iiiiii JC-NM-002-002 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) McCLENDON, et al.,

Plaintiffs, vs. CITY OF ALBUQUERQUE, et al.,

No. CIV 95-0024 MV/DJS
FILED

Defendants, vs.

JAN 3 1 2002

E.M., etal.,

Plaintiff-Intervenors STIPULATED AGREEMENT

CLERK

The parties have reached the following agreement.

1. The Court ordered population cap of 586 residents will remain in effect;

The Defendants shall ensure that:

2. By February 9,2002, every female resident's file will be reviewed in an

effort to employ all available population management initiatives;

3. By February 13, 2002, the number of beds available for women at the

annex will be no less than 17 beds;

4. By February 13, 2002, 3 Southwest will reopen to house female residents;

5. By February 13, 2002, 5 Southwest will be used as the women's

Psychiatric Services Unit;

6. By February 13,2002, 5 East will be used exclusively for alcohol and drug

watches;

7. By February 13, 2002, the satellite facility will be cleared of all female

residents; by February 19, 2002, the satellite facility will begin to house men; and, by

February 22, 2002, the satellite facility will be substantially utilized to reduce the male population at the main jail;
8. Defendants will continue to employ all existing population management tools and, whenever the average daily population at the main facility for any three-day period exceeds 110% of the court-ordered population cap, the population management review team will be activated;
9. Defendants will provide sufficient assistance to the pro tern Judge to perform the activities listed above;
10. By March 1, 2002, Defendants will provide a full-time benefits manager to assist in securing public benefits for inmates;
11. On February 22, 2002, at 2:00 p.m. the parties will meet and confer to evaluate the implementation of this stipulated agreement;
12. The parties agree to meet and confer within three days of a request by any party to mediate any disputes under this stipulated agreement;
In consideration of the above, the Plaintiffs and Plaintiff-Intervenors withdraw their pending Joint Motion for an Order To Show Cause and For Further Remedial Relief.
Hereby agreed to by and between the parties this twenty ninth day of January, 2002.
Peter Schoenburg Brian A. Pori Attorneys for Plaintiffs

Peter M. Cubra Elizabeth E. Simpson Claire Dickson Attorneys for Plaintiff-Intervenors

Jeffrey L. Baker

^

Attorney for Defendants

John Dantis, Chief - Corrections/Detention Defendant
IT IS SO ORDERED.
A
MARTHA^MZQUEZ United States District Court Judge

 
 Case 6:95-cv-00024-JAP-ACT Document 459 Filed 08/23/04 Page 1 of 5

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

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
vs. CITY OF ALBUQUERQUE, et al.,
Defendants, vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff Intervenors.

Civ. No. 95-24 MV/DJS

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Plaintiff-Intervenor’sObjections to Magistrate Judge Don Svet’s July 10, 2002 Order Granting City of Albuquerqu’es Motion for Protective Order (“Objections”), filed July 22, 2002[Doc. No. 383]. The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the Objections are well taken and Magistrate Judge Svet’s July 10, 2002 Order Granting City of Albuquerqu’es Motion for Protective Order (the “Protective Order”) shall be set aside.
BACKGROUND On June 4, 2002, Plaintiff-Intervenors filed a Motion for Order to Show Cause and For Further Remedial Relief. Subsequently, on June 25, 2002, Plaintiff-Intervenors served Defendants with Post-Judgment Notice to Take Oral Deposition(s) Pursuant to Federal Rule of Civil Procedure

Case 6:95-cv-00024-JAP-ACT Document 459 Filed 08/23/04 Page 2 of 5
39(b)(6) (“Deposition Notice”) and Second Post-Judgment Request for Production ( “Document Request”). The Deposition Notice noticed a deposition for July 11, 2002.
On July 3, 2002, counsel for Defendants hand delivered to Plaintiff-Intervenors ’ counsel Defendant City of Albuquerque’s (the “City”) Motion for Protective Order (the“Motion”). The City had made no prior attempt to resolve the discovery dispute before filing the Motion.
On July 10, 2002, Magistrate Judge Svet granted the Cit’ys Motion. In the Protective Order, Magistrate Judge Svet set forth two reasons for granting the City ’s Motion: (1) in an order dated February 4, 2002, Magistrate Judge Svet had denied Plaintiff-Intervenors ’ Motion to Compel responses to discovery requests similar to those propounded in the Deposition Notice and the Document Request; and (2) the requests for production propounded by Plaintiff-Intervenors failed to allow thirty days for a response as required by Rule 34(b) of the Federal Rules of Civil Procedure.
On July 22, 2002, Plaintiff-Intervenors filed the instant Objections. The City filed a response in opposition on July 31, 2002. Plaintiff-Intervenors’ reply papers followed on August 14, 2002.
STANDARD Under Rule 72(a) of the Federal Rules of Civil Procedure,“[t]he district judge to whom the case is assigned shall consider . . . objections [to the magistrate judge ’s order regarding nondispositive pretrial matters] and shall modify or set aside any portion of the magistrate judg’seorder found to be clearly erroneous or contrary to law”. Fed. R. Civ. P. 72(a). A finding of fac“tis ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948). The court must examine the magistrate
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Case 6:95-cv-00024-JAP-ACT Document 459 Filed 08/23/04 Page 3 of 5
judge’s opinion to determine whether it is clearly erroneous. See Smith v. Pfizer, No. Civ. A. 984156-CM, 2000 WL 1679483, *2 (D. Kan. Oct. 26, 2000).
DISCUSSION Plaintiff-Intervenors claim, inter alia, that neither reason set forth in the Protective Order provides an adequate basis for granting the Cit’ys Motion. Accordingly, Plaintiff-Intervenors argue, the Protective Order is clearly erroneous. This Court agrees. First, the Protective Order provides that the City’s Motion was well taken because discovery requests propounded in the Deposition Notice and the Document Request at issue in the City ’s Motion are similar to those which were the subject of a prior Order Denying Plaintiff-Intervenors’ Motion to Compel. Plaintiff-Intervenors explain that in the Fall of 2001, Plaintiffs and PlaintiffIntervenors filed a Joint Motion for Order to Show Cause and for Further Remedial Relief (t“hJeoint Motion”). In connection with the Joint Motion, on October 29, 2001, Plaintiff-Intervenors served on Defendants First Post-Judgment Request for Production and First Post-Judgment Interrogatories. Although Defendants served Answers to both the interrogatories and the document request, PlaintiffIntervenors filed a Motion to Compel, arguing that Defendants had not fully and completely responded to their requests. On February 4, 2002, Magistrate Judge Svet entered an Order Denying Plaintiff-Intervenors’ Motion to Compel. Thereafter, the parties settled the Joint Motion, obviating any need for Plaintiff-Intervenors to file objections to the Order Denying Plaintiff-Interven’ Morsotion to Compel. Plaintiff-Intervenorsargue that Magistrate Judge Svet clearly erred in basing his decision to enter a Protective Order on the belief that the discovery requests at issue here were similar to those at issue in the previously dismissedMotion to Compel. Plaintiff-Intervenors note that only two of
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Case 6:95-cv-00024-JAP-ACT Document 459 Filed 08/23/04 Page 4 of 5
all of the instant discovery requests are similar to those that were at issue in the Motion to Compel. Moreover, Plaintiff-Intervenors explain in detail the differences between the two document requests. Plaintiff-Intervenors direct the Court to at least twelve requests at issue here that were not at issue in the Motion to Compel. Although Defendants claim that the discovery requests at issue here are “extremely similar” to the ones at issue in the Motion to Compel, Defendants do not attempt to disprove the comparison between the two requests provided by Plaintiff-Intervenors. PlaintiffIntervenors thus have provided undisputed evidence that the discovery requests at issue here are different from those that were at issue in the Motion to Compel. Accordingly, the fact that the Motion to Compel was denied does not provide a sufficient basis for entry of the Protective Order.
Next, the Protective Order provides that the City ’s Motion was well taken because the requests for production propounded by Plaintiff-Intervenors failed to allow thirty days for a response as required by Rule 34(b) of the Federal Rules of Civil Procedure. Plaintiff-Intervenors explain that the Document Request did not require a response sooner than permitted under the Federal Rules of Civil Procedure. Rather, the Document Request explicitly gave Defendants thirty days to respond. Defendants do not dispute this, but rather note that in their Deposition Notice, Plaintiff-Intervenors demanded that Defendants provide witnesses to respond to sixteen interrogatories at a deposition scheduled sixteen days after the date on which the Deposition Notice was served. The date set for the deposition is irrelevant to the Document Request and has no effect on the deadline for Defendants’s response to the Document Request. Moreover, Defendants filed their Notice of NonAppearance at Deposition and, with the filing of that document, their failure to appear at the deposition was necessarily excused. Thus, no response to any requests served by Plaintiff-Intervenors was due on the date originally scheduled for the deposition or on any other date before the thirty day
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Case 6:95-cv-00024-JAP-ACT Document 459 Filed 08/23/04 Page 5 of 5
deadlineproperly set forth in the Document Request. Accordingly, Plaintiff-Interveno’rsDocument Request did not run afoul of the Federal Rules of Civil Procedure and thus does not provide a basis for entry of the Protective Order.
CONCLUSION As set forth above, neither of the two reasons set forth in the Protective Order provides an appropriate basis for granting the City’ Motion. Accordingly, entry of the Protective Order was clearly erroneous. IT IS THEREFORE ORDERED that the July 10, 2002 Order is set aside. DATED this 23rd day of August, 2004.

Attorneys for Plaintiff: Brian Pori Peter Schoenburg
Attorneys for Plaintiff Intervenors: Peter Cubra Claire Dickson
Attorney for Defendant: Jeffrey L. Baker

MARTHA VÁZQUEZ CHIEF UNITED STATES DISTRICT JUDGE

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 Case 6:95-cv-00024-JAP-ACT Document 480 Filed 12/28/04 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FILED
FOR THE DISTRICT OF NEW MEXICO at Sant11 Ft'!. NM

JIMMY (BILLY) MCCLENDON, et. al.,
Plaintiffs,

DEC 2 R iU04
UNITED STATES D;·· ·. DISTRICT OF NeW'·'·: _,.,
""E",~_o

vs.

CIV-95-0024 MV/ACT

CITY OF ALBUQUERQUE, et. al.,

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W. on behalf of themselves and all others similarly situated,

Plaintiff Intervenors.

STIPULATED SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND DEFENDANTS

The Plaintiffs and Defendants have met and conferred regarding the termination of this

litigation. The Plaintiffs and Defendants agree that it is in their respective best interest to enter into

this Stipulated Settlement Agreement. The Plaintiffs and Defendants agree that this Stipulated

Settlement Agreement complies with all of the requirements of the Prison Litigation Reform Act, 18

U.S.C. § 3626, et seq.

Nothing contained in this Stipulated Settlement Agreement constitutes an admission by the

Defendants that they have ever violated the constitutional rights of any inmates, or that the

Defendants have ever violated any Order of Court and nothing in this Stipulated Settlement

Agreement should be construed as an admission by the Defendants that any prior or present policy,

procedure, practice, event, circumstance, act or failure to act by the Defendants, their elected

officials, contractors, agents or employees violated the civil rights laws of the United States, failed
. ( --~
I..........

Case 6:95-cv-00024-JAP-ACT Document 480 Filed 12/28/04 Page 2 of 8
to meet applicable federal or constitutional standards, failed to comply with any Order of Court, or otherwise fell short of any standard of care imposed by law.
The Plaintiffs and Defendants enter into this Stipulated Settlement Agreement for the purpose of avoiding the risks and burdens of litigation and in order to describe conditions both parties wish to see maintained or improved at the Bernalillo County Metropolitan Detention Center, 100 John Dantis Road SW, Albuquerque, New Mexico. The Plaintiffs and Defendants intend that this Stipulated Settlement Agreement will maintain and improve the conditions at the Metropolitan Detention Center for the benefit of the Defendants, their employees, agents and staff and for the benefit of the Plaintiff class.
The Plaintiffs acknowledge that the Defendants already have policies that address areas described in this Stipulated Settlement Agreement and the Defendants acknowledge that they will continue to abide by the policies and procedures ofthe Metropolitan Detention Center. If necessary, the Defendants will revise and/or develop as necessary the policies, procedures, protocols, training materials and practices to ensure that the Defendants continue to comply with the policies and procedures of the Metropolitan Detention Center and that these policies and procedures are consistent with the requirements of the United States Constitution, the advisory standards of the American Correctional Association's Standards for Adult Detention Centers (which do not establish any minimum constitutional standard but which reflect prevailing professional practices) and the terms set forth in this Stipulated Settlement Agreement.
Plaintiffs and Defendants will jointly select two Auditor(s) (one Auditor for items 1-14 below, and one Auditor for medical issues) who will, over a nine month period (or sooner), evaluate the Defendants' compliance with the policies and procedures of the Metropolitan Detention Center, the United States Constitution, the advisory standards set forth in the American Correctional
2

Case 6:95-cv-00024-JAP-ACT Document 480 Filed 12/28/04 Page 3 of 8
Association's Standards for Adult Detention Centers, and the terms set forth in this Stipulated
Settlement Agreement and report in writing to the Plaintiffs and Defendants concerning the following
aspects of the Bernalillo County Metropolitan Detention Center:
I. Population Management Initiatives (as more fully described infra) 2. Facility maintenance and sanitation (including the provision of adequate linen,
bedding, and hygiene supplies) 3. Inmate safety (including, but not limited to, use of excessive force by officers and
protection against a known risk of assault by other inmates) 4. Inmate access to law library 5. Food services 6. Inmate disciplinary process (including the provision of an inmate handbook in each
housing unit which describes the disciplinary process) 7. Inmate grievance process (including the provision of an inmate handbook in each
housing unit which describes the grievance process and other inmate rights and responsibilities) 8. Inmate programming (excluding mental health programming) 9. Inmate classification (consistent with the advisory standards of the American Correctional Association's Standards for Adult Detention Centers) 10. Inmate case management I I. Inmate access to mail I2. Inmate access to telephones l3. Inmate access to commissary 14. Inmate visitations (including the provision ofan inmate handbook in each housing unit which describes the visitation process) 15. Medical services (including good faith efforts to comply with the advisory Guidelines of the National Commission on Correctional Health Care)
Plaintiffs and Defendants will jointly select one Auditor who will be responsible for items I-I4
above, and a second Auditor who will be responsible for evaluating and reporting on item 15 above
(medical services). However, ifthe Plaintiffs and Defendants cannot agree on the Auditor(s) in these
two areas, the Plaintiffs and Defendants agree to submit a list of names to the Honorable Martha
Vazquez and the Court will select the Auditor.
In evaluating the Defendants' compliance with Item Number One, Population Management
Initiatives, the Auditor will recognize that many factors affect the population at the Metropolitan
Detention Center which are beyond the control of the Defendants. Therefore, in evaluating the
3

Case 6:95-cv-00024-JAP-ACT Document 480 Filed 12/28/04 Page 4 of 8
Defendants' compliance with Item Number One, Population Management Initiatives, the Auditor will ensure only that the Defendants will employ their best efforts to manage the population of the Metropolitan Detention Center and will use all available population management initiatives (such as the Community Custody Program, pre-arrest diversion programs, the Population Management Review Team, and the resources of the Pre-Trial Services Office) to manage the population ofthe Metropolitan Detention Center. Community Custody Program staff will be added in response to increases in referrals to the Community Custody Program. The Auditor will also ensure that the Defendants provide classification officers and case workers and assign a benefits manager to assist residents ofthe Metropolitan Detention Center. Further, the Auditor will ensure that the Defendants will continue to maintain a detoxification program and an alcohol treatment program. The purpose of all ofthese population management initiatives is to assist the Defendants in using their best efforts to manage the population of the Metropolitan Detention Center because the parties realize that the unabated rise in the population ofthe Metropolitan Detention Center places unnecessary burdens on all aspects of the jail, its staff, and the provision of basic resident services.
The Auditor(s) shall have free access to all areas of the Metropolitan Detention Center, at such times and for such duration as the Auditor(s) desire. The Auditor(s) shall have unlimited access to all Metropolitan Detention Center personnel and records, and to all inmates of the Metropolitan Detention Center. The Defendants will provide the Auditor(s) with unlimited access to all personnel who work for the Metropolitan Detention Center, their private vendors, their independent contractors, or their agents who provide services to the Metropolitan Detention Center.
The Auditor(s) will notify the Director or his designee of the Auditor's visits to the Metropolitan Detention Center, so that the Auditor's personal security can be assured. However, in extraordinary circumstances in the discretion of the Auditor(s), the Auditor(s) shall not be refused
4

Case 6:95-cv-00024-JAP-ACT Document 480 Filed 12/28/04 Page 5 of 8
admittance to the Metropolitan Detention Center if slhe is not able to provide advance notice prior to a visit at the Metropolitan Detention Center.
The Defendants will ensure that the Auditor(s) shall have the opportunity to conduct confidential interviews with inmates, as well as the opportunity to conduct interviews with Metropolitan Detention Center staff, their private vendor staff, their independent contractors, or their agents, outside the presence of other staff or supervisors. The only exception would be when an active criminal investigation is on-going, so as not to compromise the integrity of the criminal investigation.
If, at the end of the nine month period (or sooner}, the Auditor(s) report that one or more of the fifteen (15} items do not meet United States constitutional requirements, the policies and procedures of the Metropolitan Detention Center, the advisory standards of the American Correctional Association's Standards for Adult Detention Centers, and the terrns of the Stipulated Settlement Agreement, the Auditor(s) shall continue to evaluate and report on those particular items. The Auditor will, however, cease to review those items the Auditor(s) has deemed are in compliance with United States constitutional requirements, the policies and procedures of the Metropolitan Detention Centers, the advisory standards of the American Correctional Association for Adult Detention Centers and the terms of this Stipulated Settlement Agreement.
If any items in the above list ( 1-15) are determined by the Auditor(s) not to be in compliance with United States constitutional requirements, the policies and procedures of the Metropolitan Detention Center, the advisory standards of the American Correctional Association's Standards for Local Detention Facilities, and the terms of this Stipulated Settlement Order, the Auditor(s) shall continue to evaluate and report on any such items until such time as all fifteen listed items are in compliance with the United States constitutional requirements, the policies and procedures of the
5

Case 6:95-cv-00024-JAP-ACT Document 480 Filed 12/28/04 Page 6 of 8
Metropolitan Detention Center, the advisory standards ofthe American Correctional Association, and this Stipulated Settlement Agreement.
Once the Auditor(s) reports that an item complies with United States constitutional requirements, the policies and procedures of the Metropolitan Detention Center, the advisory standards of the American Correctional Association's Standards for Local Detention Facilities, and the terms of this Stipulated Settlement Agreement, the Auditor will cease reviewing this area.
Plaintiffs' class will move to dismiss this case, with prejudice, when the Defendants obtain compliance in all areas.
The Plaintiffs and Defendants agree to cooperate regarding any fairness or other hearings which are required by the Court in order to facilitate the ultimate dismissal of Plaintiffs' claims.
The Auditor(s) will be compensated by the Defendants, at rates to be negotiated between the Auditor(s) and the Defendants.
During the initial nine month period (or shorter), Plaintiffs agree their counsel will be compensated at the rate of$135.00 per hour, plus gross receipts tax, for the monitoring activities of Brian Pori and Marc Lowry, not to exceed a combined twenty (20) hours per month, and $65.00 per hour, plus gross receipts tax, for the monitoring activities of paralegals, not to exceed a combined twenty-five (25) hours per month. At the end ofthe nine month period (or sooner), ifany items listed above have not met the requirements ofthis Stipulated Settlement Agreement, Plaintiffs' lawyers and paralegals will continue to be limited to the hourly rates and number of hours described above for monitoring activities, unless modified in writing between Plaintiffs and Defendants. However, any such hours which Plaintiffs' counsel and paralegals bill the Defendants will still be subject to the requirements of reasonableness.
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Until such time as the Auditor(s) declares all fifteen (15) items meet United States constitutional requirements, the policies and procedures of the Metropolitan Detention Center, the advisory standards of the American Correctional Association's Standards for Adult Detention Centers, and the terms ofthis Stipulated Settlement Agreement, counsel for Plaintiffs shall have the same right of access to the Metropolitan Detention Center and the same right to review all records (in any media) concerning Plaintiff class members which counsel for the Plaintiffs currently possess. However the number of hours for which Plaintiffs counsel and paralegals will receive compensation for these activities will be limited as described above.
The Defendants will not file any motion in the future asserting that this Stipulated Settlement should be terminated under the Prison Litigation Reform Act.
This Agreement shall be binding on all successors, assignees, employees, and all those working for or on behalf of the Defendants, and those working for or on behalf of the Plaintiffs.
The Plaintiffs and Defendants do not intend to create in any non-party the status ofthird party beneficiary. This Stipulated Settlement Agreement shall not be construed so as to create a private right ofaction to any non-party against the Defendants. The rights, duties and obligations contained in this Stipulated Settlement Agreement shall only bind the parties to this Agreement.
This Stipulated Settlement Agreement supercedes all previous Orders which pertain to Plaintiffs and Defendants.
Any claimed breach of this Stipulated Settlement Agreement will be mediated by the United States Magistrate Judge before it is submitted to the District Court.
IT IS SO ORDERED.
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Case 6:95-cv-00024-JAP-ACT Document 480 Filed 12/28/04 Page 8 of 8

THE BAKER LAW FIRM

By:

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J~e~ffi~rey~L~.~B~a~k-e-r,~E~s~q~.~---------

Counsel for Defendants

County Manager Bernalillo County
INOCENTE P.C.

ROTHSTEIN, DONATELLI, HUGHES

DAHLSTROM & SCHOENBURG LLP

~/7}/

By:

tM,..

Marc owry, Esq.

Coun I for Plain · s

 
 Case 6:95-cv-00024-JAP-ACT Document 718 Filed 05/18/09 Page 1 of 16

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

JIMMY (BILLY) MCCLENDON, et al.

Plaintiffs,

vs.

Civ. No. 95-24 MV/ACT

CITY OF ALBUQUERQUE, et al.,

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,

Plaintiff Intervenors.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendant Bernalillo County’s (“Count y”)

Motion to Disqualify and Memorandum in Support Thereof (Doc. 702, filed April 21, 2009). For

the reasons stated below, the Court will GRANT the Motion.

BACKGROUND

On March 31, 2009, the Court issued a Memorandum Opinion and Order (Doc. 699) finding

that the County had misrepresented material information to Plaintiffs, Plaintiff Intervenors and this

Court. The Court found the County failed to disclose the following material facts: 1) the County

has had operational and management authority over the Regional Correctional Center (“RCC”) since

at least June of 2004, when it entered into an Operating and Management Agreement with Cornell

Companies, Inc. (“Cornell”); and 2) in Marchof 2005, the County entered into an Intergovernmental

Service Agreement (“IGA”) with the Office of the Federal Detention Trustee in which it agreed to

house federal detainees at RCC and to performall the services required in the IGA. These facts are

Case 6:95-cv-00024-JAP-ACT Document 718 Filed 05/18/09 Page 2 of 16
material because the class m embers and subclass members in this case ar e not confined to a particular facility, but rather to the Bernalillo County jail system as a whole . The settlem ent agreements entered into by the parties and adoptedby the Court encompass those facilities that are operated or controlled, directly or indirectly, by Defendants as part of the Bernalillo County jail system. Other detention facilities not operated or controlled by the County are not part of the Bernalillo County jail system and are not subject to the requirements of this case even if Bernalillo County contracts to house detainees at those facilities.
Consequently, the County’s misrepresentation that Cornell had sole operational authority over RCC and Cornell entered into the IGA to house federal detainees at RCC effectively shielded the County from responsibility in this case for the inmates and detainees it housed at RCC from approximately 2004 to 2009. Based upon these m isrepresentations, Plaintiffs and Plaintiff Intervenors entered into Stipulated Settlement Agreements in 2005, limiting the applicability of this case to the Metropolitan Detention Center (“MDC”) upon the belief that the County only operated MDC. Although the County entered into the IGA and the Operating and Management Agreement prior to the fairness hearing on June 30, 2005, it did not inform the Court or the other parties of its role in the housing of detainees at RCC. C onsequently, the Court approved the Stipulated Settlement Agreements believing they covered all of the class m embers and subclass m embers subject to this lawsuit.
Almost two years later, in May of 2007, th e Court began receiving numerous complaints about the availability of drugs, inadequate medical care and unsanitary conditions at RCC. While the Court often receives complaints from inmates about detention facilities where federal inmates are housed, the number, type and frequency of the com plaints concerning RCC at that time were
2

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greater than normal and prompted this Court to personally investigate the conditions at RCC on June 1, 2007. During i ts initial visit, the Court witnessed the m ost deplorable conditions it had ever encountered at a detention facility. Detainees detialed allegations of sexual assault, harassment, the trading of contraband for sex by the guards and the loss of personal property. The food failed to meet nutritional requirements, serious medical conditions were left untreated or ignored, pregnant women reported inadequate care including a l ack of prenatal care allegedly resulting in som e miscarriages, potentially toxic mold was left untouched in the showers, virtually no toiletries such as soap or toothpaste were provided and detainees were required to share undergarments. Part of the facility was unbearably hot and drugs, includingcocaine, heroin and marijuana, were reputedly readily available. The facility where the ICE detainees were housed was seriously overcrowded. Over 1,000 individuals were subjected to these la mentable conditions at that time. Following its initial visit, the Court notified Cornell, the U.S. Department of Justice, the U.S. Marshal’s Office and John P. Torres, the Director of the Office of Detention and Removal for U.S. Immigration and Customs Enforcement (“ICE”) about its observations and the com plaints from detainees at RCC.
On June 18, 2007 and June 22, 2007, the Court ocnducted follow-up visits at RCC. It noted several improvements had been made and some of the complaints had been addressed and remedied. However, significant improvements were still needed to ensure the district’s f ederal detainees’ fundamental needs and rights were being m et. During this tim e, Cornell was responsive to the Court, thus supporting the im pression that Cornell, not the County, had r esponsibility for the detainees housed at RCC. The County did not correct this false impression, but instead remained silent and avoided public scrutiny and judicial admonition.
On July 31, 2007, after conducting its own investiagtion, ICE began the removal of its entire
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population of detainees fromRCC. Mr. Torres advised the Court that RCC was the worst detention facility he had seen. At or near the tim e the detainees were rem oved, Commissioner Deanna Archuleta initiated a meeting with the Court. Ms. Archuleta was accompanied by John Dantis to a meeting with the Court on August 6, 2007. Ms. Archuleta expressed her concerns about the conditions at RCC. The meeting concerned the same facts and concerns previously expressed by the Court to Cornell, ICE, the U.S. Marshal’s Office and Mr. Dantis.
After ICE removed its detainees fromRCC and Cornell took significant steps to improve the conditions there, including the rem oval of a num ber of employees it found to have engaged in misconduct, the complaints about RCC abated. Since the issue regarding the ICE detainees in 2007, the Court has received only a limited number of complaints about RCC, the most recent of which was made in April of 2009. An a ttorney visiting RCC reported to the Court at a m onthly Department Head Meeting that he had witnessed what appeared to be a security breach. Pursuant to the Court’s standard protocol, the Court forwarded this information to James Hyman, the CEO of Cornell requesting he look into the matter. (See Doc. 702, Ex. P.)
LEGAL STANDARD The County requests the Court disqualify itself in this case pursuant to 28 U.S.C. § 455(a), (b)(1) and (b)(5) (2009). Those provisions requirea, mong other things, a judge to disqualify herself in any proceeding in which: 1) her impartiality might reasonably be questioned; 2) she has personal knowledge of disputed evidentiary facts concerning the proceeding; and 3) she or her spouse, or a person within the third degree of relationship to e ither of them, or the spouse of such person is a party to the proceeding. For purposes of § 455(a), “[w]hat m atters is not the reality of bias or prejudice but its
4

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appearance.” Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995) (quoting Liteky v. United States, 510 U.S. 540, 547, 114 S.Ct. 1147, 1154, 127 L.Ed.2d 474, 486 (1994)). The Court umst determine “‘whether a reasonable person, knowing all the relveant facts, would harbor doubts about the judge’s impartiality.’” Nichols, 71 F.3d at 351 (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)(further quotation om itted)). I n applying this objective standard, the Court is lim ited to “outward manifestations and reasonable inferences drawn therefrom .” Id. “[T]he judge’s actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the issue.” Id.
For purposes of § 455(b)(1) and (5), the inquiry is subj ective. Section 455(b)(1) calls for recusal when a judge has “personal knowledge of disputed evidentiary facts concerning the proceeding.” This rule applies to knowledge which the judge obtained extrajudicially, e.g., through prior representation of a party, or by witnessnig the events at issue in the proceeding.”United States v. Page, 828 F.2d 1476, 1481 (10th Cir. 1987). Section 455(b)(5) is even more specific, requiring recusal when a family member within a third degree of relationship to the judge or her spouse is a party. Section 455(b) does not require a showi ng of actual im partiality. Circumstances falling within this subsection carry the appearance of impartiality which is sufficient for recusal.
DISCUSSION The County’s Motion is a blatant attempt to malign and discredit the Court in an effort to achieve its objective of having this Cour t removed from the present case. The facts and circumstances relied upon by the County for disqualification lack the im proper and m eddling character attributed to them. The allegations made by the County’s attorney, Marcus Rael, Jr., are reckless and violate the New Mexico Rules of Proefssional Conduct. The Court has a strong interest in promoting public confidence in the integrity and independence of judges. The County’s
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characterization of the circumstances leading to the Court’s recusal require that the Court provide some clarification to avoid any misperceptions by members of the general public not familiar with the facts.
A. The Court Did Not Engage in Extrajudicial Conduct A chief district judge has an obligation to perform a great number of administrative duties and judicial functions in overseeing the integrityof the judicial systemin her district. See 28 U.S.C. §§ 136 & 137; see also FEDERAL JUDICIAL CENTER, DESKBOOK FOR CHIEF JUDGES OF U.S. DISTRICT COURTS §§ 1 & 2 (3rd ed. 2003). Federal detainees and inmates fall within the Court’s purvey while housed in this district. It is incumbent upon the Court to respond to complaints and to ensure that the conditions of the facilities inwhich these individuals are housed are adequate and meet their basic needs. The Court is kept appriesd by the United States Marshal’s Ofice, the United States Probation Departm ent, members of the federal bar and i nmates themselves regarding conditions at detention facilities. W hen problems associated with overcrowding, unsani tary conditions and inadequate medical treatment arise, the Court addresses those concerns by directing the complaints to the proper authority, and, if necessary, by physically inspecting the facility itself. Each complaint is taken seriously and treated appropriately. This Court has visited num erous detention facilities housing federal inmates and detainees during its tenure, including facilities in Texas and South Dakota before deciding to send a ny of our juveniles there. The administrative actions of the Court are not extrajudicial. See Duckworth v. Department of Navy, 974 F.2d 1140, 1142 (9th Cir. 1992); see also Cheeves v. Southern Clays, Inc., 797 F.Supp. 1570, 1581 (M. D. Ga. 1992) (circumstances giving rise to actual or perceived prejudice arising out of communications or events known to the judge by vi rtue of his or her judicial capacity are not a basis for
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disqualification).

In June of 2007, the Court visited RCC three t imes based on the com plaints it received

regarding drugs in the facility, unsanitary conditionsand poor medical care. Visits by federal judges

to inspect jail conditions are not extraordinary. See Kevin Cullen, Locked-in Perspective, The

Boston Globe, (October 1, 2007), http://www.boston.com/news/local/articles/2007/10/01/locked_in-

perspective/ (federal judge paid unannounced visit in 1973 af ter lawyers for inmates sued on the

grounds that the conditions violated their civil rights);Alberti v. Sheriff of Harris County, 937 F.2d

984, 987 (5 th Cir. 1991) (in about 1975, district judge, after visiti ng facilities, concluded that

conditions in the jails were “inhum ane”); Campbell v. McGruder, 580 F.2d 521, 538 (D.C. Cir.

1978) (district court made unannounced visit to District of Columbia jail and found that more than

200 persons were held in violation of the court’s order regarding space r equirements); David

Firestone, Crowded Jails Create Crisis for Prisons in Alabama,

(May 21, 2001),

http://www.tgorski.com/criminal_justice/

Crowded%20Jails%20Create%20Crisis%20For%20Prisons%20in%20Alabama_010530.htm (2001,

federal judge visited jail and found it uncivilized and hazardous, resem bling the holding units of

slave ships); Rutherford v. Baca, No. CV 75-04111, (C.D. Cal. 2006) (court made two visits to Los

Angeles jail and observed overcrowding to such adegree that a finding of a constitutional violation

would be warranted); The MacArthur Justice Center, Northwestern School of Law,Judge Decides

to Visit Cook County Jail to See Overcrowded Condition(sMedia Advisory, February 1, 2008) (calls

people sleeping on floor “unconstitutional,” wants overcrowding addressed). The Court’s activities

with respect to RCC were public and well-known by the County.

It is disingenuous for the County to charact erize the Court’s inspection of RCC as an

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“extrajudicial factfinding and evidence gathering” mission related to the present lawsuit. (Doc. 702, pp. 2 & 3.) In June of 2007, due to the misrepresentations made by the County, the Court believed that Cornell had contracted to house federal detainees at RCC. As a private company and non-party to this lawsuit, Cornell’s operation of RCC and alleged contractual obligations fell outside the parameters of the present lawsuit. The fullextent of the County’s involvement with RCC was not discovered until many months later after it was revealed that the County, not Cornell, had entered into contracts with the federal government to provide housing for federal detainees at RCC.
Based upon false impressions fostered and left uncorrected by the County, the Court directed all of its requests for improvement at RCC to Cornell. Cornell was responsive to the Court, while the County remained silent or denied responsibiliyt . At no time during the Court’s investigation into RCC did the County ever admit responsibility for the detainees housed at RCC. On the contrary, the County stated “[t]here are no Bernalillo County inmates housed at RCC.” (Doc. 546, filed July 12, 2007). If the Court had known that RCC was a County-run facility at the time, it would have taken a different cours e of action with resp ect to the com plaints it received about RCC. Nevertheless, at that time, pursuant to the parties’ Stipulated Settlement Agreements, MDC was the only facility subject to the terms of the present lawsuit. Therefore, none of the actions taken by the Court in 2007 with respect to RCC relate to the present lawsuit. The Court’s investigation of RCC occurred almost two years before RCC was brought into this la wsuit. It is hypocritical for the County now to purport to hold t he Court accountable for knowing the very facts it im properly withheld.
Finally, in April of 2009, a complaint concerning security at RCC was made to the Court by an attorney unrelated to the present case in a monthly Department Head Meeting during which a
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variety of matters concerning the Court are discussed. The Court relayed the complaint to Cornell, as is its standard procedure. The Court’s actionis a basic judicial function. Addressing complaints and concerns regarding detention facilities serves an important judicial function and helps ensure the quality and integrity of the judicial system. The transmittal of this information to RCC is not alone sufficient to require recusal under 28 U.S.C. §§ 455(a) or (b).
B. The Court Did Not Engage in Ex Parte Communications The County makes 16 separate references to alleged ex parte “correspondence,” “evidence gathering” and “communications” by the Court with RCC inm ates, detainees and guards, John Dantis, Commissioner Deanna Archuleta, Cornelland an unidentified attorney. (Doc. 702, pp. 2-5, 7, 16, 19, 22-23.) Counsel for the County either lacks a basic understanding of this common legal principle, or knowingly misuses the phrase to incite distrust in this Court’s im partiality. Either explanation is unacceptable for a licensed attorney obligated to uphold the New Mexico Rules of Professional Conduct.1 The pejorative connotation of the phrase ex parte implies, directly or indirectly, that the Court engaged in im proper behavior, which is sim ply not the case. Despite littering its motion with the derogatory phrase, theCounty has failed to identify a single instance in which the Court actually engaged in an ex parte communication concerning this case. Ex parte is defined as “[o]n one side only; by or for one party; done for, in behalf of, or on the application of, one party only.” BLACK’S LAW DICTIONARY 576 (6th ed. 1990); see also United States v. Forbes , 150 F.Supp.2d 672, 677 (D.N.J. 2001) (“An ex parte communication is a communication which takes place between one partyin a matter, without the presence of opposing
1 The New Mexico Rules of Professional Conduct, Rule 16-802(A) states: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer. . .”.
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party or parties, with or without notice to such other party or parties.”). The inmates and detainees at RCC were not class and subclass members in this lawsuit in 20072. The RCC guards, John Dantis and Commissioner Archuleta were not defendants in this lawsuit in 2007, with respect to RCC.3 Cornell has never been a party to this lawsuit. The attorney that reported an alleged breach of security at RCC in 2009 is neither counsel i n this lawsuit nor a party. Consequently, the Court’s communications with these individuals were not ex parte as none of these individuals were parties with respect to RCC at the time of the communication. Forbes, 150 F.Supp.2d at 677 (“[T]his term contemplates that one actually be a party to a matter before the communication of another party is considered ‘ex parte’”). Finally, the fact that RCC is now at issue in the present lawsuit does not change the character of the Court’s past co mmunications with individuals who m ay now be considered class members, subclass members or defendants. Id. (communications with an individual in 1999, before the individual became a criminal defendant in 2001, were not ex parte).
C. The County’s Motion is an Improper Litigation Tactic The County seeks to disqualify the Court for two reasons: 1) theCourt’s investigation of the conditions at RCC in 2007; and 2) the fact that the Court’s sister-in-law has been incarcerated at MDC on four occasions since 2007, the most recent of which occurred fromMarch 17, 2009 through March 27, 2009. A motion to disqualify under § 455(a) and (b) “must be timely filed.” Willner v. Univ. of
2 It is doubtful that any of these individuals are class and subclass members today, as the requirement for membership is that the individual presently be housed in a Bernalillo County facility. As the majority of the detainees were removed from RCC in 2007, and the others have likely proceeded through the system and out of RCC during the past two years, it is questionable whether any of the individuals housed in RCC in 2007 remain there today and can be considered class members.
3 While John Dantis and Commissioner Archuleta are Defendants in the present lawsuit, the Court is not forbidden from communicating with them about matters unrelated to the lawsuit. In 2007, RCC was unrelated to the present lawsuit, and therefore the Court’s meeting with them about RCC was not improper.
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Kansas, 848 F.2d 1023, 1028 (10 th Cir. 1988). Although the Tenth Circuit “has not attem pted to define the precise moment at which a § 455(a) motion to recuse becomes untimely, our precedent requires a party to act promptly once it knows of the facts on which it relies in its motion.” United States v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000) (citing Willner, 848 F.2d at 1028-29); see also Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997) (“[W]here the facts are known before a legal proceeding is held, waiting to file such a motion until the court has ruled against a party is untimely.”). Furthermore, “[a]n issue involving recusal cannot be used as an insurance policy to be cashed in if a party’s assessment of his litigation risks turns out to be of and a loss occurs.” Bivens Gardens Office Building v. Barnett Banks of Florida, Inc,. 140 F.3d 898, 913 (11th Cir. 1998). The statute is not “intended to bestow veto power over judges or to be used as a judge shopping device.” Nichols, 71 F.3d at 351; see also United States v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1994) (§ 455 “is not intended to be used as a forum shopping statute”).
Concerning the Court’s investigation of RCCin 2007, all of the facts upon which the County relies for recusal under § 455(a) and (b)(1) were known to it in 2007. The County was fully aware of the actions taken by the Court and participated to a substantial degree in the investigation. Mr. Dantis accompanied the Court to RCC on June 1, 2008; received correspondence written by the Court to the CEO of Cornell, James Hyman, on June 7, 2007, which detailed the Court’s findings at RCC; attended a meeting with the Court, Mr. Hyman and counsel for Cornell on June 22, 2007; and attended an other meeting with the Cour t and Com missioner Archuleta regarding RCC on August 6, 2007. (Doc. 702, Ex. Q.) Consequently, the County was fully aware of the Court’s involvement with RCC in 2007.
The County claims its motion is not untimely because prior to March 31, 2009, the Court
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“had not explicitly ruled that RCC was part of tehBernalillo County jail systemor that the RCC was part of this litigation.” (Doc.702, p. 23.) The County stated it “hadalways been of the position that the RCC was not part of BernalilloCounty’s jail systemand thus not part of the litigation,” therefore “filing a recusal motion based upon the Court’s 2007 ex parte [sic] communications prior to this Court’s March 31, 2009 Memorandum Opinion and Order would have been premature.” (Doc. 702, p. 23.)
The County’s explanation for its alm ost two-year delay in filing the present m otion is unpersuasive. The law is clear that a § 455 motion must be filed when the facts on which it relies are known to the moving party, which in this case was in the summer of 2007. See Pearson, 203 F.3d at 1276. The County’s explanation that it did not know the Court would rule adversely to it by including RCC in the Bernalillo County jail sys tem is the precise explanation prohibited from consideration. See Summers, 119 F.3d at 921 (party’s m otion to disqualify is untim ely when it waited to file motion until after it received an a dverse ruling). The County’s delay in filing the present motion based upon facts it knew in 2007 supports a finding that the motion is an improper litigation tactic. See E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1296 (9th Cir. 1992) (“unexplained delay suggests that the recusal statute is being misused for strategic purposes”).
Concerning the detention of the Court’s sist er-in-law, Carla Maestas, at MDC, Ronald Torres, the Chief of Cor rections for MDC, had knowledge that Ms. Maestas was incarcerated at MDC as early as February of 2007. (Doc. 702, Ex. R, ¶ 7.) Contrary to Mr. Torres’s Affidavit, my husband and I visited Ms. Maestas on Easter Sunday, April 8, 2007, during regular visiting hours. When we arrived my husband was advised that Ms. Maestas was in the infirm ary and unable to attend a visitation in the regular visiting area due to her illness. Mr. Torres’s Af fidavit again
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requires correction when he states he received a call f rom a “ staff member” on a w eekend “informing [him] that the Honorable Judge Martha Vazquez and her husband Joseph Maestas were asking to visit with Ms. Maestas.” Id. at ¶ 12. Mr. Torres incorrectly stated “visitors are not allowed direct contact visits with inmates unless there are extraordinary circumstances and then only with the approval of the Chief of Corrections.” Id. at ¶ 13. Mr. Torres said he considered the “fact that a sitting United States District Court Judge wanting to visit an inmate as extraordinary.” Id. at ¶ 14. Contrary to Mr. Torres’s description of the events that day, after learning his sister was in the infirmary, my husband called Mr. Torres’s wife, AnaLisa Torres, who is a long-time friend of his. He asked her if she knew how he could visit his sister in the infirmary, and she confirmed shortly thereafter that Mr. Torres had authorized the visit. See Bernalillo County Metropolitan Detention Center, Policy and Procedure Manual §§ 1511(A) (allowing personal visits), 1512(A)(1)(b) (authorizing visits to hospitalized inmates), 1513(C)(a) (allowing contact visits in the infirm ary). According to § 1513(C)(a) of the Bernalillo County Metropolitan Detention Center Policy and Procedure Manual, Mr. Torres’s authorization is notrequired for a visit in the infirmary. The Shift Commander on duty that day also could have authorized the visit. See § 1513(C)(a).
Mr. Torres’s statements give the false impression that the Court contacted MDC and, using its position as a federal judge, requested specialtreatment other members of the community do not receive. The insinuation is erroneous and chal lenges the integrity of the Court. The Court had nothing to do with scheduling the visit with Ms.Maestas. To the Court’s knowledge, the standard protocol was followed and nothing regarding the visit was “extraordinary.” Personal visits to inmates housed in the infirmary are not extraordinary and are allowed according to the Policy and Procedure Manual. See §§ 1512(A)(1)(b) & 1513(C)(a).
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In addition to the County’s knowledge of Ms. Maestas’s incarceration in 2007, and this Court’s visit to her at that tim e, the County or its attorneys clearly took special notice of Ms. Maestas’s detention approximately a year before filing the present motion as demonstrated by the fact that it pulled her Offender Booking Sheets on May 1, 2008, the printed dated on the County’s Exhibits S and U. (Doc. 702 Exs. S & U.) Thes e facts demonstrate that the County knew of this possible basis f or disqualification but deliberat ely waited until after r eceiving an unf avorable decision from this Court on March 31, 2009. Ahltough Ms. Maestas was again recently incarcerated from March 17, 2009 to March 27, 2009, this period of incarceration does not obviate the need for the County to act promptly upon learning facts that support a § 455(b) motion. See Pearson, 203 F.3d at 1276. Plaintiffs and Plaintiff Intervenors correctly state that “[s]tarting the clock from the most recent in a series of interrelated events, asthe County suggests, would allow a party to ignore allegedly disqualifying facts while litigation proceedsand then take advantage of themin a recusal motion only after the party decides that it does noltike the judge’s rule.” (Doc. 711, p. 6.) A motion is untimely when the vast majority of the disqualifying events occurred several years earlier. City of Cleveland v. Cleveland Electric Illuminating Co,.503 F.Supp. 368, 379-80 (N.D. Ohio 1980)s;ee also United States v. Sanford, 157 F.3d 987, 988-89 (5th Cir. 1998) (“The most egregious delay– the closest thing to per se untimeliness– occurs when a party already knows facts purportedly showing an appearance of impropriety but waits until after an adverse decision has been made by the judge before raising the issue of recusal.”).
The County’s extremely late filing of the present motion is a transparent effort to remove a judge from whom the County recently recei ved an unfavorable decision in hopes of having this matter reassigned to a judge who may be more amenable to the County’s position. See Nichols, 71
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F.3d at 351; Greenspan, 26 F.3d at 1006; E. & J. Gallo Winery , 967 F.2d at 1296. “Counsel, knowing the facts claimed to support a § 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only atfer learning the court’s ruling on the merits.” Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986). The County’s tactics are unethical.
D. Recusal is Appropriate Because a Person Might Reasonably Question the Court’s Impartiality
While it is disappointing that the County’s t actics are ultimately successful, the Court’s foremost obligation is to promote public confidence in the integrity and independence of judges. This obligation outweighs the Court’s obligation toquell inappropriate litigation tactics in this case. See Jackson v. Fort Stanton,757 F.Supp. 1231, 1240 (D.N.M. 1990) (“Indeciding whether to recuse himself, the trial judge m ust carefully weigh th e policy of prom oting public confidence in the judiciary against the possibility that those questionni g his impartiality might be seeking to avoid the adverse consequences of his presiding over the case.” (quotation omitted)).
Section 455(a) re quires the Court to recuse if her “im partiality might reasonably be questioned.” After considering all of the facts at issue, the Court finds a person m ay reasonably question whether this Court can set aside the negative opinion it had about the conditions at RCC in the summer of 2007. While admittedly the conditions in 2007 are not currently a disputed issue of fact in this case, and thus recusal is noat ppropriate under § 455(b)(1), the conditions at RCC will undoubtedly be an issue going forward. Although teh Court has no knowledge or opinion regarding the present conditions at RCC, the standard for recusal does not rest upon whether a Court has an actual bias. See Liteky, 510 U.S. at 547. The Court’s expression of its opinion regarding RCC in the past is sufficient for a reasonable person to infer that the Court may not be impartial in this case now that RCC has been identified as a facility subject to this lawsuit. See Nichols, 71 F.3d at 351.
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Avoiding even the appearance ofimpartiality is important and necessary to uphold public confidence in the integrity of the Court and its ability to make fair and impartial decisions. This is the utmost concern of the Court and the reason recusal is appropriate.
Additionally, with respect to t he Court’s sister-in-law, as she is no longer incarcerated at MDC, she is not currently considered a class m ember and thus recusal is not appropriate under § 455(b)(5). (See Doc. 116 (defining the class as “a class ofall persons presently confined in BCDC [now MDC] or who may/will be so confined in the future”)). However, she has been a class member in the past.4 While the Court is confident the fact of Ms. Maestas’s brief membership in the present class has had no bearing on its ability to fairly and impartially consider the issues before it in this case, a reasonable person m ay infer from this relationship that the Court may be impartial. See Nichols, 71 F.3d at 351. Therefore, the Court must also recuse for this reason pursuant to § 455(a).
IT IS THEREFORE ORDEREDthat Defendant Bernalillo County’s Motion to Disqualify and Memorandum in Support Thereof (Doc. 702) is GRANTED.
DATED this 15th day of May, 2009.
________________________________________ MARTHA VÁZQUEZ CHIEF UNITED STATES DISTRICT JUDGE
4 Plaintiffs and Plaintiff Intervenors argue Ms. Maestas is “not a ‘party’ for purposes of the recusal statute because of the breadth of the class and the nature of the relief sought.” (Doc. 711, p. 20.) While the class and subclass in this case is very large, the Court finds it does not represent a “substantial segment of the general public” as courts have defined the phrase. See, e.g., In re City of Houston, 745 F.2d 925, 929-30 (5th Cir. 1984) (recusal not necessary in a voting rights class action in which all voting members of Houston had an equal interest in the lawsuit); In re New Mexico Natural Gas Antitrust Litig., 620 F.2d 794, 796 (10th Cir. 1980) (judge’s status as a natural gas consumer too insubstantial to require recusal).
16

 
 Case 6:95-cv-00024-JAP-ACT Document 828-1 Appellate Case: 09-2095 Document: 01018565861

Filed Date

F0iU2le/n2di2:t/0e1d11/S12tTPa/e2atne0Fgst1eIhC1L1CoEouiPrDfrac2tug5oietf:

A1ppeals

January 12, 2011

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY McCLENDON, a/k/a Billy McClendon; HAROLD LUND; PETER SUMATKAKU; DAVID MICHAEL BAUER; CARL RAY LOPEZ; BRUCE DAVID MORAWE; THOMAS YOUNG; RUTHIE DURAN; DEBORAH LAVERA; JANELLE ROYBAL; DANETTE DIFIORI; MARIA SISNEROS; LARRY GREEN; BARTEL HALEY; MICHAEL COTE; JOE RAY HERRERA; JOSIE KRIENA; DEBBIE LUCERO; DAVID SHAWKIN; MARC A. GILLETTE; GEORGE CHAVEZ; ELISEO BACA; CLINT BARRAS; FRANCISCO MELENDEZ; SAMUAL HERROD; VINCENT PADILLA; CARL DUCKWORTH; JOSEPH W. ANDERSON; PAUL JOHNSON; FRED MALL; HECTOR LOPEZ; RICKY ROSE; HERBERT KING, SR.; JAMES PARKS; MICHAEL A. JOHNSON; JOHNNY VALLEJOS; JOE NEWBERRY; DARRYL CRAFT; ALBERT WILLY; WILLIAM P. JIMMY; AUGUSTINE TAPIA; RICHARD A. SMITH; ROBERT LOVATO; ROY WHATLEY; MARTY BEGAY; MARTIN VALDIVIA; TALLIE THOMAS; AUGUSTINE JACKSON; DONALD HALL; CARL SUR; STEVE ESQUIBEL; LONNIE WHATLEY; JAMES SAIZ; BRYON ZAMORA; ALLEN M. SAWYER; PATRICK BENNY ROMERO; RICHARD C. KOPECKY; PHILLIP SHUMATE; NELSON ROMERO; STEVE JOHNSON; BENNIE

No. 09-2095

Case 6:95-cv-00024-JAP-ACT Document 828-1 Filed 02/22/11 Page 2 of 25 Appellate Case: 09-2095 Document: 01018565861 Date Filed: 01/12/2011 Page: 2
F. GARCIA; LOUIE CHAVEZ; BRIAN SALAZAR; RICHARD GALLEGOS; LARRY STROUD; JAMES BURKS; BRAD FISCHER; AMIHON BACA; JEFF DILLOW; PETE MCQUEEN; MANUEL MARTINEZ; ARNOLD ANTHONY MAESTAS; JOHN HEWATT,
Plaintiffs-Appellees, and E.M.; R.L.; W.A.; D.J.; P.S.; N.W.,
Plaintiff-Intervenors - Appellees, v. CITY OF ALBUQUERQUE; MARTIN CHAVEZ, Mayor of Albuquerque; COUNTY OF BERNALILLO; MICHAEL SISNEROS, Director of Bernalillo County Detention Center, in his official capacity,
Defendants, and BERNALILLO COUNTY BOARD OF COMMISSIONERS; RON TORRES, Warden, Bernalillo County Metropolitan Detention Center,
Defendants - Appellants.
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Case 6:95-cv-00024-JAP-ACT Document 828-1 Filed 02/22/11 Page 3 of 25 Appellate Case: 09-2095 Document: 01018565861 Date Filed: 01/12/2011 Page: 3
Appeal from the United States District Court for the District of New Mexico
(D.C. No. 6:95-CV-00024-MV-ACT)
Jeffrey L. Baker, The Baker Law Firm (Renni Zifferblatt, The Baker Law Firm, and Marcus J. Rael, Jr., Robles, Rael & Anaya, P.C., with him on the briefs), Albuquerque, New Mexico, for Defendants-Appellants. Nancy L. Simmons, Law Offices of Nancy L. Simmons, P.C. (Zachary A. Ives and Molly Schmidt-Nowara, Freedman, Boyd, Hollander, Goldberg, Ives & Duncan P.A., and Peter Cubra and Lisa Y. Schatz-Vance, with her on the briefs), Albuquerque, New Mexico, for Plaintiffs-Appellees.
Before LUCERO and GORSUCH, Circuit Judges, and ARGUELLO*, District Judge.
GORSUCH, Circuit Judge.
This is the latest installment in a long running class action lawsuit about conditions inside Albuquerque’s jails. In this iteration of the case, we must answer only a single question: Does an order withdrawing approval of a class action settlement agreement qualify as a “final decision” subject to appeal under 28 U.S.C. § 1291? The answer is no. Like an order granting a new trial under Fed. R. Civ. P. 59, or an order granting relief from a judgment under Fed. R. Civ. P. 60(b), an order unraveling a class action settlement agreement is anything but a
* Honorable Christine M. Arguello, District Court Judge, District of Colorado, sitting by designation.
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“final decision.” Such an order simply presses the reset button, vacates any prior final decision, and marks the case for renewed litigation. Without a final decision amenable to our review under § 1291, we must and do dismiss this appeal.
I While the history of this dispute is long and complex, for purposes of this appeal a thumbnail sketch will do. In 1995, the plaintiffs sued the City of Albuquerque, Bernalillo County, and various individuals involved in operating the Bernalillo County Detention Center (“BCDC”). The plaintiffs sought to represent a class of “all prisoners who are presently, or will be confined in the” BCDC. Compl. ¶ 1. Soon, other members of the class intervened to form a sub-class seeking to represent “persons with mental and/or developmental disabilities who are now, or in the future will be, detained at” BCDC. Aplt. App. at 341. The plaintiffs alleged that the conditions at BCDC were constitutionally deficient due, in large part, to overcrowding. Eventually, after the class and subclass sought and received certification, the parties negotiated a pair of settlement agreements — one for the class and another for the sub-class — which the court approved in 1997 and over which it retained continuing jurisdiction. The parties operated under these agreements until 2003 when the County built a new jail, the Metropolitan Detention Center (“MDC”), and transferred all the prisoners from BCDC to MDC. But this transfer only prompted a new dispute. The plaintiffs argued that the 1997 settlement
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agreements should, in effect, transfer with all of the County’s prisoners to the new MDC and govern the defendants’ conduct there. For their part, the County and the other defendants opposed extending the agreements to MDC. After much wrangling, the parties eventually reached a new pair of settlement agreements that superseded the 1997 deals. By their express terms, the new agreements governed conditions only at MDC. Pursuant to Fed. R. Civ. P. 23(e), the district court gave its approval to these new agreements in June 2005 and, as before, retained continuing jurisdiction over their implementation.
The 2005 agreements soon ran into trouble of their own. After moving all its prisoners from BCDC to MDC, the County signed an Inter-Governmental Agreement (“IGA”) with the federal government that allowed federal detainees to be housed at BCDC. Under the terms of the IGA, the County bore certain contractual responsibilities concerning the care and treatment of federal detainees. At the same time, however, the County wasn’t required to operate BCDC but was allowed instead to contract out operational obligations to a private company, Cornell Corporation. According to the plaintiffs, however, the County misrepresented this arrangement to them by suggesting that Cornell alone bore contractual duties to the federal government. And it was only because of this alleged misrepresentation, the plaintiffs say, that they agreed to restrict the coverage of the 2005 settlement agreements to the MDC facility rather than to
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insist on a deal that continued to address the treatment of prisoners in the BCDC facility.
After the plaintiffs claimed they learned the true nature of the County’s role in the IGA, they brought the issue to the district court’s attention. Many motions and responses and arguments followed, all of which culminated in the district court’s March 31, 2009 order finding that the County had misrepresented to the plaintiffs its IGA interactions with the federal government. Based on this finding, the district court withdrew its Rule 23(e) approval of the 2005 settlement agreements and gave the plaintiffs permission to rescind those agreements, which the plaintiffs proceeded to do. Shortly after issuing its decision, the district court judge found that she needed to recuse from the case and the matter was assigned to a new judge.
II The defendants now seek to appeal the district court’s March 31, 2009 order. In their appeal, the defendants raise a host of arguments for reversal, including a contention that the district court judge should have recused herself before issuing the March 31, 2009 order and so allowed another judge to consider the plaintiffs’ complaint that they had been misled. But before the defendants can get to any of that, they bear the burden of establishing this court’s authority to hear their appeal. This burden, the defendants say, they can carry for a variety of reasons: the March 31, 2009 order they seek to challenge came after a final
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judgment; the order is appealable under the collateral order doctrine; and the order implicates the jurisdictional authority of the district court. We address each of these theories in turn.
A The courts of appeals are creations of Congress and the boundaries of their jurisdiction are staked by statute. When it comes to when federal appellate courts may take a case, Congress has said that we may usually hear appeals only from “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. And a final decision does not normally occur “until there has been a decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). A final decision is, put differently, one by which the district court “disassociates itself from a case.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995); Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 604-05 (2009). Undergirding the final decision rule is Congress’s implicit judgment that the district judge is best positioned to bear primary responsibility for policing the tactics and maneuvers of the litigants in ongoing litigation — and that the district judge can better exercise this responsibility if appellate courts do not regularly intervene and second-guess the district judge’s rulings before he or she has reached a final decision on a particular matter. Better to wait until the district
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judge has made up his or her mind than to intervene when things remain in flux and the district court could still reverse course and provide the very relief a complaining party might seek to achieve in an appeal. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 436 (1985); United States v. Wampler, 624 F.3d 1330, 1334-35 (10th Cir. 2010).
The defendants say their appeal satisfies the final decision rule because the district court’s 1997 order (and perhaps its 2005 order) approving the parties’ settlement agreements were final judgments for purposes of Fed. R. Civ. P. 58. In the defendants’ view, because an appealable final decision (or decisions) preceded the March 31, 2009 order, this makes the March 31, 2009 order a final decision, too. Put simply, in the defendants’ estimation, any post-judgment order is automatically subject to appellate review.
This is mistaken. While the defendants are correct that a final judgment is the paradigmatic “final decision” appealable under § 1291, see Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989), it doesn’t follow from this fact that every case with a final judgment in it is appealable. The defendants are too quick to generalize and in doing so run afoul of the logical fallacy of accident. See generally Nicholas Bunnin & Jiyuan Yu, The Blackwell Dictionary of Western Philosophy 248 (2004). Just because all the people you’ve met lately are kind doesn’t mean all people are kind. In much the same way, just because final
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judgments can be appealed doesn’t mean everything in every case that has a final judgment may be appealed.
Fact is, every post-judgment decision must be assessed on its own terms to determine whether it is a final decision amenable to appeal. The plain language of § 1291 tells us as much, authorizing this court to entertain only “final decisions” — that is, decisions that are themselves final — not any old decision in any case where a final judgment happens to be knocking about. And while it is surely true that many post-judgment orders qualify as final decisions on their own terms, not every post-judgment order does. See 19-202 Moore’s Federal Practice § 202.13.
The nature of the defendants’ appeal in this case illustrates as much. Before this court, the defendants seek to challenge only the March 31, 2009 order, not the 1997 or 2005 orders that, they contend, constitute final judgments.1 The defendants’ arguments before us thus aren’t aimed at attacking any final judgment. Just the opposite, in fact: the defendants seek the benefit of those putative final judgments, challenging only the March 31, 2009 order that effectively undid them. So it is that, when assessing our authority to hear this appeal, our focus naturally turns, as it must, to the district court order that the
1 Of course, the plaintiffs dispute whether the 1997 or 2005 orders amounted to final judgments, and both parties devote many pages of briefing to that question. But we don’t need to resolve this dispute because as we explain, even assuming without deciding that the orders were final judgments, this doesn’t help the defendants’ cause.
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defendants’ appeal seeks to attack, not other orders the appeal doesn’t seek to upset.
Properly framed, then, this appeal raises the question whether an order withdrawing a settlement approval is an appealable final decision. And the answer to that question must be no. A district court’s order in these circumstances doesn’t “disassociate” the court from the case; it doesn’t “end the litigation on the merits.” Just the opposite: the order ensures litigation on the merits will continue in the district court. If the 1997 and 2005 orders approving the parties’ settlement agreements amounted to final judgments, the March 31, 2009 order was their antithesis, obliterating any finality the case might have once enjoyed, “vacat[ing] [the] judgment and set[ting] the stage for further trial court proceedings.” 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. § 3916, p. 367 (2d ed. 1992) (“Wright & Miller”). The district court’s challenged order essentially indicates that any prior final decision is defunct, gone, and further litigation on the merits must resume, and the usual rule that we must not interfere with ongoing district court proceedings governs.
That this is so even the defendants cannot help but confirm backhandedly, complaining to us as they do that the district court’s March 31, 2009 order means they will “face[] the very serious and unwholesome prospect of protracted litigation of a class action lawsuit.” Aplt. Br. in Supp. of Appellate Jurisdiction at 18. Whether or not the renewed proceedings in district court will be
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unwholesome or protracted we don’t know. But the defendants are surely right that, under the order’s terms, they face more litigation on the merits in the district court. And that irrepressible fact dictates our conclusion that the March 31, 2009 order is no final decision.
Our holding finds compelling parallels in other contexts. In a pair of decisions for this court, Judge Brorby has explained that an order granting a motion under Fed. R. Civ. P. 60(b) reopening a judgment and an order declining to enter a proposed consent decree are not appealable under § 1291. This is because in both situations “the district court’s order ensures that litigation [on the merits] will continue in the district court.” Utah v. Kennecott Corp., 14 F.3d 1489, 1492 (10th Cir. 1994); see also Stubblefield v. Windsor Cap. Grp., 74 F.3d 990, 996 (10th Cir. 1996). Likewise, we have long held that a district court’s post-judgment order granting a new trial pursuant to Fed. R. Civ. P. 59 isn’t an appealable final decision for the same reason. See, e.g., Delano v. Kitch, 663 F.2d 990, 1001 (10th Cir. 1981); Kanatser v. Chrysler Corp., 195 F.2d 104, 105 (10th Cir. 1952); see also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). A final appealable judgment may well already exist in a case before a motion under either Rule 59 or Rule 60(b) is filed. But the fact a preexisting judgment exists doesn’t mean an order granting relief under those provisions is itself also appealable. Far from it, such orders generally aren’t appealable
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because, just as here, they set aside or undo a judgment and so settle nothing with finality except the fact that more litigation is on the way.
Rather than focus on these parallels, defendants ask us to look to an unpublished (and so non-binding) decision, Roose v. Patrick, 98 F. App’x 719 (10th Cir. 2004), that, they say, should lead us to conclude all post-judgment orders are appealable final decisions. Examining Roose, however, confirms the opposite conclusion. After the district court entered a judgment dismissing her case, Karen Roose filed a motion for leave to file a second amended complaint. Id. at 721. The district court denied the motion and Ms. Roose sought to appeal this post-judgment order. Id. We permitted the appeal only because the court’s order finally decided the amended complaint issue and no further proceedings were contemplated in the district court. Id. at 722-23. In this way, Roose is similar to the situation where a district court denies a post-judgment motion to reopen a final judgment under Rule 60(b), or where it denies a motion for a new trial under Rule 59 — decisions we’ve said usually qualify as final decisions for purposes of § 1291 because they usually signal that the district court’s business is done, that it has disassociated itself from the case, that we may act without stepping on the district court’s toes. See, e.g., Stubblefield, 74 F.3d at 993; see also Wright & Miller § 3916 at 362 (“The general rule that appeal can be taken from final denial of a motion to vacate a judgment is well settled.”). But none of this speaks to the converse situation now before us, where a post-judgment order
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grants relief vacating a judgment. Indeed, Roose only serves to highlight the profound analytical difference between post-judgment orders that decline to undo the judgment (a situation which usually marks the end of the parties’ road in district court) and those that grant such relief (and so signal only that litigation in the district court is far from done).
B While the district court’s March 31, 2009 order may not disassociate the district court from the case, the defendants reply that it does at least finally decide that the district court’s earlier 1997 and 2005 decisions aren’t final. Put differently, the defendants argue that the March 31, 2009 order deprives them of the repose secured by the parties’ earlier settlement agreements — the right to avoid trial or at least renewed litigation. And this right, they say, will be irretrievably — or finally — lost if appellate review is deferred. But that is not enough. Many interlocutory orders can be characterized as “final” in the sense that they “irretrievably” decide a question about the scope and duration of the district court’s proceedings. Should this deposition proceed? Should that interrogatory be allowed? How about this or that question in crossexamination? The district court’s decisions on any of these questions can be “final” in the sense that they are definitive and not practically reviewable later. But they rarely qualify as final appealable decisions for purposes of § 1291 because they do not signal the litigation is over; neither do they disassociate the
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district court from the case. To decide such questions would require us to do exactly what Congress has told us not to do — enmesh ourselves in the job of policing the parties’ tactics and maneuvers in ongoing district court litigation. Neither, in any event, are the district court’s decisions themselves always as final as they seem: the parties remain free to seek, and in most cases the district court remains free to revisit and reconsider, interlocutory rulings on questions like whether a deposition should be allowed or a settlement agreement disallowed. To be a final decision in the relevant sense for § 1291, then, it is generally not enough that a decision might seem at one point to “irretrievably decide” the scope and duration of litigation in the district court; usually it must end that litigation.
The defendants urge that a contrary result is compelled by Cohen v. Beneficial Industries Loan Corp., 337 U.S. 541 (1949), which held that certain otherwise interlocutory orders can qualify for appeal under § 1291 when they concern some “collateral” issue and have “practically final” effects on the parties. Id. at 546. The undoing of a settlement agreement is not among those matters appealable under Cohen, however.
Neither can our conclusion on this score come as a surprise. We said as much long ago, in Desktop Direct, Inc. v. Digital Equipment Corp, 993 F.2d 755 (10th Cir. 1993). There, a party attempted to appeal a district court’s postjudgment order rescinding a final judgment that was predicated on a settlement agreement between the parties. The district court had rescinded the final
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judgment because, much as here, the parties’ settlement agreement had been induced by a misrepresentation. Id. at 756. Before this court, the putative appellant argued that, unless its appeal was heard immediately, it would forever lose the right — guaranteed to it by the parties’ settlement agreement — not to endure further litigation in the district court. Id. at 758. Writing for this court, Judge Logan declined to permit an appeal under Cohen. Id. at 760. The Supreme Court then granted certiorari and proceeded to affirm Judge Logan’s decision unanimously. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 884 (1994). In doing so, the Supreme Court explained that “Congress’s final decision rule would end up a pretty puny one” if immediate appellate review, whether under Cohen or otherwise, were available every time a party claimed that some interest, such as the right not to stand trial, would be “irretrievably lost” due to an erroneous district court decision. Id. at 872. So it is that, as Desktop Direct held and we reaffirm today, a settlement agreement’s promise against future litigation, in whatever form, is insufficient to warrant an appeal under the Cohen doctrine. It is insufficient here in the civil context when a party seeks to enforce a rescinded settlement agreement, and it is equally insufficient in the criminal context when a party seeks to enforce a rejected plea deal, see Wampler, 624 F.3d at 1335.
The reason for this rule, the Supreme Court has explained, lies in the fact that the only time a claimed “right not to stand trial” will justify immediate
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appellate review under Cohen is when a “statutory or constitutional” provision guarantees that claimed right. Digital Equip., 511 U.S. at 874; Desktop Direct, 993 F.2d at 760. And this is because, as the Supreme Court has frankly put it, statutory and constitutional guarantees against having to stand trial are more important than analogous legal entitlements arising from other instruments, including settlement or plea agreements. Digital Equip., 511 U.S. at 877-78. Settlement and plea agreements are, after all, the creation of the parties and may bear only what force of law a court, in its judgment, will allow. See Wampler, 624 F.3d at 1338. Meanwhile, a statutory (or, of course, a constitutional) entitlement that includes a right not to be tried — a right that by its terms contemplates vindication prior to trial — is different in kind because courts in our constitutional order are bound to find some way to reconcile it with § 1291’s competing statutory command: “Where statutory and constitutional rights [not to be tried] are concerned . . . the collateral order doctrine might . . . be understood as reflecting the familiar principle of statutory construction that, when possible, courts should construe statutes (here § 1291) to foster harmony with other statutory and constitutional law.” Digital Equip., 511 U.S. at 879; Wampler, 624 F.3d at 1336.
If there is to be any change to the Supreme Court’s bright line rule disallowing immediate appeals based solely on a settlement or plea agreement purporting to grant a right not to stand trial, the Court has indicated it must not be
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through litigation in this court but through a different avenue altogether. While Cohen was once essentially the only game in town for securing appellate review of “practically” final but otherwise interlocutory district court orders, Congress has since amended the Rules Enabling Act to allow the Supreme Court to prescribe rules “defin[ing] when a ruling of a district court is final for the purposes of appeal under section 1291.” 28 U.S.C. § 2072(c). Thus, a congressionally prescribed means now exists for defining when a matter is sufficiently or “practically” final to warrant appellate review. (And, of course, Congress is and has always been free itself to create exceptions to the finality rule — a freedom Congress has demonstrated its willingness to exercise when it thinks appropriate, see Wampler, 624 F.3d at 1338 n.4). Given this development, it makes sense that “[a]ny further avenue for immediate appeal” of interlocutory rulings not amenable to Cohen, including those involving a putative right not to stand trial guaranteed by a plea or settlement agreement, “‘should be furnished, if at all, through rulemaking, with the opportunity for full airing it provides,’ not through further [ad hoc] case-by-case expansion of the Cohen doctrine.” Wampler, 624 F.3d at 1338 (quoting Mohawk Indus., Inc., 130 S. Ct. at 609).2
2 The concurrence’s worries about the preceding two paragraphs are misplaced. It is hardly “unnecessary” or somehow inappropriate dicta for this court to state the essential reasons for its ruling: the discipline of having to justify our decisions, transparently and in writing, is a constraining (not liberating) force, fostering the sort of reasoned decisionmaking our courts aspire to provide and our citizens expect. Neither is there anything remarkable in the
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C
Unsuccessful in their main efforts at securing an appeal, the defendants
seem at times to try still a different approach. They sometimes appear to suggest
we should allow their appeal under § 1291 because the district court lacked
jurisdiction to withdraw its previous order granting Rule 23(e) approval of the
parties’ settlement agreements. Or at least because this particular district judge
lacked legal authority to act because she should have (in the defendants’ view)
2(...continued) reasons we offer. Since Midland Asphalt v. United States was decided in 1989, it has been settled law that “[a] right not to be tried in the sense relevant to the Cohen exception” must rest upon a “statutory or constitutional guarantee that trial will not occur.” 489 U.S. at 801. Our circuit long ago recognized that this rule applies not only to claimed rights to avoid criminal trials, but also to asserted rights to avoid civil trials. Desktop Direct, 993 F.2d at 759-60. The Supreme Court affirmed this conclusion, and in doing so it expressly reconciled Midland’s rule with the continued availability of interlocutory appeals from decisions denying qualified immunity. The Supreme Court explained that, although “the qualified immunity right is inexplicit,” it nonetheless does enjoy a sufficiently “good pedigree in public law” to come within Midland’s requirement that a right not to be tried have a statutory or constitutional basis. Digital Equip., 511 U.S. at 875 (emphasis added). Perhaps the concurrence is dissatisfied with the High Court’s explanation, unconvinced by its effort to reconcile Midland’s rule with the continued availability of qualified immunity appeals, but this hardly alters the binding effect of the Court’s pronouncements on us. Moreover, we do nothing to “undermine” (let alone “reverse”) Cohen simply by following the Court’s direction not to expand the collateral order doctrine to permit appeals like this one. And we certainly say nothing extraordinary when we observe that where, as here, the Cohen doctrine affords a litigant no opportunity for immediate appeal, the Supreme Court has told us and litigants alike — repeatedly, and in a variety of different contexts — that any pleas to expand appellate jurisdiction ought be directed to the Rules Committee, not our doorstep. See, e.g., Mohawk Indus., Inc., 130 S. Ct. at 609; Cunningham v. Hamilton Cnty., 527 U.S. 198, 210 (1999); Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 48 (1995).
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disqualified herself before issuing the March 31, 2009 order. But whether the March 31, 2009 order was entered with or without jurisdiction or in error has nothing to do with the question whether that order was a final decision for purposes of § 1291. Whatever problem may or may not lurk in the district court’s March 31, 2009 decision, it wasn’t a final one. And that’s the dispositive point.
If the rule were otherwise — if a party could win admission into the court of appeals by, say, characterizing a district court’s challenged action as lacking a “jurisdictional” basis — no doubt the only thing that’d follow would be a flurry of “imaginative attempts to [re]characterize asserted errors as matters of district court power.” Wright & Miller § 3916, at 371. Instead of focusing on whether the district court’s decision was final, the parties would spend their time arguing, and we would spend our time asking, whether the district court’s decision is fairly characterized as jurisdictional. And that’s often a slippery question. The word “jurisdiction” has “many, too many meanings,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (internal quotation omitted), it is “capable of different interpretations,” Rumsfeld v. Padilla, 542 U.S. 426, 434 n.7 (2004), and it has sometimes been used with “excessive[] exuberan[ce]” to encompass “things other than the [true] absence of constitutional or statutory power to adjudicate a matter,” Flitton v. Primary Residential Mortg., 614 F.3d 1173, 1182 (10th Cir. 2010) (Gorsuch, J., concurring in part and dissenting in part).
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Even more problematic for defendants than the practical problems
associated with their proffered test, it asks the wrong question. In § 1291,
Congress told us to ask only whether a district court’s decision is final and
Congress’s direction demands our respect, not our rewriting. Neither is there any
need for rewriting. Congress has already provided a way for parties to challenge
a district court’s erroneous assertion of jurisdiction before the entry of a final
judgment. That path is paved by 28 U.S.C. § 1651(a) and its approval of writs of
mandamus. See, e.g., In re C & M Properties, 563 F.3d 1156, 1163 (10th Cir.
2009). One of the primary functions of writs of mandamus has long been, and
still is, to address situations where district courts exceed the bounds of their
congressionally prescribed jurisdiction. Ours would be an exceedingly odd
jurisprudence if we could rewrite Congress’s direction in § 1291 to allow the
defendants to raise a jurisdictional complaint in this court on easier and different
terms than Congress itself has authorized in § 1651.3
3 One might wonder whether a writ of mandamus would be an appropriate remedy in this case. It is unclear whether the defendants think so, however, given that they haven’t petitioned the court for a writ. Though we have sometimes acted on our motion to treat improper § 1291 appeals as petitions for writs of mandamus, see, e.g., C & M Properties, 563 F.3d at 1163, no party is entitled to have this court proceed in that fashion. Cf. Kaw Nation ex rel. McCauley v. Lujan, 378 F.3d 1139, 1142 (10th Cir. 2004) (“we need not consider a new argument in support of jurisdiction” not raised in a party’s opening brief). Our decision to do so is a discretionary one. Neither will we exercise our discretion to convert an appeal into a mandamus petition when it is unclear from the arguments developed before us whether a writ should issue. And that circumstance pertains here. Whether or not a writ should issue, the briefing
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III
This case is fifteen years old and, the defendants worry, marked for still
more years dragging before the courts. No doubt that’s why they have tried so
hard to secure appellate review now, in an effort to bring some measure of
certainty and closure to this proceeding. We are hardly impervious to the
defendants’ concerns: the delays and costs associated with civil litigation in
modern America are substantial and worrisome, and even the most hard-boiled
litigator may raise an eyebrow at a case lasting as long as this one. We are no
less hopeful than the defendants that the able district court judge newly assigned
to this case will facilitate its expeditious progress toward a lasting final judgment.
Neither will the defendants be left without any means for raising the points of
error they seek to pursue in this appeal: a district judge may revisit and
reconsider not only his or her own interlocutory rulings but also those of a
disqualified predecessor; and, of course, there will come a day when this case will
reach final judgment and so become amenable to appellate review. Likewise, if
this case languishes, the defendants, like all litigants, have (and always had) the
3(...continued) currently before us doesn’t enable us to decide that question confidently either way. A writ of mandamus is an extraordinary remedy, one we grant only when the party seeking review is clearly and indisputably entitled to relief. See C & M Properties, 563 F.3d at 1163. Without adequate current guidance on those questions, we decline to fumble along on our own. “Our system of justice, after all, is not a self-directed inquisitorial one; to avoid error, we are dependent on the full development of issues through the adversarial process . . . .” Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007).
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Case 6:95-cv-00024-JAP-ACT Document 828-1 Filed 02/22/11 Page 22 of 25 Appellate Case: 09-2095 Document: 01018565861 Date Filed: 01/12/2011 Page: 22 ability to seek mandamus, which functions not only to confine district courts to their jurisdiction but also to “compel [them] to exercise [their] authority when it is [their] duty to do so.” In re Antrobus, 519 F.3d 1123, 1124 (10th Cir. 2008) (internal quotation omitted). But one thing we may never do is disregard the bounds of our legal authority and assert § 1291 jurisdiction over an appeal where it doesn’t exist. To do so in this case would compound any error the defendants imagine with an impropriety of our own, making matters worse not better. It is, after all, a “central principle of a free society that courts,” no less than the other branches of government, “have finite bounds of authority.” U.S. Catholic Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77 (1988). We must respect that principle and those bounds no less when it is hard to do so than when it is easy. This appeal is
Dismissed.
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McClendon v. Albuquerque, 09-2095 (Lucero, J., concurring). I concur in the majority opinion, save for the last two paragraphs of Part II(B).
There can be no dispute but that (1) the order being appealed was not a final order; and (2) this case is indistinguishable from Desktop Direct, Inc. v. Digital Equipment Corp., 993 F.2d 755, 756 (10th Cir. 1993). I write separately solely to address the final two paragraphs of Part II(B).
Given that this case is factually indistinguishable from Desktop Direct, that appears to me to end the matter. The subject two paragraphs of Part II(B) are analytically unnecessary and are in the nature of dicta. But for their extraneous nature, these paragraphs would present two serious consequences.
First, the majority states that “the only time a claimed right not to stand trial will justify immediate appellate review under Cohen[ v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),] is when a statutory or constitutional provision guarantees that claimed right.” (Majority Op. 15-16 (quotation omitted).) The majority cites Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 874 (1994), to support this proposition. However, in that case, the Court explicitly declined to so limit Cohen, holding that rights embodied in constitutional or statutory provisions are more likely to be deemed “important,” but “there is no need to decide here that a privately conferred right could never supply the basis of a collateral order appeal.” Id.
The majority’s contrary language is an unfortunate misreading of the law. If followed, this would present adverse consequences for established legal principles. For example, we allow interlocutory review of denials of qualified immunity. That principle

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flows from “an entitlement not to stand trial.” Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). Yet qualified immunity is not guaranteed by statute or the Constitution. It is a judge-made doctrine.1 See, e.g., Oscarson v. Office of Senate Sergeant at Arms, 550 F.3d
1, 3 (D.C. Cir. 2008) (qualified immunity is “entirely a judicial creation”). Applying the
rule the majority proposes would mean an end to interlocutory review of qualified
immunity denials.
Second, the majority would impermissibly limit Cohen. Because of amendments
to the Rules Enabling Act, the majority decrees:
“[A]ny further avenue for immediate appeal” of interlocutory rulings not amenable to Cohen, including those involving a putative right not to stand trial guaranteed by a plea or settlement agreement, “should be furnished, if at all, through rulemaking with the opportunity for full airing it provides,” not through further ad hoc case-by-case expansion of the Cohen doctrine.
(Majority Op. 17 (quoting Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 609 (2009)
(alterations omitted))); see also United States v. Wampler, 624 F.3d 1330, 1338 (10th Cir.
2010) (Gorsuch, J.) (using a similar quotation). I of course have no objection to the
proposition that appeal of interlocutory rulings “not amenable to Cohen” should be
provided by rulemaking rather than expansion of Cohen. Mohawk Industries, however,
holds only that orders to disclose materials over a claimed attorney-client privilege are
not amenable to Cohen. Mohawk Indus., 130 S. Ct. at 609 (emphasis added). Mohawk
1 Regardless, says the majority, qualified immunity “enjoy[s] a sufficiently ‘good pedigree in public law’ to come within [the] requirement that a right not to be tried have a statutory or constitutional basis.” (Majority Op. 18 n.2. (quoting Digital Equip., 511 U.S. at 875).) But Digital Equipment merely cited this “good pedigree” as proof that, unlike some “implicit” rights not to stand trial, qualified immunity is important enough to fall under Cohen. See Digital Equip., 511 U.S. at 875, 882. At no point does the case imply that qualified immunity has a constitutional or statutory basis.
2

Case 6:95-cv-00024-JAP-ACT Document 828-1 Filed 02/22/11 Page 25 of 25 Appellate Case: 09-2095 Document: 01018565861 Date Filed: 01/12/2011 Page: 25
Industries does not speak of claimed rights “not to stand trial guaranteed by a plea or settlement agreement.” The Rules Enabling Act decrees “rulemaking, not expansion by court decision,” the preferred method for creating new avenues for interlocutory appeals, see id.; rulemaking is not mandated as the only method. Mohawk Industries preserved, and notably applied, Cohen. Mohawk Indus., 130 S. Ct. at 607. If Cohen is to be reversed or undermined, the Supreme Court has cautioned us that “it is th[e] Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
As noted, the last two paragraphs of Part II(B) are unnecessary to our ruling today, and therefore are in the nature of dicta. Because it is not harmless dicta, I specially concur.
3

 
 Case 6:95-cv-00024-JAP-ACT Document 1009 Filed 06/25/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JIMMY McCLENDON, et al.

Plaintiffs,

vs.

Case No. 95 CV 24 JAP/ACT

CITY OF ALBUQUERQUE, et al.

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and others similarly situated,

Plaintiff-Intervenors.

MEMORANDUM OPINION AND ORDER OVERRULING OBJECTION TO MAGISTRATE JUDGE’S ORDER

On October 12, 2012, Magistrate Judge Alan C. Torgerson issued a MEMORANDUM

OPINION AND ORDER (Doc. No. 962) (Opinion and Order) denying PLAINTIFFS’ AND

PLAINITFF-INTERVENORS’ JOINT MOTION FOR ENFORCEMENT OF INTERIM

ORDER REGARDING ACCESS TO THE MDC (Doc. No. 945) (Joint Motion for

Enforcement). On October 26, 2012, PLAINTIFFS AND PLAINTIFF-INTERVENORS’

JOINT OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT MOTION

FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc.

No. 965) (Objection) was filed.1 Since the Joint Motion for Enforcement, the Opinion and

1 In ruling on the Joint Motion for Enforcement, the Court has also considered COUNTY DEFENDANT’S RESPONSE TO JOINT OBJECTIONS (Doc. No. 971) and PLAINTIFFS AND PLAINTIFF-INTERVENORS’ JOINT REPLY TO COUNTY DEFENDANT’S RESPONSE TO THE JOINT OBJECTIONS (Doc. No. 974).
1

Case 6:95-cv-00024-JAP-ACT Document 1009 Filed 06/25/13 Page 2 of 2 Order, and the Objection were filed this case has moved in a substantially different direction and may be nearing settlement. Due to the current posture of the case, the Court will overrule the Objection without prejudice at this time. If the direction of this case changes, Plaintiffs and Plaintiff-Intervenors may renew the Objection, and it will be considered on the merits.
IT IS ORDERED that PLAINTIFFS AND PLAINTIFF-INTERVENORS’ JOINT OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 965) are overruled without prejudice.
SENIOR UNITED STATES DISTRICT JUDGE
2

 
 29 F.Supp.2d 1267 (1996)
Jimmy (aka Billy) McCLENDON, et al., Plaintiffs, v.
CITY OF ALBUQUERQUE, et al., Defendants.
Civ. No. 95-24MV/RLP.
United States District Court, D. New Mexico.
October 29, 1996.
1268 *1268 Anthony J. Ayala, Albuquerque, NM, Richard A. Winterbottom, Stout & Winterbottom, Albuquerque, NM, Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Albuquerque, NM, Mary Y.C. Han, Albuquerque, NM, Shannon L. Oliver, Albuquerque, NM, Joseph P. Kennedy, Albuquerque, NM, for plaintiffs.
Nancy Koenigsberg, Protection & Advocacy System, Inc., Albuquerque, NM, Elizabeth E. Simpson, Tomita & Simpson, Albuquerque, NM, Peter Cubra, Albuquerque, NM, for intervenor-plaintiffs.
Lawrence A. Johnson, Los Lunas, NM, pro se.
Jeffrey L. Baker, Baker Law Firm, Albuquerque, NM, Carol Jean Ritchie, Felker, Ish, Hatcher, Ritchie, Sullivan & Geer, Santa Fe, NM, John E. DuBois, NM Legal Bureau/RMD, Santa Fe, NM, for defendants.
MEMORANDUM OPINION AND ORDER
VAZQUEZ, District Judge.
THIS MATTER came on for consideration of Defendants' Motion for Immediate Termination of Prospective Relief Regarding Overpopulation Granted or Approved by the Court's Orders Dated August 23, September 7, 1995 and March 22 and March 25, 1996 (filed September 13, 1996). A hearing on the constitutionality of the Prison Reform Litigation Act ("PLRA" or "Act"), 28 U.S.C. 3626, upon which Defendants' motion is based was held on October 11, 1996, after which the Court took the matter under advisement. After consideration of the relevant facts, authorities, and arguments of counsel, the Court finds that the Section 3626(e) of the Act is unconstitutional and accordingly the prospective relief granted by the Court and agreed to by the parties will not be stayed pending this Court's consideration of Defendants' motion.
BACKGROUND
On April 26, 1996 the PLRA was signed into law. Pursuant to 18 U.S.C. § 3626(b)(2) of the PLRA, "[i]n any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." The prospective relief granted by the Court will not terminate, however, "if the Court makes written findings based on the record that prospective relief remains necessary to correct a current or ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation." 18 U.S.C. § 3626(b)(3). If the required findings are not made within 30 days from the date Defendants file their motion to terminate, the prospective relief granted by the Court is stayed automatically until the Court enters a final ruling on the motion. 18 U.S.C. § 3626(e).
In the instant case, Plaintiffs filed this suit on January 10, 1995, alleging that the conditions at the Bernalillo County Detention Center ("BCDC") are unlawful and unconstitutional. In particular, Plaintiffs alleged that the

overcrowding at BCDC had led and continues to lead to violations of their constitutional rights. From the inception of this suit, Defendants conceded that BCDC was overpopulated and offered the Court their proposal for reducing the inmate population. The Court adopted Defendants' proposal to a large extent in its August 23, 1995 Order granting Plaintiffs preliminary injunctive relief. Part I of the Order directs BCDC to reduce the inmate population according to a schedule of progressively decreasing population caps. The Court retained jurisdiction to review and modify its Order.
Admittedly, the Court's August 23, 1995 Order does not contain a finding that the extent of overcrowding at BCDC resulted in a violation of the residents' federal rights or a finding that the relief granted was narrowly drawn 1269 or extended no further than necessary to correct the violation of a federal right *1269 as required by the PLRA. However, the standard for issuing a preliminary injunction does not require the Court to find that Plaintiffs have sustained their ultimate burden of proving that Defendants violated Plaintiffs' federal rights. Instead, the Court was only required to find that Plaintiffs demonstrated a substantial likelihood of success on the merits. See Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). The Court made that finding. See Order, p. 10, ¶ 5, filed August 23, 1995.[1]
On September 7, 1995, Plaintiffs and Defendants entered into a settlement agreement which was approved by Court Order the same date.[2] Defendants made no admission that Plaintiffs' federal rights had been violated, but agreed that the Court's August 23, 1995 Order be converted to a permanent injunction and that the Court retain jurisdiction to enforce and/or modify the permanent injunction. In return, Plaintiffs agreed to dismiss with prejudice Parts I and II of their Complaint which alleged that Defendants had systematically violated the United States and/ or New Mexico Constitutions. See Settlement Agreement, p. 2, ¶ 5. Shortly thereafter, Plaintiffs settled their individual claims against Defendants.
On March 22, 1996, the Court entered an Order which, in pertinent part, limits the number of residents which may be housed in BCDC's alternative detention facilities, including military tents, the basement of the Second Judicial District's Courthouse and the Montessa Park warehouse. The Court's March 25, 1996 Order directs the Defendants, in pertinent part, to comply with the population caps set forth in the Court's August 23, 1996 Order.
Prior to the instant motion being filed on September 13, 1996, the status of this case was that all of Plaintiffs' claims had been dismissed pursuant to settlement agreements and only Plaintiff Intervenors' claims remained to be litigated. Now, however, Defendants assert that the passage of the PLRA and the Supreme Court's opinion in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (June 24, 1996) relieve them of the obligation to comply with portions of the above mentioned orders and the September 7 settlement agreement. In addition, Defendants assert that Plaintiffs' claims for injunctive relief which were dismissed pursuant to the settlement agreement are now moot as all of the named Plaintiffs are no longer incarcerated at BCDC.[3]
Specifically, Defendants assert that they are no longer bound by the population caps recommended by them and adopted by the Court. Currently, Defendants are enjoined from housing more than 649 residents. That number will be reduced to 592 residents on November 22, 1996. Defendants admit that they filed the instant motion because they are finding it increasingly difficult to comply with the current population cap and will most likely be unable to comply with the November 22, 1996 benchmark. Defendants remain steadfast in their refusal to implement the Matrix Release System.
Pursuant to Section 3626(e)(2) of the Act, prospective relief shall be automatically stayed beginning the 30th day after a motion for immediate termination is filed. In this case that date is October 14, 1996. On October 11, 1996, 1270 the date the hearing on the constitutionality of the Act was held, the *1270 parties entered into a stipulation approved by the Court which provides that Defendants will waive the automatic stay provision and continue to comply with the population caps for at least an additional 30 days. Defendants are unwilling to waive the automatic stay provision for more than thirty days because they concede that they will be unable to comply with that population cap.
At the status conference following the October 11, 1996 hearing, the Court scheduled a week long hearing to commence on November 4, 1996. Even with the thirty day extension provided by the stipulation, all parties agree that the additional time is insufficient to conduct discovery which will enable them to competently make an

evidentiary presentation which attempts to satisfy the onerous requirements of the PLRA and Lewis v. Casey.[4] Both Plaintiffs and Plaintiff Intervenors believe that their clients will be severely prejudiced if they are forced to make an evidentiary presentation of the magnitude required by Lewis v. Casey beginning on November 4, 1996. [5] Plaintiffs and Plaintiff Intervenors indicated that they need to conduct various depositions, make requests for admissions, propound interrogatories and possibly file motions to compel. Plaintiffs' counsel also indicated that she must attempt to make contact with the approximately seventy-three Plaintiffs, most of whom are no longer incarcerated and have left counsel no forwarding address. The thirty day time limit also conflicts with the time provided for discovery by the Federal Rules of Civil Procedure and usual discovery plans approved by the Magistrate Judges.
Requiring Plaintiffs and Plaintiff Intervenors to proceed without sufficient time to conduct adequate discovery will also needlessly waste judicial resources. Plaintiffs' counsel indicated that she would be forced to call many witnesses to the stand for whom she would have no prior opportunity to interview or depose prior to eliciting their testimony in court. Some of these witnesses will not have relevant information, but making that determination will be a time consuming process the Court will have to endure in order to give the parties an opportunity to competently represent their clients and to have an opportunity to meet their burden.
DISCUSSION
Several district courts have addressed nonconstitutional and constitutional challenges to the automatic stay and immediate termination provisions of the PLRA. See e.g., Gavin v. Ray, 4-78-cv-70062, 1996 WL 622556 (S.D.Iowa Sept. 18, 1996); Benjamin v. Jacobson, 1996 WL 413722, 935 F.Supp. 332 (S.D.N.Y.1996); Gates v. Gomez, Civ. 871636 (E.D.Cal. July 22, 1996); Hadix v. Johnson, 933 F.Supp. 1360, 1996 WL 393735 (E.D.Mich. July 5, 1996) (hereinafter referred to as Hadix II); Hadix v. Johnson, 933 F.Supp. 1362, 1996 WL 393737 (W.D.Mich. July 3, 1996) (hereinafter referred to as Hadix I). These courts have reached conflicting conclusions regarding the constitutionality of the immediate termination and automatic stay provisions and these issues are currently before at least two circuit courts of appeal.
Although the Court agrees that the immediate termination provision of the Act is unconstitutional as applied to final judgments, in this case, the parties disagree and the Court questions whether the September 7 agreement and order constitute a final judgment. Because the Court is not, at this time, addressing the constitutionality of the immediate termination provision as applied to this case, I need not determine whether the September 7 agreement and order constitute a final judgment. As discussed below, the Court's constitutional analysis of the automatic stay provision does not depend on a final judgment having been entered in a case.
1271 Regardless of the constitutionality of the immediate termination provision as applied *1271 to this case, the Court finds that the automatic stay provision found at Section 3626(e) impermissibly encroaches upon the power of the judiciary. Accord Hadix I, at 1365. To ensure against tyranny, the Framers of the Constitution established three coordinate Branches to comprise the federal government. Northern Pipeline Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 57-58, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Each Branch exercises a distinct governmental power. Id. at 57, 102 S.Ct. 2858.
The division among the Branches is preserved by our system of checks and balances. Where Congress passes a provision of law assigning power to one Branch, such that the authority and independence of another Branch is undermined, the provision should be struck down as contrary to the Constitution.
Hadix I, at 1365 (citing Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)).
It is exclusively a function of the Judiciary to interpret and apply the law and ultimately decide the cases and controversies pending before it. Hadix I at 1365 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). In determining whether Congress has impermissibly encroached on the power of the Judiciary, courts should not take a formalistic approach, but must, instead, focus on the extent to which congressional action prevents the Judicial Branch from accomplishing its constitutionally assigned functions. Commodity Futures

Trading Commission v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986); Mistretta, 488 U.S. at 383, 109 S.Ct. 647. Applying this standard, the Hadix I court reasoned that
it is clear that through the stay provision of the PLRA, Congress has usurped a role that is exclusively judicial. The power to decide substantive issues of law, such as a motion to terminate the case, is a most basic attribute of the Judiciary's power under Article III. Through the stay provision, Congress automatically grants the movants relief, albeit temporarily, with no provision for a case-by-case determination. This is akin to the issuance of a preliminary injunction, which even a court can not do without making findings on the facts. (citation omitted). ***
Furthermore, the rights that are at issue in the instant case derive from the most sacred of sources, the Constitution. *** Unlike statutorily created rights, which Congress can create, modify, define, and terminate, Constitutionally created rights can not be abridged by an act of Congress. Northern Pipeline, 458 U.S. at 83, 102 S.Ct. at 2877-78.
Hadix I at 1367. The facts in the instant case further demonstrate the extent to which the automatic stay provision interferes with the proper functioning of the courts and the ability of counsel to competently represent their clients. The thirty day time limit does not allow the parties to complete the briefing schedule that is set forth in the Rules. Most importantly, however, even though the parties diligently prepared and the Court scheduled time for a hearing within thirty days of the filing of Defendants motion, neither party was adequately prepared to make an evidentiary presentation of the magnitude and complexity required by the PLRA and Lewis v. Casey. That counsel was not adequately prepared to proceed on October 11, 1996 should not come as a surprise. As would be expected, discovery ceased with regard to Plaintiffs' class-based claims after Plaintiffs and Defendants entered into the September 7, 1995 settlement agreement. Even with the additional thirty days provided by the October 11, 1996 stipulation and with their full attention devoted solely to this case, the parties agree that they will not be adequately prepared to proceed with what essentially amounts to a trial on the merits on November 4, 1996. Counsel and the Court believe that without adequate discovery, counsel will be unable to competently represent their clients. Thus, for the reasons set forth in Hadix I and the compelling facts of the instant case, the Court finds that the automatic stay provision of the PLRA encroaches upon a role that exclusively judicial and therefore violates the separation of powers doctrine.
WHEREFORE,
1272 IT IS HEREBY ORDERED that 18 U.S.C. § 3626(e) is unconstitutional in that it *1272 violates the separation of powers doctrine. For that reason the prospective relief ordered by the Court will not be stayed pending the Court's consideration of Defendants' Motion for Immediate Termination of Prospective Relief Regarding Overpopulation Granted or Approved by the Court's Orders Dated August 23, September 7, 1995 and March 22 and March 25, 1996 (filed September 13, 1996).
IT IS FURTHER ORDERED that the November 4, 1996 hearing is VACATED until such time as adequate discovery is completed.
[1] The Court pauses to note that it hesitated making a finding that the overcrowding at BCDC led to a violation of Plaintiffs' federal rights at that point in the litigation because Defendants had already begun to implement numerous plans to improve jail conditions. In addition, Defendants advised the Court that a ruling that the conditions at BCDC resulted in a violation of the residents' constitutional rights would most certainly preclude the Defendants from obtaining a renewal of BCDC's former accreditation by the American Corrections Association. Accreditation would make BCDC eligible for additional funding which would be used to further improve the facility.
[2] As the motion to intervene was pending on September 7, 1995, Plaintiff Intervenors' claims are not covered by the settlement agreement entered into between Plaintiffs and Defendants. To date, Plaintiff Intervenors have not settled any of their claims with Defendants.
[3] Defendants' motion is limited in scope in that it only seeks relief from the portions of the Court's orders and the September 7 settlement agreement which directs BCDC to reduce its inmate population. Defendants do not

seeks relief from the Court's orders regarding classification, physical examinations, medical requests, or basic accommodations which are set forth in the Court's August 23, 1995 Order.
[4] In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2184, 135 L.Ed.2d 606 (1996), the Supreme Court stated that courts may only impose system wide relief if the inadequate conditions have a system-wide impact. In a class action suit, each inmates who makes up the class must demonstrate that he has been injured by the allegedly inadequate aspect of the prison. Id. at 2183.
[5] Plaintiffs are in a particularly difficult situation as they indicate that all discovery on the constitutional claims asserted in Parts I and II of their Complaint ceased after the September 7, 1996 settlement agreement was signed by the parties.
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 272 F.Supp.2d 1250 (2003)
Jimmy (Billy) McCLENDON, et al., Plaintiffs, v.
CITY OF ALBUQUERQUE, et al., Defendants, v.
E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated, Plaintiff Intervenors.
No. CIV.95-23 MV/DJS.
United States District Court, D. New Mexico.
July 11, 2003.
12512 *1251 *1252 Brian A. Pori. Esq., Peter Schoenburg, Esq., Albuquerque, for Plaintiffs.
Peter Cubra, Esq., Claire Dickson, Esq, Albuquerque, for Plaintiff-Intervenors.
Jeffrey L. Baker, Esq., Law Firm, Albuquerque, for Defendants.
MEMORANDUM OPINION AND ORDER
VAZQUEZ, District Judge.
THIS MATTER comes before the Court on Plaintiffs' and Plaintiff Intervenors' Joint Motion for a Temporary Restraining Order and Preliminary Injunction Enjoining the Defendants from Restricting Class and Sub Class Counsel from Having Access to the Metropolitan Detention Center ("Joint Motion") [Doc. No. 409], filed June 27, 2003. The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the Joint Motion is well-taken and will be GRANTED.
BACKGROUND
In 1995, Plaintiffs commenced the instant action to address allegedly unlawful conditions of confinement at the Bernalillo County Detention Center ("BCDC"). In an Order dated November 5, 1996, the Court certified the class in this action as "a class of all persons presently confined in BCDC or who may/will be so confined in the future." The class was to be represented by Plaintiffs and Plaintiff Intervenors. In an Order dated August 15, 1996, the Court certified the sub-class in this action as "a subclass of all persons with mental and/or developmental disabilities who are, or in the future may be, detained at BCDC." The sub-class was to be represented by Plaintiff Intervenors.
Plaintiffs and Plaintiff Intervenors entered into a settlement agreement with Defendants. This settlement agreement is set forth in the Court's Order Regarding the Prison Litigation Reform Act entered November 5, 1996 ("PLRA Order"). The PLRA Order also sets forth the parties' agreement that the Court's orders dated August 23 and September 7, 1995 will remain in effect as modified therein. Plaintiff Intervenors also entered into a separate settlement agreement with Defendants. This settlement agreement is set forth in the Court's Order, also entered November 5, 1996 ("Order Regarding Plaintiff Intervenors").
On or about June 17, 2003, the last members of the class and the sub-class were transferred from the BCDC facility to a newly constructed facility, the Metropolitan Detention Center ("MDC"). Plaintiffs and Plaintiff Intervenors allege that, since the class and the sub-class members were moved to MDC, Defendants have: (1) prohibited their counsel from monitoring MDC, interviewing members of the class and the sub-class at MDC, and interviewing staff at MDC; (2) changed their practices regarding residents' telephone access to their counsel; and

(3) prohibited Protection & Advocacy System, Inc ("P & A"), co-counsel for Plaintiff Intervenors, from having access to MDC.
The parties held mediation sessions on June 13 and 19, 2003 regarding access to MDC by counsel for Plaintiffs and Plaintiff Intervenors. The mediation sessions failed to result in an agreement between the parties. By letter dated June 25, 2003, counsel for Defendants advised counsel for Plaintiffs and Plaintiff Intervenors that they 1253 would not allow them access to the *1253 MDC facility unless they agreed not to be paid for their visits and not to report to this Court anything concerning the MDC facility.
Thereafter, on June 27, 2003, Plaintiffs and Plaintiff Intervenors filed the instant Joint Motion for a temporary restraining order and a preliminary injunction requiring that Defendants: (1) allow counsel to have reasonable and unaccompanied access to MDC and to the records of the residents of MDC; (2) allow P & A personnel to have access to MDC, its residents, records of the eligible residents and staff; (3) refrain from imposing limits on access that are more restrictive than the limits previously imposed at BCDC and the westside and satellite facilities; and (4) cease the imposition of time limits on telephone calls from MDC residents to their lawyers. Defendants filed their response in opposition to the Joint Motion on July 1, 2003. On July 8, 2003, the Court held a hearing on the Joint Motion. At the conclusion of the hearing, the Court took the Joint Motion under advisement.
STANDARD
The district court may grant a preliminary injunction if the moving party shows: "(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm in the absence of the injunction; (3) proof that the threatened harm outweighs any damage the injunction may cause to the party opposing it; and (4) that the injunction, if issued, will not be adverse to the public interest." Kansas Health Care Ass'n, Inc. v. Kansas Dep't of Social & Rehabilitation Servs., 31 F.3d 1536, 1542-43 (10th Cir.1994) (citing Autoskill Inc. v. Nat'l Educ. Support Sys., Inc., 994 F.2d 1476, 1487 (10th Cir.), cert. denied, 510 U.S. 916, 114 S.Ct. 307, 126 L.Ed.2d 254 (1993); Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir.1992)). "Because a preliminary injunction is an `extraordinary remedy ... the right to relief must be clear and unequivocal.'" Kansas Health Care, 31 F.3d at 1543 (citing SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)). The Tenth Circuit has modified this standard as follows:
If the party seeking the temporary restraining order can establish the last three factors listed above, then the first factor becomes less strict 0907 i.e., instead of showing a substantial likelihood of success, the party need only prove that there are `questions going to the merits ... so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.'
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir.2001) (citing Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir.1999)).
DISCUSSION
Jurisdiction
As a threshold matter, this Court must address the issue of its continuing jurisdiction to monitor the conditions of confinement of the class and the sub-class members since their transfer from the original BCDC facility to the new MDC facility. Plaintiffs and Plaintiff Intervenors contend that constitutional violations are occurring at the MDC facility and that these violations are a continuation of the violations that were the original basis for the Complaint and Complaint in Intervention. Plaintiffs and Plaintiff Intervenors argue that, because these violations are continuing, there has been no substantial compliance by Defendants with the orders previously entered by this Court and, accordingly, the Court continues to have jurisdiction to enforce its orders.
As set forth above, the class and the sub-class in this action were defined respectively as "all persons presently 1254 confined *1254 in BCDC or who may/will be so confined in the future," and "all persons with mental and/or
developmental disabilities who are, or in the future may be, detained at BCDC." Defendants argue that, because

these definitions refer specifically to confinement at BCDC, membership in the class and the sub-class was extinguished upon the transfer of the BCDC residents to the MDC. Accordingly, Defendants argue, this Court's orders do not extend to protect the class and the sub-class members from violations at the MDC.

By contrast, Plaintiffs and Plaintiff Intervenors argue that it is immaterial whether the class and the sub-class members are physically present in a particular building (i.e., the BCDC facility), as the Court's orders apply to the constitutional rights of individuals incarcerated by Defendants, not to the conditions of a building. Plaintiffs and Plaintiff Intervenors note that the individuals whose rights the Court's orders were entered to protect have been transferred from the BCDC facility to the MDC facility and remain incarcerated by Defendants. As these individuals are continuing to report to their counsel complaints of unconstitutional conditions of confinement, Plaintiffs and Plaintiff Intervenors reason that the Court's obligation to protect the rights of these individuals must continue regardless of their transfer from one location within Defendants' control to another.

The Court's orders themselves, in addition to the factual circumstances surrounding the settlement agreements set forth in those orders, persuade this Court that it has continuing jurisdiction in this matter. As set forth above, on November 5, 1996, the Court entered two orders: the PLRA Order, setting forth the settlement agreement entered into between Plaintiffs and Plaintiff Intervenors and Defendants; and the Order Regarding Plaintiff Intervenors, setting forth the settlement agreement entered into between Plaintiff Intervenors and Defendants.

The two settlement agreements set forth in the PLRA Order and the Order Regarding Plaintiff Intervenors both were drafted by Peter Cubra, attorney for Plaintiff Intervenors. Mr. Cubra has advised the Court that he drafted the agreements simultaneously on his computer and brought the drafts to Defendants' attorney's office, where the parties negotiated and finalized the final terms of both agreements and then executed the agreements. As the parties' attorneys drafted, negotiated and executed the two agreements simultaneously, the Court must read them together and interpret the inclusion and/or exclusion of language in one or the other of the agreements to be the parties' deliberate choice.

The settlement agreement set forth in the Order Regarding Plaintiff Intervenors includes the following provision:

Defendants shall comply with the terms of this Settlement Agreement at all temporary and overflow facilities operated by Defendants. However, this Settlement Agreement shall not apply to any permanent facility opened after the opening of the interim facility on the Westside.

(Order Regarding Plaintiff Intervenors at 17). The Order Regarding Plaintiff Intervenors thus explicitly provides that it does not extend to a new permanent facility. The parties agree that MDC is a permanent facility and that, based on the plain language of this Order, Plaintiff Intervenors are foreclosed from asking for relief under this Order.

The settlement agreement set forth in the PLRA Order does not include this or a similar provision. By contrast, the settlement agreement in the PLRA Order contains the following provision:

1255

*1255 In recognition of the limited financial resources of the Defendants, the unpredictability of the population at the detention facilities operated by Defendants, the unpredictability of the numbers of residents with mental and/or developmental disabilities and the uncertainty of the impact of reduction in population at the BCDC main facility and the opening and expansion of additional facilities, the parties are adopting a flexible approach to addressing the concerns raised by the [Motion for Immediate Termination of Prospective Relief Regarding Overpopulation Granted or Approved by the Court's Orders Dated August 23, 1995, September 7, 1995, March 22, 1996 and March 25, 1996 and the Motion for Further Remedial Relief]. All parties recognize that this agreement may require tailoring in the future to address unanticipated circumstances.

(PLRA Order at 3).

The Court interprets the absence of a provision stating that the agreement set forth in the PLRA Order does not apply to a new permanent facility to be a deliberate choice. Similarly, the Court interprets as a deliberate choice the inclusion in this agreement of a provision regarding the need for future flexibility and tailoring as necessary due in part to the opening and expansion of facilities additional to the BCDC facility. The Court draws the logical

inference that the parties did not intend for the settlement agreement set forth in the PLRA Order to be limited to the BCDC facility or to terminate upon the opening of a new permanent facility, but rather intended that the agreement remain in effect and apply wherever individuals incarcerated by Defendants are housed.
Moreover, the language of the parties' settlement agreements and the Court's orders suggests that the parties did not intend to limit, for purposes of the class and the sub-class definitions or otherwise, the term "BCDC" to a particular facility, but rather intended that term to apply to the jail system as a whole. For example, the August 23, 1995 Order, which was incorporated into the PLRA Order, specifically defines the "existing facility of BCDC" as comprised of "two (2) buildings, the main facility, including the annex, and the satellite." (August 23, 1995 Order at 3). The use of the word "existing" to define the BCDC facility suggests that these buildings were merely the physical structures used by the Bernalillo County Detention Center system as of that date to house individuals incarcerated by Defendants. The Order further states that "[d]iscussions are taking place between the City and the County concerning the expansion of BCDC into additional permanent facilities." Id. at 8. This language suggests that the parties intended the new permanent facility, then under discussion and now in existence as the MDC, to be an expansion of the BCDC jail system.
The settlement agreement set forth in the PLRA Order refers to "the population at the detention facilities operated by Defendants," "the population at the BCDC main facility," and "the opening and expansion of additional facilities." (PLRA Order at 3) (emphasis added). Similarly, the Court's June 27, 2001 Supplemental Order, which was entered in order to ensure compliance with the PLRA Order, repeatedly refers to population limits at the BCDC main facility. If the parties intended the term BCDC to be limited to the main facility at BCDC, the term "BCDC main facility" would have no meaning. The parties' reference to the population at "detention facilities" suggests that the agreement applies to individuals incarcerated at any and all of Defendant's facilities, rather than 1256 the BCDC facility alone. Likewise, the reference to the opening and expansion of "additional *1256 facilities" suggests that the agreement would apply equally to such additional facilities.
The Court's September 25, 2000 Order, entered as a result of Defendants' violation of the PLRA Order, concludes that "BCDC is dangerously overcrowded." (September 25, 2000 Order at 3). This conclusion is based not on the number of individuals incarcerated at the BCDC main facility alone, but rather on the total number of "individuals incarcerated in BCDC's main facility, westside facility, and satellite facility," in addition to the fact that the "[t]he new Metropolitan Detention Center, currently under construction, will not be ready to house inmates before October, 2001." Id. The plain language of this Order strongly suggests that the parties intended the term BCDC to encompass all facilities 0907 including the MDC 0907 where Defendants house individuals incarcerated by the City and the County.
Additionally, the Court's orders grant relief which extends beyond the physical boundaries of the BCDC structure itself. First, with regard to the issue of overcrowding, the Court's orders set population limits not only at the BCDC main facility but also at the satellite facility (See August 23, 1995 Order; January 31, 2002 Stipulated Agreement). [1] While a central purpose of the Court's orders was to ameliorate overcrowding, an additional and equally compelling purpose was to eliminate the unnecessary incarceration of individuals, including people with disabilities and probation violators. The PLRA Order provides that "Alternatives to Secure Detention Program (`ASDP') staff will be added in response to increases in ASDP referrals." (PLRA Order at 5). Similarly, the June 27, 2001 Order requires that plans be made to reduce the number of incarcerated individuals waiting resolution of probation or parole violation proceedings, to include persons who do not have both a permanent address and a telephone in the Community Custody Program, to implement an effective jail diversion program for persons with psychiatric or developmental disabilities and to expand the program for early resolution of criminal cases. Thereafter, in a Stipulated Agreement dated January 31, 2002, the Court ordered Defendants to provide sufficient assistance to the pro tem Judge.
The Court's orders also address additional issues regarding general conditions of confinement which are applicable to the jail system as a whole. For example, the settlement agreement in the PLRA directs the parties, through counsel, to meet at least once a month to discuss medical care, access to the judicial system, transportation to court, staff training and other matters of mutual concern. Similarly, the August 23, 1995 Order directs that immediate action be taken regarding physical examinations, medical requests, basic

accommodations and feminine hygiene items. The January 31, 2002 Stipulated Agreement directs Defendants to provide a full-time benefits manager to assist in securing public benefits for inmates.
The Court's review of the relevant case law suggests that consent decrees and contested orders issued in jail class actions apply to facilities where individuals are incarcerated, regardless of whether those facilities are named in the original complaint or decree. See Glover v. Johnson, 934 F.2d 703 (6th Cir.1991) (despite naming of 1257 particular facility in class definition, class encompassed female inmates wherever *1257 they were housed); Inmates of Allegheny County Jail v. Wecht, 612 F.Supp. 874 (W.D.Pa.1985) (members of class defined as inmates at Allegheny county jail who were not physically present at Allegheny county jail were still entitled to the minimum conditions of confinement set for the class); Doty v. County of Lassen, 37 F.3d 540, 544 (9th Cir.1994) ("in fashioning a remedy, the district court must focus on the specific constitutional violations found."). In Glover, the plaintiffs originally sought to represent "all female penal inmates who are now, or may be in the future, incarcerated at the Huron Valley Women's Facility and at the Kalamazoo County Jail," a temporary placement facility used to relieve overcrowding at Huron Valley. 934 F.2d at 709. At the time the action was filed, these were the only female prison facilities in the state. The Sixth Circuit found that "the specification by name of the only institutions then housing female inmates as comprising the class of `all female inmates' was redundant and certainly was not intended to exclude those female inmates who, ten years later, would be housed at a new location." Id. The Sixth Circuit further found that the class certification was intended to encompass all female inmates in Michigan, including "all future inmates who would come within the jurisdiction of the Department of Corrections." Id. Accordingly, the Sixth Circuit concluded that the defendants "had reasonable notice that the conditions of confinement they were obligated to provide for female prisoners at Huron Valley were to be provided to all female prisoners wherever they were housed." Id. This reasoning is especially applicable here, where the BCDC facility has been replaced by the MDC facility, and every resident who was housed at the BCDC facility is now housed at the MDC facility.
Based on the Court's orders, the factual circumstances surrounding the parties' settlement agreements and the relevant case law, the Court thus concludes that the PLRA Order remains in effect despite the transfer of the class and the sub-class members to the MDC. So long as the PLRA Order remains in effect, the Court retains "continuing jurisdiction to review, modify and enforce the Settlement Agreement[s]" set forth and incorporated therein (PLRA Order at 6). Accordingly, this Court has jurisdiction to grant injunctive relief as necessary to enforce the settlement agreements set forth and incorporated in the PLRA Order.[2]
Preliminary Injunction[3]
Likelihood of Success on the Merits
Plaintiffs and Plaintiff Intervenors have presented evidence in the form of an affidavit sworn to by Plaintiff's attorney, Brian Pori, that class and sub-class members have reported to their counsel unconstitutional conditions of confinement at MDC. Mr. Pori's affidavit also contains allegations that Defendants are refusing to permit counsel for Plaintiffs and Plaintiff Intervenors access to monitor the conditions at MDC and to interview class and 1258 sub-class members so that they can verify the accuracy of their clients' reports and, if *1258 appropriate, address their unconstitutional conditions of confinement. Accordingly, Plaintiffs and Plaintiff Intervenors ask the Court to permit their counsel access to the MDC facility, the MDC records and the MDC residents. They further ask the Court to permit P & A personnel similar access.
Based upon the previous orders in this case and the constitutional right of the class and the sub-class members of access to the courts, the Court finds that Plaintiffs and Plaintiff Intervenors are likely to succeed on the merits of their claim. The Court has entered at least two orders requiring that counsel for Plaintiffs and Plaintiff Intervenors be allowed access to records concerning any person who is or was a member of the class or the subclass in this action. See Protective Order Regarding Confidentiality entered October 29, 1996 at ¶ 8; Protective Order Regarding Confidentiality of Medical and Mental Health Records Obtained by Plaintiff Intervenors entered April 23, 1998 at ¶ 7.

With regard to the constitutional right of access to the courts, "[i]t is now established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Access of inmates to the courts must be "adequate, effective, and meaningful." Id. at 822, 97 S.Ct. 1491. "Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid." Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).
Plaintiffs and Plaintiff Intervenors allege that Defendants have imposed restrictions on counsel's access to the MDC facility, MDC records and MDC inmates, including a complete ban on visitation with clients and a fiveminute limit on telephone calls with counsel. Such restrictions would "unjustifiably obstruct the availability of professional representation," thereby violating the class members' and the sub-class members' constitutional right of access to the courts. Id. Similarly, unreasonable limitations on P & A's access to the MDC facility, MDC records and MDC inmates would constitute a violation of the sub-class members' right of access to the courts.[4] See Robbins v. Budke, 739 F.Supp. 1479 (D.N.M.1990) (constitutional right of access to the courts of patients at Las Vegas Medical Center was violated by limitations on P & A's access to patients); The Advocacy Center v. Stalder, 128 F.Supp.2d 358 (M.D.La.1999) (questions regarding violations of inmates' right to access to the courts raised where state prison denied advocacy center timely access to inmates' records; timely access just as essential for effective communications between center and its clients as it is for attorneys). Accordingly, Plaintiffs and Plaintiff Intervenors have established a substantial likelihood of success on the merits of their claim.
Irreparable Harm
"Irreparable harm" means that "the injury `must be both certain and great' and that it must not be `merely serious or substantial.' ... [I]rreparable harm is often suffered when `the injury can[not] be adequately atoned for in money,' or when `the district court cannot remedy [the injury] following a final determination on the merits.'" 1259 Prairie Band of *1259 Potawatomi Indians, 253 F.3d at 1250 (citations omitted). A plaintiff suffers irreparable injury when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain. Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir.2001) (citing Tri-State Generation & Transmission Assoc., Inc., v. Shoshone River Power, Inc., 874 F.2d 1346, 1354 (10th Cir.1989)).
"When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." Id. (citing 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed.1995)). As set forth above, Plaintiffs and Plaintiff Intervenors allege that Defendants' limitations on access to MDC by counsel for Plaintiffs and Plaintiff Intervenors and by P & A constitute a violation of the class and the sub-class members' constitutional right to access to courts. As the claims herein thus have constitutional underpinnings, Plaintiffs and Plaintiff Intervenors need not make any further showing of irreparable injury.
Balance of Harms
Counsel for Plaintiffs and Plaintiff Intervenors have had routine access to all of the other correctional facilities run by Defendants. There can be little harm to Defendants if these same attorneys are granted similar access to the MDC facility. Indeed, the only potential harm to Defendants is that inmate allegations of constitutional violations will be brought to the attention of this Court. This is not a legitimate concern. By contrast, the lives of class and sub-members may be at risk if their attorneys are prevented from investigating their reports of unconstitutional conditions of confinement. The Court thus finds that, if a preliminary injunction is granted, the benefit to the class and the sub-class members will outweigh any potential harm to Defendants.

Public Interest
The public has an interest in the City's and the County's maintenance of prison facilities that provide the minimal conditions of confinement required by the Constitution and federal law. Indeed, any citizen could find himself or herself detained at MDC and would have the right to constitutional conditions of confinement while so detained. This public interest can be served most effectively by allowing the attorneys for Plaintiffs and Plaintiff Intervenors access to the MDC so that they can gather accurate facts regarding the operation of that facility. Accordingly, the Court finds that a preliminary injunction would not be adverse to the public interest.
CONCLUSION
This Court has continuing jurisdiction to monitor the conditions of confinement of the class and the sub-class members at the MDC facility. Plaintiffs and Plaintiff Intervenors contend that Defendants have unreasonably restricted their counsel's access to the MDC facility and request injunctive relief requiring Defendants to allow their counsel such access. Plaintiffs and Plaintiff Intervenors have shown a substantial likelihood of prevailing on the merits of their claim, irreparable harm in the absence of the injunction, proof that the threatened harm outweighs any damage the injunction may cause to the party opposing it, and that the injunction, if issued, will not be adverse to the public interest. Accordingly, this Court may grant the request for a preliminary injunction.
IT IS THEREFORE ORDERED that Plaintiffs' and Plaintiff Intervenors' Joint Motion for a Temporary Restraining 1260 Order and Preliminary Injunction Enjoining *1260 the Defendants from Restricting Class and Sub Class Counsel
from Having Access to the Metropolitan Detention Center [Doc. No. 409] is GRANTED.
IT IS THEREFORE FURTHER ORDERED that Defendants shall:
1. Immediately allow counsel for Plaintiffs and Plaintiff Intervenors and P & A personnel, as cocounsel to Plaintiff Intervenors, to have reasonable and unimpeded access to MDC and to the records of residents of MDC;
2. Immediately Refrain From Imposing Any Limits Upon Access To Mdc And To The Residents And Staff Therein Which Are More Restrictive Than Those Which Were Used When The Class And The Sub-Class Were Housed At The Bcdc, Westside And Satellite Facilities; And
3. Immediately cease their practice of limiting the length of telephone calls from the MDC residents to their lawyers, including counsel for the class and/or the sub-class.
[1] As noted by Mr. Cubra during the hearing, during the Court's tour of the Montessa Park facility, Defendants agreed to a population cap at that facility. Thus, while there is no Court order regarding this facility, it was a matter which was discussed and addressed within the context of the instant action.
[2] As set forth above, Plaintiff Intervenors, in addition to Plaintiffs, are parties to the settlement agreement set forth in the PLRA Order. As Plaintiff Intervenors represent the subclass members, who have rights identical to the class members who are not disabled, the PLRA Order applies to the sub-class members. Plaintiff Intervenors thus have standing to seek relief on behalf of the sub-class members pursuant to the PLRA Order.
[3] As the Court has held a hearing at which both parties were afforded the opportunity to present legal arguments and evidence with regard to the Joint Motion, the Court shall consider Plaintiffs' and Plaintiff Intervenors' request for a preliminary injunction rather than their request for a temporary restraining order.
[4] P & A is not a party to this action. It is involved in this action only to the extent that it is co-counsel for Plaintiff Intervenors. Accordingly, P & A has no standing in this action to assert its own constitutional and/or statutory rights. The Court's decision to grant the injunctive relief as it relates to P & A is based only on the sub-class members' right of access to the courts.

Save trees - read court opinions online on Google Scholar.

 
 Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 1 of 8

IN THE UNITED STATES DISTRICI' COURT

FOR THE DISTRICI' OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et. a1.,
Plaintiffs,
VS.

JUN 30 LUUJ

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CIV-95-0024 MV/ACI'

CITY OF ALBUQUERQUE, et. a1.,

Defendants,

VI.

E.M., R.L, W.A., D.J., P.S., and N.W. on behalf of themselves and aU othen similarly situated,

Plaintiff Intervenon.

STIPULATED SETILEMENT AGREEMENT BE1WEEN PLAJNTIFFS AND DEFENDANTS

The Plaintiffs and Defendants have met and conferred regarding the tennination of this

litigation. The Plaintiffs and Defendants agree that it is in their respective best interest to enter into

this Stipulated Settlement Agreement. The Plaintiffs and Defendants agree that this Stipulated

Settlement Agreement complies with all ofthe requirements ofthe Prison Litigation Reform Act, 18

U.S.C. § 3626, et seq.

Nothing contained in this Stipulated Settlement Agreement constitutes an admission by the

Defendants that they have ever violated the .constitutional rights of any inmates, or that the

Defendants have ever violated any Order of Court and nothing in this StipUlated Settlement

Agreement should be construed as an admission by the Defendants that any prior or present policy,

procedure, practice, event, circumstance, act or failure to act by the Defendants, their elected

officials, contractors, agents or employees violated the civil rights laws of the United States, fuiled

Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 2 of 8
to meet appli(;abl~ federal or constitutional standards, uliied to comply with any Order of Coun, or otherwise fell short of any standard of care imposed by law.
The Plaintiffs and Defendants enter into this Stipulated Settlement Agreement for the purpose of avoiding the risks and burdens oflitigation and in order to descrihe conditions both parties wish to see maintained or improved at the Bernalillo County Metropolitan Detention Center, 100 John Dantis Road SW, Albuquerque, New Mexico. The Plaintiffs and Defendants intend that this Stipulated Settlement Agreement will maintain and improve the conditions at the Metropolitan Detention Center for the benefit of the Defendants, their employees, agents and staff and for the benefit orthe Plaintiff class.
The Plaintiffs acknowledge that the Defendants already have policies that address areas described in this Stipulated Settlement Agreement and the Defendants acknowledge that they will continue to abide by the policies and procedures ofthe Metropolitan Detention Center. If necessary, the Defendants will revise and/or develop as necessary the policies, procedures, protocols, training materials and practices to ensure that the Defendants continue to comply with the policies and procedures of the Metropolitan Detention Center and that these policies and procedures are consistent with the requirements of the United States Constitution, the advisory standards of the American Correctional Association's Standards for Adult Detention Centers (which do not establish any minimum constitutional standard but which reflect prevailing professional practices) and theteffns set [0I1h in this Stipulated Settlement Agreement.
Plaintiffs and Defendants will jointly select two Auditor(s) (one Auditor for items 1-14 below, and onc Auditor for medical issues) who will, over a nine month period (or sooner), evaluate the Defendants' compliance with the policies and procedures or the Metropolitan Detention Ccnter, the United States Constitution, the advisory standards sct forth in the American Correctional
2

Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 3 of 8
Association's Standards for Adult Detention C~nters, and the terms set forth in this Stipulated
Settlement Agreement and repor t in writing to the PlaintilTs and Defendants concerning the following
aspects of the Bemalillo County Metropolitan Detention Center:
I. Population Management Initiatives (as more fully described infra) 2. Facility maintenance and sanitation (including the provision of adequate linen,
bedding, and hygiene supplies) 3. Inmate safety (including, but not limited to, use of excessive force by officers and
protection against a known risk of assault by other inmates) 4. Inmate access to law library 5. Food selvices 6. Inmate disciplina!)' process (including the provision of an inmate handbook in each
housing unit which describes the disciplinary process) 7. Inmate grievance process (including the provision of an inmate handbook in each
housing unit which describes the grievance process and other inmate rights and responsibilities) 8. Inmate programming (excluding mental health programming) 9. Inmate classification (consistent with the advisory standards of the American Correctional Association's Standards for Adult Detention Centers) 10. Inmate case management I I. Inmate access to mail 12. Inmate access to telephones 13. Inmate access to commissary 14. Inmate visitations (including the provision ofan inmate handbook in each housing unit which describes the visitation process) 15. Medical services (including good faith efforts to comply with the ativiso!)' Guidelines of the National Commission on Correctional Health Carc)
PlaintiITs and Defendants will jointly select one Auditor who will be responsible for items 1-14
above, and a second Auditor who will be responsible for evaluating and reporting on item 15 above
(medical services). However, ifthe Plaintiffs and Defendants cannot agree on the Auditor(s) in these
two areas, the Plaintiffs and Defendants agree to submit a list of names to the Honorable Maliha
Vazquez and the Court will select the Auditor.
In evaluating the Defendants' compliance with Item Number One, Population Management
Initiatives, the Auditor will recognize that many factors affect the population at the Metropolitan
Detention Center which are beyond the control of the Defendants. Therefore, in evaluating the

Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 4 of 8
Defendants' compliance with Hem :':umber One, Population Managcmcili Initiatives, the Auditor will ensure ollly that the Defendants will employ their best efforts to manage the population of the Metropolitan Detention Center and will usc all available population management initiatives (such as the Community Custody Program, pre-arrest diversion programs, the Population Management Review Team, and the resources of the Pre-Trial Services Office) to manage the population of the Metropolitan Detention Center. Community Custody Program staff will be added in response to increases in referrals to the Community Custody Program. The Auditor will also ensure that the Defendants provide classification officers and case workers and assign a benefits manager to assist residents of the Metropolitan Detention Center. Further, the Auditor will ensure that the Defendants will continue to maintain a detoxification program and an alcohol treatment program. The purpose of all ofthese population management initiatives is to assist the Defendants in using their best efforts to manage the population of the Metropolitan Detention Center because the parties realizc that the unabated rise in the population orthe Metropolitan Detention Center places unnecessary burdens on all aspects of the jail, its stafi~ and the provision of basic resident services.
The Auditor(s) shall have free access to all areas of the Metropolitan Detention Center, at such times and for such duration as the Auditor(s) desire. The Auditor(s) shall have unlimited access to all Metropolitan Detention Center personnel and records, and to all inmates ofthe Metropolitan Detention Center. The Defendants will provide the Auditor(s) with unlimited access to all personnel who work for the Metropolitan Detention Center, their private vendors, their independent contractors, or their agents who provide services to the Metropolitan Detention Center.
The Auditor(s) will notify the Director or his designee of the Auditor's visits to the Metropolitan Detention Center, so that the Auditor's personal security can be assured. ]]owever, in extraordinary circumstances in the discretion of the Auditor(s), the Auditor(s) shall not be refused
4

Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 5 of 8
admittanceto the Metropolilan Detention Center ifs/hc is nl)t able to provide advance n01i~c prior to a visit at the Metropolitan Detention Center.
The Defendants will ensure that the Auditor(s) shall have the opportunity to conduct confidential interviews with inmates, as well as the opportunity to conduct interviews with Metropolitan Detention Center staff, their private vendor stafl~ their independent contractors, or their agents, outside the presence of other staff or supervisors. The only exception would be when an active criminal investigation is on-going, so as not to compromise the integlity of the criminal investigation.
If, at the end of the nine month period (or sooner), the Auditor(s) report that one or more of th~ fifteen (15) items do not meet United States constitutional requirements, tht! policies and procedures of the Metropolitan Detention Center, the advisory standards of the American Correctional Association's Standards for Adult Detention Centers, and the terms of the Stipulated Settlement Agreement, the Auditor(s) shall continue to evaluate and rep0l1 on those particular items. The Auditor will, however, cease to review those items the Auditor(s) has deemed are in compliance with United States constitutional requirements, the policit:s and procedures of the Metropolitan Detention Centers, the ad"isory standards of the American Correctional Association for Adult Detention Centers and the terms of this Stipulated Settlement Agreement.
Ifany items in the above list (1-15) are determined by the Auditor(s) not to be in compliance with United States constitutional requirements, the policies and procedures of the Metropolitan Detention Center, the advisory standards of the American Correctional Association's Standards for Local Detention Facilities, and the terms of this Stipulated Settlement Order, the Auditor(s) shall continue to evaluate and report on any such items until such time as all fifteen listed items are in compliance with the United States constitutional requirements, the policies and procedures of the
5

Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 6 of 8
:v1etrllpolitan Dctention Ccnter. the advisory swndards oCthe :\merican CLlfrectionalAssociation, dnd this Stipulated Settlement Agreement.
Once the Auditor(s) reports that an item complies with United States constitutional requirements, the policies and procedures of the Metropolitan Detention Center, the advisory
standards of the American Correctional Association's Standards for Local Detention Facilities, and
the tenms of this Stipulated Settlement Agreement, the Auditor will cease reviewing this area. Plaintiffs' class will move to dismiss this case, with prejudice, when the Defendants obtain
compliance in all areas. The Plaintiffs and Defendants agree to cooperate regarding any fairness or other hearings
which are required by the COUIt in order to facilitate the ultimate dismissal of Plaintiffs' claims. The Auditor(s) will be compensated by the Defendants, at rates to be negotiated between the
Auditor(s) and the Defendants. During the initial nine month period (or shorter), Plaintiffs agree their counsel will be
compensated at the rate of$ I35.00 per hour, plus gross receipts tax, for the monitoring activities of Brian Pori and Marc Lowry, not to exceed a combined twenty (20) hours per month, and S(jS.OO per hour, plus gross receipts tax, for the monitoring activities of paralegals, not to exceed a combined twcnty-fivc (25) hours per month. At the end ofthe nine month period (or sooner), if any items listed above have not met the requirements ofthis Stipulated Settlement Agreement, Plaintiffs' lawyers and paralegals will continue to be limited to the hourly rates and number of hours described above for monitoring activities, unless modified in writing between Plaintirr:~ and Defendants. However, any such hours which Plaintiffs' counsel and paralegals bill the Defendants will still be subject to the requirements of reasonableness.
G

Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 7 of 8
Until such time as the Auditor(sj declares ali lifleen (l:» items meet United States constitutional requirements, the policies and procedures ofthc Metropolitan Detention Ccnter, the advisory standards of the American Correctional Association's Standards for Adult Detention Centers. and the terms of this Stipulated Settlement Agreement, counsel for Plaintiffs shall have the same right of access to the Metropolitan Detention Center and the samc right to review all records (in any media) concerning Plaintiff class members which counsel for the Plaintif[~ currcntly posscss. However the number of hours for which Plaintiffs counsel and paralegals will receive compensation for thcse activities will be limitcd as described above,
The Defendants will not file any motion in the future asserting that this Stipulated Settlement should be terminated under the Prison Litigation Reform Act.
This Agreement shall be binding on all succcssors, assignecs, employees, and all those working for or on bchalfofthc Defcndants, and thosc working for or on behalfofthe Plaintiffs,
The Plaintiffs and Defcndants do not intend to create in any non-party the status ofthird palty bencficiary. This Stipulat ed Settlement Agreement shall not be construed so as to ercate a private right of action to any non-party against the Defendants. The rights, duties and obligations contained in this Stipulated Settlement Agreement shall only bind the parties t(l this Agreement.
This Stipulated Settlement Agreement supcrcedes all previolls Orders which pertain to Plaintiffs and Defendants.
Any claimed breach of this Stipulated Settlement Agreement will be mediated by thc United States Magistrate Judge before it is submittcd to the District Court.
IT IS SO ORDERED.
7

Case 6:95-cv-00024-JAP-KBM Document 515 Filed 06/30/05 Page 8 of 8
THE BAKER LAW FIR~1 . "

By~\"i''\{._ I\b~ .:ll~__¥,J,1/1/1..fi11k.L. ~

niaddeus r_ucero .9,{b.)ld i P pTTff/ {,. • ~~i' f

County Manager

Cf;j-1A "u~/C-V- 1fIf'T1'''''--1

Bernalillo County

lr-..-OCENTE Pc.
-(/t) By-'nri,a/1t-_F7~_ri;E';(j-_--_-_----.--- ---
C(1~1 for PlaintiiIS

ROTHSTEIN, DONATELLI, HUGHES
~';:,-/ J~_.__ DAHLSTROM & SCHOENBURG LLI'
,.t~..-//-~- 7//7P_1/
By: _ _ _
I Mare J!.OWIY, Lsq. /
Coun~el for Plaintj6:~ .
(

 
 Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 1 of 10

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

JIMMY (BILLY) McCLENDON, et aI., Plaintiffs,
vs.
CITY OF ALBUQUERQUE, et aI., Defendants,
vs. E.M., R.L. W.A. D.J., P.S., and N.W. on behalf of themselves and all other similarly situated,
P laintiff- Intervenors.

No. CIV 95-24 JAPIKBM

ORDER RESOLVING TWO MOTIONS AND ORDER TO SHOW CAUSE This matter comes before the Court regarding the resolution of two motions: (J) Plaintiffs And Plaintiff-Intervenors ' Joint Motion For A Temporary Restraining Order And For Injunctive Relief [Doc. 1133] and (2) County Defendant's Motion To Terminate Certain Prior Orders Granting Prospective Relief Based On The Prison Litigation Reform Act [Doc. 1135]; and the Court's Order to Show Cause [Doc. 1015]. Based on the evidence provided at the April 29, 2014 hearing and the agreement of the parties, the Court finds as follows pursuant to 18 U.S.C. § 3626(a)(J ): 1. One or more violations of the federal rights of class and sub-class members alleged in the Court's Order to Show Cause [Doc. 1015] and Plaintiffs And PlaintiffIntervenors ,

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 2 of 10
Joint Motion For A Temporary Restraining Order And For Injunctive Relief [Doc. 1133] have occurred at the MDC;
2. Defendant Bernalillo County has already begun steps to remedy the problems alleged in the Plaintiffs and Plaintiff-Intervenors' motion and the Court's Order to Show Cause [Doc. 1015];
3. It is in the best interests of Defendant Bernalillo County, the Plaintiffs, the Plaintiff-Intervenors, and the public for this Order to be entered at this time, without the expense and distraction of further litigation; and
4. The Order is proper and all of the relief described in this Order: a. is narrowly drawn; b. extends no further than necessary to correct the violations of the federal
rights of class and sub-class members; c. is the least intrusive means necessary to correct the violations of the
federal rights of class and sub-class members; and d. will have no adverse impact on public safety or the operation of the
criminal justice system. It is hereby ordered that Defendant Bernalillo County, Plaintiffs, and Plaintiff-Intervenors
will implement the following. RESOLUTION OF PENDING MOTIONS
On July 24,2013 , the Court entered its Order to Show Cause [Doc. 1015]. On April 23, 2014, counsel for the class and sub-class filed Plaintiffs And Plaintiff-Intervenors ' Joint Motion For A Temporary Restraining Order And For Injunctive Relief [Doc. 1133]. On April 25, 2014,
2

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 3 of 10
counsel for Defendant Bernalillo County filed County Defendant's Motion To Terminate Certain Prior Orders Granting Prospective Relief Based On The Prison Litigation Reform Act [Doc. 1135]. The Court has received a report from Special Master Alan C. Torgerson that it is in the mutual interests of the parties to resolve these two motions and the Court's order to show cause on the following terms. This Order resolves only these two motions and the order to show cause. It is not intended to resolve all issues between the parties.
TERMS I. The parties to this Order agree as follows:
a. Plaintiffs and Plaintiff-Intervenors agree to withdraw Plaintiffs And Plaintiff-Intervenors' Joint Motion For A Temporary Restraining Order And For Injunctive Relief[Doc. 1133];
b. Plaintiffs and Plaintiff-Intervenors agree that this Order resolves all matters which the Court's Order to Show Cause [Doc. 1015] seeks to enforce and compensate; and
c. Defendant Bernalillo County agrees to (i) withdraw County Defendant's Motion To Terminate Certain Prior Orders Granting Prospective Relief Based On The Prison Litigation Reform Act [Doc. 1135] and (ii) not file another motion based upon the Prison Litigation Reform Act within eighteen months after the Court enters this Order.
2. Defendant Bernalillo County, counsel for Plaintiffs, and counsel for PlaintiffIntervenors will work with the Court' s jail operations expert, Manuel Romero, to address the practices alleged in Plaintiffs And Plaintiff-Intervenors' Joint Motion For A Temporary Restraining Order And For Injunctive Relief [Doc. 1133] and in the Court's Order to Show
3

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 4 of 10
Cause [Doc. 1015] by modifYing policies and procedures which Defendant Bernalillo County will effectively implement to:
a. In consultation with Manuel Romero, ensure that no individual class or sub-class member housed in the segregation unit is deprived of the daily hour of out of cell time required by the Court's orders of March 20,2013 [Doc. 989] and May 22, 2013 [Doc. 1004], except in the case of a lockdown or discipline which is administered in conformity with the due process clause of the United States Constitution.
b. In consultation with Manuel Romero, develop and implement a consistent method of ensuring that there is adequate, accessible, and verifiable documentation of denial of out of cell time.
c. In consultation with Manuel Romero, terminate the "Inmate Segregation Behavior Restriction Program" and implement a policy which properly achieves inmate behavior modification and conforms with the requirements of the Americans with Disabilities Act as set forth in the Court's November 5, 1996 Order [Doc. 256], and conforms with the requirements of the United States Constitution;
d. In consultation with Manuel Romero, ensure that all MDC-wide or unitwide behavior modification programs are instituted only pursuant to a written MDC policy approved by MDC administrator(s) and the County Legal Department;
e. Ensure that Defendant Bernalillo County only subjects class and sub-class members to discipline or punishment in conformance with the due process clause of the United States Constitution;
4

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 5 of 10

f. In consultation with Manuel Romero, discontinue reliance on the reactive

control model ("RCM") for use of force training, policies, and practices, or modify the RCM as

appropriate to ensure that MDC training, policies, and practices regarding the use of force

conform to the requirements of the Americans with Disabilities Act as set forth in the Court's

November 5, 1996 Order [Doc. 256], and with the requirements of the United States

Constitution;

g. In consultation with Manuel Romero, develop and implement a use of

force policy which sets the criteria under which all corrections officers are authorized to use

force of any type, including but not limited to OC spray and the Taser;

h. Ensure that every MDC employee who uses physical force, including but

not limited to OC spray or a Taser, prepares and submits a written report explaining the

circumstances of the incident to his or her supervisor. The report will be prepared on the date of

the incident and prior to leaving the MDC;

1.

Ensure that for a period of six months after the Court's entry of this Order,

MDC provides copies of all reports created pursuant to paragraph 2(h) to counsel for Plaintiffs

and Plaintiff-Intervenors at the end of each month without the need for a request by counsel;

J.

Ensure that all MDC staff receives documented training on all changes to

be implemented to the policies regarding out of cell time, the use of force and inmate security,

and inmate discipline and grievances, with particular attention to training MDC staff on the chain

of command and compliance with MDC policy directives;

k. Ensure that no fewer than two separate housing units are used for female

imnates requiring segregation. However, when the population of the MDC allows, MDC may

5

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 6 of 10
house female irunates of different classifications in one unit so long as MDC separates women with different classifications using security barriers. However, Defendants may only reduce the number of segregation units for female irunates pursuant to a plan approved by Manuel Romero.
1. Ensure that inmates are not triple celled; m. Ensure that irunates requiring segregation who are high risk, security threats, seriously mentally ill, disciplinary, or reclassification are not double celled, unless those irunates have been determined to be compatible using a reliable objective classification tool. Segregation inmates who are in protective custody or new irunates may be double celled if they have been detennined to be low risk and compatible using a reliable classification tool; n. Ensure that irunates who have committed acts of violence are not housed with irunates who have not committed such acts by using a pre-classification triage system as recommended by the Department of Justice NIC; o. Ensure that irunates who have not yet been classified are not housed in the same pod as irunates who require segregation, as recommended by the NIC; p. Promptly consult with Manuel Romero regarding a staffing plan for the MDC and, after the consultation, submit to the Court no later than November 1, 2014 a written staffing plan which Defendant Bernalillo County will implement to ensure that staffing at the MDC is adequate to comply with the Court' s orders, to comply with the Americans with Disabilities Act as set forth in the Court' s November 5, 1996 Order [Doc. 256], and to comply with the United States Constitution; and q. Defendant Bernalillo County will create an Emergency Population Management Plan in cooperation with Criminal Justice Review Commission (CJRC) to ensure
6

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 7 of 10
that the population at MDC remains at or under 1950. The County will have ninety days from the date of the entry of this Order to agree with the CJRC on a Plan and have the agreement accepted by the Court, after input by the parties. If the County does not meet the ninety-day deadline or the Court does not adopt the Plan, the Court will enter an Order imposing a population cap of 1950.
3. In the event that Defendant Bernalillo County, counsel for Plaintiffs, and counsel for Plaintiff-Intervenors do not agree about how to accomplish the requirements identified in paragraphs 2(a)-(q) of this Order, Mr. Romero will resolve the disagreements and issue binding, written decisions regarding the content of applicable policies and procedures as well as the effective implementation of those policies and procedures about which the parties did not reach agreement.
4. Defendant Bernalillo County, counsel for Plaintiffs, and counsel for PlaintiffIntervenors will work with the Court' s mental health care expert, Dr. Jeffrey Metzner, to address the practices alleged in PlaintiffS And Plaintiff Intervenors ' Joint Motion For A Temporary Restraining Order And For Injunctive Relief [Doc. 1133] by modifying policies and procedures which Defendant Bernalillo County will effectively implement to:
a. Ensure that Defendant Bernalillo County does not place a class member or sub-class member in a dry (no toilet) cell, unless a medical professional and, as appropriate, a mental health professional has approved the inmate's placement in that cell.
b. Ensure that Defendant Bernalillo County does not place a class member or sub-class member in a strip (with a toilet) cell, unless a mental health professional has approved the inmate's placement in that cell.
7

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 8 of 10
c. Ensure that sub-class members with Serious Mental Illness who are held in segregation receive the mental health treatment which comports with the requirements of the Americans with Disabilities Act as set forth in the Court's November 5, 1996 Order [Doc. 256], and with the requirements of the United States Constitution;
d. Ensure that all MDC staff receives documented training on all changes to be implemented to policies related to inmate mental health care, with particular attention to training MDC staff on the chain of command and compliance with MDC policy directives.
5. In the event that Defendant Bernalillo County, cOW1sel for Plaintiffs, and counsel for Plaintiff-Intervenors do not agree about how to accomplish the requirements identified in paragraphs 4(a)-(d) of this Order, Dr. Metzner will resolve the disagreements and issue binding, written decisions regarding the content of applicable policies and procedures as well as the effective implementation of those policies and procedures about which the parties did not reach agreement.
6. The Plaintiffs, Plaintiff-Intervenors, and Defendant Bernalillo County do not intend to create in any non-party the status of third-party beneficiary. This Order will not be construed so as to create a private right of action to any non-party against the defendants. The rights, duties and obligations contained in this Order will only bind the parties to this Agreement.
7. Eighteen months after the Court enters this Order, the County Defendants reacquire the right to file motions under the Prison Litigation Reform Act.
8. Any request for a modification of this Order will be mediated by the Special Master before it is submitted to the District Court for consideration.
8

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 9 of 10 9. Any claimed breach of this Order will be mediated by the Special Master before it
is submitted to the District Court for consideration. It is so ordered. o James A. Parker U . ed States District Judge
9

Case 6:95-cv-00024-JAP-KBM Document 1147 Filed 05/12/14 Page 10 of 10

APPROVED:

Randy 0 Attorney for County Defendants
ttr ~
Peter Cubra Attorney for Plaintiff-Intervenors

05. S. l't
Marcus Rael Attorney for County Defendants

/7)
Jeffrey L. Baker Attorney for County Defendants

J~5./'i

~~ /:, ntk N·D...k#. ~5.5.J4

ar H. a IIi

Kirtan Khalsa

Attorney for Plaintiffs

Attorney for Plaintiffs

. . . . ~f{a s/s/Ii

Attorney for Plaintiff-Intervenors

10

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

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
vs. CITY OF ALBUQUERQUE, et al.,
Defendants, vs. E.M, R.L., W.A., D.J., P.S., AND N.W. on behalf of themselves and all others similarly situated
Plaintiff-Intervenors.

No. CIV 95-24 MV/DJS

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Plaintiff-Intervenors’Application for Attorney’s Fees [Doc No. 307]. The Court having considered the application, briefs, relevant law and being otherwise fully informed finds that the application is well-taken and will be GRANTED.
FACTUAL BACKGROUND On January 10, 1995, a class action lawsuit was filed in this Court on behalf of all present and future residents of the Bernalillo County Detention Center (BCDC), alleging, inter alia, that severe prison overcrowding violated the constitutional rights of the residents. On October 26, 1995, this Court granted Plaintiff-Intervenors limited intervention on behalf of a subclass of
1

BCDC residents with mental and developmental disabilities. On November 22, 1995, PlaintiffIntervenors filed an Amended Complaint-in-Intervention alleging, inter alia, discrimination by Defendants against people with mental or developmental disabilities in violation of the Americans with Disabilities Act (ADA). On November 5, 1996, the Court approved the settlement agreement reached between Plaintiff-Intervenors and Defendants in the form of two Orders entitled “Order” and “Order Regarding the Prison Litigation Reform Act” respectively. In the “Order” the Court found a violation of the ADA in that “some residents are not afforded reasonable accommodations for their disabilities.” The Court ordered at least eighteen prospective measures designed to address the needs of BCDC residents with mental and developmental disabilities. The Court also held that “Plaintiff-Intervenors are entitled to attorney’s fees, expenses and costs reasonably and necessarily incurred with respect to this litigation in the amounts to be determined by the Court.”
On April 4, 1997, Defendants entered into an agreement regarding Plaintiff-Intervenors’ attorney’s fees as follows: Peter Cobra - $145/hr.; Elizabeth Simpson - $135/hr.; Nancy Koenigsberg - $100/hr. The term of the agreement was for a period of two and a half years, ending November 1, 1999. In April of 1999, Defendants informed Plaintiff-Intervenors that they were no longer willing to pay the rates they had previously negotiated, and thus, as of April 1, 1999, counsel for Plaintiff-Intervenors were to be paid at the rate of $112.50 per hour - the rate allowed under the Prison Litigation Reform Act (PLRA). Lisa Schatz, an attorney employed by the Protection and Advocacy System entered her appearance, substituting for Nancy Koenigsberg of the same organization on March 24, 1999. Prior to Ms. Schatz’s substitution, Defendants had agreed to pay Protection and Advocacy for attorney’s fees and costs incurred in the prosecution
2

of this litigation and subsequent compliance monitoring services. On August 2, 1999, counsel for Defendants sent a letter to Mr. Robert White indicating that because Ms. Schatz is paid by Protection and Advocacy, “we have not agreed to pay her.” Counsel for Plaintiff-Intervenors continued to negotiate the hourly rate, but when negotiations reached an impasse, counsel for Plaintiff-Intervenors informed Defendants on October 25, 1999, that the hourly rate of $112.50 was unacceptable. Counsel for Plaintiff-Intervenors took the position that under the ADA they are entitled to reasonable attorney fees and are not limited to the attorney fee caps pursuant to the PLRA, while Defendants reiterated their position that only the PLRA attorney fee rate was applicable.
DISCUSSION The two issues in dispute between the parties are (1) whether Lisa Schatz should receive attorney fees notwithstanding her employment with Protection and Advocacy and (2) whether Plaintiff-Intervenors are entitled to reasonable attorney fees under the ADA or limited attorney fees under the PLRA. At the outset, however, Defendants argue that pursuant to the settlement agreement, the parties are required to submit all disputes for mediation prior to resorting to the court. The Court finds, however, that the parties have demonstrated an inability to reconcile this issue through prior negotiation, and that mediation would be of little use at this juncture. Moreover, the Court believes it is more incumbent upon the parties to spend the little time allocated to mediation resolving the more pressing issues of prison overcrowding and the needs of mentally impaired residents, rather than arguing over attorneys fees. A. Attorney’s Fees For Lisa Schatz Defendants argue that Lisa Schatz is not entitled to attorney fees, first because she is
3

already paid by Protection and Advocacy, and second because neither Defendants nor the Court have approved her participation in the case. The Court is not persuaded by either argument. As an initial matter, both the United States Supreme Court and the Tenth Circuit have definitively stated that equal fees are to be awarded to plaintiffs’counsels whether they are members of the private bar or employed by non-profit civil rights organizations. See Blanchard v. Bergeron, 489 U.S.87, 92 (1989); Blum v. Stenson, 466 U.S. 886, 894 (1984); Ramos v. Lamm, 713 F.3d 546, 551 (10th Cir. 1983) (plaintiffs’counsel’s employment by a public interest firm is “legally irrelevant” for purposes of awarding fees). Thus, Lisa Schatz’s status an employee of the public interest firm of Protection and Advocacy does not preclude her from entitlement to attorney’s fees. The Court likewise finds that it is unnecessary to require a Court order every time Protection and Advocacy substitutes an attorney to work on behalf of the Plaintiff-Intervenors. In a class action lawsuit, the Court has a fiduciary obligation to select counsel after “careful consideration of the demonstrated ability to consider the litigation efficaciously and efficiently.” Gottleib v. Wiles, 150 F.R.D. 174 (D. Colo. 1993). Pursuant to this fiduciary obligation, the Court exercised such careful consideration in selecting Protection and Advocacy as the appointed representative for the Plaintiff-Intervenors. The Court is confident that Protection and Advocacy exercises due diligence in hiring competent and able counsel, and indeed, the opposite has never been argued. Ms. Schatz is simply the substituted representative of Protection and Advocacy, the organization which has committed to providing an attorney to pursue the lawsuit on behalf of Plaintiff-Intervenors. Any attorney employed for Protection and Advocacy would similarly have the approval of the Court, unless grounds were shown otherwise.
Defendants next argue that Plaintiff-Intervenors comprise a small subclass and do not need
4

three attorneys, as compared to the larger main class which has only two attorneys. When the Court approved the settlement agreement it determined that the three attorney representing the Plaintiff-Intervenor subclass were reasonable and necessary. Such is still true today. Moreover, Defendants realize a financial benefit in the participation of Lisa Schatz because she is paid at a lower rate than the other two attorneys for the subclass. If Ms. Schatz were no longer authorized to work on this lawsuit, either the remaining attorneys would be required to perform her work at a higher rate, or the advocacy on behalf of the Plaintiff-Intervenors would suffer. On these grounds the Court finds that Lisa Schatz, as an employee of Protection and Advocacy, is performing work that is reasonable and necessary to this matter and is entitled to attorney’s fees for the work performed. B. Applicability of the Prison Litigation Reform Act to the Americans With Disabilities
Act Defendants argue that counsel for Plaintiff-Intervenors are only entitled to attorney fees pursuant to the limited attorney fee provisions of the PLRA, rather than the ADA. Under the PLRA the present amount of allowable attorney fees is $112.50 per hour, while under the ADA the Court “in its discretion, may allow the prevailing party a reasonable attorney’s fee, including litigation expenses and costs.” 42 U.S.C. § 12205. Defendants initially argue that the Court never made a finding that Defendants had violated the ADA. This contention is in direct contradiction with the explicit language of the Court’s “Order” which states “some residents are not afforded reasonable accommodations for their disabilities.” The portions of Plaintiff-Intervenors’Amended Complaint-In-Intervention alleging failure to accommodate the residents’disabilities claims violations of the ADA. In
5

concurring that indeed reasonable accommodations were not provided, the Court was finding a violation of the ADA. Moreover, the Court instructed Defendants to implement at least eighteen measures designed to provide reasonable accommodations for the residents with disabilities. Among these findings were that Defendants must improve mental health evaluation and treatment procedures, increase the staffing of mental heath professionals, and increase the number of beds available to residents in mental health crisis. The Court’s findings and recommendations were made plainly in the context of the ADA. Furthermore, the Court purposefully issued a separate order to address the needs of Plaintiff-Intervenors precisely because these claims were being brought under the ADA rather than the PLRA. As such there is no merit to Defendants’assertion that the Court did not find any violations of the ADA.
The remaining issue before the Court is whether the PLRA attorney’s fees provisions preempt the ADA attorney’s fees provisions when the violations occur in a prison setting. The Court finds that the PLRA does not limit the ADA in this manner. The PLRA imposes limitations on the award of attorney’s fees authorized under 42 U.S.C. § 1988. 42 U.S.C. § 1997e(d)(1). However, § 1997e(d)(1) only applies to “any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 2 of... 42 U.S.C. 1988. Id. (emphasis added) The plain meaning of the PLRA places a cap on the amount of attorney’s fees only when the fees are awarded in civil rights actions brought under 42 U.S.C. § 1988. The ADA, in contrast, provides an independent statutory authority for the provision of attorney’s fees at 42 U.S.C. § 12205. PlaintiffIntervenors’claims arose first and foremost under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. rather than under 42 U.S.C. § 1988, are supported by an entirely separate fee
6

provision, and thus are not limited by the attorney’s fees caps of the PLRA. The only published case on point reaches precisely this conclusion. In Beckford v. Irvin,
60 F. Supp. 2d 85 (W.D.N.Y. 1999), the plaintiff filed an action pursuant to 42 U.S.C. §1983 and the ADA, alleging a violation of his Eighth Amendment right against cruel and unusual punishment. The Beckford court, relying on the plain meaning of the PLRA § 1997e(d) held that “[t]he PLRA does not limit the award of attorney’s fees to a prevailing Plaintiff whose award is authorized under a statute separate from §1988.” Id. at 88. As was the case in Beckford, Plaintiff-Intervenors’case is based primarily on violations of the ADA, and therefore attorney’s fees are authorized as set forth in §12205 of the ADA.
Other courts have held more generally that the fact that a claim involves prisoners in some manner does not trigger all provisions of the PLRA in all respects. In Kerr v. Pucket, 138 F.3d 321 (7th Cir. 1998), for example, the district court applied the PLRA to an Eighth Amendment claim alleging “brainwashing” of prisoners as part of a substance-abuse control program, where the plaintiff was no longer incarcerated, based on the notion that if a prisoner is involved all aspects of the PLRA apply. Id. at 322. The Seventh Circuit rejected this approach, finding instead that the PLRA, strictly construed, is limited only to current prisoners by its terms:
Instead of relying on “common sense,” which is an invitation to treat the law as if one side or the other had its way, a Court should implement the language actually enacted --provided that the statute is not internally inconsistent to otherwise absurd. Id. Similarly, in Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998), the Ninth Circuit refused to apply the PLRA emotional distress limitation on prisoner litigation to an action claiming a First Amendment violation brought pursuant to 42 U.S.C. § 1983 because the court
7

did not consider the plaintiff’s damages arising from the First Amendment to be emotional distress damages. Rather than applying the rule that “a prisoner is a prisoner,” the Ninth Circuit analyzed the nature of the action, not the identity of the litigant, and found the action not to fall within the purview of the PLRA.
Defendants cite to Cassidy v. Indiana Department of Corrections, 199 F.3d 374 (7th Cir. 2000) in which the Seventh Circuit found that the PLRA applies to all prisoner litigation claiming relief for emotional and mental damages, regardless of alternative statutory bases of relief. In Cassidy, plaintiff alleged that the defendant (IDOC) intentionally discriminated against him in violation of the ADA and Rehabilitation Act by denying him access to various programs, facilities, services, activities and benefits enjoyed by the non-disabled. The district court found that the plaintiff’s claims of emotional and mental damages brought pursuant to the ADA were void because the plaintiff could not allege a physical injury in violation of 42 U.S.C. § 1997e(e) of the PLRA. On appeal, the Seventh Circuit affirmed, finding that the emotional and mental damages provision of the PLRA applies to actions for emotional and mental distress brought under the ADA by virtue of the plain language of the PLRA. Although this Court respectfully disagrees with the Seventh Circuit’s ultimate conclusion, the Cassidy case is quite distinguishable from the case at bar. In Cassidy, the Plaintiff was seeking redress for emotional and mental injuries, damages which were clearly within the scope of the PLRA. Here, in contrast, PlaintiffIntervenors sought reasonable accommodation for their disabilities, a cause of action not at all contemplated by the PLRA. Furthermore, the Cassidy court only found that the emotional and mental damages claims brought pursuant to the ADA were in fact governed by the PLRA because the PLRA specifically provides limitations of such a cause of action. The court said nothing of
8

whether a prisoner’s claims for reasonable accommodations would be similarly limited by the PLRA, or whether other portions of the ADA, including the attorney’s fees provisions, were similarly limited.
The plain language and legislative history of the ADA, 42 U.S.C.§ 12205, provides further support for the Court’s conclusion that the ADA attorney’s fees provision is not limited by the PLRA. Section 12205 provides in pertinent part that “the Court in its discretion, may allow the prevailing party a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. The statute does not carve out any exceptions from the attorney’s fees provision. The legislative history of the ADA indicates that the drafters clearly contemplated that the ADA was the comprehensive legislation for disability claims. Specifically, the legislative history embraces the “comprehensive character of the Act.” H. Rep. No. 101-485(II), 1990 U.S.C.C.A.N. at 330. Congress rejected “piecemeal” enactment of provisions for the protection of persons with disabilities. Such a piecemeal approach would, as stated in the legislative history, leave “holes in the fabric, serious gaps in coverage that leave persons with disabilities without adequate civil rights protections.” Id. Carving out an implicit exception to the ADA for cases brought on behalf of prisoners does not comply with this legislative intent. The ADA defines and encompasses Plaintiff-Intervenors because they possess a qualifying disability. Grafting a “prisoner exception” onto the ADA would create just the sort of gap in coverage rejected by Congress, without any support in either the ADA or the PLRA for such an exception to the ADA’s comprehensive coverage.
After an analysis of the plain meaning of both the ADA and the PLRA, the legislative history of the ADA and supporting case law, the Court concludes that the PLRA attorney’s fees
9

provision does not supplant the attorney’s fees provision under the ADA.

C. Appropriate Attorney’s Fees

The ADA contemplates that attorney’s fees be calculated by multiplying reasonable hours

by a reasonable hourly rate as determined by the prevailing market rate in the community. H.R.

Rep. No. 101-485(II), 1990 U.S.C.C.A.N. at 73. The prevailing market rate is determined based

on similar services provided in the community by attorneys of reasonable comparable skills,

experience and reputation. As verified in the accompanying affidavit, the foregoing hourly rates

are representative of the prevailing market rate in the community:

Attorney

Rate

Peter Cobra

$190.00

Elizabeth Simpson

$180.00

Lisa Schatz

$125.00

WHEREFORE, IT IS HEREBY ORDERED that Plaintiff-Intervenors’Application for Attorney’s Fees [Doc No. 307] is hereby GRANTED and shall be awarded in the amounts stated above. DATED this 22nd day of August, 2000.
MARTHA VÁZQUEZ U. S. DISTRICT JUDGE

10

 
 Case 6:95-cv-00024-JAP-KBM Document 255 Filed 11/05/96 Page 1 of 8

NITEos[/L£o . IN THE UNITED STATES DISTRICT COURT 11

FOR THE DISTRICT OF NEW MEXICO

015 TR!cr~~2'Jrrllcr c

96 Nov- 5 .. w11Ex,cgutrr·

JIMMY (BILLY) MCCLENDON, et al.,

oa 1.(~/ _?;,.. PH 2:

Plaintiffs,

CL[p~-C7 •<?:;-r"-) -~_,(}. "• vAI!i;, F[ '-

vs.

No. CV 95-24 MV/DJS

CITY OF ALBUQUERQUE, et al.,

Defendants

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,

Ptaintiff Intervenors.
ORDER REGARDING THE PRISON LITIGATION REFORM ACT

THIS MATTER comes before the Court by agreement of the parties pursuant to 18 U.S. C.

3626 (a)(1), and, being fully advised in the premises;

THE COURT FINDS, based on the Court's inspections of the jail on August 10, 1995 and

January 19, 1996; the evidence presented at the hearing on August 11, 1995; the Court's fmdings

of March 22, 1996 and March 25, 1996; other information obtained by the court in status

conferences and from defendants' formal reports to the court; the stipulations of the parties and

the entire record of this case, that violations of one or more federal rights of BCDC residents have

occurred at BCDC.

THE COURT FURTHER FINDS that defendants have already undertaken some steps to

remedy the problems at BCDC and that it is in the best interests of the defendants, the plaintiffs,

Case 6:95-cv-00024-JAP-KBM Document 255 Filed 11/05/96 Page 2 of 8
the plaintiff intervenors, and of the public for this settlement agreement to be entered at this time, without the expense and distraction of further litigation.
THE COURT ALSO FINDS that the settlement agreement regarding the Prison Litigation Reform Act is proper and that the relief set forth in the settlement agreement:
(1) is narrowly drawn; (2) extends no further than necessary to correct the violations of the federal rights of
subclass members; (4) is the least intrusive means necessary to correct the violations of the federal rights
of subclass members; and (5) will have no adverse impact on the public safety or the operation of the criminal
justice system. WHEREFORE, IT IS HEREBY ORDERED that the parties shall implement the following settlement agreement forthwith. The parties shall also provide notice to subclass members as required by Rule 23 of the Federal Rules of Civil Procedure and assist the Court in the scheduling of a fairness hearing as soon as is practicable.
SETTLEMENT AGREEMENT REGARDING THE PRISON LITIGATION REFORM ACT On April 26, 1996, Congress passed, and the President signed, the Prison Litigation Reform Act of 1995 (PLRA), 18 U.S.C. §3626. By its terms, the Act applies to all claims for "prospective relief" (as the term is defined in the Act), including relief granted prior to enactment of the Act. On September 13, 1996, defendants filed a Motion for Immediate Termination of Prospective Relief Regarding Overpopulation Granted or Approved By the Court's Orders Dated
2

Case 6:95-cv-00024-JAP-KBM Document 255 Filed 11/05/96 Page 3 of 8
August 23, 1995, September 7, 1995, March 22, 1996 and March 25, 1996. On September 30, 1996, plaintiff intervenors filed a Motion for Further Remedial Relief. The parties do not waive their respective positions regarding the applicability or constitutionality of the PLRA. However, this Settlement Agreement resolves both Motions.
GENERAL PROVISIONS In recognition of the limited fmancial resources of the Defendants, the unpredictability of the population at the detention facilities operated by Defendants, the unpredictability of the numbers of residents with mental and/or developmental disabilities and the uncertainty of the impact of reduction in population at the BCDC main facility and the opening and expansion of additional facilities, the parties are adopting a flexible approach to addressing the concerns raised by the two motions. All parties recognize that this agreement may require tailoring in the future to address unanticipated circumstances. However, it is expressly agreed that no modifications or amendments to this Settlement Agreement may reduce the benefits to BCDC residents which are provided for in this Settlement Agreement unless agreed to in writing by the parties or unless ordered by the Court.
POPULATION CONTROL 1. For the seven months beginning November 1, 1996, BCDC shall have an average daily population of 700 residents. This figure includes all residents in the main facility, including the north tower, south tower, annex, detox program and R & D (the booking area). To determine the daily population residents shall be counted at 4:00a.m., 7:00a.m., and 9:00p.m. each day. Those counts shall be added and divided by three to determine the daily population. Each daily population for a calendar month shall be added and divided by the number of days in that month to determine the average daily population for the month. This number shall not exceed 700.
3

Case 6:95-cv-00024-JAP-KBM Document 255 Filed 11/05/96 Page 4 of 8
,.
2. The monthly average daily population cap of 700 shall be in effect until May 31, 1997, or until the parties mutually agree in writing to modify the cap number, or until the Court orders otherwise, whichever occurs first. Beginning June 1, 1997, the average daily population shall be no greater than 643 and beginning August 1, 1997, the average daily population shall be no greater than 586.
3. No residents shall be housed overnight in the holding cells under the district courthouse. Those cells shall only be used as holding cells for individuals awaiting court proceedings.
4. During 1996, officials from the City of Albuquerque will meet with officials from Bernalillo County to develop solutions to the continuing resident population pressures at BCDC, including the reduction of 114 residents at the main facility required by paragraph 2. Such discussions will include at least possible expansion of the interim Westside facility, possible renovations to Montessa Park, and possible development of additional drug treatment and/or mental health treatment facilities.
5. The City of Albuquerque will seek additional sources of funding for pre-trial services at BCDC.
6. The defendants shall open a 25 bed medical detox facility at BCDC, and a 100 bed alcohol treatment facility at the Westside facility as soon as possible and no later than 90 days from the signing of this Settlement Agreement.
7. By the end of 1996 BCDC will contract with a licensed psychologist to provide written competency evaluations to BCDC residents charged with misdemeanors who are ordered by the Courts to undergo such evaluations.
4

Case 6:95-cv-00024-JAP-KBM Document 255 Filed 11/05/96 Page 5 of 8
8. Alternatives to Secure Detention Program (ASDP) staff will be added in response to increases in ASDP referrals. Counsel for plaintiffs and plaintiff intervenors and for defendants will meet with officials of the Public Defender Department, the District Attorneys' Office, and the Metropolitan and District Courts to encourage them to use ASDP more often.
OTHER MATTERS 9. The parties, through their counsel, shall meet at least once each month to discuss:
a. the defendants' efforts to reduce overcrowding; b. improved procedures for attorneys to meet safely and privately with their
clients; c. improving medical care; d. improving access to the judicial system; e. improving transportation to court; f. improving staff training; g. defendants' compliance with the court's orders; and h. other matters of mutual concern. These monthly meetings do not preclude the parties from obtaining information through formal discovery and shall continue at least until August 1, 1997. 10. The parties stipulate that, due, in part, to overcrowding, one or more federal rights of some BCDC residents are violated. The parties also stipulate that this Settlement Agreement and the Court's Orders of August 23, 1995 and September 7, 1995: a. are narrowly drawn;
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b. extend no further than necessary to correct the violations of the federal rights of BCDC residents;
c. are the least intrusive means necessary to correct the violations of the federal rights of BCDC residents; and
d. will have no adverse impact on the public safety or the operation of the criminal justice system.
11. In the event Plaintiffs, Plaintiff-Intervenors, or Defendants wish to invoke mediation regarding any issue within the scope of this litigation a mediation among the parties shall ensue as soon as practicable and within 30 days. The parties agree to ask Ms. Kathryn Monaco to be the mediator.
12. The parties agree that, absent an emergency, they will mediate any dispute before resorting to Court.
13. Defendants agree to file no motion in the future asserting that this Settlement Agreement should be terminated based upon the provisions of the PLRA.
14. The parties agree that it is in their mutual interest for the Court's Orders of August 23 and September 7, 1995 to remain in effect except insofar as this agreement modifies the methodology for counting the population at the BCDC main facility and delays for seven months time the imposition of the final two stages of population reduction.
15. Plaintiffs and for Plaintiff Intervenors are entitled to attorneys' fees, expenses and costs reasonably and necessarily incurred with respect to these motions in amounts to be determined by the Court. The Court shall retain continuing jurisdiction to review, modify and enforce this Settlement Agreement.
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C).;A
Jeffrey L. Baker
Attorney for Defendants 20 First Plaza, Suite 402 Albuquerque, NM 87102 (505) 247-1855

v/S--

HONO LE ARTHA VAZQUEZ U.S. DISTRICT COURT JUDGE

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16. Plaintiffs and Plaintiffs Intervenors withdraw their March 1996 Motions for an Order to Show Cause.
Peter Cubra Nancy Koenigsberg Lisa Simpson Attorneys for Plaintiff-Intervenors 122 Tulane SE Albuquerque, New Mexico 87106
Mary Y C. H n, Shanno Oliv , sq. Joseph . Kenne y, Esq. Attorne s for Plamtiffs 1122 C tral Avenue SW
, NM 87102
-
e li1PNn1Tii'iimistrative Officer City of Albuquerque 11th Floor, Room 11103 One Civic Plaza Albuquerque, NM 87102
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 Case 6:95-cv-00024-JAP-KBM Document 1191 Filed 08/17/15 Page 1 of 24

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

JIMMY (BILLY) McCLENDON, et al.,
Plaintiffs, vs.
CITY OF ALBUQUERQUE, et al.,
Defendants,
vs.
E.M., R.L., W.A., D.J., P.S., and N.W. on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

CIV 95-24 JAP/KBM

PLAINTIFF INTERVENORS’ MOTION FOR AN ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF REGARDING CITY DEFENDANTS
COMES NOW the Plaintiff Intervenor sub class, pursuant to this Court’s inherent powers
to enforce its orders, and pursuant to the Fourth and Fourteenth Amendments of the United
States Constitution, the Rehabilitation Act of 1973 (“Rehabilitation Act”) and the Americans
with Disabilities Act (“ADA”), and hereby respectfully moves this Court to:
1. Issue to the City Defendants an order to show cause why they should not be held in contempt for failing to implement the terms of the stipulated orders that have been entered into by the parties and approved as orders of this Court;
2. Enter appropriate compensatory and coercive remedial orders against City Defendants for their non-compliance with this Court’s extant orders; and
3. Order appropriate additional remedial relief to remedy the City Defendants’ on-going violations of the federal rights of members of the Plaintiff Intervenor sub class under the Constitution, the ADA and Section 504 of the Rehabilitation Act of 1973.
County Defendants take no position on this Motion. City Defendants oppose it.

