UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

SANDRA ETTERS, RONDA

)

SINGLETARY, DEVEN DEAL,

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and LOURETHA KING on behalf

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of themselves and all others

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similarly situated,

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Plaintiffs,

)

)

v.

)

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SECRETARY BOYD BENNETT,

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SECRETARY ALVIN KELLER,

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ADMINISTRATOR ANNIE

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HARVEY, ADMINISTRATOR

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TIMOTHY KIMBLE, UNIT MANAGER)

MOORE, ASSISTANT UNIT

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MANAGER FORD, CORRECTIONAL )

OFFICER WIGGINS,

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CORRECTIONAL OFFICER SIMS, )

NURSE BARBOSA, UNIT

)

MANAGER BLALOCK,

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CORRECTIONAL OFFICER

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JESSICA JONES,

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Defendants.

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CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

PRELIMINARY STATEMENT Plaintiffs are women presently confined in the custody ofthe North Carolina Department of Correction ("DOC"). Defendants include officers who have engaged in the sexual assault, abuse and harassment of women prisoners, including forcible rape, sexual intercourse, anal intercourse, oral sexual acts, sexual touching, voyeurism, invasion of personal privacy, demeaning sexual comments, and intimidation to deter women prisoners from reporting such sexual misconduct. Defendants also include supervisors in these facilities and at the highest levels of DOC ("supervisory defendants") who maintain policies and practices which enable staff to engage in the sexual assault, abuse, and harassment of women prisoners. Plaintiffs bring this

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action pursuant to 42 U.S.c. § 1983 for injuuctive and declaratory relief, and for money damages, to redress defendants' violations of their rights under the First, Fourth, Eighth and Fourteenth Amendments of the United States Constitution.
Each paragraph in this complaint incorporates, repeats and realleges every other paragraph in this complaint.
JURISDICTION AND VENUE 1. The jurisdiction of this Court over the claims of Plaintiffs is conferred by 28 U.S.C. §1331, in that the claims arose under the Constitution of the United States; and by 28 U.S.C. §1343. The matters in controversy arise under the Civil Rights Act, 42 U.S.C. Section 1983. Plaintiffs seek declaratory relief pursuant to 28 U.S.C. § 2201. 2. Venue is appropriate in this Court, pursuant to 28 U.S.C. §1391(b), because many Defendants are located within the Eastern District of North Carolina, and a substantial part of the events and omissions giving rise to Plaintiffs' claims occurred, and continue to occur, within the Eastern District of North Carolina.
PARTIES PLAINTIFFS
3. Plaintiffs Sandra Etters, Ronda Singletary, Deven Deal and Louretha King are prisoners in DOC custody and were so at all times referred to in this complaint. CORRECTIONAL STAFF DEFENDANTS
4. The defendants listed below were at all times referred to in this complaint correctional officers or sergeants employed by the DOC, assigned to women's prisons, and acting under color of state law. These defendants are sued in their individual capacities for compensatory and punitive damages:
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a. Officer Sims, while employed at North Carolina Correctional Institution for Women, sexually assaulted, abused and harassed Sandra Etters.
b. Nurse Barbosa, while employed at North Carolina Correctional Institution for Women, sexually assaulted, abused and harassed Deven Deal.
c. Unit Manager Blalock, while employed at Southern Correctional Institution sexually harassed Deven Deal.
d. Officer Wiggins, while employed at North Carolina Correctional Institution for Women, sexually assaulted, abused and harassed Ronda Singletary.
e. Unit Manager Moore, while employed at North Carolina Correctional Institution for Women sexually harassed Ronda Singletary.
f. Assistant Unit Manager Ford, while employed at North Carolina Correctional Institution for Women sexually harassed Ronda Singletary.
g. Officer Jessica Jones, while employed at North Carolina Correctional Institution for Women, sexually assaulted, abused and harassed Louretha King. SUPERVISORY DEFENDANTS 5. Defendant Alvin Keller was appointed Secretary for the North Carolina Department of Correction on January 12,2009. As Secretary he is responsible for the care, custody and control of all inmates housed in DOC facilities. He is responsible, consistent with the legal mandates governing DOC, for the management and control of all state prisons, and for all matters relating to the selection, training, assignment, placement, promotion, and discipline of the uniformed staff of the prisons where women prisoners are confined. He is responsible for the system of complaint and investigation of staff misconduct, including sexual harassment and abuse, and for setting the standards by which such complaints are reviewed to determine the actions, if any, to be taken against staff. He is responsible for the policies and practices as set
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forth below that have resulted in the deprivation of plaintiffs' rights under federal law and has

failed to take necessary and appropriate actions to prevent such deprivations. He is sued in his

official capacity, for prospective injunctive and declaratory relief for his failure to protect women

prisoners from sexual harassment and abuse.

6.

Defendant Boyd Bennett was Secretary for the North Carolina Department of

Correction until January 12,2009. As Secretary he was responsible for the care, custody and

control of all inmates housed in DOC facilities. He was responsible, consistent with the legal

mandates governing DOC, for the management and control of all state prisons, and for all

matters relating to the selection, training, assignment, placement, promotion, and discipline of

the uniformed staff of the prisons where women prisoners are confined. He was responsible for

the system of complaint and investigation of staff misconduct, including sexual harassment and

abuse, and for setting the standards by which such complaints are reviewed to determine the

actions, if any, to be taken against staff. He was responsible for the policies and practices as set

forth below that have resulted in the deprivation of plaintiffs' rights under federal law and has

failed to take necessary and appropriate actions to prevent such deprivations. He is sued in his

individual capacity for damages.

7. Defendant Annie Harvey is the Administrator at North Carolina Correctional

Institution (NCCIW). She is responsible for the management and control ofNCCIW, and for the

selection, training, assignment, placement, promotion, and discipline of the uniformed staff of

NCCIW. She sued in her individual capacity for damages and official capacity, for prospective

injunctive and declaratory relief for her failure to protect women prisoners from sexual

harassment and abuse.

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8. Defendant Timothy Kimble is the Administrator at Southern Correctional Institution (SCI). He is responsible for the management and control of SCI, and for the selection, training, assignment, placement, promotion, and discipline of the uniformed staff of SCI. He is sued in his individual capacity for damages and official capacity, for prospective injunctive and declaratory relief for his failure to protect women prisoners from sexual harassment and abuse.
FACTUAL ALLEGATIONS SUPERVISORY DEFENDANTS KNOW THAT WOMEN PRISONERS ARE AT SUBSTANTIAL RISK OF SEXUAL MISCONDUCT BY DOC'S STAFF BUT FAIL TO
TAKE NECESSARY AND APPROPRIATE ACTION. 9. Due to the coercive nature of a prison setting, women prisoners cannot consent to sexual activity with correctional staff. This incapacity to consent is recognized by North Carolina law. N.C. Gen. Stat. 14-27.7(a) 10. DOC correctional staff subject women prisoners to recurrent and ongoing acts of sexual misconduct. These include forcible rape, sexual intercourse, anal intercourse, oral sexual acts, sexual touching, voyeurism, invasion of personal privacy, demeaning sexual comments, and intimidation to deter women prisoners from reporting such sexual misconduct. II. Supervisory defendants are responsible for the care, custody and control of women prisoners, and, through their acts and omissions, supervisory defendants perpetuate the sexual harassment and abuse of women prisoners. 12. Supervisory defendants know that by failing to adequately supervise staff in areas ofNCCIW and SCI that are isolated and removed from view they place women prisoners at substantial risk of experiencing sexual misconduct; that sexual misconduct by staff is ongoing and recurrent; that victims of sexual abuse or harassment in a correctional setting are nnlikely to come forward with complaints of such misconduct; and that defendants' policies and practices
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are grossly inadequate to prevent and remedy sexual misconduct. Despite the obvious nature of

these risks and despite the recurrent incidence of sexual abuse and harassment of women

prisoners, supervisory defendants have failed to take reasonable, necessary and appropriate steps

to prevent and remedy such misconduct.

SUPERVISORY DEFENDANTS KNOW THAT WOMEN PRISONERS ARE AT SUBSTANTIAL RISK OF SEXUAL MISCONDUCT BY DOC'S STAFF.
13. As many as 60-80% of women prisoners were sexually or physically abused prior

to their incarceration. These women are at a heightened risk for the recurrence of such abuse

and, when subjected to such abuse, they are more vulnerable to its consequences.

14. Supervisory defendants are aware that there are obvious risks of sexual activity

when women inmates are supervised by correctional staff and that the absolute disparity in

power between staff and women prisoners renders sexual activity between staff and female

prisoners inherently coercive.

a. Awareness of the risk and incidence of sexual abuse in a prison setting has

led to the promulgation of standards to analyze the incidents and effects of prison rape

and to provide information, resources, recommendations, and funding to protect inmates

from prison rape. Prison Rape Elimination Act of 2003 (PREA, P.L. 108-79).

b.

Awareness of the risk and incidence of sexual abuse in a prison setting led

North Carolina to enact a statute criminalizing any sexual contact between prisoners and

correctional staff. In enacting this statute, North Carolina recognized that correctional

staff wield almost absolute power over all aspects of the daily lives of women prisoners

so that women frequently believe that they cannot refuse demands for sexual activity.

15. Supervisory defendants are aware of the substantial risk of sexual misconduct by

staff upon women prisoners given DOC's actual experience. In the past five years the DOC has

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paid in excess of 100,000 to women, represented by undersigned counsel, who were victimized by sexual predators employed by the DOC. Upon information and belief, other women have brought claims against the DOC for acts of sexual abuse perpetrated by DOC staff. Additionally, the DOC has received numerous complaints and grievances from within women's prisons.
16. Despite these known risks and incidence of sexual misconduct by staff, supervisory defendants, through their policies and practices, have recklessly disregarded these risks, and have failed to protect the women prisoners in their custody from harm.
SUPERVISORY DEFENDANTS FAIL APPROPRIATELY TO SCREEN, ASSIGN, TRAIN, AND SUPERVISE STAFF.
17. Supervisory defendants fail to screen staff for employment so as to prevent sexual misconduct by staff. On information and belief, despite the availability of screening tools that are available to identify male staff for psychological tendencies to abuse women, supervisory defendants fail to use such tools either during the initial hiring phase or at any time before or after assigning staff to work in a women's prison. Supervisory defendants assign correctional staff to guard women prisoners without adequate safeguards to prevent sexual harassment and abuse.
a. The design and layout at both NCCIW and SCI provide numerous hallways, closets, and other isolated areas that are not supervised by camera or by sight. Supervisory defendants failed to account for entry and exit into these areas or provide visual supervision of isolated areas at all times.
b. Supervisory defendants assign staff to posts in which they have the opportunity for unmonitored contact with women prisoners. This includes, for example, the assignment of sole staff to laundry and kitchen areas with no supervision of the staff.
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18. Supervisory defendants fail to ensure the training of staff so as to prevent sexual misconduct by staff.
a. Upon information and belief, the training of staff about issues of sexual misconduct is perfunctory and fails to focus on the special issues of women prisoners, including that a significant proportion are unlikely to report sexual misconduct, are at a heightened risk to experience sexual harassment and abuse, and are particularly vulnerable to its consequences.
b. Upon information and belief, the training of staff fails to emphasize the importance of recognizing signs of sexual misconduct between staff and women prisoners and the importance of reporting such signs to supervisory officials. Staff have not been trained adequately to report such misconduct either when such conduct is observed or when they have reason to believe it has occurred, such as officers and female inmates observed together in locations where they are not permitted or engaging in behavior suggestive of an inappropriate relationship. 19. Supervisory defendants fail to implement and enforce appropriate supervision by and of its staff so as to prevent and remedy staff sexual misconduct.
a. Upon information and belief, supervisory defendants have failed to enact adequate rules and policies to protect women prisoners from sexual innuendoes, vulgarity, degrading sexual comments, and propositioning and to enforce those rules and policies that exist. For example, staff are not disciplined for violating these rules. As a result, such behavior by staff is commonplace, resulting in a hostile and sexualized atmosphere in which sexual harassment and abuse of women prisoners is more likely to occur.
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b. Upon information and belief, supervisory defendants have failed to enact appropriate rules and policies to protect the privacy of women prisoners and to enforce those rules and policies that exist, resulting in violations oftheir privacy. For example, at times male officers watch women in showers and bathroom areas and watch women dress and undress. In addition, even when male staff have been instructed to announce their presence in female prisoners' housing areas prior to their entry, they often fail to do so and are not disciplined or reprimanded for such misconduct.
c. Officers engaging in sexual misconduct leave their assigned posts, allow imnates into areas where imnates are not permitted, and engage in obvious behavior that is suggestive of inappropriate relationships. Supervisory defendants have failed to take sufficient action when such activities are observed or to enforce policies intended to identifY, address and prohibit these activities.
d. Supervisory defendants often permit officers and staff virtually unfettered access to private, unmonitored areas such as kitchen store rooms, storage closets, and laundry areas where sexual abuse of women prisoners is more easily accomplished.
e. Supervisory defendants fail to increase the supervision of correctional staff about whom they have received complaints of sexual misconduct by women prisoners. Such staff are still permitted umnonitored contact with women prisoners, often still with virtually unfettered access to private umnonitored areas and without additional staff being assigned to observe their actions.
SUPERVISORY DEFENDANTS' SYSTEM FOR REPORTING AND INVESTIGATING COMPLAINTS OF SEXUAL MISCONDUCT
IS GROSSLY INADEOUATE. 20. Supervisory defendants' system for the reporting and investigation of sexual misconduct is grossly inadequate to prevent and remedy ongoing sexual misconduct because it
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relies almost completely upon women prisoners to come forward and report the misconduct; it deters women prisoners from reporting sexual misconduct; it fails to utilize reasonable and available investigative tools; it is biased; and it fails to take appropriate action against perpetrators if and when women do come forward. The effect of this system is to allow sexual misconduct by staff to continue virtually unabated.
21. Supervisory defendants know that women prisoners are unlikely to come forward with complaints of sexual abuse by staff.
a. Victims of sexual abuse, in general, are unlikely to come forward with complaints of such misconduct, due to embarrassment and humiliation and a fear that such complaints will be greeted with skepticism.
b. These concerns are exacerbated in a correctional setting, where the persons to whom such complaints are to be made are colleagues of the perpetrator(s) of the abuse, putting the victim at risk of retaliation; where complaints of such abuse are not maintained in a confidential fashion; and where there is a well-founded belief by women prisoners that such complaints will be greeted with skepticism, and will not result in any action against the perpetrator.
c. Women prisoners who were SUbjected to physical or sexual abuse prior to their incarceration, particularly those who complained to no avail, may face difficult psychological and emotional obstacles in complaining of sexual misconduct while in prison. These women are unlikely to come forward with such complaints while in prison. 22. Supervisory defendants know that, given this reluctance, having a complaint and investigative system that relies primarily on women prisoners to come forward with complaints
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of sexual abuse is insufficient to prevent and remedy this misconduct. Nonetheless, supervisory defendants rely on such a system and fail to utilize other means to root out sexual misconduct.
23. Supervisory defendants do not adequately inform women prisoners of the procedures for reporting sexual misconduct by staff, and indeed provide ambiguous information.
a. Women prisoners in DOC custody receive PREA training and are told to report any sexual misconduct to an officer, without regard to the fact that the woman must continue to live with the retaliation of other officers and inmates for reporting such abuse.
b. Women prisoners have been given ambiguous, incomplete and/or insufficient information concerning the time in which they must complain about sexual misconduct, and if or how they may respond to findings or a lack of findings. 24. Upon information and beliefthere is no confidential administrative mechanism to attempt to remedy complaints by women prisoners of sexual misconduct by staff. Grievances from victims of sexual misconduct are routinely not responded to and the victims are rarely provided any infOlmation about the course or scope of investigation into their complaints. 25. Pursuant to supervisory defendants' policies and/or practices, complaints concerning sexual misconduct by staff are not maintained confidentially, deterring women prisoners from coming forward with complaints. If the grievance system is used, other inmates can immediately become aware of the details of the complaint. Because staff do not conduct investigations into complaints of sexual misconduct in a confidential manner, the perpetrators of misconduct or their colleagues learn of the investigations and inflict harassment or retaliation upon women prisoners. When staff promise confidentiality to women prisoners, they often violate their commitment.
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26. Supervisory defendants fail to take steps sufficient to protect women prisoners who complain of experiencing sexual misconduct by staff from retaliation or intimidation.
27. Pursuant to supervisory defendants' policies and/or practices, women prisoners who complain of sexual misconduct by staff or who are questioned in the course of an investigation are often questioned in a hostile, demeaning and threatening manner.
28. Supervisory defendants fail to employ obvious measures to reduce the risk of sexual misconduct between staff and women prisoners, such as heightened monitoring of situations indicative of ongoing sexual misconduct or inappropriate relationships, surveillance cameras, electronic recording devices.
29. Supervisory defendants' policies and/or practices treat complaints by women prisoners of sexual misconduct by staff in a systematically biased fashion. An allegation of sexual miscouduct based exclusively or primarily on the statement of a woman prisoner will not be given credence, will not be found to be substantiated, and will not result in any action being taken against the staff person, even if credible and even if supported by other witnesses. Supervisory defendants' investigations do not give adequate weight to indicia of sexual misconduct short of physical evidence. Such indicia include staff persons being seen out of place; staff persons allowing inmates into areas where inmates are not permitted; staff persons engaging in behavior suggestive of an inappropriate relationship; and staff giving contradictory statements to investigators.
30. Supervisory defendants' policies and/or practices allow staff to engage in sexual misconduct virtually without fear of repercussions. As a result of these policies and/or practices, staff against whom credible complaints of sexual misconduct have been lodged are not moved away from contact with women prisoners; rather, they are left in a position where they can
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continue to sexually harass and abuse other women prisoners, exposing other women prisoners to an unnecessarily high risk of sexual misconduct.
31. Under the policies and practices of supervisory defendants, women may be charged with disciplinary offenses for having sexual relations with staff, despite the fact that sexual acts by prisoners with staff are involuntary as a matter of state law. The result may be placement in segregation under harsh, isolating and punitive conditions which means the loss of participation in all program and job assignments, as well as drug and alcohol treatment. Because disciplinary history, placement in segregation, and program and job assignments are considered by the classification committees and parole board, a woman who complains about sexual misconduct risks making her incarceration more restrictive or lengthening her incarceration.
32. Supervisory defendants do not consistently conduct investigations into claims of sexual harassment and abuse in a prompt marmer, potentially subjecting both the woman who has complained and other women prisoners to continued abuse. Once a woman prisoner notifies defendants that she has been subjected to abuse, weeks can pass before an investigation is begun. Once it is begun, even when unambiguous proof of misconduct is offered, action may not be promptly taken against staff.
THE NAMED PLAINTIFFS HAVE SUFFERED REPEATED AND UNNECESSARY SEXUAL ABUSE.
33. Sandra Etters is an inmate in the custody of the DOC. a. Ms. Etters has been confined at NCCIW at all times relevant to this
Complaint. b. Ms. Etters was raped repeatedly by Defendant Sims from late summer
2007 through the fall of 2007. Ms. Etters worked in the laundry in Dorm H on third shift at NCCIW.
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c. Whenever Defendant Sims' schedule coincided with Ms. Etters', and the

Sergeant was sleeping, Defendant Sims would force Ms. Etters to have intercourse with

him. He raped her repeatedly, at times handcuffing her so tightly during his assault that

her wrists were left bleeding.

d. Defendant Sims told Ms. Etters he would have her transferred if she

reported his abuse; he also threatened write ups.

e. During the time Ms. Etters was raped there was generally another officer

posted outside a long hallway that led to the conference room. This officer spent her

nights sleeping instead of watching the area where Ms. Etters worked, allowing her to be

raped time and time again.

f.

Ms. Etters was sexually abused as a child and an adnlt and was physically

abused as an adult prior to her incarceration.

g. As a result of the abuse by Defendant Sims, Ms. Etters has suffered

severe psychological and emotional distress including depression, difficulty sleeping and

eating, and bouts of crying.

h. As a result of the abuse by Defendant Sims, Ms. Etters has suffered

physical injury.

34. Ronda Singletary is an inmate presently confined at SCI. She was an inmate at NCCIW at all times relevant to this Complaint.
a. In December 2006 Ms. Singletary was working in the canteen. Defendant Wiggins approached her and exposed his penis to her. Another staff member carne into view and Defendant Wiggins retreated.

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b. Ms. Singletary immediately reported the sexual harassment to Defendants Moore and Ford.
c. Defendants Moore and Ford told Ms. Singletary she would have to again place herself in a position of vulnerability with Defendant Wiggins so that NCCIW could verify her allegations.
d. Ms. Singletary had no choice but to act as bait for the Defendants' scheme and was left in a room with Defendant Wiggins while Defendants Moore and Ford watched.
e. Defendant Wiggins again sexually propositioned Ms. Singletary, dropped his pants and put his penis in Ms. Singletary's hand.
f. It was not until Defendant Wiggins had touched Ms. Singletary with his penis that Defendants Moore and Ford finally intervened.
g. As a result of the abuse by Defendant Wiggins, Ms. Singletary has suffered severe psychological and emotional distress. 35. Deven Deal is an inmate presently confined at NCCIW.
a. In September or October of2008 Ms. Deal was working as ajanitor in the Mental Health Hospital at NCCIW.
b. On the day at issue Ms. Deal was working and observed that there was no one in the area except for her and Defendant Barbosa. Defendant Barbosa cornered Ms. Deal in a locked supply closet that only he had keys to. Defendant Barbosa asked Ms. Deal to show him something and Ms. Deal lifted her shirt and bra. Defendant Barbosa fondled Ms. Deal and put his mouth on her breast. Defendant Barbosa asked her to show him something else and she pulled her pants open. Nurse Barbosa looked at her genitals.
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c. After assaulting Ms. Deal, Defendant Barbosa left the supply closet and permitted Ms. Deal to follow him. They remained the only people in the area. There were no other correctional staff anywhere near the supply closet to supervise Defendant Barbosa.
d. Ms. Deal was sexually and physically abused as a child and as an adult prior to her incarceration.
e. As a result of the abuse of Defendant Barbosa Ms. Deal suffered severe psychological and emotional distress. 36. In October of2007 Ms. Deal was incarcerated at SCI and was housed in segregation completing a short period of disciplinary time.
a. Defendant Blalock, a unit manager, escorted Ms. Deal to and from her showers. After returning her to her cell he would walk away from her door for a moment and then return and watch her dress.
b. Ms. Deal reported this harassment to Officers Lowe and Hudson but both officers told Ms. Deal that Defendant Blalock had been engaging in these types of harassment for so long that nothing could be done.
c. Ms. Deal then reported the harassment to Sergeant Hamilton who again indicated that she had evidence ofthis type of harassment by Defendant Blalock involving many other women inmates, but that nothing could be done.
d. Ms. Deal then reported the harassment to Captain McCoy who interviewed Ms. Deal on two separate occasions about the harassment.
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e. Upon information and belief, Defendant Blalock was transferred to the men's unit at SCI but immediately returned to his post at the women's prison as soon as Ms. Deal completed her disciplinary sentence and was transferred back to NCCIW.
f. As a result of the abuse of Defendant Blalock Ms. Deal suffered severe psychological and emotional distress. 37. Louretha King is an inmate presently confined at NCCIW.
a. In September of 2008, Defendant Jessica Jones began verbally propositioning and harassing Ms. King. Defendant Jones continued her verbal harassment of Ms. King, telling her on nnmerous occasions that if Ms. King did not participate in the verbal harassment that Defendant Jones would retaliate against her.
b. In addition to the actions of Defendant Jones there were two male officers assigned to Ms. King's housing unit that would act as lookouts. Never once did either man report the activities of Defendant Jones. Defendant Jones began sending Ms. King money through the mail and she required Ms. King to call her home when Defendant Jones was not working. Defendant Jones told Ms. King that she would make calls to lawyers to help Ms. King get out of prison early.
c. Ms. King reported the sexual harassment on to Deputy Warden Harris. Harris promised Ms. King that she would no longer have to see or participate in the abuse that Defendant Jones had inflicted upon her.
d. On May 29, 2009 Ms. King was crossing a foot bridge outside ofNCCIW to go to work. Ms. King looked at the watch tower and saw Defendant Jessica Jones aiming a rifle straight at her.
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e. As a result of the abuse of Defendant Jones Ms. King suffered severe psychological and emotional distress. She is fearful of retaliation.
CLASS ACTION ALLEGATIONS 38. Plaintiffs Sandra Etters, Ronda Singletary, Deven Deal and Louretha King bring this action on behalf of all present and future women prisoners in DOC custody. This action is brought pursuant to the Federal Rules of Civil Procedure, Rules 23(a), (b)(l), and (b)(2). The class meets the requirements of Rule 23 as follows:
a. There are approximately 2900 women prisoners at anyone time confined in DOC women's prisons, who are subject to the risk of sexual abuse or harassment. The membership of the class continually changes, rendering joinder of all members impracticable. On information and belief, complaints of sexual harassment and abuse are filed each year. Many more incidents go unreported.
b. The questions oflaw and fact presented by the named plaintiffs are common to all members of the class. Such questions include whether the failures to adequately supervise and train correctional staff; the failure to create institutional and physical facilities to protect women from sexual abuse; and punitive measures against women who report sexual abuse subject women prisoners in DOC custody to a substantial and unreasonable risk and experience of sexual harassment, abuse and assault by correctional staff.
c. The violations suffered by the named plaintiffs are typical of those suffered by the class. The entire plaintiff class will benefit from the injunctive and declaratory relief sought.
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d. Plaintiffs Sandra Etters, Ronda Singletary, Deven Deal and Louretha King are presently incarcerated within institutions operated by DOC. These named plaintiffs will fairly and adequately protect the interests of the class.
e. North Carolina Prisoner Legal Services, Inc. (NCPLS) is a law firm experienced in litigating class actions and individual lawsuits on behalf of prisoners across the state of North Carolina.
f. The defendants have acted, or failed to act, on grounds generally applicable to the class, thereby making appropriate injunctive relief with respect to the class as a whole.
CLAIMS FOR RELIEF CLAIMS ON BEHALF OF THE PLAINTIFF CLASS
FIRST CAUSE OF ACTION Cruel and Unusual Punishment 39. Supervisory defendants, through their policies, practices, acts and omissions, exhibit deliberate indifference to the sexual harassment and abuse of the plaintiff class of women prisoners, in violation of the right of these women to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. 40. Supervisory defendants, through their policies, practices, acts and omissions, subject the plaintiff class of women prisoners to the unnecessary and wanton infliction of pain, and emotional and physical injury in violation of the Eighth Amendment of the United States Constitution. 41. With deliberate indifference to the substantial risk of serious harm to the plaintiff class, supervisory defendants fail appropriately to train, assign, and supervise staff, subjecting the plaintiff class to sexual abuse and harassment by staff, to retaliation for reporting staff sexual
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misconduct, to verbal abuse, and to violations of privacy in violation of the Eighth Amendment of the United States Constitution.
42. With deliberate indifference to the substantial risk of serious harm to the plaintiff class, supervisory defendants fail appropriately to investigate and act upon complaints of sexual misconduct, subjecting the plaintiff class to sexual abuse and harassment by staff, to retaliation for reporting staff sexual misconduct, to verbal abuse, and to violations of privacy in violation of the Eighth Amendment of the United States Constitution.
43. With deliberate indifference to the substantial risk of serious harm to the plaintiff class, supervisory defendants fail to offer and provide adequate mental health treatment to women who report sexual harassment, abuse and trauma, subjecting the plaintiff class to serious emotional and mental injury in violation of the Eighth Amendment ofthe United States Constitution.
SECOND CAUSE OF ACTION Violations of the Right to Be Free From Sexual Abuse and Harassment and of the Right to
Bodily Integrity and Privacy Without Due Process of Law 44. By their policies, practices, acts and omissions, supervisory defendants deprive the plaintiff class of their right to be free from sexual abuse and harassment and of their rights to bodily integrity and privacy, without due process of law, in violation of the Fourth and Fourteenth Amendments ofthe United States Constitution.
THIRD CAUSE OF ACTION Violations of the Right to Freedom of Speech 45. Supervisory defendants, through their policies, practices, acts and omissions, subject the plaintiff class to retaliation for reporting staff sexual misconduct, in violation oftheir
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rights to freedom of speech and to seek the redress of grievances under the First and Fourteenth Amendments to the United States Constitution.
FOURTH CAUSE OF ACTION Violations of the Right to Equal Protection of the Laws 46. Supervisory defendants, through their policies, practices, acts and omissions are deliberately indifferent to the sexual abuse and harassment of women prisoners by the officers under their supervision, and supervisory defendants thus subject the plaintiff class to harassment and abuse because of their gender in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. NAMED PLAINTIFFS' INDIVIDUAL CLAIMS FOR DAMAGES 47. For violation of her right to be free from cruel and unusual punishment, sexual abuse, unwanted touching, verbal abuse, threats, and for violations of her right to privacy and bodily integrity, and equal protection of the laws, as set forth above, plaintiff Sandra Etters seeks compensatory and punitive damages against defendant Officer Sims in amounts to be determined. 48. For violation of her right to be free from cruel and unusual punishment, sexual abuse, unwanted touching, verbal abuse, threats, and for violations of her right to privacy and bodily integrity, and equal protection of the laws, as set forth in above, plaintiff Deven Deal seeks compensatory and punitive damages against defendant Nurse Barbosa in amounts to be determined. 49. For violation of her right to be free from cruel and unusual punishment for violations of her right to privacy and bodily integrity, and equal protection of the laws, as set forth, above, plaintiff Deven Deal seeks compensatory and punitive damages against defendant Unit Manager Blalock in amounts to be determined.
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50. For violation of her right to be free from cruel and unusual punisiunent, sexual abuse, unwanted touching, verbal abuse, threats, and for violations of her right to privacy and bodily integrity, participation in a lawsuit, and equal protection of the laws, as set forth above, plaintiff Ronda Singletary seeks compensatory and punitive damages against defendants Officer Wiggins, Unit Manager Moore and Assistant Unit Manager Ford.
51. For violation of her right to be free from cruel and unusual punisiunent, verbal abuse, threats, and for violations of her right to privacy and bodily integrity, and equal protection of the laws, as set forth above, plaintiff Louretha King seeks compensatory and punitive damages against defendant Officer Jessica Jones in amounts to be determined.
52. For acting with deliberate indifferent to the sexual abuse and harassment of women prisoners by the officers under their supervision and facilitating the violation of their rights to be free from cruel and unusual punishment, sexual abuse, unwanted touching, verbal abuse, threats, and for violations of their rights to privacy and bodily integrity, and equal protection of the laws, as set forth above, plaintiffs Sandra Etters, Ronda Singletary, Deven Deal and Louretha King seek compensatory and punitive damages against defendants Secretary Keller, Secretary Bennett, Administrator Harvey and Administrator Kimble.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 53. In accordance with 42 U.S.C. §1997e, Sandra Etters has exhausted her administrative remedies by filing a grievance setting forth Defendants' deliberate indifference. A copy of the response of the Grievance Appeal is attached hereto as Exhibit A. 54. In accordance with 42 U.S.C. §1997e, Ronda Singletary has exhausted her administrative remedies by filing a grievance setting forth Defendants' deliberate indifference. A copy of the response of the Grievance Appeal is attached hereto as Exhibit B.
22 Case 5:09-ct-03187-D Document 1 Filed 11/18/09 Page 22 of 29

55. In accordance with 42 U.S.C. §1997e, Deven Deal has exhausted her administrative remedies by filing a grievance setting forth Defendants' deliberate indifference. A copy of the response of the Grievance Appeal is attached hereto as Exhibit C.
55. In accordance with 42 U.S.C. §1997e, Louretha King has exhausted her administrative remedies by filing a grievance setting forth Defendants' deliberate indifference. A copy of the response of the Grievance Appeal is attached hereto as Exhibit D.
PRAYER FOR RELIEF As a result of defendants' policies, practices and acts, plaintiffs have suffered and will continue to suffer irreparable injury, including sexual assault, abuse and harassment, pain, shame, humiliation, degradation, emotional distress, embarrassment and psychological distress. WHEREFORE, plaintiffs respectfully request this court as follows: I. Declare that the continuing policies, practices, actions and omissions of the supervisory defendants, as described above, violate the rights of the plaintiff class under the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution. 2. Enjoin supervisory defendants and their successors, agents, servants, employees, and those in active concert or participation with them from subjecting women prisoners in the custody of DOC to verbal and physical sexual abuse and the threat of sexual abuse, and require these defendants to formulate a remedy to end the pattern of sexual misconduct in all women's prisons operated by DOC. Such a remedy should include measures which would address continuing deficiencies in the assigmnent, selection, training and supervision of uniformed staff; in the DOC's complaint and investigatory practices; deficiencies in training for women prisoners, and supervision of isolated areas within women's' prisons.
23 Case 5:09-ct-03187-D Document 1 Filed 11/18/09 Page 23 of 29

3. Award plaintiffs Sandra Etters, Ronda Singletary, Deven Deal and Louretha King compensatory and punitive damages in an amount to be determined against defendants Secretary Keller, Secretary Bennett, Administrator Harvey, Administrator Kimble, Unit Manager Moore, Assistant Unit Manager Ford, Officer Wiggins, Officer Sims, Nurse Barbosa, Unit Manager Blalock and Officer Jones in their individual capacities on their federal causes of action as set forth above.
4. Retain jurisdiction in this case until the nnlawful conditions, practices, policies, acts and omissions complained of herein no longer exist and this court is satisfied that they will not recur.
5. Award plaintiffs the costs ofthis action, including reasonable attorneys' fees. 6. Trial by jury for all issues so triable; and 7. Grant such other and further relief as this court deems just and proper.
This the 18th day of November, 2009 /s/ Elizabeth Albiston Elizabeth Albiston NC Bar No. 36585 ealbiston@ncpls.org NCPLS, Inc. P.O. Box 25397 Raleigh, NC 27611 (919) 856-2200 (919) 856-2223 (fax) Attorneyfor Plaintiffs
24 Case 5:09-ct-03187-D Document 1 Filed 11/18/09 Page 24 of 29

/s/ Michele Luecking-Sunman Michele Luecking-Sunman N.C. BarNo. 31655 mluecking-sunman@ncpls.org NCPLS, Inc. P.O. Box 25397 Raleigh, NC 27611 (919) 856-2200 (919) 856-2223 (fax) Attorney.for Plaintiffs /s/ J. Phillip Griffin J. Phillip Griffin N.C. BarNo. 14436 NCPLS, Inc. P.O. Box 25397 Raleigh, NC 27611 (919) 856-2200 (919) 856-2223 (fax) Attorney.for Plaintiffs
25 Case 5:09-ct-03187-D Document 1 Filed 11/18/09 Page 25 of 29

I, Sandra Etters, have reviewed the factual allegations contained in this Complaint. The allegations which pertain to transactions involving me are true to the best of my knowledge and belief. I declare under penalty of peljury that the foregoing is true and correct.
I Executed this the:;; day of October, 2009.
Sandra Etters
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I, Ronda Singletary, have reviewed the factual allegations contained in this Complaint. The allegations which pertain to transactions involving me are true to the best of my knowledge and belief. I declare under penalty of peJjury that the foregoing is true and correct.
2. Executed this the Sday of October, 2009.
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I, Deven Deal, have reviewed the factual allegations contained in this Complaint. The allegations which pertain to transactions involving me are true to the best of my knowledge and belief. I declare under penalty of peljury that the foregoing is true and correct.
Executed this ~ day of October, 2009.
even Deal
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I, Louretha King, have reviewed the factnal allegations contained in this Complaint. The allegations which pertain to transactions involving me are true to the best ofmy knowledge and belief. I declare under penalty of peJjury that the foregoing is true and correct.
sf-
Executed this the al day of October, 2009.
Louretha King
Case 5:09-ct-03187-D Document 1 Filed 11/18/09 Page 29 of 29

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

No. 5:09-CT-03187-D

SANDRA ETTERS, et al., Plaintiffs, v.
BOYD BENNETT, et al., Defendants.

