Ayers v. Perry PC-NM-003-002

IN Till- UNITED STATES DISTRICT COURT

tTTT "C"T)

FI UOKRT1HI1KL UDI1SMTKRIILC.T1 OUFI \ MRAVN MMFL\AI CKOUU NA'LTBEUDQSUTEATREQSUDEI, N^EIW

JOHN AYERS, DAVID BALLEJOS, IVAN GARCIA, DARREN LOVATO, ANTHONY SANDOVAL and ALEX SOSAYA, on behalf of themselves and all others similarly situated,
Plaintiffs.

JUN I 0 200
CLERK

vs.

No. I TV 02-1438 HU/WDS

ROBERT PERRY, individually, JAMES BL'RLESO.N, Secretary1 Dcsignec of the New Mexico Department of Corrections, in his official capacity, JOHN SHANKS, Acting Deputy Secretary - Operations and Director of Adult Prisons for the New Mexico Department of Corrections, in his individual and official capacities, TIM LcMASTER, Warden of the Penitentiary of New Mexico, in his official capacity, LAWRENCE TAFOYA, Warden of the Southern New Mexico Correctional Facility, in his official capacity, RON GLIILLEMETTE, Cognitive Restructuring Coordinator for the Special Controls Facility of the Penitentiary of New Mexico, in his individual and official capacities, JAMES LOPEZ, Unit Manager of the Special Controls Facility of the Penitentiary of New Mexico, in his individual and official capacities, and the NEW MF.XICO DEPARTMENT OK CORRECTIONS.

Defendants.

ORDER FOR DISMISSAL WITH PREJUDICE The Court having reviewed Plaintiffs' Unopposed Moiion for Dismissal wiih Prejudice finds and orders as follows: 1. On March 19. 2003, a cause of action styled as Anthony J. SanJuval v, James Lopez. Peter Koeppe. Phillip Mares. New Mexico Correctional Department. No. CIV 02-170 MV/'LFG (Sandoval v. Lopez) was consolidated into the within action.

2. Since then the parties to this action have entered into an agreement thai resolves all of Plaintiffs* claims in this litigation except for the claims made in Sandoval v. Lopez.
3. Plaintiffs have moved to dismiss the within action wilh prejudice, except as to the claims made in Sandoval v. l.ope'/..
4. Defendants do not oppose the motion. NOW THEREFORE, it is ordered that this action. No. CIV 02-1438 BUAVDS. is hereby dismissed wilh prejudice, except for the claims made in Sandoval v.l.one/. Nn. 1)2-170 MV/LFG.

APPROVED AS TO FORM:

United States District Judge

Marl/ H: Dor Rothstcin Donatelli Hughes Dahlstrom Schoenburg& Fryc I.J.P P.O. Box 8180 Santa Fe. NM 87504-8180
988-8004 Attorney for 1'lainlirr's

Robert T. Booms Butt. Thornton & Baehr/PC P.O. Box 3170 Albuquerque, N M 87190-3170 (505) 884 0777 Attorney for Defendants • •

1 -A ITORNIiV'lt I IP7M03>(Hili<1(i^.iilii»v--KTU; WJ ! XX'

 
 FIRST JUDICIAL DISTRICT COURT COUNTY OF SANTA FE STATE OF NEW MEXICO

Ayers v Perry
lll
PC-NM-003-001

JOHN AYERS, DAVID BALLEJOS, IVAN GARCIA, DARREN LOVATO, ANTHONY SANDOVAL and ALEX SOSAYA, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.

ROBERT PERRY, individually, JAMES BURLESON, Secretary Designee

of the New Mexico Department of Corrections, in his official capacity,

JOHN SHANKS, Acting Deputy Secretary - Operations and Director of

Adult Prisons for the New Mexico Department of Corrections, in his individual and official

capacities, TIM LeMASTER, Warden of the Penitentiary of New Mexico, in his

official capacity, LAWRENCE BARRERASTAFOYA, Warden of the Southern New Mexico

Correctional Facility, in his official capacity, RON GUILLEMETTE, Cognitive

Restructuring Coordinator for the Special Controls Facility of the Penitentiary of

New Mexico, in his official capacity,

, Cognitive Restructuring

Coordinator for the Special Controls Facility of the Southern New Mexico Correctional

Facility, in his individual and official capacities, and JAMES LOPEZ, Unit Manager of the

Special Controls Facility of the Penitentiary of New Mexico, and

, Unit Manager

of the

Special Controls Facility of the Southern New Mexico Correctional Facility, in their

his individual and official capacities, and the NEW MEXICO DEPARTMENT OF

CORRECTIONS,

Defendants.

COMPLAINT FOR CLASS BASED DECLARATORY AND INJUNCTIVE RELIEF
AND FOR INDIVIDUAL COMPENSATORY AND PUNITIVE DAMAGES

Plaintiffs John Ayers, David Ballejos, Ivan Garcia, Darren Lovato, Anthony Sandoval and Alex Sosaya, on behalf of themselves and all others similarly situated, by their attorneys of record listed below, and for their complaint against Defendants, state:
PRELIMINARY STATEMENT
1. This is a class action brought pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief on behalf of prisoners confined at all of the Special Controls Facilities ("SCF") operated by the defendants and those prisoners within the New Mexico State penal system, present and future, who face the risk of placement at an SCF. Such facilities are presently operated at the Penitentiary of New Mexico ("PNM") in Santa Fe, New Mexico, and the Southern New Mexico Correctional Facility ("SNMCF") in Las Cruces, New Mexico. This action alleges that by housing prisoners at an SCF, defendants are knowingly subjecting them to conditions that constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States, and are violating their rights under the First, Fourth, Eighth and Fourteenth Amendments to the Constitution of the United States as well as their rights under the Americans with Disabilities Act, 42 U.S.C. § 12131 et seg., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as set forth more fully herein.
JURISDICTION AND VENUE

2. Plaintiffs bring this action to redress the deprivation of rights secured them under the First, Fourth, Eighth and Fourteenth Amendments, all of which are enforceable under 42 U.S.C. § 1983, as well as those rights secured under the Americans with Disabilities Act and the Rehabilitation Act.
3. This Court has subject matter jurisdiction of this action pursuant to its original jurisdiction over cases in controversy arising in this judicial district and its concurrent jurisdiction over cases raising federal questions.
4. This Court has equitable jurisdiction to grant declaratory relief and the injunctive relief sought herein.
5. Venue is proper in this judicial district because some or all of the plaintiffs and some of the defendants reside in this judicial district, because this is an action against officers of the State of New Mexico, some of whom maintain offices in this judicial district, and because the allegations giving rise to plaintiffs' claims arise in whole or in part within this judicial district.
PARTIES
6. Plaintiffs John Ayers, David Ballejos, Ivan Garcia, Darren Lovato, Anthony Sandoval and Alex Sosaya, are prisoners who have been sentenced to the custody of the New Mexico Department of Corrections and are confined at an SCF.
7. Defendant Robert Perry is the former Secretary of the New Mexico Department of Corrections ("DOC"). As such, he was the legal custodian of all prisoners sentenced by the courts of New Mexico for felony offenses, and was responsible for the safe, secure and humane housing of those prisoners. At all times relevant hereto, he acted under

color of state law. Defendant Perry initiated the establishment of SCF's and the unlawful conditions therein. He is sued in his individual capacity.
8. Defendant James Burleson is the current Secretary of DOC. As such, he is the legal custodian of all prisoners sentenced by the courts of New Mexico for felony offenses, and is responsible for the safe, secure and humane housing of those prisoners. At all times relevant hereto, he has acted under color of state law. Defendant Burleson is sued in his official capacity.
9. Defendant John Shanks is Acting Deputy Secretary - Operations and Director of Adult Prisons for DOC. At all times relevant hereto, he has acted under color of state law. Defendant Shanks is sued in his individual and official capacities.
10. Defendant Tim LeMaster is Warden of PNM, and thus Warden of an SCF. At all times relevant hereto, he has acted under color of state law. Defendant LeMaster is sued in his official capacity.
11. Defendant Lawrence BarrerasTafoya is Warden of SNMCF, and thus Warden of an SCF. At all times relevant hereto, he has acted under color of state law. Defendant BarrerasTafoya is sued in his official capacity.
12. Defendant Ron Guillemette is the Cognitive Restructuring Coordinator for the Special Controls Facility of PNM. At all times relevant hereto, he has acted under color of state law. Defendant Guillemette is sued in his individual and official capacities.
13. Defendant James Lopez is the Unit Manager of the SCF at PNM. At all times relevant hereto, he has acted under color of state law. Defendant Lopez is sued in his individual and official capacities.

14. Defendant New Mexico Department of Corrections is a public entity obligated to comply with the Americans with Disabilities Act and the Rehabilitation Act. Defendant DOC is sued for equitable relief only.
CLASS ACTION FACTS

15. situated.

Plaintiffs bring this action on behalf of themselves and all others similarly

16. Plaintiffs seek to represent a class consisting of all persons who are now, or who are at risk of being, confined in the SCF's.

17. The members of the class are too numerous, and the membership of the class too fluid, to permit joinder of all members. There are currently over 450 prisoners confined at an SCF. Because prisoners are sometimes transferred between other prisons and an SCF, the membership of the class changes constantly.

18. Common questions of law and fact exist as to all class members. All class members are equally subject to the unconstitutional and unlawful conditions at an SCF described in this Complaint. These common questions include, but are not limited to:
a. Whether conditions of confinement at the SCF's violate the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act and the Rehabilitation Act;
b. Whether the "Cognitive Restructuring" program utilized at the SCF's violate the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act and the Rehabilitation Act;

c. Whether the process by which plaintiffs are transferred to, or are retained in, an SCF deprive them of liberty or property without due process of law. 19. The claims of the named plaintiffs are typical of those of the class.
20. Plaintiffs will fairly and adequately represent the interests of the class. The interests of plaintiffs are consistent with those of the class, and they are represented by counsel who are experienced in class action, civil rights and prison conditions litigation.
21. Defendants have acted and refused 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.
STATEMENT OF FACTS The Special Controls Facilities
22. The SCF's are operated at the 544-bed facility located in both the high security North and South units of PNM and at portions of SNMCF.
23. DOC receives federal funds for its programs and facilities.
24. The SCF's began operation on or about July 2000 and currently house over 450 prisoners. Although the SCF's ostensibly were designed to house disruptive and violent offenders, many non-violent prisoners have been transferred to SCF's because of unsubstantiated allegations of gang involvement, and/or due to their mental disabilities, and/or to ease overcrowding at other institutions, and/or for reasons of retaliation and/or

intimidation of prisoners by prison officials, and/or for no apparent or penologically legitimate reason at all.
25. According to DOC's mission statement regarding its operation of SCF's, they are designed to "isolate and separate disruptive, violent, uncooperative and predatory inmates." However, most of the prisoners at the SCF's have not demonstrated such serious behavioral problems and, for those who do, the SCF's offer no programs that could provide them with the skills to reintegrate into other institutions or eventually into society.
26. A prisoner may spend many years subjected to the conditions described in this Complaint and may not be released from an SCF until his mandatory release date back to society. Conditions of Confinement

27. Conditions at the SCF's are designed to subject, and do subject, prisoners to almost total social isolation and sensory deprivation.
28. Prisoners are locked in their cells for 24 hours a day, although some prisoners leave their cells up to five hours per week, unless the "privilege" of doing so is taken away from them, often due to the arbitrary and capricious decision making of SCF officials or otherwise without good cause.
29. The SCF cells are made of concrete walls and a solid door.
30. Prisoners see the outdoors at most one hour every fifteen days.
31. Prisoners at the SCF's do not have access to outdoor exercise.
32. The only exercise space accessible to prisoners is a windowless concrete cell. This cell contains little or no exercise equipment. Before prisoners enter and after they exit the recreation cell, they are subjected to a strip search.
33. Strip searches are imposed in a punitive manner by SCF officials. Because conditions are so harsh, many prisoners choose not to use the recreation cell and simply remain locked in their cells 24 hours a day.
34. Many prisoners at the SCF's are allowed only one six minute telephone call per month.
35. Prisoners at the SCF's are permitted no family or other personal visits, except "video visits" in which the prisoner and his visitor see each other only on a video screen, which provides distorted, delayed and poor quality images and garbled sound. Due to the burdensome requirements the SCF's impose on visitors, many prisoners do not even receive these "video visits."

36. Prisoners are monitored by security staff 24 hours a day. As a result, male prisoners are sometimes watched at close range by female staff as they undress, shower, masturbate, urinate and defecate.
37. Prisoners receive no meaningful programming, jobs, entertainment or other stimulation.
38. Prisoners are limited to the following possessions at any one time: a. three personal letters; and, b. three library books.

39. Prisoners are only allowed to receive five new pieces of paper per week.
40. The limitation on receiving paper in excess of five pieces of paper per week includes legal materials, even as to prisoners with pending lawsuits.
41. Prisoners are prevented from effectively representing themselves in litigation as a result of SCF limitations on receipt and possession of paper and other barriers to legal resources and assistance.
42. Prisoners at the SCF's are frequently subjected to searches of their cells, as well as strip searches and body cavity searches of their person. Often searches are not conducted for legitimate security purposes, but to humiliate and harass.
43. Prisoners are subjected to placement in strip cells without legitimate security reasons but instead to humiliate and harass. Inmates placed in strip cells have all books and hygiene materials removed. Nothing remains in the strip cell with the prisoner except a mattress. Prisoners placed in strip cells spend at least 48 to 72 hours whenever they are alleged to be a threat to another or to themselves.
44. One SCF inmate was placed in a strip cell for not turning off the light in his cell.
45. Guards within the SCF's have been directed by the defendants to impose summary punishment upon the SCF residents, taking away their property and their already extremely limited opportunities to leave their cells without any procedures to ensure fundamental fairness. As a result of defendants' actions in these regards, the plaintiffs have been subjected to arbitrary punishment.

