1"1 TI-IE I:1\ITED STATI·:S DISTRICT COlRT-, - - - -.'.

L FOR TilE DISTRICT 01' NEW \1EXICO ~~jli.

tl~, a;)

ELI/ABEll I LEYBA. f\:ATASIIA APODACA. I\ANCY ELU\:. MONICA (iARCIA. U:C'{ \1. \1AR()IIEZ. MARK "-IILLER. COPPER PERKY. DAVID SA"IDOVAL KRISTI SEIBOLD. RI:SSELLA SI:R"IA. and KI'v1BFRI.'{ WRICiIlT.
on their own hehalf and on hehal r or a class of
similarly situated persons.
Plaimills. vs.

JAN 1 ? 2005

- - - - - ...,..... """""""" .

.-05-0036
1\0. CIV -05-

DJS J.\~f

S:\"ITA FE COl :\:IT BOARD OF CO\1MISSIONERS; f,IA1\AGEME:\T Al'W TRAINI:\G CORPORATIO"l; SANTA FE COU\:lY SIIERIFF (;REG SOLA"IO. in his individual and official eaptH:ities; FOR\1ER SANTA IT COU\:TY SIIERIFF RA Y,,-,IO\:D L. SISNEROS. in his individual and official capacities; and KERRY DIXON. in his individual and onicial capacities.

.Jl.'RY TRIAL REOllESTED

Ddcndants.

CLASS ACTION COMPLAINT FOR DA\IAGES FOR VIOLATIONS OF CIVIL AND CO"l;STITl:nO:'l'AL RIGHTS AND FOR DECLARATOIH' AND J:",JllNCTIVE RELIEF Plaintil)', Elizaheth Leyha. 1\atasha Apodaca. \:ancy Ellin. Monica Garcia. Lucy \1. Marquez. \1ark \1illcr. Copper Perry. David Sandoval. Kristi Seihold. Russclla Serna. and Kimherly Wright. hy and through helow-signed counsel. hring this Class Action Complaim Illr Damages !\:lr Violations orCi\·il and Constitutional Rights ancl filr Declaratory and Injunctive Rdieragainst Dei'endams Santa Fe County Board of'Commissioners. Management and Training C(lrpnration. Santa Fe County Sheriff Greg Solano. Fonner Sama Fe County Sherin' Raymond I.. Sisneros. and Kerry Dixon Ihen:inalkr "Dclcndants). Plaintirrs alleg~ against Iklcndants up,m

knowkdge as 10 Ihcl11scl\"(:s and all malters of public rc'cord. and upon informatilln and belief as

10 all olher matters. as t(l\lOWS:

I. JrRISJ)JCTlO:'ll A:'III> VENVE

I. This Court has jurisdiction ovcr this acti()n pursuant 10 2R U.S.c. §§ 1331 and
* 13·.13 (a)(3) and (4). The Court has jurisdiction ovcr Ihe slate law claims pursuant to 2R (I.S.C.

13(,7.
,

Vi.'nue is proper in this Court pursuanl to 28 I :.S.C. § DC)1 (h).

II. I'ARTIES

3.

Plaintiff Elizabeth Leyha l"'~R. Lcyha") is a residcnt of Santa Fe. !'\ew \1exico.

Ms. Lc'yha brings this action on her (lWn hehalf and on hdmlf of a class of similarly situakd

persons. 4.

PlaintitT'latasha Apodaca (oOMs. ApodacaoO ) is a residenl of Santa Fe. New

\iesiC<l. Ms. Apodaca hrings this action on her own hehalf and on hehalf of a class of similarly

situated pers(ms.

5.

1'laintiffl\ancy Fllin (oO\1s. I'lIin") is a resident of Santa Fe. New l\1<:xico. Ms.

!:lIin hrings this aclion on her own hehalf and on hl'half of a class of similarly situated persons.

6. 1'IaintiiTMonica Garcia (oOMs. Garcia") is a rcsident of Santa Fe. !\eW Mexico.

~1s. Garcia hrings this action on her own hehalf and on hehalf of a class of simibrly situatl'u

persons. 7.

PlainlilT Lucy M. Marquez (oOMs. \1arquaoO ) is a resident of Sanw Fc. New

\1exiw. Ms. \1arque/. hrings this action on her own behalf and cln hchalfofa class of similarly

,

situat~d persons.

8.

PlaintitT\1ark Miller r·Mr. ~1illcr"") is a r~sident of Santa Fe" :\ew Mexico. Mr.

Miller hrings this action on his own h~half and on h~half of a class of similarly situated persons.

9.

I'laintirfCoppcr Perry roMs. Perry"·) is u r~siJent ofSunta Fe" New 1,,1exieo. Ms.

Perry hrings this action on her own h~half and on h~half of a class of similarly situated persons.

10. Plaintiff David Sandoval (""Mr. SanJO\·an is a resident of Truchas" l\cw Mexico.

'vir. Sandoval hrings this actilltl on his own b"half anJ on he"hal I' of a class of similarly situated

persons.

11. Plaintiff Kristi Seihold roMs. Seihold"") is a resident of Santa Fe"" :-.Jew Mexico.

>.,.is. Seihold brings this action on her OWl1 behalf and on behalf of a class of similarly situated

p~rS(lns.

12. Plaintiff Russella Serna r"'vIs. Serna"") is a re"sident of Pojoaque" l\cw \1exico. Iv!s. Serna hrings this action on h~r own hehalfand on h~halfofa class of similarly situate"d

persons. 13.

Plaintiff Kimberly Wright r·Ms. \VrighCl is a r~sident of Santa Fe" '.;~\\ Mexico.

'vis. Wright brings this action on her own hehalfand <111 hdmlfofu class of similarly situated

persons.

14. IkfcnJant Santa Fe County Hoard ofCommission~rs (""Santa Fe County"") is a

political suhdivision <lfthe State of \'cw Mexico. Pursuant to ~ 4-46-1 l\MSA 197R" a\1 suits

or proceedings against a county ar~ to h~ brought in the name of the hoard of county

cllmmissioners orthat county. At all times material hereto" Santa Fe COUllt)< \\·as a

go\erllmelltal entity and I(lcal puhlic hody as those tenns arc defined in the New Mexico Tort

, ,

Claims Act. ~~ 41-4-3(H) and (C) :\MSA 1978. as amended. At all times material her~lO. Santa Fe Coumy was the employer and superyisor of the individually named De!l:ndants. Pursuant to ~~ 4-44-19. 13-3-3 through 8. and 33-3-13 ~J\1SA I,)78. Santa Fe County had a statutory obligation to provide I(lr the confinement of prisllllcrs incan:eratcd under the county's jurisdiction. Santa Fe County had a statutory llbligation to appropriate funds and otherwise pwvide the necessary funding to maintain and operate a facility I(lr the incarceration of prisoners under the jurisdiction of the county.
I~. Defendant \1anagement and Training Corporation ("'MTC') is. on information and helkL a corporation organized under the laws (If the State of Delaware. headquartered in \:tah . and doing business in the State (,fNew \1cxico. \He has. sincl' Octobl'r 2001. operated the Sanla Fe ('<HlIlty Detention Facility (..SFCDl·..·) undl'r contract with Sanla 1-"e County. At all times material hereto. MTC and its officers. employees and agents acted under color law and within the scope of their employment.
1(,. De!l:ndant Santa Fe County Sheri 1'1' Greg Solano ("Defendalll Solano"). upon information and belief. is now and at all time material hereto has been a resident (If Santa Fe County. r-;ew Mexico. Since January I. 2003. Det<:ndant Solano has been the duly-clected Santa Fe County Sheriff. In addition. at all times material hereto. Defendant Solano was a la\\ eni(lrCemcnt officer and public employee as those terms are deli ned in the '\ew \1cxico Tort Claims Act. ~~ 41-4-3(\)) and (F) N\1SA 197R. as amended. and was acting within the
or scope his duties as well as under color oflaw. lie is sued both personally and in his
oflicial capacity.
4

17. Ikfendanl Former Santa Fe CounlY Sheri ff Raymond I .. Sisneflls ("Defendant Sisneros"). up<)n information and bdicf. is nnw and at aillimc material herelo has been a resident of Sanla Fe County. I'!ew \1cxico. From January I. 1999 to De~ember 31. 2003. Ddi:ndant Sisnerns was Ihe duly-ekcled Santa Fe Count: Sheriff and was a law enforcement oflicer and public employee as those lcnllS are defined in the !':ew \k"icn TorI Claims Act. ~~ -l1-4-3(D) and (F) N\1SA 1978. as amended. and was acting wilhin the scope of his duties as well as under color of law. He is sued both persnnally and in his ofticial capacity.
18. Defendant KelTY Dixnn ("Deli:ndant Dixon"). upon inf'orntation and bdieC is nm" and at all time material herelo has been a resident ofSanla Fe County. :-<ew \1cxico. Since !'v1arch 1.2004. Defendanl Dixon has been employed hy \1"["(, as the Warden of the SFCDF. As Warden. Defendant Dixon was and is resp()!1sihk lilr the adminislralion nClhe SFCDF. At all limes matcriall1(:relO. Defendant Dixon was acting pri\"alcly under enlor of law. and was acting within the scope of his duties. He is sued both personally and in his onicial capacity.
l'l. Deli:ndants Santa Fe ('<)unty. \flC'. Solano. Sisneros and Dixon wcrc n:sponsihlt: for the screening. hiring, training. moniwring. supervision and disciplining of subordinale employccs of SFCDF. and wcrt the authorities empowering SFCDF cmployees tn incarcerate prison<:rs undcr the jurisdiction of Santa Fe County. Defendants Santa Fe County. \1TC. S()lano. Sisneros and Dixon were directly rcsponsiblc for the policy-making activilies and the supervision ofsuhordinate ollicers ofSFCIJF.
20. Deli:l1dants Santa Fe County. MlC. Solano. Sisneros and Dixon. thn)ugh Ihcir

olliciab. agents. servants. and emplo),c'es. were involwd in and responsible for all the acts

hereinalter alkgcd. At all times material hereto. Defendants Santa Fe ("()unty. \1TC. Solano.