)

)

) JOINT MOTION TO EXPEDITE

)

ENTRY OF ORDER AND

)

AGREEMENT

)

)

Fed. R. Civ. P. 7(a)

)

Local Civil Rule 7.1, EDNC

)

Now come Defendants Reuben F. Young, Secretary of the North Carolina Department of Public Safety,1 Jennie Lancaster, Chief Deputy Secretary, Division of Adult Correction of the Department of Public Safety,2 and Annie Harvey (hereinafter, “Defendants”), through counsel, North

Carolina Attorney General Roy Cooper, Special Deputy Attorney General Joseph Finarelli and

Assistant Attorney General Kimberly D. Grande, and Plaintiff Sandra Etters, through counsel North

Carolina Prisoner Legal Services (hereinafter, “NCPLS”) attorneys Michele Luecking-Sunman,

Elizabeth Albiston and J. Phillip Griffin, to request the Court’s expedited consideration, approval,

and entry of the Order and Agreement, negotiated by the parties to resolve the disputed claims in this

action and to facilitate the performance by Defendants and the North Carolina Department of Public

Safety, Division of Adult Correction (hereinafter, “DAC”) of assorted prospective relief provided

for therein. In support of this motion, the parties show unto the Court the following:

1Secretary Young is the successor in office to original defendant Alvin Keller and, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, should be automatically substituted as a party.
2Ms. Lancaster is the successor in office to original defendant Boyd Bennett and, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, should be automatically substituted as a party.

Case 5:09-ct-03187-D Document 130 Filed 05/21/12 Page 1 of 5

1. On 18 November 2009, Plaintiff Etters3 filed a Class Action Complaint against Defendants, among others, alleging violations of 42 U.S.C. § 1983 and seeking declaratory relief pursuant to 28 U.S.C. § 2201.
2. Since November 2011, the parties have engaged in settlement negotiations in an effort to resolve the Plaintiff’s requests for monetary damages as well as devise changes to various policies and procedures covering the reporting and investigating of complaints of sexual abuse as well as changes to the physical plants of correctional facilities housing adult female inmates and operated by DAC. The negotiations were undertaken in an ongoing effort to reduce the risk to adult female inmates of sexual abuse by employees, contractors, and agents of DAC and, if possible, to prevent future incidents of sexual abuse. The results of those successful negotiations are embodied in the Order and Agreement, a copy of which is attached hereto as Exhibit A.
3. In the Order and Agreement, the parties have negotiated for and are requesting the Court to order prospective relief, dismiss the claims of Plaintiff Etters with prejudice, but to still maintain jurisdiction to provide a mechanism for NCPLS to enforce any substantial breach by DAC of the terms of the Order and Agreement.
4. As part of the Order and Agreement, the North Carolina Department of Public Safety has entered into a contract with a consulting firm, The Moss Group, for a variety of services including, but not limited to, conducting sexual safety assessments of several adult female prison
3The Complaint asserted claims on behalf of four named plaintiffs. The claims of two of those plaintiffs, Louretha King and Rhonda Singletary, were dismissed by this Court in its order granting Defendants’ motion for judgment on the pleadings. [D.E. #57]. Following a separately negotiated settlement, the fourth plaintiff, Deven K. Deal, has agreed to dismiss her claims with prejudice against several of the defendants (Keller, Bennett, Harvey, Timothy Kimble and Lamar Blalock) who she alleged had violated her constitutional rights. A Stipulation of Dismissal with Prejudice on behalf of Ms. Deal and dismissing her claims against those defendants was filed on 18 May 2012. [D.E. # 129]
Case 5:09-ct-03187-D Document 130 Filed 05/21/12 Page 2 of 5

facilities, assisting in the training of staff, and making other recommendations to facilitate DAC’s performance under the Order and Agreement. The Court’s approval of the Order and Agreement is required before The Moss Group can begin its work under the contract, a copy of which is attached to the Order and Agreement as Exhibit 1.
4. In addition, as part of the Order and Agreement, Defendants have agreed to a financial settlement with Plaintiff Etters that will be finalized upon this Court’s approval and entry of the Order and Agreement, which entry would operate not only to dismiss with prejudice the claims of Plaintiff Etters – excepting the right by NCPLS to enforce DAC’s compliance with the Order and Agreement – but also obligate DAC to pay Plaintiff Etters the agreed upon settlement proceeds.
WHEREFORE, the parties respectfully move the Court to expedite its review, approval, and entry of the Order and Agreement and to file it as an official order of the Court at the Court’s earliest opportunity.
Case 5:09-ct-03187-D Document 130 Filed 05/21/12 Page 3 of 5

Respectfully submitted, this the 21st day of May, 2012.
ROY COOPER Attorney General
/s/ Joseph Finarelli Joseph Finarelli Special Deputy Attorney General N.C. Bar No. 26712 Telephone: (919) 716-6531 E-Mail: jfinarelli@ncdoj.gov
/s/ Kimberly Grande Kimberly Grande Assistant Attorney General N.C. Bar No. 40708 Telephone: (919) 716-6567 E-Mail: kgrande@ncdoj.gov North Carolina Department of Justice P.O. Box 629 Raleigh, NC 27602-0629
Attorneys for Defendants Lancaster, Young, Harvey
/s/ Michele Luecking-Sunman Michele Luecking-Sunman N.C. Bar No. 31655 mluecking-sunman@ncpls.org
/s/ Elizabeth Albiston Elizabeth Albiston N.C. Bar No. 36585 ealbiston@ncpls.org
/s/ J. Phillip Griffin J. Phillip Griffin N.C. Bar No. 15536 pgriffin@ncpls.org
North Carolina Prisoner Legal Services, Inc. P.O. Box 25397 Raleigh, NC 27611 (919) 856-2200 Attorneys for Plaintiff Etters
Case 5:09-ct-03187-D Document 130 Filed 05/21/12 Page 4 of 5

CERTIFICATE OF SERVICE The undersigned hereby certifies that on 21 May 2012, I electronically filed the foregoing Joint Motion to Expedite Entry of Order and Agreement with the Clerk of Court using the CM/ECF system which will send notification of such filing to the Plaintiffs’ counsel of record: Elizabeth Albiston N.C. State Bar No. 36585 ealbiston@ncpls.org Michele Luecking-Sunman N.C. State Bar No. 31655 mluecking-sunman@ncpls.org J. Phillip Griffin N.C. State Bar No. 14436 pgriffin@ncpls.org North Carolina Prisoner Legal Services, Inc. P.O. Box 25397 Raleigh, NC 27611 Attorneys for Plaintiff Etters This the 21st day of May, 2012.
Respectfully submitted,
/s/ Joseph Finarelli Joseph Finarelli Special Deputy Attorney General
Case 5:09-ct-03187-D Document 130 Filed 05/21/12 Page 5 of 5

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION NO. 5:09-CT-3187-D

SANDRA ETTERS, et al.,

)

Plain tiffs,

)

)

v.

)

)

SECRETARY REUBEN F. YOUNG, )

ct al.,

)

Defendants.

)

ORDER AND AGREEMENT

The parties hereto, by their attorneys, having agreed and stipulated to the entry of this Order and Agreement, submit the following to the Court for entry in settlement of this action.

PARTIES Plaintiff Sandra Etters (hereinafter "Plaintiff') enters into this Order and Agreement along with Defendant Reuben F. Young, Secretary of the North Carolina Department of Public Safety, the successor in office to the original defendant Secretary Alvin Keller, and Defendant Jennie Lancaster, the Chief Deputy Secretary of the Division of Adult Correction and the successor in office to the original Defendant Boyd Bennett who both enter into this Order and Agreement in their official capacity as officers of the State of North Carolina and the Department of Public Safety (hereinafter, "DPS"). Any and all claims by Plaintiff which were or could have been brought in this action against Defendants Reuben F. Young, Jennie Lancaster, and Annie Harvey, are dismissed with prejudice upon entry ofthis Order and Agreement by the Court.

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 2 of 48

STIPULATIONS The parties stipulate and the Court adopts the following stipulations as fact and, where applicable, law: 1. This Order and Agreement will grant prospective relief to Plaintiff with respect to conditions at prison facilities operated by the North Carolina Department of Public Safety, Division of Adult Correction (hereinafter "DPS-DAC") which house adult female inmates as set forth in more detail hereinbelow. 2. The relief granted herein is narrowly drawn, extends no further than necessary to correct a violation of a federal right, and is the least intrusive means necessary to correct the violation of a federal right; 3. Nothing in this Order and Agreement, including, specifically, the stipulation in Paragraph 2, constitutes an admission of liability and undersigned Defendants and DPSDAC vigorously dispute that they have violated the federal rights of Plaintiff Sandra Etters or any other adult female inmate. The stipulation set forth in Paragraph 2 is included expressly to facilitate the parties' intent to enable the Couti to: (a) retain jurisdiction for the desired term; (b) if necessary, entertain any future motion by North Carolina Prisoner Legal Services, Inc. (hereinafter "NCPLS") to enforce the terms of this Order and Agreement; and (c) serve as the exclusive forum for any such enforcement. The stipulation in Paragraph 2, as well as all other representations, commitments, or stipulations in this Order and Agreement, shall have no precedential value and may not be relied on as precedent in any future claim, without prejudice or limitation, however, to the ability ofNCPLS to enforce the terms of this Order and Agreement.
2
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4. This Order and Agreement is entered into by the parties as part of an amicable settlement of disputed claims raised in this action. In entering into this settlement, Defendants Young and Lancaster make no admissions of liability to Plaintiff and voluntarily assume the obligations set forth herein in their continuing effort, and the effort of DPS-DAC, to establish gender-responsive and evidence-based practices and prevent sexual abuse in facilities operated by DPS-DAC which house adult female inmates.
5. This Order and Agreement reflects actions already undertaken and policies and procedures already implemented by DPS-DAC, as well as commitments to further actions set forth herein. As used herein the phrase sexual abuse means sexual assault, abuse and harassment of women prisoners, including forcible rape, sexual intercourse, anal intercourse, oral sexual acts, sexual touching, and voyeurism, by any employee, contractor, volunteer, or agent of DPS-DAC. The term aggressor means the employee, contractor, volunteer or agent suspected or accused of engaging in sexual abuse.
AGREEMENTS Contract with The Moss Group 6. DPS-DAC and the State ofNorth Carolina have contracted with The Moss Group, Inc. (hereinafter "TMG") for its services in enhancing sexual safety in facilities operated by DPS-DAC which house adult female inmates. DPS-DAC will abide by the terms ofthat contract, a copy of which is attached as an exhibit to this Order and Agreement and incorporated herein by reference. TMG may at its discretion provide to NCPLS any document or other information in its possession relating to DPS-DAC's performance of that entity's obi igations under the contract or under this Order and
3
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Agreement. The use by NCPLS of any such document or other information is subject to the terms ofthe Protective Order (D.E. #113) entered in this action and applicable to materials considered "Attorneys' Eyes Only Confidential Information."
7. In completing its work under the contract, TMG may recommend to DPS-DAC the adoption of policies, training practices, changes to physical facilities, and other measures for the prevention of sexual abuse, based upon TMG's experience and expertise in corrections and Prison Rape Elimination Act (PREA) standards. If such recommendations are made, DPS-DAC will adopt the recommendations or explain to TMG and NCPLS, in writing, its reasons for not adopting the recommendations. IfTMG and the parties are unable through consultation to resolve the issue, NCPLS may petition the Court to determine whether said failure is a material breach of DPS-DAC's commitment, as stated herein, to establish gender-responsive and evidence-based practices in an attempt to prevent sexual abuse in facilities operated by DPS-DAC which house adult female prisoners.
8. In the event that DPS-DAC terminates the contract with TMG prior to expiration of that contract, for any reason other than cause, DPS-DAC and NCPLS will have a period of ninety days to reach an agreed upon solution whereby the work remaining on the contract, at the time of termination, is completed. In the event that an agreed upon solution to complete the remaining work is not reached within ninety days, NCPLS may immediately petition the Court to determine if DPS-DAC is in violation of this Order and Agreement.
4
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Interim Measures 9. DPS-DAC has already begun or has committed to, and agrees to complete, the steps outlined in Paragraphs I 0- I3 below: I0. Physical facilities: (a) Install seventy-three (73) additional cameras at North Carolina Correctional Institution for Women (hereinafter, "NCCJW") for surveillance of the academic school library, the auditorium, the culinary arts area, the mental health lobby, Dorm H, the Tag Plant, and the Duplicating Plant. If a previously submitted request for funding is approved, additional surveillance cameras will be installed in at least 2 I areas in North Piedmont Correctional Center for Women, Raleigh Correctional Center for Women, Fountain Correctional Center for Women, and Swannanoa Correctional Center for Women. (b) Install eighteen convex mirrors and add eighty-seven occupancy sensors (motion-activated lights) at NCCIW. DPS-DAC has requested funding for installation of swinging doors, shower curtains, restroom stall partitions, occupancy sensors, Dutch doors and convex mirrors at all other female facilities, and will, if funded, complete those changes by the end of2012. (c) Reduce staff and inmate access to certain more secluded areas at NCCIW by restricting key access to supervisory staff and those staff members authorized to use the areas. Restricted keys are to be securely controlled by designated upper level staff. (d) DPS-DAC is responsible for replacing and agrees to replace any cameras, light sensors, and any other equipment or items installed pursuant to the terms of the Agreement.
5
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 6 of 48

11. Reporting and Investigation: (a) DPS-DAC will continue to provide multiple ways for inmates and third parties to easily, privately, and securely report sexual abuse, retaliation for reporting sexual abuse, and staff neglect that may have contributed to an incident of sexual abuse. DPSDAC will provide inmates with a toll-free telephone number to report sexual abuse directly to the PREA Office in Raleigh without going through staff at the facility housing the inmate. The number will be included in PREA training materials given to inmates and on PREA information posters displayed prominently at all facilities housing adult female inmates. The PREA Office in Raleigh will maintain a written log of all calls to this number. All reports of sexual abuse, however made, are to be forwarded to the facility administrator and the PREA Office in Raleigh. Adult female inmates will be advised in training, however, that when their safety and security are at immediate risk: (1) the toll-free number is not the recommended method by which to report incidents or allegations of sexual abuse; and (2) the prisoner should report any immediate safety concerns to a prison supervisor, health services employee, or any other staff member with whom the prisoner feels comfortable discussing such information, with the understanding that the employee will make an immediate report of such information to the facility head. (b) Each DPS-DAC facility which houses adult female inmates has designated a PREA Support Person who will receive training in supporting and interviewing female victims of sexual abuse. The PREA Support Person is expected to explain the investigative procedures to an inmate who rep01is sexual abuse and be present during investigative interviews ofthe inmate victim. For inmate victims of alleged sexual abuse by a DPS-DAC employee, contractor, or volunteer, the PREA Support Person will consult with the facility head before meeting with the inmate victim on a weekly basis for
6
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 7 of 48

three weeks following the report of sexual abuse to update her on the progress of the investigation, answer any questions of the inmate victim, and provide support to the inmate victim. Following the initial three week period and until the investigation concludes, upon the inmate victim's filing of a request for information relating to the investigation, the PREA Support Person, after consultation with the facility head, may be made available to meet with the inmate. The confidentiality of the inmate's communication with the PREA Support Person is subject to the provisions of the DPSDAC Inmate Sexual Abuse and Harassment Policy.
(c) The PREA Support Person will monitor each inmate who reports or is reported by others to be the victim of a sexual abuse, so as to track disciplinary infractions, programming assignments, housing assignments, and other possible signs of retaliation by staff. If the PREA Support Person suspects retaliation by a staff member, he/she must report such to the facility head and the PREA Office in Raleigh.
(d) No inmate shall be subjected to disciplinary action in connection with a PREA investigation of sexual abuse committed against the inmate by an aggressor without the approval of the Female Command Manager. No inmate shall be charged for a false report of sexual abuse unless it is determined that the inmate made intentional, malicious, and false allegations againstthe alleged aggressor.
(e) Upon receipt of a report of sexual abuse, the facility head or the officer in charge ofthe institution will immediately speak with the alleged victim to determine what immediate action must be taken. This action may include, but is not limited to, the following: (1) immediate verbal notification through the facility and the DPS-DAC chain of command that a potential crime has been committed; (2) immediate removal of the
7
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 8 of 48

alleged victim from the area of the alleged incident; (3) making arrangements for the alleged victim to receive a forensic medical examination by outside medical personnel; (4) preservation of the physical location of the alleged incident for law enforcement forensic investigation purposes; (5) directing the alleged victim to refrain from removing clothing, showering, brushing her teeth, or in any other way disturbing or destroying possible forensic evidence; (6) directing the designated PREA Support Person to remain with the alleged victim unless the alleged victim declines such assistance; and (7) making mental health personnel available for consultation with the alleged victim unless the alleged victim declines such assistance and communicates this refusal directly to mental health personnel. If a "strip" (visual) search of the alleged victim is deemed necessary by the facility head or designee for purposes of ensuring the safety of the alleged victim and the security of the facility, the search will be conducted in accordance with all applicable DPS-DAC policies which provide, among other things, that the search be conducted by correctional staff of the same gender as the alleged victim and in a private setting. Only DPS-DAC medical staff, if deemed medical necessary in accordance with DPS-DAC's Health Services policies, will be permitted to conduct non-forensic body cavity searches and internal examinations of the alleged victim. In the event that photography of any portion of an alleged victim's body is deemed necessary by the facility head or designee to document injuries attributed by the alleged victim to a sexual aggressor, those photographs shall be taken by DPS-DAC custody staff of the same gender as the alleged victim and in a private setting. However, any photography or evidence collection performed either by local law enforcement or an outside medical facility will be
8
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undertaken by those entities and personnel according to their own applicable policies and procedures and is beyond the control of DPS-DAC and its employees.
(f) Upon receipt of an allegation of sexual abuse by an inmate at a DPS-DAC facility which houses adult female inmates, the facility head or designee shall take all necessary steps to separate the inmate victim and the alleged aggressor immediately, if possible, by re-assigning the accused aggressor. If the facility head, in consultation with the PREA Support Person, determines that the safety of the inmate victim requires that she be placed in administrative segregation, such segregation shall be administered in accordance with the applicable DPS-DAC policies and procedures for administrative segregation. The Female Command Manager and the PREA Office in Raleigh shall be notified in writing of the use of segregation and the reasons therefor. To the maximum extent possible, the inmate victim while in administrative segregation shall have the same privileges of access to the canteen, telephone, visitation and her property as she was afforded prior to her reporting. In addition, within three business days of the inmate victim's release from administrative segregation: (1) the facility administrator or designee will return the inmate victim to the gain time job assignment the inmate victim had prior to her period of administrative segregation, if available; (2) if, for facility operational reasons, the inmate victim's prior job assignment is unavailable, the facility administrator or designee will place the inmate victim in another gain time job assignment that is at least equal to the prior gain time job assignment; and (3) the facility administrator or designee will notify the Female Command Manager, in writing, that the inmate victim has either been returned to her prior job assignment or placed in an equivalent one. Within three business days ofthe receipt of the written notification from the facility
9
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 10 of 48

administrator or designee, the Female Command Manager or designee will request in writing to the Assistant Chief of Program Services that the inmate victim's gain time be restored. The Female Command Manager or designee will review the changes, if any, in the inmate victim's projected release date to confirm DPS-DACs compliance with the above provisions. When the inmate is released from segregation, whenever possible she shall be allowed to return to her previously assigned housing unit unless, in the discretion of the facility head, doing so exposes the inmate to an increased risk to her safety and security or the orderly operation of the faci Iity.
(g) The investigation of any reported sexual abuse shall be conducted by a designated PREA Investigator trained in the investigation of sexual abuse against women, as well as PREA standards and other relevant investigatory skills. Interviews of witnesses and the alleged aggressor shall be recorded and the interviews ofthe inmate shall be recorded if the inmate consents to the recording. Recordings shall be preserved for five years.
(h) If at any point during an investigation, the investigator determines there is credible evidence a crime was committed, the investigator will notify the facility head who will follow the procedures set forth in the DPS-DAC Inmate Sexual Abuse and Harassment Policy with regard to the reporting of allegations to local or state law enforcement authorities.
(i) Prior allegations involving the alleged aggressor shall be considered by the PREA Investigator for reference as relevant in assessing the credibility of the allegations in the instant investigation.
(j) The PREA Investigator will make a determination at the conclusion of each
10
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 11 of 48

investigation, based upon the preponderance of all the evidence reviewed by the investigator. The determination will not be deemed "unsubstantiated" merely because the alleged aggressor has resigned or the inmate is transferred or released.
(k) The PREA Investigator shall prepare a written report of the results ofthe investigation including the evidence and the reasons for the conclusions reached. The report shall be furnished to the facility administrator, the Female Command Manager, and the PREA Office in Raleigh. The report shall be maintained for five years and be available for review by TMG.
(I) The inmate shall be informed by the PREA Support Person of the results of the investigation.
(m) If an allegation of sexual abuse in which a volunteer or contracting agent is the alleged aggressor is received, the volunteer or contracting agent may be removed immediately from any service relationship with DPS-DAC. If an allegation of sexual abuse in which a volunteer or contracting agent is the alleged aggressor is substantiated, the volunteer or contracting agent will be terminated from the relationship with DPSDAC. If an allegation of sexual abuse against a state employee is substantiated, the investigation report will be forwarded to the facility head who will forward copies of the investigation report to the Female Command Manager and designated officials of DPSDAC. The facility head will initiate appropriate disciplinary action against the employee under the State Personnel Act after consultation with the Female Command Manager.
(n) An inmate who reports sexual abuse shall be referred to mental health or medical services for evaluation at any time upon her request through the sick call system or through the PREA Support Person.
11
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12. StaffTraining (a) All staff and volunteers working at a DPS-DAC facility housing adult female inmates will receive training in PREA standards, custodial relationships, and undue familiarity at initial orientation and annually thereafter. The training will include genderspecific information on the issues inherent in dealing with a female prison population. The training will emphasize the DPS-DAC zero-tolerance policy on sexual abuse and the consequences of both participating in such abuse and of failing to report sexual abuse of which the staff member or volunteer is aware or has reason to suspect has taken place. (b) The PREA Support Person at each DPS-DAC facility housing adult female inmates will receive training in the gender specific aspects of a female victim of sexual abuse. (c) The PREA Investigator at each DPS-DAC facility housing adult female inmates will receive training in interviewing female victims of sexual abuse and in investigating sexual offenses. (d) To the extent possible under the terms of its contract with DPS-DAC, TMG will provide the training outlined in subsections (a) through (c) above. 13. Inmate Training (a) All adult female prisoners at a DPS-DAC facility will receive training in PREA standards and DPS-DAC sexual abuse policies at initial orientation and annually thereafter. (b) Both the initial training and the annual refresher course will include information regarding the inmate's duty to report sexual abuse, and the procedures followed in the investigation of such reports.
12
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 13 of 48

(c) Inmates will be informed in both the initial training and the annual refresher course of the prohibitions against retaliation, the responsibilities of the PREA Support Person and the PREA Investigator, and the use of administrative segregation in the course of a PREA investigation.
Modifications 14. All ofthe items set forth in paragraphs 9-13 of this Order and Agreement have been discussed and negotiated by and among the parties as interim measures which are subject to review and revision upon the safety assessments to be conducted by TMG under its contract with DPS-DAC. Ifthere is any conflict between these interim measures and either PREA standards or other best practices identified by TMG, DPSDAC compliance with PREA standards and best practices identified by TMG shall be deemed to satisfy the obligations of DPS-DAC under this Order and Agreement. 15. Except as stated in paragraph 14 above, the terms of this Order and Agreement may only be modified by the written consent of the parties or their successors. Any such changes shall be effective when submitted to the Court for entry of a Revised Order and Agreement. 16. By her consent to the terms of this Order and Agreement and the Court's entry thereof, and in consideration for $24,000 to be paid by DPS-DAC within ten (I 0) days thereafter, Plaintiff Sandra Etters agrees to a full and complete release of all claims, demands, damages, actions, and causes of action of whatever kind or nature, known or unknown, available to be brought in any forum, and seeking money damages or other relief against the State of North Carolina, DPS-DAC, their employees and agents, Defendants Young, Lancaster, and Harvey, as well as those Defendants' successors and
13
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 14 of 48

assigns, for events arising out of or related to alleged incidents of sexual assault during her incarceration at North Carolina Correctional Institution for Women as set forth in the Complaint [D.E. #I] in this action. Plaintiff Sandra Etters further acknowledges that she agrees to the release as described above knowingly, voluntarily, and of her own free will, having had the opportunity to consult with counsel.
COURT ENFORCEMENT 17. This Order and Agreement will remain in effect for the duration of the contract entered into by DPS-DAC and TMG and incorporated as an exhibit hereto or for four years from the date of the execution of that contract, whichever is longer. 18. NCPLS shall have the right to seek court enforcement of this Order and Agreement and DPS-DAC shall not oppose an application by NCPLS to intervene for that purpose. 19. Upon execution of this Order and Agreement, it shall be submitted to the Court for entry as an Order of the Court. Upon its entry, Plaintiffs claims against Defendants Young, Lancaster, and Harvey shall be dismissed with prejudice, except that the dismissal shall be without prejudice to the filing by NCPLS of a Motion for Enforcement. The issues before the Court upon such a Motion being filed shall be limited to whether there has been a material breach of the Order and Agreement and, if so, the appropriate enforcement remedy.
20. The parties to this Order and Agreement will bear their own fees and expenses incurred in connection with this matter, including but not limited to, the litigation of the action prior to the commencement of settlement negotiations, the negotiations required to produce a mutually agreeable Order and Agreement for
14
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 15 of 48

submission to the Court, and any subsequent efforts by NCPLS to enforce compliance by DPS-DAC with the terms of this Order and Agreement after its entry by the Court. However, in the event that DPS-DAC terminates the TMG contract without cause, and the provisions in paragraph 8 above are not satisfied, NCPLS docs not waive its right to seck reasonable attorneys' fees and costs for successful enforcement of this Order and Agreement, specifically pertaining to the work remaining on the TMG contract at the time of termination, and DPS-DAC, on behalf of the Defendants, reserves its right to oppose any such petition for fees and costs.
15
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 16 of 48

Received:

MAY-21-2012 11:03

CLASSIFICATIONS

May 21 2012 10:57am 9105724212

P.003

AGREED AND STIPULATED:
'~ 111 ~~~-----Sandra Etters, Plaintiff
Is/ Michele Luecking-Sunman Michele Luecking-Sunman N.C. Bar No. 31655 mluecking-sunman@ncpls.org
/s/ Elizabeth Albiston Elizabeth Albiston
N.C. Bar No. 36585
ealbiston@ncpls.org
/s/ J. Phillip Grif-fin J. Phillip Griffin N.C. Bar No. 14436
pgriffin@ncpls.org
North Carolina Prisoner Legal Services, Inc. P.O. Box 25397 Raleigh, NC 27611 (919) 856-2200 (919-856-2223 (fax) Allorneysfor Plaintiff

•
16 Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 17 of 48
TOTAL P.003

f Public Safety

e ie Lancaster, Chief Deputy Secretary (._....-')C·r the Division of Adult Correction

~·--."

ROY COOPER Attorney General
Is! Joseph Finarelli Joseph Finarelli Special Deputy Attorney General N.C. Bar No. 26712 Telephone: (919) 716-6531 E-Mail: jfinarelli@ncdoj.gov
Is/ Kimberly Grande Kimberly Grande Special Counsel N.C. Bar No. 40708 Telephone: (919) 716-6567 E-Mail: kgrande@ncdoj.gov
Attorneysfor Defendants Lancaster, Young, Harvey.

APPROVED AND ORDERED, This the_ day of May, 2012.

Judge United States District Court

17
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 18 of 48

EXHIBIT 1
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 19 of 48

North Carolina Departlnent of Administration

Beverly Perdue, Governor Moses Carey, Jr., Secretary

Division of Purchase & Contract William Sam Byassee, State Purchasing Officer

Memorandum

To: Sunde McCann, Purchasing Agent Department of Public Safety
From: Sam Byassee, State Purchasing Officer
Re: Approval of Sole Source Procurement
Date: 18 May 2012

o5:f0a9-SCeTtTt-lh3ei1ms8eM7n-eDtmA).gorrTaehneedmuMemnotswesinllGtearrpoepudrpo,tovIenrcet.hsewolivlplerpocrcoeuvrrtieadmienetlrniattiignoaifntiTgohnpel(a1Mn0soCsasvnSGd r1ao6su6sp7e,6sp,sum1r0seunCatsvnStfot1or 9Dt0hP1eS9tearnmds personnel and post-settlement monitoring of DPS facilities. These services are to be provided from June 1, 2012 through November 30, 2016, at a cost not to exceed $582,632.00.
Approval is granted pursuant to 01 NCAC 058.1401, where the particular service is needed for training and developmental work.

cc: Drew Harbinson, Director of Purchasing and Logistics

Mailing Address: 1305 Mail Service Center Raleigh, NC 27699-1305

Internet Home Page: wwv.t.ncpandc.gov Phone: 919-807-4500

Location Address: 116 West Jones Street Raleigh, NC 27603-8002

An Equal Opportunity I Affirmative Action Employer

Revised 4/11/2011

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 20 of 48

North Carolina Department of Public Safecy
Prevent. Protect. Preptlre.