46. The conditions in the SCF's constitute a significant and atypical hardship upon the plaintiffs and all other residents therein.
47. The defendants know and are deliberately indifferent to the fact that their policies and practices violate the federal rights of SCF residents.
48. Before creating the SCF program, defendants Perry and Shanks had previously initiated other programs that were intended to inflict cruel and unusual punishment upon prisoners committed to the custody of DOC. First, they imposed a regimen of "rock breaking" upon prisoners, placing boulders in prison yards and ordering prisoners to use sledge hammers to break rocks. After that initiative failed, they created an "Intensive Supervision Unit" (ISU) at PNM North, where many of the features of the SCF program were imposed upon the prisoners therein. They also directed the guards in the ISU to impose summary punishment upon prisoners, requiring them to perform push ups and other strenuous activities as summary punishment. Their actions with respect to the ISU resulted in litigation within the Duran v. Johnson class action lawsuit, No. CIV 77-0721 (U.S.D.N.M.).
49. On or about April 19, 1999, the defendants received a pleading filed by counsel for the plaintiffs in the Duran case which put the defendants on actual notice that it has been clearly established in federal courts since at least the late nineteenth century that solitary confinement, like that imposed upon class members housed in the SCF's, causes serious psychological harm to inmates. Because they knew that the initiation of SCF's would cause serious psychological harm to inmates, the defendants' actions were deliberately intended to cause irreparable harm to the plaintiffs and the proposed plaintiff class.

50. Before they created the SCF's, the defendants also had received actual notice that the professional literature regarding prison mental health care had established prior to 1999 that a substantial increase in the need for mental health services would certainly result from the opening of the SCF's. In this regard, defendants were informed that in 1992, a large scale study of prisoners in New York state correctional facilities, including observations of prisoners subjected to isolation, led to the conclusion that "isolation panic" is a serious problem among prisoners in solitary confinement. Prior to creating the SCF's, defendants knew that isolation of the kind they designed into the SCF's would lead to "rage, panic, loss of control, breakdowns, psychological regression, and a build-up of physiological and psychological tension that le[a]d to incidents of self-mutilation." Hans Toch, Mosaic of Despair: Human Breakdown in Prisons (1992) at 54.

51. Before they created the SCF's, the defendants also were put on notice that

the increase in mental dysfunction among people held in solitary confinement has been

universally recognized. The opinions of Dr. Craig Haney, an expert in correctional mental

health care who previously worked on behalf of the plaintiff class in Duran, were quoted to

the defendants. The April 19, 1999 brief referred to in paragraph 49 above quoted Dr.

Haney's writings:

A comprehensive assessment of the extensive clinical data collected on this issue, including the nature and extent of the psychic indices of stress employed, the unique and consistent psychopathological reactions that have been found, and the harmful secondary effects that have been documented in virtually every study on the question, point to the damaging psychological effects of punitive, isolated prison housing itself. ... . Direct studies of the effects of prison isolation have documented a wide range of harmful psychological effects, including increases in negative attitudes and affect, insomnia, anxiety, panic, withdrawal, hypersensitivity, ruminations, cognitive dysfunction, hallucinations, loss of control, aggression, rage, paranoia, hopelessness, lethargy, depression, emotional

breakdowns, self-mutilation, and suicidal impulses

There is not a single

study of solitary confinement wherein non-voluntary confinement that lasted

for longer than 10 days failed to result in negative psychological effects.

Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of

Supermax and Solitary Confinement, 23 N.Y.U. Rev. of Law & Social Change 529-31 (1997) (emphasis suppled).
52. Prior to their establishment of the SCF's, defendants were also aware that in 1986 a psychiatrist, Robert Slater, studied the effects of long-term lockup of prisoners at San Quentin prison. Based on that study, the symptoms suffered by prisoners in long-term segregation include:
tension, irritability, sleeplessness, nightmares, inability to think clearly or to concentrate, and fear of impending loss of impulse control. Sometimes the anxiety is severe enough to be crippling. It interferes with sleep, concentration, work, and study and predisposes prisoners to brief psychotic reactions, suicidal behavior and psychophysiological reactions. It causes misperceptions and over-reactions. It fuels the cycle of violence, leading to more violence and terror.
Robert G. Slater, Psychiatric Intervention in an Atmosphere of Terror, 7 Am. J. Forensic Psych.
5, 6 (1986).
53. Prior to their establishment of the SCF's, the defendants were also informed of the findings of Dr. Stuart Grassian, who had conducted the most detailed psychiatric assessment to date of prisoners in solitary confinement. Dr. Grassian had reported on 15 prisoners kept in isolation for varying amounts of time at a Massachusetts prison. He found that two-thirds of the isolated prisoners had become hypersensitive to external stimuli and about the same number experienced massive free floating anxiety. About half of the prisoners suffered from perceptual disturbances that for some included hallucinations and perceptual illusions. Half complained of cognitive dysfunction such as confused states, difficulty concentrating and memory lapse.
54. Prior to their establishment of the SCF's, the defendants were also aware that a Virginia researcher had found that 51% of the prison self-mutilation incidents she examined over the preceding year had taken place in isolation units. Anne Jones, Self-

Mutilation in Prison: A Comparison of Mutilators and Nonmutilators, 13 Crim. Just, and Behav. 290 (1986). The defendants knew before they created the SCF's that long periods in solitary confinement, like those imposed upon residents of the SCF's, would cause substantially more harm than would result from brief periods in segregation.
55. Prior to their establishment of the SCF's, the defendants also knew that the conditions and regimen which they were designing for the SCF's were illegal. They had been notified that Chief United States District Judge Henderson had held, in the 1995 federal case regarding the Pelican Bay State Prison in California, that psychological harm alone can constitute cruel and unusual punishment. Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cat. 1995).
56. Despite all this knowledge, the defendants knowingly and malevolently chose to subject the plaintiffs to cruel and unusual punishment by their establishment of the SCF's and their exposure to residents of the SCF's the conditions established and maintained therein. Defendants were and are deliberately indifferent to the serious mental health needs of the residents of the SCF's. Mental Health Care
57. Mental disorders are endemic at the SCF's. Although DOC initially provided by policy that no mentally ill prisoners would be transferred to an SCF, that policy has been abandoned, if it ever was in effect. Although DOC maintains no statistics on the number of prisoners who have been diagnosed with a mental illness, a substantial percentage of SCF prisoners have mental disabilities. At least forty prisoners identified by the defendants as having serious mental disorders were congregated in four adjacent housing pods at the PNM North facility, called collectively the "Alternative Placement Area" ("APA"). The defendants regard the residents of the APA to be disabled, but are not providing them with reasonable accommodations. APA residents are subjected to the

same conditions and arbitrary punishment imposed upon SCF residents who are not regarded by the defendants as mentally disabled.
58. During 1998, while under the oversight of the federal court in the Duran case, the defendants operated a special treatment program for mentally disabled prisoners who engaged in acting out behavior due to their mental disabilities. The program, called the "Diagnostic/Therapeutic Program ("DTP"), was administered by a licensed psychologist, provided intensive mental health treatment to its residents, was staffed by correctional staff who had received specialized training regarding working with prisoners with mental disorders and provided the patients in the program with clinical treatment plans designed to help the prisoners to learn more constructive ways to manage their mental disorders.
59. Shortly after the federal court relinquished its oversight over the mental health services provided to prisoners, defendant Perry and other defendants terminated the DTP. The same prisoners who had received the specialized treatment were then subjected to the rigors of the SCF and punished for the same behaviors which had previously been treated as symptoms of their disabilities when the DTP was in operation.
60. During 2002, counsel for the plaintiffs disclosed to counsel for the defendants that a number of persons confined in the SCF's had contacted them seeking representation in litigation regarding the SCF's. Shortly thereafter, the defendants relocated the APA to the SCF at SNMCF in Las Cruces, moving approximately thirty residents of the APA from PNM North, over two hundred and forty miles away from their counsel. Other APA residents were declared to no longer require special mental health services and, as a result, were left in PNM North to endure the SCF with no effort whatsoever to accommodate their known disabilities.

61. The defendants did nothing to prepare SNMCF for the sudden influx of thirty seriously disabled prisoners. No additional mental health staffing was arranged for SNMCF prior to the transfer there of more than thirty individuals already identified by the defendants as mentally disabled.
62. The conditions described in this Complaint make the SCF's incubators of psychosis. Defendant Perry knew before the SCF's were opened that mentally healthy prisoners would become mentally ill as a result of confinement under these conditions. With regard to prisoners who are already mentally disabled upon their arrival, the harsh and isolated conditions at the SCF's cause serious and sometimes catastrophic deterioration in their mental health. As a result, numerous prisoners at the SCF's hear voices and are obsessed with suicidal thoughts; others smear feces, swallow metal objects, cut their flesh, attempt to hang themselves, cut themselves and otherwise attempt to mutilate, harm or kill themselves. One prisoner who was in Level 6 at the SCF at SNMCF died recently after hanging himself and a. A former resident of the SCF at PNM is now brain dead as a result of an attempted suicide by hanging there. He had attempted to hang himself on a number of previous occasions at PNM.. The defendants then moved him to a cell more remote from the observation of staff and shortly thereafter he nearly succeeded in ending his life.
63. Despite the overwhelming and obvious need, mental health care at the SCF's is systemically inadequate. Because defendants have failed and continue to fail to provide adequate qualified staff and other mental health resources, the needs of the serious mentally ill have often been and continue to be ignored.
64. Inmates who request mental health assistance because they fear they will harm themselves are told by SCF employees to "go ahead and hurt yourself." When the overwhelmed mental health staff at the PNM SCF attempt to provide private therapy

sessions to disabled prisoners, correctional staff often will not bring the prisoner to the mental health workers' office for the needed treatment. Even when the prisoner is brought for needed treatment, correctional staff stand outside the office watching the prisoner, overhearing the therapy and frequently terminating the session prematurely so the correctional officer can perform other activities.
65. Inmates who suffer from mental disabilities are placed in an SCF as punishment by DOC officials and are discriminated against based on their mental disabilities.
66. Inmates with mental disabilities are not permitted to progress beyond the most restricted levels of the SCF program and lose hope that they can ever "progress" to a more humane environment.
67. SCF officials do not perform the periodic and timely checks on inmates with mental health conditions in the SCF's which are required by DOC policies, subjecting such inmates to a pervasive risk of harm from themselves and others in proximity to them.
68. Defendant Perry and other defendants deliberately chose to establish the SCF's without first requesting or obtaining sufficient resources to meet the serious psychiatric needs of the prisoners assigned to them. Defendants were and are deliberately indifferent to the serious medical needs of the plaintiffs and proposed plaintiff class. The Plaintiffs
69. Plaintiff John Ayers is an inmate with mental disabilities. He is diagnosed with manic depressiveon and bipolar conditionsdisorder. He has been on medications his entire adult life. He is in the APA and has been in the SCF at the PNM North facility since March 2002. Defendants placed him in the SCF due to his mental condition, rather than to

hold a due process hearing to determine whether he fit the criteria for placement in an SCF. While housed in the SCF, plaintiff Ayers has received wholly inadequate mental health treatment and has suffered retaliation and punishment from c. Corrections officers assigned to the SCF do not accommodate prisoners' disabilities due to their lack of training regarding the treatment and handling of prisoners with mental illness and/or mental disabilities. Plaintiff Ayers has not been told why he is assigned to the SCF, has filed grievances and appeals of his placement to Level 6 and has received no response to them from the defendants. He is a qualified individual with a disability. Plaintiff Ayers was one of the inmates recently transferred to the SCF at SNMCF.
70. Plaintiff David Ballejos is also an APA resident recently transferred to the SCF at SNMCF. He has been diagnosed by the defendants as having a severe personality disorder and an anxiety disorder. He was profoundly traumatized during the 1980 prison riot at the Santa Fe Penitentiary. He is in the APA and has suffered retaliation in the form of the loss of privileges, including the limited time for daily recreation allowed SCF inmates, attorney visits and telephone privileges, as a result of the arbitrary and capricious decision making of corrections officers assigned to the SCF when they do not like an inmate's behavior, whether or not that behavior is improper or a violation of any prison rule or regulation. Since plaintiff Ballejos' transfer to the APA, the defendants have deprived him of the eye glasses he needs to correct his vision so he can see words on a page. Plaintiff Ballejos has limited ability to read and write, but has suffered loss of his possessions and his opportunities for activities, referred to as " regression" in the SCF program, for declining to pursue educational courses in the SCF. His limited academic abilities make it impossible for him to succeed in the quizzes and writing assignments that are integral to the SCF program. He has been waiting for eight months for the return of his eye glasses and cannot see words on a page without them. He is stuck in the level to which he was originally assigned as a result of mental health issues, despite that, according

to the defendants' own criteria for advancement through the SCF system, mental health is not a factor in such determinations.
71. Plaintiff Ballejos has been punished for engaging in self-injurious behavior which is caused by his disabilities. He has further suffered from arbitrary and capricious decision making in the SCF insofar as the warden who makes determinations of guilt regarding misconduct reports is the same person to whom an appeal from such determination must be made. Plaintiff Ballejos is a qualified individual with a disability. His last classification before placement in the APA was Level 2, but he was arbitrarily sent from the Mental Health Treatment Center to Level 6 at the APA. He wrote an appeal of his placement to defendant Shanks, but has received no answer.
72. Plaintiff Ivan Garcia is assigned to the SCF at PNM North. He has been on level 6 of the SCF program since June 2002, when he was transferred to PNM from the Torrance County Detention Facility (TCDF), where he was in level 3 general population. The defendants also previously placed Mr. Garcia in an SCF. On the first occasion, in late 2000, Plaintiff Garcia was sent to the SCF at the PNM South Facility and placed on Level 5, even though the classification committee at the Guadalupe County Correctional Facility where he was housed had previously determined that he should remain in general population at that Level 3 facility. His initial placement into the SCF was arbitrary and capricious.
73. Plaintiff Garcia was subjected to the unlawful conditions at PNM South for eight months, at which time he was transferred to the TCDF in Estancia. During his incarceration there, Plaintiff Garcia had a record of clear conduct, having received no misconduct reports since December 2000. Nevertheless, in June 2002, the defendants again arbitrarily and capriciously placed Plaintiff Garcia into the SCF facility in Santa Fe, this time in Level 6 at PNM North. The only justification offered for the placement in Level 6