Sisneros and Dixon. indi\'idually ancl/or acting through their agents. oftil'ers ancl employees.

actecl in concert with one another and pursuant to a l'Ommon plan and objecti\·c. ancl each of the

Defendants is responsible for the acts and omissions of the othc'r Defendants. and their agents.

ofliccrs and employees. as co-conspirators. under the doctrine of responde(/t supaior. and under

(lther doctrines of\'icarious liahility.

111. CLAJ:\1S OF THE NAMED PLAI"'TIFFS

21. Paragraphs I through 20. abovc, are itll'(lrporated herein by reference as if fully Si.'t

li.>rth in this paragraph.

Elizabeth Leyba

"

\1s. I.eyba is ]3 )"c'ars old. She was born and raisc'd in Santa Fe. New Mexico and

has a steady work history. Prior to Septemher 2. 2004. she had nc\er bl'en arrested in her life.

23. \1s. I.c·)·ba works as a waitress and hartender at the Catamount Bar & Grill in

Santa Fe. Her employer's policy is to have a doorman whose responsibility is to chcck the

identifications of all customers upon entry. to verilY tbat they arc over the age 01'21. Waitresses

and bartenders are therefore not expected to check customer identiJications and instead rely upon

the dlKlrman to do so.

24. On September 2.2004. agcnts of the Nc'w Mexico State Police Special

Investigation Division. in conjunction with other law enforcl'ment oHicers. conducted a "sting"

operation ofnlrious businesses in Santa Fe in which underage indidduals pllSed as l'ustolllers

6

and ordered akoholic heverages. One of the targeted husinesses was thl' Catamount Bar & Grill. Two underage individuals entered th,' Catamount as part of the "sting"' operation. On that night. the Catamount had a rc\ativdy new uoorl1lan. \1s. Leyha was a waitress on duty that night. Ms. I.eyha reasonably assumed that all customers in the Catanlllunt had been screened by the doorman and had produced appropriate idelllilication. In "let. the doorman had serel'ned the t\\O underage individuals and checked their identification, but had failed to notice that they were under 21.
~5. :'vIs. I.eyha delivered two hottles ofheers to the t\\l' customers. She was then told that she was under am:st for dispensing alcohol to persons under the age' of 21. \1s. Leyba was inunediatdy handcuffed hy police onicers and escorted frol11 her workplacl' in front of her eo\\orkers and customers. Ms. Leyha was then transported hy the police to the SFCDF.
26. Upon arrival at the SFCDF, :'v1s. Leyha \\as transferred to the custody and control of" the Defendants. One of Dcf"endants' otlkers took tvls. I.eyha to a room and ordered her to disrohe. Ms. I.eyha remo\"i.'d her clothes and stood in the middle of the roOI11 in her undergarments and socks. The officer instructed \1s. Leyha that this "as insullieient, and ord.:rcd Ms. Leyha t"take off all her undergarments and her socks. Ms. l.eyha asked why it was necessary to remove her underwear and she was told it was a mandatory policy. :'vIs. I.eyha had no choice hutto r,'mo\"e all orher remaining garments until she was completely naked. 111e "meer then ordered Ms. Leyba to rotate in a circle with her arms in th,' air Illr visual inspection. Ms. I.eyha attempted to comply, but was ordcred to slow down. \1s. Leyba then slowly turned her h"dy for close visual inspection hy the oHicer. Only alier Ms. Leyha's naked hody was comple-tely examin,'d by the offic,'r was she permitted to wwr hersel f with jail garments.
7

Nothing was found during the strip search. Natasha Apudaca
"27. Ms. Apodaca is I\) ycars old. She li\'es in Santa Fe. :"Jew Y1exico and is employed as a sales clerk.
"28. On Novcmher "26. "2004. Ms. Apodaca \\as :mested I(')r a misdemeanor otTc'nse. She was taken into custody at the SFCDF and booked. She was taken into the hathrnom of the hooking area by one of Defendants" ()ffkers and told to strip down completely naked. She complic-d and was visually examined.
"29. Alier removing all of her clothing. Ms. Apodaca was instructed to turn arnund. squat. and cough while the olliecr \'isually examined her genital and anal area. She did as she instructed. :\othing was found.
Nann Ellin ~O. Ms. FlIin is 47 years old. She has a Bachelor of Arts degree in English from TOWSlln State University. and a Master's Degree in l·tuman Resource De\'dopment Ii'om Wehster University. She lives in Santa Fe. New \1exico and is emplo~ed as a Compensation Analyst at I.os Alam()s I\:ational I.ahoratory. Prior to the eve11ls deserihed hdow. she had Ill'wr heen arrested in her life. ~ I. On Decemher 22. "2004. Ms. Ellin was stopped as she was driving on the highway ncar Pojoaque. When the ol1icer ran her name through the Cllmputcr. he inl(lfllled her that there was a June "2003 hench warrant Irom Magistr:lle Court for an outstanding traffic citation. Ms. LlIin had no knowledge of any such citation or warrant. Noncthdcss. she was arrested and transporll'd to the SFCDI'.

32. \-Is. Ellin was taken into custody at the SFCDF and hooked. She was thelltaken inln a edl hy one of Defendants' officers and told 10 reml)Ve all her L'inthes. She asked w'hdher she had tll take offewrything. and was told Yl'S, \1s. Fllin complied and removed all her clothing other than her socks. She thell asked whl,ther she had to take olf e,'ell hl'r SllCks. and she was told yes. She took olfher socks and was visually cxamined hy the onil:er while she was naked. !\othing was "lUnd.
Monica Garcia 33. \1s. Garcia is 58 years old. She li\"cs in Tesuque. ~C\\' \1cxicl) and is enlploycd as an onice managl'r. Prim to thL' events descrihed hdow. she had ne\'er heen arrested in her lile. 34. On August 13.2004. \1s. Garcia was arrested for a m,ll. She was taken into custody at the SFCDF and hooked. She was taken hy one of Defendants' onicers into a room ncar the booking area and instructed to take olf all her clothes. She removed all her clothing other than her undergarments. She was then instructed to remo\'e hL'r undergarments as well. She complied. 35. Ms. Garcia was completdy naked in the room. She was instrul:ted to facL' the wall. She was then told to hend over. grab her ankles. and cough. She complied. As she was hl'nt ovcr. the officer visually examining her genital and anal area Ii'tHll behind laughL'd at hcr. Nothing was found.
Lucy M. !\1argucz 36. Ms. Marquez is 4~ years old. She liws in Santa Fe. 'Jew Mexico and is selt: employed as a wnstruction manager. Prior tn the events descrihed hl'fllW. she had never heen arrested in her lik.

:'7. At 6:00 a.m. on Octoher 7. 20()4. Ms. \1arquO- was awakened at her home hy Illur unifllrmed "ew I\kxicll State Police officers. They told her that she was under arrest Illr an outstanding traffic ticket. She was taken to the FOP Ilall Illr processing with a numher of other arrestees who apparently were also subjected tll mass arrests. She was then transported to the SFCDF and hooked.
3R. Ms. Marquez was taken by l1l1<: of Dekndants' ollicers into the hathroom of the hooking area. She was instructed to take her clothes off. She removed her clothes hut len on her underwear and socks. She was then told to take ofT everything. She remoH:d her remaining
undergarrnents.
:'4. While Ms. Marquez was completely naked. she instructed to turn around and hend o\·cr. She complied. She was then told to bend over ewn more. She did so. Then she was again told 10 hend O\"Cf more. and she' did as she was told. The oniccr examined her genital and anal area from hehind. She was then tllid to turn around and lace the officer. The ollicer then visually inspected her naked hody. ~othing was found.
:vJark :\-tiller 40. Mr. Miller is 21 }ears old. He lives ill Santa Fe. New \·lexico and is employed as a sales ckrk. 41. On Septemher 21.2004, Mr. Miller was arrested for driving on a revoked license. He WaS taken into custody at the SFCDF and hooked. lie was then taken hy one of Del-':ndants officers into the hath room of the' booking area and instructed to take olThis shirt. jeans and shocs. He was then told to take ofT his socks and underwear. IIe' compli.:d. 42. \1r. Miller was the'n told to lili his arms. Alier \1r. "1iller lifted his arms and was
10