Beverly Eaves Perdue, Governor

Reuben F. Young, Secretary

May 17,2012

TO: FROM:

William Sam Byassee, State Purchasing Officer Division of Purchase and Contract Department of Administration
Sunde' McCann, Purchasing Agent~~
Purchasing and Logistics Department of Public Safety

SUBJECT: Memorandum of Agreement- Enhancing Sexual Safety in North Carolina's Women's Prisons

CSIneaarrvocilccinoearsdD(aNneCcpeaPrLwtmSit}he,nt(htCeorofpwPauertbival.ilcNcSoCanDfdeOittiyCon,(NseCtoDaftPs. eSatn)tldeamnSdetrnathtnengeeNgovo.rttiNhatCCioOanrOsoClbineeatwt Paerle)i,snoantheersNLoertghal wMNiCell mDtaPokSrea.ntodTuehmnehMoafneAmcgeorsreaeenxmdueuanml tsahofafesAtygbreineeenNmoderrtnahtwCdneaturaopillisnbaethtwweeosemtrnaeTtneh'sgeiepMsrisoToshnsesG.Mrooussp,GInrocuapn, dInc

Therefore, NCDPS Purchasing The Moss Group, Inc for a total June 1, 2012 and the end date

and Logistics requests approval to cost of $582,623.00. The contract will be November 30, 2016. •

award a contract start date will be

to

All documentation is included additional information, please

for do

your review. not hesitate

Should you have to contact me at

any

questions

or

need

sunde.mccann@ncdps.gov or call me at 743-8213.

MAILING ADDRESS:
4227 Mail Service Center Raleigh, NC 27603-4227 Telephone: (919) 743-8141

OFFICE LOCATION:

3030 Hammond Business PI

Raleigh, NC 27603-3030

·. /

Fax: (919) 715-3731

www.ncdps.gov An Equal Opportunity/Affirmative Action Employer
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 21 of 48

NORTH CAROLINA PRISONER LEGAL SERVICES, INC.
Post Office Box 25397 Raleigh, North Carolina 2761 t 1110 Wake Forest Rd., Raleigh, NC 27604
(919) 856·2200 Facsimile Transmission (919) 856-2223
Apri113, 2012
Joseph Finarelli Special Deputy Attorney General Correction Section N.C. Department of Justice P.O. Box 629 Raleigh, NC 27602-0629
RE: Crowe v. NCDOC, et a!., 10 CVS 16676 Strange v. NCDOC, et al., l 0 CVS 19019 Etters et al. v. Secretary Boyd Bennett et al., No. 5:09-CT-3187-D
Dear Mr. Finarelli, Following our mediation in Crowe v. NCDOC, et a!. and Strange v. NCDOC eta/. on
·October 11, 20 11·; North·Carolina Prisoner Legal Services, Inc. (NCPLS) proposed that The Moss Group monitor any agreed upon settlement in those cases. After further discussion and mediations involving all parties and agreed upon terms in both Crowe and Strange as well as Etters eta!. v. Secretary Boyd Bennett eta!., NCPLS agrees to post-settlement monitoring by The Moss Group. Please contact me if any additional information is required.
Sincerely,
Michele R. Luecking-Sunman Staff Attorney
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 22 of 48

MEMORANDlJM OF AGREEMENT N.C. DEPARTMENT OF PUBLIC SAFETY
AND THE MOSS GROlW, INC THIS AGREEMENT is entered into between the North Carolina Department of Public Safety, Adult Correction, hereinafter referred to as the "Department", and The Moss Group, Inc, hereinafter referred to as the "Contractor", for the purchase of services described herein. These services were developed to satisfy requirements by both the Department and the North Carolina Prisoner Legal Services (NCPLS), in reaching a settlement agreement and in addressing the prevention, detection, and sanctioning of sexual abtJse in North Carolina's \VOmen's prisons. Subject to the satisfactory performance and the continued availability of funds, this AGREEMENT shall be effective Jtme 1, 2012 through November 30, 2016, unless terminated sooner in accordance with this AGREEMENT.
WITNESSETH: THAT WHE.REAS, the parties have entered into a verbal agreement for the purchase of said services and hereby desire to reduce the terms of their agrecn1cnt to \vriting: NOW THERl~FORE, in consideration of the mut:•al promises contained herein, the Department and the Contractor agree as follows:
J. ASSUMPTIONS A. All activity shall be guided by the PREA standards, when made available by the US Attorney General in spring of2012. B. Strategies employed by the Contractor shall be consistent with key concerns addressed in the settlement discussions betvv·een the Department and NCPLS. C. Lessons learned in working with the Department women's facilities shall be reported to the agency leadership for consideration for relevant implementation in men's facilities D. Recommendations shall be consisten, vvith gender responsive practices, evidence based practice, current ·work available from national resources, legal considerations, and the £1nal PREA standards.
II. THE CONTRACTOR SHALL PROVIDE THE l'OLLOWlNG SERVICES: A. Project Monitor Visits. This shall consist of Project .tv1onitor on-site visits at the facilities as well as the central office, and shall consist of intcrvie\VS, observations, meetings, strategic planning and review· of progress.
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 23 of 48

Deliverable: Documentation in quarterly reports confirming implementation project status of agreed upon strategies and components of the settlement agreement. B. Pre-Assessment Facility Tours and Comprehensive Document Reviev..... This shall consist of a pre-assessment tour conducted at the Fountain Correctional Center for Women and the Southern Correctional Institution by the Project Monitor. A tour of the North Carolina Correctional Institution for Women by the Project Monitor, NCPLS and a Department representative. The Contractor shall also conduct a comprehensive document review and provide ongoing support and consultation in improvement of existing policy. Deliverables: Pre-assessment facility tours, Executive report documenting observations and action items upon completion of the document review process for inclusion in the quarterly report, Mapping the reporting process and investigations process, and Periodic review and coaching of relevant policy directives consistent with the PREA and gender responsive practice. C. Conduct Facility Sexual Safety Assessments at Women's Facilities. This shall consist of a combination of off-site and on-site \Vork. Deliverable: A report vvith an executive summary highlighting systemic issues as it relates to women services and sexual safety, as \Veil as facility-specific observations and recommendations. D. Facilitate Action Planning for the Department's Female Command. This shall consist of developing a female command action plan as it relates to the Prison Rape Elimination Act (PREA) compliance and sexual safety, reviewing and confirming the progress of the stated outcomes for each goal/initiative of the action plan, accessing subject matter experts in specialized areas of practice, modify·ing the action plan if necessary to ensure stated goals and outcomes are reached, and providing coaching in areas of expertise. Deliverables: Female command action plan as it relates to PREA and sexual safety, Resource identification, Progress reports, and Coaching. E. Training and Technical Assistance. This shall consist of identifying areas in which training and technical assistance shall enhance sexual safety in the facilities. Dclivcrablcs: Delivery of PREA Investigations Training, Document recommendations upon reviewing training materials, and Delivery of four additional trainings within the first 24 months of the project. F. Project I'Vlanagcmcnt and Coordination. This shall consist of the development of a communication plan among the Department, the Contractor and NC:PL.S, quarterly reports, facility-specific action plan support, and the development and reproduction of training curriculum. Dclivcrablcs: Flowchart mapping the communication plan among the Department, the Contractor and NCPLS, Quarterly reports, 18 tOtal, and Training curriculum/participant manuals. Please see Attachment 2 for a detailed dcscri ption of the Contractor's Scope of Services.
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 24 of 48

IIi. REIMBURSEMENT

A. The Department shall pay the Contractor an amount not to exceed $582,623.00.

1.

Section II, A.- Expected Distribution: $108,609.00

u.

Section IT, B. -Expected Distribution: $44,932.00

iii. Section II, C.- Expected Distribution: $113,095.00

tv. Section II, D.- Expected Distribution: $83,099.00

v.

Section II, E.- Expected Distribution: $81,785.00

vi. Section II, F.- Expected Distribution: $54,000.00

B. Payment shall be submitted to the Contractor after receipt of completed and documented invoices, within 30 days after receipt of invoices.

C. Invoices shall be submitted to the following address:

NC Department of Public Safety Accounts Payable 2020 Yonkers Rd 4220 MSC Raleigh, NC 27699-4220

D. Payments to the Contractor shall be mailed to the following "Remit To" address:

The Moss Group, Inc ATTN: Ms. Anadora Moss 1312 Pennsylvania Ave, SE Washington, DC 20002

E. The price stated in this MOA shall include all materials, labor, overhead and transportation needed to meet the scope of services.

IV. CONTRACT ADMINISTRATION:

Sunde' McCann, Purchasing Agent, Purchasing and Logistics, N.C. Department of Public Safety, 3030 Hammond Business Place, Ra;.:igh, NC 27603, (919) 743-8213, is designated us the Contract Administrator for the Department, "vith responsibility for all matters relating to this Agreement.

Ms. Anadora Moss, is designated as the Contract Administrator for the Contractor, with responsibilities for alltnatters relating to this AGREEMENT.

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 25 of 48

IV. NORTH CAROLINA GENERA.L CONTRA.CT TERMS AND CONDITIONS:

1. GOVERNING LAW: This contract is made under and shall be governed and construed in accordance with the laws of the State of North Carolina.

2. SITUS: The place ofthis contract, its situs and forum, shall be North Carolina, where all matters, whether sounding in contract or toh, relating to is validity, construction, interpretation and enforcement shall be determined

3. INDEPENDENT CONTRACTOR: The Contractor shall be considered to be an independent contractor and as such shall be wholly responsible for the work to be performed and for the supervision of its employees. The Contractor represents that it has, or will secure at its own expense, all personnel required in performing the services under this agreement. Such employees shall not be employees of, or ha':e any individual contractual relationship 'vvith the Agency.

4. AVAILABILITY OF FlJNDS: Any and all payments to the Contractor are dependent upon and subject to the availability of funds to the Agency for the purpose set forth in this agreement.

5. CONFIDENTIALITY: Any information, data, instruments, documents, studies or reports given to or prepared or assembled by the Contractor under this agreement shall be kept as confidential and not divulged or made available to any individual or organization without the prior written approval of the Agency.

6. ACCESS TO PERSONS AND RECORI~3: The State Auditor shall have access to persons and records as a result of all contracts or grants entered into by State agencies or political subdivisions in accordance with General Stattlte 147-64.7. The Contractor shall retain all records for a period of five years following completion of the contract.

7. ASSIGNMENT: No assignment of the Contractor's obligations nor the Contractor's right to

receive payment hereunder shall be permitted. However, upon vaitten request approved by the

issuing purchasing authority , the State may:

a. Fonvard the contractor's payment check(s) directly to any person or entity designated by

the Contractor, or

b. Include any person or entity designated by Contractor as a joint payee on the Comractor's

payment

check(s).

In no event shall such approval and action obligate the State to anyone other than the

Contractor and the Contractor shall remain responsible for ful fillmcnt of all contract

obligations.

8. COMPLIANCE WITH LAWS: The Contractor shall comply vvith all laws, ordinances, codes, rules, regulations, and licensing requirements that are applicable to the conduct of its business, including those of federal, state, and local agencies having jurisdiction and/or authority.

'1. Af'FIRMATIVE ACTION: The Contractor shall take afTinrJative action in complying with all Federal and State requirements concerning fair employment and employment of people with disabilities, and concerning the treatment o"· all employees \vithout regard to discrimination by reason of race, color, religion, sex, national origin, or disability.

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 26 of 48

l 0. ADVERTISING: Contractor agrees not to use the existence of this contract, the name of the agency, or the name of the State of North Carolina as part of any commercial advertising.
11. ENTIRE AGREEMENT: This contract a!1d any documents incorporated specifically by
reference represent the entire agreement between the parties and supersede all prior oral or written statements or agreements.
All promises, requirements, terms, conditions, provisions, representations, guarantees, and warranties contained herein shall survive the contract expiration or termination date unless specifically provided otherwise herein, or unless superseded by applicable Federal or State statutes of limitation.
12. AMENDMENTS: This contract may he <m1cndcd only by \Vritten amendments duly executed
by the Agency and the Contractor.
13. GENER.\L INDEMNITY: The contraetcr shall hold and save the State, its officers, agents,
and employees, harmless from liability of any kind, including all claims and losses accruing or resulting to any other person, fim1, or corporation furnishing or supplying work, services, materials, or supplies in connection with the performance of this contract, and from any and all claims and losses accruing or resulting to any person, firm, or corporation that may be injured or damaged by the contractor in the performance of this contract and that are attributable to the negligence or intentionally tortious acts of the contractor provided that the contractor is notified in writing within 30 days that the State has knowledge of such claims. The contractor
represents and warrants that it shall make no claim of any kind or nature against the State's
agents who are involved in the delivery or processing of contractor goods to the State. The representation and warranty in the preceding sentence shall survive the termination or expiration ofthis contract.
14. TERMINATION: This AGREEMENT may be terminated:
• By either party upon at least thirty (30) days' written notice to the other party; Contractor agrees to perform the AGREEMENT for a thirty (30) day period beyond the
cancellation date of the AGREEMENT in the event the Department is not able to find another contractor to perform the same services. The Department \Nil! continue to
reimburse the Contractor according to the rates specified in the ACTRITMENT. • By either party immediately for cause; or, • By either party pursuant to Availability of Funds.
In the event of termination prior to the expiration date, the Department shall reimburse the Contractor for \',I'Ork performed through the date of termination per the terms of this AGREEMENT.
15. DRUG/ALCOHOL POLICY: The Contractor shall use reasonable and good faith efforts to ensure that employees/statT are aware of the Department's Alcohol/Drug Free \Vork Place Policy. The Contractor understands that its employees/staff are required to abide by these standards. The Contractor further understands that possession, use, manufacture, or distribution of illegal drugs or alcohol by its employees/staff in violation of this policy sl1all result in immediate termination of this AGR.EEMENT for cause. A copy of the policy is included as Attachment 1 to this AGREE:tvfENT.
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 27 of 48

16. ACCOUNTABILITY: Employees of other public and private organizations providing a
service to the agency are accountable to the North Carolina Department of Public Safety (DPS) Departmental Purchasing Contract Administrator and the facility head or designee of the program in 'vVhich they work. The facility head or designee shall report all non-compliance. issues in miting to the North Carolina DPS Departmental Purchasing Contract Administrator. The North Carolina DPS Departmental Purchasing Contract Administrator shall work vvith the employee of the public or private organization providing the service in order to bring performance up to expectations or terminate services if the conditions justify. 17. By Executive Order 24, issued by Governor Perdue, and N.C. G.S.§ 133-32, it is unlav,cful for any vendor or contractor ( i.e. architect, bidder, contractor, construction manager, design professional, engineer, landlord, offeror, seller, subcontractor, supplier, or vendor), to make gifts or to give favors to any State employee of tl1e Office of the Governor and Governor's Cabinet Agencies (i.e., Administration, Commerce, Public Safety, Cultural Resources, Environment and Natural Resources, Health and Human Services, Revenue, Transportation, and the Office of the Governor). This prohibition covers those vendors and contractors V·lho: (1) have a contract with a govenm1ental agency; or (2) have performed under such a contract within the past year; or (3) anticipate bidding on such a contract in the future. For additional information regarding the specific requirements and exemptions, vendors and contractors are encouraged to review Executive Order 24 and G.S. Sec. 133-32. Executive Order 24 also encouraged and invited other State Agencies to implement the requirements and prohibitions of the Executive Order to their agencies. Vendors and contractors should contact other State Agencies to determine if those agencies have adopted Executive Order 24."
18. PREA:_The Department of Public Safety has zero-tolerance for behavior with offenders that is
unduly familiar or sexually abusive. Departmental staff, correctional agents, agency vendors, contractors, subcontractors associated with a contract, and volunteers are strictly prohibited from engaging in personal dealings or any (onduct of a sexual nature with offenders. Conversation and conduct with offenders is to be professional at all times. Sexual acts between an offender and departmental staff, correctional agents, agency vendors and volunteers violates the federal Prison Rape Elimination Act of 2003 (PREA) and is ptmishable as a Class E felony
in North Carolina. Under North Carolina and federal Jaw an offender CAN NOT consent to
engage in sexual activity with departmental staff, correctional agents, agency vendors,
volunteers, contractors, and subcontractors associated with a contract and all such activity legally is against the will of the offender- no matter V·ihat the offender says. Additionally, it is a
criminal offense for any person to sell or give any inmate any intoxicating drink, barbiturate or stimulant drug, or any narcotic, poison or poisonous substance, txcept upon the prescription of a physician, or to convey to or from an inmate any letters or oral messages or any instrument or weapon by which to effect an escape, or that will aid in an assault or insurrection, or to trade
Vv'ith an inmate for clothing Of Stolen goods Or to sell an inmate any article forbidden by prison
rules.
''It is important to remember that if a report of any incidents of unduly familiar and sexual abuse is made, as a valued agent of this department, you have a duty to report this informatwn immediately to your contact person with the Agency, the Division Director's ofTice, or by email to the Office ofPREA Administration at prea(q::.ncdps.gov. By signing this contract you acknowledge that you, your employees and subcontractors, understand and will abide by this policy as outlined above. "
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 28 of 48

19. NON-DISCLOSURg/INFORJ'VIATION SECURITY: The State may, in its sole discretion, provide a non- disclosure agreement and/or an Information Security Policies Acknowledgement Form satisfactory to the State for Vendor's execution. The State may exercise its rights under this paragraph as necessary or proper, in its discretion, to comply w·ith applicable security regulations or statutes.
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 29 of 48

XII. EXECUTION OF AGREEMENT:

By executing this agreement, I certify thot this agreement is submitted competitively and

without collusion (G. S. 143-5·1), that none of our officers, directors, or owners of an

unincorporated business entity has been convicted of any violations of Chapter 78A ofthe

General Statutes, the Securities Act of 59.2), and that we are not an ineligible
is a Class I felony.

J 933, or the Securities Exchange Act vendor as set forth in G.S. 143-59.!.

of !934 (G.S. 143False certification

Failure to execute/sign bid prior to submittal shall render this AGR.ERMIDNT invalid.

CO:"'TRACTOR:

T H € ./'h~ss
PHYSICAL STREET ADDRESS;

c /(. "u ,-:; 1 INL·

)312.-
A-u c=:- CITY & STATE & UP:

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PRINCIPAL PLACE OF Bl.JSI."'ESS ADDRESS IF DIFFERENT FRO"f .'\ BOVE:

FEDERAL !D OR SOCIAL SF.CURTTY

NO. 3o C>O 19 H 7

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P.O. BOX:

ZTP:

TEI.El'HOi'/E NU~1BER
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FREE TEl...
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(800)

TYPE OR PRINT NAIHE & TIT'L£ OF CONTRACT ADM!NJSTRATOR:

A-N l <;' lt-r.?o /l-ff

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'2...-c;).. s.-. 4- b
E-MAIL:

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CA--. P s r ® ..,.,.,..,rc::..c~vP. 1./

NbtPIofeuotaCbrwntlohyienceCtonSrraaatrachfoleteloltiyprpnsraas,urhsiGtaipseleeolsnc.faeiaftrAhflaiilxtsceCotrAhmopGenysitRrroaasEnfcidtgEthnMTciasoetEnArumdNrGiesTtRihoaaeEnnrrEdseetMsCaopcoEeacnncNedidpfTitittecilwdout,nsoilasldtnshobhiacesauulfAtmlohGrteohwnrReiatnzEraed:Ecd-etodMdrnetsEthpotNiertetuTpbstree,eontCvtthhaioesetniisvotwprenaersiccottiotfofeifDrnc(taeshat)pegi.aorIrnentesms,mItreauennnctdttoiotfhnes

- - - - · 20_~_, a) indicated on attached certit1c<:tion or purchase order,

... _. 20j.a{.__, aS ind:cated on attached Certification Ql' purchase OJdcr,

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 30 of 48

A TTACHME:NT 1 ALCOHOUDRUG-FRE:E: WORK PLACE POLICY

It is the policy of the Department of Public Safety to provide a work environment free of alcohol and drugs in order to ensure the safety and well being of employees, correctional clientek, and the general public. All tmployee:; of the Departmeru of Public Safety, including permanent full-time, trainee, permanent part-time, permanent hourly, probationary, and temporary shall abide by this policy. PURPOSE

This document is intended to advise managers and employees of the guidelines oi an alcohol/drug free work place, and to set out th<: penalties for violation(s) of the guidelines.

f'ROCEDURES/OPERATIONAL GUIDELINES All employees of the Department of Public Safety are expected to he physically alld mentally prepued and able to perform their assigned duties throughout the workday. No employee shall report to the work site impaired by or suffering from the effects of drugs or alcohol. Individuals reporting for work under the influence or the effects of alcohol and/or drugs shall be issued disciplint:, up to and including dismissal, consistent with the policy governing personal conduct.

No employee shall manufacture, distribute, or dispense controlled substances (drugs/alcohol) at the work site or away from the work site. No employee slmll use "across the counter" medication to the point of impairment while at the work site, or in any situation which may bring discredit to the Department. Usc or abuse shnll be viewed as personal misconduct and shall be cause for immediate disciplinary action up to and including dismissal.

Possession of an illegal substance in any sirua:JOn, at \vork or away from the work si:e shall be cause for discipline. Possession of controlled substances. i.e. Prescription medication or alcohol, must·-.~ m compliance with existing laws Violations \viii result in discipline up to and including dismissal based on personal misconduct.

Employees who are arrested, detained, or served a warrant filr any <llcohol/drug related incident, at the 'vork site or away from the work site have 24 hours to tile a written report of the situation with the work unit supervisor/manager, i.e. \Varden, Superintendent. Branch Manager. The work unit supervisor/manager shall mak~ a recommendation for appropriate d1sciplinary ilction based on the facts of the case after conducting a thorough investigation.

If sufficient facts cannot be obtained due to pending litigation, the work unit ~upervisor/manager shall request. in writing, that any recommendation for disciplinary action be delayed until the cow1 has disposed of the matter. Once the legal proceedings have been completed, the employee shall furnish a certified copy of the court disposition within 48 hours of Ihe judgment. The recommendation for discipline shall be made at this time, if not previously addressed.

Any conviction of a drug (>r alcohol related offense, which occurred at the ·..vork site, shall be reported to the federal government by the Personnel Offtce; therefore. such offenses shall be reported to tilt: Personnel Office by the appropriitl<:: manager so lh'lt the Personnel Office may comply with lht requirement.

The Department of Public Safety utilizes the Personnd. The EAP provides employees \vith

State Employee u compreltensive

Assistance Program rcfcrrul service to aid

(EAP) administered through the Office o!' State in coping with or overcoming personal problems.

including drug and alcohol problems. Consultants with the State E,\P will provide managerial/supervisory training and coordinate

employee orientation.

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 31 of 48

The Moss Group, Inc.
Proposed Services for the North Carolina Department of Public Safety, Adult Correction
Enhancing Sexual Safety in North Carolina's Women's Prisons
Submitted by The Moss Group, Inc. to meet the partial conditions of settlement negotiations between the North Carolina Department of Public Safety and the
North Carolina Prisoners Legal Services
1
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 32 of 48

The 1'-loss Group, Inc. Table of Contents: Scope of Services ................................................................................3
s Proposed Strategies ............................................................................
Appendix A-Project Timeline..............................................................16
2
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 33 of 48

The Moss Group, inc.

SCOPE OF SERVICES:

The Moss Group1 February 7, 2012 Carolina Prisoner

Inc. (TMG) submits the following proposal in response to a meeting held on with the North Carolina Department of Pubiic Safety (NCDPS) and the North Legal Services (NCPLS). The following proposed strategies were developed to

raawasepndasodpdtpmilsroiaecfenyashndsba'reisleneldfqgpyutr"eoiPtisrahorebreonsmyp.soNep.A:nrCT,eetpDhsvderPeoSbntpCi.ytmohiosaebennfod,grtaehtdmsimeNetteeCoplcPirntLRoiSeoepndoias,usnceaadedtntadNSfcoCthrsaDeafiPfmdnSScpatelsiieonxAmunaripenelpgnaeMtcnihonidsifgnicxgostheAneax.duTussaehcelerttv"tailscbepteurmrassoteepeonogutisinteleaisndgNeirnoedbcreytobmherNpelCoConPwratLarSaiotsenlifnadotanhud'iesnr

Ensure a systemic approach to a gender responsive model in addressing sexual safety in the
NCDPS women's facilities.

Provide for a temporary, four and a half year strucutre to ensure implementation and accountability for compliance with gender responsive and
evidence based practice consistent with the PREA and
sexual safety in women's facilities.

Provide for quarterly reporting processes to measure progress
and indentify level of compfinace with agreed on
action plans.

ccclvSIeToouanoahnmlrsteudysutm,teiirhtwsreuiwtestoetmhriimcntnoihhpetnea,CnnsntNowp'fgstCoreioertPrcefhaLficafuScWitccliitlloraiohotcfnniomeseoadscsmeluTnDtIspuMhnlenesioGa(pdtNninaestuCcurryNtneCtsmciCdtoIoweWeeCnnmirnIt)ssW,ht(it'SdsaatCeFnanhIsrdod)eaz.uerttPcTniehrorhtroqeanaiesuationeftaetnoesoxrstlCRetegyteahdorsrnapeitrsertneabemcyttpcEeoeirtcrNlioiowmCjasnephDpeiaconixpPcltlauirShcitoaniCyoalacTenclnMsunhdaaAdtGneficesedNrt:t.wCnyNfePotocfohrLrokeSresrts.hWsaHwaNClolroiCytamwhwDrteoePooenlvSimaniencaers(h,FnltCeiCttfahouaoCdertcfWriefioeelari)ncsntg,ytahdeiolieanpwinznrc'isesadylll 3

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 34 of 48

rAssu=----·--

The Moss Group, lnc.
. . . .,._...----...~--~---~-~~-·-1

' I

1

•

All

activity

will

be

guided

by the

PREA

standards,

when

made

avJi!able

by

the

U.

S.

I
~
l

•

II Attorney General in spring of 2012.

!

Strategies employed by The Moss Group team will be consistent with key concerns

addressed in the settlement discussions between NCDPS and NCPLS

I • Lessons learned in wmking with the NCDPS women's facilities will be reported to the

agency leadership for consideration for relevant implementation in men's facilities

1

I
• Recommendations will be consistent with gender responsive practices, evidence based !l

l

I practice,

current

work

available

from

national

resources,

legal

considerations,

and

the

I
!

final Pnson Rape Elimination Act standards.

l----~---·----·~-.-· --~·~~~·'"-''''_'_'""''~···-~--·------M·~-·----u-~.~---_j

4
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 35 of 48

PROPOSED STRATEGIES:

The 1"1oss GroGp, Inc.

Management and Coordination
5
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 36 of 48

The t"1oss Group, Inc.
Strategy 1: Project Monitor Visits
TMG proposes quarterly project monitor visits for the first two years and semiannual visits for
the remaining two and a half years. The Project Monitor will be Andie Moss. When
appropriate, a subject matter expert may accompany Ms. Moss on her quarterly visit to provide for specific consultation, i.e. clinical, classification. The function of the Project Monitor is to measure progress on agreed upon action plan items. The Project Monitor site visits will includr. on-site time at the facilities as well as central office, and will consist of interviews, observations, meetings, strategic planning and review of progress. For the first year, Project Monitor visits will be made to all facilities and the site visits will continue to include minimally on-site time at NCCJW. The length and location of additional sites visited during Project Monitor visits will be determined on an as-needed basis, dependent upon the work and status of strategy implementation. Any documentation, observations or next steps resulting from the Project Monitor visits will be documented in the quarterly reports. For more information on the quarterly reports please see Strategy 6: Project Management and Coordination.

upon Delive·rable: D9curnent5Jtlon,in quar_tedyreports confirming implementation project status of

agree..d.. :...

s··t.·:r.a' ie'g.i,e~::<a;·n.:·d:..

·c··.o, ..m,< p.q• n·e.,n

tscifthe
. . .·,.·..

se>tt·l'em.e· n.t.a..gre·e. m· e:n-,t'.

Cost=: $108,609

Strategy 2: Pre-Assessment Facility Tours and Comprehensive Document Review TMG proposes a facility tour at NCCIW. The tour will serve to inform the document review process, orient facility staff to the initiative, and provide an initial understanding of the layout and operations of the facility. Each component of this strategy is further described below:
• Pre-Assessment Facility Tour
As agreed upon in the February 7 meeting, NCPLS and Department representatives will join TMG on the facility tour of NCCJW. The Project Monitor will also tour SCI and FCCW during one of the initial quarterly visits. The on-site visit to NCCIW will provide the
6

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 37 of 48

Tr,e Moss Group, Inc.
opportunity to introduce the Project Monitor to the facility management team and allow for open discussion with facility staff, NCPLS representatives and departmental leadership. TMG recommends tne NCCIW tour be hosted by the Female Command Manager, Annie Harvey.
• Agency Document Review TMG will conduct a comprehensive document review (a continuation of the work completed in the personal services contract) providing a foundation of understanding for much of the subsequent work. For this process, TMG utilizes internal staff and or:e to two additional subject matter experts in specialized areas of best practice in the management of women offenders, i.e. classification, clinical expertise. Consultants will review relevant documents contained in the CD provided by NCDPS and request additional documents as needed throughout the life of the project. The document review will be conducted for analysis of compliance with PREA, accepted national
practices, research and evidence based practice in working with women offenders as it
relates to sexual safety, and a review of relevant (to sexual safety) patterns in operational and management practice, particularly at NCCIW. This initial document review will also focus on the reporting and investigative policies and procedures available to staff and inmates, to include mapping the reporting and investigations process with preliminary documentation of gaps. The comprehensive document review process also provides TMG with the opportunity to understand agency-wide policy and procedures that will inform the facility assessments and assessment protocol customization.
• Polley Review and Consultation TMG will provide ongoing support and consultation in improvement of existing policy to help NCDPS reach PREA compliance in tile facilities housing women offenders. This work includes comprehensive policy review with suggested revisions and recommendations, documenting any implications for the ma!e facilities, as wei! as the
7
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 38 of 48

The Moss Group, Inc.
provision of a subject matter expert 1.vho will provide expertise, coaching, and review policy revisions made by NCDPS.

---·---
D!!'lliverables:

-

-

-

-

-

-

-

·

·

-

-

-

-

-

-

-

·

-

-

-

-

-

-

-

-

-

(1) Pre-assessment facility tours,

(2) Executive_ report documenting observations and action items upon completion of the

th~ document ~ c'

review

,

.

processfor incll!sion

• .

.

' ~; . ' . • ' '

• '

in
' •

. ·,

' '

quarterly report,

'

". ' •

•

(4) ·P~rlo~k/~-Y:ie*'.'a~d:;g~.a~_h)~~ o,f ~ele~,ant policy ·di.r~ctives co~sistent. with the PREA and
gender responsive pra~tice_ .

Cost= $44, 932
Strategy 3: Conduct Facility Sexual Safety Assessments at Women's Facilities
Facility Sexual Safety Assessments are intended to identify areas where policy, practice and staff/inmate culture either enhance or hinder sexual safety for inmates. TMG has shaped and refined the assessment protocol through extensive practitioner experience, standards of practice, and knowledge of organizational culture and subculture dynamics. In the protocol customized for this project, the assessment model will be informed by the PREA standards; the "Proposed Changes to Reduce Staff Sexual Misconduct" developed by NCPLS; genderresponsive and evidence-based practice; and standards of practice.