was that it was "appropriate due to summary of evidence." However, Mr. Garcia never received any real summary of any "evidence" against him, only being told that he was a "suspect in disruptive behavior, specifically participating in a hunger strike at TCDF." This "evidence" was based exclusively on uncorroborated "confidential information," apparently from another resident of TCDF. Plaintiff Garcia and eight other inmates were accused of starting a hunger strike to protest deplorable food at the facility. During the investigation of the one-meal-long hunger strike, Plaintiff Garcia was threatened by defendants with additional punishments if he did not provide information alleging that other inmates were involved in the hunger strike and conversely, he was offered inducements by them if he would inform on other inmates. When he refused to do so, he was transferred to the SCF in retaliation. Plaintiff Garcia was never the subject of a misconduct report for the alleged hunger strike. At no time has Mr. Garcia received sufficient information to rebut the rumor that he participated in a hunger strike.
74. The alleged behavior for which he was punished was that Mr. Garcia did not eat one meal while at TCDF, and that he encouraged other inmates to not eat that meal in protest of the conditions at the facility. That behavior, if it occurred, was protected First Amendment speech and punishment for it violated Mr. Garcia's federal rights.
75. Mr. Garcia attempted to appeal his placement into Level 6 via the only mechanism provided by the defendants. He wrote to the Director of Adult Institutions, John Shanks, and requested a reversal of his placement in Level 6. Two months later, after having received no response, Mr. Garcia again wrote to Shanks. At the time of the filing of this complaint, there has never been any response to his appeal.
76. Plaintiff Darren Lovato has a seizure disorder among other disabilities. He was sentenced to the custody of the DOC and in May 2000 was sent to Central New Mexico Correctional Facility (CNMCF) for classification. While there he was mistreated by

corrections officers in retaliation for an escape in 1992. He was then classified as an "escape risk" because of the 1992 escape and transferred to involuntary administrative segregation at PNM North. In July 2000 he was reclassified to SNMCF, but he was never transferred, remaining at PNM North. In August 2000, he left that facility to attend a court hearing. Upon his return to PNM after his court proceedings, the facility had been converted to an SCF and Plaintiff Lovato was required to remain therein because there was no place else to house him, despite the fact that no determination was ever made that he fit the criteria for placement in an SCF. Mr. Lovato was later given a notice informing him that because he was housed in an SCF, he would continue to be placed in an SCF. In June 2001, his custody level was lowered to medium custody because, by DOC's own regulations, the 1992 escape could no longer be used against him. Mr. Lovato was told he was being sent to the Long Term Care Unit (LTCU) at CNMCF for treatment for his seizure disorder, but he refused to consent to placement in the LTCU because of his prior mis-treatment at CNMCF by officials there. Mr. Lovato continues to suffer high levels of anxiety, depression and suicidal ideation following his mistreatment at CNMCF. After being told he could not refuse that placement, Mr. Lovato attempted to dissuade the DOC medical director involved in the decision from sending him to CNMCF, saying, "If you send me there, I'll hurt somebody." Since that time, that statement has been used by defendants as the justification for Mr. Lovato being placed in Level 5 at PNM South. He has not received proper mental health treatment since his placement at the SCF, in part because of frequent vacancies in those positions in the SCF. Despite policies that an inmate's request for mental health treatment is supposed to be confidential, Mr. Lovato is questioned by SCF guards as to why he wants to see a mental health care provider. Darren Lovato is a qualified individual with a disability.

77. Plaintiff Anthony Sandoval is a prisoner currently housed at PNM South. He is 30 years old. In 1998, he was sentenced to prison for burglary and resisting an officer. His projected release date is 2007.
78. Like all other prisoners at the SCF's, plaintiff Anthony Sandoval has been subjected to all of the conditions of confinement set forth herein, and has suffered physical and psychological pain and physical injury as a result.
79. Prior to his recent transfer to PNM South he was housed at the APA unit at PNM North. He is not receiving minimally adequate mental health care.
80. Representative entries in the diagnostic sections of DOC documents relating to Plaintiff Sandoval state: "Inmate has a history of receiving psychiatric and mental health services while incarcerated. Inmate reports several suicide attempts .... Inmate has a long history of psychotropic medications, psychiatric hospitalizations and mental health services.... Inmate has been placed on 15 minute suicide watch ... paranoid schizophrenic: delusions, hallucinations, disorganized thoughts; paranoia and negative symptoms ... seizure disorder ... some difficulty in functioning in a correctional environment ... depression ... polysubstance dependent ... . Inmate is experiencing auditory command hallucinations and is unwilling/unable to contract for safety ... . Inmate is depressed and scared refusing to go back to his cell, badly bruised .... Organic disorder ... schizophrenia and other psychotic disorders (schizophreniform disorder, schizoaffective disorder, delusional disorder, brief psychotic disorder, shared psychotic disorder)." The defendants are deliberately indifferent to Plaintiff Sandoval's serious medical needs and have not reasonably accommodated his disabilities.
81. Plaintiff Sandoval has been a victim of several excessive uses of force. As recently as September 11, 2002, Mr. Sandoval was beaten by correctional officers and

suffered injuries as they "placed him on ground" according to corrections department medical documents. Mr. Sandoval suffered a "large hematoma over his right eye brow." Other use of force forms in his file indicate he was also abused on October 16, 2001 and March 14,2001.
82. Plaintiff Sandoval has frequently been placed on suicide watch and "placed in his cell with a mattress, blanket, pillow, a set of yellows and socks."
83. Despite his well-documented mental health disorders, Mr. Sandoval has received numerous disciplinary citations for manifestations of his disability, resulting in the forfeiture of all of his good-time and the extension of his sentence as a result. In classification procedures, Mr. Sandoval has scored only 8 points based on his past institutional adjustment and prior convictions. Yet he has scored 139 points for 33 separate "disciplinary convictions" over the past 24 months.
84. In a recent institutional grievance, Plaintiff Sandoval requested his medication be given later in the day or that he be allowed to control the light switch in his cell. He complained that the early medication schedule resulted in waking up in the dark, early morning hours in his cell. He reported that waking up in the dark reminded him of when he was tortured as a child and locked in a closet for long periods of time. In his grievance, Mr. Sandoval requested relief from the darkened conditions in his cell because he frequently felt snakes crawling over his body in the dark. His grievance was denied because the investigator found that no individual light switch existed in the cell and that he had inspected Mr. Sandoval's cell and found no snakes inside it.
85. As a result of behavior the defendants arbitrarily deemed inappropriate, Plaintiff Sandoval has suffered the loss of visiting, telephone, recreation and other privileges without due process.

86. Plaintiff Alex Sosaya was committed to the custody of the defendants in 1999 after spending much of his minority in treatment facilities. Shortly thereafter, the defendants selected him to be among the New Mexico prisoners sent to the Wallens Ridge prison in Virginia, one of the most brutal prisons in America. After many months at the Wallens Ridge facility, Plaintiff Sosaya was returned to New Mexico. The defendants' transfer of Mr. Sosaya to Virginia impeded his ability to appear in court in New Mexico regarding a motion to reconsider his sentence which had been filed by his court appointed attorney. The defendants' placement of Plaintiff Sosaya in Virginia prevented him from obtaining a hearing before a state court judge in New Mexico on his lawyer's motion to vacate Plaintiff Sosaya's prison sentence and place him, instead, into a treatment program in California.
87. Eventually, Plaintiff Sosaya was returned to New Mexico, where his motion to reconsider his original sentence was heard in June 2001. After that hearing, the state court amended Mr. Sosaya's sentence, suspending the balance of it on the condition that he participate in the out-of-state treatment program.
88. Immediately after that decision, defendant Perry appeared before the news media to criticize the state court judge for amending Plaintiff Sosaya's sentence. Perry described Mr. Sosaya in inflammatory terms, and publicly called upon the judge to reverse his decision placing Mr. Sosaya on probation for the balance of his prison term. After defendant Perry's actions, the state court reversed itself, vacating its order suspending the balance of Mr. Sosaya's sentence. Perry's actions led to Plaintiff Sosaya's continued incarceration.
89. Shortly after his June 2001 court appearance, Plaintiff Sosaya was placed by defendants in the SCF in Santa Fe. On July 27, 2001, Plaintiff Sosaya was transferred by the defendants to the SCF at the SNMCF in Las Cruces. In the Las Cruces SCF, Mr.

Sosaya was improperly placed on Level 6 and was denied due process of law in the placement decision. While at the Las Cruces SCF, Plaintiff Sosaya successfully completed all of the requirements to progress from Level 6 to Level 5 by January 2002. Despite his successful completion of the Level 6 program, the defendants have kept Plaintiff Sosaya in Level 6, where he remains at this time.
90. In July 2002, Mr. Sosaya was returned to the SCF at PNM North, where he remains in Level 6. It has been over nine months since Plaintiff Sosaya successfully completed the requirements of the Level 6 program, yet the defendants arbitrarily and capriciously are keeping him on Level 6 and subjecting him to the restrictions on his liberty attendant to a Level 6 placement. Excessive Force
91. Excessive force is a common occurrence at the SCF's. This excessive force is directed disproportionately, although not exclusively, at prisoners who are mentally ill and/or who have mental disabilities. Due to the oppressive conditions of confinement and inadequate mental health services at the SCF's, prisoners become mentally ill, or their mental illness worsens. Custodial staff are not properly trained in the identification and management of mentally ill prisoners. Thus, when prisoners manifest their illness by selfharm or other behaviors, SCF staff often respond with force rather than with appropriate mental health interventions. Deprivation of Liberty and Property Without Due Process of Law
92. As a result of the foregoing conditions at the SCF's, prisoners are subjected to a regime of deprivation and enforced idleness. Plaintiffs are subjected to denial of privileges, restrictions on protected and discretionary activities, and limitations on educational and employment opportunities that are more onerous than those at any other

New Mexico facilities. Access to legal materials and legal counsel is more restricted at the SCF's than at other New Mexico prison facilities.
93. SCF prisoners are also subject to a unique behavior modification program, known as the "cognitive restructuring." Under that system, Plaintiffs are imprisoned under the most restricted and austere possible settings for a potentially unlimited amount of time. The only way for an inmate to transfer into a less restrictive "level" of incarceration is through his participation in an "Individualized Compliance Plan," which is based upon the program of "Cognitive Restructuring." The earliest possible completion period for an Individualized Compliance Plan is 367 days. The Cognitive Restructuring curriculum is quackery, not treatment, and substantially departs from prevailing professional standards in the field of psychology.
94. Cognitive Restructuring is a program by which inmates' progress through their Individualized Compliance Plans is conditioned upon the memorization, adoption and regurgitation of specific political and pseudo-psychological statements and positions that may or may not have any relevance to the inmates or to the crime for which they were sentenced. Inmates are "quizzed" to determine their adherence to the statements and concepts demanded by the Cognitive Restructuring program. The stated goal of the Cognitive Restructuring program is to "alter [inmates'] thinking and behavior patterns." In turn, the inmates' release from the SCF to a general prison population is conditioned upon the successful appearance of an "alteration" of their thinking and behavior. Education staff, not mental health professionals, decide whether inmates' "thinking patterns" have changed sufficiently.
95. Inmates routinely "fail" a Cognitive Restructuring quiz by answering honestly and candidly. One inmate was presented with a Cognitive Restructuring quiz that asked, in part, what role his drug abuse had played in leading to his incarceration. The

inmate - who had never done drugs - honestly answered that drug abuse had not played any role in his crime. The corrections personnel administering the quiz deemed this answer unacceptable, and the inmate was informed that he could not continue to advance through his Individualized Compliance Plan (as a pre-requisite to moving into a less restrictive setting) with such an answer. In order to gain access to a less austere setting, the inmate revised his answer to include a fictitious account of a non-existent drug abuse history. This answer was deemed acceptable by SCF staff and he was permitted to "progress."
96. Inmates are routinely forced to makes up stories in order to provide answers deemed acceptable by SCF staff - one inmate said he was in Viet Nam and made up a war story, after which he was complimented by SCF staff for his "honesty" - that inmate was never in Viet Nam.
97. Under the rules of the Cognitive Restructuring program, corrections officers assigned to the SCF make arbitrary and capricious decisions when they do not like an inmate's behavior. Corrections officers are authorized by the defendants to take away the plaintiffs' liberty and/or property whenever the correctional officer does not like the behavior of the prisoner. The plaintiffs routinely have their belongings taken away, their time out of their cells eliminated, their family visits prohibited and their already limited activities curtailed, all without due process of law.
98. The Cognitive Restructuring program uses aversive interventions to attempt to modify the behavior of individuals with disabilities, directly contravening the community standards embodied in § 43-l-15(A), NMSA 1978.
99. Correctional officers often write "behavior reports," alleging misbehavior by an inmate. Behavior reports circumvent due process requirements with respect to

disciplinary reports and classification decisions. Inmates' belongings and liberty are summarily taken from them by correctional officers. Behavior reports are taken into account when the defendants decide whether to "progress" or "regress" an inmate through the steps and levels of the program. Those decisions control the living conditions, the amount of liberty and the length of time that plaintiffs must spend in segregation, but the defendants deny them due process of law when making those decisions. The defendants afford the plaintiffs no appellate review of those decisions.
100. The defendants arbitrarily and capriciously deny the plaintiffs the good time credits available to them under state law. Those decisions effectively lengthen the plaintiffs' terms of incarceration and deny them liberty without due process of law. The defendants permit no appeal of the decisions that deny the plaintiffs their good time credits.
101. Inmates who have completed the Level System are often retained in the system and not told why. They also have no opportunity to appeal the decision to keep them in higher levels of custody.
102. Inmates have been "regressed" to prior steps within the Level System for retaliatory purposes or for harassment or for no reason at all other than SCF officials' dislike of or discriminatory animus toward them.
103. At least one inmate was threatened by defendant Lopez with the retaliatory return to the first step of the Level Program if he corresponded with the American Civil Liberties Union of New Mexico ("ACLU") after Lopez learned that the ACLU had sent correspondence to inmates inquiring as to conditions within the SCF's.