examined. he was told to liti his scrotum. Aller he liftcd his scrotum. he was then told to squat and cough three time'S. He did so. I Ie was then told hl hend over. ,\s he was bc'nt (l\"C!". the onicer \"isually examined Mr. Miller's genital and anal area. Thc onicer then pulled aside Mr. Millds checks and searched his oral ca\ity. I\othing was I'llmd.
·D. On :-..io\"cmber II. 20()4. Mr. Millcr was stoppcd by Department or Public Safety
Secretary John Denko I,)r an imprope'r driving maneu\"Cr on Cerrillos Road. lie was arrested and taken to thc SFCDF I,'lr booking. I k was taken by one of Dell-ndants' onieers into the hathroom of the hooking area and told to tah' nffhis shirt. pants and shocs. lie was then told to take off his undcrwcar. and to squat and cough three times while the ofliccr \"isually examined his genital and anal area. He did as he was told. \iothing was I')lllld.
Copper Pern° 44. \Is. PCITY is 20 years old. She li\"cs in Santa Fe. :\cw Mexico and owns a small business in Santa Fc. Prior to the events described below. she had nc\w bcen arrested in her lill-.
45. In Septcmher. 20()4. Ms. Perry was arreskd lilr a m I] by a Santa h: City P"lice
officer. She was transported to the SFC])F where she was hooke·d. She was taken by one or fkl,:ndanls (lnicers inlo the hathro(lm oflhe booking area and inslTllelcd 10 take orr all her clothes. underwcar. shoes and socks. She ash'd if this was neccssary. and was told that she had to do it. and Ihat irshe rerused. she would be in more trouhle. She took olrall her clothes allli gaYc' them to the officer.
46. The door to Ihc room was partially open \\'hile Ms. Perry was naked in the rOOIll. The ofticer then instructed Ms. Perry lo hend over. spre~d her red shoulder width. and grab her ~nkles. She did as she was im;truct<!d. As she was hent (,,"cr. she was inslrucled to spread her
11

hutlod:s. Shl' had nll choice and did as she was told. The officer visually examined her anus. Aller the onicer completed the search. Ms. Perry rCljueskd that her underwear he given back to hl'r but thi.' OmCl'r refused. ~(Ithing was found during the strip search.
Da\'id SandO\al ..7. tvlr. Sando\'al is 39 years old. He lives in Truchas, :\ew Ml'xieo and is cmployed as a machinist at l.os Alamos ~ational Lahoratory. Prior to the l''"l'nts dcscribl'd hl'low. he had nevcr been arrested in his lili:.
"R. On Ckt(lher 22. 200... Mr. Sandoval was falsc1y accused hy a patron at the Ohkay Casino of taking a 51 I00 chip. IIe \\as arrested hy Sun Juan Trihal Policl' officers fiJI'
misdl'meanor thl'ft. e\'en though yideo suryeillance cameras demonstrated that the accusation
was falsc. Mr. Sandoval was takcn to San Juan Trihal Jail. On Oetohcr n. 2004. Mr. Sandoval
was transported to thc Espanola Jail. He was then transported to the SrCDF. 49. At the SFCDF. 'vIr. Sandoval was takc'n by one of Defendants onlcers into a cell
and told to takl' off all his clothes. including his socks and underwear. I It: did as he was told. The otlicer thl'n yisually examined his naked hody. :\othing "as found.
50. Mr. Sandoval was then placed in general population awaiting arraignmcnt. The next day his \\ifc visited him. During the yisit. he was separated Irom his wife hy a glass and ClltlCrete wall. Following the visit. the omcer in chargc told him and the othcr dl'winces who had rcceived visits that someone had talked ahout sneaking drugs during visitatilltl. and that was not going to happen on his watch. lie required \1r. Sando\'al and thl' mhl'rs to remoye all their clothing. When \1r. Sandoval and the othl'rs were naked. the onicer told them to turn around. sljuat and cough. Mr. Sando\'al did as hl' was instructed and thl' officer yisually examined his
I:!

gcnital and anal area. Nothing was found. Kristi Seibold
51. Ms. Seibold is 49 )"e'arS old and is a r~sidcntllf Santa Fe. I\~w \1cxi..:o. She has a Bachdor of Science degree from the' l :nivcrsity of \1 inncsota and a eerti IIcale' in massage therapy Ih'm the \:ew \1exico Academy of Healing Arts. She is an instructor at the New f>kxico Academy of Ilealing Arts and is also the owner of a small business located in Santa Fe.
52. On January 24. 2004. t\.1s. Seihold was arrested for not surrendering hl.'r dog to
Animal ("<nllw!. She was taken 10 the SFCDF Illr booking. At the SI"(,I.)1'. she was taken by one of Ikrcndants' officers into a holding cell and told 10 "'strip down'" She' asked if she could kaYe'
on her underwear, and was told to remove evel".\'"lhim..!... When she asked whv" it \\'as nccessar., to
remove her underwear whcn she was only being booked for a dog offense. she was told it was ··procedure .. ·
53. After Ms. Seibold remo\'cd all her clothing. shc was told III stand and lili her arms. She was then physically palled down on her bare flesh. including her arms. under her breasts. up and dCl\m her legs. and inside her legs to her genital area.
54. Ms. Seibold was then instructed to turn around and hend over. She complied. and her genital and allal area were \'isually scrutinized Irom hehind hy the ollieer. Ms. Sci hold again asked why this was necessary and was told it was ··pflleedure..· Nothing was ",und.
55. During the time thal Ms. Seihold was suhjectcd to thi, strip search and hody cavity search. the door to the holding ceIl was open and Ms. Se'ihold was exposed t(1 the' view of any person who \\'alked hy.
56. On [kccmher .1. 2004. Ms. Seihold was stopped by a Santa Fe Pnliee Of"licer.
13

Th~ onieer gaw her:1 verhal warning for an allegcd traffic otTensl.!. then ran a routine computer check on her licl.!nse. The check indicated that there was a hendl warrant lor her am.'st Illr an outstanding $39.00 fine from 2003. This hench warrant was erfllncnus as \ls. Seihold had already paid that line.
57. ,\1s. Seihold was again taken to the SFCDF and bonked. Shl' was again takcn by one llr Delt:ndants' oflicers into the holding cell and again told to take olf all her clothes. '\1s. Seihold pwtestcd and explained that she was there on a finc she had already paid. and that the police otlicer had wid her that she would not have to change clothing at tho: deK'ntion eenlL'r. Ilnwc\\.'r. she was again instructed to take (1ft" all her clothes Il1r a search. ,\1s. Sc'ihold took oil her clothing c.,cept her undergarments. She was then instruct(.'d to removc her underwear. ~1s. Seihold again protested, hut complil-d.
SR. After :-"ls. Seihold had removed all her clothing and was naked. the orticc'r visually inspected her hody and physically patted dO\\'n hl'r anns. her hack. her buttocks. and her legs. l\:othing was t<Hmd.
59. During the time that Ms. Seibold wus suhjected to this strip search. the d"or to thl' holding cdl was ~iar and she was visihle 10 a person passing by.
Ru~sella Serna 60. Ms. Serna is 37 years old. She has a Bachelor of Arts degree in Psychology Irom Brown llniwrsity. and a Master's Degfl'c in Social Work li'om Arizona State llni\·ersity. She liws in Po.ioal\U~. New \1cxico and is sl'lf-l'mployed as a Licensed Indepc'ndent Social Worker. Prior to the ewnts descrihc'd below. she had never heen arrested in her life. 61. On September 7. 2004. Ms. Serna was arrested Il1T ha\'ing leli her ehild in hc'r
14

vehicle while shopping. She was taken into custody at the SFCDF and hooked. She was taken by nn,' of Defendants' oftieers into the bathroom of the booking areas and instructed 10 take ofT all her ek>lhes. She removed all her c1nthing other than her undergarments. She was then instructed to remove hcr undergarments as well. She complied.
6:!. Atkr removing all her remaining clothing. Ms. Scrna was then instructed to turn around and spr,'ad her legs. She attcmpted to comply. hut was [(lId to spread her legs ,'yen morc. She was then instructed to "squat and cough." whieh she did. The onicer visually examined her genital and anal areas. I\othing was found.
Kimherh· Wright 63. Ms. Wright is 45 years old. She has a Bachelors of Fin.: Arts degree fmm the Massachusetts ('<lllege of Art. She lives in Santa Fe, New I\kxico and is sell~,'mployed as a writer and lilm producer. Prior to the events described helo\\,. she had never b,'cn arrested in her life. 64. On \:ovcmber 17. ::!004. Ms. Wright was arrested on an outstanding hench warrant issued for failure to appear at a court hearing date. This bench \\arrant was erroneously issued as \1s. \\'right had called the court in adv;mce and infc>rmed the court that she was ill and could not appear. 65. \1s. Wright was taken into custody at the SFCDF and hooked. She was then takc'n hy one of Dclcndants' officers into a bathroom in the hooking an~a and told to take off her dothcs one item at a time'. She removed all of her clothe'S other than her undl'rgarments. She was then instructed to removc all remaining items of clothing. 66. Alkr she removed all her eiclthcs. \1s. Wright was told to put her arms ovcrhead
15