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When this case was filed, the City of Albuquerque (“the City”) both managed the local jail system and operated the law enforcement agency that booked the most people into jail. The City no longer manages the jail, but the City of Albuquerque and the Mayor of Albuquerque (“the City Defendants”) remain defendants in this action and are, of course, obligated to comply with the Court’s orders that apply to the City’s activities. Additionally, this Court is the only forum in which sub class members can obtain injunctive relief to remedy violations of their rights under the U.S. Constitution, the ADA and the Rehabilitation Act, with respect to the claims that were brought against the City within this class action lawsuit. Johnson v. City of Tulsa, 489 F.3d 1089, 1110 (10th Cir. Okla. 2007); McNeil v. Guthrie, 945 F.2d 1163 (10th Cir. Okla. 1991); See also Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. Tex. 1988); Cotton v. Hutto, 577 F.2d 453 (8th Cir.1978); Wren v. Smith, 410 F.2d 390 (5th Cir.1969).
For over a year, counsel for Plaintiff Intervenors attempted to resolve the issues raised herein without filing the instant motion. On April 4, 2014, counsel for Plaintiff Intervenors wrote to counsel for the City Defendants and raised the issues of the City’s violations of this Court’s orders and of the City’s ongoing violations of the federal rights of sub class members that were raised in the complaint in intervention. See Exhibit 1, April 4, 2014 letter to City Attorneys. The City’s subsequent responses to Plaintiff Intervenors’ requests to inspect public records revealed that the City has never complied with the 2001 Supplemental Order to Enforce Previously Ordered Population Limits at the BCDC Main Facility (“Supplemental Order”), Doc. 319, or with the January 31, 2002 Stipulated Agreement, Doc. 361. Moreover, the City is still committing the following violations of federal law alleged in Plaintiff Intervenors’ complaint in intervention: 1) unnecessarily subjects Plaintiff Intervenors to arrest and incarceration; 2) fails to reasonably accommodate sub class members with respect to the decisions made by law
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enforcement officials whether to issue citations to them or to arrest them and incarcerate them; 3) books sub class members into jail even when it is apparent they need hospitalization; 4) fails to provide sufficient training to City personnel regarding the use of force, including failing to adequately instruct them to not use unnecessary force; and 5) still has not made reasonable modifications to City policies and procedures to avoid discrimination against Plaintiff Intervenors.
Since receiving the April 4, 2014 letter, the City Defendants have refused to take necessary actions to reduce the chronic and on-going irreparable harm to the thousands of sub class members detained by City police officers each year. Albuquerque police continue: a) targeting people with mental disabilities to be stopped, searched, seized, and subjected to unlawful uses of force in the absence of any reasonable suspicion that those people with disabilities are engaged in criminal activity; b) failing to reasonably accommodate the disabilities of sub class members in the course of what may be a lawful stop, search or seizure, thereby inflicting unnecessary and unreasonable force upon them; and c) discriminatory and unnecessary arrests and incarceration, causing sub class members to be institutionalized and segregated from the community due to their mental disabilities.
City Defendants are denying sub class members the benefits of this Court’s orders to which the City Defendants stipulated, and also continue to subject members of the sub class to the same constitutional violations and violations of federal anti-discrimination statutes that were raised by Plaintiff Intervenors at the inception of this case. As a result, sub class members are experiencing recurrent and irreparable harm. Accordingly, it is necessary to bring the City Defendants’ ongoing violations of the federal rights of sub class members before this Court.
BACKGROUND
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In 1995, the Plaintiff Intervenors asserted in their complaint in intervention that both the City of Albuquerque and the County of Bernalillo, and various officials thereof, were violating the federal rights of the people arrested by their law enforcement officers and taken to jail. See Doc. 150. In addition to the claims brought regarding the local jail system, the complaint in intervention also alleged that City Defendants, including their police officers, were violating the Constitution, the ADA and the Rehabilitation Act by discriminating against sub class members, subjecting them to arrest, use of excessive force, incarceration and segregation.
The City’s law enforcement practices were at the heart of Plaintiff Intervenors’ complaint. The second sentence of the complaint in intervention states, “Frequently, people with disabilities are taken into police custody because of behaviors related to their disabilities [and] taken to jail instead of to the University of New Mexico Mental Health Center.” Doc. 150, p. 1. The sub class alleged, inter alia, that the City Defendants violate federal law by: 1) unnecessarily subjecting them to arrest and incarceration (Id., pp. 1-3, 30); 2) failing to reasonably accommodate them with respect to the decisions made by law enforcement officials whether to issue citations to them or to arrest them and incarcerate them (Id., pp. 1, 17, 30); 3) booking them into jail even when it is apparent they need hospitalization (Id., pp. 17, 30); 4) failing or refusing to provide sufficient training to City personnel regarding the use of force, including failing to adequately instruct them to not use unnecessary force. (Id., pp. 17, 19-20); and 5) not making reasonable modifications to City policies and procedures to avoid discrimination. (Id., p. 23). I. The City Defendants Are Violating Orders To Which They Stipulated.
To avoid a trial, the City entered into two consent decrees on November 5, 1996: 1) the Order Regarding the PLRA (Doc. 255), which applies both to members of the sub class and to
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members of the class, and 2) the Order (Doc. 256) which settled the claims brought by Plaintiff Intervenors in their complaint in intervention. The Defendants stipulated that “violations of one or more federal rights of BCDC residents have occurred,” [Doc. 255, p. 1] and that “some residents are not afforded reasonable accommodations for their disabilities” [Doc. 256, p. 7].
A. City Police Continue to Inappropriately Arrest Plaintiff Intervenors for “Citable” Offenses.
To settle a motion regarding jail overcrowding, the Defendants stipulated to a September 25, 2000 order (Doc. 315) requiring them to take the necessary actions for the appointment of a Pro Tem Judge in the local state district court to facilitate better jail population management. In June of 2001, the Pro Tem judge sent the Court a memorandum listing 30 population management activities that were being undertaken to reduce the number of people held in jail. Doc. 319-1. City police officials were performing several of those activities. After negotiations facilitated by retired state district Judge Woody Smith, the parties settled the contempt motion based upon those 30 measures. The Court entered another stipulated order (Doc. 319) that found, “244 persons were brought into the jail by arresting officers in the month of March, 2001 and booked on petty misdemeanors, including, inter alia, shoplifting under $100, excessive sun screen material on vehicle windows, and unreasonable noise. Issuing citations for such nonviolent petty offenses and using the jail’s ‘walk through procedure’ for persons charged with such offenses would likely reduce unnecessary incarceration at BCDC.” Id., ¶ 5.
The City Defendants also stipulated in that Supplemental Order that they would, “Provide direction to law enforcement officials under the control of the City and/or the County to issue citations where appropriate and to use the ‘walk through procedures,’ rather than incarcerating individuals, where appropriate.” Id. Shockingly, the City acknowledged in June of 2014 that it could not produce a single document indicating that the City had ever notified City law
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enforcement officials of the existence of that federal court order, nor that the City ever provided the required direction to City police officials. Over a year later, the City Defendants still have not rectified their violation of the Court’s 2001 order, despite several negotiating sessions with counsel for Plaintiff Intervenors and three mediation sessions before retired United States Magistrate Judge Alan C. Torgerson, the Court’s Special Master. The most recent settlement conference was on July 21, 2015.
Meanwhile, APD officers continue to make warrantless arrests of sub class members, in violation of New Mexico constitutional and statutory law, and, consequently, also in violation of the Court’s 2001 stipulated order requiring that arrests must be “appropriate.”
New Mexico law dictates when arrests are appropriate. Notably, New Mexico’s courts afford persons greater protections from warrantless arrest than are provided under the U.S. Constitution. In State v. Gutierrez, 1993-NMSC-062, ¶ 46, 116 N.M. 431, 863 P.2d 1052, the New Mexico Supreme Court stated, “[W]e observe that Article II, Section 10 expresses the fundamental notion that every person in this state is entitled to be free from unwarranted governmental intrusions.” See also Campos v. State, 1994-NMSC-012, ¶ 14, 117 N.M. 155, 870 P.2d 117 (“We strongly favor the warrant requirement.”).
For decades New Mexico law has allowed a warrantless felony arrest only if (1) based upon probable cause and (2) in conjunction with sufficient exigent circumstances. Campos, 1994-NMSC-012, ¶ 1, 117 N.M. at 156. Over a year ago, in State v. Paananen, 2014-NMCA041, ¶ 27, 321 P.3d 945, cert. granted, 324 P.3d 376 (Mar. 28, 2014), the New Mexico Court of Appeals similarly held that, barring certain statutory exceptions, an officer also may only make a misdemeanor arrest if exigent circumstances exist which made it unreasonable to obtain a warrant. Id. at ¶¶ 34-35, 321 P.3d at 953-54. See State v. Copeland, 1986-NMCA-083, ¶ 14, 105
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N.M. 27, 31 (“Exigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.”). City Defendants’ police officers commonly arrest sub class members without warrants, in the absence of exigent circumstances, rather than issuing citations. Those arrests violate New Mexico law, and ipso facto, also violate the Court’s order requiring the issuance of a citation, rather than making an arrest, “when appropriate.”
B. The Defendants Have Not Created A Plan To Implement An Effective Jail Diversion Program For Persons With Psychiatric Or Developmental Disabilities.
In the 2001 Supplemental Order, the Court also included these stipulated Findings: Treatment programs and modalities which have proven effective in other communities for the safe, cost-effective and beneficial treatment of individuals with mental disabilities are not available in Bernalillo County in sufficient quantities to serve sub class members who could end or avoid incarceration by participating in such treatment programs. Effective jail diversion services for mentally disabled sub class members are needed in Bernalillo County to reduce jail overcrowding. Increased intensive mental health case management, crisis housing, and detox services, as well as a drop-in center for psycho-social rehabilitation, would reduce overcrowding at the jail. Doc. 319, pp. 3-4. When settling the 2001 contempt motion, the Defendants stipulated to an order requiring them, inter alia, to convene a meeting “to plan how to implement an effective jail diversion program for persons with psychiatric or developmental disabilities.” Id., p. 7. No jail diversion plan was created. The Court’s mental health expert, Dr. Jeffrey L. Metzner MD, stated in his July 17, 2015 report to this Court, “There currently does not exist an adequate plan to implement an effective jail diversion program for persons with psychiatric or developmental disabilities.” July 17, 2015 Metzner letter report to The Honorable James A. Parker, page 14 of 40 (emphasis added). In fact, no written plan has ever been created by Defendants.
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C. The City Defendants Have Not Continued To Employ The “Population Management Tools” In Effect In 2002.
On January 31, 2002, the City Defendants entered into another stipulated order, titled Stipulated Agreement that requires, inter alia, “Defendants will continue to employ all existing population management tools. . .” Doc. 361, p. 2. Those “population management tools,” set forth in Doc 319-1, include, inter alia, (1) “Pre-trial services walk-through for misdemeanor warrants. . ..” Doc. 319-1, p. 2; (2) “APD officers have been instructed to obtain every possible phone number from people they stop and arrest or cite and release, and to write the phone number(s) on the face of the arresting/citing document.” Id., p. 10; and (3) “An APD sergeant assigned to BCDC has just started his duties . . . He will assist in familiarizing officers with the walk-through program and will make decisions, when necessary, on which cases are appropriate for walk-through as opposed to booking.” Id. Despite this Court's stipulated order, these measures were subsequently abandoned by City Defendants, without notice to counsel for the sub class. None of those population management tools are currently being employed, and the City Defendants have not employed any of them for years. II. The City Defendants Are Also Violating The Constitutional Rights Of Plaintiff
Intervenors. Albuquerque police are still violating Plaintiff Intervenors’ constitutional rights in the same ways that Plaintiff Intervenors alleged in their complaint in intervention. A. Albuquerque Police Department Officers Engage In A Pattern Of Use Of
Excessive Force Against Sub Class Members Violating The Fourth Amendment. On April 10, 2014 the United States Department of Justice (DOJ) issued a 46 page Letter of Findings (Findings Letter) setting forth the results of a multi-year investigation of use of excessive force by APD officers. The Findings letter contains recent credible evidence that the City Defendants are continuing to violate sub class members’ federal rights, just as alleged
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in their complaint in intervention. The DOJ stated that, “we have reasonable cause to believe
that APD engages in a pattern or practice of use of excessive force, including deadly force, in
violation of the Fourth Amendment and Section 14141. . . We have determined that structural
and systemic deficiencies—including insufficient oversight, inadequate training, and
ineffective policies—contribute to the use of unreasonable force.” See Findings Letter, United
States v. City of Albuquerque Civil No. 1:14-cv-1025 RB/KK Doc. 1-1, p. 1. The Findings
Letter also states inter alia:
a. APD officers unconstitutionally utilize deadly force and of the twenty APD officer involved shootings the DOJ reviewed, a majority of those shootings were unconstitutional, Civil No. 1:14-cv-1025 RB/KK Doc. 1-1, p. 2-3;
b. APD officers also unconstitutionally utilize less than lethal force, Id.; and c. This misuse of force is a pattern and practice resulting from inadequate oversight, training, and policy. Id., p. 3. d. “A significant amount of the force we reviewed was used against persons with mental illness and in crisis” and that such behavior was “not isolated or sporadic.” Id., p. 9.
A number of the findings made by the DOJ are quite similar to the allegations made by
the sub class in their complaint in intervention. For example, the Findings Letter states:
There is a pattern of APD [Albuquerque Police Department] officers using force that is unnecessary and unreasonable against individuals who pose little, if any, threat, or who offer minimal resistance. . . . We reviewed incidents where officers applied force against individuals who were unable to understand or yield to commands but posed a minimal threat to the officers. Many subjects of excessive force had indications of mental illness, physical disabilities, intoxication, and other incapacity. In most instances, these individuals were engaging in lawful activities or committing minor infractions.
Id., p. 15 (emphasis added).
The Findings Letter contains three pages of findings (pages 20-22) regarding APD’s
pattern of using excessive force against people with mental disabilities, including:
Officers also used excessive force against individuals who suffered from mental illness . . . We reviewed many incidents in which we concluded that officers failed to consider an individual’s physical, mental, or emotional state in making force determinations. Consequently, we found instances where individuals did not pose
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an immediate threat to the safety of the officer or the public, and officers deployed a level of force that was unreasonable under the circumstances.
Id., p. 20 (emphasis added).
The Findings Letter also stated that the City has a practice of sending uniformed police to
intercede when a person is in behavioral crisis, but not presenting any danger to anyone other
than him/herself, and that the City fails to use properly trained personnel in those situations.
Under-Use of the Crisis Intervention Team Contributes to the Pattern or Practice of Unconstitutional Force. In far too many of those [use-of-force] reports, officers encountered a person who was clearly in mental health crisis, but they made no attempt to contact the [Crisis Intervention] Team or patrol officers in their area who had been trained and certified by the Team. Partially as a result of the officers’ failure to use the resources available to them, far too many of these encounters had a violent outcome.
Id., p. 34-35.
The complaint in United States v. City of Albuquerque, supra, also parallels a number of
the Plaintiff Intervenors’ claims in the instant case, alleging, inter alia:
The Defendant has failed to ensure that the Albuquerque Police Department provides adequate policies, training, and accountability systems to de-escalate situations and minimize the need to use force when encountering individuals in crisis. . . . The Defendant, its agents, and persons acting on its behalf, including Albuquerque police officers, use excessive force against individuals who pose little or no threat of harm to the officers or others, and that is otherwise unreasonable under the totality of the circumstances.
No. 1:14-cv-1025 RB/KK, Doc. 1, p. 5 and pp. 6-7. (emphasis added)1
B. City Defendants Still Do Not Provide Sufficient Training To City Personnel Regarding The Use Of Force, Including Failing To Adequately Instruct Them To Not Inappropriately Arrest People With Mental Or Developmental Disabilities And To Not Use Unnecessary Force Against Them, Violating Plaintiff Intervenors’ Fourth Amendment Rights.
1 On June 2, 2015, the Honorable Robert C. Brack denied a motion by Disability Rights New Mexico, the ACLU of New Mexico and others to intervene in United States v. City of Albuquerque Civil No. 1:14-cv-1025 RB/KK. The proposed intervenors asked the Court to address APD’s targeting of people with mental disabilities and APD’s discrimination against them. The court denied the motion, stating, “The Court cannot ask the parties to include a non-biased policing provision, because the [DOJ] Complaint does not allege that there were biased policing practices.”
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The Fourth Amendment requires the City to adequately train its police officers with respect to individuals with mental disabilities. The Supreme Court has held “that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of person with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). The deliberate indifference standard is met “when the municipality has actual or constructive notice that its action or failure is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1999). Deliberate indifference can also be found where there is a patently obvious need for training in a particular area, such as not training employees in “specific skills needed to handle recurring situations.” Id., p. 1307-08. The Tenth Circuit has held, regarding the Denver police department, that, “usual and recurring situations for police include . . . encounters with armed mentally ill people.” Brown v. Gray, 227 F.3d 1278, 1288 (10th Cir. 2000). The Brown court held that police departments can be deliberately indifferent if they do not adequately train their officers regarding situations that are, “common, or at least not uncommon,” “foreseeable” or “predictable.” Id.
In Brown, witness testimony supported the existence of a usual and recurring police situation. In Albuquerque, it is indisputable that, problematic, even lethal, encounters between APD and people with mental disabilities is a “usual and recurring situation.” Media accounts in early 2015 reported that, since 2010, APD officers had shot 37 people, at least 23 resulting in fatalities. Of those 37 individuals, most of them reportedly had mental disorders. Further, the percentage of people booked into MDC who require mental health treatment ranges from over 50% to 39%. Those facts make it clear that APD officers must regularly deal with individuals
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with mental illness. City Defendants have long been aware of the risk of harm to the sub class if
their police officers are not properly trained. In 2009, a Bernalillo County state district court
judge found that the “training provided to City of Albuquerque police officers, on the use of
deadly force, was not reasonable and was designed to result in the unreasonable use of deadly
force.” See, Findings of Fact and Conclusions of Law, NO. CV 2009-0915 (N.M. 2d Judicial
Dist., filed Aug. 19, 2009), ¶¶66, 67.
III. The City Defendants Continue to Discriminate Against Sub Class Members By Reason Of Their Disabilities, Violating The Rehabilitation Act And The ADA.
Plaintiff Intervenors’ Amended Complaint in Intervention, [Doc. 150], alleged that the
City Defendants violate Plaintiff Intervenors’ rights under the ADA and the Rehabilitation Act,
inter alia, in these ways:
Defendants, in the administration of the Albuquerque Police Department ... have violated Plaintiff Intervenors' rights under the ADA by: ... failing to establish an adequate system for identifying mental, behavioral and developmental problems of people arrested ... failing to develop for and provide to Plaintiff Intervenors necessary therapeutic placements and services; ... failing to provide Plaintiff Intervenors with services that are as effective as those provided to non-handicapped people . . . denying Plaintiff Intervenors programs, activities and services in the most integrated setting appropriate to their needs . . . failing to make reasonable modifications in programs, policies and procedures when necessary to avoid discrimination against Plaintiff Intervenors on the basis of disability . . . using methods of administration that have the effect of defeating or substantially impairing accomplishment of the disability integration objectives of the ADA.
Doc. 150, pp. 22-23. Plaintiff Intervenors are still being subjected to those violations of the ADA
and the Rehabilitation Act by City Defendants, who continue to subject sub class members to:
(1) discrimination against people who have a mental or developmental disability in the operation
of the City’s police department; and (2) unlawful segregation in jail due to their disabilities.
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A. APD Unlawfully Targets Plaintiff Intervenors For Stops, Searches, Seizures, Arrests And Uses Of Force Based Upon Their Disabilities; Violating This Court’s Orders, The Rehabilitation Act And The ADA. The Amended Complaint in Intervention, [Doc. 150], alleged that City Defendants and
their agents did not reasonably accommodate sub class members with respect to decisions made by law enforcement officials whether to issue citations to them or to arrest and incarcerate them. That remains true today. See Section I, supra at pp. 4-8.
Now, City Defendants are not merely failing to reasonably accommodate sub class members, but they are also intentionally discriminating again Plaintiff Intervenors due to their disabilities. The root cause of many inappropriate detentions and arrests of sub class members, and the attendant unconstitutional uses of force against them, is the City Defendants’ de facto policy of “sweeping the streets” of people who appear to have a mental disability by: 1) unlawfully initiating interactions with people who have, or who appear to have, a mental disability without reasonable suspicion of a crime, and 2) arresting people with a mental disability and taking them to jail for petty offenses, instead of issuing a citation; which is what they do with people who do not have a disability. APD officers routinely stop and question people who appear to be what law enforcement officials commonly refer to as “homeless mentally ill,” and order them to move when they are standing or sitting in public places, particularly downtown Albuquerque and near certain business establishments. Upon information and belief, the Mayor of Albuquerque has told business owners that he will reduce the numbers of “homeless mentally ill” people in the downtown area. Media accounts reported that, in 2015, the City assigned undercover police to investigate a “tent city” in downtown Albuquerque, then evicted all the occupants. See Gabrielle Burkhart, ABQ officials to clear out homeless from ‘Tent City,’ KRQE, January 23, 2015. http://krqe.com/2015/01/23/abq-officials-to-clear-out-homeless-
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from-tent-city/. The City’s de facto policy of “profiling” homeless people with mental disabilities
directly causes many inappropriate bookings into the jail and the institutionalization of them. Use of excessive force incidents like those cited in DOJ’s Findings Letter often begin
when an APD officer stops a person who appears to be “homeless mentally ill” for no lawful reason, then demands identification from him/her and searches their person and his/her backpack. Those unlawful stops, searches and seizures of members of the sub class, without reasonable suspicion of a crime, frequently lead to unlawful uses of force, inappropriate arrests and discriminatory segregation from the community.
The City Defendants direct APD employees to approach persons who have, or appear to have, disabilities merely because they are exhibiting non-threatening symptoms of their mental illness or because they had an encounter with law enforcement in the past. APD officers then commonly check whether that sub class member has a warrant, often charge him or her with a crime and, in the absence of an exigent circumstance, arrest them instead of issuing a citation. For example, in 2014 on an APD officer ordered sub class member B. A. to throw away his cigarette for “littering,” then arrested B. A. after he obeyed the order. Alex Goldsmith, APD puts litterbug behind bars, KRQE, April 25, 2014. http://krqe.com/2014/04/25/apd-puts-litterbugbehind-bars/. B.A. had already been booked into MDC on minor charges sixteen times. Id. A later media account stated, “At least 7 people have been arrested and booked into MDC solely on littering charges since 2012. The majority of those arrested for that lone littering violation, including [B. A.], have a history of substance abuse or mental health problems.” Alex Goldsmith, Litterbug’s jail stay nearly a week, KRQE, May 2, 2014. http://krqe.com/2014/05/01/litterbugs-jail-stay-nearly-a-week/.
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APD’s own training materials promote fear and stigma regarding sub class members;
referring to people with developmental disabilities as “mentally retarded,” an archaic and
pejorative term. A lesson plan provided to Plaintiff Intervenors’ counsel in 2014 by APD
suggests that people with a developmental disability are prone to violence:
Methods for Dealing with Mentally Retarded Persons . . . 3. Criminal profile . . . b. Feelings of inferiority mentioned earlier may cause aggression toward others. c. Study of persons with mental retardation in state prison revealed their single most frequent crime was homicide; greater than 50% of the crimes committed by persons with retardation were crimes of violence against a person.
Exhibit 2, pp.3-4 (emphasis added)
APD officers also commonly use force against, arrest and/or subject sub class members
to segregation and institutionalization in jail, because the sub class member, or someone they
know, is trying to get mental health treatment for them. The DOJ Findings Letter states:
One area where we believe the department can immediately begin leveraging the skills and training of the [Crisis Intervention] Team is in what officers call “welfare checks”—where someone has called 911 to ask officers to check on a person who may be at risk of harming himself or who seems to be in crisis. In the use-of-force reports we reviewed, far too many encounters that began as welfare checks ended in violence, and far too often the officers’ use of force was unreasonable. The inclusion of the Team or patrol officers trained and certified by the Team on welfare checks could make a substantial impact on the department’s use of force and could lead to better overall outcomes for residents in mental health crisis.
Findings Letter, p. 34-35 (emphasis added).
[O]fficers escalate situations in which force could have been avoided had they instead used de-escalation measures. A significant amount of the force we reviewed was used against persons with mental illness and in crisis. APD’s policies, training, and supervision are insufficient to ensure that officers encountering people with mental illness will do so in a manner that respects their rights and is safe for all involved.
Id., p. 3 (emphasis added).
APD’s Standard Operating Procedure No. 3-12 is construed by police officers as
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mandating arrest when a person experiencing a mental health crisis clashes with a household member. For example, sub class member W. D.’s mother called APD and requested a Crisis Intervention Team (“CIT”) officer to help take her son to the hospital, on the advice of mental health professionals. Rather than provide the requested assistance, APD sent a non-CIT officer who instead arrested the sub class member on a charge of “domestic violence.” The same scenario happens with regularity, including on May 26, 2015, when another sub class member was arrested when her grandmother phoned APD for the same reasons. Upon information and belief, APD officers are actually trained to take people who appear to need mental health treatment to jail, because mental health care is likely to be provided to them while in jail, and because an arrest consumes less of a police officer’s time than taking the person to the UNM mental health center, which might not admit them. The City Defendants subject sub class members to disparate treatment and their failure to reasonably accommodate sub class members in the City’s policies, training and supervision violates the ADA and the Rehabilitation Act.
Due to stigma and fear, law enforcement officers working for City Defendants subject Plaintiff Intervenors to disparate treatment. In 2003, a sub class member who had been jailed 50 times for minor offenses, D.P., shot and severely injured APD Sergeant Carol Oleksak. The mayor convened a Summit to “address the issues of mental illness and homelessness.” See Exhibit 3, excerpts from PowerPoint presentation, “Coast to Coast” pp.3-4.2 Then, in 2005, two police officers were shot and killed when they went to the door of J.H., a man diagnosed with schizophrenia, in order to take him for a mental health evaluation. The shootings led many APD officers to have a very negative attitude toward people with mental disabilities. Since that time, City Defendants paid police officers to attend training provided by a private foundation reportedly financed by the family of another deceased police officer who was also shot. Officers
2 “COAST” is an acronym for APD’s “Crisis Outreach and Support Team.”
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recount that, during the events, they are cautioned about how “dangerous” people with mental disabilities can be to police officers. During a meeting in 2014 between counsel for the McClendon sub class and for the City, a lawyer for the City who frequently provides advice to APD officers stated, as a fact, a belief commonly held by City police, that the most dangerous moment in a police officer’s life is when they encounter a person with a mental disability.
The Department of Justice’s investigation recognized that sub class members are frequently the victims of APD’s excessive use of force.
a. Officers frequently utilized excessive force against people with mental disabilities who were engaging in lawful activities or committing minor infractions, and training regarding interaction with persons with mental illness is deficient, Findings Letter, Civil No. 1:14-cv-1025 RB/KK Doc. 1-1, p. 2-3 and 15;
b. There is a pattern of APD officers using force that is unnecessary and unreasonable against individuals who were unable to understand or yield to commands including when there are indications of mental illness, physical disabilities, intoxication, and other incapacity, Id., p. 15; and
c. Many encounters in which APD officers approached a person for the stated purpose of checking on their welfare ended in violence, and “far too often the officers’ use of force was unreasonable”, Id., p. 34-35.
This evidence not only shows that the City violates the Fourth Amendment, it also shows that the City Defendants violate Title II of the ADA and Section 504 of the Rehabilitation Act.
B. City Defendants Discriminate Against Plaintiff Intervenors By Segregating Them From the Community, In Violation Of The ADA And The Rehabilitation Act. The ADA requires state and local governments and their agents to "administer services,
progress, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. '35.130(d). The "most integrated setting," is "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. § 35.130(d), 28 C.F.R. pt. 35 app. A. State and local governments and their agents are forbidden from "directly or through contractual or other arrangements
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utiliz[ing] ... methods of administration" that have the "effect" of subjecting individuals with disabilities to unnecessarily segregated services. 28 C.F.R. '35.130(b)(3).
In L.C. by Zimring v. Olmstead, 138 F.3d 893 (11th Cir. Ga. 1998), the Eleventh Circuit held that, “where, as here, the State confines an individual with a disability in an institutionalized setting when a community placement is appropriate, the State has violated the core principle underlying the ADA's integration mandate.” 138 F.3d at 897. The following year, the Supreme Court upheld that decision in Olmstead v. L.C., 527 U.S. 581 (1999), stating that "[u]njustified isolation . . . is properly regarded as discrimination based on disability," observing that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life." 527 U.S. at 597, 600. Many courts, including this one, have similarly held that it violates the Rehabilitation Act and/or the ADA when a public entity requires a person with a disability to receive services in an institutional, rather than an integrated, setting. See, e.g., Jackson v. Ft. Stanton Hosp. & Training School, 757 F. Supp. 1243 (D.N.M. 1990) (training schools); Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (nursing homes); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003) (nursing home); Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) (residential adult care facilities); Benjamin v. Dep't of Pub. Welfare, 768 F. Supp. 2d 747 (M.D. Pa. 2011) (ICF/MR); Day v. District of Columbia, 894 F. Supp. 2d 1 (D.D.C. 2012)(nursing home).
Sub class members are being arrested by City police officers and segregated from the community for the very behaviors that lead those same officers to issue citations to people who do not have disabilities. That unnecessary segregation results from the City Defendants’ political
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choices, including the choice not to provide community-based treatment to Plaintiff Intervenors. C. City Policies And Practices Do Not Reasonably Accommodate Plaintiff Intervenors’ Disabilities And Have a Disparate Impact On Them. The ADA prohibits the City Defendants from treating Plaintiff Intervenors worse than
City Defendants treat people without disabilities. A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7) The City’s customs and practices have a disparate impact upon sub class members,
violating the Rehabilitation Act and the ADA. First, the City Defendants send police officers, rather than mental health professionals, to provide “crisis response” when someone calls “911” for help with a mental health crisis, even when no criminal activity is alleged. When “911” is called to report a medical crisis like a heart attack, medical professionals respond. Second, the City Defendants assign APD personnel, not civilian mental health professionals, to seek out and initiate interactions with members of the Plaintiff Intervenor sub class, merely because the person has a mental disability and previously had an encounter with law enforcement.
In light of APD’s custom and practice of arresting people in mental health crisis, and APD’s pattern of using excessive force, including deadly force, against them, it is difficult to imagine a less reasonable accommodation of the needs of Plaintiff Intervenors than for the City to use APD employees to be the City’s sole system for responding to mental health crises. A behavioral health or health care organization, the City’s Family and Community Services Department or the Albuquerque Fire Department could perform the “crisis response” or mental health “outreach” functions being performed by APD employees. But the City sends police to
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respond to mental health crises and to conduct “outreach” to connect to treatment programs people with mental disabilities who are not suspected of criminal activity.
Rather than paying for mental health professionals to respond to crises, or case managers to perform outreach, the City Defendants chose to use the City’s financial resources to establish within the APD a “Crisis Outreach and Support Team,” commonly called COAST. It is a unit of the City police department, not of a behavioral health services or social service agency. COAST’s members are mental health professionals including a psychiatrist, who dress like and work side by side with police officers wearing firearms. See Exhibit 3, p 6. The mental health professionals are under the command of an APD lieutenant, and directed by APD, not a behavioral health or social service agency. COAST’s activities are not law enforcement activities, but are essentially “case management” activities not usually performed by police. The crisis response, case management, and outreach functions performed by City police department employees are not police functions and the City’s methods of administration discriminate against Plaintiff Intervenors. The City’s choice to spend its funds to pay for police to respond to mental health crises, instead of paying for mental health services for City residents with mental disabilities, causes Plaintiff Intervenors to be subjected to unnecessary incarceration, excessive force and segregation from the community. The City’s concomitant failure to finance essential mental health services is a major cause of many mental health crises that result in inappropriate arrests and, often, excessive force by APD against members of the sub class.
A media report stated that, in 2014, then-Defendant Ramon Rustin, the former jail administrator, agreed with his staff that the jail is the largest mental health provider in the state and that, if there were more community treatment programs, the jail population would decrease. http://kunm.org/post/ county-jail-largest-mental-health-provider-nm#stream/0. Therefore, as in
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Olmstead, supra, the City should be ordered to modify its practices and develop a jail diversion plan like the one they agreed to develop in 2001 and to redeploy some of its resources away from law enforcement and incarceration and into the provision of basic mental health services, such as a mobile crisis team that is not comprised of police department personnel and a crisis response facility that can receive sub class members in crisis, in lieu of the jail. Mental health professionals, not just APD, should be dispatched when people phone 911 due to a mental health crisis. The City Defendants do not reasonably accommodate Plaintiff Intervenors’ disabilities.
D. City Defendants Do Not Reasonably Accommodate Sub Class Members In the Course Of Police Investigations And Arrests.
City police discriminate against Plaintiff Intervenors when deciding whether, and how, to arrest them. In the context of police encounters, federal courts have analyzed Title II claims under two different theories. Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999). The first theory, known as the “wrongful arrest theory” is where “police wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity.” Gohier v. Enright, p. 1220. The second theory is known as the “Reasonable Accommodation During Arrest Theory.” Id., p. 1222. Under the second theory, “while police properly investigated and arrested a person with a disability for a crime unrelated to that disability, they failed to accommodate the person’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees.” Id., p. 1220-1221.
Under both approaches, the City Defendants are violating the ADA. Their policies, procedures and practices lead City employees to: 1) charge sub class members with crimes merely for manifesting symptoms of their mental disabilities, 2) arrest them under circumstances when people without disabilities would receive a citation; 3) respond to their symptoms with excessive force in the course of arresting them; and 4) take them to jail, rather than to a hospital
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or mental health facility, when they obviously need treatment. Accordingly the Court should order the City Defendants to make modifications to APD’s policies, procedures and training methods regarding investigations and arrests involving people with mental disabilities in order to avoid unlawful discrimination against Plaintiff Intervenors on the basis of disability.
WHEREFORE, Plaintiff Intervenors respectfully request that this Court: 1. Find that City Defendants are in noncompliance with this Court’s extant orders. 2. Adopt a discovery schedule for this motion and set this motion for a three day evidentiary hearing. 3. Find that City Defendants are violating the U.S Constitution, the Rehabilitation Act and the ADA. 4. Order the City Defendants to work collaboratively with counsel for the Plaintiff Intervenors to establish adequate policies and procedures and training methods that comply with the requirements of the U.S. Constitution, the Rehabilitation Act, the ADA and the Court’s extant orders, and to then implement policies, operating procedures and training methods that: a) prohibit the practice of stopping, demanding ID from or searching people who appear to have a mental disability, and/or to be homeless, unless an officer articulates bona fide probable cause to suspect a crime is being committed; b) prohibit confiscating or destroying people’s personal belongings and identification papers; c) prohibit arrests of people merely because they have no permanent address; d) require training to not arrest people for petty offenses due to them having no home and e) require all officers to file a written report whenever they stop and either frisk or search any person, whether or not a crime is charged. 4. Order the Defendants to provide Crisis Intervention Training consistent with the model curriculum issued by Crisis Intervention International to all APD Field Services officers.
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5. Order the Defendants to work collaboratively with counsel for the Plaintiff Intervenors to develop policies and procedures and training methods to remedy the City Defendants’ violations of the ADA and the Rehabilitation Act, including:
a. Restructuring the training for APD cadets and officers regarding encounters with people who have or appear to have a mental disability or a developmental disability, with respect to reasonable accommodations of their disabilities and the constitutional standards to which law enforcement officers are held and also regarding best-practices within the law enforcement field.
b. Prohibiting warrantless stops, demands for identification, frisks, and searches of people without reasonable suspicion that the person has committed, is committing or is about to commit a crime, and also prohibiting warrantless arrests of anyone in the absence of exigent circumstances justifying an arrest solely because the person appears to need treatment for a mental disability or to be homeless; requiring the City to train its personnel on those prohibitions and to collect data regarding the characteristics of anyone subjected to a warrantless stop.
c. Prohibiting City law enforcement officers from seeking out people who have a mental disability for the purposes of encouraging them to obtain treatment or for the purpose of assessing their mental health status.
6. Order the Defendants to reasonably accommodate people with mental disabilities or developmental disabilities by arranging for mental health professionals who are not employees of the police department to provide to sub class members the mental health follow up and case management services that has been provided by APD personnel.
7. Order the Defendants to use mobile crisis teams comprised of mental health professionals, instead of police officers, to conduct “welfare checks” regarding people alleged to have a mental disability and to respond to mental health crises, including alleged threats of
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suicide or self-harm, and requiring the City to redistribute its funds to pay for a crisis response facility to reduce the unnecessary incarceration and segregation of sub class members.
8. Issue those further Orders this Court deems just and proper in order to compensate the sub class for past violations of this Court’s orders.
9. Award the Plaintiff Intervenors their reasonable attorneys fees, expenses and costs for this motion.
Respectfully submitted, /signed electronically Peter Cubra Kelly K. Waterfall 3500 Comanche NE, Suite H Albuquerque, New Mexico 87107 (505) 256-7690 LAW OFFICES OF NANCY L. SIMMONS Nancy L. Simmons 120 Girard SE Albuquerque, NM 87106 (505) 232-2575 Attorneys for Plaintiff Intervenors CERTIFICATE OF SERVICE I hereby certify that on August 17, 2015 I filed the foregoing document electronically through the CM/ECF system, which caused all counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Signed electronically Peter Cubra
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TELEPHONE: (505) 256-7690

PETER CUBRA
JOHN HALL
KELLY K. WATERFALL
attorneys 3500 Comanche Rd NE, Suite H Albuquerque, NM 87107-4546

FACSIMILE: (505) 256-7641

April 4, 2014

VIA EMAIL ONLY

Kathryn C. Levy One Civic Plaza NW, Room 4072 PO Box 2248 Albuquerque NM 87103 klevy@cabq.gov

David Tourek City Attorney One Civic Plaza NW, Room 4072 PO Box 2248 Albuquerque NM 87103 dtourek@cabq.gov

Re: McClendon, et al. v. City of Albuquerque, et al. Civ. No. 95-24 JAP-KBM

Dear Kathy and David:

I am writing, on behalf of counsel for the Plaintiff-Intervenor sub class in the McClendon federal class action, to ask you to schedule a meeting with us as soon as possible so we can discuss ongoing violations of the Constitution, the Rehabilitation Act of 1973 (“Rehabilitation Act”) and the Americans with Disability Act (“ADA”) by the City of Albuquerque and its agents. The City Defendants in McClendon are the City of Albuquerque and the Mayor. Although the City no longer manages the local jail system, there are ongoing claims in the McClendon case against the Mayor and the City with respect to Albuquerque law enforcement practices that violate the Constitution, the Rehabilitation Act and the ADA.

Our November 22, 1995 Amended Complaint in Intervention (Doc. 150) stated, inter alia, that the Mayor “is responsible for the supervision, direction, and control of the conduct of the executive and administrative departments of the City, including the Albuquerque Police Department” and that “[h]e supervises . . . the Chief of Police.” (Id. pp. 4-5). The McClendon complaint explicitly alleged that the City Defendants, including the Albuquerque Police Department, discriminate against members of the subclass (defined on November 5, 1996 as “all persons with mental and/or developmental disabilities who are now, or in the future may be, detained in the BCDC”) in violation of the Constitution, ADA and Rehabilitation Act by:
1. unnecessarily subjecting them to arrest and incarceration; 2. failing to reasonably accommodate them with respect to the decisions made by law enforcement
officials whether to issue citations to them or to arrest them and incarcerate them in the jail; and

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Kathryn C. Levy David Tourek April 4, 2014 Page 2
3. violating the federal rights of subclass members by: a. booking them into jail even when it is apparent they need hospitalization; and b. establishing a custom and practice of failing or refusing to provide sufficient training to staff regarding the use of force, including failing to adequately instruct them to not use unnecessary force.
Although the central focus of McClendon is, of course, what happens once a class member is booked inside the jail, the law enforcement practices that lead to incarceration have always been within the scope of the case. For example, on June 27, 2001, the federal court made these findings of fact: “Despite the efforts to date of the parties and the Court, 244 persons were brought into the jail by arresting officers in the month of March, 2001 and booked on petty misdemeanors, including, inter alia, shoplifting under $100, excessive sun screen material on vehicle windows, and unreasonable noise. Issuing citations for such non-violent petty offenses and using the jail's "walk through procedure" for persons charged with such offenses would likely reduce unnecessary incarceration.” (Doc. 319, pp. 2-3)
Based upon that finding, the federal court ordered the Defendants to “Provide direction to law enforcement officials under the control of the City and/or the County to issue citations where appropriate and to use the “walk through procedures,” rather than incarcerating individuals, where appropriate. (Doc. 319, p. 5) That order has never been vacated, and it indisputably applies to APD.
In the past two years we made informal, and unsuccessful, efforts to address APD’s failure to reasonably accommodate people with mental or developmental disabilities. In March of 2012, at the direction of Judge Torgerson, who was then the U.S. Magistrate Judge on the case, I wrote the attached letter regarding APD’s practices with respect to improper arrests of people with mental disabilities. We asked a number of specific questions, and asked generally, “what steps has the City taken [since the Mayor’s November 2011 Summit] to reduce the number of individuals in need of treatment for mental illness who get booked into MDC?” Kathy brought then-Deputy Chief Allen Banks to the federal court in August of 2012 for a discussion of those issues. Unfortunately, as the attached clerk’s minutes from that conference show, the Deputy Chief had limited information. He did, however, acknowledge that “Officers have discretion when to arrest an individual who does not have an address. A homeless shelter is an insufficient address.” Chief Rustin stated that “90 to 100 inmates are in jail because they do not have an address.” The Deputy Chief also stated, “APD keeps track of the number of people who go to mental health facilities versus jail. He will provide these statistics.” We have not received those statistics.
Deputy Chief Banks also told the Court, “The number of officers having crisis intervention training will be 100% by the end of August [2012]. However, the April 3, 2014 edition of the Albuquerque Journal cited the Mayor as saying that only 27% of APD field services officers are currently CIT certified, fewer than were certified in 2011. The Journal also cited the head of the local Forensic Intervention Consortium (FIC), Barri Roberts, as stating that there are only four full time CIT detectives within the APD, down from seven two years ago.

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Moreover, during the August 2012 conference, Judge Torgerson suggested that APD arrests due to Failures to Appear in court could be reduced if APD officers automatically obtain phone numbers and email addresses from people they cite. The clerk’s minutes state “Judge Torgerson asks Ms. Levy to inquire about the possibility of APD starting to ask for telephone numbers and email addresses.” We have not been told whether telephone numbers and email addresses are now being routinely recorded by APD officers.
Next, on February 7, 2013, I wrote to Kathy and the other defense counsel in McClendon, to ask the City to address APD’s ongoing discriminatory treatment of sub class members, citing an example of APD’s unnecessary arrest and failure to reasonably accommodate a sub class member with a mental disability. Our attached letter stated, “Upon the advice of mental health professionals, [a mother of a sub class member] called the Albuquerque Police Department (“APD”) and asked for a Crisis Intervention Team (“CIT”) officer to assist in de-escalating the situation and to help get [our client] to the hospital. [The mother] reported that, in response, an officer was sent out by APD who was not a CIT officer. . . . [The mother] reported that the officer refused to take [our client] to UNMH and instead arrested him. . . . on domestic violence and other charges related to this incident and he has remained at MDC . . . for more than 90 days . . . not because she was alleging a crime, but as a result of her attempting to secure mental health care and treatment for [our client] via assistance from APD.” We requested, “Please . . . advise what actions the City and County Defendants will take to address this failure to appropriately respond to the request for CIT assistance from the APD.” The City never responded.
Two recent developments make clear that the APD’s failure to reasonably accommodate the needs of people with mental disabilities with whom APD has encounters requires urgent attention. First, video of the recent tragic death of James Boyd appears to show that APD personnel were attempting to arrest Mr. Boyd, rather than issuing him a citation, even though his alleged petty offense was merely camping in an unauthorized area. The head of the FIC was cited in the newspaper as saying that none of the full time CIT detectives were involved in the five hour stand off that led to Mr. Boyd’s death, and that SWAT officers were also not summoned during those five hours. Second, ongoing law enforcement arrest practices have caused the MDC to reach an all time high with respect to the number of people with mental disabilities held in the jail. There are about twice as many people on the mental health caseload inside the MDC today compared to 2005, although the overall number of people in County custody is roughly the same. Fully half of the people in the MDC in 2014 require mental health care, while the national norm, by most accounts, is much lower. Our community is jailing far too many people with mental disabilities.
This letter is our final attempt to get the City to address, without litigation, how the City Defendants are treating people with mental disabilities; particularly how APD trains and supervises its officers with respect to encounters with them, and especially whether APD officers should resolve an encounter informally, transport the person to an evaluation facility, issue a citation to the person, or arrest them.
The law is clearly established that the ADA applies to law enforcement officials who encounter people with disabilities. The Tenth Circuit has held that an ADA claims lies when a person shows “(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by

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reason of a disability.” Robertson v. Las Animas County Sheriff’s Dept., 500 F.3d 1185, 1193(10th Cir. 2007). Additionally, ADA regulations explicitly require APD to make reasonable modifications to its policies and practices “unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.” 28 C.F.R. § 35.130(b)(7).
In the context of police encounters, federal courts have approached Title II claims under two different theories. Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999); see also Rachel E. Brodin, Remedying A Particularized Form of Discrimination: Why Disabled Plaintiffs Can and Should Bring Claims for Police Misconduct Under the Americans with Disabilities Act, 154 U. Pa. L. Rev. 157, 161-62 (2005). The first, known as the “wrongful arrest theory,” analyzes whether “police wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity.” Gohier186 F 3d at 1220. The second analysis is known as the “Reasonable Accommodation During Arrest Theory.” Id. at 1222. Under this theory, “while police properly investigated and arrested a person with a disability for a crime unrelated to that disability, they failed to accommodate the person’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees.” Id. at 1220-1221. Under either analysis, APD fails to pass muster.
In Monarque v. City of Rio Rancho, 2012 U.S. Dist. LEXIS 177622 (D.N.M. Jan. 23, 2012), the court held, as have other courts, that a police officer can be held liable for failing to reasonably accommodate the plaintiff in the process of arresting him.
The Tenth Circuit has thus far only observed that other Circuits have recognized claims for disability discrimination where a plaintiff alleges that a police officer "failed to reasonably accommodate [his] disability" in the process of arresting him. Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999) (citing Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998)). Other courts of this Circuit have read the court's survey of out-of-circuit case law in Gohier to predict that the Tenth Circuit would likewise "recognize a failure-to-reasonablyaccommodate theory during an arrest." Ulibarri v. City & County of Denver, 742 F. Supp. 2d 1192, 1213 (D. Colo. 2010); see alsoTwitchell v. Hutton, 2011 U.S. Dist. LEXIS 8474, at * 28-*30 (D. Colo., Jan. 28, 2011). For purposes of considering the instant motion for summary judgment, this Court will do the same.
2012 U.S. Dist. LEXIS 177622, fn 4, pp. 34-35.
Additionally, the Fourth Amendment requires the City to adequately train police officers with respect to individuals with mental illness. The Supreme Court has held “that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the

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rights of person with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). The deliberate indifference standard is met “when the municipality has actual or constructive notice that its action or failure is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1999). Deliberate indifference can also be ascertained absent a pattern of unconstitutional behavior where there is a patently obvious need for training in a particular area, such as failing to train employees in “specific skills needed to handle recurring situations.” Id. at 1307-08. The Tenth Circuit established, with respect to the Denver police department, that, “usual and recurring situations for police include individuals requiring medical care while in custody, arresting of fleeing felons, and encounters with armed mentally ill people.” Brown v. Gray, 227 F.3d 1278, 1288 (10th Cir. 2000)(internal citations omitted). The Brown court stated that police departments can be proven to be deliberately indifferent if they do not adequately train their officers regarding situations that are, “common, or at least not uncommon,” “foreseeable” or “predictable.” Id.
In Albuquerque, as in Brown, where the Denver police officers’ testimony supported the existence of a usual and recurring police situation, it is indisputable that, problematic, even lethal, encounters between APD and people with mental illness is a “usual and recurring situation.” Media accounts show that, since 2010, APD officers have shot 37 people, at least 23 resulting in fatalities. Of those 37 individuals, most of them reportedly had diagnosed mental disorders. Those facts make it irrefutably clear that APD officers must regularly deal with individuals with mental illness. Therefore, if we must litigate these issues, the City is certainly vulnerable to a finding of liability for failing to properly train and supervise its officers.
We would prefer to resolve these issues without filing a motion against the City Defendants. However, if you do not promptly agree to meet with us soon for the purpose of protecting the federal rights of McClendon sub class members, we will have no choice but to raise these issues with the federal court.
We hope you will promptly schedule a meeting with us regarding these very important issues.
Very truly yours,
Peter Cubra
Peter Cubra
cc: Nancy L. Simmons, co-counsel for Plaintiff Intervenors Kelly Waterfall, co-counsel for Plaintiff Intervenors

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Performance Objectives And Instructional Cues

OUTLINE AND PRESENTATION

LESSON PLAN

L01 L02 L03 L04 L05 LOS
L07

INTRODUCTION
A. Course Title: Handling the Mentally III and Other Special Considerations
Instructional Goals:
1. To present to the student an overview of mental disorders, physical disabilities, communication disorders, and unusual behaviors which a law enforcement officer may encounter and to present methods and procedures to identify, to communicate with, and to assist disabled or disordered persons with maximum safety and efficiency.
Instructional Objectives:
Upon completion of this course, the participants will be able to: 1. List the eight general characteristics of psychosis (out of touch with reality).
2. List six behaviors an officer should display when interacting with a person with mental illness to maximize safety.
3. Describe in writing the four major steps for obtaining an involuntary commitment order by a law enforcement officer.
4. Describe in writing appropriate methods for intervention with mentally retarded persons.
5. List ten types of information which aid in identification and evaluation of a potential suicide.
6. Given visual hypothetical situations, determine the following information: a. Is the subject dangerous to self or others? b. What legal authority law enforcement has. c. What action should the officer(s) take.
7. Identify local mental health resources to obtain help for individuals with mental illness or mental retardation.

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Performance Objectives And Instructional Cues

OUTLINE AND PRESENTATION

Instructional Methods:

Lecture! Conference

EquipmenU Materials Required:

Lesson Outline Pen! Pencil! Paper Powerpoint projector (optional) Overhead projector Television and VCR

Handouts:

Estimated Time:

16 hours

Bibliography and Resources:

Instructor:_ Law Enforcement Academy Staff

Revised for New Mexico by DPS Staff Approved bL

Date: Jan 2014 Oate:_

Revised:

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Performance Objectives And Instructional Cues
L04

OUTLINE AND PRESENTATION

I.

Methods for Dealing With Mentally Retarded Persons

People are often uncomfortable in the presence of abnormal behavior from a rapidly narrowing range of norms. Society looks away, hurries away, or calls law enforcement to put away. We like people who look and act as we do. The mentally retarded person often, even if he/she looks like us, does not act as we expect. For example, the person who robs the bank and signs the note that he gives the teller, and the person who rushes to a getaway car after a grocery store hold-up and discovers the car keys are lost, make amusing squad room conversation--yet a closer look at these individuals might reveal retardation rather than clumsiness.

1. Definition

In general, a mentally retarded person is one whose learning capacity is limited. The degree of retardation varies widely, from those who must be institutionalized to those who can maintain a routine job.

Many of the persons who are retarded have comparatively minor difficulties with learning and social functioning, and are in the mild or moderate range. Remember, persons with mental retardation are not mentally ill.

2. Psychological profile elements: mental retardation

a. May be unable to formulate thoughts and answer questions readily.

b. May have speech defects.

c. May appear interested in children as they can better understand what children are doing.

d. May have slow responses similar to alcohol or drug abuse.

e. Often they have poor judgment.

f. Often unable to foresee the consequences of an act.

g. Easily influenced by an authority figure.

h. Often inadequate in their personal relationships.
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Performance Objectives And Instructional Cues

OUTLINE AND PRESENTATION

i. Socially immature.
j. Resent unkind nicknames/teasing and may do something foolish because of it.
k. Some individuals with mental retardation are quite sensitive and very aware that they are different.
I. Some individuals with mental retardation, to compensate, may become aggressive in order to feel "important. "
m. Awareness of being different may be responsible for feelings of inferiority, frustration, and resentments; as a result, less tolerant to stress.
n. Fear may be the major characteristic in a confrontation with an officer.
o. Potential for violence or aggression exists since the appropriate outlet channels may never have been learned by the mentally retarded person.
3. Criminal profile
a. Criminal offenses of retarded persons usually result from an interaction of many factors.
b. Feelings of inferiority mentioned earlier may cause aggression toward others.
c. Study of persons with mental retardation in state prison revealed their single most frequent crime was homicide; greater than 50% of the crimes committed by persons with retardation were crimes of violence against a person.
d. Burglary, improper sexual behavior, theft, and vandalism are other common criminal acts committed by persons with mental retardation - usually at the instigation of others.
e. A mentally retarded person is easily influenced to be led into criminal behavior.
f. This individual is frequently the victim of criminal behavior.
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Performance Objectives And Instructional Cues

OUTLINE AND PRESENTATION

g. Mentally retarded offender
(1) Although estimates of the number of mentally retarded adult offenders vary, there are proportionately more persons who are mentally retarded in prisons and jails than in the general population. For example, a 1976 H.V. Wood study identified only 3% of Missouri's general population as retarded, while approximately 10% of the correctional institutions' population and 7% of the probationers and parolees were identified as retarded.
(2) It has been found that many delinquent acts are due to their level of social and behavioral insight. Moreover, the suspect may not always understand his or her civil rights. In the HV. Wood Study, 95% of the inmates who are mentally retarded either confessed or pleaded guilty to offenses. Low intellect often leads to internalizing false confession; individuals with mental retardation believe they committed a crime that in reality they did not.
4. Methods to deal with a mentally retarded person
a. May come in as a missing person complaint - may have gotten lost and is wandering aimlessly.
b. GO SLOWLY - rapid questions during an interview or confrontation may confuse or frighten the person.
c. Patience is needed to overcome a communication barrier and alleviate any exaggerated fears.
d. Rephrase questions into simpler language if it appears person does not comprehend.
e. Minimize unnecessary sensory input - noises, crowds, as they may confuse the person.
f. Identification and information concerning parents/guardians important to establish immediately. Many persons who are mentally retarded carry cards with information of important
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Performance Objectives And Instructional Cues
L07

OUTLINE AND PRESENTATION
contacts written on them.
g. If any doubts, ask if they go to a special school.
h. Misinterpretation of acts
(1) Individual may quickly go to their pocket to get contact card on which is written parent, doctor, or employee name and number.
(2) Fear of officer may take the form of flight.
i. If you should need assistance, contact one of the following:
(1) Association for Retarded Citizens
(2) Mental Health, Mental Retardation, and Substance Abuse Service
(3) Special Education Department of the School Systems
(4) Vocational Rehabilitation Office
j. Another group of persons with disabilities which is being served more frequently in the community is persons with autism. Autism is a severe disorder of communication and behavior. It is a lifelong developmental disability which seriously impairs the way the brain processes information sent from the senses. Characteristics include:
(1) Withdrawal from contact with others
(2) Very inadequate social relationships
(3) Language disturbances
(4) Monotonous repetitive body movement
(5) Behavior problems in terms of resistance to change and emotional responses
J. Suicide
1. Myths and facts
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 Case 6:95-cv-00024-JAP-KBM Document 1195 Filed 08/31/15 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

JIMMY (BILLY) McCLENDON, et al.,

Plaintiffs,

vs.

No. CIV 95-24 JAP/KBM

CITY OF ALBUQUERQUE, et al.,

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W. on behalf of themselves and all others similarly situated,

Plaintiff-Intervenors.

CITY OF ALBUQUERQUE’S RESPONSE TO PLAINTIFF INTERVENORS’ MOTION FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF

Comes now Defendant City of Albuquerque (“City”), by and through counsel of record, Kennedy, Moulton & Wells, PC, by Debra J. Moulton, and respectfully asks this Court to reject both the request for further remedial relief and a finding of contempt regarding Defendant City as set forth in Plaintiff-Intervenors’ Motion for An Order to Show Cause and For Further Remedial Relief Regarding City Defendants (“Motion for Order to Show Cause”). Plaintiff-Intervenors are not entitled to the relief requested.
I. APPLICABLE PROCEDURAL AND FACTUAL BACKGROUND As the Court is aware, this class action lawsuit has been pending for twenty years. The
core issues in this case are related to conditions of confinement and this Court has repeatedly limited the scope of this litigation to conditions of confinement. As the issues have resolved, Plaintiff Intervenors now seek to explore alternate avenues to prolong this litigation by raising

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issues other than those of conditions of confinement. The Court must now reject the PlaintiffIntervenors’ attempt to shoehorn misplaced and untimely claims into a case where they clearly do not belong.
Over a twenty year span, the issues litigated in McClendon have focused first on conditions at the Bernalillo County Detention Center and then at the Bernalillo County Metropolitan Detention Center. The monitoring done both by class counsel and the Court has also been limited to the jail conditions outlined in the original Settlement Agreement. Indeed, in PlaintiffIntervenors’ Prayer for Relief at the conclusion of their Amended Complaint in Intervention for Declaratory and Injunctive Relief, all requests for relief are related to conditions at the jail. (Doc. No.150, Prayer for Relief, p. 42-43). There is no mention by Plaintiff-Intervenors of pretrial intervention in their own Amended Complaint.
Approximately one year after the complaint was filed, the parties entered into separate Stipulated Settlement Agreements which were incorporated into two court orders issued at the end of 1996 (Doc. Nos. 255-256). In the Order dated November 5, 1996, which incorporates the Settlement Agreement Between Plaintiff Intervenors and Defendants, the issues agreed upon focused exclusively on the issue of conditions at the jail; there is no mention of treatment of class members prior to their incarceration. The Court then dismissed all claims on the merits, except claims regarding equal protection and limited portions of Plaintiff Intervenors’ access to the courts claim (Doc. No. 289). The Court retained jurisdiction “…for the purpose of enforcing the settlement agreement.” Thereafter, numerous motions and orders were entered regarding these and subsequent settlement agreements.
Plaintiff-Intervenors cite two documents in support of their position that the City should be held in contempt for failing to implement the terms of stipulated orders that have been entered
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into by the parties and approved as orders of the Court. The first is a Supplemental Order to Enforce Previously Ordered Population Limits at the BCDC Main Facility, which was filed on June 27, 2001. (Doc. No. 319). In that Supplemental Order, the Court held that, in order to achieve compliance for population limits, the defendants shall “Provide direction to law enforcement officials under the control of the City and/or the County to issue citations where appropriate and to use the “walk through procedures,” rather than incarcerating individuals, where appropriate.” (p.5). In reading these agreements in their entirety, the focus and clear intent was to reduce the population of what was then the downtown jail. It was felt that issuing citations and using walkthrough procedures for arrests would naturally limit the number of individuals incarcerated. There is no reference in the document limiting this provision to members of the sub-class. Indeed, there is no mention of the sub-class at all. Since 2001, there are no Stipulated Orders or Agreements that address this issue.
The second document Plaintiff-Intervenors cite in support of their position that the City should be held in contempt for failing to comply with the parties’ stipulations and the Court’s Orders is a Stipulated Agreement filed on January 31, 2002. (Doc. No. 361). This Stipulated Agreement is completely devoid of any reference to the arrest of sub-class members by City or County law enforcement prior to incarceration. All issues discussed in the Stipulated Agreement dated January 31, 2002 are related to jail conditions. (One such issue is the employment of all existing population management tools and the need to convene the population management review team when the average daily population at the main facility exceeds 110% of the courtordered population cap for any three-day period).
In June of 2003, all class and subclass members were transferred from the downtown facility to the newly built Metropolitan Detention Center (“MDC”). At that time, Defendant City
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continued operational control of MDC. In July of 2006, Defendant Bernalillo County assumed full operational control of MDC from Defendant City of Albuquerque. Defendant Bernalillo County then took responsibility for all aspects of jail operation, including creation of jail diversion programs for individuals with psychiatric or developmental disabilities and a plethora of population management tools.
Seeking a finding of contempt against the City under the circumstances described is not warranted based on either the law or facts of this case. As such, Plaintiff Intervenors’ request for compensatory and coercive remedial orders against Defendant City, as well as other remedial relief, should be denied in its entirety.
II. CONTEMPT PROCEEDINGS ARE NOT JUSTIFIABLE IN THIS CASE. The power to hold a party in contempt for violating an order may properly be exercised only if the order is clear and unambiguous. International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 75-76, 88 S. Ct. 201, 207, 19 L.Ed.2d 236 (1967). Specificity in the terms of consent decrees is a predicate to a finding of contempt. Vertex Distributing, Inc. V. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982); Harris v. City of Philadelphia, 47 F.3d 1342, 1349 (3rd Cir. 1995). If a decree does not clearly describe prohibited or required conduct, it is not enforceable by contempt sanctions. As the Supreme Court has explained: “The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.” International Longshoremen’s Ass’n at 208.
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The burden required to establish that contempt is warranted can only be established by “clear and convincing” evidence that a violation of a court’s order occurred. United States v. Roberts, 858 F.2d 698, 700 (11th Cir. 1988). The movant must demonstrate that the defendant has not “…been reasonably diligent and energetic in attempting to accomplish what was ordered.” Aspira of New York, Inc. v. Board of Education, 423 F. Supp. 647, 654 (S.D.N.Y. 1976). Further, when levying contempt sanctions, the Court must exercise the least possible power suitable to achieve the end proposed. Feliciano v. Gonzales, 124 F. Supp 2d 774 (D. Puerto Rico 2000).
Exhibit A to the Supplemental Order dated June 27, 2001 illustrates that the Defendant City and specifically Albuquerque Police Department were “diligent and energetic” in attempting to accomplish what was ordered. (Doc. No. 319)). The document is an update to Judge Martha Vazquez from former Judge Rebecca Sitterly dated June 29, 2001 and provides information regarding the efforts that were already being taken to reduce the jail population. The first item listed dealt with pre-trial services walk-through for misdemeanor warrants. The notation indicates that 1,418 people were walked through rather than booked in the last 90 days. It is further noted that:
These people were brought to jail on warrants, and therefore having already failed to appear on more than one occasion. Of these, nearly 80% are showing up at court after walk-through without further problems, which pretrial services feels is an outstanding success. Per attachments 2 A-D, showing pretrial ROR releases and walk-throughs for just the last four weekends, pretrial services has accomplished an average of nearly 100 releases per weekend. Of these, an average of more than 30 per weekend did not have to be booked, thus significantly impacting population. (Doc. No, 319-1, p. 1). On page 3 of Judge Sitterley’s report to Judge Vazquez, it is noted that “A program for Pre-Trial Services walk-through on open charges just started three weeks ago
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and preliminary indications are that it is working as well as the walk-through on warrants.” (Doc. No. 319-1, p. 3). Most significantly, it is noted that “APD has been convinced to direct its officers to cite and release offenders in the field for misdemeanor activity which is not violent and does not pose a threat to the safety of the community. This action has been seriously undertaken only as of June, but the beneficial effects were felt immediately in terms of jail population.” Thus, even before this Order was entered, Defendant City had provided direction to law enforcement officials under their control to issue citations and release where appropriate and to use the “walk-through procedures,” rather than incarcerating individuals, where appropriate. (Doc. No. 319-1, p. 8). This clearly establishes that Defendant City was compliant with the Court’s order.
On June 7, 2001, then Chief of Police Gerald T. Galvin issued Department Special Order 0141, wherein he discussed the processing of Misdemeanor Arrests. In the special order, Chief Galvin states that, “The Federal Court has directed that whenever possible individuals arrested for misdemeanor offenses be cited and released rather than booked.” (See, Department Special Order 01-41, attached hereto as Exhibit A). Clearly this establishes that Defendant City provided direction to law enforcement officials under the control of the City to issue citations where appropriate and to use the “walk through procedures,” rather than incarcerating individuals, where appropriate.
Defendant City respectfully requests that this Court deny Plaintiff-Intervenors’ Motion for an Order to show cause.
III. THERE ARE NO STIPULATIONS OR COURT ORDERS AFTER JULY OF 2006 DIRECTING CITY DEFENDANTS TO IMPLEMENT A JAIL DIVERSION PROGRAM.
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Defendant County took over full operational control of MDC in July of 2006. This included the responsibility for the creation of an effective jail diversion program. Defendant Bernalillo County has assumed the responsibility of the jail diversion program as it assumed responsibility for the operation of the jail. Further, if Plaintiff-Intervenors felt that the jail diversion program was the responsibility of the City, it would be incumbent on them to have raised the issue previously and not to wait fourteen years to do so.
IV. POPULATION MANAGEMENT TOOLS ARE MANAGED BY THE OPERATOR OF MDC.
The Stipulated Agreement dated January 31, 2001, stated that, “Defendants will continue to employ all existing population management tools and, whenever the average daily population at the main facility for any three-day period exceeds 110% of the court-ordered population cap, the population management review team will be activated.” (Doc. 361, p. 2). Defendant Bernalillo County took over full operational control of MDC in July of 2006. Thereafter, the City would not be employing population management tools. For that matter, they would not even be aware of the average daily population at the main facility, as those responsibilities had been taken over by Defendant Bernalillo County. Further, the Stipulated Order from January of 2002 states that, “The parties agree to meet and confer within three days of a request by any party to mediate any disputes under this stipulated agreement.” (Doc. No. 361, p. 2). If Plaintiff-Intervenors felt that Defendant City should have continued population management tools and were not doing so, that issue should have been raised long ago.
V. ALL REMEDIAL RELIEF REQUESTED BY PLAINTIFF-INTERVENORS IS OUTSIDE THE SCOPE OF THIS LITIGATION, IS DUPLICATIVE OF UNITED STATES OF AMERICA V. CITY OF ALBUQUERQUE AND MUST BE DENIED.
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In their Motion for Order to Show Cause, Plaintiff-Intervenors claim that the City is violating their constitutional rights, by APD officers allegedly engaging in a pattern of use of excessive force and by allegedly failing to provide sufficient training to City personnel regarding the use of force. Plaintiff-Intervenors also allege that the City is discriminating against sub class members by virtue of their disabilities, allegedly by targeting sub class members, segregating them from the community, and allegedly failing to reasonably accommodate Plaintiff-Intervenors’ disabilities and not reasonably accommodating them in the course of police investigations and arrests.
The history of this case demonstrates that Plaintiff-Intervenors’ Motion for Order to Show Cause is without merit. In 1995, the instant case was filed alleging unconstitutional conditions of confinement and overcrowding at the Bernalillo County Detention Center. In 1996, a settlement was reached that focused exclusively on the conditions at the jail. For twenty years, this Court has retained jurisdiction for the sole purpose of enforcing the settlement. PlaintiffIntervenors, in their request for remedial relief, are asking the court to now exceed the previous settlement agreements and Orders and engage in an entirely new activity--monitoring the Albuquerque Police Department. This request exceeds both the scope of the lawsuit and the jurisdiction of this Court in this matter.
In United States of America v. City of Albuquerque, CV 14-CV-01025, Judge Brack approved a Settlement Agreement between the parties that sets out a number of conditions to ensure that APD delivers police services that comply with the Constitution and the laws of the United States. (CIV 14-1025, USA v. The City of Albuquerque v. The Albuquerque Police Officers’ Ass’n, Doc. No. 134). In the agreement, thirty seven pages are devoted to the City and APD’s commitment involving the appropriate Use of Force, including detailed requirements for
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Use of Force Training (p. 36). One such requirement is training regarding “use of force decision-making, based upon constitutional principles and APD policy, including interactions with individuals who are intoxicated, or who have a mental, intellectual, or physical disability;” (p. 37). The Agreement also agrees to “…minimize the necessity for the use of force against individuals in crisis due to mental illness or a diagnosed behavioral disorder and, where appropriate, assist in facilitating access to community-based treatment, supports and services to improve outcomes for the individuals.” (p. 42-43). Also, APD has agreed to additional behavioral health and crisis intervention training to all officers; the training “will provide clear guidance as to when an officer may detain an individual solely because of her or her crisis and refer them for further services when needed.” (p. 45). The Agreement also requires the establishment of a Mental Health Response Advisory Committee who will assist in “identifying and developing solutions and interventions that are designed to lead to improved outcomes for individuals perceived to be or actually suffering from mental illness or experiencing a mental health crisis.” (p. 43). Additionally, APD will maintain a Crisis Intervention Unit (“CIU”) staffed by specially trained detectives “…whose primary responsibilities are to respond to mental health crisis calls and maintain contact with mentally ill individuals who have posed a danger to themselves or others in the past or are likely to do so in the future.” (p.36). Crisis prevention is also included in the Settlement Agreement and APD is to continue to use the Crisis Outreach and Support Team (“COAST”) and CIU to follow up with individuals with a known metal illness who have a history of law enforcement encounters and to work proactively to connect them with mental health services providers. Finally, there are numerous mechanisms available in the Agreement to ensure that these provisions are being met.
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Plaintiff-Intervenors filed an Amicus Curiae Brief in USA v. City of Albuquerque and raised concerns about APD’s treatment of mentally and developmentally disabled persons. (CIV 141025, USA v. The City of Albuquerque v. The Albuquerque Police Officers’ Ass’n, Doc. No. 134, p. 6). Judge Brack points out that the Agreement represents ambitious reform and that many details still may need to be refined. Contrary to the Plaintiff-Intervenors’ request to decline acceptance of the proposed Settlement Agreement, Judge Brack approved the Settlement Agreement, but noted that he “…hopes Amici continue to be vigilant in ensuring that this ambitious new approach improves APD’s responses to people in crisis and does not lead APD to regress.” The Settlement Agreement provides a number of avenues whereby PlaintiffIntervenors have input into the reform process.
Additionally, the ACLU of New Mexico filed a Motion to Intervene on Behalf of People Who Have Mental Disabilities, Who Experience Homelessness, And Who Are Native American, Who Have Encounters With The Albuquerque Police Department. (Doc. 106). On June 2, 2015, United States District Judge Robert C. Brack denied the ACLU’s Motion to Intervene. The Court held, in pertinent part, that as to the concerns regarding mental health and the Albuquerque Police Department, the issue is adequately addressed by the Proposed Intervenors’ participation in the “newly created Mental Health Response Advisory Committee.” (Doc. 135, p. 10). As such, the sub class clearly has a viable and more appropriate forum within which to address the issues regarding the Albuquerque Police Department raised in the Motion for Order to Show Cause. McClendon, a case addressing unconstitutional conditions of confinement and overpopulation in a county jail, is not the appropriate avenue for addressing such concerns.
Inasmuch as Judge Brack has exercised jurisdiction over matters involving APD and virtually all interactions with sub class members, it would be duplicative and burdensome for any
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additional monitoring and, as such, Defendant City requests that this Court deny Plaintiff Intervenors’ request for further remedial relief.
VI. CONCLUSION For the reasons set forth above, Defendant City respectfully requests that the Court reject both the request for further remedial relief regarding City Defendant and a finding of contempt as requested by Plaintiff-Intervenors.
Respectfully submitted, Kennedy, Moulton & Wells, P.C. /s/ Debra J. Moulton Debra J. Moulton Attorneys for Defendant City of Albuquerque 2201 San Pedro NE, Bldg 3, Suite 200 Albuquerque, NM 87110 (505) 884-7887
I HEREBY CERTIFY that on this 31st day of August, 2015, a true and correct copy of the foregoing pleading was sent via the CM/ECF system, which caused all counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: /s/ Debra J. Moulton Debra J. Moulton
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 Case 6:95-cv-00024-JAP-KBM Document 1203 Filed 09/28/15 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

JIMMY (BILLY) McCLENDON, et al.,
Plaintiffs, vs.
CITY OF ALBUQUERQUE, et al.,
Defendants,
vs.
E.M., R.L., W.A., D.J., P.S., and N.W. on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

CIV 95-24 JAP/KBM

PLAINTIFF INTERVENORS’ REPLY TO CITY OF ALBUQUERQUE’S RESPONSE TO PLAINTIFF INTERVENORS’MOTION FOR AN ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF REGARDING CITY DEFENDANTS COMES NOW the Plaintiff Intervenor sub class, by counsel, and replies to Doc. 1195,
City Of Albuquerque’s Response To Plaintiff Intervenors’ Motion For An Order To Show Cause And For Further Remedial Relief (the Response).
The Response continues the approach that the City Defendants have followed in recent years; treating federal court orders to which they stipulated as mere past promises that can be disregarded whenever the City Defendants choose. The entire Response is predicated upon this foundation: “[T]his Court has repeatedly limited the scope of this litigation to conditions of confinement.” Doc. 1195 at p. 1. However, as this Court knows all too well, and as anyone who had attended the Court’s status conferences and hearings over the past five years would also know full well, that statement is untrue. This class action has been focused upon keeping people

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out of jail who don’t belong there since its inception. Accordingly, the foundation of the City’s Response is patently false.
The City Defendants’ blasé attitude toward their responsibilities to this federal class action lawsuit and to this Court is further demonstrated by the fact that only one of the two City Defendants even responded to Plaintiff Intervenors’ Motion For An Order To Show Cause And For Further Remedial Relief (the Motion). The Response is submitted solely on behalf of “the City of Albuquerque.” The original complaint in this action (Doc. 1 at p. 7) and Plaintiff Intervenor’s Complaint in Intervention (Doc. 150 at p. 4) both name as the second City Defendant “the Mayor of the City of Albuquerque.” Counsel who filed the Response entered an appearance only on behalf of “defendant City of Albuquerque.” Doc. 1194 at p. 1. Accordingly, the second City Defendant, the Mayor of the City of Albuquerque, has not even responded to the Motion, even though it explicitly alleges direct culpability by him. (“The root cause of many inappropriate detentions and arrests of sub class members, and the attendant unconstitutional uses of force against them, is the City Defendants’ de facto policy of “sweeping the streets” of people who appear to have a mental disability . . . Upon information and belief, the Mayor of Albuquerque has told business owners that he will reduce the numbers of ‘homeless mentally ill’ people in the downtown area.”) Doc. 1191 at p. 13
The Response does not actually deny any of the three asserted bases for this Court granting further remedial relief (“The City Defendants Are Violating Orders To Which They Stipulated.” Doc. 1191, at p. 4; “The City Defendants Are Also Violating The Constitutional Rights Of Plaintiff Intervenors.” Id. at p.8; and “The City Defendants Continue to Discriminate Against Sub Class Members By Reason Of Their Disabilities, Violating The Rehabilitation Act And The ADA.” Id. at p. 12). Rather, as to the allegation that the City Defendants are currently
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violating the Court’s stipulated orders, the City cavalierly suggests that those stipulated orders shouldn’t be enforced against them because the orders were entered when the City administered the jail, even though the provisions of the orders at issue have nothing to do with jail administration and explicitly address the City’s law enforcement practices. As to the alleged constitutional violations, the City merely argues that only Judge Brack can address them in another case, United States v. City of Albuquerque, Civil No. 1:14-cv-1025 RB/KK, notwithstanding that Judge Brack ruled on June 20, 2015 that Plaintiff Intervenors’ claims regarding the City Defendants targeting people with mental or developmental disabilities for discriminatory stops, searches, arrests and incarceration are not before his Court. As to Plaintiff Intervenors’ alleged violations of the ADA and Rehabilitation Act, the Response correctly describes them (“Plaintiff-Intervenors also allege that the City is discriminating against sub class members by virtue of their disabilities, allegedly by targeting sub class members, segregating them from the community, and allegedly failing to reasonably accommodate Plaintiff-Intervenors’ disabilities and not reasonably accommodating them in the course of police investigations and arrests” Doc. 1195 at p.8); then does nothing to even address them, much less deny them.
For those reasons, and for the reasons set forth below and those reasons set forth in Doc. 1191 (the Motion), the Court should now enter its order for both City Defendants to show cause why they should not be held in contempt, then adopt a discovery schedule for the Motion and set a three day evidentiary hearing to determine what further remedial relief should be granted.
A. The Response Does Not Deny Current Violations of the Court’s Orders The Response does not deny the allegation in the Motion that “the Defendants have not
created a plan to implement an effective jail diversion program for persons with psychiatric or developmental disabilities.” Doc. 1191 at p. 7. Nor does the Response deny Plaintiff Intervenors’ assertion that “the City Defendants have not continued to employ the ‘population management
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tools’ in effect in 2002.” Id. at p 8. Instead, the City argues, without citation to any authority, that they cannot be held accountable for their current and ongoing noncompliance with those orders merely because the City stopped administering the jail in 2006. Response at pp. 6-7. Accordingly, it is undisputed that the City is not currently complying with those two orders.
The City’s only claim of ever making any efforts to comply with the stipulated court orders at issue is that, on June 7, 2001, (before Doc. 319, the June 27, 2001 Supplemental Order was issued) the former Chief of Police issued Special Order 01-41 directing that people charged with misdemeanors “be cited and released rather than booked.” Doc. 1195-1. That assertion is unavailing for two reasons. First, on April 19, 2014 Plaintiff Intervenors’ counsel’s requested, under the state Inspection of Public Records Act, “A copy of every memo, directive, policy or procedure or other writing that explains to APD personnel how they should comply with the federal court's orders in the McClendon lawsuit.” On May 6, 2014, the APD Records Custodian responded, “We do not have custody or control of any documents responsive to this portion your request.” See email chain, attached as Exhibit 1. Between May 6, 2014 and the time the City responded to the instant motion on August 31, 2015, the City and its counsel repeatedly stated in response to that request, that the City could not find any document setting forth how APD law enforcement personnel should comply with this Court’s orders. Since the City was reportedly unaware of the existence of the 2001 Special Order, the City, it current Police Chief and its police officers could not, and do not, claim to have been following Special Order 01-41.
Second, the Response did not in any way attempt to refute the alleged violations of the stipulated order set forth in detail at pp. 13-16 of the Motion, describing the inappropriate arrests and unnecessary incarceration of sub class members during recent years. 1 Even assuming,
1 On September 10, 2015, the New Mexico Supreme Court issued an opinion reversing the Court of Appeals decision in State v. Paananen, 2014-NMCA-041, ¶ 27, 321 P.3d 945. State v Paananen, No. 34,526, 2015 WL
4

Case 6:95-cv-00024-JAP-KBM Document 1203 Filed 09/28/15 Page 5 of 11
arguendo, that Albuquerque law enforcement personnel were told of the 2001 directive, they certainly have not been following it.
B. The Response Contains Several Misstatements Of Material Fact In addition to the foundation of the Response being incorrect, the Response also contains
other incorrect assertions that this case only involves the conditions inside the local jail. 1. “The monitoring done both by class counsel and the Court has also been limited to the jail conditions outlined in the original Settlement Agreement” Id. at p. 2 2. “in Plaintiff-Intervenors’ Prayer for Relief at the conclusion of their Amended Complaint in Intervention for Declaratory and Injunctive Relief, all requests for relief are related to conditions at the jail.” Id. 3. “In the Order dated November 5, 1996 . . . the issues agreed upon focused exclusively on the issue of conditions at the jail” Id. 4. “All remedial relief requested by Plaintiff Intervenors is outside the scope of this litigation” Id. at p. 7
None of those statements are true. For several years, retired United States Magistrate Judge Alan C. Torgerson, now Special
Master Torgerson, has spent countless hours working with the parties and with other participants in the criminal justice system to reduce unnecessary incarceration, and many of those hours have been spent working with City officials to reduce the incarceration of sub class members. During the past two years, the work of the Bernalillo County Criminal Justice Review Commission (the CJRC) has been the subject of several status conferences with the Court. For example, on June 13, 2014, the City’s law enforcement practices and its poor participation in the CJRC were subjects of the Court’s status conference. (“Mr. Cubra complains that law enforcement representatives are not actively participating in the CJRC meetings and in the working groups. . . Ms Levy responds. . . . Mr. Cubra outlines continued problems with law enforcement’s treatment
5269909 (New Mexico Supreme Court, September 10, 2015). That recent decision expands the circumstances under which it is permissible under the New Mexico Constitution for a law enforcement officer to arrest a person without a warrant.
5

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of mentally ill suspects and arrestees. . . . Ms. Levy responds.” Doc. 1153 at pp. 3-4.) In March of 2012, at the direction of then U.S. Magistrate Judge Torgerson, counsel for Plaintiff Intervenors wrote a letter to the City’s counsel regarding APD’s practices with respect to improper arrests of people with mental disabilities, asking a number of questions. At Judge Torgerson’s August 10, 2012 status conference, then-Deputy Albuquerque Police Chief Allen Banks responded to the letter before the court, and stated that “Officers have discretion when to arrest an individual who does not have an address. A homeless shelter is an insufficient address.” The Deputy Chief also stated, “APD keeps track of the number of people who go to mental health facilities versus jail. He will provide these statistics.” Doc. 956 at pp. 4-5.2 Clearly, the “monitoring” by the Court and by class counsel has never been limited to “jail conditions.”
No authority was cited for the City’s suggestion that the words in the prayer clause of a complaint would dictate the contours of a lawsuit (“at the conclusion of their Amended Complaint in Intervention for Declaratory and Injunctive Relief, all requests for relief are related to conditions at the jail”) Response, at p.2. Tenth Circuit authority suggests otherwise. See Johnson v. City of Tulsa, 489 F.3d 1089, 1110 (10th Cir. Okla. 2007) (“Ordinarily, all matters relating to the class action must be handled by class counsel. See Fed. R. Civ. P. 23(g)”). However, the possible significance of a prayer clause that did not ask for injunctive relief beyond “jail conditions” is irrelevant. Contrary to the City’s assertion, the requests for relief in the complaint in intervention did explicitly seek relief beyond improving conditions within the jail:
Plaintiffs pray that this Court: . . .Issue injunctive relief directing Defendants to immediately propose and promptly implement a plan to: . . . Divert all people needing and wanting in-patient treatment to an appropriate treatment facility . . . ensure that whenever possible, class members receive services in the setting that most integrates into their communities
2 Those statistics were never provided and, during 2014, the City acknowledged that no such statistics exist.
6

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Doc. 150 at p. 42
Also contrary to the City’s misstatements, both of the November 5, 1996 stipulated
orders that were signed by the City to settle the both the Plaintiffs’ original complaint and the
Plaintiff Intervenors’ complaint in intervention go beyond jail conditions and also explicitly
address jail diversion. The Order Regarding the Prison Litigation Reform Act provides, in part:
During 1996, officials from the City of Albuquerque will meet with officials from Bernalillo County to develop solutions to the continuing resident population pressures at BCDC, ... such discussions will include at least possible ... development of additional drug treatment and/or mental health treatment facilities. Doc. 255 at p. 4.
The City of Albuquerque will seek additional sources of funding for pre-trial services at BCDC. Id.
By the end of 1996 BCDC will contract with a licensed psychologist to provide written competency evaluations to BCDC residents charged with misdemeanors who are ordered by the Courts to undergo such evaluations. Id.
The parties, through their counsel, shall meet at least once each month to discuss: a. the defendants' efforts to reduce overcrowding ... Id. at p.5.
The November 5, 1996 Order settling most of the claims unique to Plaintiff
Intervenors’ claims, Doc. 256, provides, inter alia:
Defendants shall develop and implement, or cause to be developed and implemented, adequate formal procedures for seeking psychiatric hospitalization or other appropriate residential mental health care for residents who need and would benefit from such care, and who are eligible for such placement . . . Defendants shall instruct UNMHSC to establish formal policies and procedures requiring the initiation of civil commitment proceedings whenever an individual diagnosed as having a mental or developmental disorder requests placement in a residential treatment or evaluation facility, assuming the court imposed conditions of confinement are consistent with such placement. Doc. 256, pp. 12-13.
Residents shall be released for day treatment or habilitation whenever appropriate. Id. p. 17
Clearly, this case has never been limited to jail conditions.
7

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C. Plaintiff Intervenors’ Allegations Regarding the City Defendants Targeting Them To Be Stopped, Searched, Subjected to Excess Force and Jailed Are Not Being Addressed, And Cannot Be Addressed, in United States v. City of Albuquerque The Response does not deny the allegations about biased policing that harms Plaintiff
Intervenors, including that the City Defendants “do not provide sufficient training to city personnel” to “not inappropriately arrest people with mental or developmental disabilities.” Id. at p. 10. Instead, the Response argues that this Court should not address those violations of the Constitution and federal law because “Judge Brack has exercised jurisdiction over matters involving APD and virtually all interactions with sub class members,” Response at p. 10. That assertion is wrong in three ways: (1) The Department of Justice (DOJ) case over which Judge Brack presides solely addresses uses of force, not wrongful arrest and incarceration. (2) Judge Brack has already ruled that the discrimination claims raised in the Motion, that City personnel target people with mental or developmental disabilities, were not raised in the DOJ complaint and, accordingly, are not before Judge Brack (“The Court cannot ask the parties to include a nonbiased policing provision, because the [DOJ] Complaint does not allege that there were biased policing practices.” Case 1:14-cv-01025-RB-KK, Doc. 134 at p. 7. (3) The DOJ case is brought under the Fourth Amendment and does not involve the ADA and the Rehabilitation Act. This Court is the only forum in which sub class members can obtain injunctive relief to remedy violations of their rights under those statutes.
While coordination between the two related cases is necessary, Judge Brack cannot afford the sub class any remedies for the violations of their federal rights alleged in the Motion.
D. Plaintiff Intervenors Have Previously Attempted, Unsuccessfully, To Resolve These Issues, And Have Filed Motions Regarding The Lack Of Jail Diversion By The City And Regarding The City’s Violations Of The ADA And Rehabilitation Act
8

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The Response suggests that one reason for denying the Motion could be that Plaintiff Intervenors’ counsel waited too long to raise the issues with the Court. That argument is erroneous as a factual matter and unfounded as a matter of law.
In terms of factual defects with the argument, Section B, supra, sets forth some of the efforts made by counsel for the Plaintiff Intervenors since 2012 to halt the City Defendants’ violations of this Court’s stipulated orders and of the federal rights of the sub class. In addition, those efforts were preceded by two earlier enforcement actions in this Court that directly addressed the City Defendants’ violations of the Court’s orders with respect to Albuquerque’s law enforcement personnel and of the ADA and Rehabilitation Act.
On August 24, 2007, just one year after the July 2006 date to which the Response attaches significance, when the City stopped administering the jail, the Plaintiff Intervenors brought a motion for an order to show cause directed at all Defendants. The motion alleged,
inter alia, Defendants are currently in violation of the ADA because the law enforcement officials employed by the Defendants continue a pattern and practice of discrimination against people with mental or developmental disabilities. Members of the sub class are not reasonably accommodated by the Defendants and their agents with respect to the decisions made by law enforcement officials whether to issue citations to them or to incarcerate them in the jail while they await adjudication of alleged of misdemeanor offenses.
Doc. 562 at p. 23.3 On August 22, 2011, the Plaintiffs and Plaintiff Intervenors jointly initiated a motion for
further remedial relief. In it, Plaintiffs and Plaintiff Intervenors alleged, inter alia: On June 27, 2001 the court ordered Defendants’ law enforcement officials to issue citations where appropriate, rather than incarcerating people, and to initiate other justice system reforms. (Doc. 319 at pp. 5-7). . . On January 31, 2002 the Court adopted a Stipulated Agreement ordering the Defendants to undertake several population management and reduction measures, “to employ all existing population
3 On March 28, 2008, the motion was denied without prejudice for administrative reasons. Doc. 652.
9

Case 6:95-cv-00024-JAP-KBM Document 1203 Filed 09/28/15 Page 10 of 11
management tools,” to provide sufficient assistance to the pro tem judge and to provide a full time benefits manager. (Doc. 361 at p. 2) Doc. 871 at p. 39. Additionally, counsel for Plaintiff Intervenors alleged: The ADA applies to the conduct of law enforcement officers with respect to arrests, both in the context of wrongful arrests of persons with disabilities and failing to make reasonable accommodations of person with disabilities who are arrested. . . . Members of the subclass are not reasonably accommodated by the defendants and their agents with respect to the decisions made by law enforcement officials whether to issue citations to them or to incarcerate them in the jail while they await adjudication of alleged offenses. People without disabilities routinely receive citations and are not arrested by City and County police and sheriff officials when charged with the same misdemeanor offenses that routinely result in the arrest of people with mental disabilities. Doc. 871 at pp. 35-36.4 The City’s complaint that Plaintiff Intervenors waited “fourteen years” to address the City’s violations of the Court’s orders and the ADA and the Rehabilitation Act is entirely unfounded. Furthermore, the City has offered no authority for the proposition that court orders that have been in effect for a long time cannot be enforced if enforcement actions had not previously been brought. Moreover, nothing in the Response attempts to refute the Plaintiff Intervenors’ position that this Court is the only forum in which sub class members can obtain injunctive relief to remedy violations of their rights under the ADA and the Rehabilitation Act, with respect to the claims that were brought against the City within this class action lawsuit. Accordingly, whether the City Defendants’ current statutory violations of federal antidiscrimination statutes has been ongoing for fourteen years, or began last week is irrelevant to the holdings of the Tenth Circuit in Johnson v. City of Tulsa, 489 F.3d 1089, 1110 (10th Cir.
4 On May 3, 2012, the motion was denied without prejudice for administrative purposes. Doc. 936.
10

Case 6:95-cv-00024-JAP-KBM Document 1203 Filed 09/28/15 Page 11 of 11
Okla. 2007) and McNeil v. Guthrie, 945 F.2d 1163, 1165-1166 (10th Cir. Okla. 1991). This Court is the forum in which those allegations must be litigated.
CONCLUSION The City’s Response makes it clear that the only way to remedy the City Defendants’ ongoing violations of Plaintiff Intervenors’ rights under the Court’s orders, the Constitution and the federal statutes prohibiting disability discrimination is for this Court to enter its order to show cause and bring the matters alleged in the Motion before the federal court.
Respectfully submitted, /signed electronically Peter Cubra Kelly K. Waterfall 3500 Comanche NE, Suite H Albuquerque, New Mexico 87107 (505) 256-7690 LAW OFFICES OF NANCY L. SIMMONS Nancy L. Simmons 120 Girard SE Albuquerque, NM 87106 (505) 232-2575 Attorneys for Plaintiff Intervenors CERTIFICATE OF SERVICE I hereby certify that on September 28, 2015 I filed the foregoing document electronically through the CM/ECF system, which caused all counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Signed electronically Peter Cubra
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 Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 1 of 42

' , rl' ,,, , ,, <L/ 1m~ ·~
• •a..~~-....u
f..INif~IJ: ,\ r n··,:f;;·:;~r AI-UUQWt::hthK, NriW M'/f,~O

IN THE UNITED STATES DISTRICT COURT

S r> tr' 2 3 2014

FOR THE DISTRICT OF NEW MEXICO

MATTHEW J. DYKMAN

JIMMY (BILLY) MCCLENDON, et a!.,

CLERK

Plaintiffs,

vs. CITY OF ALBUQUERQUE, eta!.,
Defendants.

No. CV 95-24 JAP/KBM

VS.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

ORDER INSTRUCTING COURT-APPOINTED JAIL OPERATIONS EXPERT MANUEL ROMERO TO EVALUATE CONDITIONS OF CONFINEMENT
AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER I. This action was commenced on January I0, 1995 by Plaintiffs on behalfofall persons
who are or who will be confined at the Bernalillo County Detention Center. 2. Plaintiffs alleged in their complaint that conditions at the Bernalillo County Detention
Center violated the United States Constitution, the statutory laws of the United States, the New Mexico Constitution, and the statutory laws of the State of New Mexico. Plaintiffs sought Declaratory and Injunctive Relief on behalf of the class.
3. After the suit was filed, a group of individuals with mental and/or developmental disabilities who are or will be confined at the Bernalillo County Detention Center intervened

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 2 of 42
("Plaintiff-Intervenors"). [Doc. No. 113]. The Court granted Plaintiff-Intervenors permission to intervene on October 26, 1995. [Doc. No. 137].
4. The Bernalillo County Detention Center was located in downtown Albuquerque, and is no longer used for the incarceration of Plaintiffs or Plaintiff-Intervenors. The inmates in the Plaintiff and Plaintiff-Intervenors classes are now housed at the Metropolitan Detention Center ("MDC"), located at 100 Deputy Dean Miera Dr., SW, Albuquerque, NM 87151.
5. On July 11, 2003, the Court entered an order clarifYing the class and sub-class to include inmates incarcerated at MDC. [Doc. No. 416}.
6. On December 7, 2011, the Court appointed Manuel Romero as the Court's expert to
continue his evaluation of the conditions of confinement at MDC. [Doc. No. 909, p. 1J.
7. Pursuant to the December 7, 2011 Order, the Court directed Mr. Romero "to evaluate whether the MDC is in compliance v.ith the standards described in the Plaintiffs' SSA regarding the subjects listed as items 1-14 on page 3 of the Plaintiffs' SSA." [Doc. No. 909,p. 2}.
8. To ensure compliance with this Court's orders, Mr. Romero will evaluate Defendants' compliance with the Court's extant orders that are currently relevant to MDC. Those provisions include the following:
A. Population Management 1) Whether MDC has created an Emergency Population Management Plan in cooperation with Criminal Justice Review Commission (CJRC) to ensure that the population at MDC remains at or under 1,950. [Doc No. 1161, pp. 6-7, para. 2(q)}. 2

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 3 of 42
2) Whether the Defendants provide what is necessary to obtain the appointment of one or more pro tern state judges who will have the authority and responsibility to: a) utilize a "judicial classification system" to evaluate the classification status of inmates; b) process probation and parole violators as expeditiously as possible; c) handle failure to appear warrants more expeditiously; d) issue orders to the Department of Corrections (DOC) to transport inmates to the local DOC facility for transport to court; and e) consider and implement other measures consistent with the judgments and sentences to reduce the inmate population. [Doc. No. 315, p. 4}.
3) Whether the Defendants provide direction to law enforcement officials to issue citations, where appropriate, and to use the "walk through procedures," rather than incarcerating individuals, where appropriate. [Doc. No. 319. p. 5, para. 1}.
4) Whether the Defendants have developed an adequate plan to include persons who do not have both a permanent address and a telephone number in the Community Custody Program. [Doc. No. 319, p. 6, para. 3}.
5) Whether the Defendants operate a medical detox facility and alcohol treatment facility within the jail system. [Doc. 255 at 4, ,-r 6.)
6) Whether the Defendants have participated in developing an adequate 3

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 4 of 42
plan to expand the program for early resolution of criminal cases. [Doc. No. 319, p. 7, para. 5]. 7) Whether the Defendants are continuing to use all appropriate population management tools in effect in 2002. [Doc. No. 361, p. 2, para. 8]. 8) Whether the County has hired a full-time employee or contractor to monitor measures for the reduction of the inmate population at the MDC. [Doc. No. 1004, p. 3, para. I (i)]. B. Use ofForce by Security Staff 1) Whether MDC has developed and effectively implements comprehensive and contemporary policies regarding the appropriate use of force, including the following areas: a. restraint devices; [Doc. No. ll61, p. 5, para. 2(/)&(g)}; b. restraint and control (defensive tactics); [Doc. No. 1161, p. 5,
para. 2(/)&(g)}; c. inflammatory and chemical agents; [Doc. No. 1161, p. 5,
para. 2(/)&(g)}; (1) Whether MDC implements a policy regarding the use
of inflammatory agents to assist \\ith the forced medication of seriously mentally and medically ill inmates which meets generally accepted correctional
4

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 5 of 42
standards. d. Taser CEW; [Doc. No. 1161, p. 5, para. 2(f)&(g)];
(1) Whether MDC implements a policy regarding the use of a Taser CEW to assist with the forced medication of seriously mentally aod medically ill inmates which meet generally accepted correctional staodards.
e. less-lethal munitions aod distraction devices; [Doc. No. 1161, p. 5, para. 2(/)&(g)];
f. restraint chair; [Doc. No. 1161, p. 5, para. 2(/)&(g)}: (I) Whether MDC only uses the restraint chair in a fashion consistent with the maoufacturer' s recommendations; [Doc. No. 256, pp. 14-15, para. III(N)(3)]: (2) Whether MDC prohibits the use of metal restraints, including handcuffs unless the inmate has broken free ofthe chair's soft restraints; [Doc. No. 256, pp. 14-15, para. Ill(N)(3)]; (3) Whether MDC prohibits the placement of inmates in the restraint chair, haod-cuffed or otherwise, restrained behind the back ofthe chair; [Doc. No. 256, pp. 14-15,para.lll(N)(3)]; 5

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 6 of 42
(4) Whether MDC requires the prior authorization by a shift supervisor before an inmate is placed in a restraint chair; [Doc. No. 256, pp. 14-15, para. JIJ(N)(3)];
(5) Whether MDC reqmres the periodic check of a restrained inmate's wrists, preferably every 20 minutes; [Doc. No. 256, pp. 14-15, para. JIJ(N)(3)];
(6) Whether MDC requires written reports regarding use of a restraint chair; [Doc. No. 256, pp. 14-15, para. JJJ(N)(3JI;
(7) Whether MDC requires the preparation of a written report every time that security staff places an inmate in a restraint chair; [Doc. No. 256, pp. 14-15, para. JIJ(N)(3)]; and
(8) Whether the shift supervisor or his designee must investigate modification to the restraint chair and alternative forms of restraint; [Doc. No. 256, pp. 1415, para. JIJ(N)(3)].
g. firearms (deadly force); [Doc. No.1161,p. 5,para. 2(j)&(g)]. 2) Whether MDC's use of force policies address the following
impermissible uses of force and whether the MDC effectively 6

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implements such policies: a. use of force as a first response to verbal insults or inmate
verbal taunts; b. use of force as a first response to inmates' failure to follow
instructions where there is no risk ofharm to the safety ofthe institution, inmates, or staff, unless MDC security staff has attempted a hierarchy of nonphysical alternatives that are documented; c. use of force as punishment, discipline, or retaliation; d. use of force against an inmate after the inmate has ceased to offer resistance and is under control; e. use of choke holds on an inmate; f. use of unnecessary or excessive force; g. use of canines (dogs) for use of force purposes against any inmate; and h. use of force before using confrontation avoidance techniques and other alternatives to the use of force, when the circumstances permit the use of such techniques and alternatives. [Doc. No. 1161, p. 5, para. 2(/)&(g)]; 3) Whether MDC policies require the presence of a unit supervisor during all planned uses of force and whether MDC effectively
7

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implements these policies. 4) Whether MDC has developed and effectively implements a policy to
ensure that staff adequately and promptly reports all uses of force, including the use of the restraint chair. [Doc. No. 1161, p. 5, para. 2(h)] & [Doc. No. 256. pp. 13-15, para. IJ1(N)(l)&(3)]. 5) Whether MDC had adopted and effectively implements a policy to ensure that use of force reports will: a. be written in specific terms in order to capture the details of
the incident; b. state whether staff attempted confrontation avoidance
techniques or other alternatives to the use of force before using force and if not, include an explanation of the reasons why staff did not attempt to use such techniques or alternatives; c. contain an accurate, detailed account of the events leading to the use of force incident; d. include a description of the weapon(s) or instrurnent(s) of restraint, if any, and the manner in which it was used; e. be accompanied with the inmate disciplinary report that prompted the use of force incident, if applicable; f. state the nature and extent of injuries sustained both by the
8

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inmate and staff member;

g. contain the date and time medical attention was actually

provided;

h. describe, in factual terms, the type and amount of force used

and precise actions taken in a particular incident and avoid

use of"boiler plate" descriptions for describing force, such as,

"inmate taken to the ground with the force that was

necessary"; and

1.

state whether the planned or controlled use offorce was video

recorded and, if it was not, include an explanation of why it

was not;

6) Whether MDC staff consistently video record planned or controlled

uses offorce in accordance with MDC policies.. [Doc. No. 1161, p. 5,

para. 2(h)}.

7) Whether MDC has developed and effectively implements a system to

track all incidents of use of force that, at a minimum, includes the

following information:

a. a tracking number;

b. the inmate(s) name;

c. housing assignment;

d. date; 9

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e. type of incident;

f. injuries (if applicable);

g. if medical care is provided;

h. primary and secondary staff involved;

1.

reviewing supervisor;

J.

external reviews and results (if applicable);

k. remedy taken (if appropriate); and

I. administrative sign-off.

8) Whether MDC has adopted and effectively implements policies to

ensure that, as part of a use of force incident package, security staff

take photographs of any and all reported injuries sustained by

inmates.

a. Whether MDC security staff promptly takes photographs

following a use of force incident.

b. Whether the photographs become evidence and are made part

of the use of force package and, if applicable, used for

investigatory purposes.

9) Whether MDC has adopted and effectively implements policies to

ensure that management reviews use of force reports and inmate

grievances alleging excessive or inappropriate uses of force.

I 0) Whether MDC has adopted and effectively implements policies to 10

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 11 of 42
ensure prompt administrative reviews of use of force reports. a. Whether such reviews include a case-by-case review of
individual incidents ofuse offorce as well as a more systemic review in order to identify patterns of incidents. b. Whether MDC incorporates such information into quality management practices and takes necessary corrective action. II) Whether MDC has established and effectively implements a system for referring for investigation certain use offorce incidents, including but not limited to those involving: a. injuries that are extensive or serious; b. injuries involving fractures or head trauma; c. injuries of a suspicious nature (including black eyes, broken teeth, injuries to the genitals, etc.); d. injuries that require treatment at outside hospitals; and e. reports ofevents by staffand inmates which are inconsistent. 12) Whether MDC has adopted and effectively implements policies to ensure that inmates may report allegations of the use of excessive force verbally to any MDC staff member, who will reduce such reports to writing. 13) Where there is evidence of staff misconduct related to inappropriate or unnecessary force against inmates, whether MDC initiates
11

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appropriate personnel actions and systemic remedies, as appropriate. a. Whether MDC appropriately disciplines any correctional
officer found to have: (I) engaged in the use of unnecessary or excessive force; (2) failed to report or report accurately the use of force; (3) retaliated against an inmate or other staff member for
reporting the use of excessive force; or (4) interfered or failed to cooperate with an internal
investigation regarding use of force. 14) Whether MDC developed and effectively implements accountability
policies for the effective and accurate maintenance, inventory and assignment of inflammatory agents, chemical agents, less-lethal munitions, distraction devices, firearms, and other security equipment. 15) Use of Force Training; [Doc. No. 1161, p. 5, para. 2(j)J: a. Whether MDC developed and employs an effective and
comprehensive training program in the appropriate use of force. b. \V'hether MDC ensures that correctional officers recetve adequate training in MDC's use of force policies. c. Whether MDC ensures that correctional officers receive
12

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adequate training in the following areas: (1) use of force; (2) confrontation avoidance techniques; (3) the use of restraints; (4) restraint and control techniques (defensive tactics); (5) inflammatory and chemical agents; (6) electronic control devices (Tasers); (7) less-lethal munitions (if applicable); (8) distraction devices (if applicable); and (9) firearms (if applicable). (1 0) documenting and reporting the use of force; and (11) the MDC's policy regarding discipline for violations
of policies related to the use of force. d. Whether MDC ensures that correctional officers receive pre-
service and in-service training on reporting use of force and completing use of force reports. 16) Whether MDC ensures that incident reports, use offorce reports, and inmate grievances are screened for allegations of staff misconduct and, if the incident or allegation meets established criteria, that it is referred for investigation. 17) Whether MDC established and effectively implements an "Early
13

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Warning System (EWS)" that will document and track correctional officers who regularly employ force on inmates and any complaints related to the excessive use of force. a. Whether MDC's EWS protocol includes the following
components: data storage, data retrieval, reporting, data analysis, pattern identification, supervisory assessment, supervisory intervention, documentation, and audit. b. Whether MDC effectively uses the EWS as a tool for correcting inappropriate staff behavior before it escalates to more serious misconduct. c. Whether the EWS alerts MDC administration to any potential need for retraining, problematic policies, or supervision lapses. d. Whether all appropriate MDC leadership, supervisors, and investigative staff have access to EWS information and are able to monitor the occurrences. e. Whether MDC's EWS allows MDC administration sufficient information to improve quality management practices, identifY patterns and trends, and take appropriate corrective action both on an individual and systemic level. C. Inmate Discipline [Doc. No. 1161, p. 4, para. 2(c-e)}
14

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 15 of 42
1) Whether MDC maintains and effectively implements policies and procedures for a formal disciplinary process, including: a. timely Issuance of written disciplinary citations, administrative review and disciplinary reports for alleged rule violations, in accordance with generally accepted correctional standards; and b. a prohibition of the use of behavior modification programs, discipline, and punishment, unless permitted by MDC's written inmate discipline policies. [Doc. No. 1161, p. 4, para. 2(d)].
2) Whether MDC ensures that disciplinary charges against inmates '>'<ith a mental or developmental disability are reviewed by a Qualified Mental Health Professional: a. Whether the Qualified Mental Health Professional determines the extent to which the charge was related to a mental or developmental disability; and b. Whether the Qualified Mental Health Professional communicates his or her finding to MDC to ensure that inmates who commit infractions resulting from a mental or developmental disability are not punished for behavior caused by a mental or developmental disability. [Doc. No. 256, 15

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 16 of 42
JV(A)(l)}. 3) Whether MDC has adopted and effectively implements written
policies for the use of disciplinary measures with regard to inmates with a mental or developmental disability (including inmates exhibiting recognizable signs or symptoms of mental or developmental disability) including the following: a. Whether MDC staff consults with Qualified Mental Health
Staff to determine whether initiating disciplinary procedures is appropriate for inmates with a mental or developmental disability; and b. If a Qualified Mental Health Professional determines the inmates' actions that are the subject of the disciplinary proceedings are symptomatic of a mental or developmental disability, whether MDC mitigates the imposition of discipline. 4) Whether MDC ensures that inmate disciplinary hearings are conducted in a reasonably private and secure setting. 5) Whether MDC ensures that all inmates placed in lock down status are timely provided with the protections set forth in MDC's policies and procedures and generally accepted correctional standards. 6) Whether MDC ensures that the disciplinary officer's/board's written
16

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 17 of 42
record accurately reflects the evidence and discussion from the disciplinary hearing, including any recommendations from a Qualified Mental Health Professional regarding the extent to which disciplinary charges are related to an inmate's mental or developmental disability, or suggestions for minimizing the deleterious effect of disciplinary measures on the inmate. 7) Whether MDC alerts the facility's medical provider when inmates are placed in disciplinary segregation or protective custody. 8) Whether a Qualified Mental Health Staff member works with the disciplinary officer or board, as needed, to address the needs of inmates who have a mental or developmental disability. 9) Whether MDC provides an adequate number of staff to carry out the duties and responsibilities of the inmate disciplinary system as required by MDC policy and procedure. I0) Whether MDC punishes groups of residents for the behavior of individuals and whether lockdowns ofliving units occur that are not authorized by the jail director or his designees. [Doc. No. 256.] II) Whether MDC developed and employs an effective and comprehensive training program on inmate discipline. [Doc. No. 1161 at p. 5, para. 2(j).] 12) Whether MDC ensures that correctional officers receive adequate
17

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 18 of 42
training in MDC's policies regarding inmate discipline. [Doc. No. 1161 atp. 5, para. 2G).] D. Classification I) Whether MDC maintains and effectively implements policies and procedures for an appropriate, objective classification system that separates inmates in housing units by classification levels in order to protect inmates from an unreasonable risk of harm. 2) Whether MDC' s classification system considers an inmate's security level, severity ofcurrent charges, types ofprior commitments, suicide risk, history of escape attempts, history of violence, and special needs. 3) Whether MDC ensures that classification staffhas sufficient access to current information regarding cell availability throughout the facility. 4) Whether MDC provides adequate training and access to all correctional officer supervisors on the full capabilities of MDC's classification system. 5) Whether MDC provides ongoing internal and external review and validation of its inmate classification system to ensure its reliability and objectivity. 6) Whether MDC ensures that inmates requiring segregation who are high risk, security threats, seriously mentally ill, disciplinary, or
18

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 19 of 42
reclassification are not double-celled, unless those inmates have been determined to be compatible using a reliable objective classification tool. [Doc. No. 1161, p. 64, para. 2(m)]. 7) Whether MDC ensures that segregation inmates who are in protective custody and new inmates are not double celled, unless the inmates have first been determined to be low risk and compatible using a reliable classification tool. [Doc. No. 1161, p. 64, para. 2(m)]. 8) Whether MDC ensures that inmates who have committed or been charged with acts of violence are not housed with inmates who have not committed or been charged with such acts by using a preclassification triage system as recommended by the Department of Justice National Institute of Corrections (NIC). [Doc. No. 1161, p. 64, para. 2(n)]. 9) Whether MDC ensures that inmates who have not yet been classified are not housed in the same pod as inmates who require segregation, as recommended by the NIC. [Doc. No. 1161, p. 64, para. 2(o)]. E. Inmate Grievance Procedure I) Whether MDC has adopted and effectively implements policies and procedures to ensure inmates have access to an adequate grievance process and to ensure that grievances may be accessed and filed confidentially, without requiring the intervention of a correctional
19

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 20 of 42
officer, in accordance with generally accepted correctional standards. 2) Whether MDC has adopted and effectively implements policies to
ensure that the grievances receive appropriate follow-up, including, providing a timely written response that explains to the grievant the reason(s) for the outcome and tracking implementation ofresolutions. 3) Whether MDC ensures that grievance forms are available on all units and are available in Spanish. 4) Whether MDC ensures that there is adequate opportunity for illiterate inmates, inmates who have physical, mental, or cognitive disabilities, and inmates who are not English speakers to access the grievance system. 5) Whether a member of MDC management staff reviews the grievance tracking system regularly in order to identify areas of concern and takes adequate corrective action, as needed, to improve its grievance system. 6) Whether MDC developed and employs an effective training program regarding inmate grievances. [Doc. No. 1161 at p. 5, para. 2(j).] 7) Whether MDC ensures that staffreceive adequate training in MDC' s policies regarding grievances. [Doc. No. 1161 at p. 5, para. 2(j).] 8) Whether MDC ensures that inmate grievances are screened for allegations of staff misconduct and abuse or mistreatment, ifthe incident
20

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 21 of 42
or allegation meets established criteria, are referred for investigation. 9) Whether incident reports regarding allegations of staff misconduct
and abuse or mistreatment are provided to quality assurance staff and reported on by the quality assurance system to determine ifthe system of inmate grievance is functioning properly [Doc. No. 256.] F. Safety and Supervision 1) Whether MDC has adopted and effectively implements security and
control-related policies, procedures, and practices, including but not limited to effective training, that will result in a reasonably safe and secure environment for all inmates and staff, in accordance with generally accepted correctional standards. 2) Whether MDC has adopted and effectively implements policies, procedures, and practices to ensure the adequate supervision of inmate work areas and trustees, in accordance with generally accepted correctional standards. 3) Whether MDC ensures that security staff appropriately monitor inmates to ensure that they are reasonably safe and secure, including but not limited to: a. Whether rounds are conducted with sufficient frequency to
provide inmates with reasonable safety. b. Whether MDC provides direct supervision of inmates by
21

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 22 of 42
posting an adequate number correctional officers inside the day room area of a housing unit to conduct constant surveillance. c. Whether more frequent rounds are conducted for special management inmates who require more intensive supervision for security and safety reasons. d. Whether all security rounds are accurately documented on forms or logs that do not contain preprinted rounding times. 4) Whether MDC ensures that security supervisors conduct daily rounds in the inmate housing units, and document the results of their inspections. 5) Whether the number and nature of assaults and altercations indicates that the MDC is providing an environment that is reasonably safe for inmates. G. Contraband control. I) Whether MDC maintains and effectively implements procedures to prevent inmates from possessing or having access to dangerous contraband, including conducting regular inspections of cells and common areas of the housing units to identifY and prevent rule violations by inmates. 2) Whether MDC has purchased and uses security equipment that is
22

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 23 of 42
capable of detecting drugs and other forms of contraband from coming into the facility. a. Whether MDC ensures that all inmates, staff, and visitors are
properly screened through the use of MDC's security equipment before entering the secure area ofthe facility. b. Whether MDC has purchased and uses drug scanning security equipment for the mailroom in order to properly screen all incoming mail and packages. c. Whether MDC maintains in working order sufficient monitoring equipment at the facility, including cameras, alarms, radios (hand held), interior and exterior lighting, x-ray and other screening equipment, and walk-through metal detectors. H. Housing and Segregation. 1) Whether MDC ensures that three or more inmates are never housed in a cell designed to house two inmates. [Doc. No. 1004, p. 1, para. 1(a)} & [Doc. No. 1161, p. 6, para. 2(!)]. 2) Whether MDC ensures that no fewer than two separate housing units are used for female inmates requiring segregation. (When the population of the MDC allows, MDC may house female inmates of different classifications in one unit, so long as MDC separates women
23

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 24 of 42

with different classifications usmg security barriers. However,

Defendants may only reduce the number of segregation units for

female inmates pursuant to a plan approved by Manuel Romero.)

[Doc. No. 1161, pp. 5-6, para. 2(j)].

3) Whether MDC provides inmates housed in segregation one (I) hour

out of cell time per day, except in the case of a facility lockdown.

[Doc. No. 989, p. 2, para. 2], [Doc. No. 1004, p. 1, para. 1(b-e)], &

[Doc. No. 1161, p. 4, para. 2(b)j.

4) Whether MDC developed and effectively implements a consistent

method of ensuring that there is adequate, accessible, and verifiable

documentation of denial of out of cell time. [Doc. No. 1161, p. 6,

para. 2(/)].

5) Whether MDC developed and employs an effective and

comprehensive training program on out of cell time. [Doc. No. 1161

at p. 5, para. 2Q).]

6) Whether MDC ensures that correctional officers receive adequate

training in MDC's policies regarding out of cell time. [Doc. No.

1161 at p. 5, para. 2Q).]

L

Sexual Misconduct

1) Whether MDC has developed and adequately implements policies,

protocols, trainings, and audits consistent with the requirements ofthe 24

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 25 of 42
Prison Rape Elimination Act of2003, 42 U.S.C. § 15601, et seq. 2) Whether MDC's policies and protocols adequately address the
prevention, detection, reporting, and investigation of sexual abuse, sexual harassment, and sexual touching. 3) Whether MDC's policies and protocols adequately address the collection of data regarding sexual abuse (including inmate-on-inmate and staff-on-inmate sexual abuse), sexual harassment, and sexual touching. 4) Whether MDC adequately protects inmates from sexual abuse, sexual harassment, and sexual touching. J. Internal Investigations [Doc. No. 256, p. 16, para. IV(B)] I) Whether MDC maintains and adequately implements comprehensive policies, procedures, and practices for the timely and thorough investigation of alleged staff misconduct, in accordance with generally accepted correctional standards. 2) Whether internal investigations are conducted by persons who were not involved in any way in the incident under investigation and who do not have supervisory responsibility for the staffmember(s) being investigated. 3) Whether MDC ensures that all internal investigations include timely, thorough, and documented interviews of all relevant staff and inmates
25

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 26 of 42
who were involved in, or witnessed, the incident in question. 4) Whether MDC ensures that internal investigation reports include all
supporting evidence, such as witness and participant statements, policies and procedures relevant to the incident, physical evidence, video or audio recordings, and relevant logs. 5) Whether MDC ensures that all investigatory staffreceives pre-service and in-service training on appropriate investigation policies and procedures, the investigation tracking process, investigatory interviewing techniques, and confidentiality requirements. 6) Whether MDC provides all investigators who will be assigned to conduct investigations of use of force and sexual misconduct incidents with specialized training in investigating use of force and sexual misconduct incidents and allegations. 7) Whether MDC ensures that the results ofeach internal investigation are documented in an investigation report. 8) Whether MDC administration reviews the investigation reports, along with the underlying documentation, and takes corrective action, including disciplinary action and training, as appropriate. 9) Whether MDC adequately implements appropriate remedies based upon the results of internal investigations. I 0) Whether MDC has a tracking system for all internal investigations.
26

.------------------------
Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 27 of 42
11) Whether Defendants maintain a contract with an outside investigatory entity for conducting investigations of matters which are best investigated by an outside entity.
K. Staffing [Doc. Nos. 1004 at p. 2, para. 1(h), 1161, p. 6, para. 2(p)} 1) Whether MDC' s correctional officer staffing and supervision levels at the facility are adequate to supervise inmates, protect inmates and staff, and allow for the safe operation of the facility, consistent with generally accepted correctional standards. 2) Whether MDC has prepared a written staffmg plan, in consultation with Manuel Romero, which requires correctional officer staffing and supervision levels at the facility that are adequate to supervise inmates, protect inmates and staff, and allow for the safe operation of the facility, consistent with generally accepted correctional standards and the Court's November 5, 1996 Order [Doc. 256]. 3) Whether MDC effectively implements the written staffing plan with oversight by Manuel Romero. 4) Whether MDC employs adequate numbers ofemployees in the areas of inmate discipline, inmate grievance, inmate classification, case managers, and CCP. 5) Whether MDC has sufficient correctional officer staffing to provide inmates requiring treatment with adequate access to appropriate 27

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 28 of 42
medical and mental health care by providing timely movement of inmates to medical units, transport of inmates who have been referred for outside specialty care, and escort, if necessary, to Qualified Medical and Mental Health Staff on housing units; L. Fire and Life Safety 1) Whether MDC has a comprehensive fire safety program, which is approved by the fire prevention authority having jurisdiction. 2) Whether MDC has developed and implements an adequate evacuation plan for inmates and staff and ensures that comprehensive fire drills are conducted every three months on each shift. 3) Whether MDC has adequate fue and life safety equipment, including installation and maintenance offire alarms and smoke detectors in all housing areas according to applicable fire codes. 4) Whether MDC properly maintains and routinely inspects all fire and life safety equipment. 5) Whether MDC staff are able to manually unlock all doors (without use ofthe manual override in the event of an emergency in which the manual override is broken), including in the event of a power outage or smoke buildup where visual examination of keys is generally impossible. 6) Whether MDC ensures that combustibles are adequately controlled
28

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 29 of 42
and eliminates highly flammable materials throughout the facility and inmate living areas (e.g., inmates' use of paper bags as trash receptacles, ripped fire-retardant mattress covers, improvised cell light covers, blankets on cell floors, and improperly stored and labeled flammable liquids and other chemicals). M. Sanitation and Environmental Conditions I) Whether MDC maintains an adequate written staffing plan and sufficient staffing levels to provide for adequate maintenance of the facility. 2) Whether MDC maintains and adequately implements written housekeeping and sanitation plans to ensure the proper routine cleaning of housing, shower, and medical areas, in accordance with generally accepted correctional standards. 3) Whether MDC provides adequate ventilation throughout the facility to ensure that inmates receive an adequate supply of air flow and reasonable levels of heating and cooling. 4) Whether MDC ensures adequate lighting in all inmate housing and work areas. 5) Whether MDC ensures adequate pest control throughout the housing units, medical units, RDT, and food storage areas. 6) Whether MDC has developed and adequately implements policies
29

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 30 of 42
and procedures for cleaning, handling, storing, and disposing of biohazardous materials, in accordance with generally accepted correctional standards. 7) Whether MDC has developed and adequately implements a policy on hazardous materials storage, in accordance with generally accepted correctional standards, and ensures that all MDC staff is properly trained on the procedure. 8) Whether MDC ensures the use ofcleaning chemicals that sufficiently destroy the pathogens and organisms in biohazard spills. 9) Whether MDC has obtained a sufficient amount of stack-a-bunks or boats so that no inmate will have to sleep on the floor. 10) Whether MDC has a sufficient supply of towels, blankets, and pillows in stock and in reasonable condition, to provide every inmate with linen, a towel, and a blanket. II) Whether MDC ensures that all inmates have access to needed hygiene supplies 12) Whether MDC has an adequate system for storing inmates' personal necessities such as hygiene products. 13) Whether MDC ensures adequate control and observation of all housing units, including distribution and collection of razors and cleaning supplies.
30

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 31 of 42
14) Whether MDC at all times stores in the female housing units sufficient supplies oftampons and/or sanitary pads for female inmates and whether MDC issues the same on request by any inmate.
15) Whether MDC implements adequate procedures and processes for the cleaning and sanitizing of inmate mattresses that are in use in all living areas.
16) Whether MDC has developed and adequately implements an inmate indigent policy.
N. Sanitary Laundry Procedures 1) Whether MDC has developed and adequately implements policies and procedures for laundry procedures to protect inmates from risk of exposure to communicable disease, in accordance with generally accepted correctional standards. 2) Whether MDC ensures that inmates are provided adequate clean clothing, underclothing, and bedding, consistent with generally accepted correctional standards, and that the laundry exchange schedule provides consistent distribution and pickup service to all housing areas. 3) Whether MDC trains staff and educates inmates regarding laundry sanitation policies. 4) Whether MDC ensures that laundry delivery procedures protect 31

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 32 of 42
inmates from exposure to communicable diseases by preventing clean laundry from coming into contact with dirty laundry or contaminated surfaces. 5) Whether MDC requires inmates to provide all clothing and linens for laundering and prohibit inmates from washing and drying laundry outside the formal procedures. 0. Food Service I) Whether MDC ensures that food service at the facility is operated in a safe and hygienic manner and that foods are served and maintained at safe temperatures. 2) Whether MDC ensures that all types ofmeals (including meals served to inmates requiring medical diets, inmates with food allergies, and inmates with religious diets) provide adequate nutrition. 3) Whether MDC ensures that all food service staff, including inmate staff, are adequately trained in food service operations, safe foodhandling procedures, and appropriate sanitation. 4) Whether MDC ensures that the kitchen is staffed with a sufficient number of appropriately supervised and trained personnel. 5) Whether MDC ensures that dishes and utensils, food preparation and storage areas, and vehicles and containers used to transport food are appropriately cleaned and sanitized.
32

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 33 of 42
6) Whether MDC checks and records, on a regular basis, the temperatures in the refrigerators, coolers, walk-in-refrigerators, the dishwasher water, and all other kitchen equipment with temperature monitors to ensure proper maintenance of food service equipment.
P. Access to counsel and legal materials. 1) Whether MDC provides inmates with adequate opportunities to use telephones during normal business hours so that they may contact attorneys. 2) Whether MDC ensures that staff members do not interfere with inmates' access to materials pertaining to inmates' legal matters, including but not limited to attorney-client correspondence, discovery, legal research, and pleadings.
Q. Law Library I) Whether MDC's law library meets the applicable standards stated in the American Correctional Association's Standards for Adult Detention Centers. 2) Whether MDC's law library is kept reasonably current. [Doc. Nos. 115 at 1-2, 255, 416; see also Doc. 106 at 18.] 3) Whether MDC follows its policies and procedures pertaining to the delivery of access to its law library. [Doc. Nos. 115 at 1-2, 255, 416; see also Doc. I06 at 18.] 33

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 34 of 42
4) Whether MDC provides inmates with mental or developmental disabilities reasonable accommodations and assistance in order for them to have effective access to the judicial system to challenge the length or conditions of their confinement and in order for them to attack their sentences. [Doc. No. 256, p. 16, para. JV(C)(J)].
5) Whether MDC provides inmates with mental or developmental disabilities reasonable access to the law library in a reasonable amount of time. [Doc. No. 256, p. 17, para. JV(C)(4)].
6) Whether MDC provides inmates with mental or developmental disabilities assistance with the preparation of an initial pleading regarding the length or conditions of confinement or regarding the resident's conviction or sentence. [Doc. No. 256, p. 17, para. JV(C)(4)].
R. US. Mail Service I) Whether MDC's U.S. mail service policies and practices meet the applicable standards stated in the American Correctional Association's Standards for Adult Detention Centers. 2) Whether MDC provides adequate resources to allow indigent inmates to correspond with their family, friends, and his/her attorney. 3) Whether MDC promptly delivers U.S. mail to inmates. 4) Whether MDC ensures that staff do not read attorney-client 34

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 35 of 42
correspondence and do not open incoming attorney-correspondence outside the presence of the addressee. S. Inmate Access to Telephones 1) Whether MDC provides its inmates access to telephones which meets the applicable standards stated in the American Correctional Association's Standards for Adult Detention Centers. 2) Whether MDC has adequate policies and procedures govemmg inmate access to telephones and whether it adequately implements those policies. 3) Whether MDC has inmate telephones in the booking area and all housing units and whether it provides inmates with adequate access to those telephones. T. Inmate Programming (excluding mental health programming) 1) Whether MDC's inmate programming (excluding mental health programming) meets the applicable standards stated in the American Correctional Association's Standards for Adult Detention Centers. 2) Whether MDC has adequate policies and procedures that address programming and whether they adequately implement those policies and procedures. 3) Whether MDC provides adequate resources and opportunities for recreation, exercise, reading, and other activities.
35

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 36 of 42
U. Inmate Access to Commissary I) Whether MDC provides its inmates access to commissary which meets the applicable standards stated in the American Correctional Association's Standards for Adult Detention Centers. 2) Whether MDC has an adequate policy and procedure that addresses the commissary service and whether it adequately implements that policy and procedure. 3) Whether MDC inmates are provided the opportunity to purchase from the commissary store approved items not furnished by the jail.
V. Access to Community Services I) Whether MDC has a full-time benefits manager to assist in securing public benefits for inmates. [Doc. No. 361, p. 2, para. 10].
W. Access to Information 1) Whether MDC ensures that newly admitted inmates rece1ve information, through an inmate handbook or orientation video, regarding the following areas: a. facility rules and regulations; b. how to report misconduct; c. how to report sexual abuse or assault; d. the process for accessing medical and mental health care; e. emergency procedures; 36

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 37 of 42

f. rules for sending and receiving mail;

g. the visitation process;

h. facility schedule;

1.

the disciplinary process;

J. how to seek redress of grievances; and

k. a description ofthe McClendon class action and the methods

for contacting counsel for the class and subclass.

2) Whether MDC ensures that materials and information on facility rules

and services are available for inmates who are not literate, inmates

who do not speak English, and inmates who have a mental or

developmental disability.

X. Competency Evaluations

1) Whether the County contracts with a licensed psychologist to provide

written competency evaluations to jail residents charged with

misdemeanors who are ordered by the Courts to undergo such

evaluations. [Doc. No. 255, p. 4, para. 7].

2) Whether the County funds a program to provide appropriate court-

sanctioned written competency evaluations prepared by a qualified

mental health professional whenever the results of such evaluation

could result in the release of a resident. Doc. No. 255, p. 4, para. 7].

With respect to each of the standards set forth in this paragraph, Mr. Romero will notifY the 37

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 38 of 42
Court and the parties whether MDC is in compliance, partial compliance, or non-compliance. Whenever feasible, Mr. Romero should present his findings in a quantifiable manner, such as numerically or as a percentage.
9. IfMr. Romero determines that MDC has met the standards set forth in paragraph 8 of this Order, Mr. Romero will determine, when practicable, the date when compliance began.
10. For the purpose of preparing a report to this Court and the parties, Mr. Romero will visit MDC and complete a series of evaluations of the conditions of confinement in which MDC houses the class and sub-class members:
A. Within ninety (90) days of the filing of this Order, Mr. Romero will submit his first report ofhis findings and conclusions, in writing, to the Court and to the parties. Mr. Romero will have the discretion to determine issues he will address in his first report.
B. Within one-hundred and eighty (180) days of the filing of this Order, Mr. Romero will submit his second report of his findings and conclusions, in writing, to the Court and to the parties. Mr. Romero will have the discretion to determine which issues he will address in his second report.
C. Within two-hundred and seventy (270) days of the filing of this Order, Mr. Romero will submit his third report of his findings and conclusions, in writing, to the Court and to the parties. Mr. Romero will have the discretion to determine which issues he will address in his third report.
D. Within three-hundred and sixty-five (365) days ofthe filing ofthis Order, Mr. 38

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 39 of 42
Romero will submit his fourth report of his fmdings and conclusions, in writing, to the Court and to the parties. Collectively, Mr. Romero's four reports must address all the issues raised in this order. II. After Mr. Romero completes the four reports described above, Mr. Romero will prepare one or more supplemental reports addressing any requirements set forth above that Mr. Romero has determined in previous reports that the Defendants have not complied with or have partially complied with, any other topics that the parties agree that he should address, and any additional topics the Court orders him to address. Each supplemental report will be submitted within three months of the completion of any preceding report. 12. Any supplemental report will also state Mr. Romero's observations and opinions regarding: A. Whether the conditions of confinement at MDC evidence repeated examples of acts that put inmates at risk of harm; B. Whether the examples of acts that put inmates at risk of harm disclose a pattern of conduct by MDC security staff that effectively denies inmates an appropriate classification system, appropriate procedural safeguards in the areas of grievances, discipline, classification and segregation, safe conditions of confinement or reasonably sanitary conditions of confinement; C. Whether there are systematic or gross deficiencies in staffing, facilities, equipment, or procedures; and D. Whether the systematic or gross deficiencies effectively deny the inmate
39

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 40 of 42

population fairness, safe conditions of confinement or reasonably sanitary

conditions of confinement

With respect to each ofthe above standards, Mr. Romero will notifY the Court and the parties

whether MDC is in compliance, partial compliance, or non-compliance. Whenever feasible, Mr.

Romero should set forth his findings in a quantifiable way, such as numerically or as a percentage. If Mr. Romero concludes that MDC is in compliance with a particular standard, Mr. Romero will

determine, when practicable, the date when compliance began.

13. regarding:

Any supplemental report will also state Mr. Romero's observations and opinions

A. Whether adequate communication occurs between MDC administration and

treating health care professionals regarding an inmate's significant medical

needs and mental health needs that must be considered in classification

decisions in order to preserve the health and safety of that inmate, other inmates, and staff;

I) Whether MDC security staff is sufficiently advised of inmates'

special medical needs and mental health needs that may affect housing, work, program assignments, disciplinary measures, and

admissions to and transfers from institutions.

2) Whether health care and security staff adequately communicates

about inmates with special needs conditions.

B. Whether MDC security staff allows inmates the use of medical and dental 40

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 41 of 42
orthoses, prostheses, and other aids as determined by the responsible physician or dentist. 1) Whether patients receive and are permitted to retain prescribed aids to
impairment. 2) Where the use of specific aids to impairment is contraindicated for
security reasons, whether alternatives are considered so the health needs of the inmate are met. With respect to each ofthe above standards, Mr. Romero will notifY the Court and the parties whether MDC is in compliance, partial compliance, or non-compliance. Whenever feasible, Mr. Romero should set forth his findings in a quantifiable way, such as numerically or as a percentage. If Mr. Romero concludes that MDC is in compliance with a particular standard, Mr. Romero will determine, when practicable, the date when compliance began. IT IS SO ORDERED.
onorable James A. Parker OR UNITED STATES DISTRICT JUDGE
41

Case 6:95-cv-00024-JAP-KBM Document 1167 Filed 09/23/14 Page 42 of 42

APPROVED:
Randy Aut Attorney for County Defendants
u~
Peter Cubra Attorney for Plaintiff-Intervenors

Marcus J. Rae!. Jr. Attorney for County Defendants
Jeffrey L. Baker Attorney for County Defendants

Attorney for Plaintiff-Intervenors
~~~~----~-+~
The Honorable Alan Special Master

42

 
 Case 6:95-cv-00024-JAP-KBM Document 1187 Filed 03/30/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et al.,

Plaintiffs,

vs.

CITY OF ALBUQUERQUE, et al.,

No. CV 95-24 JAP/KBM

Defendants.

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,

Plaintiff-Intervenors.

AMENDED ORDER INSTRUCTING COURT-APPOINTED MEDICAL EXPERT ROBERT GREIFINGER, M.D. TO EVALUATE MEDICAL SERVICES
AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER 1. This action was commenced on January 10, 1995 by Plaintiffs on behalf of all
persons who are or who will be confined at the Bernalillo County Detention Center. 2. Plaintiffs alleged in their complaint that conditions at the Bernalillo County
Detention Center violated the United States Constitution, the statutory laws of the United States, the New Mexico Constitution, and the statutory laws of the State of New Mexico. Plaintiffs sought Declaratory and Injunctive Relief on behalf of the class.
3. After the suit was filed, a group of individuals with mental and/or developmental disabilities who are or will be confined at the Bernalillo County Detention Center intervened (“Plaintiff-Intervenors”). [Doc. No. 113]. The Court granted Plaintiff-Intervenors permission to intervene on October 26, 1995. [Doc. No. 137].

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4. The Bernalillo County Detention Center was located in downtown Albuquerque, and is no longer used for the incarceration of Plaintiffs or Plaintiff-Intervenors. The inmates in the Plaintiff and Plaintiff-Intervenors classes are now housed at the Metropolitan Detention Center (“MDC”), located at 100 Deputy Dean Miera Dr., SW, Albuquerque, NM 87151.
5. On July 11, 2003, the Court entered an order clarifying the class and sub-class to include inmates incarcerated at MDC. [Doc. No. 416].
6. On December 7, 2011, the Court appointed Robert Greifinger, M.D., as the Court’s expert to continue his evaluation of the medical services provided at MDC. [Doc. No. 909].
7. Pursuant to the December 7, 2011 Order, the Court directed Dr. Greifinger “to evaluate whether MDC is in compliance with the standards described in the Plaintiffs’ SSA, [Doc. No. 515] regarding item 15 on page 3 of the Plaintiffs’ SSA, which concerns the provisions of medical services to class and sub-class members.” [Doc. No. 909, pp. 2-3]. The 2005 SSA [Doc. No. 515] instructed the medical auditor to “evaluate the Defendants’ compliance with the policies and procedures of the Metropolitan Detention Center, the United States Constitution, the advisory standards set forth in the American Correctional Association’s Standards for Adult Detention Centers,” along with “good faith efforts to comply with the advisory Guidelines of the National Commission on Correctional Health Care.”
8. To ensure compliance with this Court’s orders, Dr. Greifinger will evaluate Defendants’ compliance with the Court’s extant orders that are currently relevant to MDC. Those provisions include the following:
A. Whether MDC’s provision of medical services complies with MDC’s medical policies and procedures;
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B. Whether MDC is in compliance with the advisory standards set forth in the American Correctional Association’s Standards for Adult Detention Centers;
C. Whether MDC has made and is making good faith efforts to comply with the advisory Guidelines of the National Commission on Correctional Health Care;
D. Whether MDC is conducting and completing a history and physical exam of each inmate in a timely manner, i.e., within 72 hours for inmates with serious medical needs identified at booking and no later than 14 days otherwise;
E. Whether MDC inmates who complain orally or in writing of serious acute illness or serious injury are given immediate medical attention;
F. Whether all inmate requests for medical care are timely communicated to medical personnel for appropriate treatment.
G. Whether MDC has made necessary revisions to existing policies, procedures and practices for any deficiencies identified by MDC or the monitors regarding the provision of timely access to appropriate medical care and is following the revised policies, procedures and practices.
9. MDC’s Quality Improvement Process: A. Whether MDC operates an adequate Quality Assurance/Improvement system regarding medical care, its medical and health care policies and procedures, including but not limited to those identified in NCCHC standards and MDC policy and has implemented appropriate corrective
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action. B. Whether MDC has a committee that reviews individual and system data
about triggers and thresholds, and determines whether these data indicate trends either for individuals or for the adequacy of treatment overall; C. Whether MDC’s Quality Improvement Committee conducts analyses of the medical and health care processes and makes recommendations on changes and corrective actions; 1) Provides oversight of the implementation of medical policies,
procedures, guidelines and support plans; 2) Reviews policies, training, and staffing levels; 3) Monitors implementation of recommendations and corrective
actions; 4) Reports its findings and recommendations to appropriate County
officials periodically; and 5) Refers appropriate incidents to the Morbidity/Mortality Committee
for review, as necessary. With respect to each of the standards set forth in this paragraph, Dr. Greifinger will notify the Court and the parties whether MDC is in compliance, partial compliance, or non-compliance. Whenever feasible, Dr. Greifinger should present his findings in a quantifiable manner, such as numerically or as a percentage. 10. If Dr. Greifinger determines that MDC has met the standards set forth in paragraph 8 and 9 of this Order, Dr. Greifinger will determine, when practicable, the date when compliance began.
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11. To assist the Court with its determination as to whether MDC is providing constitutionally adequate medical care, Dr. Greifinger will determine the following:
A. Whether the medical care provided by MDC to its inmates evidences repeated examples of negligent acts, which disclose a pattern of conduct by MDC medical staff;
B. Whether the examples of negligent acts disclose a pattern of conduct by MDC medical staff that effectively denies inmates access to adequate medical care;
C. Whether there are systematic and gross deficiencies in staffing, facilities, equipment, or procedures; and
D. Whether the systematic and gross deficiencies effectively deny the inmate population access to adequate medical care.
With respect to each of the above standards, Dr. Greifinger will notify the Court and the parties whether MDC is in compliance, partial compliance, or non-compliance. Whenever feasible, Dr. Greifinger should set forth his findings in a quantifiable way, such as numerically or as a percentage.
12. If Dr. Greifinger determines that MDC has provided adequate medical care as set forth in paragraph 10 of this Order, Dr. Greifinger will determine, when practicable, the date when compliance began.
13. To assist the Court with its determination as to whether MDC is complying with the Americans with Disabilities Act, Dr. Greifinger will determine the following:
A. Whether adequate communication occurs between MDC administration and treating health care professionals regarding an inmate’s significant
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health needs that must be considered in classification decisions in order to preserve the health and safety of that inmate, other inmates, or staff; 1) Whether MDC security staff is advised of inmates’ special medical
needs that may affect housing, work, program assignments, disciplinary measures, and admissions to and transfers from institutions. 2) Whether health care and security staff communicate about inmates with special needs conditions. B. Whether MDC follows a proactive program which provides care for special needs patients who require close medical supervision or multidisciplinary care. 1) Whether individual treatment plans are developed by a physician or other qualified clinician at the time the condition is identified and updated when warranted. 2) Whether the treatment plan includes, at a minimum: a) The frequency of follow-up for medical evaluation and
adjustment of treatment modality; b) The type and frequency of diagnostic testing and
therapeutic regimens; and c) When appropriate, instructions about diet, exercise,
adaptation to the correctional environment, and medication. C. Whether medical and dental orthoses, prostheses, and other aids to
impairment are supplied in a timely manner when the health of the inmate
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would otherwise be adversely affected, as determined by the responsible physician or dentist. 1) Whether health records confirm that patients receive prescribed
aids to impairment. 2) Where the use of specific aids to impairment is contraindicated for
security reasons, whether alternatives are considered so the health needs of the inmate are met. D. Whether the medical care provided to subclass members is adequate and whether the medical care provided to sub class members is at least equivalent in quality to the medical care provided to others; E. Regarding inmates who are qualified individuals with disabilities under the ADA, whether the Defendants have made modifications to their policies, procedures and practices that are necessary to provide inmates with disabilities with medical care which is equivalent in quality to the care provided to inmates without disabilities. With respect to each of the above questions, Dr. Greifinger will notify the Court and the parties whether MDC is in compliance, partial compliance, or non-compliance. Whenever feasible, Dr. Greifinger should set forth his findings in a quantifiable way, such as numerically or as a percentage. 14. If Dr. Greifinger determines that MDC has complied with the provisions set forth in paragraph 13 of this Order, Dr. Greifinger will determine, when practicable, the date when compliance began. 15. For the purpose of preparing a report to this Court and the parties, Dr. Greifinger
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will visit MDC and complete an evaluation of the medical services provided to MDC class and sub-class members. Within six (6) months of the filing of this Order, Dr. Greifinger will submit an initial report of his findings and conclusions, in writing, to the Court and to the parties.

APPROVED:

______________________________ The Honorable James A. Parker SENIOR UNITED STATES DISTRICT JUDGE

/s/ Randy Autio_________________ Randy Autio Attorney for County Defendants
Approved via electronic mail 03/24/15 Mark Baker Attorney for Plaintiffs
Approved via electronic mail 03/24/15 Mark H. Donatelli Attorney for Plaintiffs
Approved via electronic mail 03/24/15 Zachary A. Ives Attorney for Plaintiffs

/s/ Luis Robles_________________ Luis Robles Marcus J. Rael, Jr. Attorney for County Defendants
/s/ Jeffrey L. Baker______________ Jeffrey L. Baker Attorney for County Defendants
Approved via electronic mail 03/24/15 Peter Cubra Attorney for Plaintiff-Intervenors
Approved via electronic mail 03/24/15 Nancy L. Simmons Attorney for Plaintiff-Intervenors

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 Case 6:95-cv-00024-JAP-KBM Document 1207 Filed 10/13/15 Page 1 of 15
UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO
JIMMY (BILLY) McCLENDON, et al., Plaintiffs,
vs. Case No. 95 CV 024 JAP/ACT
CITY OF ALBUQUERQUE, et al., Defendants.
vs.
E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors. MEMORANDUM OPINION AND ORDER
GRANTING IN PART DENYING IN PART PLAINTIFF-INTERVENORS’ RENEWED OBJECTIONS TO MEMORANDUM OPINION AND ORDER
ON JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 1189)
On August 4, 2015, Plaintiff Intervenors filed PLAINTIFF-INTERVENORS’ RENEWED OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 1189) (Renewed Objection) asking the Court to order County Defendants to produce documents related to quality improvement in the provision of mental health care at the Metropolitan Detention Center (MDC). On August 21, 2015, County Defendants filed RESPONSE TO PLAINTIFF-INTERVENORS’ RENEWED OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 1192) (Response to Renewed Objection) arguing that Plaintiff Intervenors’ counsel are not entitled to these internal reports. After considering the arguments in these filings, as well as the arguments presented in
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PLAINTIFF INTERVENORS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFINTERVENORS’ RENEWED OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 1198) (Reply to Renewed Objection), the Court will grant in part the Renewed Objection and will order County Defendants to produce the documents that the County provided to and that were used by Dr. Metzner in preparing his July 2015 Report. The Court will otherwise deny the Renewed Objection. I. BACKGROUND
A. MEMORANDUM OPINION AND ORDER (Doc. No. 962) (MOO) On October 12, 2012, Magistrate Judge Torgerson, when he was the Magistrate Judge assigned to this case, entered this MOO (Doc. No. 962) denying Plaintiffs and PlaintiffIntervenors’ Joint Motion for Enforcement of Interim Order Regarding Access to the MDC [Doc. 945] (Joint Motion).1 The Renewed Objection asks the Court to set aside the MOO because it is clearly erroneous or contrary to law and to order County Defendants to produce documents that the County provided to and that were used by Dr. Metzner in preparing his July 2015 Report. Fed. R. Civ. P. 72(a). B. RELEVANT EVENTS FROM 2009 TO THE PRESENT In May and June of 2009, three motions were pending: (1) PLAINTIFFS’ AND PLAINTIFF-INTERVENORS’ JOINT MOTION TO ENFORCE THE COURT’S MARCH 31, 2009 ORDER AND SUPPORTING MEMORANDUM (Doc. No. 715);2 (2) PLAINTIFF-
1 Magistrate Judge Torgerson is now Special Master in this case. 2 In the March 31, 2009 Order, the Court ruled that the orders entered in this case applied to the newly-constructed Metropolitan Detention Center (MDC) even though all inmates of the Bernalillo County Detention Center (BCDC), the original object of this lawsuit, had been relocated to the MDC. See MEMORANDUM OPINION AND ORDER (Doc. No. 699).The Court denied this Motion without prejudice because the Court’s March 31, 2009 Order was on appeal to the Tenth Circuit. ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION TO ENFORCE THE COURT’S MARCH 31, 2009 ORDER (Doc. No. 769).
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INTERVENORS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM DEFENDANTS AND MEMORANDUM IN SUPPORT THEREOF (Doc. No. 730);3 and (3) PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION FOR A RESTRAINING ORDER ENJOINING THE DEFENDANTS FROM REDUCING ACCESS TO THE METROPOLITAN DETENTION CENTER AND FOR AN ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF (Doc. No. 731) (Joint Motion for a Restraining Order). At a hearing on July 20, 2009, the Court referred the Joint Motion for a Restraining Order to Magistrate Judge Torgerson to facilitate a settlement of that motion.
On September 17, 2009, after holding several settlement conferences that did not yield a complete settlement of access issues, Magistrate Judge Torgerson entered the INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 754) (Interim Order). The Interim Order outlined procedures for the periodic monitoring activities by class and subclass counsel, including a procedure for requesting documents during their monitoring visits at the MDC. In the Interim Order, class and subclass counsel were allowed to request:
(1) up to 15 medical files per visit (Id. ¶ 1); (2) the “Clinical Seclusion Log, Suicide Watch Log, Suicide Watch Follow-Up Log, Involuntary Medication Log, and Emergency Medication Log” (Id. ¶ 14); and (3) on request, [Correctional Medical Services] was to provide a “reasonable sample of written Requests for Services, Request for Services Tracking Log, Shift Form Reports, and a list of people who are ‘open to [Psychiatric Services Unit].’” (Id.)
3 On July 15, 2010, Magistrate Judge Torgerson denied this motion and granted the Defendants’ motion for protective order. Plaintiff Intervenors asked for all documents given by Defendants to Mr. Romero and Dr. Metzner, who were auditing conditions at the MDC, and documents related to the renovated BCDC, renamed the Regional Correctional Center (RCC) in downtown Albuquerque. Magistrate Judge Torgerson denied the motion because the case was on appeal to the Tenth Circuit. See MEMORANDUM OPINION AND ORDER (Doc. No. 802).
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The Interim Order also required, [e]very quarter, on a date to be agreed on by the parties and CMS, defendants and CMS will produce documentation regarding mutually agreed subjects, including defendants’ logs regarding use of force, use of mace, and other incidents.” Within 30 days of receiving any request from counsel for plaintiffs or plaintiff-intervenors or their staff for documents other than client records . . . defendants and CMS will either produce the documents or explain their reasons for refusing to produce the documents.
(Id. ¶¶ 11, 13.) On October 8, 2009, Plaintiffs and Plaintiff Intervenors filed JOINT OBJECTIONS TO
THE INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 758) (the Joint Objection to Interim Order). On February 1, 2010, the Court reviewed the Interim Order de novo, overruled the Joint Objection, and adopted the Interim Order.4 See MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S INTERIM ORDER (Doc. No. 768).
C. MEDICAL CONTRACTOR; THE DOCUMENTS; AND THE MOO Prior to 2010, the medical contractor at the MDC was Correctional Medical Services (CMS). In 2010, MDC contracted with a new company, Correctional Healthcare Companies (CHC). Recently, CHC was acquired by Correct Care Solutions (CCS). In the Renewed Objection, Plaintiff Intervenors allege that from 2005 to the time CHC became the medical contractor, CMS provided the three types of documents that counsel now seek. Beginning in 2010, the new medical contractor, CHC, withheld these documents, and its successor CCS has continued to deny access to these documents. Those documents are described as follows:
4 Although the Plaintiffs and Plaintiff Intervenors argued that the Interim Order should be reviewed under Rule 72(a)’s clearly erroneous standard, the Court reviewed the Interim Order and the objections thereto de novo under Rule 72(b) because the original motion for access was a request for injunctive relief and as such, the Interim Order was treated as Proposed Findings and Recommended Disposition (PFRD) on a dispositive matter.
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1. Continuous Quality Improvement (CQI) and Quality Assurance (QA) reports (Quality Reports); 2. Reports on deaths of class and sub class members (Mortality Review Documents); and 3. Spreadsheets called the “MDC PSU Quality Management Data Matrix” (Stellman Matrix) created by Dr. Roberta Stellman, MD, the County’s contract compliance officer. On December 7, 2011, the Court, under Fed. R. Evid. 706, appointed three experts to evaluate conditions of confinement at the MDC and to determine whether the Defendants were in compliance with all extant orders in this case. See ORDER APPOINTING MANUAL ROMERO, ROBERT GREIFINGER, M.D., AND JEFFREY METZNER, M.D. TO EVALUATE THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 909) (Expert Order). On June 26, 2012, Plaintiffs and Plaintiff Intervenors filed PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 945) seeking inter alia access to the above-described documents. On October 12, 2012, Magistrate Judge Torgerson issued the MOO denying Plaintiffs and Plaintiff-Intervenors’ Joint Motion for Enforcement of Interim Order. On October 26, 2012, Plaintiffs and Plaintiff Intervenors filed Joint Objections to Judge Torgerson’s MOO. See PLAINTIFF AND PLAINTIFF-INTERVENORS’ JOINT OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 965) (Joint Objections to MOO on Interim Access). During the latter part of 2012 through the middle of 2013, the parties diligently worked on settling the outstanding issues in this case. Recognizing these efforts, the Court denied the
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Joint Objections to MOO on Interim Access without prejudice. See MEMORANDUM OPINION AND ORDER OVERRULING OBJECTION TO MAGISTRATE JUDGE’S ORDER (Doc. No. 1009). “Since the [Joint] Objection [was] filed[,] this case has moved in a substantially different direction and may be nearing settlement. Due to the current posture of the case, the Court will overrule the [Joint] Objection without prejudice at this time. If the direction of the case changes, Plaintiffs and Plaintiff-Intervenors may renew the Objection, and it will be considered on the merits.” (Id. at 1–2.)
On September 23, 2014, the Court entered three stipulated orders submitted by the parties, which compiled the relevant requirements from previous consent decrees into an outline of specific terms for the compliance review by each Rule 706 expert. Doc. Nos. 1167 (Manuel Romero), 1168 (Dr. Greifinger), and 1169 (Dr. Metzner) (together, September 2014 Orders).5 Since September 23, 2014, the experts have regularly visited the MDC and have evaluated whether conditions at MDC comply with the terms of the September 2014 Orders. Dr. Metzner visited the MDC in late July 2015, and he produced a report outlining for each matter he evaluated whether the MDC and its officials were in compliance, non-compliance, or partial compliance.
Plaintiff Intervenors assert that they need the requested documents provided to Dr. Metzner: (1) to ensure that the County Defendants provide truthful and accurate information to Dr. Metzner; (2) to acquire the same information that is provided to the County Defendants’ counsel; and (3) to ensure that the due process rights of the subclass members are recognized through equal access to information.
5 Since 1996, Plaintiff Intervenors and Defendants have entered into several settlement agreements that were approved by the Court and entered as consent decrees. See, e.g., Doc. Nos. 106, 255, 256, 319, 361, 514, 515, and 1004.
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In the MOO, Magistrate Judge Torgerson ruled that Plaintiff Intervenors were not entitled to these documents for the following reasons:
(1) By seeking the documents underlying the experts’ reports, Plaintiffs and Plaintiff Intervenors are either asserting the experts are not neutral or the experts are unqualified to evaluate compliance. Since Plaintiffs and Plaintiff Intervenors originally argued in favor of appointing the experts, they are judicially estopped from making this argument. Id. at 6. (2) Plaintiffs and Plaintiff Intervenors have access to all of the primary documents on which the reports are based. Id. at 7. (3) Plaintiffs and Plaintiff Intervenors presented no evidence that MDC was providing incorrect or untruthful information to the experts. Id. Plaintiff Intervenors contend that the Court should set aside the MOO because Magistrate Judge Torgerson incorrectly applied the doctrine of judicial estoppel. They assert that Magistrate Judge Torgerson considered Plaintiff Intervenors’ document request as an inappropriate reversal of their previous position that the experts were qualified to evaluate the MDC and that the experts would streamline the discovery process. As they originally argued, Plaintiff Intervenors also ask this Court to rule that the documents are not protected under the self-critical analysis privilege, an argument not addressed in the MOO. See id. at 6 (“CHC explains . . . that it is not disclosing the requested materials based on the self-critical analysis privilege. . . . The Court does not see any necessity to evaluate the self-critical analysis privilege . . .”). D. COUNTY DEFENDANTS’ RESPONSE County Defendants point to this Court’s denial of Plaintiff Intervenors’ Joint Objections to MOO on Interim Access without prejudice and the Court’s unwillingness to disrupt settlement
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discussions and argue that Plaintiff Intervenors have failed to demonstrate that the direction of this case has changed.6 In other words, since the parties are working with Special Master Torgerson on a global settlement of this case, the case is still “nearing settlement;” and therefore, Plaintiff Intervenors’ Renewed Objection should again be denied without prejudice. Alternatively, the County Defendants contend that Magistrate Judge Torgerson correctly applied the doctrine of judicial estoppel, Judge Torgerson appropriately limited counsel’s monitoring role, and Judge Torgerson rightly denied Plaintiff Intervenors access to the requested documents.
The Court recognizes that it could deny the Renewed Objection without prejudice because there are ongoing settlement discussions facilitated by Special Master Torgerson. However, given the long history and the complex nature of this case, the Court finds it more appropriate to rule on the specific request for documents in the Renewed Objection even though the Court will decline to set aside Judge Torgerson’s MOO. Moreover, to facilitate a final settlement of this lawsuit, to correct a misconception of the role of the Rule 706 experts, and to clarify the appropriate limits of the self-critical analysis privilege, the Court will address important aspects of the Renewed Objection. II. ANALYSIS
A. ROLE OF RULE 706 EXPERTS Under Rule 706, a court may appoint an expert on its own motion or on motion of a party. Fed. R. Evid. 706(a). The Rule 706 expert must 1) advise the parties of any findings the expert makes; 2) submit to a deposition if requested; 3) testify if called by the court or any party; and 4) submit to cross examination by any party. Fed. R. Evid. 706 (b)(1)-(4). The rule does not preclude a party from calling its own experts. Fed. R. Evid. 706 (e). Logically, if a party may
6 See MEMORANDUM OPINION AND ORDER OVERRULING OBJECTION TO MAGISTRATE JUDGE’S ORDER (Doc. No. 1009).
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depose or cross examine a Rule 706 expert, that party would be entitled to any non-privileged documents supporting the expert’s opinions.
More importantly, the purpose of Rule 706 is to assist the court in evaluating contradictory or complex evidence or issues. It is not designed to aid a party’s prosecution of his own case. Griffin v. Perry, No. 04 CV 654 MCA/WDS, 2008 WL 8097279, * 2 (D.N.M. Mar. 10, 2004) (unreported decision) (emphasis added) (citing 4 Weinstein's Federal Evidence § 706.02[3] (2d Ed. 2007) (stating that a court has discretion to appoint an expert of its choosing “in exceptional cases that present unwieldy, complex, or technical issues” or when “there is a need for an impartial, independent assessment of a disputed issue.”)). The policy goal of Rule 706 is to promote accurate fact finding. 29 Charles Alan Wright & Victor James Gold, Fed. Prac. & Proc. Evid. § 6304 (1st ed. 1997). In sum, Rule 706 experts help courts with complex and unwieldy fact finding; Rule 706 experts do not displace the role of counsel as advocates. Hence, the Court finds that the existence of the highly qualified Rule 706 experts in this case does not preclude Plaintiff Intervenors from acquiring information relevant to their case and from continuing to monitor conditions at MDC.
B. EVALUATING THE EXPERTS’ REPORTS Throughout the pendency of this case, Plaintiffs and Plaintiff Intervenors have sought to discover internal quality assurance and mortality review reports generated within the Bernalillo County jail system. The Quality Reports, the Mortality Review Documents, and the Stellman Matrix contain information vital to the determination of whether the County Defendants are in compliance with the myriad orders in this case, among them the September 2014 Orders. Most recently, Dr. Metzner evaluated the conditions at MDC and submitted the July 2015 report. It is
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undisputed that Dr. Metzner reviewed the Quality Reports, the Mortality Review Documents, and the Stellman Matrix to aid in preparing his July 2015 Report.
The September 2014 Order applicable to Dr. Metzner’s evaluation of the MDC, the ORDER INSTRUCTING COURT-APPOINTED MENTAL HEALTH EXPERT JEFFREY METZNER, M.D. TO EVALUATE MENTAL HEALTH SERVICES AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1169) (Metzner Order), requires Dr. Metzner to evaluate the quality of care given to inmates who have mental health illness or disabilities. Specifically, Dr. Metzner must evaluate: (1) whether MDC personnel properly screen and assess inmates for mental health needs (Id. pp. 2–7); (2) whether MDC provides appropriate treatment plans for those inmates who require mental health treatment (Id. pp. 7–11); (3) whether MDC properly treats, houses, and monitors suicidal inmates (Id. pp. 12– 13); (4) whether MDC trains its personnel to appropriately handle inmates with mental health illness, including training its personnel in suicide prevention (Id. pp. 13–14); (5) whether MDC appropriately uses restraints on inmates with mental illness (Id. pp. 14–15); (6) whether MDC maintains sufficient staff to treat subclass members (Id. pp. 16–17); and (7) whether MDC has developed and implemented “policies and procedures that create an adequate quality management system to review suicide and self-injurious behaviors, morbidity and mortality and implementation of its mental health policies and procedures and implemented appropriate corrective action to prevent or minimize future harm to inmates.” (Id. pp. 17–20).
Dr. Metzner’s findings of compliance, partial compliance, or non-compliance, are extremely valuable to both the parties and the Court especially with regard to reaching a conclusion to this twenty-year long litigation. Plaintiff Intervenors argue convincingly that the Quality Reports, the Mortality Review Documents, and the Stellman Matrix contain information
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relevant to their evaluation of Dr. Metzner’s conclusions. To agree on a timetable for ending this lawsuit, both sides must have confidence that Dr. Metzner’s findings are based on valid and accurate information.
County Defendants argue that Plaintiff Intervenors do not need these internally generated documents because they have access to the “source documents,” i.e. medical files, provided at each monitoring visit as outlined in the Interim Order Regarding Access to the MDC. The Quality Reports, the Mortality Review Documents, and the Stellman Matrix cannot be engineered from the “source” documents given to counsel during monitoring visits because they are based on compiled information about medical care given to all inmates. In contrast, monitoring attorneys are given only a limited number of documents at each monitoring visit.
County Defendants also maintain that Plaintiff Intervenors have not shown that the experts are being given inaccurate or invalid information from MDC personnel. However, County Defendants fail to explain how Plaintiff Intervenors can show whether or not officials at MDC are providing a complete picture to Dr. Metzner unless the information given to Dr. Metzner s reviewable by subclass counsel in the first place. Moreover, Plaintiff Intervenors must be able to question the Rule 706 experts’ findings, just as they would an expert proffered by Defendants. In sum, County Defendants fail to convince the Court that Plaintiff Intervenors do not need the requested documents.
G. SELF-CRITICAL ANALYSIS PRIVILEGE County Defendants argue that the Court should deny Plaintiff Intervenors’ request for the documents because the self-critical analysis privilege protects these documents from disclosure. Rule of Evidence 501 allows federal courts to recognize privileges: “The common law—as interpreted by United States courts in light of reason and experience—governs a claim of
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privilege . . .” Fed. R. Evid. 501. The privilege has been applied almost exclusively in medical malpractice cases involving reports prepared by peer review committees in hospitals and medical clinics. See e.g. Balk v. Dunlap, 163 F.R.D. 360, 363 (D. Kan. 1995) (finding minutes of OB/GYN meeting called to discuss the quality of patient care protected under Kansas medical peer review statutes in diversity medical malpractice case). “Because of this unique role in preserving the public health, medical morbidity and mortality reviews must be distinguished from other peer review cases.” Weekoty, 30 F. Supp. 2d 1343, 1345 (D.N.M. 1999) (recognizing privilege in malpractice suit against Indian Health Services Clinic). Under Rule 501, an evidentiary privilege should not be recognized or applied unless it “promotes sufficiently important interests that outweigh the need for probative evidence.” See id. at 1347 (finding that because 46 states had self-critical analysis privilege in medical review context, application of the privilege made sense in federal court in same types of cases).7 In general, the self-critical analysis privilege is not available unless the information sought is “intended to help the medical staff improve patient care and avoid errors in medical treatment.” Aragon v. National Home Healthcare, Inc., 99 CV 628 JP/LFG, ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DISCOVERY (Doc. No. 61) (D.N.M. Mar. 14, 2000) (Garcia, M.J.) (unpublished) (diversity case against health care company). For example, the privilege has not been applied to internal affairs records in civil rights cases against police officers. Bauer v. City of Albuquerque, No. 00 CV 110 JEC/KBM, ORDER AS TO MATERIALS SUBMITTED IN CAMERA (Doc. No. 44) (D.N.M. Oct. 31, 2000) (Molzen, M.J.) (unpublished) (§ 1983 case involving internal investigation files of police officer). And, like any other privilege, this privilege can be waived if the information is produced to third parties. Id.
7 New Mexico, like a majority of states, has recognized a self-critical analysis privilege in the medical context. See NMSA 1978 § 41-9-5 (precluding any party from using the confidential records of medical peer review proceedings in civil litigation).
12

Case 6:95-cv-00024-JAP-KBM Document 1207 Filed 10/13/15 Page 13 of 15
Bravo v. Board of Commissioners for the County of Dona Ana is instructive. In Bravo, Chief Magistrate Judge Molzen held that the privilege was not designed to protect internal review documents prepared by a prison’s medical provider. Case No. 08 CV 0010 WJ/KBM, MEMORANDUM OPINION AND ORDER (Doc. No. 214) (D.N.M. Nov. 24, 2009) at 6 (unpublished). Magistrate Judge Molzen also found that by providing and discussing the findings of a peer review committee with staff at the prison, the medical provider had waived any privilege. Id. at 5. “[T]he majority of federal courts recognizing the self-critical analysis privilege do so in limited contexts. For instance, the cases cited by . . . the Weekoty court . . . only apply the self-critical analysis privilege in the hospital setting, and not in jails, prisons, detention facilities, or the like.” Id.
Chief Magistrate Judge Molzen agreed with the reasoning of the Ninth Circuit Court of Appeals in Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005). In Agster, the parents of a prison inmate who died while in custody sought mortality review documents prepared by CHS, but CHS asserted the self-critical analysis privilege. Id. at 838. In upholding the denial of the privilege, the Ninth Circuit reasoned:
Whereas in the ordinary hospital setting it may be that the first object of all involved in patient care is the welfare of the patient, in the prison context the safety and efficiency of the prison may operate as goals affecting the care offered. . . . [I]t is particularly important that the public have access to the assessment by peers of the care provided. Given the demands for public accountability . . ., we are not convinced by the County’s argument that such reviews will cease unless kept confidential by a federal peer review privilege. Accordingly, we are unwilling to create the privilege in this case. Id. at 839. See also Grabow v. County of Macomb, Case No. 12-10105, 2013 WL 3354505, *6 (E.D. Mich. July 3, 2013) (holding that self-critical analysis privilege may not be asserted in § 1983 cases because federal law does not recognize this privilege and requiring CMS to produce mortality review of plaintiff’s decedent’s suicide).
13

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In addition, courts in prison and jail conditions cases have not been persuaded by the argument that without the privilege, review committees would not be as effective. “Given the demands for public accountability [in cases involving the death of an inmate], which seem likely to guarantee that such reviews take place whether they are privileged or not, we are not convinced by the County’s argument that such reviews will cease unless kept confidential by a federal peer review privilege.” Johnson v. Cook County, No. 15 C 741, 2015 WL 5144365, *4 (N.D. Ill. Aug. 31, 2015) (slip op.) (citing Agster, 422 F.3d at 839).
As these cases illustrate, the documents sought by Plaintiff Intervenors are not protected by the self-critical analysis privilege. But, even if this type of privilege were applicable, the documents are discoverable because MDC waived its privilege when it provided the documents to MDC personnel and to the Court’s experts.
IT IS THEREFORE ORDERED that the PLAINTIFF-INTERVENORS’ RENEWED OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 1189) is granted in part:
1. By October 20, 2015, County Defendants must provide to Plaintiff Intervenors copies of all documents given to Dr. Metzner prior to and in connection with the preparation of his July 2015 Report including the Quality Reports, the Mortality Review Documents, and the Stellman Matrix.
2. County Defendants must provide to Plaintiff Intervenors copies of all future Quality Reports, Mortality Review Documents, and Stellman Matrixes at the same time they are given to Dr. Metzner.
14

Case 6:95-cv-00024-JAP-KBM Document 1207 Filed 10/13/15 Page 15 of 15 3. Before the County Defendants produce the documents, County Defendants and
Plaintiff Intervenors must execute a Stipulated Confidentiality Order in a form similar to the STIPULATED CONFIDENTIALITY ORDER (Doc. No. 1093).
SENIOR UNITED STATES DISTRICT JUDGE
15

 
 Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 1 of 25

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

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
VS.
CITY OF ALBUQUERQUE, et al., Defendants.
vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

MATTHEW J. DYKMAN
CLERK No. CV 95-24 JAP/KBM

ORDER INSTRUCTING COURT-APPOINTED MENTAL HEALTH EXPERT JEFFREY METZNER, M.D. TO EVALUATE MENTAL HEALTH SERVICES AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER
1. This action was commenced on January I0, 1995 by Plaintiffs on behalf of all persons who are or who will be confined at the Bernalillo County Detention Center.
2. Plaintiffs alleged in their complaint that conditions at the Bernalillo County Detention Center violated the United States Constitution, the statutory laws of the United States, the New Mexico Constitution, and the statutory laws of the State of New Mexico. Plaintiffs sought Declaratory and Injunctive Relief on behalf of the class.
3. After the suit was filed, a group of individuals with mental and/or developmental disabilities who are or will be confined at the Bernalillo County Detention Center intervened

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 2 of 25
("Plaintiff-Intervenors"). [Doc. No. 113}. The Court granted Plaintiff-Intervenors permission to intervene on October 26, 1995. fDoc. No. 137}.
4. The Bernalillo County Detention Center was located in downtown Albuquerque, and is no longer used for the incarceration of Plaintiff or Plaintiff-Intervenors. The inmates in the Plaintiff class and Plaintiff-Intervenor subclass are now housed at the Metropolitan Detention Center ("MDC") located at 100 Deputy Dean Miera Dr., SW, Albuquerque, NM 87151.
5. On July 11, 2003, the Court entered an order, clarifYing the class and sub-class to include inmates incarcerated at the MDC. [Doc. No. 416}.
6. On December 7, 2011 the Court appointed Jeffrey Metzner, M.D. as the Court's expert to continue his evaluation of the mental health services provided at MDC. [Doc. No. 909}.
7. Pursuant to the December 7, 2011 Order, the Court directed Dr. Metzner "to evaluate whether MDC is in compliance with the standards described in the Plaintiff Intervenors' SSA (that currently are applicable) regarding mental health care services at MDC. In making his evaluation, Dr. Metzner may confer with Dr. Roberta Stellman, who has recently evaluated and monitored the mental health care services at MDC." [Doc. No. 909, pp. 2-3}.
8. To ensure compliance with this Court's orders, Dr. Metzner will evaluate Defendants' compliance with the provisions of the Court's extant orders. Those provisions include the following:
A. Screening and Assessment 1) Whether MDC has developed and implemented policies and 2

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 3 of 25
procedures for appropriate screening and assessments of inmates with serious mental health needs. 2) Whether MDC has developed and implemented an appropriate screenmg instrument that identifies mental health needs and ensures timely access to a mental health professional when inmates present symptoms requiring such care. 3) Whether MDC screens all inmates with Qualified Medical Staff upon booking at MDC, but no later than four (4) hours after booking, to identity the inmate's risk for suicide or self-injurious behavior. 4) Whether MDC's Qualified Medical Staff conducting intake screening receive adequate training on identifYing and assessing suicide risk, are assigned appropriate tasks and guidance, and properly conduct intake screening. 5) Whether MDC Qualified Medical Staff, based on the screening, develop and implement an acuity system or triage scheme (Pl, P2, or P3) to ensure that inmates with immediate mental health needs are prioritized for services. 6) Whether MDC provides "sufficient psychiatric services to assure that a psychiatrist will evaluate no later than the business day after a resident's admission, any resident who: I) reports being on any
3

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psychoactive medication when taken into custody, 2) requests any psychoactive medication or other psychiatric service, or 3) has been identified by any mental health or health professional at the jail as appropriate for a psychiatric assessment." [Doc. No. 256, III(C)(l-3)]. a) Whether MDC provides adequate and timely psychiatric
services to assess any inmate who: (I) reports being on any psychiatric medication when
taken into custody, (2) requests any psychiatric medication or other
psychiatric service, or (3) has been identified by any mental health or health
professional at the jail as appropriate for a psychiatric assessment. b) Whether a psychiatrist assesses (no later than the business day after an inmate's admission) any inmate who: (I) reports being on any psychiatric medication when taken into custody, (2) requests any psychiatric medication or other psychiatric service, or (3) has been identified by any mental health or health
4

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 5 of 25
professional at the jail as appropriate for a psychiatric assessment. 7) Whether MDC implements policies and procedures, commensurate with the level of risk of suicide or self-harm, that ensure that inmates are protected from identifiable risks for suicide or selfinjurious behavior. 8) Whether MDC's policies and procedures require that a Qualified Mental Health Professional performs a mental health assessment within the prescribed period of time, based on the inmate's risk. 9) Whether MDC security staff monitors inmates who are presumed to be of moderate or high risk of suicide or self-harm with constant supervision until the inmate is seen by a Qualified Mental Health Professional for assessment, and thereafter on the schedule chosen by the Mental Health Professional. 10) Whether MDC conducts appropriate mental health assessments within the follov.ing periods from the initial screen: a) 14 days, or sooner, if medically necessary, for inmates classified as low risk (P3 ); b) 8 hours, or sooner, if medically necessary, for inmates classified as moderate risk (P2); and c) Immediately, but no later than four hours, for inmates
5

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 6 of 25
classified as high risk (PI). II) Whether MDC ensures that mental health assessments include the
assessment factors described below: a) Intake screening shall inquire as to the following:
(1) Current mental health conditions; (2) Current psychiatric medications; (3) Current suicidal ideation. threat. or plan; (4) Past suicidal ideation and/or attempts; (5) Prior mental health treatment or hospitalization; (6) Recent significant loss - such as the death of a
family member or close friend; (7) History of suicidal behavior by family members and
close friends; (8) Any reported observations of the transporting
officer, court. transferring agency, or similar individuals regarding the inmate's potential suicidal risk. 12) Whether MDC Qualified Mental Health Professionals complete all assessments, pursuant to generally accepted correctional standards of care. 13) Whether MDC Qualified Mental Health Professionals perform in-
6

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person mental health assessments no later than one working day following notification of any adverse triggering event (i.e., any suicide attempt, any suicide ideation, and any aggression to selfresulting in injury). 14) Whether MDC Mental Health Staff conduct in-person assessments of inmates before placing them on suicide watch, clinical seclusion, or segregation and on regular intervals thereafter, as clinically appropriate and defined by MDC policy. 15) Whether MDC houses seriously mentally ill inmates in general population without a written evaluation. [Doc. No. 106, p. 15}. 16) Whether MDC notifies its inmates, orally and in writing, that MDC provides mental health services. [Doc. No. 256, III(F)(3)} 17) Whether MDC notifies all residents of any area intended to provide mental health services, orally and in writing, of their rights and of the methods available to initiate a grievance regarding the possible violation of their rights. [Doc. No. 256, III(F)(3)]. B. Treatment plan. 1) Whether Defendants provide treatment plans consistent \vith prevailing professional standards for those inmates requiring a treatment plan. a) Whether treatment plans for inmates in specialized mental
7

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 8 of 25
health units are designed by an appropriate treatment team; and b) Whether the plans are reviewed periodically, ordinarily at least every 90 days, and at the request of the resident. 2) Whether MDC's policies and procedures ensure that adequate and timely treatment for inmates are continued and further developed for inmates whose assessments reveal serious mental health needs and/or suicidal ideation, including timely and appropriate referrals for specialty care and visits with Qualified Mental Health Professionals, as clinically appropriate. [Doc. No. 256, Ill(!)]. 3) Whether MDC's treatment plans adequately address inmates' serious mental health needs and whether the plans contain interventions specifically tailored to the inmates' diagnoses and problems. [Doc. No. 256, III(I)]. 4) Whether MDC makes available appropriate therapy services by a licensed mental health provider where medically necessary for inmates with serious mental health needs as ordered by their attending psychiatrist. 5) Whether MDC completes mental health evaluations as part of the disciplinary process and can demonstrate that the hearing officer incorporates those recommendations into the disciplinary process
8

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for determining whether an inmate's actions should be excused and, if not, for mitigation of sanctions if the inmate's behaviors were a result of a mental or developmental disability. [Doc. No. 256, IV(A)(l)]. 6) Whether MDC implemented an adequate scheduling system to ensure that mental health professionals assess inmates with mental illness as clinically appropriate, regardless of whether the inmate is prescribed medications. [Doc. No. 256. 111(1)]. 7) Whether MDC inmates have the opportunity to participate meaningfully in the development of a treatment plan. [Doc. No. 256, 111(!)}. 8) Whether MDC inmates receJve appropriate psychotropic medications in a timely manner. 9) Whether MDC's use of psychotropic medications is reviewed by a Qualified Mental Health Professional on a regular, timely basis. I 0) Whether MDC properly monitors and timely adjusts medications. 11) Whether MDC has established standards for the frequency of review and associated charting of psychotropic medication. 12) Whether a psychiatrist personally assesses every MDC inmate on psychiatric medication at least once every thirty days. [Doc. No. 256, III(C)].
9

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 10 of 25
a) With what frequency should a psychiatrist personally assess every MDC inmate on psychiatric medication who is not seriously mentally ill.
b) With what frequency should a psychiatrist personally assess every seriously mentally ill inmate.
13) Whether MDC's treatment of suicidal inmates involves more than segregation and close supervision (i.e., providing psychiatric therapy, regular counseling sessions, and follow-up care).
14) Whether MDC has housed MDC inmates on the PSU caseload outside of the MDC facility when the inmate has not requested the placement.
15) Whether MDC has housed MDC inmates on the PSU caseload, without the approval of a psychiatrist or psychologist. [Doc. No. 256, IV(A)}.
16) Whether Defendants have developed and implemented adequate formal procedures for seeking psychiatric hospitalization or other appropriate residential mental health care for residents who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement; whether. Defendants established formal policies and procedures requmng the initiation of civil commitment 10

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 11 of 25
proceedings whenever an individual diagnosed as having a mental or developmental disorder requests placement in a residential treatment or evaluation facility, assuming the court imposed conditions of confinement are consistent with such placement; and whether only a licensed and qualified psychiatrist makes the decision not to initiate civil commitment proceedings on behalf of any resident who requests placement in a psychiatric hospital or other residential treatment or evaluation facility 17) Whether Defendants have developed and implemented adequate formal procedures for seeking psychiatric hospitalization or other appropriate residential mental health care for inmates who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement. [Doc. No. 256, III(M)}. a) Whether MDC has sent an inmate to a psychiatric hospital
or other appropriate residential mental health care for inmates who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement. b) Whether MDC has the realistic option of sending an inmate to a psychiatric hospital or other appropriate residential
11

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 12 of 25
mental health care for inmates who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement. C. Suicide Precautions 1) Whether MDC's suicide prevention policies, procedures, and practices include provisions for constant direct supervlSlon of actively suicidal inmates, close superviSion of special needs inmates with lower levels of risk (e.g., 15 minute checks), and follow-up assessments after the suicide watch is discontinued. 2) Whether MDC inmates on suicide watch are monitored by security with constant direct supervision until a Qualified Mental Health Professional conducts a suicide risk assessment, determines the degree of risk, and specifies the appropriate degree of supervision. 3) Whether MDC security staff provide the amount of supervision specified by a Qualified Mental Health Professional and accurately document their well-being checks on forms that do not have preprinted times. 4) Whether MDC follows its policy of having a psychiatrist or psychologist evaluate all inmates placed on suicide precautions before they are removed from suicide watch, and whether MDC
12

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 13 of 25
assures that its policies are followed. 5) Whether MDC conducts all follow-up assessments on all inmates
discharged from suicide watch. 6) Whether MDC's policies and procedures for suicide precautions
set forth the conditions of the suicide watch, including a policy requiring an individual clinical determination of allowable clothing, property, and utensils. 7) Whether MDC's policies and procedures for suicide precautions prohibit a revision of the conditions of suicide watch except upon the written instruction of a Qualified Mental Health Professional, under emergent circumstances, or when security considerations reqmre. 8) Whether MDC has developed and implemented appropriate policies for the housing of suicidal inmates. 9) Whether MDC assures that its policies and procedures m paragraphs 1-8 are followed. D. Suicide Prevention Training Program I) Whether MDC's suicide prevention training program includes the following topics: a) suicide prevention policies and procedures; b) analysis of facility environments and why they may
13

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 14 of 25
contribute to suicidal behavior; c) potential predisposing factors to suicide; d) high-risk suicide periods; e) warning signs and symptoms of suicidal behavior; f) case studies of recent suicides and serious suicide attempts; g) differentiating suicidal and self-injurious behavior; h) mock demonstrations regarding the proper response to a
suicide attempt; and i) the proper use of emergency equipment 2) Whether all medical and mental health staffs are trained on the suicide screening portion of the mental health intake form and medical intake tool. 3) Whether all MDC staff who work directly with inmates have demonstrated competence in identifying and managing suicidal inmates and have shown comprehension of the training objectives via a performance measure tool such as a pre-and post-test. 4) Whether all security, medical, and mental health staff complete a minimum of four hours of in-service training annually regarding issues related to suicide prevention, to include training on updated policies, procedures, and techniques. 5) Whether all MDC security staff is certified in cardiopulmonary
14

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 15 of 25
resuscitation. 6) Whether an emergency rescue tool IS m close proximity to all
housing units. 7) Whether all staff coming into regular contact with inmates knows
the location of the emergency rescue tool and are trained in its use. E. Use of Clinical Restraints
1) Whether MDC policy requires written approval by a Qualified Medical or Mental Health Professional before the use of four point restraints on inmates with mental health needs or requiring suicide precautions, unless emergency security concerns dictate otherwise. [Doc. No. 256, III (N)&(J)].
2) Whether the MDC policy requires restrained inmates with mental health needs are monitored at least every 15 minutes by security staff to assess their physical condition. [Doc. No. 256, III (N)&(J)].
3) Whether the MDC policy requires Qualified Medical or Mental Health staff to complete documentation on the use of restraints, including the basis for and duration of the use of restraints and the performance and results of welfare checks on such restrained inmates. [Doc. No. 256, III (N)&(I)].
4) Whether MDC follows its clinical restraint policies. [Doc. No. 256, III (N)&(J)]. 15

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 16 of 25
F. Use of Security Four Point Restraints I) Whether MDC ensures that, in the event an emergency results in a four point restraint of an individual identified as having a psychiatric, neuropsychological or developmental disorder, a qualified mental health professional is notified immediately and personally assesses the appropriateness of the restraint and designs a plan to safely end the restraint as soon as possible.
G. Basic Mental Health Training I) Whether MDC provides adequate pre-service and annual in-service basic training to Qualified Medical and Mental Health Staff and security staff that addresses mental health needs. MDC will provide no less than forty (40) hours of specialized training. [Doc. No. 256, III (L)]. 2) Whether MDC provides adequate specialized training for all security staff working on specialized mental health units.
H. Mental Health Staffmg I) Whether the caseload for psychiatrists treating MDC inmates exceeds I00 residents per FTE. [Doc. No. 256, III(C)}. a) What caseload allows psychiatrists treating MDC inmates to provide for adequate access to psychiatric care for inmates in need of such treatment. 16

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 17 of 25
b) Whether the current caseload for psychiatrists treating inmates provides for adequate access to psychiatric care for inmates in need of such treatment.
2) Whether MDC's mental health staffing is sufficient to provide all safety precautions (referencing suicide prevention and planned use of force), treatment, and services required by the Court's orders.
3) Whether MDC provides adequate care for inmates' serious mental health needs.
4) Whether MDC' s mental health staffing is sufficient to provide adequate care for inmates' serious mental health needs, consistent with generally accepted correctional mental health standards of care.
5) Whether MDC annually reviews staffing patterns based on data of time frames in which staff have completed necessary functions such as response to sick call requests, initial assessments, follow up contacts, and other essential clinical processes during the past year.
6) Whether there is evidence that MDC addressed staffmg needs whenever new programming was initiated.
I. Quality Assurance/Improvement [Doc. No. 256, III(KJI 1) Whether MDC developed and implemented policies and 17

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 18 of 25
procedures that create an adequate quality management system to review suicide and self-injurious behaviors, morbidity and mortality and implementation of its mental health policies and procedures and implemented appropriate corrective action to prevent or minimize future harm to inmates. 2) Whether MDC developed and implemented a Suicide Prevention Committee that reviews individual and system data about triggers and thresholds, and determines whether these data indicate trends either for individuals or for the adequacy of treatment and suicide prevention overall. 3) Whether MDC's Quality Improvement Committee: a) Includes the Medical Director, the Psychiatric and
Behavioral Health Directors, related clinical disciplines, Jail Director or the Assistant Chief of Operations, and the Health Services Administrator; b) Conducts analyses of the mental health processes and makes recommendations on changes and corrective actions; c) Provides oversight of the implementation of mental health policies, procedures, guidelines and support plans; d) Reviews policies, training, and staffing levels; e) Monitors implementation of recommendations and
18

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 19 of 25
corrective actions; f) Reports its findings and recommendations to appropriate
County officials periodically; and g) Refers appropriate incidents to the Morbidity/Mortality
Committee for review, as necessary. 4) Whether MDC's Morbidity/Mortality Committee reviews suicides,
serious suicide attempts, all other deaths of people committed to the custody of the MDC, and other sentinel events occurring at MDC in order to improve care on a jail-wide basis. a) Whether MDC's Morbidity and Mortality Review
Committee conducts an interdisciplinary review, consisting of members of the correctional, medical, and mental health staffs, of all deaths of people housed at MDC, senous suicide attempts and other sentinel events. b) Whether MDC's Morbidity and Mortality Review Committee's inquiry includes: (I) circumstances surrounding the incident; (2) facility procedures relevant to the incident; c) All relevant training received by involved staff; d) Pertinent medical and mental health services/reports involving the victim;
19

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 20 of 25
e) Possible precipitating factors leading to the event; f) Recommendations, if any, for changes to policy, training,
physical plant, medical or mental health services, and operational procedures; and g) Tracking of whether MDC implements recommendations and, if so, when. 5) Whether the review team, when appropriate, develops a written plan (and timetable) to address areas that require corrective action. 6) Whether MDC's Mortality Committee or Suicide Prevention Committee (for review of morbidity only) conducts a preliminary mortality or morbidity review within 30 days of each suicide or senous suicide attempt (e.g., those incidents requmng hospitalization for medical treatment). 7) Whether Mortality Committee or Suicide Prevention Committee's preliminary report of any mortality review is completed within 30 days of each suicide or serious suicide attempt. 8) Whether MDC completes a final mortality review report within 30 days after the pathological examinations are complete. J. Other Matters
20

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 21 of 25
1) Whether any individual who has been identified as having a psychiatric, neuropsychological or developmental disorder who was subjected to a, Taser, pepper gas, mace or other chemical agent is assessed by a mental health professional and the circumstances of the event is included in the resident's mental health file.
2) Whether Defendants have developed an adequate plan to implement an effective jail diversion program for persons with psychiatric or developmental disabilities. [Doc. No. 319 at 6 ~ 4}.
3) Whether Defendants developed, in consultation with Dr. Metzner, a plan for the provision of specialized mental health treatment for both female and male residents who are segregated. May 22, 2013 "Order Resolving Order to Show Cause," [Doc. No. 1004}.
With respect to each of the questions asked in paragraph 8, Dr. Metzner will report to the Court and the parties, in writing, whether MDC is in compliance, partial compliance, or noncompliance. Whenever feasible, Dr. Metzner should present his findings in a quantifiable manner, such as numerically or as a percentage.
9. If Dr. Metzner determines that MDC has met a standard set forth in paragraph 8 of this Order, Dr. Metzner will determine, when practicable, the date when compliance began.
10. To assist the Court with its determination as to whether MDC is providing constitutionally adequate mental health care, Dr. Metzner will determine the following:
21

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 22 of 25
A. Whether the mental health care provided by MDC to its inmates evidences repeated examples of negligent acts;
B. Whether the conduct of MDC mental health staff effectively denies inmates access to adequate mental health care;
C. Whether there are systematic deficiencies in staffing, facilities, equipment, or procedures; and
D. Whether the inmate population is effectively denied access to adequate mental health care.
11. To assist the Court to determine whether the Defendants are complying with the Americans with Disabilities Act, Dr. Metzner will determine: A. Whether the Defendants have made the modifications to their policies, procedures and practices that are necessary to provide to sub class members mental health care which is adequate. B. Whether sufficient communication occurs between MDC administration and treating mental health care professionals regarding an inmate's significant mental health needs that must be considered in classification and housing decisions in order to preserve the health and safety of that inmate, other inmates, or staff; C. Whether MDC security staff is adequately advised of inmates' special mental health needs that may affect housing, work, program assignments, disciplinary measures, and admissions to and transfers from institutions. 22

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 23 of 25
D. Whether mental health care and security staff communicate sufficiently about inmates with special needs conditions.
E. Whether MDC follows a proactive program which provides care for special needs patients who require close mental health supervision or multidisciplinary care.
F. Whether individual mental health treatment plans are developed by a psychiatrist or other qualified clinician at the time the condition is identified and updated when warranted.
G. Whether the mental health treatment plan includes, at a minimum: I) The frequency of follow-up for mental health evaluation and adjustment of treatment modality; 2) The type and frequency of diagnostic testing and therapeutic regimens; and 3) When appropriate, instructions about diet, exercise, adaptation to the correctional environment, and medication.
With respect to each of the above questions, Dr. Metzner will notifY the Court and the parties whether MDC is in compliance, partial compliance, or non-compliance. Whenever feasible, Dr. Metzner should set forth his findings in a quantifiable way, such as numerically or as a percentage.
12. If Dr. Metzner determines that MDC has complied with the provisions set forth in paragraph II of this Order, Dr. Metzner will determine, when practicable, the date when
23

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 24 of 25
compliance began. 13. For the purpose of preparing a report to this Court and the parties, Dr. Metzner
will visit MDC and complete an evaluation of the mental health services provided to MDC class and sub-class members. Within six (6) months of the filing of this Order, Dr. Metzner will submit an initial report of his findings and conclusions, in writing, to the Court and to the parties.
IT IS SO ORDERED. onorable James A. Parker OR UNITED STATES DISTRICT JUDGE
24

Case 6:95-cv-00024-JAP-SCY Document 1169 Filed 09/23/14 Page 25 of 25

APPROVED:
RmdyA~
Attorney for County Defendants
~·-.
Attorney for Plaintiffs
Special Master

Luis Robles Marcus J. Rae!, Jr. Attorney for County Defendants
Jeffrey L. Baker Attorney for County Defendants
P;t;, Uw
Peter Cubra Attorney for Plaintiff-Intervenors
{{ft;Z{;(~~·jc~
Nan y L. Si ons Attorney for Plaintiff-Intervenors

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IN THE UNITED STATES DTSTrufTf~6ili) ltllfTED STATES DIS fRlCT COt~T DISfRICf Oc NEW MEXICO FOR THE DISTRICT OF NEW MEXICO % NOV -5 PM 2: 00

JIMMY (BILLY) MCCLENDON, eta!.,

Plaintiffs,

vs.

No. CV 95-24 MV/DJS

CITY OF ALBUQUERQUE, et a!.,

Defendants

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,

Plaintiff Intervenors.

ORDER

TIDS MATTER comes before the Court by agreement of the parties pursuant to 18 U.S. C.

3626 (a)(l), and, being fully advised in the premises;

THE COURT FINDS, based on the Court's inspections of the jail on August 10, 1995 and

January 19, 1996; the evidence presented at the hearing on August 11, 1995; the Court's fmdings

of March 22, 1996 and March 25, 1996; other information obtained by the court in status

conferences and from defendants' formal reports to the court; the stipulations of the parties and

the entire record of this case, that violations of one or more federal rights of subclass members

have occurred at BCDC.

THE COURT FURTHER FINDS that defendants have already begun steps to remedy the

problems at BCDC and that it is in the best interests of the defendants, the plaintiff intervenors,

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and of the public for this settlement agreement to be entered at this time, without the expense and distraction of further litigation.
THE COURT ALSO FINDS that the settlement agreement is proper and that the relief set forth in the settlement agreement:
(1) is narrowly drawn; (2) extends no further than necessary to correct the violations of the federal rights of
subclass members; (3) is appropriately designed to ensure the provision of reasonable accommodations
to subclass members; (4) is the least intrusive means necessary to correct the violations of the federal rights
of subclass members; and (5) will have no adverse impact on the public safety or the operation of the criminal
- justice system.
WHEREFORE, IT IS HEREBY ORDERED that the parties shall implement the following settlement agreement forthwith. The parties shall also provide notice to subclass members as required by Rule 23 of the Federal Rules of Civil Procedure and assist the Court in the scheduling of a fairness hearing as soon as is practicable.
SETTLW"ENTAGREEMENTBET~
PLAINTIFF INTERVENORS AND DEFENDANTS I. BACKGROUND
On January 10, 1995, a class action lawsuit was filed in this Court on behalf of all present and future residents of the Bernalillo County Detention Center.

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The Complaint alleged, inter alia, the following violations of the constitutional rights of the residents: the totality of conditions at BCDC violate the Constitution (Complaint p. 9); that severe overcrowding violates the Constitution (pp. 9-10); inadequate security endangers the lives of residents (pp. 10-12); severe under staffmg causes unnecessary threats to residents' safety (p. 12); residents are subjected to unlawful levels of idleness (p. 12); inadequate medical and dental services are provided (p. 13); Defendants fail to provide proper psychological and rehabilitative services (p. 14); Defendants punish groups of inmates for the behavior of individuals (p.14); a deficient discipline process denies Due Process (p. 15); widespread physical and other abuse occurs (pp. 15-17); investigative practices condone abuse (pp. 16-19); access to counsel is denied (p. 17); disciplinary procedures are inadequate (p. 19); screening and training of staff is inadequate (p. 20); and effective access to the courts is not provided (p. 22, 42, 45, 46). The original Plaintiffs moved for a Preliminary Injunction on February 16, 1995. On August 11, 1995 the Court held a hearing on the Preliminary Injunction motion and, on August 23, 1995, the Court, without fmding any constitutional or statutory violations, entered a Preliminary Injunction. Among other things, the Preliminary Injunction required the Defendants to reduce the jail population according to a schedule and to house residents with psychological impairments separately from the general population of the jail until a qualified mental health professional issued a written report stating a resident with a psychological impairment could safely live in general population.
On September 6, 1995, lawyers working for the New Mexico Protection & Advocacy System and the American Civil Liberties Union filed a Motion to Intervene in this action on behalf of a proposed subclass of all present and future residents of BCDC with mental and/or

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developmental disabilities and served upon the Defendants and the original Plaintiffs a Complaint in Intervention. On September 7, 1995 the Defendants and original Plaintiffs entered into a Settlement Agreement, which the Court approved and ordered implemented, which converted the Preliminary Injunction to a Permanent Injunction and, among other things, requires Defendants to comply with their policies regarding medical, dental and psychological services and access to a "reasonably current" law library. On October 26, 1995 the Court entered an Order granting "limited intervention" to the Plaintiff Intervenors. The intervention is limited to matters "before the court by virtue of the original Plaintiffs' Complaint." October 26, 1995 Order at p. 1.
On November 22, 1995 Plaintiff Intervenors filed an Amended Complaint in Intervention on behalf of the proposed subclass. That Amended Complaint alleges, inter alia, discrimination by Defendants against people with mental or developmental disabilities in violation of the Americans With Disabilities Act and § 504 of the Rehabilitation Act (Claims 1 and 2); denial by Defendants of the substantive due process rights guaranteed by the Fourteenth Amendment of the U.S. Constitution (Claim 3); violations by Defendants of female subclass members' right to Equal Protection (Claim 4); violation by Defendants of the right of subclass members to Equal Protection based upon their mental disabilities (claim 5); violation by defendants of the right of subclass members to procedural Due Process (claim 6); violations by Defendants of the First, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution with respect to subclass members' right to meaningful and effective access to the courts (Claim 7); and violations of the Eighth Amendment prohibition against cruel and unusual punishment (Claim 8).
Defendants answered the Amended Complaint in Intervention on February 20, 1996, disputing the allegations therein. Defendants did not oppose Plaintiff-Intervenors' Motion to

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Certify a Sub-Class of all persons with mental and/or developmental disabilities who are, or in the future may be, detained at the Bernalillo County Detention Center (BCDC), and the Court has approved such a sub-class. On March 22, 1996 and March 25, 1996 the Court entered further orders regarding overcrowding and the use of temporary facilities to house residents. On March 25, 1996 Plaintiff Intervenors filed a Motion for an Order to Show Cause and for Further Relief. Defendants sought, and obtained from a Circuit Court Judge, a stay of the part of the Court's Orders which required advance notice and an opportunity by counsel for the Plaintiffs and Plaintiff Intervenors to inspect any additional temporary facilities prior to housing BCDC residents therein. Defendants responded to the Motion on March 27, 1996 and April 8, 1996. An appeal is pending in the Tenth Circuit Court of Appeals .
On April 26, 1996, Congress passed, and the President signed, the Prison Litigation Reform Act of 1995, 18 U.S.C. §3626. By its terms, the Act applies to all claims for "prospective relief' (as that term is defined in the Act), including relief granted prior to enactment of the Act. On September 13, 1996 Defendants filed a Motion for Immediate Termination of Prospective Relief Regarding Overpopulation Granted or Approved By the Court's Orders Dated August 23, 1995, September 7, 1995 and March 22 and March 25, 1996. That motion is pending.
II, GENERAL PROVISIONS The parties have determined that it is in their mutual interest to resolve the Plaintiff-
Intervenors' Complaint-in-Intervention. In recognition of the limited financial resources of the Defendants, the unpredictability of the population at the detention facilities operated by Defendants, the unpredictability of the numbers of residents with mental and/or developmental
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disabilities and the uncertainty of the impact of reductions in population at the BCDC main facility and the opening and expansion of additional facilities, the parties are adopting a flexible approach to addressing the concerns raised by Plaintiff Intervenors. Both parties recognize that this agreement may require tailoring in the future to address unanticipated circumstances. However, · it is expressly agreed that no modifications or amendments to this Settlement Agreement may reduce the benefits to people with mental or developmental disabilities which are provided for in this Settlement Agreement unless agreed to in writing by the parties, or unless ordered by the Court.
A. Whenever the words "individual," "resident," "person," "inmate," (or their plural form) appear in this settlement agreement, such word means members of the subclass of persons represented by counsel for Plaintiff-Intervenors. This Agreement is limited to members of the sub-class of persons represented by counsel for Plaintiff-Intervenors.
B. The parties recognize the City of Albuquerque operates the Bernalillo County Detention Center under a joint powers agreement with Bernalillo County. Pursuant to that joint powers agreement, the City of Albuquerque is responsible for all administrative and operational decisions regarding jail operations, including decisions regarding staff and programs.
C. In order to streamline the court pleadings, and in recognition of the fact the original complaint adopted a shotgun approach to naming people as Defendants, and in recognition of the fact the Plaintiff-Intervenors felt compelled to adopt the same caption which counsel for Plaintiffs had created, Plaintiff-Intervenors hereby agree to file a motion with the district court to dismiss from the Complaint-in-Intervention all Defendants other than the City of Albuquerque, the
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Bernalillo County Commissioners, in their official capacities, the Mayor, in his official capacity, and the jail Director, in his official capacity.
D. The Defendants hereby agree to assure that the expert retained by Plaintiff Intervenors, Dr. Joel Dvoskin, shall have reasonable access to BCDC at least monthly during the next twelve months and that Dr. Dvoskin shall have unrestricted access to any area, any documents not protected by a recognized evidentiary privilege or by applicable confidentiality laws, and to mental health staff and other relevant staff. Defendants and their counsel shall be available to meet with Plaintiff lnjervenors' counsel and Dr. Dvoskin during each of his visits and shall work in good faith with them to substantially improve the mental health and related services provided to people with mental and/or developmental disabilities in Defendants' custody.
E. Defendants have entered into a contract with the University of New Mexico Health Sciences Center (UNMHSC) to take over the management and operation of mental health and related services at BCDC. The parties agree that this is the most desirable way to address many of the concerns raised by Plaintiff Intervenors. A copy of the contract is attached to this settlement agreement as Exhibit "1 ".
F. The parties agree that some residents are not afforded reasonable accommodations for their disabilities, that the Court is entitled to fmd that certain federal rights of sub-class members have been violated, and that the relief set forth in this settlement agreement is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right. The parties acknowledge the Court has given substantial weight to any adverse impact on public safety and

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the operation of the criminal justice system caused by the relief set forth in this settlement agreement.
UI. IMPROVEMENT OF MENTAL HEALTH AND HABILITATION SERYICES
A. Defendants shall hire or otherwise retain a manager for the psychiatric services unit and related mental health and developmental disability services at BCDC as soon as is practicable. The manager shall be a licensed and qualified mental health professional, with the ability to administer those services. The manager shall be on the job within sixty days of this Settlement Agreement.
B. Defendants shall continue to develop and promulgate within 90 days policies, procedures and standards of care with respect to mental health, developmental disability and related services which are consistent with prevailing professional standards. Defendants shall instruct UNMHSC to submit to Dr. Dvoskin all draft or proposed policies, procedures and standards of care for his review and comment. The parties shall convene a meeting between counsel, Dr. Dvoskin and appropriate mental health personnel from UNMHSC and administrative personnel from BCDC within 30 days of UNMHSC commencing the delivery of services at BCDC for the purpose of reviewing policies and procedures. Defendants shall in good faith, consider the advice of Dr. Dvoskin and incorporate his advice, to the extent appropriate, into the process of amending and/or frnalizing policies, procedures and standards of care.
C. Defendants shall increase the current number of mental health professionals providing mental health, developmental disability and related services to residents. The listing of staff in Exhibit A to the University of New Mexico contract, (attached as Exhibit "1") is an

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acceptable staffing level. If either party desires to change the UNMHSC staffing patterns, the parties will meet and confer, in good faith, to discuss appropriate changes to staffing patterns.
Defendants shall assure that professionally adequate hours of psychiatric services are provided each week to meet the needs of all individuals incarcerated by Defendants. The caseload for psychiatrists treating residents shall not exceed 100 residents per PTE. The UNMHSC contract is deemed to meet this requirement, based on the current number of residents presently identified as needing PSU services. Defendants shall provide sufficient psychiatric services to assure that a psychiatrist will evaluate no later than the business day after a resident's admission, any resident who: 1) reports being on any psychoactive medication when taken into custody, 2) requests any psychoactive medication or other psychiatric service, or 3) has been identified by any mental health or health professional at the jail as appropriate for a psychiatric assessment. Defendants shall also assure that a psychiatrist shall personally assess every resident on psychoactive medication at least once every thirty days and that all psychiatric care is consistent with prevailing professional standards.
Defendants shall provide competent psychiatric nursing for at least sixteen hours each day.
D. The parties agree to meet together with Dr. Dvoskin and representatives of UNMHSC no later than March 1, 1997 to discuss professional staffing and the necessity, if any, to alter the staffing numbers contained in the UNMHSC contract (Exhibit "1 ").
E. Defendants shall improve their practices regarding the assessment and evaluation of people suspected of having mental or developmental disabilities.

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1. Defendants shall provide or cause to be provided an adequate screening and triage process at booking which is supervised by a qualified mental health professional.
2. Defendants shall provide or cause to be provided professionally adequate evaluations during detention.
3. Defendants shall fund a program to provide appropriate court-sanctioned written competency evaluations prepared by a qualified mental health professional whenever the results of such evaluation could result in the release of a resident. It is recognized that this will be done outside the UNMHSC contract.
F. Defendants shall provide or cause to be provided adequate procedural due process regarding the delivery of mental health services.
1. In the absence of an emergency threatening the health or safety of any person or imminently threatening substantial property damage, no individual shall be required to be housed in an area designated as a mental health treatment setting without first affording the individual an opportunity to be heard by at least one qualified mental health professional and to present evidence or relevant information regarding why s/he should not be required to be housed in such an area.
2. Whenever an individual housed in an area designated as a mental health care setting requests release from that setting, one or more qualified mental health professionals shall meet with the resident as soon as practicable, ordinarily within one business day, to consider the request, unless the individual is released from that setting upon his/her request.

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3. Defendants shall notify, or cause to be notified, all residents of any area intended to provide mental health services, orally and in writing, of their rights and of the methods available to initiate a grievance regarding the possible violation of their rights.
4. Defendants, through UNMHSC, shall comply with prevailing professional standards regarding informed consent to all mental health services, including but not limited to all medications.
G. Defendants shall develop, or cause to be developed, adequate protocols regarding suicide prevention. Formal procedures for screening, staff training and identifying people at risk and for the housing and oversight of people identified as at risk for suicide shall be implemented no later than February 1, 1997 .
H. Defendants shall provide, or cause to be provided, adequate mental health treatment to all residents requiring that care. Prompt access to a qualified mental health professional shall be provided to all residents experiencing a psychiatric or psychological crisis, regardless of the time of day. Sufficient numbers of residential beds shall be provided to assure adequate care for people in crisis. Adequate procedures shall be implemented to assure prompt access to medication when appropriate.
I. Defendants shall provide, or cause to be provided, treatment plans consistent with prevailing professional standards for those residents requiring a treatment plan. Treatment plans will be designed by an appropriate treatment team and reviewed periodically, ordinarily at least every 90 days, and at the request of the resident. A resident shall be afforded the opportunity to participate meaningfully in the development of a treatment plan.
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J. Defendants shall implement, or cause to be implemented, record keeping practices

regarding medication, evaluation, treatment planning, assessment and evaluation that are consistent with prevailing professional standards.

K. Defendants shall require UNMHSC to design an adequate quality assurance system

regarding psychiatric and other mental health and developmental disability services. The quality

assurance system shall be designed no later than February 1, 1997 and implemented promptly

thereafter.

1. Documents designed to assess the adequacy of the quality of such care shall

be generated on a regular basis and, upon request, copies provided to Dr. Dvoskin for assessment

and comment. until the quality assurance system is functioning in a manner consistent with

prevailing professional standards.

L. All security staff shall receive adequate training regarding the identification of

symptoms of mental or developmental disabilities and regarding appropriate methods for dealing

with residents with mental or developmental disabilities. Correctional officers who work in

detention levels 5 East and 6 East and any other units in which people with mental or

developmental disabilities are congregated shall receive specialized training to adequately prepare them for working with people with mental or developmental disabilities. The specialized training

shall be no less than 40 hours. Mental health professionals working at BCDC shall receive

adequate pre-service training and appropriate in-service training at least annually.

M. Defendants shall develop and implement, or cause to be developed and implemented,

adequate formal procedures for seeking psychiatric hospitalization or other appropriate residential

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mental health care for residents who need and would benefit from such care, and who are eligible

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for such placement, consistent with the court imposed conditions of their confmement. Defendants shall instruct UNMHSC to establish formal policies and procedures requiring the initiation of civil commitment proceedings whenever an individual diagnosed as having a mental or developmental disorder requests placement in a residential treatment or evaluation facility, assuming the court imposed conditions of confmement are consistent with such placement. Only a licensed and qualified psychiatrist may make a decision not to initiate civil commitment proceedings on behalf of any resident who requests placement in a psychiatric hospital or other residential treatment or evaluatiop facility.

N. Defendants shall develop and implement procedures limiting the restraint or seclusion of people with mental disabilities which are consistent with prevailing professional standards. No person who has been identified as having a psychiatric, neuropsychological or developmental disorder shall be subjected to restraint, except in an emergency, without prior authorization from a qualified mental health professional. In the event an emergency results in restraint of an individual identified as•having a psychiatric, neuropsychological or developmental disorder, a qualified mental health professional shall be notified immediately and shall personally assess the appropriateness of the restraint and design a plan to safely end the restraint as soon as possible.

I.

Whenever a person identified as having a mental or developmental disorder

is subjected to restraint or any other use of force, all correctional staff actually applying the

restraint or force shall report in writing the circumstances of the restraint or force. Any

correctional supervisor who authorizes the use of restraint or force against a person with a mental

or developmental disability shall also report in writing her or his analysis of the appropriateness

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of the restraint. Copies of those reports shall be provided to the manager of mental health services, the jail director and the quality assurance staff for review and any appropriate corrective actions. Evaluation and reporting with respect to the use of restraint shall always be included in the quality assurance system.
2. No individual who is restrained shall ever be subjected to mace, pepper gas, or other chemical agent, stun shields, tasers or any other aversive instrumentality while restrained. Any individual who has been identified as having a psychiatric, neuropsychological or developmental disorder who is subjected to a stun shield, taser, pepper gas, mace or other chemical agent, shall be assessed by a mental health professional and the circumstances of the event shall be included in the resident's mental health file.
3. Defendants shall only use the pro-straint chair in a fashion consistent with the manufacturers' recommendations. Metal restraints, including handcuffs, should only be used if the resident has broken free of soft restraints. Residents placed in the pro-straint chair will not be hand-cuffed or otherwise restrained behind the back of the chair. Specifically, handcuffs and other metal restraints shall not be used on a person placed in the chair, unless soft restraints are first used and the resident has broken free of these soft restraints. The Director or his designee will investigate modification to the pro-straint chair, and alternative forms of restraint. Each individual restrained in the chair shall have their wrists checked periodically, preferably at least every 20 minutes. Any time an individual is placed in the pro-straint chair the shift commander shall be notified immediately. Prior authorization by corrections officials at the level of Lieutenant or higher (or Sergeant if the Lieutenant is not physically present in the building) in the chain of command is required before use of the pro-straint chair. Written reports regarding use
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of the pro-straint chair shall be created in every instance of its use and the reports shall be reviewed by the jail director, the manager of mental health services and the quality assurance system. IV. OTHER MATTERS
A. Defendants shall provide appropriate procedural due process whenever an individual who has a mental or developmental disability is subjected to any disciplinary procedures .
1. No person receiving any form of mental health care or who has a mental or developmental disability may be subjected to punishment or a disciplinary hearing prior to a determination by the appropriate mental health professional that the individual is competent to participate in the disciplinary proceedings and that the individual does not have a defense or excuse based upon mental disability.
2. Disciplinary practices with respect to residents with mental or developmental disabilities shall be fair and shall reasonably accommodate their disability.
3. Defendants will not punish groups of residents for the behavior of individuals. Lockdowns for security purposes, of a duration no longer than necessary to ensure safety, are not punishment. Lockdowns of living units may not occur unless authorized by the jail director or his designees. Counsel for Plaintiff Intervenors and their agents shall be afforded reasonable access to BCDC and to the individuals who have been locked-down in order to investigate the circumstances of the lock down.
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B. Defendants shall provide an adequate system for investigating residents' allegations of abuse or mistreatment within the jail which is adequate and consistent with prevailing standards.
1. Adequate investigations by qualified investigators shall be initiated whenever a resident alleges abuse or mistreatment within the jail. The City's independent counsel shall receive notice of all written allegations of abuse or mistreatment made by any resident. and shall oversee the investigations, reporting his findings based upon the investigation. Reports regarding allegations of abuse or mistreatment shall be provided to quality assurance staff and reported on by the quality assurance system.
C. LAW LffiRARY: 1. Residents with mental or developmental disabilities shall receive reasonable
accommodations and assistance in order for them to have effective access to the judicial system to challenge the length or conditions of their confinement and in order for them to attack their sentences.
2. Counsel for Defendants and counsel for Plaintiff-Intervenors will meet and confer with BCDC law librarian Kevin Christison and the Westside jail librarian and the BCDC Director to come up with a program to accommodate the law library/court access needs of subclass members. If counsel cannot agree on such a program, they will seek the assistance of the Court in fashioning a suitable plan, which will be incorporated into this settlement agreement.
3. Because the abilities and needs of sub-class members vary widely, depending in part on their illness or disability, the parties recognize that a number of options and alternatives may be necessary to ensure adequate access to the courts for sub-class members.
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4. Whenever a mental health professional working at BCDC requests that a sub-class member receive access to the law library, such access will be provided within a reasonable amount of time, ordinarily within one or two working days. In the event a resident with a mental or developmental disability requests assistance, the librarian or other qualified staff member shall assist the resident to prepare an initial pleading regarding the length or conditions of confinement, or regarding the resident's conviction or sentence.
5. If a resident seeks assistance in preparing such a pleading, and the resident is already represented by an attorney, the librarian or other staff member shall contact the attorney to verify the attorney has no objection to the staff member providing such assistance.
D. Residents with mental or developmental disabilities shall be provided with medical care which is adequate and which is not less adequate than the medical care provided to other residents who do not have such disabilities.
E. Residents shall be released for day treatment or habilitation whenever appropriate. F. Defendants shall comply with the terms of this Settlement Agreement at all temporary and overflow facilities operated by Defendants. However, this Settlement Agreement shall not apply to any permanent facility opened after the opening of the interim facility on the Westside. G. Residents on the PSU caseload are not to be housed outside of the main BCDC facility unless the resident requests such placement, and a psychiatrist or psychologist concurs with such request.

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V. CONCLUSION OF THE LITIGATION The court shall retain continuing jurisdiction to review, modify and enforce this settlement
agreement. The parties will request status conferences with the court every six months and may submit brief written reports to the court prior to such conferences. The parties agree that this litigation should be concluded after Defendants have achieved substantial compliance with its provisions and maintain substantial compliance for a period of two years. Counsel for Plaintiff Intervenors may monitor the relevant conditions at BCDC and Defendants' compliance with this Settlement Agreement as is reilsonable and necessary until Defendants achieve substantial compliance with the Settlement Agreement. Thereafter, counsel for Plaintiff Intervenors shall only monitor specific complaints transmitted by individual subclass members and any allegations that subclass members are at risk for irreparable harm, so long as Defendants transmit in writing to Plaintiff Intervenors' counsel on a quarterly basis a written report which accurately documents: 1) the number of mental health staff positions authorized by Defendants, 2) the number of vacancies in those positions, 3) the mi'inber of hours worked each week by psychiatrists and 4) the findings of the quality assurance system. In the event Defendants fail to maintain substantial compliance, counsel for Plaintiff Intervenors shall resume full monitoring.
All provisions of this Settlement Agreement, except those requiring certain staffing levels and amounts of psychiatric services, shall be dissolved and the Court's Order adopting the Settlement Agreement and directing its implementation shall be vacated upon Defendants' Motion and either agreement by counsel for Plaintiff Intervenors or a finding by the Court that Defendants have achieved, and maintained for two years, substantial compliance with the terms of this Settlement Agreement.

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Plaintiff Intervenors are entitled to attorneys' fees, expenses and costs reasonably and

La Chief A mllllstrative Officer City of Albuquerque
Date: -~/0'---'--=~~~q'j_:__~_

Date:. _____L(_y_O.J--:z.[=:;---+(_!_q__LbL_

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Date:_ ___:_0I_/-./_L-_.>_,.1~'--..C._/__ t __

THA VAZQUEZ OURT JUDGE

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AGREEMENT
THIS AGREEMENT, made and entered into this lst day of October, 1996, by and between the City of Albuquerque, New Mexico, a municipal corporation (hereinafter referred to as the "City"), and the Regents of the University of New Mexico for its public operation known as the Health Sciences Center, (hereinafter sometimes referred to as "UNMHSC" and sometimes referred to as "the Contractor").
WITNESSETH:
WHEREAS, the City desires to engage UNMHSC to render certain psychiatric and mental health services as specified in this Agreement to the Bernalillo County Detention Center (hereinafter referred to as "BCDC"), and
WHEREAS, UNMHSC is capable and willing to provide such services. NOW THEREFORE, in consideration of the premises and mutual obligations herein, the parties do mutually agree as follows: I. Statement of Purpose and Summary of Responsibilities. UNMHSC agrees to provide necessary and appropriate psychiatric and mental health clinical services for all BCDC residents. This Agreement addresses services provided to residents of BCDC while they are on site at the main BCDC facility. Nothing in this Agreement provides for the care of the residents at any hospital or other health care facility except as specifically described herein. Provision of psychiatric and mental health services will be in compliance with all American Correctional Association (hereinafter referred to as "ACA") standards regarding psychiatric services as they are now or hereinafter may be defined. The City will provide a copy of these standards to the Contractor 30 days prior to the effective date of this Agreement. The "effective date" is defined as that date, sixty (60) days after the date of this Agreement, at which time the Contractor will begin rendering services, and will be entitled to compensation for rendering such services. BCDC will provide security, pursuant to the standards for Adult Local Detention Facilities of the ACA. The City will provide a copy of these standards to the Contractor 30 days prior to the effective date of this Agreement.
EXHIBIT
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II. Scope of Services of UNMHSC.
1. Clinical services will include mental health screening, evaluation, treatment, crisis intervention, and referral by the Psychiatric Services Unit (PSU); UNMBSC will staff the PSU with employee positions identified in the addendum to this contract called Exhibit A, which is incorporated herein and made a part hereof.
2. UNMHSC will be responsible for the day to day operation and management of PSU, including intensive care units and suicide watch units. Management will include clinical supervision and treatment of these residents. One or more adequate numbers of corrections officers will be assigned to these units to assist the Contractor by providing security and observation.
3. Contractor's employees performing clinical mental health services will be duly licensed in the State of New Mexico. UNMHSC shall provide the City with verification of licensure, copies or verification of certification and/or registration for all mental health personnel employed by UNMSHC and assigned to BCDC under this Agreement.
4. The Contractor Will provide psychiatric coverage by a licensed psychiatrist as set forth in Exhibit B. UNMHSC will furnish BCDC with schedules for this coverage.
5. Employees identified in Exhibit A will be used to provide the maximum amount of coverage possible. Coverage will not be below minimum staffing. Minimum staffing is defined as a combination of BCDC and Contractor personnel equal to two persons per shift on site at the main BCDC facility. Shift coverage will be 24 hours per day, seven days per week
6. The Contractor will provide coverage for vacations, sicl< leave, overtime, conferences, training, educational leave, and staff vacancies as required. Such services will be rendered at no additional expense to the City.
7. The Contractor's employees will not all be on planned leave during the same period of time.
8. The Contractor will provide BCDC with a job description for each position identified in Exhibit A
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9. The Contractor will provide BCDC with monthly work schedules of all the Contractor's personnel assigned to BCDC.
10. The Contractor will designate, in writing, a staff person as the Nurse Manager of the PSU on a full-time basis, to be available on-site during normal working hours Monday through Friday, except holidays, annual leave, professional leave, and sick leave. The Contractor will delegate authority and responsibility to the Nurse Manager of PSU for day to day operations of PSU.
11. The Contractor, through the PSU Nurse Manager, will designate a clinical staff person in charge for each shift covered by this Agreement. The Contractor will notify BCDC of these assignments and/or changes, in writing.
12. The Contractor will provide on-site coverage by a physician at BCDC on an emergency basis in those cases where transportation of high-risk felons or other security risks to a hospital is ill-advised. In the event a resident needs to be transported from BCDC to a hospital, the Contractor will, to the extent possible, be sensitive to security issues regarding those residents. For emergency in-house coverage there will be no further reimbursement made by the City.
13. The Contractor will provide 24 hour emergency on-call psychiatric services.
14. The Contractor will inform BCDC administration of suspected security breaches by the Contractor's employees. The Contractor's employees will be required to submit written statements through the Contractor's supervisory personnel, regarding their witnessing any such incident, when required by BCDC. When an immediate written statement is needed, the BCDC Director or his designee will obtain the statement and provide a copy to the Contractor's supervisory personnel.
15. BCDC reserves the right, based on security needs, to determine which of Contractor's employees will enter and continue service at BCDC.
16. The Contractor will review and respond to inquiries and observations collected by medical personnel at the time of booking, via the medical screening form, regarding the mental health of all residents.
l 7. The Contractor will accept referrals from medical and security personnel within the facility. The Contractor will review referrals and follow-up on referrals appropriately.
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18. At a minimum, the Contractor will maintain the following written records on each resident followed by PSU:
a. Completed Receiving and Discharge (booking area) screening form.
b. All findings, diagnoses, lab test results, treatment plans, treatments and dispositions.
c. PrescriBed medications and their administration.
d. Place, date and time of all hospitalizations.
e. Consent and refusal forms.
f. Release of information forms.
This information will be maintained in each resident's PSU file. The file will remain permanently at BCDC.
19. The Contractor will routinely send summaries and copies of health records to the facility to which the resident is transferred, and to specific and designated · physicians or mental health facilities in the community upon written authorization of the resident. The Contractor will maintain resident refusals of treatment in the resident's PSU file.
20. The Contractor will provide training to BCDC's correctional staff in the following areas:
a. Recognition and handiing of mental illnesses and developmental disability, including suicide and chemical dependency.
b. Special management training designed to assist correctional staff in handiing violent mentally ill and suicidal residents.
c. Procedures for patient transfers to appropriate facilities or mental health care providers.
21. The Contractor will provide BCDC with the following activity reports:

4

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 24 of 42
a. Monthly statistical workload reports, indicating number of evaluations performed, residents screened, number of treatment visits, number of residents housed on the psychiatric unit, number placed on continuous watch or 15 minute watch, number of prescriptions, number of referrals to outside agencies, and number of residents hospitalized.
b. Quarterly reports that define the effectiveness of the health care delivery system and that include environmental factors that need improvement and changes effected since the last reporting period.
c. Annual reports indicating number of residents receiving mental health services by category of care as well as other pertinent information.
22. The Contractor will designate an employee, in writing, who will act as liaison to BCDC in the absence of the PSU Nurse Manager.
23. The Contractor's employees will respond, in writing, to resident grievances when such grievances pertain to the provision of mental health care services. The process will be managed by the BCDC Director or his designee.
24. The Contractor will designate, in writing, a staff person who will attend daily classification meetings in order to provide information on programming, housing, discipline, and transfers in and out of the facility.
25. Mental health personnel will share with the Director of BCDC or his designee, information regarding the resident's ability to participate in programs, management and security. Information will be provided on a need to know basis.
26. The Contractor's employees are prohibited from informing residents or resident's families or friends regarding appointments scheduled outside of the facility.
27. The Contractor's employees will be required to sign a statement agreeing to abide by BCDC's rules and regulations and confidentiality policies.
28. All Contractor employees will complete 16 hours of orientation prior to being independently assigned to a position and an additional 26 hours of in-service training each year thereafter. All training will be provided by BCDC; and the Contractor will be given adequate notice of training times in order to provide coverage.
5

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 25 of 42
29. All Contractor employees will be required to wear readily identifiable identification badges provided by BCDC.
30. The Contractor will create a Mental Health Audit Committee within two (2) months of contract start-up date. This committee will be responsible for developing, recommending and implementing all policies and procedures necessary for the operation of the psychiatric and mental health program at BCDC. The objective of the committee is to assure that quality psychiatric and mental health care services are available to all residents. The Contractor will identify, in writing, members of the committee. The committee will include a BCDC representative.
31. The Contractor will establish a Quality Assurance Program within 30 days of contract start-up date which will evaluate the mental health care services provided to residents for quality, appropriateness, and continuity of care.
32. The City will have the right to audit billings after it has paid the Contractor for services rendered. Payment under this Agreement will not foreclose the right of the City to recover excessive or illegal payments. The Contractor will provide the Department with monthly data pertaining to number of residents treated, refertals made and residents' seen. Maintaining confidentiality of records will be the responsibility of the Contractor and the Department.
33. BCDC will furnish sufficient space and security conducive to conducting interviews and such other functions as are required by the Psychiatric Services Unit to carry out its duties. This provision may be superseded by security requirements in an emergency determined by the BCDC Director or his designee.
34. UNMHSC will provide licensed or certified staff to BCDC Receiving & Discharge (R&D) Section, twenty-four hours per day, seven days per week, and a sufficient number of personnel to handle additional weekend workloads for purposes of evaluating residents to be booked at BCDC.
a. PSU personnel assigned to the R & D Section will remain in R & D at all times and will not be used to maintain minimum staffing levels elsewhere, except for authorized breal<S. Breaks are not to exceed one-half hour.
b. PSU personnel assigned to the R&D Section will have sole authority for refusing the acceptance of a person to be booked because of the person's psychiatric condition.
6

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 26 of 42
c. When persons are committed to a Detention Center holding cell in R&D, PSU personnel assigned to R&D will provide appropriate clinical attention to those persons identified as requiring treatment in accordance with UNMHSC approved psychiatric protocol. Individuals booked and screened will be checked according to regular psychiatric protocol. Should any psychiatric emergency be observed, BCDC personnel will remove these persons with conditions requiring emergency care from the holding cells and will provide security at the examination site.
35. UNMHSC will ensure that its employees assigned to BCDC are familiar with Section 3.1.22 (Employee Conduct); Sections 12.1.0 through Section 12.1.27 (Health Services), Section 8.4.5 Security (Medical Treatment) and Section 7.1.7 page 37 (Evacuation of MSU) of the BCDC Policy and Procedure Manual prior to assignment to BCDC. All PSU employees are subject to the provisions in these sections of the Manual.
36. The Contractor acknowledges that City of Albuquerque and others are Defendants in a federal civil rights class action lawsuit styled McClendon et.al vs. City of Albuquerque et.al, USDC (D.N.M.) CV-95-24 MV/DJS. The Contractor will make its protocols and resident PSU files available, upon presentation of signed consent forms, for reasonable inspection by consultants, attorneys and paralegals working for Plaintiffs, Plaintiff-Intervenors, Defendants and the Court. The Contractor will make its employees who are worldng at PSU available for reasonable interviews and consultations with consultants worldng for Plaintiffs, PlaintiffIntervenors, Defendants, and the Court.
37. Within ninety (90) days after the effective date of this Agreement, the Contractor will develop and promulgate policies, procedures and standards of care with respect to psychiatric services which are consistent with prevailing professional standards and which are designed to provide care to residents which is substantially equivalent to the services provided to other people in the community with similar needs.
38. The Contractor will assure that a psychiatrist will personally assess every resident on psychoactive medication at least once every 30 days.
39. The Contractor will assist BCDC with affording procedural due process to residents regarding their mental health needs. Generally, procedural due process requires the following:
7

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Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 27 of 42

a. In the absence of an emergency threatening the health or safety of any person or imminently threatening substantial property damage, no individual will be required to be housed in an area designated as a mental health treatment setting without first affording the individual an opportunity to be heard by at least one qualified mental health professional and to present information regarding why he or she should not be required to be housed in such an area.
b. Whenever an individual housed in an area designated as a mental health care setting requests release from that setting, at least one qualified mental health professional will meet with the resident within one business day to consider the request, unless the individual is released from that setting upon his or her request.
c. The Contractor will notify all residents of any area intended to provide mental health services, orally and in writing, of the methods available to initiate a grievance.
d. The Contractor will comply with prevailing professional standards regarding informed consent to all mental health services, including, but not limited to all medications.
40. The Contractor will develop adequate protocols regarding suicide prevention. Formal procedures for screening, staff training and identifying people at · risk and for the housing and oversight of people identified as at risk for suicide will be implemented within thirty (30) days after the effective date of this Agreement.
41. In the event the Contractor determines that a resident must be placed on 15 minute checl<S or continuous suicide watch, the UNMHSC employee mal<ing such determination will remain with the resident up to a maximum of three (3) hours until such time as custody has been turned over to corrections staff.
42. When the Contractor determines the need for a resident to be placed on either continuous supervision or 15 minute watches, an employee of the Contractor will complete written referrals and move slips and submit both to the BCDC Director or his designee. The BCDC Director or his designee will respond within one hour.
43. The Contractor will provide mental health crisis services. The Contractor will provide prompt access to a qualified mental health professional to all residents experiencing a psychiatric or psychological crisis, regardless of the time of day. The Contractor will implement adequate procedures to assure residents of prompt access to medication when appropriate.
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Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 28 of 42

tappprfrlrefaeoaonfftreesmdrswaese4bdiinol4lltytn.hbapaelTeltasohdnltepeea.apsnCsiodgtoranetnrevudtdenrsraibyftcyoyt9rota0rotnhwdpoaaiaspylrelpstpi,rrcroeaoisppnviraddiidteaeaentetmttstrthereraeeeanaqtrmituenmqiegrueinfnnuetgsltpltytaleoaiatfnnrmstehtacheatoemnrndedseseinrisvedttveeepilnneolattwp.nwme.AdietThnprretepesroraiieofdtvmdeaaniecitlaniwnltlgyil,l be

rwnepdippemmereieesluivrlotpeorsreprbloraoleglepioanemenspu4nnwtwyemto5chacnhiyt.ehntotiohfniorrdBnieithlemzaogsdCadalugeesaDtldisinnitcmbisoiCtgdaseanmnilo,elnhroifneadadfrrrdosieieapsdidmrspadaleeatwbtpervnneaivraielltloeiiyitlqltnfpoloiubioaterpeaepisnsodmala.edisftffdaeeueiaCwsn,elbpnytodishjrlaeulnoiaelmncgvctnptddrgeieedeainidednrsvcgtssuotithtotardoriaoeednnlurspeaghrarwrlesellel,miyissyaimltactdllorrahtieaaadqhstinsisiiiuannsnfetptaiiitsgtrrscfl,sioiitaactefefsthtB,ixedhieenosscCdeaosenersDiumopaeotrphntsCnoeotpaianrapnvtrclastsho.ioaiyanpepnrlcnIgrrotpnhheiseaoarocestmotrtialhepbicolsoeneseltgeernhyedicge.sscculpveshaursnreleistoocaniasofofyt.tferrn,tfiashcwNisnon,eiiooftnhaolut III. Responsibilities and Authority of BCDC.

1. infirmary designee.

AafttetrhecoBnCsuDltCatiDoinrewcitothr'sthdeisPcSreUtiopnh,yrseicsiiadne,ntPsSmUaHy ebaedisNoulartseed,

in or

the their

Policy

2. BCDC will and Procedure

provide security Manual.

in

the

infirmary

area

in

accordance

with

BCDC

the

3. BCDC will provide lod:s on exam interest of security, all equipment losses

rooms and storage cabinets must be reported to BCDC

in PSU. In personnel.

UasNsiMgnHe4dS. tCoBcCBaDCnDCpCrso.evciBudreCitDryeCltireawfiniplielnrggsiovwneinlaledlbefeqouprartotreaviinndoeetedisc.teo

all UNMHSC employees of training times so that

oalplpoowrtsu5un.fiftiWiceiseh.netntipmoessfiobrlet,hBeCreDsiCdewnitlltnoorteicfyeivPeSmUewdhiceantiaonreasniddefnotllioswto-ubpe released to

levels

6. BCDC within the

lpimeristosnonfetlhweirlleqpuroirveiddeBsCecDuCritmy ifnoirmPuSmUsptaefrfsionngnleelveoln.

the

detention

9

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 29 of 42

passing of mead.icDatuiornin, gancoonr-reemctieorngsenocfyficmeerdmicuasltabnedpprseysechnitaotrnicflaososre.ssments and

must be possible.

b. present

oDnurtihnegfmloeodriacnaldarnedsidpesynctshilaotcrkicedemdoewrgnentcoietshea

corrections officer greatest degree

oraetnhcdoegrcsnh,ia7zsn.eugctehhsaaltBsisstCtoheDmde CierneownEfoixltvlhh,aeiitbniioittgenoDmoosfdinitfnhaaeiEttbhixmo,hoiuebklsyieitnmiDgtsaacnbraenenaes,rtb.aeerfTefaohcsrccetoshpmetadoprutliilineesishdteitfadooterftohFtrihYstehAw1r9geitn9rheo8,ev.mwatheinioltnes IV. Term of Agreement and Performance.
tw(acttth4hevharo%rianeissmti)eltbdA.aeieanrbngetaiSeerlqatxeieegutoretydvriefmreinataeceehndsdemniesdsptfdeooraaAnorapsftgvnipttonrinhhrdecfoueeeertapmedhC"lraleeiehoysafneen,Cftetrditn,ieocrtosiaatnynitctnva.oattdfeoofnfTirwdfdnehuaaigxtinltrlshecedoe"etscrtee.ooaCrdsmmncAcoaodonimnpntmttonereahamutnteoaecacfelt"leJonsocumirecnofn,reecnfveanrontien3crtuoaaed0drscsl,aeyctawtseo1tseeaintt9larroit9lssri.t,7nntthshcgoouaueoetmpnnnnecledstextotiisaciunxnsmtetpgteeyrs"eeodao.snn(cof6ttrTont0euhoueh)fpetrreihdosrperanceeyrordtstchnhtefetoarnronatimcnt

V. Fiscal and General Management Arrangements. l. The City of Albuquerque agrees to pay UNMHSC:
Daa$nn1endc,4uep4ama1liibdz,e0erb8dy01a,Tama1sh.o9eru9eACfn6etitratoweyntniadolcllefcfbdAoiexnilenpbcdlrutuoqphdrrueaiienctbregequdJauduamgenceioectnsou3rmna0dtto,itnnan1goct9hhtt9oelt7yodt.aheanesxdcEeefexefqhdeucitbtahiilvtesienaAdsntanaatulnelamdolifeBznt.ehtdsiTsabhAmeisggoirunenneimtnoegfnt be submitted IbnyvoCicoenstrfaocrtpoarytomBenCtDinCa; cacnodrdance with attached Exhibits A and B will
preriomjebcutersdeamt eanbpt.pbrCoasxoiissmtfsaoftroealrycLt$ua4abl1o,cr0ao0tsot0sr,yitnhecxiuspreernxesdpee.snAsreelftwehroielulngbcheedlraeibnimoErbaxuthroisrbeyidtcCaotsotasncataureal costs

10

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 30 of 42
(plus l 0% indirect cost), if this amount should exceed theannualized projected amount of $41,000. Costs will be reimbursed within thirty (30) days of receipt of an appropriate invoice. Supporting documentation for invoices for cost reimbursement of Laboratory expenses will be maintained in the Contractor's file.
2. Payment shall be sent to:
Lee Gulbransen, Assistant Controller University of New Mexico Health Sciences Center Controller's Office, Basic Medical Sciences Building Room B-61 Albuquerque, NM 87131-5041 Telephone: (505) 277-6264; Fax: (505) 277-0159
3. Fiscal Agent, Purchasing Agent, and Personnel Agent:
a. The Contractor will serve as its own fiscal agent, purchasing agent, and personnel agent.
b. The Contractor will have and maintain financial policies and procedures, an accounting system, purchasing policies and procedures (including bid requirements) and personnel policies and procedures that adhere to generally accepted accounting and management standards and practices.
c. Payment pursuant to V.l.a. above, will constitute full and complete compensation for the Contractor's Service under this Agreement, including all expenditures made and expenses incurred by the Contractor in perfonning the Services per the budgets attached hereto and made a part hereof as Exhibits A and B. Reimbursement for laboratory costs as listed in Exhibit C will be made in accordance with Section V, Paragraph 1-b of this Agreement.
4. All personnel employed by the Contractor will be subject to BCDC clearance procedures and subsequent approval by BCDC. All personnel employed by the Contractor will be obligated to comply with BCDC Policy and Procedures Manual in the performance of their duties. lfBCDC Policy and Procedures Manual is in conflict with UNMHSC policy or contract, Contractor will inform BCDC in writing and the parties will attempt to conform the policies. If the Contractor's personnel violate or are suspected of violating BCDC security policies and procedures, BCDC reserves the right to refuse to allow those person(s) into the facility unless the violation or suspected violation is proved unfounded or is resolved by BCDC and UNMHSC. BCDC will notify UNMHSC , in writing, of any UNMHSC personnel
11

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Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 31 of 42

UdeNnMiedHaScCcewssiltlobBe CnoDtCif.iedIfisnuwchriptienrgs.onnel are subsequently granted access to BCDC,

the will

5. City of remain

AthlIebfupaqrnuoyepreeqqrutuyei.pomfEteqhnuetipiCsmopneutnrrtcahpcatuosrrec.dhabsyedthbeyCthitey,Ciot nwtirlalcrteomr afoinr

the use

property of at BCDC

6. without the

No services prior written

or work required under agreement of the City.

this

Agreement

will

be

subcontracted

VI. Reporting.

barvCasGaHpetenshocraerCioodneisnflFrm,teiyrOdraAeMriaus2iancmscl.lofoIglogtonn.wronnaTcdritrdtibeoTshlteaafrluosdehmuoytpsbBrfetNfeeettRhothrhCdpuheairereiaorlrDeocaslrresdooreutCueCaiirwngneengvoMcsshaoerdiincendletaaaFeetidrglnarnssare,artcidawseictdtccsgohehhaittenlehoaytaesltrhsrert.hAcSgaaaiatoIcenentonntntdc,dwdsfftroppeohbiehftlrueuiytlhiascswr1rerrtstA9eyohyoiuCtt8erergaahfa0iohrniGCtrentreyts(heeoPrHtawfemnno.lodLelethBelertral.sinshaoaCucl9itlwcetghcDh6atahniro-annnCeae4rrngddeqne9aeOudtwtO9scneoipe)rHeifarleesfcmalaisumrMencnbaaimseyrendteesyinaadaooadtttrbinfhnnseiycoostesdaSohofinrDgoerfaekeernroPlsivglCpvaf,taiubhtricotdresoloeheamaiodvsooigtc,,spiiknprdouiuHasAtennmor,rpCrogspnhdw.elroFolnear9esTAceiter5tsudmh,i2nomaeaegifnolne,ydfnt.ts lifSimuaeriprsnvloieisncmhei3senc.npoetpoTafirfhteteisieocotnoCni.nfoogcTnfhcthatrhhneaaegcnCetgBosoerCnstwotDtrioatClhlcBetrPoeComvrDliwiaecCnwiylulPaaawnnslyondtcorukPhaBirlwaolCtycirtDeiahcdnCuaPdrnoAeudlsidpccmMidoeaisoantnreaidusnaitandsrlaa.nPttieerToocwnhecseeipsdtrahCuiroroytehrnstett.horBeacCPtsoDyrCcwhiilaltric VII. Independent Contractor. heWeeemmmropepprlalklooofeytyyerTeeesreeeh'sasseCmowaoCfremieontllhndpebeetneredntCai.scctialottetoynidorsuinitdnsoeAdaarencenrtdyipnoerbfdmoeetvnhppielseeofinoiyStdnestesaefstnroeotofmocftofhtnthNehteereMawCCceitMrtioyittyr.eOaxuniNnrcddodeienniotreahrtinethtchoreeetaprhanrseCoynvoCboinosewtinnroaetenrcfnsaittacoosctrfogtnertrhodanenrootirretsidtsto

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Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 32 of 42

VIII. Liability. l. As between the parties, each party will be solely responsible for liability
arising from personal injury or damage to persons or property occasioned by its employees. The liability of UNMHSC and the City will be subject in all cases to the immunities and limitations of the Tort Claims Act, Section 41-4-l et.seq., NMSA 1978, and any amendments thereto. The City will be provided with a letter or certificate from the State Risk Management Division detailing the Contractor's coverage.
2. The Contractor will have no liability for any claims, losses, damages or injunctive relief attributable to the BCDC facility, compliance of the BCDC facility with Americans with Disabilities Act ("ADA") requirements, or compliance with requirements of American Correctional Accreditation standards not under the Contractor's control, and the City will defend and hold harmless the Contractor against any such claims, losses, damages or related legal action. IX. Discrimination Prohibited.
In performing the services outlined herein, the Contractor will not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age or physical handicap or disability, as defined in the Americans With Disabilities Act of 1990, as currently enacted or hereafter amended.
X. ADA Compliance.
In performing the services required hereunder, the Contractor will meet all the requirements of the Americans With Disabilities Act of 1990, and all applicable rules and regulations, (the "ADA"),which are imposed directly on the Contractor or which would be imposed on the City as a public entity. The Contractor will be responsible for knowing all applicable requirements of the ADA The Contractor is not responsible for physical plant requirements of ADA. XI. Personnel.
l. The Contractor represents that it has secured, or will secure at its own expense, all personnel required in performing all of the services required under this Agreement. Such Personnel will not be employees of or have any contractual relationships with the City.
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Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 33 of 42

2. The Contractor will perform or supervise all the services required hereunder. 3. None of the work or services covered by this Agreement will be subcontracted without the prior written approval of the City. Any work or services subcontracted hereunder will be specified by written contract or agreement and will be subject to each provision of this Agreement. XII. Termination.
1. The City or the Contractor may terminate this Agreement at any time by giving at least sixty (60) days notice in writing to the other party.
2. If through any cause, either party, the Contractor or the City, will fail to fulfill in a timely and proper manner obligations under this Agreement or if the Contractor or the City violates any of the covenants, agreements or stipulations of this Agreement the aggrieved party will thereupon have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date thereof at least thirty (30) days before the effective date of such termination.
3. If the Contractor is terminated by the City pursuant to this section, the Contractor will be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder.
XIII. Notices, Addresses.
Any notice hand·delivered or sent by mail (with a return receipt which indicates delivery) to the addressees below will be deemed received when mailed certified or registered with proper postage affixed regardless of whether personally received by the party. For the City, notices may be sent to:
Michael Sisneros, Director, or successor Bernalillo County Detention Center 415 RomaNW Albuquerque, New Mexico 87102 For the Contractor, notices may be sent to: Lee Gulbransen, Assistant Controller University of New Mexico Health Sciences Center
14

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 34 of 42

Controller's Office

Basic Medical Sciences Building, Room B-61

Albuquerque, NM 87131-5041

(EIN No. 85-6000-642)

Telephone: (505) 277-6264

Fax:

(505) 277-0159

Fran A Meadows
University·of New Mexico Health Sciences Center Health Plan Development and Relations HSSB Building Room 118
Albuquerque, NM 887131-5019 Telephone: (505) 843-0124

XIV. Amendment to Agreement.

Amendments writing.

to

this

Agreement

will

be

mutually

agreed

to

by

the

parties,

in

XV. Warranty of Authority.

Robert Earnest, Interim Associate Vice President for Finance and Administration has the authority to bind the Contractor.

the

This laws of

Agreement is subject to the Ordinances of the City of Albuquerque and the State of New Mexico and applicable Federal laws and regulations.

XVI. Signatures Required.

been

This Agreement obtained.

will

not

be

binding

until

all

signatures

required

below

have.

XVII. General.

If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity of enforceability of any other part of this Agreement that is reasonably capable of completion.

15

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 35 of 42

This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral or otherwise.

This Agreement will be governed by and construed and enforced in accordance with the laws of the State of New Mexico, and the laws, rules and regulations of the City of Albuquerque.

The waiver by either party of a breach or violation of any provision of this

Agreement will not operate as or be construed as a waiver of any subsequent breach of

this Agreement.

-

This Agreement will not be assigned by either party, nor will the duties imposed upon either party by this Agreement be delegated, subcontracted, or transferred by either party, in whole or in part, without prior written consent of the other party.

Headings and captions used in this Agreement are for convenience and ease of reference only and will not be used to construe, interpret, expand or limit the terms,
conditions, or other provisions of this Agreement.

The confidentiality of BCDC residents' medical records will be maintained by the parties in accordance with applicable federal and state laws and regulations. BCDC and UNMHSC will cooperate to obtain from BCDC residents any necessary written consent by BCDC residents for release of medical records and related information required for the processing of claims for payment by third-party payors or administration of this Agreement.

BCDC and UNMHSC will not disclose the rates or compensation payable to UNMHSC pursuant to this Agreement, except to the extent required by applicable
laws or regulations or as may be required to carry out the terms of this Agreement.

The parties and their respective employees are at all times acting as independent contractors. Neither party has any express or implied authority to assume or create any obligation or responsibility on behalf of or in the name of the other party.

The parties agree that, to the extent compatible with the separate and independent management of each, they will maintain effective liaison and close cooperation. If a dispute arises related to the obligations or performance of either

16

.\-' ,: ,

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 36 of 42
.

party under this Agreement, representatives of the parties will meet in good faith to resolve the dispute.
Nothing in this Agreement, express or implied, is intended to confer any rights, remedies, claims, or interests upon a person not a party to this Agreement.
This Agreement is binding upon, and inures to the benefit of the parties to this Agreement and their respective successors and assigns.
IN WITNESS WHEREOF, the City and the Contractor have executed this Agreement as of the date first above written.
CITY OF ALBUQUERQUE
Approved By:

Lawrence ""'(':'-t" Chief Admini' s
v]J~~
Michael Sisneros, BCDC Director

Dated: _ _1_ 6 _!_2-.3_)_7_6_
Dated: _t_o·'-/s....:./;.::.tJ,.;_·_ _

CONTRACTOR Regents of University of New Mexico

By:

I I_A'

Robert Earnest

Dated:

Title: Interim Vice President for Finance

and Administration

~ ~ /..!>,{

Approved:
By:
Daniel J. Derksen, M.D.
Title: Executive Director, Health Plan Development and Relations
17

~l Dated: D__,('--'-/.!....!..hG.::...___

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 37 of 42 •

~~,m\~~ By.

1 J. "th, M.D.

Title: Chair, Department of Psychiatry

By:

7