104. Other inmates who have completed the Level Program have been told they cannot leave it merely because of alleged affiliation with a gang.
105. Another inmate was threatened with a transfer to an out of state prison facility far from his family if he did not repeat the Level Program. This inmate has been locked down within an SCF for over two months without any documentation to support such punitive action.
106. Other inmates have been placed in the Level Program as a result of unsubstantiated reports of alleged gang affiliation or misconduct by confidential informants and without a hearing or any due process. Nine such inmates, including plaintiff Ivan Garcia, were transferred to the Level Program without any disciplinary report but instead on the unsubstantiated accusation of an informant that they had been involved in a hunger strike. The alleged hunger strike consisted of the inmates choosing not to eat for one meal in response to their disgust at the food provided to them. These inmates were placed in the Level Program as a method of intimidation and retaliation intimidation of other inmates who might choose to forego a meal and retaliation against these nine for having allegedly done so.
107. Other inmates are relocated between the North and the South facilities at PNM and/or between the SCF at PNM and the SCF at SNMCF, and when they are moved they are required to return to the beginning of the Level Program.
108. The Cognitive Restructuring program purportedly constitutes an effort to engage in the psychological and psychiatric project of addressing the mental and emotional roots of criminal behavior. It lacks, however, any colorable basis in existing psychological or psychiatric theory or practice, and is being administered by corrections personnel

lacking any mental health credentials or training. Defendant Perry's decision to initiate the program was deliberately indifferent to the serious mental health needs of prisoners.
109. The near impossibility of successfully completing an Individualized Compliance Plan is reflected in the fact that during the two years the program has been in place, very few of approximately 500 SCF inmates have ever "graduated" from the level system and thereby transferred into a less restrictive setting.
110. The very nature of the Cognitive Restructuring program discriminates against those inmates with mental and emotional disabilities, in that such inmates often do not have the emotional stability, mental capacity, cognitive ability or patience to jump through the various and often meaningless hoops provided by that program. Poor reading and writing skills prevent disabled prisoners from "progressing" through the program. Accordingly, inmates with emotional and mental disabilities will inherently spend a longer amount of time "locked in" at the most restrictive level of the level system.
111. The solitary confinement, denial of privileges, additional regulations and restrictions on protected and discretionary activities, the limitation on educational and employment opportunities, the lack of access to legal materials and legal counsel, the Level System, the Cognitive Restructuring program and other programs and conditions at the SCF's create conditions that corrode the mental health of those exposed to them, leading to the development of severe mental and emotional problems in inmates previously undiagnosed with such disorders. Likewise, those with mental and/or emotional problems before incarceration at the SCF's encounter rapid and severe exacerbation of those disorders due to conditions at the SCF's.
112. The solitary confinement, denial of privileges, additional regulations and restrictions on protected and discretionary activities, the limitation on educational and

employment opportunities, the lack of access to legal materials and legal counsel, the Level System, the Cognitive Restructuring program, and other programs and conditions at the SCF's impose an atypical and significant hardship on plaintiffs in relation to the ordinary incidents of prison life in the New Mexico prison system.
113. The actual and anticipated duration of the confinement at the SCF's under such conditions also result in an atypical and significant hardship on plaintiffs in relation to the ordinary incidents of prison life in the New Mexico prison system.
114. Placement at an SCF, for those inmates who are or will be eligible for discretionary release, will inevitably result in such inmates spending more time in confinement than had they not been placed in an SCF. This is because of the length of time required to complete the program at the SCF's, the stigma that attaches to any prisoner who has been confined at an SCF for any reason, and the resulting reluctance of defendants and other DOC officials to grant discretionary release to persons who have been confined at the SCF's.
115. The State of New Mexico intended that the SCF's be utilized to house only the most disruptive, violent, uncooperative and predatory inmates in the New Mexico prison system, who could not be safely housed in traditional maximum-security prisons in the State. However, the majority of plaintiffs do not meet these mandatory criteria for placement at an SCF and their placement at an SCF is arbitrary and capricious.
116. Other SCF officials have repeatedly engaged in similar behavior, entering inmate living pods and provoking inmates until those inmates act out, after which they are charged with misconduct and lose good time as a result. Such actions by SCF officials occurs in retaliation or to humiliate and harass inmates or for no reason at all.

117. The SCF's are unique in American prisons because they combine the features of "Supermax" prisons, which subject inmate to significant and atypical hardships which are not attendant to ordinary prison life, with the intended mind-altering Cognitive Restructuring program. This combination makes the SCF's distinct from other prison programs.
118. Plaintiffs have a liberty and property interest, protected by the Eighth and Fourteenth Amendments to the United States Constitution, in remaining out of an SCF.
119. Before being placed at an SCF, plaintiffs were denied hearings which complied with due process of law as required by Wolff v. McDonnell, 418 U.S. 539 (1974) and Bono v. Saxbe, 620 F.2d 609, 618 (7th Cir.1980), to determine that they met the criteria for placement at an SCF and that such decision was based on credible and reliable evidence. Moreover, the defendants make no administrative remedies available to inmates placed into an SCF. The defendants' grievance system will not address SCF placements. Classification appeals of SCF placements are not permitted. DOC policy only permits writing a letter to defendant Shanks as the sole mechanism for appealing an SCF placement. The Plaintiffs have sent such letters to defendant Shanks; he has never responded to any of them. General Factual Allegations

120. The conditions described in this Complaint result in gratuitous pain and suffering, and pose an imminent danger of serious illness, injury, or death to plaintiffs.
121. In imposing the conditions described in this Complaint, defendants have acted with deliberate indifference to plaintiffs' serious medical, health, and safety needs, and to the risk that plaintiffs will suffer serious mental illness, injury, or death. The conditions described herein are not reasonably related to legitimate penological objectives.
122. The conditions described in this Complaint are substantially likely to persist unless enjoined by this Court.
123. Each named plaintiff has suffered irreparable harm, including violations of his constitutional rights, emotional distress, psychological abuse, and other harms that entitle him to damages.
124. The plaintiffs' ability to develop adequate parole plans is impeded by their placement into an SCF, effectively lengthening their terms of incarceration.
125. The hardships inflicted upon the plaintiffs in the SCF's impede their ability to reintegrate into society upon the completion of their sentence of incarceration. At least one resident of an SCF engaged in behavior shortly after his discharge from the SCF to the free world which resulted in him being shot to death.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
126. Plaintiffs have exhausted such administrative remedies as are available to them, appealing classification decisions, writing letters to the Director of Adult Institutions and/or filing administrative grievances seeking such remedies as are available to them, which grievances have not been resolved within 90 days of their filing.

127. Under DOC policy #CD 150150 G, an administrative grievance that is filed and not resolved within 90 days of its filing is deemed complete for purposes of the requirement of exhaustion of administrative remedies.
CLASS CAUSES OF ACTION COUNT I - VIOLATIONS OF FIRST AMENDMENT RIGHTS
128. By subjecting plaintiffs to the Cognitive Restructuring program as a precondition for transferring out of the cruel and unusual isolation and restriction of the SCF facilities, defendants have violated and continue to violate Plaintiffs' rights under the First Amendment to the United States Constitution. This violation is threefold:
a. By only allowing inmates to advance through the Level Program upon their providing specific pre-approved answers to Cognitive Restructuring programming quizzes and assignments, Defendants are coercing Plaintiffs into engaging in political and personal speech against their will.
b. By only allowing inmates to advance through the Level Program upon their providing specific pre-approved answers to Cognitive Restructuring programming quizzes and assignments, Defendants are forcing Plaintiffs to abandon their First Amendment speech rights in return for a chance at freeing themselves from Defendants' violations of the inmates' Eighth Amendment rights against cruel and unusual treatment. The choice between constitutional violations is a Hobson's choice no individual should have to face.
c. By its terms the Cognitive Restructuring program seeks to coercively alter inmates "thinking patterns" and replace them with those patterns deemed acceptable by DOC. Defendants' effort to engage in amateur psychiatry substantially departs from prevailing professional

standards in the field of psychiatry is a state-sponsored regimen of mind control which strikes at the heart of Plaintiffs' First Amendment rights.
129. Defendants have violated plaintiffs' First Amendment rights by retaliating and/or threatening to retaliate against them for filing grievances within the State penal system, and by retaliating and/or threatening to retaliate against them for seeking to communicate with outside organizations such as the ACLU regarding prison conditions.
130. Inmates who file grievances within the SCF's are falsely identified by the defendants as "rats," or "snitches," which endangers the physical well being of those inmates, in retaliation for having filed grievances and as a method of intimidation to prevent or discourage other inmates from exercising their First Amendment rights to petition for redress of grievances.
COUNT II - VIOLATIONS OF EIGHTH AMENDMENT RIGHTS

131. By subjecting plaintiffs to the conditions of confinement set forth herein, with full knowledge of those conditions, defendants have acted, and continue to act, with deliberate indifference to plaintiffs' serious health and safety needs, and have violated the Eighth Amendment to the United States Constitution.
132. By subjecting plaintiffs to the systemically inadequate mental health care described herein, defendants have acted, and continue to act, with deliberate indifference to plaintiffs' serious medical needs, and have violated the Eighth Amendment to the United States Constitution.
133. By subjecting plaintiffs to the regime of excessive force described herein, defendants have acted, and continue to act, with deliberate indifference to plaintiffs' serious health and safety needs, and have violated the Eighth Amendment to the United States Constitution.
134. By subjecting plaintiffs to searches that are unrelated to prison security and are calculated to harass, defendants have violated the Fourth, Eighth and Fourteenth Amendments to the United States Constitution.
135. By subjecting plaintiffs to constant surveillance, including surveillance by female officers while undressing, showering, and using the toilet, defendants have violated the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution.
COUNT III - VIOLATIONS OF EIGHTH AND FOURTEENTH AMENDMENT RIGHTS
136. By transferring plaintiffs to SCF's without an appropriate hearing at which credible and reliable evidence is presented showing that each prisoner, on the basis of his prior documented conduct, meets the criteria - including mental health criteria - for placement at an SCF, and having done so in knowing violation of plaintiffs' protected due

process rights, defendants have violated the Eighth and Fourteenth Amendment to the United States Constitution.
COUNT IV - VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT
137. The solitary confinement, denial of privileges, additional regulations and restrictions on protected and discretionary activities, the limitation on educational and employment opportunities, the lack of access to legal materials and legal counsel, the Level System, the Cognitive Restructuring program, and other programs and conditions at the SCF's impose undue and disproportionate hardships on those inmates with mental and emotional disabilities. The programs and conditions at the SCF's violate plaintiffs' rights under the ADA by:
a. failing to reasonably accommodate the needs of inmates with mental and emotional disabilities, thereby denying them the opportunity to participate in or to benefit form the programs or services of state government, and discriminating against them on the basis of disability;
b. denying them aid, benefits or services that are as effective as those provided to non-disabled persons;
c. denying them an equal opportunity to obtain the same result, gain the same benefit or reach the same level of achievement as that provided to non-disabled persons;
d. failing to make reasonable modifications in policies and procedures when necessary to avoid discrimination against the plaintiffs and the plaintiff class on the basis of disability. COUNT V - VIOLATIONS OF THE REHABILITATION ACT

138. Plaintiffs reallege the allegations set forth above as if set forth fully herein.
139. Because the State of New Mexico, through the DOC, receives federal financial assistance, it is subject to the requirements of § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the regulations promulgated thereunder, 45 C.F.R. Part 84.
140. Section 504 prohibits recipients of federal financial assistance from discriminating against qualified individuals with handicaps. The defendants' violations of the ADA, set forth above, also constitute violations of Section 504 of the Rehabilitation Act.
141. The solitary confinement, denial of privileges, additional regulations and restrictions on protected and discretionary activities, the limitation on educational and employment opportunities, the lack of access to legal materials and legal counsel, the Level System, the Cognitive Restructuring program, and other programs and conditions at the SCF's impose undue and disproportionate hardships on those inmates with mental and emotional disabilities. The programs and conditions at the SCF's violate plaintiffs' rights under the Rehabilitation Act by:
a.. failing to reasonably accommodate the needs of inmates with mental and emotional disabilities, thereby denying them the opportunity to participate in or to benefit form the programs or services of state government, and discriminating against them on the basis of disability;
b. denying them aid, benefits or services that are as effective as those provided to non-disabled persons;
c. denying them an equal opportunity to obtain the same result, gain the same benefit or reach the same level of achievement as that provided to non-disabled persons;

d. failing to make reasonable modifications in policies and procedures when necessary to avoid discrimination against the plaintiffs and the plaintiff class on the basis of disability.
DAMAGES CLAIMS BY NAMED PLAINTIFFS
142. As a result of the statutory and constitutional violations set forth above, the plaintiffs have suffered extreme physical and mental pain and suffering. The plaintiffs also are having their terms of incarceration wrongfully increased by the actions of the defendants set forth above, denying them their liberty. Defendants have acted knowingly and with malice toward the plaintiffs, and/or with reckless disregard and/or deliberate indifference to the plaintiffs' rights, and further with both subjective and objective intent to violate the plaintiffs' protected federal constitutional and statutory rights.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that the Court: 1. Issue a judgment declaring that the actions of defendants described herein are
unlawful and violate plaintiffs' rights under the Constitution and laws of the United States; 2. Certify a class of plaintiffs as described herein above; 3. Permanently enjoin defendants, their subordinates, agents, employees and all others acting in concert with them, from subjecting plaintiffs and the plaintiff class to the illegal conditions set forth in this Complaint; 4. Permanently enjoin defendants, their subordinates, agents, employees and all others acting in concert with them, from placing in an SCF any inmate who has previously manifested any history of mental or emotional disability;