and turn tn thl' lL'il and then the right for visual inspection. She ctlmplkd. \1s. Wright was then instructed to lili each of her breasts f,'r \'isual inspectinn. She cnmplied. \-ls. \Vright was then instruclL'd to turn aroulllJ. hend owr. and cnugh. She cnmplied. The nftieer \'isually examined her genital and anal areas.
67. Whik 1...1s. Wright was bent over at the waist. comrie-tel)" naked. the corrl'ctional officer then placed her hands on \1s. Wright's legs and genital area and conducted a physical examination. "othing was flllllld.
Allegations Common to All 'arnett Plaintiffs (,X. Defendants had no ...-alid reason f,'r conducting strip searches of thl' nallll'd Plaintiffs. !\othing in the named Plaintil1s' histLlries. nnr thl' circumstances of their arrests. ga\ e Defendants reasonahle suspicion that a strip search of the named Plaintiffs would result in the diSCll\w)" of contrahand or \wapons. Rather. Defendants' strip searehl's nfthe named Plaintiffs \\Wl' undenaken pursuant to a blanket and indiscriminate policy of strip searching each and l'Wt: detainee processed at the SI'CDF. in ...-iLllatinn of well-settled constitutionalluw and standards of correctional practice. (,9. Plaintiffs Elizaheth Leyha. Natasha Apodaca. Nancy Ellin. ~\"h>nica Gar,ill. Lucy M. \1arquez. Mark Miller. Copper Perry. Da\'id Sandoval. Kristi Seibllid. Russellu Serna. :md Kimhl'rly Wright were shocked. repulsed. humiliated. ashamed and distraught at heing suhjl'cted tn thl'se degrading and dehumanizing invasions nftheir pri ...."ey.
IV, CLASS ACTIOI'Ii ALLEGAT101'liS 70. Paragraphs I through 69. abon'o arc incorporated herein hy referelll'e as if fully set
16

Illrth in this paragraph. 71. The strip searches to which Plaintiffs were suh.i~eted wcre pcrll'rmed pursuant to
the policies. practices and customs of Defendants of conducting strip searches of all incoming detainecs. The searches eompl:.tined of herein were perflmned without regard tll the naturc of the alleged nfli:nses for which Plaintiffs had heen arrested. and "ith,lut Defendants ha\ing a reasonahle helicfthat the Plaintiffs so searched possessl'd weapons or contrahand. or that there exisll'd lilets suppllrting a r~asonahle hdicfthat the sl'mches would produce contrahand or weapons.
Te.. This ch'il action is hrought by PlaintitT.s on their own behalfand on hehalfofa class ,If similarly situated persons. pursuant to Fed. R. Ci\. 1'. 2~. The class for which Plaintiffs
secks certification is ddined as follows: all persons who. in the period from January 12. 20()2. to thl' prcsent and continuing until this matter is adjudicated and the practices complaincd of herein cease. wcrc arrested and suhjected to a strip search and/or hody cavity search at the Santa Fe County Detl'ntion Facility pursuant to a policy or practice of conducting strip scarches on prearraignment arresters without individualized reasonahle suspicion that the search would lead to the discowry of contrahand or weapons.
n. Plaintiffs arc membl'rs of the class they seek [(l represent. and have standing to
hring this action hecaw;e they were arrested and sU\"ljccted to a strip scarch and!or \"isual hody search at the SFCDF without Defendants having a reasonahle suspicion that the search would h~ pn,ducti\"e of"contrahand or wcapons. as set ii)rth in mnre detail aho\"C.
74. Pursuant to Fed. R. Civ. P. 2~. Plaintiffs. individually and on hchalfofthe memhcrs (lfthe class. seck such rcliefas is.iust and equitahle. including hut nnt limited to:
17

(i I Compkte disclosure of all inl(lrmation within the possession. custody or contn)lof Ikl-':ndants conceming. rdating to or involving the searl'hes complained of her,'in:
Iii) Judicial declaration that the searches complained ofhen:in arc uniawlill: (iii) Issuance of a permanent injunction prohibiting Ikl-':ndants from engaging in the searches cl1mpiained llf herein: and Iiv) Judgment fllr wmpensalOry and punitive damag~s to the fullest extent allowahle by law from Defendants in favor of I'laintills and the members of the class I'·)r personal and economic injury. and depri\·ation of statutory and/or common Jaw rights resulting li'llm Dd-':ndants' practices. 75. I'laintif'ls are unable to state precisely the size of the class, On inl,mnation and belid. Plaintiffs allege that thcre often arc more than ten persons per day "'ho are arrested and taken into custody hy Defendants and suhjeetl'd to the searches complained of herein as a r~sult of Dekndants' policies, practices. and customs related to said searches. Thus. the class is sunicicntly numerous that joinder of all memhers herein is impracticahle. The exact numher of class memhers will be ascertained through appropriate discovery. from records maintain,'d hy Defcndants and their agents. 76. Questions of law and fact arc common to the claims of Plaintiffs and the members of the class. including hut not limited to (I) whether Dekndants routinely subiect all persons arrested to strip searches and/or body cavity scarches: (2) wlll'ther persons are suhiected to strip searches and/or body cadty searches without tben: b~ing any reasonahle suspicion. hased on spccilic and articulablc facts. to belicve any particular de'tainec has concealed drugs. \\capons. and llr clllllrahand: (~) whether the' strip searches are conducted in an area ofpriyacy Sll that thl'
18

searches cannot be obsen'cd by persons not participating in the searches: (4) whether Dei<:ndants may lawfully perlllnn strip searches and/or hody ca\'ity se'arches without re'asllllahle suspicion, based on specific and articulable lilctS. to belie\'<: :1I1y particular detainee has concealed drugs. weapons (II' contraband: (5) whether strip searches andior b(ldy ca\'ity searches may laW/LIlly he conducted in areas where the search can be' observed hy people not participating in the se'arch: and (6) whe'the'r or not Defendants' strip search policy and procedure i, in accordance with the State and Federal Constitutions.
77, Defendants ha\'e acted or refused to act on gnlunds generally applicahk to the class. there'hy making appropriate final injuncti\'l' relief llr cllITespllnding declaratory rdief with respect tll the class as a whole.
n, There is a well-defined community of interest amongst members of the class. The
claims ofthc named Plainti/Ts arc typical of the claims of the memhers of the class, The factual hases of Defendants' misconduct an: Cllmmon to all class mcmhcrs and r~present a common plllicy and practice ofhlanket strip searches of all detainees without reasonable suspicion. ·,,!ore'over. Plaintit1s' claims are hased on the same legal thc(lrie'S as those of the class 1I1emhers.
79, The namcd I'laintills will fairly and adequately prote"t the inter.:sts of the dass, Plaintiffs arc committed to prosecuting this action. and they haw rl'laincd "ompetent counsel exp~rience'd in ci\'illitigation of this nature, \-!ore'O\'Cr. the interests of Plaintiffs arc coincident w'ith. and not antagonistic to, those of the other members of the class,
XO. The common qUe'stions of law and fact herein predominate o\'er questi(lns affecting any individual class memher, and class acti(ln treatment pn,\,ides a superior methoJ for the f:lir and ellicient adjudication of the controversy,
19

81. AI alilimcs rclc\'anl10 Ihc acts alleged herl'in. and as 10 e\wy cause of action asserted. Defendanls acted Iraudukntly. oppressi\'ely. maliciously. and in knll\\'ing and conscious disregard of Plaintiffs' righls and the righls llf class memhers. as oUllincd herein,
V.
FIRST CAUSE Of' ACTIO:\'
(Civil Rights Violations llnder 42 lI.S.C § t983)
82. Plainlifr.5 incorporaIC hy l"cfl.'rl'nce into their lirsl cause ofaclillnlhe allegations of paragraphs 1 thrllugh 81 ahovc. as fully as ifrl.'allegcd and scI f(lrlh herein.
83. The ahll\e-deserihed acls and omissions of Defendants Wl.'re unrcasonahle. shocking to Ihe conscil'nce. and were Clllllmiltcd inknti(lnally. maliciously. willfully and/or wilh rl.'ckkss or del ihcrali.' indil1"erence. and in violation of thl' Ie) II (ll' ing clearly eSlahlished conslitutional rights of\\'hich a reasonahle person would ha\'e bct!n aware:
(a) PlainlilTs' and class memhcrs' Fourth Amendment rights to hl' frcc fwm unreasonablc searches and seizures: and
(h) Plaintiffs' and class memhers' Eighlh Amendmt!nt rights 10 he Iret! fi'llm cruel and unusual punishmcnt and!or fourtcl'lIth Amendment rights to suhstanli\'e and procedural due process. and to privacy,
84, Thc abow-descrihcd acts and omissions of [)efendanls were motivated hy l.'vil motivc and intent. and involved recklcssness and callous indifference 10 Plaintiffs' and class nll'lllhers' Icderally protected righls.justifying an award ofpuniti\'e damages,
85, Prior lolhe acts and omissions alleged herein. Dcfl'ndants f[tiled to properly create. adopt and inculcate appropriate policics and procedures fiJr corrections oflieers and supcn'isory personnel employed hy thcm: failed 10 propt!rly lrain. monitor. supl'n·isl.' and
20