~~~~;r-J
" i.6.;L ~ ~ ~~<...---

.stina Gtmn, MBA

Title: CEO, University Psychiatric Hospitals

Dated: _ _,_1;,_,7.o/z=-=zr-A_,_,7'4:~--
Dated: __:/_.L;l<.:.f;--,L-/S'-'Z.'-·.:....t_ ; _ 7

Approved as to Form:
By: S0 teph~an~¢ n :~
Title: Senior Associate University Counsel

Dated: ~/.<-.>::q,._/~t<-,,~/__,_?i==:b=----

-

18

'· '

Case

6:95-cv-0B0E0.2t4-:-JJAi P. ~-KLBOMCODEUoXNcuHTmYIBeDInTEt 2AT5E6NTFIiOleNd

1· 1/0. 5, /96 0t::.Ni. R

Page 38 of 42

UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER

STAFFING AND EXPENSES

~ERSONNEL

ANNUALIZED BUDGET

POSITION
Sr. RN (Nurse Manager) RN LPN Counselor Social Worker Psychologist Administrative Secretary Medical Records Clerk
SlllFT DIFFERENTIAL

FTE SALARIES

1.0

36,837

1.4

32,365

3.4 21,612

10.4 32,032

2.0

30,056

1.0

43,951

1.0

21,860

1.0

21,860

TOTAL
36,837 45,311 73,481 333,133 60,112 43,951 21,860 21,860

BENEFITS

TOTAL

@24%

8,841

45,678

10,875

56,186

17,635

91,116

79,952

413,085

14,427

74,539

10,548

54,499

5,246

27,106

5,246

27,106

Sub Total ··: .•.•·.•.••.•••.•.•.7~91?15.'

RN

Weekend a.m. 10%

1.57

LPN

Weekday p.m. 6%

0.62

WeekdayNOC 12%

1.25

Weekdaya.m 10%

1.03

Weekday p.m. 16%

1.66

WeekdayNOC 22%

2.29

832 2080 2080 832 832 832

1,306 1,290 2,600
857 1,381 1,905

CQY!lss;!Qr Weekday p.m. 6%

0.92

Weekend a.m. 10%

1.54

WeekdayNOC 16%

2.64

AGENCY

RN LPN

270/shift + 6 mos F.T.
190/shift

OVERTIME/PRN

RN LPN Counselor

832 2496 2496

765 3,844 6,589

42,540 5,320

1,020 1,000 7,020

:vt:;.•········ ·,::;:;:;:;:::;::::=::~

·.·.•.·

.·•·.

·.•

·•.'

·•.·•.··.••.•Y. •·. •·.•.•. ..·'..M ""

··.•····.·..·..o·.·.·..··.•.•.

Page I

. ·'
. '

Case

6:95-cv-00024-JAP-KBM BJ!.. Aif' LLO

CDOoEUcXNumHTYeIBnDtITE25AT6ENFTilIeOdN1e1/£05(/.96~RPage

39

of

42

UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER

STAFFING AND EXPENSES

ANNUALIZED BUDGET

EXPENSES MATERIALS & SERVICES Computer & Software. Forms Continuing Education Travel Capital Equipment and Furniture
Total Personnel and Expenses 10% Indirect Cost

2,000 3,000 1,000 1,000 5,121 Total Expenses
.•.•1Ji·····•··.·····•··$7Wii7:3•
87,887

Monthly Invoice Amount

80,563.33

Page2

Case 6:95-cv-00024-JAP-KBM DoEcXuImDeBnItT2B56 Filed 11/05/96 Page 40 of 42

BE~

LLO COUNTY J)ETENTION--~~:dr:''''' ~R

UNIVERSITY OF NEW MEXICO HEALTH SCmNCES CENTER

PHYSICIAN SERVICES AND EXPENSES

ANNUALIZED BUDGET

SERVICE

CLINICAL HOURS

A.) Faculty Psychiatrist

2,520

B.) On Call Coverage . 1) Telephone 2) BCDC Weeknights (est.) 3) BCDC Weekend (est.)

6,240 300 200

Al\10UNT
256,200
150,000 15,000 10,000
•·····.r·•\•••·.•?•·4t?taoo··

TOTAL FOR PHYSICIAN SERVICES } ~~l;2IJ(}

10% Indirect Costs

43,120

Monthly Invoice Amount

39,526.67

*UPA= University Physician Associates- includes data entry of all clinical activity, invoicing of hours to account, monthly reports regarding number and type of visits, demographic data, and relative value units.

Page 3

' J_..

'"'

Case 6:95-cv-00024-JAP-KBM DEoXcuHmffeiniTt 2C56 Filed 11/05/96 Page 41 of 42
BE~ .:4' :,Lo COUNTY DETENTION "'""JN R
UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER LABORATORY EXPENSES ANNUALIZED BUDGET

Laboratory Expenses prpjected at approximately 10% Indirect Cost

41,000 4,100

Monthly Invoice Based on Actual Expenditures

TOTALS Exhibit A (Salaries and Expenses) Exhibit B (Physician and Laboratory Expenses) Exhbit C (Laboratory Expenses)

966,760 474,320
45,100

Page4

Case 6:95-cv-00024-JAP-KBM Document 256 Filed 11/05/96 Page 42 of 42

'

<

,,;,; -:, j"

EXHIBITD BERNALILLO COUNTY DETENTION CENTER UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER PROPOSED RENOVATIONS TO BCDC FACILITY

•

The addition of a meeting I case conference room to seat at least ten people (does not

have to be in the immediate area)

•

The addition of an office space with appropriate work stations for two physicians (does

not have to be in the immediate area)

•

The addition of two units, one each for male and female psychiatry units, to provide

contained and private (but visible) area for interview and exam capabilities within the unit

•

The addition of an enclosed area with writing surface for conlidential interviews in the

Booking Area on the First Floor

•

The addition of modular units to create five (5) functional work spaces in the Counselor

Room on Sixth Floor

•

The addition of two modular ullits to create functional work spaces in the Nurses Station

Room on Sixth Floor

•

Upgrade of three work spaces on First Floor (area where CASSA's offices are located) to

create functional work space

• • Case 6:95-cv-00024-JAP-KBM Document 256-1 Filed 11/05/96 Page 1 of 1

T

R

The Honorable Martha Vazquez United States District Court Judge PO Box 2710 Santa Fe, NM 87504-2710

REC'> BYE.O frj1 ~)0~ ~ .. 'J ll'lf¥s1 <J -{.1
NOV 1 2 1996

RE: McClendon et al. v. City of Albuquerque et al. USDC No. CIV 95-0024 MV/RLP

Dear Judge Vazquez:

I believe the November 5, 1996 Order (doc. no. 256) did not have attached to it a copy of the psychiatric services contract between the City of Albuquerque and the Bernalillo County Detention Center (Ex. I, referred to on page 7, page 8, and page 9 of the November 5, 1996 Order). I apologize for this oversight.

A copy of the UNMHSC contract is enclosed. Please advise if there is anything else I need to do in order to get this contract into the court file.

Thank you.

JLB:dc

Enclosure

cc: Robert White, Albuquerque City Attorney (w/o encl.)

John DuBois, Esq. (w/o encl.)

20 First Plaza

Peter Cubra, Esq. (w/o encl.) Elizabeth E. Simpson, Esq. (w/o encl.)

Suite402

Nancy Koenigsberg, Esq. (w/o encl.) Mary Y. C. Han, Esq. (w/o encl.)

Albuquerque

Joseph P. Kennedy, Esq. (w/o encl.)

New Mexico 87102

Shannon Oliver, Esq. (w/o encl.)

(505) 247 •1855

FAX (505) 766 • 9113

 
 Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 1 of 10

UNITED STATES DISTRICf COURT

FOR THE DISTRICf OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et. al.,
Plaintiffs, v.

CITY OF ALBUQUERQUE, et. al.,

Defendants,
v.

E.M. et al.,

Plaintiff-Intervenors.

ORDER CERTIFYING A ClASS

In accordance with the Pre-Trial Order, the findings and conclusions contained

in the Order filed on August 23, 1995, the Order filed on October 26, 1995 granting

Plaintiff-Intervenors' Motion to Intervene, and the Order filed on August 15, 1996

granting certification of a subclass, it is hereby ORDERED:

1. ClASS CERTIFICATION. Part I (allegations of overcrowding) contained

in the original Complaint, Civil Action No. 95-0024, styled McClendon et aL y, City of

Albuquerque et al. shall be maintained as a class action on behalf of the following class

of plaintiffs:

"All persons presently confined in the Bernalillo County Detention Center,

Albuquerque, New Mexico ("BCDC") or who may/will be so confined in the future,"

with respect to the following cause(s) of action:

Any claims for injunctive relief under 42 U.S.C. § 1983 or any other federal

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 2 of 10
statute for deprivation of rights under the United States and New Mexico Constitutions allegedly CAused by overcrowding at BCDC.
It is to be understood that the class of "all persons presently confined" includes
all persons so confined when the Complaint was filed on January 10, 1995 and thereafter
during the pendency of this action. It is also to be understood that, with respect to the CAuses of action particularized
above, the class so certified includes Plaintiff-Intervenors and the subclass of "all persons with mental and/or developmental disabilities who are now, or in the future may be, detained at BCDC" they represent. However, Plaintiff-Intervenors are and will henceforth be represented by separate counsel of record.
2. ClASS REPRESENTATIVES: ClASS COUNSEL The named original Plaintiffs and Plaintiff-Intervenors are designated as class representatives and Mary Y.C. Han, Shannon Oliver and Josep.h Kennedy are counsel for the original Plaintiffs, and Peter Cubra &q., Elizabeth Simpson Esq., and Nancy Koenigsberg Esq., are counsel for Plaintiff-Intervenors, and are designated as counsel for the subclass.
3. PROPOSED SETTLEMENTS The proposed settlements between the plaintiff class, the plaintiff intervenor subclass and counsel for Defendants appear, upon preliminary review, to be within the range of reasonableness and accordingly shall be submitted to the class members for their consideration and for an approval hearing under Fed.R Civ.P. Rule 23(e).

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 3 of 10
4. HEARING. A hearing shall be held in the Courthouse of the United States District Court for the District of New Mexico in Santa Fe, New Mexico at
\ ~ ;£? '(>. m. on:Sa·m 10..1') I ~ \ 9q}- , to consider whether the settlements
should be given final approval. (a) Objections by class members and subclass members to the proposed
settlements will be considered if filed in writing with the Court or in any manner with
~ counsel for the class or subclass on or before Decembera)l996.
(b) Any objection communicated to counsel for the class or subclass, other than objections filed in writing with the Court, which counsel for the class or subclass intend to present to the Court at the hearing, shall be reduced to writing by counsel for the class or subclass with copies provided to the Court and to counsel for Defendants no later than December 13, 1996.
(c) Counsel for the class and subclass and for Defendants should be prepared at the hearing to respond to objections filed by such class members and to provide other information, as appropriate, bearing on whether or not the settlements should be approved.
5. NOTICE.
(a) Class CounseVSubclass counsel and counsel for Defendants shall by November 8, 1996 cause to be delivered to all class and subclass representatives and all present class and subclass members who can be identified and/or located through
3

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 4 of 10
reasonable efforts a notice in substantially the same form as Attachment A hereto. (b) Class CounseVSubclass counsel and counsel for Defendants shall cause to
be published a notice in substantially the same form as Attachment A hereto by delivering a copy to each current resident and by posting a copy of the same on all levels in all the facilities of BCDC and in the booking area.

Submitted by:
(__ )·/&
Jeffrey L. Baker Counsel for Defendants
Approved:

Honora

a Vazquez

United States District Court Judge

/tff¥<JV G-1) /3y7 fJL~~ t /-/ · 7 C.
Mary Y. C. Han Counsel for Plaintiffs

@NV&-o t1] ftr..-v{; ;:-.t-?J

Peter Cubra

/'). tfl

Counsel for Plaintiff-Interveno~t.t._ "' 0 'd-

4

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 5 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et. al.,
Plaintiffs,

v.

CIV-95-0024 MV/DJS

CITY OF ALBUQUERQUE, et. al.,

Defendants,

v.

E.M. etal.,

Plaintiff. Intervenors.

NOTICE OF CLASS ACTION & PRQPOSED SETILEMENT ·

This notice may affect your rights. Please read carefully.

TO: All persons presently confined in the Bernalillo County Detention Center, Albuquerque, New Mexico ("BCDC") or who may/will be so confined in the future

Your rights may be affected by a lawsuit pending in this Court, Civil Action No. 95-0024 MV/DJS.

A lawsuit addressing conditions of confinement at BCDC was brought on January 10, 1995 by Plaintiffs Jimmy (Billy) McClendon et al., individually and on behalf of a class of all persons presently confined in BCDC and who may/will be so confined in the future. On October 26, 1995, the Court granted the motion of Plaintiff-Intervenors E.M. et al. to intervene in the lawsuit to provide separate representation for both themselves and the specific interests of a subclass within the original class of all people housed in BCDC who have a form of mental and/or developmental disability. Hereinafter, both the original Plaintiffs and the Plaintiff. Intervenors are referred to as "the Plaintiffs".

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 6 of 10
To assist in the management of the complex issues raised by the lawsuit, the Court ordered that the lawsuit be divided into three (3) parts. Part I of the lawsuit charges that Defendants, the City of Albuquerque et al., by reason of overcrowding at BCDC, have deprived Plaintiffs and the class of their right to be free from punishment as guaranteed to them by the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and the New Mexico Constitution. Part II of the lawsuit charges that Defendants have violated the
Constitution in various other ways. Plaintiff Intervenors' complaint charges that
BCDC does not reasonably accommodate the disabilities of residents with mental and'or developmental disabilities and that minimum standards regarding mental health, medical care, access to court, disciplinary procedures and protection from harm are violated. In Part III of the lawsuit, some thirty (30) individual named Plaintiffs assert individual claims of violations of federal and state law affecting them individually. This notice relates only to Parts I and II of the lawsuit and Plaintiff Intervenor's claims.
The Defendants deny the claims and charges made by the Plaintiffs, except those admitted in the Settlement Agreements.
The Court has not finally ruled on the merits of the Plaintiffs' charges or on the denials and other defenses made by the Defendants. However, some matters have arisen during the preparation of this case for trial that affect persons presently confined in BCDC who were not previously parties to the lawsuit.
This notice is not to be understood as an expression of any opinion by the Court as to the merits of any claims or defenses asserted by any party in this litigation. The sole purpose of this notice is to advise you (who have been identified as a person presently confined in BCDC) of the pendency of this litigation and certain events, including the certification of a class and of a subclass and the terms of proposed settlements, and their potential effect on your rights, so that you may notify the Court and the lawyers in this case of your opinions about the proposed settlements.
CLASS ACTION RUliNG
The Court has ruled that the claims of overcrowding at BCDC in this lawsuit may be maintained as a claim for declaratory and injunctive relief and attorneys' fees not only by the named Plaintiffs but also on behalf of a class consisting of all persons presently confined in BCDC or who may/will be so confined in the future. The Court has named the named Plaintiffs as representatives of the class and their attorneys,
2

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 7 of 10
Mary Y. C. Han, Shannon Oliver, and Joseph Kennedy, connsel for the original Plaintiffs, and Peter Cubra Esq., Elizabeth Simpson Esq., and Nancy Koenigsberg Esq., Cotmsel for Plaintiff-Intervenors, as connsel for the class and subclass respectively. The class consists of all persons presently confined in BCDC or who may/will be so confined in the future.
Establishment by the Court of the class and subclass means that the declaratory or injtmctive relief regarding overcrowding at BCDC and regarding services for people with mental or developmental disabilities granted by this Court to persons presently or in the future confined in BCDC will apply to all class members; that is, to all persons presently confined in BCDC or who may/will be so confined in the future. Future claims by class members regarding overcrowding at BCDC or regarding services for people with mental or developmental disabilities will be controlled by these settlements.
<
IERMS OF PROPOSED SETTLEMENT
It has been proposed by the Plaintiffs and Defendants, through their respective cotmsel of record, that Parts I and II of this lawsuit be settled, and that, if the Court approves the terms of the settlement, an Order would be entered by the Court, which, in summary, would provide that:
I. Until May 3I, I997 the average daily population at BCDC would not exceed 700. Beginning Jnne I, I997 the average daily population would not exceed 643, and beginning August I, I297 the average daily population would not exceed 586. These numbers include the people in R & D (the booking area).
2. No residents will be housed overnight in the holding cells tmder the district courthouse.
3. Within 90 days the Defendants will open a 25 bed detox facility at BCDC, and a IOO bed alcohol treatment facility at the Westside jail.
4. the Defendants make available to the Court and plaintiffs' connsel the audit report findings of the American Corrections Association;
5. Plaintiffs' connsel may apply to the Court for attorneys' fees and costs as provided by statute and Defendants may respond, the Court determining what fees and costs, if any, will be awarded;
3

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 8 of 10

6. All allegations in Part I (unconstitutional overcrowding) of the Plaintiffs' Complaint will be dismissed with prejudice as to the class certified; and all allegations in Part II (other constitutional violations) of the Plaintiffs' Complaint will be dismissed with prejudice as to only the original named Plaintiffs;
7. Services and treatment for people with mental or developmental disabilities will be improved and subclass members will be reasonably accommodated in various operations at the jail. The University of New Mexico will take over operation of mental health services. Disciplinary procedures, medical care, abuse investigations and access to court will be improved.
8. The parties will attempt to mediate any disputes before resorting to court. The Defendants admit violating one or more federal rights of some class members or subclass members and the proposed settlement with them is a compromise ofPlaintiffs' claims. If approved, the settlement and compliance with its terms will discharge the Defendants from any further liability to the class members for the overcrowding alleged by the plaintiffs in Part I of the lawsuit and to only the Plaintiffs named in the original complaint for certain alleged constitutional violations in Part II of the lawsuit. The claims raised by Plaintiff Intervenors regarding discrimination against people with mental or developmental disabilities and minimally adequate conditions and services provided to people with disabilities at the jail will be dismissed. If the proposed settlements are not approved, the proposed settlements will be deemed withdrawn and the lawsuit will continue as if it had not been made.
9. The Court will retain jurisdiction to enforce, review and modify its Order with respect to these settlements.

SETILEMENT HEARING

The Court will hold a hearing in the Courthouse of the United States District

Court for the District of New Mexico in Santa Fe, New Mexico at \: ;)Q 9,-ID'

on :Soj)\C.S~ \1) 1'{9-=t-

, to consider whether, as recommended by both

class counsel al1 the &ass representatives, it should approve the proposed

settlements.

If you are satisfied with the proposed settlements, you do not need to take any other action to indicate your approval.

4

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 9 of 10

If you object to the proposed settlements, you should take the following steps:

Objections to the proposed settlements by class members and subclass members will be considered by the Court if:
(i) a written statement of such objections, together with any other papers you propose to submit to the Court, is filed with the Clerk by mail [or deposited in the specially marked box on your level by December 2, 1996]; or
(ii) you otherwise communicate any objection to one of the class counsel by December 2, 1996.

Any objection must be postmarked or received on or before December 2, 1996.

If you believe that the relief provided for you under the terms of the proposed settlements is inadequate or you deem yourself or other class members entitled to .additional or different relief, you must object in this manner to the proposed settlement. If you do not follow these procedures you will be presumed to agree with the proposed settlements.

Attendance at the hearing is not necessary as you and your objections will be represented by counsel for the class and subclass.

FURTHER PROCEEDINGS

If the settlements are not approved, the case will continue to be prepared for

trial or other judicial resolution of the claims and defenses. The case is not expected

to be ready for trial before 'Q.l)~£:,-T , \39 --=t-

as substantial

discovery remains to be conducted. pending upon the results of the trial, further

proceedings may be necessary before the case is finally resolved.

ADDITIONAL INFORMATION
Any questions you have about the matters contained in this notice (and any corrections or changes of name or address) should NQI be made to the Court but should be directed in writing to:
Mary Y.C. Han, Esquire 1122 Central Ave. SW Albuquerque, NM 87102

5

Case 6:95-cv-00024-JAP-KBM Document 257 Filed 11/05/96 Page 10 of 10

or if you have or think you have a mental or developmental disability, to:

Peter Cubra, Esquire 122 Tulane SE Albuquerque, NM 87106

You may, of course, seek the advice and guidance of your own attorney if you

desire. The pleadings and other records in this litigation, including a complete copy

of the proposed settlement agreements, may be examined .

during regular office hours at the office of the aerk, •

>.~.5:}

:·,7:

South Federal Place, Santa Fe

New Mexico; COPIES MAY BE REQUESTED AT THE ABOVE ADDRESS AND UPON THE PAYMENT

DaOteFdTHE

STANDARD REPRODUCTION
November 4, 1996

11EE.

ROBERT M. MARCH, Clerk

Clerk

6

 
 Case 6:95-cv-00024-JAP-KBM Document 319 Filed 06/27/01 Page 1 of 7

UNITED STATES DISTRICT C9URT · ' • DISTRICT OF NEW MEXiCO

JIMMY (BILLY) McCLENDON, et aL,

Plaintiffs,

vs.

CIV 95-24 MV/DJS

CITY OF ALBUQUERQUE, et aL,

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N. W. on behalf of themselves and all others similarly situated,

Pia inti ff- Intervenors.

SUPPLEMENTAL ORDER TO ENFORCE PREVIOUSLY ORDERED POPULATION LIMITS AT THE BCDC MAIN FACILITY

THIS MATTER comes before the Court after a status conference on May 7, 2001.

1. THE COURT FINDS that the measures set out in the Court's previous Order

of September 25,2000, although partially successful, have nonetheless failed to achieve the

population limit previously ordered by this Court.

2. The Court's Order of September 25, 2000 and the November 5, 1996 Order

Regarding the Prison Litigation Reform Act require that the average BCDC daily population

at the main facility be no greater than 586.

3. Since the entry of the Court's September 25, 2000 Order providing for the

appointment of a pro tern state district judge, the Defendants, with the assistance of the pro

Case 6:95-cv-00024-JAP-KBM Document 319 Filed 06/27/01 Page 2 of 7
tern judge, have taken a number of significant steps which have reduced the overcrowding at BCDC by approximately 100 individuals. Although population levels have substantially declined, monthly average population levels at the BCDC main facility have exceeded the cap of 586 in seven of the last eight months, as follows:
(I) October 2000- 714.9 (2) November 2000- 611.9 (3) December 2000- 593.6 (4) January 2001 - 580.1 (5) February 2001 - 592.8 (6) March 2001 - 615.8 (7) April2001-617.9 (8) May 2001-651.9 4. Despite the considerable efforts of the Defendants and the pro tern judge, compliance with the Court's orders regarding population caps has not been achieved. Moreover, the population of the jail typically increases during the summer months and usually peaks around the time ofthe September State Fair. Accordingly, additional measures are necessary to achieve compliance with the Court's orders with respect to overcrowding. 5. Despite the efforts to date of the parties and the Court, 244 persons were brought into the jail by arresting officers in the month of March, 2001 and booked on petty
misdemeanors, including, inter alia, shoplifting under $100, excessive sun screen material
on vehicle windows, and unreasonable noise. Issuing citations for such non-violent petty
2

Case 6:95-cv-00024-JAP-KBM Document 319 Filed 06/27/01 Page 3 of 7
offenses and using the jail's "walk through procedure" for persons charged with such offenses would likely reduce unnecessary incarceration at BCDC.
6. As of May I, 200 I, 140 persons accused of a probation or parole violation were incarcerated in BCDC. Generally, those individuals are held in custody on "no-bond holds," without any opportunity for release while awaiting adjudication of their alleged probation or parole violation. Thirty-five ofthose individuals have been incarcerated under those circumstances for over six months and nine of them have been incarcerated for more than a year. Their lengthy incarceration without adjudication has constitutional implications as well as significantly impacting the Defendants' ability to comply with the population cap.
7. The Defendants operate a Community Custody Program which confines individuals to house arrest and/or to other forms of closely supervised community custody. However, the program does not permit persons who do not have both a permanent address and a telephone to be placed into community custody. A number of class members and sub class members are affected by this practice. As a result, poor people are sometimes incarcerated behind bars, while people with greater economic resources are permitted to be incarcerated in the Community Custody Program. The practice of denying community custody to otherwise eligible individuals, based solely on their lack of a permanent address and a telephone, increases overcrowding at the jail.
8. Many disabled persons who are incarcerated are unable to gain access to needed treatment programs either because of the unavailability of appropriate treatment programs for them and/or because they are not currently receiving SSI and/or Medicaid benefits for which they are eligible. Treatment programs and modalities which have
3

Case 6:95-cv-00024-JAP-KBM Document 319 Filed 06/27/01 Page 4 of 7
proven effective in other communities for the safe, cost-effective and beneficial treatment of individuals with mental disabilities are not available in Bernalillo County in sufficient quantities to serve sub class members who could end or avoid incarceration by participating in such treatment programs. Effective jail diversion services for mentally disabled sub class members are needed in Bernalillo County to reduce jail overcrowding. Increased intensive mental health case management, crisis housing, and detox services, as well as a drop-in center for psycho-social rehabilitation, would reduce overcrowding at the jail.
9. Many communities reduce jail overcrowding by disposing of certain criminal cases quickly through the use of an "early disposition program." Such programs enable prosecutors and public defenders to resolve many criminal cases within weeks, rather than months, thereby reducing jail crowding. In Bernalillo County, such a program has begun; however, few incarcerated individuals have been able to participate in it. The expansion of the program in Bernalillo County to include incarcerated individuals would reduce jail overcrowding.
10. Despite the considerable efforts undertaken by the defendants, the state pro temjudge and counsel the monthly head count has again begun to rise. Implementation of the activities set forth in '11'11 5-9 above would likely reduce the population of BCDC.
THE COURT HEREBY INCORPORATES the factual findings and procedural history recounted in its September 25, 2000 Order.
THE COURT FURTHER FINDS that the relief set forth below is proper and that the relief:
4

Case 6:95-cv-00024-JAP-KBM Document 319 Filed 06/27/01 Page 5 of 7
(A) is narrowly drawn; (B) extends no further than necessary; (C) is the least intrusive means necessary to protect the federal rights of class
members; (D) will have no adverse impact on the public safety or the operation of the
criminal justice system; and (l) is in compliance with the requirements of the Prison Litigation Reform Act. THE COURT DETERMINES that further relief is necessary in order to bring Defendants into compliance with its prior Orders regarding population caps. IT IS THEREFORE ORDERED that in order to achieve compliance with the Court's prior Order Regarding the Prison Litigation Reform Act, entered November 5, 1996, requiring a population limit of 586 residents at the main facility of BCDC, and the Court's September 25, 2000 Order, the Defendants shall: 1. Provide direction to law enforcement officials under the control ofthe City and/or the County to issue citations where appropriate and to use the "walk through procedures," rather than incarcerating individuals, where appropriate. 2. Within two weeks, the Defendants shall schedule a meeting or meetings, inviting counsel for the Plaintiffs and for the Plaintifflntervenors, the state pro temjudge, officials of the state Second Judicial District Court, officials of the Metropolitan Court, as well as representatives of probation and parole offices, the district attorneys' office and the public defenders' office, to plan how to reduce the number of incarcerated individuals at BCDC who are awaiting resolution of probation or parole violation proceedings. The meeting
5

Case 6:95-cv-00024-JAP-KBM Document 319 Filed 06/27/01 Page 6 of 7
will be held as soon as is practicable and the parties are to report the results of the meetings to the Court within two weeks of the meeting. 3. Within two weeks, the Defendants shall schedule a meeting with counsel for the Plaintiffs and for the Plaintifflntervenors, and shall invite to the meeting the state pro tern judge, officials of the state Second Judicial District Court, officials of the Metropolitan Court, as well as representatives of probation and parole offices, the district attorneys' office and the public defenders' office, and other appropriate officials of the Defendants' choosing, to plan how to include persons who do not have both a permanent address and a telephone in the Community Custody Program. The Defendants shall convene the meeting as soon as is practicable and the parties shall report to the Court the results of the meeting within two weeks of the meeting. 4. Within two weeks, the Defendants shall schedule a meeting or meetings concerning the provision of mental health services in Bernalillo County. The Defendants shall invite counsel for the Plaintiff Intervenors, the state pro tern judge, officials of the state Second Judicial District Court, officials of the Metropolitan Court, officials of the New Mexico Department of Health, as well as representatives of probation and parole offices, the district attorneys' office and the public defenders' office, and other appropriate stake holders of the Defendants' choosing, to plan how to implement an effective jail diversion program for persons with psychiatric or developmental disabilities. At the meeting the participants shall address at least those topics set forth in, 8 above. The parties shall report the results of the meeting to the Court within two weeks of the first such meeting.
6

Case 6:95-cv-00024-JAP-KBM Document 319 Filed 06/27/01 Page 7 of 7
5. Within two weeks, the Defendants shall schedule a meeting or meetings, inviting counsel for the Plaintiffs and for the Plaintifflntervenors, the state pro temjudge, officials of the state Second Judicial District Court, officials of the Metropolitan Court, as well as representatives of probation and parole offices, the district attorneys' office and the public defenders' office, to plan how to expand the program for early resolution of criminal cases. The Defendants are to convene the meeting as soon as is practicable and the parties shall report the results of the meeting to the Court within two weeks of the first such meeting.
HONO BLE MARTJQ\ VAZQUEZ UNITED STATES DJs'fRICT COURT JUDGE
Peter Schoenburg Brian A. Pori Andrew Vallejos
ArtAil'i"~kk
Peter Cubra Elizabeth E. Simpson Claire Dickson Attorneys for Plaintiff-Intervenors
N( o~J---...~(~-
Jeffrey L. Bakerl Attorney for Defendants
7

Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 1 of 11

B6/29/2Bel 1e:2B 58SB439425

REBECCA SITTERLY l.L.C

PIIGE Bl/27

REBECCA &mERLY, LLC

800 MARQUJ!Tl'l: NW, SUITE 280

P.O.BOX 7790
TELEPHONE (505) 243-7388

ALBUQUI!RQUE, NM t71U-T780
FACSIMILE (505) 843-9425

FAX COVER SHEET

TO

Jeff Baker, Esq.

FAX

786-9113

TO

Peter Schoenburg, Esq.

FAX

242-7845

TO

Peter Cubra, Esq.

FAX

256·7641

TO

Elizabeth Slm pson, Esq.

FAX

883-4599

TO

AndnowVallejoe, Esq.

FAX

242-4330

FROM

Judge Rebecca Slaerly

SENT BY

Jeanatte Brloaez

DATE

June 29, 2001

RE: McClendon v. City ofAlbuqwrque

No. af pagea transmltled: Twenly-aeven (27)
(Including tills page)

MESSAGE
Dear Counsel; June 29, 2001, update attached. Thank you.

DEFENDANT'S EXHIBIT
Pr

Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 2 of 11

86/29/2eBl

l.

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~ 82127

McCend.on update 6129/01

To: Hon. Martha V4zquez CC: Distribution List From: Rebecca Sitterly
pnhiadn&tmeeiwtstvgbiieatgc2ftbnaiJsveeclyIiedeinsSlsnittteboayoimdem.nvgikBpicaBvel!eIe!fpaCtomtnrycn;poeienocnuRlaz.ft,!moeoitWdbzhuaeeerntidnotemphsovaaettonarhletydrfeityMeicnsisenoog,CxgnscBtJhsetdlCilo:psdeudCltgpeiwaornaiyensetre,tbosdmiIcaofswiaspitninnhaas'cteng;lietqin!eolhuNgaldegirocal1stykv0gtolaeerbythemnirlasceiebntviniaeegcedssrseysuaIst!op,a,eput2fIiiren0suerrte0lpriticoch0mtnsde.omi.n1IsAdWa0maalmrilltyne0eoon1it1odfnphnttdrihthsebiteeehdarsaeoivlectp:iaiaoaponlmlrnrriiotto.oeigaanfurrtttaeihvwmeeissthtabr!eable

Prettial services lVlllk-througb ror misdemeAnor W2rl'2llts

Per attachmeDt l, 418 people wereWll!ked lhmugb mtber

than bookocl in the These people were

lasl90 days. bronsht tojail

on

wammts,

and

thcrcfQrc have already failed to appear on more

than one occasion. or~ - ' Y 80% .....

Isihttothweinrpgruopblaetmcso,uwrtbai.fcuhlrpwreallrkia-llbsreomugchcswficth:eolsut

is :111 outslallding auc:ccss.

Per attacbmc:nbi 2A-D, showing pretrial RDR

releases and walk-tbrouglls for just the last

four w~da. prottial servic<:s baS aceom-

plished anmngoofnearly tOO releases

per weekend. Oftbese, aD mngc o!m.orc than 30 per weekend did 1101 bave to be boola:d, tblls

significantly itq>aeting papulation.

JaBIIonse
to post

bonds 1O%

-

aBDWiiiJ

de!elldmts The

appcazwe

rates

~een !be I0% and

for both felony and tnisdenwmon cas!l/surety postirlgs arc very oimilar.

Per attachment 3, m= of the 10% bonded dcti:ndanbi appeared at

Court than those who posted regular c:llS!Ifanty bonds. Statisti£5 for the foUowing period showed 3 more misd'""eanor f'Ailures to appcu from 10% bOIIded defendaats lban c:asb/SIIrlty bonded defflndaots. We an: in the p10<:e$11 ofcompiling

complete numbers which will c:ozn.p8>'C
appearance ntes over the endn: summer. This progmn bas augmented the bOilded releasa, and all = t indicatioos slww tbat it bas
been companbly as successful as cash/surety bocds

in imllrilla app=anccs.

1

Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 3 of 11

86/2~12ee1 1e:2e 5858439425

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PAGE 83127

District Court paperwork plekup T~csfahiaftomelhnlpoeerrlrepuorirpvsrkaDrrmsrieoiwscoobgnipevwsmwge~irsttesirrahe.e:aissnbnct.ottdeeahta:d,ferrCipenrpftdn.taeeogrcedpdniountrfiCsidbiecrklmeetlatIlae,lheWnttdipeminiftanspaosoaTnp.giltawnlklte.hos"!dIgtCib£w«Wibtwaevrbteeien,yiOincmsbswlwgliawieiokakunbttuensbtpseiotpr.eneiheaacfabejtdmkpnharyhdauoieoblperpct.seDseahgtsorltePi'iewlsrilcmlxinullllntotcel8nirtgzirui!isDmailbclig:altgseapleCiositcnoenoloustnt:riutnpg

l'retrlal Servl«s call& to remi•d
people of eovt dates

cSCsomCCanataxtaati!ehofe:OaraoorWalevtteeutr-lunUchueitelre:mlrfj,earliIUtmntgeatadl!b.<hlidlailnnlalypuwlglieuuiA Jaegkpmeat<rruQCieetooettr:1lhehhssiO!l isDppD0JduaealIui20t igtbea4lbrw!ltt %cr.ailojsddtAse1ciotda~o a.twalt.i~ h-deaotitgrBsevTdi.genVo.ev,i~ -eamhoasa,CreatsbneirhcarPI,nloicYreltyneedr=elyneevdexsdvbasbpj,aetbpa;ue1iaerhrpzogacinebdyayapalhnwcePclgevlisaheemdnahaeeotemSeiseirrsrgvlwt.eadisooml'lmelilidrtim:nmdnlrfv!telWpoIa-ltagiIeMcehIrSlpayIiQlfetlerrICoshneaasfIoivu.IiratnewtpseeIrSrtMrd.ISpor,hd.lJp;Tfaee!&eaaea'hforahfn1orti~teilplererim.'irpasmzol-cdllntlpileBpehat!eceareio-icootg«rtopeshhnlrateta,plmtyphe,eanr

all 11>r

•vonse. TFCibitiwosttmbnrhhodsofifaauefipduohBsmoleoalrncrnpCdtnymaelnderoa,DetotcaatnhhafdrgrCrwecpisecrrra:eeddpaiela&retosmurhlOwoorpteitokdhvbfflgaueAbteiegaimhto1vfgoelbteuolBtitoanamet:srpnkilctCinlwwseleebailgDnodarmnehoepCeaop-Mafoclkcrmefrnpegc.ariat$pecucrepMTcCsoSo«rtptbasrlhcessietr.t1uatd,eboetiaSsrD..oxl2pcotsicwoii0teus.TmeltCn0toeeysdh1eptapotirtc.tsblouhloetieeootarElmlscatatytaoasalt,.we<ikreM2poloot;im0h4lncnreclelost1aJtatit.hnrIc\lw:Ilo:ow~elEplosdlwoeaebfrcirwarnatshhonatmfsedu-Oroiomgut:rMomhtottorheof
bookings per week.

2

Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 4 of 11

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PIIGE 84/27

Pretrial serous mlk·tlarougb
Oil opeo charlts

TpasrhewiWsep:lnrlionagasrraythmienjdwuicas&ltktsi-0tt11hl1rrtsocduagrIehIt=honatwwitewiserabwno&ts&r.kQi;ng

Dim"lct Attorney Sunday ooUes

wm Bdt1(ooielslrtglthtrtiielhinbctemehjtaellnnailolgf!sooletlilamen!iobcJpehrwaerynSoeiDaisawWncn:dqedw)euaa'e,kyine'e2dktAn0ro.da0ldls'1PDbe,reeecaatrflnlela!!eerhatcgtsawatesncsiahslawlnitmvcataihobcni•antcgivtnase6sgoe.csfonomnee• s
t1oafmo4lnsrn-lo2ySc2rapdesopile<rieetsleodvctphe!!ilsadteotsjrwaaw*vielaeeroeso5veugUodosrbcisCtnrhtoagoawnutttodid:auioblJWieonsnoolwiStoMbthUeciadcmevl'tdeldimatatyyone&pybi.icwneNaallonylytl,llristepaocrhteixslg
peak levels 011 Sunday !lights.

Sanday jadge Cor warraots

TMStraptrMheheunheeeslredreeiuutectrtljStlrw&yovhtuoelpiJe!yeJndgJliluscgfdaueiiadDadlnaopely;dgrlvxaceycet1mohasha3f!aiaa:aatkrn:vet:vrigvbaliomlIeD.eleIegweRrbg8dccyadseD.ltucMieoaontdcnTsinfgo!ooebcoohnndndoevaedlm0!ioldea.rwf0coisdiynaDceWhtapgfmearb1sdpo1plioi1mrltemn1.eolr"brl>1pnaai11ctsir1th:lnai,1omvapoSgna ctnc.oe1dpt1rs.bo0ia4Dte,~ d0buCdTirelaVJsabdllCft<­ aieiasIl<nYa)cpbdsmelaeedr,sdebldqyullcliinng

Bookblg area erowcllneeond111ous uBcoseiugnrigtn.tnh~ iengboino4keEianraglysta2hr0ea0as1tb,o1e3etzCnaDmusCpeodsrttuoppeapolelpldalBeiIDDgaanrde1aiotomr oourt Blln1re"'eaavfiioieiSSrrppeaOatgthrtauitsi,nciaoscmmdu0eip1s!l1e,";lb~e~olfyortbokhiymiDspaaas.cuwslcsiaoihnsnsot,mvtthheeierbcbbrlooyowoookkdviienendrgccC-rooOnwJo·>adCheiiadtisoants.

Metro Court • walk-i..

PpsBmnrCed'S'VDOaiCoIwIuwtasonloy-bu,aelnidftbawboeopakesaerrfsrdooe.usnotTesddhheioonwMntehtedheterucoopsjpmutoodptgpuaeatnesydrb,atatahtvkieccckoetto
agsot,arcrd!eei:ddetcaotolydal1alo0vwtohiWde jtlihllkde-gianems'sssootfaftihncdaetbl!obooegkepit«nI1gU0.1p1rcoacDess

3

Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 5 of 11

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Mttro Coart- <ouater authority

Beginning in spring, 200 I, Metro Court clerka were given great=" authority to deal with offmses and wamnts at the counter rather 111m requiring judge involvem011t.

Metro Court- 3'" party pay

Beginning in Spring. 2001, Metro Court clerks were allowed to take payments and pleaa from third parties
rn.allmheerdthdaonfebnedinangtRISn!raicdtedidtiotondtoeasllailvginoJnalygwteiatht dtheeal
of time and ill=ing tfliciency, t)lls action bas directly reduced the number ofbench wamnts lbat might otberwisa have been issued.

District Court- Speedy J&S

In the fall of2000, there were approxlmately 160

dcfcudant! at the jail who had beeB """""Ced to

the Department ofCom:«iOIIll, but who could llOt

be taken to the peni!entiary because the futma1

judcmCIIl and 5eiiUilCe bad 1101 yet been filed. B..,.,_ the

Dislrict Court judp started usiDg the 5peody judgmoat aad

seo~enee form developed by the Courl, the District

week. Attamcy and the Public Dcfeader, this 01DIIber has been

cut to lDider 20 in a usual

The District Coun judges

have done m excelloatjob with Ibis, aod they..., simply

now urged to not let the .a1t1:meys leaVe the~

without completing the J&S lor dcfcnclmls wllo have

been seotooced to DOC. Acans:istmt,. by aU ofthe judges will further reduce

~ cflbrt lhia ~·a!

the population. In aid of!hi$ effort, a &)/!Item bas been

set up so thai a captain from BCDC has regular email

contact with an assislant DA to track and lind missing

J&S's.

Beginning in J:umaxy, 2001, fur probation 'liolalion

hearings, many Dio.triet Cotutjlu!ses began reqniring

the attomeys to camplelc the speedy Order and

Commibocnt form :fur people mnanded to the Depaltmeal

ofCorrec:tiQIIS after violating probation. Similar to

cases involving dci"eDlhnts initially scn•cooed to DOC,

dozens of defCDC!aats remanded to DOC after violating

probation were wailing in jail for weeks or months while

the formal Onler and Cammilments were pr~.

This folm (which I for acvcnl months,

developed) bas naw beco 11$81!
and it is not nearlY as good ar user-

friendly as the J&S form developed by mere people

ever a longer p«iod. Pcrbaps because ofthis, thml arc

stiU a runnber of O&C defCI!dmts who don't get

transported to the Departm6nt of CorrectiCDS as qlliddy as

4

Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 6 of 11

06/2~/2B0l 10:28
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District Cowrt- GraDd Jury
indictmut presentments
ProbatioD aad Parole: 48-'hour Dodfioation

sPti!nhuhDeebiytmDtsosiifht$dloatferowuvlrcleemdtldoJbaupScld<lpaag:alaecbpuseeoictrartwrewterooeOrrrekae&q.rqcuCuIewisrafetamoeirdttmhirnet.ogeaIUftq ntolo<rtrulh1n!hhee~eeymsap1elhrtlaeoeonsmD~ teinmAety~ efse,ontrodm a completed O&C before the end of the day fur any probationeuemanded to DOC after vio laling.
BMtheeigsDcineinlslitanrnigcetoinAusDlloOe<mr:do8emyr,bto1crMp, 2rDo0v0isi0dt,reibc1ytllCeooppeurerratstebinoetnammoefnnatojuqudigriengwith
ipanlrfleoovlwmiosautlhis0le1y1pprooenssteewndthmbeotehnnedtrjauatndtgbineedtMiocteienlrduondCeedfociunar.tdtealleynvtaehpla.pslTyh!bisat pihtodMIcShrahfiSdeemveCpto-Wtideer(nlDokcxotlglCOcfipyCscdettltonre]ioeoonmdamwdnfgmrbouatetbehcwtibsotenefotiniiceotnfnsdhhdumidjettcawaohtjciohnaaleatadirhstsalvhrsebpabnienoonoeitnngoietpflsdenkttutlwhiweollc0eidsltsi0pytmtd1iohpooi1ienrsnsna5onttdteirbgthasii,.wtcrcyoentattshnlbemloeeutewoldosydWina,clumsdrlaalaetlsssvd1moi.oei:udiJll.mm:bligT!ltgtlitIeh5liohSniht,tnchsitaemlal'eDwmyldlleieobdl.t,mo0huDSaieliO0bICdnVctod!Orlo$dr
enforced.
B tMBapsdoDeeeeYidnesftcpm.eohyer!t~ oallci•nlflllwyd!stwlh1ahoaieensocifeontoaawuliarossDddensbeeOreiegrefacrf,maneodhtedmhxeedderclahb,djrn!eeuepboartdr,ewrnodgi2bnoaeea0sagnr0pewstseii0rogaioobt,nnhnbb&yeiaonytduthtbfbjiofe4ioe:i.sp8cJntppadeerhDrogrrooasoftebibtfuawiiWlalorlcsttennaeiir.oloorselo'on!:sflorfelaeooobaraqftnetmfyolrlileicoearae«rrdfnrrf<,.eee1srvltmens
gioOnxfvamaetrpaetrnrhoy<ebia!lnaatispsottaensn.evcvieoeslraiantliomwnhocincathbsest,hw1eibtpharvooeubtanptoirotonbmeerepintlljmubdeagidneegahwealdre notificalio!l.

Preuial servkes: hacreued
ROR authority

B~g in early 2001, Pretrial Services was given
ioCanuoacttitto>hegOaeorsi<iretY)dol w~2iilinMiuirbedeoclerioiadtgywnntimooznario-anvtnceietorsvla(imfowtewthrlebabrinoerdo4akdrji.eunolSdgeR.ga'sCeTemfhdeWeclofilDetnblIi:leIedesmasOseteDesncdl).
5

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Preoi2l Strvlces: B011d Transfer

Beginning in early 2001, Pretrial Scviceo was giva. authority to tramfer bonds posted in Metro Court to

District Court gnnd jury indic:nnents, after inletview

and verification.

Pretrial Servlcq: FIDurc to appear at District Court arraifD.me:ats
Metro Coart TOTs
BCDC: CCP prognm
BCDC: N111e Poiat Pro:ram

There arc many cases where a defendant is indicted

on an o:ftim;e which is months or years old. When

the Defendant fails to appear at amU8DilJenl after

having merely

baereensunlot toicfeadninou. todfatetend1sh.<eJdfmaiolrlal.lePtonmapiapleSarerisvices

was given authority to release thcso: defcudanls once

they are interviewed and ...:urat• address infonnatioll

is verified.

"TOT" refers trai!Sfe:ring a

ctoas"etrbaamckfetrootvheerctdoatilawplryat~ tlce of

judge ror disposition rather tban dealiog with tho

casobcfoxe tbe mai~ judge. judges have reduced Ibis practico time and paperwork ib>: tho court

The Motto Court
cgai.6caatly, saviD& and savin& jail time.

TwThOhoeTtree,thUeasDsu1ibllterioenncg"ia'nllSdlyao,toutbhrdolcaiewy waorrarlstaiaS&nldi"ll"ka'c"cc"oppmirllomgcod:cneafue:snedoanfrs

in jail until MON!ay mornings. cease tile TOT pracUce, wbicb

Thatj1111ge has agreed
sbould liJrthcr assist in

to

rodut:ing weekend ov=wding.

TmhcetrCo CanPdJ7d1is0t8rilc"1lllthoallsl'tbjeuedn.gccx$phaaavdeomd,aadoedDaIlIlICohfthe
increas«< usc ofthis program. I have asked that an topumwhbrpneaaoadlytdCgeawratCtiaenoamPeoeju.adnsb=i=Tulamshattsihtwilreiisi=zsesapastpiwiruttcroiilbonotsgeegngrrtdarhehfamciluenam:rartIear>pof:dnerouieonyrtrobop:iipabn.lttelihctco0Aorir1pscelb1lasupeeoavemne,i0dodow0al1trruaeao1f1tmsciininoiliedicanzbeelnairdocvetciaidicdtaasommofleul:nsyforewibDfa.chlbdsibniolaleie&s1o
have telephones.

The N'me Point Program oince JUIUalY, 2001, and

bas been in isjustoow

the pl:llllling slaJ!"S getting roally Slllted.

Thepmgram is directed at tbemCIIW!y in incan:cntcd

pirnoo.cppaour:clravetirisaoitonendaonCdfDdticisfefdpict=ufiu.glrtntinhemde eetoftfci:ps:emw1Yllhoiodfewtbvoaeurirlydiilnlnnotectaabss.eivAe

6

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Prebation and parole: Dul oapervisioa
BCDC: Early release BCDC: Tl'llllsitlo• CCP.

sample N"mc Point Plan is anached at attacbuiont 7, and addresses ilfea:i ofbasic: survival, treatment and activities ofdaily living. The program is hlsl<lric, bcc&U3C it involves only I0 people in the case manager'• caselcad. and an effort to bill Mcdiclid for the case mana&er'• time. Ifthe cusc mBil23c:r's billings pay thCI eqmvalent or close 10 the equivalent ofhis.lber salary, and iftbe low cue1oad and intense involvemeot with the defendant succeeds over long view, we can sec having five to teo N"me Point case maDa&trS md bemg able to release fifty to one hlllldfed meDtally ill imnates to a therapeutic plan. The pilot program 11ri.lllast six months and is being very closely wat<:bed because of its enonncus potc:ntiel.
By~us Order, probaticm md parole have been requested to pursue a parole violation t3lher than a probation violation, if the person is UDder the dual
gopeMsion ofboth probati011 and parole and i$ allcJed 10
have violationhis/her collditiOilS. Parole hearinp aie much quicker than probation hearina;s, and it ICiiCVCS. the lel1gtJry delays found in probation violation cases. However, there is a co.m:nt controversY 011. this i = , becanae the stale is required to reimburse BCDC fur bcuoing parole violalors awaitillg barinS$. bot is DOt requUed to reimlnlne BCDC fer housing ~on violal<ml. Ofcourse, Ibis encourages use ofthe probetion violati011 uaclc where available. The r.amilications of this problem are cumntly bein& discussed and explom:l. ·
The jaiJJw always had oc:casiODS ~ the aaaigsuod judge is asked to allow a few days early releuo for certain inmates. In the cum.rt avcn:rowding scenario, I have tried to stalldardize Ibis effort so thai all imoatcs wi1b sentences offour or more mcllths are consicle<ed for early releases ofup ro 7 days. I do 1101 recommend retainiJlg this program after the newjail is built unless it is spccifica.Dy tied Ill some sort ofinoontive program approved by the
amgrredjudge.
Fer il1Dlates who have ..:tually served mor:e than
five month> in jail, we are looiing at transfening the inmat~ to CCP approximately 30 days ptior
to release. This allows monitoring ofthe imns1e wbile
requiriJlg the establishment ofCQilDSeling, :tllll-lime etilploymCIII, druglalcohol rchabilitaticn 5llj)pOrt before the sesrtenco is finaled. The theery is !haC llli.o form of · tranSition win help to reduce recidivirm 20 oppcaed to
7

Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 9 of 11

e6/29/2eet 1e:2s 5058439425

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District Court! Voluntary sarreader

simply putting the defendant on the street after smving the sentence. The theory has not bee tested, and comparison .statimcs ha~e not been compiled over time. In the federal system. sentenced defendants are routinely told wbich facility they will be detained in and ""' allowed to tw:n themselves in ta that facility directly. The COI!Cept docs not have the potentilll for very wide app!i.ation in District Ccllt!, because~ people who aro being sent:nced to DOC are not out of custody at the timll they are sentenced. It would not make m1lcll seue in most cases to have the person leave BCDC so he/she can tum lhemselves in at DOC in Los Luoas. However, I have talked to Nick D'Angelo at OOC, aDd he informed me that many judg.. n~quire defendants to tum themselves in. The defecdant must have a ccrti1ied copy ofhislher J&S or O&C at the time he/she goes to the facility. Tho cou:t's clerk must cbocl: to make sure the defc:ndant shows up at tbc appointed time, bccausa DOC has ~er offered Ibis service to my oftbejwlges arom>d the stale. Ulldcrpresent cimlmsta"nc:es,lhi$ initiative would have ODiy a $!lWl impact onjail population, but I am provid!Dg diftctio1IS to DOC in Los Lunas for the clc:rk:s to give to c~Cfc:ndants who have bee~~ ordered to tum themselves in to DOC.

BCDC ~ey respoase 1<2111

The ccm:ept ofa poplllation ......,..gcmey respcmse team was COI!temp!atcd to apply when the popularlon reached a levd of 10% ~er cap. My thought was that tbe team would be composed ofJalm Dlmti$. myselt; Robert Padilla ofPt=ial S.mrices, and Vince Peel ofCCP, aJid thai we would worlc as late into the nisht as n=ssary to make appropriate decisiOIIS to attanpt to reacll cap. This concept is really only applicable to the winter JllODib3, as . - y summer day is a constant struggle to approach cop.

APD bookiDc reducdon

APD has been convinced to direct its officen to cite and :relcue of:fenders in the field for JDi5clmlcanor activity which is not vioient aod dces not pose a threat to the safety of tile community. This action has been scrioasly undertaken only as ofJune, but the beneficial ef!"ects were felt illlroodiataly in terms ofjailpopulation. At the same ~ we ne<!d to traclc statistics for tbis l)ipC of condlu:t to sec if there is lilY real or serious ~in crime rate for petty, norrvio!omt misdemeanors.

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APD: Phone nnl!lben APD BookiDg serge:mt

APD officm have been instructed 10 obtain every poasible phone nwnbtlr .from people !hay stop ond am:st or cite and release, and to write the phone number{s) on the f:!ce ofthe amsting!citing document Thi$ will immediately bclp the efforts ofPn:trial Scnicos to call and remind people ofcour! datos, and the o:ffcxts of the BCDC clerk to DotifY people that there is a wammt for their amost.
An APD sergeant assigned to BCDC has just stuted bill dutios this last Wednesday evening. He wori<s four tenhour shifts from 6:00p.m. to 4:00am Wednesday through Saturday night He will assist in familiaming officers with the walk-through program and will make decisions, when neces;azy, on which cases arc appropriate for w.U.:-tbrough as opposed to booldng.

AB you eanseo .from the ob'limu results before us, without the implementation ofthe:sc initiatives, the average IIUIIIIIler populalion would by now have reached 200.300 people over cap.
ACCOJding to Gloria Pena 21 Mettopolit.m Court, case :filings in Metro Court alone ha-... ine=aed by 21% in the :first :fivelllOIIth$ ofthis yoar over the :tim five m<lll!lls of laQ yu-. lD <:On!x3$t, we are managing with great effort ami continual, coDScioua awarc:ncu ofthe problem 011 the part of all ofthe people who impal:t the oystem, to keep the summer population much closer to !he cap than we thoug!D possible. It is certainly much better tharllast summer in spite ofin=ase in case filings and a g<:Deral increase in Albuquorque's pQpulatio.a.
There are a few serious things left !hat we ean conccnlral£ on. First and .forc:IDosl, we need to figure out a way to get the probation violation hearings resolved more quicl<ly. For!hose people wbo are not guilty, it accomplishos an earlier release. For those people who are guilty, it ac:complishcs an earlier transfer to DOC ifremanded tbeno by the assillll"'ljudge. This would not affi:d those probationc:s who am being COCC\liielltly held on new charge~ which are so serious and which have bauds so high that they would not be released IIJ'fWl¥. It would, though, &ffi:ct a blrge niiiiibcr ofpeople who are not being held on concurrent charges or whose new cbarges have been nolle'd by the DA.
Second, we can make more u.so ofDOC at 1he district court level. I confimled with N"ICk D'Angelo that although DOC is not necossuily thrilled with it, lbcy have 1101 dlalleDgcd a judge's sentence to DOC for Jess !ban a year whete the poteotial penalty fbr the crime is grcalor than a year. l have gotten awfully familiar with a wide variety ofJ&S's over the paat nine months, aru1 many district judges are alroady sentencing probation ViolatOIS to 3-month lo 12mollth DOC sentences. This approach could be utilized to a greateroxtent, and DOC has its own programs ofbalfway hou.serelease, work release and the like.
Additional areas for couceotmion ue the mentally ill population, the holding ofpuole violators/detainees, reducing the time frames (eveo by a day or two) ofeach segment ofthe judicial process, the early disposition prognm by the District Attorney/Public Dcfellder, lllld increasing booking efficiency. In the longer t.:nn, we need to get the computer systems oflhe major participants to be able to speak with each other, aru1 to improve tbe obili1y ofthe jail to
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Case 6:95-cv-00024-JAP-KBM Document 319-1 Filed 06/27/01 Page 11 of 11

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retrieve deJa oo that we can get per-judge custody lists and other information. Judge Grant is spearheading a Homeless Court effort which is truly wonderful. and thla ne«<s lo be supported in eYOIJ' possible way, as does Judge Fitzwater's initiative for the Mcnlal Health Court. The sobering center gave .,. thirty beds to use for intoxicated people- we ooed. dozens more.
I will be 1onc for tho month ofJuly for a one-week leaChing JmlSI1Illl followed by a lhroe-wock lnining program. I have tried to set up procedures tbat will allow mo to take action long distance or have other judges cover for me as necessary. I request that the Mttxo Cowt and District Colli! judges respood quickly to requests from CCP pmomel for permission for transition to CCP and =ly releases, as I have asked BCDC to go straight to the assigned judge in my amence. Also,! can be reached at 238-5151 if any ofyou have questions, eoocems. or rc:qu...ts.
Thmkyou,
Rebecca Sinerly P.O. Box 7790 Albuquerque, NM 87194-7790 O.flice Phooe: 505-243-7388 CeU Plicae: 505-238-5151 Fax: SOS-843-9492 email: bebka@aol.com

10

 
 Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 1 of 36

•

IN THE UNITED STATES DISTRICT

FILED

FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, HAROLD :

LUND, PETER SUMATKAKU,

:

DAVID M. BAUER, CARL RAY LOPEZ, :

BRUCE DAVID MORAWE, THOMAS YOUNG, :

RUTHIE DURAN, DEBORAH LAVERA,

:

JANELLE ROYBAL, DANETTE DIFIORI, :

Class

MARIA SISNEROS, LARRY GREEN,

:

BARTEL HALEY 1 MICHAEL COTE 1

• •

JOE RAY HERRERA, JOSIE KRIENA,

:

DEBBIE LUCERO, DAVID SHAWKIN 1

:

'MARC A. GILLETTE 1 GEORGE CHAVEZ 1 ••

ELISEO BACA, CLINT BARRAS,

:

civil Action No.

FRANCISCO MELENDEZ, SAMUAL HERROD, :

CIV 95 00 2 4 ' " VINCENT PADILLA, CARL DUCKWORTH, :
JOSEPH W. ANDERSON, PAUL JOHNSON, :

FRED MALL, HECTOR LOPEZ, RICKY

:

ROSE, HERBERT KING SR., JAMES

:

PARKS, MICHAEL A. JOHNSON, JOHNNY :

VALLEJOS 1 JOE NEWBERRt 1 DARRYL

:

CRAFT, ALBERT WILLY, WILLIAM

• •

P. JIMMY, AUGUSTINE TAPIA, RICHARD :

A. SMITH, ROBERT LOVATO, ROY

• •

WHATLEY 1 MARTY BEGAY 1 MARTIN

:

VALDIVIA, TALLIE THOMAS, AUGUSTINE :

DON J. SVET

JACKSON, DONALD HALL, CARL SUR, :

STEVE ESQUIBEL, LONNIE WHATLEY,

:

JAMES SAIZ, BRYON ZAMORA, ALLEN M. :

SAWYER, PATRICK BENNY ROMERO,

:

RICHARD C. KOPECKY, PHILLIP SHUMATE 1 NELSON ROMERO 1 STEVE

. :
•

JOHNSON, BENNIE F. GARCIA, LOUIE :

CHAVEZ 1 BRIAN SALAZAR, RICHARD

:

GALLEGOS 1 LARRY STROUD, JAMES

:

BURKS, BRAD FISCHER, AMIHON BACA, :

JEFF DILLOW, PETE MCQUEEN, MANUAL :

MARTINEZ, ARNOLD ANTHONY MAESTAS :

JOHN HEWATT, AND ALL OTHERS

:

SIMILARLY SITUATED

:

Plaintiffs,

:

:

vs.

:

:

CITY OF ALBUQUERQUE:

:

MARTIN CHAVEZ, MAYOR OF

ALBUQUERQUE, THE COUNTY OF

BERNALILLO, BERNALILLO COUNTY

•

COMMISSIONER PATRICK BACA, COMMISSIONER ALBERT VALDEZ,

COMMISSIONER EUGENE GILBERT,

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 2 of 36

COMMISSIONER BARBARA SEWARD,

COMMISSIONER JACQUELYN SCHAEFER,

BILL DANTIS, DIRECTOR OF THE

BERNALILLO COUNTY DETENTION

CENTER AND THE BERNALILLO COUNTY

DETENTION CENTER, BERNALILLO

COUNTY DETENTION CENTER EMPLOYEES

PAUL SANCHEZ 1 FRANK LOVATO 1 DEPUTY DIRECTOR ERCELL GRIFFIN, LIEUTENANT.

MICHAEL SMITH 1 LIEUTENANT JOHN

:

VAN SICKLER, OFFICER WILL BELL, :

LIEUTENANT ALBERT CHAVEZ,

:

LIEUTENANT FUSCO, GEORGE FUENTES, :

LIEUTENANT BACA, VICTOR HERNANDEZ, :

ltEVIN D. SEVIR, DR. MASON, BARBARA :

COLE 1 KARIA LUCERO 1 MEDICAL STAFF :

NURSB DAVID, CAPTAIN FELIMON

:

MARTINEZ 1 STANLEY LENTS 1 DOUGLAS : ROBINSON, SEAL BARLEY, LYNN KING, :

DAVE SHERMAN, BRIAN KASER AND ALL :

EMPLOYEES OF THE BERNALILLO COUNTY :

DETENTION CENTER REFERRED TO AS :

11JOHN DOE" and OTHER BCDC EKPLOYESS:

MENTIONED IN THE COMPLAINT BUT NOT :

IN THE CAPTION OF THE COMPLAINT, :

Defendants.

COMPLAINT CLASS ACTION Comes now plaintiff above-named, by and through their attorney of record, Anthony James Ayala, P.A., and for cause of action and claim for relief against the defendants allege as follows:
I. PRELIMINARY STATEMENT 1. Anthony James Ayala, brings this class action on behalf of the Plaintiffs and all prisoners who are presently, or will be confined in the Bernalillo county Detention Center (hereinafter referred to as (BCDC). Plaintiffs contend that the totality of the overcrowding and other conditions at BCDC fall beneath standards of human decency, inflict needless suffering on prisoners and create
2

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 3 of 36
an environment which threatens prisoners• mental and physical well being, and results in the physical and mental deterioration and debilitation of the persons confined therein which is both unnecessary and penologically unjustifiable. Plaintiffs ask this Court, after hearing the evidence on the allegations in this complaint, to declare that the totality of conditions and certain specific conditions presently existing at the BCDC are unconstitutional under the Constitutions of the United States and New Mexico and further are in violation of certain statutes of the United States and New Mexico. Consequently the Plaintiffs ask that the Defendants, and each of them, be permanently enjoined from operating and administering the BCDC, or any other facility to which the class members may be assigned, except in compliance with acceptable constitutional and statutory standards as are established by this Court.
2. ·The Plaintiff~ mentioned herein seek to obtain declaratory and injunctive relief from wide spread and severe interference with federal constitutional and state mandates, statutory requirements, and established national policies. These state and federal mandates, requirements and policies provide that citizens of, and persons within, the United States are not to be subjected to practices which, inter alia, inflict summary punishment by the use of force beyond that which is reasonably necessary to serve legitimate ends and which is arbitrary, unreasonable, or shocking to the conscience. Such illegal practices have been implemented by the Defendants in the BCDC and
3

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 4 of 36
their agents and employees which have deprived persons of all races, colors, and national origins of basic federal and state rights. Such practices have been implemented with the intent, andjor the effect, of inflicting disproportionate abuse upon persons of Hispanic origin, Indian origin and Black persons and, therefore, also constitute a pattern or practice of discrimination on the basis of race, color, or national origin.
3. The practice of the Defendants are implemented by the BCDC personnel whose activities, in part, are funded by substantial amounts of federal monies. The practices of the Defendants affect persons resident of Albuquerque, New Mexico, and persons who enter and leave Albuquerque, New Mexico in the course of interstate commerce.
4. The Plaintiffs, through Anthony James Ayala, P.A. seek: to enforce the provisions of the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States; to see that federal law is faithfully executed as provided by Article II, Section 3 of the Constitution of the United States; to protect the freedom of persons within the United States to travel and transact business in channels of interstate commerce as established by Article I, Section 8 of the Constitution of the United states; and to protect the rights of persons within the United States to receive the benefits of the supreme law of the land as provided by Article VI of the Constitution of the United States. Such practices of the Defendants violate the clear national policy
established by Congress in 42 u.s.c. §1983, 18 u.s.c. §242, and 18
4

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 5 of 36
u.s.c. §245. such practices also violate the constitutional principles, laws, and regulations that are implied as conditions in federal grants received or administered by the City of Albuquerque and the County of Bernalillo and the other Defendants mentioned herein.
5. Insofar as such practices of the defendants are implemented with the intent and/or the effect of discriminating on the basis of race, color, or national origin, the Plaintiffs also seek to enforce the protection secured by the Thirteenth Amendment to the Constitution of the United states; the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States; 42 u.s.c. §1981; Title VI of the Civil Rights Act of 1964, as amended, 42 u.s.c. §200d; the regulations of the Department of Justice, 28 C.F.R. V4,6 42.101, et. seq.; Section 518 of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 u.s.c. §3766; the regulations of the Law Enforcement Assistance Administration, 28 C.F.R. §42.201 et. seq.; Section 122 of the State and Local Fiscal Assistance Act of 1972, as amended, 31 u.s.c. §1242; Section 207 of the Public Works Employment Act of 1976, as amended, 42 u.s.c. §6727; and the regulations of the United States Department of Treasury, 31 c.F.R. §51.0, et. seq.
l:. JURl:SDl:C'l'l:ON AND VENUB
1.1. This Court has Jurisdiction of this Action Pursuant to 28 u.s.c. §1343, 28 u.s.c. §1345, 31 u.s.c. §1242 (g) and 42 u.s.c. §3766(c).
1.2. This action is authorized by law to redress
5

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 6 of 36
deprivation under color of law, statute, ordinance, regulation, custom and usage of a right, privilege, and immunity secured to Plaintiffs by the Constitution of the United States of America, particularly the First, Fourth, Fifth and Fourteenth Amendments thereto, and under Federal Statute, particularly Title 42 u.s.c. § 1981, 42 u.s.c. § 1982, 42 u.s.c. § 1983, 42 u.s.c. § 1985 and 42 u.s.c. § 1986. Accordingly, this Court has jurisdiction over the claims pursuant to 28 u.s.c. §1331 and §1343 (3)
1.3. Plaintiff's claims for relief are derived from common nuclei of operative facts involving substantially identical issues of fact and law, such that the entire action constitutes a single case which would ordinarily be judicial economy, convenience and fairness, and in order to avoid unnecessary duplication and multiplicity of actions, this Court's jurisdiction over the claims, which are based in part upon state law, is pendent to the court's jurisdiction over the claim.
1.4. Additional and further jurisdiction over this Court in invoked under 28 u.s.c. §1331 and therefore a claim for relief arises under 49 u.s.c. §3750(b) in that the amount in controversy exceeds $50,000.00, exclusive of costs.
1.5. venue is proper in this Court. II. PLAINTIFFS
2.1. Plaintiffs are all United states citizens, live in the State of New Mexico and were residents of the State of New Mexico at the time of the events complained herein.
2.2. Each of the named Plaintiffs is or will be a
6

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 7 of 36
prisoner incarcerated in the BCDC. several of the Plaintiffs are now or have been confined in segregation facilities at BCDC. Others are now or have been incarcerated in the protective custody facilities of the BCDC.
III. DEFBND.MTS
3.1. Defendant, the city of Albuquerque, is a Municipal Corporation, incorporated pursuant to the laws of the State of New Mexico.
3.2. Defendant, Bernalillo County, is a County recognized pursuant the laws of the State of New Mexico.
3.3. The Defendants, City of Albuquerque, and the County of Bernalillo, have received and are receiving substantial amounts of Federal funds.
3.4. The Defendants, City of Albuquerque, and Bernalillo County, maintain and operate the BCDC for the stated purpose of enforcing, within its corporate limits, its• ordinances and the laws of the State of New Mexico.
3.5. Defendant, Martin Chavez, is the Mayor of the City of Albuquerque. He is responsible for the supervision, direction, and control of the conduct of the executive and administrative departments of the City and the BCDC.
3.6. Defendants, county Commissioners Patrick Baca, Albert Valdez, Eugene Gilbert, Barbara Seward and Jacquelyn Schaefer, are the County Commissioners of Bernalillo County. They are responsible for the supervision, direction, and control of the conduct of the executive and administrative departments of the
7

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 8 of 36
County of Bernalillo and the BCDC. 3.7. Both the Mayor of the City of Albuquerque and the
Bernalillo County Commissioners appoint the director of the Bernalillo County Detention Center or consent to the appointment.
3.8. They approved of any action by the BCDC Director to apply for and receive funds.
3.9. Defendant, Mr. Dantis is the Director of the BCDC. It is his duty to manage all operations of the BCDC and to administer and enforce the laws with which he or the BCDC is charged.
3.10. Defendant Dantis as the Director of the BCDC has numerous duties as set out in state statutes.
3.11. Defendant Dantis as the Director of the BCDC is responsible for the overall daily operation and management of the BCDC and is responsible for the execution of programs at the BCDC
- as well as other management duties. 3.12. Deputy Director Ercell Griffith is the Deputy Director of the BCDC and has numerous duties as provided by law, and also is an individually named Defendant.
3.13. Paul sanchez, Frank Lovato, Lieutenant Michael Smith, Lieutenant John Van Sickler, Officer Will Bell, Lieutenant Albert Chavez, Lieutenant Fusco, George Fuentes, Lieutenant Baca, Victor Hernandez, Kevin D. Sevir, Dr. Mason, Barbara Cole, Maria Lucero, Medical Staff Nurse David, Captain Felimon Martinez, and Stanley Lents are all employees of the BCDC.
3.14. That the Plaintiffs are unaware of the full, true
8

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 9 of 36
and correct names of Defendants named "John Doe" and after discovery of the true and correct names of said Defendants, Plaintiff will provide the same to this court and the Plaintiffs pray that they may be allowed to proceed accordingly.
3.15 Each of the named natural person Defendants has acted, and is acting, pursuant to the laws, ordinances, regulations and customs of the City of Albuquerque and the County of Bernalillo, the State of New Mexico and is named herein in its official capacity.
3.16. Each·of the named natural person Defendants have initiated andjor continues to enforce the policies, practices, and procedures which the plaintiffs hereby seek to have enjoined.
3.17. The Defendants have pursued and continue to pursue policies, practices and procedures which result in a totality of conditions of confinement at the BCDC which violates the constitutional and statutory rights of the Plaintiffs and has caused and is causing persons incarcerated therein irreparable harm.
3 .18. That the BCDC is presently and has been for some time grossly and inhumanely over crowded. New State of New Mexico DWI Laws which require mandatory incarceration for misdemeanors, and the growth of the city have made the over crowding at the BCDC totally and completely intolerable. Some of the original space allocated for recreation in the women's area has been converted to house male inmates. on information and belief, the Plaintiffs allege that the present space used for housing prisoners was
9

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 10 of 36
originally designed to house a capacity of approximately seven hundred prisoners. Although Plaintiffs maintain that the "design capacity" would not meet constitution standards for living space for prisoners, the BCDC and the Defendants presently house over 1000 prisoners.
3.19. The Defendants keep a large portion of the prisoners at the BCDC in cells and force the prisoners to live in cells which are approximately 6' by 9' in size. Although cells of that size do not meet any modern recognized standards for space for human beings in prison, the problem is exacerbated by having two or more people housed in many of them, with one or persons having to sleep on the floor, often without a mattress. In addition, the PCU Unit which is designed to hold twenty five (25) inmates, at various times has held up to fifty one (51) inmates, and those prisoners are all mentally impaired.
3 . 20. The Defendants keep the majority of the population at the BCDC house in "pods" which are grossly and inhumanely overcrowded with mattresses, blankets and other materials, and packed so tightly in many places that there is no space in between them and with many prisoners having been forced on occasion to sleep on the floor without even a mattress.
3.21. The Defendants force the prisoners at the BCDC to live in "pods" which are filthy and impossible to clean under the present over crowded conditions. Similarly, the Defendants force prisoners to live in "pods" where security is impossible to provide, thereby endangering the lives of the prisoners confined at
10

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 11 of 36
the BCDC. 3.22. The Defendants force the inmates at the BCDC to live
in grossly overcrowded areas thereby denying them Constitutional Rights and destroying the possibility of privacy for the persons housed there, and which results in increased violent and homosexual acts.
3.23. The Defendants force the inmates at the BCDC to live in grossly overcrowded areas which causes tensions, anxiety, frustration and emotional and psychological problems. In addition, the overcrowding exacerbates virtually every other constitutionally deficient aspect of the BCDC which has existed and will continue to exist in spit of the overcrowding.
3.24. Defendants keep the inmates living at the BCDC, and the BCDC living quarters are totally unfit for human habitation from the standpoint of health and sanitation. Mice, roaches, and other vermin are commonplace. Toilets often do not work properly and are never properly cleaned. The plumbing in the BCDC and the sewage disposal system pose serious threats to the health of the persons incarcerated there. Inadequate lighting throughout the living areas is physically and mentally harmful to the BCDC prisoners. The lack of minimally adequate ventilation is likewise harmful to the inhabitants. Temperatures are often unbearably hot in the summer and cold in the winter.
3.25. The Defendants control the food service facilities and the BCDC does not meet minimal public health and sanitation standards. Proper methods are not used in preparing and handling
11

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 12 of 36
the food served to prisoners. The food served is nutritionally inadequate.
3.26. The Defendants force persons incarcerated at the BCDC to live in constant fear for their lives. Physical attacks upon prisoners are commonplace. Sexual assaults are a daily occurrence and regularly occur and the refusal to submit to sodomy and other assaults often results in serious physical injury. The fear of such assaults and injuries is so great that many prisoners have requested to give up what little freedom or access to recreation they have in the general population to be locked up and segregated in single-cell "protective custody." This "protective custody" cell block is the most overcrowded area in the BCDC with two or more prisoners confined in a cell with an area of thirty eight (38) square feet. Prisoners are also confined twenty four hours a day except for three hours per week allotted for exercise and showers. The BCDC officials have not instituted any programs or practices as will reasonably guarantee the physical safety of prisoners from violent homosexual acts against them.
3.27. The BCDC is severely understaffed in professional, education and security personnel. This under staffing contributes to the inability of the BCDC to meet minimal constitutional standards as are described in this complaint. The staff that is available is inadequately trained.
3.28. Idleness is the hallmark of the BCDC. Most prisoners are in the BCDC on misdemeanors and are processed and are released within weeks, however several prisoners are in the BCDC awaiting
12

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 13 of 36

felony proceedings, or are individuals who have long prison terms

awaiting them, and for those prisoners there is not a regular

meaningful industrial or institutional employment, training or

other constructive activity. Neither are there adequate basic,

vocational or other education programs to meet the needs of those

incarcerated for long periods of time who desire to participate in

meaningful education training. The forced idleness especially by

felons contributes to a deterioration of whatever work habits and

skills the prisoners may have possessed when they entered the BCDC.

3.29. The Defendants do not provide any recreational or

exercise opportunities for the inmates at the BCDC. Recreational

and educational opportunities are inadequate.

Recreation

facilities, equipment, programs and staff are insufficient, thereby

increasing idleness, tension and violence at the BCDC and

contributing to the physical and mental deterioration and
- debilitat-ion of those incarcerated there. 3.30. Visitation at the BCDC is also restricted as to be

either non-existent for many prisoners or meaningless to others.

The lack of a reasonable visitation policy at the BCDC contributes

to tension, anxiety and frustration, destroys ties with families

and friends and contributes to mental deterioration and

dehabilitation without any penological justification.

3. 31. The Defendants do not provide adequate medical and

dental services to the inmates, and the present medical service and

dental staff is under-equipped and does not even meet the bare

minimum needs of the inmates.

13

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 14 of 36
3.32. The Defendants do not provide a special care to inmates who are inflicted with disease such as sugar diabetes and other disorders or disease which require that inmates eat a certain diet which results in cruel and unusual punishment and exposes the inmates to death.
3. 33. The Defendants do not provide emergency medical 1 dental or hospitalization to the inmates.
3.34. The Defendants do not provide the inmates at the BCDC with proper psychological and rehabilitative services and programs to meet their needs •.
3.35. The Defendants perpetuate a system of punishing all the inmates by putting them into segregation for numerous hours and even days because of the conduct of a few and such is intolerable. It should be that those who create problems should be punished and those who do not should not be punished.
3. 36. The Defendants do not provide a television set on second south at the BCDC 1 however allows a television in every other unit and therefore discriminates against the inmates on second south.
3. 37. The Defendants have a "pod" for psychologically impaired inmates however it can accommodate only twenty five (25). The most severest of cases are only dealt with in the psychological unit and can only accommodate twenty five (25) 1 and the other inmates who are still psychologically impaired but who do not classify for placement in the psychologically impaired unit are placed in other units with other inmates and that creates an

Case 6:95-cv-00024-JAP-KBM Document 1 Filed 01/10/95 Page 15 of 36
extreme hardship for those non-psychologically impaired inmates because psychologically impaired inmates refuse to take showers and pose constant physical threats to other inmates and create other problems.
3.38. Because of overcrowding at the BCDC, (i.e., placing approximately 1000 in the detention center); personal hygiene has deteriorated and more colds and other diseases are spreading.
3.39. That the disciplinary process for individuals at the BCDC results in inmates being placed in basically what is termed solitary confinement in cells without sufficient oxygen or ventilation.
3.40. That inmates are not allowed to change clothing frequently, in addition, clothing and bedding is not washed or cleaned properly which has resulted in unsanitary conditions.
3. 41. The Defendants encourage guards to have inmates discipline themselves and such has resulted in decreased morale.
3.42. The Defendants have pursued and continue to pursue policies, practices, and procedures which result in widespread, arbitrary, and unreasonable physical abuse or abuse of inmates at the BCDC which shocks the conscience and other denials of rights of citizens of, and persons within, the United States, including persons travelling within and through the City in the course of interstate commerce. The Defendants have administered or otherwise used substantial amounts of federal funds in so doing.
3. 43. The Defendants, employ or direct, have initiated, approved, enforced, and pursued internal administrative policies at
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the BCDC which results in practices and procedures which directly contribute to and result in physical abuse at the BCDC inmates and other denials of rights of persons in New Mexico. Such BCDC policies, practices and procedures include, but are not limited to:
a. Maintenance of investigative, disciplinary, and related BCDC practices, policies and procedures in a manner that is calculated to and does result in the acquiescence in, condonation and approval of, such denials of rights by the BCDC employees and correction officers; b. Maintenance of policies, practices, and procedures by the defendants that are calculated to insulate and do result in insulating the BCDC employees and correction officers from external investigation and sanction for such denial of rights; c. Acquiescence in, condonation of, and approval of such policies, practices and procedures that raise isolated incidents of physical abuse and other denials of rights to the level of a pattern or practice. 3 •44. The defendants, employ, or direct, have initiated, approved, enforced, and pursued practices in the BCDC, which results in policies and procedures which result in physical abuse and other denials of rights of the prisoners in the BCDC. Such physical abuse has been unwarranted, has been beyond the level of force reasonably necessary to serve legitimate ends, and has amounted to arbitrary and unreasonable force which shocks the
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conscience. Such practices, policies, and procedures include: a. without probable cause, accosting and harassing the inmates, and responding to their subsequent protestations with physical abuse or solitary confinement; b. Physically abusing inmates who are accused of assaulting or resisting BCDC correction officers; c. Physically abusing Bernalillo County Detention Center inmates who are hand cuffed or otherwise under BCDC control; d. Physically abusing inmates to intimidate them or to extract confessions; e. verba~ly abusing the inmates at the Bernalillo County Detention Center including directing racial slurs at them; f. Detaining inmates in secluded areas without proper cause or for excessive periods, and denying access to counsel, medical services, dental services, and other necessities while so detained.
3.45. The Defendants, maintain a purposefully fragmented system for investigating complaints of abuse of persons by Bernalillo County officers. This system is intended to result in, and does result in, both inadequate investigation of such complaints, and also assignments of areas of investigative responsibility to the Defendants with inherent conflicts of interest vis-a-vis such investigations.
3.46. Complaints against the BCDC are investigated by BCDC
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management, all of the individuals herein work together, and maintain control over the jail facilities. That by having such coarse of investigation, and by having the BCDC management, ie. Defendants investigate creates a responsibility which conflicts with their duties.
3. 47. The Defendants involve themselves in investigations that concern allegations of abuse by the BCDC officers and are conducted pursuant to a number of practices by which Defendants acquiesce in, condone and approve of abuse while protecting abusive BCDC officers from effective investigation and appropriate sanction. Such practices include:
a. Pressuring complainants about abuse to withdraw their complaints, which is used as one of several pretexts to close such investigations prematurely, even where there is substantial evidence of abuse; b. Preparing statements from Bernalillo County Detention Center correctional officers and witnesses in a manner calculated to justify the conduct of the officers under investigation regardless of the actual circumstances; c. Accepting implausible accounts given by the BCDC officers under investigation as reasons to condone their unlawful behavior; d. conducting investigations which intentionally exclude evidence that would tend to impeach the credibility of the BCDC correctional officers, such as
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statements from BCDC inmate witnesses, the officers' backgrounds, the views of the prisoners attorney, physical evidence, and evidence about the scene of the incident: e. Compiling reports which justify the officers conduct regardless of the actual circumstances, by various practices including speculative explanations of injuries for which no other exculpatory explanation is forthcoming: f. compiling reports which justify the accused BCDC officer's conduct regardless of the actual circumstances and rarely if ever recommending discipline for BCDC correction officers. 3.48. The Defendants have pursued and continue to pursue disciplinary practices by which they acquiesce in, condone, and approve the abuse of inmates, including the discriminatory infliction of abuse on Black, Indian and Hispanics. Through such practices the Defendants have maintained control of the operation of the BCDC investigatory and disciplinary systems, and despite the fact that they have been familiar with facts of individual incidents of abuse and the frequent commission of abuse by the BCDC officers. These practices include, but are not limited to: a. commending and promoting Bernalillo County Detention Center corrections officers and staff whom the Defendants know, or should have known, have abused inmates: b. Refusing to suspend or discipline individual
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BCDC Officers when the Defendants knew, or should have known, that such officers had physically abused inmates. 3. 47. The Defendants have pursued and continue to pursue inadequate training for BCDC correctional officers and staff which results in a pattern of abuse of persons by the BCDC employees, including: a. Failing or refusing to provide sufficient training for newly recruited BCDC officers in the use of force, including deliberate refusal to instruct them on when not to use force against inmates especially psychologically impaired ones; b. Failing or refusing to provide sufficient training, and periodic reinforcement concerning when not to use force, and requiring qualification in the use of force for promotion; c. Failing or refusing to provide psychological services and screening to aid BCDC officers in dealing with stress and to eliminate BCDC officers with a known propensity to abuse persons;
IV. CLASS ACTION ALLEGATIONS 4.1. Plaintiffs bring this action on their own behalf and as representative parties on behalf of all persons similarly situated, pursuant to the Federal Rules of Civil Procedure 23(a), 23(b) (1) (A), and 23(b) (1), and (2). 4. 2. Plaintiffs are representative parties of the class which is composed of all persons presently confined in the BCDC or who
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may be so confined in the future. Plaintiffs are members of the class and their claims are typical of the claims of all class

members. 4. 3. That part of the class consists of all persons of Native
American, Mexican, Black, Latin-American or Hispanic ancestry or appearance of all spanish surnamed individuals who have been, are, or will be living, working, traveling or visiting within the City of Albuquerque, New Mexico. The class size is in excess of one hundred members, the exact size of which will be determined after the plaintiffs have had an opportunity to conduct discovery.
4.4. The class is so numerous that joinder of all members is

impracticable. 4. 5. There are questions of law and fact common to the class. 4.6. The claims of the representative parties are typical of
claims of part of the class in that the named Plaintiffs are u.s. citizens, Native Americans, Blacks and Hispanics, who have lived and worked in Albuquerque, New Mexico, who have been incarcerated at the BCDC, and who have been subject to unconstitutional and discriminatory treatment by the BCDC Defendants and the other

Defendants named above.

4.7.

The representative parties are represented by

experienced and competent counsel, Anthony James Ayala, P.A., who

will fairly and adequately protect the interest of the class.

4. 8. The prosecution of separate actions by individual

members of the class would create a risk of inconsistent or varying

adjudications with respect to individual members of the class which

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would establish incompatible standards of conduct for the Defendants.
4.9. The Defendants have acted or failed to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
FIRST CLAIM FOR RELIEF BY THE CLASS 5.1. Paragraphs 1-4 above are incorporated herein. 5.2. The totality of the conditions at the BCDC violates the rights of persons incarcerated therein under the Eighth and Fourteenth Amendments to the United States Constitution. These conditions also violate the prisoners' rights to freedom of religion, expression and association, access to the Courts, family integrity, privacy, equal protection and due process of law guaranteed by the First, Fourth, Fifth Sixth, Ninth and Fourteenth Amendments to the United States Constitution.
SECOND CLAIM FOR RELIEF BY THE CLASS 5.3. Paragraphs 1-4 above are incorporated herein by reference. 5. 4 . The totality of conditions at the BCDC which makes rehabilitation by prisoners impossible and causes the unnecessary deterioration of them violates the cruel and unusual punishment clause of the New Mexico Constitution. Article II, sec. 13 • These conditions and practices as described also violate the prisoners' rights to freedom of speech, religion, equal protection, due process and other rights guaranteed by Article II, sees. 11, 17,
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and 18, of the New Mexico Constitution.

5.5.

THIRD CLAIM FQR RELIEJ' BY TIB CLASS
Paragraphs 1-4 above are incorporated herein by

reference. 5. 6. Defendants have failed to exercise their duties to

operate the BCDC in accord with Article II, sec. 4 of the New

Mexico Constitution and state Statute.

5.7.

FQURTB CLAIM J'OR BELIEJ' BY THE CLASS
Paragraphs 1-4 above are incorporated herein by

reference.

5. 8. Upon information and belief, the Defendants have

received funds from the United States Law Enforcement Assistance

Administration (LEAA) under 49 u.s.c. sec. 3750(b) for the planning acquisition or construction of correctional facilities. The amount

of funds received by Defendants from LEAA exceeds $50.000.00.

5.9. As a condition of the receipt of such federal funds, the Defendants contractually agreed pursuant to 42 u.s.c. sec. 3750 (b)

that the programs and facilities of the BCDC would reflect advanced practices and standards; that advance techniques would be used in

the design of institutions and facilities; and that necessary arrangements would be provided for the development and operation of

narcotic and alcohol treatment programs.

5.10. Plaintiffs are third party beneficiaries of the

contractual arrangements between LEAA and Defendants.

5.11. The Defendants have failed and refuse to carry out their

contractual obligations under 42 u.s.c. sec. 3750(b).

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PRAYER FOR BEL~BF OF THE CLASS WHEREFORE, PREM~SES CONS~DERED, the Plaintiffs request that this Court do as follows: 6.1. Certify this action as a class action pursuant to Rule 23, F.R.C.P. with the named Plaintiffs representing a class of all persons presently incarcerated in the BCDC or who may be in the future. 6.2. Enter a declaratory judgment declaring the totality of conditions and practices at the BCDC, as well as certain specific aspects thereof, violate the rights of the Plaintiffs and members of their class under state and federal constitutional and statutory standards as are specified in this complaint. 6.3. Enter a preliminary injunction pending the final disposition of this case, enjoining the Defendants from crowding prisoners in the BCDC in excess of the minimum space standards that they have available, and space standards established by the United States Court of Appeals for the Tenth circuit, and immediately release three hundred (300) prisoners to the custody of their homes so that the overcrowding can immediately cease. 6.4. Enter a permanent injunction to the Defendants and each of them enjoining them from continuing to incarcerate persons in the BCDC or other facilities until they are brought into compliance with constitutional and statutory standards as specified by this Court. 6.5. Require the Defendants to pay the costs of this action, including a reasonable attorneys' fee for counsel for the
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Plaintiffs pursuant to 42 u.s.c. sec. 1988.
6.6. Grant such other and further relief as is proper. 6.7. At the appropriate time, if the Court desires, Plaintiff's counsel will submit proposed standards and procedures to assist the Court in fashioning appropriate relief.
STATEMENT OF FACTS FOR INDIVIDUAL BBLIBF DAVID M. BAUER
7.1. Plaintiff David M. Bauer is under the Federal Witness Protection Plan because he was a witness for the Federal Government. The staff at the BCDC did not follow the rules of secrecy and protection of the Plaintiff and made his true name known within the BCDC, along with the fact that he was in the Federal Witness Protection Plan. In addition, the BCDC has helped facilitate the Plaintiff's face appear on local television stations and newspapers.
7.2. The use of Defendant's real name by the BCDC should have and could have been avoided by specific instruction which was made available to them in this regard.
7. 3. At this time, due to the negligence or intentional misconduct on the part of the BCDC, and or it employees, the Plaintiff's life is in great jeopardy and he faces death, or in the alternative is forced to live in solitary confinement and in protective custody.
7.4. That numerous attacks and attempted assaults have been made on the Plaintiff by inmates at the BCDC which are directly related to the fact that the Plaintiff is in the Federal Protection
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Plan. Defendant David M. Bauer alleges malicious disregard for the safety and well being of a pre-trial detainee by the BCDC.
7.5. At approximately 10:45 A.M. on January 28, 1994 the Plaintiff was housed on level 3 south east at BCDC, where the staff of the BCDC allowed two "high risk" residents, David Strichfeld and Joe Sanchez, who were classified as violent and were to be restrained with leg irons and belly chains when freed from their cells and assigned housing areas, to roam around freely.
7. 6. The Plaintiff was escorted from his cell (H-9) to be interviewed by his attorney, Ms. Jacqueline Cooper.
7.7. While being in protective custody, the two correctional officers, Paul Sanchez and Frank Lovato were directly responsible for his safety.
7.8. Defendant's Paul Sanchez and Frank Lovato are agents and employees of the BCDC and were acting within the scope of their employment at all times and all actions done by them were done in their individual capacity as well as in their capacity as agents and employees of the BCDC.
7.9. That at all times' herein mentioned the Board of Commissioners of the County of Bernalillo and the City of Albuquerque are vicariously liable for the negligent acts set forth herein.
7.10. After entering the day room to be interviewed, Ms. Cooper advised the Plaintiff to make a phone call to verify certain legal issues relating to his case. While attempting to use the telephone resident Joseph Sanchez began pounding on his door and
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screaming threats directed toward the Plaintiff calling him a "snitch".
7.11. At this time Ms. cooper suggested that he use the phone in H-Pod. John Dow allowed inmate Joseph sanchez out of his cell without prescribed restraints, said Joseph Sanchez is a high risk violent individual, and inmates Paul Sanchez and Frank Lovato then allowed inmate sanchez to open the officer's desk draw and pull out the key to open the pod door.
7.12. While trying to fit the key into the slot above the door, inmate Sanchez was also banging on the windows and door screaming threats at the Plaintiff.
7.13. At that po~nt the Plaintiff began to have a panic attack as he suffers from a severe anxiety and panic disorder.
7 .14. Joseph Sanchez battered and beat the Plaintiff about the face and body, and inmates Paul Sanchez and Frank Lovato made no effort to stop inmate Joseph Sanchez from assaulting the Plaintiff.
7. 15. In addition, the BCDC employees took their time in retraining Joseph Sanchez.
7.16. The BCDC allows residents housed therein to open their own doors virtually at any time they wish to do so, thereby threatening the safety of those is protective custody.
7.17. Individuals can open their door by rigging a lock which calls for very little mechanical aptitude. The residents can open a cell door with a stiff piece of cardboard or plastic and with the full knowledge of the BCDC employees the Plaintiff and those similarly situated are put at risk.
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7.18. On one occasion a correctional officer was thrown from a tier and suffered several serious injuries as a result of an argument with a resident who rigged his lock and attacked the officer while making his rounds.
7.19. At another time, the Plaintiff was not being allowed to spend the usual allotted thirty minutes out of his cell. When the Plaintiff was ordered back into his assigned cell the Plaintiff refused and the correctional officer radioed in a "code 99" for staff assistance.
7.20. Several staff members arrived and Lieutenant Michael Smith ordered the Plaintiff to his cell. The Plaintiff walked upstairs without incident.
7. 21. Upon entering cell E-8 the Plaintiff sat on his bed. He began discussing the issue with Deputy Director Ercell Griffin and during the course of the discussion they both began to get loud especially the Plaintiff, who demanded his time out of his cell since he is required to stay there 24 hours a day and only wanted thirty minutes.
7.22. Mr. Griffin ordered Lieutenant Michael Smith and Lieutenant John Von Sickler to bring the Plaintiff down the stairs and put him in "The Chair".
7. 23. Lieutenant John Von Sickler ordered the Plaintiff to get up, but in fear of physical abuse the Plaintiff remained seated. Lieutenant Michael Smith and Lieutenant John Von Sickler along with other staff members physically picked up and carried him to the top of the stairs.
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7.24. At all times herein mentioned, Deputy Director Ercell Griffin, Lieutenant Michael Smith, and Lieutenant John von Sickler and the other employees named herein, were working in the capacity of employees of the BCDC, and the City of Albuquerque, and therefore the Board of County Commissioners, the County of Bernalillo and the City of Albuquerque are vicariously liable to the Plaintiff under the theory of respondeat superior. That the said Defendants are responsible for all the acts of their employees.
7. 25. The Plaintiff was hand cuffed behind his back while still seated in his cell. Lieutenant Michael Smith had a grip on the Plaintiff's left arm and upon reaching the top of the stairs let go of the Plaintiff's arm and began twisting the Plaintiff's left hand severely, ordering him to "walk like a man".
7.26. Lieutenant John Von Sickler then dropped the Plaintiff
- causing him to slide down the stairs backwards with his head facing
toward the bottom of the stairs. 7. 27. The Plaintiff was then picked up and carried to the
exit. At the exit gate in full view of several inmates Lieutenant Michael Smith savagely twisted the Plaintiff's right wrists, right index and middle fingers causing the Plaintiff to cry out in pain.
7.28. The Plaintiff was carried to the elevator and was struck on the face by another correctional officer causing the Plaintiff to bite his tongue drawing blood.
7. 29. Several other officers laughed and taunted the Plaintiff while Lieutenant John Von Sickler pushed the Plaintiff's head into
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the corner of the elevator. 7.30. At the ground level, the Plaintiff was carried through
receiving and discharge to cell number 6 where he was shackled and a heavy leather belt was secured around the Plaintiff's waist to secure the handcuffs holding his hands behind his back.
7.31. The Plaintiff was then seated in a chair designed for restraining residents who are exhibiting behavior which is either a threat to staff or a threat to themselves.
7.32. All BCDC staff was advised by Lieutenant Michael Smith that the Plaintiff .was to remain in these restraints until he ordered otherwise.
7.33. During the next six (6) to seven (7) hours the Plaintiff repeatedly requested medical attention and staff assistance to loosen his handcuffs and be allowed to eat.
7. 34. That under the direction of Lieutenant Michael Smith the Plaintiff was not allowed to eat, urinate or allowed medical attention, and such constituted cruel and unusual punishment.
7.35. At approximately 5:15 P.M., correctional officer Will Bell came to cell number six. Officer Bell observed that the Plaintiff's hands were becoming blue and numb and immediately removed the belt and cuffs allowing the Plaintiff's hands to be loosely cuffed in the front. Officer Bell then called a medical nurse.
7.36. Upon examining the Plaintiff's wrists the nurse stated that the handcuffs were left on too tight for too long. This statement was made in front of correctional officer Bell and
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correctional officer Smiel. 7.37. The medical nurse also observed several lacerations on
the Plaintiff's back and on the back of his right arm as well as lacerations caused by the handcuffs.
7.38. After being advised of the situation by correctional officer Bell, Lieutenant Kathy Martinez ordered officer Bell to escort the Plaintiff to Lieutenant Albert Chavez to take photographs of the Plaintiff's injuries. Lieutenant Chavez examined the Plaintiff and took two (2) photographs. The first was of the Plaintiffs wrists, hands and arms held crossway and the second of his back.
7.39. At all times mentioned herein, defendants did not have the authority to detain or beat the Plaintiff herein.
7.40. Defendant, BCDC officers did not have any justification or reason for depriving the Plaintiff the time out of his cell, the authority to allow another inmate to beat him, or to remain free without shackles, andjor the authority to keep the Plaintiff restrained in cuffs for six (6) to seven (7) hours without food, the ability to urinate, or medical attention.
7.41. Defendant's knew they had no reasonable cause to justify their actions and they intentionally proceeded without legal authorities solely because the Plaintiff was a prisoner in the BCDC.
7.42. At all times mentioned herein, Defendants, and each of them separately and in concert, acted under color and pretense of law, to-wit: under color of the statutes, ordinances, regulations,
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customs and usages of the State of New Mexico and of the City of Albuquerque. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct herein mentioned to the injury of Plaintiff and deprived him of his rights, privileges, and immunities secured and guaranteed to him under the First, Fourth, Fifth and Fourteenth Amendments to the United states Constitution and the laws of the United States.
7.43. That at all of the times of the events herein mentioned, Plaintiff was acting in a reasonable and peaceful manner, and was not disturbing the peace or committing any offense against the BCDC, another inmate, and was not violating any rule or regulation of the BCDC and did ~ot cause any action which would justify the conduct of the BCDC and its employees.
7.44. That despite the fact that Plaintiff was acting in a reasonable manner considering the circumstances, and was not in any way or fashion disturbing the peace or committing any public, private or any offense of the BCDC whatsoever, Plaintiff was assaulted in an unreasonable, unwarranted, and unlawful fashion, by false pretext, by the BCDC employees herein named, and was herein
"
deprived of his liberty, his right to guarantees and other privileges and immunities secured to him by the Constitution of the United states of America and by the Constitution and Law of the New Mexico.
7.45. As a result of actions taken by the Defendants, Plaintiff has suffered emotional distress and physical damage and has been subjected to humiliation and embarrassment. Plaintiff
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taken upstairs. He told the correctional officer that his back and legs were hurting and he told the correctional officer that he wanted to see a Lieutenant.
8.16. The correctional officer stated that he was a Lieutenant and asked if the Plaintiff had told anyone about his pain. The Plaintiff informed him that he had told everyone and they ignored him. The Lieutenant told the Plaintiff to fill out a medical slip, which he did, and put it in the sick call box. Right in front of the Lieutenant were the two mentioned correctional officers. The Lieutenant told the Plaintiff that he was going to notify the Captain about his pain. This was also ignored.
8.17. On November 6, at 2:30A.M., the Plaintiff was lead to H-5. The correctional officers told him to grab a mattress so he did. The Plaintiff's back was killing him but he still drug it into the room.
8.18. Kirk earlier was in there and he was upset that they put the Plaintiff in with him. He started complaining about the situation and was telling the Lieutenant and correctional officer that he was going to have to pick up new charges, i.e., meaning that he would have to beat the correctional officer or the Plaintiff because they had put an individual in his cell.
8.19. At 2:45 A.M., they moved Kirk out and the Plaintiff tried to go to sleep. At 1:00 A.M., the Plaintiff asked the correctional officer if he could talk to the Lieutenant or Captain and the correctional officer asked why. The Plaintiff informed him of his back and legs were still hurting quite badly and the
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correctional officer told him to put in a sick call slip.

8.20. The Plaintiff informed him that he already had, and that

it was put in the night before at approximately 12:30 A.M. The

correctional officer stated that it takes 12 hours. The Plaintiff

informed him that it had been more than 12 hours and again asked

him if he could talk to a Lieutenant or Captain. The correctional

officer walked away and ignored the Plaintiff.

8.21. At 3:00A.M., it was time for a shift change and the

Plaintiff was still in excruciating pain. At 5:00 A.M., the

Plaintiff askeci Stanley Lents if he would call the Captain,

Lieutenant or medical and the reply was, let's see. At 6:00A.M.,

the Plaintiff gave his sick call slip to Stanley Lents.

8.22. At 7:00P.M., the Plaintiff asked Stanley Lents to stop

the nurse and he said he would check the Plaintiff's record and

come back. The Plaintiff also requested him to call the Captain or

Lieutenant.

-

8. 2 3. At 9: 00 P.M. , the Plaintiff asked the correctional

officer, Stanley Lents, if the Captain or Lieutenant was going to

come and he said they would come when they felt like it or when it

was the right time. AT 10:00 P.M. The Plaintiff was still in pain.

8.24. On November 6, 1994 the Plaintiff asked to make a phone

call and they said no. Approximately 12:30 P.M., the Plaintiff

talked to the Lieutenant and told him that his back, legs and head

were hurting and the Lieutenant asked him if he had told anyone.

The Plaintiff informed him that he had been ignored all night and

the Lieutenant said he would let the Captain know, but the

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Plaintiff was ignored again. 8.25. On November 6, 1994 at 2:00 A.M., the Plaintiff was
moved to room 5. Kirk Carlin did not want the Plaintiff in his room and wanted to beat him up. They moved Mr. Carlin. The Plaintiff asked the correctional officer to speak to the Lieutenant. The Lieutenant asked why and the Plaintiff told him that his back, legs and head were killing him. The correctional officer asked the Plaintiff if he put in a sick call slip and the Plaintiff replied yes, about 12:30 last night. He was informed again that it takes about 12 hours. The Plaintiff tried to explain that it had been past 12 hours but the correctional officer walked away and ignored him.
8.26. on November 7, 1994, the Plaintiff told the two correctional officers on shift, and they said they would notify the Lieutenant or Nurse on duty. At 5:00 A.M., the nurse gave the Plaintiff Advil. The Plaintiff saw the nurse and the nurse said the Plaintiff was fine and they gave him more Advil.
8. 27. At 2: oo P.M., the nurse made his rounds and the Plaintiff told him that he was on the list. The nurse said no you are not, and the Plaintiff said I have not been seen for my back and it is still hurting. The Plaintiff gave the correctional officer a call slip, the third slip, at 2:15 P.M.
8.28. At 5:00P.M., the Plaintiff saw an employee at the BCDC pick up the sick call slips. The Plaintiff talked to the lady who was in the control center. She informed him that it was bad that he was in A-Pod flat. The Plaintiff told her that medical came on
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the floor and they were usually asked to go to A-Pod or whatever pod is open when medical comes on the floor. Once again the Plaintiff asked to talk to the Lieutenant that was there.
8.29. At 7:30P.M., the Plaintiff was brought more Advil. At 8:30P.M., he was given another sick call slip making it his fourth one.
8.30. November a, at 6:00A.M., the Plaintiff received more
Advil and was still in pain. At 1:00 P.M., he was given more Advil and was becoming tired of asking for help.
8.31. At 6:30P.M., the Plaintiff gave the nurse his sick call slip, personally. He informed him that his back was still hurting and the nurse told him that he thought all the Plaintiff's sick call slips were because he had not received his Advil.
8.32. The Plaintiff continued to ask to see a Lieutenant all that shift and as of 7:00P.M., nobody had come.
8.33. On November 9, at 5:00 A.M., the Plaintiff was given more Advil. At 8 A.M., he talked to the nurse and the nurse informed him that he could not have x-rays only Advil and there was no need to see a Doctor.
8.34. That the Plaintiff continued in pain, and after a very long period of time was allowed to seek the attention of a medical doctor who properly treated his medical condition, however for the longest period of time remained in serious pain.
8.35. That all times herein mentioned, the Defendant employees at the Bernalillo County Detention Center at all times mentioned herein were agents and employees of Defendants Board of County
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Commissioners, the Bernalillo County Detention Center, the County, and the City of Albuquerque and were authorized by them to operate the BCDC and were acting in the scope of employment at all times, and that all actions done by them were done in their individual capacity as well as in the capacity as agents and employees of the Defendant Bernalillo County, and City of Albuquerque, and therefore the Defendant's Board of County Commissioners and the City of Albuquerque as well as the other Defendants named herein are vicariously liable for the actions set forth herein.
8.36. That at all times herein mentioned, the Defendants were negligent in allowing psychologically impaired individuals like Mike Donovan and the other individuals named herein into other pods where they could injure and inflict serious damage to other Plaintiffs, specifically Plaintiff herein.
8. 37. In addition, the Defendants were negligent and not careful and prudent in ignoring the Plaintiff's request for medical treatment, and were negligent in not providing medical treatment.
8.38. That as a direct and proximate result of psychologically impaired inmates allowed in the general population of the BCDC and in violation of the policies of the BCDC and the aforesaid acts of carelessness and negligence, the Plaintiff was beaten about his body and refused proper medical attention, thereby proximately causing the injury and other losses complained of herein.
8. 39. Plaintiff, Carl Ray Lopez, suffers and continues to suffer severe permanent personal injuries; he suffered, and continues to suffer, great pain of both a mental and physical
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nature, all of which are permanent1 he has incurred, and continues to incur, and will incur in the future, medical and non medical expenses1 he has become permanently and partially disabled1 he has lost earnings and future earning potential and the value of his household services1 he has experienced, and will experience in the future, a diminished enjoyment of life and a diminished quality of life.
8.40. Wherefore, Plaintiff Carl Ray Lopez prays for judgment against the Defendants in an amount reasonable to compensate him for all the foregoing damages and injuries, plus interest and prejudgment interest, the costs of the action, including attorney's fees, and for such other relief as the Court may deem proper.
8.41. As a result of actions taken by the Defendants, Plaintiff has suffered emotional distress and physical damage and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
BRUCE DAVID MORAWB
9.1. On November 19, 1994, Plaintiff, Bruce David Morawe was taken to the law library to fulfill the requirement of his Court Order from the Honorable Judge James F. Blackmere. He had not been taken down on the previous Friday, because that was the day of an escape attempt in which two prisoners had been digging through the wall of their cell for about two or three weeks with two crow bars.
9.2. The Plaintiff is indigent and he barricaded himself in the law library in May of 1994 because of the living conditions at
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the BCDC and their refusal to provide indigent prisoners with bath soap or toothpaste for over two months.
9.3. The order of the Court requires the BCDC to provide the Plaintiff with access to the law library for four (4) hours per day, Monday through Friday, but since the Institution was slammed down on Friday the Plaintiff enforced his right of access on Saturday.
9 •4 . Among other things, the current order of the Court requires that the Plaintiff be given fifteen (15) minutes per day
~
access to a telephone known as "the free phone". 9. 5. The Plaintiff used the "free phone" on November 19, 1994,
to call the office of Ms. Patricia s. Condon of Gay & Taylor, Inc.,
and the telephone was fully functional. The Plaintiff also wrote a letter to Ms. Condon and left it on the desk at the law library.
9.6. The Plaintiff has been forced to use the free phone to call the ·BCDC itself to inform them of when he needs to eat or to
*
be returned to his cell. The BCDC is not happy with the Plaintiff in that he uses the free phone to call the South Tower Lieutenant's office to let them know he is hungry, needs to use the rest room or that he is ready to be returned to his cell.
9.7. The Plaintiff has to do this because they forget about him being in the law library and sometimes he is in there for up to six (6) or more hours before trying to contact the BCDC.
9.8. The swing shift is especially upset when the Plaintiff calls by phone, they are even mad just because they have to escort him back to his cell. They claim it is not the job of the security
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Case 6:95-cv-00024-JAP-KBM Document 1-1 Filed 01/10/95 Page 4 of 34
staff to escort him to and from his cell. The worst objector is Lieutenant Albert Chavez. Lieutenant Chavez usually has derogatory remarks to make towards the Plaintiff such as, "Have you sued any more guards today?", or "Write another letter to the Mayor today?".
9.9. Lieutenant Albert Chavez is the officer that the Plaintiff made contact with on November 19, 1994 when he wanted to go back to his cell so that he wouldn't miss his evening meal. When Lieutenant Chavez arrived the Plaintiff had legal papers he had typed andjor wanted copied, spread out on Kevin Christianson, the law librarian's desk along with stick-em notes as to how many copies he wanted. Lieutenant Chavez made special notice of all the Plaintiff's legal papers scattered out on the desk, and for the first time made no comment about the Plaintiff calling him on the telephone. He failed to lock the door when they left the library for the Plaintiff's housing unit. It is the contention of the Plaintiff that Lieutenant Albert Chavez went back to the library and purposely sabotaged, tore, mutilated and otherwise destroyed the legal papers of the Plaintiff.
9.10. Kevin, the law librarian, was not in the institution on Monday, November 21, 1994. When this was realized the Plaintiff was able to get in touch with Lieutenant Fusco, and the Lieutenant made arrangements for the Plaintiff to be brought to the law library so that he could have his four (4) hours of access. When they arrived at the law library, it was very obvious upon entering that the Plaintiff's legal papers had been virtually destroyed by Lieutenant Chavez since his last visit to the library as previously
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indicated. 9.11. The law library keys are kept in the Watch Commander's
office. A fact that is not commonly known among staff, and they have to ask the Watch Commander for the keys in order to get access to the library.
9. 12 • The Plaintiff wanted to call his lawyer but unfortunately the free phone was no longer operational. It is the contention of the Plaintiff that Lieutenant Chavez had stolen the phone cord that connects the phone to the wall jack to additionally intimidate the Plaintiff. When Lieutenant Fusco returned to the library for some reason, the Plaintiff informed him of the situation and asked if it could be replaced or if he could be allowed to go to the booking area to the free phone the new arrestees use in attempting to secure a bail bond.
9. 13. During the day shift there are never any complaints about the fact that it is not custody's job to escort prisoners. Only on the evening watch when Lieutenant Albert Chavez is on duty is there any question about the proper functions of custodial staff.
9.14. At approximately 1:30 P.M., Lieutenant Fusco returned with one of the escorting officers. The Plaintiff was informed that the maintenance person in charge of the telephones was not in the institution that day, but he was going to send the escorting officer to detention level 3 control room because he knew for a fact that they had an extra cord there. The Lieutenant made the Plaintiff promise to return the cord and that promise was made.

Case 6:95-cv-00024-JAP-KBM Document 1-1 Filed 01/10/95 Page 6 of 34
9.15. At about 4:15P.M., the Plaintiff went to the Watch Commander's Office because they forgotten him in the law library and he wanted to go to his cell so that he would not miss his evening meal. The Plaintiff had already called the South Tower Lieutenant's office and never got a response other than they would send someone after him soon.
9.16. Lieutenant Baca wanted to know what the Plaintiff was doing with the phone cord so the Plaintiff explained everything to him and the Lieutenant said he would return the cord personally.
9. 17. Lieutenant Baca refused to return the cord to the control room on November 22, 1994. When Kevin, the law librarian came to get the Plaintiff for his legal access, the Plaintiff attempted to call his counsel once again to no avail since still there was no phone cord.
9.18. Kevin, the law librarian was never able to contact Lieutenant Chavez, but Lieutenant Baca told him that the Plaintiff had indeed given him the telephone cord from control room 3, and that he had decided not to return it in violation of his promise to the Plaintiff. Also, that he had forgotten overnight what he had done with the phone cord.
9.19. On November 23, 1994 the Plaintiff still had no access to a phone cord. Kevin, the law librarian, assured the Plaintiff that he would try to get access to one so that he could make phone calls on Friday when he would return to the law library.
9. 20. The phone cord mystery created by Lieutenant Chavez deprives the Plaintiff from contacting his counsel and prevents
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other plaintiffs from contacting their counsel. The conduct of the Defendants specifically Lieutenant Chavez, is a direct act to disrupt communications between counsel and inmates.
9. 21. Additionally, the conduct of Lieutenant Chavez has deprived Mr. Morawe, a Pro Se Defendant in a criminal case, with access to the Courts, the opposing Counsel, Joe Lally, and also the U.N.M. Prison Law Project that does legal research for the Plaintiff.
9.22. That in the coarse of being incarcerated in the BCDC, Plaintiff Bruce David Morawe was robbed two (2) nights in a row in the maximum security section of the institution, by inmates who were let out of their cells by officers of that institution for the sole purpose of robbing the Plaintiff.
9. 23. In addition, the Plaintiff has been a victim of an assault by a staff member at the BCDC who will be identified as, "John Doe".
9.24. In addition, the Plaintiff's glasses were stolen during the cell robberies, and the Plaintiff is legally blind without his glasses and Plaintiff's prescription BI-Focals were replaced by the BCDC with $3.00 reading glasses which allows him to see out of his left eye but not his right, and forcing the Plaintiff to use these glasses has resulted in pain from eye strain and effects his ability to defend himself on his criminal case as pro se.
9.25. That without proper glasses, the Plaintiff's eyes get worse by the day and might possibility result in him losing his eye sight or in the alternative, forcing the Plaintiff some time in the
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future to wear even stronger corrective lenses. 9.26. That as a result of the Plaintiff losing his eyeglasses
and the other wrongs complained of herein, the Plaintiff has suffered damages. It is Plaintiff's information and belief that the Defendant Chavez and the other Defendants mentioned are agents and employees of Defendants Board of County Commissioners, the Bernalillo County Detention Center, the County, and the City of Albuquerque and were authorized by the Defendants to operate the BCDC and were acting in the scope of employment at all times, and that Mr. Chaves was acting in the scope of his employment at all times, and that all actions done by him were done in his individual capacity as well as in his capacity as an agent and employee of the Defendant Bernalillo County Detention Center.
9. 27. Therefore the Defendant Chavez is individually responsible, and Defendant Bernalillo county and the city of Albuquerque are individually, as well as vicariously, liable for the actions set forth herein.
9.28. That despite the fact that the Plaintiff was acting in conformity with a valid court order and was not in any way or fashion disturbing the policies and procedures of the BCDC, the Plaintiff has not been allowed the full use of the law library and its privileges, by the Defendants named herein, and it thereby deprived of his liberty and his right to represent himself, and other privileges and immunities secured to him by the Constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
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9.29. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional distress and physical damages, and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.

THOMAS YOUNG
10.1. Plaintiff, Thomas Young, is in for probation violation and wrecking into a police car. On August 15, 1994 he was in one north maximum security when two hispanic men, Manual Martinez and Joseph Garcia aka "Lazy" began to fight each other.
10.2. A rookie correctional officer pushed the panic button and the riot crew immediately responded. As they separated them, a couple of the correctional officers were beating up on Joseph Garcia.

10.3. Joseph Garcia's cousin, Manual Martinez and other

prisoners began to protest. ~

The riot team tear gassed the entire

floor which caused choking, gagging and skin burning and the

inmates had to wrap a towel around their faces.

10.4. At this point, Mr. Young heard one of the guards say,

"You got shit coming out of your mouth instead of breath." Deputy

Chief Griffith later came up and threatened everyone about creating

a riot and threatened that he would write them all up.

10. 5. All inmates of that level were locked down approximately

23 to 26 days from August 15, until September 7, 1994. That Mr.

Young, and others situated did not start the fight, did not create

a riot, were not involved in a riot, and did not encourage, entice,

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Case 6:95-cv-00024-JAP-KBM Document 1-1 Filed 01/10/95 Page 10 of 34
or in any way involve themselves in the altercation between Joseph Garcia and Manual Martinez, and therefore the only persons that should have been in lock down for approximately four (4) weeks should have been Manual Martinez and Joseph Garcia, however, Mr. Young, among several other, were punished severely for the conduct of the two (2) other inmates named herein.
10. 6. That the conduct of the Bernalillo county Detention Center and Ercell Griffith in locking down all the inmates was cruel and unusual punishment.
10.7. In addition, Defendant Young has no library access and should be afforded such. In addition, the Plaintiff Mr. Young is not given his prescribed anxiety medicine called Cronopin and suffers great depression and emotional distress as a result of being put in lock down, and because of the overcrowding, and suffers irreparable injury by not being allowed his proper medication of Cronopin.
10. 8. Because the Defendants jointly and in concert, as employees and agents of the Bernalillo County Detention Center are refusing to give the medical attention to the Plaintiff have acted vicariously, and therefore the Defendants are all jointly and severally responsible to the Plaintiff.
10.9. In addition, the acts of punishing Mr. Thomas Young for the acts of others is and continues to be unreasonable, unwarranted and unlawful, and is done by false pretext, and hereby deprives him of his liberty and his right to be free from cruel and unusual punishment, and for other privileges and immunities and violates

Case 6:95-cv-00024-JAP-KBM Document 1-1 Filed 01/10/95 Page 11 of 34 •
other privileges and immunities secured to him by the Constitution of the United States of America and the Constitution and Law of the State of New Mexico.
10.10. As a result of the actions taken by the Defendants, Plaintiff suffers and continues to suffer great anxiety because the BCDC refuses to give him his prescription of Cronopin prescribed by a physician for his anxiety, and he especially needs his anxiety medicine being in closed quarters which results in increased stress and hardship.
10.11. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in the amount greater than $50,000.00, the exact amount to be proven at trial.
RUTHIE DURAN
11.1. The Plaintiff, Ruthie Duran, is in for probation violation. Ms. Duran was on October 20, 1994, 5 1/2 months pregnant. However, because of arguments and fights which have resulted from over crowding at the BCDC, severe stress and anxiety was placed on Ruthie Duran.
11.2. That Ruthie Duran began to have contractions at 8:00 P.M. on October 20, 1994. When she told the correctional officers that she was having contractions, they told her it was probably just a back pain, and to drink some water and lie down. Ms. Duran continued to cry and complain and she lied down in dire pain pleading for medical care.
so

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11.3. Defendants at all times were responsible to attend her during her pregnancy and for the ultimate delivery of her child, since she was incarcerated at the BCDC and she relied on the BCDC to properly treat and take care of her pregnancy.
11.4. Defendant's refusal to give the Plaintiff treatment when she requested it on October 20, 1994, and by perpetuating conditions of stress and anxiety by the over crowding at the BCDC, by failing to adequately ascertain and familiarize themselves with the Plaintiff's medical condition, by failing to discover that the Plaintiff was suffering and needed serious and immediate medical attention in this part of her pregnancy, resulted in serious injury to the Plaintiff.
11.5. The next morning Ms. Duran's contractions were five (5) minutes apart. At approximately 7:00 A.M. on October 21, 1994, they called the medical unit and they came up to see Ms. Duran. Ms. Duran was taken to the hospital at 7:00 A.M. and as a direct and proximate result of Defendant's negligence aforesaid, severe injury resulted which perpetuated the pre-mature birth of Ms. Duran's child.
11.6. A certificate of live birth was issued, however the child only lived for ten (10) minutes and died.
11.7. A physician who attended to Ms. Duran, (the Plaintiff) had informed her that if she had been brought in earlier, her contractions and her medical problem could have been treated, and the child could have been put in an incubator, and possibly her child could have been saved.
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11.8. At the time of death, the minor child of the Plaintiff had a life expectancy of 70 years.
11.9. By reason of the death of the minor child of the Plaintiff, the Plaintiff has been deprived of her childs support, comfort, society, counsel and services, all to her damage.
11.10. As a direct and proximate result of Defendant's negligence, the Plaintiff, Ruthie Duran, suffered severely and substantial injuries and as a consequence of these injuries and neglect, gave premature birth to the deceased. The deceased was born alive and survived the birth for only ten (10) minutes.
11.11. As a direct and proximate result of Defendant's negligence, deceased was caused to be born pre-maturely, and the cause of death to decedent was pre-maturity.
11.12. There is no controversy in that the deceased, "A person within the meaning of state statute, and was not a non viable fetus when born, and lived for ten (10) minutes."
11.13. That as a result of the actions taken by the Defendants, Plaintiff has suffered emotional distress and has been subjected to the loss of her child. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
DEBORAH LAVERA
12.1. Deborah Lavera is in for Parole Probation Violation. Ms. Lavera is approximately 3 1/2 months pregnant and has taken three (3) pregnancy tests at BCDC which have come back with
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positive results. 12.2. That the tests taken by Plaintiff were witnessed by
Barbara Cow and also by Maria Lucero who are staff at BCDC in that they have witnessed her urine tests.
12.3. On the week of November 20, 1994, Ms. Lavera was informed by a nurse in the medical unit that they heard a rumor that she was not really pregnant so that they would retest her for the fourth time.
12.4. Ms. Lavera has taken three (3) tests which have been verified and she considers a fourth test to be without merit especially in light of the fact that she is being subjected to an additional test by conjecture and rumor, and at the present time is being refused proper medical treatment.
12.5. That the Plaintiff has volunteered to go to any hospital or clinic outside the BCDC and give a fourth urine test to qualify as indicated, however the staff nurse and the BCDC, whose name is David, said that if she did not give a urine analysis to them again, that she would not get another test period. Because the Plaintiff has already been given three (3) tests she sees a fourth tests as being invalid, harassing, and degrading.
12. 6. To pressure the Plaintiff into cooperating for the fourth time, the Plaintiff was put into holding cell without blankets on November 27, 1994, and caught a severe cold. She had a runny nose and a fever and was refused proper medical care.
12.7. In addition, on November 17, 1994, the staff has started a policy of refusal in administering 85 ml. of Methadone to the
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Case 6:95-cv-00024-JAP-KBM Document 1-1 Filed 01/10/95 Page 15 of 34
Plaintiff which was prescribed by Monroe Detox Clinic. 12.8. That the actions of the Bernalillo County Detention
Center through its agents, makes the Bernalillo County and the City of Albuquerque vicariously liable in forcing the Plaintiff to take a fourth urine test is degrading and humiliating and is without just cause.
12. 9. That the conduct of the Defendants in putting the Plaintiff in a cold cell and not allowing her Methadone when she is
. a heroin addict results in cruel and unusual treatment and could
possibly result in prenatal injuries, and has already resulted in injury to the Plaintiff herself.
12. 10. That the conduct of the Defendant is unreasonable, unwarranted and unlawful, and deprives the Plaintiff of her liberty and other privileges and immunity secured by the Constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
12.11. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater then $50,000.00, the exact amount to be proven at trial.
JANELLE ROYBAL
13.1. Janelle Roybal is in for conspiracy to commit fraud, and promoting prostitution. On approximately November 3, 1994, the Plaintiff refused to have homosexual sex with three (3) women inmates at the BCDC and as a result was beaten, punched, her hair
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pulled and one of her teeth was knocked out. 13.2. That the beating that was inflicted on the Plaintiff for
refusing the have homosexual sex lasted for approximately fifteen (15) to thirty (30) minutes and because of the over crowding at the BCDC was not noticed by any guards of the BCDC.
13.3. In addition to being beaten for not having homosexual sex, willing homosexual partners of the women who beat her are jealous of Mr. Roybal because sex is demanded by their partners and they have also continually threatened her with violence.
13.4. On December~?, 1994, the Plaintiff was again attacked and had to fight off a homosexual advance in the women' section. The Plaintiff was locked in a cell with a women named samantha and there were no guards on duty in that section to see or prevent the vicious attack.
13.5. That at all times herein mentioned, the guards at the BCDC have been made fully aware of the fact that there is increased tension, homosexual violence, however because of the over crowding at the BCDC have not been able to properly protect any of the inmates specifically in this case, the Plaintiff Janelle Roybal, who will have to be put in protective custody and taken out of the general population because of the homosexual attacks which results in severe and unusual punishment for Janelle Roybal because of the negligence of the Defendants in keeping the areas free, and from over crowding.
13.6. That the conduct of the Defendants in having the BCDC over crowded is unreasonable, unwarranted, unlawful, and deprives
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the Defendant of her right to be put in a general pod rather than in protective custody, and other privileges and immunities secured to her by the Constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
13.7. In addition, the Plaintiff, Janelle Roybal, suffers from cancer and is in need of a hysterectomy, and despite repeated requests, and orders by medical staff at the Bernalillo County Medical Center, the BCDC has refused to facilitate a proper medical procedure to treat the Plaintiff, and she continues to be in great pain.
13.8. As a result of actions taken by the Defendants, in allowing over crowding, the Plaintiff suffered emotional distress and physical damage, and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
DANNETTE DEPIORI
14.1. On November 23, 1994, Ms. Defiori came down with an ear infection. Dr. Mason prescribed 500 ml, three times a day, of KFlex for her ear infection. Ms. Defiori began having an allergic reactions to the medication and began being infected all over her body with boils and what looked like grease burns on the second day after receiving the K-flex.
14.2. It is Plaintiff, nannette Defiori's belief that Defendant, Dr. Mason was, at all times herein mentioned, an agent and employee of the Defendant, City of Albuquerque, and the County of Bernalillo, andjor the BCDC, and was authorized by those
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Defendants to give medical care and attention to nannette Defiori, and that he was acting within his scope of his employment at all times, and that by actions done in his individual capacity, as well as his capacity as an agent and employee and Defendant, BCDC, and the City of Albuquerque,
14. 3 . It is the contention of Plaintiff that Defendants, Bernalillo County, and City of Albuquerque, are responsible for the acts of Dr. Mason, under the theory of respondent superior, and therefore are vicariously liable for his acts.
14.4. That on November 23, 1994, the Plaintiff, nanette Defiore received a steroid shot on her hip. This also created ugly bruises and welts on her from head to toe.
14.5. That K-Flex that was injected by Dr. Mason has a 10% of carryover of penicillin, and that nannette Defiori is allergic to penicillin and this was reflected on her record at the BCDC and it clearly states that she is allergic to penicillin and despite the fact that Dr. Mason had access to her files wherein it was stated that she was allergic, to penicillin, still gave her a shot of KFlex wherein he stated, "Well I hope your not allergic to K-Flex". However had he proceeded with due caution and care would have noted that K-Flex does have penicillin.
14.6. Despite the boils that have developed all over the body of Danette Defiori, she has been refused hospitalization and proper care, and continues with boils all over her body including her genitals.
14.7. That because of the negligence of Dr. Mason, and the
57
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Case 6:95-cv-00024-JAP-KBM Document 1-1 Filed 01/10/95 Page 19 of 34
refusal of the BCDC to give the Plaintiff proper medical care, she has suffered greatly.
14.8. That the conduct of the Defendant has been unreasonable, unwarranted and unlawful, and has deprived the Plaintiff of her right to be secure in her person, and other privileges and immunities secured to her by the Constitution of the United States of America and by the Constitution and Laws of the state of New Mexico.
14.9. As a result of actions taken by the Defendants, Plaintiff has suffered emotionally and physically and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50, 000. 00, the exact amount to be proven at trial.
MAR,IA SISNEROS 15.1. Maria Sisneros is a Plaintiff in for felony shoplifting and residential burglary. 15.2. Plaintiff has had sexual advances made by her by a nurse at the BCDC named David. 15.3. Plaintiff described the Defendant as being a short red haired man and is known by female residents as "Pervert David". 15.4. It is Plaintiff's information and belief that Defendant David was and at all times herein mentioned an agent and employee of the Defendant BCDC, the county of Bernalillo and the City of Albuquerque and is authorized by the Defendant to operate and run or in the very minimum work within the infirmary at the BCDC and at all times herein mentioned was acting within the scope of his
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employment. And that all actions done by him were done in his individual capacity as well as in his capacity as an agent and employee of the Defendant BCDC and the City of Albuquerque.
15.5. When the Plaintiff first came into BCDC in April 1994, she stated herein that the employee of the BCDC known as David asked her if he could see her bare body. He promised to bond her out of jail. The Plaintiff refused and threatened him with a report, however has not made up a formal report against him.
15.6. On or about November 15, 1994, Defendant known as David took the Plaintiff in for a pregnancy test at the BCDC and caressed her breasts and caressed her all the way down to her waist.
15.7. When the Defendant got to her waist he turned around to look at the correctio'nal officer present whose name was Tina, who had her back facing them all this time and was not paying attention and at that particular time the Defendant stopped fondling the Plaintiff and got a urine sample for the pregnancy test.
15.8. That all times herein mentioned, the Defendant touched the Plaintiff without permission and such touching was offensive. That all times herein mentioned, the Plaintiff has been afraid of retaliation and has not formally filed a grievance against the Defendant known as David.
15.9. That the conduct of the Defendant was unreasonable, unwarranted and unlawful, and has deprived the Defendant of her liberty and the right over her own person, and other privileges and immunities secured by the Constitution of the United States of America and by the Constitution and Law of the state of New Mexico.
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15.10. As a. result of actions taken by the Defendants, Plaintiff has suffered emotional distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
LARRY GREEN
16.1 Larry Green is in for trafficking cocaine. On approximately November 10, 1994, he was having to work cleaning up the pods at 3:00A.M., in the morning. He was asked to scrub the floor with a brush and strip the stairs. At this time in the morning, the lights were off which made it too dark to see safely. Larry ended up slipping off the stairwell and cutting his foot. He was transported to UNM Hospital where he received two (2) stitches on his foot. The conditions he was asked to work under were unreasonable and hazardous. No rubber boots or other safety supplies were given to the Plaintiff to prevent such an injury.
16.2. Mr. Green also noted that when the accident happened, there was not a guard on the floor which is a requirement. Instead the guard was in the control center but the guard falsified the report by not including this information.
16.3. A second incident on or about November 17, 1994, Mr. Green claims his girlfriend, Lupe, dropped off $10.00 for him which was taken by BCDC staff, the Canteen Officer, because he said he owed them for supplies. Such allegation was false and his $10.00 was kept unlawfully.
16.4. That the Defendant has been in the BCDC since August of
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1994 and has not received indigent supplies for most of that time which includes soap, shampoo and toothpaste.
16.5. In addition, BCDC does not utilize appropriate grievance procedures, and therefore they have become non-existent. The grievances of not having indigent supplies have been totally ignored by the BCDC since there is no grievance committee and no feedback is given with regards to the grievance reports submitted at the BCDC.
16.6. Because of the negligence of the Defendants, and their unreasonable unwarrahted and unlawful conduct in having the Defendant work without proper attire or in a safe environment, in additional to not allowing indigent supplies like toothpaste, toilet paper and soap, in addition to not providing an appropriate grievance procedure or committee, the Defendants have acted unreasonably, unwarranted and in an unlawful fashion and have deprived. the Plaintiff of his basic Constitutional Rights, and other privileges and immunities secured to him by the Constitution of the United states of America and by the Constitution and Laws of New Mexico.
16.7. As a result of the actions taken by the Defendant, Plaintiff has suffered emotional and physical distress and has been subjected to humiliation and embarrassment in addition to pain and suffering. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
BARTEL HALEY
17.1. Plaintiff, Bartel Haley, was arrested for possession of
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cocaine on April 1, 1994. 17.2. On that particular date, the Plaintiff was approached
from behind and hit without warning by the Albuquerque Police Department and they knocked him out. Paramedics who arrived on the scene insisted that they take him to the hospital but he ended up being taken to BCDC instead because police officers were of the opinion that he would run away from the hospital. Lieutenant Chavez at BCDC took pictures and sent him to the infirmary for a few days but refused to give him hospitalization.
17.3. The Plaintiff continually requested to see a physician at the BCDC or at another medical institution but was refused.
17.4. That the Defendant suffered cracked ribs, a fractured tooth and other serious injuries but medical attention was denied him by Lieutenant Chavez.
17.5. It is Plaintiff's information and belief that the Defendant, Lieutenant Chavez was at all times herein mentioned an agent and employee of the BCDC and the City of Albuquerque and the Board of Commissioners of the County of Bernalillo and was authorized by the Defendants to determine whether the Plaintiff should and did receive medical attention, and the Defendant Chavez was acting within the scope of his employment at all times, and that all actions by him were done in his individual capacity, as well as his capacity as an agent and employee of the Defendant BCDC, the Defendant Board of Commissioners of the County of Bernalillo and the City of Albuquerque.
17.6. Defendant Chavez, the BCDC, the Board of Commissioners
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of the County of Bernalillo are all individually, as well as vicariously, liable for the actions set forth herein.
17.7. That because of the negligence of the Defendants in not authorizing immediate medical care for the Defendant, he has been permanently disabled and scared, and the conduct of the Defendant was unreasonable, unwarranted and unlawful, and deprived him of his due process rights, and other privileges and immunities secured to him by the Constitution of the United States of America and by the Constitution and Laws by the state of New Mexico.
17. 8. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional distress and damages and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50, 000.00, the exact amount to be proven at trial.
MICHAEL COTE
18.1. That the Plaintiff has been incarcerated at the BCDC for numerous months and has not been provided on a full time basis with indigent supplies like soap, shampoo, and toothpaste and has no money on the books to purchase those items.
18.2. In addition, the Plaintiff complains that the cleaning supplies which the BCDC has to keep the facilities clean is very limited in that they have very minimal cleaning supplies, very few brooms, no mops, and for the most part the mop heads smell like sewer. In addition, the rooms are filled with cockroaches, mice and other vermin.
18. 3. The Defendant complains that there is no reasonable
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procedures to file a grievance regarding lack of indigent supplies. 18.4. That the conduct of the BCDC is unreasonable,
unwarranted and unlawful in that it deprives the Plaintiff due process and other privileges and immunities secured to him by the constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
18. 5. That as a result of actions taken by the Defendant, Plaintiff has suffered emotional distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
JOB RAY HERRERA
19 .1. Mr. Herrera suffers from a sleeping disorder called Sleeping Amnia and because of the over crowding is suffering great emotional distress and is in constant pain.
19.2. In addition, Joe Ray Herrera is in the BCDC for the crime of burglary. At the time he was arrested, he had been hit over the head with a rock, suffered great damage, and is in a lot of pain and continually requested a cat-scan and other medical intervention regarding his head injury but has been refused such.
19.3. In addition, Mr. Herrera was involved in a fist fight with a relative of someone who works at the BCDC, in fact the father-in-law of this person he has been involved with works at the BCDC.
19.4. Because of the altercation, the father-in-law (John Doe) who is an employee at the BCDC has continually threatened the
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therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
CARL RAY LOPEZ
8 .1. On November 5, 1994, at 9 A.M., Donald Sullivan, a psychologically impaired inmate at the BCDC, who belonged in the Psych. Ward, attacked Plaintiff Carl Ray Lopez, for no reason.
8.2. Mr. Lopez went down to see the nurse after his attack and he was informed that he was fine. The Plaintiff told the nurse that his head and back hurt and they told him to wait until the swelling went down. The Plaintiff was given an ice pack for his bumps.
8.3. The Plaintiff continued to complain about his back and leg pain and asked the nurse in R & D if he could see a doctor. The nurse refused saying that the Plaintiff had already seen medical.
8.4. At approximately 8:00P.M., the Plaintiff was talking to Tom Horton in his cell. Michael Donovan, another psychologically impaired individual who belong in the Psych. Ward in the BCDC, but who was in the general population, came in and told the Plaintiff to stop talking about him.
8.5. The Plaintiff informed him that he did not know him to talk about him and Mr. Donovan said he would fuck the Plaintiff up if he did not stop. There was no 8:00 P.M. head check by the BCDC employees.
8.6. At 8:35 P.M. the Plaintiff walked down the stairs and shared a cup of coffee with Tom Horton. c & D pods were now out.
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The Plaintiff asked Lorraine (employee of BCDC) (John Doe) if she would let him talk to the Lieutenant and she said to hold on, but the Lieutenant said she would be back in a little while.
8.7. On November 5, at 9:00P.M., Michael Donovan came running out of his room shouting and telling the Plaintiff that he was going to fuck him up. Michael Donovan threw a kick at the Plaintiff and missed. The Plaintiff backed up and asked Mr. Donovan what the problem was. Mr. Donovan told the Plaintiff that he was talking about him and the Plaintiff said I don't even know you. Mr. Donovan started swinging and the Plaintiff backed up away from Mr. Donovan trying to make him understand the he did not know him and that he had not talked about him and using all his efforts to avoid a fight with Mr. Donovan.
8.8. Finally Mr. Donovan hit the Plaintiff about 5 or 6 times and the Plaintiff could not take it any longer. The Plaintiff still did not hit Mr. Donovan but he tried to wrestle him down, but Mr. Donovan kept popping the Plaintiff in the face. The Plaintiff flipped over the chairs and fell to his knees. Mr. Donovan kept on kicking the Plaintiff and the Plaintiff tried to roll away but he kept on.
8.9. Finally, Tom Horton said he had enough and he broke it up. Then the guards finally came and the Plaintiff stayed in the corner of the room. Three or four officers came, and at that particular point hand cuffed him and took him to see medical.
8.10. On November 5, at 9:30P.M., the Plaintiff saw a male nurse. The nurse asked him to wash his face so he did. The nurse
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looked over the Plaintiff, took pictures of his face and back, and asked him if he wanted to see himself. The Plaintiff did and saw that his face was all bumpy and that he had cuts over his eyes, the side of his head, under his right eye and some in his mouth. The nurse gave the Plaintiff three (3) Advil and an ice pack. The Plaintiff informed the nurse that his head and back hurt and the nurse said it was just the incredible swelling.
8.11. On November 5 at 9:45P.M., the Plaintiff was taken to R & D. The Plaintiff told Marty, (a correctional officer)(John Doe) that his back and legs were hurting him and the correctional officer took him by the R&D medical door.
8.12. The correctional officer told the Plaintiff not to even look at Michael Donovan who was in the door next to medical. The Plaintiff waited for awhile and then they locked him up in cell 1.
8.13. Every time a correctional officer would pass by the Plaintiff, he would tell them that he needed to talk to the Lieutenant or Captain because he was seriously hurt and they would say hold on. The Plaintiff told them that his back was hurting. He told a bald headed man that works in medical (John Doe) that he wanted to see a doctor and he said you already saw medical and refused his request for a doctor.
8.14. The Plaintiff agreed but informed him that he still needed to see a doctor and the employee of the BCDC said no I don't think so and walked away. At about 11:00 P.M., the Plaintiff asked to make a phone call and they said no.
8.15. Between 12:00 and 12:30 P.M., the Plaintiff was being
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Plaintiff, and has sent word that he will die. Because of such, the Plaintiff has been put in the protective (PSU) unit. The father-in-law who is a correctional officer will be identified at a later point in time.
19.5. Because of the actions of the Defendant father-in-law and the BCDC, such conduct has been unreasonable and unwarranted, coupled with the fact that the Defendants have refused to give the Plaintiff proper medical care, all of which have deprived him of his due process and equal protection rights, and his privileges and immunities secured to him by the Constitution of the United States of America and by the Constitution and laws of the State of New Mexico.
19. 6. That as a result of actions taken by the Defendant, Plaintiff has suffered physical and emotional distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50, 000. 00, the exact amount to be proven at trial.
JOSIE KRIENER
20.1. Josie Kriener is in for failure to comply with probation.
20.2. Ms. Kriener is going through a lot of stress and emotional problems because of the over crowdi11g. In addition, she has been unlawfully detained in lock down four (4) different times since May 1994.
20.3. The first time that the Plaintiff was locked down was because she was informed that she could not have her hair in
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extensions. Because of her refusal, she was put in lock down for approximately fifteen (15) days.
20.4. Subsequently a couple of the correctional officers by the name of Lorraine Vallenzuela and Sherry checked on the issue for her and were informed that she did not have to take her hair down and therefore the punishment she received was unwarranted in this regard.
20.5. A correctional officer by the name of Evelyn made the accusation against the plaintiff that she had stolen some shoes, and because of such allegation she was again put on lock down. However, it was subsequently determined that the Plaintiff had in fact bought the shoes at the commissary but that the shoes where not actually the girls who sold them to her. In any event, it was proven that the Plaintiff did not steal the shoes, and the subsequent lock down was without justification.
20.6. In another incident a correctional officer by the name of Barbara Cole, who was serving food was asked by the Plaintiff if she could have more juice and the correctional officer's response was that the Plaintiff was too fat and was a pig and did not need any more juice.
20.7. The Plaintiff's response was that she was old and senile and she needed to get laid. They locked Ms. Kriener down this time for an additional fifteen (15) days and the lock down was unwarranted and cruel and unusual punishment.
20.8. In addition, on or about November 18, 1994 the Plaintiff was locked down in addition to her entire pod because two (2) girls
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has gotten into a fight, and the lock down of everyone because of two (2) individuals fighting was unwarranted and unjustified and unfair to all the other individuals.
20.9. In addition, the Plaintiff along with other female inmates have continuously requested a steady supply of toilet tissue, however have made several requests to Jerry Gino of the BCDC and such requests have been refused, and the Plaintiff and her roommates have been forced to use brown paper bags and magazines to clean their genital areas.
20.10. In addition, the lack of toilet paper and the forcing of use of brown paper bags and magazines to clean themselves has resulted in rashes, discomfort and is very embarrassing, because the Plaintiff has now developed boils on her rectum and is now using Hydro-Cortisone to help alleviate the pain in her anus and vagina.
20.11. That at all times herein mentioned, the Plaintiff has informed Lieutenant Kathy Martinez of the toilet paper problem, and the BCDC has been made fully aware of the problem with the lack of toilet paper, shampoo and soap and other indigent supplies.
20.12. In addition, the BCDC on the women's side has numerous shake downs where her personal papers and documents have been taken away.
20.13. That at all times herein mentioned, upon Plaintiff's information and belief, the Defendants named herein mentioned are agents and employees of the Defendants, and therefore the Defendants BCDC and the City of Albuquerque are vicariously liable
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for the conduct of their employees. 20.14. That because of the conduct of the Defendants, which is
unreasonable, unwarranted, unlawful, the Defendant has been deprived of due process and equal protection and of her right to peaceably live, and other privileges and immunities secured to her by the Constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
20. 15. As a result of actions taken by the Defendants, Plaintiff has suffered emotional distress and has been subject to humiliation and embarrassment in addition to physical damage. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
DEBBIE LUCERO
21.1. That while Debbie Lucero was incarcerated in the BCDC, and while she was several months pregnant, and suffered great
- stress and tension because of the over crowding, and suffered great
abdominal pain and subsequently aborted. 21.2. That as a direct and proximate result of the Defendant's
negligence, and over crowding, the BCDC in creating additional stress for the inmates, and as a result of causing stress upon the deceased, he was still born. And by reason of the Plaintiff surviving the deceased and being deprived of the support, comfort, society, counsel and services of the deceased has suffered damages.
21.3. That the refusal of the Defendant to provide medical care and the refusal of the BCDC to keep the population at appropriate limits and because of over crowding, the Plaintiff
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suffered a miscarriage, and the conduct of the Defendants in that regard was unreasonable, unwarranted and unlawful, and deprived the Plaintiff of her right to due process and equal protection and immunity secured by her to the Constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
21.4. That as a result of the actions taken by the Defendants, Plaintiff has suffered emotional distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater and $50,000.00, the exact amount to be proven at trial.
JIMMY LEE MCCLENDON
22.1. Jimmy Lee McClendon is an individual who is severely mentally impaired and is basically homeless.
22.2. The Plaintiff was incarcerated at the BCDC and because of his psychological impairment was placed in the psychiatric unit, and subsequently got toothpaste in his eye, and because of the negligence of the BCDC, coupled with Mr. McClendon being unable to take care of his eye or himself, Mr. McClendon scratched his eye and the infection spread to his face, and subsequently that required extensive medical treatment, and it is a strong probability that Mr. McClendon might lose his eye, and therefore suffered compensatory damages.
22.3. As a result of the Defendant's failing to properly supervise Jimmy Lee McClendon because he is psychologically impaired and their refusal to adequately treat the Defendant,
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deprived him of his due process and equal protection rights, and privileges and immunities secured to him by the Constitution of the United States of America and by the Constitution and Law of the State of New Mexico.
22.4. As a result of actions taken by the Defendants, Plaintiff has suffered physical and emotional distress and physical injury and has bee subjected to humiliation and embarrassment because of the scaring on his face. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
HAROLD P. LUND 23 .1. Mr. Harold P. Lund was brought into the Bernalillo County Detention Center on or about October 1, 1994, after being arrested for DWI and being in a car accident. He was not afforded medical attention for three (3) days despite the fact that he made repeated attempts indicating that he had been hurt in the car accident, and that he could not eat or swallow and that he was spitting up blood. 23.2. The Plaintiff was in the BCDC for three (3) days without any medical treatment, and subsequently upon his release, he went to the UNM Medical Center where it was determined that he had suffered a broken upper pallet and several small fractures to the right cheek, and subsequently he has to go through several severe surgeries because of the negligence of the BCDC refusing him medical attention. 23. 3. The conduct of the Defendants 1 in refusing to give
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medical attention to the Defendant for three (3) days, was unreasonable, unwarranted, and unlawful and deprived him of his liberty, his right to due process and equal protection and privileges and immunities secured to him by the Constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
23.4. As a result of actions taken by the Defendants or the lack thereof, Plaintiff has suffered physical damage and great emotional distress and has been subjected to extreme hardship and pain notwithstanding humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
PETER J. SMITH
24.1. on October 21, 1994, the Plaintiff, Peter J. smith was taken to the BCDC by officers Victor J. Hernandez and Kevin D. Sevir of the University of New Mexico Police. At approximately 11:00 after being booked and held in a holding pen the Plaintiff was taken upstairs to spend the night at BCDC.
24.2. The Plaintiff was taken to an elevator with approximately five other men who were being escorted to cells as well. The Plaintiff stepped out of the cage that encompasses the door of the elevator, he was forcibly pushed from behind on the top of his shoulders which both jerked and snapped his head back. The Plaintiff was told by a correctional officer to move along even though he was moving in stride with the rest of the group.
24.3. The Plaintiff was pushed from behind once again in the
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same manner. This time he turned around and said if you are going to push me like that I would at least like to know what your name is. The correctional officer's badge was partially covered up because it was sideways and in a crease of his uniform and the Plaintiff did not get his name.
24.4. The correctional officer who pushed the Plaintiff was about 5 1 1011 , black hair that was tied in a small pony tail, a small thin mustache, and was wearing glasses and was a big boned, husky, broad shouldered man. When the Plaintiff tried to look at his name tag he said, "Shut the fuck up, you don't need to know what my name is, get in the fucking cell."
24.5. At this point the correctional officer gave the Plaintiff one final push, this time to the front in his chest area that pushed him into cell F-1. The Plaintiff was given a blanket and a towel and he put in on the floor where there was room and went to sleep.
24.6. Around 4:00 A.M. the door opened and the correctional officer that had pushed the Plaintiff earlier that night was standing at the door and said, "Smith, P. Smith, come with us please." He was accompanied by a second correctional officer that was short 5'6" - 5 1 811 , of Mexican decent and about 40 to 45 years of age. They took the Plaintiff to a vacant cell on the second level which was on the right hand side if facing the cells from where the correctional officer's desk is.
24.7. The Plaintiff was told to sit down and after he sat down on the concrete slab he looked up and the officer who had pushed
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'
him earlier that night and saw that he had wrapped his hand in a towel and the correctional officer punched the Plaintiff across his face, hitting his nose. The Plaintiff laid down on his side and the two correctional officers began to laugh and the one who hit him said, "That will teach you to keep your fucking mouth shut." The second correctional officer had stood in the doorway and watched while the first one hit the Plaintiff. The Plaintiff was left in the cell for about 20 to 30 minutes and then they took him back down to his original cell.
24.8. Breakfast was called an hour or two later and the correctional officer who hit the Plaintiff was the one handing out the trays with breakfast. He was not wearing his name tag at this point. Later that morning (Saturday October 22, 1994) , the Plaintiff was called out to the area where there are tables to fill out a form to see if he could be released on his own recognizance. The pre-trial officer the Plaintiff spoke with was Paul Stein. After the Plaintiff had given Mr. stein the information he wanted, the Plaintiff told him that he had been beat up the night before. The Plaintiff pointed to the correctional officer who had hit him the night before because he was standing less than 20 feet away. The Plaintiff asked Mr. stein how he could file a formal complaint and Mr. Stein informed the Plaintiff that he could do it when he was released to downstairs.
24.9. After the interview with Mr. Stein the Plaintiff walked back to the cells by the phones and watched Mr. Stein and the correctional officer have a conversation while the entire time the
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correctional officer was starring at the Plaintiff. The Plaintiff was released from custody around 4:00P.M., Saturday October 22, 1994 without any charges brought against him.
24.10. On Tuesday, October 25, 1994, the Plaintiff went to speak with captain Felimon Martinez accompanied by Andres Valdez of New Mexico vecinos United. Captain Martinez took notes as he told him what had happened to him and they went to his office to try and identify the correctional officer who had hit the Plaintiff. The photo line-up was incomplete and Captain Martinez was waiting for updated photos from the Albuquerque Police Department I.D. Department.
24.11. That despite repeated requests by Mr. Smith to try and identify the correctional officer that beat him, Captain Martinez did not have any updated photos of his officers and therefore the correctional officer who beat the Plaintiff has never been identified.
24.12. That all times herein mentioned, the correctional officer who beat the Plaintiff is an employee and/or agent of Defendant, Bernalillo County Detention Center, or the City of Albuquerque or the County Board of Commissioners, and were acting individually and in his official capacity of employee, and therefore the Defendants BCDC, the city of Albuquerque, and the county of Bernalillo are vicariously liable to the Plaintiff for the conduct of its employees.
24.13. At all times mentioned herein, Defendants, and each of them separately and in concert, acted under color and pretense of

Case 6:95-cv-00024-JAP-KBM Document 1-2 Filed 01/10/95 Page 5 of 40
law, to-wit: under the color of the statutes, ordinances, regulations customs and usages of the State of New Mexico and rules of the BCDC. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct herein mentioned to the injury of Plaintiff and deprived him of his rights, privileges, and immunities secured and guaranteed to him under the First, Fourth, Fifth and Fourteenth Amendments to the United states constitution and the Laws of the state of New Mexico.
24.14. That at all of the times of the events herein mentioned Plaintiff was acting in a reasonable and peaceful manner, and was not disturbing the peach or committing any infraction against the BCDC rules.
24.15. That despite the fact that Plaintiff was acting in a reasonable and peaceful manner, and was not in any way or fashion disturbing the peace or committing any offense against the BCDC or the officers, Plaintiff was assaulted and beaten in an unreasonable, unwarranted, and unlawful fashion by false pretext, by the BCDC officers named herein, and hereby deprived of his liberty, his right to due process and equal protection and immunity secured to him by the Constitution of the United States of America and the Constitution and Laws of the state of New Mexico.
24.16. As a result of the actions taken by the Defendants, Plaintiff has suffered physical and emotional damages, emotional distress, and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
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JOSEPH GARCIA
25.1. On or about August 15, 1994, Joseph Garcia was in one north maximum security when he and his cousin Manuel Martinez started fighting.
25.2. A rookie correctional officer pushed the panic button and the riot crew immediately responded and as they separated them, two (2) correctional officers started to severely beat Joseph Garcia.
25.3. Joseph Garcia received multiple contusions and abrasions and was viciously beaten by the officers and such force was clearly excessive and was not warranted.
25.4. The force used by the officers against Mr. Garcia under the circumstances was. such to violate such federal and state law and inflicted great bodily harm, was arbitrary and beyond that which was reasonably necessary to serve legitimate ends, and was shocking to the conscious.
25.5. That all times herein mentioned, the correctional officers who beat the Plaintiff were employees andjor agents of Defendant, Bernalillo county Detention Center, or the City of Albuquerque or the county Board of Commissioners, and were acting individually and in their official capacity as employees, and therefore the Defendants, BCDC, the City of Albuquerque, and the County of Bernalillo are vicariously liable to the Plaintiff for the conduct of its employees.
25.6. At all times mentioned herein, Defendants, and each of them separately and in concert, acted under color and pretense of
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law, to-wit: under the color of the statutes, ordinances, regulations customs and usages of the State of New Mexico and rules of the BCDC. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct herein mentioned to the injury of Plaintiff and deprived him of his rights, privileges, and immunities secured and guaranteed to him under the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution and the laws of the United States.
25.7. That at all times herein mentioned the officers of the BCDC acted in a manner that was unreasonable, unwarranted, and unlawful fashion by false pretext, by the BCDC officers named herein, and hereby deprived of his liberty, his right to due process and equal protection and immunity secured to him by the Constitution of the United States of America and the Constitution and Laws of the State of New Mexico.
25.8. As a result of the actions taken by the Defendants, Plaintiff has suffered physical and emotional damages, emotional distress, and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
MANUEL GARCIA 26.1. On or about August 15, 1994, Manuel Garcia was in one north maximum security when he and his cousin Joseph Garcia started fighting. 26.2. A rookie correctional officer pushed the panic button and the riot crew immediately responded and as they separated them,
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·•
two (2) correctional officers started to severely beat Manuel Garcia.
26.3. Manuel Garcia received multiple contusions and abrasions and was viciously beaten by the officers and such force was clearly excessive and was not warranted.
26.4. The force used by the officers against Mr. Garcia under the circumstances was such to violate such federal and state law and inflicted great bodily harm, was arbitrary and beyond that which was reasonably necessary to serve legitimate ends, and was shocking to the conscious.
26.5. That all times herein mentioned, the correctional officers who beat the Plaintiff were employees andjor agents of Defendant, Bernalillo County Detention Center, or the city of Albuquerque or the county Board of Commissioners, and were acting individually and in their official capacity of employees, and therefore the Defendants, BCDC, the City of Albuquerque, and the County of Bernalillo are vicariously liable to the Plaintiff for the conduct of its employees.
26.6. At all times mentioned herein, Defendants, and each of them separately and in concert, acted under color and pretense of law, to-wit: under the color of the statutes, ordinances, regulations customs and usages of the state of New Mexico and rules of the BCDC. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct herein mentioned to the injury of Plaintiff and deprived him of his rights, privileges, and immunities secured and guaranteed to him under the First, Fourth,
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'

,,

Fifth and Fourteenth Amendments to the United States Constitution and the laws of the United states.
26.7. That at all times herein mentioned the officers of the BCDC acted in a manner that was unreasonable, unwarranted, and unlawful fashion by false pretext, by the BCDC officers named herein, and hereby deprived of his liberty, his right to due process and equal protection and immunity secured to him by the Constitution of the United states of America and the constitution and Laws of the State of New Mexico.
26. 8. As a result of the actions taken by the Defendants, Plaintiff has suffered physical and emotional damages, emotional distress, and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
JOHN LAWVER
27.1 •. John Lawver is a 31 year old man from Chicago. He is in BCDC on a Detainer Court Writ from Dixon Correctional Center. Mr. Lawver arrived at BCDC on November 1, 1994.
27.2. on sunday December 4, 1994 at approximately 8:30 PM he was talking on the telephone with his mother out of Chicago and he was facing the direction of the day room with his head against the window.
27.3. The Plaintiff suddenly felt pounding on his head. He was struck approximately seven (7) times. He fell straight down with his hand covering his head.
27.4. He looked up and he saw an inmate, Reuben Romero,

