address is:

3. My telephone nwnber (including area code) is: _ _ _ _ _ _ (day) _ _ _ __ (evening)

4. My Social Security number is: _ _ _ _ _ _ _ _ _ _ __

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s. My date of birth is: _ _ _ _ _ _ _ __

;

,

6. I WANT TO BE EXCLUDED FROM THE SETTLEMENT CLASS CERTIFIED

IN THIS PROCEEDING AND FROM ALL BENEFITS OTHERWISE AVAILABLE TO

,,

ME UNDER THE SETTLEMENT:

Yes

!

CERTlFICATlON UNDER PENALTY OF PERJURY

I hereby afftrm and declare under penalty of perjury that I have read and understand the contents of this Opt-Out Form and the Notice of Proposed Settlement of Dona Ana County Class Action Strip Search Case, the statements made in this Opt-Out Form are true and correct, and I am over the age of eighteen (18) and am of sound mind. I UNDERSTAND THAT BY SIGNING TIDS OPT-OUT FORM I WILL NOT BE ENTITLED TO THE BENEFITS OF THE SETTLEMENT AGREEMENT.

Signature

Type or print name

Date

 
 . ------------Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 1 of 38

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF NEW MEXICO

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JESUS LIRA, BEN GARCIA, GRACIELA MARTINEZ, STEPHEN CULLER, CYNTHIA ARCHER, FREDERICK GARCIA and DOUGLAS BEIDLER, on their own behalf and on behalf of a class or similarly situated persons,

Plaintiffs,

vs.

No. CIV 06-0179 WPJ/WPL

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DONA ANA COUNTY BOARD OF

COMMISSIONERS; Dona Ana County Detention Center administrator CHRISTOPHER

f

BARELA, in his individual and official capacities;

former Dona Ana County Detention Center

administrator DAVID WOOLEY, in his

individual and official capacities; former

Dona Ana County Detention Center

administrator ALFONSO SOLIZ, in his

individual and official capacities, and former

Dona Ana County Detention Center acting

administrator CHERYL ROACH, in her individual and official capacities.

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Defendants.

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Consolidated with

AMBER RODRIGUEZ, on her own behalf and on behalf of a class of similarly situated persons,

Plaintiff, vs.

No. CIV-06-416 JH/CEG

DONA ANA COUNTY BOARD OF COMMISSIONERS; Doiia Ana County Juvenile Detention Center administrator CHRISTOPHER BARELA, in his individual and official capacities; former Dofia Ana

EXHIBIT "A"

--------~~~~~~~~~~
Case 1:06-cv-00179-WJ-WPL Document 46-2

Filed 11/25/2007 Page 2 of 38

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County Juvenile Detention Center administrator DAVID WOOLEY, in his

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individual and official capacities; former

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Do:iia Ana County Juvenile Detention Center administrator ALFONSO SOLIZ, in his

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individual and official capacities, and former

Dofia Ana County Juvenile Detention Center

acting administrator CHERYL ROACH, in her

individual and official capacities,

Defendants.

AMENDED STIPULATION OF SETTLEMENT

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Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer,

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Frederick Garcia, and Douglas Beidler (hereinafter "Adult Plaintiffs"), individually and on

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behalf of the adult settlement class defined herein, Plaintiff Amber Rodriguez (hereinafter,

1.

"Juvenile Plaintiff'), individually and on behalf of the juvenile settlement class defined herein;

and Defendants Dona Ana County Board of Commissioners, Dona Ana County Detention Center

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(hereinafter "DACDC") administrator Christopher Barela, former DACDC administrators David

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Wooley and Alfonso Soliz, and former acting administrator Cheryl Roach (hereinafter

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"Defendants") (Adult Plaintiffs, Juvenile Plaintiff and Defendants are hereinafter collectively

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referred to as "the Parties"), by and through their respective counsel, hereby enter into the

following Amended Stipulation of Settlement ("Amended Stipulation of Settlement" or

''Agreement").

2

---~~~-~ - - - - - - - - - - - - Case 1:06-cv-00179-WJ-WPL Document 46-2

Filed 11/25/2007 Page 3 of 38

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RECITALS

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On March 7, 2006, Adult Plaintiffs, on behalf of themselves and all persons similarly

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situated, filed a complaint in the above-captioned matter in which they challenged certain

practices of Defendants including the strip search of certain detainees, and sought damages and

declaratory and injunctive relief. Adult Plaintiffs allege that they were each unlawfully

subjected to a strip search performed pursuant to the policies, practices and customs of

l

Defendants of conducting strip searches of all incoming pre-arraignment detainees at the Doiia

f

Ana County Adult Detention Center ("DACDC"). Adult Plaintiffs allege that these strip

searches were performed without regard to the nature of the alleged offenses for which Adult

Plaintiffs had been arrested, and without Defendants having a reasonable belief that the Adult

Plaintiffs possessed weapons or contraband, or that there existed facts supporting a reasonable

belief that the search would produce contraband or weapons.

!-

On May 16,2006, Juvenile Plaintiff, on behalfofherselfand all persons similarly

i

F

situated, filed a complaint in the above-captioned matter in which she challenged certain

l..
~

practices of Defendants including the strip search of certain detainees, and sought damages and

declaratory and injunctive relief. Juvenile Plaintiff alleged that she was unlawfully subjected to
a strip search performed pursuant to the policies, practices and customs of Defendants of

conducting strip searches of all incoming pre-arraignment detainees at the Doiia Ana County

Juvenile Detention Center ("DACJDC"). Juvenile Plaintiff alleges that this strip search was

perfonned without regard to the nature of the alleged offenses for which Juvenile Plaintiff had

3

--------------- --Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 4 of 38
been arrested, and without Defendants having a reasonable belief that Juvenile Plaintiff possessed weapons or contraband, or that there existed facts supporting a reasonable belief that the search would produce contraband or weapons.
Adult Plaintiffs and Juvenile Plaintiff sought damages for civil rights violations under 42 U.S.C. § 1983, and for claims arising under the New Mexico Tort Claims Act. Adult Plaintiffs and Juvenile Plaintiff additionally sought a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches without individualized reasonable suspicion. Adult Plaintiffs and Juvenile Plaintiff brought these actions on their own behalf and on behalf of classes of similarly situated individuals.
Defendants contend that not all incoming pre-arraignment detainees were subjected to strip searches. Defendants further contend that the admissions search policies at the DACDC and the DACIDC were and are reasonably related to legitimate penological interests in deterring the introduction of weapons, drugs and other contraband into the detention center. Defendants submit that the detention center policies are entitled to deference under the law, and that the policies should not be found to violate the Constitution or any state law. Defendants further deny that the searches of Adult Plaintiffs or Juvenile Plaintiff violated any state or federal law.
The Parties entered into the voluntary exchange of all relevant infonnation pertaining to the claims raised herein.
On May 14 and 15,2007, the Parties engaged in two days of mediation sessions with experienced mediator Nancy Lesser. On October 16, 2007, the Parties engaged in a mediation session with United States Magistrate Judge Carmen E. Garza and United States Magistrate
4

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007

Page 5 of 38

Judge Leslie C. Smith. Following these mediations and continued negotiations among the

Parties, the Parties arrived at this agreed Amended Stipulation of Settlement which, subject to

the approval of the Court, settles this action in lhe manner and upon the terms set forth below and fully resolves the dispute.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, as follows:

II.

DEFINITIONS

1. "Administrator" means a claims administrator as appointed by the Court to review

and determine the validity and amount of claims submitted by Settlement Class Members ("SCMs"), according to the procedures set forth herein. All parties concur that, subject to

approval by the Court, the firm of Gilardi & Co., L.L.C. of San Rafael, CA, should serve as the

Administrator.

:

2. The "Bar Date" is the date established by the Court by which any SCM who

·~

wishes to receive payment pursuant to the Amended Stipulation of Settlement must file his/her
'
Claim Form(s), objections to this Amended Stipulation of Settlement, or request to be excluded

from the class (opt-out).

3. "Charge List" means the list of charges attached hereto as Exhibit "4".

4. The "Claim Form" is the fonn required to be used to make a claim for payment under this settlement. A copy of the proposed Claim Form is attached as Exhibit" l."

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----------- - - - - - - - - Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 6 of 38

5. "Class Counsel" means, collectively, Robert R. Rothstein, John C. Bienvenu and

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Mark H. Donatelli of the Law Offices of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg

I

'

& Bienvenu; LLP; and Michael W. Lilley, Jess R. Lilley, and Marc A Lilley of the Lilley Law

Offices.

6. The "Class Notice" means the notice in a form substantially similar to that

atlached hereto as Exhibit "2" (Notice by Mail), and the summary notice substantially in the

form attached hereto as Exhibit "3" to be published in newspapers identified in Paragraph 50

herein, and posted in the DACDC and DACJDC and announced on radio as referenced in

Paragraph 51 herein.

7. The "Class Period" is March 7, 2003 through March 7, 2006 for the Adult

Settlement Class, and May 16, 2003 through May 16, 2006 for the Juvenile Settlement Class.

8. The "Database" is the information to be provided in hard copy and/or electronic

fonn by the Defendants to the Administrator and Class Counsel no later than the later of thirty

!

(30) days from the Parties' selection of the Administrator or thirty (30) days from the date the

,_

I'

United States District Court grants preliminary approval of the terms of this Amended

[
''

Stipulation of Settlement. The Database includes, to the extent practicable, the name, last known

addresses, date of birth, Social Security Number, date(s) of arrest and charges of all SCMs

arrested during the Class Period; date(s) ofbooking(s), housing(s) and first appearance(s) of each

member of the class. The Database shall not be provided by the Administrator or Class Counsel

to any parties or to any SCMs.

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 7 of 38

9. The "Effective Date" means the date upon which a judgment entered by the Court approving the Amended Stipulation of Settlement becomes final. The judgment will be deemed final only upon expiration of the time to appeal or, if a Notice of Appeal is filed, upon dismissal

of the appeal or exhaustion of all appeals and petitions for writs of certiorari. 10. "Non-VDW Offense" means an offense not listed on the Charge List (Exhibit

"4").