5. Require defendants to implement an effective periodic mental and emotional health screening program for all inmates placed in an SCF, so as to ensure that prisoners who develop mental and/or emotional disorders do not remain in SCF's;
6. Grant compensatory and punitive damages to each of the individual plaintiffs against the individual defendants who are sued in their individual capacities in sums to be determined at trial;
7. Grant plaintiffs their reasonable attorneys' fees, costs and expenses pursuant to 42 U.S.C. § 1988, the Americans with Disabilities Act and other applicable law; and,
8. Grant such other relief as the Court considers just and proper. Respectfully submitted,
NEW MEXICO CIVIL LIBERTIES FOUNDATION
ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & FRYE, LLP
Mark H. Donatelli 1215PaseodePeralta Post Office Box 8180 Santa Fe,NM 87504-8180 (505) 988-8004
Lawrence Kronen 122 Tulane Drive, S.E.
Albuquerque, New Mexico 87106 (505) 256-7690
Edwin Macy Morgan Law Office, Limited 500 Tijeras, NW Albuquerque, New Mexico 87102

(505) 842-1905
Edwin Macy Morgan Law Office, Limited 500 Tijeras,NW Albuquerque, New Mexico 87102 (505) 842-1905

Peter Cubra 122 Tulane Drive, S.E. Albuquerque, New Mexico 87106 (505) 256-7690

Cooperating Attorneys for the New Mexico Civil Liberties Foundation

Philip B. Davis

Co-Legal Director, American

Civil Liberties Union

of

New

Mexico

814Marquette,N.W.

Albuquerque, New Mexico 87102

(505)242-1904

David C. Fathi ACLU Foundation
Attorneys for Plaintiffs and the Plaintiff Class

National Prison Project of the
7 3 3 1 5 t h StreetN.W., Suite 620 Washington, DC 20005 (202) 393 4930

C:\CF\Supermaxcases\Complaint.final.final.wpd

 
 Docket: 02cv01438 - Ayers, et al. v. Perry, et al.

Page 1 of 6

United States District Court - District of New Mexico
Home | Links | Help Quick Links: Caption, Case Information, Docket, Related Cases

Total Entries: 32 Entries Per Page: 50

Case Title: Ayers, et al. v. Perry, et al.

Case Number: 02cv01438

Judge(s):

Presiding: District Judge Bruce D. Black

Referred: Magistrate Judge W. Daniel Schneider

Office:

Albuquerque

Docket Report
Monday, July 11, 2005
Page 1 of 1

Entered File Date On Docket Document

Description

Reference

06/20/2003 06/20/2003 30 ORDER FOR DISMISSAL by District Judge Bruce D. Black granting pltfs' unopposed motion for dismissal [29-1] does not effect claims in CIV-02170 BB/WDS dismissing case w/prejudice (cc: all counsel) [38k] [2 pages]
RE: [29] UNOPPOSED MOTION [43k] [3 pages] by pltfs for dismissal...

06/13/2003 06/16/2003 29 UNOPPOSED MOTION by pltfs for dismissal w/prejudice [43k] [3 pages]
RE: [30] ORDER FOR DISMISSAL [38k] [2 pages] by District Judge...

05/20/2003 05/20/2003 28 ORDER by District Judge Bruce D. Black granting pltfs' motion for appointment of Denise Sandoval as guardian ad litem for Anthony Sandoval [27-1] (cc: all counsel) [20k] [2 pages]
RE: [27] UNOPPOSED MOTION [33k] [2 pages] by pltfs for...

05/16/2003 05/19/2003 27 UNOPPOSED MOTION by pltfs for appointment of Denise Sandoval as guardian ad litem for Anthony Sandoval [33k] [2 pages]
RE: [28] ORDER by District Judge [20k] [2 pages] Bruce D. Black...

05/12/2003 05/13/2003 26 ORDER by Magistrate Judge W. Daniel Schneider pursuant to parties stipulation [25-1] a joint status report will be filed 6/6/03 and, if the case does not settle, the deadlines for responses on pending mtns

https://www.nmcourt.fed.us/usdcace?request=view&type=docket&casenum=02cv01438&t... 7/11/2005

Docket: 02cv01438 - Ayers, et al. v. Perry, et al.

Page 2 of 6

will be 6/20/03 (cc: all counsel) [18k] [2 pages]
RE: [0] STIPULATION by parties for additional...

05/06/2003 05/07/2003

-

STIPULATION by parties for additional status

report on 6/6/03 and for new deadline to file

responses to pleadings to 6/20/03

RE: [26] ORDER by Magistrate Judge W. Daniel...

[18k] [2 pages]

04/11/2003 04/11/2003 24 ORDER by Magistrate Judge W. D. Schneider; parties to file joint status report on 5/6/03 (cc: all counsel) [19k] [2 pages]

04/11/2003 04/11/2003 23 ORDER by District Judge Bruce D. Black denying motion for order to waive copy fee in this case [221] (cc: all counsel) [22k] [1 page]
RE: [22] MOTION and affidavit in [99k] [4 pages] support of by...

03/24/2003 03/25/2003 22 MOTION and affidavit in support of by movant Jesse L. Garcia for order to waive copy fee in this case [99k] [4 pages]
RE: [23] ORDER by District Judge [22k] [1 page] Bruce D. Black...

03/18/2003 03/19/2003 21 MEMORANDUM, OPINION, AND ORDER: by Document Chief Magistrate Judge Lorenzo F. Garcia granting Verification pltfs' motion to consolidate case CIV 02-1438 BB/WWD with CIV 02-170 MV/LFG [4-1] Lead Case 1:02-cv-1438 with member case 1:02-cv-170 for all purposes (cc: all counsel*) [17k] [4 pages]

RE: [4] MOTION by pltfs to consolidate case CIV...

[87k] [4 pages]

03/14/2003 03/17/2003 20 MINUTE ORDER: Case reassigned from

Document

Magistrate Judge Deaton to Magistrate Judge W. D. Verification

Schneider for discovery purposes (cc: all counsel*)

[6k] [1 page]

02/27/2003 02/27/2003 19 ORDER by Chief Magistrate Judge Deaton extending deadline for filing responses to any

Document Verification

pending mtns until 4/15/03 and that on 4/1/03 @

8:30 am, counsel shall arrange a conference call to

https://www.nmcourt.fed.us/usdcace?request=view&type=docket&casenum=02cv01438&t... 7/11/2005

Docket: 02cv01438 - Ayers, et al. v. Perry, et al.

Page 3 of 6

Magistrate Judge Svet (cc: all counsel*) [5k] [1 page]

02/18/2003 02/19/2003 18 ORDER by District Judge Bruce D. Black granting defts' unopposed motion to substitute party deft Joseph R. Williams for James Burleson [17-1] terminating as to deft James Burleson substituting deft Joseph R Williams (cc: all counsel) [32k]
[2 pages]
RE: [17] UNOPPOSED MOTION [50k] [3 pages] by defts to substitute...

02/14/2003 02/14/2003 17 UNOPPOSED MOTION by defts to substitute party deft Joseph R. Williams for James Burleson [50k]
[3 pages]
RE: [18] ORDER by District Judge [32k] [2 pages] Bruce D. Black...

01/21/2003 01/21/2003 16 ORDER by Chief Magistrate Judge Deaton granting pltfs' unopposed motion for an extension of time until 3/1/03 to respond to defts' motion for protective order [10-1] (cc: all counsel) [19k]
[1 page]
RE: [10] UNOPPOSED MOTION [57k] [3 pages] for Extension of time...

01/21/2003 01/21/2003 15 ORDER by District Judge Bruce D. Black granting pltfs' unopposed motion for extension of time until 3/1/03 to respond to defts' motion to dismiss compensatory damages claims [11-1] (cc: all counsel) [20k] [1 page]
RE: [11] UNOPPOSED MOTION [58k] [3 pages] for Extension of time...

01/21/2003 01/21/2003 14 ORDER by Chief Magistrate Judge Deaton granting defts' unopposed motion to extend due date for response to plft's mtn to consolidate action until 3/1/03 [12-1] (cc: all counsel) [23k] [2 pages]
RE: [12] UNOPPOSED MOTION [52k] [3 pages] for Extension of time...

01/17/2003 01/21/2003 13 ORDER by Chief Magistrate Judge Deaton Rule 16 Document

scheduling conference vacated and that counsel

Verification

shall report in writing by 2/28/03 as to the progress

of settlement (cc: all counsel*) [5k] [1 page]

RE: [3] INITIAL SCHEDULING [10k] [2 pages]

https://www.nmcourt.fed.us/usdcace?request=view&type=docket&casenum=02cv01438&t... 7/11/2005

Docket: 02cv01438 - Ayers, et al. v. Perry, et al.

Page 4 of 6

ORDER by Chief...

01/15/2003 01/16/2003 12 UNOPPOSED MOTION for Extension of time by defts until 3/1/03 in which to respond pltfs' motion to consolidate case CIV 02-1438 BB/WWD with CIV 02-170 MV/LFG [4-1] [52k] [3 pages]

RE: [14] ORDER by Chief

[23k] [2 pages]

Magistrate Judge Deaton...

RE: [4] MOTION by pltfs to consolidate case CIV...

[87k] [4 pages]

01/15/2003 01/16/2003 11 UNOPPOSED MOTION for Extension of time by pltfs until 3/1/03 in which to respond to defts' motion to dismiss compensatory damages claims [61] [58k] [3 pages]
RE: [15] ORDER by District Judge [20k] [1 page] Bruce D. Black...
RE: [6] MOTION by defts Robert [61k] [3 pages] Perry, John...

01/15/2003 01/16/2003 10 UNOPPOSED MOTION for Extension of time by pltfs until 3/1/03 in which to respond to defts' motion for protective order re discovery communication [8-1] [57k] [3 pages]

RE: [16] ORDER by Chief

[19k] [1 page]

Magistrate Judge Deaton...

RE: [8] MOTION by defts for protective order re...

[72k] [4 pages]

01/02/2003 01/03/2003

9

MEMORANDUM by defts in support of motion for

protective order re discovery communication [8-1]

[411k] [13 pages]

RE: [8] MOTION by defts for protective order re...

[72k] [4 pages]

01/02/2003 01/03/2003

8

MOTION by defts for protective order re discovery

communication [72k] [4 pages]

RE: [10] UNOPPOSED MOTION [57k] [3 pages] for Extension of time...

RE: [9] MEMORANDUM by defts in support of...

[411k] [13 pages]

12/20/2002 12/26/2002

7

MEMORANDUM by defts Robert Perry, John

Shanks, Ron Guillemette & James Lopez in support

https://www.nmcourt.fed.us/usdcace?request=view&type=docket&casenum=02cv01438&t... 7/11/2005

Docket: 02cv01438 - Ayers, et al. v. Perry, et al.

Page 5 of 6

of motion to dismiss compensatory damages claims for failure to allege a physical injury & consequently for failure to state a claim [6-1] [960k]
[28 pages]
RE: [6] MOTION by defts Robert [61k] [3 pages] Perry, John...

12/20/2002 12/26/2002

6

MOTION by defts Robert Perry, John Shanks, Ron

Guillemette & James Lopez to dismiss

compensatory damages claims for failure to allege a

physical injury & consequently for failure to state a

claim [61k] [3 pages]

RE: [11] UNOPPOSED MOTION [58k] [3 pages] for Extension of time...

RE: [7] MEMORANDUM by defts Robert Perry, John...

[960k] [28 pages]

12/20/2002 12/23/2002

5

MEMORANDUM by pltf in support of motion to

consolidate case CIV 02-1438 BB/WWD with CIV

02-170 MV/LFG [4-1] [110k] [5 pages]

RE: [4] MOTION by pltfs to consolidate case CIV...

[87k] [4 pages]

12/20/2002 12/23/2002

4

MOTION by pltfs to consolidate case CIV 02-1438

BB/WWD with CIV 02-170 MV/LFG [87k]

[4 pages]

RE: [21] MEMORANDUM,

[17k] [4 pages]

OPINION, AND ORDER:

by...

RE: [12] UNOPPOSED MOTION [52k] [3 pages] for Extension of time...

RE: [5] MEMORANDUM by pltf [110k] [5 pages] in support of motion...

12/17/2002 12/18/2002

3

INITIAL SCHEDULING ORDER by Chief

Magistrate Judge William Deaton Rule 16

Document Verification

scheduling conference set on 2/11/03 @ 10:00 am;

provisional discovery plan & IPTR due 2/3/03 (cc:

all counsel*) [10k] [2 pages]

RE: [13] ORDER by Chief Magistrate [5k] [1 page] Judge Deaton...

11/25/2002 11/26/2002

2

ANSWER by defts to complaint [1-1] [701k]

[27 pages]

https://www.nmcourt.fed.us/usdcace?request=view&type=docket&casenum=02cv01438&t... 7/11/2005

Docket: 02cv01438 - Ayers, et al. v. Perry, et al.

Page 6 of 6

RE: [1] NOTICE OF REMOVAL [1588k] [67 pages] from 1st Judicial...