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swinging and beating his head with an ice pitcher which was clear white hard plastic. Reuben is psychologically impaired and is an inmate who belongs in the psych. ward and until the date of this incident was unknown to the Plaintiff.
27. 5. The Plaintiff was unable to get up because he was pinched between the window and the chair. He finally did get up and tried to grab the pitcher from the mentally deranged inmate, however Reuben Romero ran upstairs and locked himself in a room.
27.6. At that time, the Plaintiff went up to his room and sat on his bed. He was feeling very unconscious and was bleeding badly from the top and side of his head. He was badly cut.
27.7. He started to wash his wounds and about that time a correctional officer came into his cell which was B-11 on second north.
27.8. The correctional officer asked the Plaintiff what was wrong and the Plaintiff said he needed medical attention and asked the officer if he could please get him some.
27.9. The correctional officer suggested they go downstairs and talk to the control officer and go from there. The Plaintiff stated that he needed to stay in his room because he was just beaten almost to death with a pitcher and he needed medical attention right then.
27.10. The correctional officer said no, lets go downstairs and I can assist you downstairs, I can handle this situation. The Plaintiff once again stated that he wanted to stay in his room because he could not walk until further assistance could come to
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his room to help him. 27. 11. At that time the correctional officer denied the
Plaintiff any kind of medical assistance so the Plaintiff followed the officer downstairs into the day room though unconscious and feeling very poorly he had no choice but to follow the correctional officer as he suggested and barely did so.
27.12. At that time the officer approached the control window and was talking to the correctional officer. The Plaintiff was walking around the day room a couple of times trying to gain consciousness that he~ was losing.
27.13. The correctional officers asked him to go to the gate and the Plaintiff did. He was taken outside the blue door and was seen right away by a medical person that was standing out there. The medic asked him if he was alright and the Plaintiff stated No. He was losing a lot of blood and needed to go to the hospital.
- 27.14. The medic instructed the Plaintiff to sit down and wait
for the Lieutenant to come and take him downstairs. The Plaintiff was taken downstairs into the medical room.
27.15. At that time, the officers came in and took pictures of the Plaintiff. The Plaintiff spent at least two hours at the BCDC before he was taken to the hospital.
27.16. The Plaintiff was then taken to the hospital and he was stitched up. At the hospital he was taken to the x-ray room and numerous amounts of x-rays were taken. At least twenty on his head, neck, spine and other parts of his body.
27.17. He then had to wait for the x-rays to come back because
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the hospital staff did not want to do further work on him until they knew how injured he was.
27.18. After about four (4) hours, he went into the suture room and was given approximately 16 stitches on his head.
27.19. The Plaintiff spent approximately nine (9) hours at the hospital. At approximately 9:30 A.M. the officer at the hospital was relieved and he was taken back to BCDC.
27.20. He was then put into a holding cell downstairs for a total of thirty (30) minutes and then a correctional officer came to him with a tray and stated he was being moved to the first floor where they had a room for him.
27.21. At this time he was still drowsy and sleepy because he was given shots for his pain and the correctional officer still had his prescription in his hand and stated he was going to get it filled.
27.22. The Plaintiff was taken downstairs and ate his breakfast. He was sitting in a room that had nothing in it, not a mattress or anything. The sink and toilet were filthy and clogged up.
27.23. The Plaintiff sat there for an hour and was becoming concerned about the sanitary condition of the room and the fact that he had fresh wounds on his body.
27. 24. At that time the Plaintiff got the attention of a correctional officer who called another correctional officer and both officers agreed that the Plaintiff should not be in that cell.
27.25. The officers called assistance from a Lieutenant
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George, who came and one of the correctional officers, George Fuentes explained the situation to the Lieutenant and asked if they could put the Plaintiff in a new room.
27.26. The Plaintiff was moved to another room on two south where there was a mattress. He asked for his medication which he did not receive that night and was in extreme pain and suffered greatly because they refused to give him the medication that had been prescribed to him at the hospital.
27.27. The Plaintiff awoke the next morning about 6:00 A.M. and he was in extreme pain. He asked a correctional officer if he could see medical. The correctional officer stated that medical would be there at lunch time.
27.28. At that time the Plaintiff laid back down until lunch time. Being in such pain he could hardly eat and requested the correctional officer to please bring him his medicine.
27.29. At approximately 4:00P.M. the Plaintiff still had not received his medication so he requested it once again and asked to see medical.
27.30. The correctional officer said he would call medical but at 5:30 P.M. the Plaintiff still had not seen medical.
27.31. The Plaintiff alleges that Reuben Romero, the inmate who attacked the Plaintiff is in fact a PSU patient, and has been in a psychiatric unit at the Penitentiary of New Mexico before. The Plaintiff alleges that Reuben Romero should have never been on the same floor that the Plaintiff was in but should have been in the psychiatric unit. If Reuben Romero would have been placed in
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the psychiatric unit and appropriately treated by the BCDC, the vicious attack on the Plaintiff would never have occurred.
27.32. The beating of the Plaintiff lasted about twenty (20) minutes with no intervention and it was thirty (30) minutes before the Plaintiff was actually taken off the floor.
27.33. That despite the fact that Plaintiff was acting in a reasonable and peaceful manner, and was not in any way or fashion disturbing the peace or committing any offense against the BCDC or the officers, Plaintiff was assaulted and beaten by a psychiatric patient in an unreasonable, unwarranted, and unlawful fashion by false pretext, and hereby deprived of his liberty, his right to due process and equal protection and immunity secured to him by the Constitution of the U' nited States of America and the Constitution and Laws of the State of New Mexico.
27.34. As a result of the actions taken by the Defendants, Plaintiff has suffered physical and emotional damages, emotional distress, and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,ooo.oo, the exact amount to be proven at trial.
MICHAEL LANDO
28. 1. On November 14, 1994 while in a protective custody status in the jail, the Plaintiff was attacked by four (4) inmates. The assault was racially motivated.
28.2. That evening on November 14, 1994 a correctional officer and two (2) strong inmates entered the Plaintiff 1 s cell and threatened his life and the correctional officer stated, "You are
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fucking with the familia, no matter where you go we are going to kill you."
28.3. After the attack on November 14, 1994, BCDC authorities took photos of the Plaintiff in his beaten up status.
28.4. That at all times herein mentioned, the four (4) inmates that went in and beat and assaulted the Plaintiff were allowed into his cell by a correctional officer working at the BCDC. In addition, the same correctional officer subsequently went in and threatened to kill the plaintiff.
28.5. That the Defendants, Bernalillo County and the City of Albuquerque, and the Board of County Commissioners are vicariously responsible for the conduct of the several officer Defendants.
28.6. At all times mentioned herein, Defendants, and each of them separately and in concert, acted under color and pretense of law, and under statutes, ordinances, and regulations of the BCDC and of the State of New Mexico. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct herein mentioned to the injury of the Plaintiff and deprived him of his rights, privileges, and immunities secured and guaranteed to him under the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution and the laws of the United States.
28.7. That at all of the times of the events herein mentioned Plaintiff was acting in a reasonable and peaceful manner, was not disturbing the peace or committing any infraction against any of the officers involved or the BCDC.
28.8. That despite the fact that the Plaintiff was acting in
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a reasonable and peaceful manner, and was not in any way or fashion disturbing the peace committing any infraction against the BCDC or any of the employees therein, Plaintiff was assaulted, beaten and punched in a unreasonable, unwarranted, and unlawful fashion, under false pretext, and was thereby deprived of his liberty, and his right to peaceably be therein, and other privileges and immunities secured to him by the Constitution of the United States of America and by the Constitution and the Laws of the State of New Mexico.
28.9. As a result of actions taken by the Defendants, Plaintiff has suffered physical and emotional damage and distress and has been subjected to physical pain, humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,ooo.oo, the exact amount to be proven at trial.
SHAWN DUFFY
29.1. Mr. Duffy was recently convicted of first degree murder,
- and when he was brought back to the BCDC, correctional officers at
the BCDC took all of the Plaintiffs possessions including confidential papers from his attorney, legal documents from the Court, including an order from the Honorable Ross Sanchez to allow Mr. Shawn Duffy access to the law library at the BCDC.
29.2. In addition, the correctional officers at the BCDC also took Mr. Duffy's food, and other personal items like a toothbrush, toothpaste, soap and his shoe strings.
29.3. The Plaintiff was put on the suicide watch and locked into a single cell with fifteen minute checks and defense counsel or any of the defense counsel staff was not allowed to talk to
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Shawn Duffy. 29.4. That subsequently counsel for the Plaintiff was informed
that there was a red alert on Shawn Duffy because he had indicated that he was going to hurt any roommate they imposed on him or any of the correctional officers that came near him, and those allegations are false and without merit and no disciplinary action has been filed to this date against Shawn Duffy.
29.5. In addition, Chief Griffith informed Plaintiff that threats had been made against Mr. Shawn Duffy from his old pod and for these reasons Mr. Griffith was forced to take action and locked him down and such allegations are false and without merit.
29.6. To this date, Mr. Duffy had filed two (2) grievances and they have both gone ignored and unanswered and Mr. Duffy has yet to receive any legal or personal belongings which were taken from him from the BCDC staff.
29.7. In addition, Mr. Duffy and been treated despondently and cruelly by correctional officers since his conviction indicating that they did not want him in their level because they did not have a favorable opinion of him because he was convicted of first degree murder.
29.8. That at all times herein mentioned the Plaintiff was not allowed to receive legal papers or written letters from his lawyer because he was on a red alter status.
29. 9. That at all times herein mentioned the psychiatric staff at the BCDC indicated that Mr. Shawn Duffy despite being locked down should have had his personal possessions and should have been
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allowed his legal papers. 29.10. In addition, during his period of incarceration at the
BCDC, Mr. Duffy sustained serious injury from correctional officers specifically one correctional officer named Lovato.
29 .11. At that particular time when he suffered a severe beating by Lovato, Mr. Duffy had a PSU Psych. Ward guy as a cell mate who required psychiatric help, who had been kicking and banging the door of the cell. The correctional officer i.e., Lovato judged Duffy to be the culprit and beat on him while he was hand cuffed.
29.12. That Shawn Duffy the Plaintiff was injured and sustained shoulder injuries and was taken to the hospital to treat his unlawful injury. Mr. Duffy could not fight back because he was in handcuffs.
29.13. Since the beating, Mr. Duffy, the Plaintiff has had problems with pain and his capacity to use his shoulder and has been scheduled continuously to visit the doctor at UNM Hospital.
29.14. That despite the fact that the injuries that Plaintiff, Shawn Duffy, received were at the hands of the BCDC i.e., Lovato, The BCDC staff has refused to take the Plaintiff for medical treatment and care and has two (2) cards showing that they refuse to take him to two (2) appointments at UNM Hospital. One of them was on October 14, 1994 and the other was on October 28, 1994.
29.15. That the BCDC staff continues to ignore his request for the medication for the pain in his shoulder that was allowed to him by the doctors at UNM Hospital, and at the very minimum has
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refused his continued to request for Advil to keep the inflammation down.
29.16. On one occasion the Plaintiff was administered steroids and pain killers and this one treatment did not alleviate the problem that Mr. Duffy continues to face with the permanent injury he has suffered as a result from a severe beating by the BCDC staff i.e., Lovato.
29.17. That just recently Mr. Shawn Duffy was taken back to his normal pod and now after nine (9) months of being at the BCDC is still having to sleep on the floor without sufficient blankets.
29.18. In addition, visitors who come to see Mr. Duffy, including his attorney are continually harassed, and interrogated about visits with th~ Plaintiff.
29.19. That at all times herein mentioned BCDC correctional officer Lovato was an employee and an agent of the BCDC and the City of Albuquerque, and was acting individually and in concert with other officers, and therefore Defendant Bernalillo County Detention Center and the City of Albuquerque are vicariously liable for the conduct of Lovato.
29.20. In addition, the Defendants jointly and separately have violated the Defendant's rights as mentioned herein by other actions, which have been unreasonable, unwarranted, and unlawful fashion, under false pretext, and was thereby deprived of his liberty, and his right to peaceably be therein, and other privileges and immunities secured to him by the Constitution of the United States of America and by the Constitution and the Laws of
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the state of New Mexico. 29.21. As a result of actions taken by the Defendants,
Plaintiff has suffered physical and emotional damage and distress and has been subjected to physical pain, humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
SEAN AD SIIAJDI RICHl\RD BROUGHTON
30.1 On November 20, 1994 when the Plaintiff was booked into the BCDC he was hand cuffed behind his back and complained that the cuffs were too tight and that they were uncomfortable, and one correctional officer by the name of Seal Barley came into the room and punched the Defendant several times and threw him to the ground and injured him, subsequently the Plaintiff informed a medical officer of his injuries that he had received, and was laughed at and ignored.
30.2. That the medical screening only consisted of a blood pressure check of the Plaintiff, not withstanding the fact that his back, neck and hip was hurting from the beating he had suffered at the handS of Seal Barley.
30.3. After he was checked by medical he was placed in 5-E which is the unit {cage) used for inmates who are suicidal. At no time did the Plaintiff show signs or make any indications that he was suicidal, violent or in any way or form a danger to himself or anyone else.
30.4. That at all times herein mentioned the Plaintiff was put in the cell as punishment for reporting the beating that he had
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received to a medical officer. 30.5. That during the time that the Plaintiff was in 5-East,
he did not have a mattress, it was very cold and he only had one (1) blanket.
30.6. In addition, the Plaintiff was fed smaller portions of food, was placed in an area without any ventilation or windows and was fed by styrofoam utensils, and was thoroughly intimidated and degraded.
30.7. Subsequently, the Plaintiff was sent to level 4-East which had approximatery 35 to 40 people sleeping without mattresses and very few blankets and most of the prisoners there should have been in the Psych. Ward.
30.8. While in this level, one Douglas Robinson, a county Detention Officer verbally abused and degraded the Plaintiff and others in that area.
- 30.9. That at all times herein mentioned Seal Barley and
Douglas Robinson were agents and employees of the BCDC and therefore the City of Albuquerque and the BCDC are vicariously liable for the conduct of Seal Barley and Douglas Robinson.
30.10. At all times mentioned herein, Defendants, and each of them separately and in concert, acted under color and pretense of law, to-wit: under the color of the statutes, ordinances, regulations customs and usages of the State of New Mexico and rules of the BCDC. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct herein mentioned to the injury of Plaintiff and deprived him of his rights, privileges, and
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immunities secured and guaranteed to him under the First, Fourth, Fifth and Fourteenth Amendments to the United States constitution and the laws of the United states.
30.11. That at all of the times of the events herein mentioned Plaintiff was acting in a reasonable and peaceful manner, and was not disturbing the peach or committing any infraction against the BCDC rules.
30.12. That despite the fact that Plaintiff was acting in a reasonable and peaceful manner, and was not in any way or fashion disturbing the peace or committing any offense against the BCDC or the officers, Plaintiff was assaulted and beaten in an unreasonable, unwarranted, and unlawful fashion by false pretext, by the BCDC officers names herein, and hereby deprived of his liberty, his right to due process and equal protection and immunity secured to him by the Constitution of the United states of America and the Constitution and Laws of the State of New Mexico.
30.13. As a result of the actions taken by the Defendants, Plaintiff has suffered physical and emotional damages, emotional distress, and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
GLEN DEE PACKLA
31.1 That the Plaintiff was incarcerated on october 9, 1994 and for the first two (2) weeks had to sleep on the floor without a mattress.
31.2. That the Plaintiff has very severe back problems and the
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BCDC was informed of the Plaintiff's back problems but no effort was made to try and obtain a mattress for him.
31.3. There was no sanitation packet given to the Plaintiff including but no limited to toothpaste, toothbrush, soap or shampoo.
31.4. After approximately 42 days into his stay, Glen Dee Packla was still sleeping on the floor without a mattress.
31.5. on November 16, 1994, the Plaintiff was finally able to get into a bunk.
31.6. The Plaintiff is a borderline manic depressive and he has a prescription for Lithium and a prescription for Alluvial and has been on a prescription for Lithium now at the BCDC for approximately 50 days and has yet had a blood level test done on him despite repeated requests, since Lithium tends to go toxic in a persons system and the Plaintiff is aware that he could die from the toxicity of Lithium however, he has not been tested even though he has repeatedly requested to be.
31.7. That because of the actions of the inaction of the BCDC, the Plaintiff has requested that his medication be modified to prevent his death, and that was done on December 6, 1994.
31.8. That the Plaintiff is now in 4-West of the BCDC and that during the week it averages 140 people and during the weekends that floor averages 170 people.
31.9. That at one period the population of this floor went above 200 and several of the inmates were taken to sleep in the recreation room.
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31.10. That in the month of November, a PSU (Psych. Ward. Inmate) was sent to 4-West, and was viewed by all the inmates including a correctional officer named Lynn King, who witnessed the inmate masturbate in front of the other inmates opening for two (2) days, and in addition to masturbating, this individual had a very foul smell and it was evident that he had not bathed for a very long period of time.
31.11. That the individual from the Psych. Unit was subsequently moved after two (2) days, however left the other inmates feeling ill and violated.
31.12. On November 11, 1994, another PSU (Psych. Unit Inmate) was placed in Mr. Glen Dee Packla's pod, said individual clearly was an individual with psychiatric problems.
31.13. That the individual known as Lewis (who was the psych. unit individual) would take showers six (6) or seven (7) times a day and would urinate and opening masturbate in the shower and in front of others and would have conversations with people that were not there, would laugh and scream and it was very clear that he was a person who should have been in the Psych. Ward.
31.14. Subsequently this PSU inmate was moved to the Psych. Ward., however not before he had created a great disturbances.
31.15. That after November 11, 1994, another inmate was placed in 4-West that belonged in the Pscyh. Ward, who took a book and was beating himself in the throat with it. The correctional officers did not take the book away from him and this individual continued to beat himself.
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31.16. In addition, there was an unwarranted lock down from November 18, through the November 22, without just cause which weighs heavily and psychologically against all inmates.
31.17. That the captain of each pod is allowed to lock down and set free inmates as he wishes, and the lock downs severely depress the inmates and has a great emotional, psychological and negative impact on all the inmates including the Plaintiff.
31.18. That correctional officers work double and triple shifts and are greatly overworked and their tempers are short and they in turn abuse and have verbally abused the Plaintiff and others.
31.19. That the Plaintiff has been placed on lock down for no reason and is theref'ore not allowed to use the telephone which makes him anxious and subsequently depressed.
31. 20. That not withstanding his depression and medical situation, the Plaintiff has been continuously ignored and proper medical treatment is denied.
31.21. That there is no clean laundry given to the inmates; and soap and bleach is not used in the laundry. Also, machines are over packed so that they cannot clean what they do attempt to wash, and the laundry is very dirty and unkept.
31.22. Because of the negligence of the Defendants, and their unreasonable unwarranted and unlawful conduct in having the Defendant housed with psychologically impaired inmates, in addition to not allowing indigent supplies like toothpaste, toilet paper and soap, in addition to not providing the Plaintiff with his
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Lithium for his manic depressant medical condition which endangers his life, the Defendants have acted unreasonably, unwarranted and in an unlawful fashion and have deprived the Plaintiff of his basic Constitutional Rights, and other privileges and immunities secured to him by the constitution of the United States of America and by the Constitution and Laws of New Mexico.
31.23. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional distress and has been subjected to humiliation and embarrassment in addition to pain and suffering. Plaintiff therefore ~seeks damages in an amount greater than $50,000.00, the exact amount to be proven at trial.
DAVID SHAYKIH
32. 1. On December 7, 1994 at approximately 9: 15 P.M. , the Plaintiff was playing ping pong in the open area when he moved to hit the ping pong ball there was some debris on the floor. The debris seemed to have been some food left over from dinner at 4:00
PM.
32.2. The debris that had been left was koolaid which has been served off the ping pong table at dinner which had not been cleaned off by the BCDC employees.
32.3. That David Shaykin suffered a serious injury to his knee however no medical attention was given for approximately one (1) hour.
32.4. Subsequently the Plaintiff was only given an ice pack once and crutches, and has never been treated again despite the fact that he has sever ligament injury on his leg and needs
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arthroscopic surgery. 32.5. on December 8, 1994, the Plaintiff was seen by the same
doctor who has taken five (5) months to consider whether the Plaintiff needs some sort of medical intervention on his feet, since the Plaintiff is suffering from Jungle Rot and Agent Orange or a combination of both and his feet condition coupled with the knee condition make his medical condition critical, however the staff at the BCDC refuse to treat him for his medical condition.
32.6. That the Plaintiff has repeatedly requested of Dr. Mason that he be allowed something other than Motrin and crutches, and that he be allowed to go to some hospital where he can be properly checked, however despite his repeated requests and the obvious serious injury, he has not been afforded any medical treatment and it is continually refused.
32.7. The conduct of Dr. Mason is negligent and since he is an agent and employee of the Bernalillo county Detention Center, the Board of County Commissioners and the City of Albuquerque are all vicariously liable for the malpractice of Dr. Mason.
32 •8. Because the Defendants jointly and in concert, as employees and agents of the Bernalillo County Detention Center are refusing to give the medical attention to the Plaintiff have acted vicariously, and therefore the Defendants are all jointly and severally responsible to the Plaintiff.
32.9. Therefore, the negligence of Dr. Mason, the Bernalillo County Detention Center and the City of Albuquerque deprives the Plaintiff of his liberty and his right to be free from cruel and
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unusual punishment, and for other privileges and immunities and violates other privileges and immunities secured to him by the Constitution of the United States of America and the Constitution and Law of the State of New Mexico.
32.10. As a result of the actions taken by the Defendants, Plaintiff suffers with great pain because the BCDC refuses to give him proper medical treatment for his feet and knee.
32.11. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional and physical distress and has been subjected to pain and suffering. Plaintiff therefore seeks damages in the amount greater than $50, 000. 00, the exact amount to be proven at trial.
ARNOLD ANTHONY MAESTAS
33.1. Arnold Anthony Maestas is a resident at the BCDC for residential burglary charges. He has been at the BCDC since May 25, 1994.
33.2. On August 16, 1994, the Plaintiff was let out for one (1) hour for time out of his cell. The medical staff came on the level and the inmates were told to get back into their pods.
33.3. Correctional officer Martinez told the inmates they would get their remaining fifteen (15) minutes out of their cells after the medical staff was gone. At the time medical finished another correctional officer came in to relieve officer Martinez.
33.4. When medical left, William Nellie went to B-Pod to open it. The inmates started hitting on the window trying to tell the correctional officer that they still had f.ifteen (15) minutes of
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time out. The correctional officer shut the B-pod up and went back over to D-Pod to open the door. Plaintiff assumed they were going to be let out but that was not the case because officer Nellie would not let D-Pod out because he said it was officer Martinez's decision not his.
33.5. At that time, Officer Martinez came back into the day room and asked what was going on and Rick Bundy stated that D-Pod had not been given their fair amount of time out. Officer Martinez stated that the inmates had two (2) choices, either they got back into their pods or that he would call "code 99 11 •
33.6. All the inmates started moving back into the pod slowly and Officer Martinez pushed the "code 99 11 button. several officer responded to the call and forced the inmates into their pods.
33.7. At that time Lieutenant Chavez started opening maze into A-pod and then to c-pod. At that time other officers that were with Lieutenant Chavez left out of the day room coughing and choking.
33.8. Approximately 15 to 20 minutes after the officers left fifteen or twenty officers reentered with full riot gear on. Gas masks, shock shields, sticks. They came into B-pod and started taking out Manuel Martinez, Rick Bundy, and "Lazy", the three (3) residents who were protesting our time out.
33.9. After they removed inmates Manuel Martinez, Rick Bundy and Lazy gas was released and started seeping through the doors and vents. The inmate started placing wet towels and toilet paper underneath the door. At this time the Plaintiff heard residents
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being removed from D-pod and the correctional officers were beating them.
33.10. The correctional officers finally made it to the Plaintiff's room and was told by a correctional officer named Lucille to step away from the door and get down in his hands and knees and not to react to anything but stay put and lie down.
33.11. The Plaintiff did as he was told and when they came into his room he was by himself laying on his stomach with his hand behind his neck.
33.12. Six officers entered his cell and stepped on him. The Plaintiff asked the correctional officers not to be so rough and they started to pick him up and hit him with something and slammed up against the wall. The last thing the Plaintiff remembers was somebody's hand on his neck.
33.13. The Plaintiff was hand cuffed and he was telling the correctional officers that he was not fighting them and them passed out waking up in the day room later hog tied.
33.14. As a result of what happened in the riot the Plaintiff sustained injuries to his back and his left ribs. He put in sick call slips to see a doctor and the doctor told him he just had muscle spasms and prescribed Advil and some other kind of pain killer.
33.15. The Plaintiff put in sick call slips requesting x-rays and further treatment but medical has never responded. The Plaintiff knows something is wrong with him but has no way of getting proper medical treatment.
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33.16. Because the Defendant jointly and in concert, as an employee and agent of the Bernalillo County Detention center and refusing to give the medical attention to the Plaintiff has acted vicariously, and therefore the Defendants are all j oint1y and severally responsible to the Plaintiff.
33.17. Therefore, the negligence of the Bernalillo county Detention Center and the city of Albuquerque deprives the Plaintiff of his liberty and his right to be free from cruel and unusual punishment, and for other privileges and immunities and violates other privileges and immunities secured to him by the Constitution of the United States of America and the Constitution and Law of the State of New Mexico.
33.18. As a result of the actions taken by the Defendants, Plaintiff suffers with great pain because the BCDC refuses to give him proper medical treatment for back and left ribs.
33.19. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional and physical distress and has been subjected to pain and suffering. Plaintiff therefore seeks damages in the amount greater than $50, 000. 00, the exact amount to be proven at trial.
RICHARD KOPECKY 34.1. The Plaintiff, Richard Kopecky is an inmate at BCDC for domestic violence which occurred on November 2, 1994. On that date the Plaintiff was denied by the police to get a soft cast before he was taken to the BCDC. This cast is needed for a previous achilles tendon injury.
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34.2. on November 3, 1994 when the Plaintiff was booked he was taken to the fourth floor, he asked for a bottom bunk and was denied. The BCDC staff gave him the option of the floor or the top bunk and the Plaintiff ended up on a top bunk.
34.3. The Plaintiff was also denied an ace wrap and certain medication by the medical staff and the Plaintiff called his lawyer.
34.4. On November 4, 1994 the Plaintiff was given a set of crutches which were four i~ches different in size from each other and the Plaintiff was 'told that, that it was the only pair they had available at that time and no other crutches were offered at that time or at any other time.
34.5. Plaintiff made a submission for use of the law library and has made grievances which he has had no response on.
34.6. On November 6, 1994 the Plaintiff slipped out of his
- bunk and broke or bruised his heel. He was taken to the Bernalillo
County Medical Center six (6) hours later. There were no x-rays taken and a prescription was given to him, but BCDC employees would not have it filled.
34.7. On November 7, 11, 15, 18, 21, 23, 29, and December 2, 6 and 9 the Plaintiff made law library submissions. In addition, on November 9 the Plaintiff submitted a medical slip for his heel and there was no response to any of the requests.
34.8. On November 10, the Plaintiff talked with PSU and was told that they could only talk to him but could not give any counseling at that time. The Plaintiff then called his case worker
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trying to talk to his lawyer and no response was given. 34.9. On November 11, the Plaintiff talked with David at PSU
and was told they he could not be given therapy while he was in BCDC and all therapy must be done on an out patient basis. On November 14, he sent out another treatment release for PSU and received no response. At that time he was taken to medical and given an x-ray. No result of the x-ray has been given as of this date.
34.10. on November 16, 1994 the Plaintiff had a roommate, Phillip Shoemate, who had cigarettes in the room and some gang members (names unknown) came into the room and started to fight with him over the cigarettes. The correctional officer took no corrective action at the time and the Plaintiff's roommate ran out of the room with the crutches.
34.11. The Plaintiff asked the correctional officer to take the crutches out of his room but the correctional officer would not.
34.12. The Plaintiff received a threat from an inmate, Chris Crespine in front of Rosemary, a correctional officer at the time that time in that he threatened to hurt the Plaintiff's other leg. The correctional officer took no action at that time and did nothing to subdue Mr. Crespine, letting him harass the Plaintiff for a period of time in front of the other inmates.
34.13. Later that evening Mr. Crespine and another resident by the name of Arisimo threw.a glass of urine on another inmate named Donald who has since been moved.
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34.14. On November 22 and 28, the Plaintiff once again made a medical request for heel pain and was given a verbal refusal from the night nurse and no response on the written.
34.15. on December 2, during a shakedown search a paper with a list of grievances was taken without permission during the search. On December 7, Dave Sherman a case worker crumpled the paper and threw the request from the case workers mailbox including the Plaintiff's request for the law library and medical treatment release.
34.16. On December 9, the Plaintiff awoke at 12:30 AM with arthritis pain in his knee. He asked a correctional officer to call medical so that he could get some relief from his pain. As of 5:30 AM there had been no response to his request for medical. A correctional officer informed the Plaintiff that he had to leave to go to Court.
34.17. The Plaintiff refused to leave until he received some medication to relieve his pain. A correctional officer did finally take the Plaintiff to medical but medical refused to give medication because proper channels were not followed.
34.18. In addition, the Plaintiff states that the eighteenth streets and westside gangs at the BCDC are taking over cell by cell and the correctional officers do nothing to control the situation.
34.19. As a result of the actions taken by the Defendants, Plaintiff suffers with great pain and depression because the BCDC ignores his medical needs refusing to give him proper medical treatment for his arthritis, heel, and achilles tendon injury.
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Case 6:95-cv-00024-JAP-KBM Document 1-2 Filed 01/10/95 Page 35 of 40
34.20. That the conduct of the Defendant is unreasonable, unwarranted and unlawful, and deprives the Plaintiff of his liberty and other privileges and immunity secured by the Constitution of the United States of America and by the Constitution and Laws of the state of New Mexico.
34.21. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional and physical distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater then $50, 000. 00, the exact amount to be proven at trial.
JOHN HEWATT 35 .1. John Hewatt is in the BCDC for residential burglary. He complains of imprope~ medical care at the BCDC. 35.2. On October 24, 1994 the Plaintiff was involved in an accident where he had his hand slammed into a door. At that time Plaintiff's hand swelled immensely. He contacted the correctional officers on duty and told them what happened and one of the correctional officers called medical four (4) to five (5) hours later. 35.3. Medical showed up and stated that they could not help the Plaintiff because the doctor was not in and all they could do was administer Advil and ice. 35.4. The following day the Plaintiff was able to see the doctor and the doctor examined the Plaintiff's hand and said that it was not broken but just badly bruised. The Plaintiff stated that he thought his hand was broken. The doctor asked the
105
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Case 6:95-cv-00024-JAP-KBM Document 1-2 Filed 01/10/95 Page 36 of 40
Plaintiff if he could move his fingers and the Plaintiff stated that he could but it hurt badly to do so.
35.5. The Doctor said that his hand was not broken and that he could not x-ray it because it was too swollen. The Plaintiff was given ice and Advil for three (3) days.
35. 6. The Plaintiff continued to complain of his hand and correctional officer Brian Maser continued to call medical. The Plaintiff was told by officer Maser that medical said to quit being a cry baby and grow up. Medical informed Mr. Maser that they would do nothing more for the Plaintiff's pain.
35.7. The Plaintiff went to Court and was sentenced to one (1) year in the BCDC with work release. On the first day he was told by the case worker that the first thing he should do is get his hand checked because it was still swollen.
35.8. The Plaintiff went to the hospital and during the prescreening in the emergency room the nurse said that his hand looked deformed to her. When the doctor examined the Plaintiffs hand he felt it was broken and had x-rays taken.
35.9. The Plaintiff's hand was in fact broken and due to the fact that so much time had passed he had to go through surgery to have the bone re-broken and have pins put in to reset it so that it would heal as close to normal as they could get it since so much time had passed.
35.11. The Plaintiff returned to jail after the operation at approximately 9:30 to 10:00 P.M. The Plaintiff was at the satellite facility at that time and they moved him back to the main
106

Case 6:95-cv-00024-JAP-KBM Document 1-2 Filed 01/10/95 Page 37 of 40
facility because he could not work with his arm. 35.12. The Plaintiff was prescribed pain killers for the pain
but the doctor at the BCDC cut out the prescription the doctor at the hospital gave him and prescribed the Plaintiff 1 1/2 days of Tylenol III, and then two (2) Advil after that.
35.13. After subsequent visits to the hospital, the Plaintiff was given a clearance to work or find a job that he could perform with his left hand but the case worker, Edwina Brown denied him and said that he had to wait until he had a release from the doctor.
35.14. The Plairitiff has been in the BCDC main center this entire time waiting to be released for treatment on his hand. The Plaintiff was not aware that he needed another clearance to work but has been informed that he did need one.
35.15. The day that the Plaintiff was going to be sent back to the main facility at the BCDC, Edwina canceled the Plaintiff's work search and work release until he got a work clearance from the
~
doctor. The Plaintiff informed her right then that he had a person at Satellite that would give him a job.
35.16. At this time the Plaintiff is authorized by the Judge to work. He feels frustrated and angry that he is not being released to work especially since the Court has ordered them to do so.
35.17. As a result of the actions taken by the Defendants, Plaintiff suffers with pain and injury because the medical staff at BCDC ignored his medical needs refusing to give him proper medical treatment for his broken hand causing much more long term and even
107

Case 6:95-cv-00024-JAP-KBM Document 1-2 Filed 01/10/95 Page 38 of 40
permanent damage to him because of lack of prompt treatment. 35.18. That the conduct of the Defendants is unreasonable,
unwarranted and unlawful, and deprives the Plaintiff of his liberty and other privileges and immunity secured by the Constitution of the United States of America and by the Constitution and Laws of the State of New Mexico.
35.19. As a result of the actions taken by the Defendants, Plaintiff has suffered emotional and physical distress and has been subjected to humiliation and embarrassment. Plaintiff therefore seeks damages in an amount greater then $50, 000. 00, the exact amount to be proven at trial.
DAVID W. LAYMAN 36.1 On October 23, 1994 the Plaintiff was booked into the BCDC on a DWI and subsequently the Plaintiff complained to correctional officer "John Doe" that the room he was in was very crowded and that some of the individuals there did not have sheets or blankets, and that they were sleeping on the floor and "John Doe" correctional officer punched the Plaintiff in the face about eight times in front of other inmates. Subsequently because "John Doe" gave the Plaintiff a broken nose during the beating, the Plaintiff required surgery, and at the present time continues to need an additional surgery. 36.2. That at all times herein mentioned "John Doe" corrections Officer was an agent and employee of the BCDC and therefore the City of Albuquerque and the BCDC are vicariously liable for the conduct of "John Doe" corrections Officer.
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Case 6:95-cv-00024-JAP-KBM Document 1-2 Filed 01/10/95 Page 39 of 40
36.3. At al,,l times mentioned herein, Defendants, and each of them separately and in concert, acted under color and pretense of law, to-wit: under the color of the statutes, ordinances, regulations customs and usages of the state of New Mexico and rules of the BCDC. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct herein mentioned to the injury of Plaintiff and deprived him of his rights, privileges, and immunities secured and guaranteed to him under the First, Fourth, Fifth and Fourteenth Amendments to the United states Constitution and the laws of the United States.
36.4. That at all of the times of the events herein mentioned Plaintiff was acting in a reasonable and peaceful manner, and was not disturbing the peach or committing any infraction against the BCDC rules.
36.5. That despite the fact that Plaintiff was acting in a reasonable and peaceful manner, and was not in any way or fashion disturbing the peace or committing any offense against the BCDC or the officers, Plaintiff was assaulted and beaten in an unreasonable, unwarranted, and unlawful fashion by false pretext, by the BCDC officer names herein, and hereby deprived of his liberty, his right to due process and equal protection and immunity secured to him by the Constitution of the United States of America and the Constitution and Laws of the State of New Mexico.
36.6. As a result of the actions taken by the Defendants, Plaintiff has suffered physical and emotional damages, emotional distress, and has been subjected to humiliation and embarrassment.
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Plaintiff therefore seeks damages in an amount greater than $50,000.00, the exact C.'ount to be proven at trial.
Respectfully submitted,
AN'l'BORY JAMES AYALA, P.A.
7
Anthony Attorney P.O. Box 1966 Albuquerque, NM 87103 (505) 247-4321 FAX (505)247-4441
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 Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 1 of 30

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UNITED STATES DISTRICT COURT

F I L E D FOR THE DISTRICT OF NEW MEXICO at Santa Fe, NM

JIMMY (BILLY) MCCLENDON,
et. al.,
Plaintiffs,

AUG 2 31995
ROBEIU M. MARCH, Cl"'k UNITED STAlES DISTRICT COURT
DISTRICT Of NEW MEXICO

vs.

No. CIV 95-0024 MV/DJS

CITY OF ALBUQUERQUE, et. al.,

Defendants.

ORDER THIS MATTER is before the Court on Plaintiffs' Motion for Preliminary Injunction, filed February 16, 1995. Plaintiffs' complaint seeks declaratory and injunctive relief from alleged unlawful and unconstitutional conditions existing at the Bernalillo County Detention Center (BCDC) in Albuquerque, New Mexico.' One of the alleged constitutional violations is the overcrowding at BCDC Upon agreement of the parties the issue of overcrowding is being given priority consideration and the parties followed an abbreviated discovery schedule on that issue,

1 The Court has not yet ruled on Plaintiff's Motion for Certification of a Class Action. However, for the purpose only of the issues now before the Court, Defendants have stipulated to certification of a class of "all residents who are presently or will in the future be confined in the Bernalillo County Detention Center, Albuquerque, New Mexico". On the basis of Defendants' stipulation and confined to the issues of excess population and any procedures for reduction, the Court approves certification of the class so defined.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 2 of 30
The Defendants have stipulated that the average daily population at the facility exceeds its design capacity and a hearing on August 11, 1995 focused on any potential danger or injury which may arise from such overcrowded conditions without prompt attention and possible remedies to alleviate the overcrowding and its most serious effects on the detained population.2
This opinion is divided in two parts. The first part addresses the propriety of issuing a preliminary injunction in this case. The second part documents the Court's oral ruling of August 11, 1995 which ordered immediate action by Defendants with respect to certain conditions made known to the Court at the hearing on that date. I. PRELIMINARY INJUNCTION TO REDUCE OVERCROWDED POPULATION
Based on the evidence presented at the hearing of August 11, 1995 and the Court's observations during its unannounced visit to BCDC on August 10, 1995, the Court enters the following findings of fact and conclusions of law.
FINDINGS OF FACT
-
1. The allocation of responsibility for the operation and maintenance of BCDC is governed by the terms of a Joint Powers Agreement between Defendants City of Albuquerque (hereinafter "the City") and the· Board of Commissioners for the County of Bernalillo (hereinafter "the County");
2 Defendants, by stipulating to the facts concerning overpopulation and by proposing administrative solutions, have not thereby waived, either directly or constructively, their rights to trial on or proof of the alleged constitutional violations. The Court notes Defendants' position that overpopulation alone does not constitute a violation of the residents' constitutional rights, and that "overcrowding", if defined as simply population in excess of BCDC's design capacity has not resulted in any such violation. The Court leaves that issue for future resolution.
2

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 3 of 30

2. Under the said agreement, the City and the County are jointly responsible for

providing funds for the operation and maintenance of BCDC;

3. Under the said agreement, the City maintains and operates the BCDC;

4. Under the said agreement, the Mayor of the City appoints the Director of BCDC;

and 5.

Under the said agreement, the Director of BCDC submits the budget for BCDC

to the City Council. 6. Defendant Martin Chavez is the Mayor of the City of Albuquerque;

7. Defendant John Dantis is the Director of BCDC; and

8. The Director of BCDC is responsible for the supervision, direction, and control

of the executive and administrative departments of BCDC.

9. The existing facility of BCDC comprises two (2) buildings, the main facility,

including the annex, and the satellite; 10. The main facility of BCDC consists of the North Tower, the South Tower and the

annex;
11.

The main facility of BCDC was designed to house a resident population of 563,

consisting of 253 residents in the North Tower, 288 residents in the South Tower and 22

residents in the annex; 12. The satellite of BCDC was designed to house a resident population of 120; and

13. The existing facility of BCDC was thus designed to house a resident population

of 683 (hereinafter referred to as "the design capacity").

14. Over the years, as a consequence of an increase in criminal activity commensurate

3

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'

with the general population increase in the City of Albuquerque and County of Bernalillo, and

in response to the demands of the criminal justice system of the City, the County, and the State

of New Mexico, the number of individuals arrested has increased and additional beds, stack-a-

bunks and mattresses have been installed in the existing facility of BCDC in order to house a

resident population in excess of the design capacity;

15. Fifty-eight (58) additional beds have been installed in the existing facility of

BCDC;

16. The total number of design capacity and additional beds at the existing facility of

BCDC allows BCDC to provide beds to 752 residents (hereinafter referred to as "the bed

capacity").

17. When the population at BCDC exceeds 752, inmates sleep on stack-a-bunks as

available and when not available on mattresses on the concrete floor.

18. When BCDC runs out of mattresses some imnates are required to sleep directly

on the concrete floor.

19.. On Thursday, August 10, 1995, during its unannounced visit to the jail, the Court

toured most portions of the North Tower and the South Tower of the main facility and made the

following observations:

(a) On that date there were 985 imnates being housed at BCDC, 302 inmates

more than the design capacity of 683;

(b) A number of inmates in both male and female sections of the facility were

sleeping on mattresses on the floor due to the lack of bunks and/or stack-a-bunks. Mattresses

were either on the floor of individual cells, pods or day rooms.

4

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 5 of 30
(c) A strong odor of urine emanated from some of the cells. 20. Upon stipulation of Defendants:
(a) The present average daily resident population of BCDC is approximately 990 residents;
(b) The resident population has been as high as approximately 1,100; and (c) The resident population of the satellite has never exceeded its design capacity of 120 residents. 21. Overpopulation taxes the services and staff at BCDC. 22. Prior to the filing of this cause, the Defendants have demonstrated their concern about the excess population and have taken the following action to address the problem of overpopulation: (a) Since on or about 1986, Defendants have commissioned 18 reports or studies addressing, inter alia, the issue of overpopulation at BCDC; (b) Since on or about 1993, Defendants have increased the budget for BCDC by over $5 million; (c) Defendants have provided funding to the Pre-Trial Services Program operated by the Metropolitan Court and the District Court for the Second Judicial District to identify persons who have been arrested who are appropriate for release on their own recognizance (ROR) and other alternatives to detention in BCDC; (d) Defendants have established, and since approximately February 1995, have put into full operation a community custody program, the Alternatives to Secure Detention Project (hereinafter referred to as "ASDP"), which replaces detention in BCDC with electronic
5

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 6 of 30
monitoring, day reporting, community trackers and other forms of supervision in the community; (e) In 1994, Defendants developed a task force to mediate on issues of Pre-
Trial Release and bonding; (f) In 1994, Defendants introduced new procedures to reduce the period of
time between conviction and sentencing so as to reduce the time spent in BCDC awaiting sentence and, where applicable, to accelerate the residents' transfer to the custody of the Corrections Department for the State of New Mexico;
(g) In June 1994, Defendants have examined the possibility of introducing a Matrix Release System, a system of grading residents to facilitate the controlled release of eligible residents from BCDC under continuing supervision within the community from the ASDP program; and
(h) Defendant City has placed on the ballot for a special vote in October 1995 a proposal that will enable the voters of the City to state whether they are prepared to support the efforts of the City corrections department by diverting a portion of the present Quality of Life tax to provide additional funding for public safety including BCDC, a portion of which additional funding will be used to build a special detoxification unit, to house 300 to 350 residents, many of whom would otherwise be detained in BCDC.
23. In addition, the Defendants have taken the following action which indirectly addresses the problem of overcrowding by seeking and introducing initiatives to reduce the effects of excess population:
(a) Defendants have replaced BCDC's previous system of management with a direct supervision/unit management model, improving the responsiveness and accountability
6

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 7 of 30
of BCDC personnel; (b) Defendants have introduced a policy of permanent post assignments for
corrections officers to increase "ownership of operation" and improve consistency; (c) Since on or about 1994, Defendants City and County have provided
funding for thirty-three (33) additional corrections officer positions, including twenty (20) additional corrections officer positions for Financial Year 1995/96;
(d) Defendants have employed ten (1 0) civilian booking clerks to release corrections officers from administrative booking duties;
(e) Defendants have increased the experience and educational requirements for hiring BCDC personnel;
(f) Defendants have established the position of Recruitment/Training officer at lieutenant level;
(g) Defendants have increased BCDC training academies to five (5) per year, training approximately 100 new corrections officers;
• (h) Defendants have introduced work schedule adjustments to provide for between 60 and 80 hours staff training per year, resulting in over 10,000 hours of in-service training for BCDC personnel in Financial Year 1994/95; (i) Defendants have determined to seek to renew BCDC's former accreditation by the American Corrections Association and have employed a lieutenant level corrections officer as a compliance officer to ensure compliance with the standards required for renewal of accreditation, including but not limited to population control and management; (j) Defendants have established twenty (20) new sergeant level positions as
7

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Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 8 of 30

part of the revisions to BCDC's system of management; (k) Defendants have created two (2) new positions for Records Clerks; (I) Defendants have added three (3) new maintenance positions, a plumber,
an electrician and a painter to the Operation staff; and (m) Defendants have introduced an increased and more readily accessible
resident phone system. 24. Defendants have prepared and placed before the Court for its consideration the
following additional proposals for reducing the resident population of the existing facility of BCDC:
(a) Defendants City and County have deliberated on three (3) proposed sites and three (3) possible forms of structure for the establishment of additional temporary detention housing for minimum security residents and the County is considering making available a site at Lomas and Fifth in Albuquerque for housing 320 residents, which additional facility can be operational in less than one (1) year, at a cost of approximately $2 million for construction and the first year of operation;
(b) Discussions are taking place between the City and the County concerning the expansion of BCDC into additional permanent facilities; and
(c) Defendants have developed in detail a proposed Matrix Release System, similar to that referred to at ,. 22(g) above, details of which are attached to this Order as Attachment Number 1.
CONCLUSIONS OF LAW From the foregoing facts the Court concludes:
8

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 9 of 30
1. That, by stipulation of Defendants, the Court has jurisdiction to hear and determine Plaintiffs' Motion for Preliminary Injunction under 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1983.
2. In accordance with Fed. R. Civ. P. 65, to obtain injunctive relief a movant must show: (1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (lOth Cir. 1980).
3. Where, as at BCDC, pre-trial detainees and convicted prisoners are housed together, the Court must examine the conditions of confmement against the detainees' right to be free from punishment under the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution and inquire whether those conditions amount to punishment of the detainees. See Bell v. Wolfish, 441 U.S. 520 (1979); Reece v. Gragg, 650 F.Supp. 1297, (D.Kan. 1986).
4. Without deciding whether overpopulation alone can amount to punishment sufficient to constitute a violation of the Due Process Clause, from the stipulated fact of overpopulation in relation to BCDC's design capacity, the Court concludes there is a substantial likelihood that, unless the Court intervenes, the unabated continuation of a population in excess of design capacity places such additional burdens on all aspects of BCDC, its staff, its residents, its services and its systems as to substantially increase the likelihood that irreparable harm, whether it rises to the level of a constitutional violation or not, will occur between now and the
9

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 10 of 30
trial in this matter.
5. Plaintiffs have demonstrated the threat of irreparable harm, a reasonable
probability of succeeding in proving the occurrence of constitutional violations, lack of an
adequate remedy at law, and a balance of the hardship tips in their favor. See Lundgrin, 619
F.2d at 63.
6. Given the need for immediate action and the delay that would be caused by
waiting for the completion of necessary discovery on the constitutional issues in this case,
combined with the parties' stipulation that the facility is overcrowded, and demonstrated effort
to implement a plan to reduce the population3, the Court makes no constitutional findings with
respect to the overcrowded conditions at this time and defers such adjudication until the trial on the merits. 4
Based on the foregoing, the Court will enjoin Defendants from housing residents at
BCDC in excess of its design capacity but will stay enforcement of the injunction until August
23, 1996 to enable Defendants to immediately implement their proposals for reducing the
3 This case is unique from most "overcrowded jail cases" in that the Court is receiving cooperation, not resistance from defendants in solving the problem. See Procunier v. Martinez, 416 U.S. 396 (1974) (recognizing a federal court is ill equipped to make decisions regarding jail administration but acknowledging that Court action required where persons responsible for operation of jail refuse to act).
4 As indicated above, Defendants' rights to challenge each and every factual allegation other than the fact of present overpopulation are preserved. Nor have Defendants waived their rights to the restraints of comity in the selection of equitable remedies. Likewise, Plaintiffs' claims of specific constitutional violations, remain unaffected by this hearing and the ensuing order.
10

----------------------------------------------------------------------------------------. Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 11 of 30
population at BCDC to its design capacity of 683 residents. 5 In addition, the Court will enjoin BCDC from housing more than 535 residents (95%
design capacity) in its main facility and 112 residents (95% design capacity) in its satellite facility after January 1, 1997.
The purpose of this preliminary injunction is to preserve as far as possible the rights and interests of the parties while preventing any deterioration of those rights and interests in the interim while the parties prepare for the trial on the numerous alleged constitutional violations.
The Court is mindful of both the general policy of minimum intrusion into the affairs of state prison administration that the Supreme Court has articulated for the federal courts and the Court's specific recognition that the problem of overpopulation is one "not readily susceptible of resolution by decree." Procunier v. Martinez, 416 U.S. 396,404 (1974)[footnote omitted].
Under the Direction of Mr. Dantis considerable effort has been made to reduce overcrowding and to improve the deplorable living conditions that result from housing too many people in a facility that is not equipped to handle such numbers. The United States Supreme Court has recognized that the core problem of administering prisons within proper standards is the lack of resources allocated to prisons. See Rhodes v. Chapman, 452 U.S. 337 (1981); Procunier v. Martinez, 416 U.S. 396, 404-05.
The serious overcrowded conditions at BCDC exist because the public has demanded tougher criminal laws, but neglected to authorize public expenditure for additional jail cells. As
5 As demonstrated below, under Defendants' proposed plan of reduction, inmate population should be under design capacity by that date and will be continually reduced to 95% of design capacity within 16 months.
11

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 12 of 30
tougher criminal laws are passed more people are arrested and more space is required to house them; more staff is required to process and supervise them; more money is needed to feed them and provide medical care. When as a society we decide to get tough on crime, we must be willing to pay for jails and their operation.
The majority of inmates living in the overcrowded conditions at BCDC are misdemeanor offenders and pretrial detainees who have not been convicted of any crime and are thus, cloaked with the presumption of innocence.
Wherefore, IT IS ORDERED, ADJUDGED AND DECREED that Defendants City and County shall be enjoined from housing more than 563 residents (design capacity) in BCDC's existing main facility, i.e. 253 residents in the North Tower, 288 residents in the South Tower and 22 residents in the annex, (hereinafter "main facility") and from housing more than 120 (design capacity) in BCDC's existing satellite facility (hereinafter "satellite") after Augnst 23, 1996. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants City and
• County shall be enjoined from housing more than 535 residents (95% of design capacity) in BCDC's existing main facility, i.e. the North Tower, South Tower and annex, (hereinafter "main facility") and from housing more than 112 (95% of design capacity) in BCDC's existing satellite facility (hereinafter "satellite") after January 1, 1997.
IT IS FURTHER ORDERED that enforcement and execution of the said preliminary injunction shall be stayed on the following conditions:
1) Defendants City and County will institute and must thereafter proceed with reasonable speed to implement and operate the Matrix Release System set out in Attachment 1
12

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 13 of 30
to this Order; 2) For the purposes of this Order, (i) a count of residents shall be taken each day
at 4.00 a.m., which shall establish for the purposes of this Order the population count for the succeeding 24 hours; (ii) a record of the daily resident population shall be regularly kept and retained; (iii) the Director of BCDC is hereby authorized and directed to make the necessary releases from BCDC as required to enforce the population limits set by this Order; (iv) the Director's authority shall include authority to commence releasing residents under the Matrix Release System when the population at BCDC reaches 90% of either the interim population limits set out hereinafter or the maximum population limit set out above; and (v) upon reporting to the Court as directed below, defendants shall inform the Court whether the pre-established deadlines for the controlled reduction can reasonably be met earlier.
3) Defendants City and County will be enjoined from housing more than 820 residents in BCDC's existing main facility after November 24, 1995;
4) Defendants City and County shall report to the Court on the progress in implementing the Matrix Release System and any other initiatives or proposals for reducing the population of BCDC on December 8, 1995;
5) Defendants City and County will be enjoined from housing more than 763 residents in BCDC's existing main facility after February 23, 1996;
6) Defendants City and County shall report to the Court on March 8, 1996 on the progress in implementing the Matrix Release System and any other initiatives or proposals for reducing the population of BCDC;
7) Defendants City and County will be enjoined from housing more than 706
13

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 14 of 30
residents in BCDC's existing main facility after May 24, 1996; 8) Defendants City and County shall report to the Court on June 7, 1996 on the
progress in implementing the Matrix Release System and any other initiatives or proposals for reducing the population of BCDC;
9) Defendants City and County will be enjoined from housing more than 649 residents in BCDC's existing main facility after Augnst 23, 1996;
10) Defendants City and County shall report to the Court on September 6, 1996 on the progress in implementing the Matrix Release System and any other initiatives or proposals for reducing the population ofBCDC;
11) Defendants City and County will be enjoined from housing more than 592 residents in BCDC's existing main facility after November 22, 1996;
12) Defendants City and County shall report to the Court on December 6, 1996 on the progress in implementing the Matrix Release System and any other initiatives or proposals for reducing the population of BCDC; and
13) Defendants City and County shall report to the Court one final time on January 10, 1997.
IT IS FURTHER ORDERED that the Court retains jurisdiction to review and modify its Order herein.
In addition to the foregoing, an oral ruling was issued inunediately following the hearing of Augnst 11, 1995 ordering Defendants to take inunediate action on certain areas in the interim between the hearing and the issuance of this Order. The oral ruling and Defendants subsequent action is outlined below.
14

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 15 of 30
II. PRELIMINARY RULINGS FOLLOWING AUGUST 11, 1995 HEARING At the close of the hearing on August 11, 1995, the Court found that certain conditions
flowing from the overcrowded conditions at BCDC required immediate attention insofar as they may lead to violence or pose health and safety hazards, and ruled that immediate action be taken as follows: (1) Classification.
(a) Violent offenders shall not be housed with non-violent offenders. To ensure, so far as practicable, that BCDC residents are appropriately housed in a safe and secure environment, Defendants shall separate violent offenders from non-violent offenders with such classification based on the inmate's offense and behavioral tendencies. Defendants shall continue to develop the classification system integral to the proposed Matrix Release System (MRS) and, once the MRS is operational, shall modify the classification policies and procedures to use the information gathered by the MRS to assist in classification and assignment of housing. (b) Inmates diagnosed as psychologically impaired shall not be housed in BCDC's
general population without a written evaluation. Defendants shall not reassign a resident who has been assigned by Psychiatric Services Unit (PSU) to the Psychiatric Unit to the general population of BCDC without a written evaluation from PSU confirming that such resident does not present an immediate danger to himself to BCDC staff or to fellow inmates. The written evaluation must be placed in the inmate's file. (2) Physical Examinations Defendants shall conduct and complete a physical exam of each resident of BCDC who
15

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 16 of 30 ' .
is incarcerated over 14 days. (3) Medical Requests
An inmate who complains of serious acute illness or serious injury shall be given immediate attention. Oral requests for such medical care by an inmate shall be immediately communicated to medical personnel for their medical assessment. These requests shall not be screened by non-medical prison staff as to their severity or need for immediate attention. All requests for emergency care without exception shall be immediately communicated to BCDC medical staff for appropriate treatment.
The Court was informed that procedures are in place at BCDC to provide an inmate with medical care within 24 hours after making a written request. The written requests are placed in predesignated boxes located on each housing section of BCDC and picked up daily. The Court heard testimony from individuals who were detained at BCDC that establish this procedure is not always followed. These individuals testified that they went days without receiving medical attention despite their constant requests and obvious injuries. In addition to insuring immediate response to oral requests for emergency medical care, Defendants shall tighten their existing procedures for providing medical care and scrupulously abide by them. (4) Basic Accommodations
The overcrowded conditions at BCDC have resulted in obvious shortage of bunks, mattresses and other basic needs. The Court heard testimony that the limited supply of these necessities and the lack of secure storage space for inmates' personal supplies of hygiene products often leads to violence and/or theft. In addition, the evidence presented indicated that the overpopulation has required that detainees sleep on mattresses on the floor or sometimes the
16

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 17 of 30
bare concrete floor without a' mattress or blanket. Floor space becomes very crowded within individual cells requiring some inmates to sleep right next to toilets, which are used by many more detainees than intended and, therefore, pose unsanitary hazards.
a. Stack-A-Bunks. Defendants shall obtain a sufficient amount of stack-a-bunks so that no inmate will have to sleep on the floor. Defendants have since informed the Court that 150 stack-a-bunks have been ordered and should arrive before September 1, 1995. The stack-a-bunks shall first be used in the Psychological Services Unit and intake as available. Insofar as this number proves insufficient to accommodate the number of inmates at the facility, additional quantities shall be immediately ordered. b. Mattresses. BCDC shall obtain a sufficient amount of mattresses so that no inmate at BCDC will be required to sleep on the bare concrete floor without a mattress. Defendants have informed the Court that 100 new mattresses have been ordered and will arrive before September 1, 1995.
·~
In addition, prior to being re-issued, all mattresses must be sanitized after every use. c. Linens. Defendants shall insure that they have an adequate supply of blankets and pillows in stock and in reasonable condition, to provide every detainee with linen and a blanket. d. Storage for Inmates Personal Necessities. Defendants shall submit to the Court within two weeks from this date, a proposal or method of storing inmates' personal necessities such as hygiene products. e. Feminine Hygiene Items.
17

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 18 of 30 Defendants shall at all times store in the control unit of 6 West sufficient supplies of
tampons and/or sanitary pads for the female resident population of BCDC and shall issue the same on request by any female inmate.
At the time of its oral ruling, the Court was informed that many of the procedures ordered are in accordance with BCDC's existing policies and procedures, however, to the extent that those policies have not been strictly adhered to in the past, the Court orders strict adherence in the future beginning immediately. 6
JUDGE
6 Defendants attached to their proposed Interim Order the policies and procedures in question but those items were not introduced into evidence at the hearing and therefore cannot be identified in this order.
18

. ' Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 19 of 30

l __

-BERNALILLO COUNTY DETENTION CENTER MATRIX RELEASE SYSTEM
POLICIES AND PROCEDURES

1. POLICY
1. The Bernalillo County Detention Center's (BCDC) Matrix Release System (MRS) has been developed to provide for the systematic release of residents from BCDC, if required, a) to reduce the resident population of the Main Facility (composed of the North and South Towers and the annex) to comply with the maximum population limit of 535 residents established by the Order of the United States District Court (Judge Vazquez) dated August , 1995 (hereinafter "the Order"); and b) to enable BCDC to maintain its Main Facility population within that maximum population limit.
2. The MRS will enable BCDC to determine which residents are eligible for release and to establish the priority of their release. The MRS uses a point system, assigning a point score to each individual resident, derived from a number of relevant factors, including, but not limited to, the criminal charges resulting in detention at BCDC, past and current offenses, court attendance, psychiatric and behavioral history, and any additional relevant information.
3. Residents who are released through the MRS will not be released unsupervised into the community but will be transferred to the Alternatives to Secure Detention Project (ASDP) . The MRS residents will be supervised using one or more of the components within the ASDP, to ensure compliance with court-imposed requirements.
2. MAXIMUM BCDC POPULATION
1. Having found BCDC's Main Facility to be over-populated, the United States District Court has established a population cap on BCDC's Main Facility consistent with its design capacity. Therefore, the population of BCDC's main facility must be no more than 535 residents by January 1, 1997 and must be maintained at or below that level thereafter.
2. To effect that reduction, the Court has ordered a series of interim caps to be achieved by the dates specified in the Order. The Court retains jurisdiction to review and modify its Order, including the interim and maximum population caps themselves.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 20 of 30
3. MATRIX RELEASE SYSTEM
1. To ensure compliance with the Order of the Court, a count shall be taken each day at 4.00 a.m., which shall establish for the purposes of the Order the population count for the succeeding 24 hours. A record of the daily inmate population shall be regularly kept and retained.
2. The Director of BCDC is authorized and directed by the Court to make the necessary releases from BCDC as required to enforce the cap set by the Order. This authority includes authority to commence releasing residents when the population at BCDC reaches 90% of the cap then in effect.
3. Pursuant to the Order, and these policies and procedures, the Director or his designee will determine if any residents are to be released through the Matrix Release System (MRS) .
4. BCDC will use the MRS to determine which residents are eligible for release from BCDC and in what order they are to be released.
5. With the exception of those residents detained in BCDC at the time of introduction of the MRS (as to whom, see "Transitional Provisions" detailed hereinafter) , the MRS will assign a matrix score, based on the Criteria detailed below, to each resident on his or her admission to BCDC, the score and its computation being recorded on a MRS Matrix Release Form (See attached Specimen MRS Matrix Release Form) .
6. A current list of the matrix scores of all residents in ascending order will be maintained at all times.
7. The number of residents released using the MRS shall be no more than that needed to bring BCDC into compliance with the court-ordered cap.
8. When releases are required to comply with the Order, the resident with the lowest matrix score under the MRS will be the first resident eligible for release.
9. The priority of any additional releases required to be made to comply with the Order will follow the matrix score list referred to in 3.6. above.
10. Where two or more residents are computed to have identical matrix scores, priority for release will be established by reference to the date of admission to BCDC and the length of time each resident has been detained in BCDC on a first in, first out basis.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 21 of 30
'" '
PRIMARY RELEASE SCHEDULE Pre-Trial & Sentenced
11. Generally, the MRS will result in releases of residents that adhere to the following Primary Release Schedule:
Ordinance Violations Petty Misdemeanor Misdemeanor Non-violent Misdemeanor - Violent 4th Degree Felony 3rd Degree Felony 2nd Degree Felony 1st Degree Felony Capital Felony
12. Any resident released through the MRS will be released in a manner similar to any other resident (i.e., via the release process in R&D) .
4. MRS STAFFING & MRS STAFF DUTIES
1. The Director or his designee will determine the number and composition of staff required to operate the MRS.
2. The MRS will be supervised by a BCDC officer of at least the rank of Sargeant, who will be designated the Population Control Officer ( "PCO") .
3. The PCO will be provided with a copy of each resident's matrix score and will be responsible for maintaining a current list of the matrix scores of all residents in ascending order.
4. The PCO or his designee will be provided with a copy of the daily count as soon as it is completed.
5. The PCO or a staff member of the MRS designated by him will maintain all copies of the matrix score list upon the basis of which any release decision is made.
6. The PCO and the MRS staff will conduct regular reviews of the matrix score list, and in any event at least once per week, to ensure that the matrix score assigned to each resident is accurately scored and recorded.
7. The PCO and the MRS staff will ensure the recording of any restrictions that would render a resident ineligible to be released.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 22 of 30
5. MRS STAFF TRAINING
1. Staff assigned to the MRS will receive initial training of at least 40 hours and annual refresher training of at least 20 hours per year in the operation of the MRS.
2. Initial and annual training will include learning and review of the MRS policy, use of the guidelines, use of the manual MRS, and any other functions assigned to the MRS staff under the discretion of the Director or his designee.
6. TRANSITIONAL PROVISIONS
1. On the date designated for introduction of the MRS, a count will be taken as prescribed by 3.1. above.
2. Within 96 hours of that count, all present residents, excluding new admissions processed in accordance with 3. 5. above, will be assigned a score, based on the Criteria detailed below.
7. PROGRAM DESIGN
1. BCDC will maintain a written set of guidelines for determining the score of each resident.
2. The guidelines for the MRS, including instructions on operating the system, will be maintained separately from the
- policy for the MRS.
3. The guidelines will contain: a) a schedule of all criminal charges for the City of
Albuquerque, the County of Bernalillo and the State of New Mexico, as listed in the Metropolitan Court Bond book, specifying the basic point score assigned to each charge;
b) a list of all the variable criteria affecting a resident's MRS total matrix score, specifying the point increases and decreases attributable to those variables; and
c) instructions for staff on how to prepare and operate the MRS on a system.
4. The MRS guidelines will be used to establish and maintain a list of special circumstances and to indicate any additional points given for special circumstances.
5. The Director or his designee has the authority to determine and change both the special circumstances and the point score for any special circumstances. These changes can be made at the discretion and needs of BCDC.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 23 of 30
8 . MATRIX FORMULA
1. BCDC will maintain a Matrix Formula which will control the point score of all residents considered for Matrix Release.
2. All residents scored for Matrix Release will be scored using the same formula thereby maintaining uniformity in Matrix Release scores.
3. BCDC retains the right to change the formula to suit changing needs of BCDC. Any changes in the formula will require the prior approval of the Director.
9 . CONFIDENTIALITY OF MATRIX SCORES
The Matrix Release Score of an individual resident will not be discussed with the resident or any other person without the permission of the Director or his designee.
The Matrix Release Score of an individual resident will not be made available to a staff member of BCDC unless they have a need to know. The need to know will be determined by the Director or his designee.
BCDC will develop a Matrix Release Score threshold. The threshold will determine the point score all unsentenced residents must be above before any sentenced residents are released by the Matrix System. An example of this is a point score of 64. Once the score of all unsentenced residents who are Matrix Release eligible has reached a point score of 64 or above, sentenced residents will then be considered for release starting with the lowest score available.
10. POINT SCORE FOR EACH OFFENSE
1. Every chargeable offense, as defined below, is assigned a point score. (See attached Schedule of MRS Point Values for Chargeable Offenses) .
2. A chargeable offense is defined as any charge listed in the Metropolitan Court Bond book.
3. A resident's initial MRS matrix score will be assigned to each resident by reference to the point score for the primary charge.
4. The primary charge will be the charge against the resident carrying the highest point score.
5 . Point scores for any additional charges against the resident shall be added to the point score for the primary charge.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 24 of 30
6. BCDC retains the right to change the point score of any charges to meet the needs of the department.
11. PAST CRIMINAL HISTORY
1. The past criminal history of a resident may be taken into account in determining the current matrix score of the resident.
2. For the purposes of the MRS, past criminal history that may be taken into account is confined to prior convictions for felonies and misdemeanors recorded against the resident within a period of years, specified below, immediately preceding the date the resident was admitted to BCDC on the charges for which his current Matrix Release score is being calculated.
3. Before taking into account the past criminal history of a resident in determining a matrix score, the resident's criminal history in both the Metropolitan Court and the Second Judicial District Court will be reviewed.
4. The review of a resident's felony history will extend to the three (3) years immediately preceding the date the resident was admitted to BCDC on the charges for which his current Matrix Release score is being calculated.
5. The review of a resident's misdemeanor history will extend to the two (2) years immediately preceding the date the resident was admitted to BCDC on the charges for which his current Matrix Release score is being calculated.
6. Matrix point scores may be increased for each prior conviction(s) in the resident's past criminal history as defined herein.
7. BCDC will seek the approval of the Metropolitan Court to use, and, if such approval is given, will use, the Metropolitan Court's computer system to access information concerning the convictions of residents prior to assigning a Matrix Score.
12. CURRENT CRIMINAL HISTORY
1. The current criminal history of a resident may be taken into account in determining the current matrix score of the resident.
2. For the purposes of the MRS, current criminal history that may be taken into account is confined to outstanding charges for felonies and misdemeanors for which the resident has not been convicted but is awaiting trial or other disposition, but does not include the charges for which the

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 25 of 30

resident was admitted to BCDC and for which an initial matrix score was assigned in accordance with 10.1. - 10.6 above.
3. Matrix point scores may be increased for any outstanding charge(s) in the resident's current criminal history as defined herein.
4. BCDC will seek the approval of the Metropolitan Court to use, and, if such approval is given, will use, the Metropolitan Court's computer system to access information concerning the outstanding charges of residents prior to assigning a Matrix Score.

13. FAILURE TO APPEAR/COURT ATTENDANCE HISTORY

1. The court attendance history of a resident may be taken into account in determining the current matrix score of the resident.

2. For the purposes of the MRS, court attendance history that may be taken into account is confined to any court dates for criminal charges, as comprised in the
resident's past or current criminal history as defined in 11.1 -11.7. and 12.1 - 12.4. above respectively, for which the
resident failed to appear without good cause shown and for which a bench warrant was issued to secure the resident's
attendance. •
3. Matrix point scores may be increased for any failure to appear as defined herein.

4. BCDC will seek the approval of the Metropolitan Court to use, and, if such approval is given, will use, the Metropolitan Court's computer system to access information
concerning the court attendance history of residents prior to assigning a Matrix Score.

14. PSYCHIATRIC & BEHAVIORAL HISTORY

1. The psychiatric and behavioral history of a resident may be taken into account in determining the current matrix score of the resident.

2. For the purposes of the MRS, psychiatric and

behavioral history that may be taken into account is confined

to any history of psychiatric illness involving or that may

cause violent behavior, or other behavioral problems,

excluding the resident's admission charges or past or current

criminal history as defined in 10.1. - 10.6., 11.1- 11.7. and

12.1

12.4. above respectively, indicating there is a

substantial risk of physical harm to the resident or any other

person if the resident is left unsupervised.

3. Additional points may be assigned to the matrix

. .

. ·> '

.

..

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 26 of 30

score of a resident where BCDC has reliable information of the resident's psychiatric and behavioral history as defined in 14.2 above.
4. For the purposes of considering the assignment of a matrix score to a resident based upon psychiatric and behavioral history, BCDC may rely upon any records compiled by or on behalf of BCDC concerning resident during any past period of detention in BCDC or during the resident's present period of detention.
5. In any determination as to the psychiatric classification of a resident for the purposes of the MRS, the Director or his designee and/or the MRS staff shall consult with and be guided by the professional assessment of the Psychiatrist in charge of the PSU. 15. SENTENCED VS. UNSENTENCED
1. For the purpose of the MRS, it is reserved to the discretion of the Director or his designee to differentiate between sentenced and unsentenced residents. The total score required to release sentenced and unsentenced residents may be set at differen~ levels.
2. The Director or his designee will determine if the point score required for release of sentenced residents will be different than the score for unsentenced residents for release.

16. THE "Y" LIST BCDC will retain the right to identify an individual or class of individuals who will not be eligible for release regardless of their score. BCDC also retains the right to classify any type of criminal offense as a non-releasable offense. 1. The "Y" list will be used by BCDC to bar eligibility for the Matrix Release of any resident whose release represents a substantial risk to the physical safety of the resident or others in the community. A resident who is assigned to the "Y" list will not be eligible for Matrix Release under any circumstances. 2. The Director or his designee will determine which residents are placed on the "Y" list. 3. Guidelines will be promulgated by MRS Staff, Classification, Caseworkers, PSU, MSU, and other appropriate

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 27 of 30
staff to decide the criteria for assignment and which residents will be assigned to the "Y" list.
4. Once a resident is assigned to the "Y" list, that resident will remain on the "Y" list until the resident is removed by the Director or his designee.
5. A resident's previous assignment to the "Y" list during any period of detention at BCDC may be taken into account on subsequent admissions in determining the current matrix score of the resident or re-assignment to the "Y" list.
6. The assignment of residents to the "Y" list will be subject to continual review by MRS staff throughout their periods of detention. In the event that it appears to MRS staff that a resident no longer requires such assignment, MRS will then make an immediate recommendation for the resident's reassignment to the Director or his designee. 17. RELEASE AUTHORITY
1. The Director of BCDC is authorized and directed by the Order of the United States District Court to make such releases from BCDC as are required to enforce the population limit set by the Order.
2. This authority includes authority to commence releasing residents when the population at BCDC reaches 90% of the maximum population limit.
3. It shall be the duty of the PCO and the MRS staff to notify the Director or his designee when the population at BCDC reaches 90% of the maximum population limit.
4. It shall be the duty of the PCO and the MRS staff to provide the Director or his designee with a copy of the daily count upon which the assessment referred to in 17.3 above is based.
5. It shall be the duty of the PCO and the MRS staff to provide the Director or his designee with a verified copy of the matrix score list referred to in 3.6. above.
6. The R&D Lieutenant, in consultation with the PCO and the MRS staff, will be responsible for tracking the population of the facility and will make a determination if any reasonably anticipated future booking will cause BCDC to exceed 90 % of the maximum population limit.
7. Under the foregoing authority and in reliance on the foregoing information, the Director is authorized and directed to make such releases from BCDC as are required to enforce the population limit set by the Order.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 28 of 30
18. FINAL REVIEW OF MATRIX RELEASES 1. Before any resident is released through the MRS, MRS staff will conduct a final comprehensive review of the resident's current status. · 2. MRS staff will check to ensure the resident's score was computed correctly, and, if it is found to have been incorrectly computed, MRS staff will ensure a correct matrix score is assigned to the resident and the current list of matrix scores is amended accordingly. 3. MRS staff will check to ensure that the resident is not being held on any charges which would not allow the resident to be released (e.g., Immigration Hold, Felony Warrant, Out of County Warrants, etc.). 4. MRS staff wjll signify in writing the person conducting and the date and time of completion of the final review on the resident's Matrix Release Form (attachment ?) . 5. MRS staff will provide a copy of the resident's Matrix Release Form completed to signify completion of the Final Review to the R & D Lieutenant
19. PROCEDURE FOR MATRIX RELEASE 1. In the absence of staff member assigned to the MRS, the R&D Lieutenant will assign a staff member to complete all paperwork required for a Matrix Release. 2. A resident rel~ased through the MRS will be released in a manner similar to any other resident (i.e., via the release process in R&D), with the following additional pre-release requirements: (a) each resident released through the MRS will be required to sign a copy of the Community Release Agreement; (b) each resident released through the MRS will be provided with an appointment time for the next working day with a representative of ASDP; (c) each resident released through the MRS will be provided with information regarding the date, time and place of the resident's next court appearance set by the Jurisdiction holding the resident; and (d) if the Jurisdiction holding the resident has not set future court date (s) but such date (s) is/are "To Be Announced" (TBA), the resident's address will be reverified and the resident will be informed he/she will receive the court date through normal court procedures. 3. Before a resident is Matrix Released, the R&D Lieutenant will provide the Metropolitan Court Bonding person either at BCDC or at Metropolitan Court with a copy of all the resident's MRS paperwork.

,, Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 29 of 30
4. Once all paperwork has been completed for a resident to be released by the MRS, the Releasing Officer will release the resident. 20. RELEASE OF MATRIX RELEASED RESIDENTS INTO THE ASDP 1. Residents released on the MRS will be required to report to and accepted into the Alternatives to Secure Detention Project (ASDP) for inclusion into one or more of the ASDP programs. 2. Residents released through the MRS will be required to report to the ASDP on the next working day following their release from BCDC. 3. An ASDP Caseworker will interview the resident to fully explain the program and review the Community Release Agreement. 4. Following caseworker assessment, ASDP staff will develop a supervision plan (PLEASE REFER TO ASDP POLICIES FOR FURTHER INFORMATION) . 21. TRACKING MATRIX RELEASES 1. To enable BCDC to track residents released through the MRS, a code will be developed to identify such residents. 2. Any resident released through the MRS will be indicated as "MTX" as to the type of release. 3. This must be indicated by the R & D Lieutenant or his designee and recorded in the resident's computer/paper file by records personnel at the time of release. 22. COMPUTER VS. MANUAL SYSTEMS FOR MATRIX RELEASE SYSTEM 1. To assist in administering the MRS, a computer system will be developed and maintained to establish, record and update the scores of all residents in custody in BCDC. 2. A computer system will be used to determine the score of each resident based on the MRS guidelines. 3. MRS staff will be required to supply data via manual entry to the system, especially concerning a resident's past criminal history and behavior during current incarceration at BCDC. 4. The Matrix Release System will also be maintained in a manual form for use during any period when MRS scores cannot be accessed by or derived from the computer system.

Case 6:95-cv-00024-JAP-KBM Document 106 Filed 08/23/95 Page 30 of 30
5. At all times, MRS staff will maintain a supply of manual release work sheets, which will allow staff to manually determine the Matrix Release score of residents. 23. MATRIX RELEASE SYSTEM AND THE COURTS 1. When a resident is released through the MRS, BCDC will make every attempt to coordinate the release with the respective Court. 2. If it is determined the resident has a specifically set future court date, prior to the resident's release, the resident will be issued the court date from the respective court. 3. All residents prior to release will be required to sign a form indicating the resident is still bound to appear at any and all future court dates, including both specific court dates and "TBA" court dates, and that failure to appear will constitute an offense for which a bench warrant will be issued and for which they may be returned to BCDC.

 
 Case 6:95-cv-00024-JAP-KBM Document 115 Filed 09/07/95 Page 1 of 3

UNITED STATES DISTRICT COURT

PI LE0

FOR

THE

DISTRICT

OF

NEW

UNITED STATES CISTRICT COURT
MEXICO D!SfRICi rF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et. al.,
Plaintiffs,

95 SEP -7 PH 12: I7

v. CITY OF ALBUQUERQUE, et. al.,

CIV-95-0024 MV/DJS

Defendants.

SETTLEMENT AGREEMENT

1. Parties stipulate to certification of the Plaintiff class to be bound by this agreement as the "present and future residents of BCDC. 11
l.A That the August 23, 1995 Order be converted to a permanent injunction;
l.B That the Court retains jurisdiction to enforce and/or modify the permanent injunction. The parties agree not to seek the appointment of a special master. BCDC will make the ACA Audit Report findings available to the Court with copies to Plaintiffs' counsel. Plaintiffs' counsel will work pro se in reviewing said reports. However, if the work involved becomes too time consuming, counsel reserves the right to seek attorney fees.
2. The permanent injunction is to include that BCDC agrees to follow its existing policy & procedures manual, and as amended in the future, re delivery of the following services:
1. medical; 2. dental;

1

...
.Case 6:95-cv-00024-JAP-KBM Document 115 Filed 09/07/95 Page 2 of 3
.
3. psychological; and, 4. access to a law library which is to be kept reasonably current. 3. Defendants withdraw "prematurity" objection to Plaintiffs' Attorney Fee Application. Defendants will not raise issue of alleged untimeliness of monthly attorney fee filings. 4. Defendants retain right to object to amount of fees requested by Plaintiffs. 5. Plaintiffs dismiss with prejudice all allegations in
~
"Parts I and II" including each allegation that Defendants have violated the United States and/or New Mexico Constitutions.
6. The Defendants acknowledge that the permanent injunction is a resolution of "Parts I & II" of the Complaint which materially alters the parties' legal relationship in a manner which Congress sought to promote in the fee statute. The parties stipulate that the Court, among other things, may look at the degree of the Plaintiffs' overall success in assessing the reasonableness of any award of attorney fees. Fees will be determined without an evidentiary hearing: the parties will submit written materials to the Court for its consideration.
7. Defendants will not raise as a bar to the Court's consideration of attorney fees the fact that there is no finding of any constitutional violations, and will not object to the Court being able to consider awarding attorney fees for the legal work in "Part III" (individual claims) as supporting "Part I" (overcrowding) and "Part II" (constitutional claims) .
2

' n
-~

',f'!;, ~, " ,j

Case 6:95-cv-00024-JAP-KBM Document 115 Filed 09/07/95 Page 3 of 3
\,

Agreed to by:

Anthony J. Ayal

Attorney for P intif

115 8th Street S ..

P.O. Box 1966

Albuquerque, NM 87103

(505) 247-432, ~

Qil~

.~

JeffreL. Baker
Attorney for Defendants
20 First Plaza, Suite 402 Albuquerque, NM 87102 (505) 247-1855

4

 
 Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 1 of 10
' .

.,._. j ~

,, .• ____, __ ~

IN THE UNITED STATES DISTRICT CO~'[.::. U

UHITEO STATES OISTf~ICJ,CYJ!..:i\1
FOR THE DISTRICT OF NEW MdJ~br OF kEW MUcO

97 JUL -7 M1 \Q: 40

JIMMY (BILLY) McCLENDON et al., on behalf of themselves and all others similarly situated
Plaintiffs, vs.
CITY OF ALBUQUERQUE et al.,
Defendants
vs.
E.M., R.L., W.A., D.J., P:S., and N.W., on behalf of themselves and all others similarly situated
Plaintiff-Intervenors.

CIV.No. 95-0024 MV/DJS

ORDER APPROVING COMPROMISE & SETTLEMENT AGREEMENT & FINAL NDGMENT OF DISMISSAL WITH PRENDICE
The above captioned lawsuit having been brought in this Court by Plaintiffs, McClendon et al., against Defendants, City of Albuquerque et al., and the Court having granted leave to Plaintiff-Intervenors, E.M. et al., to intervene therein, and the parties having appeared by their respective counsel; and
An Order having been entered by this Court on August 15, 1996 certifying pursuant to Fed.R Civ.P. Rule 23(b)(2) a subclass of all persons with mental and/or

I

.· .'.

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 2 of 10

developmental disabilities who are, or in the future may be, detained at the Bernalillo Cmmty Detention Center, Albuquerque, New Mexico ("BCDC") and ordering that the said subclass shall be represented by Plaintiff-Intervenors; and
An Order Certifying A Class having been entered by this Court on November 5,
1996 certifying pursuant to Fed.R Civ.P. Rule 23(b)(2) a class of all persons presently confined in BCDC or who may/will be so confined in the future and ordering that the said class shall be represented by Plaintiffs and Plaintiff-Intervenors so that the abovecaptioned lawsuit should henceforth be maintained as a class action with respect to any claims for injunctive relief under 42 U.S.C. § 1983, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. § 12101 for deprivation of rights under the United States and New Mexico Constitutions allegedly caused by overcrowding at BCDC; and
The parties having execui:OO, by and through their respective counsel, a proposed settlement agreement in the form of two (2) Orders entitled respectively "Order Regarding the Prison litigation Reform Act" and "Order," Plaintiffs and PlaintiffIntervenors on behalf of the said class and subclass respectively having thereby indicated their acceptance of the proposed settlement and having requested the Court's approval of the proposed settlement; and
The Court having approved as within the range of reasonableness and entered on November 5, 1996 both the Order Regarding the Prison litigation Reform Act and the

2

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 3 of 10
''
Order containing the proposed settlement agreement regarding Plaintiff-Intervenors' claims; and
The Court in the Order Certifying A Class entered on November 5, 1996 having directed that notice of the pendency of the action and a statement of the proposed settlement be delivered, posted and published, the form of the said notice having been approved by this Court in the said Order; and
Such notice having been duly delivered, posted and published as ordered by this Court; and
A hearing on the fairness of the said proposed settlement agreement having been duly scheduled and held on January 10, 1997 to determine whether the proposed settlement should be finally approved; and
An opportunity to be heard thereon having been given to all desiring to be heard and the parties having appeared and having been heard by their respective counsel, counsel for the class and subclass reporting regarding the comments by class members regarding the proposed settlement agreement, including the comments of those opposed to the said proposed settlement agreement, and
The Court being otherwise fully advised in the premises, FINDS AND CONCLUDES: I. This action was instituted by Plaintiffs in the United States District Court for the District of New Mexico on January 10, 1995. Plaintiffs filed the Complaint on
3

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 4 of 10
,. .
behalf of themselves and a proposed class consisting of all persons presently confined in BCDC or who may/will be so confined in the future. Plaintiffs' complaint alleged that the physical conditions, practices and policies at BCDC violated the civil rights of persons incarcerated therein. Pursuant to Defendants' motion, the complaint was divided into three parts, namely, I) overcrowding, II) other alleged constitutional violations, and III) individual damage claims of 30 named Plaintiffs. A hearing on plaintiffs' motion for a preliminary injunction was held on August 11, 1995 and a preliminary injunction was entered on August 23, 1995. A settlement agreement was reached between the named Plaintiffs and Defendants on September 7, 1995. On October 26, 1995, the Court gave leave to Plaintiff-Intervenors to intervene on behalf of themselves and a proposed subclass of all persons with mental and/or developmental disabilities who are, or in the future may be, detained at BCDC. Plaintiff-Intervenors filed an Amended Complaint in Intervention on November 22, 1995. PlaintiffIntervenors' Amended Complaint in InteiVention alleged that the practices and policies at BCDC violated the civil rights of the proposed subclass protected by both the United States Constitution, and§ 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. § 1210 l. The action was certified as a
Fed.R. Civ.P. Rule 23(b)(2) class action on August 15, 1996 and November 5, 1996
respectively, on behalf of a subclass of all persons with mental and/or developmental disabilities who are, or in the future may be, detained at BCDC, represented by Plaintiff-
4

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 5 of 10
i •
Intervenors, and, with respect to overcrowding only, a class of all persons presently confined in BCDC or who may/will be so confined in the future represented by Plaintiffs.
2. Based on the Court's inspections of the jail on August 10, 1995 and January 19, 1996; the evidence presented at the hearing on August 11, 1995; the Court's findings of March 22, 1996 and March 25, 1996; other information obtained by the Court in status conferences and from Defendants' formal reports to the Court; the stipulations of the parties and the entire record of this case, the violations of one or more federal rights of class and subclass members have occurred at BCDC.
3. Plaintiffs, Plaintiff-Intervenors and Defendants have entered into a settlement agreement, contained within both the Order Regarding the Prison litigation Reform Act and the Order entered by the Court on November 5, 1996 (hereinafter "the agreement"). The agreement provides, subject to approval by this Court, for the settlement of all claims for declaratory and injunctive relief by the Plaintiff class and Plaintiff-Intervenor subclass, except Plaintiff-Intervenors' equal protection claim on behalf of the female members of the subclass, and limited portions of their access to court claims. Pursuant to Fed.R Civ.P. Rule 23(e), the Court scheduled a hearing for January 10, 1996 to consider whether to approve the proposed settlement as set forth in the agreement, and directed that notice of the certification, settlement and hearing be published and posted.
5

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 6 of 10
'.
4. In accordance with the agreement and the Order Certifying a Class, the specified notice was delivered, published and posted in BCDC together with the agreement, and proposed final order of dismissal.
5. The notice described in the preceding paragraph constitutes the best notice practicable given that present inmates can be adequately informed by delivery or posting at BCDC and future inmates cannot presently be identified. When potential future inmates become incarcerated they are and will be informed by direct distribution of the notice on booking and by the posting at BCDC. Those inmates included in the class and subclass by virtue of having been present inmates on or after January 10, 1995 but who have since been released, cannot realistically be located. The affidavits and/or declarations of publishing filed with the Court demonstrate that this Court's orders with respect to the notices have been complied with and, further, that the best notice practicable under the circumstances was in fact given and constitutes valid, due, and sufficient notice to all members of the class and subclass, complying fully with Rule 23 of the Federal Rules of Civil Procedure and with the Constitution of the United States.
6. Plaintiffs, Plaintiff-Intervenors and Defendants have applied to the Court for approval of the terms of the agreement and for entry of this Judgment. Pursuant to the settlement notice, and upon notice to all parties, a hearing was held before this Court on January 10, 1997, to consider whether the proposed settlement set forth in the Order Regarding the Prison Litigation Reform Act and the Order entered by the Court on November 5, 1996 should be approved by this Court as fair, reasonable and adequate.
6

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 7 of 10
'.
7. The proposed settlement agreement is the product of good faith, arm's
length negotiations between the parties thereto, conducted by experienced counsel who are unequivocally recommending approval of the settlement, after sufficient discovery to enable both counsel and the Court to be informed and act intelligently.
8. Counsel for Plaintiffs and Plaintiff-Intervenors have fully reported to the Court the comments of class members regarding the proposed settlement, including any objections, and the Court finds that the settlement is opposed by only two (2) class and/or subclass members which is not a substantial number when compared to the numbers of the class and subclass in their entirety, and further the Court finds that the objections to the settlement are not substantial when compared to the ability of the settlement to serve the best interests of the very substantial majority of the class and subclass.
9. Given the complexity of the issues raised in this action and the probable duration of continued litigation of the said issues, approval of the settlement agreement will result in substantial savings in time and money to the Court and to the litigants.
WHEREFORE NOW, GOOD CAUSE APPEARING THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Court has certified a class and subclass on August 15, 1996 and November 5, 1996 respectively, consisting of a subclass of all persons with mental and/or developmental disabilities who are, or in the future may be, detained at BCDC, represented by Plaintiff-Intervenors, and a class
7

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 8 of 10
'.
of all persons presently confined in BCDC or who may/will be so confmed in the future represented by Plaintiffs.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED the said settlement agreement is narrowly drawn, extends no further than necessary to correct the violations of the federal rights of class and subclass members, is the least intrusive means necessary to correct the violations of the federal rights of class and subclass members, will have no adverse impact on public safety or the operation of the criminal justice system and is appropriately designed to ensure the provision of reasonable accommodations to subclass members.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED the said settlement agreement is fair, adequate and reasonable as to the class and the named Plaintiffs and as to the subclass and the named Plaintiff-Intervenors, and the settlement agreement is hereby finally approved in all respects; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties to the settlement agreement are hereby authorized and directed to accept, consummate and perform the said settlement agreement in accordance with its terms; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all claims which were brought in this class action in the Complaint or Amended Complaint in Intervention, except as to Plaintiff-Intervenors' claims of denial of equal protection for female subclass members and of access to the courts are dismissed with prejudice.
8

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 9 of 10
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all class and subclass members shall be, and hereby are, barred from prosecuting against Defendants any action for declaratory or injunctive relief, whether it be a class action or otherwise, with respect to, based on, or arising from, or for any of the acts, omissions, facts, events, matters, transactions, or occurrences complained of, related to, arising from or referred to in Parts I and III of the Complaint and Plaintiff-Intervenors' Amended Complaint-inIntervention in this action, including but not limited to the operation, policies or procedures of the Bernalillo County Detention Center, or arising out of the subject matter of this action, which might have been asserted in this action.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court expressly determines that, pursuant to Fed.R. Civ.P. Rule 54(b), there is no just reason for delay in the entry of this final judgment. Accordingly, the Clerk of the Court is directed to enter this judgment forthwith.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in accordance with the terms of the said settlement agreement the First Amended Complaint, and the First Amended Complaint in Intervention in the action be and hereby are dismissed on the merits and this judgment be and hereby is in full and final settlement of any and all claims or causes of action or parts thereof against any and all Defendants which are or might be asserted with respect to the matters alleged in the First Amended Complaint, and the First Amended Complaint in Intervention; and
9

-

Case 6:95-cv-00024-JAP-KBM Document 288 Filed 07/07/97 Page 10 of 10

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court shall retain jurisdiction for the purpose of enforcing the settlement.

APPROVED:
Mary Han
Shannon Oliver Attornrys for Plaintiffs

L//~~),;J J /~-
Jeffrey L. Baker Attornry for Defendants
10

 
 Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 1 of 11

FILED
IN THE UNITED STATES DISTRICT COURT at Santa Fe. NM
FOR THE DISTRICT OF NEW MEXICO DEC 2 8 2004

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

VI.

No. CV-95-24 MV/ACT

CITY OF ALBUQUERQUE, et al.,

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all othen similarly situated,

PlaintifT-Intervenon.

STIPULATED SETTLEMENT AGREEMENT BETWEEN PLAINTIFF INTERVENORS AND DEFENDANTS INTRODUCTION The parties to this litigation have met and conferred regarding the matters raised by the Plaintiff Intervenors' Motion for an Order to Show Cause andfor Further Remedial Reliefand the Defendants' Motion to Vacate Settlement Agreement. After negotiation, the parties have determined that it is in the interest of all parties for both these motions to be resolved through compromise. This decision is reached because the parties recognize that it is in the best interest ofall concerned that the federal rights of sub class members be ensured by entering into this Stipulation. Nothing contained in this Stipulated Settlement Agreement constitutes an admission that the Defendants have ever violated the constitutional rights ofany sub class member, nor is it an admission that any prior or present policy, procedure, practice, event, circumstance, act or failure to act by the
I

···. I
'--1 ! ~ I,.

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 2 of 11
Defendants, their elected officials, contractors, agents or employees violated the civil laws of the United States, failed to meet applicable constitutional standards, or otherwise fell short of any standard of care imposed by law.
The PlaintiffIntervenors and Defendants enter into this Stipulated Settlement Agreement for the purpose of avoiding the risks and burdens of litigation and in order to describe conditions both parties wish to see at the Bernalillo County Metropolitan Detention Center, located at 100 John Dantis Road SW, Albuquerque, New Mexico (hereinafter the "MDC").
In order to ensure that the improvements achieved thus far by Defendants are enhanced and preserved, the parties hereby enter this Stipulated Settlement Agreement. This Stipulated Settlement Agreement replaces in its entirety the November 5, 1996 Order entered between the Defendants and Plaintiff Intervenors (doc #256). The parties stipulate that this Stipulated Settlement Agreement complies with all requirements of the Prison Litigation Reform Act. Defendants agree to file no motion in the future asserting that this Settlement Agreement should be tenninated based upon the provisions of the PLRA. I. GENERAL PROVISIONS
The PlaintiffIntervenors acknowledge that the Defendants already have policies that address areas described in this Stipulated Settlement Agreement. If necessary, the Defendants will revise and/or develop as necessary policies, procedures, protocols, training materials and practices to ensure that they are consistent with the requirements of the United States Constitution and this Settlement Agreement.
In consideration for this Stipulated Settlement Agreement. the Plaintiff Intervenors agree to withdraw their Motion for an Order to Show Cause and for Further Remedial Relief and the
2

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 3 of 11
Defendants agree to withdraw their Motion to Vacate Selllemelll Agreement. ll. SPECIFIC PROVISIONS
A. Staffing of the Psychiatric Services Unit (PSU) Defendants will staffthe Psychiatric SeJVices Unit with sufficient clinical and support staffto provide adequate mental health services to the residents of MDC, consistent with the requirements of the United States Constitution and consistent with the principles set forth in Ruiz v. Estelle, 503 F Supp 1265 (S.D. Texas 1980) and in Langley v. Coughlin, 715 F. Supp. 522 (S.D. NY 1989) [conduct required psychological testing and evaluation; inquire about the patient's prior history; establish proper methods for making diagnosis; monitor seizure disorders; provide proper medication; provide regular access to counseling for those in need; establish criteria for corrections personnel to consider when making referrals to PSU; follow those criteria for referral; monitor inmates' behavior for deterioration or crises for purposes of rendering treatment; develop adequate treatment plans; develop proper procedures for determining medication]. Defendants agree to consult with Plaintiff lnteJVenors regarding appropriate staffing for the PSU. The Defendants will ensure that no less than the numbers of mental health professionals, nurses and support staff set forth in the November 2004 "University Hospital Employees Salary Calculation Worksheet FY 05 Supplemental"are available to provide mental health care to the residents of the MDC. B. Psychiatry time An appropriate number of psychiatric positions will be included in the contract with the PSU provider in order to provide adequate psychiatric care consistent with the requirements ofthe United States Constitution and consistent with the principles set forth in Ruiz v. Estelle. 503 F Supp 1265 (S.D. Texas 1980) and in Langley v. Coughlin, 715 F. Supp. 522 (S.D. NY 1989)[conduct required
3

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 4 of 11
psychological testing and evaluation; inquire about the patient's prior history; establish proper methods for making diagnosis; monitor seizure disorders; provide proper medication; provide regular access to counseling for those in need; establish criteria for corrections personnel to consider when making referrals to PSU; follow those criteria for referral; monitor inmates' behavior for deterioration or crises for purposes of rendering treatment; develop adequate treatment plans; develop proper procedures for determining medication]. Defendants agree to consult with Plaintiff Intervenors regarding appropriate psychiatric staffing for the PSU. At least the number of psychiatry FfE set forth in the November 2004 "University of New Mexico Health Sciences Center Department of Psychiatry Exhibit B" for the FY 05 Supplemental agreement with UNM will be included in the contract with the PSU provider. Psychiatry caseloads will not exceed 100 psychiatric clients who are receiving medication per FfE of psychiatry provided on site. Psychiatric evaluations will be completed on the first business day after a resident's admission, for any resident who: (1) reports being on any psychoactive medication when taken into custody, (2) requests any psychoactive medication or other psychiatric service, or (3) has been identified by any mental health or health professional as appropriate for a psychiatric assessment. The psychiatrists shall personally assess every resident on psychoactive medication at least once every thirty days.
C. Discharge planning Defendants will include appropriate discharge planning for PSU clients who receive a treatment plan. Discharge plans will describe the arrangements that should be taken to enable sub class members to have continuity of medication provided at MDC, case management, housing, and therapeutic services, as well as information concerning how sub class members can obtain public
4

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 5 of 11
benefits, e.g., SSI and Medicaid. Sub class members shall be afforded the opportunity to participate in the development of discharge plans. Referral for needed case management will be undertaken immediately upon a determination by PSU that case management could enable the sub class member to end her/his incarceration. Sub class members who have previously received Medicaid and/or SSI will be offered applications to reinstate those benefits. Assistance needed to complete the application will be provided, if necessary.
D. Therapeutic: services PSU staff will provide therapeutic services to sub class members, as deemed clinically appropriate for each sub class member, consistent with the requirements of the United States Constitution and consistent with the principles set forth in Ruiz v. Estelle, 503 F Supp 1265 (S.D. Texas 1980) and in Langley v. Coughlin, 715 F. Supp. 522 (S.D. NY 1989) [conduct required psychological testing and evaluation; inquire about the patient's prior history; establish proper methods for making diagnosis; monitor seizure disorders; provide proper medication; provide regular access to counseling for those in need; establish criteria for corrections personnel to consider when making referrals to PSU; follow those criteria for referral; monitor inmates' behavior for deterioration or crises for purposes of rendering treatment; develop adequate treatment plans; develop proper procedures for determining medication). Defendants agree to consult with Plaintiff Intervenors regarding appropriate therapeutic services for the PSU. Therapeutic services will include group therapy for anger management, medication management, avoiding domestic violence and substance abuse treatment (for sub class members with co-occurring disorders). Individual counseling will be available for sub class members who cannot participate in group therapy, as deemed clinically
5

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 6 of 11
appropriate for each sub class member. Sub class members who choose not to participate in therapy shall not be punished for that choice.
E. Investigations of allegations of abuse and of deaths Defendants are considering establishing an Internal Affairs Unit to investigate allegations of abuse of residents. If the defendants create such a unit, the investigators assigned to conduct investigations of allegations of abuse by residents will be adequately trained and otherwise qualified to conduct adequate investigations. If such a unit is not created, and until such a unit is created, corrections officers and supervisors participating in investigations will receive sufficient training concerning how to conduct such investigations to ensure that the investigations they conduct are adequate. Defendants will continue to hire an independent outside firm to investigate incidents in which a PSU client experiences bodily harm for which medical treatment is needed and the client alleges that the injury was caused by staff abuse. The internal investigations shall be completed within thirty (30) calendar days for alleged abuse investigations and ninety (90) calendar days for death investigations. Written reports regarding alleged abuse with respect to PSU clients will be provided to PSU staff and to counsel for Plaintiffs Intervenors within a week of the completion of the investigation. Investigations of deaths of sub class members will include the participation of an independent medical doctor. An independent psychiatrist will participate in all suicide investigations. A Mortality Review Committee including both the PSU medical director psychiatrist and the Medical Services Unit medical director will review all deaths of a person committed to the custody of the MDC. The Committee will complete their internal review of any death within thirty (30) calendar days ofthe death and complete the final review within thirty (30) calendar days of the production of all reports from the Office of Medical Investigator. The findings and recommendations of the
6

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 7 of 11
Mortality Review Committee will be incorporated into the Defendants' death investigation and provided to Plaintiff Intervenors' counsel during the pendency of this case. Jail administrators will implement the recommendations ofthe Mortality Review Committee, or provide in writing to counsel for PlaintiffIntervenors any reason why such recommendations should not be implemented.
F. Notification of rights Defendants will accurately notifY sub class members orally and in writing, upon classification, oftheir rights and ofthe methods available to initiate a grievance regarding alleged violations oftheir rights, including an explanation oftheir rights to appeal. Defendants will continue to notifY residents of their rights in R&D. G. Snecially trained correctional officen Defendants shall assign only correctional officers specially trained in working with people with mental disabilities to all designated units where people with psychiatric disorders are housed. Sufficient number ofcorrectional officers will receive the special training on a regular basis to ensure that only specially trained correctional officers are assigned to the units. During the pendency ofthe case. Defendants shall provide monthly reports to Plaintiff Intervenors' counsel listing correctional officers who have not received training and are assigned to a unit and anticipated training date for each such correctional officer.
H. Community-based services for sub class members
The Defendants will: l. Continue participating in available technical assistance from the National Gains Center
to improve jail diversion activities; 7

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 8 of 11
2. Continue to consult with the Forensic Intervention Consortium (PIC), the Metropolitan Criminal Justice Coordinating Council (MCJCC), the University of New Mexico and the state Department of Health, and draft a written plan or plans to be presented to their governing bodies for adoption to improve the provision of community-based intensive case management services, crisis supports and housing, and for the provision of treatment for sub class members who have co-occurring disorders. The plan will describe how to establish services for at least two hundred individuals;
3. establish a system to assist sub class members who may be eligible for SSI benefits or Medicaid to apply for those benefits within ten days of their incarceration and to assist sub class members who previous]y received SSI benefits or Medicaid to apply for reinstatement of those benefits prior to their release; and
4. make their best efforts to fund for a two year period a full time position or contract person to work with the University of New Mexico, the MCJCC, the PIC, the state Department of Health and the Region 5 mental health authority to improve and co-ordinate jail diversion activities. III. CONCLUSION OF THE LITIGATION
From this date forward, the Court will incrementally disengage from supervision of the requirements of the Stipulated Settlement Agreement. Plaintiff Intervenors and Defendants will jointly select an Auditor who will, within six (6) months (or sooner) of entry of this Stipulated Settlement Agreement and evaluate compliance with the prevailing professional standards guaranteed by the requirements of the United States Constitution and the requirements of this Settlement Agreement, issue a written report to Plaintiff Intervenors' counsel and the Defendants on those topics. The Auditor will be a licensed mental health professional who has been appointed in the past
8

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 9 of 11
by a court to assess mental health care provided in a jail or prison. If the Plaintiff Intervenors and Defendants cannot agree on the Auditor, the Plaintiff Intervenors and Defendants agree to submit a list of names to the United States District Judge, whose selection shall be final.
The Auditor shall have free access to all areas of the MDC, at such times and for such duration as the Auditor desires. The Auditor shall have unlimited access to all MDC personnel and records, and to sub class members incarcerated in the MDC. The Auditor shall have unlimited access to all personnel who are assigned to work at the MDC and who work for private vendors which provide services to the MDC.
The Auditor will notify the Director or his designee of the Auditor's visits to the MDC, so that the Auditor's personal security can be assured.
The Auditor shall have the right to conduct confidential interviews with sub class members, and to conduct interviews with MDC and private vendor staff outside the presence of other staff or supervisors. The only exception would be that the Auditor may not interview witnesses regarding a matter when an active criminal investigation of that matter is on-going, if conducting such an interview would compromise the integrity of the criminal investigation.
If, at the end of the six (6) month period (or sooner), the Auditor reports that one or more of the provisions of this Stipulated Settlement Agreement, or the requirements of prevailing professional standards guaranteed by the United States Constitution, are not met, the Auditor shall continue to evaluate and report on those particular items. Ifthe Auditor reports that all the terms of this Stipulation are being met, that the mental health care provided at MDC complies with prevailing professional standards guaranteed by the requirements of the United States Constitution are being met in the delivery of mental health services, Plaintiff-Intervenors will dismiss the claims raised in their Complaint in Intervention in this litigation with prejudice.
The Defendants and Plaintiff Intervenors agree to cooperate regarding any fairness or other hearings which are required by the Court in order to facilitate the dismissal of Plaintiff Intervenors'
9

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 10 of 11
claims. The Auditor will be compensated by the Defendants, at rates to be negotiated between the
Auditor and the Defendants. Until such time as the auditor declares that the mental health services comply with the terms
of this Stipulation and with the prevailing professional standards guaranteed by the United States Constitution counsel for Plaintiff-Intervenors shall have the same access to the Metropolitan Detention Center that they presently have. However, the Defendants will not be obligated to pay the counsel for the Plaintifflntervenors and their paralegals for more than 180 hours ofmonitoring during any three month period. The Defendants also will permit Dr. Joel Dvoskin PhD to inspect the jail and to talk to the Auditor before the auditor issues a report under the same terms that have been followed since November of 1996. This Stipulated Settlement Agreement shall be binding on all successors. employees, and all those working for or on behalf of the Defendants, and those working for or on behalf of the Plaintiff Intervenors. Provided that nothing in this Agreement impacts upon the statutory rights of the Protection & Advocacy System.
The Plaintiff Intervenors and Defendants do not intend to create in any non-party the status of a third-party beneficiary. This Stipulated Settlement Agreement shall not be construed so as to create a private right of action to any non-party against the Defendants. The rights, duties and obligations contained in this Stipulated Settlement Agreement shall only bind the parties to this Stipulated Settlement Agreement.
Except in an emergency which threatens the health or safety of a subclass member, any claimed breach of this Stipulated Settlement Agreement will be mediated by the United States Magistrate Judge before it is submitted to the United States District Court.
10

Case 6:95-cv-00024-JAP-KBM Document 481 Filed 12/28/04 Page 11 of 11

I
I ' '
Date:_ _ _ _ _ _ _ _ _ _ _ __

Tha eus Lucero County Manager

I
11 ~~~-

County of Bernalillo

Date:_ _ _ _ _ _ _ _ _ _ _ __

Counsel for Plaintiff Intervenors

/
.---~
Counsel for Defendants

.---

Date: _

11 1 __:_;_/+--'-j--'-c:rL__)o____!_L_ f _

-/cl_py
Date:_ __,_.__-'-'-/--'------

SO ORDERED
HO~THA VAZQUEZ UNITED STATES DISTRICT JUDGE

II

 
 Case 6:95-cv-00024-JAP-KBM Document 514 Filed 06/30/05 Page 1 of 11

F I L E D IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO at Sa~:'! "· · ·:

JIMMY (Bll..LY) MCCLENDON, et al.,

JUN 3 0 2005

Plaintiffs, vs.

MATTHEW 0. ;:'"'';.
CLEm~
No. CV-95-24 MV/ACT

CITY OF ALBUQUERQUE, et al.,

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf or themselves and all others similarly situated,

Plaintiff-Intervenors.

STWVLATEDSETTLEMENTAGREEMENT BETWEEN PLAINTIFF INTERVENORS AND DEFENDANTS INTRODUCTION The parties to this litigation have met and conferred regarding the matters raised by the Plaintiff Intervenors' Motion for an Order to Show Cause andfor Further Remedial Reliefand the Defendants' Motion to Vacate Settlement Agreement. After negotiation, the parties have determined that it is in the interest ofaU parties for both these motions to be resolved through compromise. This decision is reached because the parties recognize that it is in the best interest ofall concerned that the federal rights of sub class members be ensured by entering into this Stipulation.
Nothing contained in this Stipulated Settlement Agreement constitutes an admission that the
Defendants have ever violated the constitutional rights ofany sub class member, nor is it an admission that any prior or present policy, procedure, practice, event, circumstance, act or failure to act by the

Case 6:95-cv-00024-JAP-KBM Document 514 Filed 06/30/05 Page 2 of 11
Defendants, their elected officials, contractors, agents or employees violated the civil laws of the United States, failed to meet applicable constitutional standards, or otherwise fell short of any standard of care imposed by law.
The PlaintiffIntervenors and Defendants enter into this Stipulated Settlement Agreement for the purpose of avoiding the risks and burdens oflitigation and in order to describe conditions both parties wish to see at the Bernalillo County Metropolitan Detention Center, located at 100 John Dantis Road SW, Albuquerque, New Mexico (hereinafter the "MDC").
In order to ensure that the improvements achieved thus far by Defendants are enhanced and preserved, the parties hereby enter this Stipulated Settlement Agreement. This Stipulated Settlement Agreement replaces in its entirety the November 5, 1996 Order entered between the Defendants and Plaintiff Intervenors (doc #256). The parties stipulate that this Stipulated Settlement Agreement complies with all requirements of the Prison Litigation Reform Act. Defendants agree to file no motion in the future asserting that this Settlement Agreement should be terminated based upon the provisions of the PLRA. I. GENERAL PROVISIONS
The Plaintifflntervenors acknowledge that the Defendants already have policies that address areas described in this Stipulated Settlement Agreement. If necessary, the Defendants will revise and/or develop as necessary policies, procedures, protocols, training materials and practices to ensure that they are consistent with the requirements of the United States Constitution and this Settlement Agreement.
In consideration for this Stipulated Settlement Agreement, the Plaintiff Intervenors agree to withdraw their Motion for an Order to Show Cause and for Further Remedial Relief and the
2

Case 6:95-cv-00024-JAP-KBM Document 514 Filed 06/30/05 Page 3 of 11
Defendants agree to withdraw their Motion to Vacate Settlement Agreement. II. SPEClFIC PROVISIONS
A. Staffing of the Psvchiatric Services Unit CPSID Defendants will staffthe Psychiatric Services Unit with sufficient clinical and support staffto provide adequate mental health services to the residents of MDC, consistent with the requirements of the United States Constitution and consistent with the principles set forth in Ruiz v. Estelle, 503 F Supp 1265 (S.D. Texas 1980) and in Langley v. Coughlin. 715 F. Supp. 522 (S.D. NY 1989) [conduct required psychological testing and evaluation; inquire about the patient's prior history; establish proper methods for making diagnosis; monitor seizure disorders; provide proper medication; provide regular access to counseling for those in need; establish criteria for corrections personnel to consider when making referrals to PSU; follow those criteria for referral; monitor inmates' behavior for deterioration or crises for purposes of rendering treatment; develop adequate treatment plans; develop proper procedures for determining medication]. Defendants agree to consult with Plaintiff Intervenors regarding appropriate staffing for the PSU. The Defendants will ensure that no less than the numbers of mental health professionals, nurses and support staff set forth in the November 2004 "University Hospital Employees Salary Calculation Worksheet FY 05 Supplemental"are available to provide mental health care to the residents of the MDC.
B. Psychiatry time An appropriate number of psychiatric positions will be included in the contract with the PSU provider in order to provide adequate psychiatric care consistent with the requirements ofthe United States Constitution and consistent with the principles set forth in Ruiz v. Estelle, 503 F Supp 1265 (S.D. Texas 1980) and in Langley v. Coughlin, 715 F. Supp. 522 (S.D. NY 1989)[conduct required
3

Case 6:95-cv-00024-JAP-KBM Document 514 Filed 06/30/05 Page 4 of 11
psychological testing and evaluation; inquire about the patient's prior history; establish proper methods for making diagnosis; monitor seizure disorders; provide proper medication; provide regular access to counseling for those in need; establish criteria for corrections personnel to consider when making referrals to PSU; follow those criteria for referral; monitor inmates' behavior for deterioration or crises for purposes of rendering treatment; develop adequate treatment plans; develop proper procedures for determining medication]. Defendants agree to consult with Plaintiff Intervenors regarding appropriate psychiatric staffing for the PSU. At least the number of psychiatry FrE set forth in the November 2004 "University of New Mexico Health Sciences Center Department of
Psychiatry Exhibit B" for the FY 05 Supplemental agreement with UNM will be included in the
contract with the PSU provider. Psychiatry caseloads will not exceed 100 psychiatric clients who are receiving medication per FrE of psychiatry provided on site. Psychiatric evaluations will be completed on the first business day after a resident's admission, for any resident who: (1) reports being on any psychoactive medication when taken into custody, (2) requests any psychoactive medication or other psychiatric service, or (3) has been identified by any mental health or health professional as appropriate for a psychiatric assessment. The psychiatrists shall personally assess every resident on psychoactive medication at least once every thirty days.
C. Discharge planning Defendants will include appropriate discharge planning for PSU clients who receive a treatment plan. Discharge plans will describe the arrangements that should be taken to enable sub class members to have continuity of medication provided at MDC, case management, housing, and therapeutic services, as well as information concerning how sub class members can obtain public
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benefits, e.g., SSI and Medicaid. Sub class members shall be afforded the opponunity to participate in the development of discharge plans. Referral for needed case management will be undertaken immediately upon a determination by PSU that case management could enable the sub class member to end her/his incarceration. Sub class members who have previously received Medicaid and/or SSI will be offered applications to reinstate those benefits. Assistance needed to complete the application will be provided, if necessary.
D. Theraoeutic services
PSU staff will provide therapeutic services to sub class members, as deemed clinically appropriate for each sub class member, consistent with the requirements of the United States Constitution and consistent with the principles set fonh in Ruiz v. Estelle, 503 F Supp 1265 (S.D. Texas 1980) and in Langley v. Coughlin, 715 F. Supp. 522 (S.D. NY 1989) [conduct required psychological testing and evaluation; inquire about the patient's prior history; establish proper methods for making diagnosis; monitor seizure disorders; provide proper medication; provide regular access to counseling for those in need; establish criteria for corrections personnel to consider when making referrals to PSU; follow those criteria for referral; monitor inmates' behavior for deterioration or crises for purposes of rendering treatment; develop adequate treatment plans; develop proper procedures for determining medication]. Defendants agree to consult with Plaintiff Intervenors regarding appropriate therapeutic services for the PSU. Therapeutic services will include group therapy for anger management. medication management, avoiding domestic violence and substance abuse treatment (for sub class members with co-occurring disorders). Individual counseling wiD be available for sub class members who cannot participate in group therapy, as deemed clinically
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appropriate for each sub class member. Sub class members who choose not to participate in therapy shall not be punished for that choice.
E. Investigations of allegations of abuse and of deaths Defendants are considering establishing an Internal Affairs Unit to investigate allegations of abuse of residents. If the defendants create such a unit, the investigators assigned to conduct investigations of allegations of abuse by residents will be adequately trained and otherwise qualified to conduct adequate investigations. If such a unit is not created, and until such a unit is created, corrections officers and supervisors participating in investigations will receive sufficient training concerning how to conduct such investigations to ensure that the investigations they conduct are adequate. Defendants will continue to hire an independent outside finn to investigate incidents in which a PSU client experiences bodily harm for which medical treatment is needed and the client alleges that the injury was caused by staff abuse. The internal investigations shall be completed within thirty (30) calendar days for alleged abuse investigations and ninety (90) calendar days for death investigations. Written reports regarding alleged abuse with respect to PSU clients will be provided to PSU staff and to counsel for Plaintiffs Intervenors within a week of the completion of the investigation. Investigations of deaths of sub class members will include the participation of an independent medical doctor. An independent psychiatrist will participate in all suicide investigations. A Mortality Review Committee including both the PSU medical director psychiatrist and the Medical Services Unit medical director will review all deaths of a person committed to the custody of the MDC. The Committee will complete their internal review of any death within thirty (30) calendar days of the death and complete the final review within thirty (30) calendar days of the production of all reports from the Office of Medical Investigator. The findings and recommendations of the
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Monality Review Committee will be incorporated into the Defendants' death investigation and provided to Plaintiff Intervenors' counsel during the pendency of this case. Jail administrators will implement the recommendations ofthe Monality Review Committee, or provide in writing to counsel for Plaintiff Intervenors any reason why such recommendations should not be implemented.
F. Notification of rights Defendants will accurately notify sub class members orally and in writing, upon classification, oftheir rights and ofthe methods available to initiate a grievance regarding alleged violations oftheir rights, including an explanation oftheir rights to appeal. Defendants will continue to notify residents of their rights in R&D. G. Specially trained correctional officers Defendants shall assign only correctional officers specially trained in working with people with mental disabilities to all designated units where people with psychiatric disorders are housed. Sufficient number ofcorrectional officers will receive the special training on a regular basis to ensure that only specially trained correctional officers are assigned to the units. During the pendency ofthe case, Defendants shall provide monthly reports to Plaintiff Intervenors' counsel listing correctional officers who have not received training and are assigned to a unit and anticipated training date for each such correctional officer. H. Community-based services for sub class members The Defendants will: 1. Continue participating in available technical assistance from the National Gains Center to improve jail diversion activities;
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2. Continue to consult with the Forensic Intervention Consortium (FIC), the Metropolitan Criminal Justice Coordinating Council (MCJCC), the University of New Mexico and the state Department of Health, and draft a written plan or plans to be presented to their governing bodies for adoption to improve the provision of community-based intensive case management services, crisis supports and housing, and for the provision of treatment for sub class members who have co-occurring disorders. The plan will describe how to establish services for at least two hundred individuals;
3. establish a system to assist sub class members who may be eligible for SSI benefits or Medicaid to apply for those benefits within ten days of their incarceration and to assist sub class members who previously received SSI benefits or Medicaid to apply for reinstatement of those benefits prior to their release; and
4. make their best efforts to fund for a two year period a full time position or contract person to work with the University of New Mexico, the MCJCC, the FIC, the state Department of Health and the Region 5 mental health authority to improve and co-ordinate jail diversion activities. ill. CONCLUSION OF THE LffiGATION
From this date forward, the Court will incrementally disengage from supervision of the requirements of the Stipulated Settlement Agreement. Plaintiff Intervenors and Defendants will jointly select an Auditor who will, within six (6) months (or sooner) of entry of this Stipulated Settlement Agreement and evaluate compliance with the prevailing professional standards guaranteed by the requirements of the United States Constitution and the requirements of this Settlement Agreement, issue a written report to Plaintiff Intervenors' counsel and the Defendants on those topics. The Auditor will be a licensed mental health professional who has been appointed in the past
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by a court to assess mental health care provided in a jail or prison. If the Plaintiff Intervenors and Defendants cannot agree on the Auditor, the Plaintifflntervenors and Defendants agree to submit a list of names to the United States District Judge, whose selection shall be final.
The Auditor shall have free access to all areas of the MDC, at such times and for such duration as the Auditor desires. The Auditor shall have unlimited access to all MDC personnel and records, and to sub class members incarcerated in the MDC. 'The Auditor shall have unlimited access to all personnel who are assigned to work at the MDC and who work for private vendors which provide services to the MDC.
The Auditor will notifY the Director or his designee of the Auditor's visits to the MDC, so that the Auditor's personal security can be assured.
The Auditor shall have the right to conduct confidential interviews with sub class members, and to conduct interviews with MDC and private vendor staffoutside the presence of other staffor supervisors. The only exception would be that the Auditor may not interview witnesses regarding a matter when an active criminal investigation of that matter is on-going, if conducting such an interview would compromise the integrity of the criminal investigation.
If, at the end of the six (6) month period (or sooner), the Auditor reports that one or more of the provisions of this Stipulated Settlement Agreement, or the requirements of prevailing professional standards guaranteed by the United States Constitution, are not met, the Auditor shall continue to evaluate and report on those particular items. Ifthe Auditor reports that all the terms of this Stipulation are being met, that the mental health care provided at MDC complies with prevailing professional standards guaranteed by the requirements of the United States Constitution are being met in the delivery of mental health services, Plaintiff-Intervenors will dismiss the claims raised in their Complaint in Intervention in this litigation with prejudice.
The Defendants and Plaintiff Intervenors agree to cooperate regarding any fairness or other hearings which are required by the Court in order to facilitate the dismissal of Plaintiff Intervenors'
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claims. The Auditor will be compensated by the Defendants, at rates to be negotiated between the
Auditor and the Defendants. Until such time as the auditor declares that the mental health services comply with the tenns
of this Stipulation and with the prevailing professional standards guaranteed by the United States Constitution counsel for Plaintiff-Intervenors shall have the same access to the Metropolitan Detention Center that they presently have. However, the Defendants will not be obligated to pay the counsel for the Plaintifflntervenors and their paralegals for more than 180 hours ofmonitoring during any three month period. The Defendants also will pennit Dr. Joel Dvoskin PhD to inspect the jail and to talk to the Auditor before the auditor issues a report under the same tenns that have been followed since November of 1996. This Stipulated Settlement Agreement shall be binding on all successors, employees, and all those working for or on behalf of the Defendants, and those working for or on behalf of the Plaintiff Intervenors. Provided that nothing in this Agreement impacts upon the statutory rights of the Protection & Advocacy System.
The Plaintiff Intervenors and Defendants do not intend to create in any non-party the status of a third-party beneficiary. This Stipulated Settlement Agreement shall not be construed so as to create a private right of action to any non-party against the Defendants. The rights, duties and obligations contained in this Stipulated Settlement Agreement shall only bind the parties to this Stipulated Settlement Agreement.
Except in an emergency which threatens the health or safety of a subclass member, any claimed breach of this Stipulated Settlement Agreement will be mediated by the United States Magistrate Judge before it is submitted to the United States District Court.
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Date:_ _ _ _ _ _ _ _ _ _ _ __

Date:_ _ _ _ _ _ _ _ _ _ __

Counsel for Plaintiff Intervenors
("-+-~-'--/ Date:_ _:._/ <=f--L-)_0-'--lf_ _

/
Counsel for Defendants

---

Date:_ ___,_/_._/_-_/_:_;1_-_o__y _ __

SO ORDERED
Ha&THA VAZQUEZ
UNITED STATES DISTRICT JUDGE

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 Case 6:95-cv-00024-JAP-KBM Document 699 Filed 03/31/09 Page 1 of 22
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
vs. CITY OF ALBUQUERQUE, et al.,
Defendants, vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff Intervenors.

Civ. No. 95-24 MV/ACT

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Plaintiffs’ Motion to Permit Counsel to visit McClendon Class Members Housed at the Regional Correctional Center or Any other Facility, filed June 28, 2007, [Doc. Nos. 543 and 661], Plaintiff Intervenors’ Motion to Permit Counsel to Have Access to RCC, Its Residents And Their Records, filed July 26, 2007, [Doc. Nos. 548 and 660], the Court’s Order to Show Cause, filed December 11, 2007, [Doc. No. 600] and Plaintiffs’ and Plaintiff Intervenors’ Joint Motion to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions filed September 17, 2008, [Doc. No. 683]. After considering the motion, response, and reply as well as the relevant law, the Court finds that the motions [Doc. Nos. 543 and 661 are well-taken and will be GRANTED in part. The

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remaining motions [Doc. Nos. 555, 562, and 683] filed by Plaintiffs’ and Plaintiff Intervenors’ are DENIED as moot.
BACKGROUND On January 10, 1995, a class of individuals confined in the Bernalillo County Detention Center (“BCDC”) filed this lawsuit to address allegedly unlawful conditions of confinement at BCDC. The Court subsequently certified “a class of all persons presently confined in BCDC or who may/will be so confined in the future” and “a subclass of all persons with mental and/or developmental disabilities who are, or in the future may be, detained at BCDC.” The class is represented by Plaintiffs and Plaintiff Intervenors and the subclass is represented by Plaintiff Intervenors. A. 1996 PLRA Settlements On November 5, 1996, Plaintiff and Plaintiff Intervenors entered into a settlement agreement pursuant to the Prison Litigation Reform Act (“PLRA”) that was set forth in a Court Order (“PLRA Order”). At the same time, Plaintiff Intervenors also entered into a separate settlement agreement with Defendants that was set forth in a Court Order (“Order Regarding Plaintiff Intervenors”). For the next ten years, the parties engaged in litigation to ensure continuing compliance with the PLRA Order and the Order Regarding Plaintiff Intervenors. Numerous additional motions and orders were entered to address the conditions of confinement at BCDC. B. Application of PLRA Settlements to Metropolitan Detention Center On or about June 18, 2003, Defendants opened a new 2100-bed facility known as the Metropolitan Detention Center (“MDC”). All class members and subclass members were
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transferred from BCDC to MDC at this time. A dispute subsequently arose regarding whether the settlement agreements continued to apply following the transfer of class members and subclass members to MDC. On June 27, 2003, Plaintiffs and Plaintiff Intervenors filed a joint motion for a temporary restraining order and a preliminary injunction to prevent Defendants from limiting counsels’ access to residents at MDC. In an Opinion dated July 11, 2003, the Court granted the motion for a temporary restraining order and a preliminary injunction, finding that the PLRA Order remained in effect despite the transfer of the class and subclass members to MDC.1 In making this determination, the Court stated that “the parties did not intend to limit, for purposes of the class and the sub-class definitions or otherwise, the term “BCDC” to a particular facility, but rather intended that term to apply to the [Bernalillo County] jail system as a whole.”
On October 10, 2003, Defendants filed a Motion to Vacate Settlement Agreement Between Plaintiff Intervenors and Defendants on the grounds that the settlement agreement did not apply to MDC. Before this motion was heard, the parties negotiated new settlement agreements, collectively referred to as the 2005 Stipulated Settlement Agreements.
C. 2005 Stipulated Settlement Agreements The 2005 Stipulated Settlement Agreements were explicitly limited to detainees housed at MDC. The stated purpose of the Stipulated Settlement Agreements was to “describe conditions both parties wish to see maintained or improved at the Bernalillo County Metropolitan Detention Center, 100 John Dantis Road SW, Albuquerque, New Mexico.” 2005 Stipulated Settlement Agreements
1 The Court found that the Order Regarding Plaintiff Intervenors did not extend to MDC because the order explicitly stated that it did not extend to a new permanent facility. However, because Plaintiff Intervenors were parties to the settlement agreement set forth in the PLRA Order, the Court found that Plaintiff Intervenors had standing to seek relief on behalf of the subclass members pursuant to the PLRA Order.
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at p. 2. The substantive provisions of the 2005 Stipulated Settlement Agreement require Defendants to “comply with the policies and procedures of the Metropolitan Detention Center” and to have two auditors evaluate and report on designated aspects of the Metropolitan Detention Center. Similarly, Plaintiff Intervenors Stipulated Settlement Agreement specifically addresses provision of mental heath services by the Psychiatric Services Unit at MDC. The parties also agreed that the 2005 Stipulated Settlement Agreements would supercede any previous orders, which presumably would include the Court’s order finding that the previous settlement agreement applied to the entire Bernalillo County jail system.
The Plaintiffs’ 2005 Stipulated Settlement Agreement provides that the case will be dismissed when Defendants obtain compliance with fourteen specified criteria as certified by an independent auditor. Plaintiff Intervenors’ agreement specifies that their claims will be dismissed when the auditor reports that “the mental health care provided at MDC complies with prevailing professional standards guaranteed by the requirements of the United States Constitution.” Defendants have made substantial progress in satisfying the criteria in the settlement agreements but continue to struggle with issues related to overcrowding.
Following a hearing, the 2005 Stipulated Settlement Agreements were approved by the Court on June 30, 2005.
D. Regional Correctional Center After Bernalillo County transferred all the residents of BCDC to MDC, the BCDC facility was renamed the Regional Corrections Center (“RCC”). At this time, Defendants represented that RCC had been leased to Cornell Companies, Inc. (“Cornell”), who planned to renovate the facility and use it to house federal detainees pursuant to a contract with the United States. The October,
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2003 lease between Bernalillo County and Cornell provided that Bernalillo County would attempt to secure Inter-Government Agreements (“IGA”) to house federal inmates at RCC and that in the event an IGA was entered into between Bernalillo County and the Federal government, that Cornell and Bernalillo County would enter into a management agreement for those inmates covered by such IGA. In June of 2004, apparently before an IGA was finalized, Bernalillo County and Cornell entered into an “Operating and Management Agreement,” addressing Cornell’s operation of RCC when housing inmates “assigned and transferred to the Jail pursuant to an Intergovernmental Service Agreement (IGA) between Bernalillo County and the United States Government or Bernalillo County and the State of New Mexico.” The Operating and Management Agreement, which identifies RCC as a “Bernalillo County jail,” specifies the operating standards for nearly every aspect of the jail’s day-to-day operations, including staffing, training, record keeping, medical care, food service, laundry, telephone service, inmate work, discipline, grievance procedures, and the use of force. The Operating and Management Agreement also requires Cornell to provide monthly summary reports to Bernalillo County on a number of matters, including inmate and staff disciplinary matters, inmate grievances, incident reports, inmate participation in programs provided at the facility and population statistics. Under the Operating and Management Agreement, Bernalillo County retains full access to the facility and the facility’s records and Cornell is required to surrender all records pertaining to the operation of RCC to Bernalillo County at the termination of the agreement.
In March of 2005, Bernalillo County entered into an IGA with the Office of the Federal Detention Trustee. Pursuant to the IGA, Bernalillo County agreed to house federal detainees at RCC and to perform all the services required in the IGA by qualified personnel employed or contracted
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by Bernalillo County. Pursuant to the IGA and the Operating and Management Agreement, hundreds of federal detainees began being housed at RCC.2
E. Current Dispute Although Bernalillo County entered into the IGA and the Operating and Management Agreement prior to the fairness hearing on the 2005 Stipulated Settlement Agreements, it did not inform the Court or the other parties of its role in the housing of detainees at RCC at this hearing. Nearly two years later, Plaintiffs and Plaintiff Intervenors discovered that Bernalillo County was the entity who had contracted to house federal detainees at RCC and filed the instant motions alleging that they were misled by Defendants’ failure to disclose this information when limiting the 2005 Stipulated Settlement Agreements to MDC and seeking a ruling that the 2005 Stipulated Settlement Agreements applied everywhere Bernalillo County housed detainees, including RCC. The Court, after reviewing Plaintiffs and Plaintiff Intervenors’ filings, issued an Order directing Defendants to show cause why the Court’s approval of the 2005 Stipulated Settlement Agreements should not be withdrawn because material information regarding whether the settlements were “fair, reasonable, and adequate” was not provided to the Court prior to the Court’s approval of the settlements. See Fed. R. Civ. P. 23(e)(1)(A) (court may only approve a class settlement after a hearing and on finding that the settlement “is fair, reasonable, and adequate”). The parties’ responses to this Order are considered by the Court in ruling on the instant motions.
2 In addition to federal detainees, overflow inmates from MDC were also housed at RCC pursuant to a separate contract between Bernalillo County and Cornell. At the request of Cornell, the County removed all its detainees from RCC in July of 2007.
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LEGAL STANDARD A settlement agreement, including a settlement agreement encompassed in a judicial order, is a contract. See Republic Res. Corp. v. ISI Petroleum West Caddo Drilling Program 1981, 836 F.2d 462, 465 (10th Cir. 1987)( “We construe a settlement stipulation in the same manner as a contract to determine how it should be enforced.”) (citation omitted); In re Columbia Gas System, Inc., 146 B.R. 106, 113 (D. Del. 1992). Thus, when determining whether a court will enforce a settlement agreement or in interpreting the terms of a settlement agreement, a court applies state contract law. See United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000)(“Issues involving the formation, construction and enforceability of a settlement agreement are resolved by applying state contract law.”)(citing Carr v. Runyan, 89 F.3d 327, 331 (7th Cir. 1996)). New Mexico public policy favors settlement agreements. See Navajo Tribe of Indians v. Hanosh Chevrolet-Buick, Inc., 106 N.M. 705, 707, 749 P.2d 90, 92 (1988). New Mexico courts presume that, when parties have settled a dispute, they “intended a complete accord and satisfaction of their respective claims....” Bennett v. Kisluk, 112 N.M. 221, 223-24, 814 P.2d 89, 91-92 (1991). In applying this policy, courts are bound by unambiguous language in settlement agreements. See Burden v. Colonial Homes, Inc., 79 N.M. 170, 173, 441 P.2d 210, 213 (1968) (citation omitted). Generally, in order to set aside or avoid a written settlement, there must be evidence of misrepresentation, fraud, undue influence, coercion or mutual mistake, and such evidence must be clear and convincing. Woods v. City of Hobbs, 75 N.M. 588, 408 P.2d 508 (1965); Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964); Mendenhall v. Vandeventer, 61 N.M. 277, 299 P.2d 457 (1956). The terms of a settlement agreement are controlling, unless the terms produce a result that is unfair to the class or contrary to the policies underlying class actions.
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DISCUSSION Plaintiffs’ motion seeks an order requiring Defendant Bernalillo County to instruct all contractors who operate a facility where McClendon class members are housed, including RCC, to permit Plaintiffs’ counsel to visit with the McClendon class members housed at these facilities in their living quarters. Plaintiffs assert they are entitled to this access because 1) the class is defined as “[a]ll persons presently confined in the Bernalillo County Detention Center, Albuquerque, new Mexico (“BCDC”) or who may/will be so confined in the future;” and 2) the Court, interpreting the previous settlement agreement, ruled that “the parties did not intend to limit, for purposes of the class and the sub-class definitions or otherwise, the term “BCDC” to a particular facility, but rather intended that term to apply to the jail system as a whole.” Plaintiff Intervenors’ motion similarly seeks an order requiring Defendant Bernalillo County to provide counsel for Plaintiff Intervenors access to RCC, its residents, and their records. Plaintiff Intervenors claim that inmates housed at RCC are part of the McClendon subclass because they are in the custody of Bernalillo County. Plaintiff Intervenors assert that the language in its 2005 Settlement Agreements limiting its applicability to MDC should be disregarded because the language was adopted based on Defendants’ misrepresentation that it would not operate RCC as a Bernalillo County jail. In essence, Plaintiffs and Plaintiff Intervenors’ motions are asking the Court to reform the 2005 Settlement Agreements to cover facilities other than MDC on the grounds that Defendants’ misrepresentations regarding Bernalillo County’s role in housing detainees at RCC induced the parties to limit the settlement agreements to MDC. Prior to determining if any misrepresentations were made, the Court must consider the two premises underlying the motions: 1) that the definition
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of the class and subclass include persons housed at other facilities and 2) that Bernalillo County is operating RCC as part of the Bernalillo County jail system.
A. Definition of the Class Plaintiffs and Plaintiff Intervernors assert that the class includes any individual detained by Bernalillo County or the City of Albuquerque whereever they are housed. In support of this assertion, the parties rely upon a sentence in the Court’s 2003 Opinion stating that the parties intended the PLRA Order to apply “wherever individuals incarcerated by Defendants are housed.” See 2003 Opinion at p. 7. The analysis in the 2003 Opinion makes it clear that the Court’s finding was that the PLRA Order applied to the entire Bernalillo County jail system and was not that the PRLA Order applied anywhere an individual incarcerated by Defendants was housed. In fact, the very next sentence states that the parties intended the term “BCDC” to apply “to the jail system as a whole.” id.; see also id. at 8 (noting that “the parties’ reference to the population at “detention facilities” suggest that the agreement applies to individuals incarcerated at any and all of Defendant’s facilities”); id at 9-10 (noting that the PRLA address conditions of confinement that “are applicable to the jail system as a whole”). The language in the PLRA Order itself confirms that the parties interpreted the agreements to apply only to facilities operated by Bernalillo County. See PLRA Order at 3 (recognizing the “unpredictability of the population at the detention facilities operated by Defendants.”); id. at 8 (referring to “the population at the detention facilities operated by Defendants”). While Plaintiffs and Plaintiff Intervenors now rely upon this one sentence, the history of this case belies the fact that anyone believed the class and subclass was defined this broadly. Throughout the pendency of this litigation, including at the time the current settlement agreements
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were negotiated, Defendants housed detainees in detention facilities owned and operated by other entities. Prior to the instant motions, no party has contended that detainees housed at non-County facilities are part of the class or subclass, these detainees have not been included in any prior settlement agreements, and counsel for Plaintiffs and Plaintiff Intervenors have never sought access to non-County detention facilities on the grounds that detainees housed there by contract with the County were class or subclass members. The Court finds it significant that at the time the 2005 Stipulated Settlement Agreements were signed, the population of MDC was above its rated capacity, raising the possibility that detainees would be housed at other non-County facilities (a practice Plaintiffs and Plaintiff Intervenors have advocated in the past to reduce overcrowding at County facilities), yet the parties included no provisions covering detainees housed at non-County facilities in the settlement agreements.
The record in this case firmly supports the Court’s finding that the settlement agreements apply to the “jail system as a whole” was intended to encompass only those facilities that are operated or controlled, directly or indirectly, by Defendants as part of the Bernalillo County jail system.3 Other detention facilities not operated or controlled by Defendant Bernalillo County are not part of the Bernalillo County jail system and are not subject to the requirements of this case even if Bernalillo Country contracts to house detainees at these facilities.
3In the December 11, 2007 Order to Show Cause, the Court stated that the Court’s 2003 Order “interpreting the term “BCDC” to apply to the “jail system as a whole” was intended to encompass only those facilities that are owned, controlled, or operated by Defendant Bernalillo County as part of the Bernalillo County jail system.” As clarified above, the keystone to the Court’s inquiry is whether a detainee is housed in a facility controlled or operated, directly or indirectly, by Bernalillo County. Mere ownership of a facility, without additional indices of control, would not be sufficient to support a finding that detainees housed in that facility were part of the McClendon class or subclass.
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B. Is RCC being operated as part of the Bernalillo County jail system? The evidence is irrefutable that RCC is being operated, at least in part, as part of the Bernalillo County jail system.4 Bernalillo County entered into an IGA to house federal detainees at RCC. The IGA requires Bernalillo County to perform the services under the contract and holds Bernalillo County, not Cornell, liable for the failure to perform on any service related to the IGA, including ensuring that units housing Federal detainees are operated in accordance with federal operating guidelines. Pursuant to the IGA, Bernalillo County submits invoices and receives payment by the federal government. Pursuant to an Operating and Management Agreement, Bernalillo County subcontracted the care of these inmates to Cornell. The Operating and Management Agreement, which identifies RCC as a “Bernalillo County jail,” specifies the operating standards for nearly every aspect of the jail’s day-to-day operations, including staffing, training, record keeping, medical care, food service, laundry, telephone service, inmate work, discipline, grievance procedures, and the use of force. The Operating and Management Agreement also requires Cornell to provide monthly summary reports to Bernalillo County on a number of matters, including inmate and staff disciplinary matters, inmate grievances, incident reports, inmate participation in programs provided at the facility and population statistics. Under the Operating and Management Agreement, Bernalillo County retains full access
4 Defendants contend Plaintiffs and Plaintiff Intervenors’ motions are moot because no MDC inmates are being housed at RCC now and there are no plans to house MDC inmates at RCC in the future. Defendants misapprehend Plaintiffs and Plaintiff Intervenors’ arguments. Plaintiffs’ and Plaintiff Intervenors’ arguments are not limited to the overflow inmates from MDC who were housed for a period of time at RCC. Plaintiffs contend that the federal detainees at RCC are part of the McClendon class because for purposes of housing these federal detainees, RCC is being operated by Bernalillo County. Federal detainees are still housed at RCC so this issue is not moot.
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to the facility and the facility’s records and Cornell is required to surrender all records pertaining to the operation of RCC to Bernalillo County at the termination of the agreement.
The fact that Bernalillo County entered into the contract to house federal detainees and has significant oversight and control over, not to mention responsibility for, the conditions and services provided to these inmates convinces the Court that RCC, at least to the extent it is used to house detainees by Bernalillo County pursuant to the IGA, is part of the Bernalillo County jail system.5 This determination is unaffected by the fact that Bernalillo County has subcontracted some of its duties under the IGA to Cornell.
C. Was there a misrepresentation or omission by Defendants at the time the 2005 Stipulated Settlement Agreements were negotiated and approved?
There is no question that the parties explicitly limited the 2005 Stipulated Settlement Agreements to MDC. Plaintiffs and Plaintiff Intervenors assert that Defendants’ failure to inform them that it was actually Bernalillo County, not Cornell, who had contracted to house federal detainees at RCC was a material omission that induced Plaintiffs and Plaintiff Intervenors to enter into settlement agreements limited to MDC. According to Plaintiffs and Plaintiff Intervenors, had they known that RCC was being operated as a Bernalillo County jail such that detainees housed there were members of the class and subclass, they would not have limited the settlement agreement
5 The fact that Bernalillo County entered into the IGA, in part, to raise money for the mental health unit at MDC does not affect the Court’s determination that RCC is being operated as a Bernalillo County jail. Defendants’ motivations in entering the IGA and agreeing to be responsible for the housing of federal detainees at RCC are irrelevant to the determination of whether class members have been excluded from the protections due under this lawsuit. Similarly, Defendants’ assertion that a finding that RCC is part of the Bernalillo County jail system and subject to the strictures of McClendon may affect its ability to attract clients to RCC, which in turn will affect their ability to pay the bonds used to build HSU at MDC, is not relevant to the Court’s analysis. All members of the class and subclass are entitled to the same protections and oversight.
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to MDC.
Misrepresentations by one party to a contract can make the contract voidable by the other
party. Under New Mexico law, “rescission is allowed where there has been a misrepresentation of
a material fact, the misrepresentation was made to be relied on, and has in fact been relied on.”
Hendren v. Allstate Ins. Co., 100 N.M. 506, 672 P.2d 1137, 1140 (1983). “A representation or
concealment of a fact is material if it operates as an inducement to the [party] to enter into the
contract, where, except for such inducement, it would not have done so . . .” Id. “If
misrepresentations be made, or information withheld, and such be material to the contract, then it
makes no difference whether the party acted fraudulently, negligently, or innocently.” Modisette v.
Foundation Reserve Insurance Co., 77 N.M. 661, 667 (1967) (citations omitted); Robison, 94 N.M.
at 319 (a misrepresentation can result in the voiding or rescission of a contract “irrespective of the
good or bad faith of the party making the misrepresentation.”); Hendren, 100 N.M. at ( “If a
material misrepresentation is made or material information withheld, it does not matter whether the
culpable party acted fraudulently, negligently, or innocently; rescission may follow.”).
The Supreme Court in Modisette quoted with approval the following from Metropolitan Life
Ins. Co. v. Becraft, 213 Ind. 378, 12 N.E.2d 952 (1938):
Whether there was fraudulent intent or actual fraud is immaterial. An unqualified statement that a fact exists or does not exist, made for the purpose of inducing another to act, implies that the person who makes it is acquainted with the facts; and, if action is induced by the representation and false statement, the law will impute to him who made the false representation a fraudulent purpose. * * * It is the injury caused by the misrepresentation of fact that the law protects against. If the misrepresentation was brought about by forgetfullness [sic] or mistake it is just as injurious as an intentional fraud. It accomplishes a fraud upon the other contracting party by inducing him to act upon a false premise, where he would not have acted had he known the truth. Whether it be caused by negligence, or actual fraudulent purpose, good intention or bad, the result is the same. There is no meeting of the minds * * *.
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In order to obtain recission, Plaintiffs and Plaintiff Intervenors must show that (1) there was a misrepresentation that was (2) material or fraudulent and which (3) induced them to enter into the settlement agreements, and that (4) their reliance on the misrepresentation was justified.
1. Was there a misrepresentation? Bernalillo County entered its lease agreement with Cornell in October of 2003. In June of 2004, Bernalillo County and Cornell entered into the Operating and Management Agreement addressing Cornell’s operation of RCC when housing inmates pursuant to an IGA between Bernalillo County and the federal government. The IGA between the Office of the Federal Detention Trustee and Bernalillo County to house federal detainees at RCC was signed in March of 2005. The settlement agreements at issue in this case were signed by the parties in November of 2004, a motion for preliminary approval of the agreements was filed in March of 2005, a hearing on the proposed settlement agreements was held on June 30, 2005, and the settlement agreements were approved by the Court immediately following that hearing. Thus, it is apparent that while Defendants may not have been aware of Bernalillo County’s role in the housing of federal detainees at RCC when the settlement was negotiated, they were certainly aware that Bernalillo County, not Cornell, had contracted to house federal detainees at RCC when the hearing on the settlement agreements was held in June of 2005. On October 10, 2003, Bernalillo County submitted an affidavit to the Court stating that “BCDC is currently leased to Cornell Corrections Corp., which intends to renovate the building and house federal prisoners pursuant to a contract with the United States government.” See Docket No. 422, Exhibit A. While Defendants argue that this statement is accurate because the building was leased to Cornell and Cornell did begin to house federal pursuant to a contract with the federal
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government, the statement implies that Cornell had the contract to house federal prisoners--an impression Defendants never corrected.
Defendants assert that the process by which the IGA was procured, and Bernalillo County’s role in the process, was open and transparent and “the fact that the Plaintiffs and Plaintiff Intervenors failed to read a newspaper or attend any of the public hearings should not now serve as a basis to discount all of the work successfully undertaken pursuant to the goals and directive of the June, 2005 settlement agreements.” In support of this assertion, Defendants have provided a number of newspaper articles as well as copies of the minutes from several Bernalillo County Board of County Commissioners meetings. While these documents discuss the County’s efforts to secure an IGA and certain aspects of the County’s lease with Cornell, none of the documents states that Bernalillo County is the party that assumed responsibility under the contract to house federal prisoners or gives any indication of the extent to which Bernaillo County would retain oversight for these detainees under the Operation and Management Agreement There are occasional references to Cornell and the County “working together” to obtain a contract to house federal prisoners but the closest any of the submitted documents came to disclosing the extent of the County’s role is a newspaper article stating that the lease with Cornell “[r]equires the county to try to work out agreements with the federal government to house inmates at the Downtown jail.” 6/10/2003 ABQ Journal.
Based on the evidence provided, the Court cannot find that the information available to the public was such that Plaintiffs and Plaintiff Intervenors should have been aware that it was Bernalillo County that entered a contract to house federal detainees at RCC at the time the 2005 Stipulated Settlement Agreements were approved. In fact, the overwhelming evidence in the record
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supports Plaintiffs and Plaintiff Intervenors’ assertion that Defendants, intentionally or
unintentionally, perpetuated the misimpression that Cornell was the party to the contract with the
federal government to house federal detainees at RCC:
* In 2005 Defendants submitted a sworn statement to the Court that “BCDC is currently leased to Cornell Corrections Corp., which intends to renovate the building and house federal prisoners pursuant to a contract with the United States Government.”
* A May 20, 2007 newspaper article attributes to John Dantis the statement that “Cornell Corrections . . . has an intergovernmental agreement to detain inmates [at RCC].”
* In an August 11, 2007 newspaper article Cornell CEO James Hyman is quoted as stating that “The contract between Cornell and ICE is still in place.”
* An October 11, 2007 Albuquerque Journal article states that “Cornell leases and runs the downtown jail . . . the company contracts with federal authorities to house federal prisoners in the region.”).
* Defendants’ representatives repeatedly “referred to Cornell’s contract with the federal government” in conversations with counsel for Plaintiffs and Plaintiff Intervenors and not once did Defendants disclose that it was the County that held the contract.
* Defendants’ representatives repeatedly informed Magistrate Judge Torgerson during status conferences on this case that Cornell held the contract with the federal government to house federal detainees at RCC.
* On June 14, 2006, Magistrate Judge Torgerson convened a conference call with counsel for the parties to discuss the downtown jail. During the call, counsel for the Defendants explicitly stated that it was Cornell who held the contract with ICE. When counsel for Plaintiff Intervenors informed Judge Torgerson that he had recently heard that the contract was with the County, not Cornell, Defendants’ counsel insisted that, to his knowledge, the contract was between Cornell and ICE. Judge Torgerson directed Defendants’ counsel to provide copies of the contract to the parties, which Defendants’ counsel did on June 26, 2007. These documents confirmed that the contract was between Bernalillo County and the federal government.
* Plaintiffs’ counsel made numerous requests for a copy of the Management and Operating Agreement with Cornell. These requests were ignored by Defendants
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for nearly a year, until Plaintiffs threatened to subpoena the documents in the summer of 2007. As stated by Plaintiffs, if Bernalillo County’s relationship with the federal government was so transparent, “how did the newspapers get it wrong, the County’s defense attorney get it wrong, the Plaintiffs’ attorneys get it wrong, the Plaintiff Intervenors’ attorneys get it wrong, the Magistrate Judge get it wrong, and the District Judge presiding over the case get it wrong?” Whether fraudulently, negligently, or innocently, Defendants’ statements and omissions led the Plaintiffs, Plaintiff Intervenors, and the Court to believe that Cornell, not Bernalillo County, had entered into a contract to house federal detainees at RCC. The Court is perplexed by Defendants’ argument that they were justified in not disclosing that Bernalillo County had contracted to house detainees to RCC because Defendants believed that the McClendon class and subclass were limited to detainees housed in facilities directly operated by the County. The Court finds the suggestion that Defendants believed that hiring a contractor to operate a facility for them would somehow relieve them of their obligations under this case completely incredulous. Defendants argue that if Plaintiffs and Plaintiff Intervenors truly believed that detainees housed at RCC were part of the class and subclass, they should have sought access to RCC when the County began housing MDC inmates there in 2006. If the facts had been as Plaintiffs and Plaintiff Intervenors thought they were--i.e. that RCC was being operated as a private facility by Cornell and MDC inmates were being housed there pursuant to a contract between the County and Cornell--these detainees were not members of the class or subclass. In addition, the County assured Plaintiff Intervenors that no subclass members would be housed at RCC. Finally, Defendant asserts that even if the Court finds that a misrepresentation was made, any
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representation was neither reckless nor intentional. Defendants also submitted testimony from County officials stating that they did not know that ”such information would have any bearing on the approval of the settlement agreement.” John Dantis at ¶ 15. The Court need not find that Defendants acted recklessly or intentionally or even knew that the information was relevant because even an inadvertent failure to disclose a material fact is grounds for recission.6
2. Was the misrepresentation material? The fact that RCC would continue to be operated as part of the Bernalillo County jail system such that detainees in that facility were members of the class and subclass whose claims were being settled was a material fact. There can be no question that the fact that there were hundreds of class members excluded from the class settlement was a material fact.
3. Did the misrepresentation induce the parties to enter the agreement? Defendants’ misrepresentations or omissions led Plaintiff and Plaintiff Intervenors’ counsel to approve a settlement agreement limited to MDC rather than applying to all facilities in the Bernalillo County jail system. Defendants’ misrepresentations or omissions also led the Court to approve the 2005 Settlement Agreements based upon its belief that all class members were being housed at MDC. Counsel for Plaintiffs and Plaintiff Intervenors both testified that they would not have entered the 2005 Stipulated Settlement Agreements had they known that Bernalillo County had contracted to house federal detainees at RCC.
4. Was the parties’ reliance on the misrepresentation justified? Defendants argue that any reliance upon the alleged misrepresentation was misplaced since
6 Whether County officials were aware of the import of this information, Defendants’ counsel should have known that the fact that Bernalillo County was contracting to house federal detainees in RCC was a material fact that should have been disclosed to Plaintiffs and the Court.
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information regarding the County’s role in the IGA was readily available in the public arena. As discussed above, the information available in the public arena supported the view that Cornell had a contract to house federal detainees. In addition, Plaintiffs and Plaintiff Intervenors reasonably relied upon Defendants’ representatives’ statements to the Court and to them that Cornell had the contract with the federal government.
Plaintiffs and Plaintiff Intervenors have come forward with convincing evidence that Defendants made a material misrepresentation that the parties reasonably relied upon in entering the 2005 Stipulated Settlement Agreements.
D. Remedy Plaintiffs and Plaintiff Intervenors’ motions essentially request that the 2005 Settlement Agreements be reformed to extend to RCC and other facilities where Bernalillo County and the City of Albuquerque house detainees. In response to the Court’s Order to Show Cause, Plaintiffs requested that the their settlement agreement be withdrawn while Plaintiff Intervenors reiterated their request that the Court exercise its inherent equitable powers to modify the terms of the 2005 Stipulated Settlement Agreement to apply to subclass members housed at RCC. Defendants strenuously object to any proposal that results in the withdrawal of the 2005 Stipulated Settlement Agreements or the extension of the 2005 Stipulated Settlement Agreements to RCC. While the Court may have the equitable power to modify the terms of consent decrees, the Court will decline to exercise this power. Under New Mexico law, recission is the specified remedy for a misrepresentation in the negotiation of a contract. Furthermore, simply extending the current agreements to include RCC does not seem practical as many of the provisions, such as those related to the Mental Health Unit, are site specific. Consequently, the Court will grant Plaintiffs and
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Plaintiff Intervenors the option to rescind their respective 2005 Stipulated Settlement Agreements. E. Court’s Approval of the 2005 Stipulated Settlement Agreements Pursuant to Rule 23(e)(1)(A), the Court must approve “any settlement, voluntary dismissal,
or compromise of the claims, issues, or defenses of a certified class.” Fed. R. Civ. P. 23(e)(1)(A). The Court may only approve a settlement after a hearing and on a finding that the settlement “is fair, reasonable, and adequate.” Id at (e)(1)(C). A class suit may not be settled or compromised unless such a disposition is in the interest of the whole class. Euresti v. Stenner, 458 F.2d 1115 (10th Cir. 1972).
Defendants had an obligation to the Court to relay material information in their possession at the settlement hearing. The Court approved the settlements with the understanding that all class members were being housed at MDC. If the Court had known that Defendant Bernalillo County had contracted to house detainees at RCC, the Court would not have approved the 2005 Stipulated Settlement Agreements because the settlement agreements did not cover a significant portion of the defined class and subclass. Pursuant to Rule 23(e)(1)(A), the Court has an obligation to ensure that the settlement agreement is of benefit to the whole class. The approval of the 2005 Settlement Agreements was unfair to the class as a whole and contrary to the policies underlying class actions. In Re N.M. Indirect Purchasers Microsoft Corp.,140 N.M. 879, 889 (N.M. App. 2006).
While the Court does not find that Defendants’ failure to disclose this information constitutes a fraud on the Court, the Court will exercise its equitable power to withdraw its approval of the 2005 Stipulated Settlement Agreements because material information regarding whether the settlements were “fair, reasonable, and adequate” was not provided to the Court prior to the Court’s approval of the settlements.
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CONCLUSION IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Permit Counsel to visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility, filed June 28, 2007, [Doc. Nos. 543 and 661], Plaintiff-Intervenors’ Motion to Permit Counsel to Have Access to RCC, Its Residents And Their Records, filed July 26, 2007, [Doc. Nos. 548 and 660], are GRANTED in part. The Court hereby grants the parties the option to rescind their respective 2005 Stipulated Settlement Agreements. The parties must notify the Court in writing within 10 days of the date of this Order if they would like to exercise their option to rescind. IT IS FURTHER ORDERED that the Court’s approval of the 2005 Settlement Agreements is hereby withdrawn. IT IS FINALLY ORDERED that because the Court’s approval of the 2005 Stipulated Settlement Agreements has been withdrawn, Plaintiff's Motion for an Order to Show Cause, filed September 12, 2007, [Doc. No. 555], Plaintiff-Intervenors' Motion for an Order to Show Cause, filed September 24, 2007, [Doc. No. 562], and Plaintiffs’ and Plaintiff Intervenors’ Joint Motion to Compel filed September 17, 2008, [Doc. No. 682] are hereby DENIED as moot. Dated this 31st day of March, 2009.
MARTHA VÁZQUEZ CHIEF U.S. DISTRICT COURT JUDGE
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Attorneys for Plaintiffs: Marc M. Lowry Peter Schoenburg Alexandra Freedman Smith Mark H. Donatelli Zachary A. Ives Andrew Vallejos Attorneys for Intervenors: Claire Dickson Flynn Evelyn Sylvest Peter Cubra Lisa Y. Schatz-Vance Attorneys for Defendants: Jeffrey L. Baker Kathryn Levy Daniel J. Macke Marcus J. Rael, Jr.
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 Case 6:95-cv-00024-JAP-KBM Document 1213 Filed 03/22/16 Page 1 of 4

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

JIMMY (BILLY) McCLENDON, et al., Plaintiffs,
v.
CITY OF ALBUQUERQUE, et al.,
Defendants, v.
E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff Intervenors.

CIV-95-24 JAP/KBM

STIPULATED ORDER PRELIMINARILY APPROVING SETTLEMENT, REQUIRING NOTICE TO CLASS AND SUBCLASS MEMBERS, AND SETTING FAIRNESS HEARING
Counsel for Plaintiffs, Counsel for Plaintiff-Intervenors, and Counsel for Defendant Bernalillo County, who jointly request that the Court preliminarily approve a proposed settlement, have stipulated to the entry of this Order.
The Court has reviewed: 1. The proposed Settlement Agreement, which is attached as Exhibit A; 2. Check-out Audit Agreement No. 1: the Provision of Medical Services at the Bernalillo County Metropolitan Detention Center, which is attached as Exhibit B; 3. Check-out Audit Agreement No. 2: the Provision of Mental Health Services at the Bernalillo County Metropolitan Detention Center, which is attached as Exhibit C; and 4. Check-out Audit Agreement No. 3: the Conditions of Confinement at the Bernalillo County Metropolitan Detention Center, which is attached as Exhibit D.

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On December 14, 2015, the Court held a preliminary approval hearing. Being fully advised, the Court preliminarily approves the proposed settlement, subject to members of the class and subclass receiving notice and having an opportunity to object to or to comment upon the proposed settlement.
The Court orders as follows with respect to the provision of notice to members of the class and subclass:
1. Defendant Bernalillo County will bear the cost of obtaining certified Spanish language translations of the Settlement Agreement; the Summary Notice, which is attached as Exhibit E; and the Full Notice, which is attached as Exhibit F.
2. Defendant Bernalillo County will post copies of the Full Notice, in both English and Spanish, in every housing unit; the medical services unit; the reception, discharge, and transfer unit; and the law library within two days of entry of this order. Defendant Bernalillo County will ensure that copies of the Full Notice remain posted in the listed locations until the Court approves or rejects the proposed settlement. Defendant Bernalillo County will also ensure that a copy of the Summary Notice is posted in each area of the segregation units where inmates have time out of their cells, and will also ensure that a sign is posted stating that each inmate is entitled to a copy of the Full Notice in English or Spanish and, upon request, staff will provide the Full Notice in whichever language the person chooses.
3. Upon request of any inmate at the security desk in any housing unit and in the law library, or by request of any inmate in segregation to a staff member, Defendant Bernalillo County will make the Settlement Agreement available for review in English and Spanish, starting within two days of entry of this order until the Court approves or rejects the proposed settlement. Defendant Bernalillo County will keep at least one (1) copy of the Settlement
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Agreement in English and Spanish at the above-listed locations. 4. Upon request of any inmate at the security desk in any housing unit and in the law
library, or by request of any inmate in segregation to a staff member, Defendant Bernalillo County will make the three check-out audit agreements available for review, starting within two days of entry of this order until the Court approves or rejects the proposed settlement.
5. Defendant Bernalillo County will make the Summary Notice, Full Notice, Settlement Agreement, and check-out audit agreements available for viewing on the kiosk system starting within two days of entry of this order until the Court approves or rejects the proposed settlement. The Summary Notice, Full Notice, and Settlement Agreement will be made available on the kiosk system in Spanish as well as English.
6. Defendant Bernalillo County will make the Summary Notice, Full Notice, Settlement Agreement, and check-out audit agreements available for public viewing on its web site within five business days of entry of this order and until the Court approves or rejects the proposed settlement.
7. Defendant Bernalillo County will publish the Full Notice in the Albuquerque Journal weekly for six consecutive weeks starting no later than one week after entry of this order.
The Clerk of the Court will file with the Court all written objections to the proposed settlement that are postmarked on or before May 23, 2016.
Counsel for Plaintiffs, Plaintiff-Intervenors, and Defendant Bernalillo County will file a notice advising the Court of all objections they receive directly from class and subclass members.
The Court will hold a fairness hearing at 10:00 a.m. on May 25, 2016, at the United States Courthouse, 421 Gold Ave. SW, Sixth Floor Courtroom, Albuquerque, New Mexico to
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consider any timely objections and to decide whether to give final approval to the proposed settlement.
It is so ordered.

APPROVED:

__________________________________ Honorable James A. Parker United States Senior District Judge

Approved on March 10, 2016 by Zachary Ives Zachary A. Ives Attorney for Plaintiffs

Approved on March 10, 2016 by Kelly Waterfall Peter Cubra Attorney for Plaintiff-Intervenors

Approved on March 10, 2016 by Luis Robles Luis Robles Attorney for County Defendants

Approved on March 10, 2016 by Special Master Alan Torgerson The Honorable Alan Torgerson Special Master

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 Case 6:95-cv-00024-JAP-KBM Document 1213-1 Filed 03/22/16 Page 1 of 15

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

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
vs. CITY OF ALBUQUERQUE, et al.,
Defendants. vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

No. CV 95-24 JAP/KBM

SETTLEMENT AGREEMENT The Plaintiffs, Plaintiff-Intervenors, and Defendants have met and conferred regarding the termination of this litigation. To ensure that improvements achieved thus far by Defendants are preserved, and in recognition of the parties’ shared interests in establishing a durable remedy for the class and sub class, the parties hereby enter into this Settlement Agreement: 1. The parties hereby agree that it is in the best interest of all parties to resolve all outstanding issues by entering into a global Settlement Agreement.
A. Plaintiffs’ and Plaintiff-Intervenors’ consideration for entering into this Settlement Agreement are improvements in the operation of the County jail system, a fair

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and reasonable check-out audit for each of the domains listed in the Check-Out Audit Agreements described below, assurance that a finding of substantial compliance is meaningful, the establishment of a durable remedy and, during the pendency of the lawsuit, identification of any domains, if any, in which backsliding has occurred so that appropriate corrective action can be taken.
B. Defendants’ consideration for entering into this Settlement Agreement is knowing exactly what must be done to achieve substantial compliance, understanding what elements of their obligations will be audited and how those audits will be conducted, and having their obligations described specifically and clearly enough to have their compliance accurately and objectively measured. 2. Definitions:
A. Backsliding: For purposes of this Agreement, backsliding is defined as deviations from Defendants’ obligations that are sufficiently significant that, had those deviations been found at the time substantial compliance originally was determined as to that domain, the deviations would have prevented a finding of substantial compliance as to that domain.
B. Bernalillo County jail system: As used in this document, Bernalillo County jail system refers to every adult detention facility owned or operated by the County of Bernalillo or a contractor of the County within Bernalillo County; as well as those detainees who are a part of the County’s Community Custody Program. Bernalillo County jail system does not refer to inmates who are housed in a facility that is neither
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owned nor operated by the County or a contractor of the County. Adult detention facility does not include a facility that is licensed as a treatment facility even if it is a locked facility.
C. Substantial Compliance: As used in this Settlement Agreement, “substantial compliance” means that Defendants generally are in compliance with the terms of the substantive requirements listed in the Check-Out Audit Agreements. Incidents of non-compliance do not necessarily prevent a finding of substantial compliance. The determination of substantial compliance will take into account the extent to which exceptions to compliance are sporadic or isolated in nature, are unintentional, are the temporary result of actions by MDC inmates and are promptly and properly addressed by corrective action and, where appropriate, disciplinary action against staff members responsible for the exception to compliance. In no event will a determination of substantial compliance be made if exceptions to compliance are the result of willful or intentional actions by Defendants.
1) Initial Finding of Substantial Compliance: Once the Defendants believe that they have sufficient evidence to demonstrate substantial compliance in a particular domain, the Defendants may move the Court for an initial finding of substantial compliance. 2) Sustained Compliance: Substantial compliance for a period of time determined sufficient by the Court to demonstrate that a durable remedy is in place. The time period for
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substantial compliance may vary by domain. D. Check Out Audit: The Check Out Audit will occur at the end of the period set for sustained compliance for any given domain. E. Domain: A domain refers to a unit of this case as set forth below in Paragraph 9. F. Subcategory: Subcategory refers to the discrete requirements listed in the Check-Out Audit Agreements. 3. Defendants will ensure that the population at the Bernalillo County Metropolitan Detention Center, located at 100 Deputy Dean Miera, Dr. SW (hereinafter “MDC”), remains at or under 1,950. The mechanisms by which the County will keep the population at or below 1,950 are set out in the Stipulated Order Setting Population Capacity for the Bernalillo County Metropolitan Detention Center [Doc. No. __]. 4. Initial Finding of Substantial Compliance: A. The parties agree that once the Defendants believe that they have sufficient evidence to demonstrate substantial compliance in a particular domain the Defendants may move the Court for a finding of initial substantial compliance. B. The parties agree that the Court will determine whether the record supports a finding of initial substantial compliance with respect to each domain of the applicable Check-Out Audit Agreements based on the experts’ reports and other evidence presented by the parties. If the Court requires additional information in order to make his or her recommended findings, the Court will provide guidance to the appropriate expert
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as to what additional information is required. If the Court finds that there is an area in non-compliance, the Court, in consultation with the appropriate expert, will direct Defendants as to what must be accomplished to achieve initial substantial compliance.
C. When making the determination of initial substantial compliance, the Court will also determine the date upon which initial substantial compliance began as to each domain.
5. Sustained Substantial Compliance: A. After the Court has determined Defendants have achieved initial
substantial compliance, the Court will set a period of self-monitoring for each domain which the Court determines is a sufficient period to reach sustained substantial compliance based upon the complexity of the domain, the date when initial substantial compliance began as well as any other factors determined by the Court.
B. The Court-appointed experts in each area, in conjunction with Defendants, will develop self-monitoring protocols. These protocols will require:
1) that data regarding each of the subcategories set forth in the CheckOut Audit Agreements be collected and analyzed; 2) that MDC and/or the medical contractor staff will collect the data regarding the subcategories set forth in the Check-Out Audit Agreements and issue a preliminary analysis of each subcategory; 3) that the current Court-appointed experts or an expert determined by the Court’s expert to be qualified by training, experience, and education
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in the appropriate subject matter area will review the data collected on each subcategory and the preliminary analysis; conduct, or require the MDC and/or medical contractor staff to conduct, any additional factgathering that is necessary; and provide a written analysis of whether County Defendants are substantially complying with each of the substantive requirements set forth in the applicable Check-Out Audit Agreement; 4) that, if the expert determines that County Defendants are not in substantial compliance with a particular subcategory, the expert will provide a recommendation for corrective action; 5) that MDC and/or the medical contractor implement the corrective action recommended by the expert or will achieve substantial compliance through alternative action acceptable to the expert; C. During the period of self-monitoring for each domain, Defendants will submit quarterly reports to the expert for that domain, and to counsel for Plaintiff and Plaintiff-Intervenors as to Defendants’ continued substantial compliance with each particular domain. The quarterly reports will contain sufficient data for the expert for that domain to determine whether County Defendants remain in compliance with each of the subcategories listed under the domain. D. During the period of self-monitoring for each domain, counsel for
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Plaintiffs and Plaintiff-Intervenors only will be compensated for monitoring in that domain as follows: (1) for reviewing Defendants’ self-monitoring reports and providing feedback to the Defendants and their counsel regarding whether the Defendants are in compliance with the provisions of the self-monitoring agreement, (2) for previously agreed upon participation in expert site visits and reviewing and commenting on reports during the Check Out Audits, and (3) for receiving complaints from an individual class member or sub class member with respect to an allegation rising to the level of risk of irreparable harm and conveying any concerns to Defendants’ counsel. 6. The parties agree that at end of the period established for self-monitoring, the Court’s experts will conduct Check-Out Audits as to each domain and make a finding of compliance, partial compliance, or non-compliance with the substantive requirements of the Check-Out Audit Agreements listed below.
A. Check-Out Audit Agreement No. 1 covers the provision of all medical services, but not including the provision of mental health services. Check-Out Audit Agreement No. 1 is attached as Exhibit 1 to this Settlement Agreement. The parties understand and agree that the terms and conditions set forth in Check-Out Audit Agreement No. 1 are incorporated into this Settlement Agreement.
B. Check-Out Audit Agreement No. 2 covers all mental health services, but does not including the provision of medical services. Check-Out Audit Agreement No. 2 is attached as Exhibit 2 to this Settlement Agreement. The parties understand and agree that the terms and conditions set forth in Check-Out Audit Agreement No. 2 are
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incorporated into this Settlement Agreement. C. Check-Out Audit Agreement No. 3 covers all conditions of confinement
except for the provision of medical and mental health services. Check-Out Audit Agreement No. 3 is attached as Exhibit 3 to this Settlement Agreement. The parties understand and agree that the terms and conditions set forth in Check-Out Audit Agreement No. 3 are incorporated into this Settlement Agreement. Check- Out Audit Agreement No. 3 covers Jail Operations Groups A and B, as well as population management, housing and segregation, sexual misconduct, and use of force and internal investigations.
D. In the performance of their check-out audits, the Court’s experts will submit proposed findings of fact with respect to each subcategory of the applicable Check-Out Audit Agreements. 7. If a Check-Out Audit reflects that a domain has not remained in sustained substantial compliance (due to failure to comply with the substantive requirements set forth in the Check-Out Audit Agreements or due to backsliding), Defendants will have a period of 90 days to cure that deficiency. If Defendants determine that more than 90 days are required to correct the deficiency, Defendants will inform the Court of the reasons for the need to exceed 90 days and the amount of time necessary to correct the deficiency. 8. Based upon the Defendants’ self-monitoring reports as well as the experts’ proposed findings at the Check-Out Audits, the Court will determine whether the record supports a finding of sustained substantial compliance as to each domain. If the Court determines there is
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not sustained substantial compliance, the Court will set an additional period for self-monitoring. At the conclusion of the additional period of self-monitoring, the expert for that domain will conduct another Check-Out Audit.
9. Parties agree for incremental vacation of orders regarding particular as follows: A. Domain 1: Mental Health Services, set forth in Check-Out Audit
Agreement No.1. B. Domain 2: Medical Services, set forth in Check-Out Audit Agreement No.
2. C. Domain 3: Group A of Jail Operations, set forth in Check-Out Audit
Agreement No. 3. D. Domain 4: Group B of Jail Operations, set forth in Check-Out Audit
Agreement No. 3. E. Domain 5: Population management, set forth in Check-Out Audit
Agreement No. 3. F. Domain 6: Housing and segregation, set forth in Check-Out Audit
Agreement No. 3. G. Domain 7: Sexual misconduct, set forth in Check-Out Audit Agreement
No. 3. H. Domain 8: Use of force by security staff and internal investigation, set
forth in Check-Out Audit Agreement No. 3. 10. The parties agree that after the Court makes a finding of sustained substantial
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compliance as to a particular domain as listed above, all provisions of extant orders related to that domain will be vacated.
11. If Plaintiffs or Plaintiff-Intervenors believe that the Defendants have engaged in backsliding as to a domain that was previously vacated, they may move the Court to re-engage oversight over that particular domain.
12. The Court will grant a motion to re-engage oversight over a domain only where Plaintiffs and/or Plaintiff-Intervenors have established by a preponderance of the evidence that Defendants engaged in backsliding with regards to the requirements of the Check Out Audit Agreement applicable to the domain at issue.
13. Dismissal: The parties agree that this lawsuit with all extant orders except for the Stipulated Order Setting Population Capacity for the Bernalillo County Metropolitan Detention Center [Doc. No. ] will be vacated and all claims dismissed with prejudice after the Court finds that Defendants have demonstrated sustained substantial compliance for each and every domain. If Defendants have demonstrated sustained substantial compliance for each domain listed in the Check Out Audit Agreements, Plaintiffs and Plaintiffs-Intervenors agree to move the Court for dismissal of all claims with prejudice. The Stipulated Order Setting Population Capacity for the Bernalillo County Metropolitan Detention Center [Doc. No. __] will remain in effect after the dismissal of this action and any violation of that Order can result in enforcement actions before this Court.
14. If Defendants invoke emergency circumstances to take action that departs from what would otherwise be the requirements of this Settlement Agreement, Defendants will
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immediately notify the Court, the experts, Plaintiffs’ counsel, and Plaintiff-Intervenors’ counsel of the following:
A. The emergency circumstances relied upon; B. The corresponding action taken; C. What Defendants believe will be the duration of such circumstances and
such action; and D. The steps Defendants are taking to attempt to limit the duration of such
action to as short a term as practicable. 15. For purposes of this Settlement Agreement, an emergency is defined as a circumstance caused by a riot, fire, or similar event not caused intentionally by Defendants, their agents or employees, that makes compliance with the provisions of this Settlement Agreement temporarily impossible, extraordinarily difficult, or infeasible. Construction delays or labor disputes not caused intentionally or reasonably anticipated by Defendants may constitute an emergency, but legislative, executive, or administrative policy decisions not to appropriate funds or allocate resources to MDC and its operation will not justify the declaration of an emergency. Legislative decisions regarding sentencing will not justify declaration of an emergency. 16. Prior to dismissal of this action and pursuant to the terms of this Settlement Agreement, the parties agree that they will jointly request that the District Court enter a permanent injunction pertaining to the Bernalillo County jail system. Because of County Defendants’ population management initiatives, the parties recognize and agree that County Defendants have not engaged in a number of the following practices for a significant period of
11

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time. However, County Defendants cannot anticipate future fluctuations in the population. Accordingly, the injunction will have the following provisions: (a) The population of the Metropolitan Detention Center will be limited to the operational capacity of the MDC, which as of the date of this document is at 1950, which will be determined by the operations expert and reviewed from time to time but no less than every six months based on factors which include design capacity, staffing levels, the impact of inmate classification on inmate segregation numbers, and other factors to be mutually agreed to in writing by the parties; (b) no inmates will be triple celled, unless the facility is designed for triple celling; (c) no inmates will sleep in dayrooms or in other areas not designed for sleeping, except in the detoxification units; (d) defendants will not double cell any inmates requiring segregation who are high-risk or security threats with any other inmates, unless those inmates have been determined to be compatible. Segregated inmates who are in protective custody or new intakes may be double celled if they have been determined to be low risk and compatible using a reliable objective classification tool; (e) defendants will not house inmates who have not yet been classified with inmates who require segregation. The permanent injunction will include stipulated findings that it is narrowly drawn; extends no further than necessary to correct violations of the federal rights of class members; is the least intrusive means necessary to correct violations of the federal rights of class members; and will have no adverse impact on the public safety or the operation of the criminal justice system. Two years after the Court enters the permanent injunction, the County Defendants will reacquire the right to file motions under the Prison Litigation Reform Act.
17. Any future contempt motions by either Plaintiffs or Plaintiff-Intervenors must be 12

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filed on a timely basis, after mediation, and be based on the requirements of this Agreement and the substantive requirements set forth in the Check-Out Audit Agreements.
18. This Settlement Agreement will not be admissible as evidence in any proceeding or trial other than for the sole and limited purpose of enforcement of the Agreement.
19. The parties do not intend to create in any non-party the status of a third-party beneficiary. This Settlement Agreement will not be construed so as to create a private right of action to any non-party against the Defendants. The rights, duties, and obligations contained in this Settlement Agreement will only bind the parties to this Settlement Agreement.
20. The parties stipulate and agree that the United States District Court will retain jurisdiction for purposes of enforcing this Settlement Agreement.
21. This Settlement Agreement will be submitted to the Court for its review and approval pursuant to Rule 23 of the Federal Rules of Civil Procedure.
22. Plaintiffs, Plaintiff-Intervenors, and Defendants agree to cooperate regarding any fairness or other hearings that are required by the United States District Court in order to facilitate the dismissal of Plaintiffs’ and Plaintiff-Intervenors’ claims.
23. This Settlement Agreement will not have any force and effect until such time as it has been approved by the Board of County Commissioners of Bernalillo County in an open meeting.
24. If this Settlement Agreement is not approved in its entirety by the United States District Court, then this Settlement Agreement will be null and void.
25. This Settlement Agreement is a document which all parties have negotiated and 13

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drafted. Since all parties participated equally in drafting its terms, the general rule of construction interpreting a document against the drafter will not be applied in future interpretation of this Settlement Agreement.
26. Any request for a modification of this Settlement Agreement will be mediated by the U.S. Magistrate Judge or Special Master Alan C. Torgerson before it is submitted to the United States District Court for consideration.
27. Any claimed breach of this Settlement Agreement will be mediated by the U.S. Magistrate Judge or Special Master Alan C. Torgerson before it is submitted to the United States District Court for consideration.
28. This Settlement Agreement is narrowly drawn; extends no further than necessary to correct violations of the federal rights of class members; is the least intrusive means necessary to correct violations of the federal rights of class members; and will have no adverse impact on the public safety or the operation of the criminal justice system. Two years after the Court enters this Settlement Agreement, the County Defendants will reacquire the right to file motions under the Prison Litigation Reform Act. IT IS SO ORDERED.
______________________________ The Honorable James A. Parker SENIOR UNITED STATES DISTRICT JUDGE
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APPROVED:
___________________________ Randy Autio Attorney for County Defendants
___________________________ Mark Baker Attorney for Plaintiffs
_________________________ Mark H. Donatelli Attorney for Plaintiffs
_________________________ Zachary A. Ives Attorney for Plaintiffs
_________________________ The Honorable Alan Torgerson Special Master

___________________________ Luis Robles Marcus J. Rael, Jr. Attorney for County Defendants
____________________________ Jeffrey L. Baker Attorney for County Defendants
__________________________ Peter Cubra Attorney for Plaintiff-Intervenors
__________________________ Nancy L. Simmons Attorney for Plaintiff-Intervenors
_________________________ Julie Morgas Baca Bernalillo County Manager

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Case 6:95-cv-00024-JAP-KBM Document 1213-2 Filed 03/22/16 Page 1 of 8

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

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
vs. CITY OF ALBUQUERQUE, et al.,
Defendants. vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

No. CV 95-24 JAP/KBM

CHECK-OUT AUDIT AGREEMENT No. 1: THE PROVISION OF MEDICAL SERVICES AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER 1. The subcategories covered in Check-Out Audit Agreement No. 1 (hereinafter referred to as the “Agreement”) include the provision of all medical services, but does not include the provision of mental health services or conditions of confinement. 2. This Agreement provides definitive, specific, and measurable tasks to be accomplished in order to achieve substantial compliance. 3. With respect to the provision of medical services, this Agreement is comprehensive. Thus, the parties understand and agree that this Agreement incorporates (but

Case 6:95-cv-00024-JAP-KBM Document 1213-2 Filed 03/22/16 Page 2 of 8
does not supersede) all extant orders and agreements. The expert’s review will be governed solely by the Settlement Agreement and this Check-Out Audit Agreement.
4. This Agreement sets forth, area by area, the scope of the check-out audit for the provision of medical services only.
5. The parties agree that the Court’s medical expert will review the provision of medical services at MDC as set forth in paragraph 6 of this Agreement.
6. The Court’s medical expert will make findings of fact which address the subcategories listed below:
A. Whether MDC’s provision of medical services complies with MDC’s medical policies and procedures;
B. Whether MDC is in compliance with the advisory standards set forth in the American Correctional Association’s Standards for Adult Detention Centers;
C. Whether MDC has made and is making good faith efforts to comply with the advisory Guidelines of the National Commission on Correctional Health Care;
D. Whether MDC is conducting and completing a history and physical exam of each inmate in a timely manner, i.e., within 72 hours for inmates with serious medical needs identified at booking and no later than 14 days otherwise;
E. Whether MDC inmates who complain orally or in writing of serious acute illness or serious injury are given immediate medical attention;
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F. Whether all inmate requests for medical care are timely communicated to medical personnel for appropriate treatment.
G. Whether MDC has made necessary revisions to existing policies, procedures and practices for any deficiencies identified by MDC or the monitors regarding the provision of timely access to appropriate medical care and is following the revised policies, procedures and practices.
H. MDC’s Quality Improvement Process: 1) Whether MDC operates an adequate Quality
Assurance/Improvement system regarding medical care, its medical and health care policies and procedures, including but not limited to those identified in NCCHC standards and MDC policy and has implemented appropriate corrective action;
2) Whether MDC has a committee that reviews individual and system data about triggers and thresholds, and determines whether these data indicate trends either for individuals or for the adequacy of treatment overall;
3) Whether MDC’s Quality Improvement Committee conducts analyses of the medical and health care processes and makes recommendations on changes and corrective actions;
a. Provides oversight of the implementation of medical policies, procedures, guidelines and support plans;
3

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b. Reviews policies, training, and staffing levels; c. Monitors implementation of recommendations and corrective actions; d. Reports its findings and recommendations to appropriate County officials periodically; and e. Refers appropriate incidents to the Morbidity/Mortality Committee for review, as necessary. 7. Constitutionally adequate medical care A. Whether the medical care provided by MDC to its inmates evidences repeated examples of negligent acts, which disclose a pattern of conduct by MDC medical staff; B. Whether the examples of negligent acts disclose a pattern of conduct by MDC medical staff that effectively denies inmates access to adequate medical care; C. Whether there are systematic and gross deficiencies in staffing, facilities, equipment, or procedures; and D. Whether the systematic and gross deficiencies effectively deny the inmate population access to adequate medical care. 8. Americans with Disabilities Act A. Whether adequate communication occurs between MDC administration and treating health care professionals regarding an inmate's significant health needs that must be considered in classification decisions in order to preserve the health and safety of
4

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that inmate, other inmates, or staff; 1) Whether MDC security staff is advised of inmates' special medical
needs that may affect housing, work, program assignments, disciplinary measures, and admissions to and transfers from institutions.
2) Whether health care and security staff communicate about inmates with special needs conditions. B. Whether MDC follows a proactive program which provides care for special needs patients who require close medical supervision or multidisciplinary care.
1) Whether individual treatment plans are developed by a physician or other qualified clinician at the time the condition is identified and updated when warranted.
2) Whether the treatment plan includes, at a minimum: a. The frequency of follow-up for medical evaluation and
adjustment of treatment modality; b. The type and frequency of diagnostic testing and
therapeutic regimens; and c. When appropriate, instructions about diet, exercise,
adaptation to the correctional environment, and medication. C. Whether medical and dental orthoses, prostheses, and other aids to impairment are supplied in a timely manner when the health of the inmate would otherwise be adversely affected, as determined by the responsible physician or dentist.
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1) Whether health records confirm that patients receive prescribed aids to impairment.
2) Where the use of specific aids to impairment is contraindicated for security reasons, whether alternatives are considered so the health needs of the inmate are met. D. Whether the medical care provided to subclass members is adequate and whether the medical care provided to sub class members is at least equivalent in quality to the medical care provided to others; E. Regarding inmates who are qualified individuals with disabilities under the ADA, whether the Defendants have made modifications to their policies, procedures and practices that are necessary to provide to inmates with disabilities with medical care which is equivalent in quality to the care provided to inmates without disabilities. 9. The Court’s medical expert will conduct the check-out audit for the provision of medical services after (i) the Court makes an initial finding that defendants are in substantial compliance for all subcategories pertaining to medical care and (ii) defendants’ self-monitoring demonstrates substantial compliance for a period determined by the Court. After review of Defendants’ self-monitoring and subsequent Check-Out Audit, The Court’s medical expert will make findings regarding compliance, partial compliance or non-compliance and submit a copy of his or her proposed findings to the Court and provide copies to all counsel. The Court will then make a finding as to whether Defendants are in sustained substantial compliance with the provisions of the Check-Out Audit Agreement.
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10. If the Check-Out Audit reflects that the domain is not in sustained substantial compliance (due to failure to accomplish the tasks described in this Agreement), the Court’s medical expert will identify the deficiency and provide Defendants with specific corrective action which Defendants must take to obtain substantial compliance. Defendants may propose alternative remedial action to obtain substantial compliance which must be approved by the Court’s medical expert. Defendants will have a period of 90 days to cure the deficiency, unless Defendants provide notice that more time is needed, as set forth in the Settlement Agreement.
11. If the Court determines that the domain is not in sustained substantial compliance, the Court will set an additional period for self-monitoring, after which the Court’s medical expert will conduct another Check-Out Audit.
12. The parties understand and agree that the terms and conditions set forth in the Settlement Agreement to which this Agreement is attached are incorporated herein.
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IT IS SO ORDERED.

APPROVED:

______________________________ The Honorable James A. Parker SENIOR UNITED STATES DISTRICT JUDGE

___________________________ Randy Autio Attorney for County Defendants
___________________________ Mark Baker Attorney for Plaintiffs
_________________________ Mark H. Donatelli Attorney for Plaintiffs
_________________________ Zachary A. Ives Attorney for Plaintiffs

___________________________ Luis Robles Marcus J. Rael, Jr. Attorney for County Defendants
____________________________ Jeffrey L. Baker Attorney for County Defendants
__________________________ Peter Cubra Attorney for Plaintiff-Intervenors
__________________________ Nancy L. Simmons Attorney for Plaintiff-Intervenors

_________________________ The Honorable Alan Torgerson Special Master

_________________________ Julie Morgas Baca Bernalillo County Manager
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Case 6:95-cv-00024-JAP-KBM Document 1213-3 Filed 03/22/16 Page 1 of 24

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

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
vs.
CITY OF ALBUQUERQUE, et al., Defendants.
vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

No. CV 95-24 JAP/KBM

CHECK-OUT AUDIT AGREEMENT No. 2: THE PROVISION OF MENTAL HEALTH SERVICES AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER 1. The subcategories covered in Check-Out Audit Agreement No. 2 (hereinafter
referred to as the “Agreement”) include the provision of all mental health services, but does not
include the provision of medical services or conditions of confinement.
2. This Agreement provides definitive, specific, and measurable tasks to be
accomplished in order to achieve substantial compliance.
3. With respect to the provision of mental health services, this Agreement is

Case 6:95-cv-00024-JAP-KBM Document 1213-3 Filed 03/22/16 Page 2 of 24
comprehensive. Thus, the parties understand and agree that this Agreement incorporates (but does not supersede) all extant orders and agreements. The expert’s review will be governed solely by the Settlement Agreement and this Check-Out Audit Agreement.
4. This Agreement sets forth, area by area, the scope of the check-out audit for the provision of mental health care only.
5. The parties agree that the Court’s mental health expert, will review the provision of mental health services at MDC as set forth in paragraph 6 of this Agreement.
6. The Court’s mental health expert will make findings of fact which address the subcategories below:
A. Screening and Assessment 1) Whether MDC has developed and implemented policies and procedures for appropriate screening and assessments of inmates with serious mental health needs. 2) Whether MDC has developed and implemented an appropriate screening instrument that identifies mental health needs and ensures timely access to a mental health professional when inmates present symptoms requiring such care. 3) Whether MDC screens all inmates with Qualified Medical Staff upon booking at MDC, but no later than four (4) hours after booking, to identify the inmate’s risk for suicide or self-injurious behavior. 2

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4) Whether MDC’s Qualified Medical Staff conducting intake screening receive adequate training on identifying and assessing suicide risk, are assigned appropriate tasks and guidance, and properly conduct intake screening.
5) Whether MDC Qualified Medical Staff, based on the screening, develop and implement an acuity system or triage scheme (P1, P2, or P3) to ensure that inmates with immediate mental health needs are prioritized for services.
6) Whether MDC provides “sufficient psychiatric services to assure that a psychiatrist will evaluate no later than the business day after a resident’s admission, any resident who: (1) reports being on any psychoactive medication when taken into custody, (2) requests any psychoactive medication or other psychiatric service, or (3) has been identified by any mental health or health professional at the jail as appropriate for a psychiatric assessment. [Doc. No. 256, III(C)(1-3)]. a. Whether MDC provides adequate and timely psychiatric services to assess any inmate who: (1) reports being on any psychiatric medication when taken into custody; (2) requests any psychiatric medication or other 3

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psychiatric service; or (3) has been identified by any mental health or health
professional at the jail as appropriate for a psychiatric assessment. b. Whether a psychiatrist assesses (no later than the business day after an inmate’s admission) any inmate who: (1) reports being on any psychiatric medication when taken into custody; (2) requests any psychiatric medication or other psychiatric service; or (3) has been identified by any mental health or health professional at the jail as appropriate for a psychiatric assessment. 7) Whether MDC implements policies and procedures, commensurate with the level of risk of suicide or self-harm, that ensure that inmates are protected from identifiable risks for suicide or selfinjurious behavior. 8) Whether MDC’s policies and procedures require that a Qualified Mental Health Professional performs a mental health assessment within the prescribed period of time, based on the inmate’s risk. 9) Whether MDC security staff monitors inmates who are presumed
4

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to be of moderate or high risk of suicide or self-harm with constant supervision until the inmate is seen by a Qualified Mental Health Professional for assessment, and thereafter on the schedule chosen by the Mental Health Professional. 10) Whether MDC conducts appropriate mental health assessments within the following periods from the initial screen: a. 14 days, or sooner, if medically necessary, for inmates
classified as low risk (P3); b. 8 hours, or sooner, if medically necessary, for inmates
classified as moderate risk (P2); and c. Immediately, but no later than four hours, for inmates
classified as high risk (P1). 11) Whether MDC ensures that mental health assessments include the
assessment factors described below: a. Intake screening shall inquire as to the following:
(1) Current mental health conditions; (2) Current psychiatric medications; (3) Current suicidal ideation, threat, or plan; (4) Past suicidal ideation and/or attempts; (5) Prior mental health treatment or hospitalization; (6) Recent significant loss - such as the death of a
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family member or close friend; (7) History of suicidal behavior by family members and
close friends; (8) Any reported observations of the transporting
officer, court, transferring agency, or similar individuals regarding the inmate’s potential suicidal risk. 12) Whether MDC Qualified Mental Health Professionals complete all assessments, pursuant to generally accepted correctional standards of care. 13) Whether MDC Qualified Mental Health Professionals perform inperson mental health assessments no later than one working day following notification of any adverse triggering event (i.e., any suicide attempt, any suicide ideation, and any aggression to selfresulting in injury). 14) Whether MDC Mental Health Staff conduct in-person assessments of inmates before placing them on suicide watch, clinical seclusion, or segregation and on regular intervals thereafter, as clinically appropriate and defined by MDC policy. 15) Whether MDC houses seriously mentally ill inmates in general population without a written evaluation. [Doc. No. 106, p. 15].
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16) Whether MDC notifies its inmates, orally and in writing, that MDC provides mental health services. [Doc. No. 256, III(F)(3)].
17) Whether MDC notifies all residents of any area intended to provide mental health services, orally and in writing, of their rights and of the methods available to initiate a grievance regarding the possible violation of their rights. [Doc. No. 256, III(F)(3)].
B. Treatment Plan 1) Whether Defendants provide treatment plans consistent with prevailing professional standards for those inmates requiring a treatment plan. a. Whether treatment plans for inmates in specialized mental health units are designed by an appropriate treatment team; and b. Whether the plans are reviewed periodically, ordinarily at least every 90 days, and at the request of the resident. 2) Whether MDC’s policies and procedures ensure that adequate and timely treatment for inmates are continued and further developed for inmates whose assessments reveal serious mental health needs and/or suicidal ideation, including timely and appropriate referrals for specialty care and visits with Qualified Mental Health Professionals, as clinically appropriate. [Doc. No. 256, III(I)]. 7

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3) Whether MDC’s treatment plans adequately address inmates’ serious mental health needs and whether the plans contain interventions specifically tailored to the inmates’ diagnoses and problems. [Doc. No. 256, III(I)].
4) Whether MDC makes available appropriate therapy services by a licensed mental health provider where medically necessary for inmates with serious mental health needs as ordered by their attending psychiatrist.
5) Whether MDC completes mental health evaluations as part of the disciplinary process and can demonstrate that the hearing officer incorporates those recommendations into the disciplinary process for determining whether an inmate’s actions should be excused and, if not, for mitigation of sanctions if the inmate’s behaviors were a result of a mental or developmental disability. [Doc. No. 256, IV(A)(1)].
6) Whether MDC implemented an adequate scheduling system to ensure that mental health professionals assess inmates with mental illness as clinically appropriate, regardless of whether the inmate is prescribed medications. [Doc. No. 256, III(I)].
7) Whether MDC inmates have the opportunity to participate meaningfully in the development of a treatment plan. [Doc. No. 8

Case 6:95-cv-00024-JAP-KBM Document 1213-3 Filed 03/22/16 Page 9 of 24
256, III(I)]. 8) Whether MDC inmates receive appropriate psychotropic
medications in a timely manner. 9) Whether MDC’s use of psychotropic medications is reviewed by a
Qualified Mental Health Professional on a regular, timely basis. 10) Whether MDC properly monitors and timely adjusts medications. 11) Whether MDC has established standards for the frequency of
review and associated charting of psychotropic medication. 12) Whether a psychiatrist personally assesses every MDC inmate on
psychiatric medication at least once every thirty (days. [Doc. No. 256, III(C)]. a. With what frequency should a psychiatrist personally
assess every MDC inmate on psychiatric medication who is not seriously mentally ill. b. With what frequency should a psychiatrist personally assess every seriously mentally ill inmate. 13) Whether MDC’s treatment of suicidal inmates involves more than segregation and close supervision (i.e., providing psychiatric therapy, regular counseling sessions, and follow-up care). 14) Whether MDC has housed MDC inmates on the PSU caseload outside of the MDC facility when the inmate has not requested the
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placement. 15) Whether MDC has housed MDC inmates on the PSU caseload,
without the approval of a psychiatrist or psychologist. [Doc. No. 256, IV(A)]. 16) Whether Defendants have developed and implemented adequate formal procedures for seeking psychiatric hospitalization or other appropriate residential mental health care for residents who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement; whether Defendants established formal policies and procedures requiring the initiation of civil commitment proceedings whenever an individual diagnosed as having a mental or developmental disorder requests placement in a residential treatment or evaluation facility, assuming the court imposed conditions of confinement are consistent with such placement; and whether only a licensed and qualified psychiatrist makes the decision not to initiate civil commitment proceedings on behalf of any resident who requests placement in a psychiatric hospital or other residential treatment or evaluation facility. 17) Whether Defendants have developed and implemented adequate formal procedures for seeking psychiatric hospitalization or other
10

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appropriate residential mental health care for inmates who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement. [Doc. No. 256, III(M)]. a. Whether MDC has sent an inmate to a psychiatric hospital
or other appropriate residential mental health care for inmates who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement. b. Whether MDC has the realistic option of sending an inmate to a psychiatric hospital or other appropriate residential mental health care for inmates who need and would benefit from such care, and who are eligible for such placement, consistent with the court imposed conditions of their confinement. C. Suicide Precautions 1) Whether MDC’s suicide prevention policies, procedures, and practices include provisions for constant direct supervision of actively suicidal inmates, close supervision of special needs inmates with lower levels of risk (e.g., 15 minute checks), and follow-up assessments after the suicide watch is discontinued.
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2) Whether MDC inmates on suicide watch are monitored by security with constant direct supervision until a Qualified Mental Health Professional conducts a suicide risk assessment, determines the degree of risk, and specifies the appropriate degree of supervision.
3) Whether MDC security staff provide the amount of supervision specified by a Qualified Mental Health Professional and accurately document their well-being checks on forms that do not have preprinted times.
4) Whether MDC follows its policy of having a psychiatrist or psychologist evaluate all inmates placed on suicide precautions before they are removed from suicide watch, and whether MDC assures that its policies are followed.
5) Whether MDC conducts all follow-up assessments on all inmates discharged from suicide watch.
6) Whether MDC’s policies and procedures for suicide precautions set forth the conditions of the suicide watch, including a policy requiring an individual clinical determination of allowable clothing, property, and utensils.
7) Whether MDC’s policies and procedures for suicide precautions prohibit a revision of the conditions of suicide watch except upon the written instruction of a Qualified Mental Health Professional, 12

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under emergent circumstances, or when security considerations require. 8) Whether MDC has developed and implemented appropriate policies for the housing of suicidal inmates. 9) Whether MDC assures that its policies and procedures in paragraphs 1-8 are followed. D. Suicide Prevention Training Program 1) Whether MDC’s suicide prevention training program includes the following topics: a. suicide prevention policies and procedures; b. analysis of facility environments and why they may
contribute to suicidal behavior; c. potential predisposing factors to suicide; d. high-risk suicide periods; e. warning signs and symptoms of suicidal behavior; f. case studies of recent suicides and serious suicide attempts; g. differentiating suicidal and self-injurious behavior; h. mock demonstrations regarding the proper response to a
suicide attempt; and i. the proper use of emergency equipment. 2) Whether all medical and mental health staffs are trained on the
13

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suicide screening portion of the mental health intake form and medical intake tool. 3) Whether all MDC staff who work directly with inmates have demonstrated competence in identifying and managing suicidal inmates and have shown comprehension of the training objectives via a performance measure tool such as a pre-and post-test. 4) Whether all security, medical, and mental health staff complete a minimum of four hours of in-service training annually regarding issues related to suicide prevention, to include training on updated policies, procedures, and techniques. 5) Whether all MDC security staff is certified in cardiopulmonary resuscitation. 6) Whether an emergency rescue tool is in close proximity to all housing units. 7) Whether all staff coming into regular contact with inmates knows the location of the emergency rescue tool and are trained in its use. E. Use of Clinical Restraints 1) Whether MDC policy requires written approval by a Qualified Medical or Mental Health Professional before the use of four point restraints on inmates with mental health needs or requiring suicide precautions, unless emergency security concerns dictate otherwise.
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[Doc. No. 256, III (N)&(I)]. 2) Whether the MDC policy requires restrained inmates with mental
health needs are monitored at least every 15 minutes by security staff to assess their physical condition. [Doc. No. 256, III (N)&(I)]. 3) Whether the MDC policy requires Qualified Medical or Mental Health staff to complete documentation on the use of restraints, including the basis for and duration of the use of restraints and the performance and results of welfare checks on such restrained inmates. [Doc. No. 256, III (N)&(I)]. 4) Whether MDC follows its clinical restraint policies. [Doc. No. 256, III (N)&(I)]. F. Use of Security Four Point Restraints 1) Whether MDC ensures that, in the event an emergency results in a four point restraint of an individual identified as having a psychiatric, neuropsychological or developmental disorder, a Qualified Mental Health professional is notified immediately and personally assesses the appropriateness of the restraint and designs a plan to safely end the restraint as soon as possible. G. Basic Mental Health Training 1) Whether MDC provides adequate pre-service and annual in-service basic training to Qualified Medical and Mental Health Staff and
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security staff that addresses mental health needs. MDC will provide no less than forty (40) hours of specialized training. [Doc. No. 256, III (L)]. 2) Whether MDC provides adequate specialized training for all security staff working on specialized mental health units. H. Mental Health Staffing 1) Whether the caseload for psychiatrists treating MDC inmates exceeds 100 residents per FTE. [Doc. No. 256, III(C)]. a. What caseload allows psychiatrists treating MDC inmates
to provide for adequate access to psychiatric care for inmates in need of such treatment. b. Whether the current caseload for psychiatrists treating inmates provides for adequate access to psychiatric care for inmates in need of such treatment. 2) Whether MDC’s mental health staffing is sufficient to provide all safety precautions (referencing suicide prevention and planned use of force), treatment, and services required by the Court’s orders. 3) Whether MDC provides adequate care for inmates’ serious mental health needs. 4) Whether MDC’s mental health staffing is sufficient to provide adequate care for inmates’ serious mental health needs, consistent
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with generally accepted correctional mental health standards of care. 5) Whether MDC annually reviews staffing patterns based on data of time frames in which staff have completed necessary functions such as response to sick call requests, initial assessments, follow up contacts, and other essential clinical processes during the past year. 6) Whether there is evidence that MDC addressed staffing needs whenever new programming was initiated. I. Quality Assurance/Improvement [Doc. No. 256, III(K)]. 1) Whether MDC developed and implemented policies and procedures that create an adequate quality management system to review suicide and self-injurious behaviors, morbidity and mortality and implementation of its mental health policies and procedures and implemented appropriate corrective action to prevent or minimize future harm to inmates. 2) Whether MDC developed and implemented a Suicide Prevention Committee that reviews individual and system data about triggers and thresholds, and determines whether these data indicate trends either for individuals or for the adequacy of treatment and suicide prevention overall.
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3) Whether MDC’s Quality Improvement Committee: a. Includes the Medical Director, the Psychiatric and Behavioral Health Directors, related clinical disciplines, Jail Director or the Assistant Chief of Operations, and the Health Services Administrator; b. Conducts analyses of the mental health processes and makes recommendations on changes and corrective actions; c. Provides oversight of the implementation of mental health policies, procedures, guidelines and support plans; d. Reviews policies, training, and staffing levels; e. Monitors implementation of recommendations and corrective actions; f. Reports its findings and recommendations to appropriate County officials periodically; and g. Refers appropriate incidents to the Morbidity/Mortality Committee for review, as necessary.
4) Whether MDC’s Morbidity/Mortality Committee reviews suicides, serious suicide attempts, all other deaths of people committed to the custody of the MDC, and other sentinel events occurring at MDC in order to improve care on a jail-wide basis. a. Whether MDC’s Morbidity and Mortality Review 18

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Committee conducts an interdisciplinary review, consisting of members of the correctional, medical, and mental health staffs, of all deaths of people housed at MDC, serious suicide attempts and other sentinel events; b. Whether MDC’s Morbidity and Mortality Review Committee’s inquiry includes: (1) circumstances surrounding the incident; (2) facility procedures relevant to the incident; c. All relevant training received by involved staff; d. Pertinent medical and mental health services/reports involving the victim; e. Possible precipitating factors leading to the event; f. Recommendations, if any, for changes to policy, training, physical plant, medical or mental health services, and operational procedures; and g. Tracking of whether MDC implements recommendations and, if so, when. 5) Whether the review team, when appropriate, develops a written plan (and timetable) to address areas that require corrective action. 6) Whether MDC’s Mortality Committee or Suicide Prevention Committee (for review of morbidity only) conducts a preliminary
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mortality or morbidity review within 30 days of each suicide or serious suicide attempt (e.g., those incidents requiring hospitalization for medical treatment). 7) Whether Mortality Committee or Suicide Prevention Committee’s preliminary report of any mortality review is completed within 30 days of each suicide or serious suicide attempt. 8) Whether MDC completes a final mortality review report within 30 days after the pathological examinations are complete. J. Other Matters 1) Whether any individual who has been identified as having a psychiatric, neuropsychological or developmental disorder who was subjected to a Taser, pepper gas, mace or other chemical agent is assessed by a mental health professional and the circumstances of the event is included in the resident's mental health file. 2) Whether Defendants have developed an adequate plan to implement an effective jail diversion program for persons with psychiatric or developmental disabilities. [Doc. No. 319 at 6 ¶ 4]. 3) Whether Defendants developed, in consultation with The Court’s Mental Health Expert, a plan for the provision of specialized mental health treatment for both female and male residents who are segregated. May 22, 2013 “Order Resolving Order to Show
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Cause,” [Doc. No. 1004]. K. Constitutionally adequate mental health care
1) Whether the mental health care provided by MDC to its inmates evidences repeated examples of negligent acts;
2) Whether the conduct of MDC mental health staff effectively denies inmates access to adequate mental health care;
3) Whether there are systematic deficiencies in staffing, facilities, equipment, or procedures; and
4) Whether the inmate population is effectively denied access to adequate mental health care.
L. Americans with Disabilities Act 1) Whether the Defendants have made the modifications to their policies, procedures and practices that are necessary to provide to sub class members mental health care which is adequate. 2) Whether sufficient communication occurs between MDC administration and treating mental health care professionals regarding an inmate's significant mental health needs that must be considered in classification and housing decisions in order to preserve the health and safety of that inmate, other inmates, or staff; 3) Whether MDC security staff is adequately advised of inmates' 21

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special mental health needs that may affect housing, work, program assignments, disciplinary measures, and admissions to and transfers from institutions. 4) Whether mental health care and security staff communicate sufficiently about inmates with special needs conditions. 5) Whether MDC follows a proactive program which provides care for special needs patients who require close mental health supervision or multidisciplinary care. 6) Whether individual mental health treatment plans are developed by a psychiatrist or other qualified clinician at the time the condition is identified and updated when warranted. 7) Whether the mental health treatment plan includes, at a minimum: a. The frequency of follow-up for mental health evaluation
and adjustment of treatment modality; b. The type and frequency of diagnostic testing and
therapeutic regimens; and c. When appropriate, instructions about diet, exercise,
adaptation to the correctional environment, and medication. 7. The Court’s mental health expert will conduct the Check-Out Audit for the provision of mental health care after (i) the Court makes an initial finding that defendants are in substantial compliance for all subcategories pertaining to mental health care and (ii) defendants’
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self-monitoring demonstrates substantial compliance for a period of time determined by the Court. After review of the Defendants’ self-monitoring and self-reporting and subsequent Check-Out Audit, the Court’s mental health expert will make findings regarding compliance, partial compliance or non-compliance and submit a copy of his or her proposed findings to the Court and provide copies to all counsel. The Court will then make a finding as to whether Defendants are in sustained substantial compliance with the provisions of the Check-Out Audit Agreement.
8. If the Check-Out Audit reflects that the domain is not in substantial compliance (due to failure to accomplish the tasks described in this Agreement), The Court’s Mental Health Expert will identify the deficiency and provide Defendants with specific corrective action which Defendants must take to obtain substantial compliance. Defendants may propose alternative remedial action to obtain substantial compliance which must be approved by the Court’s medical expert. Defendants will have a period of 90 days to cure the deficiency, unless Defendants provide notice that more time is needed, as set forth in the Settlement Agreement.
9. If the Court determines that the domain is not in sustained substantial compliance, the Court will set an additional period for self-monitoring, after which and the Court’s mental health expert will conduct another Check-Out Audit.
10. The parties understand and agree that the terms and conditions set forth in the Settlement Agreement to which this Agreement is attached are incorporated herein.
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IT IS SO ORDERED.