11. "VDW Offense means an offense which appears on the Charge List (Exhibit "4"). 12. An "Opt-Out" is any potential Settlement Class Member who files a timely

I

request for exclusion as specified in Paragraph 44.

I

13. "Released Persons" means Defendants and their affiliates, subsidiaries,

predecessors, successors, and/or assigns, together with past, present, and future officials, employees, representatives, attorneys and/or agents of the Dona Ana County Board of

Commissioners, DACDC, DACJDC, Christopher Barela, David Wooley, Alfonso Soliz, and Cheryl Roach or any of them. "Released Persons" also includes any and all insurance carriers, or

risk pools, for the Released Persons. 14. A "Settlement Class Member" ("SCM") means any member of the Adult
Settlement Class or Juvenile Settlement Class including representatives, successors and assigns,

who does not file a valid and timely Request for Exclusion as provided in Paragraph 44 ofthis

Amended Stipulation of Settlement. 15. "Adult Settlement Class" means all persons arrested on a non-VDW Offense who

were strip searched during the Class Period at DACDC prior to arraignment. "Juvenile

7

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 8 of 38

Settlement Class" means all persons arrested on a non-VDW Offense who were strip searched

i

during the Class Period at DACJDC prior to arraignment.

I

' '

16. "Strip search" means a search conducted upon intake and booking by a

corrections officer in which the person was required to remove all of his or her clothing,

including underwear, in the presence of the corrections officer.

17. "Verified claims" means claims that are made in writing on the Claim Forms and

'

that are signed under oath by the SCM. If the SCM is under the age of 18 at the time of signing,

l

the Claim Form must be signed by a parent or guardian.

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18. This Amended Stipulation of Settlement is for settlement purposes only, and

I

i
neither the fact of, nor any provision contained in this Amended Stipulation of Settlement or its

exhibits, nor any action taken hereunder shall constitute, be construed as, or be admissible in

evidence as any admission of the validity of any claim or any fact alleged by Plaintiffs or SCMs

in these actions or in any other pending or future action or of any wrongdoing, fault, violation of

law, or liability of any kind on the part of Defendants or admission by Defendants of any claim

or allegation made in this action or in any other action, nor as an admission by any of the

Plaintiffs, SCMs or Class Counsel of the validity of any fact or defense asserted against them in

this action or in any other action. Defendants deny all allegations of wrongdoing and deny any

liability to Plaintiffs or to any other class members. The Parties have agreed that, in order to

avoid long and costly litigation, this controversy should be settled pursuant to the terms of this

.

Amended Stipulation of Settlement, subject to the approval of the Court.

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 9 of 38

III.

TERMS AND EFFECT OF AMENDED STIPULATION OF SETTLEMENT

19. The Parties agree solely for the purposes of this settlement and implementation

that the within action shall proceed as a class action, with the Adult Settlement Class and

Juvenile Settlement Class as defined in Paragraph 15, and that attorneys for the Class are Class

Counsel defined in Paragraph 5; but if such settlement fails to be approved or otherwise fails of

;

consummation, then this Amended Stipulation of Settlement is hereby withdrawn.

l

20. SCMs who comply with the requirements set forth in this Amended Stipulation of

Settlement will be paid specified sums determined by the process set forth herein in full

'I

satisfaction of all claims.

21. The Parties hereto stipulate and agree that the strip search policies at the DACDC

and the DACJDC were changed as a result of Plaintiffs' and Class Counsel's efforts preceding

and during this lawsuit and that the request for equitable relief was thereby rendered moot.

22. The Amended Stipulation of Settlement, as of the Effective Date, resolves in full

all claims against the Released Persons by all of the SCMs, including the named Plaintiffs,

involving violation oflaw or constitutional rights, including their Fourth Amendment rights,

their Fourteenth Amendment rights, or of any other federal, state or local law, regulation, duty,

or obligation which are based upon or could be based upon or arise from the facts alleged in the

lawsuits. When the Amended Stipulation of Settlement is final, as of the Effective Date, all
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SCMs, including the named Plaintiffs, hereby release all such claims.

9

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 10 of 38

23. The Parties agree that the Court, by preliminarily approving the Amended

Stipulation ofSeltlement, will be certifying the classes as defined in Paragraph 15, as the

Settlement Classes, subject to final approval of the Settlement at the fairness hearing and that the

Court shall retain exclusive and continuing jurisdiction of the action, Parties, SCMs, and the

Administrator to interpret and enforce the terms, conditions and obligations under this

Agreement.

I

24. As of the Effective Date of this Amended Stipulation of Settlement, the SCMs,

l

including the named Plaintiffs, hereby waive any and all rights to pursue, initiate, prosecute, or

f

commence any action or proceeding before any court, administrative agency or other tribunal, or

to file any complaint with regard to acts of commission or omission by the Released Persons

I

respecting such SCMs with respect to any strip search by Defendants that occurred during the

Class Period.

25. This Amended Stipulation of Settlement together with its exhibits contains all the

terms and conditions agreed upon by the Parties hereto regarding the subject matter of the instant

proceeding, and no oral agreement entered into at any time nor any written agreement entered

into prior to the execution of this Stipulation shall be deemed to exist, or to bind the Parties

hereto, or to vary the terms and conditions contained herein, except as expressly provided herein.

26. Each SCM shall be deemed to have submitted to the jurisdiction of the Court.

27. No Opt-Out shall share in any monetary benefits provided by this Amended

I '

Stipulation of Settlement.

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28. This settlement is subject to and conditioned upon the final approval of this

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 11 of 38
Amended Stipulation of Settlement and the issuance of the final order and judgment of dismissal by the Court, providing the below specified relief, which relief shall be pursuant to the terms and conditions of this Amended Stipulation of Settlement and the Parties' performance of their continuing rights and obligations hereunder. The order and judgment will be deemed final only upon expiration of the time to appeal, or if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writs of certiorari. Such final order and judgment shall:
a. Dismiss with prejudice all claims in the actions as to the Released Persons including all claims for damages, declaratory and injunctive relief, attorneys' fees and costs;
b. Order that all SCMs are enjoined from asserting against any Released Person, any and all claims which the SCMs had, has, or may have in the future arising out of the facts alleged in the Complaints;
c. Release each Released Person from the claims which any SCM has, had or may have in the future, against such Released Person arising out of the facts alleged in the Complaints;
d. Determine that this Amended Stipulation of Settlement is entered into in good faith, is reasonable, fair and adequate, and in the best interest of the Classes; and
e. Reserve the Court's continuing and exclusive jurisdiction over the Parties to this Amended Stipulation of Settlement, including Defendants and SCMs, to administer, supervise, construe and enforce the Amended
II

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 12 of 38

Stipulation of Settlement in accordance with the terms for the mutual

benefit of all the Parties.

29. The Parties will take all necessary and appropriate steps to obtain preliminary

approval of the Amended Stipulation of Settlement, final approval ofthe Settlement, and

dismissal of the actions with prejudice. If the Court finally approves this Amended Stipulation

of Settlement, and if there is an appeal from such decision, Defendants will not oppose Plaintiffs'

efforts to defend the Amended Stipulation of Settlement.

IV.

RESOLUTION AND PAYMENT OF CLAIMS FOR DAMAGES

30. The settlement amount, which shall be used to pay all verified claims of SCMs,

administrative costs, incentive bonuses to Class Representatives, and attorneys' fees and costs, is

$5.300,000.00 (Five Million Three Hundred Thousand Dollars) ("Settlement Fund"). The

Settlement Fund will be distributed as follows, subject to approval of the Court:

a. $200,000.00 will be allocated for payment to Adult Plaintiffs and Juvenile

I,.

Plaintiff collectively to acknowledge their participation and efforts in

t'
'

these lawsuits in securing damages for personal injury for SCMs. This

amount is separate and apart from any payment due for their individual

claims as SCMs and shall be paid within ten days of the Effective Date.

Defendants agree not to contest Plaintiffs' request for approval of this

payment to Plaintiffs. In the event the Court approves less than this

12

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 13 of 38

l

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amount, the difference will be added to the amount allocated to pay

' ~

verified claims.

b. $1,666,667.00 will be allocated for payment of Plaintiffs' attorneys' fees,

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gross receipts tax on Plaintiffs' attorneys' fees, and Plaintiffs' litigation

expenses and costs through the date that this settlement becomes final, to

be paid within ten days of the Effective Date. Defendants agree not to

contest Plaintiffs' request for approval ofthis amount for fees, gross receipts tax, and litigation expenses. In the event the Court approves less

~

than this amount, the balance remaining in the Settlement Fund will be
I

added to the amount allocated to pay verified claims.

!

c. Actual costs of claims administration, providing notice to the Class, and

processing and administering the Settlement ofSCMs' claims will be paid

from the Settlement Fund. Invoices for services provided by the

'~~

Administrator shall be approved first by Class Counsel and then by

Defendants' counsel, and then paid by check from the Settlement Fund.

d. The balance of the Settlement Fund, after payment of all amounts

enumerated above, will be distributed, pro-rata as described in Paragraph

33 below, among the SCMs who timely file qualifying Claim Forms, as

soon as practicable after the Effective Date.

31. By November 13, 2007, Defendants will transmit by wire transfer or certified

funds $5,000,000.00 (Five Million Dollars) to the Administrator or the Administrator's designee

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 14 of 38

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for deposit in an interest-bearing qualified settlement fund ("QSF") , and within 30 days of

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preliminary approval by the United States District Court of the tenns of this Amended

I
Stipulation of Settlement, Defendants will transmit by wire transfer or certified funds the balance

of$300,000 (Three Hundred Thousand Dollars) to the Administrator or the Administrator's

designee for deposit in the QSF, and all interest earned on the Settlement Fund shall inure to the

benefit of the SCMs.