11/15/2002 11/18/2002

-

TRANSMITTAL of State Court documents

(complaint & summons)

11/14/2002 11/18/2002

1

NOTICE OF REMOVAL from 1st Judicial District

Court Case Number: 1:02:CV:2294 w/state court

complaint (referred to Chief Magistrate William

Deaton) [1588k] [67 pages]

RE: [2] ANSWER by defts to complaint [1-1]...

[701k] [27 pages]

11/14/2002 11/18/2002

-

FILING FEE PAID: on 11/14/02 in the amount of

$150.00, receipt #: 45486.

Key:

Symbol

Description

File Date

Date the document was filed with the clerk

Entered On Docket Date the document was "entered on the docket" by the clerk's office

Document

Number assigned to the document by the clerk's office

Description

Title of the document and "docket entry" describing the document

Reference

Document Verification and other information

Quick Links: Caption, Case Information, Docket, Related Cases Home | Links | Help
Please mail any comments to the ACE Development Team.

Monday, July 11, 2005
ACE-2-3-8

https://www.nmcourt.fed.us/usdcace?request=view&type=docket&casenum=02cv01438&t... 7/11/2005

 
 STATE OF NEW MEXICO

Corrections Department

BILL RICHARDSON , Governor

Post Office Box 27116 Santa Fe, New Mexico 87502-0116

(505) 827-8709 Joe R. Williams, Secretary of Corrections

Phone: Fax Number: (505) 827-8220

May 20, 2003
Mark Donatelli, Esq. 1215 Paseo de Peralta P.O. Box 8180 Santa Fe, New Mexico 87504-8 180
Peter Cubra, Esq. 122 Tulane Drive, SE Albuquerque, New Mexico 87106
Sophie Cooper, Esq. Public Defender*s Office 505 Central Avenue, NW Albuquerque, New Mexico 87102
Jane Yee, Esq. Public Defender*s Office 505 Central Avenue, NW Albuquerque, New Mexico 87102
RE: Ayers, et al., V. Perry, et al., No. CIV 02-143 8 BB/WWD; Sandoval v. Lopez, et al., No CLV 02-170 MV/LFG; Amin Wali (William McGhee) v. LeMaster, D10l CS200100002; Andrew Ferguson v. LeMaster, D101 CS2001000192; Andrew Ferguson v. LeMaster, D101 CS20000001 5; Anthony Hamilton v. LeMaster, D101 CS20001156; Augustine Granados v. LeMaster, CV200202178; Chris Baca v. LeMaster, Dl01 CS20020028; Christopher Plouse v. LeMaster, D101 CS20000904; Dennis Carabajal v. LeMaster, D101 CS200 1000460; Edward Garcia v. LeMaster, D101 CS20020020; Fernando Hemandez v. LeMaster, D101 CS200 1000454; Frankie Gonzales v. LeMaster, CS200200016;

Page 1 of 20

Freddie Sanchez v. LeMaster, D101 CS200200047; Huberto Briones v. LeMaster, D101 CS2002000063; James Gordon v. LeMaster, D101 CS2001000003 Jared Dukeminier v. LeMaster, D101 CS20020015 Jesse Trujillo v. LeMaster, D101 CR20001177; Jessie Saenz v. LeMaster, CV200202111; Joe Saavedra v. LeMaster, D101 C22001000005; Johnny Pisio v. LeMaster, D101 CR20000903; Joseph Barboa (Sandoval) v. LeMaster, D101 C2200100021; Joseph Herrera v. LeMaster, CV200201852; Leo Ortega v. LeMaster, D101 C220010648; Leo Salazar v. LeMaster, CV200202107; Leonard Romero v. LeMaster, CR200000647; Leonard Shelby v. LeMaster, D101 C220010013; Les Dotson v. LeMaster, CV200200071, CV200201809; Manuel Maldonaldo v. LeMaster, D101 C2200100026; Marcos Lucero v. LeMaster, D101 C22001000455; Marcos Pinon v. LeMaster, C2200100544; Martin Chacon v. LeMaster, CV200200443; Michael Guzman v. LeMaster, D101 CS2002-0054; Richard Herrera v. LeMaster, D101 C22001000453; Ricardo Rodriguez V. LeMaster, D101 CS2001000456; Robert Lara v. LeMaster, D101 C22001000451; Sebastian Becleston v. LeMaster, CS-200100025 (SF); Shawn Ural v. LeMaster, D101 CS200200051; Steve Sanchez v. LeMaster, D101 CS200200059 Theodore Rios v. LeMaster, D101 CV200201814; Thomas Martinez v. LeMaster, D101 CS200200023 Travis McGuire v. LeMaster, D101 CS200200021 Vincent Zurla v. LeMaster, CS200200044
Dear Mr. Donatelli, Mr. Cubra, Mr. Bigelow, Ms. Cooper and Ms. Yee:
This letter is to document our agreement with regard to the disposition of the abovereferenced cases. If you agree that I have accurately set out our agreement, please indicate by signing at the end of the letter.
At the outset we agree and acknowledge that this agreement constitutes the exchange of good and valuable consideration.
1. In exchange for good and valuable consideration, the New Mexico Corrections Department (hereafter “NMCD” or “Department”) agrees to do the following:
A. Mental Health
1. Expand the APA
Page 2 of 20

a.

Designate 96 total APA beds, which will be at SNMCF until at least

the end of calendar year 2003. The Department will proceed with all

deliberate speed to make 96 beds available at the APA. Said 96 beds

will be in place no later than 180 days after this agreement is signed.

It must be noted that some renovation is required to these cells before

they are suitable for housing APA inmates. Sometime after January

2004, the APA will be moved to CNMCF.

b. Dedicate a total of 5 mental health clinicians to provide mental health

services to the expanded 96-bed APA. The rate will be one mental

health clinician for each 20 (or fewer) inmates [96 / 5 = 19.2]. The

Department will proceed with all deliberate speed to create, convert,

and hire this staff. It must be noted that some delay will result from

the need to obtain the necessary approvals from the State Personnel

Office. The staff will be in place no later than 180 days after this

agreement is signed.

c.

Add 20 hours of psychiatry, per week, at SNMCF to serve the APA

inmates. Effective no later than August 1, 2003.

2. APA Screening Criteria

a. Policy language will be added that once an inmate has been placed in the APA, for any reason, the inmate will remain in the APA for at least 90 days after placement.
b. NMCD will add policy language that, once an inmate who has been in the APA no longer meets the criteria for placement in the APA, said inmate may continue to be housed in the APA if, in the clinical judgment of the APA Mental Health Director, the inmate would suffer significant mental deterioration if returned to Regular Level V/VI housing; provided the Director of Adult Prisons shall have the authority to disapprove such retention.
c. Implement revised criteria for APA eligibility, as set forth in the following chart, to include a higher GAF score for APA eligibility, increase to 60 from the current 50.
d. Inmates in Levels V and VI who meet the following criteria will be transferred to and retained in the APA, so long as they continue to meet the criteria for APA housing.

#

Criteria

1

Schizophrenia and other psychotic disorders (schizophreniform disorder, schizoaffective

disorder, brief psychotic disorder, shared psychotic disorder, psychotic disorder due

to a general medical condition, substance-induced psychotic disorder, psychotic

disorder NO S, psychotic features due to any Mood D isorder)

2

major depression (current) with GAF below 60

3

History of major depression within last six months that is currently in remission with a

current GAF of 60 or below

Page 3 of 20

4

Bipolar I disorder, Bipolar II disorder, Bipolar disorder NOS

5

Dementia, Delirium, Amnestic Disorder

6

Mental retardation (by DSM-IV criteria) or an IQ of 70 or below and demonstrated

impairment in at least two (2) areas of adaptive behavior

7

Personality Disorder with significant and/or chronic self-injury within the past 12 months

(include all bona fide suicide attempts)

8

Anxiety Disorders with a GAF of 60 or below

9

Global Assessment of Functioning (GAF) scale of 60 or less, with any DSM-IV Axis I or

II diagnosis

10

History of bona fide suicide attempts with the last year

11

Cyclothymia, Dysthymia, Depressive Disorder NOS, Mood Disorder secondary to a

medical condition, or substance induced Mood Disorder with a GAF of 60 or below

12

Cognitive Disorder or Mental Disorder related to a medical condition or cognitive disorder

NO S with a GAF below 60 (substantiated by neuro-psychological testing)

13

Personality Disorder with psychotic decompensation and/or serious affective symptoms

with a GAF of less than 60

14

Bona fide active suicidal ideation within last six months

15

Inmates that discontinue psychiatric or mental health treatment against medical advice and

continue to have a GAF of 60 or below

16

Other exceptional cases approved by the Clinical Director of Psychiatry

3. Neuropsychological Testing
a. Establish a testing referral protocol for neuropsychological testing. The protocol will provide for the following: establish criteria for determining who needs testing; develop a specialized referral form for neuropsychological testing; and, include a wider range of screening and assessment instruments, to be identified by NMCD. The Department will implement either the previously utilized Phase I, II, III testing protocol or another protocol acceptable to the mental health monitor. Said proposed protocol will be submitted by NMCD to the mental health monitor within 30 days of signing this agreement. 1) Inmates in Level V/Vl who engage in self-injurious behavior or assaultive behavior will be assessed by a mental health professional to determine whether neuropsychological testing is appropriate; however, not all such inmates will necessarily receive neuropsychological testing. Neuropsychological testing will be based upon screening, identification, and referral.
Page 4 of 20

2) For APA inmates, NMCD mental health staff will provide clinically indicated neuropsychological assessment, screening, and testing consistent with the testing referral protocol.
b. Train mental health staff at Level V and Level VI facilities to identify inmates who meet the criteria.
c. NMCD will provide such testing through either contract services or Department staff qualified to conduct such testing.
4. Continuity of care for inmates released from the APA
a. Add language to NMCD policy to require APA Mental Health staff to telephonically staff each APA release with the Mental Health Director or Clinical Supervisor at the receiving facility. The purpose of the telephonic staffing is to develop or review the treatment plan for the inmate that will either be continued or put in place upon arrival at the receiving facility and to coordinate mental health treatment with the receiving facility, and the staffing will be documented in the mental health file in a Documentation Note. If the mental health professionals at the sending and receiving facilities disagree as to the treatment plan, the decision of the mental health professional at the sending facility will control for this initial treatment plan. Mental health staff at the receiving facility will implement the plan, as written to include frequency of treatment sessions, up until the time of the next regularly scheduled review. If, prior to the next regularly scheduled review, the treating clinician at the receiving facility, in his or her clinical judgment, believes a reduction in mental health services is indicated, the case will be referred to the facility Mental Health Director and/or Clinical Supervisor. A telephone staffing will occur between the sending and receiving clinicians and the facility Mental Health Directors and/or Clinical Supervisors before making such reduction in order to discuss the proposed change in treatment. If the mental health staff at the sending and receiving facilities do not concur on the reduction of treatment, the receiving Mental Health Director and/or Clinical Supervisor will make the final determination. Provided, however, once the first regularly scheduled review has been conducted at the receiving facility, the receiving facility mental health staff may amend the treatment plan, including a reduction of services, without consulting the sending facility.
b. Add language to policy that the Unit Management Team at the APA convene an exit planning meeting for each inmate leaving the APA, regardless of whether the inmate is transferred to Regular V/Vl Housing or transferred to Level IV or III. The Unit Management Team will address housing, programming, mental health, and educational issues. In the event of emergency transfers to the Long Term Care Unit or to the Mental Health Treatment
Page 5 of 20

Center, the Unit Management Team will not need to convene an exit planning meeting. c. As to any inmate who is referred for placement in Level VA/I, interim or otherwise, if that inmate was previously released from the APA within the immediately preceding 12 months, said inmate shall be screened for APA placement and said screening, regardless of the result, shall be referred to the NMCD Chief Psychiatrist or Mental Health Bureau Chief for determination as to whether the inmate meets criteria for placement in the APA. An inmate who is identified as meeting the criteria for placement will not be held in interim Level VA/I for more than 30 days before transfer to the APA.
5. Addiction Services
NMCD will offer, within existing resources, addiction services in Level V and
in the APA to inmates with co-occurring disorders. B. Lega1 Access
1. Ensure that the Rules of Procedure for State and Federal court, including local rules, are available to inmates through facility paralegals.
2. Arrange for facility paralegals to attend training offered by the Public Defender, coordinated with NMCD Office of Legal Services. A second training/meeting with facility paralegals and including the Public Defender will be scheduled approximately six months after the initial training has occurred. The purpose of the meeting is to review any issues that may have come to light during that time period. The second meeting will be coordinated through the NMCD Office of Legal Services.
3. Conduct retraining of facility staff regarding no flat 15-minute time limit on attorney phone calls.
4. Charge inmate photocopy charges of 20 cents per page for qualified legal claims.
5. In the event an inmate is found in possession of another inmate*s legal materials and those materials are confiscated, NMCD will make a reasonable effort to return the legal materials to the inmate to whom they belong.
6. Inmates will be allowed to retain legal materials with regard to cases that they intend to file in the near future; provided the type and amount of these legal materials otherwise are in conformance with NMCD policy.
Page 6 of 20