APPROVED:

______________________________ The Honorable James A. Parker SENIOR UNITED STATES DISTRICT JUDGE

___________________________ Randy Autio Attorney for County Defendants
___________________________ Mark Baker Attorney for Plaintiffs
_________________________ Mark H. Donatelli Attorney for Plaintiffs
_________________________ Zachary A. Ives Attorney for Plaintiffs

___________________________ Luis Robles Marcus J. Rael, Jr. Attorney for County Defendants
____________________________ Jeffrey L. Baker Attorney for County Defendants
__________________________ Peter Cubra Attorney for Plaintiff-Intervenors
__________________________ Nancy L. Simmons Attorney for Plaintiff-Intervenors

_________________________ The Honorable Alan Torgerson Special Master

_________________________ Julie Morgas Baca Bernalillo County Manager

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

JIMMY (BILLY) MCCLENDON, et al., Plaintiffs,
vs. CITY OF ALBUQUERQUE, et al.,
Defendants. vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

No. CV 95-24 JAP/KBM

CHECK-OUT AUDIT AGREEMENT No. 3: THE CONDITIONS OF CONFINEMENT AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER 1. The subcategories covered in Check-Out Audit Agreement No. 3 (hereinafter referred to as the “Agreement”) include all conditions of confinement except for the provision of medical and mental health services. 2. This Agreement provides definitive, specific, and measurable tasks to be accomplished in order to achieve substantial compliance. 3. With respect to the conditions of confinement, this Agreement is comprehensive. Thus, the parties understand and agree that this Agreement incorporates (but does not supersede) all

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extant orders and agreements. The expert’s review will be governed solely by the Settlement Agreement and this Check-Out Audit Agreement.
4. This Agreement sets forth, area by area, the scope of the check-out audit for the conditions of confinement at MDC only.
5. The parties agree that the Court’s jail operations expert will review the conditions of confinement at MDC as set forth in paragraph 6 of this Agreement.
6. The Court’s jail operations expert will make findings of fact which address the subcategories listed below:
A. Population Management 1) Whether MDC has created an Emergency Population Management Plan in cooperation with Criminal Justice Review Commission (CJRC) to ensure that the population at MDC remains at or under 1,950. [Doc. No. 1161, pp. 6-7, para. 2(q)]. 2) Whether the Defendants provide what is necessary to obtain the appointment of one or more pro tem state judges who will have the authority and responsibility to: a) utilize a “judicial classification system” to evaluate the classification status of inmates; b) process probation and parole violators as expeditiously as possible; c) handle failure to appear warrants more expeditiously; d) issue orders to the Department of Corrections (DOC) to transport inmates to the local DOC facility for transport to court; and e) consider and implement 2

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other measures consistent with the judgments and sentences to reduce the inmate population. [Doc. No. 315, p. 4]. 3) Whether the Defendants provide direction to law enforcement officials to issue citations, where appropriate, and to use the “walk through procedures,” rather than incarcerating individuals, where appropriate. [Doc. No. 319, p. 5, para. 1]. 4) Whether the Defendants have developed an adequate plan to include persons who do not have both a permanent address and a telephone number in the Community Custody Program. [Doc. No. 319, p. 6, para. 3]. 5) Whether the Defendants operate a medical detox facility and alcohol treatment facility within the jail system. [Doc No. 255 p. 4, para. 6]. 6) Whether the Defendants have participated in developing an adequate plan to expand the program for early resolution of criminal cases. [Doc. No. 319, p. 7, para. 5]. 7) Whether the Defendants are continuing to use all appropriate population management tools in effect in 2002. [Doc. No. 361, p. 2, para. 8]. 8) Whether the County has hired a full-time employee or contractor to monitor measures for the reduction of the inmate population at the MDC. [Doc. No. 1004, p. 3, para. 1(i)].
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B. Use of Force by Security Staff 1) Whether MDC has developed and effectively implements comprehensive and contemporary policies regarding the appropriate use of force, including the following areas: a. restraint devices; [Doc. No. 1161, p. 5, para. 2(f)&(g)]; b. restraint and control (defensive tactics); [Doc. No. 1161, p. 5, para. 2(f)&(g)]; c. inflammatory and chemical agents; [Doc. No. 1161, p. 5, para. 2(f)&(g)]; (1) Whether MDC implements a policy regarding the use of inflammatory agents to assist with the forced medication of seriously mentally and medically ill inmates which meets generally accepted correctional standards. d. Taser CEW; [Doc. No. 1161, p. 5, para. 2(f)&(g)]; (1) Whether MDC implements a policy regarding the use of a Taser CEW to assist with the forced medication of seriously mentally and medically ill inmates which meet generally accepted correctional standards. e. less-lethal munitions and distraction devices; [Doc. No. 1161, p. 5, para. 2(f)&(g)]; 4

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f. restraint chair; [Doc. No. 1161, p. 5, para. 2(f)&(g)]; (1) Whether MDC only uses the restraint chair in a fashion consistent with the manufacturer’s recommendations; [Doc. No. 256, pp. 14-15, para. III(N)(3)]; (2) Whether MDC prohibits the use of metal restraints, including handcuffs unless the inmate has broken free of the chair’s soft restraints; [Doc. No. 256, pp. 14-15, para. III(N)(3)]; (3) Whether MDC prohibits the placement of inmates in the restraint chair, hand-cuffed or otherwise, restrained behind the back of the chair; [Doc. No. 256, pp. 14-15, para. III(N)(3)]; (4) Whether MDC requires the prior authorization by a shift supervisor before an inmate is placed in a restraint chair; [Doc. No. 256, pp. 14-15, para. III(N)(3)]; (5) Whether MDC requires the periodic check of a restrained inmate’s wrists, preferably every 20 minutes; [Doc. No. 256, pp. 14-15, para. III(N)(3)]; (6) Whether MDC requires written reports regarding use 5

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of a restraint chair; [Doc. No. 256, pp. 14-15, para. III(N)(3)]; (7) Whether MDC requires the preparation of a written report every time that security staff places an inmate in a restraint chair; [Doc. No. 256, pp. 14-15, para. III(N)(3)]; and (8) Whether the shift supervisor or his designee must investigate modification to the restraint chair and alternative forms of restraint; [Doc. No. 256, pp. 1415, para. III(N)(3)]. g. firearms (deadly force); [Doc. No. 1161, p. 5, para. 2(f)&(g)]. 2) Whether MDC’s use of force policies address the following impermissible uses of force and whether the MDC effectively implements such policies: a. use of force as a first response to verbal insults or inmate verbal taunts; b. use of force as a first response to inmates’ failure to follow instructions where there is no risk of harm to the safety of the institution, inmates, or staff, unless MDC security staff has attempted a hierarchy of nonphysical alternatives that are documented;
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c. use of force as punishment, discipline, or retaliation; d. use of force against an inmate after the inmate has ceased to
offer resistance and is under control; e. use of choke holds on an inmate; f. use of unnecessary or excessive force; g. use of canines (dogs) for use of force purposes against any
inmate; and h. use of force before using confrontation avoidance techniques
and other alternatives to the use of force, when the circumstances permit the use of such techniques and alternatives. [Doc. No. 1161, p. 5, para. 2(f)&(g)]; 3) Whether MDC policies require the presence of a unit supervisor during all planned uses of force and whether MDC effectively implements these policies. 4) Whether MDC has developed and effectively implements a policy to ensure that staff adequately and promptly reports all uses of force, including the use of the restraint chair. [Doc. No. 1161, p. 5, para. 2(h)] & [Doc. No. 256, pp. 13-15, para. III(N)(1)&(3)]. 5) Whether MDC had adopted and effectively implements a policy to ensure that use of force reports will: a. be written in specific terms in order to capture the details of
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the incident; b. state whether staff attempted confrontation avoidance
techniques or other alternatives to the use of force before using force and if not, include an explanation of the reasons why staff did not attempt to use such techniques or alternatives; c. contain an accurate, detailed account of the events leading to the use of force incident; d. include a description of the weapon(s) or instrument(s) of restraint, if any, and the manner in which it was used; e. be accompanied with the inmate disciplinary report that prompted the use of force incident, if applicable; f. state the nature and extent of injuries sustained both by the inmate and staff member; g. contain the date and time medical attention was actually provided; h. describe, in factual terms, the type and amount of force used and precise actions taken in a particular incident and avoid use of “boiler plate” descriptions for describing force, such as, “inmate taken to the ground with the force that was necessary”; and
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i. state whether the planned or controlled use of force was video recorded and, if it was not, include an explanation of why it was not.
6) Whether MDC staff consistently video record planned or controlled uses of force in accordance with MDC policies. [Doc. No. 1161, p. 5, para. 2(h)].
7) Whether MDC has developed and effectively implements a system to track all incidents of use of force that, at a minimum, includes the following information: a. a tracking number; b. the inmate(s) name; c. housing assignment; d. date; e. type of incident; f. injuries (if applicable); g. if medical care is provided; h. primary and secondary staff involved; i. reviewing supervisor; j. external reviews and results (if applicable); k. remedy taken (if appropriate); and l. administrative sign-off. 9

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8) Whether MDC has adopted and effectively implements policies to ensure that, as part of a use of force incident package, security staff take photographs of any and all reported injuries sustained by inmates. a. Whether MDC security staff promptly takes photographs following a use of force incident. b. Whether the photographs become evidence and are made part of the use of force package and, if applicable, used for investigatory purposes.
9) Whether MDC has adopted and effectively implements policies to ensure that management reviews use of force reports and inmate grievances alleging excessive or inappropriate uses of force.
10) Whether MDC has adopted and effectively implements policies to ensure prompt administrative reviews of use of force reports. a. Whether such reviews include a case-by-case review of individual incidents of use of force as well as a more systemic review in order to identify patterns of incidents. b. Whether MDC incorporates such information into quality management practices and takes necessary corrective action.
11) Whether MDC has established and effectively implements a system for referring for investigation certain use of force incidents, including 10

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but not limited to those involving: a. injuries that are extensive or serious; b. injuries involving fractures or head trauma; c. injuries of a suspicious nature (including black eyes, broken
teeth, injuries to the genitals, etc.); d. injuries that require treatment at outside hospitals; and e. reports of events by staff and inmates which are inconsistent. 12) Whether MDC has adopted and effectively implements policies to ensure that inmates may report allegations of the use of excessive force verbally to any MDC staff member, who will reduce such reports to writing. 13) Where there is evidence of staff misconduct related to inappropriate or unnecessary force against inmates, whether MDC initiates appropriate personnel actions and systemic remedies, as appropriate. a. Whether MDC appropriately disciplines any correctional
officer found to have: (1) engaged in the use of unnecessary or excessive force; (2) failed to report or report accurately the use of force; (3) retaliated against an inmate or other staff member for
reporting the use of excessive force; or (4) interfered or failed to cooperate with an internal
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investigation regarding use of force. 14) Whether MDC developed and effectively implements accountability
policies for the effective and accurate maintenance, inventory and assignment of inflammatory agents, chemical agents, less-lethal munitions, distraction devices, firearms, and other security equipment. 15) Use of Force Training; [Doc. No. 1161, p. 5, para. 2(f)]: a. Whether MDC developed and employs an effective and
comprehensive training program in the appropriate use of force. b. Whether MDC ensures that correctional officers receive adequate training in MDC’s use of force policies. c. Whether MDC ensures that correctional officers receive adequate training in the following areas: (1) use of force; (2) confrontation avoidance techniques; (3) the use of restraints; (4) restraint and control techniques (defensive tactics); (5) inflammatory and chemical agents; (6) electronic control devices (Tasers); (7) less-lethal munitions (if applicable);
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(8) distraction devices (if applicable); (9) firearms (if applicable); (10) documenting and reporting the use of force; and (11) the MDC’s policy regarding discipline for violations
of policies related to the use of force. d. Whether MDC ensures that correctional officers receive pre-
service and in-service training on reporting use of force and completing use of force reports. 16) Whether MDC ensures that incident reports, use of force reports, and inmate grievances are screened for allegations of staff misconduct and, if the incident or allegation meets established criteria, that it is referred for investigation. 17) Whether MDC established and effectively implements an “Early Warning System (EWS)” that will document and track correctional officers who regularly employ force on inmates and any complaints related to the excessive use of force. a. Whether MDC’s EWS protocol includes the following components: data storage, data retrieval, reporting, data analysis, pattern identification, supervisory assessment, supervisory intervention, documentation, and audit. b. Whether MDC effectively uses the EWS as a tool for
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correcting inappropriate staff behavior before it escalates to more serious misconduct. c. Whether the EWS alerts MDC administration to any potential need for retraining, problematic policies, or supervision lapses. d. Whether all appropriate MDC leadership, supervisors, and investigative staff have access to EWS information and are able to monitor the occurrences. e. Whether MDC’s EWS allows MDC administration sufficient information to improve quality management practices, identify patterns and trends, and take appropriate corrective action both on an individual and systemic level. C. Inmate Discipline [Doc. No. 1161, p. 4, para. 2(c-e)] 1) Whether MDC maintains and effectively implements policies and procedures for a formal disciplinary process, including: a. timely issuance of written disciplinary citations, administrative review and disciplinary reports for alleged rule violations, in accordance with generally accepted correctional standards; and b. a prohibition of the use of behavior modification programs, discipline, and punishment, unless permitted by MDC’s
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written inmate discipline policies. [Doc. No. 1161, p. 4, para. 2(d)]. 2) Whether MDC ensures that disciplinary charges against inmates with a mental or developmental disability are reviewed by a Qualified Mental Health Professional: a. Whether the Qualified Mental Health Professional determines the extent to which the charge was related to a mental or developmental disability; and b. Whether the Qualified Mental Health Professional communicates his or her finding to MDC to ensure that inmates who commit infractions resulting from a mental or developmental disability are not punished for behavior caused by a mental or developmental disability. [Doc. No. 256, IV(A)(1)]. 3) Whether MDC has adopted and effectively implements written policies for the use of disciplinary measures with regard to inmates with a mental or developmental disability (including inmates exhibiting recognizable signs or symptoms of mental or developmental disability) including the following: a. Whether MDC staff consults with Qualified Mental Health Staff to determine whether initiating disciplinary procedures
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is appropriate for inmates with a mental or developmental disability; and b. If a Qualified Mental Health Professional determines the inmates’ actions that are the subject of the disciplinary proceedings are symptomatic of a mental or developmental disability, whether MDC mitigates the imposition of discipline. 4) Whether MDC ensures that inmate disciplinary hearings are conducted in a reasonably private and secure setting. 5) Whether MDC ensures that all inmates placed in lock down status are timely provided with the protections set forth in MDC’s policies and procedures and generally accepted correctional standards. 6) Whether MDC ensures that the disciplinary officer’s/board’s written record accurately reflects the evidence and discussion from the disciplinary hearing, including any recommendations from a Qualified Mental Health Professional regarding the extent to which disciplinary charges are related to an inmate’s mental or developmental disability, or suggestions for minimizing the deleterious effect of disciplinary measures on the inmate. 7) Whether MDC alerts the facility’s medical provider when inmates are placed in disciplinary segregation or protective custody.
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8) Whether a Qualified Mental Health Staff member works with the disciplinary officer or board, as needed, to address the needs of inmates who have a mental or developmental disability.
9) Whether MDC provides an adequate number of staff to carry out the duties and responsibilities of the inmate disciplinary system as required by MDC policy and procedure.
10) Whether MDC punishes groups of residents for the behavior of individuals and whether lockdowns of living units occur that are not authorized by the jail director or his designees. [Doc. No. 256.]
11) Whether MDC developed and employs an effective and comprehensive training program on inmate discipline. [Doc. No. 1161 at p. 5, para. 2(j).]
12) Whether MDC ensures that correctional officers receive adequate training in MDC’s policies regarding inmate discipline. [Doc. No. 1161 at p. 5, para. 2(j).]
D. Classification 1) Whether MDC maintains and effectively implements policies and procedures for an appropriate, objective classification system that separates inmates in housing units by classification levels in order to protect inmates from an unreasonable risk of harm. 2) Whether MDC’s classification system considers an inmate’s security 17

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level, severity of current charges, types of prior commitments, suicide risk, history of escape attempts, history of violence, and special needs. 3) Whether MDC ensures that classification staff has sufficient access to current information regarding cell availability throughout the facility. 4) Whether MDC provides adequate training and access to all correctional officer supervisors on the full capabilities of MDC’s classification system. 5) Whether MDC provides ongoing internal and external review and validation of its inmate classification system to ensure its reliability and objectivity. 6) Whether MDC ensures that inmates requiring segregation who are high risk, security threats, seriously mentally ill, disciplinary, or reclassification are not double-celled, unless those inmates have been determined to be compatible using a reliable objective classification tool. [Doc. No. 1161, p. 64, para. 2(m)]. 7) Whether MDC ensures that segregation inmates who are in protective custody and new inmates are not double celled, unless the inmates have first been determined to be low risk and compatible using a reliable classification tool. [Doc. No. 1161, p. 64, para. 2(m)]. 8) Whether MDC ensures that inmates who have committed or been
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charged with acts of violence are not housed with inmates who have not committed or been charged with such acts by using a preclassification triage system as recommended by the Department of Justice National Institute of Corrections (NIC). [Doc. No. 1161, p. 64, para. 2(n)]. 9) Whether MDC ensures that inmates who have not yet been classified are not housed in the same pod as inmates who require segregation, as recommended by the NIC. [Doc. No. 1161, p. 64, para. 2(o)]. E. Inmate Grievance Procedure 1) Whether MDC has adopted and effectively implements policies and procedures to ensure inmates have access to an adequate grievance process and to ensure that grievances may be accessed and filed confidentially, without requiring the intervention of a correctional officer, in accordance with generally accepted correctional standards. 2) Whether MDC has adopted and effectively implements policies to ensure that the grievances receive appropriate follow-up, including, providing a timely written response that explains to the grievant the reason(s) for the outcome and tracking implementation of resolutions. 3) Whether MDC ensures that grievance forms are available on all units and are available in Spanish. 4) Whether MDC ensures that there is adequate opportunity for illiterate
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inmates, inmates who have physical, mental, or cognitive disabilities, and inmates who are not English speakers to access the grievance system. 5) Whether a member of MDC management staff reviews the grievance tracking system regularly in order to identify areas of concern and takes adequate corrective action, as needed, to improve its grievance system. 6) Whether MDC developed and employs an effective training program regarding inmate grievances. [Doc. No. 1161 at p. 5, para. 2(j).] 7) Whether MDC ensures that staff receive adequate training in MDC’s policies regarding grievances. [Doc. No. 1161 at p. 5, para. 2(j).] 8) Whether MDC ensures that inmate grievances are screened for allegations of staff misconduct and abuse or mistreatment, if the incident or allegation meets established criteria, are referred for investigation. 9) Whether incident reports regarding allegations of staff misconduct and abuse or mistreatment are provided to quality assurance staff and reported on by the quality assurance system to determine if the system of inmate grievance is functioning properly. [Doc. No. 256.] F. Safety and Supervision 1) Whether MDC has adopted and effectively implements security and
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control-related policies, procedures, and practices, including but not limited to effective training, that will result in a reasonably safe and secure environment for all inmates and staff, in accordance with generally accepted correctional standards. 2) Whether MDC has adopted and effectively implements policies, procedures, and practices to ensure the adequate supervision of inmate work areas and trustees, in accordance with generally accepted correctional standards. 3) Whether MDC ensures that security staff appropriately monitor inmates to ensure that they are reasonably safe and secure, including but not limited to: a. Whether rounds are conducted with sufficient frequency to
provide inmates with reasonable safety. b. Whether MDC provides direct supervision of inmates by
posting an adequate number correctional officers inside the day room area of a housing unit to conduct constant surveillance. c. Whether more frequent rounds are conducted for special management inmates who require more intensive supervision for security and safety reasons. d. Whether all security rounds are accurately documented on
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forms or logs that do not contain preprinted rounding times. 4) Whether MDC ensures that security supervisors conduct daily rounds
in the inmate housing units, and document the results of their inspections. 5) Whether the number and nature of assaults and altercations indicates that the MDC is providing an environment that is reasonably safe for inmates. G. Contraband Control 1) Whether MDC maintains and effectively implements procedures to prevent inmates from possessing or having access to dangerous contraband, including conducting regular inspections of cells and common areas of the housing units to identify and prevent rule violations by inmates. 2) Whether MDC has purchased and uses security equipment that is capable of detecting drugs and other forms of contraband from coming into the facility. a. Whether MDC ensures that all inmates, staff, and visitors are
properly screened through the use of MDC’s security equipment before entering the secure area of the facility. b. Whether MDC has purchased and uses drug scanning security equipment for the mailroom in order to properly screen all
22

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incoming mail and packages. c. Whether MDC maintains in working order sufficient
monitoring equipment at the facility, including cameras, alarms, radios (hand held), interior and exterior lighting, x-ray and other screening equipment, and walk-through metal detectors. H. Housing and Segregation 1) Whether MDC ensures that three or more inmates are never housed in a cell designed to house two inmates. [Doc. No. 1004, p. 1, para. 1(a)] & [Doc. No. 1161, p. 6, para. 2(l)]. 2) Whether MDC ensures that no fewer than two separate housing units are used for female inmates requiring segregation. (When the population of the MDC allows, MDC may house female inmates of different classifications in one unit, so long as MDC separates women with different classifications using security barriers. However, Defendants may only reduce the number of segregation units for female inmates pursuant to a plan approved by Manuel Romero.) [Doc. No. 1161, pp. 5-6, para. 2(j)]. 3) Whether MDC provides inmates housed in segregation one (1) hour out of cell time per day, except in the case of a facility lockdown. [Doc. No. 989, p. 2, para. 2], [Doc. No. 1004, p. 1, para. 1(b-c)], &
23

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[Doc. No. 1161, p. 4, para. 2(b)]. 4) Whether MDC developed and effectively implements a consistent
method of ensuring that there is adequate, accessible, and verifiable documentation of denial of out of cell time. [Doc. No. 1161, p. 6, para. 2(l)]. 5) Whether MDC developed and employs an effective and comprehensive training program on out of cell time. [Doc. No. 1161 at p. 5, para. 2(j).] 6) Whether MDC ensures that correctional officers receive adequate training in MDC’s policies regarding out of cell time. [Doc. No. 1161 at p. 5, para. 2(j).] I. Sexual Misconduct 1) Whether MDC has developed and adequately implements policies, protocols, trainings, and audits consistent with the requirements of the Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601, et seq. 2) Whether MDC’s policies and protocols adequately address the prevention, detection, reporting, and investigation of sexual abuse, sexual harassment, and sexual touching. 3) Whether MDC’s policies and protocols adequately address the collection of data regarding sexual abuse (including inmate-on-inmate and staff-on-inmate sexual abuse), sexual harassment, and sexual
24

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touching. 4) Whether MDC adequately protects inmates from sexual abuse, sexual
harassment, and sexual touching. J. Internal Investigations [Doc. No. 256, p. 16, para. IV(B)]
1) Whether MDC maintains and adequately implements comprehensive policies, procedures, and practices for the timely and thorough investigation of alleged staff misconduct, in accordance with generally accepted correctional standards.
2) Whether internal investigations are conducted by persons who were not involved in any way in the incident under investigation and who do not have supervisory responsibility for the staff member(s) being investigated.
3) Whether MDC ensures that all internal investigations include timely, thorough, and documented interviews of all relevant staff and inmates who were involved in, or witnessed, the incident in question.
4) Whether MDC ensures that internal investigation reports include all supporting evidence, such as witness and participant statements, policies and procedures relevant to the incident, physical evidence, video or audio recordings, and relevant logs.
5) Whether MDC ensures that all investigatory staff receives pre-service and in-service training on appropriate investigation policies and 25

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procedures, the investigation tracking process, investigatory interviewing techniques, and confidentiality requirements. 6) Whether MDC provides all investigators who will be assigned to conduct investigations of use of force and sexual misconduct incidents with specialized training in investigating use of force and sexual misconduct incidents and allegations. 7) Whether MDC ensures that the results of each internal investigation are documented in an investigation report. 8) Whether MDC administration reviews the investigation reports, along with the underlying documentation, and takes corrective action, including disciplinary action and training, as appropriate. 9) Whether MDC adequately implements appropriate remedies based upon the results of internal investigations. 10) Whether MDC has a tracking system for all internal investigations. 11) Whether Defendants maintain a contract with an outside investigatory entity for conducting investigations of matters which are best investigated by an outside entity. K. Staffing [Doc. Nos. 1004 at p. 2, para. 1(h), 1161, p. 6, para. 2(p)] 1) Whether MDC’s correctional officer staffing and supervision levels at the facility are adequate to supervise inmates, protect inmates and staff, and allow for the safe operation of the facility, consistent with
26

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generally accepted correctional standards. 2) Whether MDC has prepared a written staffing plan, in consultation
with Manuel Romero, which requires correctional officer staffing and supervision levels at the facility that are adequate to supervise inmates, protect inmates and staff, and allow for the safe operation of the facility, consistent with generally accepted correctional standards and the Court’s November 5, 1996 Order [Doc. 256]. 3) Whether MDC effectively implements the written staffing plan with oversight by Manuel Romero. 4) Whether MDC employs adequate numbers of employees in the areas of inmate discipline, inmate grievance, inmate classification, case managers, and CCP. 5) Whether MDC has sufficient correctional officer staffing to provide inmates requiring treatment with adequate access to appropriate medical and mental health care by providing timely movement of inmates to medical units, transport of inmates who have been referred for outside specialty care, and escort, if necessary, to Qualified Medical and Mental Health Staff on housing units; L. Fire and Life Safety 1) Whether MDC has a comprehensive fire safety program, which is approved by the fire prevention authority having jurisdiction.
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2) Whether MDC has developed and implements an adequate evacuation plan for inmates and staff and ensures that comprehensive fire drills are conducted every three months on each shift.
3) Whether MDC has adequate fire and life safety equipment, including installation and maintenance of fire alarms and smoke detectors in all housing areas according to applicable fire codes.
4) Whether MDC properly maintains and routinely inspects all fire and life safety equipment.
5) Whether MDC staff are able to manually unlock all doors (without use of the manual override in the event of an emergency in which the manual override is broken), including in the event of a power outage or smoke buildup where visual examination of keys is generally impossible.
6) Whether MDC ensures that combustibles are adequately controlled and eliminates highly flammable materials throughout the facility and inmate living areas (e.g., inmates’ use of paper bags as trash receptacles, ripped fire-retardant mattress covers, improvised cell light covers, blankets on cell floors, and improperly stored and labeled flammable liquids and other chemicals).
M. Sanitation and Environmental Conditions 1) Whether MDC maintains an adequate written staffing plan and 28

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sufficient staffing levels to provide for adequate maintenance of the facility. 2) Whether MDC maintains and adequately implements written housekeeping and sanitation plans to ensure the proper routine cleaning of housing, shower, and medical areas, in accordance with generally accepted correctional standards. 3) Whether MDC provides adequate ventilation throughout the facility to ensure that inmates receive an adequate supply of air flow and reasonable levels of heating and cooling. 4) Whether MDC ensures adequate lighting in all inmate housing and work areas. 5) Whether MDC ensures adequate pest control throughout the housing units, medical units, RDT, and food storage areas. 6) Whether MDC has developed and adequately implements policies and procedures for cleaning, handling, storing, and disposing of biohazardous materials, in accordance with generally accepted correctional standards. 7) Whether MDC has developed and adequately implements a policy on hazardous materials storage, in accordance with generally accepted correctional standards, and ensures that all MDC staff is properly trained on the procedure.
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8) Whether MDC ensures the use of cleaning chemicals that sufficiently destroy the pathogens and organisms in biohazard spills.
9) Whether MDC has obtained a sufficient amount of stack-a-bunks or boats so that no inmate will have to sleep on the floor.
10) Whether MDC has a sufficient supply of towels, blankets, and pillows in stock and in reasonable condition, to provide every inmate with linen, a towel, and a blanket.
11) Whether MDC ensures that all inmates have access to needed hygiene supplies
12) Whether MDC has an adequate system for storing inmates’ personal necessities such as hygiene products.
13) Whether MDC ensures adequate control and observation of all housing units, including distribution and collection of razors and cleaning supplies.
14) Whether MDC at all times stores in the female housing units sufficient supplies of tampons and/or sanitary pads for female inmates and whether MDC issues the same on request by any inmate.
15) Whether MDC implements adequate procedures and processes for the cleaning and sanitizing of inmate mattresses that are in use in all living areas.
16) Whether MDC has developed and adequately implements an inmate 30

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indigent policy. N. Sanitary Laundry Procedures
1) Whether MDC has developed and adequately implements policies and procedures for laundry procedures to protect inmates from risk of exposure to communicable disease, in accordance with generally accepted correctional standards.
2) Whether MDC ensures that inmates are provided adequate clean clothing, underclothing, and bedding, consistent with generally accepted correctional standards, and that the laundry exchange schedule provides consistent distribution and pickup service to all housing areas.
3) Whether MDC trains staff and educates inmates regarding laundry sanitation policies.
4) Whether MDC ensures that laundry delivery procedures protect inmates from exposure to communicable diseases by preventing clean laundry from coming into contact with dirty laundry or contaminated surfaces.
5) Whether MDC requires inmates to provide all clothing and linens for laundering and prohibit inmates from washing and drying laundry outside the formal procedures.
O. Food Service 31

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1) Whether MDC ensures that food service at the facility is operated in a safe and hygienic manner and that foods are served and maintained at safe temperatures.
2) Whether MDC ensures that all types of meals (including meals served to inmates requiring medical diets, inmates with food allergies, and inmates with religious diets) provide adequate nutrition.
3) Whether MDC ensures that all food service staff, including inmate staff, are adequately trained in food service operations, safe foodhandling procedures, and appropriate sanitation.
4) Whether MDC ensures that the kitchen is staffed with a sufficient number of appropriately supervised and trained personnel.
5) Whether MDC ensures that dishes and utensils, food preparation and storage areas, and vehicles and containers used to transport food are appropriately cleaned and sanitized.
6) Whether MDC checks and records, on a regular basis, the temperatures in the refrigerators, coolers, walk-in-refrigerators, the dishwasher water, and all other kitchen equipment with temperature monitors to ensure proper maintenance of food service equipment.
P. Access to Counsel and Legal Materials 1) Whether MDC provides inmates with adequate opportunities to use telephones during normal business hours so that they may contact 32

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attorneys. 2) Whether MDC ensures that staff members do not interfere with
inmates’ access to materials pertaining to inmates’ legal matters, including but not limited to attorney-client correspondence, discovery, legal research, and pleadings. Q. Law Library 1) Whether MDC’s law library meets the applicable standards stated in the American Correctional Association’s Standards for Adult Detention Centers. 2) Whether MDC’s law library is kept reasonably current. [Doc. Nos. 115 at 1-2, 255, 416; see also Doc. 106 at 18.] 3) Whether MDC follows its policies and procedures pertaining to the delivery of access to its law library. [Doc. Nos. 115 at 1-2, 255, 416; see also Doc. 106 at 18.] 4) Whether MDC provides inmates with mental or developmental disabilities reasonable accommodations and assistance in order for them to have effective access to the judicial system to challenge the length or conditions of their confinement and in order for them to attack their sentences. [Doc. No. 256, p. 16, para. IV(C)(1)]. 5) Whether MDC provides inmates with mental or developmental disabilities reasonable access to the law library in a reasonable
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amount of time. [Doc. No. 256, p. 17, para. IV(C)(4)]. 6) Whether MDC provides inmates with mental or developmental
disabilities assistance with the preparation of an initial pleading regarding the length or conditions of confinement or regarding the resident’s conviction or sentence. [Doc. No. 256, p. 17, para. IV(C)(4)]. R. U.S. Mail Service 1) Whether MDC’s U.S. mail service policies and practices meet the applicable standards stated in the American Correctional Association’s Standards for Adult Detention Centers. 2) Whether MDC provides adequate resources to allow indigent inmates to correspond with their family, friends, and his/her attorney. 3) Whether MDC promptly delivers U.S. mail to inmates. 4) Whether MDC ensures that staff do not read attorney-client correspondence and do not open incoming attorney-correspondence outside the presence of the addressee. S. Inmate Access to Telephones 1) Whether MDC provides its inmates access to telephones which meets the applicable standards stated in the American Correctional Association’s Standards for Adult Detention Centers. 2) Whether MDC has adequate policies and procedures governing
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inmate access to telephones and whether it adequately implements those policies. 3) Whether MDC has inmate telephones in the booking area and all housing units and whether it provides inmates with adequate access to those telephones. T. Inmate Programming (excluding mental health programming) 1) Whether MDC’s inmate programming (excluding mental health programming) meets the applicable standards stated in the American Correctional Association’s Standards for Adult Detention Centers. 2) Whether MDC has adequate policies and procedures that address programming and whether they adequately implement those policies and procedures. 3) Whether MDC provides adequate resources and opportunities for recreation, exercise, reading, and other activities. U. Inmate Access to Commissary 1) Whether MDC provides its inmates access to commissary which meets the applicable standards stated in the American Correctional Association’s Standards for Adult Detention Centers. 2) Whether MDC has an adequate policy and procedure that addresses the commissary service and whether it adequately implements that policy and procedure.
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3) Whether MDC inmates are provided the opportunity to purchase from the commissary store approved items not furnished by the jail.
V. Access to Community Services 1) Whether MDC has a full-time benefits manager to assist in securing public benefits for inmates. [Doc. No. 361, p. 2, para. 10].
W. Access to Information 1) Whether MDC ensures that newly admitted inmates receive information, through an inmate handbook or orientation video, regarding the following areas: a. facility rules and regulations; b. how to report misconduct; c. how to report sexual abuse or assault; d. the process for accessing medical and mental health care; e. emergency procedures; f. rules for sending and receiving mail; g. the visitation process; h. facility schedule; i. the disciplinary process; j. how to seek redress of grievances; and k. a description of the McClendon class action and the methods for contacting counsel for the class and subclass. 36

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2) Whether MDC ensures that materials and information on facility rules and services are available for inmates who are not literate, inmates who do not speak English, and inmates who have a mental or developmental disability.
X. Competency Evaluations 1) Whether the County contracts with a licensed psychologist to provide written competency evaluations to jail residents charged with misdemeanors who are ordered by the Courts to undergo such evaluations. [Doc. No. 255, p. 4, para. 7]. 2) Whether the County funds a program to provide appropriate courtsanctioned written competency evaluations prepared by a qualified mental health professional whenever the results of such evaluation could result in the release of a resident. Doc. No. 255, p. 4, para. 7].
Y. Supplemental opinions 1) Whether the conditions of confinement at MDC evidence repeated examples of acts that put inmates at risk of harm;
2) Whether the examples of acts that put inmates at risk of harm disclose a pattern of conduct by MDC security staff that effectively denies inmates an appropriate classification system, appropriate procedural safeguards in the areas of grievances, discipline, classification and segregation, safe conditions of confinement or reasonably sanitary conditions of 37

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confinement; 3) Whether there are systematic or gross deficiencies in staffing,
facilities, equipment, or procedures; and 4) Whether the systematic or gross deficiencies effectively deny the
inmate population fairness, safe conditions of confinement or reasonably sanitary conditions of confinement. Z. Supplemental opinions continued 1) Whether adequate communication occurs between MDC administration and treating health care professionals regarding an inmate's significant medical needs and mental health needs that must be considered in classification decisions in order to preserve the health and safety of that inmate, other inmates, and staff;
a. Whether MDC security staff is sufficiently advised of inmates' special medical needs and mental health needs that may affect housing, work, program assignments, disciplinary measures, and admissions to and transfers from institutions.
b. Whether health care and security staff adequately communicates about inmates with special needs conditions.
2) Whether MDC security staff allows inmates the use of medical and dental orthoses, prostheses, and other aids as determined by the responsible physician or dentist. 38

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a. Whether patients receive and are permitted to retain prescribed aids to impairment.
b. Where the use of specific aids to impairment is contraindicated for security reasons, whether alternatives are considered so the health needs of the inmate are met.
7. The Court’s jail operations expert will conduct six (6) check-out audits regarding the conditions of confinement for the following domains:
A. Domain 3: Group A: 1) Fire and Life Safety; 2) Sanitation and Environmental Conditions; 3) Sanitary Laundry; 4) Food Service; 5) U.S. Mail Service; 6) Inmate Access to Telephones; 7) Inmate Access to Commissary; 8) Access to Community Services; and 9) Competency Evaluations.
B. Domain 4: Group B: 1) Inmate Discipline; 2) Classification; 3) Inmate Grievance Procedure; 39

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4) Safety and Supervision; 5) Contraband Control; 6) Staffing; 7) Access to Counsel and Legal Materials; 8) Law Library; 9) Inmate Programming (excluding mental health programming); 10) Access to Information; and 11) Supplemental report subcategories as set forth in paragraphs 6(Y) and 6(Z), above. C. Domain 5: Population Management D. Domain 6: Housing and Segregation E. Domain 7: Sexual Misconduct F. Domain 8: Use of Force by Security Staff and Internal Investigations. 8. The Court’s jail operations expert will conduct the check out audit for each domain after (i) the Court makes an initial finding that defendants are in substantial compliance with all subcategories listed in that domain and (ii) defendants’ self-monitoring demonstrates substantial compliance with all of the subcategories in that domain for a period determined by the Court. As to each domain, after review of the Defendants’ self-monitoring and self-reporting and subsequent Check-Out Audit, the Court’s jail operations expert will make findings regarding compliance, partial compliance or non-compliance and submit a copy of his or her proposed findings to the Court and provide copies to all counsel. The Court will then make a finding as to whether Defendants are in
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sustained substantial compliance with the provisions of the Check-Out Audit. 9. If the Check-Out Audit reflects that the domain is not in substantial compliance (due
to failure to accomplish the tasks described in this Agreement) , the Court’s jail operations expert will identify the deficiency and provide Defendants with specific corrective action which Defendants must take to obtain substantial compliance. Defendants may propose alternative remedial action to obtain substantial compliance which must be approved by the Court’s medical expert. Defendants will have a period of 90 days to cure the deficiency, unless Defendants provide notice that more time is needed, as set forth in the Settlement Agreement.
10. If the Court determines that the domain is not in sustained substantial compliance, the Court will set and additional period for self monitoring, after which and Manuel Romero will conduct another Check-Out Audit.
11. The parties understand and agree that the terms and conditions set forth in the Settlement Agreement to which this Agreement is attached are incorporated herein.
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IT IS SO ORDERED.

APPROVED:

______________________________ The Honorable James A. Parker SENIOR UNITED STATES DISTRICT JUDGE

___________________________ Randy Autio Attorney for County Defendants
___________________________ Peter Cubra Attorney for Plaintiff-Intervenors
_________________________ Mark H. Donatelli Attorney for Plaintiffs
_________________________ Zachary A. Ives Attorney for Plaintiffs

___________________________ Luis Robles Marcus J. Rael, Jr. Attorney for County Defendants
____________________________ Jeffrey L. Baker Attorney for County Defendants
__________________________ Mark Baker Attorney for Plaintiffs
__________________________ Nancy L. Simmons Attorney for Plaintiff-Intervenors

_________________________ The Honorable Alan Torgerson Special Master

_________________________ Julie Morgas Baca Bernalillo County Manager

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EXHIBIT E
LEGAL NOTICE ABOUT PROPOSED SETTLEMENT
PLEASE READ THIS CAREFULLY. IT MAY AFFECT YOUR RIGHTS.
The United States District Court will hold a hearing to decide whether to approve the proposed settlement of the McClendon class action case. The hearing is scheduled for ______ am/pm on __________, 2016, at the United States Courthouse at 421 Gold Avenue SW, Sixth Floor. The case involves the detention of people at the Metropolitan Detention Center (MDC) by Bernalillo County or City of Albuquerque law enforcement officials, and the conditions within the County jail system. If you are detained in the MDC, you have the right to object to the proposed settlement.
What is the McClendon case about?
Primarily the lawsuit addresses jail conditions, including among other things:
• Excessive use of force by jail staff and other mistreatment by staff • The disciplinary system • The grievance system • Medical services • Mental health services • Discrimination based on disability • Safety issues, including assaults and classification problems
The lawsuit also addresses the arrest practices by County and City law enforcement officials.
The case does not involve claims for money damages.
Am I included?
If you are in the MDC, if you have been detained at the MDC in the past, or if you may be detained in the MDC in the future, you are included.
What does the settlement provide?
If the Court approves the settlement, experts in corrections, medical care, and mental health care will review jail conditions. The experts will report to the Court, which will

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decide if the conditions in and operation of the MDC have improved enough so that the case against the County must be dismissed. If the case is dismissed, the Court will order the County to continue to prevent overcrowding in the jail and take steps regarding classification and housing.

The proposed settlement would not resolve any claims against the City of Albuquerque. It would only resolve the claims against Bernalillo County.

The proposed settlement would not provide money damages to any person.

What are my options?

If you accept the proposed settlement, you do not need to do anything.

If you object to the proposed settlement, you may either:

1. Mail a written objection to the Clerk of the Court, U.S. District Court, 333 Lomas Blvd NW, Albuquerque NM 87102 by ________ [60 days from the date of notice, consistent with the Federal Judicial Center’s recommendation]; or

2. Explain your objection to the lawyers for the people detained at the MDC. The lawyers will then inform the Court of your objection.

Zach Ives, Esq. Vanessa Garcia, paralegal Garcia Ives Nowara 924 Second St NW, Suite A Albuquerque, NM 87102 phone 505.899.1030

Peter Cubra, Esq. Kelly Waterfall, Esq. 3500 Comanche NE, Suite H Albuquerque, NM 87107 phone 505.256.7690

You may call the lawyers free of charge from the phones in the MDC housing units.

How do I get more information?

A notice with more information about the settlement is posted in each housing unit in the MDC and in the MDC law library. The entire settlement agreement is available at the security desk in each housing unit and in the MDC law library. Both the notice with more information and the entire settlement agreement are also available on-line at the Bernalillo County web site http://www.bernco.gov/[add full cite]

If you have questions about the notice or the settlement agreement, please do not send them to the Court. Please contact the lawyers and their staff if you have a question.

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EXHIBIT F

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

THE PROPOSED SETTLEMENT OF A CLASS ACTION COULD AFFECT YOUR RIGHTS IF YOU ARE NOW, EVER WERE, OR EVER WILL BE DETAINED AT THE METROPOLITAN DETENTION CENTER.

• The class action case involves conditions at the Metropolitan Detention Center or MDC and allegations that the Bernalillo County is violating the rights of inmates. The County does not agree that it is violating the rights of inmates at the MDC.

• If the Court approves the proposed settlement of this case, experts in corrections, medical care, and mental health care will review conditions at the MDC. The experts will report to the Court, which will decide if the conditions in and operation of the MDC have improved enough so that the case against the County must be dismissed. If the case is dismissed, the Court will order the County to continue to prevent overcrowding in the jail and take steps regarding classification and housing.

• Please read this notice carefully. Your legal rights may be affected whether you act or don’t act.

YOUR LEGAL RIGHTS AND OPTIONS

OBJECT IN WRITING

Write a letter to the Court or the lawyers for the inmates about why you don’t like the settlement.

OBJECT IN PERSON DO NOTHING

If you are not detained at the time of the settlement approval hearing, you may ask to be heard in court about the fairness of the settlement. If you do not object during the time for objecting, the Court will not consider your views when it decides whether to accept or reject the settlement.

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• These rights and options—and the deadlines to exercise them—are explained in this notice.
WHAT THIS NOTICE CONTAINS
Basic information.....................................................................................................3 1. What is the purpose of this notice? 2. What is this lawsuit about? 3. Why is this a class action? Who is part of the settlement? ............................................................................... 4
Benefits of the settlement........................................................................................ 5
The lawyers representing you ............................................................................... 6
Objecting to the settlement ................................................................................... 7
The Court’s fairness hearing.................................................................................. 7
Getting more information....................................................................................... 8
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BASIC INFORMATION
1. What is the purpose of this notice?
The purpose is to give you information about the settlement. You have a right to know about the proposed settlement and your options before the Court decides whether to approve the settlement.
This package explains the lawsuit, the settlement, and your legal rights. The Court in charge of the case is the United States District Court for the District of New Mexico. The case is McClendon v. City of Albuquerque, et al., No. 95-CV-24 JAP.
2. What is this lawsuit about?
This lawsuit addresses a variety of issues regarding jail conditions. Those issues include:
• Mistreatment by jail staff, including excessive use of force and sexual abuse • Assaults on inmates by other inmates • Overcrowding • Classification problems • Disciplinary system • Grievance system • Internal investigation system • Medical services • Mental health services • Discrimination based on disability • Adequacy of staffing • Contraband, such as weapons and drugs, in the jail • Provision of adequate out-of-cell time • Fire and life safety
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• Sanitation and environmental conditions • Food service • Access to counsel, legal materials, and law library • Mail service, including legal mail • Access to telephones • Inmate programming • Access to commissary • Access to community services • Access to information • Competency evaluations
The plaintiffs allege that jail conditions violate the constitutional and statutory rights of the inmates. Bernalillo County denies this.
This is not a lawsuit for money damages. The goal of bringing claims against Bernalillo County is only to improve jail conditions.
The lawsuit also addresses the arrest practices by County and City law enforcement officials. However, the claims about arrest practices are not part of this settlement.
3. Why is this a class action?
In a class action, one or more people called Class Representatives sue on behalf of people who have similar claims. All these people are a Class or Class Members. One court resolves the issues for all Class Members. U.S. District Judge James A. Paker is in charge of this class action.
In the McClendon case, there are two different groups of class members—a class and a subclass. The subclass consists of people at MDC who have a mental disability or developmental disability. Only those with a mental disability or developmental disability are members of the sub-class. All other people at the MDC are members of the class.
WHO IS PART OF THE SETTLEMENT?
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If you are currently detained the MDC, have ever been detained at the MDC in the past, or might be detained at the MDC in the future, you are part of the settlement. Whether you are a member of the class or subclass depends on whether you have a mental disability or developmental disability, as explained above.
BENEFITS OF THE SETTLEMENT
If the Court approves the settlement, experts in (1) corrections, (2) medical care, and (3) mental health care will review a large variety of different issues regarding jail conditions. The section of this notice called “What is this lawsuit about?” includes a general description of the issues that the experts will review. The checkout audit agreements include a far more detailed list of those issues. Complete copies of all three check-out audit agreements are available at the security desk in each housing unit, in the MDC law library, and on-line at the Bernalillo County web site http://www.bernco.gov/[add full cite].
After reviewing the conditions, each expert will report his findings to the Court. The lawyers for the inmates and the lawyers for the County will have a chance to make arguments and present evidence in response to the experts’ reports. The Court will decide if the conditions in and operation of the MDC have improved enough so that the case against the County must be dismissed. If the case is dismissed, the Court will order the County to continue to prevent overcrowding in the jail and take steps regarding classification and housing. This is a very general description of the process. The settlement agreement includes a far more detailed description the experts’ reviews, including what the County and its lawyers, the lawyers for the inmates, and the Court may do in response to the experts’ reviews. The entire settlement agreement is available at the security desk in each housing unit, in the MDC law library, and on-line at the Bernalillo County web site http://www.bernco.gov/[add full cite].
The proposed settlement would not provide money damages to any person.
The proposed settlement would not resolve any claims against the City of Albuquerque. It would only resolve the claims against Bernalillo County.
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Case 6:95-cv-00024-JAP-KBM Document 1213-6 Filed 03/22/16 Page 6 of 8
THE LAWYERS REPRESENTING YOU
Lawyers for the class
Zach Ives, Esq. Vanessa Garcia, paralegal Garcia Ives Nowara 924 Second St NW, Suite A Albuquerque, NM 87102 phone 505.899.1030
Mark Donatelli, Esq. Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu LLP 1215 Paseo De Peralta P.O. Box 8180 Santa Fe, NM 87504
Mark Baker, Esq. Peifer Hanson & Mullins PA 20 First Plaza, Suite 725 Albuquerque, NM 87102
Lawyers for the subclass
Peter Cubra, Esq. Kelly Waterfall, Esq. 3500 Comanche NE, Suite H Albuquerque, NM 87107 phone 505.256.7690
Nancy Simmons, Esq. 120 Girard Blvd. SE Albuquerque, NM 87106
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Case 6:95-cv-00024-JAP-KBM Document 1213-6 Filed 03/22/16 Page 7 of 8
To contact the lawyers and their staff, you may either:
1. call the listed phone numbers at no cost using the phones in the housing units
2. send a letter to one of the addresses listed above
OBJECTING TO THE SETTLEMENT
If you accept the proposed settlement, you do not need to do anything.
If you object to the proposed settlement in general or if you object to specific parts of the agreement, you may tell the Court or the lawyers for the inmates. If you object, you may communicate your objection by either:
1. Mailing a written objection to the Clerk of the Court, U.S. District Court, 333 Lomas Blvd NW, Albuquerque NM 87102 by ________ [60 days from the date of first notice, consistent with the Federal Judicial Center’s recommendation]; or
2. Explaining your objection to the lawyers for the people detained at the MDC by ____________ [60 days from the date of first notice]. The lawyers will then describe your objection to the Court before or during the fairness hearing.
Be sure to include your name, address, telephone number, your signature, and the reasons you object to the settlement.
If you do not submit your objection by [date based on time frame above], the only way you can inform the Court of your objection is to appear in person to address the Court at the fairness hearing.
THE COURT’S FAIRNESS HEARING
The United States District Court will hold a hearing to decide whether to approve the proposed settlement of the McClendon class action case. The hearing is scheduled for ______ am/pm on __________, 2016, at the United States Courthouse at 421 Gold Avenue SW, Sixth Floor.
At the hearing, the Court will consider all timely written objections it has received directly, all objections that have been shared with counsel for the inmates, and all objections stated in open court during the hearing.
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Case 6:95-cv-00024-JAP-KBM Document 1213-6 Filed 03/22/16 Page 8 of 8
After considering all objections and analyzing the settlement agreement to determine whether it is fair to the class and subclass, the Court will decide whether to accept the settlement.
GETTING MORE INFORMATION
Complete copies of the settlement agreement, including all three check-out audit agreements, are available: 1. at the security desk in each housing unit; 2. in the MDC law library; and 3. on-line at the Bernalillo County web site http://www.bernco.gov/[add full cite]. If you have questions, please do not send them to the Court. Please contact the lawyers and their staff.
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 Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 1 of 10

FILED
UNITED STATES DIS!F:'CT COURT ALBUQUERQUE, ~·Jf.VV r,1EXICO

AUB 1 9 2·014
IN THE UNITED STATES DISTRICT COURT

J. FORTHEDISTRICTOFNEWMEXI%lATTHEW DYKMAN

JIMMY (BILLY) McCLENDON, et al.,

.

CLERK

Plaintiffs,

vs. .

No. CIV 95-24 JAP/KBM

CITY OF ALBUQUERQUE, et al., Defendants,
vs.

E.M., R.L. W.A. D.J., P.S., and N.W. on behalf of themselves and all other similarly situated,

Plaintiff-Intervenors.

AMENDED ORDER RESOLVING TWO MOTIONS AND ORDER TO SHOW CAUSE This matter comes before the Court regarding the resolution of two motions: (1) Plaintiffs
And Plaintiff-Intervenors' Joint Motion For A Temporary Restraining Order And For Injunctive Relief [Doc. 1133] and (2) County Defendant's Motion To Terminate Certain Prior Orders Granting Prospective ReliefBased On The Prison Litigation Reform Act [Doc. 1135]; and the Court's Order to Show Cause [Doc. 1015]. Based on the evidence provided at the April 29, 2014 hearing and the agreement of the parties, the Court finds as follows pursuant to 18 U.S.C. § 3626(a)(l):
1. One or more violations of the federal rights of class and sub-class members alleged in the Court's Order to Show Cause [Doc. 1015] and Plaintiffs And PlaintiffIntervenors'

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 2 of 10
Joint Motion For A Temporary Restraining Order And For Injunctive Relief [Doc. 1133] have occurred at the MDC;
2. Defendant Bernalillo County has already begun steps to remedy the problems alleged in the Plaintiffs and Plaintiff-Intervenors' motion and the Court's Order to Show Cause [Doc. 1015];
3. It is in the best interests of Defendant Bernalillo County, the Plaintiffs, the Plaintiff-Intervenors, and the public for this Order to be entered at this time, without the expense and distraction of further litigation; and
4. The Order is proper and all of the relief described in this Order: a. is narrowly drawn; b. extends no further than necessary to correct the violations of the federal
rights of class and sub-class members; c. is the least intrusive means necessary to correct the violations of the
federal rights of class and sub-class members; and d. will have no adverse impact on public safety or the operation of the
criminal justice system. It is hereby ordered that Defendant Bernalillo County, Plaintiffs, and Plaintiff-futervenors
will implement the following. RESOLUTION OF PENDING MOTIONS
On July 24,. 2013, the Court entered its Order to Show Cause [Doc. 1015]. On April 23, 2014, counsel for the class and sub-class filed Plaintiffs And Plaintiff-lntervenors' Joint Motion For A Temporary Restraining Order And For Injunctive Relief[Doc. 1133]. On April 25, 2014,
2

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 3 of 10
counsel for Defendant Bernalillo County filed County Defendant's Motion To Terminate Certain Prior Orders Granting Prospective Reiief Based On The Prison Litigation Reform Act [Doc. 1135]. The Court has received a report from Special Master Alan C. Torgerson that it is in the mutual interests of the parties to resolve these two motions and the Court's order to show cause on the following terms. This Order resolves only these two motions and the order to show cause. It is not intended to resolve all issues between the parties.
TERMS 1. The parties to this Order agree as follows:
a. Plaintiffs and Plaintiff-Intervenors agree to withdraw Plaintiffs And Plaintiff-Intervenors' Joint Motion For A Temporary Restraining Order And For Injunctive Relief[Doc. 1133];
·b. Plaintiffs and Plaintiff-Intervenors agree that this Order resolves all matters which the Court's Order to Show Cause [Doc. 1015] seeks to enforce and compensate; and
c. Defendant Bernalillo County agrees to (i) withdraw County Defendant's Motion To Terminate Certain Prior Orders Granting Prospective ReliefBased On The Prison Litigation Reform Act [Doc. 1135] and (ii) not file another motion based upon the Prison Litigation Reform Act within eighteen months after the Court accepts the Emergency Population
e"'h f's tkt.s a( cl~ -r
Management Plan. 2. Defendant Bernalillo County, counsel for Plaintiffs, and counsel for Plaintiff-
Intervenors will work with the Court's jail operations expert, Manuel Romero, to address the practices alleged in Plaintiffs And Plaintiff-Jntervenors' Joint Motion For A Temporary
3

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 4 of 10
Restraining Order And For Injunctive Relief [Doc. 1133] and in the Court's Order to Show Cause [Doc. 1015] by modifying policies and procedures which Defendant Bernalillo County will effectively implement to:
a. In consultation with Manuel Romero, ensure that no individual class or sub-class member housed in the segregation unit is deprived of the daily hour of out of cell time required by the Court's orders of March 20, 2013 [Doc. 989] and May 22, 2013 [Doc. 1004], except in the case of a lockdown or discipline which is administered in conformity with the due process clause of the United States Constitution.
b. In consultation with Manuel Romero, develop and implement a consistent method of ensuring that there is adequate, accessible, and verifiable documentation of denial of out of cell time.
c. In consultation with Manuel Romero, terminate the "Inmate Segregation Behavior Restriction Program" and implement a policy which properly achieves inmate behavior modification and conforms with the requirements of the Americans with Disabilities Act as set forth in the Court's November 5, 1996 Order [Doc. 256], and conforms with the requirements of the United States Constitution;
d. In consultation with Manuel Romero, ensure that all MDC-wide or unitwide behavior modification programs are instituted only pursuant to a written MDC policy approved by MDC administrator(s) and the County Legal Department;
e. Ensure that Defendant Bernalillo County only subjects class and sub-class members to discipline or punishment in conformance with the due process clause of the United States Constitution;
4

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 5 of 10

£

In consultation with Manuel Romero, discontinue reliance on the reactive

control model ("RCM") for use of force training, policies, and practices, or modify the RCM as

appropriate to ensure that MDC training, policies, and practices regarding the use of force

conform to the requirements of the Americans with Disabilities Act as set forth in the Court's

November 5, 1996 Order [Doc.· 256], and with the requirements of the United States

Constitution;

g. In consultation with Manuel Romero, develop and implement a use of

force policy which sets the criteria under which all corrections officers are authorized to use

force of any type, including but not limited to OC spray and the Taser;

h. Ensure that every MDC employee who uses physical force, including but

not limited to OC spray or a Taser, prepares and submits a written report explaining the

circumstances of the incident to his or her supervisor. The report will be prepared on the date of

the incident and prior to leaving the MDC;

i.

Eusure that for a period of six months after the Court's entry of this Order,

MDC provides copies of all reports created pursuant to paragraph 2(h) to counsel for Plaintiffs

and Plaintiff-Intervenors at the end of each month without the need for a request by counsel;

J.

Ensure that all MDC staff receives documented training on all changes to

be implemented to the policies regarding out of cell time, the use of force and inmate security,

and inmate discipline and grievances, with particular attention to training MDC staff on the chain

of command and compliance with MDC policy directives;

k. Ensure that no fewer than two separate housing units are used for female

. inmates requiring segregation. However, when the population of the MDC allows, MDC may

5

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 6 of 10

house female inmates of different classifications in one unit so long as MDC separates women

with different classifications using security barriers. However, Defendants may only reduce the

number of segregation units for female inmates pursuant to a plan approved by Manuel Romero.

1.

Ensure that inmates are not triple celled;

m. Ensure that inmates requiring segregation who are high risk, security

threats, seriously mentally ill, disciplinary, or reclassification are not double celled, unless those

inmates have been determined to be compatible using a reliable objective classification tool.

Segregation inmates who are in protective custody or new inmates may be double celled if they

·have been determined to be low risk and compatible using a reliable classification tool;

n. Ensure that inmates who have committed acts of violence are not housed

with inmates who have not committed such acts by using a pre-classification triage system as

recommended by the Department of Justice NIC;

o. Ensure that inmates who have not yet been classified are not housed in the

same pod as inmates who require segregation, as recommended by the NIC;
p. Promptly consult with Manuel Romero regarding a staffing plan for the

MDC and, after the consultation, submit to the Court no later than November 1, 2014 a written

staffing plan which Defendant Bernalillo County will implement to ensure that staffing at the

MDC is adequate to comply with the Court's orders, to comply with the Americans with

Disabilities Act as set forth in the Court's November 5, 1996 Order [Doc. 256], and to comply

with the United States Constitution; and

q. Defendant Bernalillo County will create an Emergency Population

Management Plan in cooperation with Criminal Justice Review Commission (CJRC) to ensure

6

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 7 of 10

.

.

+..,, h I' ,., ..(.

that the population at MDC remains at or under 1950. The County will have one hundred eighty

(180) days from the date of the entry of this Order to agree with the CJRC on a Plan and have the

agreement accepted by the Court, after input by the parties. If the County does not meet the one

hundred eighty (180) day deadline or the Court does not adopt the Plan, the Court will enter an

Order imposing a population cap of 1950.

3. In the event that Defendant Bernalillo County, counsel for Plaintiffs, and counsel

for Plaintiff-Intervenors do not agree about how to accomplish the requirements identified in

paragraphs 2(a)-(q) of this Order, Mr. Romero will resolve the disagreements and issue binding,

written decisions regarding the content of applicable policies and procedures as well as the

effective implementation of those policies and procedures about which the parties did not reach

agreement.

4. Defendant Bernalillo County, counsel for Plaintiffs, and counsel for Plaintiff-

Intervenors will work with the Court's mental health care expert, Dr. Jeffrey Metzner, to address

the practices alleged in Plaintiffs And Plaintiff Intervenors' Joint Motion For A Temporary

Restraining Order And For Injunctive Relief[Doc. 1133] by modifying policies and procedures

·which Defendant Bernalillo County will effectively implement to:

a. Ensure that Defendant Bernalillo County does not place a class member or

sub-class member in a dry (no toilet) cell, unless a medical professional and, as appropriate, a

mental health professional has approved the inmate's placement in that cell.

b. Ensure that Defendant Bernalillo County does not place a class member or

sub-class member in a strip (with a toilet) cell, unless a mental health professional has approved

the inmate's placement in that cell.

7

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 8 of 10

c. Ensure that sub-class members with Serious Mental Illness who are held

in segregation receive the mental health treatment which comports with the requirements of the

Americans with Disabilities Act as set forth in the Court's November 5, 1996 Order [Doc. 256],

and with the requirements of the United States Constitution;

d. Ensure that all MDC staff receives documented training on all changes to

be implemented to policies related to inmate mental health care, with particular attention to

training MDC staff on the chain of command and compliance with MDC policy directives.

5. In the event that Defendant Bernalillo County, counsel for Plaintiffs, and counsel

for Plaintiff-Intervenors do not agree about how to accomplish the requirements identified in

paragraphs 4(a)-(d) of this Order, Dr. Metzner will resolve the disagreements and issue binding,

written decisions regarding the content of applicable policies and procedures as well as the

effective implementation of those policies and procedures about which the parties did not reach

agreement.

6. The Plaintiffs, Plaintiff-Intervenors, and Defendant Bernalillo County do not

intend to create in any non-party the status _of third-party beneficiary. This Order will not be

construed so as to create a private right of action to any non-party against the defendants. The

rights, duties and obligations contained in this Order will only bind the parties to this Agreement.

.

elllkr'S /;.is d- ~

7. Eighteen months after the Court accepts the Emergency Population Management

Plan, the County Defendants reacquire the right to file motions under the Prison Litigation

Reform Act.

8. Any request for a modification of this Order will be mediated by the Special

Master before it is submitted to the District Court for consideration.

8

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 9 of 10
9. Any claimed breach of this Order will be mediated by the Special Master before it is submitted to the District Court for consideration.
It is so ordered. n. James A. Parker ·ted States District Judge
9

Case 6:95-cv-00024-JAP-KBM Document 1161 Filed 08/19/14 Page 10 of 10

Randy A tio Attorney for County Defendants
µid GL
Peter Cubra Attorney for Plaintiff-Intervenors

Luis Robles Marcus Rael Attorney for County Defendants
·dJ-
JefrreyLBafu Attorney for County Defendants
~-
Kirtan Khalsa Attorney for Plaintiffs
kt ch #J l. AfD;cy 5ttY'16"1$
Nancy L. siffilTIOllS
Attorney for Plaintiff-Intervenors

10

 
 Case 6:95-cv-00024-JAP-KBM Document 1225 Filed 06/27/16 Page 1 of 26

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO
JIMMY (BILLY) McCLENDON, et al., Plaintiffs,

vs.

Case No. 95 CV 024 JAP/ACT

CITY OF ALBUQUERQUE, et al., Defendants.

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff Intervenors.

MEMORANDUM OPINION AND ORDER GRANTING APPROVAL OF SETTLEMENT AGREEMENT This class action lawsuit was brought in 1995 against the City of Albuquerque (City), Bernalillo County, New Mexico (the County), and other defendants to address conditions of confinement in the Bernalillo County jail system, namely the Bernalillo County Detention Center (BCDC) in downtown Albuquerque, New Mexico and later on, the Metropolitan Detention Center (MDC), operated by the County. Since 1996, the Court has approved numerous settlement agreements involving the BCDC and the MDC. On March 22, 2016, the Court granted preliminary approval of the SETTLEMENT AGREEMENT (Doc. No. 1222-1), which sets forth a process by which the County can achieve and solidify improvements in conditions at the MDC and eventually bring an end to this lawsuit that has been pending for over twenty years. See
1

Case 6:95-cv-00024-JAP-KBM Document 1225 Filed 06/27/16 Page 2 of 26
STIPULATED ORDER PRELIMINARILY APPROVING SETTLEMENT, REQUIRING
NOTICE TO CLASS AND SUBCLASS MEMBERS, AND SETTING FAIRNESS HEARING
(Doc. No. 1213) (Order of Preliminary Approval). On May 25, 2016, the Court held a hearing on
final approval of the Settlement Agreement. At the hearing, the Court asked counsel for the class,
the subclass, and the County to submit briefs addressing the fairness of the Settlement Agreement and the objections submitted by current and former inmates at MDC.1 See
BRIEFING REGARDING SETTLEMENT AGREEMENT (Doc. No. 1223) and
MEMORANDUM BY PLAINTIFFS AND PLAINTIFF INTERVENERS, REGARDING
APPROVAL OF SETTLEMENT AGREEMENT (Doc. No. 1224). After considering the long
history of this case, the improvements in conditions of confinement at the MDC, the objections
to the Settlement Agreement, and the arguments of counsel for the class, subclass, and the County, the Court will overrule the objections and will approve the Settlement Agreement.2
I. BACKGROUND
A. 1995–1997: Initial Settlement Agreements
On January 10, 1995, Plaintiffs brought this case alleging that the Defendants operated
the Bernalillo County Detention Center (BCDC) in a manner that violated both the United States and New Mexico Constitutions and federal and state statutory law. COMPLAINT (Doc. No. 1).3
1 On April 4, 2016, twenty class and subclass members filed a joint objection to the Settlement Agreement. (Doc. No. 1215.) During monitoring visits on April 12 and 28, 2016, counsel for Plaintiffs and Plaintiff Intervenors met with most of the objectors who were still in custody to discuss their specific objections. On May 16, 2016, counsel for Plaintiff Intervenors met with subclass member, Lafayette Stone, who stated several objections to the Settlement Agreement. On May 23, 2016, counsel for Plaintiff Intervenors received a phone call from subclass member, Lewis Daniel Fernandez, who stated several objections to conditions at MDC. At the hearing, former MDC inmate Thomas Sheridan testified as to his proffered objections to the Settlement Agreement. Despite the objections, counsel for Plaintiffs and Plaintiff Intervenors maintain that the Settlement Agreement is in the best interests of all of their clients. The Court will address the objections below. 2 The Court also considered the June 21, 2016 Seventh Report by Manuel D. Romero, the Court’s expert on conditions of confinement. 3 The City and the County operated the BCDC under a Joint Powers Agreement. Under the Joint Powers Agreement, the City and County were jointly responsible for funding the operation and maintenance of the BCDC.
2

Case 6:95-cv-00024-JAP-KBM Document 1225 Filed 06/27/16 Page 3 of 26
The lengthy Complaint was divided into three parts: (1) overcrowding claims;4 (2) constitutional claims; and (3) individual claims.
On August 23, 1995, the Court issued a Preliminary Injunction (Doc. No. 106) enjoining Defendants from housing more inmates than the BCDC was designed to house. ORDER (Doc. No. 106).5 On September 7, 1995, Plaintiffs and Defendants entered into a settlement agreement in which Defendants agreed to convert the August 23, 1995 Preliminary Injunction into a permanent injunction. The Court approved the settlement agreement and retained jurisdiction to enforce or modify the permanent injunction. (Doc. Nos. 115; 116.)
On October 26, 1995, Plaintiff Intervenors, representing a subclass of prisoners with mental illness and/or mental disabilities, intervened in the case. (Doc. Nos. 137; 257.) However, Plaintiff Intervenors were allowed to intervene only on the claims “in the original Plaintiff’s Complaint and the . . . issues addressed in the Court’s prior orders . . . .” (Id. at 2.) Plaintiff Intervenors alleged violations of the United States Constitution, Title II of the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA), and the Rehabilitation Act (RA) (29 U.S.C. §§ 701 et seq.). (Doc. No. 150.)
On April 26, 1996, Congress enacted the Prison Litigation Reform Act, Pub. L. No. 104134, 110 Stat. 1321 (codified as amended in several titles and sections of U.S.C. including 18 U.S.C. § 3626 and 42 U.S.C. § 1997e) (the PLRA). The PLRA imposed specific requirements regarding prospective relief in all prison conditions cases, whether the relief was ordered prior to or after its enactment, and the PLRA allowed termination of existing remedial orders in prison
4 The COMPLAINT alleged that over 1000 inmates were housed in the BCDC, which was designed to house 586 inmates. (Doc. No. 1 at 10 ¶ 3.18.) 5 Enforcement of the cap on BCDC’s population at its design capacity was delayed for one year, until August 23, 1996. Id. at 12.
3

Case 6:95-cv-00024-JAP-KBM Document 1225 Filed 06/27/16 Page 4 of 26
conditions cases. 18 U.S.C. § 3626.6 After the PLRA was enacted, the City and County moved to terminate the remedial orders entered in 1995 and 1996. The termination motion was resolved in November 1996, when the Court approved two settlement agreements and adopted them as consent decrees. The first settlement agreement was executed by Plaintiffs, Plaintiff Intervenors, the City, and the County. See ORDER REGARDING THE PRISON LITIGATION REFORM ACT (Doc. No. 255) (the PLRA Order). In the PLRA Order, the Court found that “violations of one or more federal rights of BCDC residents ha[d] occurred at BCDC.” (Id. at 1.) The second settlement agreement was executed by Plaintiff Intervenors, the City, and the County. See ORDER (Doc. No. 256) (the 1996 Order). In the 1996 Order, the Court found that “violations of one or more federal rights of subclass members have occurred at BCDC.” (Id. at 1.) The 1996 Order contained a stipulation by the parties that some of the BCDC residents were not afforded “reasonable accommodations for their disabilities.” (Id. at 7.) In the 1996 Order, the Court required Defendants to implement remedial measures designed to address the needs of inmates with mental illness and/or mental disabilities, particularly with regard to the diagnosis and medical treatment of those inmates. (Id. at 8–17.)
On January 10, 1997, the Court held a fairness hearing on the 1996 settlement agreements under Fed. R. Civ. P. 23(e). On August 12, 1997, the Court entered the CORRECTED ORDER APPROVING COMPROMISE & SETTLEMENT AGREEMENT & FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE (Doc. No. 289) (the 1997 Judgment) approving the two November 1996 settlements and dismissing with prejudice all claims except the Plaintiff Intervenors’ claims regarding equal protection and access to the courts, which were asserted on behalf of female subclass members. (Id. at 5.) The 1997 Judgment contained the findings
6 In the PLRA, a prisoner is defined to include inmates and detainees in a local jail or detention center. 42 U.S.C. § 1997e(h).
4

Case 6:95-cv-00024-JAP-KBM Document 1225 Filed 06/27/16 Page 5 of 26
required by the PLRA,7 and the Court retained jurisdiction to enforce those agreements. (Id. at 8– 10.)
B. 1997 to 2003: Management of BCDC Population. Between 1997 and 2003, despite efforts made by the County to reduce the inmate population, the BCDC continued to be overcrowded. On September 25, 2000, the Court entered an Order (Doc. No. 315) finding that the Defendants had been in violation of the population cap imposed in the PLRA Order for eleven of the preceding twelve months and that the population at the BCDC at times approached the dangerously high population that existed at the time of the August 23, 1995 preliminary injunction. The Court noted that the Defendants employed various means to bring the population down including “building an interim westside facility, asking law enforcement agencies to issue citations rather than incarcerating people whenever appropriate . . . subsidizing the cost of Pre-Trial Services . . . paying for Saturday Metropolitan Court arraignments . . . and renting beds in out-of-county jails.” (Id. at 3.) The Court ordered Defendants to comply with the PLRA Order, and to . . . consider and implement other measures . . . to reduce the population of BCDC.” (Id. at 4.)
C. 2003: Metropolitan Detention Center Opens. In the summer of 2003, construction of the new 2100-bed Metropolitan Detention Center (MDC) was completed. By June 17, 2003, all inmates housed at the BCDC had been transferred to the MDC. On July 11, 2003, the Court ruled that previous orders applied to the MDC and that the Court had continuing jurisdiction to enforce those orders. (Doc. No. 416.) The Court recognized that many of the provisions in the previous remedial orders addressed conditions that
7 Under the PLRA, a court may not approve prospective injunctive relief in any civil action with respect to prison conditions unless the court finds that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation. 18 U.S.C. § 3626(a)(1)(A).
5

Case 6:95-cv-00024-JAP-KBM Document 1225 Filed 06/27/16 Page 6 of 26
were not limited to BCDC, such as, medical care, access to the judicial system, transportation to court, staff training, and benefits for inmates. (Id. at 10.) In other words, the remedial orders concerned not just the physical conditions at the BCDC but also the treatment of inmates housed there, which implicated policies and procedures used by Defendants in all jail facilities. (Id.) Despite the passage of time and the opening of the new facility, the Court determined it had “. . . continuing jurisdiction to monitor conditions of confinement of the class and sub-class members at the MDC facility.” (Id. at 15.)
D. 2003 to 2009: The Stipulated Settlement Agreements. On October 10, 2003, the City and County moved to vacate the PLRA Order and the 1997 Judgment under Fed. R. Civ. P. 60(b)(5) and (6). The City and County asked the Court to reconsider its decision to exercise its jurisdiction over the MDC reiterating that the 1996 PLRA Order and the 1997 Judgment could not be applied to the MDC. Doc. No. 421 at 1. In 2005, while the motion was pending, the parties entered into two settlement agreements, which the Court adopted as remedial orders: (1) STIPULATED SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND DEFENDANTS (Doc. Nos. 480; 515) (Plaintiffs’ SSA); and (2) STIPULATED SETTLEMENT AGREEMENT BETWEEN PLAINTIFF INTERVENORS AND DEFENDANTS (Doc. No. 514) (Plaintiff Intervenors’ SSA) (together the 2005 SSAs). The stated purpose of the Plaintiffs’ SSA was to “maintain and improve the conditions at the [MDC] for the benefit of the Defendants, their employees, agents and staff and for the benefit of the Plaintiff class.” (Plfs’ SSA at 2.) The stated purpose of the Plaintiffs Intervenors’ SSA was to “describe conditions both parties wish to see maintained or improved at the [MDC] . . . .” (Plf Intervenors’ SSA at 2.)
6

Case 6:95-cv-00024-JAP-KBM Document 1225 Filed 06/27/16 Page 7 of 26
On March 31, 2009, the Court issued a MEMORANDUM OPINION AND ORDER (Doc. No. 699) in which the Court determined that inmates at the renovated BCDC, renamed the Regional Corrections Center (RCC), were potential class and subclass members because the County had maintained operational control over the RCC. Instead of allowing the parties to modify the 2005 SSAs, as requested by Plaintiffs and Plaintiff Intervenors, the Court gave the Plaintiffs and Plaintiff Intervenors the option to rescind the 2005 SSAs. In April 2009, the Plaintiffs and Plaintiff Intervenors rescinded the 2005 SSAs.8 On May 18, 2009, United States District Judge Martha Vazquez recused from the case. On May 19, 2009, Senior United States District Judge James A. Parker was assigned to the case.
E. 2009 to 2014: Experts Appointed and Population Controlled. On July 13, 2009, Plaintiffs and Plaintiff Intervenors, citing continued limitations on counsels’ access to class and subclass members at the MDC, filed a motion to allow counsel access to the MDC for monitoring purposes. District Judge Parker and Magistrate Judge Alan C. Torgerson held a hearing on July 20, 2009 and instructed the parties to meet with Magistrate Judge Torgerson and produce an agreed order regarding access to the MDC. (Doc. No. 739.) On September 17, 2009, Magistrate Judge Torgerson entered the INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 754) (Interim Order). On February 1, 2010, the Court adopted the Interim Order over objections. (Doc. No. 768.) On July 7, 2011, Plaintiffs and Plaintiff Intervenors filed a joint motion to appoint the three experts who had monitored the MDC under the 2005 SSAs. (Doc. No. 849.) The three experts were Dr. Timothy Greifinger, an expert on inmate medical care, Dr. Jeffrey Metzner, an expert on inmate mental health care, and Manuel Romero, an expert on conditions of
8 On April 24, 2009, the County appealed the March 31, 2009 ruling, but the appeal was dismissed. McClendon v. City of Albuquerque, 630 F.3d 1288 (10th Cir. 2011).
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confinement. On December 7, 2011, the Court appointed the three experts under Fed. R. Evid. 706 and asked the experts to evaluate conditions at the MDC in the areas listed in the 2005 SSAs. (Doc. No. 909.)
On February 26, 2013, after receiving reports from the three experts on conditions at the MDC, which had become dangerously overcrowded, the Court issued an ORDER TO SHOW CAUSE (Doc. No. 981). The Court ordered the City and the County to appear on March 28, 2013 and show cause why the MDC should not cease “. . . housing female residents, who have not been classified or who have different classifications, in the same Segregation housing unit.” Id. at 2. On the date of the hearing, the parties agreed to alter the conditions for female inmates at MDC, and the Court adopted the agreement in the ORDER VACATING ORDER TO SHOW CAUSE (Doc. No. 989).
On April 19, 2013, the Court issued another ORDER TO SHOW CAUSE (Doc. No. 995) based on the experts’ reports, information from Magistrate Judge Torgerson regarding ongoing issues at the MDC, and information from the Court’s tours of the MDC. On May 22, 2013, the parties presented a stipulated ORDER RESOLVING ORDER TO SHOW CAUSE (Doc. No. 1004), requiring the County to draft a plan addressing the matters described in the ORDER TO SHOW CAUSE (Doc. No. 995) and to implement the plan by certain dates. The ORDER VACATING ORDER TO SHOW CAUSE (Doc. No. 989) and the ORDER RESOLVING ORDER TO SHOW CAUSE (Doc. No. 1004) will be referred to as the 2013 Stipulated Orders.
On July 24, 2013 the Court issued yet another ORDER TO SHOW CAUSE (Doc. No. 1015) requiring the County to show how it had complied with the 2013 Stipulated Orders. On August 8, 2013, the Court held a hearing and heard from the County’s counsel, Mr. Jeffrey Baker, about the County’s inability to implement the changes required in the 2013 Stipulated
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Orders. Those difficulties were primarily driven by the County’s inability to arrange for the
housing of inmates in facilities outside of Bernalillo County. It became clear at this hearing that
the County did not timely comply with the 2013 Stipulated Orders in several areas.
On November 19, 2013 at the Court’s request, Mr. Romero submitted a report assessing
whether the County was in compliance with each item in the 2013 Stipulated Orders. On
November 20, 2013, the Court held a hearing and heard arguments on Mr. Romero’s itemized
report. At the hearing, the Court also heard a report from Ms. Elizabeth Simpson, the County’s population coordinator.9 Ms. Simpson informed the Court about the high incarceration rate in
Bernalillo County as compared with other communities of its size. She outlined the County’s
plan to invest in and expand the pre-trial supervision department and the community custody
program as well as the County’s plans to confront problems in the criminal justice system in
Bernalillo County that affected the length of incarceration for pre-trial detainees.
On May 12, 2014, the Court entered the ORDER RESOLVING TWO MOTIONS AND ORDER TO SHOW CAUSE (Doc. No. 1147).10 In that order, many of the provisions of prior
orders were specifically incorporated. In addition, the May 12, 2014 order provided that the
County would create “an Emergency Population Management Plan in cooperation with the
Criminal Justice Review Commission (CJRC) to ensure that the population at MDC remains at
9 In the ORDER RESOLVING ORDER TO SHOW CAUSE (Doc. No. 1004), the County was required to hire by September 1, 2013, an employee or contractor to monitor “measures for the reduction of the inmate population at the MDC[.]” (Id.) The County hired as a contractor, Ms. Elizabeth Simpson, to act as MDC population coordinator, to address the significant changes needed in the criminal justice system to ease overcrowding at MDC, and to develop alternatives to incarceration of inmates who do not pose a threat to the community. (See Doc. No. 1095, Clerk’s Minutes of Hearing on November 20, 2013.) 10 The order resolved: (1) PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION FOR A TEMPORARY RESTRAINING ORDER AND FOR INJUNCTIVE RELIEF (Doc. No. 1133); (2) COUNTY DEFENDANTS’ MOTION TO TERMINATE CERTAIN PRIOR ORDERS GRANTING PROSPECTIVE RELIEF BASED ON THE PRISON LITIGATION REFORM ACT (Doc. No. 1135) and (3) ORDER TO SHOW CAUSE (Doc. No. 1015). On August 19, 2014, the order was amended as to certain deadlines. See AMENDED ORDER RESOLVING TWO MOTIONS AND ORDER TO SHOW CAUSE (Doc. No. 1161).
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or under 1950.” (Id. at 7.)11 That order also contained provisions for the Court’s experts to
resolve disputes over the implementation of the order’s requirements. The order stated that if the
experts were unable to resolve disputes, the parties were required to mediate their disputes with
Magistrate Judge Torgerson. (Id. at 8–9.)
On May 27, 2014, the Court appointed as Special Master, Alan C. Torgerson, who had
retired from his position as Magistrate Judge. (Doc. No. 1128.) Chief Magistrate Judge Karen
Molzen was assigned as Magistrate Judge in the case.
On June 13, 2014, the Court held a status conference. Ms. Simpson reported that she, on
behalf of the County, had worked with the CJRC, the City, the District Attorney’s Office, the
Public Defender’s Office, Judges of the State Second Judicial District Court, and Judges of the
Albuquerque Metropolitan Court to achieve the population reductions necessary to maintain
MDC population under 1950 inmates. Ms. Simpson reported significant changes that were
designed to lower the MDC population: (1) the creation of a new Assistant District Attorney
(ADA) position, funded by the City and County, to appear at Metropolitan Court Arraignments
and negotiate early plea agreements; (2) the appointment of a pro tempore judge to preside over
11 The CJRC was created by the New Mexico legislature in early 2013. The CJRC is composed of stakeholders in all levels of the criminal justice system in Albuquerque. The legislation charged the CJRC with “reviewing the criminal justice system in Bernalillo county, including judicial process, sentencing, community corrections alternatives and jail overcrowding,” to make written recommendations to revise or replace local and state laws, and to “improve the delivery of criminal justice in Bernalillo county.” NMSA 1978 § 34-9-17.1. The CJRC’s term has been extended to June 30, 2016. Membership in the CJRC consists of the Chief Judges of the Second Judicial District Court and the Metropolitan Court, the County Sheriff, the District Attorney, the Chief of the Albuquerque Police Department, the Chair of the Bernalillo County Commission, the District Public Defender, the Region 2 Manager of NMCD Adult Probation and Parole, the Executive Director of the New Mexico Association of Counties, and the Director of the Second Judicial District Court’s Administrative Office, who serves as Chair of the CJRC.
In February 2015, the CJRC was featured in a report by the National Center for State Courts (NCSC). The NCSC report stated that the changes implemented by the stakeholders in the CJRC “provides a grand lesson in addressing common and seemingly intractable criminal justice challenges. The [CJRC] has been able to breakdown silos and build bridges between local and state government organizations in Greater Albuquerque to successfully confront system wide issues and turn them into opportunities for public good.” Gordon Griller, Integrative Leadership Reducing Felony Case Delay and Jail Overcrowding A Lesson in Collective Action in Bernalillo County, New Mexico, National Center for State Courts, February 2015, http://www.nmcourts.gov/BernalilloCountyCriminalJusticeReviewCommission.
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preliminary hearings; (3) the adoption of a risk assessment tool for judges to use in determining whether inmates were eligible for pre-trial release; (4) the expansion of nolle prosequi dismissals; and (5) the development, with the New Mexico Supreme Court, of a new criminal case management system to move criminal cases through the courts at a faster pace and to address the backlog of cases.12 Mr. Romero worked with both sides to develop comprehensive new MDC policies. Through the efforts of the parties, their counsel, and Mr. Romero, MDC adopted a new use of force policy. Mr. Romero also reported on plans to prepare an MDC staffing plan, to work on a more accurate tracking system for “out of cell” time, and to develop a new “behavior management program” for disciplining inmates.
On September 23, 2014, the Court entered three orders: (1) ORDER INSTRUCTING COURT-APPOINTED JAIL OPERATIONS EXPERT MANUEL ROMERO TO EVAULATE CONDITIONS OF CONFINEMENT AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1167); (2) ORDER INSTRUCTING COURT-APPOINTED MEDICAL EXPERT ROBERT GREIFINGER, M.D. TO EVAULATE CONDITIONS OF CONFINEMENT AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1168)13 and (3) ORDER INSTRUCTING COURT-APPOINTED MENTAL HEALTH EXPERT JEFFREY METZNER, M.D. TO EVAULATE CONDITIONS OF CONFINEMENT AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1169) (together the 2014 Evaluation Orders). In the 2014 Evaluation Orders, the Court ordered each expert to determine whether the County was in compliance with
12 Effective February 2, 2015, a new Case Management Order (CMO), issued by the New Mexico Supreme Court, took effect. The CMO placed tight deadlines for case management in the Bernalillo County court system and for clearing the backlog of old cases. 13 This order was amended on March 30, 2015. See AMENDED ORDER INSTRUCTING COURT-APPOINTED MEDICAL EXPERT ROBERT GREIFINGER, M.D. TO EVAULATE CONDITIONS OF CONFINEMENT AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1187).
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specific enumerated provisions from its previous orders.14 On November 18, 2014, the Court entered a stipulated order extending the deadline for the County to submit an emergency population plan. (Doc. No. 1178.)
F. The 2015 Settlement Agreement: A Means to the End. At a status conference on March 10, 2015, the Court asked the parties to develop a plan for disengagement of Court oversight and for eventual dismissal of this lawsuit. As Ms. Simpson reported at the status conference, several initiatives designed to reduce the MDC population were working. Ms. Simpson reported the positive effect of the new ADA position on MDC’s population. She stated that the ADA’s appearance at Metropolitan Court arraignments had allowed 472 people to resolve their cases. (Clerk’s Minutes Doc. No. 1186.) Ms. Simpson also reported that MDC’s population was positively impacted by the use of preliminary hearings instead of grand jury proceedings. (Id.) The Court concluded that population reductions at the MDC were resulting in improvements in overall conditions of confinement. According to the April 8, 2016 report from the CJRC, the MDC has been at or below the 1950 inmate population goal for 506 consecutive days. Monthly Report (April 8, 2016), http://www.nmcourts.gov/BernalilloCountyCriminalJusticeReviewCommission. In late 2015 and early 2016, the MDC population has consistently averaged about 1400 inmates. Id. After the March 10, 2015 status conference, the parties, worked with Special Master Torgerson to develop a settlement agreement with a view toward finishing what was started in 1995, while ensuring that the positive changes in the conditions at MDC
14 The 2014 Evaluation Orders resolved the COUNTY DEFENDANT’S MOTION THAT THE COURTAPPOINTED EXPERTS EVALUATE WHETHER CONDITIONS AT THE MDC ARE CURRENT AND ONGOING VIOLATIONS OF FEDERAL CONSTITUTIONAL RIGHTS (Doc. No. 1102) filed on December 19, 2013).
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would become permanent. After several months of negotiations, the parties produced the Settlement Agreement that the Court is now considering for final approval. The Settlement Agreement requires the County to first demonstrate initial compliance with numerous standards outlined in three Check-Out Audit Agreements. (Doc. Nos. 1222-2, 1222-3, and 1222-4.) The Check-Out Audit Agreements correspond with each expert’s area of evaluation and contain virtually every substantive requirement from previous orders.
Check-Out Audit Agreement No. 1 (Doc. No. 1222-2) (COA 1) governs “the provision of all medical services” other than mental health services. For example, COA 1 requires the Court’s medical expert, Dr. Greifinger, to evaluate whether MDC “is conducting and completing a history and physical exam of each inmate in a timely manner, i.e., within 72 hours for inmates with serious medical needs identified at booking and no later than 14 days otherwise.” (COA 1 at 2.) Dr. Greifinger will also assess “whether MDC inmates who complain orally or in writing of serious acute illness or serious injury are given immediate medical attention[.]” (Id.) Dr. Greifinger must also determine “[w]hether there are systemic and gross deficiencies in staffing, facilities, equipment, or procedures[]” in MDC’s medical care. COA 1 outlines in great detail the requirements for treatment of inmates with special physical needs. (COA 1 at 4–6.)
Check-Out Audit 2 (Doc. No. 1222-3) (COA 2) governs the “provision of all mental health services” at the MDC. For example, COA 2 requires the Court’s mental health expert, Dr. Metzner, to evaluate whether MDC “screens all inmates with qualified Medical Staff upon booking at MDC, but no later than four (4) hours after booking, to identify the inmate’s risk for suicide or self-injurious behavior.” (COA 2 at 2.) Dr.
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Metzner must also analyze “[w]hether MDC Qualified Medical Staff . . . develop and implement an acuity or triage scheme . . . to ensure that inmates with immediate mental health needs are prioritized for services.” (Id. at 3.) Dr. Metzner must also decide “[w]hether a psychiatrist assesses (no later than the business day after an inmate’s admission) any inmate who: (1) reports being on any psychiatric medication when taken into custody; (2) requests any psychiatric medication or other psychiatric service; or (3) has been identified by any mental health or health professional at the jail as appropriate for a psychiatric assessment.” (COA 2 at 4.)
Check-Out Audit Agreement 3 (Doc. No. 1222-4) (COA 3) governs the general conditions of confinement at MDC. COA 3 requires the Court’s operations expert, Mr. Romero, to evaluate numerous areas of operation within the MDC. For instance, Mr. Romero must determine whether MDC has created an Emergency Population Management Plan in cooperation with the CJRC to ensure that the population at MDC remains at or under 1950. Mr. Romero must determine whether the County is “continuing to use all appropriate population management tools[;]” “has developed and effectively implements comprehensive and contemporary policies regarding the appropriate use of force[;]” and “maintains and effectively implements policies and procedures for a formal disciplinary process[.]” (COA 3 at 2–17.) Mr. Romero will also analyze whether MDC maintains an “objective classification system that separates inmates in housing units by classification levels in order to protect inmates from an unreasonable risk of harm.” (COA 3 at 17.) Mr. Romero must determine whether MDC has adopted and implemented an effective inmate grievance system to ensure that grievances are available in English and Spanish, that grievances may be accessed and filed confidentially, and that
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grievances receive an appropriate response. (COA 3 at 19.) In sum, Mr. Romero will evaluate the management and operation at MDC to ensure that conditions at MDC are in accordance with generally accepted correctional standards. (COA 3 at 2–39.)
After the Court finds that the County is in initial compliance with a set of requirements outlined in one area described in the relevant Check-Out Audit Agreement, known as a domain,15 the County must continue to meet the domain’s requirements for a Court-imposed period of time. (Settlement Agreement at 5.) During that period of time, the County will “self-monitor” the particular conditions at issue. (Id. at 6.) In that regard, the experts and the County will develop self-monitoring protocols to collect and review data and “provide a written analysis of whether the County is substantially complying with each of the substantive requirements set forth in the applicable Check-Out Audit Agreement.” (Id.) During the self-monitoring period, the County must submit quarterly reports to the appropriate expert and to counsel for Plaintiffs and Plaintiff Intervenors to allow a determination as to whether the County remains in compliance with the particular requirements of the domain at issue. (Id.)
At the completion of the self-monitoring period, the experts must conduct “Check-Out Audits” as to each domain and make a finding of compliance, partial compliance, or non-compliance using the standards set out in each Check-Out Audit Agreement. (Id. at 7–8.) After each expert completes a Check-Out Audit, the expert is
15 There are a total of eight domains: 1) medical services; 2) mental health services; 3) operations Group A; 4) operations Group B; 5) population management; 6) housing and segregation; 7) sexual misconduct; and 8) use of force and internal investigations. Operations Group A consists of 1) fire and life safety; 2) sanitation; 3) laundry; 4) food service; 5) mail service; 6) access to telephones; 7) access to commissary; 8) access to community services; and 9) competency evaluations. Operations Group B consists of 1) inmate discipline; 2) classification; 3) grievance procedure; 4) safety and supervision; 5) contraband control; 6) staffing; 7) access to counsel and legal materials; 8) law library; 9) programming; 10) access to information; and 11) supplemental categories set forth in ¶¶ 6(Y) and 6(Z) concerning patterns of dangerous conduct by security staff or deficiencies in security staff and communication between health care staff and correctional staff.
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required to submit to the Court proposed findings of fact with respect to each subcategory of the applicable Check-Out Audit Agreement. (Id. at 8.) Based on the County’s selfmonitoring reports as well as the experts’ proposed findings at the Check-Out Audits, the Court will determine “whether the record supports a finding of sustained substantial compliance as to each domain.” (Id. at 8.) After a finding of sustained substantial compliance, the extant orders governing that particular domain will be vacated and thus removed from the specific reporting and other requirements imposed by the applicable Check-Out Audit Agreement. (Id. at 9–10.)
Once the County has demonstrated sustained substantial compliance in each of the eight domains, the Court will enter a Permanent Injunction with the following provisions: 1) the population of the MDC will be limited to the operational capacity of the MDC, which as of this date is 1950; 2) no inmates will be triple-celled; 3) no inmates will sleep in day rooms, except for detoxification units; 4) high risk or security threat inmates or inmates requiring segregation will not be double-celled with other inmates unless determined to be compatible; 5) segregated inmates who are in protective custody or new intakes may be double celled if they have been determined to be low risk and compatible; and 6) unclassified inmates will not be housed with segregated inmates. The permanent injunction will contain the findings required by the PLRA. After entry of the Permanent Injunction, the Court may dismiss all claims and vacate all extant orders.
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II. LEGAL STANDARD Rule 23(e) governs the settlement of class actions: The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. . . . (5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court’s approval. Fed. R. Civ. P. 23(e). Rule 23(e)(1) requires the district court to give class members notice of a proposed class settlement “in a reasonable manner.” The notice requirements of Rule 23 are designed to satisfy due process by providing class members the right to notice of settlement and a right to be heard. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173–74 (1974). Notice, therefore, “must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 174 (internal quotation marks omitted). Under Rule 23(e)(2), a court may approve a settlement agreement as fair and reasonable if the settlement agreement meets four criteria: (1) the settlement was fairly and honestly negotiated; (2) serious legal and factual questions place the litigation’s outcome in doubt; (3) the immediate recovery is more valuable than the mere possibility of a more favorable outcome after
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further litigation; and (4) the parties believe the settlement is fair and reasonable. Tennille v. Western Union Co., 785 F.3d 422, 434 (10th Cir. 2015).
III. DISCUSSION A. In Accordance With Rule 23(e)(1), Class and Subclass Members Received Adequate Notice.
In the Order of Preliminary Approval, the Court outlined procedures for the County to follow in notifying the class and subclass members of the terms of the settlement. Attached to the Order of Preliminary Approval were the templates for the Summary Notice (Ex. E) and the Full Notice (Ex. F) to be provided to the class and subclass members at the MDC. At the hearing on May 25, 2016, the County presented the testimony of MDC Assistant Chief for Ethics and Compliance Matt Rivera, who is responsible for MDC’s compliance with the Settlement Agreement and the Order of Preliminary Approval. Assistant Chief Rivera testified that he personally directed MDC staff to (1) obtain a certified Spanish language translation of the Summary Notice, the Full Notice, and the Settlement Agreement; (2) post a copy of the Full Notice in English and Spanish in all housing units, the medical services unit, the reception area, the discharge area, the transfer unit and the law library within two days of entry of the Order of Preliminary Approval; (3) post the Summary Notice in the common areas of the segregation units; (4) post a sign stating that each inmate is entitled to a copy of the Full Notice in English or Spanish;16 (5) provide a complete copy of the Settlement Agreement and copies of the CheckOut Audit Agreements in each housing unit, the law library, and electronically in the Kiosk system; (6) post the Settlement Agreement and the Check-Out Audit Agreements on the County’s public website; and (7) publish notice of the Settlement Agreement in the Albuquerque
16 A copy of the sign was admitted as Exhibit C.
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Journal newspaper for six weeks. The County provided documentary evidence that each notice requirement was carried out at the MDC. (See Hearing Exhibits A-G.)
The Court finds that members of the class and subclass were provided reasonable notice of the Settlement Agreement.
B. Settlement Agreement Is Fair and Reasonable Under Rule 23(e)(2). 1. Settlement Agreement Was Fairly and Honestly Negotiated.
The Settlement Agreement negotiations were facilitated by Special Master Torgerson, who has an intimate knowledge of this case and conditions at the MDC, having conducted settlement negotiations over several years as the assigned Magistrate Judge in this case. Special Master Torgerson, counsel for the parties, and representatives of the MDC, negotiated each detail of each provision during numerous meetings, most lasting several hours. Plaintiffs and Plaintiff Intervenors were represented by very experienced civil rights attorneys. Mark Donatelli, Zachary Ives, and Mark Baker represented the Plaintiff class. Peter Cubra, Kelly Waterfall, and Nancy Simmons represented the Plaintiff Intervenors. Collectively, these six attorneys have decades of experience in civil rights cases and prison reform litigation. The County was represented by very capable attorneys with decades of experience, Luis Robles, Taylor Rahn, and Jeff Baker. In addition, numerous MDC staff members participated in the settlement negotiations ensuring that the County had the resources and ability to comply with the terms of the Settlement Agreement. The Settlement Agreement was approved by the Bernalillo County Commission. The Court finds that the Settlement Agreement was fairly and honestly negotiated.
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2. Serious Legal and Factual Questions Place the Outcome in Doubt. a. Extant Orders.
Since its inception, this lawsuit has been in a settlement posture. After the rescission of the 2005 Settlement Agreements, however, the parties have disagreed as to which orders entered prior to the 2005 Settlement Agreements, if any, govern conditions at MDC. The Court ruled that the previous settlement agreements from 1996 were revived after the rescission, but many provisions in those agreements were site-specific to the BCDC. The Settlement Agreement avoids further conflicts concerning which orders, entered in this case during the last two decades, apply to the MDC. The Settlement Agreement encapsulates all relevant provisions from previous orders and removes any doubt as to what provisions apply to the MDC.
b. The PLRA’s Effect on Extant Orders. The PLRA sets forth the requirements for prospective relief in prison conditions lawsuits. (a) Requirements for relief.-(1) Prospective relief.--(A) 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 of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1)(A) and (B). Clearly, the numerous orders entered in this case and the Settlement Agreement grant prospective relief regarding the conditions of confinement at a detention facility; and therefore, the orders are subject to the provisions of the PLRA. After the rescission of the 2005 Settlement Agreements, the Court entered numerous orders governing specific conditions at the MDC, appointing experts to evaluate conditions at the MDC, and resolving orders to show cause. In
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some, but not all, of the orders, the findings required under the PLRA were included. As the County recognizes, if any order that omitted the PLRA findings were attacked, the Court must immediately terminate that order. 18 U.S.C. § 3626(b)(2).17 See, e.g., ORDER RESOLVING ORDER TO SHOW CAUSE (Doc. No. 1004). The Settlement Agreement avoids this risk of termination.
The PLRA also provides for termination of a prospective relief order, upon the motion of a party or intervener—
(i) 2 years after the date the court granted or approved the prospective relief; [or] (ii) 1 year after the date the court has entered an order denying termination of prospective relief[.] 18 U.S.C. § 3626(b)(1)(A) (i) and (ii). If the County brought a motion to terminate, the Court could deny termination, but only after the Court makes written findings based on the record “that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.” 18 U.S.C. § 3626(b)(3). One year later, the County could again move to terminate. 18 U.S.C. § 3626(b)(1)(A)(ii). The Settlement Agreement recognizes and defines for the parties their rights under the PLRA. The Settlement Agreement provides that the County “will reacquire the right to file motions under the [PLRA].” (Settlement Agreement at 14.) As mentioned, the permanent
17 That provision provides, In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
18 U.S.C.A. § 3626(b)(2).
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injunction will be terminable two years after it is entered. (Id. at 12.) Thus, the parties are given ample time to implement the provisions of the Settlement Agreement.
c. Experts Remain Involved. Most importantly, the Settlement Agreement provides for review of conditions at MDC by the Court’s three experts, counsel, the County itself, and the Court to ensure that Plaintiffs’ and Plaintiff Intervenors’ claims remain pending until the County demonstrates it has achieved lasting remedies as to all domains in the Settlement Agreement and the Check-Out Audit Agreements. The self-monitoring requirements are critical because they ensure that the County has the personnel and systems in place to monitor and maintain compliant conditions at the MDC.
d. Avoiding Rule 60(b) Motion to Modify. Fed. R. Civ. P. 60(b)(5) provides that a party may be relieved from an order if “the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.”18 In a landmark institutional reform case, the Supreme Court addressed a defendant’s motion to modify a consent decree. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). The Rufo case involved a longstanding suit over the conditions of confinement in the Suffolk County, Massachusetts Jail. Id. at 372. The parties’ settlement was accepted by the district court and entered as a consent decree. Id. at 375. Several years later, the Suffolk County Sheriff moved to modify the consent decree arguing that the factual circumstances and legal standards had changed. Id. at 376. Both the district court and the court of appeals denied the motion under the “grievous wrong” standard set forth in United States v. Swift, 286 U.S. 106, 119 (1932). Id. The Supreme Court rejected the use of the “grievous wrong” standard in favor of a flexible standard for courts to apply in
18 This right is recognized in the PLRA. See 18 U.S.C. § 3626(b)(4).
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considering the modification of consent decrees in institutional reform cases. Id. at 380. The Supreme Court outlined a two-part test: “a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree,” then the court should “consider whether the proposed modification is suitably tailored to the changed circumstances.” Id. at 383.
The County maintains that in the over two decades of litigation, circumstances certainly have changed. The County believes it could prove that changed factual circumstances warrant modification of the numerous consent decrees in this case under Rufo and its progeny. The Settlement Agreement avoids a time-consuming and contentious motion under Rule 60(b)(5) because it enforces and incorporates the existing consent decrees. In addition, the Settlement Agreement provides that any request for a modification of the Settlement Agreement will be mediated by Special Master Torgerson or by a United States Magistrate Judge before such a request is submitted to this Court. (See Settlement Agreement at 14.)
In sum, even though the case has been in settlement mode for two decades, the Court finds there remain serious legal and factual issues that place the eventual outcome in doubt for both sides. The parties have chosen the Settlement Agreement as an appropriate and effective way to solidify the improvements in conditions at the MDC while avoiding disputes over what orders apply to conditions at MDC and what standards the experts must use to evaluate the conditions at MDC.
3. Immediate Recovery is More Valuable than Mere Possibility of a More Favorable Outcome after Further Litigation.
The Settlement Agreement incorporates definable standards from previous orders and provides more certainty to the class and subclass that the relief won in this case will be sustained and made permanent. Unlike previous orders, the Settlement Agreement adds a new dimension
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to the relief by requiring the MDC to self-monitor over a period of time and report on the sustainability of improved conditions. The parties agree that the defined exit strategy laid out in the Settlement Agreement is more valuable than the mere possibility of a more favorable decision through litigation. In sum, the process laid out in the Settlement Agreement provides a means to make the improvements at MDC permanent. Absent settlement, there is the real possibility that the parties will continue to litigate over what extant orders govern MDC, whether MDC is in compliance with those orders, and whether the orders are subject to Rule 60(b) alteration or PLRA termination. It is hard to see how continued litigation could produce a more favorable outcome.
4. The Parties Believe the Settlement Agreement is Fair and Reasonable and Objections Are Overruled.
The County maintains that the Settlement Agreement is fair and reasonable. Staff at the MDC participated directly in settlement negotiations. Further, the Board of County Commissioners approved the Settlement Agreement after being briefed by legal counsel. Counsel for the class and subclass maintain that the Settlement Agreement is in the best interest of their clients. Counsel for the class and subclass have satisfied the Court that the objections lodged by certain class and subclass members are not sustainable.
The objections submitted by current and former MDC inmates fall into three basic categories. First, some inmates objected to the absence of an award of monetary damages for the class and subclass. However, neither the Complaint (Doc. No. 1) nor the Complaint in Intervention (Doc. No. 150) requested monetary damages. More importantly, the Settlement Agreement does not bar inmates with individual claims from pursuing damages in separate lawsuits.
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Second, the objectors complained that the conditions at MDC are substandard and that their rights are being violated. However, these objections miss the point of the Settlement Agreement, which is carefully designed to resolve the problems in the conditions at MDC over a relatively short time frame, and then more importantly, to demonstrate sustained resolution of the problems over time.19
Third, Mr. Thomas Sheridan, a former inmate at the MDC, testified at the fairness hearing about his concerns with the Settlement Agreement. Mr. Sheridan identified conditions that admittedly need improvement.20 Nevertheless, Mr. Sheridan testified that despite his concerns, he did not wish to prevent the approval of the Settlement Agreement and he deferred to counsel for the class and subclass on whether the Settlement Agreement was fair.
Specifically, Mr. Sheridan testified that he did not think that pre-trial detainees should be housed along with convicted inmates; that after booking, inmates should have access to the contact numbers stored in their cellular telephones; and that the telephone system at the MDC is cumbersome. Mr. Sheridan has a valid legal point. Pre-trial detainees may not be punished per se and must be subject to restrictions only as necessary for proper jail administration. See generally, Bell v. Wolfish, 441 U.S. 520, 530 (1979). Counsel for the class and subclass assured the Court that they will continue to monitor whether pre-trial detainees’ rights are violated. Mr. Sheridan expressed concern that he did not receive a timely response to a grievance submitted through the Kiosk system and that he was not given access to the law library. The Settlement Agreement addresses those issues and counsel for the class and subclass will continue to monitor those
19 Mr. Lafayette Stone telephoned counsel for the class and subclass and also handed a handwritten objection to counsel during an in-person visit. Mr. Stone’s objections were based on the current state of conditions at the MDC rather than the Settlement Agreement itself. Subclass member Mr. Lewis Daniel Fernandez also raised objections in a telephone call to subclass counsel. His objections also concern current conditions at the MDC and are not relevant to the Court’s approval of the Settlement Agreement. 20 Even though other objectors expressed the desire to testify at the fairness hearing, the parties agreed that while any class or subclass member could testify, neither the Settlement Agreement nor due process require that current inmates be transported to the hearing.
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items. Finally, Mr. Sheridan testified that he could not afford basic necessities because the prices at the MDC commissary were too high. These are all reasonable complaints about conditions at MDC, but they are not sufficient to deny approval of the Settlement Agreement. The Settlement Agreement contemplates steady improvement in conditions, not immediate resolution of all issues.
An objection filed on April 4, 2016 also contends that MDC is not in substantial compliance with the terms of the Settlement Agreement. This objection reflects a misunderstanding of the Settlement Agreement, which provides that the Court will determine incrementally whether the MDC is in substantial compliance with the standards set out for each domain.
In conclusion, the parties have persuaded the Court that the Settlement Agreement is fair, reasonable, and adequate under the four factors outlined in the Tennille case, and the Court will approve the Settlement Agreement. The Settlement Agreement provides a way to solidify improvements at the MDC and eventually end this decades old lawsuit. It is this Court’s sincerest hope that the parties will achieve these goals.
IT IS ORDERED that the SETTLEMENT AGREEMENT (Doc. No. 1222-1) is approved.
SENIOR UNITED STATES DISTRICT JUDGE
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 Case 6:95-cv-00024-JAP-KBM Document 1247 Filed 11/30/16 Page 1 of 19

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

JIMMY (BILLY) MCCLENDON, et al.,

Plaintiffs, vs.

No. CV 95-24 JAP/KBM

CITY OF ALBUQUERQUE, et al.,

Defendants.

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,

PLAINTIFFS’ AND PLAINTIFF-INTERVENERS’ JOINT MOTION FOR ORDER TO SHOW CAUSE
AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER, Doc. Nos. 256 and 1222-3,
AND MEMORANDUM IN SUPPORT

Come now the Plaintiff class and the Plaintiff-Intervener subclass (“Plaintiffs”), through undersigned counsel and, pursuant to this Court’s Order Doc. Nos. 256 and 1222-3, move for further remedial relief as follows. County Defendants do not consent to this motion.
I. Introduction

This Court’s prior orders, as well as the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., require that Metropolitan Detention Center corrections officers who are assigned to posts in psychiatric services units possess a minimum level of specialized skills and training essential to accommodate the needs of inmates residing in those units. See Doc. No. 256, page 12 and Doc. No. 1222-3, page 16. Bernalillo County (“County”) is currently violating this Court’s orders, by allowing senior corrections officers to choose for themselves that they wish to be posted in psychiatric services units at the Metropolitan Detention Center (“MDC”), despite

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their lack of necessary skills and training for these posts. The County does so pursuant to a Collective Bargaining Agreement (CBA) that was adopted in 2015 after an arbitration with the union representing corrections officers. Even after corrections officers have proven themselves incapable of accommodating the needs of inmates incarcerated in the jail’s psychiatric services units, MDC administrators have declined to remove these officers from their posts, choosing their contract with the union over this Court’s orders.
Notably, as counsel for Plaintiff-Interveners will describe in detail, infra, Dr. Jeffrey Metzner, this Court’s appointed expert, expressed concern in his February 1, 2016 report at the deterioration in the working relationship between corrections officers and mental health personnel in MDC’s psychiatric services units. As counsel will also describe in detail, since Dr. Metzner’s report, counsel have received several complaints regarding excessive and arbitrary lock down of inmates in their cells, undue restraint, and constant verbal abuse by corrections officers assigned to psychiatric services units. And most notably, in his most recent July 19, 2016 report, Dr. Metzner has roundly condemned the actions of some of the corrections officers currently assigned to the psychiatric units, stating that “the conduct of some of the MDC correctional staff has effectively denied a significant number of inmates access to adequate mental health care and has caused harm to inmates with a serious mental illness.” The harm highlighted by Dr. Metzner includes unnecessary and excessive use of force, abusive verbal interactions, and excessive and unnecessary lockdowns. As Plaintiff-Interveners will detail, infra, Dr. Metzner has singled out the collective bargaining agreement as blocking Defendants from remedying this serious non-compliance. “As a result, problematic correctional officers/supervisors working within the HSUs have been allowed to continue to work within those units despite their very problematic interactions with inmates with a serious mental
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illness.” This motion seeks a court order remedying the problems identified by Dr. Metzner. The County has not taken action to remedy the problems identified by Dr. Metzner. In
response to complaints by counsel regarding failures by corrections staff to transfer to other posts corrections officers who are not reasonably accommodating the disabilities of inmates housed in specialized mental health and medical units, MDC administrators have asserted that, pursuant to the CBA adopted in 2015, MDC administrators are powerless to remove corrections officers who are lacking the requisite skills to supervise inmates in the psychiatric services units. This is due to a new “bid process” established in 2015 that allows corrections officers with seniority as MDC employees to choose where they are posted. This change in MDC policy has resulted in a dangerous imbalance of power between corrections officers whose actions endanger the health of inmates and the administrators who are unable to effectively supervise them.
In choosing compliance with the 2015 collective bargaining agreement over this Court’s prior orders, the County is in violation of clear federal and New Mexico precedent, which plainly holds that a contract that violates a federal court order or federal law is void ab initio, and therefore cannot be enforced. See Section IV, infra. Plaintiff-Interveners therefore respectfully request that this Court enter an order to show cause why County Defendants should not be subject to sanction for failure to comply with this Court’s Orders, Document Nos. 256 and 12223, and for all such further remedial relief as this Court finds just and proper.
II. Statement of Facts 1. This Court’s prior order, entered November 5, 1996, states that:
security staff shall receive adequate training regarding the identification of symptoms of mental or developmental disabilities and regarding appropriate methods for dealing with residents with mental or developmental disabilities. Correctional officers who work in detention
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levels 5 East and 6 East1 and any other units in which people with mental or developmental disabilities are congregated shall receive specialized training to adequately prepare them for working with people with mental or developmental disabilities. The specialized training shall be no less than 40 hours.
Doc. No. 256, page 12. 2. In 2015, Defendants adopted the practice of allowing any correctional officer with
seniority to “bid into” a post in a mental health unit at the Metropolitan Detention Center (“MDC”). Defendants did so pursuant to a newly negotiated collective bargaining agreement between Bernalillo County (“County”) and the American Federation of State, County, and Municipal Employees (“AFSCME”), Local 2499 (“Union”), the union representative for MDC employees, including corrections officers.
3. Specifically, Provision 10.2 of the Collective Bargaining Agreement (“CBA”) allows corrections officers to bid for specific posts: “Employees will be allowed to bid semiannually for shift, days off and Unit (post) assignments in seniority order.” Collective Bargaining Agreement, Provision 10.2, attached hereto as Plaintiffs’ Exhibit 1. Once a corrections officer successfully bids for a post on the basis of seniority, “[a]n employee may not be moved from their bid position without ‘just cause.’” Collective Bargaining Agreement, Provision 10.5.
4. The current CBA per se allows corrections officers, as agents of the County, to circumvent this Court’s order by permitting their assignment to a specialty post at MDC on the basis of seniority status, without complying with the mandate of Document No. 256 regarding corrections officers working in psychiatric services units.
5. The new practice adopted by the County of allowing senior MDC corrections officers, to “bid into” a post in the MDC housing unit of their personal choice also interferes in practice with MDC’s implementation of this Court’s orders. The County is allowing unqualified
15 East and 6 East were the names of the psychiatric services units in 1996.
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staff to continue to work in specialized medical and mental health units even after the medical
and mental health professionals running those specialized units have determined that the officer
lacks the necessary skills to work in the units.
6. Specifically, pursuant to the current CBA, the County is allowing corrections
officers to work in specialized housing units where people with disabilities are congregated even
though they do not demonstrate the skills essential to working in those posts. Through the
current “bid process” by which MDC staff choose their own posts, certain unqualified
correctional officers are working in posts where people with disabilities are congregated, even
though they are harming sub class members due to those officers’ failure to demonstrate the
specialized skills that are essential for working that post.
7. Importantly, on October 7, 2015 the Court instructed its operations expert, Manuel
Romero to evaluate the impact of the CBA. Mr. Romero's Fifth Report, dated December 23,
2015 stated:
At the October 7, 2015 hearing the Court instructed me to provide the Court and parties with my analysis of the Collective Bargaining Agreement (CBA) that is in effect between AFSCME Local 2499 (MDC Custody Employees) and Bernalillo County. My analysis was conducted with respect as to what impact it may have on extant McClendon Orders as it pertains to my areas of expertise. The following is my analysis on this topic. 1. The most problematic provision in the new CBA is that the bidding process for custody staff has expanded from shift and days off to include unit post assignments. The bidding process includes all security posts within the MDC, the Community Custody Program and Transportation of Inmates. Furthermore, once an employee is occupying a “bid position”, the employee may not be moved from their bid position without “just cause.” Managements’ prerogative to assign custody staff to a unit (post) is taken away which is very problematic for inmate and custody staff safety and for security reasons. For example, there are custody staff that may not be suitable to work with special management inmates, mentally ill inmates or special inmate populations, but under the current CBA any officer can bid for any post by seniority order. It is also risky and potentially harmful to both inmates and staff to solely supervise cross gender inmates or to assign an officer who may not have the necessary experience to work a particular security post, such as booking or master control. Moreover, if a particular officer has or has had a conflict with a particular inmate; he or she cannot be removed from that
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security post without meeting the standard of “just cause” which is operationally problematic. December 23, 2015 Report, page 9 8. Just over a month later, Dr. Jeffrey Metzner, the court-appointed expert in this case for mental health services at MDC, expressed his own concerns regarding the potential for serious deterioration of mental health services at MDC, due to the serious breakdown in the working relationships between and among the MDC mental health staff and corrections officers. Notably, the breakdown in communication between MDC mental health staff and corrections officers apparently began after Dr. Metzner submitted his report in July 2015, shortly after the CBA was negotiated in June 2015. See February 1, 2016 Report of Dr. Jeffrey L. Metzner at pages 16-17, 24-25, attached hereto as Plaintiffs’ Exhibit 2. The February 2016 report identified an “area of practice that was very good but is now very problematic…[t]he working relationships between mental healthcare and correctional staffs.” February 1, 2016 Report, Plaintiffs’ Exhibit 2, at p. 34. 9. The February 2016 report also identified areas that had fallen out of compliance or were in jeopardy of falling out of compliance due to this deterioration in communication between mental health and security staffs. 10. For example, regarding “[w]hether mental health care and security staff communicate sufficiently about inmates with special needs conditions” the July 2015 report found this to be in compliance, but the February 2016 report found partial compliance, noting that “the working relationship between security staff and mental health staff has been strained since the latest bid process.” February 1, 2016 Report, Plaintiffs’ Exhibit 2, at p. 16. Another example is regarding “[w]hether MDC follows a proactive program which provides care for special needs patients who require close mental health supervision or multidisciplinary care.” The February 2016 report found continued compliance, but noted that “continued compliance is in jeopardy related to the previously referenced working relationship issues between mental health and custody staffs.” February 1, 2016 Report, Plaintiffs’ Exhibit 2, at p. 17. Regarding
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therapeutic services and overall HSU assessment, Dr. Metzner’s February 2016 report noted significant issues regarding the working relationship between mental health and correctional staffs. February 1, 2016 Report, Plaintiffs’ Exhibit 2, at p. 24. Finally, as to chronic mental health follow up care for residents in segregation, the February 2016 report stated “Significant issues previously referenced in the context of mental health staff-correctional staff working relationships exist which have negatively impacted the treatment program within Seg 6.2” February 1, 2016 Report, Plaintiffs’ Exhibit 2, at p. 25.
11. Since Dr. Metzner’s February 2016 visit, counsel for Plaintiff-Interveners have made numerous reports regarding reported mistreatment by HSU-6 staff, which Defendants have largely declined to investigate.
12. For example, in a February 12, 2016 email to Defendants by Peter Cubra, Mr. Cubra made the following report and request regarding HSU-6 and CO Sisneros: “I am writing to initiate a formal complaint against an MDC staff member pursuant to MDC Policy 3.35. I am alleging a violation of Policy 3.35 B.4.I, which prohibits ‘Abusive language or behavior directed at an inmate,’ by Correctional Officer Sisneros who is working in HSU 6, a unit designated as a mental health treatment program. I have received phone calls from inmates housed in HSU 6 who are fearful of retaliation for initiating a complaint and I am, therefore, not disclosing their names in this email.”
13. Mr. Cubra quoted the inmates as alleging that “corrections officers in Seg. 6, including CO Sisneros, ‘are treating us abusively;’ The residents complained that Mr. Sisneros commonly ‘intimidates us,’ ‘threatens us,’ and ‘curses us.’ For example: Mr. Sisneros allegedly announced at a command call that if anyone talks at command call, then everyone will get locked down. When someone responded and said ‘that's not fair,’ Mr. Sisneros allegedly stated that he
2 Note that the same pod is referred to as both "Seg 6" and "HSU 6" throughout this motion. The pod in question is physically located with the segregation unit, but was designated as a treatment pod. Therefore it may be referred to as either Seg 6 or HSU (Health Services Unit) 6.
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didn't ‘give a f***.’ He allegedly stated that he has ‘run STG units and no one disrespected me’ and ‘you're not going to disrespect me.’ "
14. One inmate alleged that on one occasion, everyone in HSU 6 was locked down. Officers Largo and Ortiz reportedly left the unit and Officer Sisneros was the only one present. CO Sisneros spoke abusively to residents who complained about being locked down. When an inmate called out and banged on his cell door while locked down, Mr. Sisneros allegedly went to his cell and yelled, “Who the f*** do you think you are?” When the resident complained about “discrimination” against inmates because of their mental disabilities, Mr. Sisneros allegedly said ‘I don't give a f***.’
15. On a different occasion, an inmate reportedly arrived in HSU 6 when CO Ortiz and CO Sisneros “had everyone on lockdown.” When he asked CO Sisneros why everyone was on lock down, CO Sisneros reportedly said, ‘because you're ignorant f***s.’ One resident who has been in HSU 6 for a short time stated that, “On most all of the shifts,” the CO's in HSU 6 talk rudely and unprofessionally to the residents. He said that CO's who work in PAC 1 are more professional.
16. During February of 2016, inmates in HSU 6 reported that corrections officers were “locking us down whenever they feel like it.” For example: Inmates were allegedly locked down routinely from 1:30 p.m. to 6:00 p.m. and no one was getting outdoor recreation after 5:00. Corrections officers locked inmates down on an arbitrary and random basis. On one occasion, an inmate asked CO Sisneros if he could get out of lock down and CO Sisneros said “no,” because there was work to do. But no work occurred. The inmate told counsel that, “[t]he officers here have kept us on lock down for two days,” and that staff told some inmates that the lock down was because the cage near the bathroom needed work. But the inmate observed that no work was done on the cage, and the inmates were let out of their cells after two days of lock down. Inmates also asked why they haven't been getting any outdoor recreation for some time and were told that inmates were not allowed to go outside because of a fight some time back.
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17. Defendants subsequently informed counsel that they had declined to investigate this report of mistreatment by staff on HSU-6.
18. In a March 22, 2016 memo counsel for Plaintiff-Interveners reported, “Counsel again received complaints regarding CO Sisneros. For example, [D.B.], reported that CO Sisneros is verbally abusive to residents and that he does not seem to understand that the residents on that pod have significant mental health needs. He also said that CO Sisneros routinely threatens to lock residents down for minor things. [D.B] reported that CO Sisneros threatened to lock him down for 23-hours because his shirt was not properly tucked in. He said he had not filed a grievance for fear of retaliation.”
19. In the same March 22, 2016 memo counsel also reported: “[J.B.], reported that he had filed a grievance regarding mistreatment by COs Romm and Michelback on HSU-6, during a previous stay at MDC, which ended February 22, 2016. He said that the grievance involved mistreatment such as verbal abuse and shackling him to his bunk while in four-point restraints. [J.B.] said that he was interviewed by Doug Shawn, from Universal Investigation Services, but had received no further follow up regarding his grievance or the investigation. He said that when he came back to MDC on March 8 he was returned to HSU-6, where COs Romm and Michelback were still working the swing shift. The outside investigation found conflicting evidence regarding shackling [J.B.] to his bunk. Verbal mistreatment of [J.B.] by CO Michelback was found, though there is no indication in the documents counsel received that CO Michelback was ever assigned to a different, non-HSU pod as a result of this finding.
20. Next, in an April 18, 2016 memo counsel reported: “On April 14 counsel received a call from HSU-6 resident [C.R.], who reported that the excessive lock downs continue. He said they are typically locked down throughout the afternoon. He said that staff, especially CO Sisneros, continue to be disrespectful and verbally abusive. [C.R.] reported that a couple days prior to his call to counsel he heard CO Sisneros shout at another HSU-6 resident, [T.S.], ‘Are you retarded?! Don't you know how to make a bed?!’ [C.R.] said he didn't know if [T.S.] filed a grievance, but that observing the incident was upsetting to him. He said this incident is
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illustrative of CO Sisneros behavior towards the HSU-6 residents.” The response from defendants indicated that because [T.S.] had not filed a grievance they were not investigating the report.
21. Finally, in a May 23, 2016 memo counsel reported: “[M.T.], reported that CO Sisneros was verbally abusive to him throughout his time on HSU-6. [M.T.] reported that CO Sisneros made degrading personal comments to him nearly daily. For instance, [M.T.] said that one day he was smiling when CO Sisneros came to give him his food. He said that CO Sisneros asked ‘Is that how you smiled when your wife was fu**ing your friends?’ He reported that CO Sisneros also told him ‘You’ll never get out, you are going to be locked down forever,’ and on another occasion called [M.T.] a ‘loser’ saying ‘you lost your wife, your kids, you’re just a piece of sh**.’ [M.T.] said that CO Sisneros told him if he ever talked back he would lock him down. [M.T.] said that on at least one occasion he was locked down for 23 hours as a result of saying something to CO Sisneros in response to CO Sisneros’ verbal abuse. [M.T.] reported that CO Sisneros' conduct continued consistently until the day HSU-6 residents were moved to PAC-2.” The response from defendants indicated that there was no record of an incident report or of any grievances filed by M.T. regarding CO Sisneros. The response gave no indication that the allegations would be investigated.
22. When Dr. Jeffrey Metzner, the court-appointed expert in this case for mental health services at MDC, returned to MDC in late June 2016 he found that the concerns raised in his February 2016 report, supra at paragraphs 7-10, had not been corrected. July 19, 2016 Report, Plaintiffs’ Exhibit 3, at p. 17.
23. Dr. Metzner's report stated: It is my opinion that the conduct of some of the MDC correctional staff has effectively denied a significant number of inmates access to adequate mental health care and has caused harm to inmates with a serious mental illness. This harm has been both physical, due to unnecessary and/or excessive use of force, and mental related to abusive and/or inappropriate verbal interactions and excessive and unnecessary lockdowns.
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Although it is clear that the vast majority of correctional officers at MDC are working well with mental health staff and inmates, it is equally clear that a small number of correctional officers during the past seven months created a toxic environment for many inmates with a serious mental illness. The responses by correctional management staff, in my opinion, has been problematic and ineffective, which appears to be related, in part, to union contract issues and permanent administrative leadership positions being vacant or changed. As a result, problematic correctional officers/supervisors working within the HSUs have been allowed to continue to work within those units despite their very problematic interactions with inmates with a serious mental illness. July 19, 2016 Report, Plaintiffs’ Exhibit 3, at p. 17.
24. As with his February 2016 Report, supra, at paragraphs 7-10, Dr. Metzner again identified areas of partial compliance related to staffing on the HSU unit. For example, as to "[w]hether mental health care and security staff communicate sufficiently about inmates with special needs conditions", partial compliance was again found. July 19, 2016 Report, Plaintiffs’ Exhibit 3, at p. 19. And, as to [w]hether MDC follows a proactive program which provides care for special needs patients who require close mental health supervision or multidisciplinary care", for which compliance was previously found, Dr. Metzner found this to now be in partial compliance. Id.
25. One of the incidents reviewed by Dr. Metzner during his June 2016 visit involved subclass member L.S. In an August 23, 2016 memo, after receiving additional information regarding this incident, counsel reported the following: “Counsel received a report regarding an excessive use of force against [L.S.] by Sgt. Charles Griego on PAC-1 on November 5, 2015. The report indicated that [L.S.], who is identified as having a serious mental illness, was taken to the ground, sprayed with OC twice and subjected to three or four applications of a Conducted Electricity Weapon 'CEW'/Taser, while already restrained, for reportedly failing to follow directives to not turn around and to stop talking. Please provide the incident report, all supporting documents and all documentation of any investigation into this incident. Please provide all video
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of the incident. Please provide all documentation of any corrective action taken in connection with this incident, including any disciplinary action.”
26. On October 21, 2016 counsel received some documents responsive to the above request for information regarding L.S., but as of the drafting of this motion have not received the requested received video, investigation or documentation of any corrective action. Defendants' October 21, 2016 response indicated that the incident had been referred for review in November 2015, but that the investigation had not yet been completed. Upon information and belief, Sgt. Griego is working in the HSU/PAC unit.
III. The County Has Violated this Court’s Orders The County’s violations of this Court’s orders, in terms of improper assignments of incompetent corrections officers in the psychiatric services units, began shortly after the County and the Union signed the 2015 collective bargaining agreement allowing senior corrections officers to pick and choose where they worked. Depending on the amount of time that passes between an act and a result, temporal proximity may be sufficient to establish causation. Cf. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999)(in retaliation in employment case, passage of seven weeks between protected activity and retaliation may establish causation). Moreover, the County has itself admitted that the County’s agreement with the Union interferes with the County’s ability to comply with this Court’s orders. When forced to choose between compliance with a federal court order and compliance with a collective bargaining agreement, the law is clear that a court order must supersede the contract, an issue to which Plaintiffs will now turn.
IV. This Court’s Orders Supersede the Collective Bargaining Agreement and therefore the Collective Bargaining Agreement Cannot Be Asserted by the County as a Defense
It is beyond cavil that a contract to perform an illegal act is void ab initio and is therefore unenforceable, regardless of the will or wishes of the contracting parties. See, e.g., Kaiser Steel
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Corp. v. Mullins, 455 U.S. 72 102 S.Ct. 851 80-1345 (1982)(party cannot be required to comply with a contract requiring an illegal act); Coppell v. Hall, 1868 74 U.S. 542, 1868 WL 11170 (1868)(contract stipulating performance of illegal act is void, regardless of will or wish of parties); see also Padilla v. State Farm Mutual Automobile Insurance Company, 133 N.M. 661, 68 P.3d 901 (2003)(New Mexico courts “will not enforce a contractual provision that violates public policy” or state statutes); Capo v. Century Life Ins. Co., 94 N.M. 373, 610 P.2d 1202 (1980)(illegal contract is not enforceable); Maynerich v. Little Bear Enterprises, Inc., 82 N.M. 650, 485 P.2d 984 578 (Ct.App. 1971)(contract in violation of penal statute was unenforceable and therefore could not be pled as defense); Schnoor v. Griffin, 79 N.M. 86, 439 P.2d 922 (1968)(contract requirring illegal act cannot be enforced by either party, where both parties are culpable); Bartholemew v. Village of Endicott, 59 N.Y.S.2d 84 (S.Ct. 1945)(where statute authorized city to operate public utility services, contract could not limit the exercise of municipality’s right to act for public benefit). While the County may be liable in damages – a point Plaintiff-Interveners have no standing to and do not address3 – a court may not order specific performance of an illegal contract.
One corollary to the long established principle that parties cannot contract to perform an illegal act is that an employer cannot require an employee to perform an illegal act or one that violates public policy. See, e.g., Shackelford v. Courtesy Ford, Inc., 96 F.Supp.2d 1140 (D.Colo. 2000)(employer who directs employee to perform illegal act as part of employee’s work related
3The remedy for a non-culpable party who enters into an agreement in good faith, that later proves impossible to perform due to a pre-existing court order or law, is an action for damages, not an action for specific performance. See Restatement (Second) of Contracts § 264 (“If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the nonoccurrence of which was a basic assumption on which the contract was made.”); id., § 264 cmt. a (“If the prohibition or prevention already exists at the time of the making of the contract, the rule stated in § 266(1) rather than that stated in § 261 controls, and this Section applies for the purpose of that rule as well.”); id.. § 266(1)(excusing performance “[w]here, at the time a contract is made, a party’s performance under it is impracticable without his fault because of a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty to render that performance arises, unless the language or circumstances indicate the contrary.”). Where, for example, statutory law prohibits specific performance but one party was aware of the prohibition in advance of the contract, the non-culpable party can recover damages for breach. See Twombly v. Ass’n of Farmworker Opportunity Programs, 212 F.3d 80 (1st Cir. 2000).
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duties or prohibits employee from performing public duty or exercising important job-related right or privilege, or directs employee to perform an act that would undermine clearly expressed public policy relating to employee’s basic responsibility as citizen could be held liable for wrongful discharge).
Similarly, while the issue does not arise as often in national precedent, an employee cannot require an employer to violate statutory law, judicial order, or public policy. See, e.g., WR Grace and Company v. Local Union 759, International Union of the United Rubbert, Cork, Linoleum and Plastic Workers of America, 461 U.S. 757 (1983). In WR Grace, the United States Supreme Court was asked to determine whether an arbitrator’s award of damages to union members, in the form of back pay, should be set aside by the United States District Court, where the employer had laid off union members in order to comply with a federal court order that had later been reversed on appeal. While the Supreme Court ultimately held that in the particular circumstances of the case, the union members were entitled to damages in the amount of back pay,4 the Court made clear that where there was a direct conflict, an employer could not violate a judicial order simply to comply with a collective bargaining agreement.
As with any contract, however, a court may not enforce a collective bargaining agreement that is contrary to public policy. See Hurd v. Hodge, 334 U.S. 24, 34– 35, 68 S.Ct. 847, 852–53, 92 L.Ed. 1187 (1948). . . . If the contract as interpreted
4 In WR Grace, the employer entered into a conciliation agreement with the Equal Employment Opportunity Commission (“EEOC”), in order to settle a discrimination allegation that the employer had discriminated against women and African Americans. The agreement required the employer to take affirmative steps to hire employees from both groups, to remedy the effects of past discrimination. The employer’s seniority system, pursuant to a collective bargaining agreement with the employee union, perpetuated past discrimination. The employer’s subsequent conciliation agreement with the EEOC in effect modified the collective bargaining agreement, to permit the employer to prevent male union members from exercising the shift preference seniority to which they were entitled under the collective bargain agreement, to obtain positions held by female employees with less seniority.
The District Court enjoined enforcement of the seniority clause of the collective bargaining agreement. While the United States Court of Appeals for the Fifth Circuit ultimately held that the seniority clause was not animated by a discriminatory purpose and was therefore lawful, the question presented to the United States Supreme Court was more nuanced: whether the employer could set aside the arbitrator’s award on the basis that it had laid off male union members solely in order to comply with the federal court order. The Supreme Court held that the union members were entitled to the back pay they lost as a result of the employer’s compliance with the federal court order pending appeal, because the ultimate “fault” in the entire debacle belonged to the employer, who had started the discriminatory practices that in turn caused the male union members to lose back pay.
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by [the arbitrator] violates some explicit public policy, we are obliged to refrain from enforcing it. Hurd v. Hodge, 334 U.S. at 35, 68 S.Ct. at 853. Such a public policy, however, must be well defined and dominant, and is to be ascertained “by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Muschany v. United States, 324 U.S. 49, 66, 65 S.Ct. 442, 451, 89 L.Ed. 744 (1945).
It is beyond question that obedience to judicial orders is an important public policy. An injunction issued by a court acting within its jurisdiction must be obeyed until the injunction is vacated or withdrawn. Walker v. City of Birmingham, 388 U.S. 307, 313–314, 87 S.Ct. 1824, 1828, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers, 330 U.S. 258, 293–294, 67 S.Ct. 677, 695–96, 91 L.Ed. 884 (1947); Howat v. Kansas, 258 U.S. 181, 189–190, 42 S.Ct. 277, 280–81, 66 L.Ed. 550 (1922). A contract provision the performance of which has been enjoined is unenforceable. See Restatement (Second) of Contracts §§ 261, 264 (1981).
WR Grace and Company, 461 U.S. at 766-67 (emphasis added).
The County was not authorized to “bargain away” the rights of the class and sub-class in
a collective bargaining agreement, any more than the County could unilaterally set aside the
rights of the plaintiff sub-class. Indeed, parties to a collective bargaining agreement cannot even
bargain away the substantive state law rights of their own employees and/or union members,
much less the rights of non-parties. See Self v. United Parcel Service, 126 N.M. 396, 401, 970
P.2d 582, 587 (1998).
The Company claims that employees forego state-law labor rights by virtue of their participation in a collective-bargaining agreement. The United States Supreme Court has rejected this position as “irreconcilable” with the purposes of federal labor law. Livadas v. Bradshaw, 512 U.S. 107, 130-32 ( 1994). Congress never intended Section 301 to displace state wage and hour laws. Allis-Chalmers v. Lueck, 471 U.S. 202, 211-12 (1985)(Section 301 was never intended to allow collective bargaining parties to agree to what is illegal under state substantive law). If the Company’s claim were accepted: “Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored.” Lueck, 471 U.S. at 212. This is not what Congress intended. Livadas, 512 U.S. at 130 (“[W]e have never suggested that labor law’s bias toward bargaining is to be served by forcing employees or employers to bargain for what they would otherwise be entitled to as a matter of course” under state law.). More importantly, such a rule would penalize unionized workers by depriving them of protection of minimum
15

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standards other workers in the state enjoy, thereby thwarting Congress’ intended purpose. For these reasons, the United States Supreme Court has said that Section 301 “cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law.” Livadas, 512 U.S. at 123. Self v. United Parcel Service, 126 N.M. at 401, 970 P.2d at 587 (some citations omitted).
Similarly, in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645, 646 (1988), the Kansas Supreme Court considered whether an employer could immunize itself from common law tort liability by having employees bargain away such rights pursuant to a collective bargaining agreement. Setting aside a long line of Kansas precedent to the contrary, the court in Coleman held that substantive state law rights could not be set aside, in part because, if employers are allowed to set aside other responsibilities by “bargaining them away” in a collective bargaining agreement, this in effect immunizes employers with such contracts from “accountability for violations of state public policy.” Coleman, 752 P.2d at 651.
The United States Supreme Court has made equally clear that an employer and a union cannot bargain away the federal statutory or constitutional rights of employees. See, e.g., Lehnert v. Ferris Faculty Association, 500 U.S. 507, 520 (1991)(public-sector union could not require objecting employees to pay for lobbying efforts to which employees objected)); Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d ( 1977); (collective bargaining agreement that silences conflicting views may deny First Amendment rights of dissenting employees); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 745 (1981)(collective bargaining agreement may not waive minimum wage rights of employees); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). (collective bargaining agreement may not waive minimum wage rights of employees).
The issue of “bargaining away” substantive rights becomes exponentially more problematic where an employer and a union seek in effect to bargain away the substantive rights of third parties. Thus, for example, in Steele v. Louisville & N.R. Co., 323 U.S. 192, 203-204 (1944), the United States Supreme Court addressed whether an employer and a union could
16

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bargain away the anti-discrimination rights of African Americans, by the device of limiting membership in the union.
The representative which thus discriminates may be enjoined from so doing, and its members may be enjoined from taking the benefit of such discriminatory action. No more is the Railroad bound by or entitled to take the benefit of a contract which the bargaining representative is prohibited by the statute from making. In both cases the right asserted, which is derived from the duty imposed by the statute on the bargaining representative, is a federal right implied from the statute and the policy which it has adopted. It is the federal statute which condemns as unlawful the Brotherhood’s conduct. “The extent and nature of the legal consequences of this condemnation, though left by the statute to judicial determination, are nevertheless to be derived from it and the federal policy which it has adopted.” Deitrick v. Greaney, 309 U.S. 190, 200, 201, 60 S.Ct. 480, 485, 84 L.Ed. 694; Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 177, 63 S.Ct. 172, 173, 174, 87 L.Ed. 165; cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838.
Steele , 323 U.S. at 204.
The cases cited above make clear that the Court’s orders requiring that only specially
trained and appropriately skilled correctional staff may work in medical and mental health units
where people with disabilities are congregated supersede any contradictory provisions of a
contract between the County and a union.
V. Request for Relief Plaintiff-Interveners respectfully request that this Court: 1. Enter an order to show cause requiring the County to appear before the Court to answer the allegations set forth herein; 2. Enter orders mandating that: a. In order to work in a Unit where inmates with medical conditions or mental disabilities are congregated, an employee must successfully complete specialized competency-based training designed to prepare an employee for working in the post, and must also demonstrate the essential specialized skills needed to work in such a unit. The process for
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determining whether an employee demonstrates the specialized skills that are essential for working in a unit where people with medical conditions and/or mental disabilities are congregated must be an interdisciplinary process in which security personnel and medical and/or mental health professionals jointly determine whether an employee demonstrates the specialized skills that are required for working in such a unit; and b. If the mental health professionals running the unit determine that an employee working in such a post is not demonstrating the specialized skills necessary to work in such a unit, the employee will be transferred out of the post by the jail administration and replaced by a qualified employee; and 3. For such other relief the Court determines to be just and proper, including, if necessary, awarding attorneys’ fees, expenses and costs incurred in bringing this motion.
Respectfully submitted,
/s/ Peter Cubra___________________ Peter Cubra Kelly K. Waterfall 3500 Comanche NE, Suite H Albuquerque, New Mexico 87107 (505) 256-7690
Nancy L. Simmons 120 Girard SE Albuquerque, NM 87106 (505) 232-2575
Zachary Ives 924 Second St. NW #A Albuquerque, NM 87102 505-899-1030
Mark Baker Peifer Hanson and Mullins PS PO Box 25245 Albuquerque, NM 87125-0245
Mark Donatelli
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Case 6:95-cv-00024-JAP-KBM Document 1247 Filed 11/30/16 Page 19 of 19 PO Box 8180 Santa Fe, NM 87504-8180
CERTIFICATE OF SERVICE I hereby certify that on November 30, 2016 I filed the foregoing document electronically through the CM/ECF system, which caused all counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Peter Cubra Peter Cubra
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 Case 6:95-cv-00024-JAP-KBM Document 1252 Filed 12/16/16 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et al.,

Plaintiffs,

vs.

No. CV 95-24 JAP/KBM

CITY OF ALBUQUERQUE, et al., Defendants
vs. E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff Interveners.
JOINT STATUS REPORT AND PROVISIONAL DISCOVERY PLAN Pursuant to FED. R. CIV. P. 26(f), a telephone conference was held on November 17, 2016.The conference was attended by: Peter Cubra, Nancy Simmons and Kelly Waterfall for Plaintiff Intervenors; and by Jenica Jacobi and Debra Moulton for the City of Albuquerque Defendants.
NATURE OF THE CASE Plaintiffs and Plaintiff-Intervenors
This is a class action brought on January 10, 1995 against the County of Bernalillo, the City of Albuquerque and officials of both entities seeking injunctive and declaratory relief to address violations of the United States Constitution, the Rehabilitation Act and the Americans with Disabilities Act (ADA). All persons presently confined in the Bernalillo County jail system, or who may/will be so confined in the future, are members of the plaintiff class. On September 6, 1995 a complaint in intervention was filed on behalf of all persons who have mental and/or developmental disabilities who are now, or in the future may be, detained in the Bernalillo County jail system. Members of the Plaintiff class who have mental and/or developmental disabilities are members of the Plaintiff Intervenor sub class.

Case 6:95-cv-00024-JAP-KBM Document 1252 Filed 12/16/16 Page 2 of 9
The district court entered its first injunction on August 23, 1995 and the Plaintiffs and Defendants
stipulated on September 7, 1995 to convert that order into a permanent injunction. Since that time, the parties
agreed to, and the Court approved and entered as orders of the court, several other stipulated orders regarding
conditions of confinement, overcrowding issues and other matters. The most recent such orders were entered
in 2016.
A joint motion alleging violations of the Court’s orders, and also alleging violations of the ADA
and Rehabilitation Act, (Doc. 1233) the Amended Motion For An Order To Show Cause And For Further
Remedial Relief Regarding City Defendants, is before the Court. On November 9, 2016, the Court granted the motion, in part, and ordered:
IT IS ORDERED that, after the all of the authorized discovery is completed, the Court will schedule a hearing at which the City Defendants may appear and show cause whether they are in compliance with the following:
1. The provision in the 2001 Supplemental Order requiring the City Defendants to “[p]rovide direction to law enforcement officials under the control of the City . . . to issue citations where appropriate and to use the ‘walk through procedures,’ rather than incarcerating individuals, where appropriate.”
2. The provision in the 2001 Supplemental Order requiring the City Defendants to “schedule a meeting or meetings concerning the provision of mental health services in Bernalillo County. . . . to plan how to implement an effective jail diversion program for persons with psychiatric or developmental disabilities.”
3. The ADA and the RA with regard to detaining and arresting individuals with mental illnesses or developmental disabilities to sweep them from the streets.
Doc, 1245, page 33.
The Court has scheduled two evidentiary hearings to resolve those issues. The first hearing will
address topic 1, and the second hearing will address topics 2 and 3. The purpose of this Joint Status
Report is to establish a schedule for conducting those two hearings and a discovery plan.
Defendants An evidentiary hearing has been scheduled for June 26, 2017, for the purpose of addressing the issue of the provision in the 2001 Supplemental Order requiring the City Defendants to “[p]rovide direction to
2

Case 6:95-cv-00024-JAP-KBM Document 1252 Filed 12/16/16 Page 3 of 9 law enforcement officials under the control of the City . . . to issue citations where appropriate and to use the ‘walk through procedures,’ rather than incarcerating individuals, where appropriate.
Another evidentiary hearing has been set for September 11, 2017 for the purpose of addressing jail diversion by the City Defendants and whether City Defendants are detaining and arresting individuals with mental illnesses or developmental disabilities to “sweep them from the streets.”
STIPULATIONS The parties hereto stipulate and agree that venue is properly laid in this District; and that the United States District Court for the District of New Mexico has jurisdiction over the parties and the subject matter. The parties are willing to further stipulate to the following facts: When this case was filed, the City of Albuquerque administered the local jail. In 2003, the Defendants moved class members into the Bernalillo County Metropolitan Detention Center. Defendant County of Bernalillo directly operates the Metropolitan Detention Center (MDC). The City Defendants, the City of Albuquerque and the Mayor of the City of Albuquerque, operate a police department which arrests and incarcerates at the MDC. The City of Albuquerque spends tax dollars annually to pay for certain behavioral health services, including case management, Assertive Community Treatment, substance abuse assessment and treatment and supportive housing. The parties further stipulate and agree that the law governing this case is: The United States Constitution: and The Civil Rights Act (42 U. S. C. §§ 1983 et seq.), the Americans with Disabilities Act (ADA) and the Rehabilitation Act (Rehab Act) govern this case.
PLAINTIFFS’ CONTENTIONS: 1. The Plaintiff Intervenors’ Complaint in Intervention (“CI”) in this matter alleges, inter alia, that the
sub class is being denied adequate medical, psychiatric, psychological, and other therapeutic services and programs (CI p. 7); that it is in the interest of the entire class if Plaintiff Intervenors can succeed in reducing the number of plaintiffs with disabilities housed in the jail (CI p. 8); that subclass members have been unnecessarily confined in segregation units and strip cells . . . or housed in living
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units that do not provide reasonably safe conditions or requisite treatment and services (CI p. 15); that women with mental and/or developmental disabilities are required to live in a housing unit which is so overcrowded that different segments of the women's population take turns getting out of their overcrowded cells to have access to the dayroom for a maximum of two hours at a time (CI p. 16); that people with disabilities are held at the jail far longer than people without disabilities charged with the same offenses and some are held even beyond the terms of their sentences, due to defendants' failure to arrange an appropriate alternative placement (CI p. 17); Many subclass members have been unnecessarily segregated from the community and incarcerated in the jail because of the unavailability of services for people who (a) need residential mental health care or other supervised living arrangements, (b) have both a psychiatric and a developmental disability, or (c) have organic or other neurological disorders (CI p. 17); that Defendants discriminate against some subclass members on the basis of their disability by: (a) booking them into BCDC even when it is apparent they need hospitalization, and (b) then denying them pre-trial release because they have a mental disability. (CI p.17); that Defendants established a custom and practice of failing or refusing to provide sufficient training to staff regarding the use of force, including failing to adequately instruct them to not use unnecessary force against residents with mental and/or developmental disabilities (CI p. 20); and that the Albuquerque Police Department and Bernalillo County Sheriffs' Office discriminate against members of the subclass in violation of the ADA and the Rehabilitation Act (CI p. 22)
2. All persons presently confined in the Bernalillo County jail system or who may/will be so confined in the future, including but not limited to those detained at the Regional Correctional Center (“RCC”) and the Metropolitan Detention Center (“MDC”) are members of the plaintiff class.
3. All persons who have mental and/or developmental disabilities who are now, or in the future may be, detained in the Bernalillo County jail system, including but not limited to those confined detained at the RCC and the MDC, are members of the Plaintiff Intervenor sub class.
4. City police continue to inappropriately arrest plaintiff intervenors for “citable” offenses.
5. The City of Albuquerque employs mental health professionals and specially trained police officers who are dispatched by the City Defendants to the scene of behavioral health crises and who also track and initiate encounters with people with mental or developmental disabilities who have a history of encounters with law enforcement.
6. The Defendants have not created a plan to implement an effective jail diversion program for persons with psychiatric or developmental disabilities.
7. The City Defendants continue to discriminate against sub class members by reason of their disabilities, violating The Rehabilitation Act and the ADA.
DEFENDANTS’ CONTENTIONS
1. City Defendants are not responsible for providing adequate medical, psychiatric, psychological, and other therapeutic services and programs at the Metropolitan Detention Center and further deny that Plaintiff or Plaintiff Intervenors are being denied adequate medical, psychiatric, psychological and other therapeutic services and programs at the Metropolitan Detention Center.
2. City Defendants are not responsible for insuring that subclass members have not been unnecessarily confined in segregation units and strip cells . . . or housed in living units that do not provide reasonably safe conditions or requisite treatment and services and further deny that subclass members have been unnecessarily confined in segregation units and strip cells . . . or housed in living units that do not provide reasonably safe conditions or requisite treatment and services.
4

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3. City Defendants are not responsible for insuring that women with mental and/or developmental disabilities are not required to live in a housing unit which is so overcrowded that different segments of the women's population take turns getting out of their overcrowded cells to have access to the dayroom for a maximum of two hours at a time and further deny that women with mental and/or developmental disabilities are required to live in a housing unit which is so overcrowded that different segments of the women’s population take turns getting out of their overcrowded cells to have acess to the dayroom for a maximum of two hours at a time.
4. City Defendants are not responsible for holding people with disabilities at the jail far longer than people without disabilities charged with the same offenses or holding them beyond the terms of their sentences, nor are City Defendants responsible to provide appropriate alternative placement and further deny that people with disabilities at the jail are held longer than people without disabilities charged with the same offences or holding them beyond the terms of their sentences.
5. City Defendants have not unnecessarily segregated from the community and incarcerated them in the Metropolitan Detention Center either because of the unavailability of services for people who (a) need residential mental health care or other supervised living arrangements, (b) have both a psychiatric and a developmental disability, or (c) have organic or other neurological disorders or for any other reason.
6. City Defendants deny that they discriminate against some subclass members on the basis of their disability by: (a) booking them into either BCDC or the Metropolitan Detention Center even when it is apparent they need hospitalization, and (b) then denying them pre-trial release because they have a mental disability and further state City Defendants are not responsible for granting or denying pre-trial releases.
7. City Defendants deny that they have established a custom and/or practice of failing or refusing to provide sufficient training to staff regarding the use of force, including failing to adequately instruct them to not use unnecessary force against residents with mental and/or developmental disabilities.
8. City Defendants deny that the Albuquerque Police Department discriminate against members of the subclass in violation of the ADA and the Rehabilitation Act.
9. The 2001 Supplemental Order required City Defendants to use additional alternatives to incarceration, such as the use of citations and walk through procedures rather than incarcerating people, “where appropriate;” City Defendants have used additional alternatives to incarceration, including the use of citations and other procedures, where appropriate.
10. City Defendants are not targeting individuals who are mentally ill or disabled without reasonable suspicion of criminal activity in an effort to sweep them from the streets.
11. City Defendants deny their policies have a negative impact on mentally ill or disabled individuals.
PROVISIONAL DISCOVERY PLAN
The parties jointly propose to the Court the following discovery plan: (Use separate paragraphs
or subparagraphs as necessary if parties disagree.)
Witnesses for Plaintiffs and Plaintiff Intervenors include:
1. Albuquerque Police Chief Gordon Eden
2. Albuquerque Mayor Richard Berry
3. Albuquerque Police Department employee Dr. Nils Rosenbaum
4. Albuquerque Police Lieutenant Glenn St. Onge 5

Case 6:95-cv-00024-JAP-KBM Document 1252 Filed 12/16/16 Page 6 of 9 5. Albuquerque Police CIT Sergeant John Gonzales 6. Retired Memphis Police Department Major Sam Cochran 7. Albuquerque Assistant Police Chief Eric Garcia 8. County employee Elizabeth Simpson 9. Former Albuquerque employee Mike Robertson 10. UNM Professor Paul Guerin 11. County employee Gabe Nims 12. Plaintiffs’ expert witnesses 13. other witnesses identified through discovery 14. Any and all witnesses identified by defendants.
Witnesses for City Defendants include: 1. Police Chief Gordon Eden 2. Elizabeth Simpson 3. Dr. Nils Rosenbaum 4. Major Tim Gonterman 5. Major Jessica Tyler 6. UNM Professor Paul Guerin 7. Robert Padilla, CEO Metro Court 8. Sgt. John Gonzales 9. Deputy Chief Eric Garcia 10. Doug Chaplain, Director, Family and Community Services 11. Defendants’ expert witnesses 12. Any witnesses identified by Plaintiffs or Plaintiffs Intervenors 13. Any other witnesses identified through discovery
6

Case 6:95-cv-00024-JAP-KBM Document 1252 Filed 12/16/16 Page 7 of 9 Discovery will be needed on the following subjects: (Brief description of subjects on which discovery will be needed.) The level of compliance with the court’s extant orders. Whether the Defendants have developed an effective plan for diverting from incarceration people with mental disabilities or developmental disabilities. Whether the City Defendants have been, and are, sweeping the streets of people with disabilities, arresting them and booking them into MDC Whether the City Defendants are violating the rights of sub class members under the ADA and the Rehabilitation Act.
Discovery Limits and Schedule Plaintiffs request a Maximum of 50 requests for production of documents by each party to any other party. Defendants request a Maximum of 25 requests for production of documents by each party to any other party. (Responses due 30 days after service). Plaintiffs request a Maximum of 100 requests for admission by each party to any other party. Defendants request a Maximum of 25 requests for admission by each party to any other party. (Response due 30 days after service). Plaintiffs request a Maximum of 25 depositions by each party. Defendants request a Maximum of 15 depositions by each party; Each deposition (other than of experts and parties) limited to maximum of four hours unless extended by agreement of parties. Reports from retained experts under Rule 26(a)(2) due:
from Plaintiff(s) by 60 days before hearing from Defendant(s) by 30 days before hearing Supplementation under Rule 26(e) due every 90 days. All discovery regarding the first hearing commenced in time to be complete by April 3, 2017 and all discovery for the second hearing due by June 12, 2017.
PRETRIAL MOTIONS 7

Case 6:95-cv-00024-JAP-KBM Document 1252 Filed 12/16/16 Page 8 of 9
Plaintiffs intend to file: Plaintiff Intervenors intend to file: Defendants intend to file:
ESTIMATED TRIAL TIME
X This is a non-jury case. __ This is a jury case. The parties request a pretrial conference in ________________________.
SETTLEMENT The possibility of settlement in this case cannot be evaluated prior to a meeting between counsel and representatives of the City. The possibility of settlement may be enhanced by use of the following alternative dispute resolution procedure: Designation of a mediator. Judge Torgerson may choose to continue to facilitate any settlement discussion. The will jointly request a settlement conference at a mutually agreeable date if they think such a conference might be productive.
EXCEPTIONS (Where counsel cannot agree to any recitation herein, exceptions shall be listed.)
APPROVED WITH/WITHOUT EXCEPTIONS (note exceptions above)
By: /s/ Zachary A. Ives Zachary A. Ives Garcia Ives Nowara LLC 924 Second St NW #A Albuquerque, NM 87102 505-899-1030 zach@ginlawfirm.com On behalf of Plaintiffs
By: /s/ Peter Cubra 8

Case 6:95-cv-00024-JAP-KBM Document 1252 Filed 12/16/16 Page 9 of 9 Peter Cubra Kelly K. Waterfall 3500 Comanche NE, Suite H Albuquerque , NM 87107 505-256-7690 pcubra@qwestoffice.net kkwaterfall@netzero.net On behalf of Plaintiff-Intervenors
By: On behalf of City Defendants /s/ Debra J. Moulton Debra J. Moulton 2201 San Pedro NE, Bldg 3, Suite 200 Albuquerque, NM 87110 (505) 884-7887
9

 
 Case 6:95-cv-00024-JAP-KBM Document 1320 Filed 09/11/17 Page 1 of 9

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

JIMMY (BILLY) McCLENDON, et al.,

Plaintiffs, vs.
CITY OF ALBUQUERQUE, et al.,

CIV 95-24 JAPIKBM

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W. on behalf of themselves and all others similarly situated,

Plaintiff-Intervenors.

SETTLEMENT AGREEMENT BETWEEN THE CITY DEFENDANTS, THE PLAINTIFF CLASS, AND THE PLAINTIFF INTERVENOR SUB CLASS The Plaintiff class, the Plaintiff Intervenor sub class, and the City Defendants have met and conferred regarding the matters raised in Plaintiffs and Plaintiff Intervenors' Amended Motion For An Order To Show Cause And For Further Remedial Relief Regarding City Defendants (Doc. 1233). In the interest of resolving these issues without further litigation, the parties hereby enter into this Settlement Agreement ("this Agreement" or "the Agreement"): 1. The Chief of the Albuquerque Police Department will, within 45 days from the signing of this Agreement, (a) issue a special order and a member of the command staff will issue a corresponding video, and (b) initiate revision to the Arrests, Arrest Warrants and Booking Procedure Standard Operating Procedure, specifically 2-80. Both the Special Order and revised SOP 2-80 will include a clear written directive to police officers regarding the Court's order in

1

Case 6:95-cv-00024-JAP-KBM Document 1320 Filed 09/11/17 Page 2 of 9
McClendon with respect to issuing citations whenever appropriate, as established by operative policies, including an explanation that persons alleged to have committed non-violent misdemeanor offenses (not to include DWis) will not be arrested when there are no circumstances necessitating an arrest. ("Provide direction to law enforcement officials under the control of the City and/or the County to issue citations where appropriate and to use the 'walk through procedures,' rather than incarcerating individuals, where approptiate." (Doc. 319, p. 5)). The written directives will explain how to use the window at Metropolitan Court to post a bond or pay a fine to resolve or quash a warrant, without being taken to the Prisoner Transport Unit or the jail. The written directives will also specify that whether a person has a permanent address may not be the sole factor in determining whether to arrest rather than issue a citation. The Special Order will remain in effect until the approval of the revised SOP.
2. The City has been informed that the State will soon be issuing a revised Uniform Traffic Citation form that includes fields for telephone number and email address, and has so informed counsel for Plaintiffs and Plaintiff-Interveners. In reliance on this expectation, Plaintiff and Plaintiff Interveners have agreed that the Chief of the Albuquerque Police Department will, within 30 days after the State issues the revised Uniform Traffic Citation form that includes fields for telephone number and email address, issue a Standard Operating Procedure requiring all officers to, whenever possible, obtain and record telephone numbers and email addresses whenever they issue a citation.
3. The City Defendants will also initiate revisions to the following SOP's: a. Field Services Standard Operating Procedure 1-14 entitled "Biased Based
Policing/Profiling."
2

Case 6:95-cv-00024-JAP-KBM Document 1320 Filed 09/11/17 Page 3 of 9
b. Field Services Standard Operating Procedure 2-80 entitled "Arrests, Arrest Warrants and Booking Procedures;"
c. Field Services Standard Operating Procedure 2-71 entitled "Search and Seizure without a Warrant;" and
d. Former Field Services Standard Operating Procedure 3-12 entitled "Domestic Violence."1
It is the City's position that the above-referenced standard operating procedures in their current form are consistent with the subjects which follow. However, the revised standard operating procedures will include, to the extent that such provisions are not already sufficiently clear, provisions that: (a) require officers to have reasonable suspicion before stopping, searching, asking for identification from, frisking, or searching people who appear to have a mental disability, and/or to be homeless; and (b) state that officers may seize or dispose of property or personal identification only when authorized by law to do so. The City will provide the above referenced SOPs in their current forms within 10 days of signing the Agreement to counsel for Plaintiffs and Plaintiff Intervenors. Counsel for Plaintiffs and Plaintiff Intervenors will have 30 days to provide suggested revisions. Thereafter, counsel for Plaintiffs and Plaintiff Intervenors will have opportunity to present their suggested revisions to the Office of Policy Analysis (OPA); the City will schedule an OPA meeting within 30 days of receiving their suggestions. The policies will then go through the Department's policy development process, within 90 days. Following the Policy Procedure Review Board, counsel for Plaintiff and Plaintiff Intervenors will be presented with the final revisions. They will have fourteen ( 14) days to
1 The Parties acknowledge that Standard Operating Procedures may be renumbered or recompiled from time to time. The Pruties agree that if there is any future discrepancy between the title and the numbering of any of the specific policies referenced herein, the title and content (rather than the numbering) will control in determining the Parties' obligations under this Agreement.
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provide written objection with respect to any of their original suggestions not fully incorporated into the revisions. The Chief will have ultimate approval authority.
After the Chief issues the SOP regarding the issuance of citations, issues the SOP regarding the collection of phone numbers and email addresses, and gives ultimate approval to the SOPs (specifically SOPs 1-14,2-1 9,2-80, 2-71 and 3-12), APD will ensure that all officers are adequately trained on the revised SOPs.
With regard to training methods on these policy changes for the SOPs referenced (specifically SOP 1-14, 2-19, 2-80, 2-71 and 3-12), APD will develop, following the finalization of the revisions, a training plan within 60 days of the Chief approving the revised policy. Counsel for plaintiff and plaintiff intervenors will be given the opportunity to review the training plan and materials and make comments and recommendations within two weeks of receipt of same. The Chief will make the final determination on training materials and methods.
4. The City Defendants will also initiate revisions to Field Services Standard Operating Procedure 2-19 entitled "Response to Behavioral Health Issues." The City will provide the current SOP within 10 days of signing the Agreement to counsel for Plaintiffs and Plaintiff Intervenors. Counsel for Plaintiffs and Plaintiff Intervenors will have 30 days to provide suggested revisions. Plaintiff and Plaintiff Intervenors may also participate in the review of this policy with Mental Health Response Advisory Committee (MHRAC) or Office of Policy Analysis (OPA) ifthey choose to do so. The City will schedule an OPA meeting within 30 days of receiving Plaintiffs' and Plaintiff-Intervenors' suggestions. The policies will then go through the Department's policy development process, within 90 days. Following the Policy Procedure Review Board, counsel for Plaintiff and Plaintiff Intervenors will be presented with the fmal revisions. They will have fourteen (14) days to provide written objection with respect to any of
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their original suggestions not fully incorporated into the revisions. The Chief has ultimate approval of SOP contents. After the Department's internal review process is complete, the City will send this SOP to the parties and the Monitor in USA v. City, 1:14-CV-1025-RB-SMV, where it is subject to objection by the parties and approval of the Monitor. City will implement the SOP within 30 days of Monitor approval.
5. The City Defendants will implement the special order and SOPs described above. The obligations with respect to policies and training in this Settlement Agreement apply only to city personnel who are subject to the applicable SOPs as identified herein. Sworn commissioned law enforcement officers are subject to the above SOPs and will receive the above referenced training. Mental health clinicians employed by APD are also subject to SOP 2-19 and will receive training relevant to that SOP.
6. The City Defendants will create course of business records documenting the following: (a) the notation of phone numbers and email addresses on the Uniform Traffic Citation form, beginning at the time the City is in possession of the new form (b) bookings on citable non-violent misdemeanor offenses, not to include DWis; (c) disposition data for individuals involved in CIT related incidents; and (d) arrests arising from calls for service involving domestic violence. Beginning 30 days from the signing of this Agreement, the City Defendants will compile the above referenced documents for a period of one year. Within three months thereafter, City Defendants will publicly issue a written report summarizing the above referenced records and any follow-up measures taken. The report will identify the period of time the revised Uniform Traffic Citation form was available, if any. The City's issuance of this report constitutes compliance with the requirements of this paragraph.
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7. The City Defendants will continue to collaborate in good faith with Bernalillo

County to develop jail diversion programs and will collaborate in good faith with Bernalillo

County and other partners in the establishment of such programs and the allocation of resources

to implement those programs. The City Defendants will utilize current third-party behavioral

health response programs and services, including current locations available during a behavioral

health crisis and will utilize other appropriate third-party providers as they become available in

the community. The details and timing of these programs are fully within the discretion of the

City and the County. To the extent appropriations are required, notwithstanding any other

provisions in this Agreement, the terms of this paragraph of the Agreement are contingent upon

the City Council of the City of Albuquerque making the appropriations necessary for the

performance of this Agreement.

8.

City Defendants agree to meet with Bernalillo County through Albuquerque

Bernalillo County Government Commission, one of its sub-committees or another collaborative

effort at least one time each quarter beginning July 1, 2017 through June 30, 2018 to explore

whether it is feasible to establish teams comprised of mental health professionals who are not

employees of the police department who will provide mental health follow up and case

management services similar to the activities of the COAST team.

9. The City Defendants will continue to collaborate in good faith with Bernalillo

County in the development of and funding for mobile crisis teams to respond to mental health

crisis calls, including alleged threats of suicide, self-harm or welfare checks, where appropriate.

The details and timing of the implementation ofthese mobile crisis teams are fully within the

discretion of the City and the County. Notwithstanding any other provisions in this Agreement,

the terms of this paragraph of the Agreement are contingent upon the City Council of the City of

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Albuquerque making the appropriations necessary for the performance of this paragraph of the Agreement.
10. City Defendants will continue to provide approximately 700 supportive housing slots for people, including those with mental illness or mental disability, who have been booked into the Metropolitan Detention Center. The housing slots are either transitional supportive housing or permanent housing with wrap-around case management and other behavorial health services. In providing these services, the City will keep, subject to applicable grant funding and appropriations by City Council, the programs that include individuals with mental disabilities who have been booked into the Metropolitan Detention Center, where not prohibited by other funding sources. City Defendants will collaborate in good faith with Bernalillo County regarding opportunities for additional supportive housing slots and the allocation of resources for same. Notwithstanding any other provisions in the Agreement, the terms of this paragraph of the Agreement are contingent upon the City Council of the City of Albuquerque making the appropriations necessary for the performance of this paragraph of the Agreement.
11 . Where obligations in the Agreement are subject to appropriations, the failure to appropriate sufficient amounts in whole or in part shall not constitute a default of this Agreement.
12. In the event that any dispute arises regarding whether or not the terms of this Agreement are being properly fulfilled, mediation before the Court's Special Master or another mediator agreed to by the parties or selected by the Court is required before any motion can be filed with the Court.
13. For purposes of deadlines under this Agreement, this Agreement will be considered "signed" upon the signature of all parties.
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13 . This Agreement does not require the engagement of an independent monitor and does not obligate the City Defendants to pay counsel for Plaintiff and Plaintiff Intervenors for time spent suggesting revisions to and objecting to SOPs, training plans, and training materials, as described herein. City Defendants agree to pay $80,000.00 in full settlement of Plaintiff and Plaintiff Intervenors claims for attorney's fees. This amount is to be divided among Plaintiff and Plaintiff Intervenors at their discretion.
14. This Agreement satisfies all claims made or claims that could have been made by the Plaintiff class and the Plaintiff Intervenor sub class against the City Defendants in this action and will result in dismissal of City Defendants from this action after the City Defendants have substantially complied with the provisions set forth herein. City Defendants may file motions with the Court to find substantial compliance in whole or in part with individual paragraphs of this Agreement. After publishing the report required by Paragraph 6, City Defendants may file a motion for dismissal from the case, upon showing of substantial compliance with this Agreement.
AGREED this 28th day ofMarch 2017.