32. The Parties agree to make an application to the Court to appoint the Administrator

an officer of the Court for the purpose of implementing the terms of this Amended Stipulation of

Settlement. The Administrator shall be subject to judicial immunity to the fullest extent

permitted by law. The Administrator shall be subject to the jurisdiction of the Court with respect

to any dispute arising between the Administrator and the Parties regarding the implementation of

the terms and conditions of the administration agreement.

V.
PROCEDURES FOR RECEIVING PAYMENT UNDER THIS AMENDED STIPULATION OF SETTLEMENT

l

1:

33. All SCMs who were strip searched during the Class Period, prior to arraignment,

' -

at the DACDC following arrests on a Non-VDW Offense, and all SCMs who were strip searched

during the Juvenile Class Period, prior to arraignment, at the DACJDC following arrests on a

Non-VDW Offense, shall be entitled to receive a pro-rata share of the funds allocated for

payment of SCM claims, with up to a maximum of two searches during the Class Period being

counted as separate claims. This two search maximum shall apply regardless of whether the

14

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 15 of 38
SCM has more than two searches as a juvenile, as an adult or in any combination of the two. Payment shall be in full satisfaction of each and every claim of such SCMs.
34. If the Administrator receives Claim Forms identifying information substantially different from that on the Database so that the Administrator is unable to determine if the persons submitting the Claim Forms are SCMs or are otherwise entitled to payment, the Administrator shall forward copies of the Claim Forms to Defendants' counsel and Class Counsel who shall consult in an attempt to agree on the eligibility of the questioned claimants to receive payments. If Defendants' counsel and Class Counsel cannot agree, the Administrator will notify the claimant(s) that additional information must be submitted to be postmarked or received within 14 days to substantiate their eligibility. If information is submitted, the Administrator will be responsible for making the determination of eligibility. If no information is received, the claimant(s) will be excluded.
35. If the Administrator receives Claim Forms from persons whom it cannot locate on the Database, it will the notify the persons submitting the Claim Forms that they are not on the Database and request that such persons submit information to substantiate their eligibility to be postmarked or received within 14 days. If no further information is timely provided, the claimants will be ineligible. If further information is provided, the Administrator will determine eligibility.
36. The Parties expressly agree that the funds paid herein are not for economic damages or for punitive damages but are attributable to damages on account of alleged personal injuries, including but not limited to bodily injury, mental and emotional dislress, and pain and
15

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 16 of 38

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suffering, arising from an occurrence, within the meaning of§ 104(a)(2) of the Internal Revenue

Code of 1986, as amended.

37. Any SCM who fails to submit a Claim Form completed in accordance with the

I

instructions contained therein by the Bar Date or any other Court mandated extension, shall be

i

forever barred from receiving any payment pursuant to the Amended Stipulation of Settlement.

Such SCM shall in all other respects be bound by all of the terms of the Amended Stipulation of

Settlement, and the judgment entered herein, including but not limited to the release of all

Released Persons of all claims resolved herein.

38. To receive payment, an SCM shall be required to submit to the Administrator an

executed Claim Form signed under penalty of perjury with questions completed in accordance

with the instructions provided. If the SCM is under the age of 18 at the time of signing, the

Claim Form shall also be signed by a parent or guardian. All Claim Forms must be submitted by

the Bar Date unless such period is extended by order of the Court.

,' ,
~~

!

39. The Claim Form shall be submitted by first class mail and shall be deemed

~

submitted upon the date of the postmark thereon or the date of receipl, whichever is earlier.

~

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40. SCMs who submit valid and timely claims and whose names appear on the

'

Database will be paid by mail at the address specified on the Claim Form as soon as practicable

after the Effective Date.

41. The Administrator shall determine whether or not a person who has submitted a

Claim Form is an SCM and shall reject claims by persons who are not SCMs. The Administrator will determine the dollar amount of each payment to an eligible SCM based upon the

16

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 17 of 38

I

Administrator's review of the SCMs' responses to questions on the Claim Form, the number of

I'
!

claims and the funds available in the settlement fund.

!

42. If either the Defendants or Class Counsel contests a claim on the ground of fraud

or administrative error, the contesting party will notify the other party, the Administrator and the

claimant. The other party and/or the claimant will have 10 days within which to respond to the

notice. After the deadline for response, the contesting party will submit any remaining issue to

the District Court in accordance with local motion practice. The decision of the Dislrict Court

will be final and unappealable. The contesting party will have the burden of proof.

43 For any Claim Form that the Administrator determines to be invalid or incorrect,

the Administrator will provide written notice to the SCM that will include procedures and time

limits for seeking reconsideration of the Administrator's determination. If the SCM timely and

properly contests the Administrator's determination of the validity or correctness of the Claim

Form, the Administrator will reconsider the Claim Form and make a second determination. If

I

I

the Administrator determines a second time that the Claim Fonn is invalid or incorrect the

Administrator will notify the SCM of his or her right to appeal to the District Court within thirty

I,.
'

days of notice of the Administrator's second determination. The District Court's written

decision on appeal from the Administrator's second determination will be final and

unappealable.

17

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 18 of 38
VI. EXCLUSION FROM THE SETTLEMENT CLASSES 44. Any potential SCM who wishes to be excluded from the Settlement Classes must submit a request to be excluded from the class in the form attached hereto as Exhibit "511 to the Administrator, so that it is postmarked or otherwise delivered on or before the Bar Date or as the Court may otherwise direct. 45. Any potential SCM who does not timely file a Request for Exclusion shall conclusively be deemed to have become an SCM and to be bound by this Amended Stipulation of Settlement and all subsequent proceedings, orders and judgments herein. 46. Any SCM who does not elect to be excluded from the Settlement Classes may, but need not, enter an appearance through his or her own attorney.
47. The Administrator will report all Opt-Out elections to all counsel upon receipt,
and will determine and report to counsel for the Parties not later than ten (10) days after the Bar Date the total number of timely and valid Opt-Out elections. If the total number of potential SCMs submitting timely and valid Opt-Out elections equals or exceeds the number stated in a separate confidential letter [more than 55 potential SCMs], then the Defendants, in their sole discretion, may rescind their acceptance of this Agreement, in which case the Agreement will be rendered null and void and of no effect. To exercise this right of rescission, the Defendants must serve on the Administrator and Class Counsel a written notice of rescission not later than thirty (30) days after the Administrator serves counsel for the Defendants with its totals of valid and timely Opt-Out elections received. In the event the Defendants validly and timely exercise their
18

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 19 of 38

right of rescission, the funds deposited by Defendants pursuant to Paragraph 31 herein, together

I

with any interest earned thereon, will be returned to Defendants, less any expenses, fees and

I

;

costs incurred by the Administrator.

VII.

OBJECTING TO THE PROPOSED SETTLEMENT

48. Any SCM who does not elect to be excluded from the Settlement Classes may,

but need not, submit comments or objections to the proposed settlement. The Court will enter an

l

appropriate order setting forth the procedure for SCMs to submit comments or objections to the

~

proposed settlement.

;L,.

VIII.

NOTICE

49. Notice to SCMs shall be by first class mail, postage prepaid, to all individuals

whose addresses are on record in the Database and any other databases and records maintained

by Defendants or to such other, better addressees identified by the Administrator, and by

publication and broadcast as set forth below. All notices and infonnation provided to SCMs

shall be in English and Spanish.

50. The Administrator shall cause to be published in English and Spanish languages,

in three newspapers to be determined by the Parties in consultation with the Administrator, twice

a week in each of six consecutive weeks, notices in a form substantially similar to that attached

hereto as Exhibit 3, describing this settlement, the claims procedure and the procedure to object

F,.
i. '

19

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 20 of 38

and/or to Opt-Out of the settlement. Notices in a form substantially similar to that attached

hereto as Exhibit 3 shall also be posted in the DACDC and the DACJDC.

51. Announcements summarizing the proposed settlement in English and Spanish

will be made on four radio stations to be determined by the Parties in consultation with the

Administrator, seven times during a week, during six successive weeks.

IX.

ADMINISTRATIVE COSTS

52. All reasonable costs incurred in the administration of this Amended Stipulation of

Settlement, including but not limited to the fees of the Administrator, costs of disseminating

I
!

notice to SCMs, costs of receiving and evaluating claims, and any additional administration fees,

will be paid from the Settlement Fund. Following preliminary Court approval ofthe Amended

Stipulation of Settlement, the Administrator shall submit monthly invoices to Class Counsel and

Counsel for the Defendants for services rendered and for expense reimbursement. All invoices

!-

will indicate the dates upon which services were performed, the titles of the employees performing the services, the number of hours worked by each such employee for each date, the

I'

hourly rate for each such employee, and the total fee for the services performed. The hourly

'

rates shall be in accordance with the agreement between the Parties and the Claims

Administrator.

X.

DISPUTE RESOLUTION
;;
53. The Parties may bring an issue directly before the District Court when exigent

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-~---~~~~~~~~-----------

Case 1:06-cv-00179-WJ-WPL Document 46-2

Filed 11/25/2007 Page 21 of 38

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facts or circumstances require immediate District Court action to prevent a serious violation of

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the terms of this Agreement, which otherwise would be without meaningful remedy.

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XI.