8
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 39 of 48

The Moss Group, Inc.
The assessment process consists of a combination of off-site and on-site work:
Please note that the tasks related to the off-site work will be coordinated with the earlier document review tasks related to the settlement and the review of system level policy in preparation for specific facility assessments. The tasks described below allow for any facility specific review of documentation not previously completed.
• Off-site work includes a review of facility-specific documentation, designed to allow the team to gain an understanding of the facility, its operations, and any presenting issues of which the team needs to be aware before they arrive on-site. This preparatory activity allows for the best use of time while on-site as the assessment team is able to focus their time on day-to-day management and operations impacting sexual safety. TMG will utilize the CD provided by NCDPS to continue reviewing relevant documents, but may request additional facility specific materials as needed.
• On-Site Work includes: Evaluation of Structures/Operational Practice; Staff Survey and Focus Groups; Inmate Safety Scales Survey; and On-Site Debriefings
o On-siteWork: Evaluation of Structures While on-site, the assessment team will evaluate the formal structures (e.g., policies, procedures, and the mission of the facility) as well as the informal elements of the culture (e.g., the values, beliefs, and perceptions of sexual safety of both staff and inmates). During this analysis, the team will: (1) examine the communication practices between staff working in various capacities in the facility, including custody and non-custody staff, contractors, and volunteers, and the perceptions of sexual safety and alignment to the agency and facility; (2) determine the staff's commitment to the agency's program, mission, and treatment model for women offenders as it relates to sexual safety; (3) observe facility operational practices relevant to sexual safety; (4) review gaps in PREA compliance; and (5) determine in mate and staff perceptions of sexual safety and reporting practices. The assessment team will visit all three shifts during their assessment, ensuring that the
9
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 40 of 48

assessment team has an opportunity to gain information and access to the full operations of the facility.
o On-site Work: Staff Survey and Focus Groups TMG protocol for conducting assessments of this nature involves the utilization of staff surveys, and staff and inmate focus groups. Staff surveys are designed to collect quantitative data related to perceptions of sexu<JI safety to augment the qualitative data collected over the course of the assessment. This tool assists TMG in identifying trends and perspectives of staff related to sexuill safety at the facility level.
Both staff and inmate focus groups are organized with specific questions developed by TMG, and help the assessment team confirm attitudes and views related to sexual safety as well as confirm how particular policies and procedures are implemented.
o On-site Work: Inmate Safety Scales Survey (pre- and post-survey) An inmate survey tool has recently been developed by Dr. James Wells and Dr. Barbara Owen through National Institute of Corrections (NIC) and National Institute of Justice (NIJ) funding. The purpose of the survey is to collect data around inmate perceptions of their own safety specific to their housing unit and their facility. TMG proposes using this survey as one indicator to help inform NCOPS' strategies. TMG recommends administering the survey prior to the implementation of strategies so as to establish a baseline of inmate perceptions of safety in their housing units. TMG will then administer the same survey at each of the facilities at the three and a half year mark of the project, documenting any shifts in culture and perceptions.
o On-site Work: Debriefing At the conclusion of the assessment, the team will provide a debriefing with preliminary feedback to the facility management team. The debriefing/closeout will highlight the facility's strengths, challenges, and opportunities for addressing the sexual safety of inmates. The closeout sessions include preliminary observations and a chance to review the initial observations of the consultant team with the facility
10
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 41 of 48

The f"loss Group, Inc.
management team. We recommend that the Female Command manager attend the close out meetings.
o Off-Site Work: Report Vv'riting
At the conclusion of all three facility assessment, the assessment team will complete a facility report highlighting themes, observations and recommendations as they relate to sexual safety. The report will be sent in draft to the facility heads to provide
any factual corrections (i.e. population count, name of specific program, organizational structure, policy directive). Following review by the facillty head;;, the
report will be finalized. The results of the pre-assessment Inmate Safety Scales
Survey will be included in the facility report. Once the facility assessments and comprehensive agency document review h<>·; been completed, an executive summary will be completed, providing insight into systemic issues in the management of women offenders.
The total cost for this strategy assumes facility assessments will be conducted at NCC/~ FCClt\1, and SCI.
as "<:SilerAvirce.epso~rrti.;~.-~veixthljaaln$ea;fx~etytu,tivew~eulmlna1;;~r(~ychiillgt~~)-iipg~hctiflincg' o?bVssete~vrraytici.oisnssu_'aesndasni?tcrq-emlar~n~esntdoawtioormise. n
Cost= $113,095
Strategy 4: Facilitate Action Planning for NCOPS' Female Command TMG proposes supporting NCDPS in prioritizing next steps toward PREA compliance and simultaneously developing a framework to confirm the progress of NCDPS' women faC:Iities. The action plan will be informed by the data gathered in the facility sexual safety assessments as well as preliminary discussions and concerns raised by the parties, and will include strategies
11
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 42 of 48

The i<!oss Group, Inc.
for full PREA Compliance, a Training Plan for Women's Services, and recommendations for additional federal or local resources to enhance the agency's appro<Jch to sexual safety. The Moss Group will assist NCDPS in:
• Developing a female command action plan as it related to PREA compliance and sexual safety.
• Reviewing and confirming the progress of the stated outcomes for each goal/initiative under the action plan.
• Accessing subject matter experts in spec]alized areas of pradl::.G (i.e., classification, case management, investigative practice, mental health/ and women offenders) to meet the goals and outcomes of the action plan under the scope of the project and allotted consultant days or by assisting the agency in identifying available federal resources.
• Modifying the action plan if necessary to ensure stated goals and outcomes are reached.
• Providing coaching in areas of expertise.

D.eli:v,.e. r<~·d" Jies:

(i)f.~~~le .corn,m,~~dact]9n
(Z),Be.sou~·~~:rderitfficatidn:·

pla"n ~ .:

as

It
·

r~lat¢5
-. · -

toPREA}nd ·

~€:xualsafety

·

. ·.

(3,l,):~ogre!ss rep,orts(s~~ S,traJ~gy 1) ·

(4J}o~ching .

. . . i -·

, •

Cost = $83,099
Strategy 5: Training and Technical Assistance
Through the facility assessments and action plan development, TMG and NCDPS will identify areas in which training and technical assistance will enhance sexual safety in the facilities. TMG wili work with NCDPS's PREA Coordinator, Charlotte Jordan-Williams, to assess PHEA-related
training available to staff and inmates, and note areas that could be enhanced in future
trainings. In addition to reviewing training curricula, TMG will provide some of the identified 12

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 43 of 48

rhe Moss Group, Inc.
training, and help identify national resources that could be utilized to provide future training at minimal cost to the agency. TMG proposes delivering one specialized training and one trainingfor-trainers e<Jch year for the first two years of the project with an awareness of~~ more urgent
need in the earlier stages of the project. This does not include tht1 investigations training
· described in detail below.

The NCDPS Adult Corrections PREA Coordinator has been active in developing and providing a

number of trainings for personnel responsib!c; for PREA Investigations. The Moss Group will

review all previous trainings, evaluate th" invbtigative process and recommend additional

training and technical assistance to enhance the reporting process of sexual abuse and the

investigative response at all levels. Specialized training of investigators is explicitly required

under the draft PREA Standards and is anticipated in the final promulgation of National

Standards. TMG will immediately provide training and technical assistance support to the

agency in all aspects of the investigative and reporting process. Areas of additional training

needs will be identified after a full review of recent training opportunities offered by the PREA

office. TMG investigative training offerings are grounded in adult learning theory and utilize

blended learning techniques. Our training will meet the requirements of the PREA Standards.

We suggest our training design and delivery be accomplished by working closely with the PREA

Coordinator and facility PREA Support staff to ensure a coordinated response between facility

and central office management.

.D.e·. live. r. ables':

. ·. · ·

·

·

·· . .

:l

~~on.reviewing {1) Delivery ofP.Rf:A lnvestig<!tions Training {specialized training), . ·: .

· .

(2)

Document '

recommendations

.

.''

'.

. ' . tra.lning materials (related to sexual safety <Jnd

women offenders),

l

(3) Delivery of four additional trainings within the first 24 months of the project.

Cost= $81,785

13

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 44 of 48

The i"lo:-;s Group, inc.
Strategy 6: Project Management and Coordination This strategy accounts for the TMG staff and consultant tirne necessary to develop a communication plan among stakeholders, develop quarterly reports, organize logistics, communicate with consultants, manage the multiple strategies, ensure timelines and deliverables are met, and other administrative and project support needed to effectively complete the project. Some major components of strategy six are belov1:
• Develop Communication Plan among Stakeholders (NCDPS, NCPLS and TMG)
TMG proposes immediately developing a communication plan following a settlement agreement by NCOPS and NCPLS. In past projects of this nature, TMG has found that a strong communication plan is a critical first step when multiple stakeholders are invested in the work. TMG will develop additional communication strategies based on facility work plans to include coaching and project management assistance. This communication plan will ensure that all parties are informed of the progress of the project and will allow for constructive discussions if challenges arise. This strategy is specifically designed to ensure clarity in the roles between TMG, agency leadership, the Attorney General's office, and NCPLS. Activity under the communication plan will include quarterly reports.
• Quarterly Reports
TMG will complete quarterly reports highlighting progress, challenges, and anticipilted next steps. The quarterly reports will be submitted simultaneously to NCDPS and NCPLS. When applicable, the quarterly reports will also include reports and documentation of activities including a document review report, training review report, mapping of the reporting process,etc.
• Facility-specific Action Plan Support • Development and reproduction of training curriculum
14
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 45 of 48

The l'loss Group, Inc.

r Deli vera bles:

·----····-------~··------··

I(1) Flowchart mapping the communication plan among stakeholders

Il (2) Quarterly reports, 18total (3I T" in in_s curriculum/pariicl pent,man ua Is

-~
!
__ j

Cost= $54,000

Total Cost of Project: $582,623

15
Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 46 of 48

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 47 of 48

Appendix A

Q"'rt'"

'.,~~;~i:~¥'·t;

Proposed Project
~i5~~~~j:.}~j~{~;.~~~

Timeline

1

Project Monitor Visit I Pre-Assessment Facility

Tour at NCCIW- Begin

Document Review

collaboration with PREA Coordinator

Quarterly Report/flow- l chart mapping communication plan among stakeholders for

Conduct Facility Assessments (3)

:z~.~f~~~;~:t:~~:i,:J ·~~:;~~~if,J~~:;~~LJ!-it>..

:5tmg'syster.nicissues· ,. ,;, · ····'·:;'. >.· ,':•> :····.,...:·~--·-2-·-·~"-j1{~~~;~r· ~-:· --· · - ·

l l 1 Review/Confirm action
I j pian

1 RLoegpiostritc/sCfo.oo~rpdrinoajetect

+--- 1' • --·--

.

-

lReview/Confirm action

D~liver Specialized Training or T4T

Qmuoanritteorrl\v' tRstet port)t;aining . curriculum development

plan

/Coordinate logistics for

7

I Project Monitor Visit J Periodic consultation

and coaching for policy

development

Review/Confirm action plan

- - ·.. ----·-

project monitor visit Quart·~-r-ly--·-..~------l

l.loRge·ptsotrict/sCfooorrpdirnoatje e~--- i

16

Case 5:09-ct-03187-D Document 130-1 Filed 05/21/12 Page 48 of 48

Appendix A 8

Proposed Project Timellne

9

I I 10

Project ~1onitor Visit

----r

I 11 I -----
·

!

I

Periodic consultation

and coaching for pol1cy .

development

1

I Review/Confirm action

. ·-----t..:..p..cla:....n____

I
Rev1ew

Con

f' . 1rm

act1on

I

pIan Reiavn1. ew/Conf.1rm act1.on

II·
I

p

The Moss

mon

. ito

r

. .
VISit

Group,

Inc.
!-~

,;c:ta~0~-~IY:.R7po~ ~t;a ~.~ing ~

ti{{~~~k~~~9i~ln~te_.;:. ' (~Lriolcgiinsitticorsvfios.i~f;.per~o~i-t;;:trt:;:;ri·t,Y~~-~·-~··:1.·I

,. Quarterly Report

----4

I ~-Quarterly Report/coordmate

..1

• log1St1c;

j I

for Project Mon1tor Vis!!___..~

Quarterly Report

·----~-

--~~----·~

Review/Confirm action j

-·····

I Monit~r .Projett

,

1

Vis1·t---. ------·--· Conduct Inmate Safety

plan

.

Scales post· survey/provide report

Rev1.ewI

Con

r·
1m1

.
act1on

and analysis (attached to plan

Quarterly Report

j

Quart~rly Report

! l

/pCroojoercdtimnaotne1.Ltoorgvis•tsi1.cts for j

L 15
I __.._______ ---·· .
16

Periodic consultation

Iquarterly report)

and coaching for policy

I development

~ ·

. I•
Rev1ewICont·1rm act1.on

p1an

.,

.

I q,~-'e'ctMo"'~·r.;,;.:;!:;;,"tt'',i·~"; i·· .~~"~f,~2"cm'":~' · " . . . i~Kt:~;;,~f~i~f~,: I -~·.

+ . - . .

•

p· j
~
·

! _. .. . .., 'roject MonJtorVJSlt

~ ·------ ,

j-R;;~~w/~~nf1rm ,act1on -·~·
~~a~ew/Conf;rm act~;;:;-~·

F ·--~------l [____ --'

~~-

,

I

1 Qua:terly Report

··;

.

·-

Qu~rt~e~), 1{;-p-~;~-·-·.·"
-~-Quart~rly Report..

---~--.1__ ------ --- _t~~j:c~:~~i~~~~i~~sfor plan

_j

____

17

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION 5:09-CT-3187-D

SANDRA ETTERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

SECRETARY KIERAN SHANAHAN, et )

al.,

)

)

Defendants.

)

MEMORANDUM AND RECOMMENDATION

This case comes before the court pursuant to the order (D.E. 133 at 2-3) of Chief District

Judge James C. Dever III, entered 30 May 2012, allowing the motion by plaintiff Sandra Etters

(“Etters”) for a default judgment against defendant Charlie Cortez Simms (“Simms”) (D.E. 132)

and referring the case to the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B), for a hearing and

memorandum a nd r ecommendation on t he i ssue of damages due plaintiff from Simms. The

hearing was held on 7 November 2012. (See D.E. 142, 148) . Etters subsequently submitted a

supplemental memorandum (D.E. 147) as directed by the court (see D.E. 144). For the reasons

set f orth b elow, it w ill be r ecommended th at Etters be aw arded $100,000.00 in c ompensatory

damages and $100,000.00 in punitive damages, for total damages of $200,000.00.

BACKGROUND

I. Plaintiffs’ Claims

In their complaint, filed 18 November 2009, Etters and three other women (collectively

“plaintiffs”) alleged that they were North Carolina state inmates; that various employees of the

Case 5:09-ct-03187-D Document 151 Filed 02/06/13 Page 1 of 14

then North Carolina Department of Correction (“DOC”)1 sexually assaulted, abused, or harassed them; and t hat c ertain s upervisory o fficials di d not pr event t he s exual abuse or m isconduct. (Complaint (D.E. 1), e.g., 1-2; ¶¶ 10-12). Plaintiffs asserted claims pursuant to 42 U.S.C. § 1983 (“§ 1983”) for violation of the First, Fourth, Eighth, and Fourteenth Amendments on be half o f themselves a nd a c lass o f o thers s imilarly s ituated. ( Compl. 1 -2; ¶¶ 39-52). The c omplaint sought injunctive r elief, compensatory and puni tive damages in a n uns pecified a mount, and attorney’s fees. (Id. 23-24, Prayer for Relief). Etters alleged specifically that as a result of the abuse by Simms, a corrections officer, she suffered physical injury and severe psychological and emotional distress and physical injury, “including depression, difficulty sleeping and eating, and bouts of crying.” (Id. ¶ 33(g), (h)). The defendants served with plaintiffs’ complaint other than Simms answered the complaint, denying any wrongdoing. (See D.E. 19, 20, 21, 22, 23 , 24, 25, 28, 54).
On 16 March 2011 (see D.E. 57 at 27-28), t he court dismissed c laims a gainst v arious defendants. In its order of 30 May 2012 (D.E. 133 at 2, 3-4), the court approved two voluntary dismissals b y a nother plaintiff (D.E. 133 a t 2) a nd a pproved a s ettlement (D.E. 1 30-1) by t he parties providing for changes to state policies co ncerning reporting and i nvestigating claims of sexual abuse by inmates. The only remaining claims are those by Etters against Simms under
1 As a result of a reorganization by the State of North Carolina, the DOC is now the Division of Adult Correction, a unit of the Department of Public Safety. See N.C. Gen. Stat. § 143B-600(a)(1); see also D.E. 133 at 1 n.2.
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§ 1983 for violation of her rights under the Fourth2 and Eighth3 Amendments.
II. Default Proceedings against Simms
Simms was served with process on 17 February 2010. (See D.E. 48). On 25 F ebruary
2011, the Clerk entered default against Simms, pursuant to Fed. R. Civ. P. 55(a). (See D.E. 56).
On 21 May 2012, Etters filed a motion for entry of default judgment against Simms (D.E.
132). As indicated, the court allowed the motion on 30 May 2012 (D.E. 133 at 2-3) and referred
the case to the undersigned for a hearing, and memorandum and recommendation on the issue of
damages owed plaintiff by Simms.
The undersigned held the hearing on 7 November 2012. (See D.E. 142). At the hearing,
Etters was the only witness. S he introduced six exhibits: a handwritten statement by her dated
11 O ctober 2007 (Pl.’s Ex. 1 (D.E. 139 -1)); a h andwritten s tatement b y her d ated 2 2 O ctober
2007 (Pl.’s Ex. 2 (D.E. 139-2)); a DOC memorandum dated 12 O ctober 2007 verifying Simms’
2 The Fourth Circuit has recognized a narrow right to bodily privacy in the prison context. Lee v. Downs, 641 F.2d 1117, 1119-21 (4th Cir. 1981) (“Most people . . . have a special sense of privacy in their genitals, and involuntary exposure o f t hem i n t he p resence o f p eople o f t he o ther s ex may b e es pecially d emeaning a nd hum iliating.”). “When no t reasonably ne cessary, th at sort o f d egradation [i.e., i nvoluntary e xposure o f o ne’s ge nitals i n t he presence of the opposite sex] is not to be visited upon those confined in our prisons.” Jones v. Price, 696 F. Supp. 2d 618, 623 ( N.D.W. Va. 2 010) ( emphasis i n or iginal) ( quoting Lee, 641 F .2d a t 1119) ); see al so Sk undor v . Coleman, No. Civ. A. 5:02–0205, 2003 WL 22088342, at *10 (S.D.W. Va. 31 Jul. 2003) (holding visual body cavity searches p ermissible u nder t he F ourth Amendment where t he s earches were r easonable an d n ot motivated b y punitive intent).
3 In order to establish that prison conditions violate the Eighth Amendment, a plaintiff must establish: “(1) a serious deprivation o f a b asic h uman n eed; an d ( 2) d eliberate indifference t o pr ison c onditions on t he pa rt of pr ison officials.” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). Sexual assault is a violation of the Eighth Amendment. Boxer X v . H arris, 437 F .3d 1107, 1 111 (11th C ir. 2006) ( “In t his c ase, we j oin o ther c ircuits recognizing t hat s evere o r r epetitive s exual ab use o f a prisoner b y a p rison o fficial can violate t he E ighth Amendment.”); Boddie v . Sc hnieder, 105 F .3d 8 57, 85 9 ( 2d C ir. 1997) ( “[S]exual abuse o f a n i nmate b y a corrections officer may reach constitutional dimensions and give rise to an Eighth Amendment claim under Section 1983.”); see a lso G iron v . Co rrs. Corp. o f A m., 191 F .3d 128 1, 12 90 ( 10th C ir. 1999) ( “Where n o l egitimate penological purpose can be inferred from a prison employee’s alleged conduct, including but not limited to sexual abuse or rape, the conduct itself constitutes sufficient evidence that force was used ‘maliciously and sadistically for the very purpose of causing harm.’”); Brooks v. Bufford, No. 2:10–689–TLW–BHH, 2011 WL 2119281, at *6 n.6 (D.S.C. 3 Mar. 2011) (“Because allegations of sexual abuse by a corrections officer may constitute serious harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as Eighth Amendment claims.”) (citing Boddie, 105 F .3d a t 861)); Smith v. Beck, No. 1:08CV166, 2 011 WL 65962, at *5 (M.D.N.C. 1 0 Jan. 2 011) ( “Sexual ab use o f an i nmate may b e actionable [ under the E ighth Amendment] where a correctional officer is in a position of authority over a prisoner.”).
3
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placement on investigatory status (Pl.’s Ex. 3 (D.E. 139-3)); a report dated 26 N ovember 2007 on a polygraph examination of S imms ( Pl.’s E x. 4 (D.E. 139 -4)); a l etter dated 28 November 2007 to t he W arden of t he North C arolina C orrectional Institution f or W omen ( “NCCIW”) regarding an internal affairs interview of Simms (Pl.’s Ex. 5 (D.E. 139-5))4; and a letter dated 19 December 2 007 from th e W arden of the NCCIW to S imms terminating him and providing t he basis for the termination (Pl.’s Ex. 6 (D.E. 139-6)). (See Exhibit List (D.E. 143-1)). III. Etters’ Evidence
Since 2003, Etters has b een serving a s entence f or m urder a nd c onspiracy t o c ommit murder arising from an abusive relationship. (Transcript of Proceedings (“Tr.”) (D.E. 148) 9:24 to 10:11; 10:18-24). Her expected release date is 2021. (Tr. 23:19-21).
Etters first r emembered seeing S imms regularly when s he w orked a t a l aundry j ob a t NCCIW in 2007. ( Tr. 9:18-23; 13:14-18). One ni ght i n A ugust of 2007 w hile w orking t hird shift laundry, she went into a conference room and Simms told her to perform oral sex on hi m. (Tr. 14:20 to 15:6; 17:3-9). S he initially declined and he threatened that if she did not comply, she w ould “go to j ail”—that is , to a s egregated hous ing uni t w here an i nmate i s confined 24 hours a d ay, 7 da ys a week. (Tr. 1 5:7-20; 16: 2-4). She kne w that as a result she would l ose everything she had worked for in prison. (Tr. 15:7-12). This included her prison job (for which she r eceived pay and d ays o ff her s entence), s chool c lasses, room a ssignment, and s pecial visiting pr ivileges w ith her c hildren t hrough t he pr ison m atch pr ogram. (Tr. 15: 10 t o 16: 4; 21:18-22). T hat pr ogram e nabled i nmates t o visit w ith th eir c hildren in a s tudio a partment setting f or four hour s a t a t ime. (Tr. 13: 1-8). She felt a s if she di d n ot ha ve a c hoice and
4 Etters’ description of this exhibit in the Pretrial Order (D.E. 141 § IV) misidentifies it a s being from the Warden when, in fact, it was to the Warden.
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ultimately c omplied with S imms’ d emand. ( Tr. 16: 5-9). S he di d not report what h appened
because she did not think the authorities would believe her. (Tr. 16:10-13). In one of her written
statements,5 she states that she planned to kill herself after this incident, but did not after two of
her friends intervened. (See Pl.’s Ex. 2 at 2).
Etters ex perienced other similar incidents with Simms which s he cannot r ecall i n d etail
because she has blocked them out, something she has done in her life during other abuse she has
suffered. ( Tr. 17: 15-23; see a lso Pl.’s E x. 2 a t 1, 2 ). S he di d r emember one i ncident i n t he
laundry room where Simms grabbed her by the hair, pulled her back into a conference room, and
had her perform oral sex. (Tr. 17:24 to 18:3). In another incident by a cleaning closet, he raped
her vaginally and anally. ( Tr. 18:4-5). S he also recounted an assault—the final one—in which
Simms ha ndcuffed he r and, a pparently a fter f orcing he r t o ha ve or al s ex, was a ttempting to
anally rape h er when he w as i nterrupted by a b ell indicating th at another officer w as co ming.
(Tr. 19:9-16; Pl.’s Ex. at 2).
As with the initial assault by Simms, Etters did not report any of the subsequent assaults
at the time they occurred because of fear of being sent to s egregated housing and the resulting
consequences. (Tr. 18: 25 to 19:4; see a lso Pl.’s E x. 2 a t 2 -3). She di d, t hough, confide i n a
5 While th e w ritten s tatements by Etters w ere n ot m ade in court or under o ath, t hey do b ear s ome i ndicia o f trustworthiness and could arguably come within the residual hearsay exception in Federal Rule of Evidence 807, assuming without deciding that the Federal Rules of Evidence apply to a hearing to determine default damages. See Fox v. Se. Transp. Inc., 25 F.3d 1037, at *2 (1st Cir. 1994) (table) (finding regarding hearing on default damages that ad mission o f testimony c hallenged as hearsay harmless “if we were to assume ar guendo . . . that the Federal Rules of Evidence apply”); cf. Breaking the Chain Found., Inc. v. Capitol Educ. Support, Inc., 589 F. Supp. 2d 25, 32 (D.D.C. 2008) (rejecting reliance on third-party hearsay in support of default judgment). Such indicia include: Etters’ seemingly reasonable fear of retaliation by prison officials if she did provide information about the assaults by Etters; her making the statements only when pressured by prison officials to do so; the general consistency of the statements with her testimony; the highly personal and detailed nature of much of the information provided (e.g., her procedure f or h andling underwear a fter as saults); t he making o f t he statements ap parently within d ays a fter t he assaults stopped ( in c ontrast to th e te stimony, which was g iven more t han five years a fterward); a nd E tters’ signature of the affirmation on each statement that “it is to the best of my knowledge, a true and accurate statement of fact.” (Gov.’s Exs. 1, 2). In any event, the statements do not make any material points not addressed in her testimony, albeit in more abbreviated form, and the court’s recommendation on damages would be the same even if the statements were not considered for the truth of the matters asserted therein.
5
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number of other inmates. (See Tr. 21:4-8; Pl.’s Ex. 1; Pl.’s Ex. 2 at 1, 2). In the case of the last incident, apparently around October 2011, another inmate saw cuts marks on Etters’ wrists from the handcuffs and reported the matter to an officer. (Tr. 19:19-24; see Pl.’s Ex. 1).
When first questioned, Etters said in a written statement, dated 11 October 2007, that on three occasions Simms had her perform oral sex on him. (Tr. 19:25 to 20:15; Pl.’s Ex. 1). She did not di sclose t he va ginal a nd a nal r ape b y S imms in the belief th at oral s ex would not be treated as harshly as the other activity because oral sex between correction officers and inmates was r outine at N CCIW. ( Tr. 20: 1 to 21:1). Etters l ost he r j ob a nd s chooling a fter he r i nitial statement, as she had feared. (Tr. 21:12-20). She was not permitted to work again for about a year. (Tr. 21:23 to 22:10).
Etters later provided a s econd written statement (Pl.’s E x. 2) , dated 22 October 2007, disclosing m ore fully w hat S imms ha d done . (Tr. 21: 2-10). She made th e f uller d isclosure because officers had already learned more about the incidents by finding a letter she had written to another inmate about them. (Tr. 21:4-10).
In her second statement, she described an assault by Simms, when “he wanted to try his meds,” in which he penetrated her orally, vaginally, and anally. (Pl.’s Ex. 2 a t 1). The assault was so rough she could hardly walk afterward. (Id.).
Although in h er t estimony E tters s tated th at S imms a ssaulted h er “ several” time s ( Tr. 18:10-11), she also testified and said in her second written statement that the assaults occurred on a regular basis when certain inattentive officers worked with Simms (Tr. 18:12-24; Pl.’s Ex. 2 at 1). In the second statement, she also stated that “[a]ctual sex” occurred on four to six separate occasions. (Pl.’s Ex. 2 at 2).
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On 11 October 2007, Simms was given an investigatory placement status6 for a period of 30 days (Pl’s Ex. 3) and later administratively reassigned (Pl.’s Ex. 6 at 2). In an interview on 11 October 2007 , he de nied ha ving s ex w ith or h andcuffing E tters. ( Pl.’s E x. 6 a t 2) . Simms submitted to a polygraph e xamination on 26 N ovember 2007. ( Pl.’s E x. 4) . Simms to ld th e examiner Etters had asked him whether he would ever have sex with an inmate, which he said he would not, and about her having sex with another female inmate, which he said was her choice. (Id.; see a lso Pl.’s E x. 5 ). The polygraph e xaminer found that S imms was deceptive in responding “no” to questions about whether he engaged in sexual activity with Etters. (Pl.’s Ex. 4). O n 27 N ovember 2007, Simms was interviewed about the statement h e ma de to th e polygraph examiner that Etters had solicited sex from him, which he had not reported at the time. (Pl.’s Ex. 5). In this interview, Simms claimed that on 10 O ctober 2007 Etters had exposed one of he r b reasts t o hi m, which he ha d also f ailed t o r eport. (Id.). Thereafter, o n 1 9 D ecember 2007, the D OC te rminated Simms f or e ngaging in “ undue f amiliarity w ith a n in mate” a nd “unacceptable p ersonal conduct.” ( Pl.’s E x. 6) . The l etter doe s not a dopt E tters’ ve rsion of events, but i nstead f inds th at S imms acted i mproperly based on hi s o wn a ccount of what had happened. (Id. at 3-4).
Etters sought me ntal h ealth tr eatment as a r esult o f th e assaults b y S imms, but it t ook several months for counseling to begin. ( Tr. 22: 13-23; 23: 2-5). She still sees a mental health counselor about once a month. (Tr. 23:2-9).
Because Etters was raised in an abusive home and involved in an abusive relationship as an adult, the prison environment provided her a feeling of s afety, including the ability to sleep
6 See 25 N.C. Admin. Code 1J.0615 (“Investigation status is used to temporarily remove an employee from work status. Placement on investigation with pay does not constitute a disciplinary action . . . .”).
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well, for the first time in her life. ( Tr. 10:12-15; 11:4-8; 14:9-13). The incidents with Simms, however, deprived her of this feeling of safety. (Tr. 23:17-21).
At th e h earing and i n h er s upplemental br ief, Etters, through c ounsel, a rgued t hat an award o f $100,000.00 against S imms, i ncluding bot h compensatory and puni tive da mages, would be appropriate for the harm Simms caused her. (Tr. 26:23 to 27:3).
DISCUSSION I. Procedure for Determining Default Damages
After a court determines, as here, that a judgment by default should be entered, it must determine t he a mount a nd c haracter of t he r ecovery t hat s hould b e awarded. See Hewitt v . Morris, No. 0: 12–666–MGL–PJG, 2012 W L 6 864598, a t *1 ( D.S.C. 2 0 D ec. 2012 ) ( quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688 a t 63 ( 3d e d. 19 98)). “ The c ourt m ust m ake a n i ndependent de termination r egarding damages, and cannot accept as true factual allegations of damages.”7 J & J Sports Prods., Inc. v. Waters, No. 3:12–cv–267–RJC–DCK, 2012 WL 5930167, at *2 (W.D.N.C. 27 Nov. 2012). The court may, as in this case, conduct a hearing to determine the amount of damages. F ed. R. Civ. P. 55 (b)(2)(B). T he d amages “must not di ffer i n ki nd f rom, or exceed i n a mount, w hat i s demanded in the pleadings.” Fed. R. Civ. P. 54(c). II. Compensatory Damages due Etters
A. Satisfaction of Physical Injury Requirement under the Prison Litigation Reform Act (“PLRA”)
The P rison Litigation R eform A ct ( “PLRA”) establishes limita tions o n r ecovery of compensatory damages by prisoners in civil lawsuits by providing that “no Federal civil action
7 In contrast, when making the initial determination whether to award a default j udgment, “the Court takes as true the well-pleaded factual al legations i n t he co mplaint, o ther t han t hose p ertaining t o d amages.” Clancy v. S kyline Grill, LLC, No. ELH–12–1598, 2012 WL 5409733, at *2 (D. Md. 5 Nov. 2012).
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may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or em otional i njury s uffered while i n custody without a prior s howing o f ph ysical i njury.” 42 U.S.C. § 1997e; see also Miller v. Clark, No. 3:11-cv-00557, 2011 W L 6955512, at *3 (S.D.W. Va. 9 D ec. 2011 ) ( “Moreover, to ma intain a p lausible c laim f or compensatory damages, t he prisoner must assert and prove that a physical injury resulted from the violation. Allegations of an emotional injury without an underlying physical injury are insufficient to support an award of compensatory damages.”). Courts considering the question have found that sexual assaults can constitute a “ physical i njury” unde r t he P LRA. Carrington v . E asley, No. 5: 08-CT-175-FL, 2011 WL 2132850, at *3 ( E.D.N.C. 25 M ay 2011); see also Liner v. Goord, 196 F .3d 132, 135 (2d Cir. 1999) (“[T]he alleged sexual assaults qualify as physical injuries as a matter of common sense. Certainly, the alleged sexual assaults would constitute more than de minimis injury if they occurred.”).
The c ourt f inds th at th e s exual a ssaults b y S imms a gainst Etters c onstituted p hysical injuries in s atisfaction o f the P LRA r equirement. T hat is f acially t rue with respect to Simms’ vaginal and anal r apes o f Etters. The acts of oral sex Simms forced Etters to perform are also properly c onsidered physical in juries. See C arrington, 2011 WL 21 32850, a t *3 ( finding correction officer’s grabbing of inmate’s penis in attempt to engage in oral sex a physical injury even though the inmate managed to escape without any sexual act occurring). In addition, there were physical injuries attendant to the sex acts, such as the cut marks left by handcuffing. Etters is therefore entitled to recover compensatory damages in such amount as the record establishes.
B. Amount Etters seeks d amages f or t he emotional d istress she h as su ffered as a r esult o f S imms’ assaults an d t he co st o f t reatment f or t he em otional d istress af ter s he i s r eleased from p rison.
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Factors considered by the court in assessing a plaintiff’s damages for emotional distress include:
“the factual context in which the emotional distress arose; evidence corroborating the testimony
of the plaintiff; the nexus between the conduct of the defendant and the emotional distress; the
degree of such mental distress; mitigating circumstances, if any; physical injuries suffered due to
the e motional d istress; medical a ttention r esulting f rom th e e motional d uress; p sychiatric o r
psychological treatment; and the loss of income, if any.” Sloane v. Equifax Info. S ervs., L LC,
510 F .3d 495, 503 (4th C ir. 2007) . “Courts scrupulously a nalyze an a ward of c ompensatory
damages for a claim of emotional distress predicated exclusively on plaintiff’s testimony.” Price
v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996).
In Trinidad v. City of Boston, No. 07-11679-DPW, 2011 WL 915338 (D. Mass. 15 M ar.
2011), t he c ourt collected c omparable c ases and not ed “ [c]ourts a warding c ompensatory
damages for—usually multi-incident—sexual assault and rape of inmates or detainees by prison
guards and corrections officers have ranged from $100,000 to $500,000.” Id. at *6. Specifically,
it cited the following cases and awards:
Daskalea v . District of C olumbia, 227 F .3d 43 3 ( D.C. Cir. 2000) ( affirming a $350,000 j ury award against t he D istrict of C olumbia a nd i ts D epartment of Corrections for ongoing sexual abuse of a female inmate in light of a documented history of r outine s exual a buse o f w omen pr isoners); Mathie v . F ries, 12 1 F .3d 808 (2d Cir.1997) (affirming an award of $250,000 in compensatory damages for the s odomy-rape o f a p retrial d etainee b y a guard); Ortiz v. L asker, No. 08–cv– 6001L, 2010 WL 3476017 (W.D.N.Y. Aug. 30, 2010) (entering default judgment of $250,000 c ompensatory and $250,000 puni tive damages a gainst a corrections officer w ho ph ysically a nd s exually a bused an i nmate); Cash v . C ounty of E rie, No. 04 –cv–0182–JTC(JJM), 2009 W L 319955 8 ( W.D.N.Y. S ept. 30, 2009) (entering d efault j udgment of $500,000 c ompensatory and $150,000 p unitive damages a gainst a d etention cen ter g uard w ho as saulted an d r aped an i nmate); Hall v. Terrell, 648 F.Supp.2d 1229 (D. Colo. 2009) (entering default judgment of $354,070.41 i n c ompensatory a nd $1 m illion i n puni tive da mages a gainst an officer who routinely sexually assaulted and raped an inmate in his custody).
Id. at *6 n.5.
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Here, Etters’ allegations regarding the claimed emotional distress itself, as opposed to the underlying assaults, arguably originate exclusively from her, although, as discussed below, there is corroboration of the assaults. The court has, in any event, undertaken a scrupulous analysis of the award to her.
The e vents c ausing t he e motional di stress were horrific i n n ature, entailing f orcible sexual violation of Etters. T hese assaults occurred on a t least four occasions. M oreover, some assaults in volved mu ltiple s exual v iolations, each o ne o f w hich w as t antamount t o a s eparate assault. Other f orcible c onduct apparently accompanied certain as saults, such a s ha ndcuffing. The physical injuries Etters incurred included the cut marks from handcuffing and, according to her second statement, pain so great after one incident that she could hardly walk. The occurrence of t he assaults i s corroborated, to varying de grees, by the f act that prison officials took Etters’ claims seriously enough to conduct an investigation into them; the results of Simms’ polygraph examination; Simms’ termination for misconduct, albeit not based on Etters’ version of events; and Etters’ written statements which, as indicated, were made around the time of the assaults.
By their nature, the assaults would be expected to directly cause extreme distress. A nd Etters te stified th at th ey did. T hey t ook f rom he r t he f eeling of s afety t hat t he pr ison environment had provided her and that she had been unable to find outside prison:
I’m no longer safe, you know. It’s, it’s kind of hard to explain that when you first get to prison that you actually, actually could sleep. He took that, you know. (Tr. 23:19-21). In her s econd statement, she spoke specifically of the feelings of guilt, shame, and dirtiness that the assaults produced and her intention to commit suicide after the first assault. She also mentions the anguish of attempting to figure out why Simms picked her to victimize. (Ex. 2 at 2).
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Etters’ te stimony regarding h er emotional d istress ( and a ll o ther ma tters) w as c redible. She testified forthrightly and with conviction. She was understandably emotional at times, but there w as no i ndication s he w as e mbellishing. Her d emeanor w as o therwise i ndicative o f truthfulness. T he substance of her testimony was internally consistent. The trustworthiness of her te stimony is further s ubstantiated b y the m anifest pr opensity of a ssaults l ike t hose s he suffered t o cau se s evere em otional d istress, h er seeking out a nd obt aining mental h ealth treatment after the assaults, and the consistency of her written statements with her testimony.
Based on the foregoing considerations, the court concludes that the sum of $100,000.00 will p rovide E tters a dequate c ompensation f or th e e motional d istress r esulting f rom S imms’ conduct. This amount is within the range recognized in the case law cited above.
This sum does not include any amount for the cost of mental health treatment after Etters is released from pr ison. A lthough she testified t hat s he in tends to r eceive tr eatment then, her release is not expected until about 8 years from now or 14 years after the assaults occurred, and she did not present evidence on the extent to which she will need treatment at that point or its cost. Any award for such treatment would therefore be speculative. III. Punitive Damages due Etters
As indicated, Etters also requests punitive damages. The purpose of punitive damages is “deterrence and retribution.” Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). “Punitive d amages are available in an action under § 1983 ‘when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’” Carrington, 2011 W L 2132850, at * 4 (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Punitive damages are discretionary. Id.
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Here, th e record c learly s hows th at S imms’ a ssaults o n E tters w ere mo tivated b y e vil motive and intent. He brutalized her for his own gratification. His conduct was also in reckless and c allous i ndifference t o E tters’ f ederally pr otected r ights. T hus, t he a ward of puni tive damages is appropriate in this case.
As to th e amount o f p unitive d amages, th e h orrific n ature a nd mu ltiplicity o f S imms’ assaults dictate that the award be substantial to achieve the objective of retribution against him. A s ubstantial a ward is a lso n ecessary to h elp ensure th at another in mate is n ot v ictimized a s Simms was. W hile it is true that S imms was terminated from his job at the prison, that alone does not come close to providing adequate retribution or deterrence, particularly since he did not admit, but instead lied, about his conduct and his termination was not based on the facts as Etters related them.
The court concludes that the sum of $100,000.00 in punitive damages is adequate to serve the ends of retribution and deterrence. T he court is aware that this sum and the like amount of compensatory damages it found to be adequate total twice the amount requested by Etters.8 To her credit, Etters acknowledges that she lacks medical evidence of damages and other evidence that could warrant a h igher award. ( See Tr. 26:23 to 27:3). Nonetheless, for the reasons stated, the court believes that the sums specified are those which are adequate under the applicable legal standards and that the amount requested by Etters was not sufficient.
8 Since Etters requested a specific amount of damages only in argument, but not in her complaint (see Compl. 24 ¶ 3), the a ward of damages exceeding t he a mount requested does not run afoul of t he prohibition i n Fed. R. Civ. P . 54(c) against awarding a default judgment exceeding the amount demanded in the pleadings.
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IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
 5:11-MJ-01359-JG-l