Debra Moult n Counsel for · y Defendants

Peter Cubra Counsel for Plaintiff Intervenors

JeSsica M. Hernandez
I I
fjty Attorney
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Case 6:95-cv-00024-JAP-KBM Document 1320 Filed 09/11/17 Page 9 of 9 APPROVED AND SO ORDERED SA. PARKER lOR U.S. DISTRICT COURT JUDGE
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 Case 6:95-cv-00024-JAP-KBM Document 1321 Filed 09/11/17 Page 1 of 24
UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO
JIMMY (BILLY) McCLENDON, et al., Plaintiffs,
vs. Case No. 95 CV 024 JAP/KBM
CITY OF ALBUQUERQUE, et al., Defendants.
vs.
E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors. MEMORANDUM OPINION AND ORDER
In PLAINTIFFS’ AND PLAINTIFF-INTERVENORS’ JOINT MOTION FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER, Doc. Nos. 256 AND 1222-3, AND MEMORANDUM IN SUPPORT (Doc. No. 1247) (Joint Motion), Plaintiffs and Plaintiff Intervenors (Movants) ask the Court to order the County Defendants (the County or MDC)1 to show cause why they are not in contempt of the Settlement Agreement approved by the Court on June 27, 20172 and other orders of the Court. Movants also ask the Court to order additional remedial relief. The County opposes the Joint Motion. See DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONER’S RESPONSE TO PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER, Doc. Nos. 256 AND 1222-3, AND MEMORANDUM IN SUPPORT (Doc. No. 1256) (Response).
1 Bernalillo County, the Bernalillo County Board of Commissioners, and the Metropolitan Detention Center (MDC) will be referred to collectively as the County or MDC. 2 MEMORANDUM OPINION AND ORDER GRANTING APPROVAL OF SETTLEMENT AGREEMENT (Doc. No. 1225).
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Movants filed a reply brief. See PLAINTIFFS’ AND PLAINTIFF-INTERVENORS’ REPLY TO RESPONSE TO MOTION FOR ORDER TO SHOW CAUSE, ETC., DOC. NO. 1247 (Doc. No. 1261) (Reply).
On March 2, 2017, the Court allowed the American Federation of State, County and Municipal Employees Council 18, Local 2499, AFL-CIO, CLC (the Union) to intervene for purposes of addressing the Joint Motion. See AFSCME COUNCIL 18, LOCAL 2499’S BRIEF OPPOSING JOINT MOTION FOR ORDER TO SHOW CAUSE [DOC NO. 1247] (Doc. No. 1278). The Union represents a large majority of MDC’s security employees.
On June 13, 2017, the Court held an evidentiary hearing. At the end of the hearing, the Court asked Movants, the County, and the Union to file post-hearing briefs. See DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’ CLOSING ARGUMENT IN RESPONSE TO PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER DOC. NOS. 256 AND 1222-3 (Doc. No. 1315); PLAINTIFFS’ AND PLAINTIFF INTERVENERS’ POST-HEARING BRIEF REGARDING Doc. No. 1247 (Doc. No. 1316); and AFSCME COUNCIL 18, LOCAL 2499’S POST-HEARING BRIEF (Doc. No. 1317). The transcript of the hearing was filed on July 6, 2017. (See Doc. No. 1311) (Tr.).
Movants argue that the County is violating certain provisions of the SETTLEMENT AGREEMENT (Doc. No. 1222-1) (SA) and CHECK-OUT AUDIT AGREEMENT No. 2: THE PROVISION OF MENTAL HEALTH SERVICES AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1222-3) (COA2). Specifically, Movants claim that the County is failing to provide the requisite training to security employees3 who work
3 The Court refers to security employees, also known as correctional officers, because those employees are the focus of the Joint Motion. This ruling, therefore, is limited to the training and supervision of those employees.
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in units where inmates with mental illness and mental disabilities (special management inmates) are housed (special management units). Movants argue that under the 2015 Collective Bargaining Agreement (CBA) with the Union, the County must allow MDC security employees, who do not have the necessary training or specialized skills, to bid according to seniority into positions in special management units. Movants further assert that when those security employees are accused of misconduct, MDC does not reassign them and timely investigate the allegations of misconduct. Movants contend that by failing to train, supervise, and reassign security employees, the County violates COA2 and the Court’s orders. In addition, Movants assert these failures violate the Americans with Disabilities Act, 42 U.S.C. § 12132 and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (RA) (together, the ADA). I. STANDARD OF REVIEW
A. Jurisdiction The Court retains the authority and jurisdiction to enforce its own orders. Spallone v. United States, 493 U.S. 265, 276 (1990). In other words, a federal court is “not reduced to issuing injunctions against [public officials] and hoping for compliance. Once issued, an injunction may be enforced.” Hutto v. Finney, 437 U.S. 678, 690 (1978). Moreover, the Court expressly retained jurisdiction to enforce the SA. (SA ¶ 20.) B. Civil Contempt The SA and COA2 are consent decrees, “that [are] subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992). A party to a consent decree that is aggrieved by the other’s noncompliance may apply for an order to show cause why the noncompliant party should not be held in contempt. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381–82 (1994).
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After a court issues an order to show cause, a party may be held in contempt only if the movant establishes, by clear and convincing evidence, “that a valid court order existed, that the [party] had knowledge of the order, and that the [party] disobeyed the order.” Reliance Ins. Co. v. Mast Const. Co., 159 F.3d 1311, 1315 (10th Cir. 1998) (citation omitted). A party may avoid a finding of contempt if it demonstrates that it attempted compliance in good faith based on a reasonable interpretation of the order. See Braintree Labs., Inc. v. Nephro–Tech, Inc., 99 F. Supp. 2d 1300, 1303 (D. Kan. 2000). Also, if the court finds that the party has taken all “reasonable steps and substantially complies with the court order,” the court may decline to find civil contempt. Id.
Civil contempt . . . is a severe remedy which should be used only when necessary to sustain the authority of the court. NLRB v. Shurtenda Steaks, Inc., 424 F.2d 192, 194 (10th Cir. 1970). . . . The movant must establish that the alleged contemnor has not diligently attempted to comply in a reasonable manner with a court order. King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995). Technical or inadvertent violations of a court order do not support a finding of civil contempt. Universal Motor Oils Co. v. Amoco Oil Co., 743 F. Supp. 1484, 1487 (D. Kan. 1990). T.Y. by Petty v. Bd. of Cty. Comm’rs of Cty. of Shawnee, 912 F. Supp. 1424, 1427–28 (D. Kan. 1996). C. Further Remedial Relief under the ADA Movants ask the Court to order additional remedial relief under the ADA. Specifically, Movants ask the Court to order MDC to allow only security employees with specialized training, skills, and temperament to work in special management units. See McNeil v. Guthrie, 945 F.2d 1163, 1165-66 (10th Cir. 1991) (finding that individuals who file suit complaining about unconstitutional prison conditions must seek relief through an ongoing prison-conditions class action).
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The Tenth Circuit Court of Appeals explained, Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. This provision extends to discrimination against inmates detained in a county jail. See Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). Discrimination under the ADA may include failure to make reasonable accommodations to the needs of a disabled person. See Tennessee v. Lane, 541 U.S. 509, 531 (2004) (stating that Congress recognized “that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion” or discrimination). The “ADA thus not only prohibits public entities from discriminating against the disabled, it also prohibits public entities from excluding the disabled from participating in or benefitting from a public program, activity, or service ‘solely by reason of disability.’” Romero v. Bd. of Cty. Commissioners for the Cty. of Curry, 202 F. Supp. 3d 1223, 1265 (D.N.M. 2016) (emphasis in original) (citations omitted). Thus, if a detention facility provides programs for inmates, such as mental health treatment or educational programs, it must do so on non-discriminatory terms. Robertson, 500 F.3d at 1199. In Robertson, the Tenth Circuit reversed the dismissal of an ADA claim brought by a hearing-impaired inmate who was not provided a hearing aid that would have allowed him to participate in his probable cause hearing. Id. at 1199. Even though the inmate’s attorney represented him at the hearing and even though the charges against the inmate were dismissed, the Tenth Circuit determined that summary judgment dismissing the inmate’s ADA claim was inappropriate:
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Because Mr. Robertson was detained at a facility that permits detainees to attend their probable cause hearings, Mr. Robertson was eligible to participate in this program. . . . Even though his presence was not required, because the facility makes the activity available to detainees in general, it must do so on nondiscriminatory terms. . . . Furthermore, . . . he was denied the ability to participate in his probable cause hearing to the same extent as non-disabled individuals. Id. (citations omitted). The same is true for mentally disabled inmates. If a detention facility consistently denies mentally disabled inmates the benefits of therapeutic programs, by subjecting them to excessive force or excessive lockdowns for behavior that is a result of their disability, the detention facility may violate the ADA. Cf. Jones v. Smith, 109 F. App’x 304, 309 (10th Cir. 2004) (holding that while the inmate’s work assignment may have been the product of incompetence or personal spite, the inmate’s ADA claim failed because he did not allege that his assignment to medically inappropriate work was done because of his disability). II. BACKGROUND A. Settlement Agreement and the Check-Out Audit Agreements The SA incorporates three Check-Out Audit Agreements (Doc. Nos. 1222-2, 1222-3, and 1222-4). The Check-Out Audit Agreements outline “definitive, specific, and measurable tasks to be accomplished in order to achieve substantial compliance” in each area covered. Check-Out Audit Agreement No. 1 (COA1) governs medical services. As stated, COA2 governs mental health services. Check-Out Audit Agreement No. 3 (COA3) governs general conditions of confinement. Each Check-Out Audit Agreement provides: “the parties understand and agree that this Agreement incorporates (but does not supersede) all extant orders and agreements.” (COA 1,
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2, and 3 at p. 1.)4
Movants complain that the County is violating ¶ G of COA2, which requires the Court’s
mental health expert Dr. Jeffrey Metzner to determine whether MDC sufficiently trains its
security employees to work with special management inmates:
G. Basic Mental Health Training 1) Whether MDC provides adequate pre-service and annual in-service basic training to Qualified Medical and Mental Health Staff and security staff that addresses mental health needs. MDC will provide no less than forty (40) hours of specialized training. 2) Whether MDC provides adequate specialized training for all security staff on specialized mental health units.
(COA 2 at p. 15.) COA2 also requires Dr. Metzner to determine (1) whether MDC provides
“adequate care for inmates’ serious mental health needs”; (2) whether MDC mental health care
staff and security staff communicate sufficiently about special management inmates; and (3)
whether MDC follows a proactive program of care for special management inmates. (COA2 at
16–22.) COA2 incorporates an ORDER (Doc. No. 256) (the 1996 ORDER), that states in
relevant part,
4 Under the SA, the County may move for a finding of initial substantial compliance with the requirements in one of eight domains outlined in the SA. (For example, one domain set forth in COA2, governs the provision of Mental Health Services.) The Court will then determine whether the record supports a finding of initial substantial compliance with respect to that domain based on experts’ reports and other evidence presented. After the Court determines that MDC is in initial substantial compliance with the requirements of a domain, the Court will set a specific period for the MDC to self-monitor. During that period, the MDC will gather data and issue a preliminary analysis of compliance with each requirement of the domain. The expert will review the data, gather any additional facts, if necessary, and submit a written analysis. The expert determines whether the MDC is in substantial compliance with each requirement of that domain and reports to the Court. If MDC is not in substantial compliance, the expert will recommend corrective action. Over the period of self-monitoring, MDC must submit quarterly reports to the expert, and to counsel for Plaintiffs and Plaintiff Intervenors, that contain information sufficient to determine ongoing compliance with each requirement of a domain. At the end of the self-monitoring period, the expert will determine whether MDC is in compliance, partial compliance, or non-compliance with the substantive requirements of the domain. For any finding of non-compliance, MDC has 90 days to correct the non-compliance. If the Court determines that a domain has remained in sustained substantial compliance, the orders covering that domain will be vacated.
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security staff shall receive training regarding the identification of symptoms of mental or developmental disabilities and regarding appropriate methods for dealing with residents with mental or developmental disabilities. Correctional officers who work in . . . units in which people with mental or developmental disabilities are congregated shall receive specialized training to adequately prepare them for working with people with mental or developmental disabilities. The specialized training shall be no less than 40 hours. (Id. at 12.) In 2011, the MDC established a 40-hour mental health training program in its cadet academy; therefore, as to security employees hired after 2011, the MDC has complied with the “pre-service” training requirement of COA2 ¶ G. (County Post-Hrg Brief Ex. A (Doc. No. 13151)). However, about half of the security employees eligible to work in special management units have not received the 40 hours of basic mental health training. (Tr. 72:25–74:5; County Post-Hrg Brief Ex. A at 2.) MDC offers 8 hours of “in-service” mental health training to security employees who are permanently assigned to work in special management units. (Tr. 73:15–23.) B. 2015 Collective Bargaining Agreement. In August 2015, the County entered into a CBA with the American Federation of State, County, and Municipal Employees (AFSCME) (the Union). Under the 2015 CBA § 10.2, security employees may “bid semi-annually for shift, days off and Unit (post) assignments in seniority order.” (Union Resp. to Jt. Mot. (Doc. No. 1278-2) CBA at § 10.2.) Prior to 2015, security employees were allowed to bid only for shift and days off. Section 10.5 of the 2015 CBA provides: Any permanent change of work schedule (shift/days off/post assignment) requires a two week notice in writing to the employee by the Chief of Corrections. Reassignments due to disciplinary issues can be immediate (post final action), but the two-week notice before the permanent change is still required. An employee may not be moved from their bid position without “just cause.”
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(CBA § 10.5.) 5 “Just cause” is not defined in the CBA. The 2015 CBA expired on June 30, 2017, and the Union and the County are negotiating a replacement CBA. The 2015 CBA, however, remains in effect until a new CBA is executed. (Tr. 9:16-10:6.)
C. General Complaints about the Treatment of Special Management Inmates In 2015, the County created a segregation mental health unit to house seriously mentally ill male inmates. The unit was located in the Seg. 6 building and was named Health Services Unit 6 (HSU 6). Beginning in the summer of 2015, counsel for Plaintiff-Intervenors, who regularly monitor conditions at the MDC, complained about the treatment of special management inmates, particularly in HSU 6. Counsel for Plaintiff Intervenors alleged that certain security officers verbally abused and berated these inmates; locked down the inmates frequently for minor infractions; failed to allow inmates their requisite time out of their cells; and threatened inmates who complained. (Jt. Mot. at 7–10.) Counsel noted that the security staff were “treating [HSU 6] like a regular segregation unit, not a mental health unit.” (Tr. 12:21-22.) At a status hearing on October 7, 2015, the Court instructed Manuel Romero, the Court’s conditions of confinement expert, to evaluate the CBA and its impact on compliance with this Court’s orders. In a December 23, 2015 report, Mr. Romero stated,
5 In 2012, a Memorandum of Understanding (MOU) between the Union and the County allowed only Sergeants and Lieutenants to bid for post assignments. Beginning in 2013, a new MOU expanded the bid for post program to include corrections officers. Under those MOUs, however, MDC management reserved the right to reassign employees from a bid post “when deemed necessary.” (AFSCME Resp. to Jt. Mot (Doc. No. 1278-1) Aff. Joseph Trujeque ¶¶ 8–9.) In the 2015 CBA, § 10.5 was added regarding the removal of security employees from bid posts. Instead of having the right to remove security employees “when deemed necessary,” the 2015 CBA required “just cause” for removal. (Id.) The Union insisted on the “just cause” provision because it believed some MDC managers had arbitrarily moved security employees from their posts, not due to performance or disciplinary issues, but because of personal animosity or favoritism. (Id. ¶ 11.)
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The most problematic provision of the new CBA is that the bidding process for custody staff has expanded from shift and days off to include unit post assignments. . . . Furthermore, once an employee is occupying a “bid position”, the employee may not be moved from their bid position without “just cause.” Managements’ prerogative to assign custody staff to a unit (post) is taken away[.] . . . For example, there are custody staff that may not be suitable to work with special management inmates, mentally ill inmates or special inmate populations, but under the current CBA any officer can bid for any post by seniority order. . . . Moreover, if a particular officer has or has had a conflict with a particular inmate; he or she cannot be removed from that security post without meeting the standard of “just cause” which is operationally problematic.
(Jt. Mot. Ex. 4.)
In a February 2016 report, Dr. Metzner expressed concerns about the “serious breakdown” in communication between MDC mental health staff and officers.6 (Jt. Mot. Ex. 2.)
Dr. Metzner noted that “the working relationship between security staff and mental health staff
has been strained since the latest bid process.” (Id.) Dr. Metzner concluded that the
communication issues “have negatively impacted the treatment program within Seg. 6.” (Id.)
Thus, Dr. Metzner and Mr. Romero attributed the negative treatment of special management
inmates to the CBA’s bid for post provision in § 10.2 and restrictions in CBA § 10.5 on the
MDC’s power to reassign security employees in bid positions. The County maintains that these
CBA provisions have hampered MDC’s ability to reassign security employees because it must
give a two-week notice to employees and show “just cause” before employees can be moved
from bid positions, even temporarily.
In mid-2016, counsel for Plaintiff Intervenors, the County, and the Union attempted to
negotiate a “Memorandum of Understanding” (MOU) to address concerns about security
employees who were not performing well in bid positions. They tried to add specific
6 COA2 requires that “sufficient communication occur[] between MDC administration and treating mental health care professionals. . . . [and that] MDC security staff is adequately advised of inmates’ special mental health needs that may affect . . . disciplinary measures . . . [and that] mental health care and security staff communicate sufficiently about inmates with special needs conditions.” (COA2 at 21-22.)
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requirements for security employees who bid into special management units, and they attempted
to define “just cause” in CBA § 10.5. The MOU was never finalized. (Tr. 9:16–10:22.)
In Dr. Metzner’s July 2016 Report (Jt. Mot. Ex. 3), he stated emphatically,
[T]he conduct of some of the MDC correctional staff has effectively denied a significant number of inmates access to adequate mental health care and has caused harm to inmates with a serious mental illness. This harm has been both physical, due to unnecessary and/or excessive use of force, and mental related to abusive and/or inappropriate verbal interactions and excessive and unnecessary lockdowns. . . . [A] small number of correctional officers during the past seven months created a toxic environment for many inmates with a serious mental illness. The response by correctional management staff, in my opinion, has been problematic and ineffective, which appears to be related, in part, to union contract issues and permanent administrative leadership positions being vacant or changed. As a result, problematic correctional officers/supervisors working within the HSUs have been allowed to continue to work within those units despite their very problematic interactions with inmates with a serious mental illness.
(Id. at 17) (emphasis added). Dr. Metzner downgraded his finding of “compliance” to “partial
compliance.”
In response to the complaints of inmate mistreatment, MDC administrators disbanded
HSU 6 and moved the special management inmates into other housing units known as PAC
units. Recently, Dr. Metzner has recommended that MDC reinstate HSU 6 because housing
segregated special management inmates in the same unit better facilitates treatment and access to
programming. However, Movants maintain that whether or not the HSU 6 is reinstated, MDC
must ensure that security employees in all special management units are properly trained and
have the specialized skills and temperament to accommodate the needs of special management
inmates and to comply with COA2 and the Court’s orders.
D. Specific Examples of Complaints of Mistreatment
In late January 2016, Sergeant Kevin Romero was assigned to work an overtime shift in a
special management unit. (See Plf. Hrg. Ex. 4 memoranda.) After his shift, Sergeant Romero was
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notified that MDC was investigating a complaint by Dr. Hamilton, an MDC mental health professional, about Sergeant Romero’s inappropriate communication with an inmate that led the inmate to believe Dr. Hamilton was afraid of the inmates in that unit. (Id.) Sergeant Romero was removed from that special management unit pending an investigation. (Id.) The Union grieved MDC’s temporary reassignment of Sergeant Romero as not supported by the “just cause” requirement of CBA § 10.5.
In mid-2016, a mental health professional complained about an employee, Officer Files, who had bid into a position in a female special management unit. (See Plf. Hrg. Ex. 1 email and correspondence.) The mental health professional asked for a transfer from the unit while Officer Files held the bid position. The mental health professional said she did not feel safe in the special management unit because Officer Files failed to follow instructions and protocols for protecting mental health workers from inmate hostility and threats. (Id.) The captain in that special management unit determined that the problems stemmed primarily from the fact that Officer Files had not received the training required for officers who are assigned to that unit. (Id.) As a result of the mental health professional’s complaints, group therapy in that special management unit was suspended. (Id.) On June 15, 2016, Officer Files was reassigned to another unit pending an investigation. (Id.)
On February 12, 2016, Plaintiff Intervenors’ counsel initiated a formal complaint, via email to the MDC message center, to all counsel for the County, and to several MDC administrators, about Correction Officer (CO) Sisneros who was in a bid position in HSU 6. (Plf. Hrg. Ex. 5 emails.) Counsel complained that CO Sisneros violated MDC policy 3.35, which prohibits abusive language and behavior directed at an inmate. (Id.) Counsel relayed complaints from subclass members that CO Sisneros locked down HSU 6 excessively, used severely rude
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and degrading language when addressing inmates, and threatened inmates who filed grievances about his behavior. (Id.)7
In a May 23, 2016 email, the County’s counsel summarized information from a series of memoranda and letters between the County’s counsel and Plaintiff Intervenors’ counsel about CO Sisneros. (Plf. Hrg. Ex. 2 (Doc. No. 1256-2)). The email summary included the following specifics: In a February 18, 2016 memorandum, Plaintiff Intervenors’ counsel requested documentation regarding the investigation of CO Sisneros. (Id.) The County responded by letter dated March 17, 2016 that Captain Alvarado had investigated Inmate Cook’s grievance and that CO Sisneros had received a verbal reprimand. (Id.) Plaintiff Intervenors’ counsel sent another memorandum dated March 22, 2016 stating that they observed CO Sisneros was still working in HSU 6. (Id.) Counsel relayed other complaints from inmates that CO Sisneros was verbally abusive and “does not seem to understand that the residents on that pod have significant mental health needs. . . . CO Sisneros routinely threatens to lock residents down for minor things [for example, an inmate’s] shirt was not properly tucked in” (Id.) On April 14, 2016, Plaintiff Intervenors’ counsel received a call from an HSU 6 inmate who reported excessive lockdowns and that staff, especially CO Sisneros, continued to be verbally abusive. (Id.)
In the same May 23, 2016 email, counsel for the County stated that MDC “considers the request for an investigation into CO Sisneros closed and fulfilled.” (Id.) In that email, counsel for the County also recounted a meeting between Plaintiff Intervenors’ counsel and the County’s counsel held on April 29, 2016. (Id.) At the meeting, the County’s counsel explained to Plaintiff Intervenors’ counsel that “while MDC does allow the average citizen to request an investigation into a matter at MDC, the intent is not to allow counsel in this case to order additional
7 A record of the grievance against CO Sisneros initiated by Inmate Joshua Cook was attached to the Ex. 5 emails. (Id.) There was evidence at the hearing that inmate Cook’s grievance about CO Sisneros was flagged as a duplicate of the Plaintiff-Intervenors’ counsel’s complaint via email. (Id.)
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investigation into matters that MDC considers resolved.” (Id.) “MDC continues to take counsel’s concerns seriously and look [sic] into those concerns, but MDC will not conduct a different or additional investigation into something because counsel is dissatisfied and submits a request through a means intended for citizens to raise their own separate concerns.” (Id.) The letter reported that CO Sisneros was investigated by Universal Investigation Services concerning two separate incidents in HSU 6. “MDC has provided everything that it plans to provide in response to Mr. Cubra’s February 12, 2016 e-mail and has explained that there are no further documents.” (Id.) Finally, the County’s counsel reported that “[b]ased on the pod logs, it does not appear staff has been locking the pod down for inappropriate reasons or too frequently.” (Id.) CO Sisneros was not reassigned from the bid position in HSU 6 while the investigation was pending. At the next two bidding opportunities, however, CO Sisneros did not bid back into that position. III. DISCUSSION
Movants argue that the County is violating COA2 and the 1996 ORDER by allowing untrained employees to work in special management units and that the County is violating the ADA by not removing abusive or negligent employees from those units. Movants allege specifically that MDC violates COA2, the Court’s orders, and the ADA in three ways: (1) MDC fails to adequately train security employees who work with special management inmates; (2) MDC allows security employees to bid into special management units despite their lack of training and special skills necessary for appropriate treatment of special management inmates; and (3) MDC inadequately supervises and disciplines security employees who violate MDC policies or mistreat special management inmates. Movants further contend that to the extent the CBA causes the County to violate this Court’s orders or the ADA, it is unenforceable.
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The County claims the provisions in the CBA regarding bid for post and moving security employees from bid positions severely limit its ability to assign and to remove security employees from those positions. The County also asserts that to the extent the CBA hinders its compliance with this Court’s orders or the ADA, the Court has the power to modify the CBA.
The Union counters that the CBA does not hinder the County’s compliance with COA2, the Court’s orders, or the ADA. According to the Union, the CBA does not “speak to the mechanics of training or dictate how the County will train its personnel. . . . [T]raining, qualifications and job duties are all determined by the County and [are] not constrained by the CBA.” (Union Post-Hrg Brief at 3.) The Union asserts that the CBA’s bid for post provision (§ 10.2) does not hinder the County’s compliance with its obligations under this Court’s orders or the ADA, and CBA § 10.5 does not preclude the County from removing a security employee for misconduct by temporarily reassigning the employee pending an investigation of misconduct. Moreover, the Union maintains that the Court does not have the authority to modify the CBA without the Union’s consent.
Based on the arguments and evidence, the meaning of the CBA’s bid provisions has become clear to the Court. The Court concludes that the CBA’s bid provisions do not hinder the County from adequately training and managing its employees in accordance with COA2, the Court’s orders, and the ADA.
A. Training The County and Movants initially disagreed about what constitutes the “adequate preservice and annual in-service basic training” required by COA2 ¶ G and the 1996 ORDER. Movants assert that all MDC security employees must receive at least 40 hours of pre-service mental health training. (County Post-Hrg. Brief Ex. A at 2.) At first, the County took the position
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that its 40-hour cadet training program and its 8-hour refresher training for all employees who
bid into special management units fully complied with this Court’s orders. (County Resp. (Doc.
No. 1256) at 2–3.) At the hearing, the County reported that it now realizes it must require all
security employees to take the 40-hour training and that it has developed a plan to provide that
training.8 (Tr. 7:11–9:11.) Thus, the County properly recognizes that under COA2 ¶ G and the
1996 ORDER; all security employees who are eligible, through bidding or otherwise, for
assignment into positions in special management units must have completed 40 hours of pre-
service mental health training.
The current lack of adequate training is illustrated by Union President Perkins’ testimony:
Q. . . . do you ever work in the psych services unit, the PAC unit? A. Yes, sir. . . . Q. And in the last year or so, have you been working in the psych services unit? A. Sporadically, yes, sir. Q. Now, is that a post into which you bid, or does that come to you as an overtime shift? A. Currently, it comes to me as an overtime shift. Q. And so have you undertaken the eight hours of specialized training that some people call refresher training before your current bid cycle? A. I have taken the eight-hour training, but not before this bid cycle. I’ve taken it previously. . . it’s been a few years. Q. Okay. So who decides to require you to work in that housing unit . . . even though you have not had in recent times the eight-hour refresher training . . .? A. Well, the training for the psych unit staff currently is after the bid, any new people, they are pulled aside and scheduled for an eight-hour training. That’s just the permanently assigned people. . . . [I]f I take an overtime shift or get ordered there, I’m required to work there. Q. Right. But who makes the decision to say, you, Mr. Perkins, go work in the psych unit even though you haven’t had the eight-hour training? A. It’s based on seniority and/or voluntary overtime. I can volunteer for it if that’s open, I can take it, or if I’m just low man and it’s open, I can get ordered to it. . . . Q. Okay. So why don’t you take the eight hours of refresher training if you are choosing to go work in the mental health unit?
8 The County’s counsel, Taylor Rahn, stated that the County submitted a proposal to Dr. Metzner that was approved by Movants and by Dr. Metzner. (Tr. 7:20–23.)
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A. It is not something that’s offered. They schedule new biddees into the unit, and that’s who gets to go to training. It is not offered a la carte, so to speak, here is the training, sign up as you will. It is not offered that way. . . . Q. . . . Now, you have been working at the jail since before 2011, so have you ever been offered the 40-hour block of training? A. I have not. (Tr. 72:19–75:5.) In view of this testimony regarding MDC’s need to temporarily fill vacant and overtime positions and the CBA’s bidding process for permanent assignments, it appears that any security employee could be assigned to work in a special management unit at any given time. Therefore, as the County now agrees, to comply with COA2 ¶ G and the 1996 ORDER, MDC must require all security employees to complete the 40-hour pre-service training.9 As Mr. Perkins testified, the County currently provides an eight-hour “refresher” mental health training program only to security employees who are permanently assigned to work in special management units. Security employees, who like Mr. Perkins received the 8-hour training in the past, are not required to retake the training even though they are eligible for placement into those positions temporarily. Under the plain language of COA2 ¶ G, however, the County must provide annual in-service training to all security personnel who handle mental health needs. Movants request an order mandating MDC to provide eight-hour annual “refresher” training. (Jt. Post-Hrg Brief (Doc. No. 1316) at 21.) However, the eight-hour length is not specifically required by COA2 or the 1996 ORDER. Hence, the Court will ask the parties to confer in an effort to determine the proper length of an annual in-service training program.
9 The CBA bid provision has not caused, but has merely magnified the effect of the County’s failure to require all security employees to receive the 40-hour pre-service training. The Court also recognizes that the CBA bid for post provision adds a layer of complexity to the assignment of security employees at MDC. As Movants point out, since security employees are allowed to bid for posts every six months, it is impossible to anticipate which security employees will bid into special management units. But, the problem did not begin with the 2015 CBA.
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The Court recommends that the parties consult Dr. Metzner on both the appropriate content and length of that program.
In sum, COA2 ¶ G outlines a bifurcated mental health training scheme. First, all security employees must complete 40 hours of pre-service mental health training. Second, all security employees must complete annual in-service mental health training in order to be eligible to work with special management inmates.
B. Qualifications and the ADA Movants argue that in order to comply with the ADA, the County, in addition to training security employees, must ensure that each security employee assigned to a special management unit has the specialized skills and temperament to properly “accommodate inmates with mental disabilities.” (Joint Post-hrg Brief. At 1.) Movants urge the Court to mandate (1) that MDC determine whether an employee possesses the specialized skills and temperament essential for working in a special management unit under “an interdisciplinary process in which security personnel and medical and/or mental health professionals jointly determine whether the employee demonstrates such specialized skills”; and (2) that if a mental health professional determines “an employee is not demonstrating the necessary specialized skills, the employee will be transferred out of the post and replaced by a qualified employee.” (Id. at 2.) Movants say that they are not required to take a position on whether the CBA § 10.5 prevents the County, as it has argued, from fulfilling its duty to require security employees to have specialized skills and temperament. The Union, on the other hand, notes that the CBA says nothing about the qualifications required for assignments at MDC. The Union points to the County as being in charge of setting up the qualifications for each position. The County retorts that under the bid for post provision, it
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has to allow security employees to bid for positions on the basis of seniority, not on the basis of specialized skills and temperament. The Union counters that the County could separately classify all positions in special management units and only allow certain “qualified” employees to bid on those positions. (Tr. 26:1–20.)
Specialized skills and temperaments are reflected in certain behaviors. For example, a security employee must have the skill and temperament to follow the instructions of mental health professionals (Tr. 33:7–24; Plf Hrg. Ex. 1); to appropriately respond to inmates with psychotic behaviors (Plf Hrg. Ex. 1); to avoid interfering with group therapy (Id.); to appropriately communicate with mental health professionals during inmate crisis incidents (Id.); and to refrain from discussing certain matters in front of inmates. (Id.) The SA and the COA2 with its incorporated orders, however, do not explicitly require that the MDC use only security employees who have particular specialized skills and temperament for working with special management inmates. COA2 and the Court’s orders leave it up to the MDC administration to train, supervise, and discipline security employees to make sure they behave in an appropriate manner with special management inmates. And the Court is convinced that if the County substantially complies with the requirements of COA2 and the Court’s orders, as clarified in this ruling, MDC’s special management inmates will be reasonably accommodated under the ADA.
Nonetheless, Movants want the Court to add a requirement that gives MDC mental health professionals a prominent role in deciding whether an MDC security employee has specialized skills and temperament to work with special management inmates. The Court agrees with the Union that Movants’ request is unworkable. MDC mental health professionals are not County employees but instead are employees of the County’s contract health care provider—Correct Care Solutions (CCS). Giving mental health professionals, who are not County employees, this
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type of decisive role would essentially place those professionals in a supervisory position that undermines the MDC management structure and the CBA protections for Union employees. In short, it is inappropriate to give non-County personnel the power to decide which security employees are qualified to work in special management units. However, it would be appropriate for the County to give significant weight to the opinions of mental health professionals in the MDC’s supervision and discipline of security employees who work in those posts.
Although it is advisable to have employees with special skills and temperaments assigned to special management units, the Court finds that a new order imposing that requirement, in addition to the other requirements of COA2 and the Court’s extant orders, is unnecessary. A security employee can adequately accommodate the needs of special management inmates if the security employee is sufficiently trained, supervised, coached, and disciplined by MDC supervisors and administrators with advice from mental health professionals.
In his testimony, Mr. Romero suggested that MDC establish a separate classification for security employees who are assigned to special management units. He noted that some jails and prisons have created stand-alone mental health units staffed with employees who are specially trained and separately classified. (See Tr. 145:12–146:7.) Although this is a thoughtful suggestion worthy of the County’s consideration, the global settlement represented by the SA, COA2 and the incorporated orders does not require the County to create stand-alone special management units at the MDC with separately classified employees. Although these types of units have been successful in other facilities, the Court will not impose this requirement on the MDC at this time. The County should be allowed flexibility in deciding whether it can comply with COA2, the Court’s orders, and the ADA by implementing stand-alone mental health units
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staffed by separately classified security employees while adhering to the CBA and its protections of employee rights.10
C. Supervision and CBA § 10.5 Movants contend that MDC supervisors and administrators are not proactively moving security employees from their bid posts during investigations of misconduct. The County maintains that under CBA § 10.5, it has very limited recourse against employees in bid positions who are accused of improprieties. The last sentence of § 10.5 states that an employee “may not be moved from their bid position without ‘just cause.’” The County interprets this sentence to mean that it must give notice to a security employee, perform an investigation of the employee’s performance, and find a disciplinary infraction, before removing or reassigning the employee from a bid position, even temporarily. The Union reads this provision differently. The Union says that under CBA § 10.5, the County may immediately reassign a security employee who presents a “disciplinary issue.” Under this interpretation, allegations of misconduct would be sufficient for the immediate reassignment of a security employee. However, the Union has not taken such a flexible position in the past. Although the Union maintains that it has never grieved the temporary reassignment of an employee pending an investigation, the Union did grieve Kevin Romero’s reassignment pending an investigation of misconduct as alleged by Dr. Hamilton. (See County Hrg. Ex. A pp. 1-2.) Interestingly, Union President Perkins’ testimony supports yet another interpretation of this sentence based on whether a transfer is temporary or permanent. Mr. Perkins testified that CBA § 10.5 allows a temporary transfer of a security employee from a bid position pending an
10 Mr. Perkins, the Union President, described other positions at MDC that only certain qualified employees may bid into. For example, employees stationed in releasing, master control, community custody, and transport must meet some additional qualifications before being assigned to those positions. (Tr. 82:4–83:16.)
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investigation of misconduct. (Tr. 79:1-11.) Mr. Perkins, on behalf of the Union, opined that prior to a permanent transfer, the CBA “requires a notice of intent to discipline, that describes the security employee’s actions, the policies violated, and the proposed discipline. This is followed by a pre-determination hearing, which affords the employee the opportunity to address the charges. The CBA . . . requires two weeks’ notice prior to a permanent change.” (Union Ans. to Interrog. (Doc. No. 1305-1) at p. 3.) On the meaning of “just cause” Mr. Perkins stated, “[w]e understand just cause to include the ‘seven tests of just cause.’” (Id. at p. 2.) Those seven tests include determining (1) whether prior notice was given to the employee; (2) whether the rule violated was reasonable; (3) whether there was an investigation of the infraction; (4) whether the investigation was done fairly, (5) whether there was substantial evidence of guilt; (6) whether the employer applied its rules evenhandedly; and (7) whether the degree of discipline was reasonably related to the seriousness of the offense and the employee’s record. (Id. at pp. 1–2.) (See also Tr. 78:6–13.) Mr. Perkins explained that the grievances filed by the Union under § 10.5 were for instances where MDC reassigned employees to fill vacant positions in order to allow other employees to accrue overtime. In those grievances, the Union claimed that removal of an employee from a bid position to allow another to accrue overtime, even if temporary, was not “just cause” for a transfer under § 10.5.
In a written decision dated December 29, 2016, UNM Law Professor Scott Hughes, acting as arbitrator, decided that the “just cause” requirement of CBA § 10.5 governed only permanent reassignments from bid positions. (County Hrg. Ex. B at p. 5.) In a dispute over temporary reassignment of two MDC employees to fill vacant positions, Professor Hughes concluded “that the language of the just cause requirement is limited to permanent moves, but that single or one-off moves do not require such a showing.” (Id.)
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In that arbitration, an MDC security employee, Lieutenant Contreras, was moved on several occasions from a bid position to a shift commander position. In the situation in which the MDC lacks an employee to fill a position, MDC administrators are required first to assign employees from a voluntary overtime list and next from an involuntary overtime list in reverse order of seniority. Instead of assigning an employee to the vacant post according to that process, MDC administrators repeatedly assigned Lt. Contreras from his bid position to a shift commander position. Professor Hughes determined that the “seniority call list was violated in the process of frequently moving Lt. Contreras to shift commander.” (Id. at 6.) Professor Hughes found that even though Lt. Contreras was not permanently moved from his bid position, “[w]here the management needs impact a single individual, as with Lt. Contreras, they violate his vital interests in the bidding process found in Article 10 and constitute a constructive permanent move[.] . . . If employees can be moved in this way just short of permanent moves, then there is no meaning to the bidding system.” (Id.) Thus, Professor Hughes concluded that MDC violated § 10.5 when it frequently moved Lt. Contreras from his bid position to another position to accommodate a staffing shortage in violation of MDC’s policy. (Id.)
The Court agrees with Professor Hughes’ general finding that temporary removals do not per se require “just cause.” The Court concludes that under CBA § 10.5, MDC has authority to immediately transfer, pending an investigation, any security employee in a bid position in a special management unit who acts abusively toward special management inmates. Under COA2, the Court’s extant orders, and the ADA, the MDC must temporarily reassign a security employee who abusively interacts with a special management inmate. In sum, CBA § 10.5 does not require MDC to prove “just cause” before temporarily reassigning a security employee while conducting an investigation of the security employee’s alleged mistreatment of a special management
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inmate. Moreover, CBA § 10.5 allows MDC to permanently reassign that same security employee if the allegations are confirmed because misconduct constitutes “just cause” under § 10.5. IV. CONCLUSION
Despite MDC’s training deficiencies and hesitance when faced with allegations of abuse, the Court believes that, at this time, there is insufficient evidence to hold the County in contempt of the SA or COA2 and its incorporated orders. However, the County must improve in the MDC’s mental health services before the Court will be able to find substantial compliance with COA2. First and foremost, the County must require all MDC security employees (1) to successfully complete the 40-hour training to prepare them for working with special management inmates, and (2) to undergo annual in-service mental health training. The County should direct MDC to closely supervise security employees and to promptly investigate of allegations of abuse of special management inmates by security employees. This will go a long way toward improving MDC’s mental health services and ensuring an eventual finding of substantial compliance for this domain.
IT IS ORDERED that PLAINTIFFS’ AND PLAINTIFF-INTERVENORS’ JOINT MOTION FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER, Doc. Nos. 256 AND 1222-3, AND MEMORANDUM IN SUPPORT (Doc. No. 1247) is denied.
SENIOR UNITED STATES DISTRICT JUDGE
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 Case 6:95-cv-00024-JAP-KBM Document 814 Filed 09/16/10 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JIMMY MCCLENDON, et al.

Plaintiffs,

vs.

CIV. 95-0024 JP/ACT

CITY OF ALBUQUERQUE, MAYOR OF ALBUQUERQUE RICHARD J. BERRY, in his official capacity, DIRECTOR OF BERNALILLO COUNTY DETENTION CENTER, in his official capacity, BERNALILLO COUNTY BOARD OF COMMISSIONERS, in their official capacities,

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and others similarly situated,

Plaintiff-Intervenors.

MEMORANDUM OPINION AND ORDER SETTING HOURLY RATES FOR PLAINTIFF-INTERVENORS’ ATTORNEYS
ON WHICH PAYMENT OF FEES CAN BE BASED

On April 15, 2010, Plaintiff-Intervenors filed Plaintiff-Intervenors’ Motion For An Order

Setting Hourly Rates For Plaintiff-Intervenors’ Attorneys And Their Staff On Which The

Payment Of Fees Can Be Based (Doc. No. 773) (the “Motion”). In the Motion, Plaintiff-

Intervenors ask the Court to set hourly rates for their attorneys for work performed on or after

July 1, 2009. Plaintiff-Intervenors contend that as prevailing parties under the Americans with

Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.), the Rehabilitation Act (“RA”) (29 U.S.C.

§§ 701 et seq.), and Section 1983 of title 42, they are entitled to their reasonable attorney’s fees

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and expenses under 42 U.S.C. § 12205.1 On May 26, 2010, Defendant Bernalillo County Board of Commissioners (“Defendant”) filed Defendant’s Response To Plaintiff-Intervenors’ Motion For Attorneys Fees (Doc. No. 787) (the “Response”). On June 22, 2010, Plaintiff-Intervenors filed Plaintiff-Intervenors’ Reply To Defendants’ (sic) Response To Motion For An Order Setting Hourly Rates For Plaintiff-Intervenors’ Attorneys And Their Staff On Which The Payment Of Attorneys’ Fees Can Be Based (“Reply”) (Doc. No. 795).
I. Background On January 10, 1995, Plaintiffs filed this lawsuit alleging overcrowding and other unconstitutional conditions of confinement at the Bernalillo County Detention Center (the “BCDC”) located in Albuquerque, New Mexico. The Court certified the Plaintiff class as all persons who were then or in the future “confined in the Bernalillo County Detention Center.” On August 23, 1995, the Court granted to Plaintiffs a preliminary injunction, but the Court stayed enforcement of the injunction until August 23, 1996 to “enable Defendants to immediately implement their proposals for reducing the population at BCDC to its design capacity.” Order (Doc. No. 106 at 10-11) The Court also enjoined Defendants from housing more than 95% of the BCDC’s design capacity after January 1, 1997. Id. at 11. The Court retained jurisdiction to review and modify its August 1995 Order. Id. at 14. On September 7, 1995, Plaintiffs and Defendants entered into a settlement agreement approved by the Court in which Defendants agreed to convert the preliminary injunction into a
1 In this Memorandum Opinion and Order, the Court will sometimes refer to the ADA and the RA collectively as the ADA because the standards for granting relief are essentially the same under both statutes. Montez v. Romer, 32 F. Supp. 2d 1235, 1239 (D. Colo. 1999) (citing Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir.), cert. denied, 518 U.S. 1005 (1996) (“As a general matter, courts have construed the [RA] and the [ADA] similarly.”)). The RA served as the model for the ADA. Id.
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permanent injunction and also agreed that the Court would retain jurisdiction to enforce or modify the permanent injunction. Settlement Agreement (Doc. No. 114) and Order (Doc. No. 115).
On October 26, 1995, Plaintiff-Intervenors, representing a sub-class of prisoners with developmental or mental disabilities or mental illness, were allowed to join this case. Order (Doc. No. 137). The Court ruled that Plaintiff-Intervenors’ intervention was limited “to the claims raised in the original Plaintiff’s Complaint and the . . . issues addressed in the Court’s prior orders . . . .” Id. at 2. The Court allowed Plaintiff-Intervenors to assert claims regarding the following matters: 1) health care; 2) medical assessments (physical and mental); 3) classification; 4) psychiatric services unit (PSU); 5) mental health staffing; 6) overcrowding; and 7) basic accommodation and supplies. Id. Plaintiff-Intervenors filed an Amended Complaint (Doc. No. 15) alleging discrimination by Defendants against prisoners with mental or developmental disabilities in violation of Title II of the ADA and the RA in addition to constitutional violations. Plaintiff-Intervenors sought injunctive relief and a declaration that Defendants had violated the ADA, the RA, and the United States Constitution.
On April 26, 1996, Congress enacted the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in several titles and sections of U.S.C. including 18 U.S.C. § 3626 and 42 U.S.C. § 19979e) (the “PLRA”). The PLRA applied to all claims for prospective relief including relief granted prior to its enactment; thus the PLRA applied to the claims brought and relief granted to the class and sub-class under 42 U.S.C. § 1983. 18 U.S.C. § 3626.
In November 1996, the Court approved two settlement agreements and determined that both settlement agreements complied with the requirements of the PLRA. The first settlement
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agreement was executed by Plaintiffs, Plaintiff-Intervenors, and Defendants City of Albuquerque
and Bernalillo County Board of Commissioners and was approved by the Court in the Order
Regarding The Prison Litigation Reform Act (the “PLRA Order”) (Doc. No. 255). In the PLRA
Order, the Court found that “violations of one or more federal rights of BCDC residents ha[d]
occurred at BCDC.” Id. at 1. The Court also determined that Plaintiffs and Plaintiff-Intervenors
were entitled to attorney’s fees, expenses and costs reasonably and necessarily incurred with
respect to the litigation in amounts to be determined by the Court. Id. at 6.
The second settlement agreement was executed by Plaintiff-Intervenors and Defendants
City of Albuquerque and Bernalillo County Board of Commissioners. In the Order approving
the second settlement agreement (the “Plaintiff-Intervenors’ 1996 Order”) (Doc. No. 256), the
Court found that “violations of one or more federal rights of subclass members have occurred at
BCDC.” Id. at 1. Plaintiff-Intervenors’ 1996 Order contained a stipulation by the parties that
some of the BCDC residents were not afforded “reasonable accommodations for their
disabilities,” and that certain federal rights of sub-class members had been violated. Id. at 7. The
Court ordered Defendants to implement several remedial measures designed to address the needs
of inmates with mental and developmental disabilities or mental illness. Id. at 8-17. The Court
ordered Defendants to do the following:
1. Hire a qualified manager for the psychiatric services unit (PSU); 2. Develop policies, procedures and standards of care for inmates with mental illness, mental disabilities and developmental disabilities; 3. Increase the number of mental health professionals working at the BCDC; 4. Provide an adequate number of hours during which inmates could receive psychiatric services; 5. Improve the assessment of inmates suspected of having mental illness or mental disabilities; 6. Provide adequate procedural due process for the segregation of inmates with mental illness or mental disabilities when necessary; 7. Implement adequate suicide prevention protocols;
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8. Train staff to identify and appropriately deal with inmates with mental or developmental conditions; 9. Develop appropriate procedures for psychiatric hospitalization and civil commitment of inmates; 10. Provide procedural due process to determine when an inmate with mental or developmental disabilities is competent to participate in disciplinary proceedings; 12. Discontinue the punishment of groups of inmates for the actions of individual inmates; 13. Develop a system for investigating allegations of abuse; 14. Provide reasonable accommodation and assistance to ensure access to the courts and law library; 15. Provide adequate medical care to sub-class members; and 16. House inmates receiving psychiatric care outside the main BCDC facility only upon request by the inmate and upon concurrence of the psychiatrist.
Id.2 In the 2000 Order, the Court described the sub-class represented by Plaintiff-Intervenors as
“BCDC residents with mental and developmental disabilities.” Id. at 2. The Court also stated that
the ADA “defines and encompasses Plaintiff-Intervenors because they possess a qualifying
disability.” Id. at 9. However, the Court did not make specific findings as to which members of
the sub-class represented by Plaintiff-Intervenors had conditions that would constitute qualifying
disabilities under the ADA or the types of qualifying disabilities the sub-class members had.
After a fairness hearing in January 1997, the Court entered the Corrected Order
Approving Compromise & Settlement Agreement & Final Judgment Of Dismissal With
Prejudice (the “1997 Order”) (Doc. No. 289). In the 1997 Order, the Court dismissed with
prejudice all claims brought by Plaintiffs and Plaintiff-Intervenors except Plaintiff-Intervenors’
claims that female sub-class members had been denied equal protection and Plaintiff-
2 Also in the Plaintiff-Intervenors’ 1996 Order, the Court recited that Plaintiff-Intervenors had agreed to file a motion to dismiss all Defendants in their Complaint in Intervention except Defendant City of Albuquerque, Defendant Bernalillo County Board of Commissioners, the Mayor of Albuquerque, Martin Chavez, in his official capacity, and the director of the Bernalillo County Detention Center. (Doc. No. 256 at 7.) The Mayor of Albuquerque is currently Richard J. Berry; therefore, his name has been substituted in the above caption.
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Intervenors’ claims for adequate access to the courts. Id. at 8. On April 4, 1997, Mr. Baker, counsel for Defendant Bernalillo County and for Defendant
City of Albuquerque, wrote a letter to Mr. Cubra, lead counsel for Plaintiff-Intervenors, with a copy to Mr. Robert White, Albuquerque City Attorney. Letter dated April 4, 1997 (Response Ex. 2.) In his letter, Mr. Baker outlined an agreement in which the Claims Review Board of Defendant City of Albuquerque agreed to pay Plaintiff-Intervenors’ attorneys at the following hourly rates: Mr. Cubra $145.00; Ms. Simpson $135.00; Ms. Koenigsberg $100.00.3 (Response Ex. 2.) On April 4, 1997 by a letter sent facsimile, Mr. Cubra responded to Mr. Baker agreeing to these hourly rates and clarifying that under the agreement, these rates were to be in effect until November 1, 1999. In April 1999, a dispute arose between Defendants City of Albuquerque and Bernalillo County Board of Commissioners and Plaintiff-Intervenors over the future hourly rates of Plaintiff-Intervenors’ attorneys. After negotiations failed, Plaintiff-Intervenors filed PlaintiffIntervenors’ Application for Attorney’s Fees (Doc. No. 307) in which they asserted that their attorneys were entitled to reasonable attorney’s fees under the attorney’s fee provision of the ADA and that their attorneys were not limited to the maximum PLRA rate. 42 U.S.C. § 12205.
On August 22, 2000, the Court issued a Memorandum Opinion and Order (the “2000 Order”) (Doc. No. 311) in which the Court awarded Plaintiff-Intervenors’ attorneys their hourly market rates under the ADA. The Court based its decision in part on the stipulation that was recited in the Plaintiff-Intervenors’ 1996 Order that some unidentified residents were not afforded “reasonable accommodations” for their disabilities. Id. at 7. The Court also pointed to the requirement in the Plaintiff-Intervenors’ 1996 Order that Defendants implement “at least
3 Ms. Schatz-Vance was substituted for Ms. Koenigsberg in March 1999. 6

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eighteen measures designed to provide reasonable accommodations for the residents with disabilities.” Id. at 6. For example, the Court noted that Plaintiff-Intervenors’ 1996 Order required Defendants to improve mental health evaluation and treatment procedures, to increase the staffing of mental health professionals, and to increase the number of beds available to residents in mental health crises. Id. The Court stated that the findings in Plaintiff-Intervenors’ 1996 Order “were made plainly in the context of the ADA [and]. . . . Plaintiff-Intervenors’ claims arose first and foremost under the [ADA] rather than under 42 U.S.C. § 1988.” Id. In conclusion, the Court ruled that the PLRA attorney’s fees provision did not override the attorney’s fee provision under the ADA. Id. at 10. The Court awarded attorneys for PlaintiffIntervenors their hourly market rates as follows: Mr. Cubra $190.00; Ms. Simpson $180.00; and Ms. Schatz-Vance $125.00. Id.
Defendant appealed the 2000 Order but withdrew the appeal in 2001 after both sides met with a mediator from the Tenth Circuit Court of Appeals. Defendant and Plaintiff-Intervenors agreed to certain hourly rates for Plaintiff-Intervenors’ attorneys in exchange for dismissal of the appeal. The parties memorialized their settlement agreement regarding attorney’s fees (the “2001 Agreement”) in a letter dated February 7, 2001 from Jeffrey Baker, attorney for Defendants Bernalillo County and the City of Albuquerque, to Mr. Cubra, lead counsel for the sub-class. Response Ex. 3. The 2001 Agreement outlined the following hourly rates at which the Bernalillo County Claims Review Board agreed to pay attorneys for Plaintiff-Intervenors “until the end of the litigation:” Mr. Cubra $150.00; Ms. Simpson $140.00;4 and Ms. Schatz-Vance $100.00.
4Although Ms. Simpson withdrew from the case in 2002, Ms. Simpson was allowed to replace Mr. Bach as co-counsel for Plaintiff-Intervenors in this case on August 9, 2010 (Doc No. 810).
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Response Ex. 3. Mr. Cubra’s and Ms. Simpson’s hourly rates were considered enhanced PLRA rates.
In June 2003, Defendants opened the Metropolitan Detention Center (the “MDC”), a new 2100-bed facility on the west side of Albuquerque. The BCDC inmates were transferred to the MDC. After the transfer, the parties disputed whether the settlement agreements and orders in this case applied to the MDC. On June 27, 2003, Plaintiffs and Plaintiff-Intervenors filed a Joint Motion For A Temporary Restraining Order And Preliminary Injunction Enjoining The Defendants From Restricting Class And Sub Class Counsel From Having Access To The MDC (Doc. No. 409). Following a hearing, the Court issued a Memorandum Opinion and Order on July 11, 2003 (the “July 2003 Order”) in which the Court concluded that all previous orders remained in effect and applied to class and sub-class members while they were incarcerated in any Bernalillo County facility. McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250, 1255 (D.N.M. 2003). The Court determined that it had continuing jurisdiction to monitor the conditions of confinement at the MDC as a facility in the Bernalillo County jail system. Id. Specifically, the Court found that in their settlement agreements the parties intended the term BCDC to apply to the “jail system as a whole.” Id.
On October 10, 2003, Defendants filed Defendants’ Motion To Vacate Settlement Agreement Between Plaintiff-Intervenors And Defendants And To Dismiss Claims For Equal Protection And Access To Courts (Doc. No. 421) asserting that Plaintiff-Intervenors’ 1996 Order and other settlement agreements and orders did not apply to the MDC and that the Court did not have jurisdiction to issue prospective injunctive relief for inmates at the MDC.5
5 Both Plaintiff-Intervenors and Plaintiffs filed responses to this motion. See Doc. Nos. 435, 436.
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In November 2004, after a settlement conference with Magistrate Judge Alan C. Torgerson, Defendant City of Albuquerque, Defendant Bernalillo County Board of Commissioners, and Plaintiff-Intervenors entered into a new stipulated settlement agreement that was approved by the Court in 2005 (the “Plaintiff-Intervenors’ 2005 SSA”) (Doc. No. 514). The Plaintiff-Intervenors’ 2005 SSA expressly provided that it replaced the Plaintiff-Intervenors’ 1996 Order in its entirety. Although the Plaintiff-Intervenors’ 2005 SSA did not specify hourly rates at which attorneys for Plaintiff-Intervenors would be compensated, it stipulated that Defendants would pay those attorneys for no more than 180 hours of monitoring work per quarter. Id. at 10. Also in November 2004, the Plaintiffs, Defendant City of Albuquerque, and Defendant Bernalillo County Board of Commissioners entered into a new stipulated settlement agreement governing conditions at the MDC that the Court approved in 2005 (“Plaintiffs’ 2005 SSA”) (Doc. No. 515). In the Plaintiffs’ 2005 SSA, Plaintiffs agreed that attorneys for Plaintiffs would be compensated at the hourly rate of $135.00. The Plaintiffs’ 2005 SSA also included a limit on the number of compensable hours for attorneys who performed monitoring services. Id. at 6.
In 2006, Defendant Bernalillo County took over operation of the MDC from Defendant City of Albuquerque.6
In 2007, attorneys for Plaintiffs and Plaintiff-Intervenors claimed that the conditions at the BCDC, which had been renovated and renamed the Regional Correction Center (“RCC”),
6 Until Defendant Bernalillo County became the sole operator of the MDC in 2006, it appears that both Defendant City of Albuquerque and Defendant Bernalillo County Board of Commissioners were responsible for paying Plaintiffs’ and Plaintiff-Intervenors’ attorneys’ fees. Hence, the Court has referred to Defendants in the plural when discussing agreements with Plaintiff-Intervenors prior to 2006.
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violated the civil and constitutional rights of the inmates incarcerated there. In June 2007, Plaintiffs and Plaintiff-Intervenors filed motions for access to alleged class and sub-class members housed in the RCC. Plaintiffs and Plaintiff-Intervenors asserted that the County did not fully disclose its execution of an Intergovernmental Agreement (“IGA”) with the federal government to house prisoners at the RCC.7 Plaintiffs and Plaintiff Intervenors argued that inmates in the RCC were potential class and sub-class members by virtue of the County’s contractual rights under the IGA. In other words, Plaintiffs and Plaintiff-Intervenors claimed that the RCC was part of the Bernalillo County jail system and was subject to the orders in this case.
On December 11, 2007, the Court issued an Order to Show Cause (Doc. No. 600) directing Defendants to show cause why the Court should not withdraw its approval of the Plaintiffs’ 2005 SSA and the Plaintiff-Intervenors’ 2005 SSA because material information was withheld from the Court. In March 2009, the Court entered an order (the “March 2009 Order”) in which the Court withdrew its approval of the Plaintiffs’ 2005 SSA and the Plaintiff-Intervenors’ 2005 SSA and gave the Plaintiffs and the Plaintiff-Intervenors the option to rescind their respective 2005 SSAs. (See Doc. Nos. 700, 701.)
On April 9, 2009, both Plaintiffs and Plaintiff-Intervenors rescinded their respective 2005 SSAs. Defendants have appealed the March 2009 Order to the Tenth Circuit Court of Appeals, and that appeal is pending. McClendon v. City of Albuquerque et al., Tenth Cir. Case No. 092095.
7 At one time, the County housed overflow County inmates at the RCC. At this time, no County inmates are housed at the RCC.
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II. Current Compensation of Plaintiff-Intervenors’ Counsel Under an agreement with Defendant Bernalillo County (“Defendant”),8 Plaintiff-
Intervenors’ counsel have been paid for fees and expenses through June 30, 2009, except for fees and expenses applicable to Ms. Simmons.9 According to a letter dated June 22, 2010 to Judge
Parker from Mr. Davis, Plaintiff-Intervenors’ fee counsel, Defendant has been paying Plaintiff-
Intervenors’ attorneys for work performed on or after July 1, 2009 at the following hourly rates: Mr. Cubra $150.00; Ms. Dickson $135.00;10 Mr. Tuck $60.00;11 Ms. Simmons $135.00; Mr. Meilleur $135.00; Mr. Bach $135.00;12 and Mr. Davis $169.50.
III. Plaintiff-Intervenors’ Motion Partially Settled
In the Response, Defendant offered to pay paralegals working for Plaintiff-Intervenors’
attorneys at the hourly rate of $75.00; and in the Reply, Plaintiff-Intervenors accepted
Defendant’s offer. Response at 25; Reply at 17. In addition, Plaintiff-Intervenors state in the
8 Because Defendant Bernalillo County Board of Commissioners was the only Defendant who responded to the Motion, presumably because the County now is the sole operator of the MDC, the Court will refer to Defendant Bernalillo County Board of Commissioners in the singular, as “Defendant,” and this Memorandum Opinion and Order will be enforceable against Defendant Bernalillo County Board of Commissioners only.
9 In the Motion, Plaintiff-Intervenors claim that Defendant has refused payment for Ms. Simmons’ work performed prior to July 1, 2009. However, Plaintiff-Intervenors also state that they are hoping to resolve this issue with Defendant without requesting judicial intervention. The hourly rate set in this Memorandum Opinion and Order for Ms. Simmons’ work will only govern her work on or after July 1, 2009.
10 Ms. Dickson was not specifically named in Plaintiff-Intervenors’ Motion. 11 Mr. Tuck is no longer involved in this case; however, Plaintiff-Intervenors have requested that he be compensated for his work at the hourly rate of $145.00. 12 Mr. Bach has been replaced by Ms. Simpson; however, Plaintiff-Intervenors have requested that he be compensated for his work at the hourly rate of $225.00. The June 22, 2010 letter does not indicate at what rate Defendant is compensating Ms. Simpson.
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Reply that Defendant has agreed to compensate Plaintiff-Intervenors’ attorneys and their employees for travel time at the hourly rate set by the Court. Reply at 17.
IV. Discussion A. Plaintiff-Intervenors’ Motion For Attorney’s Fees
In the Motion, Plaintiff-Intervenors argue that they are prevailing parties under the ADA; therefore, Plaintiff-Intervenors’ attorneys argue that they are entitled to compensation at their market rates and they are not limited to the maximum hourly rates provided in the PLRA as the Court determined in its 2000 Order. Plaintiff-Intervenors further assert that their attorneys are not bound by the hourly rates established in the 2001 Agreement because changed circumstances have rendered the hourly rates in the 2001 Agreement inequitable. Plaintiff-Intervenors contend that their attorneys are entitled to be compensated from July 1, 2009 to the present at the following hourly rates for all hours worked: Mr. Cubra $300.00; Ms. Schatz-Vance $225.00; Mr. Tuck $145.00; Ms. Simmons $285.00; Mr. Meilleur $150.00; Mr. Bach $225.00; and Mr. Davis (fee counsel) $350.00.13
Alternatively, Plaintiff-Intervenors argue that if the Court does not allow their attorneys compensation at their market rates under the ADA, the Court should order Defendant to compensate all of their attorneys, except Mr. Tuck and Mr. Meilleur, at the maximum PLRA hourly rate of $169.50 for pre-January 1, 2010 time and $187.50 for post-January 1, 2010 time.14 Plaintiff-Intervenors acknowledge that if the Court finds that Plaintiff-Intervenors’ counsel are
13 Ms. Simpson and Ms. Dickson are not mentioned in the Motion; however, Ms. Simpson’s rate was one of the rates set in the 2001 Agreement.
14 In their alternative proposal, Plaintiff-Intervenors seek the maximum PLRA rate for all attorneys whose market rates are in excess of the PLRA rates. (Mot. at 6.) Mr. Tuck and Mr. Meilleur charge hourly market rates that are lower than the maximum PLRA rate.
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not entitled to market rates under the ADA but instead are entitled to the PLRA maximum rate,
Defendant has agreed to pay Mr. Cubra and Mr. Davis the maximum PLRA hourly rate of
$169.50 for work performed prior to January 1, 2010 and $187.50 for work performed after
January 1, 2010.15
B. Attorney’s Fees Under The PLRA and ADA
Section 1988 of Title 42 of the United States Code states that:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee as part of the costs[.]
42 U.S.C. § 1988.
The PLRA provides for the award of attorney’s fees:
(d) Attorney's fees (1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that-(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and (B)(I) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. . . . (3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel.
15 The Court notes that in their Motion, Plaintiff-Intervenors state that Defendant has not agreed to compensate Mr. Davis at the increased PLRA maximum rate of $187.50 for work performed after January 1, 2010 if ADA rates are not awarded. However, in its Memorandum Opinion and Order Setting Hourly Rates For Plaintiffs’ Attorneys Upon Which Payment Of Fees Can Be Based (Doc. No. 813) the Court found that Defendant had agreed to pay fee counsel Mr. Davis at the maximum PLRA hourly rate of $169.50 for work performed before January 1, 2010 and $187.50 for work performed after January 1, 2010. (Doc. No. 813 at 6.) That finding will also apply to Mr. Davis’s hourly rate for work performed on behalf of Plaintiff-Intervenors.
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42 U.S.C. § 1997e(d)(1) and (3). A plaintiff is a prevailing party if the court grants relief on the merits of the plaintiff’s
claim or if the court-ordered consent decree “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). When a lawsuit serves as a catalyst for favorable action by a defendant, such as taking remedial action because of the suit, plaintiff is a prevailing party. Tyler v. City of Manhattan, KS, 866 F. Supp. 500, 501 (D. Kan. 1994).
Attorneys for prison inmates who prevail on claims brought under 42 U.S.C. § 1983 are limited by the attorney’s fees provision of the PLRA, which caps all compensation to attorneys for prevailing parties at an amount that is 150% of the hourly rate paid to court appointed counsel in criminal cases (the “CJA rate”). In 2009, 150% of the CJA rate was $169.50 per hour, which was the maximum PLRA rate. On January 1, 2010, the CJA rate was increased; therefore, the maximum PLRA rate was increased to $187.50 per hour. 42 U.S.C. § 1997e(d)(3) (PLRA); 18 U.S.C. § 3006A(d)(1) (CJA).
In cases brought under the ADA, courts may award reasonable attorney’s fees to the prevailing party. 42 U.S.C. § 12205 (2006) (fee provision of the ADA).16 Hourly attorney’s fee rates in ADA cases should be calculated by using the prevailing market rates of attorneys in the community. Blum v. Stenson, 465 U.S. 886, 895 (1984). The courts that have ruled on this issue have held that inmates who prevail on claims brought under the ADA are entitled to attorney’s
16 The fee provision of the ADA states: In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee, including litigation expenses, and costs, . . . 42 U.S.C. § 12205.
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fees under the ADA attorney’s fee provision and are not limited to the maximum hourly rate provided in the PLRA. Armstrong v. Davis, 318 F.3d 965, 974 (9th Cir. 2003); Beckford v. Irvin, 60 F. Supp. 2d 85, 88 (W.D.N.Y. 1999).
Plaintiff-Intervenors argue that they are prevailing parties under the ADA because, in Plaintiff-Intervenors 1996 Order, the Court recited the stipulation that some residents did not have reasonable accommodations for their disabilities. Plaintiff-Intervenors also ask the Court to enforce the 2000 Order in which the Court awarded attorney’s fees under the ADA and held that Plaintiff-Intervenors’ attorneys should not be limited to the maximum hourly rate applicable to prevailing parties under the PLRA.
C. The Effect of Plaintiff-Intervenors’ Rescission of The 2005 SSA on PlaintiffIntervenors’ Prevailing Party Status Defendant asserts that when Plaintiff-Intervenors rescinded the Plaintiff-Intervenors’ 2005 SSA, they lost their prevailing party status and thereby lost their right to attorney’s fees. Plaintiff-Intervenors contend that the rescission of Plaintiff-Intervenors’ 2005 SSA did not affect their prevailing party status. Settlement agreements are contracts governed by basic contract law. Heuser v. Kephart, 215 F.3d 1186, 1190 (10th Cir. 2000) (noting that courts disagree on whether federal common law or state law governs settlement agreements in Title VII cases, but stating that New Mexico contract law and federal common contract law do not differ). The rescission of a contract returns the parties to their positions before the contract. Baker v. Penn Mut. Life Ins. Co., 788 F.2d 650, 663 (10th Cir. 1986). Prior to the Plaintiff-Intervenors’ 2005 SSA, the Court had ruled in Plaintiff-Intervenors’ 1996 Order that constitutional violations existed in the BCDC and that some of the sub-class members were not provided reasonable accommodation for their
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disabilities. And, in the July 2003 Order, the Court held that all of its previous orders were applicable to the MDC.
While Defendant is correct that settlement agreements replace all of the settled claims, Plaintiff-Intervenors’ 2005 SSA expressly superceded only Plaintiff-Intervenors’ 1996 Order. More importantly, under contract law, the rescission of Plaintiff-Intervenors’ 2005 SSA returned the parties to their status prior to the Plaintiff-Intervenors’ 2005 SSA, and PlaintiffIntervenors’ 2005 SSA no longer replaced the settled claims. Baker, 788 F.2d at 663. Consequently, the rescission reinstated all prior orders and actionable claims, including PlaintiffIntervenors’ 1996 Order, and Plaintiff-Intervenors remain prevailing parties in this case. Farrar, 506 U.S. at 111-12.
D. Should the Court Defer Ruling Until The Appeal Is Decided? Alternatively, Defendant asks the Court to defer ruling on the Motion until the Tenth Circuit Court of Appeals has determined whether the Court erred in allowing the rescission of Plaintiff-Intervenors’ 2005 SSA. However, as discussed above, the rescission does not affect Plaintiff-Intervenors’ prevailing party status. In addition, unlike Plaintiffs’ 2005 SSA, the Plaintiff-Intervenors’ 2005 SSA did not address hourly attorney’s fees rates. Thus, if the Tenth Circuit Court of Appeals reverses the order allowing rescission, the hourly rates payable to Plaintiff-Intervenors’ attorneys would not be affected by the reinstatement of the PlaintiffIntervenors’ 2005 SSA. See Plaintiff-Intervenors’ Reply at 2 n.2 (stating that the PlaintiffIntervenors’ 2005 SSA “did not address the issue of hourly rates.”). Accordingly, the Court will not defer ruling on the Plaintiff-Intervenors’ Motion.
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E. The 2001 Agreement Plaintiff-Intervenors do not dispute that the 2001 Agreement was a valid compromise agreement in which Plaintiff-Intervenors agreed that their attorneys would be compensated at specific hourly rates in exchange for Defendant’s agreement to dismiss its appeal of the 2000 Order. Plaintiff-Intervenors argue that they are not bound by the 2001 Agreement because its terms have become inequitable. Plaintiff-Intervenors argue that they are now entitled to disavow the rates set in the 2001 Agreement and that their attorneys are entitled to compensation at reasonable market rates under the ADA for all work performed on or after July 1, 2009. Plaintiff-Intervenors assert that three circumstances render the rates in the 2001 Agreement inequitable. First, the rates in the 2001 Agreement were negotiated in accordance with lower market rates in 2001. Second, Plaintiff-Intervenors’ attorneys could not have anticipated that this litigation would continue for several more years and that the agreed upon rates would become obsolete. Third, at the time the 2001 Agreement was negotiated, there was no dispositive case law on the appropriate rate for attorney’s fees in combined ADA and PLRA litigation; but since then, courts have held that attorneys are entitled to their market rates when they prevail on ADA claims in prison cases. See, e.g., Armstrong v. Davis, 318 F.3d 965 (9th Cir. 2003). Plaintiff-Intervenors cite Rufo v. Inmates of Suffolk County Jail to support the contention that they are entitled to disavow the 2001 Agreement because it has become inequitable. 502 U.S. 367, 384 (1992). The Rufo case was brought on behalf of pretrial detainees who alleged that the crowded conditions at the Suffolk County Massachusetts Jail were unconstitutional. Id. at 376. The parties settled their claims, and the court entered a consent decree that required the construction of a new jail large enough to allow single occupancy of cells by pretrial detainees. Id. During construction of the new jail, the Suffolk County Sheriff moved under Fed. R. Civ. P.
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60(b)17 to modify the decree and allow double bunking in some of the cells. The district court applied the United States v. Swift & Co. “grievous wrong” standard. Rufo, 502 U.S. at 377 (citing United States v. Swift & Co. 286 U.S. 106, 119 (1932) (“Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.”)). The district court found that the movant failed to meet the Swift standard, and the First Circuit Court of Appeals affirmed the holding. Id. (citing Inmates of Suffolk County Jail v. Kearney, 915 F.2d 1557 (1st Cir. 1990)). The Supreme Court, however, reversed and ruled that the Swift standard should not apply to consent decrees in institutional reform cases that often remain in place for extended periods of time and become unworkable due to significant changes during the life of the decree. Rufo, 502 U.S. at 380. To that end, the Supreme Court adopted the following standard: one who seeks modification of an institutional reform consent decree bears the burden of establishing that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance. Id. at 383. According to the Supreme Court, a court may modify a consent decree in an institutional reform case if the movant shows that compliance with the decree has become “substantially more onerous[;]” or the decree has become “unworkable because of unforeseen obstacles.” Id. at 384.
Plaintiff-Intervenors compare the 2001 Agreement to the consent decree in Rufo and
17 The wording of Rule 60(b) at that time provided in relevant part the following: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. . . . Fed. R. Civ. P. 60(b).
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argue that changes in attorney’s fees market rates, the unforeseeable length of this litigation, and changes in the law on attorney’s fees in ADA cases brought on behalf of prisoners warrant an increase in hourly rates to market rates recoverable under the ADA.
Defendant contends that the circumstances in this case have not made compliance with the 2001 Agreement significantly more onerous even if the 2001 Agreement may have become financially unappealing to Plaintiff-Intervenors’ attorneys. Defendant argues that the 2001 Agreement was implemented in the sixth year of this lawsuit; thus, attorneys for PlaintiffIntervenors knew the case had a long history and could have foreseen that the lawsuit would continue for several more years. Moreover, attorneys for Plaintiff-Intervenors could easily have foreseen that their rates would increase over time. Defendant further asserts that Bernalillo County is suffering financially and that an award of the higher ADA market rates would be an inappropriate burden on the taxpayers. Finally, Defendant argues that proposed ADA market rates would be unreasonable in this case because Plaintiff-Intervenors have achieved success, and their attorneys do not bear the risk of losing the case at this stage.
The 2001 Agreement is a contract that is somewhat similar to a consent decree. The consent decree in Rufo corrected the violations of constitutional rights and involved an injunction regarding conditions of confinement that the court was to monitor on an ongoing basis. In contrast, the 2001 Agreement only resolved the attorney’s fees issue between the parties and did not “relate[] to the vindication of a constitutional right.” See Rufo, 502 U.S. at 382 n.7 (explaining that the standard set forth “applies when a party seeks modification of a term of a consent decree that arguably relates to the vindication of a constitutional right”). Hence, modification of the 2001 Agreement is not governed by the standard outlined in Rufo for consent decrees.
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Under well-settled law, courts generally enforce settlement agreements according to their terms. See Envtl. Control, Inc. v. City of Santa Fe, 2002-NMCA-003, ¶ 19, 131 N.M. 450, 38 P.3d 891; Bd. of Educ. for the Carlsbad Mun. Sch. v. State Dep't of Pub. Educ., 1999-NMCA-156, ¶ 14, 128 N.M. 398, 993 P.2d 112. A settlement agreement will not be set aside just because its terms later prove to have been unwise or unfortunate for one party. Envtl. Control, Inc., 2002-NMCA-003, ¶ 19, 131 N.M. 450, 38 P.3d 891. Instead, courts in New Mexico have consistently held that parties are bound by their valid settlement agreements, and they must accept both the burdens and benefits of the contract. Cortez v. Cortez, 2007-NMCA-154, ¶ 14, 143 N.M. 66, 172 P.3d 615, rev’d on other grounds, 2009-NMSC-008, 145 N.M. 642, 203 P.3d 857. According to the New Mexico Court of Appeals in Cortez:
Because of their favored status, there must be a compelling basis to set aside a settlement agreement. [A court] will allow equity to interfere with enforcing clear contractual obligations only when well-defined equitable exceptions, such as unconscionability, mistake, fraud, or illegality justify deviation from the parties’ contract. Id. ¶ 14 (internal quotations marks and citations omitted). See also In re Tocci, 45 N.M. 133, 112 P.2d 515 (1941); Montano v. NM Real Estate Appraiser’s Bd., 2009-NMCA-009, ¶ 12, 145 N.M. 494, 200 P.3d 544; Beaver Creek Coal Co. v. Nevada Power Co., 968 F.2d 19 (table), 1992 WL 113747, at *4 (D. Utah May 27, 1992) (unpublished) (denying buyer’s claim that long-term contract for purchase of coal was inequitable due to change in market rate of coal). The 2001 Agreement is a settlement agreement that replaced the 2000 Order, and the 2001 Agreement expressly established that the agreed-upon rates would be effective “until the end of the litigation.” Response Ex. 3. Plaintiff-Intervenors have not shown that the 2001 Agreement is unenforceable due to unconscionability, mistake, fraud or illegality and PlaintiffIntervenors have not convinced the Court that there is a compelling reason to alter or set aside
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the 2001 Agreement. Cortez, 2007-NMCA-154 ¶ 14. The 2001 Agreement sets an hourly rate for Mr. Cubra at $150.00; for Ms. Simpson at $140.00;18 and for Ms. Schatz-Vance at $100.00 per hour.19 Thus, the 2001 Agreement applies to the rates at which these attorneys are to be compensated. Since Mr. Cubra is currently being compensated at the rate of $150.00 per hour, no adjustment of his hourly rate is required. However, while Ms. Simpson is currently being compensated at the rate of $135.00 per hour, she should have been compensated at the rate of $140.00 per hour under the 2001 Agreement. In addition, according to Mr. Davis’ letter dated June 22, 2010, “[a]ny other lawyers not listed who, e.g., had time in 2009 have been paid at $135.00 per hour.” Ms. Schatz-Vance is not listed in the June 22, 2010 letter. If Defendant has compensated Ms. Schatz-Vance for work performed in 2009 at $135.00 per hour, Defendant paid more than the rate established by the 2001 Agreement. According to the 2001 Agreement, Ms. Schatz-Vance should be paid at the rate of $100.00 per hour. To the extent Defendant overpaid Plaintiff-Intervenors’ for Ms. Schatz-Vance’s services, Defendant should receive a credit..
F. Attorneys Not Bound By The 2001 Agreement Ms. Simmons, Mr. Meilleur, Mr. Tuck, Mr. Bach, and Mr. Davis are not named in the 2001 Agreement; therefore, they are not bound by it. According to the June 22, 2010 letter from Mr. Davis to Judge Parker, these attorneys are currently being compensated at $135.00 per hour,
18 Ms. Simpson left the case in 2002 but re-entered her appearance on August 9, 2010. 19 According to Mr. Baker’s February 7, 2001 letter to Mr. Cubra, which was presented as evidence of the 2001 Agreement, the Bernalillo County Claims Review Board did not address Ms. Schatz-Vance’s hourly rate. In the letter, Mr. Baker proposed that Ms. Schatz-Vance receive compensation at the rate of $100.00 per hour, which was a rate previously paid to Ms. SchatzVance. The Court assumes that this rate for Ms. Schatz-Vance was part of the 2001 Agreement because Plaintiff-Intervenors have not argued to the contrary. However, if either party believes that $100.00 per hour was not the rate for Ms. Schatz-Vance that the parties agreed to as part of the 2001 Agreement, that should be pointed out in a motion to reconsider.
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except Mr. Tuck, who was being compensated at the hourly rate of $60.00 while he was involved in the case, and Mr. Davis, who is being compensated at the hourly rate of $169.50.
E. Should The Attorneys Not Bound By The 2001 Agreement Be Compensated At The ADA Rate? Attorneys for Plaintiff-Intervenors argue that they are prevailing parties under the ADA because the Court in the Plaintiff-Intervenors’ 1996 Order found that some residents did not have reasonable accommodations for their disabilities, and the Court also instructed Defendants to implement several measures designed to ameliorate unlawful conditions for inmates with disabilities. The Plaintiff-Intervenors’ 1996 Order formed the basis of the Court’s 2000 Order which awarded Plaintiff-Intervenors’ attorneys the ADA fee rates. Plaintiff-Intervenors rely on both of these orders as support for their argument that they are prevailing parties under the ADA and that their attorneys are entitled to compensation for all of their work at ADA hourly rates unlimited by the PLRA cap. However, the 2001 Agreement has subsumed the 2000 Order. Consequently, the 2000 Order cannot support a ruling that Plaintiff-Intervenors’ attorneys are entitled to ADA rates for all work performed on behalf of the sub-class members. See supra Part IV, C. To be eligible for ADA rates, Plaintiff Intervenors’ attorneys must show that they performed work to enforce sub-class members’s rights under the ADA by ensuring that Defendant does not discriminate in the provision of services at the MDC to sub-class members because of their disabilities. Plaintiff-Intervenors attorneys must also show that the particular sub-class member on whose behalf they were working had a qualifying disability under the ADA. On the other hand, if an attorney’s work was performed enforcing sub-class members’ constitutional rights under § 1983, such as the provision of adequate medical care, the attorney should recover fees at the maximum PLRA rate. See Fitzgerald v. Corrections Corp. Of
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America, 403 F.3d 1134, 1144 (10th Cir. 2005) (stating that a claimant must show under the ADA that he was qualified for the benefits sought and that he was denied the benefits “solely by reason of disability.”). See also Hughes v. Colorado Dept. Of Corrections, 594 F. Supp. 2d 1226, 1240-41 (D. Colo. 2009) (differentiating between ADA claims of discriminatory denial of mental health services and non-ADA claims of inferior treatment of mental health conditions); Rashad v. Doughty, 4 Fed. Appx. 558, 560 (10th Cir. Jan. 29, 2001) (unpublished) (noting that allegations that a disabled prisoner has been denied medical services that had been provided to other prisoners stated an ADA claim); Moore v. Prison Health Servs., Inc., 1999 WL 1079848, at *1 (10th Cir. Dec. 1, 1999) (unpublished table opinion) (holding that the ADA affords “disabled persons legal rights regarding access to programs and activities enjoyed by all, not a general federal cause of action for challenging the medical treatment of their underlying disabilities”).
Title II of the Disability Act prohibits public entities, like Defendant, from discriminating against persons with disabilities in the provision of programs, activities, and services. 42 U.S.C. §§ 12131 to 12134. Title II of the ADA has been held to pertain to disabled state prisoners. See Roberston v. Las Animas County Sherriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007). To prevail on their claims, Plaintiff-Intervenors must demonstrate, (1) that sub-class members are qualified individuals with disabilities; (2) that sub-class members were . . . denied the benefits of services, programs, or activities provided by the Bernalillo County jail system, or that sub-class members were otherwise discriminated against; and (3) that the denial of benefits or discrimination was by reason of their disabilities. See Tyler v. City of Manhattan, 849 F. Supp. 1429, 1439 (D. Kan. 1994). See also Meyers v. Colo. Dep't of Human Servs., 62 Fed. Appx. 831, 832 (10th Cir. Jan. 6, 2003) (unpublished decision). The ADA also requires public entities to
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make particular accommodations for the disabled in order to ensure their access to government programs. Tyler, 849 F. Supp at 1439.
Defendant argues that despite the Court’s previous rulings, Plaintiff-Intervenors have not proven that Defendant violated the ADA, which was necessary to support an award of attorney’s fees under the ADA. However, after a careful review of the Plaintiff-Intervenors’ Amended Complaint and the Plaintiff-Intervenors’ 1996 Order, the Court finds that Plaintiff-Intervenors should be considered prevailing parties under both the ADA and the PLRA. Two cases cited by Plaintiff-Intervenors, Armstrong and Beckford, are instructive.
In Armstrong, a class of disabled inmates of the California state prison system originally brought claims only under the ADA and the RA. 318 F.3d at 968-69.20 Just before trial, the plaintiff class was allowed to add a claim for violation of their due process rights under 42 U.S.C. § 1983. Id. at 969. After a ten-day bench trial, the district court found the defendant liable for violations of the ADA, the RA, and the Due Process Clause of the Constitution. Id. However, the district court awarded all attorney’s fees based on market rates under the ADA and the RA and did not limit any of the fees to the PLRA maximum rate. Id. at 975. On appeal, defendants unsuccessfully argued that the PLRA limit applied to all of the claims. Alternatively, defendants argued on appeal that the PLRA limit on fees should be applied to work related to the due process claim, which they argued constituted one-third of the fee request. The Ninth Circuit Court of Appeals affirmed and stated,
20 Two years after the Armstrong case was filed, all of the defendants in Armstrong, except one group, stipulated that the prison facilities lacked adequate emergency evacuation plans for disabled prisoners, that a smaller range of vocational programs was available to disabled prisoners, and that sentence reduction credits were improperly denied to some disabled prisoners.
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No doubt, the district court could have . . . applied PLRA limits to some of the requested fees. We cannot say, however, that its decision not to do so was an abuse of discretion. The due process claim was added late in the litigation . . . and the post-judgment work involved the ADA and RA claims exclusively. The tertiary § 1983 claim required no additional discovery or witnesses at trial, and the arguments supporting it so overlapped with the ADA and RA claims as to make discrete time allocation and billing challenging. In light of these circumstances, the district court reasonably concluded that it was not appropriate to apply the PLRA limits. This determination was well within its discretion. Id. at 975 (citations omitted). In Beckford, 60 F. Supp. 2d 85 (W.D.N.Y. 1999), plaintiff, an inmate in the custody of the New York State Department of Correctional Services who was confined to a wheel chair, successfully brought an action under § 1983 alleging violations of his Eighth Amendment right against cruel and unusual punishment and for violations of the ADA. Plaintiff’s attorneys moved for an award of attorney’s fees. Id. at 86. The district court noted that plaintiff’s attorneys stipulated that the claims were inextricably intertwined and that half of their time was spent on each type of claim. The district court found that one-half of the attorneys time was attributable to the ADA claim, and the other half of the attorneys time was attributable to the § 1983 claims. Id. at 88. Consequently, the district court apportioned one half of the amount of attorney’s fees to the ADA claim for which the attorneys were awarded their market rates, and the other half to the § 1983 claim for which the attorneys were awarded the maximum PLRA rate. Id. In their affidavits, attorneys for Plaintiff-Intervenors state that all of their work performed on or after July 1, 2009 can be attributed to Plaintiff-Intervenors’ ADA claims. Alternatively, attorneys for Plaintiff-Intervenors state that their work was inextricably linked to or had a common core of facts with both the ADA and the § 1983 claims and that their work is incapable of being divided between the different types of claims. According to PlaintiffIntervenors, the Court should award all of their attorneys fees based on their market hourly rates
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for all of their work on or after July 1, 2009. However, the Court finds that it is more equitable to award Plaintiff-Intervenors’ attorneys fees for work done in furtherance of the § 1983 claims at the maximum PLRA rates and for work done in furtherance of the ADA claims at their market rates, as the Court did in Beckford. See Beckford, 60 F. Supp. 2d at 88. In support of this finding, the Court necessarily concludes that an attorney’s work is capable of being apportioned between the two types of claims. Just as courts have apportioned work between claims that are successful and claims that are unsuccessful, the Court can apportion the work that attorneys for Plaintiff-Intervenors have performed on behalf of sub-class members according to the type of enforcement action on which the attorney worked. See Hensley v. City of Eckerhart, 461 U.S. 424, 434-35 (1983). If it is not possible to determine the type of claim on which an attorney worked, the attorney’s work should be compensated at the maximum PLRA hourly rate.
Since the rescission of Plaintiff-Intervenors’ 2005 SSA, the Plaintiff-Intervenors’ attorneys must enforce the relief granted by the Court in earlier orders, especially the PlaintiffIntervenors’ 1996 Order. These earlier orders were in some ways “site specific” to the BCDC even though the Court held in the July 2003 Order that they apply to the MDC. On the other hand, the relief granted in the prior orders and agreements was also “sub-class specific” because the relief can be enforced on behalf of sub-class members incarcerated at the MDC or other County facilities. Plaintiff-Intervenors’ 1996 Order set forth measures that were appropriate to remedy violations of both the ADA and the PLRA. For example, the Court ordered Defendant to improve its provision of mental health services at the BCDC, and that relief may be enforced as to the MDC. To the extent that this relief is aimed at services that are provided in a discriminatory fashion against sub-class members with qualifying disabilities, the relief is based on the ADA. Conversely, to the extent that this relief is aimed at improving general care of sub-
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class members with qualifying disabilities or to improve the care of sub-class members who have mental illnesses that do not qualify as a disability under the ADA, the relief should be viewed as correction of violations of constitutional rights under § 1983. Therefore, each attorney not subject to the 2001 Agreement must show what type of work the attorney performed on behalf of sub-class members, explaining whether the work was designed to enforce sub-class members’ rights under the ADA or under § 1983.
If an attorney demonstrates that the attorney performed work on behalf of a sub-class member with a qualifying disability and the work was designed to ameliorate discrimination on the basis of that disability, then that attorney should receive the attorney’s hourly market rate under the ADA for the time spent on that work. By contrast, if an attorney shows that the attorney performed work on behalf of a sub-class member who does not have a qualifying disability under the ADA, then the attorney should receive the maximum PLRA hourly rate for that work. Or if an attorney shows that the attorney performed worked on behalf of a sub-class member who has a qualifying disability, but the relief sought by the attorney was not of the type that ameliorated discrimination on the basis of that disability, that attorney should not receive the ADA rate but instead should receive the maximum PLRA hourly rate for that work.
Plaintiff-Intervenors were allowed to join this case under limited circumstances that were tied to the Plaintiffs’ claims already before the Court. The existing claims that PlaintiffIntervenors joined were the types of claims for which attorney’s fees under § 1988 are awarded. Although the Plaintiff-Intervenors asserted claims under the ADA, the litigation focused primarily on the constitutional claims of overcrowding. In other words, this is a prison conditions case brought primarily to correct the unconstitutional conditions of confinement in Bernalillo County’s jail system.
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To the extent that Ms. Simmons, Mr. Meilleur, Mr. Tuck, and Mr. Bach show that their work was performed in furtherance of the Court’s mandates to provide qualifying members of the sub-class reasonable accommodations for their disabilities or to correct discriminatory conditions, that work will be compensated at the following hourly market rates: Ms. Simmons $285.00; Mr. Meilleur $150.00; Mr. Tuck $145.00; and Mr. Bach $225.00.21 To the extent that Ms. Simmons and Mr. Bach show that their work was performed in furtherance of the sub-class members’ constitutional claims, that work should be compensated at the maximum rate allowed under the PLRA, which is $169.50 per hour for work performed prior to January 1, 2010 and $187.50 for work performed after January 1, 2010. For work performed in furtherance of the sub-class members’ constitutional claims, Mr. Meilleur and Mr. Tuck, who both have rates below the maximum PLRA rate, should be compensated at their hourly market rates of $150.00 and $145.00 respectively.
Mr. Davis represents both Plaintiffs and Plaintiff-Intervenors as fee counsel. As fee counsel, Mr. Davis’s fees are recoverable under the PLRA and the ADA. Jackson v. Los Lunas Center, 489 F. Supp. 2d 1267, 1276 (D.N.M. 2007); Batchelder v. Geary, 2007 WL 2427989, at *10 (N.D. Cal. Aug. 22, 2007) (unpublished). Mr. Davis was awarded the maximum PLRA hourly rate by the Court in the Memorandum Opinion and Order (Doc. No. 813) for all of his work on behalf of Plaintiffs’ attorneys. The Court finds that it is equitable that for work performed on this Motion and work performed advocating for fees on behalf of PlaintiffIntervenors, Mr. Davis should be compensated for all of his time at the maximum PLRA hourly
21 Even though she is receiving $135.00 per hour according to Mr. Davis’ June 22, 2010 letter, Ms. Dickson’s market rate is was not listed among the rates requested in the PlaintiffIntervenors’ Motion. Thus, Ms. Dickson’s market rate cannot be established here.
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rate, which is $169.50 for work performed prior to January 1, 2010 and $187.50 for work
performed after January 1, 2010.
IT IS ORDERED that the Plaintiff-Intervenors’ Motion For An Order Setting Hourly
Rates For Plaintiff-Intervenors’ Attorneys And Their Staff On Which The Payment Of Fees Can
Be Based is granted as follows:
1. Mr. Cubra will be compensated for all work performed on or after July 1, 2009 at the hourly rate of $150.00.
2. Ms. Simpson will be compensated for all work performed on or after July 1, 2009 at the hourly rate of $145.00.
3. Ms. Schatz-Vance will be compensated for all work performed on or after July 1, 2009 at the hourly rate of $100.00.
4. Mr. Tuck will be compensated for work performed on constitutional claims on or after July 1, 2009 and for work performed on ADA claims on or after July 1, 2009 at the hourly rate of $145.00.
5. Ms. Simmons will be compensated for work performed on constitutional claims on or after July 1, 2009 at the maximum PLRA hourly rate of $169.50 for work performed before January 1, 2010 and $187.50 for work performed after January 1, 2010. Ms. Simmons will be compensated for work performed on ADA claims on or after July 1, 2009 at the hourly rate of $285.00.
6. Mr. Meilleur will be compensated for all work performed on or after July 1, 2009 at the hourly rate of $150.00.
7. Mr. Bach will be compensated for work performed on or after July 1, 2009 on constitutional claims at the maximum PLRA hourly rate of $169.50 for work performed before January 1, 2010 and $187.50 for work performed after January 1, 2010. Mr. Bach will be compensated for work performed on ADA claims on or after July 1, 2009 at the hourly rate of $225.00.
8. Mr. Davis will be compensated for all of his time preparing this Motion and for work advocating on behalf of attorneys for Plaintiff-Intervenors at the maximum PLRA hourly rate of $169.50 for work performed before January 1, 2010 and $187.50 for work performed after January 1, 2010.
9. By agreement of the parties, the hourly rate at which paralegals working for PlaintiffIntervenors’ attorneys are to be compensated is $75.00.
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 Case 6:95-cv-00024-JAP-KBM Document 768 Filed 02/01/10 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JIMMY McCLENDON, et al.

Plaintiffs,

vs.

CIV.- 95-0024 JP/ACT

CITY OF ALBUQUERQUE, et al.

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and others similarly situated,

Plaintiff-Intervenors.

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S INTERIM ORDER

On September 17, 2009, Magistrate Judge Alan C. Torgerson entered the Interim Order

Regarding Access to the MDC (the “Interim Order”) (Doc. No. 754). On October 8, 2009,

Plaintiffs and Plaintiff-Intervenors filed their Joint Objections to the Interim Order Regarding

Access to the MDC (Doc. No. 754) (the “Joint Objections”). See Doc. No. 758. On October 26,

2009, Defendant Bernalillo County filed its Response to Plaintiffs’ and Plaintiff-Intervenors’

Joint Objections to the Interim Order Regarding Access to the MDC (Doc. No. 759) (the

“Response”). On November 12, 2009, Plaintiffs and Plaintiff-Intervenors filed their Reply In

Support of Their Joint Objections to the Interim Order Regarding Access to the MDC (Doc. No.

762). The Court has made a de novo review of those portions of the Interim Order at which the

Joint Objections were directed, and the Court finds the Joint Objections to be without merit.

Therefore, the Court will overrule the Joint Objections and in connection with this ruling finds

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the following: I. Background A. Class and Sub-class Certification and Initial PLRA Orders In 1995, Plaintiffs filed this lawsuit alleging overcrowding and other unlawful conditions
of confinement at the Bernalillo County Detention Center (the “BCDC”) located in downtown Albuquerque, New Mexico. The Court certified the Plaintiff class as all persons who were then or in the future “confined in the Bernalillo County Detention center.” The Court later certified the Plaintiff-Intervenor sub-class as all persons with mental and/or developmental disabilities who were then or would be in the future detained at the BCDC. See Doc. Nos. 237 and 257. On November 5, 1996, Plaintiff and Plaintiff-Intervenors entered into a settlement agreement with Defendants under the Prison Litigation Reform Act1 (the PLRA), which the Court approved and memorialized in an order (Doc. No. 255). Plaintiff Intervenors entered into a separate settlement agreement with Defendants, which was approved by the Court (See Order Doc. No. 256). The Court will refer to both of these orders as the “PLRA Orders.”
Under the PLRA Orders, Plaintiff’s and Plaintiff-Intervenors’ counsels, counsels’ staff and counsels’ agents regularly monitored the living conditions at the BCDC,2 which included meeting with class and sub-class members, reviewing members’ medical files, and discussing concerns regarding prison conditions with BCDC personnel. From November 1996 to June
1 42 U.S.C. §1997e (a) et seq. 2 Under the November 1996 Order approving the settlement with Plaintiff-Intervenors, counsel for Plaintiff-Intervenors were allowed to monitor conditions at the BCDC. In an order entered on October 29, 1996, counsel for Plaintiffs and Plaintiff-Intervenors were allowed to review and copy any record maintained by agents of BCDC, including the medical services unit and the psychiatric services unit, concerning class and sub-class members. See Protective Order (Doc. No. 254 ¶ 8.)
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2003, Plaintiffs, Plaintiff-Intervenors and Defendants continued to litigate alleged constitutional violations concerning conditions of confinement at the BCDC and other facilities used to incarcerate class and sub-class members.
B. The Metropolitan Detention Center On or about June 17, 2003, Defendants opened the Metropolitan Detention Center, a 2100-bed facility on the west side of Albuquerque. Members of the class and the sub-class were transferred from the BCDC to the newly-constructed MDC. See McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250, 1253 (D.N.M. 2003) (describing history of case). After class and sub-class members were transferred to the MDC, counsel for Plaintiffs, PlaintiffIntervenors and Defendants disagreed on whether the settlement agreements and PLRA Orders continued to apply to the MDC. Defendants allegedly impeded access to the MDC by Plaintiffs’ and Plaintiff-Intervenors’ counsel and agents. On June 27, 2003, Plaintiffs and PlaintiffIntervenors filed their Joint Motion for a Temporary Restraining Order and Preliminary Injunction Enjoining the Defendants from Restricting Class and Sub Class Counsel from Having Access to the MDC (Doc. No. 409) (the “June 2003 Joint Motion”).
C. The July 2003 Order On July 11, 2003 in a published Memorandum Opinion and Order, the Court granted the June 2003 Joint Motion (the “July 2003 Order”) (Doc. No. 416, McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250 (D.N.M. 2003)). After examining the settlement agreements and the orders memorializing and approving the settlement agreements, the Court determined that the class and sub-class members did not loose their status as class or sub-class members after they had been transferred to the MDC. Id. at 1255. In other words, the settlement agreements approved and memorialized in the 1996 PLRA Orders, remained in effect and
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applied to class and sub-class members wherever they were incarcerated. Id. Specifically, the Court found that in their settlement agreements, “the parties did not intend to limit, for purposes of the class and the sub-class definitions or otherwise, the term BCDC to a particular facility, but rather intended that term to apply to the jail system as a whole.” McClendon, 272 F. Supp. 2d at 1255. Having determined that the previous orders remained in effect, including the PLRA Orders, the Court concluded that it retained continuing jurisdiction to review, modify and enforce the previous settlement agreements. Id. at 1257.
The July 2003 Order requires Defendants to immediately allow counsel for Plaintiffs and Plaintiff-Intervenors “reasonable and unimpeded access to MDC and to the records of residents of MDC. . . .” McClendon, 272 F. Supp. 2d at 1260. The July 2003 Order also requires Defendants to immediately refrain from imposing any limits on access to MDC and to the residents and staff therein “[w]hich [a]re [m]ore [r]estrictive” than those which were used when the class and the sub-class members were housed at the BCDC. Id. After the residents of the BCDC were transferred to the MDC, the BCDC facility was remodeled and renamed the Regional Correctional Center (the “RCC”).
D. Events Leading To the 2005 Settlement Agreements On October 10, 2003, Defendants filed their Motion to Vacate Settlement Agreement Between Plaintiff-Intervenors and Defendant (Doc. No. 421) on the ground that the 1996 settlement agreements did not apply to the MDC and that the Court did not have jurisdiction to issue prospective injunctive relief for inmates at the MDC. Before the Court heard this motion, the parties negotiated new settlement agreements in 2004, which the Court approved in 2005 (the “2005 Settlement Agreements”). The 2005 Settlement Agreements were expressly limited to class and sub-class members detained or incarcerated at the MDC, and the 2005 Settlement
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Agreements stated that they superceded any previous orders and settlement agreements. Following a hearing, the Court approved the 2005 Settlement Agreements. (Doc. Nos. 513, 514 and 515.) The stated purpose of the 2005 Settlement Agreements was to describe the conditions that Plaintiffs and Plaintiff-Intervenors expected to be maintained or improved at the MDC. The 2005 Settlement Agreements provided that this case would be dismissed when Defendants obtain compliance with several specific criteria as certified by independent auditors. See Doc. No. 514 at p. 10; Doc. No. 515 at p. 6. During the first half of 2007, several status conferences were held before Magistrate Judge Torgerson concerning conditions and access to the MDC and to class and sub-class members by Plaintiffs’ and Plaintiff-Intervenors’ counsel and their agents. (See, e.g. Minutes of Proceedings, Doc. Nos. 528, 530, 532, 541, 545.)
E. Issues Regarding the RCC On June 28, 2007, Plaintiffs and Plaintiff-Intervenors alleged that Defendants were housing class and sub-class members at the RCC and asked the Court to allow counsel for class and sub-class members access their clients at the RCC. See Plaintiffs’ Motion to Permit Counsel to Visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility (Doc. No. 543 at pp. 6-7) (the “Plaintiffs’ Motion For Access to the RCC”). On July 25, 2007, Plaintiff-Intervenors filed their Motion to Permit Counsel to Have Access to RCC, Its Residents and Their Records (Doc. Nos. 548) (the “Plaintiff-Intervenors’ Motion For Access to the RCC”).3 In July 2007, Magistrate Judge Torgerson assisted Plaintiffs, Plaintiff-Intervenors
3 Other motions were filed alleging overcrowding and other violations at both the MDC and the RCC. See Plaintiff's Motion for an Order to Show Cause, filed September 12, 2007, (Doc. No. 555). See also Plaintiff-Intervenors’ Motion for an Order to Show Cause, filed September 24, 2007, (Doc. No. 562) (alleging inadequate services for sub-class members at the MDC).
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and Defendants on issues of access to the MDC and on the discovery issues related to the Plaintiffs’ Motion For Access to the RCC and the Plaintiff-Intervenors’ Motion For Access to the RCC. In the settlement conferences held by Judge Torgerson, the parties negotiated detailed protocols to follow when Plaintiffs’ counsel, Plaintiff-Intervenors’ counsel and their agents visited the MDC. See Minutes of Proceedings, Doc. Nos. 550, 565, 582, 592, and 605). In March 2008, the Court denied sua sponte the Plaintiffs’ Motion For Access to the RCC and the Plaintiff-Intervenors’ Motion For Access to the RCC without prejudice on procedural grounds (Order Doc. No. 652).4 In April 2008, however, Plaintiffs renewed Plaintiffs’ Motion For Access to the RCC and Plaintiff-Intervenors renewed Plaintiff-Intervenors’ Motion For Access to the RCC. See Notice (Doc. No. 660); Notice (Doc. No. 661).
On December 11, 2007, the Court issued an Order directing Defendants to show cause why the Court’s approval of the 2005 Settlement Agreements, which governed only inmates housed in the MDC, should not be withdrawn because material information regarding whether the 2005 Settlement Agreements were “fair, reasonable, and adequate” was not provided to the Court prior to its approval of the 2005 Settlement Agreements. See Doc. No. 600 at p. 4.
F. The March 2009 Order In a Memorandum Opinion and Order entered on March 31, 2009 (Doc. No. 699) (the “March 2009 Order”), the Court granted the Plaintiffs’ Motion Regarding Access to the RCC and granted in part the Plaintiff-Intervenors’ Motion Regarding Access to the RCC. The Court concluded that the class and sub-class includes those individuals that are incarcerated or detained in facilities that are “operated or controlled, directly or indirectly, by Defendants as part of the
4 The Court’s Order stated that the Motions were not ripe for adjudication due to ongoing discovery disputes. Doc. No. 652 at p. 1.
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Bernalillo County jail system.” March 2009 Order at p. 10. The Court specifically excluded from the class and sub-class detainees who are incarcerated in facilities owned, but not controlled, by Bernalillo County. Id. at p. 10 n. 3 (“Mere ownership of a facility, without additional indices of control, would not be sufficient to support a finding that detainees housed in that facility were part of the McClendon class or sub-class.”). The Court also specifically excluded from this case all facilities not operated or controlled by Bernalillo County “even if Bernalillo Country [sic] contracts to house detainees at these facilities.” Id. at p. 10.
The Court found that Bernalillo County owned the RCC; contracted with the federal government to house its detainees under an Inter Governmental Agreement (“IGA”); and subcontracted with Cornell Companies, Inc. to care for the detainees. Id. at p. 11. The Court concluded that the RCC was under Bernalillo County’s control and was being operated as part of the Bernalillo County jail system; therefore, the conditions at the RCC were subject to the Court’s orders in this case. Id. at p. 12. The Court further found that when Plaintiffs and Plaintiff-Intervenors entered into the 2005 Settlement Agreements, which were specifically limited to the conditions at the MDC, they were not informed that the RCC was “being operated as a Bernalillo County jail such that detainees housed there were members of the class and subclass[.]” Id. at p. 12. The Court found that if Plaintiffs and Plaintiff-Intervenors had known this fact, “they would not have limited the settlement agreement to MDC.” Id. at pp. 12-13. The Court determined that Bernalillo County misrepresented a material fact on which Plaintiffs and Plaintiff-Intervenors justifiably relied in entering into the 2005 Settlement Agreements because they believed that all class and sub-class members were being housed only at the MDC. The Court also concluded that Bernalillo County misrepresented that fact to the Court and that the Court approved the 2005 Settlement Agreements based on the same belief, that all class and sub-
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class members were being housed at the MDC. Id. at p. 18. The Court gave Plaintiffs and Plaintiff-Intervenors the option to rescind their respective 2005 Settlement Agreements, and although the Court did not find that Defendant Bernalillo County committed fraud on the Court, the Court exercised its equitable power and withdrew its approval of the 2005 Settlement Agreements. Id. at p. 20. In early April 2009, Plaintiffs and Plaintiff-Intervenors rescinded the 2005 Settlement Agreements (See Doc. Nos. 700 and 701), and on April 24, 2009, Defendant Bernalillo County appealed the March 2009 Order to the Tenth Circuit Court of Appeals.
II. Discussion A. Access Issues at the MDC
Beginning in June 2009, Defendant Bernalillo County proposed revised protocols, called “rules of engagement,” to govern the monitoring activities at the MDC by Plaintiffs’ and Plaintiff Intervenors’ counsel and their agents. The rules of engagement, now called “MDC Monitoring Protocols,” were more restrictive than the previous protocols. For example, McClendon counsel and their agents were required to give the MDC at least 48 hours’ advance notice, instead of 24 hours’ notice previously required, before counsel could review medical records. And under the MDC Monitoring Protocols, counsel and their agents were not allowed access to the PSU offices or clinical services area as they had previously been allowed. The new protocols required counsel to be escorted by MDC staff when they visited their clients’ living areas and required all non-lawyer personnel to be escorted by counsel when they monitored secure areas of the MDC.
On July 13, 2009, Plaintiffs and the Plaintiff Intervenors filed Plaintiffs’ and PlaintiffIntervenors’ Joint Motion for a Restraining Order Enjoining the Defendants From Reducing Access to the Metropolitan Detention Center and For An Order to Show Cause and for Further
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Remedial Relief (the “2009 Joint Motion”) (Doc. No. 731). In the 2009 Joint Motion, Plaintiffs and Plaintiff-Intervenors asked the Court inter alia to hold Defendants in contempt of three orders, the two PLRA Orders from 1996 and the July 2003 Order, because with the new protocols Defendants were restricting the type of access previously enjoyed by class and subclass counsel and their agents. Plaintiffs and Plaintiff-Intervenors also asked the Court to issue an injunction under Fed. R. Civ. P. 65 prohibiting Defendant from imposing any limits on access to members of the class and sub-class and to the facilities housing them that were not in place before May 2007. In their Response to the 2009 Joint Motion (Doc. No. 738), Defendants argued that access to the MDC remains essentially unaffected and that the changes were minor and were necessary.
On July 20, 2009 a hearing on the 2009 Joint Motion was held before Senior District Court Judge James A. Parker and Magistrate Judge Alan C. Torgerson. (See Transcript of Proceedings, Doc. No. 748.) At the hearing, the Court ruled that the 2009 Joint Motion would be treated as a “motion regularly filed” because Plaintiffs and Plaintiff-Intervenors had not demonstrated to the Court the need for extraordinary relief. (See Tr. 38:21-25.) Plaintiffs and Plaintiff-Intervenors argued that since the rescission of the 2005 Settlement Agreements, the July 2003 Order became the latest ruling that described the type of access required in this case; and thus, the terms outlined in the July 2003 Order should govern access to the MDC. As described supra, the 2003 Order stated that counsel for Plaintiffs and Plaintiff-Intervenors were to have “reasonable and unimpeded access to MDC and to the records of residents of MDC” and that Defendants were to immediately refrain from imposing any limits on access to MDC and to the residents and staff therein “[w]hich [a]re [m]ore [r]estrictive” than those which were used when the class and the sub-class members were housed at the BCDC. McClendon, 272 F. Supp. at
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1260. B. Referral to Magistrate Judge Torgerson and Interim Order
At the July 20, 2009 hearing, the Court asked all counsel present at the hearing to “meet with Judge Torgerson . . . and see if you can work out a resolution of the issues of greatest concern to the plaintiffs.” (Tr. 39:1-3.) Immediately after the hearing, Magistrate Judge Torgerson held a settlement conference with counsel for Plaintiffs, Plaintiff-Intervenors and Defendants. Judge Torgerson met with counsel for Plaintiffs, Plaintiff-Intervenors and Defendants on July 29, 2009, August 14, 2009, and September 11, 2009 in an ongoing effort to resolve the issues regarding access to the MDC raised in the 2009 Joint Motion.
On September 17, 2009, Judge Torgerson entered the Interim Order. The Interim Order contains a list of fifteen protocols that counsel for Plaintiffs, counsel for Plaintiff-Intervenors, and non-lawyers who work with counsel for both Plaintiffs and Plaintiff-Intervenors must follow when monitoring conditions at the MDC and when meeting with their clients and with the staff of the MDC. It is this Interim Order that is the subject of the Joint Objections. In the Joint Objections, Plaintiffs and Plaintiff-Intervenors assert that Magistrate Judge Torgerson did not have authority to enter the Interim Order because this Court referred the matter to him not as a decision maker, but as a mediator to settle the issues raised in the 2009 Joint Motion. Plaintiffs and Plaintiff-Intervenors argue that the Interim Order is a decision, not a settlement.
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II. Powers of Magistrate Judges
The relevant statutory provision states in relevant part:
(b)(1) Notwithstanding any provision of law to the contrary–
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, . . . .A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), . . . and of prisoner petitions challenging conditions of confinement.
(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.
Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
28 U.S.C. § 636 (b) (1) (emphasis added).
Rule of Civil Procedure 72 provides in relevant part:
(a) Nondispositive Matters. When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.
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(b) Dispositive Motions and Prisoner Petitions.
(1) Findings and Recommendations. A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement. A record must be made of all evidentiary proceedings and may, at the magistrate judge’s discretion, be made of any other proceedings. The magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact. The clerk must promptly mail a copy to each party.
(2) Objections. Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party’s objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient.
(3) Resolving Objections. The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72 (emphasis added).
In this district, all non-dispositive pre-trial matters in civil cases are automatically
assigned to Magistrate Judges. See D.N.M.LR-Civ. 73.1 (regarding direct assignment of civil
cases to Magistrate Judges).
Non-dispositive matters subject to the deferential review of Rule72(a) are matters
referred to magistrate judges under 28 U.S.C. § 636(b)(1)(A), and non-dispositive matters do not
include the grant or denial of injunctive relief. Dispositive matters, such as motions for
injunctive relief, may be referred to magistrate judges under 28 U.S.C. § 636(b)(1)(B).
Magistrate judges who receive referrals of dispositive matters must issue proposed findings and
recommended dispositions (“PFRD”) to the district court, and if an objection to the PFRD is
filed, the district court must conduct a de novo review as provided in 28 U.S.C. § 636(b)(1)©
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and Fed. R. Civ. P. 72(b)(3). A. Dispositive or Non-dispositive?
Plaintiffs and Plaintiff-Intervenors argue that under Fed. R. Civ. P. 72(a) Judge Torgerson’s Interim Order should be vacated because it is clearly erroneous or contrary to law. This standard of review, however, governs non-dispositive matters. Fed. R. Civ. P. 72(a). Defendants argue that when the access issues raised by the 2009 Joint Motion were referred to Judge Torgerson, the Court had already ruled that the 2009 Joint Motion was a “motion regularly filed;” and therefore, the 2009 Joint Motion was no longer a dispositive motion, and Judge Torgerson could rule on it as a non-dispositive pretrial matter referred to him under Local Rule 73.1(a). See 28 U.S.C. § 636(b)(1)(A).
The 2009 Joint Motion sought injunctive relief, and the Court’s finding that no extraordinary relief was required did not change the nature of the relief sought. Because the 2009 Joint Motion seeks injunctive relief, it is a dispositive matter that may be referred under 28 U.S.C. § 636(b)(1)(B). Thus, the referral of the 2009 Joint Motion to Magistrate Judge Torgerson was a referral of a dispositive matter and requires the submission of a PFRD. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(3).
B. Magistrate Judge as Mediator or Arbitrator? At the hearing on the 2009 Joint Motion, the Court directed the parties to meet with Magistrate Judge Torgerson, who would assist the parties in working out a settlement of issues regarding access to the MDC. Plaintiffs and Plaintiff-Intervenors argue that at some point the settlement failed, and Judge Torgerson acted as an arbitrator. Plaintiffs and Plaintiff-Intervenors argue that without their consent, Magistrate Judge Torgerson could not enter a decision as he did
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in the Interim Order.5 According to the Plaintiffs and Plaintiff-Intervenors, once the parties
came to an impasse, they should have come to this Court to resolve the impasse, and the Court
could have then referred the matter for decision by the Magistrate Judge with the parties’
consent, or the Court could have decided the disputed issues. The Court notes, however, that the
Plaintiffs and Plaintiff-Intervenors did not complain about the process until after the Interim
Order was entered. Defendants argue that Judge Torgerson remained a mediator and never acted
as an arbitrator, and that the parties came to resolution on all but one of the terms outlined in the
Interim Order. Plaintiffs and Plaintiff-Intervenors, however, dispute this assertion giving several
examples of specific areas on which the parties disagreed.6
Although the Court originally referred the matter to Judge Torgerson as a mediator to
assist the parties in settling their differences regarding access to the MDC, when Judge
Torgerson ruled on issues about which the parties disagreed and then memorialized those rulings
in the Interim Order, he stepped out of his role as mediator. However, the referral was not
nullified by the change in Magistrate Judge Torgerson’s role, and the Court does not need to
5 All parties must consent to allow a specific designation to the magistrate judge to conduct “any or all proceedings in a . . . civil matter and order the entry of judgment in the case. . . .” 28 U.S.C. § 636(c)(1).
6 One of the points of contention involved the amount of notice that counsel for Plaintiffs or Plaintiff-Intervenors or their agents must give the MDC before they could visit the MDC and meet with their clients. Before July 2009, Plaintiffs and Plaintiff-Intervenors were required to give the MDC 24 hours’ notice, but the Interim Order requires them to give 48 hours’ notice. Another point of contention was access to the PSU office. Prior to July 2009, counsel for Plaintiff-Intervenors were allegedly allowed to enter the PSU and observe the activities of that office. The Interim Order, however, limits access to the PSU office to 15 minutes per visit. In another provision, Plaintiffs and Plaintiff-Intervenors sought to include language in the Interim Order that reserved their rights to litigate the continued validity of the July 2003 Order and the nature of access that Plaintiffs and Plaintiff-Intervenors had at the time the Court entered the July 2003 Order. However, Judge Torgerson properly excluded the requested provision from the Interim Order.
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obtain the parties’ consent to refer the 2009 Joint Motion under 28 U.S.C. § 636(c)(1) and start over. Under these circumstances, the Court will treat the referral to Magistrate Judge Torgerson as a referral of a dispositive pre-trial motion under 28 U.S.C. § 636(b)(1)(B), and the Court will treat the Interim Order as a PFRD submitted by Judge Torgerson and objected to by Plaintiffs and Plaintiff-Intervenors. See Mook v. Gertsema, No. 07-2152-CM, 2009 WL 2176001, at *1 (D. Kan. July 21, 2009) (stating that even if a magistrate judge enters an order purporting to determine a matter reserved for district court judges, the district court may disregard the form of the order and consider it as a Report and Recommendation); Wright v. TJX Companies, Inc., No. 08-2282-CM, 2009 WL 2176009, at *1 (D. Kan. July 21, 2009) (same). Thus, the Court will treat the Interim Order as a Report and Recommendation and will review de novo those provisions of the Interim Order to which objections are lodged.
C. De Novo Review When reviewing a PFRD de novo, a court “should make an independent determination of the issues ...; [it] ‘is not to give any special weight to the [prior] determination’. . . .” Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988) (citing United States v. First City Nat. Bank, 386 U.S. 361, 368 (1967)). The Court “. . . is free to follow [a magistrate judge’s recommendation] or wholly to ignore it, or, if [it] is not satisfied, [it] may conduct the review in whole or in part anew.” Id. (citing Mathews v. Weber, 423 U.S. 261, 271 (1976)). With these standards in mind and upon de novo review of the Interim Order and the Joint Objections, the Court finds that the Interim Order is a valid and enforceable and reasonable disposition of the issues raised in the 2009 Joint Motion. Plaintiffs and Plaintiff-Intervenors assert that since the 2005 Settlement Agreements were rescinded, the parties were required under the finality doctrine to abide by the terms of the July
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2003 Order regarding access to the MDC. Plaintiffs and Plaintiff-Intervenors argue that the Interim Order impermissibly alters the July 2003 Order, which requires “reasonable and unimpeded access to MDC and to the records of residents of MDC. . . .”7 However, instead of substantively altering the July 2003 Order, the Interim Order simply clarifies the reasonable and unimpeded access required by the July 2003 Order; and therefore, does not impermissibly change the July 2003 Order.
IT IS ORDERED that the Joint Objections to the Interim Order Regarding Access to the MDC (Doc. No. 758) are overruled.
IT IS FURTHER ORDERED that the Interim Order (Doc. No. 754) is adopted in its entirety.
UNITED STATES SENIOR DISTRICT JUDGE
7 The Court acknowledges that the word “unimpeded” could be interpreted to mean without any restriction whatsoever, whether the restriction is reasonable or unreasonable. However, the Court interprets the language “reasonable and unimpeded” in the July 2003 Order to allow reasonable restrictions on access.
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 Case 6:95-cv-00024-JAP-KBM Document 1132 Filed 04/21/14 Page 1 of 30

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO
JIMMY (BILLY) McCLENDON, et al., Plaintiffs,

vs.

Case No. 95 CV 024 JAP/ACT

CITY OF ALBUQUERQUE, et al., Defendants.

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR TRIAL ON THE MERITS Defendant Bernalillo County Board of Commissioners (the County) asks the Court to direct the parties to proceed to trial on the merits in this 19 year old case. See COUNTY DEFENDANT’S MOTION FOR TRIAL ON THE MERITS (Doc. No. 1099) (the Motion). Plaintiffs and Plaintiff Intervenors contend that early in the case the parties agreed to settlements that were adopted into remedial orders that remain enforceable. See PLAINTIFFS’ AND PLAINTIFF-INTERVENORS’ JOINT RESPONSE TO COUNTY DEFENDANT’S MOTION FOR TRIAL ON THE MERITS (Doc. No. 1108) and ERRATA AND CORRECTION TO DOC.

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NO. 1108 (Doc. No. 1109) (together the Response). 1 The Court agrees with the Plaintiffs and Plaintiff Intervenors and will deny the Motion. Early in the case, the parties chose to settle most of the claims and improve conditions at the County’s jail facilities. The Court adopted those settlements as remedial orders, entered a judgment, and entered subsequent enforcement orders. Therefore, a trial on the merits of the original Complaint is unnecessary.
I. BACKGROUND A. Complaint, Initial Settlements, and Final Judgment 1995 to 1997
On January 10, 1995, Plaintiffs initiated this case alleging that Defendants, the City of Albuquerque (City) and Bernalillo County, New Mexico (the County), operated the Bernalillo County Detention Center (BCDC) in a manner that violated both the United States and New Mexico Constitutions and federal and state statutory law. COMPLAINT (Doc. No. 1) at 3. The lengthy Complaint was divided into three parts: (1) overcrowding claims;2 (2) constitutional claims; and (3) individual claims. The City and the County (together, Defendants) operated the BCDC under a Joint Powers Agreement.3
On August 23, 1995, the Court issued a Preliminary Injunction (Doc. No. 106) enjoining Defendants from housing more inmates than the BCDC was designed to house (the design capacity). ORDER (Doc. No. 106).4 The Preliminary Injunction was based in part on the stipulation by the City and the County that the average daily population at the BCDC exceeded
1 In ruling on the Motion, the Court has also considered the County’s REPLY IN SUPPORT OF COUNTY DEFENDANT’S MOTION FOR TRIAL ON THE MERITS (Doc. No. 1120) and the arguments presented at a hearing on the Motion held on April 4, 2014.
2 The COMPLAINT alleged that over 1000 inmates were housed in the BCDC, which was designed to house 586 inmates. Doc. No. 1 at 10 ¶ 3.18. 3 Under the Joint Powers Agreement, the City and County were jointly responsible for funding the operation and maintenance of the BCDC. The City operated and maintained the BCDC, and the Mayor appointed the director of the BCDC, who submitted periodic budgets for the operation of the BCDC. 4 Enforcement of the cap on BCDC’s population at its design capacity was delayed for one year, until August 23, 1996. Id. at 12.
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its design capacity. Id. On September 7, 1995, Plaintiffs and Defendants entered into a settlement agreement in which Defendants agreed to convert the August 23, 1995 preliminary injunction into a permanent injunction with the Court retaining jurisdiction to enforce or modify the permanent injunction. Doc. No. 115. The September 7, 1995 settlement agreement was approved by the Court. Doc. No. 116. The settlement agreement expressly resolved all claims in parts 1 and 2 of the Complaint. 5
On October 26, 1995, Plaintiff-Intervenors, representing a subclass of prisoners with developmental or mental disabilities, intervened in the case. Doc. No. 137. However, PlaintiffIntervenors were allowed to intervene only on “. . . the claims raised in the original Plaintiff’s Complaint and the . . . issues addressed in the Court’s prior orders . . . .” Id. at 2. PlaintiffIntervenors alleged Defendants violated their rights under the Constitution, Title II of the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA), and the Rehabilitation Act (RA) (29 U.S.C. §§ 701 et seq.).1 Doc. No. 150. On November 5, 1996, the Court entered an ORDER CERTIFYING A CLASS (Doc. No. 257) describing the class as “all persons presently confined in the [BCDC] . . . or who may/will be so confined in the future . . .” Id. at 1.
On April 26, 1996, Congress enacted the Prison Litigation Reform Act, Pub. L. No. 104134, 110 Stat. 1321 (codified as amended in several titles and sections of U.S.C. including 18 U.S.C. § 3626 and 42 U.S.C. § 19979e) (the PLRA). The PLRA imposed specific requirements regarding prospective relief in all prison conditions cases, whether the relief was ordered prior to
5 “Plaintiffs dismiss with prejudice all allegations in ‘Parts I and II’” SETTLEMENT AGREEMENT (Doc. No. 115) at 2. “The Defendants acknowledge that the permanent injunction is a resolution of ‘Parts I and II’ of the Complaint . . .” Id. 1 The Court will refer to the ADA and the RA collectively as the ADA because the standards for granting relief are essentially the same under both statutes. Montez v. Romer, 32 F. Supp. 2d 1235, 1239 (D. Colo. 1999) (citing Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir.), cert. denied, 518 U.S. 1005 (1996) (“As a general matter, courts have construed the [RA] and the [ADA] similarly.”)).
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or after its enactment, and the PLRA allowed termination of existing remedial orders in prison conditions cases. 18 U.S.C. § 3626.6 After the PLRA was enacted, the City and County moved to terminate the remedial orders entered in 1995 and 1996. However, the termination motion was resolved in the next round of settlement agreements.
In November 1996, the Court approved two settlement agreements, which the Court adopted as consent decrees. The first settlement agreement was executed by Plaintiffs, PlaintiffIntervenors, the City, and the County and was adopted by the Court in the ORDER REGARDING THE PRISON LITIGATION REFORM ACT (Doc. No. 255) (the PLRA Order). In the PLRA Order, the Court found that “violations of one or more federal rights of BCDC residents ha[d] occurred at BCDC.” Id. at 1. The PLRA Order acknowledged that the Defendants agreed to file “no motion in the future asserting that this Settlement Agreement should be terminated based upon the provisions of the PLRA.” Id. at 6 ¶13.
The second settlement agreement was executed by Plaintiff-Intervenors, the City, and the County and was adopted by the Court in the ORDER (Doc. No. 256) (the 1996 Order). In the
6 The PLRA provides [p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1). The PLRA also allowed parties to move to terminate injunctive relief that had been ordered prior to its enactment:
In any civil action with respect to prison conditions in which prospective relief is ordered, such relief shall be terminable upon the motion of any party or intervener-- . . . in the case of an order issued on or before the date of enactment of the Prison Litigation Reform Act, 2 years after such date of enactment. 18 U.S.C. § 3626(b)(1)(iii).
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1996 Order, the Court found that “violations of one or more federal rights of subclass members have occurred at BCDC.” Id. at 1. The 1996 Order contained a stipulation by the parties that some of the BCDC residents were not afforded “reasonable accommodations for their disabilities.” Id. at 7. In the 1996 Order, the Court required Defendants to implement remedial measures designed to address the needs of inmates with mental and developmental disabilities or mental illness, particularly with regard to the diagnosis and treatment of those inmates. Id. at 817.
On January 10, 1997, the Court held a fairness hearing on the 1996 settlements under Fed. R. Civ. P. 23(e). On August 12, 1997, the Court entered the CORRECTED ORDER APPROVING COMPROMISE & SETTLEMENT AGREEMENT & FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE (Doc. No. 289) (the 1997 Judgment) approving the two November 1996 settlements and dismissing with prejudice all claims except the Plaintiff Intervenors’ claims regarding equal protection and access to the courts asserted on behalf of female subclass members. Id. at 5. The 1997 Judgment contained the findings required by the PLRA, and the Court retained jurisdiction to enforce the 1996 settlement agreements. Id. at 8-10.
B. Management of the Inmate Population and Conditions: 1997 to 2003
Between 1997 and 2003, despite efforts made by the County to reduce the inmate population, the BCDC continued to be overcrowded. On September 25, 2000, the Court entered an Order (Doc. No. 315) finding that the Defendants had been in violation of the population cap imposed in the PLRA Order for eleven of the preceding twelve months and that the population at the BCDC at times approached the dangerously high population that existed at the time of the August 23, 1995 preliminary injunction. The Court noted that the Defendants employed various
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means to bring the population down including “building an interim westside facility, asking law enforcement agencies to issue citations rather than incarcerating people whenever appropriate . . . subsidizing the cost of Pre-Trial Services . . . paying for Saturday Metropolitan Court arraignments . . . and renting beds in out-of-county jails.” Id.at 3. The Court noted, “[t]here are approximately 1700 individuals incarcerated in BCDC’s main facility, westside facility and satellite facility. . . . The new Metropolitan Detention Center, currently under construction, will not be ready to house inmates before October, 2001. ” Id. The Court ordered Defendants to comply with the PLRA Order, and to provide what was necessary for the appointment of one or more pro tem judges with the authority and responsibility to “a) utilize a ‘judicial classification system’ . . .; b) process probation and parole violators as expeditiously as possible; c) handle failure to appear warrants more expeditiously; d) issue orders to the Department of Corrections (DOC) to transport inmates to the local DOC facility for transport to court; and e) consider and implement other measures . . . to reduce the population of BCDC.” Id. at 4.
On June 27, 2001, the Court entered a SUPPLEMENTAL ORDER TO ENFORCE PREVIOUSLY ORDERED POPULATION LIMITS AT THE BCDC FACILITY (Doc. No. 319) requiring that Defendants direct law enforcement officials “. . . to issue citations . . . and to use ‘walk through procedures,’ rather than incarcerating individuals . . .” Id. at 5. The Court also ordered the parties to hold meetings with counsel for both parties, court officials, probation and parole officials, representatives of the district attorney’s office and the public defender’s office. In those meetings, the participants were to “plan how to reduce the number of incarcerated individuals at BCDC . . . plan how to include persons who do not have both a permanent address and a telephone in the Community Custody Program . . . plan how to implement an effective jail diversion program for persons with psychiatric or developmental
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disabilities [and] . . . plan how to expand the program for early resolution of criminal cases.” Id. at 5-7.
On January 31, 2002, the Court entered a STIPULATED AGREEMENT (Doc. No. 361) in which the Court continued to enforce a population cap on the number of inmates at the BCDC. Id. at 1. The Court also ordered Defendants: 1) to make available a certain number of beds for female inmates at the BCDC annex; 2) to reopen BCDC section “3 Southwest” to house female residents; 3) to use BCDC section “5 Southwest” as a women’s Psychiatric Services Unit; 4) to use BCDC “5 East” exclusively for alcohol and drug watches; 5) to clear all female inmates from the satellite facility; 6) to house men at the satellite facility; 7) to use all population management tools to achieve the population cap; and 8) to provide a full time benefits manager. Id. at 1-2.
C. Metropolitan Detention Center Opens in 2003
In the summer of 2003, construction of the new 2100-bed Metropolitan Detention Center (MDC) was completed. By June 17, 2003, all inmates housed at the BCDC had been transferred to the MDC. Soon thereafter, class and subclass counsel, who had monitored the conditions at the BCDC, were restricted from monitoring conditions at the MDC. On June 27, 2003, Plaintiffs and Plaintiff Intervenors moved for a temporary restraining order and a preliminary injunction to allow counsel to access the MDC and its inmates. Doc. No. 409. The City and County opposed the motion arguing that the class and subclass were defined as inmates detained at the BCDC, and the remedial orders governed only the population and conditions at the BCDC. Doc. No. 411. The City and County, through the affidavit of MDC Director Harry Tipton, represented that the BCDC “no longer houses inmates. The BCDC is being licensed to Cornell Corrections Corp. [sic], which intends to renovate the building and house federal prisoners pursuant to a contract
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with the United States government.” Doc. No. 411 Ex. A. On July 11, 2003, the Court granted the motion and ruled that previous orders applied to the MDC and that the Court had continuing jurisdiction to enforce those orders. Doc. No. 416.
D. Metropolitan Detention Center Governed by the PLRA Order In a July 11, 2003 MEMORANDUM OPINION AND ORDER (Doc. No. 416), the Court held that the settlement agreements adopted in the PLRA Order, the 1997 Judgment and subsequent remedial orders, in addition to the factual circumstances, “persuade this Court that it has continuing jurisdiction in this matter.” Id. at 5. The Court began with an analysis of the language used by the parties in the settlement agreements adopted by the Court in the PLRA Order (Doc. No. 255). The Court determined that the parties “did not intend for the settlement agreement set forth in the PLRA Order to be limited to the BCDC facility or to terminate upon the opening of a new permanent facility, but rather intended that the agreement remain in effect and apply wherever individuals incarcerated by Defendants are housed.” Id. at 7. Moreover, the Court concluded that in the PLRA Order, “the parties did not intend to limit, for purposes of the class and the sub-class definitions or otherwise, the term ‘BCDC’ to a particular facility, but rather intended that term to apply to the jail system as a whole.” Id. However, the Court found that the 1996 Order (Doc. No. 256), memorializing the settlement agreement between Defendants and Plaintiff Intervenors, did not apply to the MDC under its express language. Id 7 In addition to the PLRA Order, the Court examined the language used by the parties in subsequent stipulated orders as evidence that the parties intended the remedial relief to extend to all jail facilities operated by Defendants. For example, in the Order (Doc. No. 315) entered on September 25, 2000, the Court concluded that Defendants had violated the PLRA Order based on
7 The Order stated, “this Settlement Agreement shall not apply to any permanent facility opened after the opening of the interim facility on the Westside.” The parties agreed that the MDC was the permanent facility to which the Order referred. Id. at 17.
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the total number of individuals “incarcerated in BCDC’s main facility, westside facility, and satellite facility” and based on the Court’s recognition that the “new Metropolitan Detention Center, currently under construction, w[ould] not be ready to house inmates before October, 2001.” Id.at 3. The Court reasoned that this provision, along with other provisions of the PLRA Order and subsequent remedial orders, involved actions by Defendants that affected more than conditions inside the physical BCDC facility. For example, the Court noted that the total inmate population was affected by certain law enforcement policies, under which individuals were incarcerated for petty offenses when a citation without incarceration could have been issued. Moreover, the Court required Defendants to control the population of BCDC by using the Community Custody Program as an alternative to incarceration. The Court properly recognized that the previous remedial orders addressed conditions that were not site-specific, such as, medical care, access to the judicial system, transportation to court, staff training, and benefits for inmates. Id. at 10. The remedial orders concerned not just the physical conditions at the BCDC but also the treatment of inmates housed there, which implicated policies and procedures used by Defendants in all jail facilities.
The Court’s conclusion was similar to the conclusion in Camden County Inmates v. Parker, 123 F.R.D. 490 (D. N.J. 1988). Parker involved a decade-long case in which the court had entered consent decrees to govern inmate population and jail conditions in Camden County, New Jersey. After the county built and began operating a new jail facility, the court sua sponte issued an order to show cause to determine whether its subject matter jurisdiction to enforce previous consent decrees had lapsed. Id. at 494. The court recognized that, in the original complaint, the plaintiff class challenged not only the physical conditions at the jail but also the “practices and procedures of the defendants.” Id. at 498. The court also noted that the consent
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decrees were not solely “directed at the physical stones of the old jail, . . . but at the policies through which these defendants operated the jail facilities.” Id. at 499 (quoting Campbell v. McGruder, 580 F.2d 521, 544 (D.C. Cir. 1978)). The court ruled that the scope of the pleadings and the terms of the consent decree with respect to jail operations meant that the court’s power was not limited to the original jail facility. Id. “Although construction of a new jail is relevant in fashioning an appropriate remedy for constitutional violations that may exist . . . and although the new facility may temporarily eliminate problems such as overcrowding; the new structure itself may merely provide new housing for problems that were present at the old jail.” Id.at 500. The court concluded that it was within “the broad equitable power of this Court to enforce the [consent decree] as it applies to the policies, procedures, and practices of the county defendants at the new jail.” Id.
In Cooper v. Noble, 33 F.3d 540 (5th Cir. 1994), a case involving a jail in Madison County, Mississippi, county officials moved for relief under Rule 60(b) a decade after a final judgment was entered. The officials argued that the construction of a new jail rendered the judgment obsolete and inapplicable to the new facility. Id. at 542. The District Court denied the Rule 60(b) motion. Id. at 541. The Fifth Circuit upheld the lower court’s determination that the county failed to show that changed factual conditions made compliance with the judgment substantially more onerous, that the judgment became unworkable because of unforeseen obstacles, or that enforcement of the judgment would be detrimental to the public interest. Id. at 544.
In 2003, this Court recognized its equitable power to enforce the PLRA Order and subsequent remedial orders beyond the BCDC facility. Despite the passage of time and the
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opening of the new facility, the Court determined it had “. . . continuing jurisdiction to monitor conditions of confinement of the class and sub-class members at the MDC facility.” Id. at 15.
E. MDC Stipulated Settlement Agreements: 2005 to 2009
On October 10, 2003, the City and County moved to vacate the PLRA Order and the 1997 Judgment under Fed. R. Civ. P. 60(b)(5) and (6). The City and County asked the Court to reconsider its decision to extend its jurisdiction over the MDC reiterating their argument that the 1996 PLRA Order, and the 1997 Judgment were site-specific and could not be applied to the MDC. Doc. No. 421 at 1. However, while the motion was pending, the parties entered into two settlement agreements, which the Court adopted as remedial orders. The Plaintiffs, the City and the County entered into a STIPULATED SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND DEFENDANTS (Doc. Nos. 480; 515) (Plaintiffs’ SSA).8 The Plaintiff Intervenors, the City and the County entered into a STIPULATED SETTLEMENT AGREEMENT BETWEEN PLAINTIFF INTERVENORS AND DEFENDANTS (Doc. No. 514) (Plaintiff Intervenors’ SSA). Both the Plaintiffs’ SSA and the Plaintiff Intervenors’ SSA (together the 2005 SSAs) were expressly limited to conditions at the MDC. The stated purpose of the Plaintiffs’ SSA was to “maintain and improve the conditions at the [MDC] for the benefit of the Defendants, their employees, agents and staff and for the benefit of the Plaintiff class.” Plaintiffs’ SSA at 2. The stated purpose of the Plaintiffs Intervenors’ SSA was to “describe conditions both parties wish to see maintained or improved at the [MDC] . . . .” Plaintiffs Intervenors’ SSA at 2.
8 The same settlement agreement between Plaintiffs and Defendants is docketed as Doc. No. 480 and also as Doc. No. 515. The latter docket entry occurred after a fairness hearing on June 30, 2005.
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In the Plaintiffs’ SSA, the parties agreed that it “supersede[d] all previous Orders which pertain to Plaintiffs and Defendants.” Plaintiffs’ SSA at 7. In the Plaintiff Intervenors’ SSA, the parties stipulated that the “Stipulated Settlement Agreement replaces in its entirety the November 5, 1996 Order entered between the Defendants and Plaintiff Intervenors (doc # 256).” Plaintiff Intervenors’ SSA at 2. Both the Plaintiffs’ SSA and the Plaintiff Intervenors’ SSA contained the promise that Defendants would not file a motion to terminate the agreement under the PLRA. Plaintiffs’ SSA at 7; Plaintiff Intervenors’ SSA at 2. On June 30, 2005, after a hearing, the Court approved and adopted both 2005 SSAs. Doc. No. 513 (minutes of hearing).
In October 2003, after all inmates were moved out of the BCDC, the County leased the facility to Cornell Companies, Inc. (Cornell). The lease agreement required Cornell to remodel and operate the facility under the name the Regional Corrections Center (RCC).9 The lease provided that the County would secure an Inter-Governmental Agreement (IGA) with the federal government for the housing of federal inmates at the RCC. The lease agreement stated that Cornell and the County would enter into a management agreement governing the operation of the RCC. In June of 2004, the County and Cornell entered into an Operating and Management Agreement10 regarding conditions of confinement and Cornell’s operation of the RCC as a detention center. The Operating and Management Agreement specified operational standards that covered many aspects of the RCC’s daily operations, including staffing, training, record keeping, medical care, food service, laundry, telephone service, inmate work, discipline, grievance procedures, and the use of force. Doc. No. 543-2 at 7-19. According to the Plaintiffs and Plaintiff Intervenors, prior to the Court’s approval of the 2005 SSAs, the County misrepresented the fact
9 The Lease Agreement is part of the Court’s record as an exhibit to PLAINTIFFS’ MOTION TO PERMIT COUNSEL TO VISIT MCCLENDON CLASS MEMBERS HOUSED AT THE REGIONAL CORRECTIONAL CENTER OR ANY OTHER FACILITY (Doc. No. 543-4). 10 The Operating and Management Agreement is part of the Court’s record. Id. Ex. A (Doc. No. 543-2).
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that it had an IGA with the federal government and that the County essentially had operational control of the RCC under the Operating and Management Agreement.
In June, July, and August 2007, the Plaintiffs and Plaintiff Intervenors filed motions to permit counsel to visit class and subclass members housed at the RCC. Plaintiffs and Plaintiff Intervenors filed a joint motion asking the Court to order the County11 to show cause why it should not be held in contempt of Court for violating all previous orders (Doc. Nos. 555 and 562) and for misrepresenting the County’s arrangement with Cornell regarding the operation of the RCC. Doc. Nos. 543 and 548.12
In December 2007, the Court sua sponte issued an order requiring the County to show cause why the Court should not withdraw its approval of the 2005 SSAs. Doc. No. 600. The Court noted that prior to its approval of the 2005 SSAs, the Defendants led the Court to believe that Cornell, and not the County, had the agreement with the federal government to house detainees at the RCC. Specifically, the County represented that the “RCC had been leased to Cornell Companies, Inc., who planned to renovate the facility and use it to house federal detainees pursuant to a contract with the United States.” Id. at 2. The Plaintiffs and Plaintiff Intervenors alleged that they agreed to restrict the coverage of the 2005 SSAs to the MDC based on the representation that the BCDC facility would not be operated as part of the County’s jail system. The Court also noted that in addition to federal detainees, the County housed overflow inmates from MDC at the RCC until July of 2007, when Cornell asked the County to remove the inmates. Id. n. 3. More importantly to the Court, the County had entered into the contracts with the federal government and Cornell prior to the hearing on the approval of the 2005 SSAs, “but
11 In 2003, the MDC was operated by both the City and the County. In July 2006, the City turned over control of the MDC to the County. The County alone was involved in the operation of the RCC as owner of the property. 12 The July 2007 and the August 2007 motions were denied without prejudice on March, 28, 2008. Doc. No. 652.
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did not inform the Court or the other parties of its role in housing detainees at RCC at th[e] hearing.” Id. at 4. The Court averred that if it had known the nature of the arrangement among the County, Cornell and the federal government, the Court would not have approved the 2005 SSAs because “the settlement agreements did not cover a significant portion of the defined class and subclass—those detainees being housed by Bernalillo County at RCC.” Id. at 4. Plaintiffs and Plaintiff Intervenors asked the Court to equitably modify the 2005 SSAs to apply to “every facility in which subclass members are detained by Defendants, including the old BCDC facility.” Doc. Nos. 620 at 2-3; 622. Defendants opposed any change to or cancellation of the 2005 SSAs and denied making any misrepresentation. Doc. Nos. 639 and 640.
On March 31, 2009, the Court issued a MEMORANDUM OPINION AND ORDER (Doc. No. 699) in which the Court determined that inmates at the RCC were potential class and subclass members because the County had maintained operational control over the RCC. The Court opted not to allow modification of the 2005 SSAs, as requested by Plaintiffs and Plaintiff Intervenors, but instead allowed the Plaintiffs and Plaintiff Intervenors to rescind the 2005 SSAs.
In April 2009, the Plaintiffs and Plaintiff Intervenors rescinded the 2005 SSAs. On April 24, 2009, the County appealed the March 31, 2009 ruling, but the appeal was dismissed. McClendon v. City of Albuquerque, 630 F.3d 1288 (10th Cir. 2011).
On May 18, 2009, United States District Judge Martha Vazquez recused from the case. On May 19, 2009, Senior United States District Judge James A. Parker was assigned to the case.
F. Post-Rescission: May 2009 to the present
On July 13, 2009, Plaintiffs and Plaintiff Intervenors, citing continued limitations on counsels’ access to class and subclass members at the MDC, filed a motion to allow counsel
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access to the MDC for monitoring purposes. District Judge Parker and Magistrate Judge Alan C. Torgerson held a hearing on July 20, 2009 and instructed the parties to meet with Magistrate Judge Torgerson and produce an agreed order regarding access to the MDC. Doc. No. 739 (minutes). On September 17, 2009, Magistrate Judge Torgerson entered the INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No. 754) (Interim Order). On February 1, 2010, the Court adopted the Interim Order over objections. Doc. No. 768.
On January 27, 2011, asserting that the RCC was being operated as part of the County’s jail system, Plaintiffs and Plaintiff Intervenors filed a Joint Motion to Enforce the March 31, 2009 Order and allow counsel access to the RCC, asserting that the Court had jurisdiction to enforce the order despite the County’s appeal. See Doc. No. 822. The parties restarted settlement discussions over the next several months. In April 2011, all inmates were moved out of the RCC, and the RCC was closed. The Court denied the Joint Motion to Enforce the March 31, 2009 Order without prejudice as moot. Doc. No. 844.
On July 7, 2011, Plaintiffs and Plaintiff Intervenors filed a Joint motion to appoint the three experts who had monitored the MDC under the 2005 SSAs. Doc. No. 849. The three experts were Dr. Timothy Greifinger, an expert on inmate medical care, Dr. Jeffrey Metzner, an expert on inmate mental health care, and Manuel Romero, an expert on prison conditions. On July 11, 2011, the County moved to reinstate the 2005 SSAs. Doc. No. 851. On December 7, 2011, the Court appointed the three experts under Fed. R. Evid. 706 and asked the experts to evaluate conditions at the MDC based on the standards imposed by the 2005 SSAs.13 Doc. No.
13 The Court specifically stated that it was not ratifying or reinstating the 2005 SSAs and that the experts’ use of the 2005 SSAs, under which the experts had previously evaluated the MDC, was for the initial evaluation only. See Doc. No. 909 at 2.
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909. On May 3, 2012, the Court denied without prejudice the County’s motion to reinstate the 2005 SSAs. Doc. No. 938.
On February 26, 2013, after receiving reports from the three experts on conditions at the MDC, which had become dangerously overcrowded, the Court issued an ORDER TO SHOW CAUSE (Doc. No. 981). In the February 26, 2013 Order to Show Cause, the Court ordered the City and the County to appear in court on March 28, 2013 and show cause why the MDC should not cease “. . . housing female residents, who have not been classified or who have different classifications, in the same Segregation housing unit.” Id. at 2. On the date of the hearing, the parties agreed to alter the conditions for female inmates at MDC and the agreement was adopted by the Court in the ORDER VACATING ORDER TO SHOW CAUSE (Doc. No. 989). The County agreed 1) to continue housing female inmates assigned to administrative segregation in at least two separate housing units; 2) to cease triple celling all female segregation inmates; 3) to allow all female inmates at least one hour out of cell per day; 4) to cease double celling female inmates who are classified as high risk, security threats, seriously mentally ill, disciplinary, or reclassification unless found compatible using a reliable classification tool; 5) to implement a pre-classification triage system to separate violent from non-violent female inmates; 6) to cease housing unclassified female inmates with female inmates who are in segregation; and 7) to consult with Mr. Romero in operating the female segregation units so as not to expose those inmates to an unreasonable risk of harm. Id. at 1-2.
On April 19, 2013, the Court issued another ORDER TO SHOW CAUSE (Doc. No. 995) based on the experts’ reports and on information gained from Magistrate Judge Torgerson regarding ongoing issues at the MDC, as well as on information gained from tours of the MDC. In this Order to Show Cause the Court specifically found: 1) that problems at MDC have
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persisted for a long time, 2) that the health and safety of inmates can be significantly improved by better management practices, 3) that improved management practices would reduce the cost of litigating emergency motions for reductions in inmate population and for other remedial relief, and 4) that the interests of all parties are served by improving the health and safety of MDC inmates. Id. at 2. The Court ordered the County to appear on May 22, 2013 and show cause why it should not present a written plan on or before July 1, 2013: 1) to cease triple celling of inmates at MDC no later than August 1, 2013; 2) to cease by September 1, 2013, the double celling of inmates requiring segregation with other inmates in protective custody, unless those inmates are deemed compatible using a reliable classification tool; 3) to present a plan, in collaboration with Mr. Romero, for the reduction of the inmate population at MDC; 4) to cease, no later than August 1, 2013, housing female inmates with different classifications in the same segregation unit; 5) to implement a pre-classification triage system, as recommended by the National Institute of Corrections (NIC), to separate inmates who have committed acts of violence from inmates who have not; 6) to cease, no later than August 1, 2013, housing unclassified inmates with inmates who require segregation; 7) to provide appropriate specialized mental health treatment for both female and male inmates who are segregated; 8) to hire the appropriate number of staff to ensure adequate numbers of corrections officers and case managers for each housing pod; and 9) to hire a full time employee who has substantial and appropriate experience in establishing community-based alternatives to incarceration. Id. at 3-4. On May 22, 2013, the parties presented a settlement agreement to the Court in the form of an ORDER RESOLVING ORDER TO SHOW CAUSE (Doc. No. 1004) in which the County represented that by July 1, 2013, it would draft a plan addressing the nine matters described above and that it would timely implement the plan by the certain dates. The ORDER VACATING ORDER TO SHOW CAUSE
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(Doc. No. 989) and the ORDER RESOLVING ORDER TO SHOW CAUSE (Doc. No. 1004) will be referred to as the 2013 Stipulated Orders.
On August 8, 2013, the Court held a hearing on another ORDER TO SHOW CAUSE (Doc. No. 1015) issued on July 24, 2013. The order to show cause required the County to show cause with respect to three matters. First, the County was required to show how a letter dated July 1, 2013 and written by the County’s counsel, Jeffrey Baker, fulfilled the requirement of a plan required by the Order Resolving the Order to Show Cause (Doc. No. 1004). Second, the Court required the County to show cause why it should not be held to have violated the Order Vacating Order to Show Cause (Doc. No. 989). Third, the Court ordered the County to show cause why it should not be fined a substantial amount of money for every day that it is in violation of the April 19, 2013 Order to Show Cause (Doc. No. 995). At the hearing, the Court heard from Mr. Baker about the difficulties the County was having implementing the 2013 Stipulated Orders. Those difficulties were driven by the County’s inability to meet the deadline for population reduction by housing some inmates in facilities outside of Bernalillo County. Mr. Baker also indicated that, although the County allocated money to house inmates out of county temporarily, the County would not be able to allocate funds indefinitely to house inmates in outside facilities. Mr. Baker expressed hope that during the time inmates would be housed out of county, the County could implement other population reduction measures, such as the expansion of the Community Custody Program and the pre-trial supervision of detainees without incarceration. It became clear at this hearing that the County did not timely comply with the 2013 Stipulated Orders in several areas. The Court specifically found that the County failed to present an adequate plan as required in the Order Resolving the Order to Show Cause (Doc. No. 1004). Moreover, the Court noted that it needed proof of the amount required to compensate
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class and subclass members for the County’s failure to meet the deadlines imposed in the 2013 Stipulated Orders. In the alternative, the Court needed evidence of an amount of monetary sanctions necessary to coerce the County to fully comply with the 2013 Stipulated Orders.
On August 19, 2013, Plaintiffs and Plaintiff Intervenors filed a Joint Motion for Contempt arguing that the County failed to comply with the 2013 Stipulated Orders. Doc. No. 1022. On November 19, 2013 at the Court’s request, Manuel Romero submitted a report outlining each item in the 2013 Stipulated Orders along with his assessment as to whether the County was or was not in compliance with each requirement. A hearing was held on November 20, 2013 at which the Court heard arguments on Mr. Romero’s itemized report. Mr. Romero reported that, although the County had complied with various items, the County did not timely comply with several items. As to some items, the County was technically compliant, but the County could not sustain the compliance long term because the population reduction was dependent on continued funding to lease space in out of county facilities. The Court ordered the parties to meet and confer and submit stipulations on the status of the County’s compliance with each item and the dates on which that compliance was reached. Another hearing on the Joint Motion for Contempt is scheduled on April 29, 2014.
II. STANDARD FOR REVIEW
Although styled as a motion asking the Court to set a trial on the merits, the Motion actually seeks a ruling on whether previous orders are enforceable after the rescission of the 2005 SSAs. To determine the enforceability of previous final orders, the Court is guided by Rule 60(b). Compare Stewart v. Beach, 701 F.3d 1322, 1329 (10th Cir. 2012) (noting that district courts generally remain free to reconsider earlier interlocutory orders) and Rufo v. Inmates of
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Suffolk County Jail, 502 U.S. 367 (1992) (applying Rule 60(b) as standard for altering or setting aside final remedial orders). Rule 60(b) allows a court to relieve a party from a final judgment, order, or proceeding if “(5) . . .applying [the judgment] prospectively is no longer equitable[.] Fed. R. Civ. P. 60(b)(5).
III. DISCUSSION
A. Effect of 2009 Rescission of the 2005 SSAs
1. 1996 and 1997 Order and Judgment Are Enforceable
At the heart of this controversy is the County’s contention that after the rescission of the 2005 SSAs there was no enforceable final order or judgment governing this case. The Plaintiffs and Plaintiff Intervenors contend that this case has been in a post-judgment phase since the parties entered into settlement agreements that were adopted by the Court in 1996 and 1997 in remedial orders and a judgment, despite the rescission of the 2005 SSAs. Their dispute requires the Court to determine whether, after the 2005 SSAs were rescinded, the PLRA Order, the 1996 Order, and the 1997 Judgment, along with the subsequent remedial orders, including the 2013 Stipulated Orders, remain enforceable. If those orders and judgment are enforceable, the Court may disregard those final orders only if the County carries its burden under Rule 60(b). Thus, the Court may grant the County’s request for a trial only if the Court determines that, when the 2005 SSAs were rescinded, the previous orders entered from 1996 to 2005, and orders entered subsequent to the 2009 rescission, are no longer enforceable against the County.
The County contends that the orders in effect prior to the 2005 SSAs, particularly the PLRA Order, the 1996 Order, and the 1997 Judgment, cannot be enforced at the MDC because those orders and judgment were tailored to conditions at the BCDC. The County lists numerous
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site-specific provisions in the orders and judgment, particularly the provisions imposing numerical population caps which clearly cannot be applied to the MDC as written. The County further contends that none of the orders specifically declare that the MDC is in violation of the Constitution or any other federal law, which is required for remedial relief under the PLRA.14 The Plaintiffs and Plaintiff Intervenors assert that several provisions of the orders and judgment can be applied to the MDC with minor revisions and that the County has not met its burden under Rule 60(b) to set those orders aside.15
Plaintiffs and Plaintiff Intervenors point out that the Court has already determined that the MDC can be governed by the provisions of the PLRA Order, the 1997 Judgment, and subsequent remedial orders. Under the Court’s 2003 MEMORANDUM OPINION AND ORDER (Doc. No. 416), the Court specifically ruled that the PLRA Order, the 1997 Judgment, and subsequent remedial orders were enforceable against the City and the County and the operation of all jail facilities in the Bernalillo County jail system.16 Prior to the Court’s 2003 decision, the County argued, as it argues here, that the 1996 PLRA Order, the 1997 Judgment and subsequent remedial orders could not be applied to the MDC because they were intended only to govern conditions at the BCDC. The Court concluded that the PLRA Order remained “in effect despite the transfer of the class and the sub-class members to the MDC.” Id. at 11. The Court rejected the County’s argument in 2003, and the Court sees no reason to revisit that ruling. Stewart v. Beach, 701 F.3d 1322, 1329 (10th Cir. 2012) (noting that district courts generally
14 See 18 U.S.C. § 3626(a)(1). Orders entered without the PLRA findings are enforceable until a motion to terminate is filed. See Baker v. Haun, 333 F. Supp. 2d 1162, 1165-66 (D. Utah 2004) (adopting magistrate judge’s decision concluding that 1992 injunction should be terminated as to the Wasatch Unit within the Utah State Prison). Cf. Skinner v. Lampert, 457 F. Supp. 2d 1269, 1276 (D. Wyo. 2006) (denying motion to terminate remedial injunction governing Wyoming state prison). 15 Plaintiff Intervenors list several provisions in the 1996 Order that could be applied to the MDC; however, the 1996 Order expressly states that it will not apply to the MDC. 16 The County did not appeal this ruling.
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remain free to reconsider their earlier interlocutory orders). Therefore, as the Court concluded in 2003, this Court “retains continuing jurisdiction to review, modify, and enforce” the PLRA Order, the 1997 Judgment and the subsequent remedial orders.
By arguing that there are no orders governing the MDC, the County also ignores the Court’s recent 2013 Stipulated Orders directed to conditions at the MDC. Those orders relieved the County from the burden of two Orders to Show Cause and required the County to implement specific improvements at the MDC, particularly in the area of population management, by prohibiting “triple celling” and by limiting the double celling of certain inmates. Although the 2013 Stipulated Orders do not contain the required PLRA findings, they are nevertheless enforceable court orders. The Court recognizes that the 2013 Stipulated Orders are terminable under the PLRA, but only if the County moves to terminate them, and no motion to terminate has been filed.17 However, even if the 2013 Stipulated Orders are terminable, the 1996 PLRA Order and the 1997 Judgment remain enforceable against the County. The 1996 PLRA Order contains the finding that the County violated “one or more federal rights of BCDC residents.” PLRA Order at 1. The 1997 Judgment contains the finding that “violations of one or more federal rights of class and subclass members have occurred at BCDC.” 1997 Judgment at 5. The PLRA Order and the 1997 Judgment are enforceable against the County in the operation of its jail facilities, including the MDC. See supra Parker, 122 F.R.D. at 499 (applying a remedial order to new jail facility).
17 See 18 U.S.C. § 3626(b)(2) (stating that prospective relief in a prison conditions case may be terminated if the relief was granted without the finding that the relief was narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right). However, prospective relief is not terminable if the Court makes the written findings based on the record “that the prospective relief remains necessary to correct a current and ongoing violation of the Federal right, and that that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.” 18 U.S.C. § 3626(b)(3). See also Berwanger v. Cottey, 178 F.3d 834, 838 (7th Cir. 1999) (Easterbrook, J. ) (holding that statutory PLRA language in § 3626 (b)(1) that “relief shall be terminable” does not mean that a court must terminate an injunction and that a motion to terminate is required when subsection (b)(1) is read with subsection (e)).
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2. The 2005 SSAs were not novations
In a related argument, the County contends that the 2005 SSAs were “novations” because the settlement agreements expressly extinguished all preexisting settlement agreements. According to the County, if the 2005 SSAs were novations, the rescission of the 2005 SSAs did not revive previous settlement agreements embodied in the pre-2005 remedial orders. The requirements for a novation are: 1) an existing, valid contract; 2) an agreement to a new contract; 3) a new valid contract; and 4) an extinguishment of the old contract by the new one. Summit Properties, Inc. v. Pub. Serv. Co. of New Mexico, 138 N.M. 208, 218, 118 P.3d 716, 726 (2005). “There must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement, for it is a well-settled principle that novation is never to be presumed.” Id. The County maintains that the 2005 SSAs meet all of the “novation” requirements and that the explicit language of the 2005 SSAs shows the parties’ intent to replace all previous settlement agreements. The Plaintiff Intervenors’ 2005 SSA (Doc. No. 515) stated, “[t]his Stipulated Settlement Agreement replaces in its entirety the November 5, 1996 Order entered between the Defendants and Plaintiff Intervenors (# 256).” Id. at 2. Plaintiffs’ 2005 SSA stated, “[t]his Stipulated Settlement Agreement supersedes all previous Orders which pertain to Plaintiffs and Defendants.” Doc. No. 516 at 7.
Plaintiff and Plaintiff Intervenors assert that the County’s novation argument disregards an earlier finding by this Court in 2010 that, despite the rescission of the 2005 SSAs, Plaintiffs’ and Plaintiff Intervenors’ status as prevailing parties was unchanged, and they were entitled to an award of attorney’s fees. See MEMORANDUM OPINION AND ORDER SETTING HOURLY RATES FOR PLAINTIFFS’ ATTORNEYS ON WHICH PAYMENT OF FEES CAN BE
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BASED (Doc. No. 813) at 10-11 (stating that despite rescission, Plaintiffs and Plaintiff Intervenors were entitled to attorney’s fees as prevailing parties).
Plaintiffs and Plaintiff Intervenors further contend that the pre-2005 settlement agreements adopted by the Court as remedial orders are not governed solely by contract law. Although contract law governs the enforcement of settlement agreements and the meaning of their terms, it is Rule 60(b) that governs whether an order adopting a settlement agreement should be set aside or modified. Settlement agreements incorporated into court orders require a parallel analysis: one which applies contract principles and one which applies doctrines for vacating court orders adopting settlement agreements, i.e. consent decrees. In EEOC v. Safeway Stores, Inc., 611 F.2d 795 (10th Cir. 1979) the Tenth Circuit explained:
There are two channels through which a consent decree may later be modified. Rule 60(b) allows for relief from a final judgment, order or proceeding upon a showing that “the judgment is void,” that “it is no longer equitable that the judgment should have prospective application,” or for “any other reason justifying relief.” Fed. R. Civ. P. 60(b)(4), (5), (6). In addition, a court of equity has continuing jurisdiction to modify a decree upon changed circumstances, even if the decree was entered by consent. United States v. Swift & Co., 286 U.S. 106 (1932). However, a court’s power to modify is not to be lightly exercised to change the settled terms of a consent decree. Id. at 798-99. A consent decree “has the same force and effect for 60(b) purposes as a judgment on the merits following trial.” Zimmerman v. Quinn, 744 F.2d 81, 82 (10th Cir. 1984).
In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), the United States Supreme Court explained,
A consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in and be enforceable as a judicial decree that is subject to the rules generally applicable to other judgments and decrees.
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Id. at 378. The Plaintiffs and Plaintiff Intervenors convincingly argue that the County cannot disregard the orders entered prior to the 2005 SSAs unless the County meets the burden imposed under Rule 60(b). The County contends that under Rule 60(b)(5) a consent decree can be set aside “when it is no longer equitable that the judgment should have prospective application.” Id. at 383. However, this rule requires the County to show “a significant change in circumstances warrants a revision of the decree.” Id. See also Zimmerman, 744 F.2d at 82 (stating that the Tenth Circuit requires a strong showing of changed circumstances before a stipulated judgment may be modified under Rule 60(b)). The County has failed to show that it is no longer equitable to apply the pre-2005 remedial orders to the MDC, an argument that failed in 2003 as well.
Given the existence of remedial orders, the County has failed to convince the Court that a trial is necessary to conclude this litigation. The 2005 SSAs were not novations, but were settlement agreements incorporated into Court orders containing specific findings and conclusions that are enforceable as to the County’s operation of the MDC. The 1996 PLRA Order, the 1997 Judgment, and the 2013 Stipulated Orders cannot be ignored or cast aside without a showing under Rule 60(b) that it is no longer equitable to apply those orders to the County’s operation of the MDC. Rufo, 502 U.S. at 383. The County has not made that showing.
3. The Tenth Circuit’s statements in its 2011 ruling are not binding
Next, the County points to a 2011 opinion issued by the Tenth Circuit Court of Appeals that the County contends supports its argument that a trial should be held. In that ruling, the Tenth Circuit dismissed the County’s appeal of the March 31, 2009 Order, which allowed rescission of the 2005 SSAs, because the March 31, 2009 Order was not a final appealable order. See McClendon v. City of Albuquerque, 630 F.3d 1288, 1293 n. 1 (10th Cir. 2011) (ruling that
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order withdrawing approval of a class action settlement agreement did not qualify as a “final decision” and the court lacked jurisdiction to review the order). The County argues that, although the Tenth Circuit dismissed the appeal for lack of a reviewable final order, the Tenth Circuit also expressed an opinion that the March 31, 2009 Order “. . . simply presses the reset button, vacates any prior final decision, and marks the case for renewed litigation.” Id. at 1290 (emphasis added). According to the County, the Tenth Circuit essentially ruled that the March 31, 2009 Order vacated any prior final decision, including the 1996 PLRA Order and the 1997 Judgment. In the Tenth Circuit, contrary to the County’s current position, the County argued that the March 31, 2009 Order was final because prior orders in the case, particularly the 2005 SSAs and the 1997 Judgment, were final decisions. The Tenth Circuit rejected that argument: “. . . every post-judgment decision must be assessed on its own terms to determine whether it is a final decision amenable to appeal. . . . [and] while it is surely true that many post-judgment orders qualify as final decisions on their own terms, not every post-judgment order does.” Id. at 1293. In this statement, the Tenth Circuit correctly characterized the case as “post-judgment.” More importantly, the Tenth Circuit’s statement that the case was reset by the March 31, 2009 Order is not a binding determination that the case is back at the pre-trial stage. The only issue addressed by the Tenth Circuit in its 2011 opinion was whether it had jurisdiction to review the March 31, 2009 Order:
The defendants’ arguments before us thus aren’t aimed at attacking any final judgment. Just the opposite, in fact: the defendants seek the benefit of those putative final judgments, challenging only the March 31, 2009 order that effectively undid them. So it is that, when assessing our authority to hear this appeal, our focus naturally turns, as it must, to the district court order that the defendants’ appeal seeks to attack, not other orders the appeal doesn’t seek to upset. Id. (emphasis in original). In this statement, the Tenth Circuit properly limited its focus to the March 31, 2009 Order and refused to analyze the nature of the 2005 SSAs and the previous
26

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remedial orders and judgment. Consequently, any statements by the Tenth Circuit about the nature of those orders and judgment were for the purpose of contrasting them with the March 31, 2009 Order. Hence, the statements made by the Tenth Circuit related to resetting the case were merely dicta. Dicta are “statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand.” See Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995) (quoting Black's Law Dictionary 454 (6th ed. 1990)). Lower courts are not bound by dicta from appellate decisions. Bates v. Dep’t of Corr. State of Kan., 81 F.3d 1008, 1011 (10th Cir. 1996). Once the Tenth Circuit concluded that it had no jurisdiction to consider the March 31, 2009 Order because it was not a final appealable order, the court’s statements about previous orders carried no weight of authority. Cf. In re Dep’t of Energy Stripper Well Litigation, 206 F.3d 1345, 1353 (10th Cir. 2000) (noting that once the district court decided that it lacked jurisdiction over the matter, its discussion of other grounds for dismissal was dicta). The Tenth Circuit’s holding was limited to its decision not to review the March 31, 2009 Order because it was not a final appealable order. The Tenth Circuit’s comments regarding the effect of the rescission of the 2005 SSAs on the future of this litigation are not binding on this Court.
B. Application of the PLRA Order and 1997 Judgment to the MDC
The County maintains that even if the 1996 PLRA Order, the 1997 Judgment, and the subsequent orders survived the rescission of the 2005 SSAs, the specific provisions of those orders and the judgment cannot be equitably and practically applied to the MDC. The County outlines each provision that is incompatible to the conditions at MDC, such as specific population caps and the prohibition against housing inmates in holding cells inside the old district courthouse, which is no longer used as a courthouse. It is obvious to the Court that
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certain provisions in the previous orders cannot be directly applied to the MDC. But the County fails to convince the Court that this incompatibility means that the case is rewound to the time prior to the parties’ 1995 decision to settle instead of litigate. Early in the case, the parties chose to “save themselves the time, expense, and inevitable risk of litigation,” and the later rescission of the 2005 SSAs cannot erase the consequences of that early choice. See Cooper v. Noble, 33 F.3d at 545 (affirming a ruling that, even after a new jail was constructed, government officials failed to show significant changes in fact or law so as to set aside a consent decree governing old jail facilities).
The County maintains that it is inequitable to allow the Plaintiffs and Plaintiff Intervenors to have the benefit of previous remedial orders when they did not strictly follow those orders after the 2009 rescission of the 2005 SSAs. The County points out that under the 1996 Order, the parties were required to mediate all disputes prior to taking them to the Court for resolution, yet Plaintiffs and Plaintiff Intervenors have not asked for mediation of the many disputes since 2009. The County also contends that Plaintiffs and Plaintiff Intervenors have not mentioned the PLRA Order and the 1997 Judgment in filings since April 2009. In addition, the Plaintiffs and Plaintiff Intervenors moved for the appointment of the same three experts appointed under the 2005 SSAs, they asked the Court to have the experts evaluate and monitor the MDC under the standards of the 2005 SSAs, and they asked for improvements in conditions not mentioned in the PLRA Order and the 1996 Order, such as out-of-cell time, inmate violence, use of force, and improvement of grievance procedures.
First, the 1996 Order under its express terms does not apply to the MDC; therefore, the Plaintiff Intervenors’ failure to seek enforcement of its provisions is irrelevant. More importantly, since the 2009 rescission of the 2005 SSAs, Plaintiffs and Plaintiff Intervenors have
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maintained that this case is in its post-judgment stage, and they have specifically argued in written pleadings and orally in court that there are “extant” orders governing this case despite the rescission of the 2005 SSAs. More significant, after the rescission the parties have focused on settlement and improving and monitoring conditions at the MDC, and the Court will not sweep away those efforts.
C. Reformation of the PLRA Order The County contends that to make the outmoded 1996 PLRA Order and the 1997 Judgment apply to the MDC, they would have to be wholly rewritten. The Plaintiffs and Plaintiff Intervenors contend that these orders can be applied to the MDC with minor revisions. However, neither side has moved to reform those orders. The County argues that since significant changes to the PLRA Order and the 1997 Judgment are necessary, the Court should wipe the settlement slate clean and hold a trial on the original allegations that the County is operating an unconstitutional jail. However, the County has failed to show that the orders are unenforceable or that the orders must be set aside under Rule 60(b). Even though the long history of settlement and remedial orders has failed to lead to a definitive conclusion of this case, unquestionably conditions at the MDC have been improving and are on a path of continued improvement. The answer is not to erase the agreements and orders that brought about the improvements, especially the 2013 Stipulated Orders, which led to reductions in the MDC population with consequent improved conditions and better practices at the MDC. IT IS ORDERED that the COUNTY DEFENDANT’S MOTION FOR TRIAL ON THE
29

Case 6:95-cv-00024-JAP-KBM Document 1132 Filed 04/21/14 Page 30 of 30 MERITS (Doc. No. 1099) is denied.
SENIOR UNITED STATES DISTRICT JUDGE
30

 
 Case 6:95-cv-00024-JAP-KBM Document 1387 Filed 12/11/19 Page 1 of 3

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

JIMMY (BILLY) McCLENDON, et al., Plaintiffs,
vs. CITY OF ALBUQUERQUE, et al.,
Defendants,

Civ. No. 95-24 JAP/KBM

vs.
E.M., R.L., W.A., D.J., P.S., and N.W. on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

ORDER On November 5, 2011, Defendants City of Albuquerque et al. (Defendants) filed DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’ MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #5 (Doc. 1381) (Motion). Defendants’ Motion requests that the Court find Defendants in initial substantial compliance with Domain #5, Population Management (Domain #5), as of September 18, 2018. Defendants ask the Court to find that the Defendants’ self-monitoring plan for Domain #5 is adequate and to set a six (6) month self-monitoring period to begin from the date of the order the Court enters on Defendants’ Motion. On November 19, 2011, Plaintiff Jimmy (Billy) McClendon et al. and PlaintiffIntervenors, E.M., R.L., W.A., D.J., P.S., and N.W. on behalf of themselves and all others similarly situated (jointly, Plaintiffs) filed PLAINTIFF AND PLAINTIFF INTERVERNORS’

Case 6:95-cv-00024-JAP-KBM Document 1387 Filed 12/11/19 Page 2 of 3
JOINT RESPONSE TO DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’ MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #5 (Doc. 1384) (Response). In their Response, Plaintiffs agree that Defendants are in substantial compliance with Domain #5 and that Defendants’ initial substantial compliance began on September 18, 2018, but “Plaintiffs believe that six (6) months is an insufficient period of time for Defendants to demonstrate consistent, sustained compliance through self-monitoring.” Response (Doc. 1384) at p. 3. Plaintiffs name some inadequacies in Defendants’ written Community Custody Program as one of the reasons why Plaintiffs believe a longer self-monitoring period is proper. Plaintiffs ask the Court to find that a period of eighteen (18) months of self-monitoring is most reasonable.
On December 3, 2019, Defendants replied in DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’ REPLY IN SUPPORT OF MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #5 (Doc. 1385) (Reply). In their Reply, Defendants object to Plaintiffs’ request for an eighteen (18) month self-monitoring period and again urge the Court to set a six (6) month selfmonitoring period.
The parties do not oppose a finding that Defendants have reached initial substantial compliance of Domain #5 as of September 18, 2018 and the Court so finds. After reviewing the briefings and consulting with the Jail Operations Expert, Margo Frasier, the Court makes the following added findings:
1) Defendants have shown determined effort to follow the requirements of Domain 5; 2) Jail Operations Expert Margo Frasier has found that the Defendants have made
impressive sustained compliance with the obligations of Domain #5;

Case 6:95-cv-00024-JAP-KBM Document 1387 Filed 12/11/19 Page 3 of 3
3) A period extending through August 31, 2020 for self-monitoring of Domain #5 is appropriate.
IT IS THEREFORE ORDERED THAT: 1) DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’
MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELFMONITORING PERIOD REGARDING DOMAIN #5 (Doc. 1381) is GRANTED; 2) Defendants will self-monitor Domain #5 through August 31, 2020.
SENIOR UNITED STATES DISTRICT JUDGE

 
 Case 6:95-cv-00024-JAP-KBM Document 1395 Filed 02/12/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et al.,

Plaintiff,

vs.

Civ. No. 95-24 JAP/KBM

CITY OF ALBUQUERQUE, et al.,

Defendant,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W. On behalf of themselves and all others similarly situated,

Plaintiff-Intervenors

ORDER On December 23, 2019, Defendants City of Albuquerque, et al. (Defendants) filed DEFENDANT BERNALILLO COUNTY BOARD OF COMISSIONERS’ MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #6 (Doc. No. 1388) (Motion). On January 3, 2020, Plaintiffs Jimmy (Billy) McClendon et al. and Plaintiff Intervenors E.M., R.L., W.A., D.J., P.S., and N.W. (collectively, Plaintiffs) filed an opposing Response in, PLAINTIFF AND PLAINTIFF INTERVENORS’ JOINT RESPONSE TO DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’ MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #6 (Doc. 1389) (Response). On January 6, 2020, Defendants replied in DEFENDANT BERNALILLO COUNTY BOARD OF
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Case 6:95-cv-00024-JAP-KBM Document 1395 Filed 02/12/20 Page 2 of 7
COMMISSIONERS’ REPLY IN SUPPORT OF MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #6 (Doc. 1390) (Reply).
Defendants’ Motion asks the Court to find that Defendants were in initial substantial compliance with Domain 6 as of June 27, 2019 and to set a self-monitoring period for Domain 6 that terminates on December 28, 2020. Plaintiffs agree that Defendants are in initial substantial compliance with Domain 6, but they object to Defendants’ suggested termination date, arguing that as a condition precedent to disengagement, Defendants should undergo an eighteen month self-monitoring period that would obligate them to submit six quarterly self-monitoring reports. After reviewing the briefs and the reports of Jail Operations Expert Margo Frasier (Frasier), the Court will grant Defendants’ Motion.
THE SETTLEMENT AGREEMENT On May 26, 2016, the parties entered into a Settlement Agreement (SA). SA (Doc. 12221). The Court approved the SA on June 27, 2016.1 The SA seeks to establish “improvements in the operation of the County jail system” and to create a system that will assure that those improvements are meaningful. Id. ¶ 1(A). Toward that end, the SA pursues a durable remedy for the class and sub-class. Id. at 1. Under the terms of the SA, there are eight domains. Id. ¶ 9(A)-(H).2 Each domain has subcategories with criteria. When Defendants “have sufficient evidence to demonstrate
1 MEMORANDUM OPINION AND ORDER GRANTING APPROVAL OF SETTLEMENT AGREEMENT (Doc. 1225). 2 The domains are: Domain 1, Mental Health Services; Domain 2, Medical Services; Domain 3, Group A of Jail Operations; Domain 4, Group B of Jail Operations: Domain 5, Population management; Domain 6, Housing and segregation; Domain 7, Sexual misconduct; Domain 8, Use of force by security staff and internal investigation. SA (Doc. 1222-1) ¶ 9.
2

Case 6:95-cv-00024-JAP-KBM Document 1395 Filed 02/12/20 Page 3 of 7
substantial compliance in a particular domain” they may begin the process of disengagement. The disengagement process has three steps.
First, Defendants must “move the Court for a finding of substantial compliance” based on their determination “that they have sufficient evidence to demonstrate substantial compliance in a particular domain.” Id. ¶ 4(A). “‘[S]ubstantial compliance’ means that Defendants generally are in compliance with the terms of the substantive requirements listed in the [domain’s] CheckOut Audit Agreement[].” Id. ¶ 2(C). The Check Out Audit occurs at the end of the period set for a domain’s sustained compliance.3 Id. ¶ 2(D).
Then, the Court determines “whether the record supports a finding of initial substantial compliance” and if so, “the date upon which initial substantial compliance began.” Id. ¶ 4(B)(C). Once the Court makes that determination, ‘the Court will set a period of self-monitoring for each domain which the Court determines is a sufficient period to reach sustained substantial compliance based on the complexity of the domain, the date when initial substantial compliance began as well as any other factors determined by the Court.” Id. ¶ 5(A). During the selfmonitoring period, the SA requires Defendants to “submit quarterly reports to the expert for that domain, and to counsel for Plaintiff and Plaintiff-Intervenors as to Defendants’ continued substantial compliance with each particular domain.” Id. ¶ 5(C). These quarterly reports must contain information that permits the expert to determine whether during the self-monitoring period the Defendants remained in compliance with each of the domain’s subcategories. Id.
3 Plaintiffs state that “sustained compliance period” is a term “not contemplated by the Settlement Agreement and the Court is not asked to set a period of sustained compliance.” (Response p. 3). The term “sustained compliance” is defined in the definitions section of the SA as “[s]ubstantial compliance for a period of time determined sufficient by the Court to demonstrate that a durable remedy is in place.” See SA (Doc. 1222-1) ¶ 2(C)(2) (emphasis added). The Plaintiff’s self-monitoring reports and the Check-Out Audits provide the record through which a Court may evaluate whether during the self-monitoring period a domain has remained in “sustained substantial compliance” Id. ¶ 8.
3

Case 6:95-cv-00024-JAP-KBM Document 1395 Filed 02/12/20 Page 4 of 7
Second, at the end of a domain’s self-monitoring period, the Court’s experts conduct a Check-Out Audit and determine whether under the terms of the Check-Out Audit the Defendants are in compliance, partial compliance, or non-compliance. Id. ¶ 6. As part of this process, “the Court’s experts will submit proposed findings of fact with respect to each subcategory of the applicable Check-Out Audit Agreements.” Id. ¶ 6(D).
At the third step, the Court reviews Defendants’ self-monitoring reports and the expert’s proposed findings from the Check-Out Audit and “determines whether the record supports a finding of substantial compliance as to [the] domain.” Id. ¶ 8. “[A]fter the Court makes a finding of sustained compliance as to a particular domain as listed above, all provisions of extant orders related to that domain will be vacated.” Id. ¶ 10. If, at the last two steps, Defendants have not met their obligations or the Court’s experts find evidence of “backsliding” in Defendant’s performance, then Defendants must repeat those steps. See id. ¶ 2(A) (defining “backsliding”); ¶ 7 (if, at the second step, a Check-Out Audit shows that Defendants have not remained in substantial compliance, Defendants have 90 days to cure deficiency); ¶ 8 (providing that if, at the third step, the Court finds that there is no sustained substantial compliance, the Court will set an additional self-monitoring period).
ANALYSIS Domain 6 encompasses housing and segregation and has six subcategories. Defendants are at its first disengagement step. Plaintiffs agree that since September 28, 2018, Defendants have substantially complied with five of Domain 6’s components. On June 27, 2019, Frasier found Defendants in substantial compliance with the sixth component. In December 2019, Frasier approved Defendants’ self-monitoring plan. Plaintiffs agree that Defendants are ready to move into the self-monitoring period.
4

Case 6:95-cv-00024-JAP-KBM Document 1395 Filed 02/12/20 Page 5 of 7
Defendants and Plaintiffs disagree on a single issue: the length of the self-monitoring period. Defendants argue that the self-monitoring period should retroactively begin on June 27, 2019 and end on December 28, 2020. In opposition, Plaintiffs argue that the self-monitoring period should begin on a date that would permit them to have six quarterly self-monitoring reports. Six quarterly reports would require an eighteen-month self-monitoring period. For Plaintiffs to receive those six quarterly reports, Defendants’ self-monitoring period would have to begin approximately three months before this Court’s order and continue through spring of 2021.
Plaintiffs point to nothing in the language of the SA that requires an eighteen-month selfmonitoring period or six quarterly self-monitoring reports. Rather, Plaintiffs’ argument relies on an implied assertion that in the absence of six quarterly reports, Defendants cannot demonstrate sustained substantial compliance for the subcategories in Domain 6. Plaintiffs buttress this argument with an observation that Defendants have not demonstrated compliance with all of Domain 6’s subcategories for the same length of time that Defendants demonstrated compliance with the subcategories of Domain 5 before entering a self-monitoring period. Plaintiffs also assert that the Court should maintain a distinction between an initial compliance period and a self-monitoring period. According to the Plaintiffs, Defendants should not be credited with “self-monitoring” time before the entry of a Court order officially beginning a self-monitoring period. With this argument, Plaintiffs emphasize a “distinction between maintaining compliance while under monitoring by the Court’s expert and Plaintiff’s counsel and doing so while under self-monitoring.” Response (Doc. 1389) at 4.
Defendants counter that the SA focuses on demonstrated “substantial compliance” only as evidence of a durable remedy. Toward that end, the SA does not set a duration for the self-
5

Case 6:95-cv-00024-JAP-KBM Document 1395 Filed 02/12/20 Page 6 of 7
monitoring period but relies on the Court’s judgment as to the length needed to show sustained compliance based on its analysis of various factors. Defendants assert that this approach is consistent with the Court’s findings as to Domain 5 where the Court set an end date for compliance instead of requiring a specific period to demonstrate compliance. Defendants urge the Court to consider that it has been over six months since Frasier found Domain 6 in initial substantial compliance. They argue that it would be unfair and inequitable to ignore this sixmonth plus period, particularly, since in the interim, full monitoring has continued. Full monitoring, Defendants assert, is more “burdensome on county Defendants and grants greater access to Plaintiff’s counsel.” Reply (Doc. 1390) at 5. Finally, Defendants argue that the selfmonitoring period and the accompanying reports are meant only for the court expert’s evaluation and should not be an end in themselves.
As an initial matter, the Court observes that the quarterly self-monitoring reports benefit both the Court’s experts and the Plaintiffs. The SA requires Defendants to give these reports to Plaintiffs’ counsel and to compensate them for reviewing and providing feedback on the reports. SA (Doc. 122-1) ¶ D. But the SA does not establish a fixed number of quarterly reports for each domain’s self-monitoring period.
Plaintiffs have not demonstrated that six quarterly reports are necessary to demonstrate sustained compliance with Domain 6. Significantly, since June 27, 2019, Plaintiffs have had full access to Defendants’ documentation regarding Defendants’ compliance. Plaintiffs have not identified any ongoing compliance problems. Moreover, Plaintiffs admit that Domain 6 is not complex. Notably, the self-monitoring period is less onerous than what precedes it. Finally, while Plaintiffs will not receive 6 quarterly reports, in effect, Defendants will undergo the 18-
6

Case 6:95-cv-00024-JAP-KBM Document 1395 Filed 02/12/20 Page 7 of 7 month self-monitoring period the Plaintiffs request as the Court will retroactively find that the self-monitoring period began on June 27, 2019.
IT IS ORDERED THAT: 1. DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’
MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELFMONITORING PERIOD REGARDING DOMAIN #6 (Doc. 1388) is GRANTED; 2. Defendants achieved initial substantial compliance with Domain 6 on June 27, 2019; 3. The self-monitoring period for Domain 6 began on June 27, 2019; 4. The self-monitoring period for Domain 6 concludes on December 31, 2020.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
7

 
 Case 6:95-cv-00024-JAP-KBM Document 1397 Filed 02/19/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) MCCLENDON, et al.,

Plaintiff,

vs.

Civ. No. 95-24 JAP/KBM

CITY OF ALBUQUERQUE, et al.,

Defendant,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W. On behalf of themselves and all others similarly situated,

Plaintiff-Intervenors

STIPULATED ORDER GRANTING DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS’
UNOPPOSED MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #3
THIS MATTER, came before the Court on Defendant Bernalillo County’s Unopposed Motion for
Finding of Initial Substantial Compliance and to Set Self-Monitoring Period Regarding Domain #3. The
Court having reviewed the pleading, considered that all parties concur in the relief requested, and being
otherwise fully advised on the premises, finds the Motion is well-taken and will be GRANTED.
IT IS ORDERED THAT:
1. Defendant Bernalillo County’s Unopposed Motion for Finding of Initial Substantial
Compliance and to Set Self-Monitoring Period Regarding Domain #3 is GRANTED.

Case 6:95-cv-00024-JAP-KBM Document 1397 Filed 02/19/20 Page 2 of 2
2. Defendants achieved initial substantial compliance with Domain #3 as of July 1, 2019; and
3. The self-monitoring period for Domain #3 will conclude on August 19, 2021, eighteen calendar months from the entry of this Order.
______________________________________ SENIOR UNITED STATES DISTRICT JUDGE

 
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 Case 6:95-cv-00024-JAP-KBM Document 813 Filed 09/01/10 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JIMMY MCCLENDON, et al.

Plaintiffs,

vs.

CIV. 95-0024 JP/ACT

CITY OF ALBUQUERQUE, et al.

Defendants,

vs.

E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and others similarly situated,

Plaintiff-Intervenors.

MEMORANDUM OPINION AND ORDER SETTING HOURLY RATES FOR PLAINTIFFS’ ATTORNEYS ON WHICH PAYMENT OF FEES CAN BE BASED

On April 15, 2010, Plaintiffs filed Plaintiffs’ Motion For An Order Setting Hourly Rates

For Plaintiffs’ Attorneys And Their Staff On Which The Payment Of Fees Can Be Based (Doc.

No. 775) (“Plaintiffs’ Motion”). Plaintiffs’ Motion asks the Court to set hourly attorneys’ fee

rates to compensate Plaintiffs’ attorneys for work performed from April 9, 2009 to the present.

Plaintiffs assert that they are entitled to payment of fees as prevailing parties under 42 U.S.C. §

1988 in this civil rights case brought under 42 U.S.C. § 1983. On May 26, 2010, Defendant

Bernalillo County filed Defendant’s Response To Plaintiffs’ Motion For Attorneys Fees (Doc.

No. 786) (“Defendant’s Response”). On June 22, 2010, Plaintiffs filed a Reply brief (Doc. No.

794). A status conference was held on June 21, 2010 at which the parties argued their positions

on the Plaintiffs’ Motion.