GOVERNING LAW

54. This Agreement will be subject to, governed by, and construed and enforced

pursuant to the laws of New Mexico.

i

XII.

l

ENTIRE AGREEMENT

f

55. The terms of this Agreement and its attachments are the exclusive and final

I•

expression of all agreements by Adult Plaintiffs, Juvenile Plaintiff, and Defendants with respect

to full and final settlement of this matter, but the Agreement does not, and is not intended to,

constitute the entirety of agreements among the Defendants and their respective insurers. The

Parties have entered into this Agreement based solely upon its terms and not in reliance upon any

r

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j

representations or promises other than those contained in this Agreement. The terms of this

~

Agreement may not be contradicted either by evidence of any prior or contemporaneous

[

agreement or by the use of any form of extrinsic evidence whatsoever in any judicial,

administrative, or other legal proceeding involving this Agreement.
Dated: _ _._1-'-'1{i-"::>-.o""'-'["-o7.!._~

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 22 of 38

ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP
By:~~ Roberti.ROthStciil John C. Bienvenu Mark H. Donatelli P.O. Box 8180 1215 Paseo de Peralta Santa Fe, New Mexico 87504-8180 (505) 988-8004
Attorneys for Adult Plaintiffs and Juvenile Plaintiff

LILLEY LAW OFFICES
By: JIW1!fl~;.
Michael W. Lilley Jess R. Lilley Marc A. Lilley 1014 S. Main
Las Cruces, NM 88005 (505) 524-7809
Attorneys for Adult Plaintiffs and Juvenile Plaintiff

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CARRILLO LAW, LLC

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By: =--,--,----cc~~~-­
Raul A. Carrillo, Jr. P.O. Box457 93 7 E. Lohman Ave. Las Cruces, NM 88001

Attorneys for Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach

22

NOV-20-200l[TUE) IS' 54 0013
Case 1:06-cv-00179-WJ-WPL Document 46-2

(FAX)5056471463
Filed 11/25/2007

Page 23 ofP30803/003

ROTIISTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP

By:
=R-ob~crt-~- ll~R~o-~~t~eill~---------

John C. Bienvenu

Mark H. Donatelli

P.O.Box 8180

1215 Paseo de Peralta

Santa Fe, New Mexico 87504-8180

(505) 988-8004
Attorneysfor Adult Plaintiffs and Juvenile Plaintiff
LILLEY LAW OFFICES

I
l

By:

!

_ ~M~ic~h-a~cl~W~.~L~ill~c-y ______ Jess ll Lilley

I.,,

Marc A. Lilley

1014 S. Maill

Las Cruces, NM 88005

(505) 524-7809

Attorneysfor Adult Plaintiffs and Juvenile Plaintiff

By: ::-#.~~~~c__
ul A. Canillo, Jr. P.O.Box457 937 E. Lohman Ave. Las Cruces, NM 88001
Attorneysfor Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach

22

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 24 of 38
I

D,P.A.

I'

Alformysfor Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach
S:\JBien\'l:nu\6639\Amende~ Sectltm~t Ooxumcnlli\Amcn~cd S1ipuluion ofScUicmenl wpd

'

26

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 25 of 38

CLAIM FORM

DONA ANA COUNTY DETENTION CENTER STRIP SEARCH LAWSUIT
CLASS ACTION CLAIM FORM
(LIRA V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL., consolidated with RODRIGUEZ V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO CASE NO. CIV 06-0179 WPJ/WPL AND NO. CIV-06-416 JH/CEG

FILL OUT TffiS FORM IF:

YOU WERE ARRESTED FOR ANY CHARGE NOT INVOLVING

VIOLENCE, DRUGS OR WEAPONS AND WERE STRIP SEARCHED AT

THE DONA ANA COUNTY DETENTION CENTER IN LAS CRUCES,

NEW MEXICO, PRIOR TO ARRAIGNMENT, ON OR BETWEEN MARCH

7, 2003 AND MARCH 7, 2006, OR YOU WERE ARRESTED FOR ANY

CHARGE NOT INVOLVING VIOLENCE, DRUGS OR WEAPONS AND WERE STRIP SEARCHED AT THE DONA ANA COUNTY JUVENILE

l

DETENTION CENTER IN LAS CRUCES, NEW MEXICO, PRIOR TO

ARRAIGNMENT, ON OR BETWEEN MAY 16, 2003 AND MAY 16,2006.

You must complete and submit this claim form no later than

, to qualify for payment from settlement of this class action strip

'

search case against Dona Aila County and others. If you do not return a completed claim form by the due date you will receive no monev

from the seulement.

Please enter your correct name, and address here if it does not appear to the left.

Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Address:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

I .

Please provide the following information: Phone Number: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ New Mexico Driver's License No.:_ _ _ _ _ _ _ _ _ _ _ _ _ __ Social Security Number:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ DateofBinh:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

ANSWER THESE QUESTIONS

Yes No

\Vere you arrested and strip searched, prior to arraignment, at

the Dona Aiia Count~· Detention Center in Las Cruces, New iVIexico,

at any time on or between March 7, 2003 and March 7. 2006?

0

0

Exhibit 1

ClASS ACTIOS CLAI.'I fORM

p,\GE I 0~ ~

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 26 of 38

\\'ere you arrested and strip searched, prior to arraignment, at
the Dona Ana County Juvenile Detention Center in Las Cruces,
New i\'Icxico, at anv. time on or between MaY. 16, 2003 and
""lay 16, 2006'?

Yes No

0

0

If you answered "yes" to one of the above, or if you are unsure of the date, please read the rest of the Claim Form.

Note: Not all persons strip searched at the Dona Aiia County Detention Center during the adult class period (March 7, 2003, to March 7, 2006) or at the Dona Aii.a County Juvenile Detention Center during the juvenile class period (May 16, 2003, to May 16, 2006) will be entitled to payment. If you were charged with a crime involving drugs, weapons or violence, you will not be entitled to payment. Eligibility will be based on records maintained by Dona Aiia County. Use the rerum envelope (or any other envelope) and mail the completed claim form to: Class Claim Administrator: Dotia A11a Collllty Strip Scorch Class Action, c/o Claims Adminislrator, _(addrcssJ _ __

I DECLARE UNDER PENALTY TRUE AND CORRECT.

OF

PERJURY

UNDER

THE

LAWS

OF

THE

STATE

OF

NEW

MEXICO

THAT

THE

ABOVE

IS

DATED; _______________

SIGNATURE'---------------------------------------

IF YOU ARE UNDER THE AGE OF 18ATTHETIMEOF SIGNING THIS FORM MUST ALSO BE SIGNED BY A PARENT OR GUARDIAN.

DATED; ________________

SPRIIG NTNORATTYPUE R NAEM:E':"f:"N.WE==================

The infonnation given here is private and will remain confidential. If you have any questions about this lawsuit, write to the Claims

Administrator at Doiia Ana Cowzly Strip Search Class Action, c/o Claims Administrator, _[address]

[toll-free phone

number] or visit the website at _.l[_,w,;oh,.s.,;l!!1e]L__ _ __

THIS CLAIM FOR.\1 \llJST BE SIC~ED .\'\D RETl'R~ED WITH A I'OST.\1..\.RK ~0 LATER ·1 H.-\,'\

If you would like your settlement check mailed to an address other than that on the first page of the Claim Form, provide it here: Address, if different, to which settlement check should be mailed:

Cl.ASS ACTIOS CL\N fOR~I

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 27 of 38

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASES

If you were arrested and strip searched at Dofia Ana County Detention Center before your arraignment on or between March 7, 2003 and March 7, 2006 or at the
Dofia Ana County Juvenile Detention Center in Las Cruces, New Mexico before your arraignment on or between May 16, 2003, and May 16, 2006,
you may be entitled to compensation under a class action settlement.

There are presently pending two consolidated lawsuits filed as class actions in the United States District Court

for the District ofNew Mexico. The parties have proposed a Settlement which, if it receives final approval, will

provide that certain persons subject to pre-arraignment strip searches at the Dalla Ana County Detention Center

or lhe Doiia Ana County Juvenile Detention Center in Las Cruces, New Mexico will receive money. Records of the Doiia Ana County Detention Center show that you may have been subjected to a strip search after an arrest and before your arraignment. To receive monetary compensation in this pending Settlement, you must fill out

and mail a Claim Form.

If You Wish lo ClaimJ\'IOJH.'I;Iry Compensation,

;

Obtain. 1-'ill out and Mail the Claim Form as Soon as Possible hut No Later than

t

For more information, please read this notice. PLEASE READ THIS ENTIRE NOTICE CAREFULLY.

~

YOU MAY BE ENTITLED TO RECEIVE A SUBSTANTIAL PAYMENT.

)

There are now pending in the United States District Court for the District of New Mexico, two consolidated actions filed as class actions on behalf of persons allegedly illegally strip searched by employees at the Doiia Ana County Detention Center on or between March 7, 2003, and March 7, 2006 and at the Doii.a Ana County Juvenile Detention Center on or between May 16, 2003 and May 16, 2006. A Stipulation of Settlement, approved preliminarily by the Court, defines the Class as follows:

All persons arrested on charges not in\"O(\"ing violence, drugs or weapons, on or he tween i\lan:h 7, 2003. and i\"larch 7, 2()1)6, who wen' strip searched at the Dotia Ana County Detl'lltion Center prior to arntignment. and ;.Ill
persons arrested on charges not in,·olving \"iolcnce, drugs or weapons, on or between i\hy 16, 2003 lliHI ''hl~' 16, 2006. who were strip searched a1 the Doiia Ana County .Ju\"enile Detention Center prior to arraigment.

You have received this Notice either because Dofia Ana County Adult or Juvenile Detention Center records indicate that you may be in the Class or because you contacted the Claims Administrator. Whether or not you qualify as a Class member will be based upon information you submit in your Claim Form and records maintained by Doiia Ana County Adult or Juvenile Detention Center. If Detention Center records do not contain your name and show you to be within the definition of the Class, you will not qualify.

This Notice is to inform you that a settlement has been proposed in this action and that, as a potential Class

',~.

member, your rights may be affected by the Settlement. This Notice also summarizes the terms and effect of

the proposed Settlement, what you can do to participate in it, how you may obtain money under the Settlement

and what you must do if you choose to exclude yourself from the Classes.

Exhibit 2

NOTICE OF PROPOSED SETILEMENTOF CLASS ACTION STRIP SEARCH CASE

Page 1 ol5

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 28 of 38 SUMMARY OF THE PROPOSED TERMS
A Settlement Agreement (Settlement) was entered into after intensive negotiations between the parties, conducted with the assistance of a third party mediator. The Parties are requesting that the Court approve the Settlement.