UNITED STATES OF AMERICA,
 CONCLUS) ION

)

For t he r easons s et f orth a bove, t he c ou)r
t r ecommends t hat a j udgment be en tered

v.

) ORDER DENYING APPOINTMENT

awarding de fault j udgment f or E tters i n t he a mou)nt of $100,000.O00FiCn Oc oUmNpSeEnsLatory damages

)

(SEALED)

anCdH$R1I0S0T,0O0P0H.0E0RinYpOunRitKivMe dAaKmEaPgeEsA, fCoEr ,total dam)ages of $200,000.00.

)

IT IS ORDEREDDetfheantdtahnet.Clerk send copie)s
 of this Memorandum and Recommendation

to the r eTshpiescctaivsee cpoamrteiessb,ewfohroe thhaevceouurnttoiln2th0e Fisesbureuoarfyap2p0o1i3ntminewnthoicfchotuonsfeillefowr rCithterinstoobpjheecrtiYonosrk.
FMaailkuerpeetaocfeil(e"dtiemfeenlydawntr"it)t.enDoebfjeencdtiaonntshbaasrssuabnmaigtgterdievaeFdipnaanrtcyiaflroAmffriedcaeviivtinfogr apduerpnoosveos orefvsiuewch
baypptohienDtmisetnritc(tCJJuAdgFeoromn a23n)i.ssDueefecnodvaenret dhaisnftahieleMd teomcoormanpdleutme thaend"ORbelciogmatimoennsdaantdioDneabntds", esexccteiopnt
uopfothnegforormundansdofhapsl faaiinleed rtroore,nfteror mthea dttaatcekoinngwohnicah phpeeaelxet chueteudnothbej efoctremd.-toWpirthoopuotseadcfomacptlueatle
findings and legal conclusions accepted by the District Judge. Any response to objections must
application, the court is not able to determine whether defendant is entitled to appointment of
be filed within 14 days after service thereof.
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of
The Clerk shall today serve a copy of this order on Simms by first-class mail at the most
such appointment after the filing of a new Financial Affidavit which contains the missing
current address the court has for him: 2824 Southpark Village Drive, Rocky Mount, NC 27803.
information.
The Clerk shall also make an appropriate record of such service on the docket sheet of this case.
This order shall be filed under seal.
SO ORDERED, this the 6th day of February 2013.
SO ORDERED, this 23rd day of May 2011.

_________________________ James E. Gates United States Magistrate Judge

14 Case 5:09-ct-03187-D Document 151 Filed 02/06/13 Page 14 of 14

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

SANDRA ETTERS, RONDA SINGLETARY, DEVON DEAL, LOURETHA KINA and SABRINA PHILLIPS,
Plaintiff, v. SECRETARY BOYD BENNETT, ALVIN KELLER, ADMINISTRATOR ANNIE HARVEY, ADMINISTRATOR TIMOTHY KIMBLE, UNIT MANAGER MOORE, ASST UNIT MANAGER FORD, CORRECTIONAL OFFICER WIGGINS, CORRECTIONAL OFFICER SIMS, NURSE BARBOSA, UNIT MANAGER LAMAR BLALOCK and CORRECTIONAL OFFICER JESSICA JONES,
Defendants.

Judgment in a Civil Case Case Number: 5:09-CT-3187-D

Decision by Court.

IT IS ORDERED AND ADJUDGED that the court grants in parts and denies in part the motion for judgment on the pleadings. The claim s of pl aintiffs Si ngletary and King are dism issed and defendants Moore, Ford, Wiggins and Jones are dismissed.

IT IS FURTHER ORDERED AND ADJUDGED that def endants Keller, Bennett, Kim ble, Harvey, Blalock and Barbosa are dismissed as to plaintiff Deal. Plaintiff Etters'motion for entry of default judgment against defendant Simms is granted.

IT IS FURTHER ORDERED AND ADJUDGED that the court accepts the Mem orandum and Recommendation of Magistrate Judge Jam es E. Ga tes. Plaintif f Etters is awarded $100,000 in compensatory damages and $100,000 in punitive damages, for a total damages award of $200,000 from defendant Correctional Officer Sims (Charlie Cortez Simms).

This Judgment Filed and Entered on March 4, 2013, with service on:

Michele R. Luecking-Sunman, April Marie Giancola, Elizabeth Albiston and J. Phillip Griffin, Jr. (via CM/ECF Notice of Electronic Filing) Joseph Finarelli and Kimberly D. Grande (via CM/ECF Notice of Electronic Filing)

March 4, 2013

/s/ Julie A. Richards Clerk

Raleigh, North Carolina

Case 5:09-ct-03187-D Document 155 Filed 03/04/13 Page 1 of 1

 
 IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
 No.5:09-CT-3187-D


SANDRA ETTERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

SECRETARY BOYD BENNETT, et al., )

)

Defendants.

)

ORDER

On November 18, 2009, plaintiffs filed a complaint [D.E. 1] and also filed a motion for class certification [D.E. 2]. Since that date, defendants have filed various motions [D.E. 29, 30,44] and responded in opposition to the motion for class certification [D.E. 33].
Because the court's rulings on the various defense motions (particularly the motion for judgment on the pleadings as to certain defendants) will impact the scope of the claims remaining in the complaint, the court denies without prejudice the motion for class certification [D.E. 2]. See, ~, Lecs v. Martinsburg Police Dep't, 138 Fed. Appx. 562, 564 (4th Cir. 2005) (per curiam) (unpublished). Once the court rules on the various defense motions, plaintiffs may file a new motion for class certification. The court will rule on the pending motions in due course.
Finally, no attorney has filed a notice of appearance on behalf of defendant Simms or defendant Barbosa. Simms has filed a pro se motion for an extension oftime to answer and to fmd counsel [D.E. 29]. Simms motion to extend time [D.E. 29] is granted.
Not later than September 27,2010, the Office ofthe Attorney General shall notify the court whether it will represent Simms and Barbosa. If the Office of the Attorney General is going to represent Simms and Barbosa, the Office ofthe Attorney General shall file an answer or responsive

Case 5:09-ct-03187-D Document 49 Filed 09/10/10 Page 1 of 2

pleading not later than October 12,2010. If the Office of the Attorney General is not going to represent Simms or Barbosa, then Simms or Barbosa shall file an answer or responsive pleading not later than October 12, 2010.
SO ORDERED. This l!L day of September 2010.
~ ... ':tu~M
J SC.DEVERill United States District Judge
2
Case 5:09-ct-03187-D Document 49 Filed 09/10/10 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No.5:09-CT-3187-D

SANDRA ETTERS, et al.,

)

)

Plaintiffs, )

)

~

)

)

SECRETARY BOYD BENNETT, et al., )

)

Def~~ts. )

ORDER

On November 18,2009, Sandra Etters, Ronda Singletary, Dev~ Deal, and Louretha King ("plaintiffs"), state inmates, filed this action under 42 U.S.C, § 1983 alleging violations of their Fourth, Eighth, and FourteenthAmendm~t rights and seeking compensatory and punitive damages [D.E. 1]. Plaintiffs allege that various North Carolina Department of Correction ("DOC") employees have sexually assaulted, abused, or harassed them during their confinement and that certain "supervisory defendants" did nothing to prevent the abuse. Plaintiffs also seek to repres~t a class of all current and future female inmates ofthe DOC who have been or may become victims of sexual abuse perpetrated by DOC employees and staff [D.E. 2]. As to the class allegations, plaintiffs seek declaratory and injunctive relief for the class under the First, Fourth, Eighth, and Fourte~thAmendments. Plaintiffs name as defen~ts former Secretary ofthe DOC Boyd Bennett, current DOC Secretary Alvin Keller, Prison Administrator Annie Harvey of the North Carolina Correctional Institution for Women ("NCCIW"), Prison Administrator Timothy Kimble of the Southern Correctional Institution ("SCI"), Unit Manager Moore, Assistant Unit Manager Ford,

Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 1 of 28

Correctional Officer Wiggins, Correctional Officer Simms,1Nurse Barbosa, Unit Manager Blalock, and Correctional Officer Jessica Jones ("defendants''). Plaintiffs identify defendants Keller, Bennett, Harvey, and Kimble as "supervisory defendants."
Plaintiffs served the complaint on the supervisory defendants and on Moore, Ford, Barbosa, Blalock, Jones, and Simms.2 With the exception ofBarbosa and Simms, the served defendants have answered the complaint and filed a motion for judgment on the pleadings [D.E. 30], a motion to strike [D.E. 44], and a response in opposition to the motion for class certification [D.E. 33]. On March 9, 2010, Simms filed a pro se motion requesting an extension oftime to fmd a lawyer [D.E. 29]. On September 10, 2010, the court entered an order denying plaintiffs' class certification motion without prejudice and granting Simms' motion for an extension of time to file his answer [D.E.49]. On October 6, 2010, Barbosa filed a pro se motion requesting an extension of time to file his answer [D.E. 52], which the court granted on November 1,2010 [D.E. 53]. OnNovember 10,2010, Barbosa filed his answer [D.E. 54]. On February 14,2011, Etters filed amotion for entry of default against Simms [D.E. 55], which the court granted on February 25, 2011 [D.E.56]. As explained below, the defendants' motion for judgment on the pleadings is granted in part and denied in part.
1 In the caption of the complaint, plaintiffs named Charlie Cortez Simms as "Correctional Officer Sims." It appears that Simms is the correct spelling ofhis name, as evidenced by plaintiffs' affidavit ofservice and Simms's pro se motion for an extension oftime, filed March 9,2010. Thus the court refers to this defendant as Simms.
2 On August 24, 2010, the court issued a Rule 4(m} notice to plaintiffs [D.E. 47], asking whether Simms and Wiggins had been served, and directing a response within ten days. On August 27, 2010, plaintiffs filed an affidavit of service [D.E. 48], stating that Simms was served with the complaint on February 17,2010, by certified mail, return receipt requested. PIs.' Aff., Ex. A. Plaintiffs did not file any response or motion as to Wiggins.
2
Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 2 of 28

I. Plaintiffs are four women incarcerated in the custody of the DOC. Compl. 1. Etters is incarcerated at NCCIW, and alleges that Simms repeatedly raped her from late summer 2007 through the fall of2007. Id. ~ 33b. "Sim[m]s told ... Etters he would have her transferred if she reported
his abuse; he also threatened write ups." Id. W4a, 33d. Etters seeks damages from Simms. Id. ~
47. Etters also seeks damages from Bennett, Harvey, and Kimble. Id. ~ 52.3 In December 2006, Singletary was an inmate at NCCIW. According to Singletary, Wiggins
approached her in December 2006 and exposed his penis to her. Compl. ~ 34a. Singletary reported the incident to defendants Moore and Ford. Moore and Ford wanted to catch Wiggins in the act and asked Singletary to interact with Wiggins "so that NCCIW could verify her allegations." Id. ~ 34c. During the subsequent interaction, "[d]efendant Wiggins again sexually propositioned Ms. Singletary, dropped his pants and put his penis in Ms. Singletary's hand ... when [d]efendants
Moore and Ford finally intervened." Id. mr 34e-f. Singletary alleges that Moore and Ford's conduct
constitutes sexual harassment. Id. ~~ 4e--f. Singletary seeks damages from Wiggins, Moore, and Ford. Id. ~ 50. Singletary also seeks damages from Bennett, Harvey, and Kimble. Id. ~ 52.
Deal is incarcerated at NCCIW. Compl. ~ 35. According to Deal, Barbosa forced her into a locked supply closet, ordered her to expose her breasts and genitals to him, and put his mouth on
her breast. Id. mr 4b, 35b. Before this incident, Deal was incarcerated at SCI. Id. ~ 36. While at SCI, Blalock repeatedly observed Deal in her cell while she dressed. Id. mr 4c, 36a. Deal reported
Blalock's actions to three correctional officers, who informed Deal that Blalock had engaged in
3Although paragraph 52 states that plaintiffs seek damages from Keller, plaintiffs have clarified that they seek only injunctive and declaratory relief from Keller. PIs.' Mem. Opp'n 1; see Compl. ~ 5.
3
Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 3 of 28

similar conduct with other inmates and nothing could be done. Id. ~~ 36b-c. Deal then reported Blalock's conduct to a captain. Id. ~ 36d. Deal alleges that Blalock was transferred to the men's unit at SCI, but then returned to the women's unit when Deal was transferred to NCCIW. Id. ~ 36e. Deal seeks damages from Barbosa and Blalock. Id. ~~ 48--49. Deal also seeks damages from Bennett, Harvey, and Kimble. Id. ~ 52.
King is incarcerated at NCCIW. Id. ~ 37. In September 2008, Jones repeatedly sexually propositioned and harassed King, threatened King with retaliation ifKing did not have a relationship with Jones, sent King money, required King to call Jones at her home, and told King she would make
calls to lawyers to help King get out ofprison early. Id. ft 4g, 37a-b. Jones used two male officers
assigned to King's housing unit as "lookouts" and these officers did not report Jones's conduct. Id. ~ 37b. King reported Jones's harassment to a deputy warden. Id. ~ 37c. Later, while Jones was on duty in a tower and King was in the yard, Jones aimed her rifle at King. Id. ~ 37d. King seeks damages from Jones. See id. ~ 51. King also seeks damages from Bennett, Harvey, and Kimble. Id. ~ 52.
Under North Carolina law, prisoners are deemed incapable of consenting to sexual activity with DOC correctional staff. See N.C. Gen. Stat. § 14-27.7(a); see also Compl. ~ 9. Nonetheless, according to plaintiffs, "DOC correctional staff subject women prisoners to recurrent and ongoing acts of sexual misconduct. These include forcible rape, sexual intercourse, anal intercourse, oral sexual acts, sexual touching, voyeurism, invasion ofpersonal privacy, demeaning sexual comments, and intimidation to deter women prisoners from reporting such sexual misconduct." Compi. ~ 10. As for the supervisory defendants, plaintiffs allege that they "are responsible for the care, custody and control of women prisoners, and, through their acts and omissions, supervisory defendants perpetuate the sexual harassment and abuse ofwomen prisoners." Id. ~ 11. According to plaintiffs,
4
Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 4 of 28

female prisoners repeatedly have complained to DOC about sexual abuse by correctional staff, and DOC has paid over $100,000 to resolve such claims of female prisoners over the past five years. CompI. ~ 15. "Despite these known risks and incidence [sic] of sexual misconduct by staff, supervisory defendants, through their policies and practices, have recklessly disregarded these risks, and have failed to protect the women prisoners in their custody from harm." Id. ~ 16. Moreover, the supervisory defendants do not screen correctional staff hires "for psychological tendencies to abuse women." Id. ~ 17. Furthermore, there are "numerous hallways, closets, and other isolated areas that are not supervised by camera or by sight. Supervisory defendants failed to account for entry and exit into these areas or provide visual supervision ofisolated areas at all times." Id. ~ 17a. Additionally, "[s]upervisory defendants assign staffto posts in which they have the opportunity for unmonitored contact with women prisoners." Id. ~ 17b.
Plaintiffs allege that the supervisory defendants "fail to ensure the training of staff so as to prevent sexual misconduct by staff." Id. ~ 18. "Supervisory defendants fail to implement and enforce appropriate supervision by and ofits staff so as to prevent and remedy sexual misconduct." Id. ~ 19. "Supervisory defendants' system for reporting and investigation of sexual misconduct is grossly inadequate to prevent and remedy ongoing sexual misconduct because it relies almost completely upon women prisoners to come forward and report the misconduct ...." Id. ~ 20. Yet, "[s]upervisorydefendants know thatwomenprisoners are unlikely to come forward with complaints of sexual abuse by staff." Id. ~ 21. Moreover, "[s]upervisory defendants know that, given this reluctance, having a complaint and investigation system that relies primarily on women prisoners to come forward with complaints of sexual abuse is insufficient to prevent and remedy this misconduct. Nonetheless, supervisory defendants rely on such a system and fail to utilize other means to root out sexual misconduct." Id. ~ 22. Additionally, "[s]upervisory defendants do not
5
Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 5 of 28

adequately inform women prisoners ofthe procedures for reporting sexual misconduct by staff, and indeed provide ambiguous information." Id. ~ 23.
According to plaintiffs, "[u]pon information and beliefthere is no confidential administrative mechanism to attempt to remedy complaints by women prisoners of sexual misconduct by staff." Id. ~ 24. Supervisory defendants do not keep confidential prisoner complaints ofsexual misconduct. Id. ~ 25. Supervisory defendants also "fail to take steps to protect women prisoners who complain of experiencing sexual misconduct by staff from retaliation or intimidation." Id. ~ 26.
According to plaintiffs, "[P]ursuant to supervisory defendants' policies and/or practices, women prisoners who complain of sexual misconduct by staff or who are questioned in the course ofan investigation are often questioned in a hostile, demeaning and threatening manner." Id. ~ 27. Supervisory defendants also fail to use "surveillance cameras" or "electronic recording devices" to reduce the risk of staff sexual misconduct. Id. ~ 28.
According to plaintiffs, "[s]upervisory defendants' policies and/or practices treat complaints by women prisoners of sexual misconduct by staff in a systematically biased fashion." Id. ~ 29. Thus, "[s]upervisory defendants' policies and/or practices allow staifto engage in sexual misconduct virtually without fear of repercussions." Id. ~ 30.
According to plaintiffs, notwithstanding N.C. Gen. Stat. § 14-27.7(a), supervisory defendants' policies permit them to charge female prisoners with disciplinary offenses for having sexual relations with staff, which may include placement in segregation, the loss ofparticipation in programs and job assignments, and loss of access to drug and alcohol treatment. Id. ~ 31. Disciplinary histories, placement in segregation, and program and job assignments are factors that the parole board considers in determining whether to release a prisoner. Id. Furthermore,
6 Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 6 of 28

supervisory defendants "do not consistently conduct investigations into claims ofsexual harassment or abuse in a prompt manner ...." Id., 32.
Plaintiffs have sued defendants Simms, Barbosa, Blalock, Wiggins, Moore, Ford, and Jones, "all ... correctional officers or sergeants employed by the DOC, ... in their individual capacities for compensatory and punitive damages." CompI." 4a-g. Plaintiffs have sued defendant Keller, who ''was appointed Secretary for the ... [DOC] on January 12,2009[,] ... in his official capacity, for prospective injunctive and declaratory relief for his failure to protect women prisoners from sexual harassment and abuse." Id., 5. Plaintiffs have sued Harvey and Kimble, administrators at the NCCIW and SCI, respectively, where plaintiffs are incarcerated, "in [their] individual capacit[ies] for damages and official capacit[ies], for prospective injunctive and declaratory relief for [their] failure to protect women prisoners from sexual harassment and abuse." Id." 7-8. Plaintiffs have sued Bennett, who ''was Secretary for the ... [DOC] until January 12,2009[,] ... in his individual capacity for damages." Id.' 6.
Etters, Singletary, Deal, and King seek damages for their individual claims, as well as declaratory and injunctive relieffor the class claims. See id. ,,47-52, Prayer for Relief. As for the individual claims, Etters, Singletary, Deal, and King allege that defendants violated their rights under the Fourth, Eighth, and Fourteenth Amendments. See id. As for their class claims, plaintiffs seek to pursue a class action on behalf ofall current and future female inmates ofthe DOC against Keller, Harvey, and Kimble. See id." 39-46. Plaintiffs contend that Keller, Harvey, and Kimble through their policies, practices, acts, and omissions have violated the First, Fourth, Eighth, and Fourteenth Amendments. See id. Plaintiffs seek declaratory and injunctive relief against Keller, Harvey, and Kimble. See id.
7 Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 7 of 28

II. Rule 12{c) of the Federal Rules of Civil Procedure provides that "[a]fter the pleadings are closed - but early enough not to delay trial- a party may move for judgment on the pleadings." Fed. R. Civ. P. 12{c). "[T]he defense offailure to state a claim upon which reliefcan be granted as set forth in Rule 12{b){6) may be raised by motion for judgment on the pleadings." Burbach Broad. Co. of Del. v. Elkins Radio Com., 278 F.3d 401,405 (4th Cir. 2002); see Fed. R. Civ. P. 12{h){2); Edwards v. CiD' ofGoldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Courts apply the "same standard for Rule 12{c) motions as for motions made pursuant to Rule 12{b){6)." Elkins Radio, 278 F.3d at 405-06; see Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581,591 (4th Cir. 2004); Edwards, 178 F.3d at 243. Specifically, a court must determine whether the complaint is legally and factually sufficient. See Fed. R. Civ. P. 12{b){6); Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Bell At!. Com. v. Twombly, 550 U.S. 544,570 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187,190 (4th Cir. 2010); Giarratano v. Johnson, 521 F.3d 298,301-02 (4th Cir. 2008); Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Erickson v. Pardus, 551 U.S. 89,93-94 (2007) (per curiam). Although a court "assume[s] the facts alleged in the complaint are true and drawLs] all reasonable factual inferences in [plaintiffs'] favor," Elkins Radio, 278 F.3d at 406, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Iqbal, 129 S. Ct. at 1949-50. Similarly, a court need not accept as true ''unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 129 S. Ct. at 1949-50. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summaryjudgment. See. ~ Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt CnD'. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
8 Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 8 of 28

A. Defendants argue that Singletary filed her claims outside the applicable three-year statute of limitations. See Defs.' Mem. 27-28. Thus, defendants seek judgment on the pleadings as to Singletary's claims. Plaintiffs have not responded to this argument. As noted, Singletary alleges that Wiggins sexually harassed her in December 2006. See CompI. ~ 34. Singletary reported the harassment to Moore and Ford. Id. Moore and Ford then asked Singletary to again interact with Wiggins. See id. According to Moore and Ford, they did so to catch Wiggins in the act. According to Singletary, they did so to verify her allegations. In any event, Singletary thereafter interacted with Wiggins and he sexually harassed her again. Moore and Ford then intervened. See id. ~ 4e-f, 34. In support of their statute-of-limitations argument, defendants filed an affidavit stating that Wiggins last worked at NCCIW on December 28,2005, and resigned on January 11,2006. Rogers Aff. ~~ 5-6. Singletary filed her grievance on August 18, 2008, CompI., Ex. B at 2, and the face of the grievance does not state when Wiggins sexually harassed her. Defendants contend that Singletary's claims accrued no later than January 11,2006, and therefore the applicable three-year statute oflimitations expired no later than on January 11, 2009. Because Singletary did not file suit until November 18,2009, defendants argue that her claims are time-barred. Congress has not adopted a specific statute of limitations for actions brought under 42 U.S.C. § 1983. Instead, the analogous state statute of limitations applies. See,~, Burnett v. Grattan, 468 U.S. 42,48-49 (1984); Nasim v. Warden, Md. House ofCorr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc). Specifically, the state statute oflimitations for personal injury actions governs claims brought under 42 U.S.C. § 1983. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v. Okure, 488 U.S. 235, 249-50 (1989). North Carolina has a three-year statute of limitations for
9
Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 9 of 28

personal injury actions. N.C. Gen. Stat. § 1-52(5). Thus, North Carolina's three-year statute of limitations governs Singletary's section 1983 claim. See Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002); Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996); Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161-62 & n.2 (4th Cir. 1991).
Althoughthe limitations period for claims brought under section 1983 is borrowed from state law, the time for accrual of an action is a question of federal law. See,~, Wallace, 549 U.S. at 388; Brooks, 85 F.3d at 181. A claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. See,~, Wallace, 549 U.S. at 388; Nasim, 64 F.3d at 955. In this case, Singletary's claims accrued on or before January 11,2006, the effective date of Wiggins's resignation. Singletary then had three years, or until on or before January 11, 2009, within which to file suit. Because Singletary filed suit on November 18,2009, Singletary's claims
are dismissed as time-barred, and defendants Moore, Ford, and Wiggins are dismissed from this
action.4
B.
Next, defendants argue that Deal and King's claims should be dismissed because the Prison Litigation Reform Act ("PLRA") precludes any claim ofmental or emotional injury absent physical injury. Defs.' Mem. 10-11 (citing 42 U.S.C. § 1997e(e)). In support, defendants note that Deal and
King allege that they "suffered severe psychological and emotional distress" as a result of being
4 Even ifSingletary timely filed her complaint, the court still would dismiss Wiggins because plaintiffs failed to serve him within 120 days. See Fed. R. Civ. P. 4(m). Although the court may extend the time for service under Rule 4(m), plaintiffs have not attempted to show good cause for the failure to serve Wiggins.
10 Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 10 of 28

sexually abused and harassed, but do not allege any physical injury. Compl." 35e, 36f, 37e.s In opposition to defendants' PLRA argument, Deal and King contend that the law allows recovery of nominal or punitive damages and injunctive or declaratory relief for a constitutional violation without a showing of physical injury. See PIs.' Mem. Opp'n 17.
The PLRA provides in relevant part that: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury. 42 U.S.C. § 1997e(e). Most circuit courts have held that section 1997e(e) applies to all federal prisoner lawsuits, including claims under 42 U.S.C. § 1983 alleging constitutional violations. See, Y:., Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004); Thompson v. Carter, 284 F.3d 411,416 (2d Cir. 2002); Searles v. Van Bebber, 251 F.3d 869,876 (10th Cir. 2001); Allah v. AI-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000); contra Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). The Fourth Circuit has not addressed this issue, but the court believes that the Fourth Circuit would follow the plain text of42 U.S.C. § 1997e(e), apply section 1997e(e) to prisoner lawsuits, including claims under section 1983 alleging constitutional violations, and require "aprior showing ofphysical injury." 42 U.S.C. § 1997e(e). Thus, to the extent that Deal and King seek to bring a civil action for mental or emotional injury suffered while in custody without a prior showing ofphysical injury, their claims are barred. Alternatively, Deal and King argue that section 1997e(e) does not bar their claims for nominal damages, punitive damages, or injunctive and declaratory relief. In support, Deal and King note that circuit courts uniformly have held that, even absent physical injury, section 1997e(e) does
S Etters has alleged that she suffered physical injury in addition to severe psychological and emotional distress. Compl." 33g-h. Thus, defendants do not make this argument as to Etters.
11
Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 11 of 28