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I. Background On January 10, 1995, Plaintiffs filed this lawsuit alleging overcrowding and other unconstitutional conditions of confinement at the Bernalillo County Detention Center (the “BCDC”) located in Albuquerque, New Mexico. The Court certified the Plaintiff class as all persons who were then or in the future “confined in the Bernalillo County Detention center.” On February 16, 1995, Plaintiffs filed a Motion for Preliminary Injunction asking the Court to enjoin overcrowding at BCDC. On August 23, 1995, the Court granted a preliminary injunction and ordered Defendants to reduce the jail population according to a schedule of decreasing population caps. The Court retained jurisdiction to enforce, review and modify its August 1995 Order. (Doc. No. 106.) On September 7, 1995, Plaintiffs and Defendants entered into a settlement agreement approved by the Court. Defendants agreed to convert the preliminary injunction to a permanent injunction and also agreed that the Court would retain jurisdiction to enforce or modify the permanent injunction. On October 26, 1995, Plaintiff-Intervenors, representing a sub-class of prisoners with developmental or mental disabilities or mental illness, joined this case. (Doc. No. 137.) The Court allowed Plaintiff-Intervenors’ to assert claims regarding the following matters: 1) health care; 2) medical assessments (physical and mental); 3) classification; 4) psychiatric services unit (PSU); 5) mental health staffing; 6) overcrowding; and 7) basic accommodation and supplies. Id. On August 15, 1996, the Court granted class certification to Plaintiff-Intervenors. (Doc. No. 237.) On April 26, 1996, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in several titles and sections of U.S.C. including, 18 U.S.C. § 3626;
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42 U.S.C. § 1997e) (the “PLRA”) became law. By its terms, the PLRA applied to all claims for prospective relief including relief granted prior to its enactment. 18 U.S.C. § 3626.
In November 1996, the Court approved a settlement agreement among Plaintiffs, Plaintiff-Intervenors, and Defendants. See Doc. No. 255 (the “PLRA Order”).1 In the PLRA Order, the Court found that “violations of one or more federal rights of BCDC residents ha[d] occurred at BCDC.” Id. at p. 1. The Court also determined that Plaintiffs were entitled to attorneys’ fees, expenses and costs reasonably and necessarily incurred with respect to the litigation in amounts to be determined by the Court. Id. at p. 6.
After a fairness hearing in January 1997, the Court in August 1997, entered the Corrected Order Approving Compromise & Settlement Agreement & Final Judgment Of Dismissal With Prejudice (Doc. No. 289) (the “1997 Order”). In the 1997 Order, the Court found that based on the Court’s inspections of BCDC, the Court’s findings in orders entered in March 1996, other information obtained in status conferences, Defendants’ reports to the Court, the stipulations of the parties, and the entire record of the case, “the violations of one or more federal rights of class and subclass members have occurred at BCDC.” Id. at p. 5. The Court dismissed all claims on the merits, except claims regarding equal protection and access to the courts, in regard to which the Court retained jurisdiction for oversight purposes. Id. at pp. 8-10.
In June 2003, Defendants opened the Metropolitan Detention Center (the “MDC”), a new 2100-bed facility on the west side of Albuquerque. All inmates were transferred from the BCDC to the MDC. After the transfer, counsel for Plaintiffs, Plaintiff-Intervenors and Defendants disagreed on whether the settlement agreements and orders in this case applied to the MDC. On
1 Plaintiff-Intervenors and Defendants also entered into a separate settlement agreement, which was approved by the Court. See Doc. No. 256 (the “1996 Order”)
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June 27, 2003, Plaintiffs and Plaintiff-Intervenors filed the Joint Motion for a Temporary Restraining Order and Preliminary Injunction Enjoining the Defendants from Restricting Class and Sub Class Counsel From Having Access to the MDC (Doc. No. 409).
Following a hearing, the Court issued a Memorandum Opinion and Order on July 11, 2003 (the “July 2003 Order”) and ruled that the Court had continuing jurisdiction to monitor the conditions of confinement at the MDC as one of the facilities in the Bernalillo County jail system. McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250, 1255 (D.N.M. 2003); Doc. No. 416 at pp. 11, 15. The Court concluded that the inmates who were transferred to the MDC did not lose their status as class or sub-class members and that all previous Orders remained in effect and applied to class and sub-class members wherever they were incarcerated. Id. Specifically, the Court found that in their settlement agreements the parties intended the term BCDC to apply to the “jail system as a whole.” Id. The Court retained continuing jurisdiction to review, modify and enforce the previous settlement agreements and orders. Id. at 1257.
On October 10, 2003, Defendants filed their Motion to Vacate Settlement Agreement Between Plaintiff-Intervenors and Defendants (Doc. No. 421) asserting that the previous settlement agreements and orders did not apply to the MDC and that the Court did not have jurisdiction to issue prospective injunctive relief for inmates at the MDC. In 2004, the Plaintiffs and Defendants entered into a new stipulated settlement agreement governing conditions at the MDC, which the Court approved in June 2005 (the “2005 SSA”) (Doc. No. 515). Also, in 2004, the Plaintiff-Intervenors and Defendants entered into a new stipulated settlement agreement governing conditions and services at the MDC, which the Court approved in June 2005 (the “Plaintiff-Intervenors’ 2005 SSA”) (Doc. No. 514).
In the 2005 SSA, the parties agreed to use independent auditors, who were experts in 4

Case 6:95-cv-00024-JAP-KBM Document 813 Filed 09/01/10 Page 5 of 15
corrections, instead of attorneys to determine Defendants’ compliance with certain standards, which were outlined in 15 enumerated areas such as population management and inmate safety. The 2005 SSA expressly superceded “all previous Orders which pertain to Plaintiffs and Defendants.” Id. at p. 7. The 2005 SSA contained provisions requiring Defendants to compensate Plaintiffs’ counsel and their legal staff for monitoring activities provided that they did not exceed a certain number of hours per month. Under the 2005 SSA, Plaintiffs’ counsel agreed to be compensated at $135.00 per hour. Id. at p. 6.
In 2007, a dispute arose over conditions at the BCDC, which had been renovated and renamed the Regional Correction Center (“RCC”). In June 2007, Plaintiffs and PlaintiffIntervenors filed motions for access to alleged class and sub-class members housed in the RCC. Plaintiffs and Plaintiff-Intervenors asserted that the County did not fully disclose its execution of an Intergovernmental Agreement (“IGA”) with the federal government to house federal prisoners at the RCC.2 Plaintiffs and Plaintiff-Intervenors argued that inmates in the RCC were potential class and sub-class members by virtue of the County’s contractual rights under the IGA; in other words, the RCC was part of the Bernalillo County jail system as a whole and subject to the orders in this case.
The Court issued an Order to Show Cause directing Defendants to show cause why the Court should not withdraw its approval of the 2005 SSA and the Plaintiff-Intervenors’ 2005 SSA because material information had been withheld from the Court. (Doc. No. 600). In March 2009, the Court issued an order (the “March 2009 Order”) in which the Court withdrew its approval of
2 At one time, the County housed overflow County inmates at the RCC, but does not currently house any of its inmates at the RCC. At this time, only federal detainees are housed at the RCC.
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the 2005 SSA and the Plaintiff-Intervenors’ 2005 SSA and allowed the Plaintiffs and the Plaintiff-Intervenors the option to rescind their respective 2005 SSAs. See Doc. Nos. 700, 701. On April 9, 2009, both Plaintiffs and Plaintiff-Intervenors rescinded their respective 2005 SSAs.
Defendants appealed the March 2009 Order allowing Plaintiffs and Plaintiff-Intervenors to rescind their 2005 SSAs, and the appeal is pending before the Tenth Circuit Court of Appeals. McClendon v. City of Albuquerque et al., Tenth Cir. Case No. 09-2095.
II. Plaintiffs’ Motion Partially Settled The parties have been negotiating the number of reasonable and necessary hours for which Defendant will compensate Plaintiffs’ attorneys for services rendered from April 9, 2009, the date upon which Plaintiffs’ rescinded the 2005 SSA, to the present. In the Response, the Defendant offered to pay paralegals at the hourly rate of $75.00; and in the Reply, Plaintiffs accepted Defendant’s offer. Response at 22; Reply at 11. The Defendant has also agreed to compensate Plaintiffs’ attorneys and their employees for travel time at the hourly rate set by the Court. Reply at 11. In addition, Defendant has agreed to pay Mr. Donatelli, lead counsel for Plaintiffs, and Mr. Davis, Plaintiffs’ fee counsel, the maximum hourly rate allowable under the Prison Litigation Reform Act (PLRA). Response at 23.3 The Court interprets Defendant’s statement in Defendant’s Response to mean that Defendant has agreed to compensate Mr. Donatelli and Mr. Davis at the maximum PLRA rate of 167.50 per hour for work performed before January 1, 2010 and $187.50 per hour for work performed after January 1, 2010, regardless of how the Tenth Circuit rules on the pending appeal.
3 “Defendant is willing to compensate Mr. Donatelli and fee counsel [Mr. Davis] at the maximum rate permitted under the PLRA.” Response at 23 (emphasis added).
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III. Plaintiffs’ Current Compensation In their Reply brief and in a Letter to Judge Parker from Mr. Davis dated June 22, 2010, Plaintiffs state that Defendant Bernalillo County (“Defendant”) has paid Plaintiffs’ attorneys, except Mr. Davis, for all undisputed work from April 9, 2009 to the present at a rate of $135.00 per hour. Plaintiffs have agreed that the 2005 SSA established a rate of $135.00 per hour for all attorneys engaged in monitoring activities. See 2005 SSA (Doc. No. 480) at 6. Nowhere in Plaintiffs’ briefing do they suggest that their attorneys should be compensated at more than $135.00 per hour from the date of the 2005 SSA to April 9, 2009, the date of the rescission. Implicit in this is Plaintiffs’ agreement that if the Tenth Circuit Court of Appeals reverses the March 2009 Order, 1) Plaintiffs’ rescission of the 2005 SSA will be unenforceable, 2) the 2005 SSA will be revived, 3) Plaintiffs’ attorneys’ rate of compensation will be governed by the 2005 SSA, and 4) the hourly rate of $135.00 will apply. The Motion asks the Court to set hourly rates for all of Plaintiffs’ attorneys, other than Mr. Donatelli and Mr. Davis, for services rendered from April 9, 2009 to the present. However, the Motion does not expressly ask the Court to order payment of the fees based on those rates at this time. The Motion also fails to address the effect of the appeal and the possibility that the 2005 SSA will be revived. As explained below, in this Memorandum Opinion and Order, the Court will only establish the hourly rates at which all of Plaintiffs’ attorneys are to be compensated if Plaintiffs prevail on appeal. If the Tenth Circuit affirms the March 2009 Order, Plaintiffs may then file a motion for payment at the higher rates set in this Memorandum Opinion and Order. On the other hand, if the Tenth Circuit Court of Appeals reverses the March 2009 Order and the 2005 SSA becomes enforceable, Plaintiffs’ attorneys will be bound by the 2005 SSA, which prescribes a rate of $135.00 per hour for all counsel, other than Mr. Donatelli,
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who engage in monitoring activities.4 As discussed above, Defendant has agreed in its Response
to compensate Mr. Donatelli and Mr. Davis at the maximum PLRA rates regardless of the ruling
by the Tenth Circuit.
Specifically, Plaintiffs ask for an order setting the maximum PLRA rate of $169.50 per
hour for work performed by Mr. Ives, by Ms. Schmidt-Nowara, and by Mr. Urias from April 9,
2009 to December 31, 2009 and $187.50 per hour for work performed by these attorneys from
January 1, 2010 to the present. Because Ms. Freedman-Smith represented Plaintiffs only in
2009, Plaintiffs ask the Court to set the maximum PLRA rate of $169.50 per hour for her work.
Plaintiffs ask the Court to set an hourly rate for Mr. Coberly at his standard hourly rate of
$160.00 per hour for all work performed from April 9, 2009 to the present.
IV. Discussion
The PLRA provides for the award of attorneys’ fees:
(d) Attorney's fees (1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that-(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and (B)(I) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. . . .
4 The 2005 SSA states, . . . if any items listed above have not met the requirements of this Stipulated Settlement Agreement, Plaintiffs’ lawyers and paralegals will continue to be limited to the hourly rates and number of hours described above for monitoring activities, unless modified in writing between Plaintiffs and Defendants. 2005 SSA at 6. The rates at which Plaintiffs’ attorneys and paralegals agreed to be paid were $135.00 per hour (attorneys) and $65.00 per hour (paralegals). Id.
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(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel. 42 U.S.C. § 1997e(d)(1) and (3). Section 1988 provides, In any action or proceeding to enforce a provision of sections . . . 1983 of this title, . . . the court, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee as part of the costs[.] 42 U.S.C. § 1988. Under the PLRA, a prevailing party must show that his attorneys’ fees were directly and reasonably incurred in proving a constitutional violation or in enforcing the granted relief. 42 U.S.C. § 1997e(d)(1). A plaintiff is a prevailing party if the court grants relief on the merits of the plaintiff’s claim or if the court-ordered consent decree “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). When a lawsuit serves as a catalyst for favorable action by defendant, such as taking remedial action because of the suit, plaintiff is a prevailing party. Tyler v. City of Manhattan, KS, 866 F. Supp. 500, 501 (D. Kan. 1994). In determining the proper fees to award “[t]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998). In cases subject to the PLRA, the hourly rate is capped at an amount that is 150% of the hourly rate paid to court appointed counsel in criminal cases (the “CJA rate”). In 2009, 150% of the CJA rate was $169.50 per hour, which was the maximum PLRA rate. On January 1, 2010, the CJA rate was increased; therefore, the maximum PLRA rate was increased to $187.50 per hour. 42
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U.S.C. § 1997e(d)(3) (PLRA); 18 U.S.C. § 3006A(d)(1) (CJA). In its Response, Defendant argues that because Plaintiffs rescinded the 2005 SSA,
Plaintiffs should no longer be considered prevailing parties. Defendant asks the Court to defer ruling on Plaintiffs’ Motion until the Tenth Circuit Court of Appeals decides whether to affirm the March 2009 Order, which allowed the Plaintiffs to rescind the 2005 SSA. Alternatively, Defendant asks the Court to set the hourly rates for Plaintiffs’ attorneys, except Mr. Donatelli and Mr. Davis, at a rate below the PLRA cap rate because the attorneys have less experience in prison litigation than Mr. Donatelli.
A. Plaintiffs’ Status As Prevailing Parties Defendant argues that when the Plaintiffs rescinded the 2005 SSA, they either lost their status as prevailing parties or Plaintiffs’ status became ambiguous. Defendant reasons that since the 2005 SSA expressly superceded all previous orders and agreements, it was the only enforcement tool in the case and the only basis for Plaintiffs’ prevailing party status. Defendant asserts that once the 2005 SSA was rescinded, the parties were placed back at the beginning of the case. Defendant, however, misunderstands the effect of Plaintiffs’ rescission of the 2005 SSA. Settlement agreements are contracts governed by basic contract law. Heuser v. Kephart, 215 F.3d 1186, 1190 (10th Cir. 2000) (noting that courts disagree on whether federal common law or state law governs settlement agreements in Title VII cases, but noting also that New Mexico contract law and federal common contract law do not differ). The rescission of a contract returns the parties to their positions before the contract. Baker v. Penn Mut. Life Ins. Co., 788 F.2d 650, 663 (10th Cir. 1986). While the 2005 SSA expressly stated that it superceded all previous orders, the rescission of the 2005 SSA returned the parties to their positions prior to
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the 2005 SSA. Consequently, the previous orders that existed as of the time the parties entered into the 2005 SSA are no longer superceded. Prior to the 2005 SSA, the Court had ruled that constitutional violations existed in the BCDC. See 1997 Order at p. 5. More importantly, in the July 2003 Order, the Court held that all of its previous orders were applicable to the MDC. Therefore, even without the 2005 SSA, Plaintiffs remain prevailing parties in this litigation because the previous orders materially altered the legal relationship between Plaintiffs and Defendant by modifying Defendant’s behavior in a way that directly benefitted the Plaintiffs. Farrar, 506 U.S. at 111-12.
Alternatively, Defendant asks the Court to defer ruling on Plaintiffs’ request for an order setting hourly rates for Plaintiffs’ attorneys until after the Tenth Circuit Court of Appeals has determined whether the Court erred in allowing the rescission of the 2005 SSA. Defendant correctly notes that the 2005 SSA established an hourly rate of $135.00 for attorneys, which is below the current maximum PLRA rate. With the exception of Mr. Davis, Defendant has continued to compensate Plaintiffs’ attorneys, including Mr. Donatelli, at the rate of $135.00 per hour despite Plaintiffs’ rescission of the 2005 SSA and the Defendant’s consequent appeal. See Letter dated June 22, 2010 from Mr. Davis to Judge Parker submitted to the Court after the June 21, 2010 hearing. If the Tenth Circuit affirms the March 2009 Order that allowed the rescission of the 2005 SSA, the 2005 SSA along with its prescribed rate of $135.00 per hour will not be enforceable. On the other hand, if the Tenth Circuit Court of Appeals reverses the March 2009 Order that allowed rescission, it would appear that the attorneys’ fees rate of $135.00 per hour established in the 2005 SSA would continue to apply to all counsel except Mr. Davis and Mr. Donatelli, who Defendant, in its Response, has agreed to pay at the maximum PLRA rates. Nevertheless, in either situation, Plaintiffs would remain the prevailing parties, and the amounts
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Plaintiffs’ attorneys are to be compensated based on this Memorandum Opinion and Order may be subject to later adjustments.
B. Conduct of Plaintiffs’ Legal Team Defendant next argues that the attorneys for Plaintiffs violated the policies encompassed within the PLRA and § 1988. Defendant argues that the legislative intent of the PLRA cap on fees was to curb frivolous litigation and prevent undue strain on taxpayers. Skinner v. Uphoff, 324 F. Supp. 2d 1278, 1282 (D. Wyo. 2004). Defendant contends that it was close to achieving compliance with the 2005 SSA and that the Plaintiffs’ attorneys unnecessarily prolonged this litigation by attempting to draw into the case inmates housed at the RCC, thereby shifting the focus away from the MDC. According to Defendant, attorneys for Plaintiffs attempted to gain a windfall by dismantling the 2005 SSA and its lower attorneys’ fee rates and limitations on compensable hours. Defendant argues that the Court should not reward Plaintiffs’ attorneys for this behavior with an increased hourly rate. The record in this case does not support Defendant’s position that Plaintiffs intentionally prolonged this litigation in order to generate more fees. This type of challenge is better addressed when determining the reasonable number of hours expended and whether certain work done by Plaintiffs’ counsel benefitted the class or was useful in obtaining the desired results. Defendant’s argument is not applicable to the issue of hourly rates.
C. Fee Rates For Attorneys Other Than Mr. Donatelli and Mr. Davis Defendant argues that with the exception of Mr. Donatelli and Mr. Davis, the attorneys on Plaintiffs’ legal team should not receive the maximum PLRA rate because they do not have as much experience as Mr. Donatelli in civil rights prison litigation. Defendant contends that those attorneys should be compensated at an hourly rate below the maximum PLRA rate.
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However, Defendant did not present any evidence to support Defendant’s proposed rate for each attorney. Nor does Defendant explain how it arrived at its proposed hourly rate for each of the attorneys on Plaintiffs’ legal team.
The PLRA does not provide a scheme for differentiating between the hourly rate charged by attorneys of varying experience levels. Searles v. Van Bebber, 64 F. Supp. 2d 1033, 1036 (D. Kan. 1999), vacated on other grounds, 251 F.3d 869 (10th Cir. 2001). Courts have granted the PLRA maximum rate with little or no consideration of experience. See, e.g., Jackson v. Austin, 267 F. Supp. 2d 1059, 1065 (D. Kan. 2003) (noting that the PLRA rate cap is low relative to market rates of even the most inexperienced counsel); Rodriguez v. Zavaras, 22 F. Supp. 2d 1196, 1202 (D. Colo. 1998) (awarding maximum PLRA rate for all counsel because market rates were higher than the maximum PLRA rates). As stated by the court in Searles, “. . . the maximum allowable rate under the PLRA is so low relative to market rates that counsel would be hard pressed to be so inexperienced as to not deserve the maximum rate.” Searles, 64 F. Supp. 2d at 1036.
Mr. Ives’ standard hourly rate is $275.00, and Ms. Freedman-Smith’s standard hourly rate is $225.00. The other attorneys on Plaintiffs’ legal team, Ms. Schmidt-Nowara and Mr. Urias, charge standard hourly rates in excess of the maximum PLRA rate. Mr. Davis, Plaintiffs’ fee counsel, charges in excess of the PLRA maximum rate. The only exception is Mr. Coberly, whose hourly rate of $160.00 is below the maximum PLRA rate. Thus, with one exception, Plaintiffs’ attorneys charge a standard hourly rate that is considerably higher than the PLRA maximum hourly rate.
The Court finds that each attorney on Plaintiffs’ legal team, with the exception of Mr. Coberly, should be compensated at the maximum PLRA hourly rate. Thus, Mr. Ives, Ms.
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Freedman-Smith, Ms. Schmidt-Nowara, and Mr. Urias should be compensated at the maximum PLRA hourly rate applicable at the time their work was performed, which was $167.50 during 2009 and which was increased to $187.50 on January 1, 2010. Mr. Coberly should be compensated at the requested rate of $160.00 per hour.5 As discussed above, Defendant has agreed that Mr. Davis and Mr. Donatelli should be compensated at the maximum PLRA hourly rate of $167.50 for work performed before January 1, 2010 and $187.50 for work performed after January 1, 2010.
IT IS ORDERED that Plaintiffs’ Motion For An Order Setting Hourly Rates For Plaintiffs’ Attorneys And Their Staff On Which The Payment Of Fees Can Be Based (Doc. No. 775) is granted as follows:
1. If the Tenth Circuit Court of Appeals affirms the March 2009 Order, the hourly rates at which Plaintiffs’ attorneys are to be compensated are:
A) Mr. Ives: $169.50 for work performed before January 1, 2010, and $187.50 for work performed after January 1, 2010. B) Ms. Freedman-Smith: $169.50 for work performed before January 1, 2010. C) Ms. Schmidt-Nowara: $169.50 for work performed before January 1, 2010, and $187.50 for work performed after January 1, 2010. D) Mr. Urias: $169.50 for work performed before January 1, 2010, and $187.50 for work performed after January 1, 2010. E) Mr. Coberly: $160.00 for all work. 2. If the Tenth Circuit Court of Appeals reverses the March 2009 Order, the hourly rate
5 Defendant’s request that the Court set limits on the number of Plaintiffs’ attorneys who may work on this case and the number of hours that they may devote to the case is not properly before the Court because the issue was not raised in the Plaintiffs’ Motion. However, if the Tenth Circuit Court of Appeals reverses the March 2009 Order, the 2005 SSA and its limitations on the number of attorney and paralegal hours will be enforceable.
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Case 6:95-cv-00024-JAP-KBM Document 813 Filed 09/01/10 Page 15 of 15 at which Plaintiffs’ attorneys are to be compensated is $135.00 in accordance with the 2005 SSA, except for Mr. Donatelli and Mr. Davis who Defendant has agreed to pay PLRA rates.
3. By agreement set forth in Defendant’s Response, Mr. Donatelli and Mr. Davis are to be compensated at the hourly rate of $169.50 for work performed before January 1, 2010 and $187.50 for work performed after January 1, 2010.
4. By agreement of the parties, the hourly rate at which paralegals working for Plaintiffs’ attorneys are to be compensated is $75.00.
5. All attorneys and paralegals are to be compensated for their travel time at the applicable hourly rates.
UNITED STATES SENIOR DISTRICT JUDGE
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Case 6:95-cv-00024-JAP-KBM Document 949 Filed 07/13/12 Page 2 of 2

 
 U.S. District Court United States District Court - District of New Mexico (Santa Fe)
CIVIL DOCKET FOR CASE #: 6:95-cv-00024-JAP-KBM

McClendon, et al v. Albuquerque, City of, et al Assigned to: District Judge James A. Parker Referred to: Magistrate Judge Karen B. Molzen Demand: $999,000 Cause: 42:1983 Civil Rights Act

Related Case:

1:15-cv-00107-JAP-WPL

Case in other court: Tenth Circuit Court of Appeals

Date Filed: 01/10/1995 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

09-02095 00-02380

96-02057

Plaintiff
Jimmy McClendon TERMINATED: 05/29/1996 also known as Billy McClendon

represented by Anthony James Ayala Anthony J Ayala PA 601 Parkside Pl SE Albuquerque, NM 87123 (505) 344-0401 Fax: (505) 268-2997 Email: nmlawyerayala@gmail.com TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian A Pori 204 Bryn Mawr NE Albuquerque, NM 87106 505-206-6289 Email: bporiabq@gmail.com TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph P. Kennedy Kennedy Kennedy & Ives, LLC 1000 2nd Street, N.W. Albuquerque, NM 87102 505-244-1400 Fax: 505-244-1406 Email: jpk@civilrightslaw.com

TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry Rothstein Donatelli LLP 500 4th Street N.W. Suite 400 Albuquerque, NM 87102 (505) 243-1443 Fax: (505) 242-7845 Email: mlowry@rothsteinlaw.com TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han Kennedy & Han 201 Twelfth Street, NW Albuquerque, NM 87102 Email: mhan@kennedyhan.com TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg Rothstein Donatelli LLP 500 Fourth Street NW, Suite 400 Albuquerque, NM 87102 (505) 243-1443 Fax: (505) 242-7845 Email: pschoenburg@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon L Kennedy Kennedy Kennedy & Ives, LLC 1000 2nd Street, N.W. Albuquerque, NM 87102 505-244-1400 Fax: 505-244-1406 Email: slk@civilrightslawnewmexico.com TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Harold Lund TERMINATED: 05/29/1996

Kirtan K Khalsa Khalsa Law Ofﬁce Email: khalsaofﬁce@gmail.com TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
Richard A Winterbottom Federal Public Defender Ofﬁce 111 Lomas Blvd., NW, Suite 501 Albuquerque, NM 87102 505-346-2489 Fax: 505-346-2494 Email: dick_winterbottom@fd.org TERMINATED: 12/14/1999
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa Khalsa Law Ofﬁce TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED

Plaintiff Peter Sumatkaku

represented by Alexandra Freedman Smith Law Ofﬁce of Alexandra Freedman Smith, LLC 925 Luna Circle Albuquerque, NM 87102 (505) 314-8884 Fax: 505-835-5658 Email: asmith@smith-law-nm.com TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss Ofﬁce of the Governor Ste. 400 490 Old Santa Fe Trail Santa Fe, NM 87501 505-476-2210 Email: jonathan.guss@state.nm.us TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson Rothstein Donatelli, LLP 500 4th Street, NW Suite 400

Albuquerque, NM 87102 505-243-1443 Fax: 505-242-7845 Email: kthompson@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker Peifer, Hanson, Mullins & Baker, P.A. PO Box 25245 Albuquerque, NM 87125-5245 505-247-4800 Fax: 505-243-6458 Email: mbaker@peiferlaw.com TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli Rothstein Law Firm 1215 Paseo de Peralta Santa Fe, NM 87501 505-988-8004 Fax: 505-982-0307 Email: mhd@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara GARCIA IVES NOWARA 924 Second Street NW, Suite A Albuquerque, NM 87102

505-899-1030 Fax: 505-899-1051 Email: molly@ginlawﬁrm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis Philip B. Davis, Attorney at Law 1000 Lomas NW Albuquerque, NM 87102 505-242-1904 Fax: 505-242-1864 Email: phil@davislawnm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly Coberly Law Ofﬁce 1322 Paseo de Peralta Santa Fe, NM 87501 505-306-4019 Fax: 505-629-1560 Email: coberlylaw@gmail.com TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives Zach Ives Law Firm PO Box 27469 Albuquerque, NM 87125-7469 505-257-3787 Email: zach@zachiveslaw.com TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos 1115 Lead Ave SW Albuquerque, NM 87102 505-239-4631

Plaintiff
David Michael Bauer TERMINATED: 05/29/1996

Email: andrew.vallejos@state.nm.us TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
Theresa M Duncan Duncan Earnest LLC PO Box 2769 Santa Fe, NM 87102 505-842-5196 Fax: 505-750-9780 Email: teri@duncanearnest.com TERMINATED: 08/17/2012 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY

Plaintiff Carl Ray Lopez TERMINATED: 05/29/1996
Plaintiff Bruce David Morawe TERMINATED: 05/29/1996

ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Thomas Young TERMINATED: 05/29/1996

Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996

Plaintiff Ruthie Duran TERMINATED: 05/29/1996
Plaintiff Deborah Lavera TERMINATED: 05/29/1996

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Janelle Roybal TERMINATED: 05/29/1996

Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996

Plaintiff Danette DiFiori TERMINATED: 05/29/1996
Plaintiff Maria Sisneros TERMINATED: 05/29/1996

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY

Plaintiff
Larry Green TERMINATED: 05/29/1996

ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa

Plaintiff Bartel Haley TERMINATED: 05/29/1996
Plaintiff Michael Cote TERMINATED: 05/29/1996

(See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996

Plaintiff
Joe Ray Herrera TERMINATED: 05/29/1996

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Josie Kriena TERMINATED: 05/29/1996
Plaintiff Debbie Lucero TERMINATED: 05/29/1996

Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address)

Plaintiff
David Shawkin TERMINATED: 05/29/1996

TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Marc A Gillette

Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address)

Plaintiff George Chavez

TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
Theresa M Duncan (See above for address) TERMINATED: 08/17/2012 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY

Plaintiff Eliseo Baca

ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
Theresa M Duncan (See above for address) TERMINATED: 08/17/2012 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss

(See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY

Plaintiff Clint Barras

ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
Theresa M Duncan (See above for address) TERMINATED: 08/17/2012 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address)

TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998

Plaintiff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED

Francisco Melendez

represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999

Plaintiff Samual Herrod

Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address)

Plaintiff Vincent Padilla

TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address)

Plaintiff Carl Duckworth

TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly

Plaintiff Joseph W Anderson

(See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018

LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis

Plaintiff Paul Johnson

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Fred Mall

Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY

Plaintiff Hector Lopez

ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala

(See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address)

Plaintiff

TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED

Ricky Rose

represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999

Plaintiff Herbert King, Sr

Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address)

Plaintiff James Parks

TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address)

Plaintiff Michael A Johnson

TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly

Plaintiff Johnny Vallejos

(See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address)

TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Joe Newberry

Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Darryl Craft

Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY

Plaintiff Albert Willy

ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address)

TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address)

Plaintiff William P Jimmy

TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker

(See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996

Plaintiff Augustine Tapia

Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry

(See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019

Plaintiff Richard A Smith

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011

Plaintiff Robert Lovato

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY

Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address)

Plaintiff Roy Whatley

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Marty Begay

Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Martin Valdivia

Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED

Plaintiff Tallie Thomas

represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address)

Plaintiff Augustine Jackson

TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Donald Hall

Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Carl Sur

Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address)

TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Steve Esquibel

Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss

(See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY

Plaintiff Lonnie Whatley

ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara

Plaintiff James Saiz

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han

(See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED

Plaintiff Bryon Zamora

represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address)

Plaintiff Allen M Sawyer

TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Patrick Benny Romero

Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Richard C Kopecky TERMINATED: 05/29/1996

Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa

Plaintiff Phillip Shumate

(See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address)

Plaintiff Nelson Romero

TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address)

Plaintiff Steve Johnson

TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly

Plaintiff Bennie F Garcia

(See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address)

TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Louie Chavez

Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Brian Salazar

Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY

Plaintiff Richard Gallegos

ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address)

TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address)

Plaintiff Larry Stroud

TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker

(See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996

Plaintiff James Burks

Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry

(See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019

Plaintiff Brad Fischer

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011

Plaintiff Amihon Baca

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY

Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address)

Plaintiff Jeff Dillow

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address) TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018

LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Pete McQueen

Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Alexandra Freedman Smith (See above for address) TERMINATED: 03/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony James Ayala (See above for address) TERMINATED: 06/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian A Pori (See above for address)

TERMINATED: 02/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Joseph P. Kennedy (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate S Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T Baker (See above for address) TERMINATED: 04/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 10/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY

Plaintiff
Manuel Martinez TERMINATED: 05/29/1996

ATTORNEY TO BE NOTICED
Peter Schoenburg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A Ives (See above for address) TERMINATED: 02/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Vallejos (See above for address) TERMINATED: 05/29/1996
Richard A Winterbottom (See above for address) TERMINATED: 12/14/1999
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy

Plaintiff
Arnold Anthony Maestas TERMINATED: 05/29/1996

(See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY

Plaintiff John Hewatt TERMINATED: 05/29/1996
Plaintiff Jimmy McClendon

ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Anthony James Ayala (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Kennedy (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) TERMINATED: 10/02/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Y.C. Han (See above for address) TERMINATED: 05/29/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Jonathan Jacob Guss (See above for address) TERMINATED: 12/04/2018 LEAD ATTORNEY
Kate S Thompson

V. Intervenor Plaintiff EM

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc M Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtan K Khalsa (See above for address) TERMINATED: 09/08/2014 ATTORNEY TO BE NOTICED
represented by Claire Dickson PO Box 10273 Albuquerque, NM 87184 505-228-4321 Email: nmpadicksonc@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Meilleur Law Ofﬁces of Nancy L. Simmons 120 Girard SE Albuquerque, NM 87106 505-232-2575 Fax: 505-232-2574 Email: nlsmeilleur@swcp.com LEAD ATTORNEY
Elizabeth E. Simpson 2821 Indian Farm Lane SW Albuquerque, NM 87107 (505) 379-3699 Fax: (505) 345-4924 Email: elizabeth.simpson@comcast.net TERMINATED: 07/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Flynn Evelyn Sylvest 1720 Lousiana Blvd. NE, Suite 204 Albuquerque, NM 87110 505-256-3100 Email: fsylvest@drnm.org TERMINATED: 04/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi Second Judicial District Court PO Box 488 Albuquerque, NM 87103-0488 TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg Disability Rights New Mexico 1720 Louisiana Blvd., NE #204 Albuquerque, NM 87110 (505) 256-3100 Email: nkoenigsberg@drnm.org TERMINATED: 03/24/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons Law Ofﬁces of Nancy L Simmons PC 120 Girard Blvd SE Albuquerque, NM 87106 505-232-2575 Fax: 505-232-2574 Email: nlsstaff@swcp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra Law Ofﬁce of Peter Cubra

3500 Comanche NE, Suite H Albuquerque, NM 87107 505-256-7690 Fax: 505-256-7641 Email: pcubra@qwestofﬁce.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J Villa 2501 Rio Grande Blvd NW Suite A Albuquerque, NM 87104 (505) 639-5709 Fax: 505-433-5812 Email: ryan@rjvlawﬁrm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George L Bach , Jr. GARCIA IVES NOWARA LLC 924 Second Street NW, Suite A Albuquerque, NM 87102 505-899-1030 Fax: 505-899-1051 Email: george@ginlawﬁrm.com TERMINATED: 08/09/2010 ATTORNEY TO BE NOTICED
Lisa Y Schatz-Vance 3500 Comanche NE, Suite H Albuquerque, NM 87107 505-256-7690 Fax: 505-256-7641 Email: schatzvance@msn.com TERMINATED: 11/29/2010

Intervenor Plaintiff RL

Kelly K Waterfall Law Firm of Ryan J. Villa 2501 Rio Grande Blvd NW #A Albuquerque, NM 8710r (505) 256-7690 Fax: (505) 433-5812 Email: kelly@rjvlawﬁrm.com ATTORNEY TO BE NOTICED
represented by Claire Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Meilleur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth E. Simpson (See above for address) TERMINATED: 07/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 04/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address)

Intervenor Plaintiff

TERMINATED: 03/24/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J Villa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George L Bach , Jr. (See above for address) TERMINATED: 08/09/2010 ATTORNEY TO BE NOTICED
Lisa Y Schatz-Vance (See above for address) TERMINATED: 11/29/2010
Kelly K Waterfall (See above for address) ATTORNEY TO BE NOTICED

WA

represented by Claire Dickson

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

David Meilleur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth E. Simpson (See above for address) TERMINATED: 07/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Flynn Evelyn Sylvest (See above for address) TERMINATED: 04/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Koenigsberg (See above for address) TERMINATED: 03/24/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy L. Simmons (See above for address)

Intervenor Plaintiff DJ

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J Villa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George L Bach , Jr. (See above for address) TERMINATED: 08/09/2010 ATTORNEY TO BE NOTICED
Lisa Y Schatz-Vance (See above for address) TERMINATED: 11/29/2010
Kelly K Waterfall (See above for address) ATTORNEY TO BE NOTICED
represented by Claire Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Meilleur (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth E. Simpson (See above for address) TERMINATED: 07/31/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 04/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 03/24/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff PS

Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J Villa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George L Bach , Jr. (See above for address) TERMINATED: 08/09/2010 ATTORNEY TO BE NOTICED
Lisa Y Schatz-Vance (See above for address) TERMINATED: 11/29/2010 ATTORNEY TO BE NOTICED
Kelly K Waterfall (See above for address) ATTORNEY TO BE NOTICED
represented by Claire Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Meilleur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth E. Simpson (See above for address) TERMINATED: 07/19/2011 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 04/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Y Schatz-Vance (See above for address) TERMINATED: 01/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 03/24/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff NW

Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J Villa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George L Bach , Jr. (See above for address) TERMINATED: 08/09/2010 ATTORNEY TO BE NOTICED
Kelly K Waterfall (See above for address) ATTORNEY TO BE NOTICED
represented by David Meilleur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth E. Simpson (See above for address) TERMINATED: 07/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 04/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi (See above for address)

TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Y Schatz-Vance (See above for address) TERMINATED: 03/10/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary (Molly) E Schmidt-Nowara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 03/24/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J Villa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Coberly (See above for address) TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Shawna Tanner TERMINATED: 04/17/2019
V. Defendant Albuquerque, City of

George L Bach , Jr. (See above for address) TERMINATED: 08/09/2010 ATTORNEY TO BE NOTICED
Kelly K Waterfall (See above for address) ATTORNEY TO BE NOTICED
represented by Arne Leonard P.O. Box 7885 Albuquerque, NM 87194 505-362-6097 Email: arne@arnelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie Felker Ish Ritchie & Geer PA 911 Old Pecos Trail Santa Fe, NM 87501 505-988-4483 Fax: 505-983-4876 Email: cjrish84@hotmail.com TERMINATED: 09/28/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra J. Moulton Kennedy, Moulton & Wells PC 2201 San Pedro NE Building 3, Suite 200 Albuquerque, NM 87110 505-884-7887 Fax: 505-884-7123 Email: dmoulton@kmwpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker

Defendant
Martin Chavez Mayor of Albuquerque

The Baker Law Firm 20 First Plaza NW Suite 402 Albuquerque, NM 87102 505-247-1855 Fax: 505-766-9113 Email: jeff@bzjustice.com TERMINATED: 06/15/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John E. DuBois City of Albuquerque City Attorney's Ofﬁce P.O. Box 2248 Albuquerque, NM 87103 505-768-4543 Email: jdubois@cabq.gov TERMINATED: 09/27/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsay Fay Van Meter City of Albuquerque PO Box 2248 Albuquerque, NM 87103 505-768-4511 Fax: 505-768-4525 Email: lvanmeter@cabq.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Levy City of Albuquerque Legal Department P O Box 2248 Albuquerque, NM 87103-2248 (505)768-4500 Fax: (505)768-4440 Email: klevy@cabq.gov
represented by Carol Jean Ritchie (See above for address) TERMINATED: 09/28/2000 LEAD ATTORNEY

Defendant Bernalillo, County of

ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 06/15/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Levy (See above for address)
represented by Carol Jean Ritchie (See above for address) TERMINATED: 09/28/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel J Macke Brown Law Firm 333 Rio Rancho Blvd. NE Suite 102 Rio Rancho, NM 87124 (505) 292-9677 Fax: (505) 292-9680 Email: dan@brownlawnm.com TERMINATED: 06/30/2014 LEAD ATTORNEY
Jeffrey L. Baker (See above for address) TERMINATED: 06/15/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcus J Rael , Jr Robles, Rael & Anaya, PC 500 Marquette NW, Ste. 700 Albuquerque, NM 87102 (505) 242-2228 Fax: (505) 242-1106 Email: marcus@roblesrael.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Patrick Baca Bernalillo County Commissioner TERMINATED: 04/22/1997
Defendant Albert Valdez Bernalillo County Commissioner TERMINATED: 04/22/1997
Defendant Eugene Gilbert Bernalillo County Commissioner TERMINATED: 04/22/1997

Taylor Sauer Rahn Robles, Rael & Anaya, P.C. 500 Marquette Avenue, N.W. Suite 700 Albuquerque, NM 87102 505-242-2228 Fax: 505-242-1106 Email: taylor@roblesrael.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Barbara Seward Bernalillo County Commissioner TERMINATED: 04/22/1997

Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jacquelyn Schaefer Bernalillo County Commissioner TERMINATED: 04/22/1997

represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bill Dantis Director, Bernalillo County Detention Center TERMINATED: 04/22/1997

represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY

Defendant Bernalillo County Detention Center TERMINATED: 04/22/1997
Defendant Paul Sanchez TERMINATED: 04/22/1997
Defendant Frank Lovato TERMINATED: 04/22/1997
Defendant

ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ercell Grifﬁn Deputy Director, BCDC TERMINATED: 04/22/1997
Defendant Michael Smith Lieutenant TERMINATED: 04/22/1997
Defendant John Van Sickler Lieutenant TERMINATED: 04/22/1997
Defendant Will Bell Ofﬁcer TERMINATED: 04/22/1997

represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY

Defendant Albert Chavez Lieutenant TERMINATED: 04/22/1997
Defendant Richard Fusco Lieutenant TERMINATED: 04/22/1997
Defendant George Fuentes TERMINATED: 04/22/1997

ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address)

Defendant David Baca Lieutenant TERMINATED: 04/22/1997
Defendant Victor Hernandez TERMINATED: 04/22/1997
Defendant Kevin D Sevir TERMINATED: 04/22/1997

TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jim Mason Dr. TERMINATED: 04/22/1997
Defendant Barbara Cole TERMINATED: 04/22/1997
Defendant Maria Lucero TERMINATED: 04/22/1997
Defendant David Royston TERMINATED: 04/22/1997

represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address)

Defendant Felimon Martinez Captain TERMINATED: 04/22/1997
Defendant Stanley Lents TERMINATED: 04/22/1997
Defendant Douglas Robinson TERMINATED: 04/22/1997

TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Seal Barley TERMINATED: 04/22/1997
Defendant Lynn King TERMINATED: 04/22/1997
Defendant David Sherman TERMINATED: 04/22/1997

Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY

Defendant Brian Maser TERMINATED: 04/22/1997
Defendant John Does Employees of Bernalillo County Detention Center TERMINATED: 04/22/1997
Miscellaneous Alan C. Torgerson Special Master
V. Intervenor Lawrence A Johnson TERMINATED: 08/26/1996

ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Jean Ritchie (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey L. Baker (See above for address) TERMINATED: 04/22/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan C. Torgerson 12231 Academy Road NE No. 301-330 Albuquerque, NM 87111 Email: AlanTorgerson@nmd.uscourts.gov ATTORNEY TO BE NOTICED
represented by Lawrence A Johnson PO Box 594

Intervenor Willie James Washington TERMINATED: 09/03/2002
Intervenor Manuel R. Boswell TERMINATED: 09/03/2002
Intervenor AFSCME Local 2499

Los Lunas, NM 87031 (505) 865-6622 PRO SE
Elizabeth E. Simpson (See above for address) TERMINATED: 07/19/2011 ATTORNEY TO BE NOTICED
represented by Willie James Washington 44383 Bernalillo County Detention Center 415 Roma Ave, NW Albuquerque, NM 87102 PRO SE
represented by Manuel R. Boswell Unknown PRO SE
represented by Shane C Youtz Youtz & Valdez PC 900 Gold Ave. SW Albuquerque, NM 87102 505-244-1200 Fax: 505-244-9700 Email: shane@youtzvaldez.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Curtice Youtz & Valdez, PC 900 Gold Ave SW Albuquerque, NM 87102 (505) 244-1200 Fax: 244-9700 Email: stephen@youtzvaldez.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Michael Sisneros Director of Bernalillo County Detention Center, in his ofﬁcial capacity
Defendant Bernalillo County Board of Commissioners

represented by Michael Sisneros PRO SE
Jeffrey L. Baker (See above for address) TERMINATED: 06/15/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Macke (See above for address) TERMINATED: 06/30/2014 LEAD ATTORNEY
Jeffrey L. Baker (See above for address) TERMINATED: 05/30/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luis E. Robles Robles, Rael & Anaya, P.C. 500 Marquette Ave., NW Suite 700 Albuquerque, NM 87102 505-242-2228 Fax: 505-242-1106 Email: luis@roblesrael.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcus J Rael , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Taylor Sauer Rahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

01/10/1995

1 COMPLAINT (Summonses issued) (referred to Magistrate Don J. Svet) (jm) (Additional attachment(s) added on 6/22/2010: # 1 Complaint (pages 40-70), # 2 Complaint (pages 71-110)) (ln). (Additional attachment(s) added on 9/11/2013: # 3 Appendix Civil Cover Sheet) (id). (Entered: 01/19/1995)

01/10/1995

3 MEMORANDUM by pltfs in support of motion for determination of class action [2-1] (jm) (id). (Entered: 01/19/1995)

01/11/1995 1031 FILING FEE PAID in amount of $120.00, receipt #74639. (jm) (id). (Entered: 01/19/1995)

01/11/1995

2 MOTION by pltfs for determination of class action (jm) (id). (Entered: 01/19/1995)

01/11/1995

7 RETURN OF SERVICE executed upon Patrick Baca on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/11/1995

13 RETURN OF SERVICE executed upon Paul Sanchez on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

4 RETURN OF SERVICE executed upon City of Albuquerque on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

5 RETURN OF SERVICE executed upon Martin Chavez on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

6 RETURN OF SERVICE executed upon City Attorney on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

8 RETURN OF SERVICE executed upon Albert Valdez on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

9 RETURN OF SERVICE executed upon Eugene Gilbert on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

10 RETURN OF SERVICE executed upon Barbara Seward on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

11 RETURN OF SERVICE executed upon Jacquelyn Schaefer on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995

12 RETURN OF SERVICE executed upon Bill Dantis on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995

14 RETURN OF SERVICE executed upon Frank Lovato on 1/11/95 (jm) (id). (Entered: 01/19/1995)
15 RETURN OF SERVICE executed upon Ercell Grifﬁn on 1/11/95 (jm) (id). (Entered: 01/19/1995)
16 RETURN OF SERVICE executed upon Michael Smith on 1/11/95 (jm) (id). (Entered: 01/19/1995)
17 RETURN OF SERVICE executed upon John Van Sickler on 1/11/95 (jm) (id). (Entered: 01/19/1995)
18 RETURN OF SERVICE executed upon Will Bell on 1/11/95 (jm) (id). (Entered: 01/19/1995)
19 RETURN OF SERVICE executed upon Albert Chavez on 1/11/95 (jm) (id). (Entered: 01/19/1995)
20 RETURN OF SERVICE executed upon Richard Fusco on 1/11/95 (jm) (id). (Entered: 01/19/1995)
21 RETURN OF SERVICE executed upon George Fuentes on 1/11/95 (jm) (id). (Entered: 01/19/1995)
22 RETURN OF SERVICE executed upon David Baca on 1/11/95 (jm) (id). (Entered: 01/19/1995)
23 RETURN OF SERVICE executed upon Victor Hernandez on 1/11/95 (jm) (id). (Entered: 01/19/1995)
24 RETURN OF SERVICE executed upon defendant Kevin D Sevir on 1/11/95 (jm) (id). (Entered: 01/19/1995)
25 RETURN OF SERVICE executed upon defendant Jim Mason on 1/11/95 (jm) (id). (Entered: 01/19/1995)
26 RETURN OF SERVICE executed upon defendant Barbara Cole on 1/11/95 (jm) (id). (Entered: 01/19/1995)
27 RETURN OF SERVICE executed upon defendant Maria Lucero on 1/11/95 (jm) (id). (Entered: 01/19/1995)
28 RETURN OF SERVICE executed upon defendant David Royston on 1/11/95 (jm) (id). (Entered: 01/19/1995)
29 RETURN OF SERVICE executed upon defendant Felimon Martinez on 1/11/95 (jm) (id). (Entered: 01/19/1995)

01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/17/1995 01/27/1995 02/13/1995 02/13/1995
02/13/1995 02/16/1995
02/16/1995 02/16/1995
02/16/1995

30 RETURN OF SERVICE executed upon defendant Stanley Lents on 1/11/95 (jm) (id). (Entered: 01/19/1995)
31 RETURN OF SERVICE executed upon defendant Douglas Robinson on 1/11/95 (jm) (id). (Entered: 01/19/1995)
32 RETURN OF SERVICE executed upon defendant Seal Barley on 1/11/95 (jm) (id). (Entered: 01/19/1995)
33 RETURN OF SERVICE executed upon defendant Lynn King on 1/11/95 (jm) (id). (Entered: 01/19/1995)
34 RETURN OF SERVICE executed upon defendant David Sherman on 1/11/95 (jm) (id). (Entered: 01/19/1995)
35 RETURN OF SERVICE executed upon defendant Brian Maser on 1/11/95 (jm) (id). (Entered: 01/19/1995)
36 RETURN OF SERVICE executed upon defendants John Does on 1/11/95 (jm) (id). (Entered: 01/19/1995)
37 MOTION by defts to extend time to ﬁle Answer (jm) (id). (Entered: 01/31/1995)
38 MOTION by pltfs to amend motion and memorandum regarding class action (former employee) (id). (Entered: 02/15/1995)
39 AMENDED MOTION FOR CERTIFICATION AS TO CLASS ACTION by plaintiffs [2-1] (former employee) (id). (Entered: 02/16/1995)
40 AMENDED MEMORANDUM by pltfs in support of amended motion [39-1] (former employee) (id). (Entered: 02/16/1995)
41 ORDER by Judge Martha Vazquez granting defts 120 days in which to ﬁle Answer [37-1] (cc: all counsel) (former employee) (id). (Entered: 02/16/1995)
42 MOTION by pltfs for preliminary injunction enjoining operation of BCDC in its present condition (jm) (id). (Entered: 02/17/1995)
43 MEMORANDUM by pltfs in support of motion for preliminary injunction enjoining operation of BCDC in its present condition [42-1] (jm) (id). (Entered: 02/17/1995)
44 MOTION by pltfs for expedited discovery (jm) (id). (Entered: 02/17/1995)

02/16/1995 02/16/1995 02/21/1995 03/03/1995 03/08/1995
03/13/1995 03/27/1995 04/03/1995 04/05/1995
04/11/1995 04/13/1995 04/21/1995

45 MEMORANDUM by pltfs in support of motion for expedited discovery [44-1] (jm) (id). (Entered: 02/17/1995)
46 CERTIFICATE by pltfs of delivering 1st set of interrogs and request for production to defts on 2/16/95 (jm) (id). (Entered: 02/17/1995)
47 ORDER by Judge Martha Vazquez granting pltfs' motion to amend motion and memorandum regarding class action [38-1] (cc: all counsel) (jm) (id). (Entered: 02/21/1995)
48 MOTION by defts to extend time until 5/8/95 to respond to motions for preliminary injunction, expedited discovery, and certiﬁcation of class w/ memorandum in support (jm) (id). (Entered: 03/06/1995)
49 ORDER by Judge Martha Vazquez granting defts' motion to extend time until 5/8/95 to respond to motions for preliminary injunction, expedited discovery, and certiﬁcation of class [48-1] (cc: all counsel) (jm) (id). (Entered: 03/08/1995)
50 AFFIDAVIT of Kennedy de la Pena in support of motion for preliminary injunction [42-1] (jm) (id). (Entered: 03/15/1995)
51 INITIAL SCHEDULING ORDER by Magistrate Don J. Svet: Rule 16 scheduling conference set for 4/13/95 at 8:30am (cc: all counsel) (jm) (id). (Entered: 03/27/1995)
52 ORDER by Magistrate Don J. Svet vacating deadlines set in initial scheduling order (cc: all counsel) (jm) (id). (Entered: 04/03/1995)
53 CLERK'S MINUTES: Status conference held before Judge Martha Vazquez. Court wants expedited track; wants to be well informed with Judge Svet; will take interim measures if necessary. Basically 31 separate lawsuits, 1 overriding claim--overcrowding, 30 individuals seeking money damages. Court will deal with issue of overcrowding ﬁrst. Would be interested in a tour of BCDC. Discovery plan due by 4/21/95; telephone conference set for 4/24/95 to discuss preliminary injunction setting. C/R: None (jm) (id). (Entered: 04/06/1995)
54 ORDER by Magistrate Don J. Svet Rule 16 scheduling conference scheduled for 4/13/95 at 8:30 am is vacated (cc: all counsel) (former employee) (id). (Entered: 04/11/1995)
55 ENTRY OF APPEARANCE for deft City of Albuquerque by John E. DuBois (jm) (id). (Entered: 04/18/1995)
56 MOTION by pltfs for order to show cause why defts should not be held in contempt of Court's prior rulings (jm) (id). (Entered: 04/25/1995)

04/21/1995
04/21/1995
04/25/1995
05/01/1995 05/08/1995 05/08/1995 05/08/1995 05/08/1995 05/08/1995 05/08/1995 05/15/1995 05/15/1995 05/22/1995 06/02/1995 06/05/1995

57 MEMORANDUM by pltfs in support of motion for order to show cause why defts should not be held in contempt of Court's prior rulings [56-1] (jm) (id). (Entered: 04/25/1995)
58 AFFIDAVIT of Anthony Ayala re: attorney fees in support of motion for order to show cause why defts should not be held in contempt of Court's prior rulings [56-1] (jm) (id). (Entered: 04/25/1995)
59 RESPONSE by defts to motion for order to show cause why defts should not be held in contempt of Court's prior rulings [56-1] (jm) (id). (Entered: 04/27/1995)
60 PROVISIONAL DISCOVERY PLAN by plaintiffs (former employee) (id). (Entered: 05/02/1995)
61 MOTION by pltfs for sealing bill of costs and fees (former employee) (id). (Entered: 05/09/1995)
62 MEMORANDUM by pltfs in support of motion for sealing bill of costs and fees [61-1] (former employee) (id). (Entered: 05/09/1995)
63 ANSWER by defts [1-1] (jm) (id). (Entered: 05/10/1995)
64 JURY DEMAND by defendants (jm) (id). (Entered: 05/10/1995)
65 RESPONSE by defendants to motion for determination of class action [2-1] (jm) (id). (Entered: 05/10/1995)
66 RESPONSE by defts to motion for preliminary injunction [42-1] (jm) (id). (Entered: 05/10/1995)
67 MOTION by plfs for assessment of expert fees (jm) (id). (Entered: 05/16/1995)
68 MEMORANDUM by pltfs in support of motion for assessment of expert fees [67-1] (jm) (id). (Entered: 05/16/1995)
69 MOTION by defts for order to trifurcate and memorandum in support (former employee) (id). (Entered: 05/23/1995)
70 RESPONSE by defts to motion for assessment of expert fees [67-1] (jm) (id). (Entered: 06/05/1995)
71 MOTION by defts for protective order ordering tha depositions of experts not be taken until court has ruled on motion for assessment of fees (jm) (id). (Entered: 06/06/1995)

06/08/1995 06/08/1995 06/08/1995 06/12/1995 06/13/1995 06/14/1995 06/15/1995
06/22/1995 06/22/1995 06/26/1995
06/27/1995

72 ORDER by Magistrate Don J. Svet granting pltfs' motion for expedited discovery [44-1]. Discovery to proceed as ordered at scheduling conference held 5/4/95. (cc: all counsel) (jm) (id). (Entered: 06/08/1995)
73 DISCOVERY ORDER by Magistrate Don J. Svet (cc: all counsel) (jm) (id). (Entered: 06/08/1995)
74 MOTION by pltfs to withdraw motions for assessment of fees, motion for order to show cause, and motion for sealing costs and fee (jm) (id). (Entered: 06/12/1995)
75 MINUTE ORDER: setting hearing on motion for preliminary injunction [42-1] at 8:30 am on 8/11/95 before Judge Vazquez in Santa Fe. CLERK:ls (cc: all counsel by ls) (former employee) (id). (Entered: 06/13/1995)
76 CERTIFICATE by defts of delivering responses to 1st set of interrogatories and responses to 1st request for production to pltf on 6/13/95 (jm) Modiﬁed on 06/26/1995 (id). (Entered: 06/15/1995)
77 MOTION by pltfs for leave to reply to response motion for preliminary injunction and to reply to response to motion for determination of class action , and to exceed page limit (jm) Modiﬁed on 06/26/1995 (id). (Entered: 06/15/1995)
78 ORDER by Judge John E. Conway granting pltfs' motion to withdraw motions for assessment of fees, motion for order show cause, and motion for sealing costs and fees [74-1]; withdrawing motion for assessment of expert fees [67-1]; and withdrawing motion for order to show cause why defts should not be held in contempt of Court's prior rulings [56-1] (cc: all counsel) (jm) (id). (Entered: 06/15/1995)
79 MOTION by plaintiffs for order allowing telephonic depositions of the defense experts (former employee) (id). (Entered: 06/25/1995)
80 MEMORANDUM by plaintiff in support of motion for order allowing telephonic depositions of the defense experts [79-1] (former employee) (id). (Entered: 06/25/1995)
81 ORDER by Magistrate Svet granting motion for leave to reply to response motion for preliminary injunction and to reply to response to motion for determination of class action [77-1] and granting motion to exceed page limit [77-2] (cc: all counsel) (former employee) (id). (Entered: 06/26/1995)
82 MOTION by defts for entry of order trifurcating proceedings (jm) (id). (Entered: 06/28/1995)

06/30/1995

83 RESPONSE by defendants to motion for order allowing telephonic depositions of the defense experts [79-1] (jm) (id). (Entered: 07/05/1995)

06/30/1995

84 MOTION by pltfs to amend complaint (former employee) (id). (Entered: 07/06/1995)

06/30/1995

85 MEMORANDUM by pltfs in support of motion to amend complaint [84-1] (former employee) (id). (Entered: 07/06/1995)

06/30/1995

86 RESPONSE by pltfs to motion for entry of order trifurcating proceedings [82-1] (former employee) (id). (Entered: 07/06/1995)

06/30/1995

87 REPLY by pltfs to defts' to response to motion for determination of class action [2-1] (former employee) (id). (Entered: 07/06/1995)

06/30/1995

88 REPLY by pltfs to response to petition for preliminary injunction [42-1] (former employee) (id). (Entered: 07/06/1995)

07/07/1995

89 REPLY by defendants to pltf's response to motion for entry of order trifurcating proceedings [82-1] (rlc) (ln). (Additional attachment(s) added on 9/11/2013: # 1 Correct copy of original pleading) (id). (Entered: 07/11/1995)

07/12/1995

90 RESPONSE by defendants to motion to amend complaint [84-1] (former employee) (id). (Entered: 07/13/1995)

07/13/1995 1066 Letter by USDC to Anthony Ayala regarding submission of Pretrial Order. (id) (Entered: 09/13/2013)

07/18/1995

91 UNOPPOSED MOTION by pltfs to withdraw motion for telephone depositions (former employee) (id). (Entered: 07/20/1995)

07/18/1995

TIME RECORDS submitted by Anthony J. Ayala for plaintiff John Hewatt for 12/94 (sealed) (former employee) (Entered: 07/20/1995)

07/18/1995

TIME RECORDS submitted by Anthony Ayala, attorney for pltfs for 11/94 (sealed) (former employee) (Entered: 07/20/1995)

07/18/1995

TIME RECORDS submitted by Anthony J. Ayala for 10/94 (sealed) (former employee) (Entered: 07/20/1995)

07/18/1995

TIME RECORDS submitted by Anthony J. Ayala for 1/95 (sealed) (former employee) (Entered: 07/20/1995)

07/18/1995

TIME RECORDS submitted by Anthony J. Ayala for 2/95 (sealed) (former employee) (Entered: 07/20/1995)

07/18/1995 07/18/1995 07/18/1995 07/18/1995 07/20/1995 07/20/1995 07/24/1995 07/27/1995
07/27/1995 07/27/1995 07/28/1995
07/31/1995 08/01/1995
08/05/1995

TIME RECORDS submitted by Anthony Ayala, attorney for plaintiff, for 3/95 (sealed) (former employee) (Entered: 07/20/1995)
TIME RECORDS submitted by Anthony J. Ayala, attorney for pltfs, for 4/95 (sealed) (former employee) (Entered: 07/20/1995)
TIME RECORDS submitted by Anthony J. Ayala, attorney for pltfs, for 5/95 (sealed) (former employee) (Entered: 07/20/1995)
TIME RECORDS submitted by Anthony J. Ayala, atty for pltfs. for 6/95 (sealed) (former employee) (Entered: 07/20/1995)
92 PRE-TRIAL ORDER by Judge Martha Vazquez : (cc: all counsel) (former employee) (id). (Entered: 07/20/1995)
93 PRE-TRIAL ORDER by Judge Martha Vazquez : (cc: all counsel) (former employee) (id). (Entered: 07/20/1995)
94 NOTICE by plaintiffs' of intent to call additional witnesses and to submit additional evidence (mk) (id). (Entered: 07/25/1995)
95 SECOND MOTION by plaintiff to amend complaint logged in overﬂow folder (former employee) Modiﬁed on 07/28/1995 (Additional attachment(s) added on 9/11/2013: # 1 Part 2 of 2) (id). (Entered: 07/28/1995)
96 MEMORANDUM by plaintiffs in support of motion to amend complaint [95-1] (former employee) (id). (Entered: 07/28/1995)
97 REPLY by plaintiffs to response to motion to amend complaint [84-1] (former employee) (id). (Entered: 07/28/1995)
98 CLERK'S MINUTES: before Magistrate Don J. Svet a Rule 26 discovery conference was held on 7/28/95; setting a further conference on 8/1/95 (mk) Modiﬁed on 08/07/1995 (id). (Entered: 08/01/1995)
TIME RECORDS submitted by Anthony J. Ayala for plaintiff John Hewatt for July 1995 (sealed) (mk) (Entered: 08/01/1995)
99 MINUTE ORDER: vacating hearing on 8/10/95 and resetting hearing on motion for preliminary injunction enjoining operation of BCDC in its present condition [42-1] at 8:30 am on 8/11/95 in Santa Fe, NM (CLERK: jm) (cc: all counsel by jm) (mk) (id). (Entered: 08/02/1995)
111 RESPONSE by defts to motion for interim attorney fees [108-1], motion costs including witness fees [108-2] (former employee) (id). (Entered: 09/07/1995)

08/08/1995
08/09/1995 08/10/1995 08/11/1995 08/11/1995 08/16/1995
08/23/1995
08/23/1995 08/25/1995 08/25/1995 09/01/1995 09/06/1995

100 ORDER by Magistrate Don J. Svet granting pltf's motion to withdraw motion for telephone depositions [91-1] motion for order allowing telephonic depositions of the defense experts is withdrawn [79-1] (cc: all counsel) (mk) (id). (Entered: 08/08/1995)
101 CLERK'S MINUTES: before Judge Martha Vazquez; a status conference was held 8/9/95 (mk) (id). (Entered: 08/10/1995)
102 ORDER by Magistrate Don J. Svet denying defts' motion for protective order [71-1] as moot (cc: all counsel) (mk) (id). (Entered: 08/10/1995)
103 CLERK'S MINUTES: before Judge Martha Vazquez re hearing on motion for preliminary injuction [42-1]; taken under advisement; C/R: S. Heseby (mk) (id). (Entered: 08/15/1995)
104 RESPONSE by defendants' to pltfs' second motion to amend complaint [95-1] (mk) (id). (Entered: 08/15/1995)
105 MINUTE ORDER: ; Pretrial conference is set for 10/26/95 at 9:00 am ; Jury trial is set for 11/13/95 at 9:00 am; both are before Judge Martha Vazquez and will be held in Santa Fe, NM (CLERK: jm) (cc: all counsel by jm) (mk) (id). (Entered: 08/17/1995)
106 ORDER by Judge Martha Vazquez granting motion for preliminary injunction enjoining operation of BCDC in its present condition [42-1]; with attachment (see order for speciﬁcs) (cc: all counsel) (mk) (ln). (Entered: 08/24/1995)
107 CERTIFICATE of Service by plaintiffs' of second request for production of documents and pltfs' second set of interrogs to counsel on 8/23/95 (mk) (id). (Entered: 08/24/1995)
108 MOTION by plaintiff for interim attorney fees , and costs including witness fees (mk) (id). (Entered: 08/28/1995)
109 MEMORANDUM by plaintiff in support of motion for interim attorney fees [108-1], and costs including witness fees [108-2] (mk) (id). (Entered: 08/28/1995)
110 CERTIFICATE of service by defts of seting lst set of interrogs and request for production of documents to opposing counsel on 9/1/95 (former employee) Modiﬁed on 09/19/1995 (id). (Entered: 09/07/1995)
112 REPLY by plaintiffs' to response to pltfs' motion for interim attorney fees [108-1], and costs including witness fees [108-2] (mk) (id). (Entered: 09/07/1995)

09/06/1995 09/06/1995 09/06/1995 09/07/1995
09/07/1995
09/07/1995 09/12/1995 09/13/1995 09/14/1995
09/19/1995 09/19/1995 09/21/1995 09/21/1995

113 MOTION by intervenor-plaintiffs' EM, RL, WA, DJ, PS, and NW to intervene (mk) (id). (Entered: 09/07/1995)
114 MEMORANDUM by intervenor-plaintiffs' in support of motion to intervene [113-1] (mk) (id). (Entered: 09/07/1995)
TIME RECORDS submitted by Anthony J. Ayala for plaintiff John Hewatt for 8/95 (sealed) (mk) (Entered: 09/07/1995)
115 SETTLEMENT AGREEMENT (NOTICE) by parties, as further described herein (mk) (ln). (Additional attachment(s) added on 9/11/2013: # 1 Original pleading with missing page 3) (id). (Entered: 09/07/1995)
116 ORDER by Judge Martha Vazquez re Order of 8/23/95 is converted to a permanent injunction [106-1]; granting motion for determination of class [2-1], certiﬁcation of the pltf class to be bound by this agreement as the present and future residents of BCDC; as further described in settlement agreement [115-0] (cc: all counsel) (mk) (ln). (Entered: 09/07/1995)
117 CLERK'S MINUTES: before Judge Martha Vazquez; see order [116-1] and settlement agreement [115-1] entered this date; C/R: S. Huseby (mk) (id). (Entered: 09/12/1995)
118 RESPONSE by defendants' to motion to intervene [113-1] (mk) (id). (Entered: 09/13/1995)
119 RESPONSE by plaintiffs to motion to intervene [113-1] (mk) (id). (Entered: 09/14/1995)
120 ORDER by Magistrate Don J. Svet ; Discovery cutoff 1/9/96 ; Motion Filing cutoff 2/8/96 ; Pretrial order ddl 3/26/96 Pretrial conference of 10/26/95 is vacated ; Jury trial of 11/13/95 is vacated (cc: all counsel) (mk) (id). (Entered: 09/14/1995)
121 REPLY by intervenor-plaintiffs' to responses to motion to intervene [113-1] (mk) (id). (Entered: 09/20/1995)
122 MOTION by plaintiff for protective order re interrogs submitted by defts , and stay of discovery schedule (mk) (id). (Entered: 09/20/1995)
123 MOTION by intervenor-plaintiffs' to alter (amend) order entered on 9/7/95 (mk) (id). (Additional attachment(s) added on 9/13/2013: # 1 Enclosure Letter to Main Document) (id). (Entered: 09/26/1995)
124 MEMORANDUM by intervenor-plaintiffs' in support of motion to alter (amend) order entered on 9/7/95 [123-1] (mk) (id). (Entered: 09/26/1995)

09/21/1995

125 RESPONSE by defendants' to pltfs' motion for interim attorney fees [108-1] and costs including witness fees [108-2] (mk) (id). (Entered: 09/26/1995)

09/22/1995 126 MEMORANDUM by plaintiffs' in support of motion for protective order re interrogs submitted by defts [122-1] (mk) (id). (Entered: 09/27/1995)

09/22/1995 1060 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez of telephone conference held in Las Cruces on 8/18/95; () lodged in separate ﬁle folder (former employee) (id). (Entered: 09/28/1995)

09/22/1995 1061 EXCERPT TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez held on 8/11/95; (re [103-1] ) lodged in separate ﬁle folder (former employee) (id). (Entered: 09/28/1995)

09/25/1995

127 RESPONSE by defendant to motion for protective order re interrogs submitted by defts [122-1], and for stay of discovery schedule [122-2] (mk) (id). (Entered: 09/27/1995)

09/26/1995

128 REPLY by plaintiffs' to defts' response to motion for interim attorney fees [108-1], motion costs including witness fees [108-2] (mk) (id). (Entered: 09/27/1995)

09/27/1995

129 REPLY by plaintiffs' to response to pltfs' motion for interim attorney fees [108-1], motion costs including witness fees [108-2] (mk) (id). (Entered: 09/28/1995)

10/05/1995

133 UNOPPOSED MOTION for Extension of time until 11/6/95 by defts in which to respond to pltf-intervenor's 9/21/95 motion to alter (amend) order [123-1] (former employee) (id). (Entered: 10/12/1995)

10/06/1995

130 MOTION by plaintiff to ﬁle two replies which exceed page limitation re defts' response regarding pltf's application for atty fees (mk) (id). (Entered: 10/11/1995)

10/06/1995 131 MOTION by plaintiffs for order to withdraw ﬁrst and second amended complaints (mk) (id). (Entered: 10/11/1995)

10/11/1995

132 ORDER by Judge Martha Vazquez granting defts motion for extension of time until 11/6/95 in which to respond to pltf-intervenors' motion for relief re [123-1] (no motion on ﬁle) (cc: all counsel) (mk) (id). (Entered: 10/11/1995)

10/12/1995

134 ORDER by Judge Martha Vazquez granting motion for order to withdraw ﬁrst and second amended complaints [131-1] all counsel) (former employee) (id). (Entered: 10/12/1995)

10/12/1995 10/13/1995 10/26/1995 10/26/1995
11/02/1995
11/06/1995 11/06/1995 11/06/1995 11/13/1995 11/15/1995

135 ORDER by Judge Martha Vazquez granting motion to ﬁle two replies which exceed page limitation re defts' response regarding pltf's application for atty fees [130-1] (cc: all counsel) (former employee) (id). (Entered: 10/12/1995)
TIME RECORDS submitted by Peter Cubra for intervenor-plaintiff NW for August and September, 1995 (sealed) (former employee) (Entered: 10/16/1995)
136 CLERK'S MINUTES: before Judge Martha Vazquez; status conference re motion to intervene will be granted [113-1] C/R: S. Huseby (mk) (id). (Entered: 10/26/1995)
137 ORDER by Judge Martha Vazquez granting motion to intervene [113-1] limited to the claims raised in the original pltf's complaint; as further described herein (cc: all counsel) (mk) (ln). (Additional attachment(s) added on 9/11/2013: # 1 Original pleading with missing page 4) (id). (Entered: 10/27/1995)
138 ORDER by Magistrate Don J. Svet granting motion for protective order re interrogs submitted by defts [122-1], denying motion stay of discovery schedule [122-2] by plaintiffs; pltf's counsel will identify whicdh pltfs and claims he intends to dismiss by 11/13/95 and the remaining pltfs must respond to defts' interrogs by 11/24/95 (cc: all counsel) (mk) (id). (Entered: 11/02/1995)
139 CERTIFICATE of mailing by plaintiffs of answers to ﬁrst set of interrog(s) and request for production of documents to counsel on 11/6/95 (former employee) (id). (Entered: 11/13/1995)
140 UNOPPOSED MOTION by defendants to extend time to answer pltfintervenors' complaint-in-intervention and respond to mtn to alter (no date or time speciﬁed) (former employee) Modiﬁed on 11/13/1995 (id). (Entered: 11/13/1995)
141 CERTIFICATE of mailing by plaintiffs of ﬁrst set of interrog(s) and request for production of documents to counsel on 11/6/95 (former employee) (id). (Entered: 11/13/1995)
142 ORDER by Magistrate Don J. Svet granting defts mtn for extension of time until 11/6/95 to ﬁle response to mtn to alter [133-1] (cc: all counsel) (pr) (id). (Entered: 11/13/1995)
TIME RECORDS submitted by Peter Cubra for intervenor-plaintiff NW for 10/95 (sealed) (mk) (Entered: 11/16/1995)

11/15/1995 143 NOTICE of submission of time records by intervenor-plaintiff to counsel on 11/15/95 (mk) (id). (Entered: 11/16/1995)

11/17/1995 144 CLERK'S MINUTES: before Judge Martha Vazquez on a conference call w/counsel; C/R: S. Huseby (mk) (id). (Entered: 11/21/1995)

11/17/1995

149 CERTIFICATE of mailing by pltfs of answers to interrogatories and response to production of documents of John Hewatt to opposing counsel on 11/15/95 (former employee) Modiﬁed on 12/11/1995 (id). (Entered: 11/21/1995)

11/20/1995

145 MOTION by plaintiffs' for preliminary injunction enjoining the operation of the Montessa Park Facility (mk) Modiﬁed on 11/21/1995 (id). (Entered: 11/21/1995)

11/20/1995

146 MEMORANDUM by plaintiffs' in support of motion for preliminary injunction enjoining the operation of the Montessa Park Facility [145-1] (mk) (id). (Entered: 11/21/1995)

11/20/1995

147 MOTION by plaintiffs' for order that the Court view Montessa Park Facility southwest of the Albuquerque International Sunport (mk) (id). (Entered: 11/21/1995)

11/20/1995

148 CERTIFICATE of Service by plaintiffs' of motion for a preliminary injunction, memo in support and motion request the Court view Montessa park Facility to counsel on 11/20/95(mk) Modiﬁed on 12/11/1995 (id). (Entered: 11/21/1995)

11/22/1995

TIME RECORDS submitted by Nancy Koenigsberg for intervenorplaintiff NW (sealed) (ks) (Entered: 11/22/1995)

11/22/1995 150 AMENDED INTERVENOR'S COMPLAINT by intervenorplaintiffs' (mk) (ln). (Entered: 11/28/1995)

11/27/1995

151 CERTIFICATE by pltfs of mailing answers to interrogs and response to production of documents of Larry Green to opposing counsel on 11/27/95 (former employee) (id). (Entered: 12/01/1995)

11/27/1995 1055 LETTER from Magistrate Judge DeGiacomo to counsel setting a settlement conference on 3/6/96 at 2:00 pm (former employee) (id). (Entered: 12/04/1995)

12/06/1995

152 RESPONSE by defendants' to pltfs' motion for preliminary injunction enjoining the operation of the Montessa Park Facility [145-1] (mk) (id). (Entered: 12/11/1995)

12/11/1995 153 MOTION by plaintiffs' for order that the remaining claims be tried before one jury; and memo in support (mk) (id). (Entered: 12/12/1995)

12/11/1995
12/15/1995 12/15/1995 12/15/1995
12/15/1995 12/15/1995 12/15/1995 12/15/1995 12/15/1995 12/15/1995 12/15/1995 12/15/1995 12/21/1995
12/29/1995

154 CERTIFICATE of Service by plaintiffs' of answers to deft's ﬁrst set of interrogs and request for production to counsel on 12/8/95 (mk) (id). (Entered: 12/12/1995)
155 NOTICE of submission of time records by intervenor-plaintiff (mk) (id). (Entered: 12/19/1995)
TIME RECORDS submitted by Peter Cubra for intervenor-plaintiff NW for 11/95 (sealed) (mk) (Entered: 12/19/1995)
156 MOTION by defendants' for protective order that the depositions of Sherry Piperno, Hary Tipton, William Hunter, John Dantis, Josie Lyons, Anna Whitmore and Elaine Forin be not taken on dates speciﬁed on the notices of deposition (mk) (id). (Entered: 12/19/1995)
157 NOTICE of non-appearance for deposition on 12/28/95 at 8:30 am by Josie Lyons (mk) Modiﬁed on 12/19/1995 (id). (Entered: 12/19/1995)
158 NOTICE of non-appearance for deposition on 12/28/95 at 1:30 pm by Elaine Fortin (mk) Modiﬁed on 12/19/1995 (id). (Entered: 12/19/1995)
159 NOTICE of non-appearance for deposition on 12/28/95 at 1:30 pm by Sherry Piperno (mk) (id). (Entered: 12/19/1995)
160 NOTICE of non-appearance for deposition on 12/22/95 at 8:30 am by John Dantis (mk) (id). (Entered: 12/19/1995)
161 NOTICE of non-appearance for deposition on 12/20/95 at 1:00 pm by William Hunter, MD (mk) (id). (Entered: 12/19/1995)
162 NOTICE of non-appearance for deposition on 12/28/95 at 10:30 am by Anna Whitmore (mk) (id). (Entered: 12/19/1995)
163 NOTICE of non-appearance for deposition on 12/19/95 at 8:30 am by Harry Tipton (mk) (id). (Entered: 12/19/1995)
164 MOTION for Extension of time to complete discovery by defendants (mk) Modiﬁed on 01/02/1996 (id). (Entered: 12/19/1995)
165 NOTICE of hearing to counsel from Magistrate Judge Svet Status hearing set on 1/4/96 at 8:30 am (former employee) (id). (Entered: 12/23/1995)
166 RESPONSE by intervenor-plaintiffs' to defts' motion for protective order that the depositions of Sherry Piperno, Hary Tipton, William Hunter, John Dantis, Josie Lyons, Anna Whitmore and Elaine Forin be not taken on dates speciﬁed on the notices of deposition [156-1] (mk) (id). (Entered: 01/04/1996)

01/03/1996 01/09/1996 01/16/1996 01/16/1996 01/24/1996 02/01/1996
02/27/1996 02/28/1996 03/05/1996 03/06/1996 03/14/1996 03/22/1996 03/25/1996

167 RESPONSE by defendants to pltfs' motion for order that the remaining claims be tried before one jury; [153-1] (mk) (id). (Entered: 01/05/1996)
168 ENTRY OF APPEARANCE for defendants by Carol Jean Ritchie (mk) (id). (Entered: 01/09/1996)
169 NOTICE of acceptance of service of pltf intervenors' motion to intervene and complaint in intervention by plaintiffs (mk) (id). (Entered: 01/18/1996)
170 NOTICE of acceptance of service of pltf intervenors' motion to intervene and complaint in intervention by defendants (mk) (id). (Entered: 01/18/1996)
171 ANSWER by defendants' to amended complaint in intervention [150-1] (mk) (Additional attachment(s) added on 9/11/2013: # 1 Part 2 of 2) (id). (Entered: 01/29/1996)
172 ORDER by Magistrate Don J. Svet granting defts' motion for extension of time to complete discovery [164-1] ; Discovery cutoff 3/31/96 ; Motion Filing cutoff 5/2/96 ; Pretrial order ddl 6/25/96 (cc: all counsel) (mk) (id). (Entered: 02/01/1996)
174 MOTION (pro se) by plaintiff Bruce David Morawe to substitute attorney Anthony J. Ayala (mk) (id). (Entered: 03/04/1996)
173 MOTION by intervenor Lawrence A Johnson, pro se to intervene (former employee) (id). (Entered: 03/04/1996)
175 CERTIFICATE of Service by intervenor-plaintiffs of second set of requests for production of documents to counsel on 2/27/96 (mk) (id). (Entered: 03/07/1996)
SETTLEMENT CONFERENCE was held before Magistrate DeGiacomo; case partially settled; to be continued w/in 2 weeks (mk) (Entered: 03/12/1996)
LETTER from Magistrate DeGiacomo to counsel re the settlement conference will reconvene on 4/9/96 at 2:00 pm in Albuquerque, NM (mk) (Entered: 03/19/1996)
176 CLERK'S MINUTES: before Judge Martha Vazquez hearing on issue of potential overcrowding; City and County in violation of Court's Order; C/R: S. Huseby (mk) (id). (Entered: 03/26/1996)
177 MOTION by intervenor-plaintiffs' for order to show cause why defts should not be held in contempt (mk) (id). (Entered: 03/26/1996)

03/25/1996

178 MEMORANDUM by intervenor-plaintiffs' in support of motion for order to show cause why defts should not be held in contempt [177-1] (mk) (id). (Entered: 03/26/1996)

03/25/1996 179 MOTION by plaintiffs for order to show cause (mk) (id). (Entered: 03/26/1996)

03/25/1996

180 CLERK'S MINUTES: before Judge Martha Vazquez; defts must return inmates housed at Montessa 2 (warehouse) to BCDC's main facility; further defts must comply w/population cap C/R: S. Huseby (mk) (id). (Additional attachment(s) added on 9/11/2013: # 1 Main Document) (id). (Entered: 03/26/1996)

03/26/1996

181 NOTICE OF APPEAL by defendants from Dist. Court decision [176-1], [180-1] ; Fees paid - Distribution as required. (cc: all counsel) (mk) (id). (Additional attachment(s) added on 9/12/2013: # 1 Complete copy of main document) (id). (Entered: 03/26/1996)

03/26/1996

RECEIVED re appeal [181-1] fee in amount of $ 105.00 ( Receipt # 300 300114) (notice sent to USCA) (mk) (Entered: 03/27/1996)

03/27/1996 1053 LETTER to USCA transmitting proa (mk) (id). (Additional attachment(s) added on 6/28/2016: # 1 Docket Sheet) (mr). (Entered: 03/27/1996)

03/27/1996 1052 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez held on 3/25/96; (re [180-1] ) lodged in separate ﬁle folder (mk) (id). (Entered: 03/28/1996)

03/27/1996 183 ENTRY OF APPEARANCE for plaintiffs' by Mary Y.C. Han and Joseph P. Kennedy (mk) (id). (Entered: 03/28/1996)

03/27/1996

184 RESPONSE by defendants to pltf intervenors' motion for order to show cause why defts should not be held in contempt [177-1] (mk) (id). (Entered: 03/28/1996)

03/27/1996 185 NOTICE of non-availability by defendants atty John E. DuBois from 3/27/96 through 3/29/96 (mk) (id). (Entered: 04/01/1996)

03/28/1996

182 COPY of USCA Order: the application for stay pending appeal in 96-2057 is granted [181-1]; the petition for extraordinary relief in the nature of a writ of prohibition in 96-2056 is referred to the clerk of court to be assigned to a panel after brieﬁng; respondents may respond w/in 30 days, petitioners may reply w/in 15 days (mk) (id). (Entered: 03/28/1996)

03/29/1996 1072 ACKNOWLEDGEMENT of receipt of preliminary record in 1 volume by USCA on 3/26/96 - USCA Number: 96-2057 (mk) (id). (Entered: 03/29/1996)

03/29/1996 1226 Letter Transmitting Record on Appeal Received by U.S. Court of Appeals. (mr) (Entered: 06/28/2016)

04/04/1996

186 COPY of Published USCA Order: the stay pending appeal is granted and the petition for a writ of prohibition is referred to the Clerk for panel assignment re appeal [181-1] (mk) (id). (Additional attachment(s) added on 9/13/2013: # 1 Envelope to Main Document) (id). (Additional attachment(s) added on 9/13/2013: # 2 Complete copy of main document) (id). (Entered: 04/08/1996)

04/05/1996

1039

TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez held on 8/11/95; (re preliminary injunctin hearing [103-1] ) lodged in separate ﬁle folder (mk) (Additional attachment(s) added on 9/12/2013: # 1 Part 2 of 3, # 2 Part 3 of 3) (id). (Entered: 04/08/1996)

04/05/1996 1040 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez; telephonic conference held on 3/21/96; lodged in separate ﬁle folder (mk) (id). (Entered: 04/08/1996)

04/05/1996 1041 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez of telephonic conference held on 3/21/96; lodged in separate ﬁle folder (mk) (id). (Entered: 04/08/1996)

04/05/1996

1042

TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez held on 3/22/96; (re [176-1] ) lodged in separate ﬁle folder (mk) (Additional attachment(s) added on 9/12/2013: # 1 Part 2 of 2) (id). (Entered: 04/08/1996)

04/05/1996 1043 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez held on 3/25/96; (re [180-1] ) lodged in separate ﬁle folder (mk) (id). (Entered: 04/08/1996)

04/08/1996 187 SUPPLEMENT BRIEF by defendants, in response to the Court's 4/1/96 telephonic request (mk) (id). (Entered: 04/10/1996)

04/09/1996 188 CLERK'S MINUTES: a settlement conference was held before Magistrate Robert J. DeGiacomo (ks) (id). (Entered: 04/12/1996)

04/10/1996 1034 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez of status conference held on 8/9/95; (re [101-1] ) lodged in separate ﬁle folder (mk) (id). (Entered: 04/11/1996)

04/10/1996 1035 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez of telephonic conference held on 8/18/95; lodged in separate ﬁle folder (mk) (id). (Entered: 04/11/1996)

04/10/1996 1036 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez of conference held on 9/7/95; (re [117-1] ) lodged in separate ﬁle folder (mk) (id). (Entered: 04/11/1996)

04/10/1996 1037 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez telephonic conference held on 10/17/96; lodged in separate ﬁle folder (mk) (id). (Entered: 04/11/1996)

04/10/1996 1038 TRANSCRIPT OF PROCEEDINGS before Judge Martha Vazquez of telephonic conference held on 11/17/95; (re [144-1] ) lodged in separate ﬁle folder (mk) (id). (Entered: 04/11/1996)

04/15/1996

189 ORDER by Judge Martha Vazquez pursuant to 3/22/96 hearing re [176-1]; see order for speciﬁcs (cc: all counsel) (mk) (ln). (Entered: 04/15/1996)

04/15/1996

190 ORDER by Judge Martha Vazquez that defts comply w/ 8/23/95 stipulated order re [106-1], and 3/22/96 order re [176-1]; and tespond to pltfs motion to show cause why defts should not be held in contempt re [179-1]; see order for speciﬁcs (cc: all counsel) (mk) (ln). (Entered: 04/15/1996)

04/15/1996

191 CERTIFICATE by Lawrence A Johnson, pro se, of service of motion to intervene to all parties on 2/28/96 (former employee) (id). (Entered: 04/17/1996)

04/15/1996 192 TRANSCRIPT Order Form (TOF) from Appellant. Transcript Dates: 3/22/96, 3/25/96 re [181-1] (mk) (id). (Entered: 04/18/1996)

04/15/1996 1069 Letter by USCA regarding Docketing Statement. (id) (Entered: 09/13/2013)

04/23/1996 1070 TRANSCRIPT OF PROCEEDINGS telephone conference before Judge Martha Vazquez held on 9/11/95; (re [103-1] ) lodged in separate ﬁle folder (mk) (id). (Entered: 04/24/1996)

04/23/1996 193 STIPULATION re motion for interim attorney fees [108-1], re motion costs including witness fees [108-2] (mk) (id). (Entered: 04/25/1996)

04/23/1996

194 RESPONSE by defendants to Lawrence A. Johnson's motion to intervene [173-1] (mk) (id). (Additional attachment(s) added on 9/13/2013: # 1 Application to Proceed in Forma Pauperis, Supporting Documentation and Order) (id). (Entered: 04/25/1996)

04/24/1996

195 MOTION for Extension of time by intervenor-plaintiff until 5/1/96 to reply to their motion for order to show cause why defts should not be held in contempt [177-1] (mk) (id). (Entered: 04/30/1996)

05/01/1996

196 REPLY by intervenor-plaintiffs' to response to intervenor-pltfs' motion for order to show cause why defts should not be held in contempt [177-1] (mk) (id). (Entered: 05/03/1996)

05/02/1996 197 MEMORANDUM by intervenor Lawrence A Johnson in support of motion to intervene [173-1] (mk) (id). (Entered: 05/10/1996)

05/08/1996 1068 LETTER to USCA re record complete (mk) (id). (Entered: 05/08/1996)

05/08/1996 1227 Letter to U.S. Court of Appeals that Record is Complete. (mr) (Entered: 06/28/2016)

05/14/1996 198 REPLY by plaintiffs' to pltfs' motion for order to show cause [179-1] (mk) (id). (Entered: 05/16/1996)

05/22/1996 199 STIPULATION for dismissal with prejudice as to Thomas Young pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 200 STIPULATION of dismissal as to Maria Sisneros with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 201 STIPULATION to dismiss case as to Glenn Pachta with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 202 STIPULATION to dismiss Manual Martinez with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 203 STIPULATION to dismiss Debra Lavera with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 204 STIPULATION to dismiss Michael Lando with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 205 STIPULATION to dismiss Josie Kreiner with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 206 STIPULATION to dismiss Richard Kopecky with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 207 STIPULATION to dismiss Joe Ray Herrera with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 208 STIPULATION to dismiss Bartell Haley with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/22/1996

209 STIPULATION to dismiss Joseph Garcia with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
210 STIPULATION to dismiss Michael Cote with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
211 STIPULATION to dismiss Arnold Maestas with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
212 STIPULATION to dismiss Peter Smith with prejudice pursuant to rule 41(a) (ks) (id). (Entered: 05/23/1996)
213 STIPULATION to dismiss David Shaykin with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
214 STIPULATION to dismiss Janelle Roybal with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
215 STIPULATION to dismiss Bruce Morawe with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
216 STIPULATION to dismiss Jimmy McClendon with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
217 STIPULATION to dismiss Harold Lund with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
218 STIPULATION to dismiss Debbie Lucero with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
219 STIPULATION to dismiss Carl Ray Lopez with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
220 STIPULATION to dismiss David Layman with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
221 STIPULATION to dismiss Johnnie Lawver with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
222 STIPULATION to dismiss John Hewatt with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
223 STIPULATION to dismiss Larry Green with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
224 STIPULATION to dismiss Ruth Duran with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)

05/22/1996 05/22/1996 05/22/1996 05/22/1996 05/23/1996 05/29/1996 05/29/1996
05/29/1996
05/29/1996
06/07/1996 06/10/1996

225 STIPULATION to dismiss Shawn Duffy with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
226 STIPULATION to dismiss Danette Deﬁore with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
227 STIPULATION to dismiss Sean Broughton with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
228 STIPULATION to dismiss David Bauer with prejudice pursuant to Rule 41(a) (ks) (id). (Entered: 05/23/1996)
229 NOTICE by intervenor Lawrence A Johnson of change of address (mk) (id). (Entered: 05/29/1996)
230 ORDER by Judge Martha Vazquez re stipulation [228-1] dismissing party David Michael Bauer w/prejudice; (cc: all counsel) (mk) (id). (Entered: 05/29/1996)
231 ORDER by Judge Martha Vazquez re stipulations [227-1], [226-1], [225-1], [224-1], [223-1], [222-1], [221-1], [220-1], [219-1], [218-1] dismissing parties John Hewatt, Debbie Lucero, Larry Green, Danette DiFiori, Ruthie Duran, Carl Ray Lopez, Sean Broughton, Shawn Duffy, Johnnie Lawver, David Layman w/prejudice (cc: all counsel) (mk) (id). (Entered: 05/29/1996)
231 ORDER by Judge Martha Vazquez re stipulations [217-1], [216-1], [215-1], [214-1], [213-1], [212-1], [211-1], [210-1], [209-1], [208-1] dismissing parties Arnold Anthony Maestas, David Shawkin, Michael Cote, Bartel Haley, Janelle Roybal, Bruce David Morawe, Harold Lund, Jimmy McClendon, Joe Garcia, and Peter Smith w/prejudice (cc: all counsel) (mk) (Entered: 05/29/1996)
231 ORDER by Judge Martha Vazquez re stipulations [207-1], [206-1], [205-1], [204-1], [203-1], [202-1], [201-1], [200-1], [199-1] dismissing parties Manuel Martinez, Richard C Kopecky, Josie Kriena, Joe Ray Herrera, Maria Sisneros, Deborah Lavera, Thomas Young, Glenn Pachta, and Michael Lando w/prejudice (cc: all counsel) (mk) (Entered: 05/29/1996)
232 MOTION by defts to enforce settlement agreement (former employee) (id). (Entered: 06/07/1996)
233 MOTION (unopposed) by plaintiffs to withdraw attorney Anthony Ayala (mk) (id). (Entered: 06/11/1996)

06/13/1996

234 ORDER by Judge Martha Vazquez granting pltfs' motion to withdraw attorney Anthony Ayala [233-1] (cc: all counsel) (mk) (id). (Entered: 06/13/1996)

06/13/1996

234 ORDER by Judge Martha Vazquez granting pltfs' motion to withdraw attorney Anthony Ayala [233-1] (cc: all counsel) (mk) (Entered: 06/13/1996)

06/13/1996

234 ORDER by Judge Martha Vazquez granting pltfs' motion to withdraw attorney Anthony Ayala [233-1] (cc: all counsel) (mk) (Entered: 06/13/1996)

06/13/1996

234 ORDER by Judge Martha Vazquez granting pltfs' motion to withdraw attorney Anthony Ayala [233-1] (cc: all counsel) (mk) (Entered: 06/13/1996)

06/18/1996

LETTER from Magistrate DeGiacomo to counsel that case settlement conference will reconvene on 7/16/96 at 9:00 am (ks) (Entered: 06/20/1996)

06/25/1996 1067 LETTER to counsel by Magistrate Judge DeGiacomo vacating the 7/16/96 settlement conference and resetting it to 8/9/96 at 2:00 pm (former employee) (id). (Entered: 07/01/1996)

06/26/1996 235 NOTICE by defts of withdrawal of motion to enforce settlement agreement (former employee) (id). (Entered: 07/01/1996)

07/31/1996

236 MOTION by intervenor-plaintiffs to certify sub-class of all persons w/ mental and/or developmental disabilities (mk) (id). (Entered: 08/05/1996)

08/09/1996 1064 SETTLEMENT CONFERENCE was held before Magistrate DeGiacomo on 8/9/96; case partially settled (mk) (id). (Entered: 08/14/1996)

08/15/1996

237 ORDER by Judge Martha Vazquez granting plaintiff-intervenors motion certifying sub-class of all persons w/mental and/or developmental disabilities who are now, or in the future may be detained at Bernalillo County Detention Center for purposes of pursuing the claims in their complaint-in-intervention; further the plaintiff-intervenors shall be classrepresentatives of the sub-class [236-1]; as further described herein(cc: all counsel) (mk) (ln). (Entered: 08/15/1996)

08/26/1996

238 ORDER by Judge Martha Vazquez denying motion to intervene [173-1] by Lawrence A Johnson; see order for speciﬁcs (cc: all counsel) (mk) (id). (Entered: 08/26/1996)

09/13/1996 09/13/1996 09/18/1996 09/23/1996
09/30/1996 09/30/1996 09/30/1996 09/30/1996 10/04/1996

239 MOTION by defts for order for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 (former employee) (id). (Entered: 09/16/1996)
240 MEMORANDUM by defts in support of motion for order for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] (former employee) (id). (Entered: 09/16/1996)
241 NOTICE by intervenor-plaintiffs of change of address of atty Peter Cubra (mk) (id). (Entered: 09/23/1996)
242 NOTICE of hearing before Judge Martha Vazquez setting hearing on defts' motion for order for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] at 9:00 am on 10/11/96 in Santa Fe, NM; further responses to defts' motion are due by 5:00 pm on 9/30/96 and reply is due by 5:00 pm on 10/4/96 (CLERK: jm)(cc: all counsel by jm) (mk) (id). (Entered: 09/24/1996)
243 MOTION by intervenor-plaintiffs' for order for further remedial relief (mk) (id). (Entered: 10/03/1996)
244 RESPONSE by intervenor-plaintiffs' to defts' motion for order for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] (mk) (Additional attachment(s) added on 9/12/2013: # 1 Exhibit 1-3) (id). (Entered: 10/03/1996)
244 MEMORANDUM by intervenor-plaintiffs' in support of motion for order for further remedial relief [243-1] (mk) Modiﬁed on 10/03/1996 (Additional attachment(s) added on 6/28/2016: # 1 Exhibit 1-3) (mr). (Entered: 10/03/1996)
245 RESPONSE by plaintiffs' to defts' motion for order for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] (mk) Modiﬁed on 10/03/1996 (id). (Entered: 10/03/1996)
246 REPLY by defendants to responses to defts' motion for order for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] (mk) (id). (Entered: 10/08/1996)

10/11/1996
10/11/1996
10/11/1996 10/18/1996 10/21/1996 10/23/1996 10/29/1996
10/29/1996 11/05/1996 11/05/1996

247 CLERK'S MINUTES: before Judge Martha Vazquez taking under advisement defts' motion for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] C/R: C Marquardt (mk) (id). (Entered: 10/15/1996)
248 STIPULATION to a tolling of the 30 day automatic stay provision of 3626(e)(2)(A)(i) to 11/16/96; re motion for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] (mk) (id). (Entered: 10/15/1996)
249 RESPONSE by defendants to motion for order for further remedial relief [243-1] (mk) (id). (Entered: 10/17/1996)
250 ENTRY OF APPEARANCE for plaintiff Jimmy McClendon by Shannon L. Oliver (mk) (id). (Entered: 10/22/1996)
251 PROPOSED Findings of Fact and Conclusions of Law by intervenorplaintiff (mk) (id). (Entered: 10/22/1996)
252 MOTION by intervenor-plaintiffs' for protective order re conﬁdentiality (mk) (id). (Entered: 10/23/1996)
253 MEMORANDUM OPINION AND ORDER: by Judge Martha Vazquez ﬁnding that 18: U.S.C. 3626(e) is unconstitutional and that the prospective relief ordered by the Court will not be stayed pending the Court's consideration of defts' motion for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Orders dated 8/23/95, 9/7/95, and 3/22,25/96 [239-1] the 11/4/96 hearing is vacated until such time as adequate discovery is completed (cc: all counsel) (former employee) (ln). (Entered: 10/29/1996)
254 PROTECTIVE ORDER by Magistrate Richard L. Puglisi : granting motion for protective order re conﬁdentiality [252-1] (cc: all counsel) (mk) (id). (Entered: 10/29/1996)
255 ORDER by Judge Martha Vazquez regarding the prison litigation reform act (see order for speciﬁcs) (cc: all counsel) (msm) (ln). (Entered: 11/05/1996)
256 ORDER by Judge Martha Vazquez regarding agreement of the parties pursuant to 18 USC 3626(a)(1); see order for speciﬁcs (cc: all counsel) (msm) (ln). (Additional attachment(s) added on 9/13/2013: # 1 Enclosure Letter) (id). (Entered: 11/05/1996)

11/05/1996

257 ORDER by Judge Martha Vazquez certifying a class; hearing scheduled at 1:30 pm on 1/10/97 in Santa Fe to consider whether the settlements should be given ﬁnal approval. (see order for speciﬁcs) (cc: all counsel) (msm) (ln). (Entered: 11/05/1996)

11/19/1996

258 ORDER by Judge Martha Vazquez; that the portions of the Court's 3/22/96 and 3/25/96 memorialized on 4/15/96, that prohibit the defts from using alternative facilities to house jail inmates on a temporary basis without ﬁrst permitting counsel for pltfs and pltf inervenors to inspect the proposed facilities and that require defts to obtain Court approval prior to their use are vacated; as further described herein (cc: all counsel) (mk) (ln). (Entered: 11/19/1996)

12/02/1996 259 MOTION for Extension of time to ﬁle an application for attorney's fees, expenses and costs by intervenor-plaintiff (sl) (id). (Entered: 12/02/1996)

12/04/1996 260 MOTION for Extension of time to ﬁle for attorney's fees or for a declaration by plaintiffs (sl) (id). (Entered: 12/04/1996)

12/09/1996

261 ORDER by Judge Martha Vazquez granting request [259-1]; that plaintiff intervenors shall have until 12/31/96 within which to ﬁle their brief regarding attorney's fees (cc: all counsel) (msm) (id). (Entered: 12/09/1996)

12/09/1996 1054 Letter by Raymond Hamilton to Judge Vazquez regarding Mr. Schumann request for documents. (id) (Entered: 09/13/2013)

12/11/1996

262 ORDER by Judge Martha Vazquez granting unopposed motion for extension of time within which to ﬁle for attorney fees or for a declaration [260-1] (cc: all counsel) (msm) (id). (Entered: 12/11/1996)

12/12/1996

263 COPY of judgment from USCA dismissing the appeal as moot [181-1]; this case is remanded with directions to vacate portions of its oral orders of 3/22 and 3/25/96; as further described herein (mk) (id). (Entered: 12/16/1996)

12/30/1996

264 MOTION for Extension by intervenor-plaintiffs to ﬁle an application for attorneys' fees, expenses & costs until 1/22/97 (dmw) (id). (Entered: 12/30/1996)

01/03/1997

265 ORDER by Judge Martha Vazquez granting pltf intervenors motion for extension of time until 1/22/97 to ﬁle their motion for attys' fees, expenses and costs re settlement agreements [264-1] (cc: all counsel) (mk) (id). (Entered: 01/03/1997)

01/10/1997 01/10/1997 01/22/1997 01/29/1997
02/04/1997 02/07/1997 02/07/1997 02/07/1997 02/07/1997 02/07/1997 02/07/1997 02/19/1997
02/24/1997

266 CLERK'S MINUTES: before Judge Martha Vazquez re: fairness hearing - Court ﬁnds agreement fair, adequate and reasonable C/R: Cathleen Marqardt (msm) (id). (Entered: 01/13/1997)
267 REPORT re: comments by classmembers regarding the 11/5/96 settlement agreements (msm) (id). (Entered: 01/13/1997)
268 MOTION by intervenor-plaintiffs' for order for an extension of time to ﬁle pursuant to 54.5 an application for attorneys' fees, expenses and costs until 2/10/97 (sl) (id). (Entered: 01/23/1997)
269 ORDER by Judge Martha Vazquez granting motion for order for an extension of time to ﬁle pursuant to 54.5 an application for attorneys' fees, expenses and costs until 2/10/97 [268-1] (cc: all counsel) (msm) (id). (Entered: 01/29/1997)
270 UNOPPOSED MOTION for Extension to ﬁle an application for attorneys' fees, expenses and costs pursuant to Fed Rule 54.5 by intervenor-plaintiffs (sl) (id). (Entered: 02/04/1997)
271 MOTION by plaintiffs' for attorney's fees and for costs (sl) (id). (Entered: 02/10/1997)
272 MEMORANDUM by plaintiff in support of motion for attorney's fees [271-1] of motion for costs [271-2] (sl) (id). (Entered: 02/10/1997)
273 AFFIDAVIT of Shannon L. Oliver regarding motion for attorney's fees [271-1], regarding motion for costs [271-2] (sl) (id). (Entered: 02/10/1997)
274 AFFIDAVIT of Joseph P. Kennedy regarding motion for attorney's fees [271-1] and motion for costs [271-2] (sl) (id). (Entered: 02/10/1997)
275 AFFIDAVIT of Paul J. Kennedy regarding motion for attorney's fees [271-1] and motion for costs [271-2] (sl) (id). (Entered: 02/10/1997)
276 AFFIDAVIT of Mary Y.C. Han regarding motion for attorney's fees [271-1] and motion for costs [271-2] (sl) (id). (Entered: 02/10/1997)
277 ORDER by Judge Martha Vazquez granting plaintiff-intervenors motion for extension of time until 3/10/97 within which to ﬁle their motion regarding attorney fees [270-1] (cc: all counsel) (msm) (id). (Entered: 02/19/1997)
278 MOTION for Extension of time until 3/7/97 to ﬁle a response by defendants' to pltfs' application re motion for attorney's fees [271-1] and motion for costs [271-2] (sl) (id). (Entered: 02/24/1997)

02/27/1997 03/07/1997 03/12/1997 04/18/1997 04/18/1997 04/22/1997
04/22/1997
05/20/1997 06/09/1997

279 ORDER by Judge Martha Vazquez granting unopposed motion for extension to 3/7/97 within which to ﬁle response to application for atty fees [278-1] (cc: all counsel) (msm) (id). (Entered: 02/27/1997)
280 MOTION for Extension of time until 4/4/97 to ﬁle an application for attorneys' fees, expenses and costs pursuant to Rule 54.5 by intervenorplaintiffs' (sl) (id). (Entered: 03/10/1997)
281 ORDER by Judge Martha Vazquez that plaintiff intervenors shall have until 4/4/97 to ﬁle with the Court their motion and brief regarding an application for attorneys' fees, expenses and costs from 11/1/96 through 1/10/97 re [271-1], re [271-2] (cc: all counsel) (former employee) (id). (Entered: 03/12/1997)
282 JOINT MOTION to dismiss certain defendants (msm) (id). (Entered: 04/18/1997)
283 JOINT MOTION to substitute party defendants (msm) (id). (Entered: 04/18/1997)
284 ORDER by Judge Martha Vazquez granting motion to substitute party defendants [283-1] terminating as to defendant Bill Dantis substituting defendant Michael Sisneros ;terminating as to defendants Jacquelyn Schaefer, Barbara Seward, Eugene Gilbert, Albert Valdez, Patrick Baca and substituting defendant Board of Commissioners of Bernalillo County (cc: all counsel) (msm) (id). (Entered: 04/22/1997)
285 ORDER by Judge Martha Vazquez granting motion to dismiss certain defendants [282-1] terminating party John Does, party Brian Maser, party David Sherman, party Lynn King, party Seal Barley, party Douglas Robinson, party Stanley Lents, party Felimon Martinez, party David Royston, party Maria Lucero, party Barbara Cole, party Jim Mason, party Kevin D Sevir, party Victor Hernandez, party David Baca, party George Fuentes, party Richard Fusco, party Albert Chavez, party Will Bell, party John Van Sickler, party Michael Smith, party Ercell Grifﬁn, party Frank Lovato, party Paul Sanchez, party BCDC (cc: all counsel) (msm) (id). (Entered: 04/22/1997)
286 NOTICE by plaintiffs of withdrawal of pltfs' motion for attorney's fees and costs (sl) (id). (Entered: 05/20/1997)
287 ORDER by Judge Martha Vazquez; Ordered that defts shall submit an Order reﬂecting the Court's ﬁndings at the conclusion of the fairness hearing no later than 6/20/97 [266-1]; and Ordered that the parties confer and notify the Court via letter of the status of the issues remaining in this case no later than 6/20/97 (cc: all counsel) (pz) (id). (Entered: 06/09/1997)

07/07/1997
08/12/1997 09/02/1997
04/21/1998 04/23/1998 05/29/1998 09/03/1998 09/14/1998 10/07/1998

288 ORDER by Judge Martha Vazquez approving compromise and settlement agreement and ﬁnal judgment of dismissal with prejudice as to all claims which were brought in this class action in the Complaint or Amended Complaint in intervention, except as to pltf-intervenors' claims of denial of equal protection for female subclass members and of access to the courts are dismissed with prejudice [237-1] (cc: all counsel) (former employee) (ln). (Entered: 07/07/1997)
289 CORRECTED ORDER by Judge Martha Vazquez approving compromise and settlement agreement and ﬁnal judgment of dismissal with prejudice [288-1] (cc: all counsel) (former employee) (ln). (Entered: 08/12/1997)
290 ORDER by Judge Martha Vazquez ﬁnding the motion for order to show cause why defts should not be held in contempt [177-1] moot; ﬁnding the motion for order to show cause [179-1] moot; ﬁnding the motion for order for immediate termination of prospective relief regarding overpopulation granted or approved by the Court's Order dated 8/23/95, 9/7/95, 3/22/96 and 3/25/96 [239-1] moot, and ﬁnding the motion for order for further remedial relief [243-1] moot by reason of parties settlement agreement. (cc: all counsel) (msm) (id). (Entered: 09/02/1997)
291 MOTION by intervenor-plaintiffs' for protective order re conﬁdentiality of medical and mental health records obtained (sl) (id). (Entered: 04/22/1998)
292 ORDER by Judge Martha Vazquez granting motion for protective order re conﬁdentiality of medical and mental health records [291-1], and that the 10/29/96 Order remain in effect re [254-1] (cc: all counsel) (former employee) (id). (Entered: 04/23/1998)
293 NOTICE by defendants of unavailability of counsel from 6/1/98 6/15/98 (dmw) (id). (Entered: 05/29/1998)
294 SUBSTITUTION OF COUNSEL: terminating attorneys Han, Kennedy and Nichols for pltf Jimmy McClendon and substituting attorney Richard A. Winterbottom, Peter Schoenburg (sl) (id). (Entered: 09/04/1998)
295 MOTION by pltfs to substitute Richard A. Winterbottom & Peter Schoenburg as attorneys for pltfs herein (pr) (id). (Entered: 09/15/1998)
296 ORDER by Judge Martha Vazquez granting motion to substitute Richard A. Winterbottom & Peter Schoenburg as attorneys for pltfs herein [295-1] and terminating attorneys Shannon L. Oliver, Mary Y.C. Han Paul Kennedy, Carolyn M. Nichols and Joseph P. Kennedy and adding attorneys (cc: all counsel) (former employee) (Entered: 10/07/1998)

10/09/1998 297 RESPONSE by defendants to pltf's motion for substitution of counsel (motion not in system) (sl) (id). (Entered: 10/09/1998)

11/30/1998

298 MINUTE ORDER: before Judge Martha Vazquez ; Status conference set for 12/4/98 at 10:00 am in Santa Fe, NM (cc: all counsel, electronic mailing) (sl) (Entered: 12/01/1998)

03/03/1999

299 MINUTE ORDER: by Judge Martha Vazquez ; Status conference set for 3/23/99 at 1:00 pm in Albuquerque, NM (cc: all counsel, electronic mailing) (sl) (Entered: 03/03/1999)

03/23/1999 300 CLERK'S MINUTES: before Judge Martha Vazquez ; Status hearing held 3/23/99 (msm) (id). (Entered: 03/25/1999)

03/24/1999

301 CERTIFICATE of service by intervenor-plaintiff of entry of appearane/ substitution of counsel to counsel on 3/24/99 (vv) (id). (Entered: 03/25/1999)

03/24/1999

302 SUBSTITUTION OF COUNSEL: terminating attorney Nancy Koenigsberg for plaintiff intervenors and substituting attorney Lisa Y Schatz (msm) (id). (Entered: 03/29/1999)

04/21/1999

303 MINUTE ORDER: ; Status conference set 4/30/99 at 1:00 PM in Albuquerque, NM before Judge Vazquez (cc: all counsel by jm) (msm) Modiﬁed on 04/21/1999 (id). (Entered: 04/21/1999)

05/03/1999 304 NOTICE by pltfs NW, PS, DJ, WA, RL, EM of change of address for attorney Elizabeth E. Simpson (sl) (id). (Entered: 05/03/1999)

11/04/1999

1057

Letter by Jeffrey L. Baker to Judge Vazquez regarding The Bernalillo County Detention Center. (id) (Additional attachment(s) added on 9/13/2013: # 1 Complete copy of main document) (id). (Entered: 09/13/2013)

12/07/1999

305 UNOPPOSED MOTION by plaintiffs to withdraw attorney Richard Winterbottom and to substitute attorney Andrew Vallejos (mjr) (id). (Entered: 12/10/1999)

12/10/1999

306 ORDER by Judge Martha Vazquez granting motion to withdraw attorney Richard Winterbottom for the pltfs [305-1] and to substitute attorney Andrew Vallejos [305-2] (cc: all counsel) (mjr) (id). (Entered: 12/14/1999)

04/12/2000

307 MOTION by intervenor-plaintiffs for attorney fees (sl) (Additional attachment(s) added on 9/12/2013: # 1 Main Document) (id). (Entered: 05/11/2000)

05/11/2000

308 MEMORANDUM by intervenor-plaintiffs in support of motion for attorney fees [307-1] (sl) (Additional attachment(s) added on 9/13/2013: # 1 Enclosure Letter to Main Document) (id). (Entered: 05/11/2000)

05/11/2000 309 RESPONSE by defendants to pltf-intervenors' motion for attorney fees [307-1] (sl) (Entered: 05/11/2000)

05/11/2000 310 REPLY by intervenor-plaintiff to defts response to motion for attorney fees [307-1] (sl) (Entered: 05/11/2000)

08/22/2000

311 MEMORANDUM, OPINION, AND ORDER: by District Judge Martha Vazquez granting pltf-intervenors' motion for attorney fees as further described herein [307-1] (cc: all counsel*) (dmw) Modiﬁed on 08/24/2000 (Entered: 08/23/2000)

09/07/2000 312 UNOPPOSED MOTION by plaintiffs for order for entry of counsel Brian A. Pori (sl) (Entered: 09/07/2000)

09/13/2000

313 ORDER by District Judge Martha Vazquez granting motion for order for entry of counsel Brian A. Pori [312-1] (cc: all counsel) (msm) (id). (Entered: 09/13/2000)

09/13/2000 313 ENTRY OF APPEARANCE for plaintiffs by Brian A Pori (msm) (Entered: 09/13/2000)

09/20/2000

314 NOTICE OF APPEAL by defendant from Dist. Court decision [311-1]; Fees have been paid - Distribution as required. (cc: all counsel) (mjr) (id). (Entered: 09/20/2000)

09/20/2000 1059 LETTER to USCA re; transmitting PROA on 9/20/00 (mjr) (id). (Additional attachment(s) added on 9/13/2013: # 1 Receipt for ﬁling fee) (id). (Entered: 09/20/2000)

09/20/2000 1228 Letter to U.S. Court of Appeals Transmitting Preliminary Record. (mr) (Entered: 06/28/2016)

09/21/2000 1063 Letter by USDC to Peter Shoenberg regarding August 20, 2000 letter from Larry Green. (id) (Entered: 09/13/2013)

09/25/2000

315 ORDER by District Judge Martha Vazquez ordering that the defts shall comply with this court's prior order regarding the Prison Litigation Reform Act entered 11/5/96 requiring a population limit of 586 residents in the main facility of BCDC (cc: all counsel) (mjr) (ln). (Entered: 09/26/2000)

09/28/2000

ACKNOWLEDGEMENT of receipt of preliminary record in 1 Volume by USCA on 9/25/00 - USCA Number: 00-2380 (mjr) (Entered: 09/28/2000)

10/03/2000 316 TRANSCRIPT Order Form (TOF) from Appellant. Transcripts are not necessary for this appeal [314-1] (mjr) (id). (Entered: 10/03/2000)

10/03/2000 1058 LETTER to USCA re; record complete transcript not necessary (mjr) (id). (Entered: 10/03/2000)

01/17/2001 317 ENTRY OF APPEARANCE for intervenor-plaintiff PS by Claire Dickson (sl) (Entered: 01/17/2001)

05/01/2001 318 COPY of USCA Order: dissmissing the appeal; upon the stipulation of the parties [314-1] (mjr) (Entered: 05/01/2001)

06/27/2001

319 SUPPLEMENTAL ORDER by District Judge Martha Vazquez to enforce previously ordered population limits at the BCDC main facility (see order for speciﬁcs) (cc: all counsel) (msm) (Additional attachment(s) added on 9/24/2014: # 1 Exhibit A) (bap). (Entered: 06/27/2001)

08/27/2001 320 JOINT MOTION by plaintiffs for order to show cause and for further remedial relief (sl) (Entered: 10/04/2001)

09/21/2001 1062 Letter by Willie James Washington to The Bar Referral Service. (id) (Entered: 09/13/2013)

10/03/2001

321 MEMORANDUM by plaintiffs in support of motion for order to show cause and for further remedial relief [320-1] (sl) (Additional attachment(s) added on 9/12/2013: # 1 Exhibit A) (id). (Entered: 10/04/2001)

10/03/2001

322 RESPONSE by defendants to pltfs motion for order to show cause and for further remedial relief [320-1] (sl) (Additional attachment(s) added on 9/12/2013: # 1 Original pleading with missing Exhibits A-B) (id). (Entered: 10/04/2001)

10/03/2001

323 REPLY by plaintiffs to defts response to motion for order to show cause and for further remedial relief [320-1] (sl) (Additional attachment(s) added on 9/12/2013: # 1 Original pleading with missing Exhibits 1-2) (id). (Entered: 10/04/2001)

10/05/2001

324 MOTION by intervenor Willie James Washington to intervene (sl) (Additional attachment(s) added on 9/12/2013: # 1 Part 1 of 2, # 2 Part 2 of 2) (id). (Entered: 10/05/2001)

10/10/2001

325 AMENDED MOTION by intervenor Willie James Washington to intervene and or to challenge adequacy of representation of counsel (sl) (Additional attachment(s) added on 9/12/2013: # 1 Supplement Main Document) (id). (Entered: 10/10/2001)

10/23/2001 10/24/2001
10/24/2001
10/24/2001
10/31/2001
10/31/2001 10/31/2001
11/01/2001
11/15/2001 11/15/2001 11/15/2001 11/15/2001 11/16/2001 11/21/2001

326 RESPONSE by pltfs to motion to intervene [324-1] (vv) (Entered: 10/23/2001)
327 RESPONSE by intervenors NW, PS, DJ, WA, RL, EM to Willie Washington's motion to intervene and or to challenge adequacy of representation of counsel [325-1] [324-1] (sl) (Entered: 10/24/2001)
328 CERTIFICATE of service by defendant of second set of interrogatories and request for production to counsel on 10/22/01 (sl) (Entered: 10/24/2001)
329 CERTIFICATE of service by defendants of second set of interrogatories and request for production to counsel on 10/22/01 (sl) (Entered: 10/24/2001)
330 CERTIFICATE of service by intervenor-plaintiff of ﬁrst post-judgment set of interrogatories and ﬁrst post- judgment request for production to counsel on 10/29/01 (sl) (Entered: 11/01/2001)
331 CERTIFICATE of service by plaintiffs of ﬁrst set of request for admissions to counsel on 10/30/01 (sl) (Entered: 11/01/2001)
332 CERTIFICATE of service by plaintiffs of ﬁrst request for production of documents and ﬁrst set of interrogatories to counsel on 10/30/01 (sl) (Entered: 11/01/2001)
333 ORDER by District Judge Martha Vazquez setting hearing on motion for order to show cause and for further remedial relief [320-1] at 9:00 am on 11/29/01 (cc: all counsel*) (sl) (Entered: 11/02/2001)
334 EXHIBIT list by pltfs and plft intervenors (former employee) (Entered: 11/15/2001)
335 JOINT WITNESS list submitted by pltfs and pltf intervenors (former employee) (Entered: 11/15/2001)
336 EXHIBIT list by defts (former employee) (Entered: 11/15/2001)
337 WITNESS list submitted by defts (former employee) (Entered: 11/15/2001)
338 MOTION by Manuel R. Boswell to intervene (sl) (Entered: 11/16/2001)
339 ORDER by District Judge Martha Vazquez setting a settlement conference on 11/26/01 at 9:0 am in Albuququerque (cc: all counsel) (former employee) (Entered: 11/21/2001)

11/27/2001 11/27/2001
11/28/2001 11/30/2001 12/06/2001
12/18/2001 01/08/2002
01/18/2002 01/28/2002 01/28/2002 01/28/2002 01/28/2002 01/28/2002

342 UNOPPOSED MOTION by Pltfs' to continue evidentiary setting of 11/29 and 11/30/01 (msm) Modiﬁed on 01/02/2002 (Entered: 11/30/2001)
343 ORDER by District Judge Martha Vazquez granting pltfs unopposed motion to continue evidentiary setting of 11/29 and 11/30/01 [342-1]; further resetting hearing to 1/28/02 at 1:30 PM and continuing to 1/29/02 (cc: all counsel) (msm) (Entered: 11/30/2001)
340 CERTIFICATE by plaintiffs of service of answer to 2nd set of interrogs & request for production to counsel on 11/28/01 (eg) (Entered: 11/29/2001)
341 NOTICE by plaintiffs of change of address for attorney (sl) (Entered: 11/30/2001)
344 NOTICE of hearing before Judge Martha Vazquez on pltfs' motion for order to show cause and for further remedial relief [320-1] at 1:30 pm on 1/28/02 and continuing on 1/29/02 at 9:00 am in Santa Fe, NM (cc: all counsel*) (sl) (Entered: 12/11/2001)
345 CERTIFICATE by defendants of service of responses to 1st set of request for admissions to counsel on 12/03/01 (eg) (Entered: 12/20/2001)
346 CERTIFICATE by defendants of service of answers to plaintiffintervenors' ﬁrst post-judgment i nterrogs & responses to plaintiffintervenor's ﬁrst post-judgment request for production on 12/26/01 (mlk) Modiﬁed on 01/09/2002 (Entered: 01/09/2002)
347 NOTICE of rescheduling hearing on Order to Show Cause from January 28, 2002 to January 31, 2002 (cc: all counsel) (msm) (Entered: 01/18/2002)
348 UNOPPOSED MOTION for order for writ HCAT re: Linda Henning (former employee) (Entered: 01/28/2002)
349 UNOPPOSED MOTION for order for writ HCAT, re: Fernando Calleros (former employee) (Entered: 01/28/2002)
350 UNOPPOSED MOTION for order for writ HCAT re: Robert Harris (former employee) (Entered: 01/28/2002)
351 UNOPPOSED MOTION for order for writ HCAT re: William Barnett (former employee) (Entered: 01/28/2002)
352 UNOPPOSED MOTION for order for writ HCAT re: Alan Sawyer (former employee) (Entered: 01/28/2002)

01/29/2002

353 ORDER by District Judge Martha Vazquez granting pltfs' unopposed motion for order for writ HCAT re: Alan Sawyer [352-1] (cc: all counsel) (former employee) (id). (Entered: 01/29/2002)

01/29/2002 1050 WRIT of HCAT issued for Alan Swayer (former employee) (id). (Entered: 01/29/2002)

01/29/2002

354 ORDER by District Judge Martha Vazquez granting pltfs' unoposed motion for order for writ HCAT re: William Barnett [351-1] (cc: all counsel) (former employee) (id). (Entered: 01/29/2002)

01/29/2002 1049 WRIT of HCAT issued for William Burnett (former employee) (Additional attachment(s) added on 9/12/2013: # 1 Main Document) (id). (Entered: 01/29/2002)

01/29/2002

355 ORDER by District Judge Martha Vazquez granting pltfs' unoposed motion for order for writ HCAT re: Robert Harris [350-1] (cc: all counsel) (former employee) (id). (Entered: 01/29/2002)

01/29/2002 1048 WRIT for HCAT issued for Robert Harris (former employee) (id). (Entered: 01/29/2002)

01/29/2002

356 ORDER by District Judge Martha Vazquez granting pltfs' unopposed motion for order for writ HCAT, re: Fernando Calleros [349-1] (cc: all counsel) (former employee) (id). (Entered: 01/29/2002)

01/29/2002 1047 WRIT of HCAT issued for Fernando Calleros (former employee) (id). (Entered: 01/29/2002)

01/29/2002

357 ORDER by District Judge Martha Vazquez granting pltfs' unopposed motion for order for writ HCAT re: Linda Henning [348-1] (cc: all counsel) (former employee) (id). (Entered: 01/29/2002)

01/29/2002 1046 WRIT of HCAT issued for Linda Henning (former employee) (id). (Entered: 01/29/2002)

01/30/2002 358 SUPPLEMENT EXHIBIT list No. I by defendants (sl) (Entered: 01/31/2002)

01/30/2002 359 WITNESS list No. I submitted by defendants (sl) (Entered: 01/31/2002)

01/31/2002

361 ORDER (STIPULATED AGREEMENT) by District Judge Martha Vazquez and the parties regarding jail population management and pltfs agreement to withdraw their motion for order to show cause and for further remedial relief [320-1] (cc: all counsel) (former employee) (Entered: 02/05/2002)

01/31/2002

362 CLERK'S MINUTES: Settlement conference held before District Judge Martha Vazquez; the Court signed the settlement agreement; C/R: Irene Delgado (former employee) (Entered: 02/05/2002)

02/04/2002 360 ORDER by Magistrate Judge Don J. Svet denying pltf-intervenor's oral motion to compel (cc: all counsel) (sl) (Entered: 02/04/2002)

04/08/2002

363 MINUTE ORDER: by Judge Martha Vazquez setting emergency hearing to consider violation of the population cap on 4/11/02 at 3:00 pm in Santa Fe, NM (cc: all counsel*) (sl) (Entered: 04/09/2002)

04/11/2002

364 CLERK'S MINUTES: before District Judge Martha Vazquez; status conference; C/R: Juli LaBadia (mjr) Modiﬁed on 04/16/2002 (Entered: 04/16/2002)

04/16/2002 1071 TRANSCRIPT OF PROCEEDINGS before District Judge Martha Vazquez; status conference held on 4/11/02; (re [364-1]) lodged in separate ﬁle folder (mjr) (id). (Entered: 04/16/2002)

06/03/2002 365 NOTICE by intervenor Willie James Washington of judicial attachment (sl) (Entered: 06/05/2002)

06/04/2002 366 MOTION by pltf intervenors' NW, PS, DJ, WA, RL, EM for order to show cause and for further remedial relief (sl) (Entered: 06/05/2002)

06/04/2002

367 MEMORANDUM by NW, PS, DJ, WA, RL, EM in support of motion for order to show cause and for further remedial relief [366-1] (sl) (Entered: 06/05/2002)

06/17/2002 368 RESPONSE by intervenor-plaintiff to Willie Washington's judicial notice of attachment [365-1] (sl) Modiﬁed on 07/08/2002 (Entered: 06/18/2002)

06/18/2002

369 CERTIFICATE (NOTICE) by intervenor-plaintiffs of service of response to judicial notice & attachment to counsel on 06/17/02 (mlk) (Entered: 06/18/2002)

06/19/2002 370 RESPONSE by defendants to pltf intervenors' motion for order to show cause and for further remedial relief [366-1] (sl) (Entered: 06/19/2002)

06/26/2002

371 RESPONSE by intervenor Willie James Washington to pltf intervenor Claire Dickson's response to his judicial notice an attachment (sl) (Entered: 06/26/2002)

06/28/2002 372 CERTIFICATE by defendants of service of interrogs & request for production to counsel on 6/26/02 (ed) (Entered: 06/28/2002)

07/02/2002 373 MOTION by intervenor-plaintiffs to exceed page limitation for reply to response to motion for order to show cause (dmw) (Entered: 07/02/2002)

07/02/2002 07/03/2002
07/03/2002 07/03/2002
07/03/2002 07/03/2002 07/08/2002 07/10/2002 07/18/2002
07/22/2002 07/31/2002

374 ORDER by District Judge Martha Vazquez granting mtn to exceed page limitation for reply to response to mtn for order to show cause up to 24 pages [373-1] (cc: all counsel) (mjr) (Entered: 07/02/2002)
375 REPLY by intervenor-pltfs to response to mtn for order to show cause and for further remedial relief [366-1] (jrm) Modiﬁed on 07/10/2002 (Additional attachment(s) added on 9/12/2013: # 1 Original pleading including Exhibits 1-3) (id). (Entered: 07/05/2002)
376 CERTIFICATE of service of post judgment ntc to take oral depos pursuant to FRCP 30(B)(6) by intervenor-pltfs to counsel on 6/25/02 (jrm) (Entered: 07/05/2002)
377 MOTION by deft Albuquerque, City of for protective order prohibiting certain discovery (dmw) (Additional attachment(s) added on 9/12/2013: # 1 Original pleading including Exhibits A-D) (id). (Entered: 07/05/2002)
378 MEMORANDUM by deft Albuquerque, City of in support of motion for protective order prohibiting certain discovery [377-1] (dmw) (Entered: 07/05/2002)
379 NOTICE by deft Albuquerque, City of, of non-appearance at deposition (dmw) (Entered: 07/05/2002)
380 NOTICE by intervenor-plaintiffs of completion of brieﬁng of motion for an Order to show cause (sl) (Entered: 07/09/2002)
381 ORDER by Magistrate Judge Don J. Svet granting defts' motion for protective order prohibiting certain discovery [377-1] (cc: all counsel*) (sl) (Entered: 07/11/2002)
382 MOTION by intervenor Willie James Washington for leave to remove state complaint CV 02-3698 for his issues (mjr) (Additional attachment(s) added on 9/12/2013: # 1 Complete copy of main document, # 2 Exhibit A-B) (id). (Entered: 07/19/2002)
383 MOTION (objection) by intervenor-plaintiff for reconsideration of Magistrate Judge Svet's order of 7/10/02 (sl) (Additional attachment(s) added on 9/12/2013: # 1 Exhibit 1-5) (id). (Entered: 07/23/2002)
384 SUBSTITUTION OF COUNSEL: terminating attorney Elizabeth E. Simpson for pltf-intervenors and substituting attorney Linda M. Vanzi (sl) (Additional attachment(s) added on 9/13/2013: # 1 Enclosure Letter to Main Document) (id). (Entered: 07/31/2002)

07/31/2002 08/14/2002 08/14/2002 09/03/2002
09/03/2002 10/03/2002
10/17/2002 10/18/2002 10/18/2002 11/14/2002 11/25/2002 12/06/2002

385 RESPONSE by defendant Albuquerque, City of to pltf intervenors' motion for reconsideration of Magistrate Judge Svet's order of 7/10/02 [383-1] (sl) (Entered: 08/01/2002)
386 NOTICE by intervenor-plaintiffs of completion of brieﬁng of objections to Magistrate Judge's Order granting City of Albuquerque's motion for protective order (sl) (Entered: 08/15/2002)
387 REPLY by intervenor-plaintiff to deft's response to motion (objection) for reconsideration of Magistrate Judge Svet's order of 7/10/02 [383-1] (sl) (Entered: 08/15/2002)
388 ORDER by District Judge Martha Vazquez denying Willie Washington's motion to intervene and or to challenge adequacy of representation of counsel [325-1] and denying motion intervene [324-1] (cc: all counsel*) (sl) (Entered: 09/04/2002)
389 ORDER by District Judge Martha Vazquez denying Manuel Boswell's motion to intervene [338-1] (cc: all counsel*) (sl) (Entered: 09/04/2002)
390 MOTION by plaintiff Larry Green to intervene and or challenge adequacy of pltf's counsel's representation (sl) (Additional attachment(s) added on 9/12/2013: # 1 Complete copy of main document) (id). (Entered: 10/03/2002)
393 RESPONSE by plaintiffs to Larry Green's motion to intervene and or challenge adequacy of pltf's counsel's representation [390-1] (sl) (Entered: 10/21/2002)
391 RESPONSE by intervenor-plaintiffs to Larry Green's motion to intervene and or challenge adequacy of pltf's counsel's representation [390-1] (sl) (Entered: 10/21/2002)
392 NOTICE by plaintiff Larry Green of change of address (mlk) (Entered: 10/21/2002)
394 CONFIDENTIALITY ORDER by Magistrate Judge Don J. Svet concerning transition into the Metropolitan Detention Center as described herein (cc: all counsel) (sl) (Entered: 11/14/2002)
395 MOTION by intervenor-plaintiff for order re objection to Magistrate Judge Don Svet's conﬁdentiality order [394-1] (sl) (Entered: 12/05/2002)
396 RESPONSE by defendants to pltf-intervenors' motion for order re objection to Magistrate Judge Don Svet's conﬁdentiality order [394-1] [395-1] (sl) (Entered: 12/09/2002)

12/20/2002 01/17/2003 02/18/2003
03/10/2003 03/10/2003
03/11/2003 03/18/2003 04/01/2003 04/01/2003 04/14/2003
04/14/2003
05/20/2003 06/27/2003

397 REPLY by intervenor-plaintiffs to Magistrate Judge Svet's Conﬁdentiality Order [394-1] (sl) (Entered: 12/23/2002)
398 CERTIFICATE by plaintiff-intervenors of service of 3rd post judgment request for production to counsel on 1/16/03 (ed) (Entered: 01/17/2003)
399 CERTIFICATE of service by defendants of response to pltf's third post judgment request for production of documents to counsel (sl) (Entered: 02/19/2003)
400 MOTION by intervenor-plaintiffs to compel defts' for production of documents (sl) (Entered: 03/10/2003)
401 MEMORANDUM by intervenor-plaintiffs in support of motion to compel defts' for production of documents [400-1] (sl) (Entered: 03/10/2003)
402 NOTICE of unavailabilty of attorney from 3/19/03 to 3/31/03 by defendants (sl) Modiﬁed on 03/31/2003 (Entered: 03/12/2003)
403 RESPONSE by defendants to pltf-intervenors' motion to compel defts' for production of documents [400-1] (sl) (Entered: 03/19/2003)
404 NOTICE by intervenor-plaintiffs of completion of brieﬁng on motion to compel production of documents (sl) (Entered: 04/02/2003)
405 REPLY by intervenor-plaintiffs to defts' response to motion to compel defts' for production of documents [400-1] (sl) (Entered: 04/02/2003)
406 ORDER by District Judge Martha Vazquez denying Larry Green's motion to intervene and or challenge adequacy of pltf's counsel's representation [390-1] (cc: all counsel*) (sl) (Entered: 04/14/2003)
407 ORDER by District Judge Martha Vazquez denying Willie James Washington's motion for leave to remove state complaint CV 02-3698 for his issues [382-1] (cc: all counsel*) (sl) (Entered: 04/14/2003)
408 NOTICE by plaintiffs of change of address for counsel Brian A. Pori (sl) (Entered: 05/21/2003)
409 MOTION by plaintiff for preliminary injunction enjoining the defts from restricting class and sub class counsel from having access to the metropolitan detention center , and for temporary restraining order (sl) (Entered: 06/30/2003)

06/27/2003
07/01/2003 07/02/2003
07/07/2003 07/08/2003 07/09/2003 07/11/2003
08/08/2003 08/19/2003 09/08/2003

410 MEMORANDUM by plaintiffs in support of motion for preliminary injunction enjoining the defts from restricting class and sub class counsel from having access to the metropolitan detention center [409-1] and to motion for temporary restraining order [409-2] (sl) (Entered: 06/30/2003)
411 RESPONSE by defendants to pltfs' motion for preliminary injunction enjoining the defts from restricting class and sub class counsel from having access to the metropolitan detention center [409-1] and to motion for temporary restraining order [409-2] (sl) (Entered: 07/02/2003)
412 MEMORANDUM by plaintiffs and pltf intervenors in support of motion for preliminary injunction enjoining the defts from restricting class and sub class counsel from having access to the metropolitan detention center [409-1] and to motion for temporary restraining order [409-2] (sl) (Entered: 07/03/2003)
413 REPLY by plaintiff intervenors in support of motion for preliminary injunction enjoining the defts from restricting class and sub class counsel from having access to the metropolitan detention center [409-1] & for temporary restraining order [409-2] (dmw) (Entered: 07/07/2003)
415 CLERK'S MINUTES: before District Judge Martha Vazquez re TRO and Preliminary Injunction [409-1] & [409-2]; Court takes motions under advisement, C/R: J. LaBadia (td) (Entered: 07/10/2003)
414 NOTICE by intervenor-plaintiff's counsel of unavailability from 7/11/03 until 7/28/03 (vv) (Entered: 07/10/2003)
416 MEMORANDUM, OPINION, AND ORDER: by District Judge Martha Vazquez granting pltfs & pltf intervenors' motion for preliminary injunction enjoining the defts from restricting class and sub class counsel from having access to the metropolitan detention center [409-1] & for temporary restraining order [409-2] (cc: all counsel*) (PUBLISHED) (dmw) Modiﬁed on 07/17/2003 (Entered: 07/11/2003)
417 NOTICE of unavailability of counsel from 11/12/03 through 12/5/03 by defendants (ed) (Entered: 08/11/2003)
418 MINUTE ORDER: Case referred from Magistrate Judge Richard L. Puglisi to Magistrate Judge Alan C. Torgerson (cc: all counsel*) (sl) (Entered: 08/19/2003)
419 CERTIFICATE by intervenor-plaintiffs NW, PS, DJ, WA, RL & EM of service of 4th post-judgment request for production of documents to counsel on 9/5/03 (emr) (Entered: 09/09/2003)

10/03/2003 10/10/2003 10/10/2003 10/17/2003 10/23/2003 10/23/2003 10/23/2003 11/05/2003 11/05/2003 11/05/2003 11/06/2003

420 CERTIFICATE of service by defendants of responses to pltf intervenors' fourth post-judgment request for production of documents to counsel on 10/3/03 (sl) (Entered: 10/06/2003)
421 MOTION by defendants to vacate settlement agreement , and to dismiss claims for equal protection and access to courts (sl) (Entered: 10/14/2003)
422 MEMORANDUM by defendants in support of motion to vacate settlement agreement [421-1] and to dismiss claims for equal protection and access to courts [421-2] (sl) (Entered: 10/14/2003)
423 NOTICE of hearing on pltf intervenors' motion to compel defts' for production of documents [400-1] at 9:00 am on 10/22/03 before Magistrate Judge Torgerson in Albuquerque (cc: all counsel*) (bap) (Entered: 10/17/2003)
424 NOTICE of hearing before Magistrate Judge Alan Torgerson on motion to compel defts' for production of documents [400-1] at 3:00 pm on 12/12/03 in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 10/23/2003)
425 MOTION by intervenor-plaintiffs to compel production of documents from defts (sl) (Entered: 10/24/2003)
426 MEMORANDUM by intervenor-plaintiffs in support of motion to compel production of documents from defts [425-1] (sl) (Entered: 10/24/2003)
427 SUPPLEMENTAL MOTION by intervenor-plaintiffs to compel production of documents from defts (sl) Modiﬁed on 11/21/2003 (Entered: 11/05/2003)
428 MEMORANDUM by intervenor-plaintiffs in support of motion to compel production of documents from defts [427-1] (sl) (Entered: 11/05/2003)
429 CERTIFICATE by defendants Bernalillo County Bd & defendant Michael Sisneros of service of 2nd supplemental response to 4th post judgment request for production of documents to counsel on 10/30/03 (emr) (Entered: 11/05/2003)
430 STIPULATED ORDER by Chief Judge Martha Vazquez granting the pltfs and pltf intervenors' time to respond to mtn to vacate until 11/17/03; defts' reply due by 12/22/03 (cc: all counsel) (mjr) (Entered: 11/06/2003)

11/07/2003 431 RESPONSE by defendants to pltf-intervenors' motion to compel production of documents from defts [427-1] (sl) (Entered: 11/10/2003)

11/12/2003 432 RESPONSE by defendants to pltf-intervenors' motion to compel production of documents from defts [427-1] (sl) (Entered: 11/13/2003)

11/20/2003

433 NOTICE by intervenor-plaintiffs of completion of brieﬁng on motion to compel production of documents from defts and supplemental motion to compel production of documents (sl) (Entered: 11/21/2003)

11/20/2003

434 REPLY by intervenor-plaintiffs to response to supplemental motion to compel production of documents from defts [427-1] and compel production of documents from defts [425-1] (sl) (Entered: 11/21/2003)

11/24/2003

435 RESPONSE by intervenor-plaintiffs to motion to vacate settlement agreement [421-1] and to dismiss claims for equal protection and access to courts [421-2] (sl) (Entered: 11/25/2003)

11/24/2003

436 RESPONSE by plaintiffs to motion to vacate settlement agreement [421-1] and to dismiss claims for equal protection and access to courts [421-2] (sl) (Entered: 11/25/2003)

11/26/2003

437 STIPULATED ORDER by Chief Judge Martha Vazquez extending time to complete brieﬁng on defts' mtn to vacate settlement agreement; pltfs response shall be ﬁled by 11/24/03 and defts reply to be ﬁled by 12/29/03 (cc: all counsel) (mjr) (Entered: 11/26/2003)

12/12/2003

438 CERTIFICATE of service of corrected response to pltf-intervenors' supplemental motion to compel production of documents to counsel on 12/12/03 by defendant Albuquerque, City of * (sl) (Entered: 12/12/2003)

12/15/2003 439 RESPONSE by defendants to pltf-intervenors' motion to compel production of documents from defts [427-1]* (sl) (Entered: 12/15/2003)

12/29/2003

440 REPLY by defendants to response to motion to vacate settlement agreement [421-1] and to dismiss claims for equal protection and access to courts [421-2] * (sl) (Entered: 12/29/2003)

12/29/2003 441 NOTICE by defendants of completion of brieﬁng on motion to vacate settlement agreement* (sl) (Entered: 12/29/2003)

01/08/2004

442 ORDER by Magistrate Judge Alan C. Torgerson granting/denying in part pltf intervenors' motions to compel production of documents from defts [427-1] [425-1] [400-1] as described herein (cc: all counsel) (sl) (Entered: 01/08/2004)

01/15/2004 1044 Letter by Judge Vazquez to counsel of record regarding letter received on January 13, 2004 from Allen M. Sawyer. (id) (Entered: 09/12/2013)

01/22/2004

443 CERTIFICATE by defendants of service of response to 3rd & 4th postjudgment request for production to counsel on 01/22/04 (emr) (Entered: 01/23/2004)

01/27/2004 1045 TRANSCRIPT OF PROCEEDINGS before Chief Judge Martha Vazquez held on 7/8/03; (re [415-1]) (mjr) (id). (Entered: 01/27/2004)

01/29/2004

1073

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motions to Compel Hearing held on 12/12/2003, before Judge Alan C. Torgerson. Court Reporter/Transcriber Thomas Garrett. PLEASE TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Ofﬁce public terminal within the 90-day period. Notice of Intent to Request Redaction set for 2/5/2004. Redaction Request due 2/19/2004. Redacted Transcript Deadline set for 3/1/2004. Release of Transcript Restriction set for 4/28/2004.(id) (Entered: 09/13/2013)

03/19/2004 444 NOTICE by intervenor-plaintiffs of withdrawal of counsel Linda M. Vanzi (sl) (Entered: 03/19/2004)

03/19/2004 445 ENTRY OF APPEARANCE for plaintiffs by Marc M Lowry (emr) (Entered: 03/19/2004)

03/25/2004 446 MOTION by intervenor-plaintiffs for leave to ﬁle sur-reply (sl) (Entered: 03/25/2004)

04/01/2004

447 SUPPLEMENTAL ORDER by Magistrate Judge Alan C. Torgerson supplementing the discovery order entered on 1/28/04 as described herein (cc: all counsel) (sl) (Entered: 04/01/2004)

04/06/2004 448 RESPONSE by defts to plaintiff-intervenor's mtn for leave to ﬁle surreply [446-1]* (pr) (Entered: 04/07/2004)

04/06/2004 449 NOTICE by counsel for defts of unavailability from 6/14/04 thru 6/18/04 and 8/23/04 thru 9/3/04* (pr) (Entered: 04/07/2004)

04/23/2004 450 NOTICE by intervenor-plaintiffs of completion of brieﬁng on motion for leave to ﬁle surreply (sl) (Entered: 04/23/2004)

05/19/2004 06/03/2004 06/07/2004 07/02/2004 08/02/2004 08/02/2004 08/19/2004
08/23/2004 08/23/2004 09/08/2004 09/08/2004

451 CERTIFICATE of service by defendants of third response to intervenors fourth post-judgment request for production of documents to counsel on 5/19/04* (sl) (Entered: 05/19/2004)
452 CERTIFICATE of service by defendants of fourth response to pltf intervenors fourth post-judgment request for production of documents to counsel on 6/3/04* (sl) (Entered: 06/03/2004)
453 CERTIFICATE of service by intervenor-plaintiff & plaintiff of joint post judgment request for production of documents to counsel on 6/4/04 (vv) (Entered: 06/07/2004)
454 CERTIFICATE of service by defendants of response to pltf's and pltfintervenors' joint post-judgment request for production of documents to counsel on 7/2/04 * (sl) (Entered: 07/06/2004)
455 MOTION by plaintiffs to compel production of documents from defts (sl) (Entered: 08/02/2004)
456 MEMORANDUM by plaintiffs in support of motion to compel production of documents from defts [455-1] (sl) (Additional attachment(s) added on 9/12/2013: # 1 Complete copy of main document) (id). (Entered: 08/02/2004)
457 RESPONSE by defendants to motion to compel production of documents from defts [455-1] (sl) (Additional attachment(s) added on 9/12/2013: # 1 Complete copy of main document Part 1 of 2, # 2 Complete copy of main document Part 2 of 2) (id). (Entered: 08/19/2004)
458 ORDER by Chief Judge Martha Vazquez re pltf's motion for order re objection to Magistrate Judge Don Svet's conﬁdentiality order [394-1] [395-1] as described herein (cc: all counsel*) (sl) Modiﬁed on 08/23/2004 (Entered: 08/23/2004)
459 MEMORANDUM, OPINION, AND ORDER: by Chief Judge Martha Vazquez re motion for reconsideration of Magistrate Judge Svet's order of 7/10/02 [383-1] setting aside order [381-1] (cc: all counsel*) (sl) (Entered: 08/23/2004)
460 REPLY by plaintiffs and pltf intervenors to response to motion to compel production of documents from defts [455-1] (sl) (Entered: 09/08/2004)
461 NOTICE by plaintiffs of completion of brieﬁng on motion to compel production of documents (sl) (Entered: 09/08/2004)

09/29/2004 10/14/2004 10/21/2004 10/22/2004 10/27/2004
11/01/2004 11/04/2004 11/04/2004 11/04/2004 11/08/2004 11/08/2004 11/08/2004

462 NOTICE by defendants of unavailability of counsel from 10/14/04 through 10/15/04 and 5/20/05 through 5/25/05 * (sl) (Entered: 09/29/2004)
463 NOTICE of hearing before Chief Judge Martha Vazquez on all pending motions at 9:30 am on 12/1/04 in Santa Fe, NM (cc: all counsel*) (sl) (Entered: 10/14/2004)
464 CERTIFICATE of service by defendants of third set of interrogatories and request for production to counsel on 10/20/04 (sl) (Entered: 10/22/2004)
465 CERTIFICATE of service by defendants of request for admissions to counsel on 10/22/04 * (sl) (Entered: 10/25/2004)
466 CERTIFICATE of service by intervenor-plaintiffs of set of interrogatories and request for production to counsel 10/26/04 (sl) (Additional attachment(s) added on 9/12/2013: # 1 Original pleading with missing page 2) (id). (Entered: 10/28/2004)
467 ORDER by Magistrate Judge Alan C. Torgerson setting settlement conference for 11/19/04 at 10:30 am (cc: all counsel*) (sl) (Entered: 11/02/2004)
468 CERTIFICATE of service by intervenor-plaintiffs of post judgment notice to take oral depositions pursuant to Rule 30(b) to counsel on 10/26/04 (sl) (Entered: 11/04/2004)
469 CERTIFICATE of service by intervenor-plaintiffs of post judgment notice to take oral deposition of Margaret Severson to counsel on 11/3/04 (sl) (Entered: 11/04/2004)
470 CERTIFICATE of service by intervenor-plaintiffs of post judgment notice to take oral deposition of David Voorhis to counsel on 11/3/04 (sl) (Entered: 11/04/2004)
471 MOTION by defendant Albuquerque, City of for protective order re depositions requested by plaintiff intervenors (dmw) (Entered: 11/09/2004)
472 MEMORANDUM by defendant Albuquerque, City of in support of motion for protective order re depositions requested by plaintiff intervenors [471-1] (dmw) (Entered: 11/09/2004)
473 NOTICE of non-appearance at depositions by defendant Albuquerque, City of (dmw) (Entered: 11/09/2004)

11/09/2004

474 ORDER by Magistrate Judge Alan C. Torgerson setting hearing on motion for protective order [471-1] & motion to compel production of documents [455-1] at 11:00 am on 11/10/04 (cc: all counsel*) (vv) (Entered: 11/09/2004)

11/12/2004

475 ORDER by Magistrate Judge Alan C. Torgerson granting deft City of Albuquerque's motion for protective order re depositions requested by plaintiff intervenors as further described herein [471-1] (cc: all counsel) (jrm) Modiﬁed on 11/15/2004 (Entered: 11/12/2004)

11/12/2004

476 ORDER by Magistrate Judge Alan C. Torgerson granting pltf's motion to compel production of documents from defts [455-1] (cc: all counsel*) (dmw) (Entered: 11/12/2004)

11/16/2004

477 CLERK'S MINUTES: before Magistrate Judge Alan C. Torgerson hearing held on discovery motions C/R: Jennifer Bean * (sl) (Entered: 11/16/2004)

11/22/2004 1056 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Alan C. Torgerson held on 11/10/04; () lodged in separate ﬁle folder (sl) (id). (Entered: 11/22/2004)

11/24/2004 478 SETTLEMENT CONFERENCE held before Magistrate Judge Alan Torgerson on 11/19/04* (sl) (Entered: 11/24/2004)

11/24/2004

479 CERTIFICATE of service by intervenor-plaintiff of responses to City of Albuquerque's request for admissions to counsel on 11/22/04 (sl) (Entered: 11/24/2004)

12/28/2004

480 ORDER by Chief Judge Martha Vazquez terminating case between pltfs & defts as stipulated by the parties (cc: all counsel) (td) (Entered: 12/28/2004)

12/28/2004

481 ORDER by Chief Judge Martha Vazquez terminating case between pltf intervenors & defts as stipulated by the parties (cc: all counsel) (td) (Entered: 12/28/2004)

03/08/2005 482 NOTICE by pltfs of change of address (jrm) (Entered: 03/08/2005)

03/30/2005 483 MOTION by plaintiffs for order preliminary approving stipulated settlement agreement between pltf and defts (sl) (Entered: 03/31/2005)

04/20/2005

484 MOTION by intervenor-plaintiffs for order preliminary approving stipulated settlement agreement between pltf intervenors and defts (sl) (Entered: 04/21/2005)

04/22/2005
04/22/2005 04/22/2005
04/22/2005 04/27/2005
05/16/2005
05/17/2005 05/18/2005 05/24/2005 05/31/2005 06/02/2005
06/08/2005 06/14/2005
06/14/2005

485 ORDER by Chief Judge Martha Vazquez granting the unopposed motion for order preliminary approving stipulated settlement agreement between pltf and defts [483-1] (cc: all counsel) (mjr) (Entered: 04/25/2005)
486 NOTICE OF PROPOSED SETTLEMENT (mjr) (Entered: 04/25/2005)
487 ORDER by Chief Judge Martha Vazquez granting unopposed motion for order preliminary approving stipulated settlement agreement between pltf intervenors and defts [484-1] (cc: all counsel) (mjr) (Entered: 04/25/2005)
488 NOTICE OF PROPOSED SETTLEMENT (mjr) (Entered: 04/25/2005)
489 DISCOVERY ORDER by Magistrate Judge Alan C. Torgerson re motion to compel [455-1] as further described herein (cc: all counsel) (sl) (Entered: 04/27/2005)
490 OBJECTIONS by "Sub-Class" members David Jenkins and Jeffrey Miller to order re; settlement agreement [485-1] (mjr) (Entered: 05/17/2005)
492 OBJECTIONS by James Fallis to order re; settlement agreement [485-1] (mjr) Modiﬁed on 05/24/2005 (Entered: 05/24/2005)
491 NOTICE by intervenor-plaintiffs unavailabilty of counsel from 5/28/05 through 6/6/05 (sl) (Entered: 05/18/2005)
493 OBJECTIONS by Richard Cruz to order re; settlement agreement [485-1] (mjr) (Entered: 05/24/2005)
494 OBJECTIONS by John Dzula to order re; settlement agreement [485-1] (mjr) (Entered: 05/31/2005)
495 NOTICE by plaintiffs of submission re notice of settlement (sl) (Additional attachment(s) added on 9/12/2013: # 1 Original pleading including Exhibits 1-5) (id). (Entered: 06/02/2005)
496 OBJECTIONS by movant Dennis F. Barela to order [485-1] (sl) (Entered: 06/08/2005)
497 NOTICE by intervenor-plaintiffs of submission of letters from class members (sl) (Additional attachment(s) added on 9/12/2013: # 1 Original pleading with missing pages 3-32) (id). (Entered: 06/14/2005)
498 OBJECTIONS by Sam Brooks to order re settlement agreement [485-1] (td) (Entered: 06/14/2005)

06/17/2005 06/17/2005 06/17/2005 06/17/2005 06/20/2005 06/20/2005 06/20/2005 06/20/2005 06/21/2005 06/21/2005 06/21/2005 06/23/2005 06/23/2005 06/27/2005

499 SUPPLEMENTAL objection by Sam Brooks re; settlement proposal [498-1] (mjr) (Entered: 06/17/2005)
500 OBJECTIONS by Kevin Brown to order re; settlement agreement [485-1] (mjr) (Additional attachment(s) added on 9/12/2013: # 1 Original pleading with missing pages 2) (id). (Entered: 06/17/2005)
501 OBJECTIONS by Eric Nelson to order re; settlement agreement [485-1] (mjr) Modiﬁed on 06/22/2005 (Entered: 06/17/2005)
502 OBJECTIONS by Christopher Campbell to order re; settlement agreement [485-1] (mjr) (Additional attachment(s) added on 9/12/2013: # 1 Complete copy of main document) (id). (Entered: 06/17/2005)
503 MEMORANDUM by plaintiffs in support of motion for order preliminarily approving stipulated settlement agreement between pltf and defts [483-1] * (sl) Modiﬁed on 06/27/2005 (Entered: 06/21/2005)
505 NOTICE by intervenor-plaintiffs of submission of letters (sl) (Entered: 06/21/2005)
506 REPORT by intervenor-plaintiffs re comments from class members re two proposed settlement agreements (sl) (Entered: 06/21/2005)
507 NOTICE by intervenor-plaintiffs of submission re letters from class members (sl) (Additional attachment(s) added on 9/12/2013: # 1 Exhibit 1-10, # 2 Exhibit 11-18) (id). (Entered: 06/21/2005)
504 CERTIFICATE of service by plaintiffs of memorandum in support of proposed stipulated settlement agreement to counsel on 6/21/05 * (sl) (Entered: 06/21/2005)
508 NOTICE by plaintiffs of submission of letters from class members re notice of settlement (seal) (Entered: 06/22/2005)
509 OBJECTIONS by Daniel Trujillo to order re; settlement agreement [485-1] (mjr) (Entered: 06/22/2005)
510 RESPONSE by defendant to pltfs' memorandum in support of proposed stipulated settlement agreement [503-1] (sl) (Additional attachment(s) added on 9/12/2013: # 1 Exhibit A-E) (id). (Entered: 06/23/2005)
511 RESPONSE by defendants to report re comments from class members re two proposed settlement agreement [508-] * (sl) (Entered: 06/24/2005)
512 RESPONSE by plaintiffs to pltf intervenors' report re two proposed settlement agreements [506-1] (sl) Modiﬁed on 07/05/2005 (Entered: 06/29/2005)

06/30/2005

513 CLERK'S MINUTES: before Chief Judge Martha Vazquez hearing on proposed settlement agreements C/R: J. LaBadia (sl) (Entered: 06/30/2005)

06/30/2005

514 STIPULATED SETTLEMENT AGREEMENT by Chief Judge Martha Vazquez between plaintiff intervenors and defendants (see document for speciﬁcs) (cc: all counsel) (mjr) Modiﬁed on 06/30/2005 (Entered: 06/30/2005)

06/30/2005

515 STIPULATED SETTLEMENT AGREEMENT by Chief Judge Martha Vazquez between plaintiffs and defendants (cc: all counsel) (mjr) (Entered: 06/30/2005)

07/13/2005 516 NOTICE by intervenor-plaintiffs' counsel on unavailability from 7/15/05 through 8/1/05 (sl) (Entered: 07/13/2005)

07/19/2005 1065 TRANSCRIPT OF PROCEEDINGS before Chief Judge Martha Vazquez held on 6/30/05; (re [513-1]) (mjr) (id). (Entered: 07/19/2005)

07/29/2005 517 NOTICE by intervenor-plaintiff's counsel of unavailability from 8/15-22/05 (vv) (Entered: 07/29/2005)

08/03/2005 518 CONFIDENTIALITY ORDER by Magistrate Judge Alan C. Torgerson (cc: all counsel) (sl) (Entered: 08/03/2005)

11/28/2005 519 NOTICE by intervenor's counsel of change of address (sl) (Entered: 11/28/2005)

02/09/2006 520 NOTICE OF UNAVAILABILITY by Peter Cubra, attorney for pltfintervenors from 03/27/06 until 03/31/06 (ln) (Entered: 02/09/2006)

05/19/2006 521 CERTIFICATE by pltf intervenors of service of requests for production to counsel on 05/18/06 (nc) (Entered: 05/23/2006)

05/25/2006 522 NOTICE by intervenor-plaintiffs' counsel of unavailability from 6/30/06 through 7/24/06* (sl) (Entered: 05/25/2006)

07/14/2006 523 NOTICE by plaintiffs of unavailability of counsel from 7/15/06 through 7/31/06* (sl) (Entered: 07/17/2006)

08/18/2006 524 NOTICE by counsel for defts of unavailability from 12/8/06 thru 12/27/06* (pr) (Entered: 08/18/2006)

08/24/2006 525 CERTIFICATE of service on response to request for production by defts to counsel on 8/24/06* (jm) (Entered: 08/24/2006)

09/27/2006 12/18/2006 01/17/2007 01/19/2007 01/19/2007 01/19/2007 02/14/2007 03/08/2007 03/19/2007
03/19/2007 03/26/2007

526 ORDER by Magistrate Judge Alan C. Torgerson setting mediation conference on 10/18/06 @ 9:30 am (cc: all counsel)* (jm) (Entered: 09/27/2006)
527 NOTICE of hearing by the Honorable Alan C. Torgerson setting Status hearing on 1/16/07 @ 9:30 am in Albuquerque, NM (cc: all counsel)* (jm) (Entered: 12/18/2006)
528 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 1/17/2007. (Court Reporter None.) (Koenig, Barbara) (Entered: 01/17/2007)
529 ORDER by Judge Alan C. Torgerson Setting Two Status Conferences on February 14, 2007, at 9:30 a.m., and March 19, 2007, at 9:30 a.m. in the "Gila" Courtroom. (Entered: 01/19/2007)
Set Deadlines/Hearings: Status Conference set for 2/14/2007 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (Entered: 01/19/2007)
Set Deadlines/Hearings: Status Conference set for 3/19/2007 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (Entered: 01/19/2007)
530 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 2/14/2007. (Court Reporter None.) (Koenig, B) (Entered: 02/16/2007)
531 NOTICE by Judge Alan C. Torgerson that a Status Conference is scheduled for Monday, March 19, 2007, at 9:30 a.m., in the Gila Courtroom. (Entered: 03/08/2007)
532 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 3/19/2007. Next status conference will be May 14, 2007 at 10:30 AM in the Gila Courtroom. (bjk) (Entered: 03/19/2007)
Set/Reset Hearings: Status Conference set for 5/14/2007 10:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (bjk) (Entered: 03/19/2007)
533 ORDER by Judge Alan C. Torgerson Rescheduling Status Conference. The status conference set in this matter for Monday, May 14, 2007, at 10:30 a.m., is rescheduled for Friday, May 18, 2007, at 10:00 a.m. THIS IS A TEXT-ONLY ORDER. THERE ARE NO DOCUMENTS ATTACHED. (Entered: 03/26/2007)

03/26/2007 03/26/2007
03/30/2007 03/30/2007 03/30/2007 04/06/2007 04/23/2007 04/23/2007 05/21/2007 06/14/2007
06/28/2007
06/28/2007

Set Deadlines/Hearings: Status Conference set for 5/18/2007 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (Entered: 03/26/2007)
534 NOTICE by EM Counsel for Plaintiff Intervenors of Unavailability; Claire Dickson unavailable from 3/28/07 thru 4/5/07; and Peter Cubra unavailable from 3/26/07 thru 3/30/07 (Dickson, Claire) Modiﬁed text on 3/28/2007 (pz). (Entered: 03/26/2007)
535 Mail Returned as Undeliverable. Mail sent to Andrew Vallejos (jm) (Entered: 03/30/2007)
536 Mail Returned as Undeliverable. Mail sent to Andrew Vallejos (jm) (Entered: 03/30/2007)
537 Mail Returned as Undeliverable. Mail sent to Andrew Vallejos (jm) (Entered: 03/30/2007)
538 Mail Returned as Undeliverable. Mail sent to Andrew Vallejos (jm) (Entered: 04/10/2007)
539 NOTICE of Appearance by Kathryn Levy on behalf of Albuquerque, City of, Martin Chavez (Levy, Kathryn) (Entered: 04/23/2007)
540 NOTICE by Albuquerque, City of, Martin Chavez Substitution of Counsel (Levy, Kathryn) (Entered: 04/23/2007)
541 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 5/21/2007. (Court Reporter None.) (bjk) (Entered: 05/21/2007)
542 ORDER by Judge Alan C. Torgerson Setting Status Conference. Status Conference set for 6/28/2007 09:30 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. (Entered: 06/14/2007)
543 Proposed MOTION for Order to Permit Counsel to Visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility by Jimmy McClendon. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Lowry, Marc) (Entered: 06/28/2007)
544 ORDER by Judge Alan C. Torgerson Setting Rule 16 Status Conference. Status Conference set for 7/27/2007 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (Entered: 06/28/2007)

07/03/2007 07/12/2007
07/26/2007 07/26/2007 07/30/2007
08/01/2007 08/01/2007 08/01/2007 08/08/2007 08/09/2007
08/10/2007 08/12/2007

545 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 6/29/07. (Court Reporter FTR Pecos.) (bjk) (Entered: 07/03/2007)
546 RESPONSE to Motion re 543 Proposed MOTION for Order to Permit Counsel to Visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility ﬁled by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 07/12/2007)
547 NOTICE of Appearance by Lisa Y Schatz-Vance on behalf of EM, RL, WA, DJ, PS, NW (Schatz-Vance, Lisa) (Entered: 07/26/2007)
548 MOTION Permit counsel to have access to RCC, its residents and their records by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Cubra, Peter) (Entered: 07/26/2007)
549 Plaintiffs' REPLY in Support of re 543 Proposed MOTION for Order to Permit Counsel to Visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility ﬁled by Jimmy McClendon. (Lowry, Marc) (Entered: 07/30/2007)
Set/Reset Hearings: Continuation of Settlement/Status Conference set for 8/30/2007 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (bjk) (Entered: 08/01/2007)
550 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Interim Settlement/Status Conference held on 7/27/2007 (Court Reporter Gila CFR.) (bjk) (Entered: 08/01/2007)
551 ORDER by Judge Alan C. Torgerson setting continuation of settlement conference for Thursday, August 30, 2007 at 9:30 AM in the Gila Courtroom. (bjk) (Entered: 08/01/2007)
552 CERTIFICATE OF SERVICE by EM, RL, WA, DJ, PS, NW of Requests for Production (Schatz-Vance, Lisa) (Entered: 08/08/2007)
553 Board of County Commissioners of Bernalillo County's RESPONSE to Plaintiff Intervenors' re 548 MOTION Permit counsel to have access to RCC, its residents and their records ﬁled by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 08/09/2007)
554 NOTICE by EM, RL, WA, DJ, PS, NW of Unavailability (Cubra, Peter) (Entered: 08/10/2007)
555 MOTION for Order to Show Cause and For Further Remedial Relief by Jimmy McClendon. (Pori, Brian) (Entered: 08/12/2007)

08/12/2007 08/15/2007 08/22/2007 08/23/2007 08/23/2007 08/23/2007 08/24/2007 08/24/2007 08/27/2007 08/30/2007 08/30/2007

556 MEMORANDUM in Support Motion for an Order to Show Cause ﬁled by Jimmy McClendon. (Pori, Brian) (Entered: 08/12/2007)
557 CERTIFICATE OF SERVICE by Bernalillo, County of Fourth Set of Interrogatories to Plaintiff Intervenors (Baker, Jeffrey) (Entered: 08/15/2007)
558 CERTIFICATE OF SERVICE by Bernalillo, County of Defendants' Fourth Set of Interrogatories to Plaintiffs (Baker, Jeffrey) (Entered: 08/22/2007)
559 RESPONSE to Motion re 555 MOTION for Order to Show Cause and For Further Remedial Relief by Plaintiff-Intervenors ﬁled by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit A)(Cubra, Peter) (Entered: 08/23/2007)
560 REPLY to Response to Motion re 548 MOTION Permit counsel to have access to RCC, its residents and their records by PlaintiffIntervenors ﬁled by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit A)(Cubra, Peter) (Entered: 08/23/2007)
561 NOTICE by EM, RL, WA, DJ, PS, NW Certiﬁcate of Service re Plaintiff-Intervenors' Post-Judgment Notice to Take Oral Deposition(s) Pursuant to Federal Rule of Civil Procedure 30(B)(6) (Cubra, Peter) (Entered: 08/23/2007)
562 MOTION for Contempt (Order to Show Cause) and for Further Remedial Relief by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit A)(Schatz-Vance, Lisa) (Entered: 08/24/2007)
563 ERRATA re 562 MOTION for Contempt (Order to Show Cause) and for Further Remedial Relief by EM, RL, WA, DJ, PS, NW (Attachments: # 1 Exhibit A)(Schatz-Vance, Lisa) (Entered: 08/24/2007)
564 RESPONSE to Motion re 555 MOTION for Order to Show Cause and For Further Remedial Relief ﬁled by Bernalillo, County of. (Baker, Jeffrey) (Entered: 08/27/2007)
565 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Ongoing Settlement/Status Conference held on 8/30/2007. (Court Reporter None.) (bjk) (Entered: 08/30/2007)
Set/Reset Hearings: Ongoing Settlement/Status Conference set for 9/25/2007 01:30 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (bjk) (Entered: 08/30/2007)

09/05/2007 09/05/2007 09/05/2007
09/05/2007 09/07/2007 09/07/2007 09/14/2007 09/14/2007 09/17/2007

566 NOTICE of Brieﬁng Complete by EM, RL, WA, DJ, PS, NW re 548 MOTION Permit counsel to have access to RCC, its residents and their records ﬁled by PS, EM, NW, DJ, WA, RL (Cubra, Peter) (Entered: 09/05/2007)
567 Unopposed MOTION for Extension of Time to File Reply to Defendant's Response to Plaintiff's Motion for an Order to Show Cause by Jimmy McClendon. (Pori, Brian) (Entered: 09/05/2007)
568 ORDER TO SHOW CAUSE by Chief Judge Martha Vazquez re 553 Board of County Commissioners of Bernalillo County's RESPONSE to Plaintiff Intervenors' re 548 MOTION to Permit counsel to have access to RCC, its residents and their records ﬁled by Bernalillo County Board of Commissioners. Show Cause Response due by 9/15/2007. (mr) (Entered: 09/05/2007)
569 NOTICE of Brieﬁng Complete by all plaintiffs re 543 Proposed MOTION for Order to Permit Counsel to Visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility ﬁled by Jimmy McClendon (Lowry, Marc) (Entered: 09/05/2007)
570 Unopposed MOTION for Extension of Time to File Response/Reply as to 562 MOTION for Contempt (Order to Show Cause) and for Further Remedial Relief ﬁled by Plaintiff-Intervenors by Bernalillo, County of. (Baker, Jeffrey) (Entered: 09/07/2007)
571 CERTIFICATE OF SERVICE by Bernalillo, County of the Responses to Plaintiff-Intervenors Post-Judgment Requests for Production (Baker, Jeffrey) (Entered: 09/07/2007)
572 Unopposed MOTION for Leave to File Excess Pages for Defendant's Response to Plaintiff-Intervenors' Motion for an Order to Show Cause by Bernalillo, County of. (Attachments: # 1 Proposed form of Order directing Dist. Court Clerk to accept for ﬁling)(Baker, Jeffrey) (Entered: 09/14/2007)
573 ORDER by Judge Martha Vazquez granting 572 Motion for Leave to File Excess Pages (rm) (Entered: 09/14/2007)
574 RESPONSE to Motion re 562 MOTION for Contempt (Order to Show Cause) and for Further Remedial Relief ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit Dr. Stellman's Report# 2 Exhibit September 6, 2007 letter# 3 Exhibit PSU staff)(Baker, Jeffrey) (Entered: 09/17/2007)

09/19/2007 09/19/2007 09/20/2007 09/20/2007 09/20/2007 09/21/2007 09/21/2007 09/25/2007 09/25/2007 09/28/2007 10/05/2007

575 REPLY to Response to Motion re 555 MOTION for Order to Show Cause and For Further Remedial Relief ﬁled by Jimmy McClendon. (Pori, Brian) (Entered: 09/19/2007)
576 Defendant Bernalillo County's RESPONSE to the Court's sua sponte Order to Show Cause re 568 Order to Show Cause, ﬁled by Bernalillo, County of. (Attachments: # 1 Afﬁdavit John Dantis)(Baker, Jeffrey) (Entered: 09/19/2007)
577 NOTICE by Bernalillo, County of Non-Appearance for Plaintiff Intervenors' Post-Judgment Notice to Take Oral Deposition(s) Pursaunt to Fed. Rule of Civ. Procedure 30(B)(6) (Baker, Jeffrey) (Entered: 09/20/2007)
578 MOTION for Protective Order and Request for Discovery Conference by Bernalillo, County of. (Attachments: # 1 Exhibit A)(Baker, Jeffrey) (Entered: 09/20/2007)
579 CERTIFICATE OF SERVICE by EM, RL, WA, DJ, PS, NW re: Plaintiff Intervenors' Answers to Defendants' Fourth Set of Interrogatories (Cubra, Peter) (Entered: 09/20/2007)
580 NOTICE by Jimmy McClendon OF UNAVAILABILITY (Lowry, Marc) (Entered: 09/21/2007)
581 NOTICE of Brieﬁng Complete by all plaintiffs re 555 MOTION for Order to Show Cause and For Further Remedial Relief ﬁled by Jimmy McClendon (Lowry, Marc) (Entered: 09/21/2007)
Set/Reset Hearings: Status/Settlement Conference set for 10/24/2007 01:30 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (bjk) (Entered: 09/25/2007)
582 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status/ Settlement Conference held on 9/25/2007. (Court Reporter CFR recording.) (bjk) (Entered: 09/25/2007)
583 NOTICE by EM, RL, WA, DJ, PS, NW of Stipulated Agreement to an Extension of Time to File Plaintiff-Intervenors' Reply to Defendant's Response to Plaintiff-Intervenors' Motion for an Order to Show Cause (Schatz-Vance, Lisa) (Entered: 09/28/2007)
584 MOTION to Compel Production of Documents from Defendant Bernalillo County and Memorandum in Support by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit A)(Dickson, Claire) (Entered: 10/05/2007)

10/05/2007 10/05/2007
10/09/2007 10/11/2007 10/19/2007 10/19/2007 10/24/2007 10/24/2007

585 STIPULATION to Allow Plaintiff Intervenors to Exceed Page Limits for Their Motion for Further Remedial Relief to Address the Defendants' Noncompliance by EM, RL, WA, DJ, PS, NW (Cubra, Peter) (Entered: 10/05/2007)
586 REPLY to Response to Motion re 562 MOTION for Contempt (Order to Show Cause) and for Further Remedial Relief ﬁled by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit A# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17)(Cubra, Peter) (Entered: 10/05/2007)
587 RESPONSE in Opposition re 578 MOTION for Protective Order and Request for Discovery Conference ﬁled by EM, RL, WA, DJ, PS, NW. (Schatz-Vance, Lisa) (Entered: 10/09/2007)
588 NOTICE of Brieﬁng Complete by EM, RL, WA, DJ, PS, NW re 562 MOTION for Contempt (Order to Show Cause) and for Further Remedial Relief ﬁled by PS, EM, NW, DJ, WA, RL (Cubra, Peter) (Entered: 10/11/2007)
589 Unopposed MOTION for Extension of Time to File Response/Reply as to 584 MOTION to Compel Production of Documents from Defendant Bernalillo County and Memorandum in Support by Bernalillo, County of. (Baker, Jeffrey) (Entered: 10/19/2007)
590 ORDER by Judge Alan C. Torgerson granting 589 Unopposed Motion for Extension of Time for Filing a Response to Plaintiff-Intervenors' Motion to Compel Production of Documents. Response due by 10/24/2007. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (Entered: 10/19/2007)
591 RESPONSE to Motion re 584 MOTION to Compel Production of Documents from Defendant Bernalillo County and Memorandum in Support ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit Transcript of Settlement Agreement Hearing# 2 Exhibit Defendant's Fourth Set of Interrogatories)(Baker, Jeffrey) (Entered: 10/24/2007)
592 Clerk's Minutes: An Interim Status Conference was held beginning at 1:30 p.m. on 10/24/2007, before Magistrate Judge Alan C. Torgerson. (Entered: 10/24/2007)

10/25/2007
11/05/2007 11/05/2007 11/14/2007 11/14/2007 11/14/2007 11/26/2007 12/11/2007 12/17/2007

593 ORDER by Judge Alan C. Torgerson Setting Status Conference. Status Conference set for 12/20/2007 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (Please note that the date for the next status conference is different from the date discussed during the status conference of 10/24/2007.) (Entered: 10/25/2007)
594 Unopposed MOTION for Extension of Time to File Response/Reply by EM, RL, WA, DJ, PS, NW. (Dickson, Claire) (Entered: 11/05/2007)
595 ORDER by Judge Alan C. Torgerson granting 594 Motion for Extension of Time to File Response/Reply re 594 Unopposed MOTION for Extension of Time to File Response/Reply. Reply due by 11/14/2007. (Entered: 11/05/2007)
596 NOTICE of Brieﬁng Complete by Bernalillo, County of re 578 MOTION for Protective Order and Request for Discovery Conference ﬁled by Bernalillo, County of (Baker, Jeffrey) (Entered: 11/14/2007)
597 STIPULATION TO ALLOW PLAINTIFF INTERVENORS TO EXCEED PAGE LIMITS FOR THEIR REPLY TO DEFENDANT by EM, RL, WA, DJ, PS, NW (Schatz-Vance, Lisa) (Entered: 11/14/2007)
598 REPLY to Response to Motion re 584 MOTION to Compel Production of Documents from Defendant Bernalillo County and Memorandum in Support ﬁled by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit) (Schatz-Vance, Lisa) (Entered: 11/14/2007)
599 NOTICE of Brieﬁng Complete by EM, RL, WA, DJ, PS, NW re 584 MOTION to Compel Production of Documents from Defendant Bernalillo County and Memorandum in Support ﬁled by PS, EM, NW, DJ, WA, RL (Schatz-Vance, Lisa) (Entered: 11/26/2007)
600 ORDER to Show Cause directing the parties to respond as noted therein; by Judge Martha Vazquez (td) (Entered: 12/11/2007)
601 NOTICE that this Court will conduct a hearing on County of Bernalillo's Motion for Protective Order and Request for Discovery Conference [Docket No. 578] and Plaintiff Intervenors' Motion to Compel Production of Documents From Defendant County of Bernalillo and Memorandum in Support [Docket No. 584] at the Rule 16 Status Conference scheduled for 12/20/2007 at 10:00 a.m. in the Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 12/17/2007)

12/18/2007 12/19/2007 12/24/2007
01/08/2008 01/10/2008 01/11/2008
01/11/2008
01/16/2008 01/16/2008 01/24/2008
01/25/2008

602 Unopposed MOTION for Extension of Time to File Response/Reply as to 600 Order Court's sua sponte Order to Show Cause by Bernalillo, County of. (Baker, Jeffrey) (Entered: 12/18/2007)
603 ORDER by Judge Martha Vazquez granting 602 Motion for Extension of Time to File Response as to 600 Court's sua sponte Order to Show Cause until 1/11/08 (td) (Entered: 12/19/2007)
604 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 12/20/2007. Status Conference set for 1/7/2008 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 12/24/2007)
605 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 1/8/2008. (kc) (Entered: 01/08/2008)
606 Unopposed MOTION for Leave to File Excess Pages for Defendant's Response to the Court's sua sponte Order to Show Cause by Bernalillo, County of. (Attachments: # 1)(Baker, Jeffrey) (Entered: 01/10/2008)
607 ORDER by Judge Martha Vazquez granting in part and denying in part defendant's 606 Motion for Leave to File Excess Pages to the Order to Show Cause 600 ; Extension of 33 pages granted with a maximum of 80 pages of exhibits (td) (Entered: 01/11/2008)
608 Defendant Bernalillo County's RESPONSE to the Court's sua sponte Order to Show Cause re 600 Order ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4) (Baker, Jeffrey) (Entered: 01/11/2008)
609 NOTICE of Change of Address by Claire Dickson (Dickson, Claire) (Entered: 01/16/2008)
610 NOTICE of Appearance by Flynn Evelyn Sylvest on behalf of EM, RL, WA, DJ, PS, NW (Sylvest, Flynn) (Entered: 01/16/2008)
611 Unopposed MOTION for Extension of Time to File Plaintiffs' Response to the Court's Sua Sponte Order to Show Cause 600 by Joseph W Anderson. (Lowry, Marc) Modiﬁed text on 1/25/2008. (mr) (Entered: 01/24/2008)
612 Unopposed MOTION for Extension of Time to File Response/Reply as to 600 Order to Show Cause by EM, RL, WA, DJ, PS, NW. (SchatzVance, Lisa) (Entered: 01/25/2008)

01/28/2008 01/28/2008 01/30/2008 02/06/2008 02/06/2008
02/08/2008 02/08/2008 02/08/2008 02/08/2008 02/12/2008 02/12/2008

613 ORDER by Judge Martha Vazquez granting 611 Unopposed Motion for Extension of Time no later than 2/8/08 to ﬁle a response to the Court's Order 600 (td) (Entered: 01/28/2008)
614 MOTION to Withdraw as Attorney by Jimmy McClendon. (Pori, Brian) (Entered: 01/28/2008)
615 RESPONSE to Motion re 614 MOTION to Withdraw as Attorney ﬁled by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 01/30/2008)
616 ORDER by Judge Martha Vazquez granting 612 Motion for Extension of Time to File Response to 600 Order to Show Cause Response due by 2/8/2008 (td) (Entered: 02/06/2008)
617 NOTICE of Hearing on Motion 578 MOTION for Protective Order. Motion Hearing set for 2/25/2008 01:30 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. The Court will also address any remaining issues related to Plaintiff-Intervenors Motion to Compel. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 02/06/2008)
618 NOTICE of Appearance by Marcus J Rael, Jr on behalf of Bernalillo County Board of Commissioners, Bernalillo, County of (Rael, Marcus) (Entered: 02/08/2008)
619 NOTICE of Appearance by Daniel J Macke on behalf of Bernalillo County Board of Commissioners, Bernalillo, County of (Macke, Daniel) (Entered: 02/08/2008)
620 RESPONSE TO ORDER TO SHOW CAUSE by EM, RL, WA, DJ, PS, NW (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit)(Cubra, Peter) (Entered: 02/08/2008)
621 Second MOTION for Extension of Time to File RESPONSIVE PLEADING TO THE COURTS SUA SPONTE ORDER by Jimmy McClendon. (Lowry, Marc) (Entered: 02/08/2008)
622 Plaintiffs' RESPONSE to the Court's December 11, 2007 Sua Sponte Order re 608 Response, 600 Order ﬁled by Jimmy McClendon. (Lowry, Marc) (Entered: 02/12/2008)
623 Amended Unopposed 614 MOTION to Withdraw as Attorney For Plaintiff Class by Jimmy McClendon. (Pori, Brian) Modiﬁed text on 2/14/2008. (mr) (Entered: 02/12/2008)

02/13/2008 02/15/2008 02/18/2008

624 APPENDIX/SUPPLEMENT re 622 Response to the Court's December 11, 2007 Order to Show Cause by Joseph W Anderson (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Lowry, Marc) (Entered: 02/13/2008)
625 Unopposed MOTION for Order To Consider Plaintiffs' Response to the Court's December 11, 2007 Order to Show Cause as Timely Filed (Doc. 622) by Joseph W Anderson. (Lowry, Marc) (Entered: 02/15/2008)
626 Unopposed MOTION to Appoint Counsel for Plaintiff Class by Janelle Roybal, DJ, Danette DiFiori, Maria Sisneros, Larry Green, Bartel Haley, Michael Cote, Joe Ray Herrera, Josie Kriena, Debbie Lucero, David Shawkin, Jimmy McClendon, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Harold Lund, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, David Michael Bauer, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Richard C Kopecky, Phillip Shumate, Nelson Romero, Carl Ray Lopez, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Bruce David Morawe, Pete McQueen, Manuel Martinez, Arnold Anthony Maestas, John Hewatt, Thomas Young, Ruthie Duran, Deborah Lavera. (Ives, Zachary) (Entered: 02/18/2008)

02/18/2008
02/19/2008 02/19/2008 02/21/2008 02/21/2008 02/21/2008

627 MEMORANDUM in Support re 626 Unopposed MOTION to Appoint Counsel for Plaintiff Class ﬁled by Janelle Roybal, DJ, Danette DiFiori, Maria Sisneros, Larry Green, Bartel Haley, Michael Cote, Joe Ray Herrera, Josie Kriena, Debbie Lucero, David Shawkin, Jimmy McClendon, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Harold Lund, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, David Michael Bauer, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Allen M Sawyer, Patrick Benny Romero, Richard C Kopecky, Phillip Shumate, Nelson Romero, Carl Ray Lopez, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Bruce David Morawe, Pete McQueen, Manuel Martinez, Arnold Anthony Maestas, John Hewatt, Thomas Young, Ruthie Duran, Deborah Lavera. (Attachments: # 1 Exhibit Ex.1 - Declaration of Zachary A. Ives# 2 Exhibit Ex. 2 - Declaration of Alexandra Freedman Smith)(Ives, Zachary) (Entered: 02/18/2008)
628 Unopposed MOTION for Extension of Time to File Response/Reply as to 620 Response to Order to Show Cause by Bernalillo, County of. (Baker, Jeffrey) (Entered: 02/19/2008)
629 Unopposed MOTION for Extension of Time to File Response/Reply as to 622 Response by Bernalillo, County of. (Baker, Jeffrey) (Entered: 02/19/2008)
630 ORDER by Judge Martha Vazquez granting 625 Plaintiff's Unopposed Motion for Extension of Time to File response. THIS IS A TEXT-ONLY ENTRY. NO DOCUMENT IS ATTACHED. (td) (Entered: 02/21/2008)
631 ORDER by Judge Martha Vazquez granting 628 Motion for Extension of Time to File Response. THIS IS A TEXT-ONLY ENTRY. NO DOCUMENT IS ATTACHED. (td) (Entered: 02/21/2008)
632 ORDER by Judge Martha Vazquez granting 629 Motion for Extension of Time to File Reply. THIS IS A TEXT-ONLY ENTRY. NO DOCUMENT IS ATTACHED (td) (Entered: 02/21/2008)

02/21/2008
02/22/2008
02/28/2008 02/28/2008 03/04/2008
03/06/2008 03/06/2008 03/07/2008 03/07/2008

633 AMENDED ORDER granting in part 629 Defendant Bernalillo County's Unopposed MOTION for Extension of Time to File Reply 622 by Judge Martha Vazquez. Defendant requested an extension up through March 10, 2008 and the extension is granted up through March 7, 2008. (td) THIS IS A TEXT-ONLY ENTRY. NO DOCUMENT IS ATTACHED. Modiﬁed text on 2/28/2008. (mr) (Entered: 02/21/2008)
634 ORDER by Judge Alan C. Torgerson granting 623 Amended, Unopposed Motion for the Withdrawal of Brian A. Pori, Counsel for the Plaintiff Class. Attorney Brian A Pori terminated. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 02/22/2008)
635 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 2/25/2008. (kc) (Entered: 02/28/2008)
Set/Reset Hearings: Status Conference set for 4/18/2008 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 02/28/2008)
636 ORDER by Judge Alan C. Torgerson granting 626 Unopposed Motion of Plaintiffs and Applicant Freedman Boyd Hollander Goldberg & Ives P.A. to Appoint Freedman Boyd Hollander Goldberg & Ives P.A. Class CoCounsel. Freedman Boyd Hollander Goldberg & Ives P.A. is appointed as co-counsel for the Plaintiff Class. (kc) (Entered: 03/04/2008)
637 NOTICE by EM, RL, WA, DJ, PS, NW PETER CUBRA'S NOTICE OF UNAVAILABILITY (Cubra, Peter) (Entered: 03/06/2008)
638 NOTICE of Hearing: Status Conference set for 3/25/2008 at 01:30 PM in Santa Fe - Judge Martha Vazquez Chambers 2nd ﬂoor before Chief Judge Martha Vazquez. (id)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 03/06/2008)
639 Defendant Bernalillo County's REPLY to Plaintiffs' Response to the Court's Sua Sponte Order to Show Cause re 622 Response ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit 1)(Baker, Jeffrey) (Entered: 03/07/2008)
640 Defendant Bernalillo County's REPLY to Plaintiff Intervenors' Response to the Court's Sua Sponte Order to Show Cause re 620 Response to Order to Show Cause ﬁled by Bernalillo, County of. (Baker, Jeffrey) (Entered: 03/07/2008)

03/10/2008 03/17/2008
03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/21/2008 03/24/2008 03/24/2008

641 STIPULATED ORDER by Judge Alan C. Torgerson Appointing Entry of Flynn Sylvest of Protection & Advocacy System, Inc., to appear as attorney of record on behalf of Plaintiff Intervenors. (kc) (Entered: 03/10/2008)
642 **FILED IN ERROR** MOTION for Discovery Into All Aspects Of Plaintiffs' Day-To-Day Living Conditions, Including Those For Which The Auditor Has Given Approval by Jimmy McClendon. (Attachments: # 1 Supplement Memorandum In Support Of Plaintiffs' Motion For Discovery)(Smith, Alexandra) Modiﬁed text on 3/17/2008. (mr) (Entered: 03/17/2008)
643 RESPONSE in Opposition re 578 MOTION for Protective Order and Request for Discovery Conference Supplemental Memorandum in Opposition ﬁled by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit)(Cubra, Peter) (Entered: 03/17/2008)
644 MOTION for Discovery Into All Aspects Of Plaintiffs' Day-To-Day Living Conditions, Including Those For Which The Auditor Has Given Approval by Jimmy McClendon. (Smith, Alexandra) (Entered: 03/17/2008)
645 **FILED IN ERROR** MOTION for Discovery Into All Aspects Of Plaintiffs' Day-To-Day Living Conditions, Including Those For Which The Auditor Has Given Approval by Jimmy McClendon. (Attachments: # 1 Exhibit Letter Regarding Discovery)(Smith, Alexandra) Modiﬁed text on 3/17/2008. (mr) (Entered: 03/17/2008)
646 MEMORANDUM in Support re 644 MOTION for Discovery Into All Aspects Of Plaintiffs' Day-To-Day Living Conditions, Including Those For Which The Auditor Has Given Approval ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit Letter Regarding Discovery)(Smith, Alexandra) (Entered: 03/17/2008)
647 NOTICE of Appearance by Mark H Donatelli on behalf of all plaintiffs (Donatelli, Mark) (Entered: 03/21/2008)
648 Unopposed MOTION to Extend (other) Hearing Set For March 25, 2008 by Jimmy McClendon. (Lowry, Marc) (Entered: 03/24/2008)
649 ORDER by Judge Martha Vazquez GRANTING 648 Plaintiffs' and Plaintiff-Intervenors' Unopposed Motion to Postpone the Hearing Scheduled for March 25, 2008. The March 25, 2008 hearing is hereby vacated. THIS IS A TEXT ONLY-ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (laz) Modiﬁed to create link on 3/26/2008. (mr) (Entered: 03/24/2008)

03/27/2008 03/28/2008 03/28/2008
04/03/2008 04/03/2008 04/03/2008 04/17/2008 04/22/2008

650 NOTICE by Bernalillo, County of Unavailability (Baker, Jeffrey) (Entered: 03/27/2008)
651 NOTICE of Hearing: Status Conference set for 4/22/2008 at 01:30 PM in Santa Fe - Judge Martha Vazquez Courtroom before Chief Judge Martha Vazquez. (laz)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 03/28/2008)
652 ORDER sua sponte by Chief Judge Martha Vazquez denying without prejudice 543 Plaintiffs Motion to Permit Counsel to visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility, ﬁled June 28, 2007; 548 Plaintiff-Intervenors Motion to Permit Counsel to Have Access to RCC, Its Residents And Their Records, ﬁled July 26, 2007; 555 Plaintiff'sMotion for an Order to Show Cause, ﬁled September 12, 2007; and 562 Plaintiff-Intervenors' Motion for an Order to Show Cause, ﬁled September 24, 2007; See Order for speciﬁcs. (pz) (Entered: 03/28/2008)
653 RESPONSE to Motion re 644 MOTION for Discovery Into All Aspects Of Plaintiffs' Day-To-Day Living Conditions, Including Those For Which The Auditor Has Given Approval ﬁled by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 04/03/2008)
654 MEMORANDUM in Support re 653 Response to Motion for Discovery into all Aspects of Plaintiffs' day to day living conditions, including those for which the auditor has given approval ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit First Email# 2 Exhibit Second E-mail# 3 Exhibit Third E-mail)(Baker, Jeffrey) (Entered: 04/03/2008)
655 MEMORANDUM in Support re 584 MOTION to Compel Production of Documents from Defendant Bernalillo County and Memorandum in Support, 591 Response to Motion, 578 MOTION for Protective Order and Request for Discovery Conference ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Baker, Jeffrey) (Entered: 04/03/2008)
656 ORDER by Judge Alan C. Torgerson granting in part in accordance with the opinion set forth herein 578 Motion for Protective Order; granting in part in accordance with the opinion set forth herein 584 Motion to Compel; and denying 644 Motion for Discovery. (kc) (Entered: 04/17/2008)
657 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 4/18/2008. (bts) (Entered: 04/22/2008)

04/22/2008 04/22/2008 04/22/2008 04/23/2008 04/25/2008 05/01/2008
05/02/2008

658 Clerk's Minutes for proceedings held before Judge Martha Vazquez : Status Conference held on 4/22/2008. (Court Reporter S. Sperry.) (mr) (Entered: 04/22/2008)
659 SUPPLEMENTAL DISCOVERY ORDER entered by Judge Alan C. Torgerson re 584 Motion to Compel ﬁled by Plaintiff-Intervenors and 578 Defendants' Motion for Protective Order. (kc) (Entered: 04/22/2008)
660 NOTICE by EM, RL, WA, DJ, PS, NW re 652 Order on Motion for Order,,, Order on Motion for Miscellaneous Relief,,, Order on Motion for Order to Show Cause,,, Order on Motion for Contempt,, RENEWAL OF MOTION TO PERMIT COUNSEL TO HAVE ACCESS TO RCC, ITS RESIDENTS, AND THEIR RECORDS (Schatz-Vance, Lisa) (Entered: 04/22/2008)
661 NOTICE by Joseph W Anderson re 652 Order on Motion for Order, Order on Motion for Miscellaneous Relief, Order on Motion for Order to Show Cause, Order on Motion for Contempt, Plaintiffs Notice of Renewal for Their Motion to Permit Counsel to Visit McClendon Class Members Housed at the Regional Correctional Center or any Other Facility (Lowry, Marc) (Entered: 04/23/2008)
662 DISCOVERY ORDER by Chief Judge Martha Vazquez permitting limited discovery as further stated in the Order. (mr) (Entered: 04/28/2008)
663 OBJECTIONS re 656 Order on Motion for Protective Order,, Order on Motion to Compel,, Order on Motion for Discovery, (by all Plaintiffs) by Joseph W Anderson (Attachments: # 1 Exhibit Ex. A - Letter from Judge Torgerson# 2 Exhibit Ex. B - Plfs' Proposed Interrogatories to Def Bern. Cty# 3 Exhibit Ex. C - Plfs' RFPs to Def Bern. Cty# 4 Exhibit Ex. D Notice of 30(b)(6) Depo# 5 Exhibit Ex. E - Letter from Baker)(Smith, Alexandra) (Entered: 05/01/2008)
664 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by EM, RL, WA, DJ, PS, NW re 659 Order, 656 Order on Motion for Protective Order,, Order on Motion to Compel,, Order on Motion for Discovery, (Schatz-Vance, Lisa) (Entered: 05/02/2008)

05/06/2008
05/14/2008 05/14/2008 06/02/2008 06/03/2008
06/03/2008 06/04/2008

665 ORDER by Chief Judge Martha Vazquez GRANTING 567 Plaintiffs' Unopposed Motion for Extension of Time to File Reply; 570 Defendant's Unopposed Motion for Extension of Time to File Response/Reply; and 621 Plaintiffs' Second Motion for Extension of Time to ﬁle Responsive Pleading to the Court's Sua Sponte Order and DENYING 614 Motion to Withdraw as Attorney as moot. THIS IS A TEXT ONLY-ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (laz) (Entered: 05/06/2008)
666 Defendant Bernalillo County's RESPONSE to Plaintiff Intervenors' Objections to the Discovery Orders re 664 Appeal of Magistrate Judge Decision to District Court ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit A)(Baker, Jeffrey) (Entered: 05/14/2008)
667 Defendant's RESPONSE to Objections to Discovery Order denying Plaintiffs' Motion for Discovery into all Aspects of Plaintiffs' Day-to-Day Living Conditions, including those for which the Auditor has given Approval re 663 Objections, ﬁled by Bernalillo, County of. (Baker, Jeffrey) (Entered: 05/14/2008)
668 Plaintiff Intervenors' REPLY re 664 Appeal of Magistrate Judge Decision to District Court, ﬁled by EM, RL, WA, DJ, PS, NW. (SchatzVance, Lisa) Modiﬁed text on 6/3/2008 (kdf). (Entered: 06/02/2008)
669 ORDER by Magistrate Judge Alan C. Torgerson Setting Telephonic Status Conference. Status Conference set for 6/4/2008 12:00 PM in Albuquerque - 670 Judge Alan C. Torgerson Chambers before Magistrate Judge Alan C. Torgerson. Attorney Jeffrey Baker is responsible for arranging conference call to chambers of Magistrate Judge Alan C. Torgerson at 348-2380. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 06/03/2008)
670 Unopposed MOTION for Leave to File Plaintiffs' Reply In Support of Their Objections to Discovery by Jimmy McClendon. (Attachments: # 1 Exhibit Reply Brief, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5) (Lowry, Marc) (Entered: 06/03/2008)
671 ORDER by Magistrate Judge Alan C. Torgerson granting 670 Plaintiffs' Unopposed Motion for Leave to File a Reply to the Defendant's Response to Objections to Discovery Order. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 06/04/2008)

06/05/2008

672 Clerk's Minutes: An interim telephonic status conference was held beginning at 12:00 noon on 6/4/2008 before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 06/05/2008)

06/05/2008 673 ORDER by Magistrate Judge Alan C. Torgerson re interim telephonic status conference held 6/4/2008. (kc) (Entered: 06/05/2008)

06/05/2008

674 TRANSCRIPT of Proceedings held on 04/22/2008, before Judge Vazquez. Court Reporter/Transcriber Susan B. Sperry, Telephone number 505-577-4470. PLEASE TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Ofﬁce public terminal within the 90-day period.

(ss) (Entered: 06/05/2008)

06/16/2008

Set Deadlines/Hearings: Status Conference set for 6/23/2008 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 06/16/2008)

06/17/2008

675 NOTICE by EM, RL, WA, DJ, PS, NW of Counsel Unavailability from July 11 through July 23, 2008 (Cubra, Peter) Modiﬁed text on 6/18/2008 to add detail (kdf). (Entered: 06/17/2008)

06/17/2008

676 Clerk's Minutes: An Interim Status Conference was held beginning at 10:05 a.m. on 6/16/2008 before Magistrate Judge Alan C. Torgerson. (kc) Modiﬁed text on 6/18/2008 (kdf). (Entered: 06/17/2008)

06/24/2008

677 Clerk's Minutes: A Rule 16 Interim Status Conference was held beginning at 10:30 a.m. on 6/23/2008 before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 06/24/2008)

07/14/2008

678 REPLY in Support of Plaintiff's Objections to Discovery Order 663 ﬁled by Joseph W Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Lowry, Marc) Modiﬁed text on 7/15/2008 to include correct link (kdf). (Entered: 07/14/2008)

07/14/2008 08/08/2008 09/17/2008 09/18/2008
09/24/2008
09/25/2008 09/25/2008
10/13/2008 10/15/2008

679 NOTICE of Brieﬁng Complete by all plaintiffs re 663 Plaintiffs' Objections to Discovery Order ﬁled by Jimmy McClendon (Lowry, Marc) Modiﬁed text on 7/15/2008 to include correct link (kdf). (Entered: 07/14/2008)
680 NOTICE of Change of Address by Peter Cubra and Lisa Schatz-Vance (Cubra, Peter) Modiﬁed text on 8/11/2008 (kdf). (Entered: 08/08/2008)
681 MOTION for Leave to File Excess Pages for Plaintiffs' Motion to Compel by Jimmy McClendon. (Lowry, Marc) (Entered: 09/17/2008)
683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions by Jimmy McClendon. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Lowry, Marc) (Entered: 09/18/2008)
684 Unopposed MOTION for Extension of Time to File Response/Reply as to 683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions by Bernalillo, County of. (Baker, Jeffrey) (Entered: 09/24/2008)
685 NOTICE by Bernalillo, County of Unavailability (Baker, Jeffrey) (Entered: 09/25/2008)
686 ORDER by Magistrate Judge Alan C. Torgerson granting 684 Motion for Extension of Time to File Response/Reply re 683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions Responses due by 10/16/2008. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 09/25/2008)
687 Unopposed MOTION for Leave to File Excess Pages of Defendant's Response to Motion to Compel by Bernalillo, County of. (Baker, Jeffrey) (Entered: 10/13/2008)
688 ORDER by Chief Judge Martha Vazquez GRANTING 681 Plaintiffs' Unopposed Motion for Leave to File Excess Pages.(laz)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 10/15/2008)

10/15/2008 10/16/2008 10/23/2008 10/28/2008
10/29/2008

689 ORDER by Chief Judge Martha Vazquez GRANTING 687 Defendant's Unopposed Motion for Leave to File Excess Pages. Defendant's Response to Plaintiffs' Motion to Compel may be up to 36 pages in length and may have up to 50 pages of exhibits.(laz)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 10/15/2008)
690 RESPONSE to Motion re 683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit Appendix A: Witness Testimonal Summaries, # 2 Exhibit 2 Depo of T. Lucero, # 3 Exhibit 3 Depo of J. Dantis, # 4 Exhibit 4 Depo of R. Torres, # 5 Exhibit 5 Depo of H. Tipton, # 6 Exhibit 6 Transcript of Proceedings)(Baker, Jeffrey) (Entered: 10/16/2008)
691 NOTICE of Counsel's Unavailability from December 22, 2008-January 5, 2009 by Bernalillo County (Baker, Jeffrey) Modiﬁed text to include detail on 10/27/2008 (kdf). (Entered: 10/23/2008)
692 Unopposed MOTION for Extension of Time to File Response/Reply as to 683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions, 690 Response to Motion, 686 Order on Motion for Extension of Time to File Response/Reply, in Support of Motion to Compel by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen. (Ives, Zachary) (Entered: 10/28/2008)
693 ORDER by Magistrate Judge Alan C. Torgerson granting 692 Motion for Extension of Time to File Response/Reply re 683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions. Reply due by 11/14/2008. (kc) (Entered: 10/29/2008)

11/14/2008
11/14/2008
11/18/2008 02/27/2009

694 Unopposed MOTION for Leave to File Excess Pages for Their Reply to Defendants' Response to Their Joint Motion to Compel by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen. (Cubra, Peter) Modiﬁed to add text pursuant to request by Karen at Attorney Cubra's ofﬁce on 11/14/2008 (cde) (Entered: 11/14/2008)
695 REPLY to Response to Motion re 683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions ﬁled by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Schatz-Vance, Lisa) (Entered: 11/14/2008)
696 NOTICE of Brieﬁng Complete by all plaintiffs re 683 Joint MOTION to Compel Deponents to Answer All Questions Regarding All Contracts Involving the Regional Correctional Center and For Sanctions ﬁled by Jimmy McClendon (Cubra, Peter) (Entered: 11/18/2008)
697 NOTICE by EM, RL, WA, DJ, PS, NW of Unavailability (Cubra, Peter) (Entered: 02/27/2009)

03/04/2009 03/31/2009 04/08/2009
04/09/2009 04/21/2009

698 ORDER by Chief Judge Martha Vazquez granting 694 Joint Motion for Leave to File Excess Pages for Plaintiffs' and Plaintiff Intervenors' Reply to Defendants' Response to Their Joint Motion to Compel (kdf) (Entered: 03/04/2009)
699 MEMORANDUM OPINION AND ORDER by Chief Judge Martha Vazquez GRANTING in part the following Document(s): [543 and 661] Plaintiffs Motion to Permit Counsel to visit McClendon Class Members Housed at the Regional Correctional Center or Any Other Facility, [548 and 660] Plaintiff-Intervenors Motion to Permit Counsel to Have Access to RCC, Its Residents And Their Records, ﬁled July 26, 2007, and DENYING as moot the following Document (s) 555 Plaintiff's Motion for an Order to Show Cause, 562 Plaintiff-Intervenors' Motion for an Order to Show Cause, and 682 Plaintiffs and Plaintiff Intervenors Joint Motion to Compel. (kdf) (Entered: 03/31/2009)
700 NOTICE by Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen re 515 Order of Rescission of Stipulated Settlement Agreement Between Plaintiffs and Defendants (Ives, Zachary) (Entered: 04/08/2009)
701 NOTICE by EM, RL, WA, DJ, PS, NW re 699 Memorandum Opinion and Order,, RESCISSION OF THE NOVEMBER 23, 2004 SETTLEMENT AGREEMENT BETWEEN THE PLAINTIFF INTERVENORS AND THE DEFENDANTS (Schatz-Vance, Lisa) (Entered: 04/09/2009)
702 MOTION to Disqualify Judge by Bernalillo, County of. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y1, # 26 Exhibit Y2, # 27 Exhibit Y3, # 28 Exhibit Y4, # 29 Exhibit Z)(Rael, Marcus) (Entered: 04/21/2009)

04/24/2009 04/24/2009 04/24/2009 04/24/2009 04/27/2009 04/29/2009 04/29/2009 05/04/2009 05/04/2009
05/08/2009

703 NOTICE OF APPEAL as to 699 Memorandum Opinion and Order,, by Bernalillo County Board of Commissioners. ( Filing Fee - Deliver Payment) (Baker, Jeffrey) (Entered: 04/24/2009)
704 Opposed MOTION to Substitute Attorney Nancy L. Simmons as CoCounsel for the Sub-Class by EM, RL, WA, DJ, PS, NW. (Schatz-Vance, Lisa) (Entered: 04/24/2009)
705 USCA Appeal Fees received $ 455 receipt number 7528 re 703 Notice of Appeal ﬁled by Bernalillo County Board of Commissioners (pg) (Entered: 04/24/2009)
706 Transmission of Preliminary Notice of Appeal to US Court of Appeals re 703 (pg) (Entered: 04/24/2009)
707 USCA Case Number 09-2095 for 703 Notice of Appeal ﬁled by Bernalillo County Board of Commissioners. (pg) (Entered: 04/27/2009)
708 NOTICE of Appearance by Nancy L. Simmons on behalf of EM, RL, WA, DJ, PS, NW (Simmons, Nancy) (Entered: 04/29/2009)
709 NOTICE by Bernalillo County Board of Commissioners of Unavailability (Baker, Jeffrey) (Entered: 04/29/2009)
710 TRANSCRIPT ORDER FORM by Bernalillo County Board of Commissioners (Baker, Jeffrey) (Entered: 05/04/2009)
711 RESPONSE in Opposition re 702 MOTION to Disqualify Judge ﬁled by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen. (Attachments: # 1 Exhibit Exhibits 1,2,3,4,5,6, # 2 Exhibit Exhibits 7,8,9)(Ives, Zachary) (Entered: 05/04/2009)
712 LETTER to USCA re brieﬁng schedule for 703 Notice of Appeal. (pg) (Entered: 05/08/2009)

05/08/2009 05/09/2009 05/14/2009
05/15/2009 05/15/2009 05/18/2009 05/19/2009 05/26/2009

713 RESPONSE to Motion re 704 Opposed MOTION to Substitute Attorney Nancy L. Simmons as Co-Counsel for the Sub-Class ﬁled by Bernalillo, County of. (Rael, Marcus) (Entered: 05/08/2009)
714 ORDER of USCA brieﬁng on the merits is tolled pending further order of the court 703 (pg) (Entered: 05/09/2009)
715 Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,, by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen. (Ives, Zachary) (Entered: 05/14/2009)
716 NOTICE by EM, RL, WA, DJ, PS, NW of Unavailability (Cubra, Peter) (Entered: 05/15/2009)
717 **FILED IN ERROR** MEMORANDUM OPINION AND ORDER by Chief Judge Martha Vazquez granting 702 MOTION TO DISQUALIFY. (laz) Modiﬁed on 5/18/2009 to include error text (kdf). (Entered: 05/15/2009)
718 MEMORANDUM OPINION AND ORDER by Chief Judge Martha Vazquez granting 702 MOTION TO DISQUALIFY. (kdf) Presiding Judge: Vazquez, Martha Referral Judge : Torgerson, Alan C. (Entered: 05/18/2009)
719 MINUTE ORDER reassigning case to District Judge James A. Parker. Chief Judge Martha Vazquez no longer assigned to case. (kdf) (Entered: 05/19/2009)
720 NOTICE by EM, RL, WA, DJ, PS, NW re 713 Response to Motion Stipulated Extension of Time to File Reply in support of their motion for substitution of counsel (Schatz-Vance, Lisa) Modiﬁed on 5/28/2009 (jrm). (Entered: 05/26/2009)

05/28/2009
06/05/2009 06/08/2009 06/08/2009 06/08/2009 06/11/2009

721 RESPONSE to Motion re 715 Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,, ﬁled by Bernalillo, County of. (Baker, Jeffrey) (Entered: 05/28/2009)
722 NOTICE by EM, RL, WA, DJ, PS, NW re 713 Response to Motion Stipulated Second Extension of Time to File Reply (SchatzVance, Lisa) (Entered: 06/05/2009)
723 REPLY to Response to Motion re 704 Opposed MOTION to Substitute Attorney Nancy L. Simmons as Co-Counsel for the Sub-Class ﬁled by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit)(Cubra, Peter) (Entered: 06/08/2009)
724 **FILED IN ERROR** NOTICE of Brieﬁng Complete by EM, RL, WA, DJ, PS, NW re 704 Opposed MOTION to Substitute Attorney Nancy L. Simmons as Co-Counsel for the Sub-Class ﬁled by PS, EM, NW, DJ, WA, RL (Cubra, Peter) Modiﬁed on 6/8/2009 (dmw). (Entered: 06/08/2009)
725 NOTICE of Brieﬁng Complete by EM, RL, WA, DJ, PS, NW re 704 Opposed MOTION to Substitute Attorney Nancy L. Simmons as Co-Counsel for the Sub-Class ﬁled by PS, EM, NW, DJ, WA, RL (Cubra, Peter) (Entered: 06/08/2009)
726 REPLY to Response to Motion re 715 Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,, ﬁled by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen. (Ives, Zachary) (Entered: 06/11/2009)

06/11/2009
06/15/2009 06/19/2009 07/06/2009

727 NOTICE of Brieﬁng Complete by all plaintiffs re 715 Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,,Joint MOTION to Enforce March 31 Order re 699 Memorandum Opinion and Order,, ﬁled by PS, Paul Johnson, NW, Herbert King, Sr, Ricky Rose, William P Jimmy, Michael A Johnson, Eliseo Baca, James Parks, Francisco Melendez, Peter Sumatkaku, Larry Stroud, Brian Salazar, George Chavez, Hector Lopez, James Burks, Bennie F Garcia, Carl Duckworth, Nelson Romero, Amihon Baca, Carl Sur, Albert Willy, Fred Mall, James Saiz, Roy Whatley, Richard Gallegos, Pete McQueen, Robert Lovato, Vincent Padilla, EM, Marc A Gillette, Jeff Dillow, Richard A Smith, Steve Esquibel, Louie Chavez, Bryon Zamora, Phillip Shumate, Brad Fischer, Allen M Sawyer, DJ, WA, Lonnie Whatley, Donald Hall, Marty Begay, Darryl Craft, Johnny Vallejos, Tallie Thomas, Steve Johnson, Joseph W Anderson, Samual Herrod, Augustine Tapia, Clint Barras, Patrick Benny Romero, Joe Newberry, Martin Valdivia, RL (Ives, Zachary) (Entered: 06/11/2009)
728 CERTIFICATE OF SERVICE by Bernalillo, County of Responses to Plaintiff Intervenor's Fifth Post-Judgment Request for Production of Documents to counsel on 6/15/09 (Baker, Jeffrey) Modiﬁed on 6/17/2009 (jrm). (Entered: 06/15/2009)
729 ORDER by Magistrate Judge Alan C. Torgerson Setting Telephone Status Conference. Telephone Status Conference set for 6/23/2009 02:00 PM before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 06/19/2009)
730 MOTION to Compel Plaintiff-Intervenors Fifth Post-Judgment Request for Production of Documents by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Cubra, Peter) (Entered: 07/06/2009)

07/13/2009
07/14/2009
07/14/2009 07/15/2009

731 JOINT MOTION for Temporary Restraining Order and for Order to Show Cause by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Cubra, Peter) Modiﬁed on 7/15/2009 (jrm). (Entered: 07/13/2009)
732 AFFIDAVIT re 731 Second MOTION for Temporary Restraining Order and for Order to Show Cause in Support of by Simon Tuck by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen (Cubra, Peter) (Entered: 07/14/2009)
733 NOTICE of Hearing on Motion 731 Second MOTION for Temporary Restraining Order and for Order to Show Cause : Motion Hearing set for 7/20/2009 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 07/14/2009)
734 ORDER by District Judge James A. Parker granting 704 PlaintiffIntervenors' Motion to Substitute Attorney. Added attorney Nancy L. Simmons for EM, RL, WA, DJ, PS and NW. (jrm) (Entered: 07/15/2009)

07/15/2009 07/15/2009

735 AFFIDAVIT re 731 Second MOTION for Temporary Restraining Order and for Order to Show Cause Afﬁdavit of Todd Coberly by EM, RL, WA, DJ, PS, NW, Dennis F. Barela, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen (Ives, Zachary) (Entered: 07/15/2009)
736 AFFIDAVIT re 731 Second MOTION for Temporary Restraining Order and for Order to Show Cause Afﬁdavit of Brian Pori by EM, RL, WA, DJ, PS, NW, Dennis F. Barela, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen (Ives, Zachary) (Entered: 07/15/2009)

07/17/2009
07/17/2009 07/20/2009 07/21/2009 07/21/2009 07/22/2009

737 SUPPLEMENTAL AFFIDAVIT re 731 Second MOTION for Temporary Restraining Order and for Order to Show Cause Supplemental by Simon Tuck by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen (Attachments: # 1 Exhibit)(Cubra, Peter) Modiﬁed on 7/20/2009 (jrm). (Entered: 07/17/2009)
738 RESPONSE to Motion re 731 JOINT MOTION for Temporary Restraining Order and for Order to Show Cause ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit Greiﬁnger, # 2 Exhibit 2 (Romero), # 3 Exhibit 3 (Metzner), # 4 Exhibit 4 (Torres), # 5 Exhibit 5 (Voss), # 6 Exhibit 6 (Bainbridge), # 7 Exhibit 7 (Sisneros), # 8 Exhibit 8 (monitoring))(Baker, Jeffrey) Modiﬁed on 7/20/2009 (jrm). (Entered: 07/17/2009)
739 Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 7/20/2009 re 731 Joint Motion for Temporary Restraining Order and for Order to Show Cause. (Court Reporter J. De La Rosa) (jrm) (Entered: 07/21/2009)
740 NOTICE of Appearance by Philip B. Davis on behalf of all plaintiffs (Davis, Philip) (Entered: 07/21/2009)
741 ORDER by Magistrate Judge Alan C. Torgerson Setting Status Conference. Status Conference set for 7/29/2009 09:30 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 07/21/2009)
742 NOTICE by Bernalillo County Board of Commissioners of Unvailability of counsel on 8/18-21/2009 and 5/12-14/2010 (Baker, Jeffrey) Modiﬁed on 7/28/2009 (jrm). (Entered: 07/22/2009)

07/23/2009

743 RESPONSE to Motion re 730 MOTION to Compel Plaintiff-Intervenors Fifth Post-Judgment Request for Production of Documents ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Baker, Jeffrey) (Entered: 07/23/2009)

07/29/2009

744 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 7/29/2009. (kc) (Entered: 07/29/2009)

07/29/2009

745 ORDER by Magistrate Judge Alan C. Torgerson Setting Status Conference. Status Conference set for 8/14/2009 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 07/29/2009)

07/31/2009 746 NOTICE of Appearance by Molly Schmidt-Nowara on behalf of all plaintiffs (Schmidt-Nowara, Molly) (Entered: 07/31/2009)

08/06/2009

747 STIPULATED Extension of time until August 13, 2009 for plaintiffintervenors to ﬁle reply in support re 730 MOTION to Compel PlaintiffIntervenors Fifth Post-Judgment Request for Production of Documents for Extension of Time until August 13, 2009 for PlaintiffIntervenors to File Their Reply by EM, RL, WA, DJ, PS, NW (Cubra, Peter) Modiﬁed on 8/7/2009 (jrm). (Entered: 08/06/2009)

08/11/2009

748 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Hearing on Joint Motion for Temporary Restraining Order and for Order to Show Cause held on 07/20/2009, before Judge James A. Parker. Court Reporter/ Transcriber John De La Rosa, Telephone number 348-2249. Tape Number: n/a. PLEASE TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Ofﬁce public terminal within the 90-day period.