A. Parties to the Settlement.

The parties to the Settlement are the Plaintiffs named in Lira, eta/. v. Doiia Ana County Board of Commissioners, et al., United States District Court for the District of New Mexico, Case No. CIV 06w0 179 WPJ/WPL, consolidated with Rodriguez v. Doiia County Board ofCommissioners, et al., No. CIV 06-0416 JH/CEG, filed on behalf of themselves and the Class, and various Defendants including Dofia Ana County Board of Commissioners and named individual employees. Counsel for the Class are Robert R. Rothstein, John C. Bienvenu and Mark H. Donatelli, of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Post Office Box 8180, 1215 Paseo de Peralta, Santa Fe, New Mexico 87504-8180; and Michael W. Lilley, Jess R. Lilley, and Marc A. Lilley, of the Lilley Law Offices, 1014 S. Main St., Las Cruces, New Mexico, 88005-2919.

B. Defendants Do Not Admit Any Liability

l

Plaintiffs allege that the acts and/or omissions which are the subject of the claims covered by this action (strip searches) violated various state and federal laws. Defendants deny all allegations of wrongdoing and deny any liabilily to Plaintiffs or to any other Class members. The parties have agreed that, in order to avoid long and costly litigation, this controversy should be settled pursuant to the terms of the Settlement as described in this Notice, subject to the approval of the Court.

!
I•
li
I,",

C. Monetary Terms of Settlement

I. Payment of Claims
i
Defendants shall pay $5,300,000.00 (Five Million Three Hundred Thousand Dollars) under the terms of the Settlement which will be referred to as the Class Fund.

The Class Fund will be used to pay the claims submitted and the claims of the representative Plaintiffs, the expenses of the Claims Administrator, and attorneys' fees and costs of$1,666,667.00, subject to approval of the Court.

2. Pavment to Representative Plaintiffs

Under the terms of the Settlement, representative Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidle and Amber Rodriguez, will each receive an amount of$25,000.00, in addition to whatever amounts they are entitled to as class members, subject to approval of the Court.

3. Pavment to Class Members Who File Claims Money for the Class will be paid on the following basis:

"
";,"",,

All of the Claim Forms received by the Bar Date will be reviewed and compared to the database of all eligible claimants. Those Claim Forms which qualify for payment will be counted and the amount of money available for satisfaction of individual claims submitted by Class members will be divided by the total number of claims which qualify for payment and each claimant will
NOTICE OF PROPOS EO SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

Page 2 ol5

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 29 of 38 receive his or her pro-rata share of the Settlement. All persons who were arrested on charges not involving violence, drugs or weapons, as defined in Exhibit 4 to the Stipulation of Settlement, on or between March 7, 2003, to March 7, 2006, who were strip searched at the Dofia Ana County Detention Center in Las Cruces, New Mexico, prior to arraignment, and all persons who were arrested on charges not involving violence, drugs or weapons, as defined in Exhibit 4 to the Stipulation of Settlement, on or between May 16, 2003, to May 16,2006, who were strip searched at the Doiia Ana County Juvenile Detention Center in Las Cruces, New Mexico, prior to arraignment, and who submit valid claim forms will be entitled to receive compensation under this Settlement. Read the rest of this Notice to find out how to get a Claim Form.
D. Strip Search Policy

Effective , 2006, lhe Dofla Ana County Detention Center and the Dofia Ana County Juvenile Detention Center implemented a strip search policy under which pre-arraignment detainees charged with offenses not involving violence, drugs or weapons will not be strip searched upon admission without reasonable suspicion that a strip search would be productive of contraband or weapons. The strip search policy implemented on _ _, is not challenged in this lawsuit.

E. Your Options as a Class Member

l

1. Be Bound by and Participate in the Settlement.

!

To qualify for a payment, you must send in a completed Claim Fonn, signed under penalty of perjury, to the Claims Administrator. If you receive a notice by First Class Mail, a Claim Form will be included in

I
!'

the notice package. You can also get a Claim Form by: (1) calling this toll free number:

[toll free

numberl

; (2) visiting the website

[website]

; or (3) writing the Claims

Administrator at: Dorza A1Ja County Strip Search Class Action, c/o Claims Administrator,

'
'

[address].

You have until , to submit a claim or to opt -out of the Settlement.

Mail your completed Claim Form to: Doiia Ana County Strip Search Class Action, c/o Claims

i

Administrator, _[address]_.

i

F.

Remember, if you do not submit a Claim Form, you cannot get a payment. Ifyou submit a Claim Form,

~

you will be bound by the Settlement and receive money (if you are a Class member). If you do not

' "

submit a Claim Fonn but do not exclude yourself from the Class (as explained in the next paragraph),

you will be bound by the tenns of the Settlement and dismissal entered in this case, but you will not

receive any money.

By participating in this Settlement you will be waiving all your rights to all claims up to and including March 7, 2006 (for adults) and May 16,2006 (for juveniles), related to strip searches at Dofia Ana County Detention Center and the Dofia Ana County Juvenile Detention Center in Las Cruces, New Mexico, even those of which you are not presently aware. 2. Exclude Yourself From the Class

You do not have to take part in the Settlement or be a member of the Class. This is called excluding yourself. If you exclude yourself, you cannot get a payment and you cannot object to the Settlement. Any Court orders will not apply to you. To exclude yourself, you must sign an Opt-Out Form that states that you want to be excluded from Lira v. Doiia Ana County, et at., United States District Court for the District of New Mexico, Case No. CIV 06-0179 WPJ/WPL and Rodriguez v. Dofia Ana County, et al.,

NOTICE OF PROPOSED SETTI.EMENT OF CLASS ACTION STRIP SEARCH CASE

Page J or~

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 30 of 38 United States District Court for the District ofNew Mexico, Case No. CIV 06-416 JH/CEG. Your OptOut Form must be mailed and postmarked before _ _, to: D01ia Ana County Strip Search Class Action, c/o Claims Administrator, _ _[address]_.

If you do not follow these instructions properly, you will lose your right to exclude yourself. If you exclude yourself, you cannot get any money from the Settlement of this case and you cannot tell th.e Court you do not like the Settlement (which is called objecting). If you exclude yourself, you are no longer part of the Class or the Settlement, but you can sue or be part of a different lawsuit about your claims.

F. Fairness Hearing and Process for Objections.

A Fairness Hearing will be held on _ _, at _ _.m., at the United States District Court for the District of

New Mexico,

,

, New Mexico. If you are a Class member and do

not exclude yourself, you can tell the Court you do not like the Settlement or some part of it at this hearing. This

is called objecting to the Settlement. For example, you can say you do not think the Settlement is fair or

adequate. The Court will consider your views.

At the Fairness Hearing, the Court may schedule further hearings without further notice to the Classes. The matters considered at such future hearings may include, but shall not be limited to, further consideration of the fairness and adequacy of the proposed Settlement, the determination of the Settlement of individual claims filed by Class members, consideration of the request for attorneys' fees and reimbursement of costs and expenses to Class Counsel, and the form and entry of the final judgment of dismissal in the event the proposed Settlement is approved by the Court.

Individually, or through counsel, any Class member has the right to object to the proposed Settlement as a

whole, to the amount of attorneys' fees and costs of Class Counsel, or to any portion of either. ANY SUCH

OBJECTIONS MUST BE FILED IN WRJTING ON OR BEFORE DISTRJCT COURT, DISTRJCT OF NEW MEXICO, 333 LOMAS

- -, N. W.,

IN THE UNITED STATES ALBUQUERQUE, NEW MEXICO

87102, ATTENTION: CLERK, RE: LIRA V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL., CASE NO. CV 05-0179 WPJ/WPL. If you wish to appear and present your objections at the Fairness Hearing,

,1,'.

you must also submit a Notice of Intention to Appear that identifies the case, contains your name and address,

and explains the reason the appearance is desired. The Notice oflntention to Appear and any objections must

be filed with the Court on or before _ _. You may be represented by your own attorney. If you are to be

represented by an attorney at the hearing, his or her name, address and telephone number must be included in

the Notice oflntention to Appear as well.

A copy of the Statement of Objection and/or Notice of Intention to Appear must also be mailed to: Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Post Office Box 8180, 1215 Paseo de Peralta, Santa Fe, NM 87504-8180, Attention: Robert R. Rothstein/John C. Bienvenu/Mark H. Donatelli; Lilley Law Offices, 1014 S. Main, Las Cruces, NM 88005,Attention: Michael W. Lilley/Jess R. Lilley/Marc Lilley; and Carrillo Law, LLC, P.O. Box 457,437 E. Lohman Ave., Las Cruces, NM 88001, Attention: Raul A. Carrillo, Jr.; and Keleher & McLeod, P.A., Post Office Box AA, Albuquerque, NM 87I 03, Attention: Kurt Wihl.

G. How to Obtain Further Information

For additional information regarding the Settlement and Claim Form, or a copy of the Settlement Agreement,

r"I'

Claim Form or Class Counsel's Application for Attorneys' Fees, you or your counsel should contact: D01ia Ana

Couuty Strip Search Class Action, c/o Claims Administrator, [address]. You may also check the Class

Administrator's website at

[website]

or call

[toll free number]

__. You may also obtain detailed information about the case by examining the Court file located in the office

of the Clerk of the United New Mexico 87102.

States

District

Court

for

the

District

of

New

Mexico,

333

Lomas

N.W.,

Albuquerque,

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CA.SE

Pngo 4 or 4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 31 of 38

H. Court Approval

Although the Court has reviewed the proposed Settlement, no decision has been, or will be, reached by the Court, until the Fairness Hearing. This Notice does not indicate that the Court has approved the Settlement.