C. In mate witnesses in disciplinary hearings
1. Change to Disciplinary Policy
a. The charged inmate will be advised that he may prepare written questions for proposed inmate witnesses, such questions to be prepared prior to the hearing.
b. Once the disciplinary hearing has convened, such written questions will be submitted by the inmate or the inmate*s representative to the Hearing Officer. The written questions will be made a part of the record.
c. The Hearing Officer will determine: the relevancy of the questions submitted; whether the inmate is reasonably available; and, whether the inmate would jeopardize safety (e.g., victim, etc.).
1) If the Hearing Officer determines the questions will not be asked, for example the questions are deemed irrelevant, or the inmate is not reasonably available, or questioning the inmate would jeopardize safety, etc., the Hearing Officer will document on the record the rationale for such determination.
2) If the Hearing Officer determines the questions will be asked, for example, the questions are deemed relevant, and the inmate is reasonably available, and questioning the inmate will not jeopardize safety, the Hearing Officer will either pause the hearing or grant a continuance in order to obtain the witness response to the written questions.
3) An inmate witness in Level V or Level VI or otherwise in segregation will not be brought to the hearing; the Hearing Officer will go to the inmate if the inmate is reasonably available. a) The Hearing Officer will tape record the reading of the question(s) and the inmate witness response. b) The tape recorded testimony will be maintained.
4) Inmate witnesses classified as Levels I, II, III or IV and housed at a Level I, II, III, or IV facility who are reasonably available, whose presence would not jeopardize their safety or the safety of the institution, and who are to respond to relevant questions shall ordinarily appear in person before the Hearing Officer to respond to the written questions.
5) The Hearing Officer will allow for follow up questions as identified in the Implementation Plan, paragraph 2.d below.
6) NMCD will maintain the tapes of disciplinary hearings for a period of one year after the hearing.
2. Implementation Plan
Provide training for Hearing Officer addressing new requirements. The Public Defender will have the opportunity to participate in the provision of
Page 7 of 20

training. NMCD and the Public Defender will coordinate the training content in advance.
a. Evaluate “relevancy” and documenting determinations; b. Use of “pausing” or “continuances” of hearings and documenting
such; c. Value of Hearing Officer having first hand information from
inmate witnesses as opposed to reliance upon written statement; d. Hearing Officer will make reasonable efforts to identify logical
follow up questions, based upon the responses of the inmate witness, and not limit the questioning to those submitted in advance by the charged inmate; and, e. Factor such testimony into the Hearing Officer decision.
3. Restoration of Good Time Plan
a. NMCD will identify inmates who are currently incarcerated and who were housed in Level V or Level VI as follows: 1) Level V- July 1, 2000 to date; 2) Level VI — PNM: March 1, 2001 to date; and, 3) Level VI — SNMCF: September 1, 2001 to date.
b. NMCD will identify disciplinary reports for any identified inmates (as per I, a-c, above) that meet the following criteria: 1) Found guilty of a major level report (Category A or B); 2) With a forfeiture of good time; and, 3) The record shows that inmate witness(es) were requested by the inmate and were denied for any reason.
c. For such reports, NMCD will review to determine the validity of denying these witnesses 1) Examples of valid: requested inmate witness no longer in system or no longer at the facility (not reasonably available); requested inmate witness was not an actual witness to the event, and is being called as a character witness (irrelevancy); the requested inmate witness is the victim in the case and it is presumed calling the victim as a witness would jeopardize his safety. 2) Examples of invalid: requested inmate witness denied because the disciplinary officer already interviewed him; requested inmate witness denied because the witness is Level V or Level VI and, on that basis, was deemed to be not reasonably available.
d. If the reason for denying the inmate witness(es) is determined to be invalid NMCD will do the following: 1) Determine whether the report is for a violent or non-violent offense. 2) Determine whether the report is a substantial basis for placement or retention in Level V or VI. A placement-
Page 8 of 20

related offense is an offense that constitutes the primary or substantial basis for the placement or retention in Level V/VI; and not merely an offense that is provided as background information. 3) If the report is for a non-violent offense and is not related to the inmate*s placement/retention in Level V/VI, the report will be dismissed and expunged from the inmate*s record, forfeited good time will be restored, and any good time the inmate may otherwise have been eligible to earn will be awarded. 4) If the report is for a violent offense or is related to the inmate*s placement/retention in Level V/VI. NMCD may choose to either: a) Dismiss the report as noted above and expunge from
the inmate*s record, restore forfeited good time, and award any good time the inmate otherwise have been eligible to earn. OR b) Hold a new hearing, at which the charged inmate may pose questions to previously identified inmate witnesses which were denied by the Hearing Officer and such denial has been identified as invalid. e. NMCD will not be required to hold a new hearing, as described in ¶4.d.2, if the inmate witness is no longer in the custody of the Department (that is, incarcerated in one of the prisons) therefore the report will stand. f. Violent offenses are defined as the following: A. 1 Murder A.2 Manslaughter A.3 Hostages/kidnapping A.4 Arson A.5 Battery A.6 Assault or battery with a weapon on another person A.7 Assault or battery without a weapon on staff or
employee A.8 Assault or battery without a weapon on inmate A.9 Riot A. l0 Inciting a riot A. 11 Escape with force A. 12 Escape without force A. 13 Possession of escape paraphernalia A. 14 Threats A.21 Sexual Misconduct A.22 Rape
D. Cognitive Education
1. Changes to Policy: NMCD will make the following changes to the link
Page 9 of 20

between Cognitive Education and Step/Level movement, and will revise Level V and Level VI policy to reflect such, in writing.
a. Inmates will be assigned to cognitive education by classification committee and will be expected to participate, consistent with any other program assigned by committee. Failure to participate in the assigned cognitive education program will be considered in the award of good time, in the same manner as other assigned programming.
b. Completion of cognitive education will not be a prerequisite for Step progression or Level completion.
c. Failure to complete cognitive education lessons will not be used, in whole or in part, for Step retention or Step regression, or for Level retention or regression.
d. In the event that an inmate is retained or regressed in Step based upon inappropriate behavior, he will continue his cognitive education, but will not be required to regress in lessons or repeat lessons already completed.
e. A completed lesson that is unresponsive or incomplete will be subject to one mandatory re-do. The educator will state why the lesson does not comply with instructions. After the mandatory redo, regardless of content or completion, the inmate will be moved to the next lesson.
2. NMCD will consider implementing the Recidivism Reduction program at all Level V and Level VI facilities, in addition to cognitive education.
3. NMCD will award unearned good time, if that good time was withheld due to failure to provide the “correct” answer on cognitive education homework. The determination of NMCD is final.
4. Mental health and education will conduct program cross-training at Level V/VI facilities as to the Cognitive Education Program.
E. Conditions of Confinement
1. Residential Treatment Beds
a. NMCD has current funding to build a 102-bed Mental Health Treatment Center at Central New Mexico Correctional Facility in Los Lunas, New Mexico. NMCD mental health staff will determine the best use of any increased beds.
b. Seek funding for Phase II of the new MHTC in the 2004 legislative session; NMCD mental health staff will determine the best use of any increased beds.
2. Crisis bed at PNM
Page 10 of 20

Create a crisis bed at PNM by converting one of the three medical holding cells to a “stripped” cell to eliminate hang points and other items that might be a danger to the inmate.
3. Video visiting:
a. As the general rule, video visiting will be eliminated and replaced with face-to-face, noncontact visiting for Level V/VI inmates. Exceptions to noncontact visiting will be made on a case by case basis: inmate is deemed to be too* ~dangerous; at the request of the inmate; at the request of the family; etc.
b. NMCD will proceed with all deliberate speed to construct noncontact visiting areas. It must be noted that some delay will be required to obtain the necessary approvals, to comply with the required procurement regulations and to complete the construction. These visiting areas will be completed no later than 180 days after this agreement is signed.
4. Recreation:
a. NMCD will implement outdoor recreation at PNM South and SNMCF (already available at PNM North) for Level V/VI inmates.
b. NMCD will commit to placing one recreational item in each individual recreation area. For example: basketball hoop, dipbar, chin up bar, etc.
c. NMCD will proceed with all deliberate speed to construct these recreation areas. It must be noted that some delay will be required to obtain the necessary approvals, to comply with the required procurement regulations, and to complete the construction. These recreation areas will be completed no later than January 1, 2004, unless the environmental study required by the federal Environmental Protection Agency or other federal agency indicates an environmental impact and thereby delays the construction project.
5. Other changes to the Table of Services

Area
Cassettes
Photos

Level V (5)
Increase number of cassettes allowed at steps 4 and 5 • Step 4: 10 cassettes • Step 5: 10 cassettes
Increase number of photos allowed at every step • Step 1: 7 photos • Step 2: 10 photos • Step 3: 12 photos • Step 4: 16 photos • Step 5: 20 photos

Level VI (6)
Increase number of cassettes allowed at privilege level 4 and 5 • Step 4: 10 cassettes • Step 5: 10 cassettes
Increase number of photos allowed at privilege level 2 through 5 • Step 2: 4 photos • Step 3: 5 photos • Step 4: 16 photos • Step 5: 20 photos

Page 11 of 20

Correspondence
Canteen Religious Items Tier time In house hobby Visiting
Telephone
Personal reading materials Writing paper

Increase number of personal letters allowed to be retained at every step • Step 1: 7 letters • Step 2: 10 letters • Step 3: 12 letters • Step 4: 16 letters • Step 5: 20 letters Inmates may receive unlimited correspondence; however, may retain in their possession only the number up to the specified maximum. Once the maximum is reached, the inmate must send home (at own expense) or destroy correspondence that exceeds the maximum allowable.
Increase dollar amount allowable canteen at steps 2 and 3 • Step 2: total of $20 week • Step 3: total of $25 a week
Increase allowable number of religious items and religious books at all steps • Steps 1-5: 2 small religious items and 2
religious books
ADDED to TOS (actual activity had already been in place) one hour a day, five days a week for Steps 4 and 5
ADD for Steps 4 and 5: 1 roll of cellophane for paper craft; 12 colored pencils not to exceed 4 inches in length; 12 pastels
Non-contact visiting as a general rule (as opposed to video visiting) at all steps; noncontact visiting will be implemented immediately at PNM North and will be implemented at PNM South and SNMCF upon completion of non-contact visiting areas. An inmate may be removed from non-contact visiting and placed on video visiting on a case-by-case basis, such removal to meet newly developed policy criteria. All visits have been changed to 2hour blocks in order to accommodate a greater number of overall visits.
Increase frequency and duration of allowable calls at all steps • Step 1: One 5-minute call during
orientation • Step 2: Six 20-minute calls per month • Step 3: Eight 20-minute calls per month • Step 4: Nine 20-minute calls per month • Step 5: Ten 20-minute calls per month
Increase at steps 1, 2 and 3 • Step 1: 1 book • Step 2: 3 books • Step 3: 4 books
At all steps, increase from a maximum of 5 sheets of paper to 10 sheets of paper. Add language that paper is replenishable up to a maximum of 10 sheets, unless paper is being used inappropriately.

Increase number of personal letters allowed to be retained at privilege level 2 through 5 • Step 2: 4 letters • Step 3: 5 letters • Step 4: 16 letters • Step 5: 20 letters Inmates may receive unlimited correspondence; however, may retain in their possession only the number up to the specified maximum. Once the maximum is reached, the inmate must send home (at own expense) or destroy correspondence that exceeds the maximum allowable.
No change
Increase allowable number of religious items and religious books at steps 1 - 3 and at privilege levels 4 and 5 • Steps 1 - 5: 2 small religious items
and 2 religious books
None
ADD for Level V privilege levels 4 and 5, and for Level VI privilege level 4/5 privileges: 1 roll of cellophane for paper craft; 12 pastels
Non-contact visiting as a general rule (as opposed to video visiting) at all steps; non-contact visiting will be implemented immediately at PNM North and will be implemented at PNM South and SNMCF upon completion of non-contact visiting areas. An inmate may be removed from non-contact visiting and placed on video visiting on a case-by-case basis, such removal to meet newly developed policy criteria. All visits have been changed to 2-hour blocks in order to accommodate a greater number of overall visits.
Increase allowable calls as follows: • Step 2: Two 20-minute calls per
month • Step3: Four 20-minute calls per month • Privilege Level 4: Nine 20-minute
calls per month • Privilege Level 5: Ten 20-minute calls
per month
Increase at steps 1, 2 and 3 • Step 1: 1 book • Step 2: 2 books • Step 3: 3 books
At all steps, increase from a maximum of 5 sheets of paper to 10 sheets of paper. Add language that paper is replenishable up to a maximum of 10 sheets, unless paper is being used inappropriately.