(jdlr) (Entered: 08/11/2009)

08/13/2009
08/13/2009 08/14/2009 08/14/2009
09/11/2009 09/17/2009 10/01/2009 10/02/2009 10/05/2009 10/08/2009

749 REPLY to Response to Motion re 730 MOTION to Compel PlaintiffIntervenors Fifth Post-Judgment Request for Production of Documents in Further Support ﬁled by EM, RL, WA, DJ, PS, NW. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Schatz-Vance, Lisa) (Entered: 08/13/2009)
750 NOTICE of Brieﬁng Complete by EM, RL, WA, DJ, PS, NW re 730 MOTION to Compel Plaintiff-Intervenors Fifth Post-Judgment Request for Production of Documents ﬁled by PS, EM, NW, DJ, WA, RL (Cubra, Peter) (Entered: 08/13/2009)
751 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 8/14/2009. (kc) (Entered: 08/14/2009)
752 ORDER by Magistrate Judge Alan C. Torgerson Setting Status Conference. Status Conference set for 9/11/2009 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 08/14/2009)
753 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 9/11/2009. Next Status Conference set for 10/30/2009 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 09/11/2009)
754 INTERIM ORDER REGARDING ACCESS TO THE MDC by Magistrate Judge Alan C. Torgerson. (ah) (Entered: 09/17/2009)
755 Unopposed MOTION to Substitute Attorney by Jimmy McClendon. (Attachments: # 1 Supplement Notice of Substitution)(Lowry, Marc) (Entered: 10/01/2009)
756 ORDER by District Judge James A. Parker granting 755 Motion to Substitute Attorney. Added attorney Todd A. Coberly for Plaintiffs. Attorney Marc M Lowry terminated. (jrm) (Entered: 10/02/2009)
757 NOTICE by EM, RL, WA, DJ, PS, NW re 754 Order STIPULATED EXTENSION OF TIME TO FILE JOINT OBJECTIONS TO THE INTERIM ORDER REGARDING ACCESS TO THE MDC (SchatzVance, Lisa) (Entered: 10/05/2009)
758 JOINT OBJECTIONS re 754 Order Regarding Access to the MDC by Plaintiffs and Plaintiff Intervenors. Modiﬁed on 10/19/2009 (jrm). (Entered: 10/08/2009)

10/26/2009 10/27/2009 11/12/2009 11/12/2009 11/13/2009 11/13/2009
11/16/2009

759 Defendant's RESPONSE to Plaintiffs' and Plaintiff Intervenors' Joint Objections to the Interim Order Regarding Access to the MDC re 758 Objections, 754 Order ﬁled by Bernalillo County Board of Commissioners, Bernalillo, County of. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rael, Marcus) (Entered: 10/26/2009)
760 ORDER by Magistrate Judge Alan C. Torgerson Rescheduling Rule 16 Status Conference. Status Conference set for 10/30/2009 is VACATED and rescheduled for 11/9/2009 at 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 10/27/2009)
761 NOTICE of Appearance by Todd A. Coberly on behalf of all plaintiffs (Coberly, Todd) (Entered: 11/12/2009)
762 re 758 , 759 , 754 >Reply in Support of Objections by Plaintiffs and Plaintiff Intervenors' (Entered: 11/12/2009)
763 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 11/9/2009. Next Status Conference set for 12/7/2009 at 10:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 11/13/2009)
764 NOTICE by EM, RL, WA, DJ, PS, NW, Marc A Gillette, George Chavez, Eliseo Baca, Clint Barras, Francisco Melendez, Samual Herrod, Vincent Padilla, Carl Duckworth, Joseph W Anderson, Paul Johnson, Fred Mall, Hector Lopez, Ricky Rose, Herbert King, Sr, James Parks, Michael A Johnson, Johnny Vallejos, Joe Newberry, Darryl Craft, Albert Willy, Peter Sumatkaku, William P Jimmy, Augustine Tapia, Richard A Smith, Robert Lovato, Roy Whatley, Marty Begay, Martin Valdivia, Tallie Thomas, Augustine Jackson, Donald Hall, Carl Sur, Steve Esquibel, Lonnie Whatley, James Saiz, Bryon Zamora, Allen M Sawyer, Patrick Benny Romero, Phillip Shumate, Nelson Romero, Steve Johnson, Bennie F Garcia, Louie Chavez, Brian Salazar, Richard Gallegos, Larry Stroud, James Burks, Brad Fischer, Amihon Baca, Jeff Dillow, Pete McQueen re 758 Objections - Notice of Brieﬁng Complete re 762 Objections re 758 Objections, 759 Response, 754 Order Reply in Support of Objections (Cubra, Peter) (Entered: 11/13/2009)
765 ORDER by Magistrate Judge Alan C. Torgerson Rescheduling Status Conference. Status Conference set for 12/7/2009 is VACATED and rescheduled for 12/9/2009 at 10:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 11/16/2009)

12/09/2009 01/25/2010 02/01/2010
02/02/2010 02/24/2010 03/05/2010 04/01/2010 04/15/2010
04/15/2010

766 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Rule-16 Status Conference held on 12/9/2009. Next Rule-16 Status Conference set for 1/11/2010 at 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (Tape #FTR-Pecos @ 10:00 am) (mlg) (Entered: 12/09/2009)
767 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 1/11/2010. Status Conference set for 2/22/2010 at 03:00 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 01/25/2010)
768 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker that the Joint Objections to the Interim Order Regarding Access to the MDC [Doc. No. 758] are overruled and Further Ordered that the Interim Order [Doc. No. 754] is adopted in its entirety & as further described herein. (jrm) Modiﬁed on 2/2/2010 (jrm). (Entered: 02/01/2010)
769 ORDER by District Judge James A. Parker denying without prejudice 715 Plaintiffs' and Plaintiff-Interveners' Joint Motion to Enforce the Court's March 31, 2009 Order (jrm) (Entered: 02/02/2010)
770 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 2/22/2010. (kc) (Entered: 02/24/2010)
771 NOTICE by Bernalillo County Board of Commissioners of Unavailability of counsel on 3/8-26/2010 and 5/13-17/2010 (Baker, Jeffrey) Modiﬁed on 3/8/2010 (jrm). (Entered: 03/05/2010)
772 MOTION to Substitute Attorney by Jimmy McClendon. (Sylvest, Flynn) (Entered: 04/01/2010)
773 MOTION for Order Setting Hourly Rates for Plaintiff-Intervenors' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based by EM. (Attachments: # 1 Exhibit Peter Cubra Afﬁdavit, # 2 Exhibit Nancy Simmons Afﬁdavit, # 3 Exhibit George Bach Afﬁdavit, # 4 Exhibit Philip Davis Afﬁdavit, # 5 Exhibit Charles Peifer Afﬁdavit)(Davis, Philip) (Entered: 04/15/2010)
774 RESPONSE to Motion re 772 MOTION to Substitute Attorney ﬁled by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 04/15/2010)

04/15/2010 04/19/2010 04/26/2010 04/26/2010 05/07/2010 05/10/2010 05/14/2010 05/14/2010 05/24/2010

775 MOTION for Order Setting Hourly Rates for Plaintiffs' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based by Jimmy McClendon. (Attachments: # 1 Exhibit AOC Memo 12-29-09, # 2 Exhibit Zachary Ives Afﬁdavit, # 3 Exhibit Todd Coberly Declaration)(Davis, Philip) (Entered: 04/15/2010)
776 ORDER by Magistrate Judge Alan C. Torgerson granting 772 Motion to Substitute Attorney. Attorney Flynn Evelyn Sylvest terminated. George Bach (Bach & Garcia LLC) to be substituted. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 04/19/2010)
777 NOTICE by Bernalillo County Board of Commissioners re 773 MOTION for Order Setting Hourly Rates for PlaintiffIntervenors' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based of Agreement to Extend Time to Respond (Baker, Jeffrey) (Entered: 04/26/2010)
778 NOTICE by Bernalillo County Board of Commissioners re 775 MOTION for Order Setting Hourly Rates for Plaintiffs' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based of Agreement to Extend Time to Respond (Baker, Jeffrey) (Entered: 04/26/2010)
779 MOTION for Protective Order AND MEMORANDUM BRIEF IN SUPPORT THEREOF by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 05/07/2010)
780 NOTICE of Appearance by George L Bach, Jr on behalf of EM, NW, PS, RL (Bach, George) (Entered: 05/10/2010)
781 NOTICE by Bernalillo County Board of Commissioners re 773 MOTION for Order Setting Hourly Rates for PlaintiffIntervenors' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based To Extend Time to Respond (Baker, Jeffrey) (Entered: 05/14/2010)
782 NOTICE by Bernalillo County Board of Commissioners re 775 MOTION for Order Setting Hourly Rates for Plaintiffs' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based to Extend Time to Respond (Baker, Jeffrey) (Entered: 05/14/2010)
783 RESPONSE in Opposition re 779 MOTION for Protective Order AND MEMORANDUM BRIEF IN SUPPORT THEREOF ﬁled by EM. (Bach, George) (Entered: 05/24/2010)

05/24/2010 05/25/2010 05/26/2010 05/26/2010
06/07/2010 06/09/2010 06/10/2010 06/10/2010 06/17/2010

784 Unopposed MOTION for Leave to File Excess Pages for Defendant's Response to Plaintiff Intervenors' Motion for Attorneys Fees by Bernalillo, County of. (Baker, Jeffrey) (Entered: 05/24/2010)
785 ORDER by Magistrate Judge Alan C. Torgerson granting 784 Motion for Leave to File Excess Pages. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 05/25/2010)
786 RESPONSE to Motion re 775 MOTION for Order Setting Hourly Rates for Plaintiffs' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b, # 3 Exhibit 2, # 4 Exhibit 3)(Baker, Jeffrey) (Entered: 05/26/2010)
787 RESPONSE to Motion re 773 MOTION for Order Setting Hourly Rates for Plaintiff-Intervenors' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8a, # 9 Exhibit 8b, # 10 Exhibit 9a, # 11 Exhibit 9b, # 12 Exhibit 10, # 13 Exhibit 11) (Baker, Jeffrey) (Entered: 05/26/2010)
788 STIPULATION AND ORDER by Magistrate Judge Alan C. Torgerson. (kc) (Entered: 06/07/2010)
789 REPLY to Response to Motion re 779 MOTION for Protective Order AND MEMORANDUM BRIEF IN SUPPORT THEREOF ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Baker, Jeffrey) (Entered: 06/09/2010)
790 NOTICE of Brieﬁng Complete by Bernalillo, County of re 779 MOTION for Protective Order AND MEMORANDUM BRIEF IN SUPPORT THEREOF ﬁled by Bernalillo County Board of Commissioners (Baker, Jeffrey) (Entered: 06/10/2010)
791 NOTICE of Hearing: Status Conference set for 6/21/2010 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/10/2010)
792 STIPULATION AND ORDER by Magistrate Judge Alan C. Torgerson. Attorney Philip B. Davis to serve as fee counsel for plaintiffs and plaintiff-intervenors. (kc) (Entered: 06/17/2010)

06/20/2010 06/21/2010 06/22/2010 06/22/2010 06/22/2010
06/29/2010 06/30/2010 07/13/2010

793 Unopposed MOTION for Leave to File Excess Pages - Plaintiffs' and Plaintiff-Intervenors' Reply Briefs re Hourly Rates Motions by Jimmy McClendon. (Davis, Philip) (Entered: 06/20/2010)
797 Clerk's Minutes for proceedings held on 6/21/2010 before District Judge James A. Parker: Status Conference held. (Court Reporter J. De La Rosa) (jrm) (Entered: 06/23/2010)
794 REPLY to Response to Motion re 775 MOTION for Order Setting Hourly Rates for Plaintiffs' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based ﬁled by Jimmy McClendon. (Davis, Philip) (Entered: 06/22/2010)
795 REPLY to Response to Motion re 773 MOTION for Order Setting Hourly Rates for Plaintiff-Intervenors' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit Exhibits 1 and 2)(Davis, Philip) (Entered: 06/22/2010)
796 NOTICE of Brieﬁng Complete by Jimmy McClendon re 775 MOTION for Order Setting Hourly Rates for Plaintiffs' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based ﬁled by Jimmy McClendon, 773 MOTION for Order Setting Hourly Rates for PlaintiffIntervenors' Counsel and Their Staff on Which the Payment of Attorneys' Fees Can be Based ﬁled by EM (Davis, Philip) (Entered: 06/22/2010)
798 ORDER by Magistrate Judge Alan C. Torgerson granting 793 Plaintiffs' and Plaintiff-Intervenors' Unopposed Motion to File Reply Briefs in Excess of Local Rule Page Limits. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 06/29/2010)
799 NOTICE by Bernalillo County Board of Commissioners Notice of Unavailability of counsel on 7/2-5/2010 (Baker, Jeffrey) Modiﬁed on 7/1/2010 (jrm). (Entered: 06/30/2010)
800 ORDER by Magistrate Judge Alan C. Torgerson Setting Status Conference. Status Conference set for 7/19/2010 at 01:30 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 07/13/2010)

07/14/2010
07/15/2010
07/20/2010 07/22/2010 07/27/2010 07/29/2010 08/06/2010 08/09/2010 08/09/2010 08/17/2010

801 ORDER by Magistrate Judge Alan C. Torgerson Rescheduling Status Conference. Status Conference set for 7/19/2010 is VACATED and rescheduled for 7/26/2010 at 01:30 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 07/14/2010)
802 ORDER, Motions terminated: 779 MOTION for Protective Order AND MEMORANDUM BRIEF IN SUPPORT THEREOF ﬁled by Bernalillo County Board of Commissioners, 730 MOTION to Compel PlaintiffIntervenors Fifth Post-Judgment Request for Production of Documents ﬁled by PS, EM, NW, DJ, WA, RL. by Magistrate Judge Alan C. Torgerson (ns) (Entered: 07/15/2010)
803 CERTIFICATE OF SERVICE by DJ, EM, NW, PS, RL, WA for Plaintiff-Intervenors' Request For Production of Mortality Documents (Cubra, Peter) Modiﬁed on 7/21/2010 (jrm). (Entered: 07/20/2010)
804 MOTION for Reconsideration re 802 Order,, Terminate Motions, by DJ, EM, NW, PS, RL, WA. (Attachments: # 1 Exhibit, # 2 Exhibit)(Cubra, Peter) (Entered: 07/22/2010)
805 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 7/26/2010. (kc) (Entered: 07/27/2010)
806 ORDER REGARDING INVESTIGATION REPORTS entered by Magistrate Judge Alan C. Torgerson. (kc) (Entered: 07/29/2010)
808 RESPONSE to Motion re 804 MOTION for Reconsideration re 802 Order,, Terminate Motions, ﬁled by Bernalillo, County of. (Baker, Jeffrey) (Entered: 08/06/2010)
809 Unopposed MOTION to Substitute Attorney By Plaintiff-Intervenors by DJ, EM, NW, PS, RL, WA. (Cubra, Peter) (Entered: 08/09/2010)
810 AGREED ORDER by District Judge James A. Parker granting 809 Motion to Substitute Attorney Elizabeth Simpson; Attorney George L Bach, Jr terminated (jrm) (Entered: 08/09/2010)
811 REPLY to Response to Motion re 804 MOTION for Reconsideration re 802 Order,, Terminate Motions, ﬁled by Bernalillo, County of. (Attachments: # 1 Exhibit A(transcript of proceedings), # 2 Exhibit B(Donatelli's July 20 letter))(Baker, Jeffrey) (Entered: 08/17/2010)

08/27/2010 09/01/2010 09/16/2010
09/30/2010 11/15/2010
11/17/2010 11/22/2010 11/29/2010 12/14/2010

812 REPLY to Response to Motion re 804 MOTION for Reconsideration re 802 Order,, Terminate Motions, ﬁled by DJ, EM, NW, PS, RL, WA. (Attachments: # 1 Exhibit)(Cubra, Peter) (Entered: 08/27/2010)
813 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker setting hourly rates for Plaintiffs' Attorneys on which payment of fees can be based 775 & as further described herein. (jrm) (Entered: 09/02/2010)
814 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker that the Plaintiff-Intervenors' 773 motion for an order setting hourly rates for Plaintiff-Intervenors' attorneys and their staff on which the payment of fees can be based is granted as follows and as described herein. (jrm) (Entered: 09/16/2010)
815 MEMORANDUM OPINION AND ORDER by Magistrate Judge Alan C. Torgerson denying 804 Plaintiff-Intervenors' MOTION for Reconsideration. (kc) (Entered: 09/30/2010)
816 NOTICE of Hearing: Status Conference set for 12/17/2010 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker and Magistrate Judge Alan C. Torgerson. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 11/15/2010)
817 Unopposed MOTION to Substitute Attorney Waterfall for SchatzVance by DJ, EM, NW, PS, RL, WA. (Cubra, Peter) (Entered: 11/17/2010)
818 NOTICE by David Baca, DJ, EM, NW, PS, RL, WA of Unavailability of counsel 12/28/2010-1/12/2011 (Cubra, Peter) Added dates on 11/23/2010 (dmw). (Entered: 11/22/2010)
819 ORDER To Substitute Attorney by District Judge James A. Parker granting 817 Plaintiff-Intervenors' Unopposed Motion to Substitute Attorney Kelly K. Waterfall for Lisa Schatz-Vance. Attorney Lisa Y Schatz-Vance terminated (jrm) (Entered: 11/29/2010)
820 AMENDED NOTICE of Hearing (to change time of hearing only): Status Conference reset for 12/17/2010 at 02:30 PM (from 10:00 AM) in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker and Magistrate Judge Alan C. Torgerson. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 12/14/2010)

12/17/2010 01/27/2011 02/08/2011 02/10/2011 02/11/2011 02/14/2011 02/14/2011 02/22/2011 02/25/2011 03/04/2011
03/09/2011

821 Clerk's Minutes for proceedings held before District Judge James A. Parker & the Honorable Alan C. Torgerson: Status Conference held on 12/17/2010. (Court Reporter J. De La Rosa) (jrm) (Entered: 12/20/2010)
822 Renewed Joint MOTION to Enforce March 31, 2009 Order by Plaintiffs and Plaintiff-Intervenors' (Ives, Zachary) Modiﬁed on 1/28/2011 (jrm). (Entered: 01/27/2011)
823 Plaintiffs' Opposed MOTION to Substitute Attorney (Ives, Zachary) Modiﬁed on 2/9/2011 (jrm). (Entered: 02/08/2011)
824 RESPONSE to Motion re 822 Joint MOTION to Enforce March 31, 2009 Order ﬁled by Bernalillo County Board of Commissioners, Bernalillo, County of. (Rael, Marcus) (Entered: 02/10/2011)
827 ORDER of USCA - denying appellants petition for rehearing. 703 (pg) (Entered: 02/15/2011)
825 PLAINTIFFS' AND PLAINTIFF-INTERVENORS' REPLY to Response to Motion re 822 Joint MOTION to Enforce March 31, 2009 Order. (Ives, Zachary) Modiﬁed on 2/15/2011 (jrm). (Entered: 02/14/2011)
826 PLAINTIFFS' AND PLAINTIFF-INTERVENORS' NOTICE of Brieﬁng Complete 822 , 824 , 825 (Ives, Zachary) Modiﬁed on 2/15/2011 (jrm). (Entered: 02/14/2011)
828 MANDATE of USCA dismissing the appeal 703 (Attachments: # 1 opinion, # 2 judgment)(pg) (Entered: 02/22/2011)
829 NOTICE by Bernalillo, County of To Extend Time To Respond to Plaintiffs' Opposed Motion to Substitute Counsel (Doc. 823) (Baker, Jeffrey) (Entered: 02/25/2011)
830 SECOND NOTICE OF AGREEMENT by Bernalillo, County of To Extend Time To Respond to Plaintiffs' Opposed Motion to Substitute Counsel (Doc. 823) (Baker, Jeffrey) Modiﬁed on 3/7/2011 (jrm). (Entered: 03/04/2011)
831 NOTICE by Bernalillo County Board of Commissioners, Bernalillo, County of re 823 Opposed MOTION to Substitute Attorney Withdrawal of Opposition (Rael, Marcus) (Entered: 03/09/2011)

03/16/2011
03/18/2011 03/21/2011 03/22/2011 03/22/2011 03/25/2011 03/25/2011

832 Unopposed MOTION to Substitute Attorney Theresa M. Duncan for Alexandra Freedman Smith as Co-Counsel for the Plaintiff Class by Joseph W Anderson, Amihon Baca, Eliseo Baca, Clint Barras, Marty Begay, James Burks, George Chavez, Louie Chavez, Michael Cote, Darryl Craft, Danette DiFiori, Jeff Dillow, Carl Duckworth, Steve Esquibel, Brad Fischer, Richard Gallegos, Bennie F Garcia, Marc A Gillette, Donald Hall, Samual Herrod, Augustine Jackson, William P Jimmy, Michael A Johnson, Paul Johnson, Steve Johnson, Herbert King, Sr, Hector Lopez, Robert Lovato, Fred Mall, Pete McQueen, Francisco Melendez, Joe Newberry, Vincent Padilla, James Parks, Nelson Romero, Patrick Benny Romero, Ricky Rose, James Saiz, Brian Salazar, Allen M Sawyer, Phillip Shumate, Richard A Smith, Larry Stroud, Peter Sumatkaku, Carl Sur, Augustine Tapia, Tallie Thomas, Martin Valdivia, Johnny Vallejos, Lonnie Whatley, Roy Whatley, Albert Willy, Bryon Zamora. (Ives, Zachary) (Entered: 03/16/2011)
833 MOTION to File Under Seal by Bernalillo County Board of Commissioners, Bernalillo, County of. (Rael, Marcus) (Entered: 03/18/2011)
834 Amended MOTION to Seal by Bernalillo County Board of Commissioners, Bernalillo, County of. (Rael, Marcus) (Entered: 03/21/2011)
835 ORDER by Magistrate Judge Alan C. Torgerson granting 832 Motion to Substitute Attorney. Attorney Alexandra Freedman Smith terminated. Attorney Theresa M. Duncan substituted as co-counsel for the Plaintiff class. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 03/22/2011)
836 NOTICE of Hearing on Motion 833 MOTION to Seal and 834 Amended MOTION to Seal, Motion Hearing set for 3/31/2011 at 01:15 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(dm) (Entered: 03/22/2011)
837 ORDER by Magistrate Judge Alan C. Torgerson granting 823 Motion to Substitute Attorney. Attorney Todd A. Coberly terminated. Attorney Kirtan Khalsa substituted for Todd Coberly. (kc) (Entered: 03/25/2011)
838 NOTICE OF WITHDRAWAL OF DOCUMENT 833 as to document 834 Motion to Seal by Bernalillo County Board of Commissioners, Bernalillo, County of (Rael, Marcus) Modiﬁed on 3/5/2012 (jrm). (Entered: 03/25/2011)

03/31/2011 03/31/2011 04/01/2011 04/04/2011 04/12/2011 05/23/2011
06/16/2011 07/04/2011 07/04/2011 07/05/2011 07/07/2011

839 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 3/31/2011. (Court Reporter J. De La Rosa) (jrm) (Entered: 03/31/2011)
842 AMENDED Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 3/31/2011. (Court Reporter J. De La Rosa) (dmw) (Entered: 04/12/2011)
840 Joint Status Report by Bernalillo County Board of Commissioners, Bernalillo, County of (Rael, Marcus) (Entered: 04/01/2011)
843 Letter to District Judge James A. Parker from Patrick D. Allen (dmw) (Entered: 04/12/2011)
841 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Scheduling Conference. Scheduling Conference set for 6/15/2011 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 04/12/2011)
844 ORDER by District Judge James A. Parker denying as moot 822 Motion on the conditions that (1) the Plaintiffs and Plaintiffs-Intervenors may reﬁle the motion if inmates are housed at the Regional Correctional Center in the future, and (2) Defendant County of Bernalillo will notify the court as soon as a decision is made to again house inmates at the Regional Correctional Center. (dm) (Entered: 05/23/2011)
845 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 6/15/2011. (Tape #FTR Gila @ 11:00 a.m.) (ns) (Entered: 06/16/2011)
846 "FILED IN ERROR" NOTICE by Jimmy McClendon of NonAvailability (Davis, Philip) Modiﬁed on 7/5/2011 (jrm). (Entered: 07/04/2011)
847 CORRECTED NOTICE by Jimmy McClendon of Non-Availability of counsel on 8/29-31/2011, 9/9-19/2011 & 11/14-25/2011 (Davis, Philip) Modiﬁed on 7/5/2011 (jrm). (Entered: 07/04/2011)
848 NOTICE by Bernalillo County Board of Commissioners of Unavailability of counsel on 9/15-18/2011 (Baker, Jeffrey) Modiﬁed on 7/6/2011 (jrm). (Entered: 07/05/2011)
849 Joint MOTION to Appoint Expert Pursuant to Federal Rules of Evidence 706 by Joseph W Anderson, DJ. (Cubra, Peter) (Entered: 07/07/2011)

07/08/2011 07/10/2011
07/11/2011 07/11/2011
07/11/2011 07/12/2011 07/14/2011 07/15/2011 07/19/2011

850 MOTION for Leave to File Excess Pages by Bernalillo County Board of Commissioners, Bernalillo, County of. (Rael, Marcus) (Entered: 07/08/2011)
851 MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements by Bernalillo County Board of Commissioners, Bernalillo, County of. (Attachments: # 1 Exhibit Transcript of 06/30/05 Settlement Hearing)(Rael, Marcus) (Entered: 07/10/2011)
852 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 851 Motion for Reconsideration, by Bernalillo County Board of Commissioners, Bernalillo, County of (Rael, Marcus) (Entered: 07/11/2011)
853 MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements by Bernalillo County Board of Commissioners, Bernalillo, County of. (Attachments: # 1 Exhibit A)(Rael, Marcus) (Entered: 07/11/2011)
854 MOTION to Stay Discovery Pending Resolution of County Defendant's Motion to Reinstate the 2005 SSAs by Bernalillo County Board of Commissioners, Bernalillo, County of. (Rael, Marcus) (Entered: 07/11/2011)
855 STIPULATED ORDER by District Judge James A. Parker granting 850 the County Defendants' Unopposed Motion for Leave to File Excess Pages & as further described herein. (jrm) (Entered: 07/12/2011)
856 Unopposed MOTION to Substitute Attorney Kate Girard for Lisa Simpson by DJ. (Cubra, Peter) (Entered: 07/14/2011)
857 NOTICE by Bernalillo County Board of Commissioners re 849 Joint MOTION to Appoint Expert Pursuant to Federal Rules of Evidence 706 to Extend Time to Respond (Baker, Jeffrey) (Entered: 07/15/2011)
858 ORDER by Magistrate Judge Alan C. Torgerson granting 856 PlaintiffIntervenors' Unopposed Motion to Substitute Counsel. Attorney Elizabeth E. Simpson terminated. Attorney J. Katherine Girard substituted on behalf of Plaintiff-Intervenors. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 07/19/2011)

07/20/2011 07/20/2011 08/01/2011 08/01/2011 08/02/2011
08/08/2011 08/19/2011

859 NOTICE by Joseph W Anderson, DJ Stipulated Deadline for Plaintiffs and Plaintiff-Interventors to Respond to 853 Motion to Reinstate 2005 Agreements (Cubra, Peter) (Entered: 07/20/2011)
860 NOTICE by Joseph W Anderson, DJ Stipulated Deadline for Plaintiffs and Plaintiff-Intervenors to Respond to 854 Motion to Stay Discovery (Cubra, Peter) (Entered: 07/20/2011)
861 NOTICE by Joseph W Anderson, DJ Stipulated Deadline until 8-22-11 for Plaintiffs and Plaintiff-Intervenors to Respond to 853 Motion to Reinstate 2005 Agreements (Cubra, Peter) (Entered: 08/01/2011)
862 NOTICE by Joseph W Anderson, DJ Stipulated Deadline until 8-22-11 for Plaintiffs and Plaintiff-Intervenors to Respond to 854 Motion to Stay Discovery Pending Resolution of Their Motion to Reinstate the 2005 Stipulated Settlement Agreements (Cubra, Peter) (Entered: 08/01/2011)
863 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference held on 06/21/2010, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. PLEASE TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Ofﬁce public terminal within the 90-day period. Notice of Intent to Request Redaction set for 8/9/2011. Redaction Request due 8/23/2011. Redacted Transcript Deadline set for 9/2/2011. Release of Transcript Restriction set for 10/31/2011.(jdlr) (Entered: 08/02/2011)
864 RESPONSE in Opposition re 849 Joint MOTION to Appoint Expert Pursuant to Federal Rules of Evidence 706 ﬁled by Bernalillo County Board of Commissioners, Bernalillo, County of. (Attachments: # 1 Exhibit A)(Rael, Marcus) (Entered: 08/08/2011)
865 MOTION for Leave to File Excess Pages For Response to Defendants' Motion to Reinstate the 2005 Settlement Agreements [Doc. No. 853] by Plaintiffs' and Plaintiff-Intervenors (Simmons, Nancy) Modiﬁed on 8/22/2011 (jrm). (Entered: 08/19/2011)

08/19/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011
08/22/2011 08/22/2011 08/23/2011

866 NOTICE by Joseph W Anderson, DJ of Stipulated Deadline until 8-30-11 to Reply to Response to 849 Motion to Appoint 706 Expert (Cubra, Peter) (Entered: 08/19/2011)
867 Unopposed MOTION for Leave to File Excess Pages for Joint Motion for Further Remedial Relief by Joseph W Anderson, DJ. (Cubra, Peter) (Entered: 08/22/2011)
868 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC by DJ, EM, NW, PS, RL, WA. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Cubra, Peter) (Entered: 08/22/2011)
869 Amended MOTION for Leave to File Excess Pages Plaintiffs' and Plaintiff-Intervenors' Unopposed Motion for Extension of Page Limits for Response to Defendants' Motion to Reinstate the 2005 Settlement Agreements [Doc. No. 853] by Joseph W Anderson, DJ. (Simmons, Nancy) (Entered: 08/22/2011)
870 RESPONSE in Opposition re 853 MOTION for Reconsideration re 699 Memorandum Opinion and Order, Motion to Reinstate the 2005 Stipulated Settlement Agreements MOTION for Reconsideration re 699 Memorandum Opinion and Order, Motion to Reinstate the 2005 Stipulated Settlement Agreements ﬁled by Plaintiffs and PlaintiffsIntervenors. (Attachments: # 1 Exhibit A and B)(Simmons, Nancy) Modiﬁed ﬁlers on 8/23/2011 (dmw). (Entered: 08/22/2011)
871 Joint MOTION for Further Remedial Relief by Joseph W Anderson, DJ. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Cubra, Peter) (Entered: 08/22/2011)
872 JOINT RESPONSE in Opposition re 854 MOTION to Stay Discovery Pending Resolution of County Defendant's Motion to Reinstate the 2005 SSAs ﬁled by Plaintiffs and Plaintiff-Intervenors (Attachments: # 1 Exhibit Exhibits A-F)(Ives, Zachary) Modiﬁed on 8/23/2011 (jrm). (Entered: 08/22/2011)
873 MOTION for Discovery Regarding Draft Third Report of Manuel Romero and Related Documents (ﬁled on behalf of Mark H. Donatelli) by Jimmy McClendon. (Attachments: # 1 Exhibit)(Egan, Brendan) (Entered: 08/23/2011)

08/25/2011 08/25/2011 08/30/2011
08/30/2011

874 ORDER by District Judge James A. Parker granting 869 , 865 Plaintiffs' and Plaintiff-Intervenors' First Amended Motion for extension of page limits for response to Defendants' Motion to Reinstate the 2005 Settlement Agreement 853 (jrm) Modiﬁed on 3/5/2012 (jrm). (Entered: 08/25/2011)
875 ORDER by District Judge James A. Parker granting 867 the Joint Unopposed Motion for extension of page limits for Plaintiffs and Plaintiff-Intervenors'. Plaintiffs and Plaintiff-Intervenors' shall have leave to ﬁle their 45 page Joint Motion for Further Remedial Relief. (jrm) (Entered: 08/25/2011)
876 REPLY to Response to Motion re 849 Joint MOTION to Appoint Expert Pursuant to Federal Rules of Evidence 706 ﬁled by Joseph W Anderson, Amihon Baca, Eliseo Baca, Clint Barras, Marty Begay, James Burks, George Chavez, Louie Chavez, Michael Cote, Darryl Craft, DJ, Jeff Dillow, Carl Duckworth, EM, Steve Esquibel, Brad Fischer, Richard Gallegos, Bennie F Garcia, Marc A Gillette, Larry Green, Donald Hall, Samual Herrod, Augustine Jackson, William P Jimmy, Michael A Johnson, Paul Johnson, Steve Johnson, Herbert King, Sr, Hector Lopez, Robert Lovato, Fred Mall, Pete McQueen, Francisco Melendez, NW, Joe Newberry, PS, Vincent Padilla, James Parks, RL, Nelson Romero, Patrick Benny Romero, Ricky Rose, James Saiz, Brian Salazar, Allen M Sawyer, Phillip Shumate, Richard A Smith, Larry Stroud, Peter Sumatkaku, Carl Sur, Augustine Tapia, Tallie Thomas, Martin Valdivia, Johnny Vallejos, WA, Lonnie Whatley, Roy Whatley, Albert Willy, Bryon Zamora. (Cubra, Peter) (Entered: 08/30/2011)
877 NOTICE of Brieﬁng Complete by Joseph W Anderson, Amihon Baca, Eliseo Baca, Clint Barras, Marty Begay, James Burks, George Chavez, Louie Chavez, Darryl Craft, DJ, Jeff Dillow, Carl Duckworth, EM, Steve Esquibel, Brad Fischer, Richard Gallegos, Bennie F Garcia, Marc A Gillette, Donald Hall, Samual Herrod, Augustine Jackson, William P Jimmy, Michael A Johnson, Paul Johnson, Steve Johnson, Herbert King, Sr, Hector Lopez, Robert Lovato, Fred Mall, Pete McQueen, Francisco Melendez, NW, Joe Newberry, PS, Vincent Padilla, James Parks, RL, Nelson Romero, Patrick Benny Romero, Ricky Rose, James Saiz, Brian Salazar, Allen M Sawyer, Phillip Shumate, Richard A Smith, Larry Stroud, Peter Sumatkaku, Carl Sur, Augustine Tapia, Tallie Thomas, Martin Valdivia, Johnny Vallejos, WA, Lonnie Whatley, Roy Whatley, Albert Willy, Bryon Zamora re 849 Joint MOTION to Appoint Expert Pursuant to Federal Rules of Evidence 706 ﬁled by Joseph W Anderson, DJ (Cubra, Peter) (Entered: 08/30/2011)

08/31/2011
09/23/2011 09/28/2011
09/28/2011 09/28/2011 09/28/2011 09/28/2011

878 NOTICE by Bernalillo, County of re 870 Response in Opposition to Motion, 868 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC, 871 Joint MOTION for Further Remedial Relief, 873 MOTION for Discovery Regarding Draft Third Report of Manuel Romero and Related Documents (ﬁled on behalf of Mark H. Donatelli), 872 Response in Opposition to Motion, Extension of Time to Respond/Reply (Baker, Jeffrey) (Entered: 08/31/2011)
879 NOTICE by Bernalillo County Board of Commissioners, Bernalillo, County of Agreement to Extend Deadlines for Filing Responses and Replies to Pending Motions (Rael, Marcus) (Entered: 09/23/2011)
880 REPLY to Response to Motion re 854 MOTION to Stay Discovery Pending Resolution of County Defendant's Motion to Reinstate the 2005 SSAs, 853 MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Rael, Marcus) (Entered: 09/28/2011)
881 RESPONSE to Motion re 868 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC ﬁled by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 09/28/2011)
882 RESPONSE to Motion re 871 Joint MOTION for Further Remedial Relief ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A)(Rael, Marcus) (Entered: 09/28/2011)
883 RESPONSE to Motion re 873 MOTION for Discovery Regarding Draft Third Report of Manuel Romero and Related Documents (ﬁled on behalf of Mark H. Donatelli) ﬁled by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 09/28/2011)
884 REPLY to Response to Motion re 853 MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rael, Marcus) (Entered: 09/28/2011)

09/29/2011
09/29/2011 10/06/2011 10/06/2011 10/06/2011 10/11/2011 10/13/2011 10/19/2011 10/19/2011 10/19/2011

885 NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 853 MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements MOTION for Reconsideration re 699 Memorandum Opinion and Order,, Motion to Reinstate the 2005 Stipulated Settlement Agreements ﬁled by Bernalillo, County of, Bernalillo County Board of Commissioners (Rael, Marcus) (Entered: 09/29/2011)
886 NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 854 MOTION to Stay Discovery Pending Resolution of County Defendant's Motion to Reinstate the 2005 SSAs ﬁled by Bernalillo, County of, Bernalillo County Board of Commissioners (Rael, Marcus) (Entered: 09/29/2011)
887 STIPULATION re 881 Response to Motion Deadline for Plaintiffs and Plaintiff-Intervenors to Reply by WA (Cubra, Peter) (Entered: 10/06/2011)
888 STIPULATION re 882 Response to Motion Deadline for Plaintiffs and Plaintiff-Intervenors to Reply by WA (Cubra, Peter) (Entered: 10/06/2011)
889 STIPULATION re 883 Response to Motion Deadline for Plaintiffs and Plaintiff-Intervenors to Reply by WA (Cubra, Peter) (Entered: 10/06/2011)
890 NOTICE by WA of Unavailability of counsel on 11/18/2011 through 12/5/2011 (Cubra, Peter) Modiﬁed on 10/12/2011 (jrm). (Entered: 10/11/2011)
891 First MOTION for Leave to File Joint Motion of Plaintiffs and PlaintiffIntervenors for Leave to File Sur-Reply in Opposition to Defendants' Motion to Stay Discovery Pending Resolution of Their Motion to Reinstate the 2005 SSAs by Manuel R. Boswell. (Attachments: # 1 Exhibit A)(Ives, Zachary) (Entered: 10/13/2011)
892 REPLY to Response to Motion re 868 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC ﬁled by WA. (Cubra, Peter) (Entered: 10/19/2011)
893 NOTICE of Brieﬁng Complete by WA re 868 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC ﬁled by PS, EM, NW, DJ, WA, RL (Cubra, Peter) (Entered: 10/19/2011)
894 REPLY to Response to Motion re 871 Joint MOTION for Further Remedial Relief ﬁled by WA. (Cubra, Peter) (Entered: 10/19/2011)

10/19/2011 10/20/2011 10/24/2011 10/24/2011 10/27/2011
10/27/2011 10/31/2011 11/01/2011

895 REPLY to Response to Motion re 873 MOTION for Discovery Regarding Draft Third Report of Manuel Romero and Related Documents (ﬁled on behalf of Mark H. Donatelli) (on behalf of Mark H. Donatelli) ﬁled by Jimmy McClendon. (Egan, Brendan) (Entered: 10/19/2011)
896 NOTICE of Brieﬁng Complete by WA re 871 Joint MOTION for Further Remedial Relief ﬁled by Joseph W Anderson, DJ (Cubra, Peter) (Entered: 10/20/2011)
897 NOTICE by Bernalillo County Board of Commissioners Notice of Unavailability of counsel on 12/14-20/2011 (Baker, Jeffrey) Modiﬁed on 10/25/2011 (jrm). (Entered: 10/24/2011)
898 NOTICE of Hearing: Status Conference and discussion of motions set for 10/31/2011 at 09:30 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 10/24/2011)
899 RESPONSE to Motion re 891 First MOTION for Leave to File Joint Motion of Plaintiffs and Plaintiff-Intervenors for Leave to File Sur-Reply in Opposition to Defendants' Motion to Stay Discovery Pending Resolution of Their Motion to Reinstate the 2005 SSAs ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rael, Marcus) (Entered: 10/27/2011)
900 NOTICE of Brieﬁng Complete by Bryon Zamora re 891 First MOTION for Leave to File Joint Motion of Plaintiffs and Plaintiff-Intervenors for Leave to File Sur-Reply in Opposition to Defendants' Motion to Stay Discovery Pending Resolution of Their Motion to Reinstate the 2005 SSAs ﬁled by Manuel R. Boswell (Ives, Zachary) (Entered: 10/27/2011)
901 Clerk's Minutes for proceedings held before District Judge James A. Parker and Magistrate Judge Alan C. Torgerson: Status Conference on Pending Motions held on 10/31/2011. (Court Reporter J. De La Rosa) (dmw) (Entered: 11/01/2011)
902 ORDER SCHEDULING CASE MANAGEMENT DEADLINES by District Judge James A. Parker and Magistrate Judge Alan C. Torgerson as described herein. (jrm) (Entered: 11/02/2011)

11/02/2011 11/08/2011

Set/Reset Hearings: Case Management Conference set for 1/30/2012 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. Case Management Conference set for 4/24/2012 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. Case management Conference set for 7/24/2012 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. Case Management Conference set for 10/30/2012 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 11/02/2011)
903 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of STATUS CONFERENCE held on 10/31/2011, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. PLEASE TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Ofﬁce public terminal within the 90-day period. Notice of Intent to Request Redaction set for 11/15/2011. Redaction Request due 11/29/2011. Redacted Transcript Deadline set for 12/9/2011. Release of Transcript Restriction set for 2/6/2012.(jdlr) (Entered: 11/08/2011)

11/10/2011
11/11/2011 11/14/2011

Set/Reset Hearings: Status Conference set for 11/18/2011 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 12/16/2011 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 1/20/2012 at 11:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 2/17/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 3/16/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 4/16/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 5/18/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 6/15/2012 at 11:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 7/20/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 8/17/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 9/21/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 10/19/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 11/16/2012 at 11:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference set for 12/21/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 11/10/2011)
904 NOTICE of Hearing: At the request of the counsel, the Monthly Status Conference scheduled for 11/18/2011 is VACATED and rescheduled for for 11/14/2011 at 11:00 AM in Albuquerque - 540 Bonito Courtroom before Magistrate Judge Alan C. Torgerson. Plaintiffs' counsel is to notify Attorney Robert Booms regarding the rescheduling.(kc)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 11/11/2011)
905 NOTICE of Hearing COURTROOM CHANGE: Status Conference set for 11/14/2011 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 11/14/2011)

11/14/2011 11/30/2011
12/05/2011 12/07/2011 12/12/2011 12/13/2011 12/13/2011 01/04/2012 01/11/2012

906 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 11/14/2011. (Court Reporter Electronic Recording) (jrm) (Entered: 11/15/2011)
907 NOTICE of Hearing: The Monthly Status Conference set for 12/16/2011 is VACATED and rescheduled for 12/12/2011 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 11/30/2011)
908 STIPULATED ORDER by Magistrate Judge Alan C. Torgerson Regarding Production and Protection of Certain Portions of the Policy and Procedures Manual For the Metropolitan Detention Center. (kc) (Entered: 12/05/2011)
909 ORDER by District Judge James A. Parker appointing Manuel Romero, Robert Greiﬁnger, M.D. and Jeffrey Metzner, M.D. to evaluate the Bernalillo County Metropolitan Detention Center & as further described herein. (jrm) (Entered: 12/07/2011)
910 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Monthly Status Conference held on 12/12/2011. (Court Reporter Electronic Recording) (jrm) (Entered: 12/13/2011)
911 NOTICE by DJ, EM, NW, PS, RL, WA of Non-Availability of counsel on 12/15/2011 through 1/3/2012 (Simmons, Nancy) Modiﬁed on 12/14/2011 (jrm). (Entered: 12/13/2011)
912 NOTICE by DJ, EM, NW, PS, RL, WA of Non-Availability of counsel on 12/15/2011 through 1/3/2012 (Simmons, Nancy) Modiﬁed on 12/14/2011 (jrm). (Entered: 12/13/2011)
913 NOTICE by Jimmy McClendon of Unavailability of counsel on 1/7-17/2012 (Cubra, Peter) Modiﬁed on 1/5/2012 (jrm). (Entered: 01/04/2012)
914 NOTICE of Hearing: Monthly Status Conference set for 1/20/2012 at 11:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. (kc)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 01/11/2012)

01/23/2012
01/23/2012 01/25/2012 01/26/2012 01/30/2012

915 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 1/20/2012. The January 30, 2012, quarterly status conference with Judge Parker is VACATED. Judge Parker, Judge Torgerson and counsel will tour MDC at 10:00 a.m., on February 10, 2012. The monthly status conference with Judge Torgerson on February 17, 2012, will begin at 10:00 a.m. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 01/23/2012)
916 NOTICE of Hearing: Monthly Status Conference set for 2/17/2012 at 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 01/23/2012)
917 ORDER by Magistrate Judge Alan C. Torgerson denying as moot Plaintiff Intervenors' Motion to Enforce Settlement (ns) (Entered: 01/25/2012)
918 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 1/20/2012. (kc) (Entered: 01/26/2012)
919 ORDER by Magistrate Judge Alan C. Torgerson Setting Telephone Status Conference. Telephone Status Conference set for 2/1/2012 at 01:30 PM before Magistrate Judge Alan C. Torgerson. Attorney Peter Cubra to arrange and initiate conference call to chambers. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 01/30/2012)

02/03/2012 02/17/2012 02/21/2012

920 ORDER by Magistrate Judge Alan C. Torgerson following Rule 16 Telephonic Discovery Status. (kc) (Entered: 02/03/2012)
923 Clerk's Minutes for proceedings held on 2/17/2012 before District Judge James A. Parker: Monthly Status Conference.. (Court Reporter Electronic Recording) (jrm) (Entered: 02/27/2012)
921 (ORDER) Stipulation Regarding Dr. Jeffrey Metzner, MD by District Judge James A. Parker as described herein 909 (jrm) (Entered: 02/21/2012)

02/22/2012
03/07/2012 03/15/2012 03/15/2012 03/25/2012 03/25/2012

922 CASE MANAGEMENT ORDER by Magistrate Judge Alan C. Torgerson. Settlement Conference regarding fee dispute set for 3/13/2012 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Settlement Conference meeting with Defendants set for 3/14/2012 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Settlement Conference meeting with Plaintiffs and Plaintiff-Intervenors set for 3/19/2012 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 02/22/2012)
924 NOTICE of Hearing: Monthly Status Conference set for 3/16/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 03/07/2012)
925 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Settlement Conference held on 3/13/2012. Dispute regarding outstanding attorney fees resolved with exception of one item that was deferred to a later date by agreement of counsel. (kc) (Entered: 03/15/2012)
926 ORDER by Magistrate Judge Alan C. Torgerson Rescheduling Monthly Status Conference. Status Conference set for 3/16/2012 is VACATED and rescheduled for 3/30/2012 at 10:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 03/15/2012)
927 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Settlement Conference held on 3/14/2012. Results of Settlement Conference: Settlement Conference to be continued at a later date. (kc) (Entered: 03/25/2012)
928 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Settlement Conference held on 3/19/2012. Results of Settlement Conference: Settlement Conference to be continued at a later date. (kc) (Entered: 03/25/2012)

04/05/2012
04/06/2012 04/13/2012 04/23/2012 04/27/2012 04/27/2012

929 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 3/30/2012. Monthly Status Conference scheduled for 4/16/2012 is VACATED. Quarterly Status Conference scheduled for 4/24/2012 is VACATED. Status Conference with counsel for Plaintiffs and Plaintiff-Intervenors is scheduled for 4/13/2012 at 02:00 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Status Conference with counsel for Defendants is scheduled for 4/23/2012 at 02:00 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Next Monthly Status Conference is scheduled for 5/18/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 04/05/2012)
930 SCHEDULING ORDER by Magistrate Judge Alan C. Torgerson. (kc) (Entered: 04/06/2012)
931 NOTICE by Jimmy McClendon of Non-Availability of counsel on May 25, 2012 through June 8, 2012 (Davis, Philip) Modiﬁed on 4/16/2012 (jrm). (Entered: 04/13/2012)
932 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Settlement Conference. Settlement Conference Regarding Fees set for 5/18/2012 at 01:30 PM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 04/23/2012)
933 ORDER by Magistrate Judge Alan C. Torgerson Rescheduling Status Conference With Respect to Time Only. Status Conference set for 5/18/2012 will begin at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. Mediation regarding fees to follow immediately thereafter. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 04/27/2012)
934 ORDER by Magistrate Judge Alan C. Torgerson Rescheduling Settlement Conference With Respect to Time Only. Settlement Conference Regarding Fees set for 5/18/2012 will begin at 10:30 AM or immediately following conclusion of Status Conference scheduled for 9:30 a.m. in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 04/27/2012)

05/03/2012
05/03/2012 05/03/2012 05/03/2012 05/03/2012 05/21/2012
05/21/2012 06/12/2012

935 ORDER by District Judge James A. Parker Denying as moot without prejudice 854 County Defendamts' Motion to Stay; and Denying as moot without prejudice 891 the Joint Motion of Plaintiffs & PlaintiffIntervenors for Leave to File Sur-Reply in opposition to Defendants' motion to stay discovery pending resolution of their motion to Reinstate the 2005 SSA's.. (jrm) (Entered: 05/03/2012)
936 ORDER by District Judge James A. Parker Denying as moot without prejudice to being reasserted, if appropriate 871 Plaintiffs and Plaintiff Intervenors' Joint Motion for Further Remedial Relief.. (jrm) (Entered: 05/03/2012)
937 ORDER by District Judge James A. Parker Denying as moot, without prejudice to Plaintiffs and Plaintiff and Plaintiff Intervenors reasserting the Motion in the future, if appropriate 849 the Motion by Plaintiffs and Plaintiff Intervenors for an Order Appointing Court Experts Pursuant to Federal Rule of Evidence 706.. (jrm) (Entered: 05/03/2012)
938 ORDER by District Judge James A. Parker Denying as moot without prejudice to being reinstated, if appropriate 853 County Defendants' Motion To Reinstate the 2005 Stipulated Settlement Agreement.. (jrm) (Entered: 05/03/2012)
939 ORDER by District Judge James A. Parker Denying as moot without prejudice to being reasserted, if appropriate 873 Plaintiffs' Motion to obtain the Draft Third Report of Manuel Romero and all Documents provided to Him in connection with the Report and for Permission to use the contents of the Third Report.. (jrm) (Entered: 05/03/2012)
940 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 5/18/2012. Next status conference with Judge Torgerson is scheduled for 6/15/2012 at 11:00 a.m.; next quarterly meeting with Judge Parker and Judge Torgerson is scheduled for 7/24/2012 at 1:30 p.m.; Status Conference with Judge Torgerson scheduled for 7/20/2012 is VACATED. (kc) (Entered: 05/21/2012)
Set/Reset Hearings: Status Conference set for 6/15/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc) (Entered: 05/21/2012)
941 NOTICE Regarding Location of Monthly Status Conference before Magistrate Judge Alan C. Torgerson: Status Conference set for 6/15/2012 at 11:00 AM in Albuquerque has been moved to the Pecos Courtroom (Third Floor, Pete V. Domenici Courthouse). (kc)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/12/2012)

06/14/2012
06/21/2012 06/21/2012
06/26/2012 07/05/2012 07/10/2012
07/13/2012 07/13/2012 07/24/2012

942 NOTICE of Hearing: Monthly Status Conference is set for 6/15/2012 at 11:00 AM in Albuquerque - 340 Pecos Courtroom, 3rd Floor, Pete V. Domenici Courthouse, before Magistrate Judge Alan C. Torgerson. (Note to counsel - this is a different courtroom) (mlg)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/14/2012)
943 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 6/15/2012. (kc) (Entered: 06/21/2012)
944 NOTICE of Hearing:Monthly Status Conference set for 7/20/2012 is VACATED. Quarterly Status Conference set for 7/24/2012 is VACATED. Monthly Status Conference set for 8/17/2012 is VACATED and RESCHEDULED for 8/10/2012 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (kc)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/21/2012)
945 Joint MOTION to Enforce Settlement for Enforcement of Interim Order re Access to MDC by Jimmy McClendon. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Cubra, Peter) (Entered: 06/26/2012)
946 NOTICE by Bernalillo County Board of Commissioners re 945 Joint MOTION to Enforce Settlement for Enforcement of Interim Order re Access to MDC [Notice of Stipulated Deadline for County Defendants' Response to Motion] (Rael, Marcus) (Entered: 07/05/2012)
947 AMENDED NOTICE of Hearing: Status Conference RESET for 8/10/2012 at 11:00 AM in Albuquerque - 560 Cimarron Courtroom before Magistrate Judge Alan C. Torgerson. (NOTE CHANGE IN COURTROOM ONLY)(mlg)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 07/10/2012)
948 NOTICE of Change of Address by Zachary A Ives (Ives, Zachary) (Entered: 07/13/2012)
949 STIPULATED ORDER by Magistrate Judge Alan C. Torgerson re settlement of a portion of attorneys' fees (bap) (Entered: 07/13/2012)
950 RESPONSE to Motion re 945 Joint MOTION to Enforce Settlement for Enforcement of Interim Order re Access to MDC ﬁled by Bernalillo County Board of Commissioners, Bernalillo, County of. (Attachments: # 1 Exhibit A)(Rael, Marcus) (Entered: 07/24/2012)

08/06/2012 08/09/2012
08/13/2012 08/13/2012 08/16/2012

951 NOTICE by Jimmy McClendon re 950 Response to Motion Stipulated Deadline for Plaintiffs to Reply to Defendants Response (Cubra, Peter) (Entered: 08/06/2012)
952 Unopposed MOTION to Withdraw as Attorney by Joseph W Anderson, Amihon Baca, Eliseo Baca, Clint Barras, David Michael Bauer, Marty Begay, James Burks, George Chavez, Louie Chavez, Michael Cote, Darryl Craft, Danette DiFiori, Jeff Dillow, Carl Duckworth, Ruthie Duran, Steve Esquibel, Brad Fischer, Richard Gallegos, Bennie F Garcia, Marc A Gillette, Larry Green, Bartel Haley, Donald Hall, Joe Ray Herrera, Samual Herrod, John Hewatt, Augustine Jackson, William P Jimmy, Michael A Johnson, Paul Johnson, Steve Johnson, Herbert King, Sr, Richard C Kopecky, Josie Kriena, Deborah Lavera, Carl Ray Lopez, Hector Lopez, Robert Lovato, Debbie Lucero, Harold Lund, Arnold Anthony Maestas, Fred Mall, Manuel Martinez, Jimmy McClendon, Pete McQueen, Francisco Melendez, Bruce David Morawe, Joe Newberry, Vincent Padilla, James Parks, Nelson Romero, Patrick Benny Romero, Ricky Rose, Janelle Roybal, James Saiz, Brian Salazar, Allen M Sawyer, David Shawkin, Phillip Shumate, Maria Sisneros, Richard A Smith, Larry Stroud, Peter Sumatkaku, Carl Sur, Augustine Tapia, Tallie Thomas, Martin Valdivia, Johnny Vallejos, Lonnie Whatley, Roy Whatley, Albert Willy, Thomas Young, Bryon Zamora. (Duncan, Theresa) (Entered: 08/09/2012)
953 JOINT REPLY to Response to Motion re 945 Joint MOTION to Enforce Settlement for Enforcement of Interim Order re Access to MDC (Joint Reply to County Defendants' Response to Joint Motion for Enforcement) ﬁled by Jimmy McClendon. (Cubra, Peter) Modiﬁed (added text) on 8/14/2012 (jrm). (Entered: 08/13/2012)
954 NOTICE of Brieﬁng Complete by Jimmy McClendon re 945 Joint MOTION to Enforce Settlement for Enforcement of Interim Order re Access to MDC ﬁled by Jimmy McClendon (Cubra, Peter) (Entered: 08/13/2012)
955 ORDER by Magistrate Judge Alan C. Torgerson Status Conference set for 9/21/2012 at 11:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. The monthly status conference set for October 19, 2012 and the quarterly status conference set for October 30, 2012 are VACATED. These conferences have been rescheduled for Friday November 9, 2012 at 1:30 p.m. in the sixth ﬂoor courtroom of the United States Courthouse at 421 Gold SW.
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (ns) (Entered: 08/16/2012)

08/17/2012 08/17/2012 09/04/2012 09/12/2012 10/04/2012
10/11/2012 10/12/2012
10/15/2012 10/23/2012
10/26/2012 11/08/2012

956 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 8/10/2012. (kc) (Entered: 08/17/2012)
957 ORDER by District Judge James A. Parker granting 952 the Unopposed Motion to Withdraw as Attorney. Attorney Theresa M Duncan terminated as counsel for Plaintiffs.. (jrm) (Entered: 08/17/2012)
958 NOTICE of Appearance by Peter Cubra on behalf of Jimmy McClendon (Cubra, Peter) (Entered: 09/04/2012)
959 ORDER by Magistrate Judge Alan C. Torgerson granting Entry of Appearance (ns) (Entered: 09/12/2012)
960 ORDER by Magistrate Judge Alan C. Torgerson. THIS MATTER comes before the Court sua sponte. Counsel for Defendants is ordered to provide the Court within ten (10) days a report regarding the space available to house inmates in detention facilities within the State of New Mexico. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kc) (Entered: 10/04/2012)
961 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 9/21/2012. (as) (Entered: 10/11/2012)
962 MEMORANDUM OPINION AND ORDER by Magistrate Judge Alan C. Torgerson on Joint MOTION to Enforce Settlement for Enforcement of Interim Order re Access to MDC [Doc. 945]. (ns) (Entered: 10/12/2012)
963 Unopposed MOTION to Appoint Counsel for Plaintiff Class by Jimmy McClendon. (Davis, Philip) (Entered: 10/15/2012)
964 ORDER by Magistrate Judge Alan C. Torgerson granting 963 Plaintiffs' Unopposed Motion for Approval of Class Counsel. Zachary A. Ives is approved as class counsel for the Plaintiff class. (as) (Entered: 10/23/2012)
965 Joint Objections RESPONSE re 962 Memorandum Opinion and Order ﬁled by Jimmy McClendon. (Cubra, Peter) (Entered: 10/26/2012)
966 NOTICE by Bernalillo County Board of Commissioners of Stipulated Deadline to Respond to Joint Objections [Doc. No. 965] to the October 12, 2012 Memorandum Opinion and Order [Doc. No. 962] (Rael, Marcus) (Entered: 11/08/2012)

11/09/2012 11/13/2012
11/14/2012
11/21/2012 11/27/2012 12/07/2012 12/17/2012 12/18/2012 12/21/2012

969 Clerk's Minutes for proceedings held before District Judge James A. Parker: Quarterly Status Conference held on 11/9/2012.. (Court Reporter J. De La Rosa) (jrm) (Entered: 11/14/2012)
967 ORDER by Magistrate Judge Alan C. Torgerson Vacating Rule 16 Status Conference. At the request of the parties, the Rule 16 Status Conference scheduled for 11:00 AM on 11/19/2012 is VACATED. The next Rule 16 Status Conference will take place as scheduled at 11:00 AM on 12/21/2012, in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (as) (Entered: 11/13/2012)
968 AMENDED ORDER by Magistrate Judge Alan C. Torgerson Vacating Rule 16 Status Conference. At the request of the parties, the Rule 16 Status Conference scheduled for 11:00 AM on 11/16/2012 is VACATED. The next Rule 16 Status Conference will take place as scheduled at 11:00 AM on 12/21/2012, in the Gila Courtroom, 5th Floor, Pete Domenici U.S. Courthouse, 333 Lomas Blvd. NW, Albuquerque, NM, before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 11/14/2012)
970 NOTICE by Bernalillo County Board of Commissioners re 965 Response Second Stipulated Deadline for County Defendant to Respond to Plaintiffs' and Plaintiff-Intervenors' Joint Objections to the October 12, 2012 Memorandum Opinion and Order 962 (Rael, Marcus) (Entered: 11/21/2012)
971 County Defendant's RESPONSE to Joint Objections [Doc. 965] re 965 Response ﬁled by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 11/27/2012)
972 NOTICE by Jimmy McClendon re 971 Response Stipulated Deadline for Plaintiffs & Plaintiff-Intervenosrs to Reply (Cubra, Peter) (Entered: 12/07/2012)
973 NOTICE by Jimmy McClendon re 971 Response Second Request for Stipulated Deadline Extension (Cubra, Peter) (Entered: 12/17/2012)
974 Joint Reply to RESPONSE to Joint Objections re 971 Response ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Cubra, Peter) (Entered: 12/18/2012)
978 Clerk's Minutes for proceedings held before District Judge James A. Parker & Magistrate Judge Alan C. Torgerson ; Monthly Status Conference held electronically on 12/21/2012.. (jrm) (Entered: 01/22/2013)

01/10/2013
01/18/2013 01/22/2013
01/31/2013 02/25/2013
02/26/2013
03/01/2013 03/06/2013 03/08/2013 03/08/2013 03/15/2013 03/19/2013

976 ORDER by Magistrate Judge Alan C. Torgerson VACATING Status Conference set for 1/18/2013 at 10:00 a.m.
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (as) (Entered: 01/10/2013)
977 Letter to the court from Michael Wayne King re: accommodations for disabled defendants.. (jrm) (Entered: 01/18/2013)
979 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Status Conference. Status Conference set for 2/25/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 01/22/2013)
980 SUA SPONTE ORDER by Magistrate Judge Alan C. Torgerson Regarding National Institute of Corrections Evaluation of Bernalillo County Criminal Justice System. (as) (Entered: 01/31/2013)
991 Clerk's Minutes for proceedings held before District Judge James A. Parker and Magistrate Judge Alan C. Torgerson: Status Conference held on 2/25/2013. (Court Reporter J. De La Rosa) (jrm) (Entered: 04/01/2013)
981 ORDER TO SHOW CAUSE by District Judge James A. Parker. Show Cause Hearing scheduled on 3/28/2013 at 10:00 AM in Albuquerque 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 02/26/2013)
982 NOTICE by Jimmy McClendon re 965 Response of Completion of Brieﬁng (Cubra, Peter) (Entered: 03/01/2013)
983 SUA SPONTE ORDER REGARDING DISCOVERY PRIOR TO SHOW CAUSE HEARING by Magistrate Judge Alan C. Torgerson. (kc) (Entered: 03/06/2013)
984 Witness List by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 03/08/2013)
985 NOTICE by Albuquerque, City of (Levy, Kathryn) (Entered: 03/08/2013)
986 Witness List by Jimmy McClendon. (Cubra, Peter) (Entered: 03/15/2013)
987 CERTIFICATE OF SERVICE by Bernalillo County Board of Commissioners re 983 Order (County's Response to Sua Sponte Discovery Order) (Rael, Marcus) (Entered: 03/19/2013)

03/19/2013
03/20/2013 03/21/2013 04/03/2013
04/18/2013 04/19/2013 04/19/2013 04/19/2013 04/25/2013 05/02/2013

988 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Settlement Conference. Settlement Conference set for 3/27/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 03/19/2013)
989 ORDER by District Judge James A. Parker Vacating Order to Show Cause 981 (dmw) (Entered: 03/20/2013)
990 ORDER by District Judge James A. Parker VACATING the hearing on the Order to Show Cause scheduled March 28, 2013. (kg) (Entered: 03/21/2013)
992 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Settlement Conference. Settlement Conference set for 4/16/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 04/03/2013)
993 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Settlement Conference. Settlement Conference set for 5/2/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. (as) (Entered: 04/18/2013)
994 "FILED IN ERROR" ORDER TO SHOW CAUSE by District Judge James A. Parker as described herein.. (jrm) Modiﬁed on 4/19/2013 (jrm). (Entered: 04/19/2013)
995 corrected ORDER TO SHOW CAUSE by District Judge James A. Parker as described herein. Show Cause Hearing set for 5/22/2013 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker.. (jrm) (Entered: 04/19/2013)
996 Unopposed MOTION for Reconsideration re 993 Order, Set Hearings Motion to Excuse Commissioner Wayne Johnson from the May 2, 2013 Settlement Conference by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 04/19/2013)
997 ORDER by Magistrate Judge Alan C. Torgerson granting 996 Unopposed Motion to Excuse Commissioner Wayne A. Johnson from Attending the May 2, 2013 Settlement Conference. (as) (Entered: 04/25/2013)
998 CONFIDENTIALITY ORDER by Magistrate Judge Alan C. Torgerson. (kc) (Entered: 05/02/2013)

05/06/2013

999 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Settlement Conference held on 5/2/2013. Results of Settlement Conference: Rule 16 Settlement Conference will resume on 5/20/2013 at 9:30 a.m. in the Gila Courtroom. (as) (Entered: 05/06/2013)

05/06/2013

1000 ORDER by Magistrate Judge Alan C. Torgerson Setting Settlement Conference Followup. Settlement Conference set for 5/20/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 05/06/2013)

05/21/2013

1001

Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Settlement Conference held on 5/20/2013. Results of Settlement Conference: Case did not settle. Rule 16 Settlement Conference continued to 6/3/2013 at 9:30 a.m. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 05/21/2013)

05/21/2013

1002 ORDER by Magistrate Judge Alan C. Torgerson Setting Settlement Conference Followup. Settlement Conference set for 6/3/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED(as) (Entered: 05/21/2013)

05/21/2013 1003 County's RESPONSE re 995 Order to Show Cause ﬁled by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 05/21/2013)

05/22/2013 1004 ORDER RESOLVING ORDER TO SHOW CAUSE by District Judge James A. Parker as described herein.. (jrm) (Entered: 05/23/2013)

05/22/2013 1007 Clerk's Minutes for proceedings held before District Judge James A. Parker: Show Cause Hearing held on 5/22/2013.. (Court Reporter J. De La Rosa) (jrm) (Entered: 06/10/2013)

06/06/2013

1005 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Settlement Conference held on 6/3/2013. Results of Settlement Conference: Case did not settle. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 06/06/2013)

06/06/2013

1006 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Settlement Conference. The Court will conduct a ﬁnal Rule 16 Settlement Conference on 6/24/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 06/06/2013)

06/24/2013

1008 ORDER VACATING AND RESCHEDULING FINAL SETTLEMENT CONFERENCE by Magistrate Judge Alan C. Torgerson. Settlement Conference set for 6/24/2013 is VACATED and rescheduled for 8/7/2013 at 09:30 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 06/24/2013)

06/25/2013

1009

MEMORANDUM OPINION AND ORDER by District Judge James A. Parker that Plaintiffs and Plaintiff-Intervenors' Joint Objections to Memorandum Opinion and Order on Joint Motion for Enforcement of Interim Order Regarding Access to the MDC (Doc. No. 965) are overruled without prejudice and as further described herein.. (jrm) (Entered: 06/25/2013)

06/26/2013 1010 "FILED IN ERROR" Letter by Plaintiff Roy Whatley re: counsel.. (jrm) Modiﬁed on 6/27/2013 (jrm). (Entered: 06/27/2013)

07/11/2013

1012 ORDER by Magistrate Judge Alan C. Torgerson. The Court will conduct a Rule 16 Settlement Conference on 7/24/2013 at 10:00 AM in Albuquerque - 670 Judge Alan C. Torgerson Chambers before Magistrate Judge Alan C. Torgerson - regarding the current attorneys' fees dispute. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kc) (Entered: 07/11/2013)

07/24/2013 1013 MOTION to Strike 1011 Notice (Other) Certiﬁcate of Compliance by Jimmy McClendon. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Simmons, Nancy) (Entered: 07/24/2013)

07/24/2013

1014

Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Rule 16 Settlement Conference held on 7/24/2013. Results of Settlement Conference: Fee dispute issues resolved. (as) (Entered: 07/24/2013)

07/24/2013

1015

ORDER TO SHOW CAUSE by District Judge James A. Parker Show Cause Hearing set for 8/8/2013 at 11:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (jrm) (Entered: 07/24/2013)

07/30/2013

1016

ORDER and Notice of Hearing: Defendant Bernalillo County must ﬁle a written response to the MOTION to Strike 1013 by noon, Monday, 8/5/2013, and the MOTION to Strike 1013 is scheduled for hearing on 8/8/2013 at 11:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 07/30/2013)

08/02/2013

Set/Reset Hearings: Settlement Conference set for 8/7/2013 at 09:30 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Alan C. Torgerson. (as) (Entered: 08/02/2013)

08/05/2013

1017

RESPONSE to Motion re 1013 MOTION to Strike 1011 Notice (Other) Certiﬁcate of Compliance County Defendants' Response to Motion to Strike (Doc. No, 1013) ﬁled by Bernalillo County Board of Commissioners, Bernalillo County Detention Center, Bernalillo, County of. (Baker, Jeffrey) (Entered: 08/05/2013)

08/08/2013 1018 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Rule 16 Settlement Conference held on 8/7/2013. Results of Settlement Conference: Case did not settle. (as) (Entered: 08/08/2013)

08/08/2013 1019 Clerk's Minutes for proceedings held before District Judge James A. Parker: Show Cause Hearing held on 8/8/2013. (Court Reporter J. De La Rosa) (jrm) (Entered: 08/12/2013)

08/15/2013

1020

REPLY to Response to Motion re 1013 MOTION to Strike 1011 Notice (Other) Certiﬁcate of Compliance ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit D, # 2 Exhibit E)(Simmons, Nancy) (Entered: 08/15/2013)

08/19/2013 1021 NOTICE of Brieﬁng Complete by Jimmy McClendon re 1013 MOTION to Strike 1011 Notice (Other) Certiﬁcate of Compliance ﬁled by Jimmy McClendon (Simmons, Nancy) (Entered: 08/19/2013)

08/19/2013 1022 Joint MOTION for Contempt by Jimmy McClendon. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Cubra, Peter) (Entered: 08/19/2013)

08/19/2013 1023 APPENDIX/SUPPLEMENT re 1022 Joint MOTION for Contempt by Jimmy McClendon (Attachments: # 1 Exhibit, # 2 Exhibit)(Cubra, Peter) (Entered: 08/19/2013)

08/21/2013 1024 ORDER by District Judge James A. Parker granting 1013 Motion to Strike Certiﬁcate of Compliance (dmw) (Entered: 08/21/2013)

09/04/2013

1025

TRANSCRIPT of ORDER TO SHOW CAUSE held on 08/08/2013, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. PLEASE TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Ofﬁce public terminal within the 90-day period. Notice of Intent to Request Redaction set for 9/11/2013. Redaction Request due 9/25/2013. Redacted Transcript Deadline set for 10/7/2013. Release of Transcript Restriction set for 12/3/2013.(jdlr) (Entered: 09/04/2013)

09/04/2013 1026 Opposed MOTION for Extension of Time to File Response/Reply as to 1022 Joint MOTION for Contempt by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 09/04/2013)

09/05/2013

1027

RESPONSE to Motion re 1026 Opposed MOTION for Extension of Time to File Response/Reply as to 1022 Joint MOTION for Contempt ﬁled by Jimmy McClendon. (Simmons, Nancy) (Entered: 09/05/2013)

09/05/2013 1028 NOTICE OF WITHDRAWAL OF DOCUMENT by Jimmy McClendon (Simmons, Nancy) (Entered: 09/05/2013)

09/05/2013

1029

RESPONSE to Motion re 1026 Opposed MOTION for Extension of Time to File Response/Reply as to 1022 Joint MOTION for Contempt ﬁled by Jimmy McClendon. (Simmons, Nancy) (Entered: 09/05/2013)

09/05/2013 1030 ORDER by District Judge James A. Parker granting 1026 Defendant's Motion for Extension of Time to File Response. Response is due by 9/12/2013. (acj) (Entered: 09/05/2013)

09/11/2013 1032 Unopposed MOTION for Extension of Time to File Response/Reply as to 1022 Joint MOTION for Contempt by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 09/11/2013)

09/12/2013

1033

ORDER by District Judge James A. Parker granting 1032 County Defendants' Second Unopposed Motion for Extension of Time to File Response/Reply re 1032 Unopposed MOTION for Extension of Time to File Response/Reply as to 1022 Joint MOTION for Contempt Response(s) due by 9/19/2013 (jrm) (Entered: 09/12/2013)

09/18/2013 1074 Unopposed MOTION to Extend (other) Page Limits for Brief and Exhibit in Response to the Joint Contempt Motion by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 09/18/2013)

09/18/2013

1075

RESPONSE in Opposition re 1022 Joint MOTION for Contempt ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, part 1, # 2 Exhibit A, part 2, # 3 Exhibit A, part 3, # 4 Exhibit A, part 4)(Rael, Marcus) (Entered: 09/18/2013)

09/20/2013

1076

ORDER by District Judge James A. Parker granting 1074 County Defendants' Unopposed Motion to Exceed page limits on its Brief and Exhibits in Response to the Joint Contempt Motion [Doc. No.1022] and as further described herein. (jrm) (Entered: 09/20/2013)

10/02/2013

1077 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Status Conference to discuss issues raised in Peter Cubra's letter to the Court dated 10/1/2013. Status Conference set for 10/16/2013 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 10/02/2013)

10/04/2013

1078

MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC by Jimmy McClendon. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Cubra, Peter) (Entered: 10/04/2013)

10/04/2013

1079

REPLY to Response to Motion re 1022 Joint MOTION for Contempt & for order imposing compensatory and coercive sanctions ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit 1)(Cubra, Peter) (Entered: 10/04/2013)

10/04/2013 1080 NOTICE of Brieﬁng Complete by Jimmy McClendon re 1022 Joint MOTION for Contempt ﬁled by Jimmy McClendon (Cubra, Peter) (Entered: 10/04/2013)

10/08/2013

1081

NOTICE of Hearing on Motion 1022 Joint MOTION for Contempt : Motion Hearing set for 11/20/2013 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 10/08/2013)

10/17/2013 1082 MOTION to Set Aside 754 Order (Motion for Termination of the Interim Access Order) by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 10/17/2013)

10/18/2013 1083 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 10/16/2013. (as) (Entered: 10/18/2013)

10/21/2013 1084 RESPONSE in Opposition re 1078 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC ﬁled by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 10/21/2013)

10/24/2013

1085

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on 10/16/2013, before Judge Alan C. Torgerson. Court Reporter/Transcriber Exceptional Reporting Services, Inc., Telephone number 361-949-2988. PLEASE TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Ofﬁce public terminal within the 90-day period. Notice of Intent to Request Redaction set for 10/31/2013. Redaction Request due 11/14/2013. Redacted Transcript Deadline set for 11/25/2013. Release of Transcript Restriction set for 1/22/2014.(kdh) (Entered: 10/24/2013)

10/31/2013 1086 NOTICE of Intent to Request Redaction by Kelly K Waterfall re 1085 Transcript,,,,

PLEASE TAKE NOTICE that you now have 21 calendar days, from the ﬁling of the subject transcript 1) to ﬁle a list of the places in the transcript where the personal data to be redacted appears 2) to ﬁle a motion for extension of time to ﬁle such list or 3) to withdraw your Notice of Intent to Request Redaction. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. (Waterfall, Kelly) (Entered: 10/31/2013)

11/04/2013

1087

RESPONSE to Motion re 1082 MOTION to Set Aside 754 Order (Motion for Termination of the Interim Access Order) ﬁled by Jimmy McClendon, PS. (Ives, Zachary) (Entered: 11/04/2013)

11/06/2013

1088

REPLY to Response to Motion re 1078 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit)(Waterfall, Kelly) (Entered: 11/06/2013)

11/06/2013

1089

NOTICE of Brieﬁng Complete by Jimmy McClendon re 1078 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC ﬁled by Jimmy McClendon (Waterfall, Kelly) (Entered: 11/06/2013)

11/07/2013 1090 Transcript Redaction Request re 1085 Transcript,,,, by attorney Kelly K Waterfall (Waterfall, Kelly) (Entered: 11/07/2013)

11/12/2013

1091

Redaction re 1085 Transcript of Status Conference Proceedings held on 10/16/2013, before Judge Alan C. Torgerson TAKE NOTICE that this transcript will be made remotely electronically available to the public (via PACER) 90 calendar days after the ﬁling of the original unredacted transcript. (ln) (Entered: 11/12/2013)

11/20/2013

1095

Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 11/20/2013 re 1022 Joint MOTION for Contempt ﬁled by Jimmy McClendon, 1082 MOTION to Set Aside 754 Order (Motion for Termination of the Interim Access Order) ﬁled by Bernalillo County Board of Commissioners, 1078 MOTION to Enforce Settlement of Interim Order Regarding Access to the MDC ﬁled by Jimmy McClendon. (Court Reporter J. De La Rosa) (dmw) (Entered: 11/26/2013)

11/21/2013

1092

ORDER DIRECTING MANUEL ROMERO TO EVALUATE AND REPORT REGARDING A DEATH AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER by Magistrate Judge Alan C. Torgerson. (as) (Entered: 11/21/2013)

11/21/2013 1093 STIPULATED CONFIDENTIALITY ORDER by Magistrate Judge Alan C. Torgerson. (as) (Entered: 11/21/2013)

11/25/2013

1094 ORDER by Magistrate Judge Alan C. Torgerson Setting Rule 16 Status Conference. Status Conference set for 12/20/2013 at 11:00 AM in Albuquerque - 520 Gila Courtroom before Magistrate Judge Alan C. Torgerson. NOTE CHANGE IN TIME FROM 10:00 AM TO 11:00 AM. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (as) (Entered: 11/25/2013)

11/26/2013 1096 ORDER by Magistrate Judge Alan C. Torgerson denying 1082 County Defendant's Motion for Termination of Interim Access Order. (as) (Entered: 11/26/2013)

11/27/2013 1097 Unopposed MOTION to Extend (other) Page Limit for Motion for Trial on the Merits by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 11/27/2013)

12/02/2013 1098 ORDER by District Judge James A. Parker granting 1097 Motion to Exceed Page Limits for Motion for Trial on the Merits (dmw) (Entered: 12/02/2013)

12/04/2013 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 12/04/2013)

12/13/2013 1100 Unopposed MOTION for Extension of Time to File Response/Reply as to 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] by Jimmy McClendon. (Simmons, Nancy) (Entered: 12/13/2013)

12/16/2013 1101 ORDER by District Judge James A. Parker granting 1100 Motion for Extension of Time to File Response re 1099 MOTION for Trial on the Merits; Responses due by 1/18/2014 (dmw) (Entered: 12/16/2013)

12/19/2013

1102

Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 12/19/2013)

01/06/2014

1103

FILED IN ERROR-NOTICE by Jimmy McClendon re 1102 Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights Stipulation Regarding Extension of Time to Respond (Khalsa, Kirtan) Modiﬁed on 1/6/2014 TO ADD ERROR TEXT (vv). (Entered: 01/06/2014)

01/06/2014

1104

NOTICE by Jimmy McClendon re 1102 Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights Stipulation Regarding Extension of Time to Respond (Corrected) (Khalsa, Kirtan) (Entered: 01/06/2014)

01/13/2014

1105 Clerk's Minutes for proceedings held before Magistrate Judge Alan C. Torgerson: Status Conference held on 12/20/2013. Court held a Rule 16 Status Conference on December 20, 2013. Mark Donatelli, Zach Ives and Kirtan Khalsa appeared on behalf of the Plaintiff. Amanda Lavin, Kelly Waterfall, Nancy Simmons and Peter Cubra appeared on behalf of Plaintiff-Intervenors, Ray Autio, Adam Greenwood, Marcus Rael and Jeff Baker appeared on behalf of County Defendants. Agnes FuentevillaPadilla appeared on behalf of CHC. Court worked with counsel to resolve the disputes between the parties regarding Plaintiff Intervenors Motion for Enforcement of Interim Order Regarding Access to the MDC [Doc. 1078]. Counsel for Plaintiff Intervenors and Defendant County are to advise the Court by January 17, 2014, whether the remaining issues have been resolved. If there are issues that have not been resolved by January 17, 2014, counsel for Plaintiff Intervenors must ﬁle a supplemental motion identifying those issues for the Court. Defendant County will have ﬁve (5) days to respond. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (as) (Entered: 01/13/2014)

01/16/2014 1106 NOTICE by Jimmy McClendon of Unavailability from February 14, 2014 through March 3, 2014 (Cubra, Peter) Modiﬁed on 1/17/2014 TO ADD DATES (vv). (Entered: 01/16/2014)

01/17/2014 1107 ORDER by Magistrate Judge Alan C. Torgerson ﬁnding as moot 1078 Plaintiff-Intervenors' Motion for Enforcement of Interim Order Regarding Access to the MDC. (as) (Entered: 01/17/2014)

01/20/2014 1108 RESPONSE to Motion re 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit A)(Simmons, Nancy) (Entered: 01/20/2014)

01/23/2014 1109 ERRATA re 1108 Response to Motion Errata and Correction to Doc. 1108 by Jimmy McClendon (Simmons, Nancy) (Entered: 01/23/2014)

01/27/2014 1110 Unopposed MOTION for Leave to File Excess Pages by Jimmy McClendon. (Khalsa, Kirtan) (Entered: 01/27/2014)

01/28/2014 1111 ORDER by District Judge James A. Parker granting 1110 Motion for Leave to File Excess Pages (vv) (Entered: 01/28/2014)

01/29/2014

1112 MEMORANDUM in Opposition re 1102 Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights ﬁled by Jimmy McClendon. (Khalsa, Kirtan) (Entered: 01/29/2014)

01/31/2014

1114 NOTICE of Hearing on Motion 1022 Joint MOTION for Contempt , 1102 Opposed MOTION for Order Directing the CourtAppointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights, 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] : Motions Hearing scheduled on 2/18/2014 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 01/31/2014)

01/31/2014 1115 BRIEF re 1022 Joint MOTION for Contempt by Jimmy McClendon (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Cubra, Peter) (Entered: 01/31/2014)

02/03/2014

1116 NOTICE by Bernalillo County Board of Commissioners re 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits], 1102 Opposed MOTION for Order Directing the CourtAppointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights (Notice Regarding Stipulated Deadlines for County's Reply Briefs) (Rael, Marcus) (Entered: 02/03/2014)

02/03/2014

1117 AMENDED NOTICE of Hearing on Motion 1022 Joint MOTION for Contempt , 1102 Opposed MOTION for Order Directing the CourtAppointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights, 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] : Motion Hearing rescheduled on 2/25/2014 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 02/03/2014)

02/12/2014

1118 NOTICE of Hearings on Motions: 1102 Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights and 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] are scheduled on 4/1/2014 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. 1022 Joint MOTION for Contempt is scheduled on 4/29/2014 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 02/12/2014)

02/14/2014

1119 Unopposed MOTION to Extend (other) Page Limits for County Defendant's Reply in Support of Its Motion for Trial on the Merits by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 02/14/2014)

02/17/2014 1120 REPLY to Response to Motion re 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] ﬁled by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 02/17/2014)

02/18/2014

1121

NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] ﬁled by Bernalillo County Board of Commissioners (Rael, Marcus) (Entered: 02/18/2014)

02/18/2014

1122

AMENDED NOTICE of Hearing on Motions: 1102 Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights, 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] : Motions Hearing rescheduled on 4/4/2014 at 10:30 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 02/18/2014)

02/18/2014 1123 ORDER by District Judge James A. Parker granting 1119 Motion to Extend (vv) (Entered: 02/18/2014)

02/21/2014

1124

REPLY to Response to Motion re 1102 Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights ﬁled by Bernalillo County Board of Commissioners. (Rael, Marcus) (Entered: 02/21/2014)

02/24/2014

1125

NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 1102 Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights ﬁled by Bernalillo County Board of Commissioners (Rael, Marcus) (Entered: 02/24/2014)

03/07/2014 1126 AFFIDAVIT OF ALAN C. TORGERSON In Support of Appointment as Special Master. (kc) (Entered: 03/07/2014)

03/10/2014

1127 PLEASE TAKE NOTICE that this case has been reassigned to Magistrate Judge Karen B. Molzen as the pretrial judge. Under D.N.M.LR-Civ. 10.1, the ﬁrst page of each document must have the case ﬁle number and initials of the assigned judges. Accordingly, further documents ﬁled in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reﬂect this change in your ﬁlings.

Judge Torgerson no longer assigned to this case.
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (stw) (Entered: 03/10/2014)

03/27/2014 1128 ORDER appointing Special Master by District Judge James A. Parker (vv) (Entered: 03/28/2014)

04/03/2014 1129 NOTICE of Appearance by Luis E. Robles on behalf of Bernalillo County Board of Commissioners (Robles, Luis) (Entered: 04/03/2014)

04/04/2014

1130

Clerk's Minutes for proceedings held before District Judge James A. Parker and Chief Magistrate Judge Molzen: Motion Hearing held on 4/4/2014 re 1099 Opposed MOTION for Trial 1102 and Opposed MOTION for Order Directing the Court-Appointed Experts to Evaluate Whether Conditions at the MDC are Current and Ongoing Violations of Federal Constitutional Rights (Court Reporter John De La Rosa) (vv) (Entered: 04/07/2014)

04/21/2014

1131

NOTICE of Hearing: Status Conference set for 4/22/2014 at 02:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 04/21/2014)

04/21/2014 1132 MEMORANDUM OPINION AND ORDER denying 1099 Opposed MOTION for Trial [Motion to Proceed to Trial on Merits] by District Judge James A. Parker (vv) (Entered: 04/21/2014)

04/22/2014 1137 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 4/22/2014. (Court Reporter John De La Rosa) (vv) (Entered: 04/28/2014)

04/23/2014 1133 Joint MOTION for Temporary Restraining Order and for Injunctive Relief by Jimmy McClendon. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Cubra, Peter) (Entered: 04/23/2014)

04/23/2014 1134 CERTIFICATE OF SERVICE by Jimmy McClendon re 1133 Joint MOTION for Temporary Restraining Order and for Injunctive Relief (Cubra, Peter) (Entered: 04/23/2014)

04/25/2014 1135 MOTION to Terminate Certain Prior Orders Granting Prospective Relief Based on the Prison Litigation Reform Act by Bernalillo County Board of Commissioners. (Robles, Luis) (Entered: 04/25/2014)

04/26/2014

1136

TRANSCRIPT of HEARING ON MOTIONS held on 04/04/2014, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 5/5/2014. Redaction Request due 5/19/2014. Redacted Transcript Deadline set for 5/27/2014. Release of Transcript Restriction set for 7/25/2014.(jdlr) (Entered: 04/26/2014)

04/29/2014

1138

NOTICE of Hearing on Motion 1022 Joint MOTION for Contempt , 1135 MOTION to Terminate Certain Prior Orders Granting Prospective Relief Based on the Prison Litigation Reform Act , 1133 Joint MOTION for Temporary Restraining Order and for Injunctive Relief : Motion Hearing set for 5/19/2014 at 09:00 AM in Albuquerque - 421 Gold, 2nd Floor Courtroom before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 04/29/2014)

04/29/2014 1139 NOTICE of claims by Lafayette Stone (vv) (Entered: 04/30/2014)

04/29/2014

1146

Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 4/29/2014 re 1022 Joint MOTION for Contempt ﬁled by Jimmy McClendon, 1133 Joint MOTION for Temporary Restraining Order and for Injunctive Relief ﬁled by Jimmy McClendon. (Court Reporter John De La Rosa) (vv) (Entered: 05/12/2014)

04/30/2014 1140 MOTION to Seal Exhibits by Jimmy McClendon. (Waterfall, Kelly) (Entered: 04/30/2014)

05/02/2014 1141 ORDER by District Judge James A. Parker granting 1140 Motion to Seal (vv) (Entered: 05/02/2014)

05/02/2014 1142 CERTIFICATE OF SERVICE by Bernalillo County Board of Commissioners for Documents Responsive to Kirtan Khalsa's April 30, 2014 Request (No. 7) (Robles, Luis) (Entered: 05/02/2014)

05/05/2014

1143

Unopposed MOTION to Extend (other) Page Limit for County Defendant's Response to the Motion for Temporary Restraining Order and Injunctive Relief by Bernalillo County Board of Commissioners. (Robles, Luis) (Entered: 05/05/2014)

05/05/2014

1144

RESPONSE to Motion re 1133 Joint MOTION for Temporary Restraining Order and for Injunctive Relief ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Robles, Luis) (Entered: 05/05/2014)

05/09/2014

1145

TRANSCRIPT of MOTIONS HEARING held on 04/29/2014, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 5/16/2014. Redaction Request due 5/30/2014. Redacted Transcript Deadline set for 6/9/2014. Release of Transcript Restriction set for 8/7/2014.(jdlr) (Entered: 05/09/2014)

05/12/2014

1147

ORDER resolving two motions and order to show case re 1133 Joint MOTION for Temporary Restraining Order and for Injunctive Relief and 1135 MOTION to Terminate Certain Prior Orders by District Judge James A. Parker. (vv) (Entered: 05/12/2014)

05/19/2014

1148

NOTICE OF WITHDRAWAL OF DOCUMENT as to document 1022 Motion for Contempt by Joseph W Anderson, Amihon Baca, Eliseo Baca, Clint Barras, Marty Begay, James Burks, George Chavez, Louie Chavez, Darryl Craft, Jeff Dillow, Carl Duckworth, Steve Esquibel, Brad Fischer, Richard Gallegos, Bennie F Garcia, Marc A Gillette, Donald Hall, Samual Herrod, Augustine Jackson, William P Jimmy, Michael A Johnson, Paul Johnson, Steve Johnson, Herbert King, Sr, Hector Lopez, Robert Lovato, Fred Mall, Pete McQueen, Francisco Melendez, NW, Joe Newberry, PS, Vincent Padilla, James Parks, RL, Nelson Romero, Patrick Benny Romero, Ricky Rose, James Saiz, Brian Salazar, Allen M Sawyer, Phillip Shumate, Richard A Smith, Larry Stroud, Peter Sumatkaku, Carl Sur, Augustine Tapia, Tallie Thomas, Martin Valdivia, Johnny Vallejos, WA, Lonnie Whatley, Roy Whatley, Albert Willy, Bryon Zamora (Ives, Zachary) (Entered: 05/19/2014)

05/28/2014 1149 NOTICE re: Claims by Lafayette Stone (bap) (Entered: 05/28/2014)

06/02/2014

1150

NOTICE of Hearing: Status Conference set for 6/13/2014 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/02/2014)

06/04/2014 1151 Letter re claims by Lafayette Stone (dmw) (Entered: 06/05/2014)

06/06/2014 1152 STIPULATED PROTECTIVE ORDER REGARDING USE OF PROTECTED HEALTH INFORMATION by Chief Magistrate Judge Karen B. Molzen. (KBM) (Entered: 06/06/2014)

06/13/2014 1153 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 6/13/2014. (Court Reporter John De La Rosa) (vv) (Entered: 06/16/2014)

06/24/2014

1154

NOTICE of Hearing: Status Conference set for 7/23/2014 at 11:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/24/2014)

06/26/2014 1155 STIPULATED PROTECTIVE ORDER by Chief Magistrate Judge Karen B. Molzen. (KBM) (Entered: 06/26/2014)

06/30/2014 1156 Unopposed MOTION to Withdraw Counsel by Bernalillo County Board of Commissioners. (Robles, Luis) (Entered: 06/30/2014)

06/30/2014

1157

AMENDED NOTICE of Hearing: Status Conference rescheduled at 3:00 PM on 7/23/2014 (from 11:00 AM) in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/30/2014)

06/30/2014 1158 ORDER by District Judge James A. Parker granting 1156 Motion to Withdraw counsel (vv) (Entered: 06/30/2014)

07/14/2014

1159

TRANSCRIPT of STATUS CONFERENCE held on 06/13/2014, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 7/21/2014. Redaction Request due 8/4/2014. Redacted Transcript Deadline set for 8/14/2014. Release of Transcript Restriction set for 10/14/2014.(jdlr) (Entered: 07/14/2014)

07/21/2014

1160 MINUTE ORDER vacating the status conference currently scheduled on 7/23/2014; the status conference is rescheduled on 9/23/2014 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 07/21/2014)

08/19/2014

1161

AMENDED ORDER by District Judge James A. Parker granting 1133 Motion for TRO and 1135 Motion to terminate certain orders and 1143 Motion to Extend page limit (vv) Modiﬁed text on 11/4/2014 (bap). (Entered: 08/19/2014)

09/04/2014 1162 Unopposed MOTION to Substitute Attorney Mark T. Baker for Kirtan Khalsa As Counsel for the Plaintiff Class by Jimmy McClendon. (Ives, Zachary) (Entered: 09/04/2014)

09/08/2014 1163 ORDER by District Judge James A. Parker granting 1162 Motion to Substitute Attorney. Added attorney Mark T Baker added; Attorney Kirtan K Khalsa terminated. (vv) (Entered: 09/08/2014)

09/23/2014 1164 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 9/23/2014. (Court Reporter J. DeLaRosa) (bap) (Entered: 09/24/2014)

09/23/2014

1167

ORDER by District Judge James A. Parker Instructing Court-Appointed Jail Operations Expert Manuel Romero to Evaluate Conditions of Conﬁnement at the Bernalillo County Metropolitan Detention Center re 1102 Motion for Order (bap) Modiﬁed text on 11/4/2014 (bap). (Entered: 09/24/2014)

09/23/2014

1168

ORDER by District Judge James A. Parker Instructing Court-Appointed Medical Expert Robert Greiﬁnger, MD to Evaluate Medical Services at the Bernalillo County Metropolitan Detention Center (bap) (Entered: 09/24/2014)

09/23/2014

1169

ORDER by District Judge James A. Parker Instructing Court-Appointed Mental Health Expert Jeffrey Metzner, MD to Evaluate Mental Health Services at the Bernalillo County Metropolitan Detention Center (bap) (Entered: 09/24/2014)

09/24/2014 1165 ORDER OF RECUSAL by Magistrate Judge Karen B. Molzen. (KBM) (Entered: 09/24/2014)

09/24/2014

1166 PLEASE TAKE NOTICE that this case has been reassigned to U.S. Magistrate Judge Steven C. Yarbrough as the pretrial judge. Under D.N.M.LR-Civ. 10.1, the ﬁrst page of each document must have the case ﬁle number and initials of the assigned judges. Accordingly, further documents ﬁled in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reﬂect this change in your ﬁlings.

Chief U.S. Magistrate Judge Karen B. Molzen is no longer assigned to this case.
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (mr) (Entered: 09/24/2014)
10/30/2014 1170 NOTICE OF AVAILABILITY by Chief Magistrate Judge Karen B. Molzen. (KBM) (Entered: 10/30/2014)

10/30/2014

1171

TRANSCRIPT of STATUS CONFERENCE held on 09/23/2014, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 11/6/2014. Redaction Request due 11/20/2014. Redacted Transcript Deadline set for 12/1/2014. Release of Transcript Restriction set for 1/28/2015.(jdlr) (Entered: 10/30/2014)

10/31/2014

1172

MOTION for Extension of Time to File Stafﬁng Plan by Bernalillo, County of. (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b, # 3 Exhibit 1c, # 4 Exhibit 1d, # 5 Exhibit 1e, # 6 Exhibit 1f, # 7 Exhibit 2)(Baker, Jeffrey) (Entered: 10/31/2014)

11/14/2014 1173 RESPONSE to Motion re 1172 MOTION for Extension of Time to File Stafﬁng Plan ﬁled by Jimmy McClendon. (Cubra, Peter) (Entered: 11/14/2014)

11/17/2014 1174 "FILED IN ERROR" ORDER REFERRING CASE to Magistrate Judge Karen B. Molzen by District Judge James A. Parker (bap) Modiﬁed text to include "error" on 11/25/2014 (bap). (Entered: 11/17/2014)

11/17/2014

1175

Unopposed MOTION to Extend (other) Deadline by Which to Submit an Emergency Population Plan To the Court by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A)(Robles, Luis) (Entered: 11/17/2014)

11/17/2014

1176 ***FILED IN ERROR*** PLEASE TAKE NOTICE that this case has been reassigned to Chief U.S. Magistrate Judge Karen B. Molzen as the trial judge. Under D.N.M.LR-Civ. 10.1, the ﬁrst page of each document must have the case ﬁle number and initials of the assigned judges. Accordingly, further documents ﬁled in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reﬂect this change in your ﬁlings.

Senior U.S. District Judge James A. Parker is no longer assigned to this case.
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (mr) (Entered: 11/17/2014)

11/18/2014

1177 PLEASE TAKE NOTICE that this case has been reassigned to Senior U.S. District Judge James A. Parker and Chief U.S. Magistrate Judge Karen B. Molzen as the trial and pretrial judges. Under D.N.M.LR-Civ. 10.1, the ﬁrst page of each document must have the case ﬁle number and initials of the assigned judges. Accordingly, further documents ﬁled in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reﬂect this change in your ﬁlings.

U.S. Magistrate Judge Steven C. Yarbrough is no longer assigned to this case. Doc. 1176 has been marked "FILED IN ERROR".
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (mr) (Entered: 11/18/2014)

11/18/2014

1178

STIPULATED ORDER by District Judge James A. Parker granting 1175 Unopposed Motion to Extend Deadline by which to submit an Emergency Population Plan to the Court is extended until 11/19/2014. (bap) (Entered: 11/18/2014)

11/19/2014 1179 NOTICE by Bernalillo County Board of Commissioners Certiﬁcate of Compliance Regarding the Submission of the Emergency Population Management Plan to the Court (Robles, Luis) (Entered: 11/19/2014)

11/26/2014 1180 NOTICE by Bernalillo County Board of Commissioners Certiﬁcate of Compliance Regarding the Submission of the MDC Stafﬁng Plan to the Court (Robles, Luis) (Entered: 11/26/2014)

12/01/2014 1181 REPLY to Response to Motion re 1172 MOTION for Extension of Time to File Stafﬁng Plan ﬁled by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 12/01/2014)

12/01/2014

1182

NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 1172 MOTION for Extension of Time to File Stafﬁng Plan ﬁled by Bernalillo, County of (Baker, Jeffrey) (Entered: 12/01/2014)

12/09/2014

1183

NOTICE of Hearing: Status Conference set for 3/10/2015 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker and Magistrate Judge Karen B. Molzen.(dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 12/09/2014)

12/15/2014 1184 ORDER by District Judge James A. Parker denying 1172 Motion for Extension of Time to File Stafﬁng Plan (dmw) (Entered: 12/15/2014)

02/23/2015 1185 QUALIFIED PROTECTIVE ORDER by District Judge James A. Parker for the Limited Dissemination of Inmate Protected Health Information as further described herein. (bap) (Entered: 02/23/2015)

03/10/2015

1186

Clerk's Minutes for proceedings held before District Judge James A. Parker, Magistrate Judge Karen B. Molzen and Special Master Alan C. Torgerson: Status Conference held on 3/10/2015. (Court Reporter John DeLaRosa) (bap) (Entered: 03/16/2015)

03/30/2015

1187

AMENDED ORDER by District Judge James A. Parker Instructing Court-Appointed Medical Expert Robert Greiﬁnger, MD to Evaluate Medical Services at the Bernalillo County Metropolitan Detention Center. (bap) (Entered: 03/30/2015)

08/04/2015 1188 OBJECTIONS Plaintiffs Intervenors' Objections by EM (Cubra, Peter) (Entered: 08/04/2015)

08/04/2015 1189 OBJECTIONS re 965 Response Plaintiffs Intervenors' Renewed Objections by EM (Cubra, Peter) (Entered: 08/04/2015)

08/07/2015

1190

NOTICE of Hearing: A Status Conference is scheduled on 10/7/2015 at 01:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 08/07/2015)

08/17/2015 1191 MOTION for Order to Show Cause and for Further Remedial Relief by EM. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Cubra, Peter). (Entered: 08/17/2015)

08/21/2015

1192

Defendant's RESPONSE To Plaintiff-Intervenors' Renewed Objections To Memorandum Opinion And Order On Joint Motion For Enforcement Of Interim Order Regarding Access To The MDC re 1189 Objections ﬁled by Bernalillo, County of. (Robles, Luis) (Entered: 08/21/2015)

08/21/2015 1193 Defendant's RESPONSE To Plaintiff-Intervenors' Objections To July 17, 2015 Report Of The Court's Mental Health Expert re 1188 Objections ﬁled by Bernalillo, County of. (Robles, Luis) (Entered: 08/21/2015)

08/31/2015 1194 NOTICE of Appearance by Debra J. Moulton on behalf of Albuquerque, City of (Moulton, Debra) (Entered: 08/31/2015)

08/31/2015 1195 RESPONSE in Opposition re 1191 MOTION for Order to Show Cause and for Further Remedial Relief ﬁled by Albuquerque, City of. (Attachments: # 1 Exhibit)(Moulton, Debra) (Entered: 08/31/2015)

09/02/2015 1196 NOTICE by EM re 1188 Objections, 1189 Objections Notice of stipulated extension of time to ﬁle Replies (Cubra, Peter) (Entered: 09/02/2015)

09/04/2015 1197 NOTICE of Change of Address by Zachary A Ives (Ives, Zachary) (Entered: 09/04/2015)

09/14/2015 1198 Plaintiffs Intervenors REPLY to Defendants Response re 1192 Response, ﬁled by DJ. (Attachments: # 1 Exhibit)(Cubra, Peter) (Entered: 09/14/2015)

09/14/2015 1199 Plaintiffs Intervenors REPLY to County Defendants Response re 1193 Response ﬁled by DJ. (Cubra, Peter) (Entered: 09/14/2015)

09/16/2015 1200 NOTICE by EM re 1193 Response, 1188 Objections, 1199 Reply Notice of Brieﬁng Complete (Cubra, Peter) (Entered: 09/16/2015)

09/16/2015 1201 NOTICE by EM re 1198 Reply, 1189 Objections, 1192 Response, Notice of Brieﬁng Complete (Cubra, Peter) (Entered: 09/16/2015)

09/16/2015 1202 NOTICE by EM re 1195 Response in Opposition to Motion of Stipulated Extension of Time (Cubra, Peter) (Entered: 09/16/2015)

09/28/2015 1203 REPLY to Response to Motion re 1191 MOTION for Order to Show Cause and for Further Remedial Relief ﬁled by EM. (Attachments: # 1 Exhibit)(Cubra, Peter) (Entered: 09/28/2015)

09/29/2015 1204 NOTICE of Brieﬁng Complete by EM re 1191 MOTION for Order to Show Cause and for Further Remedial Relief ﬁled by EM (Cubra, Peter) (Entered: 09/29/2015)

10/01/2015 1205 Stipulated Protective Order Regarding Use of Protected Health Information by Chief Magistrate Judge Karen B. Molzen. (mlt) (Entered: 10/01/2015)

10/07/2015

1206

Clerk's Minutes for proceedings held before District Judge James A. Parker and Chief Magistrate Judge Karen B. Molzen: Status Conference held on 10/7/2015. (Court Reporter John De La Rosa) (bap) (Entered: 10/13/2015)

10/13/2015

1207

MEMORANDUM OPINION AND ORDER by District Judge James A. Parker granting in part Plaintiff-Intervenors' Renewed Objections to Memorandum Opinion and Order on Joint Motion for Enforcement of Interim Order Regarding Access to the MDC re 1189 and as further described herein. (bap) (Entered: 10/13/2015)

10/21/2015 1208 STIPULATED CONFIDENTIALITY ORDER by District Judge James A. Parker. (bap) (Entered: 10/21/2015)

12/02/2015

1209

NOTICE of Hearing: A hearing is scheduled for approval of settlement agreement on 12/14/2015 at 11:00 AM in Albuquerque - 421 Gold SW, Sixth Floor Courtroom - before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 12/02/2015)

12/14/2015

1210

Clerk's Minutes for proceedings held before District Judge James A. Parker and Chief Magistrate Judge Karen Molzen: Status Conference held on 12/14/2015. (Court Reporter John De La Rosa) (vv) (Entered: 12/23/2015)

12/23/2015 1211 STIPULATED CONFIDENTIALITY ORDER by District Judge James A. Parker. (Attachments: # 1 Exhibit)(vv) (Entered: 12/23/2015)

01/13/2016

1212

TRANSCRIPT of STATUS CONFERENCE held on 12/14/2015, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 1/20/2016. Redaction Request due 2/3/2016. Redacted Transcript Deadline set for 2/16/2016. Release of Transcript Restriction set for 4/12/2016.(jdlr) (Entered: 01/13/2016)

03/22/2016

1213

STIPULATED ORDER by Senior District Judge James A. Parker Preliminarily Approving Settlement, Requiring Notice to Class and Subclass Members as further described herein (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(bap) (Entered: 03/22/2016)

03/22/2016

1214

NOTICE of Hearing: Fairness Hearing set for 5/25/2016 at 10:00 AM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 03/22/2016)

04/04/2016 1215 OBJECTIONS by Mark Chavez Class and Sub-Class Members (bap) (Entered: 04/05/2016)

05/11/2016 1216 OBJECTIONS to April 22, 2016 Report of Medical Expert by EM (Cubra, Peter) (Entered: 05/11/2016)

05/23/2016 1217 NOTICE by EM re 1213 Order, Joint Notice of Objections Received (Attachments: # 1 Exhibit 1) (Cubra, Peter) (Entered: 05/23/2016)

05/24/2016

1218

RESPONSE To Plaintiff-Intervenors' Objections To April 22, 2016 Report Of The Court's Medical Expert re 1216 Objections ﬁled by Bernalillo County Board of Commissioners. (Robles, Luis) (Entered: 05/24/2016)

05/25/2016 1219 STIPULATED CONFIDENTIALITY ORDER by Senior District Judge James A. Parker. (bap) (Entered: 05/25/2016)

05/25/2016

1220

Clerk's Minutes for proceedings held before Senior District Judge James A. Parker: Hearing on ﬁnal approval of Settlement Agreement held on 5/25/2016. (Court Reporter John DeLaRosa) (Attachment: # 1 Exhibit List) (bap) (Additional attachment(s) added on 6/15/2016: # 2 Exhibit) (vv). (Entered: 05/25/2016)

05/25/2016

1221

PARTIAL TRANSCRIPT of FAIRNESS HEARING held on 05/25/2016, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 6/1/2016. Redaction Request due 6/15/2016. Redacted Transcript Deadline set for 6/27/2016. Release of Transcript Restriction set for 8/23/2016.(jdlr) (Entered: 05/25/2016)

05/26/2016

1222

NOTICE by Bernalillo County Board of Commissioners re 1213 Order, Notice Of Exhibits To Stipulated Order Preliminarily Approving Settlement, Requiring Notice To Class And Subclass Members And Setting Fairness Hearing, Entered On March 22, 2016 (Doc. No. 1213) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Robles, Luis) (Entered: 05/26/2016)

06/06/2016 1223 BRIEF Brieﬁng Regarding Settlement Agreement by Bernalillo County Board of Commissioners (Robles, Luis) (Entered: 06/06/2016)

06/10/2016 1224 MEMORANDUM in Support of Settlement Agreement by Plaintiffs and Plaintiff-Interveners by Joseph W Anderson. (Simmons, Nancy) (Entered: 06/10/2016)

06/27/2016

1225

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker APPROVING NOTICE of Settlement Agreement [1222-1] r. (bap) Modiﬁed text on 6/28/2016 (bap). (Entered: 06/27/2016)

07/05/2016

1229

NOTICE of Hearing: Status Conference set for 7/19/2016 at 03:30 PM in Albuquerque - 421 Gold Sixth Floor before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 07/05/2016)

07/19/2016

1232

Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference on Plaintiff Intervenors' Motion for Order to Show Cause 1191 held on 7/19/2016. (Court Reporter John De La Rosa) (bap) (Entered: 07/25/2016)

07/20/2016 1230 STIPULATED ORDER Authorizing Ex Parte Communication between the Court's Experts and the Court by Senior District Judge James A. Parker. (bap) (Entered: 07/20/2016)

07/21/2016 1231 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Discovery Hearing held on 7/21/2016. (mlt) (Entered: 07/21/2016)

08/02/2016 1233 Amended MOTION to Amend/Correct 1191 MOTION for Order to Show Cause and for Further Remedial Relief by DJ. (Attachments: # 1 Exhibit) (Cubra, Peter) (Entered: 08/02/2016)

08/03/2016 1234 NOTICE by Jimmy McClendon re 1233 Amended MOTION to Amend/ Correct 1191 MOTION for Order to Show Cause and for Further Remedial Relief Joinder (Ives, Zachary) (Entered: 08/03/2016)

08/11/2016 1235 NOTICE by EM Unavailibility from 9/8/2016 - 9/25/2016 (Cubra, Peter) Modiﬁed text to add dates on 8/12/2016 (bap). (Entered: 08/11/2016)

08/16/2016

1236

***FILED IN ERROR*** RESPONSE to Motion re 1233 Amended MOTION to Amend/Correct 1191 MOTION for Order to Show Cause and for Further Remedial Relief ﬁled by Albuquerque, City of. (Moulton, Debra) Modiﬁed on 8/16/2016 (iam). (Entered: 08/16/2016)

08/16/2016

1237

RESPONSE to Motion re 1233 Amended MOTION to Amend/ Correct 1191 MOTION for Order to Show Cause and for Further Remedial Relief ﬁled by Albuquerque, City of. (Attachments: # 1 Exhibit A) (Moulton, Debra) (Entered: 08/16/2016)

08/31/2016

1238

STIPULATED NOTICE for Extension of Time to File Response/Reply as to 1233 Amended MOTION to Amend/Correct 1191 MOTION for Order to Show Cause and for Further Remedial Relief by EM. (Waterfall, Kelly) Modiﬁed title on 9/1/2016 (bap). (Entered: 08/31/2016)

09/07/2016

1239

REPLY to Response to Motion re 1233 Amended MOTION to Amend/ Correct 1191 MOTION for Order to Show Cause and for Further Remedial Relief ﬁled by EM. (Attachments: # 1 Exhibit) (Cubra, Peter) (Entered: 09/07/2016)

09/27/2016

1240

TRANSCRIPT of Proceedings held on 04/11/2002, before District Judge Martha Vazquez. Court Reporter/Transcriber Julianne LaBadia, Telephone number 302-255-0523. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 10/4/2016. Redaction Request due 10/18/2016. Redacted Transcript Deadline set for 10/28/2016. Release of Transcript Restriction set for 12/27/2016.(gr) (Entered: 09/27/2016)

09/28/2016

1241

NOTICE of Brieﬁng Complete by EM re 1233 Amended MOTION to Amend/Correct 1191 MOTION for Order to Show Cause and for Further Remedial Relief ﬁled by DJ (Waterfall, Kelly) (Entered: 09/28/2016)

10/26/2016 1242 CERTIFICATE OF SERVICE by Albuquerque, City of Defendant City of Albuquerque's Response to Request for Production (Moulton, Debra) (Entered: 10/26/2016)

11/08/2016 1243 NOTICE of Change of Address by Philip B. Davis (Davis, Philip) (Entered: 11/08/2016)

11/08/2016 1244 NOTICE of Change of Address by Nicholas T. Davis (Davis, Nicholas) (Entered: 11/08/2016)

11/09/2016 1245 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker re 1233 Amended MOTION for Order to Show Cause and for Further Remedial Relief (dmw) (Entered: 11/09/2016)

11/30/2016

1246 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Rule 16 Scheduling Conference for 12/21/2016 at 02:00 PM in Albuquerque Telephonic Hearing/Conference before Chief Magistrate Judge Karen B. Molzen. Counsel shall call my toll-free AT&T conference line at (888) 398-2342, enter access code 9912449, and press # to be joined to the proceedings. Joint Status Report and Provisional Discovery Plan due by 12/14/2016. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 11/30/2016)

11/30/2016

1247

Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support by Jimmy McClendon. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Cubra, Peter) (Entered: 11/30/2016)

12/09/2016

1248

ORDER by District Judge James A. Parker. Evidentiary Hearing set for 1/30/2017 at 10:00 AM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. Evidentiary Hearing set for 9/11/2017 at 10:00 AM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (dmw) (Entered: 12/09/2016)

12/12/2016

1249

CORRECTED ORDER by District Judge James A. Parker. Evidentiary Hearing set for 6/26/2017 at 01:30 PM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. Evidentiary Hearing set for 9/11/2017 at 10:00 AM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (dmw) Modiﬁed text on 12/13/2016 (bap). (Entered: 12/12/2016)

12/13/2016

1250 ORDER by Chief Magistrate Judge Karen B. Molzen resetting the Scheduling Conference set for 12/21/2016 at 02:00 PM in Albuquerque to an in-person conference. Counsel shall appear at Suite 730 before Chief Magistrate Judge Karen B. Molzen on the date and time noted above. At least one attorney of record for all parties, including the County, should plan to attend the conference. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 12/13/2016)

12/14/2016 1251 NOTICE by Bernalillo County Board of Commissioners Defendant Bernalillo County Board Of County Commissioners' Notice Of Extension (Robles, Luis) (Entered: 12/14/2016)

12/16/2016 1252 Joint Status Report and Provisional Discovery Plan by Albuquerque, City of (Moulton, Debra) Modiﬁed text on 12/19/2016 (dmw). (Entered: 12/16/2016)

12/21/2016 1253 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Scheduling Conference held on 12/21/2016. (mlt) Modiﬁed text to correct the hearing date on 12/27/2016 (bap). (Entered: 12/23/2016)

12/23/2016 1254 SCHEDULING ORDER by Chief Magistrate Judge Karen B. Molzen. (mlt) (Entered: 12/23/2016)

12/23/2016

1255

ORDER by Chief Magistrate Judge Karen B. Molzen setting a Telephonic Status Conference for 1/17/2017 at 03:00 PM in Albuquerque - Telephonic Hearing/Conference before Chief Magistrate Judge Karen B. Molzen. (mlt) (Entered: 12/23/2016)

01/04/2017

1256

RESPONSE to Motion re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Robles, Luis) (Entered: 01/04/2017)

01/04/2017 1257 CERTIFICATE OF SERVICE by Bernalillo County Board of Commissioners Documents 1247 and 1256 to Shane Youtz, Esq., Counsel For AFSCME Local 2499 (Robles, Luis) (Entered: 01/04/2017)

01/11/2017 1258 CERTIFICATE OF SERVICE by Albuquerque, City of Defendants First Set of Interrogatories and Request for Production to Plaitniff Interveners (Moulton, Debra) (Entered: 01/11/2017)

01/17/2017 1259 CERTIFICATE OF SERVICE by EM (Cubra, Peter) Modiﬁed text on 1/18/2017 (bap). (Entered: 01/17/2017)

01/17/2017

1260 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Conference held on 1/17/2017. Participants included Mark Baker for Plaintiffs, Peter Cubra and Kelly Waterfall for Plaintiff Intervenors, Debra Moulton for Defendant City, and Taylor Rahn and Ken Martinez for Defendant County. The parties informed the Court that they have scheduled a mediation with Judge Torgerson for February 8, 2017. The parties proposed a schedule for the exchange of offers for this mediation, which will be reduced to writing and submitted to the Court. The parties also discussed the status of discovery, which is progressing. The parties will focus their efforts on the mediation and are to update the Court as to the progress made via a writing after the mediation takes place. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 01/17/2017)

01/18/2017

1261

REPLY to Response to Motion re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support ﬁled by Amihon Baca. (Attachments: # 1 Exhibit, # 2 Exhibit) (Simmons, Nancy) (Entered: 01/18/2017)

01/18/2017

1262

NOTICE of Brieﬁng Complete by Amihon Baca re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support ﬁled by Jimmy McClendon (Simmons, Nancy) (Entered: 01/18/2017)

01/19/2017 1263 CERTIFICATE OF SERVICE by Bernalillo County Board of Commissioners Document 1261 to Shane Youtz, Esq. Counsel For AFSCME Local 2499 (Robles, Luis) (Entered: 01/19/2017)

01/24/2017 1264 STIPULATED ORDER SETTING DATES REGARDING A SETTLEMENT CONFERENCE AND REGARDING DISCOVERY by Chief Magistrate Judge Karen B. Molzen. (mlt) (Entered: 01/24/2017)

01/26/2017 1265 Joint MOTION Interim Order Regarding Access to the MDC re 754 Order by EM. (Cubra, Peter) (Entered: 01/26/2017)

02/03/2017 1266 MOTION to Intervene by AFSCME Local 2499. (Curtice, Stephen) (Entered: 02/03/2017)

02/09/2017

1267 ORDER by Chief Magistrate Judge Karen B. Molzen that pursuant to the agreement of the parties and in order to continue their mediation efforts, City defendants' responses to discovery requests will now be due on February 17, 2017 and Plaintiff-Intervenors responses will now be due to the City on March 7, 2017. THIS IS A TEXT ONLY ENTRY - NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 02/09/2017)

02/13/2017

1268

RESPONSE to Motion re 1265 Joint MOTION Interim Order Regarding Access to the MDC re 754 Order County Defendant's Response to Plaintiffs' and Plaintiff-Intervenors' Joint Moiton for Enforcement of Interim Order Regarding Access to The MDC ﬁled by Bernalillo County Board of Commissioners. (Robles, Luis) (Entered: 02/13/2017)

02/17/2017

1269 ORDER by Chief Magistrate Judge Karen B. Molzen that pursuant to the agreement of the parties and in order to continue their mediation efforts, City defendants' responses to discovery requests will now be due on February 27, 2017 and Plaintiff-Intervenors' responses will now be due to the City on March 17, 2017. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 02/17/2017)

02/24/2017 1270 REPLY to Response to Motion re 1265 Joint MOTION Interim Order Regarding Access to the MDC re 754 Order ﬁled by DJ, EM, Jimmy McClendon, NW, PS, RL, WA. (Baker, Mark) (Entered: 02/24/2017)

02/27/2017

1271 ORDER by Chief Magistrate Judge Karen B. Molzen that, pursuant to the agreement of the parties, and in order to facilitate their mediation efforts, the discovery deadlines are suspended. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 02/27/2017)

03/02/2017 1272 ORDER by Senior District Judge James A. Parker granting AFSCME Council 18, Local 2499's 1266 Motion to Intervene for limited purpose. (bap) (Entered: 03/02/2017)

03/15/2017

1273

NOTICE of Hearing on 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support : Motion Hearing set for 4/24/2017 at 01:30 PM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 03/15/2017)

03/17/2017 1274 NOTICE of Brieﬁng Complete by All Plaintiffs re 1265 Joint MOTION Interim Order Regarding Access to the MDC re 754 Order ﬁled by EM (Baker, Mark) (Entered: 03/17/2017)

03/20/2017 1275 MEMORANDUM OPINION AND ORDER granting 1265 Joint MOTION Interim Order Regarding Access to the MDC re 754 Order by District Judge James A. Parker. (vv) (Entered: 03/20/2017)

04/04/2017 1276 STIPULATED CONFIDENTIALITY ORDER by Senior District Judge James A. Parker. (bap) (Entered: 04/04/2017)

04/06/2017

1277

NOTICE of Brieﬁng Complete by Jimmy McClendon re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support ﬁled by Jimmy McClendon (Simmons, Nancy) (Entered: 04/06/2017)

04/14/2017

1278

RESPONSE in Opposition re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support ﬁled by AFSCME Local 2499. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B) (Curtice, Stephen) (Entered: 04/14/2017)

04/18/2017 1279 Unopposed MOTION for Extension of Time to File Response/Reply to Motion for Order to Show Cause by AFSCME Local 2499. (Curtice, Stephen) (Entered: 04/18/2017)

04/19/2017 1280 Unopposed MOTION to Vacate Hearing on Joint Motion for Order to Show Cause by Jimmy McClendon. (Simmons, Nancy) (Entered: 04/19/2017)

04/20/2017

1281

ORDER by Senior District Judge James A. Parker granting 1279 Motion for Extension of Time to File Response/Reply re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support ; granting 1280 Motion to Vacate hearing scheduled for 4/24/17 and reset for 6/13/17 at 10:00 AM (bap) (Entered: 04/20/2017)

04/20/2017

Set/Reset Deadlines as to 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support: Motion Hearing is rescheduled on 6/13/2017 at 10:00 AM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (dm) (Entered: 04/20/2017)

04/20/2017 1282 AMENDED ORDER by Senior District Judge James A. Parker. (bap) (Entered: 04/20/2017)

04/27/2017 1283 MOTION for Extension of Time to File Response/Reply Brief on Joint Motion for Order to Show Cause and for Further Remedial Relief by Jimmy McClendon. (Simmons, Nancy) (Entered: 04/27/2017)

04/28/2017

1284 ORDER by Chief Magistrate Judge Karen B. Molzen setting an inperson Status Conference for 5/3/2017 at 10:00 AM in Albuquerque 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. Counsel should be prepared to discuss discovery needs concerning Doc. 1247 (Joint Motion for Order to Show Cause). [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 04/28/2017)

04/28/2017 1285 STIPULATED CONFIDENTIALITY ORDER by Senior District Judge James A. Parker. (bap) (Entered: 05/01/2017)

05/01/2017

1286

ORDER by Senior District Judge James A. Parker granting 1283 Motion for Extension of Time to File Response/Reply re 1283 MOTION for Extension of Time to File Response/Reply Brief on Joint Motion for Order to Show Cause and for Further Remedial Relief due by 6/7/2017 (bap) (Entered: 05/02/2017)

05/03/2017

1287 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Conference to discuss discovery parameters held on 5/3/2017. Participants included Zach Ives on behalf of Plaintiffs, Peter Cubra and Nancy Simmons on behalf of Plaintiff Interveners, Taylor Rahn of behalf of the County and Shane Youtz on behalf of the Union. The parties discussed their discovery needs concerning the pending Joint Motion for Order to Show Cause (Doc. 1247) and the associated brieﬁng. Mr. Ives will circulate a proposed scheduling order which will be entered by the Court upon approval of all parties. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 05/03/2017)

05/04/2017 1288 ORDER ESTABLISHING CASE MANAGEMENT DEADLINES AND DISCOVERY PARAMETERS by Chief Magistrate Judge Karen B. Molzen. (mlt) (Entered: 05/04/2017)

05/09/2017

1289

CERTIFICATE OF SERVICE by Jimmy McClendon PlaintiffInterveners' First Set of Interrogatories and Requests for Production to Intervener AFSCME Council 18, Local 2499 (Simmons, Nancy) (Entered: 05/09/2017)

05/09/2017 1290 CERTIFICATE OF SERVICE by Jimmy McClendon PlaintiffInterveners' First Set of Interrogatories and Requests for Production to Bernalillo County (Simmons, Nancy) (Entered: 05/09/2017)

05/09/2017 1291 CERTIFICATE OF SERVICE by AFSCME Local 2499 of Deposition on Written questions to Dr. Jeffrey Metzner (Curtice, Stephen) (Entered: 05/09/2017)

05/09/2017 1292 CERTIFICATE OF SERVICE by AFSCME Local 2499 for Deposition on Written questions to Manuel Romero (Curtice, Stephen) (Entered: 05/09/2017)

05/09/2017 1293 MOTION to Appoint Counsel Plaintiff-Intervenors' [unopposed] [opposed]( Class Counsel ) by Jimmy McClendon. (Simmons, Nancy) (Entered: 05/09/2017)

05/12/2017 1294 OBJECTIONS BY PLAINTIFFS AND PLAINTIFF-INTERVENORS TO AFSCME'S DEPOSITIONS ON WRITTEN QUESTIONS TO MANUEL ROMERO by Jimmy McClendon (Ives, Zachary) (Entered: 05/12/2017)

05/24/2017 1295 MOTION to Withdraw as Attorney by Bernalillo County Board of Commissioners. (Baker, Jeffrey) (Entered: 05/24/2017)

05/30/2017

1296

ORDER by Senior District Judge James A. Parker granting 1295 Motion to Withdraw as Attorney for defendant Board of County Commissioners of Bernalillo County. Attorney Jeffrey L. Baker terminated. (bap) (Entered: 05/30/2017)

05/30/2017 1297 CERTIFICATE OF SERVICE by AFSCME Local 2499 for Answers to Plaintiffs' and Plaintiffs-Interveners' First Set of Interrogatories and Requests for Production (Curtice, Stephen) (Entered: 05/30/2017)

05/31/2017

1298

CERTIFICATE OF SERVICE by Bernalillo County Board of Commissioners, Bernalillo County Detention Center, Bernalillo, County of Responses to Plaintiffs and Plaintiff-Interveners' First Set of Requests for Production (Robles, Luis) (Entered: 05/31/2017)

06/01/2017

1299

Unopposed MOTION for Extension of Time to File Response/ Reply Brief on AFSCME Response to Joint Motion for Order to Show Cause and For Further Remedial Relief by Jimmy McClendon. (Simmons, Nancy) (Entered: 06/01/2017)

06/05/2017

1300

ORDER by Senior District Judge James A. Parker granting PlaintiffInterveners' 1293 Unopposed Motion to Appoint Counsel, Ryan J Villa for Plaintiff-Interveners subclass DJ, EM, NW, PS, RL and WA. (bap) (Entered: 06/05/2017)

06/05/2017 1301 STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER by Senior District Judge James A. Parker. (bap) (Entered: 06/05/2017)

06/05/2017

1302

ORDER by Senior District Judge James A. Parker granting PlaintiffInterveners' 1299 Motion for Extension of Time to File Response/Reply until 6/9/2017 re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support (bap) (Entered: 06/05/2017)

06/07/2017 1303 CERTIFICATE OF SERVICE by DJ, EM, NW, PS, RL, WA of subpoena to appear and testify (Villa, Ryan) Modiﬁed text on 6/8/2017 (bap). (Entered: 06/07/2017)

06/09/2017 1304 CERTIFICATE OF SERVICE by DJ, EM, NW, PS, RL, WA (Villa, Ryan) (Entered: 06/09/2017)

06/09/2017

1305

REPLY to Response to Motion re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support (Plaintiffs' and Plaintiff-Interveners' Joint Reply to Doc. 1278 Union's Response to Joint Motion for Order to Show Cause and For Further Remedial Relief Pursuant to Court Order, Etc., ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Simmons, Nancy) Modiﬁed text on 6/12/2017 (bap). (Entered: 06/09/2017)

06/13/2017

1306

Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 6/13/2017 re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support ﬁled by Jimmy McClendon. (Court Reporter John De La Rosa) (Attachments: # 1 Exhibit and Witness List) (bap) (Entered: 06/14/2017)

06/14/2017 1307 Unopposed MOTION to Withdraw as Attorney by Albuquerque, City of. (Baker, Jeffrey) (Entered: 06/14/2017)

06/15/2017

1308

ORDER by Senior District Judge James A. Parker granting 1307 Motion to Withdraw as Attorney. Attorney Jeffrey L. Baker terminated for defendants, City of Albuquerque, Martin Chavez, County of Bernalillo and Michael Sisneros (bap) (Entered: 06/15/2017)

06/22/2017 1309 NOTICE of Appearance by Jonathan Jacob Guss on behalf of All Plaintiffs (Guss, Jonathan) (Entered: 06/22/2017)

07/06/2017 1310 NOTICE of Change of Address by Kelly K Waterfall (Waterfall, Kelly) (Entered: 07/06/2017)

07/06/2017

1311

TRANSCRIPT of MOTION HEARING held on 06/13/2017, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348-2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Ofﬁce 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 TAKE NOTICE that each party now has seven (7) calendar days to ﬁle a Notice of Intent to Request Redaction of any personal identiﬁers from this transcript. If no notice is ﬁled during this seven-day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Notice of Intent to Request Redaction set for 7/13/2017. Redaction Request due 7/27/2017. Redacted Transcript Deadline set for 8/7/2017. Release of Transcript Restriction set for 10/4/2017.(jdlr) (Entered: 07/06/2017)

07/10/2017

1312

STIPULATED ORDER by Senior District Judge James A. Parker Preliminarily Approving Settlement, Requiring Notice to Class and Subclass Members, and Setting Fairness Hearing for 9/11/2017 at 01:30 PM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker; Clerk shall ﬁle all written objections to the proposed settlement that are postmarked on or before 8/30/2017. (bap) (Entered: 07/11/2017)

07/13/2017 1313 MOTION for Extension of Time to File Post Hearing Brief (Stipulated) by Jimmy McClendon. (Simmons, Nancy) (Entered: 07/13/2017)

07/17/2017 1314 ORDER by Senior District Judge James A. Parker granting 1313 Stipulated Motion for Extension of Time until 7/19/17 to File Post Hearing Brief (bap) (Entered: 07/17/2017)

07/18/2017

1315

RESPONSE to Motion re 1247 Joint MOTION for Order to Show Cause and for Further Remedial Relief pursuant to Court Order, Doc. Nos. 256 and 1222-3 and Memorandum in Support Defendant Bernalillo County Board Of Commissioners' Closing Argument In Response To Plaintiffs' And Plaintiff-Intervenors' Joint Motion For Order To Show Cause And For Further Remedial Relief Pursuant To Court Order Doc. Nos. 256 and 1222-3 ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A) (Robles, Luis) (Entered: 07/18/2017)

07/19/2017 1316 BRIEF (Plaintiffs' and Plaintiff-Interveners' Post Hearing Brief by Jimmy McClendon (Attachments: # 1 Exhibit A) (Simmons, Nancy) (Entered: 07/19/2017)

07/19/2017 1317 BRIEF Post-Hearing by AFSCME Local 2499 (Curtice, Stephen) (Entered: 07/19/2017)

07/26/2017 1318 OBJECTIONS re 1312 Order of proposed settlement by Troy Shaw (bap) (Entered: 07/26/2017)

09/05/2017 1319 NOTICE by Jimmy McClendon re 1312 Order,, Set Deadlines/ Hearings, of Objections Received (Ives, Zachary) (Entered: 09/05/2017)

09/11/2017 1320 ORDER Approving Settlement Agreement Between the City Defendants, the Plaintiff Class, and the Plaintiff Intervenor Sub Class by Senior District Judge James A. Parker. (bap) (Entered: 09/11/2017)

09/11/2017

1321

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker denying 1247 Joint Motion for Order to Show Cause and for Further Remedial Relief Pursuant to Court Order (bap) (Entered: 09/11/2017)

09/11/2017

1322

Clerk's Minutes for proceedings held before District Judge James A. Parker: Fairness Hearing held on 9/11/2017 re Settlement between Plaintiffs, Plaintiff-Intervenors and the City of Albuquerque 1312 . (Court Reporter John DeLaRosa) (bap) (Entered: 09/12/2017)

10/02/2017

1323

MOTION to Clarify Defendant Bernalillo County Board of Commissioners' Motion for Clariﬁcation on Memorandum Opinion and Order on Plaintiffs' and Plaintiff-Intervenors' Joint Motion for Order to Show Cause and for Further Remedial Relief Pursuant to Court Order Doc. Nos. 256 and 1222-3 by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Robles, Luis) (Entered: 10/02/2017)

10/16/2017

1324

RESPONSE to Motion re 1323 MOTION to Clarify Defendant Bernalillo County Board of Commissioners' Motion for Clariﬁcation on Memorandum Opinion and Order on Plaintiffs' and Plaintiff-Intervenors' Joint Motion for Order to Show Cause and for Further Remedial Re (Plaintiffs' and Plaintiff-Interveners') ﬁled by Jimmy McClendon. (Simmons, Nancy) (Entered: 10/16/2017)

10/25/2017

1325

NOTICE of Hearing on 1323 Defendant Bernalillo County Board of Commissioners' Motion for Clariﬁcation on Memorandum Opinion and Order on Plaintiffs' and Plaintiff-Intervenors' Joint Motion for Order to Show Cause and for Further Remedial Relief: Motion Hearing set for 11/13/2017 at 10:00 AM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (dm)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 10/25/2017)

10/25/2017 1326 MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker approving Settlement Agreement re 1320 Order. (bap) (Entered: 10/26/2017)

10/30/2017

1327

REPLY to Response to Motion re 1323 MOTION to Clarify Defendant Bernalillo County Board of Commissioners' Motion for Clariﬁcation on Memorandum Opinion and Order on Plaintiffs' and Plaintiff-Intervenors' Joint Motion for Order to Show Cause and for Further Remedial Re Defendant Bernalillo County Board of Commissioners' Reply in Support of Moitn for Clariﬁcation on Memorandum Opinion and Order on Plaitniffs' and Plaitniff-Intervenors' Joint Motion for Order to Show Cause and For Further Remedial Relief Pursuant to Court Order Doc. Nos 256 and 1222-3 ﬁled by Bernalillo County Board of Commissioners. (Robles, Luis) (Entered: 10/30/2017)

10/30/2017

1328

NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 1323 MOTION to Clarify Defendant Bernalillo County Board of Commissioners' Motion for Clariﬁcation on Memorandum Opinion and Order on Plaintiffs' and Plaintiff-Intervenors' Joint Motion for Order to Show Cause and for Further Remedial Re ﬁled by Bernalillo County Board of Commissioners (Robles, Luis) (Entered: 10/30/2017)

11/13/2017 1329 Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 11/13/2017 re 1323 MOTION to Clarify (Court Reporter John De La Rosa) (vv) (Entered: 11/27/2017)

12/06/2017 1330 Mail Returned as Undeliverable "Not in Custody" re 1329 Motion Hearing. Mail sent to Troy Shaw (bap) (Entered: 12/06/2017)

01/18/2018 1331 ORDER by Senior District Judge James A. Parker granting 1323 Motion to Clarify Memorandum Opinion and Order 1321 (bap) (Entered: 01/18/2018)

01/19/2018 1332 AMENDED ORDER by Senior District Judge James A. Parker granting Motion to Clarify. (bap) (Entered: 01/19/2018)

01/29/2018

1333

***FILED IN ERROR*** Joint MOTION to Extend (other) for Extensions of Settlement Agreement Deadlines by Albuquerque, City of. (Moulton, Debra) Modiﬁed text on 1/29/2018, attorney will reﬁle (kg). (Entered: 01/29/2018)

01/29/2018 1334 Joint MOTION to Extend (other) of Settlement Agreement Deadlines by Albuquerque, City of. (Moulton, Debra) (Entered: 01/29/2018)

02/05/2018 1335 STIPULATED ORDER Following Mediation by Senior District Judge James A. Parker. (bap) (Entered: 02/05/2018)

02/05/2018 1336 STIPULATED ORDER Appointing Margo Fraisier as Court's Jail Operations Expert by Senior District Judge James A. Parker. (bap) (Entered: 02/05/2018)

02/05/2018 1337 Mail Returned as Undeliverable "Not in Custody" re 1332 Order. Mail sent to Tony Shaw (bap) (Entered: 02/05/2018)

02/05/2018 1338 STIPULATED ORDER by Senior District Judge James A. Parker granting 1334 Joint Motion for Extensions of Settlement Agreement Deadlines (bap) (Entered: 02/05/2018)

02/15/2018

1339

Mail Returned as Undeliverable "Not in Custody" re 1336 Order, 1338 Order on Motion to Extend (other). Mail sent to Troy Shaw at the Metropolitan Detention Center (bap) (Entered: 02/15/2018)

02/15/2018 1340 Mail Returned as Undeliverable re 1335 Order. Mail sent to Troy Shaw at the Metropolitan Detention Center (bap) (Entered: 02/15/2018)

04/25/2018 1341 CERTIFICATE OF SERVICE by Jimmy McClendon Notice of Deposition Duces Tecum (Dr. Ronald Shansky and Dr. Kenneth Ray) (Simmons, Nancy) (Entered: 04/25/2018)

04/30/2018 1342 NOTICE of Change of Address by Zachary A Ives (Ives, Zachary) (Entered: 04/30/2018)

05/10/2018

1343

MOTION for Protective Order Defendant Bernalillo County Board of Commissioners' Motion for Protective Order Regarding the Depositions of Dr. Kenneth Ray and Ronald Shansky by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P) (Robles, Luis) (Entered: 05/10/2018)

05/22/2018

1344

NOTICE of Stipulated Extension of Time to File Response/Reply as to 1343 MOTION for Protective Order Defendant Bernalillo County Board of Commissioners' Motion for Protective Order Regarding the Depositions of Dr. Kenneth Ray and Ronald Shansky by Jimmy McClendon. (Simmons, Nancy) Modiﬁed title on 5/23/2018 (bap). (Entered: 05/22/2018)

06/14/2018 1345 Unopposed MOTION for Leave to File Excess Pages (Response to Defendants' Motion for Protective Order (doc 1343). by Jimmy McClendon. (Simmons, Nancy) (Entered: 06/14/2018)

06/18/2018

1346

ORDER by Senior District Judge James A. Parker granting 1345 Unopposed Motion for Leave to File Excess Pages for Response to Defendants' Motion for Protective Order 1343 (bap) (Entered: 06/18/2018)

06/18/2018

1347

RESPONSE to Motion re 1343 MOTION for Protective Order Defendant Bernalillo County Board of Commissioners' Motion for Protective Order Regarding the Depositions of Dr. Kenneth Ray and Ronald Shansky (Plaintiff and Plaintiff-Interveners') ﬁled by Jimmy McClendon. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 4A, # 6 Exhibit 5, # 7 Exhibit 5A, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 7A, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13) (Simmons, Nancy) (Entered: 06/18/2018)

06/21/2018

1348

NOTICE by Bernalillo County Board of Commissioners of Extension for Reply to Response to Motion for Protective Order regarding depositions (Robles, Luis) Modiﬁed text on 6/22/2018 (bap). (Entered: 06/21/2018)

06/28/2018 1349 Mail Returned as Undeliverable "Not in Custody" re 1346 Order on Motion for Leave to File Excess Pages. Mail sent to Troy Shaw (bap) (Entered: 06/29/2018)

07/13/2018

1350

REPLY to Response to Motion re 1343 MOTION for Protective Order Defendant Bernalillo County Board of Commissioners' Motion for Protective Order Regarding the Depositions of Dr. Kenneth Ray and Ronald Shansky ﬁled by Bernalillo County Board of Commissioners. (Robles, Luis) (Entered: 07/13/2018)

07/13/2018

1351

NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 1343 MOTION for Protective Order Defendant Bernalillo County Board of Commissioners' Motion for Protective Order Regarding the Depositions of Dr. Kenneth Ray and Ronald Shansky ﬁled by Bernalillo County Board of Commissioners (Robles, Luis) (Entered: 07/13/2018)

08/17/2018

1352

NOTICE of Hearing on Motion 1343 MOTION for Protective Order Defendant Bernalillo County Board of Commissioners' Motion for Protective Order Regarding the Depositions of Dr. Kenneth Ray and Ronald Shansky : Motion Hearing set for 10/9/2018 at 01:30 PM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (snn)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 08/17/2018)

08/27/2018 1353 Mail Returned as Undeliverable re 1352 Notice of Hearing on Motion. Mail sent to Troy Shaw (bap) (Entered: 08/27/2018)

09/14/2018 1354 STIPULATED CONFIDENTIALITY ORDER by Magistrate Judge Karen B. Molzen regarding employee discipline. (Attachments: # 1 Exhibit Agreement Form) (KBM) (Entered: 09/14/2018)

09/19/2018

1355

MOTION to Intervene for Purposes of Amending and Determining the Scope of Conﬁdentiality Orders by Shawna Tanner. (Attachments: # 1 Exhibit 1: Proposed Complaint in Intervention, # 2 Exhibit 2: Ltr to Counsel, # 3 Exhibit 3: Excerpt from Med Serv Agmt) (Leonard, Arne) (Entered: 09/19/2018)

09/19/2018 1356 NOTICE of Appearance by Arne Leonard on behalf of Shawna Tanner (Leonard, Arne) (Entered: 09/19/2018)

09/24/2018 1357 Mail Returned as Undeliverable re 1354 Protective Order. Mail sent to Troy Shaw (meq) (Entered: 09/26/2018)

10/03/2018

1358

RESPONSE in Opposition re 1355 MOTION to Intervene for Purposes of Amending and Determining the Scope of Conﬁdentiality Orders ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A) (Robles, Luis) (Entered: 10/03/2018)

10/04/2018

1359

RESPONSE in Opposition re 1355 MOTION to Intervene for Purposes of Amending and Determining the Scope of Conﬁdentiality Orders Amended Response ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A) (Robles, Luis) (Entered: 10/04/2018)

10/17/2018 1360 REPLY to Response to Motion re 1355 MOTION to Intervene for Purposes of Amending and Determining the Scope of Conﬁdentiality Orders ﬁled by Shawna Tanner. (Leonard, Arne) (Entered: 10/17/2018)

10/17/2018

1361

NOTICE of Brieﬁng Complete by Shawna Tanner re 1355 MOTION to Intervene for Purposes of Amending and Determining the Scope of Conﬁdentiality Orders ﬁled by Shawna Tanner (Leonard, Arne) (Entered: 10/17/2018)

10/29/2018

1362

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting and denying in part 1343 Defendant Bernalillo County Board of Commissioners' Motion for Protective Order Regarding the Depositions of Dr. Kenneth Ray and Ronald Shansky. (bap) (Entered: 10/29/2018)

11/13/2018 1363 Mail Returned as Undeliverable "Not in Custody" re 1362 Memorandum Opinion and Order,. Mail sent to Troy Shaw (bap) (Entered: 11/14/2018)

12/03/2018 1364 Unopposed MOTION to Substitute Attorney by Joseph W Anderson. (Ives, Zachary) (Entered: 12/03/2018)

12/04/2018

1365

ORDER by Senior District Judge James A. Parker granting 1364 Unopposed Motion to Substitute Attorney for the Plaintiff Class. Attorney Jonathan Jacob Guss terminated and Alexandra Freedman Smith is added. (bap) (Entered: 12/06/2018)

12/06/2018 1366 NOTICE of Appearance by Alexandra Freedman Smith on behalf of All Plaintiffs (Smith, Alexandra) (Entered: 12/06/2018)

12/17/2018 1367 Mail Returned as Undeliverable re 1365 Order on Motion to Substitute Attorney. Mail sent to Troy Shaw (meq) (Entered: 12/17/2018)

02/05/2019 1368 STIPULATED CONFIDENTIALITY ORDER REGARDING USE OF PROTECTED HEALTH INFORMATION by Magistrate Judge Karen B. Molzen. (KBM) (Entered: 02/05/2019)

02/05/2019 1369 Unopposed MOTION to Withdraw as Attorney by Joseph W Anderson. (Ives, Zachary) (Entered: 02/05/2019)

02/07/2019 1370 ORDER by Magistrate Judge Karen B. Molzen granting 1369 Motion to Withdraw as Attorney. Attorney Zachary A Ives terminated (KBM) (Entered: 02/07/2019)

02/15/2019 1371 Mail Returned as Undeliverable "Not in Custody" re 1370 Order on Motion to Withdraw as Attorney. Mail sent to Troy Shaw (bap) (Entered: 02/15/2019)

02/25/2019 1372 NOTICE of Appearance by Lindsay Fay Van Meter on behalf of Albuquerque, City of (Van Meter, Lindsay) (Entered: 02/25/2019)

04/05/2019 1373 Unopposed MOTION to Withdraw as Attorney for Plaintiff Class and Substitution of Counsel by Jimmy McClendon. (Smith, Alexandra) (Entered: 04/05/2019)

04/09/2019

1374

ORDER by District Judge James A. Parker granting 1373 Motion to Withdraw as Attorney. Added attorneys Kate S Thompson and Marc Lowry for plaintiffs class. Attorney Mark T Baker terminated (bap) (Entered: 04/09/2019)

04/11/2019 1375 NOTICE of Appearance by Marc M Lowry on behalf of All Plaintiffs (Lowry, Marc) (Entered: 04/11/2019)

04/11/2019 1376 NOTICE of Appearance by Kate S Thompson on behalf of All Plaintiffs (Thompson, Kate) (Entered: 04/11/2019)

04/15/2019 1377 Mail Returned as Undeliverable re 1374 Order on Motion to Withdraw as Attorney. Mail sent to Troy Shaw (bap) (Entered: 04/15/2019)

04/17/2019 1378 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 1355 Motion to Intervene, by Shawna Tanner (Leonard, Arne) (Entered: 04/17/2019)

07/10/2019 1379 NOTICE of Status Conference set for 10/29/2019 at 10:00 AM in Albuquerque - 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (bap) (Entered: 07/10/2019)

10/29/2019 1380 Clerk's Minutes for proceedings held before Senior District Judge James A. Parker: Status Conference held on 10/29/2019. (Court Reporter Mary Loughran) (bap) (Entered: 10/30/2019)

11/05/2019

1381

MOTION For Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #5 by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit Report No. 11, # 2 Exhibit Domain #5 revised self-monitoring plan, # 3 Exhibit 2019.09_MDCmonthlyReport, # 4 Exhibit MDC_July_monthlyReport) (Rahn, Taylor) (Entered: 11/05/2019)

11/12/2019 1382 Mail Returned as Undeliverable re 1380 Status Conference. Mail sent to Troy Shaw. (cmm) (Entered: 11/12/2019)

11/18/2019 1383 Mail Returned as Undeliverable re 1382 Mail Returned. Mail sent to Troy Shaw. (cmm) (Entered: 11/18/2019)

11/19/2019

1384

RESPONSE to Motion re 1381 MOTION For Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #5 Joint Response ﬁled by EM. (Attachments: # 1 Exhibit) (Waterfall, Kelly) (Entered: 11/19/2019)

12/03/2019

1385

REPLY to Response to Motion re 1381 MOTION For Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #5 ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A) (Rahn, Taylor) (Entered: 12/03/2019)

12/03/2019

1386

NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 1381 MOTION For Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #5 ﬁled by Bernalillo County Board of Commissioners (Rahn, Taylor) (Entered: 12/03/2019)

12/11/2019

1387

ORDER by Senior District Judge James A. Parker granting 1381 Motion for Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #5 through August 31, 2020 (bap) (Entered: 12/12/2019)

12/23/2019

1388

MOTION Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #6 by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rahn, Taylor) (Entered: 12/23/2019)

01/03/2020 1389 RESPONSE to Motion re 1388 MOTION Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #6 ﬁled by EM. (Waterfall, Kelly) (Entered: 01/03/2020)

01/06/2020

1390

REPLY to Response to Motion re 1388 MOTION Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #6 ﬁled by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rahn, Taylor) (Entered: 01/06/2020)

01/06/2020

1391

NOTICE of Brieﬁng Complete by Bernalillo County Board of Commissioners re 1388 MOTION Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #6 ﬁled by Bernalillo County Board of Commissioners (Rahn, Taylor) (Entered: 01/06/2020)

01/22/2020

1392

NOTICE of Hearing before District Judge James A Parker: Status Conference set for 4/14/2020 at 09:00 AM in Albuquerque - 421 Gold, 6th Floor Courtroom. (snn)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 01/22/2020)

01/28/2020 1393 NOTICE of Appearance by Taylor Sauer Rahn on behalf of Bernalillo County Board of Commissioners (Rahn, Taylor) (Entered: 01/28/2020)

02/03/2020 1394 Mail Returned as Undeliverable re 1392 Notice of Hearing,. Mail sent to Troy Shaw. (cmm) (Entered: 02/03/2020)

02/12/2020 1395 ORDER by Senior District Judge James A. Parker granting 1388 Motion for Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain#6 (bap) (Entered: 02/12/2020)

02/14/2020

1396

Unopposed MOTION FOR FINDING OF INITIAL COMPLIANCE AND TO SET SELF-MONITORING PERIOD REGARDING DOMAIN #3 by Bernalillo County Board of Commissioners. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rahn, Taylor) (Entered: 02/14/2020)

02/19/2020

1397

ORDER by Senior District Judge James A. Parker granting 1396 Unopposed Motion for Finding of Initial Substantial Compliance and to Set Self-Monitoring Period Regarding Domain #3 by Defendant Bernalillo County (bap) (Entered: 02/19/2020)

02/20/2020 1398 Letter by Lyon Ross to Special Master Alan Torgerson (Attachments: # 1 Envelope) (bap) (Entered: 02/25/2020)

03/12/2020 1399 Mail Returned as Undeliverable "Not in Custody" re 1398 Letter. Mail sent to Troy Shaw (bap) (Entered: 03/12/2020)

04/08/2020

1400

NOTICE: For status conference scheduled on Tuesday, April 14, 2020 at 9:00 a.m., counsel will appear electronically by calling Judge Parker's AT&T conference line, 888-363-4734, and using access code 4668596. (snn)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 04/08/2020)

04/14/2020 1402 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 4/14/2020. (Court Reporter Paul Baca) (bap) (Entered: 04/22/2020)

04/27/2020 1403 Mail Returned as Undeliverable re 1402 Status Conference. Mail sent to Troy Shaw (bap) (Entered: 04/27/2020)

 
 79 F.3d 1014 (1996)
Jimmy McCLENDON a/k/a Billy McClendon; Harold Lund; Peter Sumatkak; David Michael Bauer; Carl Ray Lopez; Bruce David Morawe; Thomas Young; Ruthie Duran; Deborah Lavera; Janelle Roybal; Dannette Difiori; Maria Sisneros; Larry Green; Bartel Haley; Michael Cote; Joe Ray Herrera; Josie Kriena; Debbie Lucero; David Shawkin; Marc A.
Gillette; George Chavez; Eliseo Baca; Clint Barras; Francisco Melendez; Samual Herrod; Vincent Padilla; Carl Duckworth; Joseph W. Anderson; Paul Johnson; Fred Mall; Hector Lopez; Ricky Rose; Herbert King, Sr.; James Parks; Michael A. Johnson; Johnny Vallejos; 1015 Joe Newberry; Darryl Craft; Albert Willy; William P. Jimmy; *1015 Augustine Tapia; Richard
A. Smith; Robert Lovato; Roy Whatley; Marty Begay; Martin Valdivia; Tallie Thomas; Augustine Jackson; Donald Hall; Carl Sur; Steve Esquibel; Lonnie Whatley; James Saiz;
Bryon Zamora; Allen M. Sawyer; Patrick Benny Romero; Richard C. Kopecky; Phillip Shumate; Nelson Romero; Steve Johnson; Bennie F. Garcia; Louie Chavez; Brian Salazar;
Richard Gallegos; Larry Stroud; James Burks; Brad Fischer; Amihon Baca; Jeff Dillow; Pete McQueen; Manuel Martinez; Arnold Anthony Maestas; John Hewatt; and All Others
Similarly Situated, Plaintiffs-Appellees and Real Parties in Interest, and
EM, RL, WA, DJ, PS and NW, on behalf of themselves and all others similarly situated, Plaintiffs-Intervenors and Real Parties in Interest, and Lawrence A. Johnson, Intervenor, v.
CITY OF ALBUQUERQUE; Martin Chavez, Mayor of Albuquerque; County Of Bernalillo; Patrick Baca, Bernalillo County Commissioner; Albert Valdez, Bernalillo County
Commissioner; Eugene Gilbert, Bernalillo County Commissioner; Barbara Seward, Bernalillo County Commissioner; Jacquelyn Schaefer, Bernalillo County Commissioner; Bill Dantis, Director, Bernalillo County Detention Center, and Bernalillo County Detention Center; Paul Sanchez; Frank Lovato; Ercell Griffin, Deputy Director, BCDC; Michael Smith,
Lieutenant; John Van Sickler, Lieutenant; Will Bell, Officer; Albert Chavez, Lieutenant; Richard Fusco, Lieutenant; George Fuentes; David Baca, Lieutenant; Victor Hernandez;
Kevin D. Sevir; Jim Mason, Dr.; Barbara Cole; Maria Lucero; David Royston; Felimon Martinez, Captain; Stanley Lents; Douglas Robinson; Seal Barley; Lynn King; Dave Sherman; Brian Maser; John Does, Employees of Bernalillo County Detention Center,
Defendants-Appellants, and Petitioners, v.
The UNITED STATES DISTRICT COURT for the DISTRICT OF NEW MEXICO, Respondent.
Nos. 96-2056, 96-2057.
United States Court of Appeals, Tenth Circuit.
April 2, 1996.
10167 *1016 *1017 Jeffrey Baker, The Baker Law Firm, Albuquerque, New Mexico, for Defendants-Appellants and Petitioners.
Anthony Ayala, Albuquerque, New Mexico, for Plaintiffs-Appellees and Real Parties In Interest.

Peter Cubra, Albuquerque, New Mexico, for Plaintiffs-Intervenors-Appellees and Real Parties in Interest.
Before PAUL KELLY, Jr., Circuit Judge, In Chambers.
Defendants-Appellants and Petitioners seek an emergency stay pending appeal of the district court's order limiting their authority to independently select places of confinement for inmates. Covering all bases, they also seek a writ of prohibition against the district court enjoining the court from enforcing the condition. I find that the application for the stay is well taken and should be granted; although I have jurisdiction to consider the petition for an extraordinary writ, I will exercise my discretion to refer it to a panel of this court.

Background

Defendants-Appellants and Petitioners are local governmental entities, elected officials and public employees in the State of New Mexico who operate and work at the Bernalillo County Detention Center (BCDC) located in Albuquerque, New Mexico. Plaintiffs-Appellees and Real Parties In Interest are a class of inmates who have been or will be confined at BCDC. See D. Ct. Order filed August 23, 1995 at 1 n.1 (doc. 106); Aplts. /Pet. Emergency Request filed March 26, 1996, ex. 1; Complaint filed January 10, 1995 (doc.1). Plaintiffs-IntervenorsAppellees and Real Parties In Interest are a class of inmates with mental or developmental disabilities who have been or will be confined at BCDC.

Plaintiffs allege various constitutional violations regarding their conditions of confinement. On August 23, 1995, the district court granted a preliminary injunction to reduce the population of the BCDC based upon an unannounced visit by the district judge to the facility, which was followed by a one-day evidentiary hearing. D. Ct. Order filed August 23, 1995 at 2 (doc. 106). The district court ordered BCDC to reduce its inmate population according to a schedule of progressively decreasing population caps and imposed detailed conditions concerning day-to-day operations. Id. at 12-18. To achieve the population caps, the order required the City and County Defendants to implement a "Matrix Release System" (MRS) whereby inmates would be assigned a numerical score based on several factors, including any pending charges and prior convictions. Inmate counts were required at 4:00 a.m. each day and, based upon the numerical scores under the MRS, the Director of the facility was "authorized and directed to make the necessary releases from BCDC as required to enforce the population limits." Id. at 13. The district court's order was converted into a permanent injunction based upon a partial settlement agreement between the Plaintiffs and Defendants which reserved certain individual claims. Settlement Agreement and Order filed September 7, 1995 (docs. 115 & 116). Under the terms of the settlement agreement, the district court retained jurisdiction to enforce and modify the permanent injunction. Settlement Agreement filed September 7, 1995, ¶ 1.B (doc. 115).

Both the preliminary injunction and settlement pleadings make it clear that the district court has not determined whether the operation of BCDC violates federal law. The district court reserved any ruling on whether a constitutional violation occurred:

1018

*1018 Defendants, by stipulating to the facts concerning overpopulation and by proposing administrative solutions, have not thereby waived, either directly or constructively, their rights to trial or proof of the alleged constitutional violations. The Court notes Defendants' position that over-population alone does not constitute a violation of the residents' constitutional rights, and that "overcrowding," if defined as simply population in excess of BCDC's design capacity has not resulted in any such violation. The Court leaves that issue for future resolution.

D. Ct. Order filed August 23, 1995 at 2 n.2 (doc. 106). The settlement agreement acknowledged "the fact that there is no finding of any constitutional violations." Settlement Agreement filed September 7, 1995 at 2, ¶ 7 (doc. 115).

Although the MRS was utilized twice, Defendant City of Albuquerque then sought to avoid exceeding the population caps by housing inmates in other facilities. The alternative housing is to be temporary because additional capacity in the form of a new detention facility on the Westside of Albuquerque is scheduled to be operational on May 24, 1996, about sixty days hence. In the interim, Defendants advised the district court of

plans to recommission Montessa Park (once the site of a detention facility) to house inmates temporarily. Plaintiffs and Plaintiffs-Intervenors objected. The district court then directed Defendants to advise opposing counsel of any plans to house inmates temporarily and allow opposing counsel to visit the proposed facilities. Clerk's Minutes of November 17, 1995 (doc. 144). Plaintiffs then sought a preliminary injunction enjoining the operation of the Montessa Park facility. Motion for a Preliminary Injunction filed November 20, 1995 (doc. 145). Defendants represent that the district judge visited the facility and approved it for temporarily housing inmates, although no ruling appears of record, nor does the district court docket sheet reflect a written disposition of the preliminary injunction request.
On Friday, March 22, 1996, the district court held a hearing in response to Defendant City of Albuquerque's notification that the population caps had not been met as of March 17. The district court held that certain defendants were in violation of the court's order by exceeding the population cap and by failing to release BCDC inmates in accordance with the MRS. Tr. at 82-83, attached as ex. 2 to Emergency Motion (No. 96-2056). The district judge, however, considered options to the MRS, including tents, the basement of a courthouse and Montessa Park, Tr. at 86, and then imposed the condition which is the subject of this appeal and the writ of prohibition:
Any proposed sites will be made available to opposing counsel so that they may have an opportunity to tour the facility,....
If there is a dispute as far as availability of any of these sites, counsel knows by now that all it takes is a phone call to get me there, and I am happy to tour any other facilities that may be used as an interim measure.
Tr. at 86. The district judge set the matter for further hearing on Monday, March 25, 1995, to check on the progress of the alternatives. Tr. at 87.
On March 25, Plaintiffs and Plaintiffs-Intervenors moved the district court to issue an order to show cause and hold Defendants in civil contempt. Though it does not appear of record, Plaintiffs represent that "on Sunday, March 24, 1996, the Court entered an Order restraining the Defendants from using the Montessa Park Warehouse to house inmates." Motion and Affidavit for Order to Show Cause and Other Relief filed March 25, 1996 at 1 (doc. 179). See also Aplts./Pet. Emergency Request filed March 26, 1996, ex. 3 (Tr. at 71) (district judge refers to "telephone hearing that we held on Sunday at approximately 1:00 p.m."). According to Plaintiffs, "[d]espite the directive of this Court, 103 inmates were housed over night at the Montessa Park Warehouse." Motion and Affidavit at 1 (doc. 179). In a hearing on March 25, the district court found that the Defendants had violated its order by exceeding the population cap, by housing inmates in locations which had not been previously 1019 approved by the district court after inspection by Plaintiffs' counsel, and by failing to implement *1019 the MRS. Aplts./Pet. Emergency Request, ex. 3 (Tr. 70). The district court ordered that the inmates housed at the Montessa Park facility be returned to BCDC and the MRS utilized. Id. at 71; Clerk's Minutes dated March 25, 1996 (doc. 180). The district court ordered Defendants to respond to the contempt motions by Wednesday, March 27 at noon.
On Tuesday afternoon, March 26, this emergency matter came before me as a single circuit judge. Defendants represented that on Monday night, after the district court hearing, inmates had been transported from temporary locations in Bernalillo County to other penal facilities around the state, including the state penitentiary in Santa Fe. The reason is obvious: if the inmates were returned to BCDC, the population cap would be exceeded and the MRS would require the release of 163 inmates. It does not appear that the temporary facilities utilized on Monday night were approved by the district judge after inspection by Plaintiffs' counsel.
Upon receipt of the Defendants' pleadings, I heard oral argument from the parties. The issue as framed by the Defendants is straightforward:
Does a District Judge, in the absence of any finding of any constitutional violations, have the authority to prohibit a local governmental entity from using facilities to house jail inmates, on even a temporary basis, until attorneys for the inmates have first inspected such facility, and until the District Judge herself has visited and approved such facility?

Aplts./Pet. Emergency Request at 5. Plaintiffs and Plaintiffs-Intervenors were furnished the Defendants' pleadings prior to the hearing, and although they did not have time to prepare a written response, they participated in the hearing and presented argument.
Discussion
A. Power to Consider an Extraordinary Writ
As an initial matter, it is necessary to consider the parallel proceedings before me. Defendants have filed a notice of appeal from the district court's supplementary injunctive orders under 28 U.S.C. § 1292(a)(1), and it is apparent that a single circuit judge may act on a stay pending appeal. Fed. R.App. P. 8(a); 10th Cir. R. 8.3. See also Fed.R.Civ.P. 62(g).
The more involved question is whether a single circuit judge may rule upon an extraordinary writ pursuant to 28 U.S.C. § 1651 and Fed. R.App. P. 21(a).
Fed. R.App. P. 27(c) provides:
Power of a Single Judge to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court.
10th Cir. R. 27.5.1 provides that "Pursuant to Fed. R.App. P. 27(c), one judge may make any necessary interlocutory order relating to any unassigned case or proceeding pending in this court, preparatory to its hearing or decision" and also specifies that a circuit judge may act upon various other types of applications. Plainly, 10th Cir. R. 27.5.1 does not specify that Fed. R.App. P. 21(a) applications "must be acted upon by the court," Fed. R. App. P. 27, although it is true that Rule 21(a) applications are not mentioned in 10th Cir. R. 27.5.1.
A long line of cases supports the power of a single circuit judge to act on an application for an extraordinary writ in emergency situations. See Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 662 n. 4, 83 S.Ct. 984, 986 n. 4, 10 L.Ed.2d 52 (1963); Ojeda Rios v. Wigen, 863 F.2d 196, 199 (2d Cir.1988) (chambers opinion of Newman, J.); In re Clark, 861 F.2d 263, 1988 WL 105310, at *2 (4th Cir. Oct. 4, 1988) (unpub. chambers opinion of Phillips, J.); Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000, 1005-06 (D.C.Cir.) 1020 (chambers opinion of Wright, J.), *1020 reh'g en banc denied, 331 F.2d 1010 (D.C.Cir.), cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); Woods v. Wright, 8 Race Rel. L. Rep. 445 (5th Cir. 1963) (chamber opinion of Tuttle, J.). Notwithstanding the power, discretion suggests that in most circumstances applications for extraordinary relief should be decided by a panel of judges. In describing a practice of having at least two circuit judges decide these matters, "except in an extreme emergency situation," the Eighth Circuit stated:
The object of the practice is to prevent any attempt at "shopping" as to such applications; to make the soundness of the action on the application more certain; and to avoid the public unseemliness of a single circuit judge setting up his judgment against that of another individual judge (district judge).
Aaron v. Cooper, 261 F.2d 97, 101 n. 1 (8th Cir.1958) (cited in Ojeda Rios, 863 F.2d at 199). Additionally, because I will grant relief in the stay matter, the emergency nature of the petition for the extraordinary writ is diminished. The petition for a writ of prohibition therefore will be referred to the Clerk for panel assignment.

B. Stay Pending Appeal
10th Cir. R. 8.1 requires the applicant to address the following: "(a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay or injunction is not granted; (c) the absence of harm to opposing parties if the stay or injunction is granted; and (d) any risk of harm to the public interest." These factors require individualized consideration and assessment in each case. Hilton v. Braunskill, 481 U.S. 770, 776-77, 107 S.Ct. 2113, 2119-20, 95 L.Ed.2d 724 (1987); United States v. Various Tracts of Land in Muskogee and Cherokee Counties, 74 F.3d 197, 198 (10th Cir.1996). The Defendants' counsel has complied with 10th Cir. R. 8.2 which imposes additional requirements when emergency relief is sought. Relief has been sought at the earliest practicable time. Counsel also has complied with 10th Cir. R. 8.3 and has notified opposing counsel in accordance with the rule.
Fed. R.App. P. 8(a) requires that an application for a stay must ordinarily be made first in the district court.
A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that application to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the district court for its action.
Fed. R.App. P. 8(a). Defendants' counsel has represented that the district court "failed to afford the [requested] relief," when he requested that the portion of the order concerning prior inspection and approval of facilities be modified. Aplts./Pet. Emergency Application at 5. Although it is the court's strong preference that a stay be sought first in the district court, the rule admits of exceptions, and under the circumstances, it would serve little purpose to require another application to the district court. Moreover, the district court's resolve is demonstrated by a briefing schedule and imminent hearing on civil contempt.
1. Likelihood of Success on Appeal
If Defendants can meet the other requirements for a stay pending appeal, they will be deemed to have satisfied the likelihood of success on appeal element if they show "questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation." See Walmer v. United States Dep't of Defense, 52 F.3d 851, 854 (10th Cir.) (preliminary injunction context), cert.denied, ___ U.S. ___, 116 S.Ct. 474, 133 L.Ed.2d 403 (1995); Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980) (same). See also 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice and Procedure § 3954 (1995 Supp. at 706) ("serious legal questions"); Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) ("substantial case on the merits when a serious legal question is involved"). The purpose of a stay is to preserve the status quo pending appellate determination. See Lundgrin, 619 F.2d at 63; 1021 Continental Oil Co. v. Frontier *1021 Refining Co., 338 F.2d 780, 781 (10th Cir. 1964).
Defendants have satisfied the above standards regardless of whether the district court's imposition of the condition in question is viewed as a modification of the permanent injunction concerning the population caps or a new preliminary injunction. Defendants have shown a likelihood of success on two alternative and independent grounds.
a. Compliance With Fed.R.Civ.P. 65(d)
Fed. R.Civ. P. 65(d) provides:
Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

The district court's oral ruling in this case does not appear to have been committed to writing in accordance with Rule 65(d). The Supreme Court has explained that this is not a mere technical requirement: "The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood." Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661 (1974) (per curiam). It has been held that "[o]ral statements are not injunctions," and that a defendant is under no judicial compulsion when an injunction is not recorded on a separate document in accordance with Rules 58 and 65(d). Bates v. Johnson, 901 F.2d 1424, 1427-28 (7th Cir. 1990). Absent a written order with sufficient specificity, see B & C Truck Leasing, Inc. v. ICC, 283 F.2d 163, 167-68 (10th Cir.1960), there are serious questions concerning not only enforceability, but also appellate jurisdiction. See Burgess v. Ryan, 996 F.2d 180, 184 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 923, 127 L.Ed.2d 216 (1994); Bates, 901 F.2d at 1427-29. A single circuit judge "may not dismiss or otherwise determine an appeal," Fed. R.App. P. 27(c), and I go on to address the next ground.
b. Federal Equitable Jurisdiction
In institutional reform litigation, the constitutional violation provides the authority for a court-imposed remedy which displaces local control:
The well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation....
Milliken v. Bradley (Milliken II), 433 U.S. 267, 281-82, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (citations omitted). See also Board of Education v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 636-37, 112 L.Ed.2d 715 (1991). Federal courts simply may not force local governments, "over their objections, to undertake a course of conduct not tailored to curing a constitutional violation." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 389, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992). Of course, the parties are free to consent to remedies beyond what the Constitution requires given a finding, either express or implied, of unconstitutional conditions. Id. See generally Cooper v. Noble, 33 F.3d 540, 544-45, supplemented, 41 F.3d 212 (5th Cir.1994); Diaz v. Romer, 961 F.2d 1508, 1510-11 (10th Cir.1992); Duran v. Carruthers, 885 F.2d 1485, 1489 (10th Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). Even with a consent decree, however, the district court is not free to enter a modification of the injunction which would be inconsistent with the governing law. Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 478 U.S. 501, 527-28, 106 S.Ct. 3063, 3078-79, 1022 92 L.Ed.2d 405 (1986); Firefighters *1022 Local Union No. 1784 v. Stotts, 467 U.S. 561, 580 n. 12, 104 S.Ct. 2576, 2588, 81 L.Ed.2d 483 (1984).
In this case there is an express finding that whether a class-wide constitutional violation exists will remain undecided. Moreover, the preliminary injunction that gave way to the permanent injunction was issued largely on a showing of irreparable injury:
Without deciding whether overpopulation alone can amount to punishment sufficient to constitute a violation of the Due Process Clause, from the stipulated fact of overpopulation in relation to BCDC's design capacity, the Court concludes there is a substantial likelihood that, unless the Court intervenes, the unabated continuation of a population in excess of design capacity places such additional burdens on all aspects of BCDC, its staff, its residents, its services and its systems as to substantially increase the likelihood that irreparable harm, whether it rises to the level of a constitutional violation or not, will occur between now and the trial of this matter.
D. Ct. Order filed August 23, 1995 at 9-10 (doc. 106). At oral argument, counsel for Plaintiffs-Intervenors acknowledged that no finding of a constitutional violation has been made.

Although pretrial detainees are protected under the Due Process Clause of the Fourteenth Amendment, the Eighth Amendment standards applicable to convicted persons provide the benchmark in this case. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1871-72, 60 L.Ed.2d 447 (1979); Howard v. Dickerson, 34 F.3d 978, 981 (10th Cir.1994). Proof of a constitutional violation in conditions of confinement cases cannot be presumed, and that is particularly true here 0907 the district court's preliminary injunction and subsequent rulings before me do not address the current requirements (or cases) for obtaining relief in conditions of confinement cases. The district court has made no determination that the overcrowding at BCDC, let alone the conditions at any other temporary facility, have resulted in a constitutional violation with respect to any inmate.
While the Eighth Amendment proscribes "cruel and unusual punishments," there are two components of an Eighth Amendment claim which must be proven to support a remedy: an objective component, the alleged deprivation must deny "the minimal civilized measure of life's necessities," Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981), and a subjective component, the responsible official must have a sufficiently culpable state of mind, i.e. deliberate indifference, Wilson v. Seiter, 501 U.S. 294, 299-304, 111 S.Ct. 2321, 2324-27, 115 L.Ed.2d 271 (1991) (conditions of confinement case). See Clemmons v. Bohannon, 956 F.2d 1523, 1525-26 (10th Cir. 1992) (en banc) (acknowledging Wilson components). See also Helling v. McKinney, 509 U.S. 25, 33-37, 113 S.Ct. 2475, 2481-82, 125 L.Ed.2d 22 (discussing objective and subjective components of Eighth Amendment violations); Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) ("it is obduracy and wantonness, not inadvertence or error in good faith, that characterize conduct prohibited...."); Johnson v. Phelan, 69 F.3d 144, 150 (7th Cir.1995) ("No intent to injure means no `punishment'; and no `punishment,' no violation."); Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (discussing objective component). See also 18 U.S.C. § 3626(a) and (b) (enacting limits upon remedies for individual overcrowding claims under the Eighth Amendment).
While the district court is to be accorded flexibility in administering the permanent injunction, Defendants have made a strong showing that the permanent injunction does not preclude them from assigning inmates to facilities other than BCDC, let alone require them to obtain the district court's permission after Plaintiffs' counsel previews/ inspects the facilities and has the opportunity to lodge objections. The district court has acknowledged repeatedly that alternative sites are not foreclosed, thus, while the permanent injunction prescribes population caps for BCDC, it does not require use of the MRS if alternatives can be found to avoid overpopulation.
1023 *1023 Requiring inspection by Plaintiffs' counsel and court approval of any temporary site, whether it be Montessa Park, the state penitentiary or the soon-to-be-operational Westside facility, reaches far beyond maintaining an acceptable population level at BCDC. Such requirements necessarily involve the district court in the operation of other institutions, something generally proscribed absent a condition which offends the Constitution. See Rhodes, 452 U.S. at 337, 101 S.Ct. at 2394-95. "District courts must bear in mind that their inquiries `spring from Constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility.'" Id. (quoting Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979)). Moreover, the district court's requirements seem particularly inappropriate here, notwithstanding the lack of proof of a constitutional violation, because the temporary locations represent an effort on the part of the Defendants to comply with the permanent injunction concerning population caps. See Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 1837-38, 36 L.Ed.2d 439 (1973) (comity requires an opportunity for prison officials to correct conditions); Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir.1994) (vacating injunctive relief after staying it pending appeal and noting that "intrusive and far-reaching federal judicial intervention in the details of prison management is justifiable only where state officials have been afforded the opportunity to correct constitutional infirmities and have abdicated their responsibility to do so"); Dean v. Coughlin, 804 F.2d 207, 214 (2d Cir.1986) (vacating preliminary injunction).
Though too generalized to support a constitutional violation, the district court has been candid about where it believes the fault lies:
The order we entered as a result of the stipulation by the parties last August spoke [] to the overcrowding issue and recognized that the fault was not with BCDC officials. It recognized that the blame for overcrowding had to rest on the public who pressured legislators to increase

criminal penalties yet at the same time deny the authority for public expenditure for new or improved facilities or programs directed toward persons against whom these laws are enforced.
It is obvious that stiffer penalties result in more incarcerated individuals, and the public has to follow through and take responsibility for ensuring that penal institutions are equipped and staffed to handle increased inmates.
Likewise, politicians who are quick to support public cries for stiffer penalties and incarceration must not shy away from supporting the unpopular measures necessary to meet the corresponding demands of an overused system.
Aplt./Pet. Emergency Request, ex. 2, Tr. at 80-81. While I appreciate the concern shown by the district court and the district court's willingness to be available to the parties as needed, the proper, and properly limited, role of the federal courts requires evaluation of these claims within the existing legal framework and appropriate support by competent proof. Taylor, 34 F.3d at 269, 271. While the conditions in this case deserve careful scrutiny, they must be evaluated "with proper regard for the limited competence of federal judges to micromanage prisons." See Bruscino v. Carlson, 854 F.2d 162, 164-65 (7th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3193, 105 L.Ed.2d 701 (1989); Taylor, 34 F.3d at 269-70.
If the "inspection and approval" requirements are viewed independently, Defendants have made a strong showing that such requirements must fail under the current constitutional standards for conditions of confinement claims, as well as the standards for governing preliminary injunctive relief.
2. Threat of Irreparable Harm
If the stay is not granted, Defendants will be forced to release 163 inmates. Defendants maintain that they need flexibility to house inmates elsewhere on short notice to meet the population caps imposed by the permanent injunction and to undertake local law enforcement initiatives. Requiring district court approval, after inspection and probable objection by Plaintiffs' counsel, is a cumbersome procedure that is tantamount to a presumption that Defendants will act in an unconstitutional manner regarding these other facilities. Moreover, the district 1024 court's *1024 procedure will interfere with law enforcement initiatives, prosecutorial discretion and state judicial power.
3. Absence of Harm to Opposing Parties If the Stay Is Granted
Given that no finding of a constitutional violation has occurred, it does not appear that opposing parties will be harmed in a way that is redressable in federal court. Moreover, a new facility on the Westside should open within sixty days and be available to house inmates over the population cap at BCDC. Finally, while the district court's "inspect and approve" requirements substantially alter the status quo, a stay pending appeal will restore it. See Lundgrin, 619 F.2d at 63.
4. Public Interest
It is in the public interest to have these claims resolved prior to implementing the "Matrix Release System." Federalism and concern for local control concerning law enforcement, prosecution and adjudication, counsel in favor of an orderly resolution of the serious claims involved.
The stay pending appeal is granted and the petition for a writ of prohibition is referred to the Clerk for panel assignment.
IT IS SO ORDERED.
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 100 F.3d 863 (1996)
Jimmy McCLENDON, also known as Billy McClendon; Harold Lund; Peter Sumatkaku; David Michael Bauer; Carl Ray Lopez; Bruce David Morawe; Thomas Young; Ruthie Duran; Deborah Lavera; Janelle Roybal; Danette Difiori; Maria Sisneros; Larry Green; Bartel Haley; Michael Cote; Joe Ray Herrera; Josie Kriena; Debbie Lucero; David Shawkin; Marc A. Gillette; George Chavez; Eliseo Baca; Clint Barras; Francisco Melendez; Samual Herrod; Vincent Padilla; Carl Duckworth; Joseph W. Anderson; Paul Johnson; Fred Mall; Hector Lopez; Ricky Rose; Herbert King, Sr.; James Parks; Michael A. Johnson; Johnny Vallejos; Joe Newberry; Darryl Craft; Albert Willy; William P. Jimmy; Augustine Tapia; Richard A. Smith; Robert Lovato; Roy Whatley; Marty Begay; Martin Valdivia; Tallie Thomas; Augustine Jackson; Donald Hall; Carl Sur; Steve Esquibel; Lonnie Whatley; James Saiz; Bryon Zamora; Allen M. Sawyer; Patrick Benny Romero; Richard C. Kopecky; Phillip Shumate; Nelson Romero; Steve Johnson; Bennie F. Garcia; Louie Chavez; Brian Salazar; Richard Gallegos; Larry Stroud; James Burks; Brad Fischer; Amihon Baca; Jeff Dillow; Pete McQueen; Manuel Martinez; Arnold Anthony Maestas; John Hewatt; and All Others Similarly Situated, Plaintiffs-Appellees and Real
Parties in Interest, and
EM; RL; WA; DJ; PS; NW, on behalf of themselves and all others similarly situated, Plaintiffs-Intervenors-Appellees and Real Parties in
Interest, and
Lawrence A. Johnson, Intervenor, v.
CITY OF ALBUQUERQUE; Martin Chavez, Mayor of Albuquerque; County of Bernalillo; Patrick Baca, Bernalillo County Commissioner;
Albert Valdez, Bernalillo County Commissioner; Eugene Gilbert, Bernalillo County Commissioner; 864*864 Barbara Seward, Bernalillo
County Commissioner; Jacquelyn Schaefer, Bernalillo County Commissioner; Bill Dantis, Director, Bernalillo County Detention Center; Bernalillo County Detention Center; Paul Sanchez; Frank Lovato; Ercell
Griffin, Deputy Director, Bernalillo County Detention Center; Michael Smith, Lieutenant; John Van Sickler, Lieutenant; Will Bell, Officer; Albert Chavez, Lieutenant; Richard Fusco, Lieutenant; George Fuentes; David
Baca, Lieutenant; Victor Hernandez; Kevin D. Sevir; Jim Mason, Dr.; Barbara Cole; Maria Lucero; David Royston; Felimon Martinez, Captain;
Stanley Lents; Douglas Robinson; Seal Barley; Lynn King; Dave Sherman; Brian Maser; John Does, Employees of Bernalillo County

Detention Center, Defendants-Appellants and Petitioners, v.
The UNITED STATES DISTRICT COURT FOR the DISTRICT OF NEW MEXICO, Respondent.
Nos. 96-2056, 96-2057.
United States Court of Appeals, Tenth Circuit.
November 15, 1996.
865*865 Jeffrey L. Baker, The Baker Law Firm, Albuquerque, NM, for DefendantsAppellants and Petitioners.
Peter Cubra, Albuquerque, NM, and Elizabeth E. Simpson, Tomita & Simpson, P.C., Albuquerque, NM (Nancy Koenigsberg, Protection & Advocacy System, Albuquerque, NM, with them on the brief), for Plaintiffs-Intervenors-Appellees and Real Parties in Interest.
Anthony Ayala, Albuquerque, NM, for Plaintiffs-Appellees and Real Parties in Interest, did not file a brief or present argument.
Before SEYMOUR, Chief Judge, LOGAN and LUCERO, Circuit Judges.
SEYMOUR, Chief Judge.
This appeal arises out of a class action brought on behalf of all present and future residents of the Bernalillo County Detention Center (BCDC) against the City of Albuquerque, Bernalillo County, and City and County officials responsible for operating the BCDC. Plaintiffs alleged that conditions at the BCDC were unconstitutional due primarily to extreme overcrowding. The parties entered into a partial settlement agreement addressing this problem. Defendants appeal an order that was issued by the district court in the course of implementing a modification of this agreement. We dismiss the appeal as moot.
I.
Plaintiffs asserted that the severe overcrowding at the BCDC raised constitutional problems with respect to many aspects of the operation of the facility, including health, sanitation, and security. On August 23, 1995, the district court entered a preliminary injunction under which a plan proposed by defendants to reduce the jail population would be implemented. The court's order specifically noted the cooperation of defendants. In granting the injunction, the court found that the existing facility was designed to house a population of 683 and had a bed capacity of 752. The daily resident population averaged 990, however, and had at times reached 1100. The court further found that when the bed capacity was exceeded, inmates slept on stack-a-bunks, mattresses placed on the concrete floor, and on the concrete floor directly. Accordingly, the court imposed a population cap to be phased in by January 1, 1997. The court acknowledged defendants' past efforts to address the problems resulting from the overcrowding and set out three additional steps proposed by defendants for

reducing the population: the construction of 866*866 additional temporary housing; the expansion of the BCDC into additional permanent facilities; and the implementation of a Matrix Release System (MRS) providing for the supervised release of prisoners if necessary. Without deciding whether the overpopulation rose to the level of a constitutional violation, the court determined that the requirements for a preliminary injunction were satisfied and ordered numerous changes to address violence and health and safety hazards in addition to the population reduction. On September 7, 1995, the parties entered into a partial settlement agreement in which they stipulated to conversion of the August 23 order to a permanent injunction and to retention by the court of jurisdiction to enforce and/or modify the injunction.
Defendants informed the court in October that the mayor of Albuquerque opposed the use of the MRS and that it might no longer be a viable option for reducing the jail population. The court, in turn, directed defendants to file a motion to modify the stipulated order if they were concerned about their ability to use the agreed-to reduction system. Defendants did not file a motion to modify. At a November 17 status conference, defendants stated that, as an alternative to using the MRS, they intended to renovate a city-owned facility called Montessa Park to provide temporary inmate housing. The court was sympathetic to defendants' dilemma and informed them that the proposed alternative housing would be allowed to replace the required MRS plan if the facilities were habitable and met constitutional standards. The court suggested that defendants allow plaintiffs' counsel to tour Montessa Park and that counsel inform the court if they had any concerns. Defendants' counsel agreed to this suggestion and assured the court that plaintiffs would be given any information they wanted and that inspection tours would be arranged. At plaintiffs' request, the court toured both Montessa Park and proposed facilities in the basement of a state court building and noted that both sites were habitable. Shortly thereafter defendants began to use both facilities.
In March 1996, local law enforcement authorities stepped up activities, leading to an increase in arrests and a corresponding swell in the inmate population. On Thursday, March 21, defendants notified the court that they had exceeded the population cap at BCDC the previous weekend and expected to do so again the following weekend. The court held a hearing on March 22, at which the court expressed disapproval both of defendants' failure to address the anticipated population swell until the last minute and their failure to inform the court until the crisis was at hand. The jail director testified that he was looking at all different types of alternative housing, including the National Guard Armory, tents, warehouses, and airport hangars. The court determined that the only available option to reduce immediately the population was the use of tents as proposed by defendants. The court ordered that any proposed site would have to be certified by the fire marshal, that plaintiffs' counsel were to be given the opportunity to inspect the site, and that the parties were to promptly notify the court of any other options that might arise to avoid releasing prisoners under the MRS.
During a telephone hearing on Sunday, March 24, the parties and the court agreed that the tents could not be used over the weekend due to the extremely cold weather. At a status hearing on Monday, the court found that defendants had violated the injunction by exceeding the population cap at the BCDC during the two previous weekends, and by housing inmates over the past weekend in an unauthorized and unapproved trailer near the

dump and in an unauthorized and unapproved warehouse called Montessa II, which the court found was not safe, secure, or adequate on the basis of the jail director's testimony. The court indicated its displeasure with defendants' failure to apprise it during the Sunday hearing of the plan to use these facilities, and with defendants' failure to provide either plaintiffs or the court an opportunity to tour them. The court stated that it would tour the warehouse when informed by defendants that it was suitable for inmates, and ordered the inmates housed there to be returned to BCDC. Finally, the court ordered once again that defendants comply with the injunction to which they had agreed.
867*867 Defendants then requested and received an emergency stay of only that portion of the district court's orders which they described as requiring court inspection prior to the use of temporary housing alternatives to implementation of the MRS. We now have that issue before us.
The pleadings filed with this court reveal that since the district court's March orders, defendants have opened a 300-bed overflow jail facility, that they have met the scheduled population caps, and that they have voluntarily allowed inspection of temporary facilities by counsel for plaintiffs. As defendants set out in their reply brief, "[i]n less than a year, despite obstacles, Defendants have reduced the population of the BCDC's existing main facility by almost 300 inmates, and provided safe, secure and adequately staffed alternative housing for inmates by building a new Westside jail facility and refurbishing additional sites." Appellants Reply Br. at 2. Accordingly, we asked for supplemental briefing addressing whether we should dismiss this appeal as moot.
II.
Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction. Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir.1991). This requirement exists at all stages of federal judicial proceedings, and it is therefore not enough that the dispute was alive when the suit was filed; the parties must continue to have a personal stake in the outcome. Id. Because mootness is a matter of jurisdiction, a court may raise the issue sua sponte. Johnson v. Riveland, 855 F.2d 1477, 1480 (10th Cir.1988). When a party seeks only equitable relief, as here, past exposure to alleged illegal conduct does not establish a present live controversy if unaccompanied by any continuing present effects. Beattie, 949 F.2d at 1094. In these circumstances, the party must "`demonstrate a good chance of being likewise injured in the future.'" Id. at 1093 (quoting Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991)). Consequently, we must look beyond the initial controversy and decide whether the present dispute is sufficiently immediate and real. Id. at 1094.
The material filed with this court relevant to the issue of mootness reveals the following undisputed facts. Defendants have afforded plaintiffs' counsel opportunities to inspect the temporary sites that defendants sought to use on an emergency basis in March 1996. In addition, plaintiffs assert that the challenged order is most appropriately read as covering only the inspection of the emergency interim facilities at issue during the March 1996 population crisis. To that extent, the matter is clearly moot.

Moreover, subsequent to the district court's March orders, defendants opened a new 300bed detention facility. Although this new facility is now apparently at or near capacity, the already-inspected Montessa I and Montessa II facilities are available and together provide an additional 246 beds. The last phased population reduction of the BCDC under the settlement agreement resulted in the housing of at most sixty inmates in the Montessa facilities. By the time the final required reduction occurs in January 1997, the expansion of the new facility from 300 to 400 beds should be completed. The availability of these additional 100 beds, plus the 246 beds provided by the Montessa facilities, demonstrates that the possibility of an emergency situation again arising requiring the use of uninspected temporary emergency facilities is remote and speculative. Thus, even if the district court's challenged order were meant to extend beyond the emergency situation in which it arose, the lack of an immediate and real dispute renders this appeal moot. See, e.g., Doty v. County of Lassen, 37 F.3d 540, 544 (9th Cir.1994) (opening of new jail facility mooted dispute over imposition of population caps in old jail); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1424 (11th Cir.1993) (transfer of students to newly opened school mooted challenge to reassignment of students at old school).
In order to find a live controversy, we would have to assume that defendants will again close their eyes to the anticipated numbers of jail residents, fail to plan in advance for them, and violate the settlement agreement. 868*868 We decline to so speculate. Accordingly, we hold that the appeal is moot.
III.
We turn now to the disposition of the district court's March orders and the stay of those orders in light of our determination that the appeal is moot. "When causes beyond the appellant's control make a case moot pending appeal, a federal appellate court generally should vacate the judgment below and remand with a direction to dismiss." Otasco, Inc. v. Mohawk Rubber Co. (In re Otasco, Inc.), 18 F.3d 841, 843 (10th Cir.1994) (citations omitted). "`That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance' and prevents the moot judgment `from spawning any legal consequences.'" Marc Dev., Inc. v. FDIC, 12 F.3d 948, 949 (10th Cir.1993) (en banc) (quoting United States v. Munsingwear, 340 U.S. 36, 40-41, 71 S.Ct. 104, 107, 95 L.Ed. 36 (1950)). When, as here, prior rulings become moot through circumstances attributable to one of the parties and vacatur is considered by the court on its own motion, we "will determine whether vacatur ... is appropriate on the basis of the particular circumstances." Oklahoma Radio Assocs. v. FDIC, 3 F.3d 1436, 1444 (10th Cir.1993); see also U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, ___ U.S. ___, ___-___, 115 S.Ct. 386, 392-93, 130 L.Ed.2d 233 (1994).
The circumstances here are certainly unusual. The district court order was entered during the court's attempt to accommodate defendants, who had undisputedly violated the settlement agreement by exceeding the population cap at the BCDC. Defendants, who appealed the district court order, have since voluntarily permitted inspections, and likely have ample beds to meet the last BCDC population cap set for January 1997. Moreover, it is defendants' actions in complying with the settlement agreement by creating adequate temporary space and opening a new facility that have rendered this appeal moot.

Although defendants are, in effect, responsible for mooting this appeal, we are persuaded we should nevertheless order that those portions of the district court orders from which defendants appeal be vacated. This is clearly not a case in which a defendant has manipulated the judicial process by deliberately aborting appellate review to avoid a decision on the issues. Rather, defendants' conduct in complying with the settlement agreement constitutes responsible governmental conduct to be commended. See American Library Ass'n v. Barr, 956 F.2d 1178, 1187 (D.C.Cir.1992) (characterizing Congress's action in mooting case by passing legislation as responsible lawmaking). Under these circumstances, we are persuaded that defendants should not bear any untoward consequences from their inability to contest the district court's March orders on appeal. See Otasco, 18 F.3d at 843 (mooted but unvacated district court order continues to have preclusive effect).
Accordingly, we dismiss this appeal as moot. We remand this case to the district court with directions to vacate those portions of its oral orders of March 22 and March 25 memorialized in writing on April 15, 1996, that prohibited defendants from using alternative facilities to house jail inmates on a temporary basis without first permitting counsel for plaintiffs to inspect the proposed facilities and obtaining district court approval prior to their use.[1]
[1] Having ordered the district court to vacate the orders appealed from, we vacate the stay order, McClendon v. City of Albuquerque, 79 F.3d 1014 (10th Cir.1996), as well. See Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148, 105 S.Ct. 1820, 85 L.Ed.2d 114 (1985) (preliminary injunction order vacated when propriety of that relief rendered moot); University of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 1835-36, 68 L.Ed.2d 175 (1981) (same); Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir.1982) ("In ruling on a request for an injunction pending appeal, the court must engage in the same inquiry as when it reviews the grant or denial of a preliminary injunction.").