not bar a prisoner who successfully proves a constitutional violation from recovering nominal damages, punitive damages, or injunctive and declaratory relief. See,~, Royal, 375 F.3d at 723; Hughesv.Lolt, 350F.3d 1157, 1162(l1thCir.2003); Thompson, 284F.3dat418; Searles, 251 F.3d at 878-79; Davis v. District ofColumbii&, 158 F.3d 1342, 1346 (D.C. Cir. 1998); Zehner v. Trigg, 133 F.3d 459,462 (7th Cir. 1997). Although the Fourth Circuit has not addressed the issue, the court believes that the Fourth Circuit would adopt this interpretation of section 1997e(e). Thus, section 1997e(e) does not require dismissing Deal and King's claims for nominal damages, punitive damages, injunctive relief, or declaratory relief.
C.
Next, defendants contend that Etters, Deal, and King "have not exhausted their administrative remedies with respect to most (ifnot all) oftheir purported claims." Defs.' Mem. 11. Specifically, defendants agree that Etters and Deal have exhausted their administrative remedies as to the alleged sexual assaults they suffered at the hands of Simms and Barbosa, that Deal has exhausted her administrative remedies as to Blalock's alleged sexual harassment, and that King has exhausted her administrative remedies as to Jones's alleged sexual harassment. However, defendants contend that plaintiffs have not exhausted their administrative remedies with regard to "the deprivation of any other constitutional rights as a result of the system of reporting, investigation and resolution of sexual abuse and harassment allegations brought by women prisoners." Defs.' Mem. 13.
The PLRA requires a prisoner to exhaust her administrative remedies before filing an action under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a).6 Exhaustion is mandatory. See, e.g., Jones v.
642 U.S.C. § 1997e(a) states: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
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Bock, 549 U.S. 199,211 (2007); Woodford v. Ngo, 548 U.S. 81, 85 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). "[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with applicable procedural rules - rules that are defmed not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, therefore, is ... required by the PLRA to 'properly exhaust. '" Jones, 549 U.S. at 218 (citation and quotation omitted). North Carolina has such prison grievance procedures. See, ~,Moore v. Bennette, 517 F.3d 717, 721-23 (4th Cir. 2008). Requiring exhaustion gives prison officials "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones, 549 U.S. at 204. Grievances must be sufficient in detail to "alert[] the prison to the nature of the wrong for which redress is sought." Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002V
Etters complained that "no one did anything" about the assaults she suffered from Simms, and the grievance examiner found that "management at NCCIW had indeed taken the appropriate steps initiating an investigation into the matter." CompI., Ex. A at 2, 4 (Etters grievance). Deal noted that when she complained about Blalock to three "different staff members (C/O Lowe, Sgt Cole & Sgt Hamilton) ... ,not one ofthem reported it themselves ... therefore not protecting" Deal. CompI., Ex. Cat 5 (July 3,2009 Deal grievance). Deal also asked as a remedy that "the institution (SCI) and/or individuals should in someway ... be held accountable for not fulfilling their job duties & for not providing adequate protection." Id. Deal's grievance against Barbosa sought to prevent Barbosa from distributing her medication and asked that the prison "enforce N.C. General Statute [section] 14-27.7(a)" against Barbosa for his behavior. Id. at 2 (May 4,2009 Deal grievance). The
7 The Second, Fifth, Sixth, Ninth, and Tenth Circuits have adopted the Strong standard. See Griffin v. Amaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (collecting cases).
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grievance examiner responded by infonning Deal that her grievance was "considered resolved by DOC staff as an ongoing investigation is being conducted by PREA at this time." Id. at 4. As for King, her grievance alleged that she had been ''provoked and harassed" by NCCIW staffand inmates because ofJones's conduct towards King. Compl., Ex. D at 2 (Sept. 1, 2009 King grievance). King claimed to be the victim of"deliberate indifference" and asked that she be "moved to another prison camp for [her] safety." Id.
Plaintiffs' grievances alerted prison officials of the basic facts underlying their claims. Etters's grievance alleged that officials failed to take any action after she reported the sexual assault and the grievance examiner reviewed the steps taken by NCCIW management to investigate Etters's claims. Deal alleged officials failed to report her allegations or prevent it from happening again and stated that the institution should be held accountable for not fulfilling their job duties. King claimed she was the victim of deliberate indifference because NCCIW staff provoked and harassed her and she feared for her safety. These grievances gave prison officials a fair opportunity to address the problems fonning the basis of the plaintiffs' suit. See,!!:&, Moore, 517 F.3d at 729; Johnson v. Johnson, 385 F.3d 503,516-17 (5th Cir. 2004). Therefore, plaintiffs successfully exhausted their administrative remedies before filing suit.
D. 1. Next, the court examines whether Etters, Deal, and King have stated a claim upon which reliefcan be granted. Cf. Defs.' Mem. 7-9, 14-25.8 Initially, the court examines plaintiffs' claims for damages against the non-supervisory defendants.
8 The court does not address Singletary's claims because they are time-barred. 14
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Etters and Deal's pleadings regarding the alleged sexual assaults by Simms and Barbosa are
detailed, factual allegations. See Compi. ~~ 4, 33, 35. Similarly, Deal's pleadings regarding
Blalock's alleged sexual misconduct are detailed factual allegations. See id. ~ 36. After recounting
the details of the sexual misconduct, Etters and Deal then allege:
47. For violation ofher right to be free from cruel and unusual punishment, sexual abuse, unwanted touching, verbal abuse, threats, and for violations of her right to privacy and bodily integrity, and equal protection of the laws, as set forth above, plaintiff Sandra Etters seeks compensatory and punitive damages against defendant Officer [Simms] in amounts to be determined.
48. For violation ofher right to be free from cruel and unusual punishment, sexual abuse, unwanted touching, verbal abuse, threats, and for violations of her right to privacy and bodily integrity, and equal protection ofthe laws, as set forth ... above, plaintiff Deven Deal seeks compensatory and punitive damages against defendant Nurse Barbosa in amounts to be determined.
49. For violation of her right to be free from cruel and unusual punishment for violations of her right to privacy and bodily integrity, and equal protection of the laws, as set forth[] above, plaintiff Deven Deal seeks compensatory and punitive damages against defendant Unit Manager Blalock in amounts to be determined.
Id. ~~ 47-49.
As for King, she alleges that Jones sexually harassed her. See id. ~ 37. King then alleges:
51. For violation ofher right to be free from cruel and unusual punishment, verbal abuse, threats, and for violations of her right to privacy and bodily integrity, and equal protection of the laws, as set forth above, Louretha King seeks compensatory and punitive damages against defendant officer Jessica Jones in amounts to be determined.
Etters, Deal, and King seek relief from the non-supervisory defendants under the Eighth,
Fourth, and Fourteenth Amendments. The court examines these individual claims seriatim.
"In order to make out a prima facie case that prison conditions violate the Eighth
Amendment, a plaintiff must show both (1) a serious deprivation of a basic human need; and (2)
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deliberate indifference to prison conditions on the part ofprison officials." Strickler v. Waters, 989 F.2d 1375,1379 (4th Cir. 1993)(quotationomitted). The Supreme Court has explained that the first prong is an objective one - the prisoner must show that "the deprivation of [a] basic human need was objectively 'sufficiently serious'" - and the second prong is subjective - the prisoner must show that "subjectively 'the officials act[ed] with a sufficiently culpable state ofmind. ,,, Id. (second alteration in original) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991». Only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement. See Helling v. McKinney~ 509 U.S. 25, 36 (1993); Hudson v. McMilliml, 503 U.S. 1,8-9 (1992).
As for Etter's Eighth Amendment claim against Simms and Deal's Eighth Amendment claim against Barbosa, these two plaintiffs have stated a claim upon which relief can be granted against Simms and Barbosa. The Eighth Amendment protects against cruel and unusual punishment, and the alleged sexual assaults (if proven) would violate the Eighth Amendment. See,~, Kahle v. Leonard, 477 F.3d 544, 553 (8th Cir. 2007); Smith v. Cochrml, 339 F.3d 1205, 1212-13 (1Oth Cir. 2003); Daskalea v District of Columbi~ 227 F.3d 433, 440-41 (D.C. Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000); Benyhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998); Barneyv. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998); Hovaterv. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993).
As for King's Eighth Amendment claim against Jones and Deal's Eighth Amendment claim against Blalock, the analysis is different. As mentioned, King alleges that Jones sexually propositioned her, threatened her with retaliation, gave her money, required her to call Jones at her home, told King that she (Jones) would call lawyers to help King get out of prison early, and once
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pointed a rifle at her from a guard tower. See Compl. ~ 37. As for Deal, Deal alleges that Blalock observed her while she dressed. See id. ~~ 4c, 36a.
Although the court condemns the alleged actions of Jones and Blalock, the Eighth Amendment is not a state tort statute or state employment statute. Likewise, the Eighth Amendment is not Tide VII. Cf. 42 U.S.C. §§ 2000e et seq.; Faragher v. City of Boca Raton, 524 U.S. 775, 786-88 (1998) (describing framework for analyzing sexual harassment claims under Title VII); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78-82 (1998). Under the Eighth Amendment, the alleged conduct of Jones and Blalock does not rise to the level of a serious deprivation of a basic human need or the unnecessary and wanton infliction of pain. See,~, Johnson v. Unknown Dellatif~ 357 F.3d 539, 545-46 (6th Cir. 2004); McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607,612 (7th Cir. 2000); Barney, 143 F.3dat 1311 n.ll; Freitas v. Ault, 109 FJd 1335, 1338-39 (8thCir. 1997); Boddiev. Schnieder, 105 F.3d 857,861-62 (2d Cir. 1997); Adkins v. Rodriguez, 59 F.3d 1034, 1036-37 (10th Cir. 1995); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (per curiam). Thus, the court grants defendants' motion for judgment on the pleadings as to King's claim against Jones and Deal's Eighth Amendment claim against Blalock.
Plaintiffs' second cause of action alleges that the defendants deprived them oftheir right to be free from sexual abuse and harassment and oftheir rights to bodily integrity and privacy, without due process of law, in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Compl. ~~ 47-49,51. Defendants contend that, as prisoners, plaintiffs must assert any claim asserting a right to bodily integrity under the Eighth Amendment rather than the Fourth or Fourteenth Amendment, and that plaintiffs have failed to allege any act which would constitute a violation ofprivacy. See Defs.' Mem. 17-19. Plaintiffs have not responded to this argument.
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As for plaintiffs' claim ofbodily integrity, the Eighth Amendment, rather than the Fourth or Fourteenth Amendment, stands as the primary constitutional limitation associated with a prisoner's bodily integrity. See, e.g., Hudson v. Palmer, 468 U.S. 517, 527-28, 530 (1984) ("A right ofprivacy in traditional Fourth Amendment tenns is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.. . . The Eighth Amendment always stands as a protection against 'cruel and unusual punishments'" including "calculated harassment unrelated to prison needs."). Nonetheless, some circuit courts, including the Fourth Circuit, have held that the Fourth Amendment encompasses a very narrow right to bodily privacy in prison. Lee v. Downs, 641 F.2d 1117, 1119-21 (4th Cir. 1981) ("Most people ... have a special sense ofprivacy in their genitals, and involuntary exposure ofthem in the presence of people of the other sex may be especially demeaning and humiliating."); see also Boxer X v. Harris, 437 F.3d 1107, 1110-11 (11th Cir. 2006) (concerning voyeurism); Hill v. McKinley, 311 FJd 899, 903-04 (8th Cir. 2002) (concemingunnecessary forcible display ofgenitals and buttocks); Oliver v. Scott, 276 FJd 736, 745 & n.l3 (5th Cir. 2002) (collecting similar cases).
As for Etters and Deal, each has alleged sexual assault by a DOC employee. See Compl. " 33, 35. There is no legitimate penological justification for a DOC employee to sexually assault a prisoner, and such allegations state a claim that the perpetrator violated the prisoner's Fourth Amendment right to bodily privacy. See, e.g., Shroffv. Spel~ 604 F.3d 1179, 1191 (10th Cir. 2010); Levoyv. Mills, 788 F.2d 1437,1439 (10th Cir. 1986); see also Fortnerv. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992); Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992). Thus, in light ofthe narrow Fourth Amendment right to bodily privacy recognized in the above-referenced cases, the court permits Etters's claim against Simms and Deal's claim against Barbosa to proceed. As for Deal's Fourth Amendment claim
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against Blalock (Compl. ~ 36), this claim (which involves Blalock observing Deal dressing in her cell) also survives the motion for judgment on the pleadings. See,~, Lee, 641 F.2d at 1119-21.
However, as to King's claim against Jones, King alleges verbal harassment involving no nudity. See Compl. ~ 37. Although Jones's alleged conduct is not appropriate, such conduct does not violate the narrow Fourth Amendment rightto bodily privacy recognized in the above-referenced cases. Accordingly, the court grants defendants' motion for judgment on the pleadings as to King's Fourth Amendment claim against Jones.
Plaintiffs' final cause of action for damages against the non-supervisory defendants arises under the equal protection clause of the Fourteenth Amendment. The equal protection clause applies to the decisions ofstate correctional officials. See,~, Johnson v. Californi~ 543 U.S. 499, 505-15 (2005). The equal protection clause, however, "does not take from the States all power of classification." Personnel Adm'r v. Feeney, 442 U.S. 256, 271 (1979). Rather, it "keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Nordlinger v. H~ 505 U.S. I, 10 (1992).
To succeed on an equal protection claim, a plaintiff "must first demonstrate that [she] has been treated differently from others with whom [she] is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Morrison v. Garraghty,239 F.3d 648, 654 (4th Cir. 2001). "If [she] makes this showing, 'the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny. '" Veney v. Wyche,293 F.3d 726, 731 (4th Cir. 2002) (quoting Morrison, 239 F.3d at 654).
Plaintiffs have failed to allege in the complaint, with the requisite specifity, any comparators
of a different sex. See Compl. W46-52; cf. Glover v. Johnson, 198 F.3d 557, 561--66 (6th Cir.
1999); Barney, 143 F.3d at 1312 & n.15; Keevan v. Smith, 100 F.3d 644, 647-50 (8th Cir. 1996); 19
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Klingerv. Dep'tofCorr., 31 F.3d 727, 731-34 (8thCir. 1994). Thus, the plaintiffs' equal protection
claim fails, and the court grants defendants' motion for judgment on the pleadings. 2.
Next, the court examines Etters, Deal, and King's claims for damages against the supervisory
defendants. They contend that (1) supervisory defendants know that women prisoners are at a
substantial risk ofsexual misconduct by DOC staff, but fail to take necessary and appropriate action (Compl. ~~ 9-16); (2) supervisory defendants fail to appropriately screen, assign, train, and supervise
staff Wi. ~~ 17-19); and, (3) supervisory defendants' system for reporting and investigating complaints of sexual misconduct is grossly inadequate Wi. ~~ 20-32). Etters, Deal, and King then
allege:
52. For acting with deliberate indifferent to the sexual abuse and harassment of women prisoners by the officers under their supervision and facilitating the violation oftheir rights to be free from cruel and unusual punishment, sexual abuse, unwanted touching, verbal abuse, threats, and for violations oftheir rights to privacy and bodily integrity, and equal protection ofthe laws, as set forth above, plaintiffs Sandra Etters, ... Deven Deal and Louretha King seek compensatory and punitive damages against defendants ... Secretary Bennett, Administrator Harvey and Administrator Kimble. Id. ~ 52. As for the supervisory defendants, plaintiffs essentially seek to impose liability for inadequate
hiring, inadequate training and supervision, and an inadequate process for reporting and investigating
alleged sexual misconduct. Such liability is not premised upon respondeat superior but upon "a recognition that supervisory indifference or tacit authorization ofsubordinates' misconduct may be
a causative factor in the constitutional injuries they inflict on those committed to their care." Slakan
v. Porter, 737 F.2d 368,372 (4th Cir. 1984). To establish liability, there must be an "affirmative link" between the misconduct of the subordinate employees and the actions or inactions of the supervisory defendants. Rizzo v. Goode, 423 U.S. 362, 371 (1976). The causal link is necessary
20
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because there is no respondeat superior liability under section 1983. See,~, Iqbal, 129 S. Ct. at 1949; Bd. ofCnty. Comm'rs v. Bro:wn, 520 U.S. 397,403-04 (1997); City of Canton v. Harris. 489 U.S. 378, 389 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-94 (1978).
To establish liability under section 1983 for the supervisory defendants, plaintiffs must establish three things:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" ofconstitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices,"; and (3) that there was an "affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Shawv. Stroug, 13 F.3d 791, 799 (4th Cir. 1994); see Iqbal, 129 S. Ct. at 1949; Baynard v. Malone, 268 F.3d 228,235 (4th Cir. 2001). The subordinate's conduct must be "pervasive," meaning that "the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by subordinate poses an unreasonable risk of harm of constitutional injury." Shaw, 13 F.3d at 799. Deliberate indifference requires that a defendant knew of and purposefully ignored "an excessive risk to inmate health or safety." Farmerv. Brennan, 511 U.S. 825, 837 (1994).
nco Deliberate indifference "sets a particularly high bar to recovery." v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008). Furthermore, "a supervisor cannot be expected ... to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct." Sl~ 737 F.2d at 373; see Randall v. Prince George's County, 302 F.3d 188,206 (4th Cir. 2002). "A supervisor's continued inaction in the face of documented widespread abuses, however, provides an independent basis for finding [the supervisor] either was deliberately indifferent or acquiesced in the constitutionally offensive conduct ofhis subordinates." Slakm 737
F.2d at 373. 21
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A constitutional violation is necessary in order for plaintiffs to state a claim against a supervisory defendant, but it is not sufficient. See, ~ Waybright v. Frederick County, 528 F.3d 199, 203-04 (4th Cir. 2008). As explained above, King failed to state a claim for a constitutional violation against Jones; therefore, King's claim against the supervisory defendants also fails. See id. However, Etters and Deal have alleged facts sufficient to state a claim for the violation oftheir constitutional rights due to the conduct ofSimms, Barbosa, and Blalock. Etters and Deal also allege that the supervisory defendants, Kimble, Harvey, and Bennett, were aware of the pervasive risk of sexual misconduct by DOC staff, and that supervisory defendants failed to take steps to investigate reports ofmisconduct, increase monitoring, or otherwise decrease the likelihood DOC staffwould engage in further misconduct. Compl. ~~ 13-32. Specifically, Etters and Deal allege multiple instances of sexual misconduct by NCCIW staff and Deal also alleges repeated misconduct by Blalock at SCI. Id. ~~ 33,35-36. Etters and Deal also allege that supervisory defendants had actual or constructive knowledge of the pervasive risk of sexual misconduct because of the numerous claims of sexual abuse filed by female prisoners. Id. ~~ 14-15; see PIs.' Mem. Opp'n 3-5. Etters and Deal also claim that, despite knowledge ofthese risks, supervisory defendants have failed to take steps to address or prevent such misconduct. See Compl. ~~ 16-32. Etters and Deal also allege that the supervisory defendants' response to this misconduct was so inadequate that it constituted deliberate indifference, and that there is a causal link between this inaction and the injuries suffered by Etters and Deal. These allegations are sufficient to state claims against the supervisory defendants. Cf. Beers-Capitol v. Whetzel, 256 F.3d 120, 133-44 (3d Cir. 2001). Whether the claims will survive amotion for summaryjudgment is an issue for another day. Cf. Bro~ 520 U.S. at 407-09; Harris, 489 U.S. at 391; Beers-Capitol, 256 F.3d at 133-44; Cornfield v. Conso!. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993); Buffmgton v. Baltimore County, 913 F.2d
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113, 122-23 (4th Cir. 1990). Thus, Etters's supervisory liability claim against Harvey and Bennett survives, and Deal's supervisory liability claim against Kimble, Harvey, and Bennett also survives. However, because Etters was never incarcerated at SCI, the court grants Kimble's motion for judgment on the pleadings as to the supervisory claim of Etters against Kimble.
3.
Next, the court addresses plaintiffs' claims for declaratory and injunctive relief against Keller, Harvey, and Kimble in the four causes ofaction made on behalfof the class. See Compl. ~ 39-46. Defendants argue that they are entitled to judgment on the pleadings.
Plaintiffs' first cause ofaction on behalfofthe class alleges that Keller, Harvey, and Kimble, ''through their policies, practices, acts and omissions, exhibit deliberate indifference to the sexual harassment and abuse ofthe plaintiffclass ... [and] subject the plaintiffclass ... to the unnecessary and wanton infliction of pain" all in violation of the Eighth Amendment. Compl. ~ 39-43. As explained above, Etters and Deal have stated claims for violations of the Eighth Amendment. However, Etters and Deal are both currently incarcerated at NCCIW, which renders moot Deal's claim for declaratory and injunctive reliefagainst SCI Administrator Kimble. Therefore, Etters and Deal may proceed on their Eighth Amendment class claim for declaratory and injunctive relief against supervisory defendants Keller and Harvey.
Plaintiffs' second cause of action on behalf of the class alleges that Keller, Harvey, and Kimble "[b]y their policies, practices, acts and omissions, ... deprive the plaintiffclass oftheir right to be free from sexual abuse and harassment and their rights to bodily integrity and privacy, without due process of law, in violation of the Fourth and Fourteenth Amendments of the United States Constitution." Compl. ~ 44. As explained above, Etters and Deal have stated claims for violations of the Fourth Amendment. But again, Etters and Deal are both currently incarcerated at NCCIW,
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which renders moot Deal's claim for declaratory and injunctive relief against Kimble. Etters and
Deal may proceed on their Fourth Amendment class claim for declaratory and injunctive relief
against supervisory defendants Keller and Harvey. Plaintiffs' third cause ofaction on behalfofthe class alleges that Keller, Harvey, and Kimble,
''through their policies, practices, acts and omissions, subject the plaintiff class to retaliation for reporting staff sexual misconduct, in violation of' the First Amendment. Compl., 45. Plaintiffs, however, do not seek relief individually for alleged violations oftheir First Amendment rights. See id. ,,47-52. Because none of the proposed class representatives claim any First Amendment injury, plaintiffs may not pursue such a remedy on behalf of the class. See,~, Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,156 (1982); Gen. Tel. Co. ofthe Nw.. Inc. v. EEOC, 446 U.S. 318, 330 (1980); Anderson v. Westinghouse Savannah River Co., 406 F.3d 248,260 (4th Cir. 2005);
Broussard v. Meineke Disc. Muffler Shops. Inc., 155 F.3d 331,338 (4th Cir. 1998).
Alternatively, in order to state a First Amendment retaliation claim, "plaintiffs must allege
either that the retaliatory act was taken in response to the exercise of a constitutionally protected
right or that the act itself violated such a right." Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Moreover, an inmate must allege sufficient facts which tend to support her allegation ofa retaliatory motive behind defendants' actions. See White v. White, 886 F.2d 721, 724 (4th Cir. 1989). Bare assertions of retaliation do not establish a claim of constitutional dimensions. Adams, 40 F.3d at 74-75. Because there is no constitutional right to participate in grievance proceedings, plaintiffs are barred from claiming that they suffered retaliation due to the exercise of a constitutionally protected right. See id. at 75. Thus, plaintiffs have failed to state a First Amendment retaliation claim. See, ~ id; Bane v. Va. Dep't ofCorr., No. 7:06CV00733, 2007 WL 1378523, at *8 (W.D.
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Va. May 8, 2007} (unpublished). Accordingly, the court grants defendants' motion for judgment on the pleadings as to the First Amendment claim on behalf of the class.
Plaintiffs' fourth cause of action on behalf of the class alleges that Keller, Harvey, and Kimble, "through their policies, practices, acts, and omissions are deliberately indifferent to the sexual abuse and harassment of women prisoners by the officers under their supervision, and supervisory defendants thus subject the plaintiff class to harassment and abuse of their gender in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution." Compl. ~ 46.
As with their individual claims under the equal protection clause, the class claim fails to include any allegation that Keller, Harvey, and Kimble treated plaintiffs as a class differently from others with whom the class is similarly situated and that the unequal treatment was the result of intentional discrimination. Cf. Morrison, 239 F.3d at 654. The defect dooms their equal protection claim. Moreover, although plaintiffs attempt to remedy the defect in their complaint via arguments in their memorandum opposing defendants' motion for judgment on the pleadings (pIs.' Mem. Opp'n 17), a party may not amend her complaint via a memorandum oflaw. See, e.g., Car Carriers. Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984); Bostic v. Rodriguez, 667 F. Supp. 2d 591, 615 (B.D.N.C. 2009). Accordingly, the .court grants defendants' motion for judgment on the pleadings as to the equal protection claim on behalfofthe class.
E.
Defendants assert the defense ofqualified immunity. Defs.' Mem. 25-27. The doctrine of qualified immunity provides that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malltn'v. Briggs, 475 U.S. 335, 341 (1986); see Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). Qualified immunity protects law enforcement officers from "bad guesses in gray areas" and ensures that they are only "liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295,298 (4th Cir. 1992). "A police officer should prevail on an assertion ofqualified immunity ifa reasonable officer possessing the same information could have believed that his conduct was lawful." Slattery v. Rizzo, 939 F.2d 213,216 (4th Cir. 1991) (emphasis removed).
In evaluating qualified immunity, a court initially may determine whether the plaintiffhas alleged or shown a violation of a constitutional right. See Pearson, 129 S. Ct. at 818. If the court determines that no constitutional right was violated, ''that ends the matter, and the official is entitled to immunity." Saucier v. Katz, 533 U.S. 194, 199 (2001), overruled on other grounds 12y Pearson, 129 S. Ct. 813. If the court determines that a constitutional right was violated, the court proceeds to determine if that right was clearly established at the time of the alleged violation. As for the "clearly established righf' prong,
the right the official is alleged to have violated ... must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 202 (quotations and citations omitted); see, e.g., Cloaninger ex reI. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009). The right is defined "at a high level of particularity." Edwards, 178 F.3d at 251.
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Defendants Harvey, Bennett, Kimble, and Blalock argue that they are entitled to qualified immunity because the plaintiffs have not alleged any constitutional violations. Defs.' Mem. 25.9 However, as discussed, Etters has alleged facts sufficient to state a claim for the violation of her Fourth and Eighth Amendment rights against Harvey and Bennett. Deal has alleged facts sufficient to state a claim for the violation of her Fourth Amendment rights against Blalock and Kimble, and claims for the violation of her Fourth and Eighth Amendment rights against Harvey and Bennett. Etters and Deal's constitutional rights were clearly established at the time ofthese alleged violations; therefore, defendants have failed to show they are entitled to qualified immunity at this stage ofthe proceedings. Ofcourse, defendants may again assert qualified immunity on a more fully developed record in a motion for summary judgment.
F.
Defendants contend that the court should dismiss any claim for injunctive or declaratory relief against Bennett. The parties agree, however, that Bennett is being sued only in his individual capacity for damages. See Defs.' Mem. 28; Pis.' Mem. Opp'n 1-2; cf. CompI. ~ 6. Thus, plaintiffs may not seek injunctive or declaratory relief from Bennett, and any request for injunctive or declaratory relief against Bennett is dismissed.
m.
For the reasons stated above, defendants' motion for judgment on the pleadings [D.E. 30] is GRANTED in part and DENIED in part. The claims of plaintiffs Singletary and King are DISMISSED. Defendants Moore, Ford, Wiggins, and Jones are DISMISSED. Plaintiff Etters's
9 Simms and Barbosa are not parties to the motion for judgment on the pleadings. Keller is not sued in his individual capacity, and the court has dismissed the claims against Moore, Ford, Wiggins, and lones.
27
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claims against Simms and the supervisory defendants (except Kimble) under the Fourth and the Eighth Amendment survive, but her Fourteenth Amendment claim fails. As for plaintiffDeal, her Fourth and Eighth Amendment claims against Barbosa and the supervisory defendants (except Kimble) survive, her Fourth Amendment claim against Blalock and the supervisory defendants (except Harvey) survives, but her Eighth Amendment claim against Blalock fails as does her FourteenthAmendment claim. Similarly, the court DISMISSES Etters and Deal's First Amendment and Fourteenth Amendment class claims. Defendants' motion to strike [D.E. 44] is DENIED as moot
SO ORDERED. This ~ day of March 2011.
~~SAC."DE'VE~Rm~
United States District Judge
28 Case 5:09-ct-03187-D Document 57 Filed 03/16/11 Page 28 of 28

 
 IN TIlE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION No.5:09-CT-3187-D

SANDRA ETTERS, et al.,

)

)

Plaintiffs, )

)

~

)

)

SECRETARY BOYD BENNETT, et al., )

)

Defendants. )

ORDER

On November 18, 2009, four state inmates filed this action under 42 U.S.C. § 1983 alleging violations oftheir Fourth, Eighth, and FourteenthAmendment rights and seeking compensatory and punitive damages [D.E. 1]. Plaintiffs allege that various North Carolina Deparbnent of Correction ("DOC") employees have sexually assaulted, abused, or harassed them during their confinement and that certain "supervisory defendants" did nothing to prevent the abuse. Plaintiffs also seek to represent a class ofall current and future female inmates ofthe DOC who have been or may become victims ofsexual abuse perpetrated by DOC employees and staff[D.E. 72]. On March 16,2011, the court granted in part a motion by several defendants for judgment on the pleadings [D.E. 30], dismissed two plaintiffs and four defendants, and dismissed the remaining plaintiffs' First and Fourteenth Amendment claims [D.E. 57]. On October 6, 2010, defendant Barbosa moved for appointment of counsel [D.E. 52].
On April 5, 2011, the remaining parties filed a stipulation ofdiscovery [D.E. 59]. On April 28,2011, Magistrate Judge James E. Gates held a scheduling conference [D.E. 65]. On April 29, 2011, Magistrate Judge Gates entered a scheduling order [D.E. 66]. OnJune 28, 2011, the remaining

Case 5:09-ct-03187-D Document 91 Filed 08/01/11 Page 1 of 6

plaintiffs renewed their motion for class certification [D.E. 72]; and state inmate Sabrina Phillips moved to intervene as a plaintiffpursuant to Federal Rule ofCivil Procedure 24 [D.E. 73]. On July 21,2011, Magistrate Judge Gates held a status conference [D.E. 87].
As for defendant Barbosa's motion for appointment of counsel, on May 9,2011, the court directed him to file a financial affidavit on CJA Form 23, as well as a declaration stating the efforts he has made to secure counsel, no later than May 31,2011 [D.E. 68]. Barbosa has not filed anything in response to the order, and on May 24, 2011, the court received returned as undeliverable the copy of the order mailed to Barbosa [D.E. 70]. Accordingly, the court denies Barbosa's motion for appointment ofcounsel.
As for Sabrina Phillips's motion to intervene, Phillips seeks to intervene as a plaintiff and claims that she has suffered sexual abuse and harassment that are ''the same subject matter of the instant action." Mem. Supp. Mot. Intervene 2. She contends that her "ability to protect her interest in this matter may be impaired in the event that the defendants contend that [plaintiff] Etters is not an adequate class representative." Id. Phillips's proposed intervenor complaint "involves three additional defendants, and makes claims essentially the same [as the original complaint], except as to amounts of damages or other minor variations." Id. at 1. Defendants Bennett, Blalock, Harvey, Keller, and Kimble "concede that the claims Phillips seeks to bring are premised upon the same legal principles - violations ofthe Fourth and Eighth Amendments- as those the Plaintiffs still maintain," but object to Phillips's intervention because discovery has been underway for over two months and Phillips would be adding three additional defendants to the action. Mem. Opp'n Mot. Intervene 6.
The parties agree that Phillips's motion to intervene is governed by Federal Rule of Civil
1 Defendants Bennett, Blalock, Harvey, Keller, and Kimble have until August 8, 2011, to respond to the motion for class certification [D.E. 83].
2 Case 5:09-ct-03187-D Document 91 Filed 08/01/11 Page 2 of 6

Procedure 24, which provides for two types of intervention: permissive intervention and
intervention as of right. Federal Rule of Civil Procedure 24(a) permits (in pertinent part)
intervention as of right when the party seeking intervention "claims an interest relating to the
property or transaction that is the subject ofthe action, and is so situated that disposing ofthe action
may as a practical matter impair or impede the movant's ability to protect its interest, unless existing
parties adequately represent that interest." Federal Rule of Civil Procedure 24(b) permits (in
pertinent part) permissive intervention when the party seeking intervention "has a claim or defense
that shares with the main action a common question oflaw or fact." Phillips contends intervention
is appropriate under either rule. Mem. Supp. Mot. Intervene 1.
A party seeking intervention as of right
must ... satisfY four requirements. First, the intervenor must submit a timely motion to intervene in the adversary proceeding. Second, he must demonstrate a "direct and substantial interest" in the property or transaction. Third, he has to prove that the interest would be impaired if intervention was not allowed. Finally, he must establish that the interest is inadequately represented by existing parties.
In re Richman, 104 F.3d 654, 659 (4th Cir. 1997); see Virginia v. Westinghouse Elec. Cor.p., 542
F.2d 214,216 (4th Cir. 1976).
With respect to the fourth criteria, i.e. whether the movant['s] interest is adequately represented by existing parties, an intervenor's burden of showing inadequacy of representation is "minimal." Westinghouse, 542 F.2d at 216 (citing Trbovichv. United Mine Workers, 404 U.S. 528, 538 n.lO (1972)). However, "when the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance." Id.; Braggv. Robertson, 183 F.R.D. 494, 496 (S.D. W. Va. 1998). The presumption may be overcome if the moving party shows "adversity of interest, collusion, or nonfeasance." In re Richman, 104 F.3d at 660.
Diagnostic Devices. Inc. v. Taidoc Tech. Cor.p., 257 F.R.D. 96, 99 (W.D.N.C. 2009).
Here, Phillips's own arguments demonstrate that she is not entitled to intervene as ofright.
3
Case 5:09-ct-03187-D Document 91 Filed 08/01/11 Page 3 of 6