Dated: _ _ _ _ __

William P. Johnson United States District Judge

''

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

Pogo5of~

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 32 of 38

IF YOU WERE STRIP SEARCHED AT THE DONA ANA COUNTY DETENTION CENTER PRIOR TO YOUR ARRAIGNMENT ON OR BETWEEN MARCH 7, 2003 AND MARCH 7, 2006
OR AT THE DONA ANA COUNTYJUVENILE DETENTION CENTER PRIOR TO YOUR ARRAIGNMENT ON OR BETWEEN MAY 16,2003 AND MAY 16, 2006, YOU MAY BE ENTITLED TO
A SUBSTANTIAL PAYMENT UNDER A CLASS ACTION SETTLEMENT

There is a proposed Settlement of two consolidated Class Action lawsuits, Ura v. and Rodriguez v. Do1ia Ana County Board of Commissioner, eta/., pending in the

Dol1a Ana County Board of Commissioners, ala/., United States District Court for the District of New

Mexico. The lawsuits concern the strip search policy and practices at the Doi'ia Ana County Detention Center and the Ooi'ia Ana

County Juvenile Detention Center in Las Cruces, New Mexico.

What Is the Litigation About? Plainliffs alleged that Defendants violated various federal and stale laws by strip searching certain pe113ons at the Dofia Ana County Detention Center between March 7, 2003 and March 7, 2006 or at the Doi'ia Ana County Juvenile Detention Center in Las Cruces, New Mexico, between May 16, 2003, and May 16. 2006.

Who Is Involved? You may be a member of the Settlement Class if you were strip searched at the Dofia Ana County Detention Center in Las Cruces, New Mexico, prior to arraignment between March 7, 2003, and March 7, 2006, or if you were strip searched at the Doila Ana County Juvenile Detention Center in Las Cruces, New Mexico, prior to arraignment between May 16, 2003, and May 16, 2006. To see if you may qualify for a payment you should check the website or call the loll free number below.

What are the Terms? The total settlement in this case is $5,300,000.00. Altha conclusion of the Claims Period, the amount available for payment of claims will be divided by the number of qualifying claims StJbmitled.

Class Counsel will apply to the Court for an attorneys' fee and cost award of $1.666,667.00. The eight representative Plaintiffs will apply for awards of $25,000 each. Actual costs incurred by the Claims Administrator will be paid from the settlement.

For more information or to receive a claim form, consult the website or call the loll free number below.

What are My Legal Rights? If you wish to share in the Settlement Fund you must file a claim as discussed below. If the Court approves the Proposed Settlement, you will receive a payment if you qualify. You will also be bound by all of the Court's orders. This means you will drop and release any claims you may have against the Defendants covered by this Settlement.

If you wish to participate in this settlement you must complete a Claim Form. You can get a Claim Form by contacting the Claims Administrator, in writing, at the address given below, or by calling the loll free number. Claim Forms must be signed under penalty of perjury and returned to the Claims Administrator post-marl<ed no later than _ _.

If you do not wish to be a member of the Settlement Classes, you must sign an Opt-Out Form as outlined in the Stipulation of Settlement and Notice which you can download from the website or get from the Claims Administrator. Your Opt-Out Form must be signed, under penalty of perjury, and returned to the Claims Administrator post-marked no later than _ _.

When Will the Settlement be Approved?

The United States District Court for the District of New Mexico will hold a Fairness Hearing to decide if the proposed settlement is

fair, reasonable and adequate at _.m. on

, allhe United States District Court, Courtroom of Judge William P.

Johnson,

. At the hearing the Court will also consider whether Class

Counsel's request for attorneys' fees and costs is fair, reasonable, and adequate.

If you remain a member of the Settlement Classes you or your counsel have the right to appear before the Court and to object to the

Setllement. However, In order to object, notice. Objections must be filed with the

you must file a written Court by ___.

objection,

as

ouUined

in

the

Stipulation

of

Settlement

and

long

form

FOR INFORMATION ON THE PROPOSED SETTLEMENT, YOUR RIGHTS, AND A COPY OF THE NOTICE:

VISIT: ---'["'w"e"'b"'s"lle!<J]'------ Call: _ _J.[t.,o.,ll_,f,_,re,.e'-'n.!lu!!m!J!b"'e"r.cl_ _ __ or Write: Doi'ia Ana County Strip Search Class Action, c/o Claims Administrator, [address]

PLEASE DO NOT CALL THE COURT

Exhibit 3

I

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 33 of 38
LIST OF EXAMPLE OFFENSES INVOLVING DRUGS, WEAPONS OR VIOLENCE
Charges involving drugs, weapons or violence means the following or substantially similar New Mexico statutory, federal, tribal, and/or local offenses, including juvenile offenses based on the same statutes:

§ 30-3!-20 Trafficking controlled substances; violation

§ 30-3!-21 Distribution to a minor

I§ 30-31-22 '§ 30-31-23

Controlled or counterfeit substances; distribution prohibited Controlled substances; possession prohibited

§ 30-3!-24 _§_ 30-31-25

Controlled substances; violations of administrative provisions Controlled substances; orohibited acts

§ 30-31-25.1 Possession, delivery or manufacture of drug paraphernalia prohibited; exceptions

§ 30-31-41 § 30-31A-4

Anabolic steroids; possession; distribution; penalties; notice Manufacture, distribution [or possession] of imitation controlled

substance.

§ 30-3!A-5 Sale to a minor

§ 30-3!A-6 § 30-3!B-I

Possession with intent to distribute an imitation controlled substance New Mexico Drug Precursor Act

30-3!B-12 Drug precursors; prohibited acts; penalties

§ 30-28-1

Attempt to commit a felony (if involving the preceding offenses)

I

§ 30-28-2

Conspiracy (if involving the preceding offenses)

li

§ 30-28-3

Criminal solicitation (if involving the preceding offenses)

I'
I

Exhibit 4 Page I of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 34 of 38

NMSA 1978,
I §30-7-2
I §30-7-2.1
L§ 30-7-2.2
' § 30-7-2.4
I §30-7-3
I §30-7-4
L§ 30-7-s
§ 30-7-6
c.§_30-7-7
I §30-7-8 I§ 30-7-12
! § 30-7-13 § 30-7-16
1 § 30-7-19 I §30-7-19.1
§ 30-7-20 § 30-28-1
I § 30-28-2
§ 30-28-3

Unlawful Carrying of a Deadly Weapon
Unlawful Carrying of a Deadly Weapon on School Premises Unlawful Possession of a Handgun Unlawful Carrying of Firearm on University Premises Unlawful Carrying of Firearm in Liquor Establishment Negligent Use of a Deadly Weapon Da~rous Use of Explosives Negligent Use of Explosives Unlawful Sale, Possession, or Transportation of Explosives Unlawful Possession of Switchblade Bus Crimes
Weapon on a Bus
Felon in Possession Possession of Explosives Possession of Explosive or Incendiary Device Hoax Bomb Attempt to commit a felonv (if involving the preceding_offenses) Conspiracy (if involving the preceding offenses) Criminal solicitation (if involvinl!: the preceding offense~

I
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.
"

Page 2 of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 35 of 38

I§NMSA 1978, Murder 30-2-1
I ~ 30-2-1 (A) First Degree Murder

§ 30-2-I(B)
I § 30-2-3
I § 30-2-3(A)

Second Degree Murder Manslaughter Voluntary Manslaughter

§ 30-2-3(8) lnvolunt~ry Manslal:!ghter

§ 30-3-2

Aggravated Assault

§ 30-3-3

Assault w/intent to commit violent felony (incl. murder, mayhem, CSP, robberv and bur~)

§ 30-3-5

Aggravated Battery

1 § 30-3-7
I § 30-3-8
§ 30-3-8(A)

Iniury_to Pregnant Woman Shooting at dwelling place or at or from vehicle Shootil1g_at dwelling place

§ 30-3-8(8) Shooting at or from vehicle

§ 30-3-9

Assault/Battery on School Personnel

§ 30-3-9.1 Assault/Battery on Sports Official

§ 30-3-13 § 30-3-14 § 30-3-15 § 30-3-16 § 30-3A-3.1

Aggravated Assault on a Household Member Aggravated Assault on HHM w/ intent to commit violent felony Battery_~gainst a Household Member Aggravated Battery Against a Household Member
Aggravated Stalking

§30-4-1

Kidnapping

I

§ 30-6-

Child Abuse

I '

l(D)(2)

30-6A-3 30-6A-4 30-9-11

Sexual Exploitation of Children Sexual E;g>loitation of Children by Prostitution Criminal Sexual Penetration

i

§30-9-12

Criminal Sexual Contact

' '

§ 30-9-13

Criminal Sexual Contact of a Minor

§30-16-2

Robbery

§ 30-16-4

Aggravated Burglary

_§30-17-S(A) Arson

§30-17-6 Aggravated Arson

§ 30-20-2

Public affray

§30-20-11 Dueling

§ 30-20-16 § 30-20A-3 § 30-21-1

Bomb scares unlawful · fAntiterrorism Actl Unlawful acts; penalty Sabotage

§ 30-22-1.1
I § 30-22-11

Aggravated fleeing a law enforcement officer Assisting escape

§ 30-22-12 Furnishing articles for prisoner's esc~

Page3 of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 36 of 38

I § 30-22-16 I§ 30-22-17

Possession of deadly weapon or explosive by prisoner Assault by prisoner

§ 30-22-21 Assault upon peace officer

§ 30-22-22 Aggravated assault upon peace officer

I § 30-22-23 I § 30-22-24

Assault with intent to commit violent felony upon peace officer Battery upon peace officer

I § 30-22-25 . § 30-22-26 I § 30-22-27

Aggravated battery upon peace officer Assisting in assault upon peace officer Disarming a peace officer

§ 30-24-

Bribery or intimidation of a witness; retaliation against a witness

3(A)(2)(3) &

(B)

1 § 30-28-1
Li30-28-2

Attempt to commit a felony {involving the preceding offenses)
Conspiracy (if involving the Q!"CCeding offenses

. § 30-28-3

Criminal solicitation (if involving the preceding offenses

§ 30-47-4

Abuse of a resident; criminal Q_enalties

t

!