disciplin~ cOlTections (ImC~rS and supervisory personnd employed by them. and failed to otherwise institute n(kquate procedures and policies that would protect the rights of Pbintifis and class memhers. Th~se acts and omissions \\"er~ dir"t and proximate causes of the injuries complained orh~ Plaintiffs herein. as set forth hdo\\'.
8(,. Defendants Santa Fe County. !'vITC. Solano. Sisn~l'(ls. and/or Dixon maintained a custom or policy which p~nni1ted or cnndoned the j()regning violations nf Plaintiffs' and clas, memhers' constitutional rights.
R7. Thc acts and omissions of the Defendants as s~t j(,)rth ah(lvc \\'ere undertak~n under wlor of state law and operated tn deprive Plaintiffs and the m~mhers of the class ofthl'ir kderal rights. Defendants Solan(l. Sisneros and Dixon arc liahle in their individual and oftidal capacities j()!" damag~s proximately caused hy these acts and omissions. PlaintifTs are also l'ntitkd to injuncti\'~ rdiefagainst the Defendants. including a permanent injuncti(ln pmhihiting Deli:ndants Irom engaging in the unlawful practiccs and prol'~durl's complained of h~rein.
XR. As a direct and proximate cause orLkfendants' violations of their constitutional rights. Plaintiffs and memhers of the class suffered damages as sct jllrth bdo\\'.
VI. SECOND CALISE OF ACTlO~ (Claims Arising Under the :\'ew :\1exico Tort Claims Act) Xl). Plaintijfs incorporate hy reference into their scwnd cause of action th~ alkgations of paragraphs I through 88 ahoVe'. as fully as ifreallegcd and sct forth herl'in. l)O. The <:onduct or Defendants, dt:scribed ahove. resulted in persoml injury and hodily ir,jury to Plaintifls and memhers of the class resulting from assault. hattery. false imprisonment. and/or dl'pri\'ntion or rights. pridlcges or immunity secured hy the Constitution
21

and laws ofth~ l.:nit~d States and New ykxico, l) I, D~lendants Solano and Sisneros. as supen'isory law ~nti.)reel11ent oflicers. had the
Juty in any activity actually und~rtak~n hy them to exercise Illr the salety of others that can: ordinarily ~xercised hy a reasonahle. prudent and 4ualilied law e'nti.)ree'l11ent sllp~n'isor in light of the nature of what was heing done'. In addition. DelenJants Solanl) and Sisneros had a Juty to properly screen. hire. train. monitor. supervise and/or discipline el11pl<l)'ees ofSI'CDF. Defendants Solano and Sisneros knew or reasonahly should hav~ known <lfthe' information descrihcd ahove.
l)2. Defendants Solano and Sisneros hreached the I()regoing duties hy failing h) pr<lpcrly sneen. hire. train. monitor. supervise andlor discipline employees ofSITDI'. and hy failing to aJ(lpt appropriate policies. procedures and protocols. hy tililing to implement appropriate supplemental training. hy failing to appropriatdy discipline suhordinate' otTicers. and hy f:liling to wke other appropriate and usual supe'n'isory actions to corre'ct the prohkms and to prc\'cnt the harm which resulted to Plaintiffs and memhers of the class as a result of the misconduct of Delendants. descrihed aho\'l'.
9~. Santa Fe County is the governmental ~ntity \\hich had immediate supervisory
responsihility o\'~r the actions of employees <If Santa F~ ('ounty. including but not Iimitcd to
Defcndants Solano. Sisneros and Dixon. Therefore. Santa h: County is jointly and severally liahle Il)r all injurks and damages caused by th~ nl'glig~nce ofGny of its municipal ,)Ilil'ials (lr employees lInde'r the doctrine of\'icariolls liahility.
1)4. The conduct of Iktt:ndants was a direct and proximate cause (lfthe' injuries and damage's to Plaintiffs and mcmhers of the class as set (nnh help\\,.

I}). All or the acts or omissions which constitutc thc hasis Il)r liahility herein come

within the scopc' oflhe waivers of immunity contained within the i\ew Mexic,) Tort Claims Act.

CJ6. To the extent rcquired. PlaiJ1liffs hayc givcn ",rinen notice ofthc claims contained

hcrein in compliance with th<.:' \lew \1exicolort Claims Act. ~41-4-16(A)-(CI i\MSA 1978. as

amcnded.

97. As a dircct and proximate cause of Defcndallls' conduet. Plaintiffs and mcmhers

ofth(' class suflercd damages as set forth helow.

VII. THIRD CAliSE OF ACTION (Claims Arising l'ndl'r Jlil'W Mexico Common Law)

98. Plaintiffs incorporate hy referc'nce into their third cause of action the allcgations of

paragraphs I through 47 ahmc. as fully as if rcalkged and set forth herein.

\onc <19. The acts and omissions of [)efcnd~U1ts

~md Dixon. as sct forth aboyc. gin!

rise to liability hased on assault. battery. invasion ofpri\acy. and intentional infliction of

emotional distress.

100. As a direct and proximate cause of Defcndants' conduct. Plaintiffs and mcmbc'rs

ofth" class suffered damages as set forth "dow.

VIII. FOUUH CAliSE OF ACTIO'" (Declaratory and Injunetin Relief)

101. Plaintiffs incorporate hy reference into their I()urth cause of action the allegations

of paragraphs I through 100 ahove. as fully as ifreallegcd and set forth herein.

102. Plaintiffs. on hchalf of themselves and the memhcrs of the class. seek a judgment

declaring that Defendants Illust cease the activities dc'scrihed herein and enjoining Defendants

l--''

from any furth.:r strip s.:archcs without individualiz.:d r.:asonahk suspicion. 103. The constitutional \'iolations alkg.:d h.:rein aris.: from nfficial polici.:s and
practices sanctinned hy Defendants. Th.: harm which the Plaintiffs and the m.:mh.:rs nrthe class have sustained arc directly traceahle to these nfticially sanctioned policies and procedures.
104. Plaintiffs and memhers of the class do n()t have a plain. adequate. speedy. or c()mpicte remedy at law to address the wrongs alleg.:d in this Complaint. and they will suiTer irreparahle injury as a result of Delendants' misconduct unless injunctive and declaratory relkf is granted. Plaintiffs and memhers of the dass ar.: in real and illlmediat.: danger ofsustnining futur.:. direct injury as a rcsult of Def.:ndants· oflicial policies and practices that arc (lngoing at the time of this suit.
105. !\o cognizahle hurden will he placed on Dd.:ndants hy requiring that no strip search.:s he und.:rtaken without individualized reasonahle suspicicl]]. The public inkrest would he greatl~ c'nhanced hy l'nlllrcement of policies and practices which adhere III the requirements of the state and federal Constitutions. Absent injunctive rdic!: there is no guarantee thm the Dct-':ndants will cease their illegal policies and practices as alleged herein.
106. By reason llfthe foregoing. Plaintii1's and memhers of the class arc entitled to declaratory and injunctive relief as set forth ahovc.
IX.
nAMAGES 107. Paragraphs I through 106. ahol"e. arc incorporated herein hy rcti:rc'nce as iffully set forth in this paragraph. lOS. As a direct and proxil1lat~ rl!sult ()rth~ wrongful and unlu\\ ful al'tions of
24

Dcf.:ndants. dcs~rihed aho".:. I'laintilTs and thl' mcmh.:rs llfthl' class were injured and have sulTer.:d and CLlntinul' to sutler damages. including hut nOllimited to distrl'ss. anguish, suffering. humiliati(lI1. deprivation of constituti(lnal rights. and nth.:r incidl'ntaL c(lnsel.juentiaL and special damages.
1(19. Dclendants' acts and omissions. as s.:t lilrlh h.:rein. w.:re mulici(lus. reckkss. wanton. oppressive. and/or frauduknt.justitYing an award of punitive damages against the
individually named Delendants in their personal capacities. and against Delendants MTC and
Dixon. I,'r the purpose of punishm.:nt and to deter others from the commission of like ofll-nses. WHEREFORE. Plaintiffs. on hehalfofthemseivcs. and on h.:halfofthe memhers of the
class represented herein. respectfully pray Ii))" and demand judgm.:nt against the Defendants <1'; follows:
(al For judgment against Defendants lI,r wmpensatory dumagl·s. spl'cial damages. consequential damages and incidental damages und.:r any or all of the causes "faction. in an amount to he determined at the trial of this cause:
(h I For judgment declaring the rights of the parties: (~I For injunctive relief: (d) For reasonable attorneys' fees and costs incurn:d herein: (e) For pre-judgment and post-judgment interest in amounts to be determined
according 10 law:
(n For an award of punitive and exemplary damages. in an amount to he ddermined
at the trial of this eause: and (gl For such othcr and further relief as the Court deems just and proper.
25

JllRY TRIAL REQUEST
CO\11: NOW Plaintiffs Elizaheth Leyba. Natasha Apodaca. !'Janey lOliin. Monica Garcia. Lucy \1. Marquez. Mark \1iller. Copper Perry. David Sand""ui. I.::risti Seihold. Russella Serna. and I.::imherly Wright hy and through their l·ollllsei. helow-listed. on their own hehalf and on hellalf of a class of similarly situated persons. and hereby demand trial by jury pursuant to the tcrllls and conditions ofFedJCCiv.P. 311 in regard to all issues in the above-rekrmeed cause.
Respcctiully submitkd. ROTHSTFII\. DONATEI.I L IIUGIIES.
DAIILSTRO\1 & SCIIOL!'JBl.:RG. LLP
/<'
By: Mar' ~ )onatelli Robert R. Rothskin John C. Bicl1\'enu Post Onicc Box &180 Santa Fe. "lew \kxico 8750~-S 180 (505) 'lXX-800~ (505) 982-0307 (faX) AUOrl1L'ysti>r Plainlit!.i· (Ind Ihl' ( '/(/.1'.1'
26

 
 r
F
!