Phillips describes her claims as being "essentially the same" as those in the proposed class complaint, and contends only that the court may not "findD Ms. Etters to be []adequate as a class representative." Mem. SUpp. Mot. Intervene 2, 4. Thus, Phillips has not shown that her interests are adverse to the proposed class representatives. See Deutschman v. Beneficial Corp., 132 F.R.D. 359, 381 (D. Del. 1990) (denying intervention as of right because "[t]he possibility that [the proposed class representative] might in the future prove an inadequate class representative is insufficient to satisfy Rule 24(a)'s requirement that proposed intervenor's interests are not adequately represented by the current parties.... Fear offuture divergence ofinterests is insufficient to establish inadequate representation in the absence of a current conflict.").
In opposition to this conclusion, Phillips cites Simmons v. Bro:M!, 611 F.2d 65, 66 (4th Cir. 1979). In Simmons, the Fourth Circuit found that intervention as of right was appropriate after the district court dismissed the claims of the proposed class representatives on the merits. See id. at 66-67; see also Hill v. W. Elec. Co.. Inc., 672 F.2d 381,386 (4th Cir. 1982) (intervention as ofright in certified class action was timely where "the proposed intervenor moved to intervene as soon as it became clear ... that the interests of the unnamed class members would no longer be protected by the named class representatives." (quotation omitted)). Here, the court has not ruled on the motion for class certification, and has made no determination as to eitherthe appropriateness ofclass certification or the adequacy ofany proposed class representative. Thus, the court denies Phillips's motion to intervene as of right.
Permissive intervention is appropriate when the movant "has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b). Permissive intervention "lies within the sound discretion of the trial court." Hill, 672 F.2d at 385-86. Additionally, the motion must be "timely." Fed. R. Civ. P. 24(b).
4 Case 5:09-ct-03187-D Document 91 Filed 08/01/11 Page 4 of 6

Several factors determine if the application is timely: "how far the suit has progressed, the prejudice that delay might cause other parties, and the reason for the tardiness in moving to intervene." Scardelletti v. Debarr, 265 F3d 195, 203 (4th Cir. 2001), rev'd on other grounds, Devlin v. Scardelletti, 536 U.S. 1 (2002). The court should consider all factors together. For example, "[m]ere passage oftime is but one factor to be considered in light of all the circumstances." Spring Constr. Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980). Courts also focus more closely on how far the suit has progressed and the likelihood that intervention may unfairly disrupt some resolution of the case. See,!!.,&, Scardelletti, 265 F.3d at 202-03 (''The purpose of the [time] requirement is to prevent a tardy intervenor from derailing a lawsuit within sight ofthe [case's] terminal." (quoting United States v. South Bend CmD'. Sch. Corp., 710 F.2d 394, 396 (7th Cir. 1983))). Thus, the court's determination must focus on not only the delay's length, but also how the delay might be prejudicial and disruptive to the case's progress.
Wright v. Krispy Kreme Doughnuts. Inc., 231 F.R.D. 475, 478 (M.D.N.C. 2005).
Phillips's motion is untimely and will prejudice the current defendants. The case has already
gone through one round ofdispositive motions, and extensive discovery is well underway. Phillips
seeks to add three additional defendants, who may wish to move for dismissal pursuant to Rule
12(b)2 before answering the complaint and engaging in discovery. Phillips does not contend that her
intervention will "avoid a competing suit in state court," Pa. Nat'l Mut. Cas. Ins. Co. v. Perlberg, 268
F.R.D. 218, 226 (D. Md. 2010); see Diagnostic Devices. Inc., 257 F.R.D. at 100 (allowing
permissive intervention and stating that "[i]ntervention here may help avoid inconsistent results and
promote judicial economy"), nor could she. At the July 21, 2011 status conference, counsel for the
parties indicated that there are pending state court actions by other female state inmates with similar
allegations. Thus, the court denies Phillips's motion for permissive intervention. Finally, the other
cases that Phillips cites in support of permissive intervention fail to persuade the court, given that
they involved certified class actions. See Brown v. Eckerd Drugs. Inc., 663 F.2d 1268, 1278 (4th
2For example, defendants Bennett, Blalock, Harvey, Keller, and Kimble question whether Phillips has exhausted her administrative remedies. Mem. Opp'n Mot. Intervene 6.
5
Case 5:09-ct-03187-D Document 91 Filed 08/01/11 Page 5 of 6

Cir. 1981) (pennitting class member to intervene after trial as named representative), vacated on other grounds, 457 U.S. 1128 (1982); Muskelly v. Warner & Swasey Co., 653 F.2d 112 (4th Cir. 1981) (same); Lewis v. Gross, 663 F. Supp. 1164, 1173 n.3a (E.D.N.Y. 1986) (certifying class and allowing intervenors to "be designated as class representatives because they would further diversify the interests and character of the class representatives"); German v. Fed. Home Loan Mortg. Com., 899 F. Supp. 1155, 1166 (S.D.N.Y. 1995) (allowing intervention of additional named plaintiffs in a certified class action who "are appropriate class members and will provide the Court with additional material to review as this case progresses"); cf. Deutschman, 132 F.R.D. at 382 ("The court has certified the class only tentatively, pending resolution of the common issues.").
In sum, the court DENIES defendant Barbosa's motion for appointment ofcounsel [D.E. 52] and Sabrina Phillips's motion to intervene as a plaintiffpursuantto Federal Rule ofCivil Procedure 24 [D.E. 73].
SO ORDERED. This -'- day of August 2011.
r4s'C. DE~ntM
United States District Judge
6 Case 5:09-ct-03187-D Document 91 Filed 08/01/11 Page 6 of 6

 
 Appeal: 11-6515 Document: 14-1 Date Filed: 08/30/2011 Page: 1 of 2
FILED: August 30, 2011
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________ No. 11-6515 (5:09-ct-03187-D) ___________________
LOURETHA KING Plaintiff - Appellant
and SANDRA ETTERS; RONDA SINGLETARY; DEVEN DEAL
Plaintiffs v. BOYD BENNETT, Secretary, in his individual capacity; ALVIN KELLER, in his official capacity; ANNIE HARVEY, Administrator, in her individual and offical capacities; TIMOTHY KIMBLE, Administrator, in his individual and official capacities; UNIT MANAGER MOORE, in his individual capacity; UNIT MANAGER FORD, Assistant, in her individual capacity; CORRECTIONAL OFFICER WIGGINS, in his individual capacity; CORRECTIONAL OFFICER SIMS, in his official capacity; NURSE BARBOSA, in his individual capacity; LAMAR BLALOCK, Unit Manager, in his individual capacity; JESSICA JONES, Correctional Officer, in her individual capacity
Defendants - Appellees
Case 5:09-ct-03187-D Document 106 Filed 08/30/11 Page 1 of 2

Appeal: 11-6515 Document: 14-1 Date Filed: 08/30/2011 Page: 2 of 2
___________________ J U D G M E N T
___________________ In accordance with the decision of this court, this appeal is dismissed. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41.
/s/ PATRICIA S. CONNOR, CLERK
Case 5:09-ct-03187-D Document 106 Filed 08/30/11 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 
 No.5:09-CT-3187-D 


SANDRA ETTERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

SECRETARY REUBEN F. YOUNG,

)

et al.,l

)

)

Defendants.

)

ORDER

On November 18,2009, four state inmates filed this action under 42 U.S.C. § 1983 alleging

violations oftheir Fourth, Eighth, and FourteenthAmendment rights and seeking compensatory and

punitive damages and injunctive relief, based on allegations that various North Carolina Department

ofPublic SafetY ("DPS") employees have sexually assaulted, abused, or harassed them during their

confinement and that certain supervisors did nothing to prevent the abuse [D.E. 1]. On March 16,

2011, the court granted in part a motion by several defendants for judgment on the pleadings [D.E.

30], dismissed two plaintiffs and four defendants, and dismissed the remaining plaintiffs' First and

Fourteenth Amendment claims [D.E. 57]. Although plaintiffs have twice sought class certification

[D.E. 2, 72], the court has twice denied the motions without prejudice [D.E. 49, 120].

On May 18, 2012, plaintiffDeven Deal and defendants Keller, Bennett, Kimble, Harvey, and

Blalock ftled a joint stipulation of dismissal, seeking "[d]ismissal with [p]rejudice of [P]laintiff

1 Pursuant to Federal Rule of Civil Procedure 25(d), the court substitutes Secretary Young and CbiefDeputy Secretary Jennie Lancaster for former defendants Alvin Keller and Boyd Bennett. See [D.E. 130] 1 nn. 1-2.
2 Effective January 1,2012, the state ofNorth Carolina reorganized its executive branch by consolidating various agencies; the previous Department ofCorrection is now the Division ofAdult Correction, a subdivision ofthe Department ofPublic Safety. See N.C. Gen. Stat. § 143B-600(a)(1).
Case 5:09-ct-03187-D Document 133 Filed 05/30/12 Page 1 of 4

Deal's claims against these [d]efendants" [D.E. 129]. On May 21,2012, Deal filed a second notice of voluntary dismissal, seeking dismissal with prejudice of her claims against defendant Barbosa [D.E. 131]. On the same date, plaintiffSandra Etters and defendants Young, Lancaster, and Harvey filed a joint motion to expedite the entry of an order based on their proposed settlement agreement [D.E. 130], and Etters filed a motion for entry of default judgment against defendant Simms [D.E. 132].
As for plaintiff Deal's notices of voluntary dismissal, Federal Rule of Civil Procedure 41(a)(1) allows a plaintiffto dismiss an action voluntarily before an answer or summary judgment motion is filed or by stipulation ofthe parties. Fed. R. Civ. P. 41 (a)(1 )(A). Otherwise, the dismissal may be effected "only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). "The purpose of Rule 41(a)(2) is to allow voluntary dismissals unless the parties will be unfairly prejudiced." Howard v. Inova Health Care Servs., 302 F. App'x 166, 178 (4th Cir. 2008) (per curiam) (unpublished) (quotation omitted); see Davis v. USX Com., 819 F.2d 1270, 1273 (4th Cir. 1987). Relevant factors for the court's consideration of a Rule 41(a)(2) motion include "the opposing party's effort and expense in preparing for trial, excessive delay and lack of diligence on the part ofthe movant, and insufficient explanation of the need for a voluntary dismissal, as well as the present stage oflitigation." Howard, 302 F. App'x at 179 (citations and quotations omitted). Afterweighing all relevant factors, the court concludes that dismissal ofDeal's claims is appropriate, and grants the requests for voluntary dismissal.
As for plaintiff Etters's motion for entry of default judgment, the motion is granted. Etters also requests a "hearing to determine the amount of damages owed to Plaintiff by Defendant Simms." Mot. Default J. [D.E. 132] 1. The court refers the motion to Magistrate Judge James E.
2 

Case 5:09-ct-03187-D Document 133 Filed 05/30/12 Page 2 of 4

Gates for a hearing and recommendation on damages. See 28 U.S.C. § 636(b)(1)(A); Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007); Wimmer v. Cook, 774 F.2d 68, 72-74 (4th Cir. 1985).
As for Etters's and several defendants' motion to expedite the entry ofan order based on the parties' proposed settlement agreement, the court's ability to award prospective injunctive relief is circumscribed by the provisions of the Prisoner Litigation Reform Act, which provides in relevant part:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation ofthe Federal right, and is the least intrusive means necessary to correct the violation ofthe Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a); see Plyler v. Moore, 100 F.3d 365, 369-70 (4th Cir. 1996). Thus, "the court shall not enter or approve a consent decree unless it complies with the limitations on relief set forth in subsection (a)." 18 U.S.C. § 3626(c)(I). The parties have stipulated, and the court finds, that the relief provided in the parties' settlement agreement is narrowly drawn, extends no further than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. See Settlement Agmt. [D.E. 130-1] ~ 2. Accordingly, the court approves the parties' settlement agreement. Upon the motion ofany party or intervener, the reliefprovided in the parties' settlement agreement shall terminate two years following the date of entry of this order. 18 U.S.C. § 3626(b)(I)(A)(i). In addition, any party or intervener may, by motion, seek modification or termination ofthe prospective relief"to the extent that modification or termination would otherwise
3 

Case 5:09-ct-03187-D Document 133 Filed 05/30/12 Page 3 of 4

be legally permissible." Id. § 3626(b)(4). In swn, the court GRANTS plaintiffDeal's requests for a voluntary dismissal with prejudice
[D.E. 129. 131], and DISMISSES WITH PREJUDICE plaintiffDeal's claims. The court GRANTS the motion for default judgment against Simms [D.E. 132] and REFERS the motion to Magistrate Judge James E. Gates for a hearing and recommendation on damages. The court GRANTS the motion to expedite approval of the settlement agreement [D.E. 130], and hereby APPROVES the settlement agreement [D.E. 130-1], subject to the limitations of 18 U.S.C. § 3626.
SO ORDERED. This....I(L day of May 2012.
4 
 Case 5:09-ct-03187-D Document 133 Filed 05/30/12 Page 4 of 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No. 5:09-CT-3187-D

SANDRA ETTERS, et al.,

)

Plaintiffs, )

)

v.

)

)

SECRETARY KIERNAN SHANAHAN, )

et al.,

)

)

Defendants. )

ORDER

On February 6, 2013, Magistrate Judge Gates issued a Memorandum and Recommendation

("M&R") [D.E. 151, 153]. In that M&R, Judge Gates recommended that Etters be awarded

$100,000 in compensatory damages and $100,000 in punitive damages, for a total damages award

of$200,000 from defendant Charlie Cortez Simms. No party filed objections to the M&R.

"The Federal Magistrates Act requires a district court to make a de novo determination of

those portions ofthe [magistrate judge's] report or specified proposed findings or recommendations

to which objection is made." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,315

(4th Cir. 2005) (alteration in original) (emphasis removed) (quotation omitted). Absent a timely

objection, "a district court need not conduct a de novo review, but instead must only satisfy itselfthat

there is no clear error on the face of the record in order to accept the recommendation." Id.

(quotation omitted).

The court has reviewed the M&R [D.E. 151], the order correcting a typographical error in

the M&R [D.E. 153], the record, and the briefs. The court is satisfied that there is no clear error on

the face of the record. Accordingly, the court accepts the M&R. Etters is awarded $100,000 in

compensatory damages and $100,000 in punitive damages, for a total damages award of $200,000

from defendant Charlie Cortez Simms.
SO ORDERED. This A_ day ofMarch 2013.

Case 5:09-ct-03187-D Document 154 Filed 03/04/13 Page 1 of 1

 
 Case: 5:09-ct-03187-D As of: 06/19/2014 10:33 AM EDT 1 of 16
CLOSED,Exhibits,USMJ Gates
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:09−ct−03187−D

Etters et al v. Bennett et al Assigned to: Chief Judge James C. Dever, III Case in other court: 11−06515 Cause: 42:1983 Prisoner Civil Rights Plaintiff Sandra Etters
Plaintiff Ronda Singletary TERMINATED: 03/16/2011

Date Filed: 11/18/2009 Date Terminated: 03/04/2013 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Michele R. Luecking−Sunman North Carolina Prisoner Legal Services, Inc. P. O. Box 25397 Raleigh, NC 27611 919−856−2200 Fax: 856−2223 Email: mluecking−sunman@ncpls.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
April Marie Giancola N. C. Prisoner Legal Services, Inc. P. O. Box 25397 1110 Wake Forest Rd. Raleigh, NC 27611 919−865−4807 Fax: 919−856−2223 Email: agiancola@ncpls.org ATTORNEY TO BE NOTICED
Elizabeth Albiston N. C. Prisoner Legal Services, Inc. P. O. Box 25397 1110 Wake Forest Rd. Raleigh, NC 27611 919−856−2200 Fax: 919−856−2223 Email: ealbiston@ncpls.org ATTORNEY TO BE NOTICED
J. Phillip Griffin , Jr. N. C. Prisoner Legal Services, Inc. P. O. Box 25397 Raleigh, NC 27611−5397 919−856−2200 Fax: 856−2223 Email: pgriffin@ncpls.org ATTORNEY TO BE NOTICED
represented by Michele R. Luecking−Sunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
April Marie Giancola (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Albiston

Case: 5:09-ct-03187-D As of: 06/19/2014 10:33 AM EDT 2 of 16

(See above for address) ATTORNEY TO BE NOTICED

J. Phillip Griffin , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Deven Deal TERMINATED: 05/30/2012

represented by Michele R. Luecking−Sunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

April Marie Giancola (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Albiston (See above for address) ATTORNEY TO BE NOTICED

J. Phillip Griffin , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Louretha King TERMINATED: 03/16/2011

represented by Michele R. Luecking−Sunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

April Marie Giancola (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Albiston (See above for address) ATTORNEY TO BE NOTICED

J. Phillip Griffin , Jr. (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
Sabrina Phillips TERMINATED: 08/01/2011

represented by Elizabeth Albiston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Secretary Boyd Bennett in his individual capacity

represented by Joseph Finarelli N.C. Dept. of Justice P.O. Box 629 Raleigh, NC 27602 919−716−6531 Fax: 919−716−6761 Email: jfinarelli@ncdoj.gov

Case: 5:09-ct-03187-D As of: 06/19/2014 10:33 AM EDT 3 of 16

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly D. Grande N. C. Dept. of Justice 114 West Edenton St. P. O. Box 629 Raleigh, NC 27602−0629 919−716−6567 Email: kgrande@ncdoj.gov ATTORNEY TO BE NOTICED

Yvonne Bulluck Ricci N.C. Department of Justice P.O. Box 629 Raleigh, NC 27602−0629 919−716−6540 Fax: 919−716−6761 Email: yricci@ncdoj.gov TERMINATED: 07/14/2011

Defendant
Alvin Keller in his official capacity

represented by Joseph Finarelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly D. Grande (See above for address) ATTORNEY TO BE NOTICED

Yvonne Bulluck Ricci (See above for address) TERMINATED: 07/14/2011

Defendant
Administrator Annie Harvey in her individual and official capacities

represented by Joseph Finarelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly D. Grande (See above for address) ATTORNEY TO BE NOTICED

Yvonne Bulluck Ricci (See above for address) TERMINATED: 07/14/2011

Defendant
Administrator Timothy Kimble in his individual and official capacities

represented by Joseph Finarelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly D. Grande (See above for address) ATTORNEY TO BE NOTICED

Defendant
Unit Manager Moore in his individual capacity

represented by Joseph Finarelli (See above for address)

Case: 5:09-ct-03187-D As of: 06/19/2014 10:33 AM EDT 4 of 16

TERMINATED: 03/16/2011

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yvonne Bulluck Ricci (See above for address) ATTORNEY TO BE NOTICED

Defendant
Asst Unit Manager Ford in her individual capacity TERMINATED: 03/16/2011

represented by Joseph Finarelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yvonne Bulluck Ricci (See above for address) ATTORNEY TO BE NOTICED

Defendant
Correctional Officer Wiggins in his individual capacity TERMINATED: 03/16/2011

Defendant
Correctional Officer Sims in his official capacity

Defendant
Nurse Barbosa in his individual capacity

represented by Barbosa 116 Patterson Rd. Durham, NC 27704 PRO SE

Defendant
Unit Manager Lamar Blalock in his individual capacity

represented by Joseph Finarelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly D. Grande (See above for address) ATTORNEY TO BE NOTICED

Yvonne Bulluck Ricci (See above for address) TERMINATED: 07/14/2011

Defendant
Correctional Officer Jessica Jones in her individual capacity TERMINATED: 03/16/2011

represented by Joseph Finarelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/18/2009

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 04170000000001031436.), filed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. (Attachments: # 1 Exhibit Exhibit A − Sandra Etters Grievance, # 2 Exhibit Exhibit B − Ronda Singletary Grievance, # 3 Exhibit Exhibit C − Deven Deal Grievance, # 4 Exhibit Exhibit D − Louretha King Grievance) (Luecking−Sunman, Michele) (Entered: 11/18/2009)

Case: 5:09-ct-03187-D As of: 06/19/2014 10:33 AM EDT 5 of 16

11/18/2009 11/18/2009 11/19/2009 12/15/2009 12/15/2009 12/15/2009 12/15/2009 12/15/2009 12/15/2009 12/15/2009 12/15/2009 12/16/2009 12/16/2009
12/16/2009 12/17/2009 12/18/2009 12/22/2009 12/22/2009

2 MOTION to Certify Class by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. (Luecking−Sunman, Michele) (Entered: 11/18/2009)
3 Memorandum in Support re 2 MOTION to Certify Class filed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. (Attachments: # 1 Affidavit of James Aiken, Exhibit A) (Luecking−Sunman, Michele) (Entered: 11/18/2009)
Motions Submitted to Staff Counsel III re: 2 MOTION to Certify Class and case submitted for frivolity review. (Indig, A.) (Entered: 11/19/2009)
4 NOTICE of Appearance by Joseph Finarelli on behalf of Ford, Lamar Blalock, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore (Finarelli, Joseph) (Entered: 12/15/2009)
5 WAIVER OF SERVICE Returned Executed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. Boyd Bennett waiver sent on 11/19/2009 (Albiston, Elizabeth) (Entered: 12/15/2009)
6 WAIVER OF SERVICE Returned Executed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. Alvin Keller waiver sent on 11/19/2009 (Albiston, Elizabeth) (Entered: 12/15/2009)
7 WAIVER OF SERVICE Returned Executed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. Annie Harvey waiver sent on 11/19/2009 (Albiston, Elizabeth) (Entered: 12/15/2009)
8 WAIVER OF SERVICE Returned Executed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. Timothy Kimble waiver sent on 11/19/2009 (Albiston, Elizabeth) (Entered: 12/15/2009)
9 WAIVER OF SERVICE Returned Executed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. Moore waiver sent on 11/19/2009. (Albiston, Elizabeth) (Entered: 12/15/2009)
10 WAIVER OF SERVICE Returned Executed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. Ford waiver sent on 11/19/2009. (Albiston, Elizabeth) (Entered: 12/15/2009)
11 WAIVER OF SERVICE Returned Executed by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. Lamar Blalock waiver sent on 11/19/2009. (Albiston, Elizabeth) (Entered: 12/15/2009)
12 NOTICE of Appearance by Yvonne Bulluck Ricci on behalf of Ford, Lamar Blalock, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore (Ricci, Yvonne) (Entered: 12/16/2009)
NOTICE OF DEFICIENCY re: 12 Notice of Appearance. Filing attorney's name does not appear on the docket sheet. Please refile notice and be sure to choose which defendants you are representing and that there is a check mark in the appropriate box(es). Thank you. (Indig, A.) (Entered: 12/16/2009)
13 NOTICE of Appearance by Yvonne Bulluck Ricci on behalf of Ford, Lamar Blalock, Louretha King, Boyd Bennett, Alvin Keller, Annie Harvey, Moore (Ricci, Yvonne) (Entered: 12/16/2009)
NOTICE OF CORRECTION re: 13 Notice of Appearance. Attorney Ricci was accidentally listed as attorney for plaintiff King. She has now been deleted as attorney for plaintiff King. (Indig, A.) (Entered: 12/17/2009)
14 ORDER DIRECTING CLERK TO CONTINUE MANAGEMENT OF CASE. Signed by Judge James C. Dever, III on 12/18/2009. (Indig, A.) (Entered: 12/18/2009)
15 MOTION for Extension of Time to File Answer or Otherwise Plead by Ford, Lamar Blalock, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 12/22/2009)
16 MOTION for Extension of Time to File Response/Reply as to Motions Submitted by Ford, Lamar Blalock, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 12/22/2009)

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12/23/2009
12/23/2009
02/05/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/24/2010 02/24/2010 03/09/2010 03/17/2010 03/17/2010 03/17/2010 03/17/2010 03/26/2010
03/26/2010

17 ORDER granting 15 Motion for Extension of Time to Answer Ford answer due 2/17/2010; Lamar Blalock answer due 2/17/2010; Boyd Bennett answer due 2/17/2010; Alvin Keller answer due 2/17/2010; Annie Harvey answer due 2/17/2010; Timothy Kimble answer due 2/17/2010; Moore answer due 2/17/2010.. Signed by Iavarone, Clerk of Court on 12/23/2009. (McDowell, G.) (Entered: 12/23/2009)
18 ORDER granting 16 Motion for Extension of Time to File Response − up to and including 30 days from the date of the filing of an Answer or other responsive pleading to the Class Action Complaint. Signed by Iavarone, Clerk of Court on 12/23/2009. (McDowell, G.) (Entered: 12/23/2009)
26 Summons Issued as to Wiggins, Sims, Barbosa, Jessica Jones. (McDowell, G.) (Entered: 02/17/2010)
19 ANSWER to 1 Complaint, with Jury Demand by Alvin Keller. (Finarelli, Joseph) (Entered: 02/16/2010)
20 ANSWER to 1 Complaint, with Jury Demand by Annie Harvey. (Finarelli, Joseph) (Entered: 02/16/2010)
21 ANSWER to 1 Complaint, with Jury Demand by Timothy Kimble. (Finarelli, Joseph) (Entered: 02/16/2010)
22 ANSWER to 1 Complaint, with Jury Demand by Boyd Bennett. (Finarelli, Joseph) (Entered: 02/16/2010)
23 ANSWER to 1 Complaint, with Jury Demand by Lamar Blalock. (Finarelli, Joseph) (Entered: 02/16/2010)
24 ANSWER to 1 Complaint, with Jury Demand by Ford. (Finarelli, Joseph) (Entered: 02/16/2010)
25 ANSWER to 1 Complaint, with Jury Demand by Moore. (Finarelli, Joseph) (Entered: 02/16/2010)
27 NOTICE of Appearance by Joseph Finarelli on behalf of Jessica Jones (Finarelli, Joseph) (Entered: 02/24/2010)
28 ANSWER to 1 Complaint, with Jury Demand by Jessica Jones. (Finarelli, Joseph) (Entered: 02/24/2010)
29 MOTION for Extension of Time to File Answer by Charlie Simms. (Attachments: # 1 Envelope) (Indig, A.) (Entered: 03/09/2010)
30 MOTION for Judgment on the Pleadings by Ford, Lamar Blalock, Jessica Jones, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 03/17/2010)
31 AFFIDAVIT re 30 MOTION for Judgment on the Pleadings of Franklin E. Rogers by Ford, Lamar Blalock, Jessica Jones, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 03/17/2010)
32 Memorandum in Support re 30 MOTION for Judgment on the Pleadings filed by Ford, Lamar Blalock, Jessica Jones, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 03/17/2010)
33 RESPONSE to Motion re 2 MOTION to Certify Class in Opposition filed by Ford, Lamar Blalock, Jessica Jones, Boyd Bennett, Alvin Keller, Annie Harvey, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 03/17/2010)
34 MOTION for Extension of Time to File Response/Reply as to 33 Response to Motion, 30 MOTION for Judgment on the Pleadings by Sandra Etters, Ronda Singletary, Deven Deal, Louretha King. (Attachments: # 1 Text of Proposed Order Proposed Order) (Albiston, Elizabeth) (Entered: 03/26/2010)
35 NOTICE of Appearance by J. Phillip Griffin, Jr on behalf of all plaintiffs (Griffin, J.) (Entered: 03/26/2010)

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03/29/2010 05/24/2010 05/24/2010 06/02/2010 06/07/2010 06/07/2010
06/09/2010 06/10/2010 06/10/2010 06/10/2010 06/30/2010 07/07/2010 08/24/2010 08/27/2010 09/10/2010

36 ORDER granting 34 MOTION for Extension of Time to File Response as to 33 Response to Motion, 30 MOTION for Judgment on the Pleadings. Responses due by 6/7/2010. Signed by Clerk of Court by J. Skinner on 3/29/2010. (Shannon, K.) (Entered: 03/29/2010)
37 First MOTION for Extension of Time to Effect Service on Defendant Barbosa by Deven Deal. (Attachments: # 1 Text of Proposed Order Proposed Order to Extend Time to Effect Service on Defendant Barbosa) (Luecking−Sunman, Michele) (Entered: 05/24/2010)
38 AFFIDAVIT of Service for Summons and Complaint served on Alberto Barbosa on May 18, 2010, filed by Deven Deal. (Luecking−Sunman, Michele) (Entered: 05/25/2010)
39 ORDER granting 37 Motion for Extension of Time to effect service on Defendant Barbosa. Signed by Judge James C. Dever, III on 6/2/2010. (Indig, A.) (Entered: 06/02/2010)
40 RESPONSE in Opposition − re: 30 MOTION for Judgment on the Pleadings filed by Deven Deal, Sandra Etters, Louretha King, Ronda Singletary. (Attachments: # 1 Exhibit Copy of Mitchell v. Rappahannock Regional Jail Authority, unpublished opinion) (Luecking−Sunman, Michele) (Entered: 06/07/2010)
41 REPLY to Response to Motion − re: 2 MOTION to Certify Class filed by Deven Deal, Sandra Etters, Louretha King, Ronda Singletary. (Attachments: # 1 Index of Affidavits, # 2 Affidavit of Judith Bell, # 3Affidavit of Crystal Benson, # 4Affidavit of Athana Gamble, # 5 Affidavit of Teresa Halsey, # 6Affidavit of Tia Jones, # 7 Affidavit of Andrea Maxwell, # 8 Affidavit of Tara McCullough, # 9 Affidavit of Adrienne Smith, # 10Affidavit of Cathy Lopez, # 11 Affidavit of Derrick Oliver, # 12 Affidavit of Wendy Hardin) (Luecking−Sunman, Michele) (Entered: 06/07/2010)
42 REPLY to Response to Motion − re: 30 MOTION for Judgment on the Pleadings filed by Boyd Bennett, Lamar Blalock, Ford, Annie Harvey, Jessica Jones, Alvin Keller, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 06/09/2010)
43 AMENDED DOCUMENT by Boyd Bennett, Lamar Blalock, Ford, Annie Harvey, Jessica Jones, Alvin Keller, Timothy Kimble, Moore. Amendment to 42 Reply to Response to Motion Corrected Certificate of Service. (Finarelli, Joseph) (Entered: 06/10/2010)
44 MOTION to Strike by Boyd Bennett, Lamar Blalock, Ford, Annie Harvey, Jessica Jones, Alvin Keller, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 06/10/2010)
45 Memorandum in Support − re: 44 MOTION to Strike filed by Boyd Bennett, Lamar Blalock, Ford, Annie Harvey, Jessica Jones, Alvin Keller, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 06/10/2010)
46 RESPONSE in Opposition re 44 MOTION to Strike filed by Deven Deal, Sandra Etters, Louretha King, Ronda Singletary. (Attachments: # 1 Exhibit Text of Unpublished Opinion, Signature Flight Support v. Landow Aviation Ltd. Partnership) (Luecking−Sunman, Michele) (Entered: 06/30/2010)
Motions Submitted to Staff Counsel III re: 2 MOTION to Certify Class, 44 MOTION to Strike, 30 MOTION for Judgment on the Pleadings, 29 MOTION for Extension of Time to File Answer (Indig, A.) (Entered: 07/07/2010)
47 Notice to Counsel of Failure to Make Service within 120 Days regarding defendants Correctional Officer Wiggins and Correctional Officer Sims. (Indig, A.) (Entered: 08/24/2010)
48 AFFIDAVIT of Service for Summons and Complaint served on Charlie Cortez Simms on 2/18/2010, filed by Sandra Etters. (Attachments: # 1 Exhibit Certified Mail Receipt) (Luecking−Sunman, Michele) (Entered: 08/27/2010)
49 ORDER − denying without prejudice 2 Motion to Certify Class. Granting 29 Motion for Extension of Time to Answer. Not later than September 27, 2010, the Office ofthe Attorney General shall notify the court whether it will represent

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09/17/2010 09/30/2010 10/06/2010 10/07/2010 11/01/2010 11/10/2010 02/14/2011 02/24/2011 02/25/2011 03/16/2011
03/16/2011 04/05/2011 04/06/2011
04/07/2011 04/12/2011