Page 12 of 20

F. Additional Education Pro2rams
The following “self-help” type programming will be implemented via ETV and supported by appropriate work book materials. The following programs will be voluntary. Enrolled inmates will have lessons handed out and picked up by education staff. NMCD anticipates that these programs will be implemented during the 2nd calendar quarter of 2003.
1. Family Reunification (purchased curriculum) 2. Anger: Creating New Choices (purchased curriculum) 3. Success Stories: Family Issues and Support Systems (purchased
curriculum, based upon actual inmate success stories from former inmates) 4. Success Stories: Work, Anger, and Self-Esteem 5. Success Stories: Release Day 6. Change is an Inside Job (purchased curriculum; based upon “Seven Habits of Highly Effective People”) 7. Building a Trust Account (purchased curriculum; based upon “Seven Habits of Highly Effective People”)
G. Policy issues
The Level V and/or Level VI policy (as appropriate), will be revised
1. Appeal of placement/retention
a. Appeal of placement Level V and Level VI: revised policy will add language for a formal appeal process, such appeal to be reviewed and acted upon by the Director of Adult Prisons. The inmate will be advised of his right to appeal by having the appeal language read to him verbatim, and the Department will develop an appeal form to be used for this purpose.
b. Appeal of Level VI retention: revised policy will add language for a formal appeal process, which may be utilized by the affected inmate in the event a Unit Management Team/Classification Committee has conducted the periodic placement review required by policy, and determined that the inmate should be retained in VI. Such appeal to be reviewed and acted upon by the Director of Adult Prisons. The inmate will be advised of his right to appeal and the Department will develop an appeal form to be used for this purpose.
c. Appeal of Level V retention: revised policy will add language so that if an inmate completes Level V, Step 5 and there is a decision to retain such inmate in Level V, the inmate may appeal such retention/continued placement. Such appeal could be filed after the inmate has remained in Level V, Step 5 for 30 days beyond completion date.
Page 13 of 20

2. UMT: authority and responsibility
a. Award of good time: revised policy will add language for the Unit Management Team, to include a representative from mental health, to review and recommend monthly good time. This will eliminate the issue of potential good time earnings being determined solely by a correctional staff member who may make negative notations on the inmate*s behavior log. (Levels V and VI)
b. Recommendation for release from Level VI: Clarify policy language to state that if the UMT believes at any point in time, for any reason, that placement in Level VI is no longer appropriate, they may recommend release from Level VI. Any such recommendation by the UMT for release from Level VI must be reviewed by the facility Warden, and the UMT*s recommendation and the Warden*s recommendation will be forwarded for final decision by the Director of the Adult Prisons Division.
3. Mental health participation in UMT
a. Add language to policy that mental health staff be a part of the Unit Management Team that makes the classification decision regarding placement of inmates released from Level V/VI, and that mental health staff can provide any input at that time.
b. Add language to NMCD policy that the Unit Management Team, during regularly scheduled Step reviews or Step regression/retention hearings, will include a member of the mental health staff in the decision-making process.
4. Mental health input into disciplinary process
a. CD Policy 149200, Mental Health Services for APA Inmates, contains a mechanism for mental health input into disciplinary for APA inmates.
b. NMCD will implement the following mechanism for mental health staff to have input into the disciplinary process for Regular Level V/VI inmates who are on a mental health case load.
1) The Hearing Officer and/or Disciplinary Officer will submit a list of upcoming disciplinary hearings (both major and minor) to the facility Mental Health Director.
2) The Mental Health Director will determine whether there are or are not mental health issues that should be considered during the disciplinary hearing and advise the Hearing Officer in writing.
3) If there are mental health issues that should be considered, the Mental Health Director will submit a written statement to the Hearing Officer or Disciplinary Officer as to how the mental
Page 14 of 20

health issues should be considered. 4) The Hearing Officer or Disciplinary Officer will consider the
input from the Mental Health Director. 5) The Mental Health Director*s input and the
Hearing/Disciplinary Officer*s consideration shall be made a part of the disciplinary record.
5. Ability to move through steps
a. Release from Level VI to Level V: revised policy will specify that an inmate reclassified from Level VI to Level V will be placed in Level V Step 3 for a period not to exceed two weeks, for the purpose of evaluation and housing assignment. Upon completion of the evaluation period, the inmate will be placed in Step 4. The amount of time spent in Step 3 will be counted toward the amount of time required for Step 4. Such an inmate will continue with cognitive education from where he left off upon transfer from Level VI and he will not have to restart.
b. Time spent at MHTC and/or APA: revised policy will specify that a Level V or Level VI inmate at the MHTC and/or APA will receive credit for that period of confinement, assuming he meets the conduct requirements (with consideration given for the affect his mental health condition may have upon his behavior).
c. All UMT recommendations for Step regression may only be implemented if reviewed and approved by the Deputy Warden.
H. Miscellaneous
1. NMCD will consider out of state placement or placement at LCCF HU4 for inmates in voluntary and involuntary Inmate Protection.
2. NMCD will provide training on all changes to the Level V/VI policy, to include: UMT recommendation for release from Level VI.
3. Correctional Officer cadets will receive training regarding mental illness issues within the inmate population; NMCD mental health staff will review the current course offering, and NMCD will revise as necessary.
4. NMCD will comply with its policy which requires mental health clinical staff receive 12 hours of continuing education annually. This is consistent with NCCHC Standard —19.
5. Inmates will not be sanctioned through the inmate discipline process, the behavior log, or the UMT for merely engaging in normal conversation with other inmates. Normal conversation is considered to be conversation that occurs in a normal tone and level of voice between two or more inmates, and does not contain abusive, derogatory, or inflammatory language directed at staff or other inmates and which does
Page 15 of 20

not disrupt the orderly operation of the facility.
6. Inmates currently in Level V/VI will have an opportunity to appeal their placement in Level V/VI as if it were an initial appeal under the revised policy.
7. NMCD will maintain the Central Office position for “Family Liaison”; primary duties include answering questions from families and facilitating contacts.
8. Good time for recidivism reduction program: Such a policy is in draft form and will be implemented upon completion of the established NMCD policy review process. The policy, when implemented, will allow for a maximum of 30 days of good time, as provided by State law. Such good time will be awarded for completion of the Recidivism Reduction Program, as long as the inmate is otherwise eligible to receive this good time.
9. Policies and forms regarding Level V/VI will be available in Spanish.
II. In exchange for good and valuable consideration, Plaintiffs agree to do the following:
A. Immediately after the parties have signed this letter agreement, voluntarily dismiss with prejudice all causes of action in Ayers et al. v. Perry et al., except the causes of action set out in Sandoval v. Lopez et al.
III. Within 30 days of Plaintiffs* voluntary dismissal with prejudice of all causes of action in Ayers et al. v. Perry et al., except the causes of action set out in Sandoval v. Lopez et al., Risk Management will pay counsel for Plaintiffs, in full payment for all attorneys fees and costs a total amount of $125,000.
IV. In exchange for good and valuable consideration, Petitioners agree to do the following:
A. Immediately after the parties have signed this letter agreement, dismiss with prejudice, each of the following petitions for writ of habeas corpus in their entirety:
1. Andrew Ferguson v. LeMaster, Dl01 C22001000192; Dl01CS2000000115 2. Augustine Granados v. LeMaster, CV200202 178 3. Chris Baca v. LeMaster, D10l CS20020028 4. Dennis Carabajal v. LeMaster, D101 CS200 1000460 5. Freddie Sanchez v. LeMaster, D101 CS200200047 6. Leonard Romero v. LeMaster, CR200000647 7. Leonard Shelby v. LeMaster, D101 CS20010013 8. Les Dotson v. LeMaster, CV200200071, CV20020 1809 9. Michael Guzman v. LeMaster, D101 CS2002-0054 10. Ricardo Rodriguez v. LeMaster, Dl01 CS2001000456 11. Richard Herrera v. LeMaster, D10l CS2001000453 12. Robert Lara v. LeMaster, D10l CS2001000451
Page 16 of 20

13. Sebastian Eccleston v. LeMaster, CS-200 100025
B. Immediately after the parties have signed this letter agreement, and upon release from Level V/VI, dismiss with prejudice, each of the following petitions for writ of habeas corpus in their entirety:
I. Fernando Hemandez v. LeMaster, D101 CS2001000454 2. Huberto Briones v. LeMaster, D101 CS2002000063 3. Jared Dukeminier v. LeMaster, D101 CS20020015 4. Leo Salazarv. LeMaster, CV200202107 5. Theodore Rios v. LeMaster, D101 CV200201814
C. Immediately after the parties have signed this letter agreement, dismiss with prejudice, each of the following petitions for writ of habeas corpus, with the exception of the issues regarding restoration of “good time” and/or medical issues, as applicable.
1. Frankie Gonzales v. LeMaster, CS200200016 2. Jesse Saenz v. LeMaster, CV2002021 11 3. Marcos Lucero v. LeMaster, D101 CS2001000455 4. Marcos Pinon v. LeMaster, CS200 100544 5. Shawn Ural v. LeMaster, D10l CS200200051 6. Steve Sanchez v. LeMaster, D101 CS200200059 7. Thomas Martinez v. LeMaster, Dl01 CS200200023 8. Vincent Zurla v. LeMaster, CS200200044
D. Immediately after the parties have signed this letter agreement, dismiss with prejudice the issues claiming a violation of cx post facto and denial of legal access to the courts.
1. Edward Garcia v. LeMaster, D101 CS20020020 2. Joseph Herrera v. LeMaster, CV200201 852 3. Martin Chacon v. LeMaster, CV200200443 4. Travis McGuire v. LeMaster, D101 CS200200021
E. Immediately after the parties have signed this letter agreement, dismiss with prejudice the issue claiming a violation of ex post facto; and dismiss without prejudice the claim for denial of legal access to the courts.
1. Amin Wali (William McGhee) v. LeMaster, D101 CS200100002 2. Anthony Hamilton v. LeMaster, D101 CS20001156 3. Christopher Plouse V. LeMaster, D101 CS200000904 4. James Gordon v. LeMaster, D101 CS2001000003 5. Jesse Trujillo v. LeMaster,D101 CR20001177 6. Joe Saavedra v. LeMaster, D101CS200 1000005 7. Johnny Pisio v. LeMaster, D101 CR20000903 8. Joseph Barboa (Sandoval) v. LeMaster, D101 CS200100021 9. Leo Ortega v. L~Master, D101 CS20010648 10. Manuel Maldonaldo v. LeMaster, D101 CS200100026
Page 17 of 20

V. All parties agree to do the following:
A. Upon all parties signing this letter agreement, NMCD will have a period of 120 days to make the necessary changes to written policy, train its personnel and otherwise implement the measures necessary to comply with the provisions contained in paragraph I.
B. After the 120 day period has passed, an audit will be conducted to determine whether NMCD is in substantial compliance with the provisions contained in paragraph I; with a written report to follow. All audits and reports done pursuant to this agreement will address only those items expressly set out in paragraph I, and nothing else. For purposes of this agreement, “substantial compliance” means that NMCD is generally in compliance with the provisions of paragraph I. Incidents of non-compliance do not necessarily prevent a finding of substantial compliance. The determination of substantial compliance shall take into account the extent to which exceptions to compliance are sporadic or isolated in nature, are unintentional and are promptly and properly addressed by corrective action.
C. The person who will conduct the audit and submit the report as to the “Mental Health”, “Cognitive Education”, and “Additional Education Programs” portions of paragraph I will be selected by NMCD from the list of three persons identified by Peter Cubra in his letter to Nick D*Angelo dated March 24, 2003, or NMCD may select Dr. Pablo Stewart. The person who will conduct the audit and submit the report as to “Legal Access”, “Inmate Witnesses in Disciplinary Hearings”, “Conditions of Confinement”, “Policy Issues”, and “Miscellaneous” portions of paragraph I will be selected by Mark Donatelli from the list of three persons identified by Nick D*Angelo in his letter to Peter Cubra, Mark Donatelli and Jane Yee dated March 21, 2003. NMCD will be responsible for paying the costs of the auditors.
D. As to both the audits and reports, they will be completed within 30 days from the end of the 120 day period specified in subparagraph V.A above.
E. To the extent that the audit reports indicate substantial compliance as to any particular provision of paragraph I, Plaintiffs and Petitioners will have no remedy whatsoever as to that particular provision pursuant to this agreement.
F. To the extent that the audit reports indicates a lack of substantial compliance as to any particular provision of paragraph I, NMCD shall have no more than 20 days to remedy the non-compliance. If NMCD believes it has remedied the non-compliance before 20 days has passed, NMCD shall notify in writing the auditor, as well as counsel for Plaintiffs and Petitioners, of the measures taken to remedy the noncompliance. If counsel for Plaintiffs or Petitioners are satisfied with the remedy, their counsel shall notify NMCD and the respective Plaintiffs or Petitioners will have no remedy whatsoever as to that particular provision pursuant to this agreement. After the 20 day period pa~ses, or after NMCD has notified the auditor as well as counsel for Plaintiffs and Petitioners of the measures taken to remedy non-compliance, a second audit and written report will be completed within 30 days as to only the provisions that were not in substantial compliance. To the extent the second audit report indicates substantial
Page 18 of 20

compliance as to any particular provision of paragraph I, Plaintiffs and Petitioners will have no remedy whatsoever as to that particular provision pursuant to this agreement.
G. To the extent that the second audit report indicates a lack of substantial compliance as to any particular provision of paragraph I, Plaintiffs* and Petitioners* only remedy will be to file a separate civil action in New Mexico state district court, for specific performance only, and such civil action must be filed within 60 days from the date of the second audit report or Plaintiffs/Petitioners will waive the right to file such an action. If Plaintiffs/Petitioners file such a civil action for specific performance, and the Court determines that an order for specific performance is appropriate, the Court shall only have the authority to order specific performance for a period of six months from the date of its order for specific performance. After six months passes from the date of any such order, no Court shall have the authority to order specific performance as to any provision of paragraph I of this agreement. If Plaintiffs/Petitioners file an action for specific performance, NMCD shall have the right to obtain a third audit and written report by the same auditor who conducted the second audit, to be completed within 20 days as to those provisions that were not in substantial compliance; and notwithstanding any other provision of this agreement, if the third audit report indicates substantial compliance as to the remaining provisions, Plaintiffs/Petitioners will dismiss their civil action for specific performance and Plaintiffs/Petitioners will have no remedy whatsoever as to those particular provisions pursuant to this agreement. If in accordance with this agreement, counsel for Plaintiffs/Petitioners files an action for specific performance on behalf of any Plaintiff or Petitioner to enforce paragraph I of this agreement, and counsel prevails on such a claim, the total amount of attorney fees and other costs to be awarded, regardless of the number of attorneys or other personnel utilized, shall not exceed $40,000. The Office of the Public Defender shall not be entitled to attorney*s fees.
H. No other legal action, attorney fees or costs shall be prosecuted by or awarded to Plaintiffs or Petitioners to enforce paragraph I of this agreement, except as expressly provided herein.
I. Only the Plaintiffs or Petitioners named in this agreement shall have standing to file an action for specific performance pursuant to this agreement. This agreement does not confer any rights upon any other party (i.e., there shall be no third party beneficiary as to this agreement).
Sincerely,

Joe R. Williams Secretary of Corrections

Nick D*Angelo General Counsel

Page 19 of 20

Robert T. Booms Counsel for Defendants

AGREED:

Mark Donatelli, Counsel for Plaintiffs

Peter Cubra, Counsel for Plaintiffs

Sophie Cooper, Counsel for Petitioners

Jane Yee, Counsel for Petitioners

Date Date Date Date

Page 20 of 20