IN TIIE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLIN, MONICA

,

GARCIA, LUCY M. MARQUEZ, MARK

MILLER, COPPER PERRY, DAVID

[

SANDOVAL, KRIST! SEmOLD, RUSSELLA

SERNA, and KIMBERLY WRIGHT,

on their own behalfand on behalf of a class of

similarly situated persons,

Plaintiffs,

vs.

No. CIV-OS-0036 BB/ACT

SANTA FE COUNTY BOARD OF COMMISSIONERS; MANAGEMENT AND TRAINING CORPORATION; SANTA FE COUNTY SHEruFF GREG SOLANO, in his individual and official capacities; FORMER SANTA FE COUNTY SHEruFF RAYMOND L. SISNEROS, in his individual and official capacities; and KERRY DIXON, in his individual and official capacities,

Defendants.

AFFIDAVIT OF JOHN C. BIENVENU IN SUPPORT OF JOINT UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT AND APPROVAL OF ATTORNEYS FEES, COSTS AND INCENTIVE PAYMENTS
STATEOFNEWMEXICO ) ) ss:
COUNTY OF SANTA FE )
JOHN C. BIENVENU, being fIrst duly sworn upon his oath, deposes and states as
follows:
I. This Affidavit is submitted in support of the Joint Unopposed Motion for Final
Approval of Class Action Settlement Agreement and Memorandum in Support of Approval of

~
,
"

Attorneys Fees, Costs and Incentive Payments. The facts set forth herein are true afmy own

personal knowledge and I am competent to testify thereto.

,

2. I am a graduate of Stanford Law School, having received a J.D. degree ("With Distinction") from that institution on June 12, 1988. I was an honors student at the University of

I

r,

California at Berkeley from 1975 to 1978. I received a B.A. degree (summa cum laude) from the

University of New Mexico in 1985.

3. I am a member in good standing of the State Bar of New Mexico and the State Bar

of California (inactive status). I am admitted to practice before the United States District Court for the District of New Mexico, the United States District Court for the Northern District of

I

California, the United States District Court for the District of Arizona, the United States Court of

I:

, "

Appeal for the Ninth Circuit, the United States Court of Appeal for the Tenth Circuit, and the

f

United States Court of Federal Claims.

I

4. From 1988 to 1990, I practiced civil litigation with the law firm of Brobeck,

,,I

Phieger & Harrison in San Francisco and Palo Alto, California; from 1990 to 1993, I practiced

civil litigation with the law finn of Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg

in Santa Fe, New Mexico; from 1993 to 2003, I practiced civil litigation in my own law office;

and since 2004, I have been a partner with the law firm of Rothstein, Donatelli, Hughes,

Dahlstrom, Schoenburg & Bienvenu, LLP.

5. My practice consists exclusively of civil litigation. My practice is primarily in the

area of civil rights litigation, and I have experience in other complex civil litigation including

commercial litigation, antitrust, RICO, and patent and copyright litigation. I have tried numerous

t

cases to both judges and juries in state and federal court. I completed a two week course in trial

;

2

r, f ,
,

advocacy at the National Institute of Trial Advocacy in Boulder, Colorado in 1991. I have

lectured on trial advocacy at the Intersession Trial Practice Course at the University ofNew

Mexico School of Law. I have been retained as an expert witness to provide testimony on the

standard of care in civil rights litigation. I am rated A-V by Martindale-Hubbell.

6. In addition to this case, I am counsel of record for the plaintiffs in the following

class action lawsuits: Garcia, el at. v. Regents a/the University a/California, et aI., No. CIV-03-

1404 WJIRLP (co-lead counsel); Kelley, et af. v. Regents ofthe University a/California, et 01.,

No. SF 96-2430 (co-lead counsel); In re Dewen Federal Bank FSB Mortgage Servicing Litigation, MDL No. 1604 (counsel for the New Mexico class); Lira, et af. v. Dona Ana County

~

Board ofCommissioners, et al., No. eIV 06-0179 WPJIWPL (co-lead counsel); Rodriguez v.

Dona Ana County Board o/Commissioners, et aI., No. eN 06-0416 JHlRHS (co-lead counsel).

I
L

7. The other attorneys in this law firm working on this case are highly experienced in

the areas of civil rights litigation and complex civil litigation, including class actions. Robert R.

Rothstein is one of the premier civil rights practitioners in the COWltry and has also served as lead counsel for the plaintiffs in a number of class actions. Mark H. Donatelli also has extensive

,~

experience in complex civil litigation of this type and has litigated class action lawsuits. Mr.

",l:.

Donatelli and Me. Rothstein are also very experienced in the areas of criminal law and are widely

acknowledged for their expertise in correctional law.

8. We began working on this litigation in November, 2004. Discovery in this case

was extensive. We obtained and reviewed all relevant documents from the Defendants in

discovery. in addition to computer records of some thirty thousand detainees. We developed a

comprehensive computer database for the information obtained through discovery that allowed

3

us to keep track of the large volume ofinfonnation. We consulted with third party witnesses and

experts and retained expert witnesses and consultants to assist in the gathering of information and

the analysis of the infonnation received. All of the named Plaintiffs were deposed by the

Defendants, and the Plaintiffs deposed the named Defendants and many other important

witnesses. The extensive discovery completed provided a finn and comprehensive basis of

knowledge of the relevant facts and issues on which the settlements were based.

9. The settlements were reached following extensive mediation efforts assisted by a

very experienced and reputable mediator, retired United States District Judge Raul A. Ramirez.

These settlement negotiations began in September of 2005 and continued for many more months

with numerous meetings of the parties and their counsel, including six days of mediation with

Judge Ramirez. The settlement negotiations were vigorous, intense, and hotly-contested. Even

l

after reaching agreements in principle, it took the parties many more months of intensive

negotiations to agree on the myriad details of the settlements and the fonn of the settlement

documents. The final settlement was reached only after extensive arms-length negotiations, and

i

these negotiations were in good faith. 10. The amount of attorneys fees was not negotiated until after agreement was

I

reached on payments to the class. The settlement was intentionally structured to ensure that the

payment of attorneys fees and costs would not come out of the recovery to the class members,

but instead would be paid by the Defendants. The amount of attorneys fees was therefore subject

to intensive, adversarial negotiation with the Defendants.

II. In addition to monetary relief, as a direct result of Plaintiffs' and Class Counsel's

,

efforts, the unconstitutional strip search policies in place at the Santa Fe County Detention

4

Facility were abolished, and have since been completely revised.

12. While extensive discovery was undertaken before the settlements were reached,

'"

substantial additional discovery remained. We anticipated taking and defending numerous additional depositions, including expert depositions. Identification of trial witnesses and exhibits

I

r

remained to be done. Due to the breadth of the allegations and the number of individual

rc
,

claimants, all parties anticipated a lengthy trial. Regardless of the outcome at trial, all parties

anticipated appeals of the resulting judgments. Thus, future recovery, if any, to the class

members through trial, was years away.

13. It is my considered opinion that the settlement fund established here is a very

meaningful benefit to the members of the class, that the change in policies effected by this

lawsuit is an extremely significant benefit to the community, and that the average class member's

I

chances of obtaining better results by continuing the litigation or by pursuing separate claims

would be uncertain at best.

14. For thirty years, our law firm has been involved in hundreds of civil rights cases. Based on my involvement in civil rights and employment cases and other complex litigation, I am very familiar with and knowledgeable about contemporary market rates for attorneys in New

l
!

Mexico practicing in these areas. I have reviewed and studied numerous affidavits in support of

I

fee applications as well as decisions of the federal and state courts awarding fees in this

jurisdiction. My own customary hourly rate for civil litigation matters has been $275 for the past

two years, and was recently increased to the current rate of $300 per hour, plus gross receipts tax.

Other partners in this law fum have the same or higher customary hourly rate for civil litigation matters (other than in the special practice of Indian law in which lower hourly rates have

I

5

historically prevailed).