Simms and Barbosa. Signed by Judge James C. Dever III on 9/10/2010. (Indig, A.) (Entered: 09/10/2010)
50 RESPONSE by Defendants Boyd Bennett, Lamar Blalock, Ford, Annie Harvey, Jessica Jones, Alvin Keller, Timothy Kimble, Moore − re: 49 Order on Motion for Extension of Time to Answer, Order on Motion to Certify Class. (Finarelli, Joseph) (Entered: 09/17/2010)
51 RESPONSE to Order − re: 49 Order on Motion for Extension of Time to Answer, Order on Motion to Certify Class, Supplemental Response filed by Boyd Bennett, Lamar Blalock, Ford, Annie Harvey, Jessica Jones, Alvin Keller, Timothy Kimble, Moore. (Finarelli, Joseph) (Entered: 09/30/2010)
52 MOTION for Extension of Time to File Answer − re: 1 Complaint, and MOTION to Appoint Counsel by Alberto Barbosa. (Indig, A.) (Entered: 10/07/2010)
Motion Submitted to Judge Dever re: 52 MOTION for Extension of Time to File Answer re 1 Complaint, MOTION to Appoint Counsel. (Indig, A.) (Entered: 10/07/2010)
53 ORDER granting 52 Motion for Extension of Time to Answer. Defendant Barbosa's answer due 11/10/2010. Signed by Judge James C. Dever III on 11/1/2010. (Indig, A.) (Entered: 11/01/2010)
54 ANSWER to 1 Complaint (and all other documents) by Alberto Barbosa. (Indig, A.) (Entered: 11/10/2010)
55 First MOTION for Entry of Default Against Defendant Simms by Sandra Etters. (Luecking−Sunman, Michele) (Entered: 02/14/2011)
Motion Submitted to Clerk of Court re: 55 First MOTION for Entry of Default Against Defendant Simms. (McDowell, G.) (Entered: 02/24/2011)
56 ORDER granting 55 Motion for Entry of Default against defendant Correctional Officer Sims. Signed by Dennis P. Iavarone, Clerk of Court on 2/25/2011. (Taylor, B.) (Entered: 02/25/2011)
57 ORDER granting in part and denying in part 30 Motion for Judgment on the Pleadings; the claims of plaintiffs Singletary and King are DISMISSED; defendants Moore, Ford, Wiggins, and Jones are DISMISSED; plaintiff Etter's claims against Simms and the supervisory defendants (except Kimble) under the Fourth and the Eighth Amendment survive, but her Fourteenth Amendment claim fails; plaintiff Deal, her Fourth and Eighth Amendment claims against Barbosa and the supervisory defendants (except Kimble) survive, her Fourth Amendment claim against Blalock and the supervisory defendants (except Harvey) survives, but her Eighth Amendment claim against Blalock fails as does her Fourteenth Amendment claim; dismissing Etters and Deal's First Amendment and Fourteenth Amendment class claims; and denying as moot 44 Motion to Strike. Signed by District Judge James C. Dever, III on 3/16/2011. (McDowell, G.) (Entered: 03/16/2011)
58 Request for Discovery Stipulation. (McDowell, G.) (Entered: 03/16/2011)
59 STIPULATION OF DISCOVERY BY PLAINTIFFS AND DEFENDANTS BENNETT, KELLER, HARVEY, KIMBLE AND BLALOCK by Deven Deal, Sandra Etters. (Luecking−Sunman, Michele) (Entered: 04/05/2011)
NOTICE OF DEFICIENCY re: 59 Stipulation of Discovery; Pursuant to Local Civil Rule 6.1, or the judges practice preferences on the courts website, counsel must submit a proposed order. The order must be filed electronically using the event PROPOSED ORDER located in the RESPONSES AND REPLIES category. Additionally, the judge's practice preferences MAY require counsel to email the proposed order in a word processing format. (King, K.) (Entered: 04/06/2011)
60 Proposed Order re 59 Stipulation of Discovery filed by Deven Deal, Sandra Etters. (Luecking−Sunman, Michele) (Entered: 04/07/2011)
61 NOTICE OF INTERLOCUTORY APPEAL as to 57 Order on Motion for Judgment on the Pleadings by Louretha King. (Attachments: # 1 Letter from Court of Appeals # 2 Envelope) (Indig, A.) (Entered: 04/13/2011)

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04/13/2011 04/18/2011
04/21/2011 04/28/2011 04/29/2011
04/29/2011 05/02/2011 05/09/2011 05/09/2011
05/18/2011 05/24/2011 06/13/2011
06/28/2011 06/28/2011 06/28/2011 06/28/2011 06/28/2011

62 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 61 Notice of Interlocutory Appeal. (Indig, A.) (Entered: 04/13/2011)
63 ORDER − The court shall hold a scheduling conference on Thursday, 28 April 2011, at 2:30 p.m. in the Sixth Floor Courtroom of the Terry Sanford Federal Building, 310 New Bern Avenue, Raleigh, North Carolina. Signed by Magistrate Judge James E. Gates on 4/18/2011. (Taylor, B.) (Entered: 04/18/2011)
64 US Court of Appeals Case Number 11−6515 (Joy Moore) for 61 Notice of Interlocutory Appeal filed by Louretha King. (Indig, A.) (Entered: 04/21/2011)
65 Minute Entry for proceedings held before Magistrate Judge James E. Gates re: Scheduling Conference held on 4/28/2011. (Court Reporter FTR Gold) (Indig, A.) (Entered: 04/28/2011)
66 SCHEDULING ORDER: Plaintiffs' renewed motion for class certification shall be filed by 28 June 2011. Discovery due by 4/6/2012. Dispositive Motions due by 5/7/2012. The first status conference with the parties shall be held on Thursday, 16 June 2011, at 2:30 p.m. in the 6th Floor Courtroom, 310 New Bern Avenue, Raleigh, NC. Counsel is advised to refer to entire Scheduling Order for critical deadlines and other provisions. Signed by Magistrate Judge James E. Gates on 4/29/2011. (Indig, A.) (Entered: 04/29/2011)
**** Set Hearings: Status Conference set for 6/16/2011 at 02:30 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. (Indig, A.) (Entered: 04/29/2011)
Assembled Electronic Record on Appeal transmitted to 4th Circuit Court of Appeals re 61 Notice of Interlocutory Appeal. (Indig, A.) (Entered: 05/02/2011)
67 ORDER of US Court of Appeals as to 61 Notice of Interlocutory Appeal filed by Louretha King − The court grants appellant leave to proceed without full prepayment of fees. (McDowell, G.) (Entered: 05/09/2011)
68 ORDER − directing Barbosa to file a (1) financial affidavit on CJA Form 23 and (2) declaration stating the efforts he has made to secure counsel. Response due by 5/31/2011. Signed by US District Judge James C. Dever, III on 5/9/2011. CJA 23 sent to defendant. (McDowell, G.) (Entered: 05/09/2011)
69 Mail Returned as Undeliverable. Mail sent to Alberto Barbosa. Notation on envelope states "Not Deliverable as Addressed − Unable to Forward." (Attachments: # 1 Envelope) (Indig, A.) (Entered: 05/20/2011)
70 Mail Returned as Undeliverable. Mail sent to Alberto Barbosa. Notation on envelope states "No Such Number." No forwarding address provided. (Attachments: # 1 Envelope) (Indig, A.) (Entered: 05/31/2011)
71 ORDER − GRANTING request to continue status conference. Status Conference reset for 7/21/2011 at 2:30 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 6/13/2011. (Indig, A.) (Entered: 06/13/2011)
72 Second MOTION to Certify Class by Sandra Etters. (Luecking−Sunman, Michele) (Entered: 06/28/2011)
73 MOTION to Intervene by Sabrina Phillips. (Attachments: # 1 Exhibit Intervening Complaint, # 2 Exhibit A of Intervening Complaint) (Albiston, Elizabeth) (Entered: 06/28/2011)
74 Memorandum in Support re 73 MOTION to Intervene by Sabrina Phillips. (Albiston, Elizabeth) (Entered: 06/28/2011)
75 REQUEST FOR WAIVER of Service sent to Bianca Harris on 6/28/11 by Sabrina Phillips. Waiver of Service due by 8/27/2011. (Albiston, Elizabeth) (Entered: 06/28/2011)
76 REQUEST FOR WAIVER of Service sent to Bennie Moore on 6/28/2011 by Sabrina Phillips. Waiver of Service due by 8/27/2011. (Albiston, Elizabeth) (Entered: 06/28/2011)

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06/28/2011
06/28/2011 06/29/2011 07/01/2011 07/14/2011 07/14/2011 07/15/2011 07/19/2011 07/19/2011 07/20/2011 07/21/2011
07/25/2011 08/01/2011 08/01/2011

77 Memorandum in Support re 72 Second MOTION to Certify Class filed by Sandra Etters. (Attachments: # 1 Index of Affidavits, # 2 Affidavit of Sabrina Phillips, # 3 Affidavit of Barbara Covington, # 4 Affidavit of Eva Barlowe, # 5 Affidavit of Lauren Crowe, # 6 Affidavit of Melissa Strange, # 7 Affidavit of Lisa Dunlap, # 8 Affidavit of Patricia Smith, # 9 Affidavit of Victoria Ross, # 10 Affidavit of Cathy Phillips, # 11 Affidavit of Elizabeth Adams, # 12 Affidavit of Kathy Thompson, # 13 Affidavit of April Harris, # 14 Affidavit of Shaheedah Rushdan, # 15 Affidavit of Linda Smith) (Luecking−Sunman, Michele) (Entered: 06/28/2011)
78 REQUEST FOR WAIVER of Service sent to Supervisor John Doe on 6/28/2011 by Sabrina Phillips. Waiver of Service due by 8/27/2011. (Albiston, Elizabeth) (Entered: 06/28/2011)
79 Mail Returned as Undeliverable. Mail sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) Modified on 7/15/2011 to correct name of sent mail.(Blankenship, T.) (Entered: 06/29/2011)
80 NOTICE of Appearance by Kimberly D. Grande on behalf of Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Grande, Kimberly) (Entered: 07/01/2011)
81 Notice of Substitution of Counsel by Yvonne Bulluck Ricci on behalf of Boyd Bennett, Lamar Blalock, Annie Harvey and Alvin Keller. (Ricci, Yvonne) (Entered: 07/14/2011)
82 MOTION for Extension of Time to File Response/Reply as to 72 Second MOTION to Certify Class by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Grande, Kimberly) (Entered: 07/14/2011)
83 ORDER granting 82 Motion for Extension of Time to File Response re: 72 Second MOTION to Certify Class. Response is due by August 8, 2011. Signed by Dennis P. Iavarone, Clerk of Court on 7/14/2011. (Taylor, B.) (Entered: 07/15/2011)
84 RESPONSE in Opposition re 73 MOTION to Intervene filed by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Finarelli, Joseph) (Entered: 07/19/2011)
85 Memorandum in Opposition re 84 Response in Opposition to Motion, 73 MOTION to Intervene filed by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Finarelli, Joseph) (Entered: 07/19/2011)
86 NOTICE of Appearance by April Marie Giancola on behalf of All Plaintiffs. (Giancola, April) (Entered: 07/20/2011)
87 Minute Entry for proceedings held before Magistrate Judge James E. Gates in Raleigh − Status Conference held on 7/21/2011. Parties from both sides present. Oral arguments made. Parties are given until August 4th to either file a joint proposed protective order or separate motions advocating for their particular proposed protective order. Response, if necessary, to be filed by August 18th. Next status conference set for August 25th at 2:30 am in the 6th Floor Courtroom. Written Order to Follow. (Court Reporter − FTR) (Powers, S.) (Entered: 07/21/2011)
88 Order Setting Hearings − Status Conference set for 8/25/2011 at 2:30 PM in Raleigh − 5th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 7/25/2011. Counsel should read the entire order for critical dates and deadlines. (Indig, A.) (Entered: 07/25/2011)
89 MOTION for Protective Order by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Attachments: # 1 Defendants' Proposed Protective Order) (Finarelli, Joseph) (Entered: 08/01/2011)
90 Memorandum in Support re 89 MOTION for Protective Order filed by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Attachments: # 1 Plaintiffs' Proposed Protective Order, # 2 E−Mail Communications) (Finarelli, Joseph) (Entered: 08/01/2011)

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08/01/2011 08/01/2011 08/01/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/03/2011 08/08/2011 08/08/2011
08/16/2011 08/16/2011
08/16/2011 08/16/2011
08/17/2011 08/17/2011 08/17/2011

91 ORDER denying 52 Motion to Appoint Counsel ; denying 73 Motion to Intervene. Signed by US District Judge James C. Dever, III on 8/1/2011. Copy mailed to defendant Barbosa. (McDowell, G.) (Entered: 08/01/2011)
93 Mail Returned as Undeliverable. Mail (order DE# 83) sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Indig, A.) (Entered: 08/02/2011)
94 Mail Returned as Undeliverable. Mail (order DE# 88) sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Indig, A.) (Entered: 08/02/2011)
92 ORDER − Referred to Magistrate Judge James E. Gates re 89 Motion for Protective Order. Signed by District Judge James C. Dever III on 8/1/2011. (Indig, A.) (Entered: 08/02/2011)
MOTION REFERRED to Magistrate Judge James E. Gates re: 89 MOTION for Protective Order. (Indig, A.) (Entered: 08/02/2011)
95 First MOTION for Protective Order by Deven Deal, Sandra Etters. (Attachments: # 1 Text of Proposed Order) (Griffin, J.) (Entered: 08/02/2011)
96 Memorandum in Support of Plainitiffs' Motion for Protective Order filed by Deven Deal and Sandra Etters. (Attachments: # 1 Exhibit Order entered in McDonald v. Suggs, No. 5:07−CV−339−D) (Griffin, J.) (Entered: 08/02/2011)
97 ORDER REFERRING MOTION to Magistrate Judge James E. Gates re: 95 First MOTION for Protective Order filed by Sandra Etters and Deven Deal. Signed by District Judge James C. Dever III on 8/2/2011. (Indig, A.) (Entered: 08/03/2011)
98 RESPONSE in Opposition re 72 Second MOTION to Certify Class filed by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Finarelli, Joseph) (Entered: 08/08/2011)
99 Memorandum in Opposition re 98 Response in Opposition to Motion, 72 Second MOTION to Certify Class filed by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Attachments: # 1 Exhibit Inmate Sexual Abuse and Harassment Policy) (Finarelli, Joseph) (Entered: 08/08/2011)
100 RESPONSE in Opposition re 95 First MOTION for Protective Order filed by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Finarelli, Joseph) (Entered: 08/16/2011)
101 Memorandum in Opposition re 95 First MOTION for Protective Order, 100 Response in Opposition to Motion filed by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller and Timothy Kimble. (Attachments: # 1 Exhibit Griffith v. Keller, 2010 N.C. App. LEXIS 412, # 2 Exhibit Protective Order in Buyer's Direct, Inc. v. Belk, Inc., 2011 U.S. Dist. LEXIS 41005) (Finarelli, Joseph) (Entered: 08/16/2011)
102 Mail Returned as Undeliverable. Mail (order DE# 91) sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) (Entered: 08/16/2011)
103 REPLY to Response to Motion re 72 Second MOTION to Certify Class filed by Deven Deal, Sandra Etters. (Attachments: # 1 Exhibit Division Of Prisons Policy &Procedure Manual Chapter F.3401−.3407 (Superceded June 11, 2010, # 2 Affidavit of Ciarra Carnes, # 3 Affidavit of Joquette Rawlings, # 4 Affidavit of Tammy Long, # 5 Exhibit ACIS Printout re Bruce O'Neill) (Griffin, J.) (Entered: 08/16/2011)
Motion referred to US Magistrate Judge James E. Gates re: 72 Second MOTION to Certify Class. (Blankenship, T.) (Entered: 08/17/2011)
Motions No Longer Referred: 72 Second MOTION to Certify Class. (Blankenship, T.) (Entered: 08/17/2011)
Motion Submitted to Staff Counsel III re: 72 Second MOTION to Certify Class. (Blankenship, T.) (Entered: 08/17/2011)

Case: 5:09-ct-03187-D As of: 06/19/2014 10:33 AM EDT 12 of 16

08/24/2011
08/30/2011 08/30/2011 08/31/2011 09/21/2011 09/26/2011 10/03/2011 10/27/2011 11/01/2011
11/01/2011 11/09/2011 12/02/2011 12/29/2011 12/29/2011 01/05/2012
01/06/2012
01/06/2012

104 Order − The status conference that had been scheduled in this case for 25 August 2011 (see D.E. 88) is CANCELLED. The next Status Conference is set for 9/29/2011 2:00 PM in Raleigh − 5th Floor Courtroom before Magistrate Judge James E. Gates. Signed by US Magistrate Judge James E. Gates on 8/24/2011. (Taylor, B.) (Entered: 08/24/2011)
105 Unpublished Opinion from Fourth Circuit Court of Appeals − DISMISSED. (McDowell, G.) (Entered: 08/30/2011)
106 US Court of Appeals Judgment as to 61 Notice of Interlocutory Appeal filed by Louretha King. (McDowell, G.) (Entered: 08/30/2011)
107 Mail − Order filed 8/24/2011 − Returned as Undeliverable which was sent to Barbosa. (McDowell, G.) (Entered: 09/01/2011)
108 MANDATE of US Court of Appeals (certified copy) as to 61 Notice of Interlocutory Appeal filed by Louretha King. (Indig, A.) (Entered: 09/21/2011)
109 Order Re−Setting Hearing − Status Conference reset for 10/27/2011 at 2:00 PM in Raleigh − 5th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 9/26/2011. (Indig, A.) (Entered: 09/26/2011)
110 Mail Returned as Undeliverable. Mail (Order DE#109) sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) (Entered: 10/03/2011)
111 Minute Entry for proceedings held before US Magistrate Judge James E. Gates: Status Conference held on 10/27/2011. (Court Reporter FTR Gold) (McDowell, G.) (Entered: 10/27/2011)
112 ORDER − GRANTING IN PART and DENYING IN PART 89 Motion for Protective Order and 95 Motion for Protective Order. The court will enter an appropriate protective order contemporaneously with this order. Signed by Magistrate Judge James E. Gates on 10/31/2011. (Indig, A.) (Entered: 11/01/2011)
113 PROTECTIVE ORDER. Signed by Magistrate Judge James E. Gates on 10/31/2011. (Indig, A.) (Entered: 11/01/2011)
114 Mail Returned as Undeliverable. Mail (Order DE# 112 and Protective Order DE# 113) sent to Alberto Barbosa. No forwarding address provided. (Attachments: # 1 Protective Order, # 2 Envelope) (Blankenship, T.) (Entered: 11/09/2011)
115 Order Setting Hearing − Status Conference set for 1/5/2012 at 3:30 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 12/2/2011. (Indig, A.) (Entered: 12/02/2011)
116 Joint MOTION to Amend/Correct 66 Scheduling Order by Deven Deal and Sandra Etters. (Attachments: # 1 Text of Proposed Order) (Albiston, Elizabeth) (Entered: 12/29/2011)
MOTION REFERRED to US Magistrate Judge James E. Gates re: 116 Joint MOTION to Amend 66 Scheduling Order . (Blankenship, T.) (Entered: 12/29/2011)
117 Minute Entry for proceedings held in Raleigh before US Magistrate Judge James E. Gates: Status Conference held on 1/5/2012. Counsel for plaintiff and defendant present for proceedings. (Court Reporter FTR Gold) (McDowell, G.) (Entered: 01/05/2012)
118 ORDER − GRANTING 116 Motion to Amend the Scheduling Order. The next status conference is scheduled for 2/9/2012 at 2:00 pm in the Sixth Floor Courtroom, Raleigh, NC. Signed by Magistrate Judge James E. Gates on 1/5/2012. Counsel should read the entire order for critical dates and deadlines. (Indig, A.) (Entered: 01/06/2012)
119 NOTICE of Hearing − Status Conference set for 2/9/2012 at 2:00 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. (Indig, A.) (Entered: 01/06/2012)

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01/09/2012 02/07/2012 03/08/2012 03/09/2012
03/14/2012 03/14/2012 03/19/2012 04/19/2012 04/19/2012
05/18/2012 05/21/2012 05/21/2012 05/21/2012 05/21/2012 05/22/2012 05/30/2012

120 ORDER − DENYING WITHOUT PREJUDICE 72 Motion to Certify Class. Signed by Chief Judge James C. Dever III on 1/9/2012. (Indig, A.) (Entered: 01/09/2012)
121 Order − The status conference scheduled for 9 February 2012 is CANCELLED. The next Status Conference is set for 3/8/2012 at 1:30 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 2/7/2012. (Indig, A.) (Entered: 02/07/2012)
122 Minute Entry for proceedings held before Magistrate Judge James E. Gates − Status Conference held on 3/8/2012. Counsel for plaintiffs and defendants present. (Court Reporter FTR Gold) (Indig, A.) (Entered: 03/08/2012)
123 Order − The parties' request for an extension of the discovery deadline is ALLOWED and the Scheduling Order (D.E. 66, amended at D.E. 118) is modified. The parties shall participate in a court−hosted settlement conference on plaintiffs' damages claims in accordance with Local ADR Rule 101.2, E.D.N.C. to be held no later than 30 April 2012 before Magistrate Judge David W. Daniel. The next Status Conference is set for 4/19/2012 at 1:30 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 3/8/2012. Attorneys should read the entire order for critical dates and deadlines. (Indig, A.) (Entered: 03/09/2012)
124 MOTION to Take Deposition from Sandra Etters by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller, Timothy Kimble. (Attachments: # 1 Text of Proposed Order Attachment A, "Proposed Order") (Grande, Kimberly) (Entered: 03/14/2012)
MOTION REFERRED to Magistrate Judge James E. Gates re: 124 MOTION to Take Deposition from Sandra Etters. (Indig, A.) (Entered: 03/14/2012)
125 WITHDRAWAL of Motion by Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller, Timothy Kimble. re 124 MOTION to Take Deposition from Sandra Etters filed by Annie Harvey, Alvin Keller, Timothy Kimble, Lamar Blalock, Boyd Bennett . (Grande, Kimberly) (Entered: 03/19/2012)
127 Minute Entry for proceedings held before Magistrate Judge James E. Gates − Status Conference held on 4/19/2012 in Raleigh, NC. Attorneys for Plaintiff and Defendant present. (Court Reporter FTR Gold) (Indig, A.) (Entered: 04/19/2012)
128 TEXT ORDER − Status conference held with counsel for the parties. Parties had previously advised court that all claims had been settled and that they needed until 3 May 2012 to finalize their settlement. (See D.E. 126). At the conference, parties requested 30 days from today in which to complete the settlement. The motion is ALLOWED. The parties shall file no later than 21 May 2012 all documents necessary to effect termination of this case, including dismissals of claims for damages and a proposed consent judgment providing for equitable relief. Signed by Magistrate Judge James E. Gates on 4/19/2012. (Indig, A.) (Entered: 04/19/2012)
129 NOTICE of Voluntary Dismissal by Deven Deal. (Luecking−Sunman, Michele) (Entered: 05/18/2012)
130 Joint MOTION to Expedite Entry of Order and Agreement by Annie Harvey. (Attachments: # 1 Text of Proposed Order) (Finarelli, Joseph) (Entered: 05/21/2012)
Motion Submitted to Staff Counsel III regarding 130 Joint MOTION to Expedite Entry of Order and Agreement. (Blankenship, T.) (Entered: 05/21/2012)
131 NOTICE of Voluntary Dismissal by Deven Deal. (Luecking−Sunman, Michele) (Entered: 05/21/2012)
132 First MOTION for Default Judgment as to by Sandra Etters. (Luecking−Sunman, Michele) (Entered: 05/21/2012)
Motion Submitted to Staff Counsel III regarding 132 First MOTION for Default Judgment by Sandra Etters. (Blankenship, T.) (Entered: 05/22/2012)
133 ORDER − GRANTING plaintiff Deal's requests for a voluntary dismissal with prejudice [D.E. 129. 131], and DISMISSES WITH PREJUDICE plaintiff Deal's

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10/23/2012 10/25/2012 10/25/2012 10/31/2012 11/01/2012 11/01/2012 11/02/2012
11/05/2012 11/05/2012 11/05/2012 11/07/2012 11/07/2012 11/07/2012 11/08/2012

claims. GRANTING 132 Motion for Default Judgment and REFERS the motion to Magistrate Judge James E. Gates for a hearing and recommendation on damages. GRANTING 130 Motion to expedite approval of settlement agreement and hereby APPROVES the settlement agreement [D.E. 130−1], subject to the limitations of 18 U.S.C. § 3626. Signed by Chief Judge James C. Dever III on 5/30/2012. (Indig, A.) (Entered: 05/30/2012)
134 Order Setting Hearing − Hearing set for 11/7/2012 at 2:30 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 10/23/2012. Counsel is reminded to read the entire order for critical dates and deadlines. (Indig, A.) (Entered: 10/23/2012)
135 First MOTION for Writ of Habeas Corpus ad testificandum by Sandra Etters. (Attachments: # 1 Text of Proposed Order) (Luecking−Sunman, Michele) (Entered: 10/25/2012)
MOTION REFERRED to Magistrate Judge James E. Gates as to 135 First MOTION for Writ of Habeas Corpus ad testificandum. (Indig, A.) (Entered: 10/25/2012)
136 Mail Returned as Undeliverable. Mail (Order DE# 134) sent to defendant Alberto Barbosa. No forwarding address provided. (Blankenship, T.) (Entered: 10/31/2012)
137 ORDER − granting 135 Motion for Writ of Habeas Corpus ad testificandum. Signed by US Magistrate Judge James E. Gates on 11/1/2012. (McDowell, G.) (Entered: 11/01/2012)
138 WRIT of of Habeas Corpus issued to produce Sandra Etters on 11/7/2012 at 2:30 p.m. in Raleigh. (McDowell, G.) (Entered: 11/01/2012)
139 SEALED Document: (Selected Participants Only)by Sandra Etters (available to: Defendants Boyd Bennett, Lamar Blalock, Annie Harvey, Alvin Keller, Timothy Kimble, Sims, Plaintiff Sandra Etters) regarding 134 Set Deadlines/Hearings,. (Attachments: # 1 Exhibit BS22112, # 2 Exhibit BS22116, # 3 Exhibit BS22231, # 4 Exhibit BS22206, # 5 Exhibit BS22207, # 6 Exhibit BS22226) (Luecking−Sunman, Michele) Modified on 2/1/2013 to remove the word "proposed". (Indig, A.) (Entered: 11/02/2012)
NOTICE OF DEFICIENCY regarding: 139 PROPOSED SEALED Document. A Motion to Seal the document was not filed. Please file the motion in accordance with Section T of the Administrative Policies and Procedure Manual. (McDowell, G.) (Entered: 11/05/2012)
140 MOTION to Seal Document 139 PROPOSED SEALED Document, by Sandra Etters. (Attachments: # 1 Text of Proposed Order) (Albiston, Elizabeth) (Entered: 11/05/2012)
MOTION REFERRED to US Magistrate Judge James E. Gates regarding 140 MOTION to Seal Document 139 PROPOSED SEALED Document. (Blankenship, T.) (Entered: 11/05/2012)
141 PRETRIAL ORDER. Signed by Magistrate Judge James E. Gates on 11/6/2012. (Indig, A.) (Entered: 11/07/2012)
142 Minute Entry for proceedings held before Magistrate Judge James E. Gates in Raleigh Hearing to determined damages held on 11/7/2012. Plaintiff Etters present with counsel. Testimony presented. Written Order to follow. (Court Reporter − FTR) (Powers, S.) (Entered: 11/07/2012)
143 Exhibit List for hearing on damages as to Sandra Etters. (Powers, S.) (Additional attachment(s) added on 1/29/2013: # 1 Amended Exhibit List ( Amendment made to Exhibit P5 description)) (Powers, S.). (Entered: 11/07/2012)
144 ORDER − As discussed at the hearing, plaintiff shall file a supplemental memorandum. Defendant may also file a memorandum addressing these issues. Plaintiff's memorandum and any memorandum by defendant shall be filed no later than 15 November 2012. Signed by Magistrate Judge James E. Gates on 11/8/2012. Copy sent to defendant Sims via US Mail. (Indig, A.) (Entered: 11/08/2012)

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11/13/2012 11/13/2012 11/15/2012 11/29/2012
11/29/2012
12/17/2012 02/01/2013 02/06/2013 02/19/2013 02/26/2013 03/04/2013 03/04/2013

145 Mail Returned as Undeliverable. Mail (Order DE# 137) sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) (Entered: 11/13/2012)
146 Mail Returned as Undeliverable. Mail (Pretrial Order DE# 141) sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) (Entered: 11/13/2012)
147 Memorandum in Support re 144 Order, filed by Sandra Etters. (Luecking−Sunman, Michele) (Entered: 11/15/2012)
148 OFFICIAL TRANSCRIPT OF HEARING TO DETERMINE DAMAGES held on November 7, 2012 before Magistrate Judge James E. Gates. Transcriber Janice Russell. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Please review Attorney obligations regarding the redaction of electronic transcripts of court proceedings available on the court's website. Redaction Request due 12/23/2012. Redacted Transcript Deadline set for 1/2/2013. Release of Transcript Restriction set for 3/2/2013. (Thuemmel Proctor, S.) (Entered: 11/30/2012)
NOTICE of Filing of Official Transcript 148 Transcript. The parties have seven calendar days from the filing of the transcript to file a Notice of Intent to Request Redaction. The parties must also serve a copy on the court reporter or transcriber. After filing the Notice of Intent to Request Redaction, a party must submit to the court reporter or transcriber, within 21 calendar days of the filing of the transcript, a written statement indicating where the personal data identifiers to be redacted appear in the transcript. (Thuemmel Proctor, S.) (Entered: 11/30/2012)
149 Mail Returned as Undeliverable. Mail (Order DE# 144) sent to defendant Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) (Entered: 12/17/2012)
150 ORDER − GRANTING 140 Motion to Seal Document 139 PROPOSED SEALED Document. The Clerk shall retain the filings at Docket Entries 139−1 through 139−6 under permanent seal in accordance with Local Civil Rule 79.2, E.D.N.C. Signed by Magistrate Judge James E. Gates on 1/31/2013. (Indig, A.) (Entered: 02/01/2013)
151 MEMORANDUM AND RECOMMENDATIONS − on the issue of damages due plaintiff from Simms; Objections to Memorandum and Recommendations due by 2/20/2013. Signed by US Magistrate Judge James E. Gates on 2/6/2013. Copy mailed via US Postal service to defendants Simms and Barbosa. (McDowell, G.) (Entered: 02/06/2013)
152 Mail Returned as Undeliverable. Mail (Memorandum and Recommendation DE# 151) sent to defendant Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) (Entered: 02/19/2013)
153 ORDER for correction of a clear typographical error in 151 MEMORANDUM AND RECOMMENDATIONS. Signed by US Magistrate Judge James E. Gates on 2/25/2013. (McDowell, G.) (Entered: 02/26/2013)
154 ORDER − the court accepts the Memorandum and Recommendation 151 . Etters is awarded $100,000 in compensatory damages and $100,000 in punitive damages, for a total damages award of $200,000 from defendant Charlie Cortez Simms. Signed by Chief Judge James C. Dever III on 3/4/2013. Copy sent to Defendant Simms via US Mail. (Indig, A.) (Entered: 03/04/2013)
155 CLERK'S JUDGMENT − IT IS ORDERED AND ADJUDGED that the court grants in parts and denies in part the motion for judgment on the pleadings. The claims of plaintiffs Singletary and King are dismissed and defendants Moore, Ford, Wiggins and Jones are dismissed. IT IS FURTHER ORDERED AND ADJUDGED that defendants Keller, Bennett, Kimble, Harvey, Blalock and Barbosa are dismissed as to plaintiff Deal. Plaintiff Etters' motion for entry of default judgment against defendant Simms is granted. IT IS FURTHER ORDERED AND ADJUDGED that the court accepts the Memorandum and Recommendation of Magistrate Judge James E. Gates. Plaintiff Etters is awarded

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03/08/2013 03/13/2013

$100,000 in compensatory damages and $100,000 in punitive damages, for a total damages award of $200,000 from defendant Correctional Officer Sims (Charlie Cortez Simms). Signed by Julie A. Richards, Clerk of Court on 3/4/2013. (Indig, A.) (Entered: 03/04/2013)
156 Mail Returned as Undeliverable. Mail sent to Charlie Cortez Simms. Mail will be resent to address provided by US Postal Service as indicated on the envelope. (Attachment: # 1 Envelope) (Indig, A.) (Entered: 03/08/2013)
157 Mail Returned as Undeliverable. Mail (Order DE# 154) sent to Alberto Barbosa. No forwarding address provided. (Attachment: # 1 Envelope) (Blankenship, T.) (Entered: 03/13/2013)