I I
L
'

Page 4 of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 37 of 38

OPT-OUT FORM

DONA ANA COUNTY STRIP SEARCH LAW SUITS LIRA v. DONA ANA COUNTY BOARD OF COMMISSIONERS, et al. RODRIGUEZ v. DONA ANA COUNTY BOARD OF COMMISSIONERS, et
al.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
No. CIV 06-0179 WPJ/WPL and No. CIV 06-0416 JH/CEG

IN ORDER TO EXCLUDE YOURSELF FROM THE SETTLEMENT CLASSES

THAT HAVE BEEN CERTIFIED IN THIS PROCEEDING, YOU MUST SUBMIT THIS OPT·

OUT FORM SO THAT THAN _ _ __

IT

IS

POSTMARKED

OR

OTHERWISE

DELIVERED

NO

LATER

IF TillS OPT-OUT FORM IS TIMELY AND PROPERLY SUBMITTED, THEN YOU WILL BE EXCLUDED FROM THE SETTLEMENT CLASSES AND YOU WILL NOT BE ENTITLED TO ANY BENEFITS UNDER THE SETTLEMENT AGREEMENT, YOU WILL NOT BE ENTITLED TO OBJECT TO THE SETTLEMENT AGREEMENT, AND YOU WILL NOT BE BOUND BY THE RELEASE OF CLAIMS SET FORTH IN THE SETTLEMENT AGREEMENT AND SUMMARIZED IN THE NOTICE OF PROPOSED SETTLEMENT OF DONA ANA COUNTY CLASS ACTION STRIP SEARCH CASE.

Before electing to opt-out and exclude yourself from the Settlement Classes, you should read the enclosed Notice of Proposed Settlement ofDoiia Ana County Class Action Strip Search Case to understand the effect of either opting out of the Settlement Classes or not opting out of the Settlement Classes. You have the right to confer with Plaintiffs' Class Counsel or counsel of your own choosing, before executing this Opt-Out Form. If you have any questions regarding the effect of opting out of the Settlement Classes or not opting out of the Settlement Classes, or need any further information or assistance, please contact the Claims Administrator [address, website, toll-free number].
INSTRUCTIONS:

I. Questions 1-6 of the Sworn Affidavit below must be answered.

2.

The Opt-Out Form must be signed under penalty of perjury. If you are under 18 at the

time of signing the Form must also be signed by a parent or guardian.

3. The completed Opt-Out Form must be sent to the following address so that it is

postmarked or otherwise delivered no later than

Administrator

[ADDRESS]

Exhibit 5

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 38 of 38

4. After submitting the completed Opt-Out Form, you may be required to submit additional proof, including a photocopy of your passport, birth certificate, or other identifying document.

STATE OF _ _ _ __ ) ) ss.
COUNTY OF _ _ __ )

SWORN AFFIDAVIT

I. My name is: ---;;:c-:;---o-c-;-;cc-:---;;~:--------

(first)

(middle) (last)

2. My home address is:

l

~

3. My telephone number (including area code) is: _ _ _ _ _ _ (day) _ _ _ __

I

(evening)

4. My Social Security number is: - - - - - - - - - - - -

5. My date of birth is: - - - - - - - - - -

6. I WANT TO BE EXCLUDED FROM THE SETTLEMENT CLASSES

CERTIFIED IN THIS PROCEEDING AND FROM ALL BENEFITS OTHERWISE

AVAILABLE TO ME UNDER THE SETTLEMENT:

Yes

CERTIFICATION UNDER PENALTY OF PERJURY I hereby affirm and declare under penalty of perjury that I have read and understand the contents of this Opt-Out Form and the Notice of Proposed Settlement of Dona Ana County Class Action Strip Search Case, the statements made in this Opt-Out Form are true and correct, and I am over the age of eighteen (18) and am of sound mind. I UNDERSTAND THAT BY SIGNING THIS OPT-OUT FORM I WILL NOT BE ENTITLED TO THE BENEFITS OF THE SETTLEMENT AGREEMENT.

Signature

Type or print name

Date

I am presently under the age of 18 and this Form is being signed by my parent or guardian.

Signature

Type or print name

Date

 
 CLOSED, TRANSF
U.S. District Court District of New Mexico − Version 3.2.1 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:06−cv−00179−WJ−WPL

Lira, et al v. Dona Ana County Boar, et al Assigned to: District Judge William P. Johnson Referred to: Magistrate Judge William P Lynch Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff
Jesus Lira

Date Filed: 03/07/2006 Date Terminated: 05/20/2008 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jess R. Lilley Lilley Law Office 1014 S. Main St. Las Cruces, NM 88005 (505) 524−7809 Fax: (505) 526−2642 Email: jlilley@zianet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Bienvenu The Rothstein Law Firm 1215 Paseo de Peralta P.O. Box 8180 Santa Fe, NM 87504 505−988−8004 Fax: 505−982−0307 Email: jbienvenu@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc Lilley Lilley Law Offices 1014 S Main Las Cruces, NM 88005 (505) 524−7809 Email: mlilley@zianet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli Rothstein Law Firm P.O. Box 8180 1215 Paseo de Peralta Santa Fe, NM 87504−8180 505−988−8004 Fax: 505−982−0307 Email: mhd@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W. Lilley Lilley Law Offices 1014 S Main St. Las Cruces, NM 88005 (505) 524−7809 Fax: (505) 526−2642 Email: lilley@zianet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Ben Garcia
Plaintiff Graciela Martinez

Robert R Rothstein Rothstein Law Firm P.O. Box 8180 1215 Paseo de Peralta Santa Fe, NM 87504−8180 505−988−8004 Fax: 505−982−0307 Email: rrr@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jess R. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jess R. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley

Plaintiff Stephen Culler
Plaintiff Cynthia Archer

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jess R. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jess R. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley (See above for address) LEAD ATTORNEY

Plaintiff Frederick Garcia
Plaintiff Douglas Beidler on their own behalf and on behalf of a class of similarly situated persons

ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jess R. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jess R. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Amber Rodriguez on her own behalf and on behalf of a class of similarly situated persons
V. Defendant Dona Ana County Board of Commissioners
Defendant Cheryl Roach former Dona Ana County Detention Center acting administrator, in her individual and official capacity

Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jess R. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister Narvaez Law Firm, P.A. P.O. Box 25967 Albuquerque, NM 87125−0967 505−248−0500 Fax: 505−247−1344 Email: nwerkmeister@narvaezlawfirm.com LEAD ATTORNEY
Raul A. Carrillo, Jr. P.O. Box 457 Las Cruces, NM 88004 (505) 647−3200 Fax: (505) 647−1463 Email: carrillolaw@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY

Defendant Christopher Barela Dona County Juvenile Detention Center Administrator
Defendant David Wooley Former Dona Ana County Juvenile Detention Center Administrator
Defendant Alfonso Soliz Former Dona Ana County
Claimant Felipe Balderrama

Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY
Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY
Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY
Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Felipe Balderrama 728 E. Francis Ave. Pampa, TX 79065 806−662−1999 PRO SE

Date Filed 03/07/2006
03/08/2006 03/08/2006 03/24/2006
03/24/2006

#

Docket Text

1 COMPLAINT (5 Summons(es) issued) (referred to Magistrate Judge William P. Lynch) (yc) (Entered: 03/08/2006)

FILING FEE PAID: on 3/7/06 in the amount of $250.00, receipt #: 209492. (yc) (Entered: 03/08/2006)

LETTER re consent to proceed before a U.S. Magistrate Judge (yc) (Entered: 03/08/2006)

2 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE of s/c by deft Dona Ana County Board on 3/8/06 (jrm) Modified on 03/31/2006 (Entered: 03/27/2006)

3 NOTICE by deft Dona Ana County Board of Service of Consent to Proceed before a US Magistrate Judge (nc) (Entered: 03/27/2006)

03/27/2006 03/27/2006 03/27/2006 03/27/2006 03/27/2006
03/28/2006
04/10/2006 04/13/2006
04/18/2006 04/19/2006 04/25/2006
05/10/2006 07/27/2006 07/31/2006 08/01/2006
08/14/2006 09/18/2006

4 RETURN OF SERVICE executed upon defendant Christopher Barela on 3/27/06 (yc) (Entered: 03/27/2006)
5 RETURN OF SERVICE executed upon defendant Alfonso Soliz on 3/23/06 (yc) (Entered: 03/27/2006)
6 RETURN OF SERVICE executed upon defendant Cheryl Roach on 3/27/06 (yc) (Entered: 03/27/2006)
7 NOTICE by pltfs of refusal to consent to proceed before a U.S. Magistrate Judge (yc) (Entered: 03/27/2006)
8 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defts Dona Ana County Board, Christopher Barela, Alfonso Soliz and Cheryl Roach on 3/24/06 (jrm) Modified on 03/31/2006 (Entered: 03/28/2006)
9 MINUTE ORDER: transferring case to the Albuquerque Division and reassigning case from Magistrate Judge Lourdes A Martinez to District Judge William P. Johnson (cc: all counsel*) (jrm) (Entered: 03/28/2006)
10 UNOPPOSED MOTION by defts to extend time until 4/21/06 to answer the complaint (jrm) (Entered: 04/11/2006)
11 ORDER by Magistrate Judge William P. Lynch granting defts' motion to extend time until 4/21/06 to answer the complaint [10−1] (cc: all counsel) (yc) (Entered: 04/14/2006)
12 ORDER by Magistrate Judge William P. Lynch Telephonic Status conference set for 4/19/06 @ 10:30 am (cc: all counsel*) (jrm) (Entered: 04/18/2006)
13 CLERK'S MINUTES: before Magistrate Judge William P. Lynch Status conference held (*) (jrm) (Entered: 04/19/2006)
14 ORDER staying proceedings by Magistrate Judge William P. Lynch for a period of 90 days as further described herein; (cc: all counsel) (yc) (Entered: 04/25/2006)
15 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by deft David Wooley on 5/10/06 (jrm) (Entered: 05/11/2006)
16 ORDER by Magistrate Judge William P. Lynch setting telephonic Status hearing on 8/14/06 @ 1:30 pm (cc: all counsel)* (jm) (Entered: 07/27/2006)
17 STIPUALTED MOTION by the parties to stay proceedings for another 90 days (yc) (Entered: 07/31/2006)
18 ORDER by Magistrate Judge William P. Lynch granting the stipulated motion to stay proceedings for another 90 days until 10/24/06; the Court will hold a status conference on 8/14/06 @ 1:30 p.m.; [17−1] (cc: all counsel) (yc) (Entered: 08/02/2006)
19 CLERK'S MINUTES: before Magistrate Judge William P. Lynch Status conference held (*) (jrm) (Entered: 08/14/2006)
20 NOTICE by defts of change of address (jrm) (Entered: 09/19/2006)