15. I began working on this litigation in November, 2004. I have maintained

contemporaneous records of all time spent on this case in increments of one-tenth of an hour (six

minutes). The other attorneys and staffworking on this case have also maintained

contemporaneous records of their time. I have reviewed these time records and can attest that

r

these hours were reasonably and necessarily devoted to the prosecution of this lawsuit.

16. The hours spent by each timekeeper on this case through November 27, 2006 is as

follows:

TIMEKEEPER TOTAL

HOURS

RRR

'56

MHD

238

JCB

SO,

JD

.,

JLS

21

Sl'

2S

FTA

70

BJ

24

RAM

137

LES

89

JC

.59

JB

8

MB

8

2,441

HOURLY RATE $300.00 $)00.00
$300.00 $200.00 $200.00 $200,00 S200.00 S100.00 $100.00 $100.00 $100.00
$75.00 $75.00 TOTAL

TOTAL
$106,800 $11,400 $241,500
$100 $4,200 55,000 $14,000 $2,400 $13,700 $8,900 565,900
$5,100
""
SS39,2ZS

17. We are continuing to devote substantial attorney and staff time to this litigation

with respect to obtaining fmal approval ofthe settlement agreement, communications with Class

Members, and the claims detennination process. I anticipate that hundreds ofhours of additional

I,"
!
I
,

6

attorney and staff time will be devoted to such work through the first halfof2007. No additional

, ,
compensation will be sought or received for such future work.

18. This law finn has advanced a total of$77,548.71 in litigation expenses in this lawsuit through November 22, 2006. These expenses include expert witness fees, mediation

~"
,

[
expenses, expenses for consultants and private investigators, computer database access charges,

document reproduction, long distance charges, telefax charges, deposition expenses, travel

expenses, and miscellaneous litigation expenses. Each of these expenses is documented and

itemized. In addition, this law firm has incurred additional expenses for claims administration and outreach efforts that have not yet been billed or paid, which I have estimated at $33,000. All

~

of these expenses were reasonably and necessarily incurred in the prosecution of this litigation.

I

i" :
19. A summary of these expenses is as follows:

AMOUNT

DESCRIPTION OF COSTS

51,535.29 Electronic Research

$938.36 Long Distance and Conferencc Calling

$469.97 Postage and Federal Express

$4,177.75 Document Reproduction

5159.00 Facsimiles

$10,05652 Court Reporters and Vide.ographers

SI,659.77 Food and Travel

$4150.00 Filing Fees

$22,453.76 Mediation

S28,448,29 Claims Administration/Outreach

S3,500.00 Expert Witness

$33,000.00 Outstanding Claims Administration/Outreach (estimated)

SII0,548.71 TOTAL

20. Additional out of pocket expenses continue to be incurred in connection with this

, i
!
,
I
I'

7

~
,I'

litigation and the claims determination process. No further reimbursement will be sought or

obtained for these additional out of pocket expenses.

21. My customary fee arrangement for a contingency case is one-third of the recovery,

plus gross receipts tax and out-of-pocket expenses. I am familiar with the customary fee

arrangements in Santa Fe and New Mexico for contingency cases, which are for one-third or

more of the recovery, plus gross receipts tax and out-of-pocket expenses.

22. Fee Agreements were entered into between Class Counsel and each of the named

Plaintiffs in this case. Those Fee Agreements provided that Class Counsel would represent the

r

Plaintiffs on a contingency basis whereby Class Counsel would be entitled to 33 113% of any recovery (Plus gross receipts tax), but would receive no compensation in the event no recovery

,

was obtained.

r

23. I am familiar with hourly rates in Santa Fe and New Mexico for complex civil

I p

litigation. For partners, such rates range from $250 to $375. My current hourly rate for a case of

this type, if! were to make an hourly rate arrangement, would be $300 per hour plus gross

receipts tax. However, I would not take a case of this type on a contingency basis unless I

i,

expected to receive significantly more than that hourly rate to compensate for the uncertainty of

t

payment and the delay in payment.

24. This case has required a significant percentage of my time over the past several

years and I have turned down other cases in order to ensure that I had sufficient time to devote to

this matter.

25. Named Plaintiffs Elizabeth Leyba, Natasha Apodaca, Nancy Ellin, Monica Garcia, Lucy M. Marquez, Mark Miller, Copper Perry, David Sandoval, Kristi Seibold, Russella

t
r

8

Serna, and Kimberly Wright agreed to assume significant responsibilities when they agreed to

become Class Representatives. These named Plaintiffs understood and agreed that they would be

ultimately responsible for the litigation expenses incurred in this case in the event that there was

no recovery. They also understood and agreed that they would be required to participate in

decision-making regarding this litigation, to attend hearings, to attend depositions, to be deposed

themselves, to respond to interrogatories, requests for production and requests for admission, to

attend meetings with Class Counsel, to participate in mediation, and to testify at trial. They

performed all of the duties that were required and their participation was essential to the

successful prosecution of this lawsuit. I would estimate that each of these named Plaintiffs has

devoted a minimum of one hundred hours to their duties, and some of them substantially more.

They took their duties seriously and acted responsibly. By agreeing to be named Plaintiffs, they

exposed themselves to financial liabilities, as well as to public scrutiny and the scrutiny of the

Defendants and their attorneys. They each devoted substantial time and expense in traveling to

meetings, depositions, and settlement conferences in Santa Fe and Albuquerque. They were

required to, and did, put the interests of the class members ahead of their own self-interest in this matter. It is my firm belief that they are entitled to the additional incentive awards set forth in

!

,

the proposed settlement agreement, and as agreed to by the Defendants.

26. In addition to the notice provided by the Claims Administrator, we separately

undertook extensive outreach efforts in an effort to locate potential Class Members and inform

them of the settlement and the procedure for filing claims. We developed a database to track

contacts with all potential Class Members. We hired staff dedicated to making telephone and in-

t

person contacts with potential Class Members. We mailed thousands of additional notice

c

9

packages and claim fonns to potential Class Members. We published additional advertisements

in various newspapers, and placed additional radio advertisements in a number of radio stations

in Santa Fe and Rio Arriba Counties. We invested many hundreds of hours in staff time and

approximately $60,000 in these outreach efforts. I believe that these efforts directly resulted in

doubling or tripling the number of Claim Forms received.

27. As of November 30, 2006, 3,481 individuals have filed Claim Forms. No Class

Members have objected to the settlement. Three individuals have opted out of the settlement.

Claim Forms will be considered timely if they are postmarked no later than November 27, 2006.

Assuming that several hWldred additional timely and valid Claim Forms will be received. I

estimate that the total amoWlt of claims to be paid will be well over $4.000,000, but somewhat

less than the amount allocated for payment of claims ($5,529,750).

FURTHER AFFIANT SAYETH NAUGHT.

,

C. BIENVENU
SUBSCRIEED AND SWORN TO before me this~day ofNovember, 2006, at Santa
Fe, New Mexico.

My commission expires:
,
10

 
 ,

IN THE UNITED STATES DISTRICT COURT

"

FOR THE DISTRICT OF NEW MEXICO

ELIZABETH LEYBA, NATASHA

APODACA, NANCY ELLIN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID

SANDOVAL, KRISTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT,

on their own behalf and on behalf of a class of

similarly situated persons,

vs.

Plaintiffs,

No. CIV-OS-0036 BB/ACT

I

SANTA FE COUNTY BOARD OF COMMISSIONERS; MANAGEMENT

, I
~

AND TRAINING CORPORATION;

I

SANTA FE COUNTY SHERIFF GREG

I

SOLANO, in his individual and official

I

capacities; FORMER SANTA FE COUNTY

,i

SHERIFF RAYMOND L. SISNEROS, in his

individual and official capacities; and KERRY

DIXON, in his individual and official capacities,

Defendants.

AFFIDAVIT OF ROBERT R. ROTHSTEIN IN SUPPORT OF JOINT UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT AND APPROVAL OF ATTORNEYS FEES,
COSTS AND INCEPTIVE PAYMENTS

STATE OF NEW MEXICO )

) ss:

COUNTY OF SANTA FE

)

ROBERT R. ROTHSTEIN, being first duly sworn upon his oath, deposes and states

as follows:

~
,

,r

1. This Affidavit is submitted in support of the Joint Unopposed Motion for Final

Approval of Class Action Settlement Agreement and Approval of Attorneys Fees, Costs and

I

Inceptive Payments. The facts set forth herein are true afmy own personal knowledge and I

r

c

am competent to testify thereto.

2. I am a partner with the law firm of Rothstein, Donatelli, Hughes, Dahlstrom,

Schoenburg & Bienvenu, LLP and serve as counsel of record for Plaintiffs in this proceeding.

I am a member in good standing of the State Bar of New Mexico and admitted to practice before the United States District Court for the District of New Mexico, the United States

~

i

!

Court of Appeals for the Tenth Circuit, the United States Supreme Court as well as several

l

other district courts.