11/06/2006 11/16/2006 11/16/2006 11/17/2006 03/02/2007
03/15/2007 03/15/2007
04/03/2007 04/03/2007 04/04/2007
04/04/2007 05/03/2007 06/19/2007 07/02/2007 07/03/2007 07/27/2007 08/20/2007

21 ORDER by Magistrate Judge William P. Lynch Telephonic Status conference set for 11/15/06 @ 4:00 PM (cc: all counsel*) (jrm) (Entered: 11/06/2006)
22 CLERK'S MINUTES: before Magistrate Judge William P. Lynch Status conference held on 11/15/06 (sl) (Entered: 11/16/2006)
23 JOINT MOTION by parties for continuation of stay (*) (jrm) (Entered: 11/17/2006)
24 ORDER by Magistrate Judge William P. Lynch granting motion for continuation of stay of proceedings [23−1] (cc: all counsel) (yc) (Entered: 11/17/2006)
25 ORDER by Judge William P Lynch In Chambers Conference set for 3/15/2007 08:30 AM in Las Cruces − Judge William P. Lynch Chambers before Magistrate Judge William P Lynch. (nl) (Entered: 03/02/2007)
26 Clerk's Minutes for proceedings held before Judge William P Lynch : In Chambers Conference held on 3/15/2007. (nl) (Entered: 03/15/2007)
27 ORDER by Judge William P Lynch In Chambers Conference set for 6/19/2007 09:00 AM in Las Cruces − Judge William P. Lynch Chambers before Magistrate Judge William P Lynch. (nl) (Entered: 03/15/2007)
28 Joint MOTION to Continue of stay by Dona Ana County Board of Commissioners. (Carrillo, Raul) (Entered: 04/03/2007)
29 Joint MOTION for Order granting continuation of stay by Dona Ana County Board of Commissioners. (Carrillo, Raul) (Entered: 04/03/2007)
30 NOTICE OF DEFICIENCY sent to Atty R. Carrillo re 29 Joint MOTION for Order granting continuation of stay; "Incorrect Document − Order filed" (jrm) (Entered: 04/04/2007)
31 ORDER by Judge William P Lynch granting 28 Motion to Continue; granting 29 ORDER on Motion for Order (nl) (Entered: 04/04/2007)
32 NOTICE by Dona Ana County Board of Commissioners Change of Law Firm Name (Carrillo, Raul) (Entered: 05/03/2007)
33 Clerk's Minutes for proceedings held before Judge William P Lynch : Status Conference held on 6/19/2007. (nl) (Entered: 06/19/2007)
34 NOTICE by Dona Ana County Board of Commissioners of Non−Availability (Carrillo, Raul) (Entered: 07/02/2007)
35 NOTICE OF DEFICIENCY sent to Atty R. Carrillo, Jr re 34 Notice (Other) DOCUMENT "E" FILED IN WRONG CASE NUMBER" (jrm) (Entered: 07/03/2007)
36 Stipulated Confidentiality Order by Judge William P Lynch (nl) (Entered: 07/27/2007)
37 ORDER TO FILE CLOSING DOCUMENTS by Judge William P Lynch (nl) (Entered: 08/20/2007)

09/19/2007 09/19/2007 09/26/2007 09/27/2007
10/10/2007 10/12/2007 11/14/2007 11/21/2007 11/25/2007
11/29/2007
12/18/2007 12/19/2007

38 Unopposed MOTION to Approve Settlement Of Class Action by Jesus Lira. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Rothstein, Robert) (Entered: 09/19/2007)
39 AFFIDAVIT re 38 Unopposed MOTION to Approve Settlement Of Class Action Of John C. Bienvenu by Jesus Lira (Rothstein, Robert) (Entered: 09/19/2007)
40 NOTICE of Hearing on Preliminary Approval of Settlement Agreement set for 10/9/2007 09:00 AM in Albuquerque − 540 Bonito Courtroom before District Judge William P. Johnson. (mag)
[THIS IS A TEXT−ONLY ENTRY. THERE ARE NO
DOCUMENTS ATTACHED.] (Entered: 09/26/2007)
41 MINUTE ORDER resetting Settlement Conference for 10/9/2007 at 02:00 PM in Albuquerque − 540 Bonito Courtroom before District Judge William P. Johnson. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(mag) (Entered: 09/27/2007)
42 Clerk's Minutes for proceedings held before Judge William P. Johnson: Preliminary Approval of Class Action Settlement Hearing held on 10/09/2007. (Court Reporter T. Garrett.) (rwg) (Entered: 10/10/2007)
43 ORDER by Judge William P. Johnson granting preliminary approval of Settlement Agreement and setting a Final Approval Hearing for 3/31/2008 at 01:30 PM in Las Cruces − Small 3rd Floor Courtroom.(mag) (Entered: 10/12/2007)
44 Joint MOTION to Consolidate Cases by Jesus Lira. (Rothstein, Robert) (Entered: 11/14/2007)
45 ORDER by Judge William P. Johnson granting 44 Motion to Consolidate Case with CV−06−416 JH/CEG. (mag) (Entered: 11/21/2007)
46 Joint MOTION to Approve Settlement Preliminary of Amended Class Action Settlement Agreement by Jesus Lira. (Attachments: # 1 Exhibit "A" − Amended Stipulation of Settlement# 2 Exhibit "B" − Order Granting Preliminary Approval)(Rothstein, Robert) (Entered: 11/25/2007)
47 NOTICE of Hearing on 46 Joint MOTION to Approve Settlement Preliminary of Amended Class Action Settlementset for 12/19/2007 02:00 PM in Albuquerque − 540 Bonito Courtroom before District Judge William P. Johnson. Please be advised that this hearing may be continued due to the Courts trailing trial docket currently set to begin on December 18, 2007, in Las Cruces, NM. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(mag) (Entered: 11/29/2007)
48 AFFIDAVIT re 46 Joint MOTION to Approve Settlement Preliminary of Amended Class Action Settlement Agreement of John C. Bienvenu in Support of Joint Motion by Jesus Lira (Bienvenu, John) (Entered: 12/18/2007)
49 Clerk's Minutes for proceedings held before Judge William P. Johnson: Motion Hearing held on 12/19/2007 re 46 Joint MOTION for Preliminary Approval of Amended Class Action Settlement Agreement. Court to

12/20/2007 12/20/2007 04/28/2008 05/07/2008 05/07/2008 05/07/2008
05/07/2008
05/07/2008
05/07/2008
05/07/2008

set final settlement hearing in Las Cruces in May. (Court Reporter T. Garrett.) (rwg) (Entered: 12/19/2007)
50 ORDER by Judge William P. Johnson granting preliminary approval of settlement and setting Final Approval Hearing on 5/12/2008 01:30 PM in Las Cruces − Second Floor Visiting Judge Courtroom.(mag) (Entered: 12/20/2007)
51 MINUTE ORDER by Judge William P. Johnson vacating the 3/31/07 Approval Hearing pursuant to the Order 50 entered on 12/20/07. (mag) (Entered: 12/20/2007)
52 [FILED IN ERROR] NOTICE of Proposed Settlement and claim form by Felipe Balderrama (vv) Modified on 4/30/2008 to add error text [vv] (Entered: 04/29/2008)
53 Unopposed MOTION to Approve Settlement of Class Action by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler. (Bienvenu, John) (Entered: 05/07/2008)
54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler. (Bienvenu, John) (Entered: 05/07/2008)
55 AFFIDAVIT re 54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments, 53 Unopposed MOTION to Approve Settlement of Class Action of John C. Bienvenu by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler (Bienvenu, John) (Entered: 05/07/2008)
56 AFFIDAVIT re 54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments, 53 Unopposed MOTION to Approve Settlement of Class Action of Marc A. Lilley by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler (Bienvenu, John) (Entered: 05/07/2008)
57 AFFIDAVIT re 54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments, 53 Unopposed MOTION to Approve Settlement of Class Action of Amber Rodriguez by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler (Bienvenu, John) (Entered: 05/07/2008)
58 AFFIDAVIT re 54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments, 53 Unopposed MOTION to Approve Settlement of Class Action of Mark H. Donatelli by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler (Bienvenu, John) (Entered: 05/07/2008)
59 AFFIDAVIT re 54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments, 53 Unopposed MOTION to Approve Settlement of Class Action of Ryanne Fitzgerald by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler (Bienvenu,

05/07/2008
05/12/2008 05/20/2008 07/31/2008

John) (Entered: 05/07/2008)
60 AFFIDAVIT re 54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments, 53 Unopposed MOTION to Approve Settlement of Class Action of Robert R. Rothstein by Jesus Lira, Ben Garcia, Amber Rodriguez, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidler (Bienvenu, John) (Entered: 05/07/2008)
61 Clerk's Minutes for proceedings held before District Judge William P. Johnson: Settlement Conference held on 5/12/2008. (Court Reporter T Garrett.) (vv) (Entered: 05/12/2008)
62 Final judgment of dismissal and ORDER by District Judge William P. Johnson granting 38 46 53 Motion to Approve Settlement (vv) (Entered: 05/20/2008)
63 NOTICE by Jesus Lira re 54 Unopposed MOTION for Attorney Fees , Costs and Incentive Payments Notice of Accounting Error (Bienvenu, John) (Entered: 07/31/2008)