3. I received my law degree from Boal! Hall in 1974 and completed advanced

study at the Center for the Study of Law and Society at the University of California. I have

been licensed to practice law in New Mexico since 1974. I have served as the chair and a

member of the New Mexico Supreme Court Rules of Evidence Committee and as a member

of the Rules of Civil Procedure Committee. I have an AV rating from Martindale Hubbell

and have selected to be included in "Best Lawyers in America" in employment law, personal

injury and criminal defense.

4. My practice consists primarily of civil litigation in the areas of civil rights and

other complex civil litigation including employment, commercial litigation, antitrust and

I

RICO litigation. In addition to this case, I am counsel of record for the plaintiffs in the

;

following class action lawsuits: Garcia, et af. v. Regents ofthe University ofCalifornia, et

6
,[

al., No. CIV-03-1404 WJIRLP (co-lead counsel); Allison v. Linco/n County Board oj

Commissioners, et al., No. eV05-S81 WPJfWDS (co-lead counsel); Lira, et al. v. Dona Ana

I

Counly Board oJCollllllissioners, el aI., No. elV 06-0179 WPJIWPL (co-lead counsel);

-,
,..

Rodriguez v. DOlla Ana County Board ofCommissioners, et ai., No. eIV 06-0416 JHlRHS

(co-lead counsel). I also have significant experience in criminal and corrections law, having

served as counsel in the Duran prison conditions litigation as well as numerous individual jail

conditions cases. 5. The pertinent facts regarding this litigation are set forth in the Affidavit of

I

,I' ,

John C. Bienvenu and are incorporated hereinto. My current billing rate for complex civil

litigation is $300Ihour. This is consistent with prevailing rates for persons with similar

qualifications practicing in this area of the law in this vicinity.

6. It is my opinion that the settlement fund established here is a very meaningful

benefit to the members of the class, that the change in policies effected by this lawsuit is an

-

extremely significant benefit to the community. and that the average class members' chances

!,

[

of obtaining better results by continuing the litigation or by pursuing separate claims would

be uncertain at best.

7. The named Plaintiffs agreed to assume significant responsibilities when they

agreed to become Class Representatives. They understood and agreed that they would be

ultimately responsible for the litigation expenses incurred in this case in the event that there

t

was no recovery. They also understood and agreed that they would be required to participate

c

in decision-making regarding this litigation, to attend hearings. to attend depositions, to be

r
[ 1

,

deposed themselves, to respond to interrogatories, requests for production and requests for

I

admission, to attend meetings with Class Counsel, to participate in mediation, and to testify at

!,

trial. They performed all of the duties that were required and their participation was essential

r

to the successful prosecution of this lawsuit. They took their duties seriously and acted

responsibly. By agreeing to be named Plaintiffs, they exposed themselves to financial

liabilities, as well as to public scrutiny and the scrutiny of the Defendants and their attorneys.

,

They devoted substantial time and expense in traveling to meetings, depositions. and numerous settlement conferences in Albuquerque. They were required to, and did, put the

I

, "

!

interests of the class members ahead of their own self-interest in this matter. It is my belief

c!

that they are entitled to the additional incentive award set forth in the proposed settlement

I

I:

agreement.

I

I

FURTHER AFFIANT SAYETH NAUGHT,

W~-'

,~

R~STETIN

E"

SUBSCRIBED AND SWORN TO before me this 3bJf day of November, 2006, at
Santa Fe, New Mexico by Robert R Rothstein.

My commission expires:

,

~ lit, ;;1.010

S:\MARK\6304\P1cadings\RRR Affidavil.wpd

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLIN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID SANDOVAL, KRISTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs,

vs.

No. CIV:·05~0036-BB/ACT

SANTA FE COUNTY BOARD OF COMMISSIONERS; MANAGEMENT AND TRAINING CORPORATION; SANTA FE COUNTY SHERIFF GREG SOLANO, in his individual and official capacities; FORMER SANTA FE COUNTY SHERIFF RAYMOND L. SISNEROS, in his individual and official capacities; and KERRY DIXON, in his individual and official capacities,

Defendants.

AFFIDAVIT OF MARK PATTON INSUPPORT OF JOINT UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT

STATE OF FLORIDA

)

) ss:

COUNTY OF LEON

)

Mark Patton, being first duly sworn upon his oath, deposes and states as follows:

1. This Affidavit is submitted in support of the Joint Unopposed Motion for

Final Approval of Class Action Settlement Agreement and Memorandum in

Support of Award of Reasonable Attorneys Fees, Costs and Incentive

Payments.

2. On June 24, 2006, Settlement Services, Inc. ("SSI") was appointed by the Court as Administrator in the above-captioned matter.
3. I am an employee ofSSI and have participated in or supervised the performance ofthe settlement administration tasks by SSI. I have personal knowledge of the facts set forth herein and would competently testify thereto if called upon to do so.
4. SSI's responsibilities include but are not limited to: printing and mailing the Notice and Claim Forms to potential Class Members, processing Claim Forms, publication and broadcasting of Summary Notice, establishing a Website for the purpose of downloading Claim Forms, and establishing a to11free number for the purpose of requesting Claim Forms.
5. On or before September 7th, 2006, SSI established a toll free telephone number for class members to call for information about the settlement and to request a Claim Form. The phone script provided the website address and informed callers of the option to download and print a copy of the Notice and Claim Form.
6. On or before September ih, 2006, SSI established a website
www.santafestripsearch.com. The site included Spanish translations ofthe
EiigIisli-fext aiidposfidl:he-S1ipuIafionofSeffIement, Order oIPr-eIiiTIiiiary
Approval, Notice of Proposed Settlement, the Claim Form, and the List of Example Offenses Involving Drugs, Weapons or Violence.

7. On September 7th, 2006, SSI caused to be mailed 19,927 Notice and Claim Form packets to potential Class Members. Each packet included the Notice and Claim Form in English and Spanish.
8. SSI caused the Summary Notice to be published in the following newspapers: Albuquerque Journal (published in both English and Spanish on 09107/06, 09/13/06), The Santa Fe New Mexican (published in both English and Spanish on 09107/06,09115106), and the Rio Grande Sun (published in both English and Spanish on 09107/06,09/14/06).
9. SSI caused to be broadcast a version of the Summary Notice on the following radio stations: KABQ (on six different occasions between 09107/06 and 09115106), KDCE (on six different occasions between 09107/06 and 09/13/06), KKSS (on six different occasions between 09107/06 and 09114106), KJFA (on six different occasions between 09107/06 and 09114106.
10. SSI received (via mail and the toll free phone number) and fulfilled a total of approximately 125 requests for Claim Forms from potential Class Members prior to the November 27, 2006 filing deadline.
11. On Approximately October 2, 2006, SSI caused to be mailed approximately 189 Notice and Claim Form packets to potential Class Members at addresses
pro-YldeaDY CIassColinser.
12. A total of9,556 Notice and Claim Form packets mailed on September 7,2006 were returned as undeliverable by the USPS, and traced (in four separate batches) utilizing our vendor Locator Service. The traces resulted in possible current addresses for 6,849 ofthose traced, and Notice and Claim Forms were

mailed to those addresses in four separate batches, on 10/06/06, 10/13/06, 10/24/06, and 11/15/06. 13. As of this date, SSI has received Claim Forms from approximately 3,402 potential Class Members postmarked on or before November 27,2006. 14. As ofthis date, SSI has received three timely Opt-Outs, and no Objections. FURTHER AFFIANT SAYETH NAUGHT.

~~SCRIBED AND SWORN TO before me this 29th day of November 2006, at

/la1£4?L, Florida.

/ J/rvUJi ~

My commission expires:

f.*I~t!A~rW''~'",,MYCOMMISLSynInONH#arv0e0y19S0a8p2p3 EXPIRES

~\

June 25, 2007

"1,~

BONDED friRU TROY FAiN INSURANCf, INC.

Public

>

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLIN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID SANDOVAL, KRISTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs,

vs.

No. CIV-05-0036 BB/ACT

SANTA FE COUNTY BOARD OF

COMMISSIONERS; MANAGEMENT

AND TRAINING CORPORATION;

Ii,'

SANTA FE COUNTY SHERIFF GREG SOLANO, in his individual and official

I-

capacities; FORMER SANTA FE COUNTY

SHERIFF RAYMOND L. SISNEROS, in his

individual and official capacities; and KERRY

DIXON, in his individual and official capacities,

,
,r

Defendants.

AFFIDAVIT OF PAUL BARDACKE IN SUPPORT OF APPROVAL OF ATTORNEYS FEES AND COSTS

I

STATE OF NEW MEXICO ) ) ss:
COUNTY OF SANTA FE )

PAUL BARDACKE, being first duly sworn upon his oath, deposes and states as follows:

I. I am an attorney with the finn of Sutin, Thayer & Browne P.C. I was a partner

with the Sutin fInn from 1970 to 1983, then rejoined the funn from 1987 to 1990, and again in

July 0[2005. Prior to my rejoining the Sutin finn, I was a shareholder with the finn or Eaves,

Bardacke, Baugh, Kiernan & Larsen, P.A. from 1990 to 2005. Prior to my joining the Eaves,

Bardacke firm, I was Attorney General of the State of New Mexico from 1983 to 1986.

2. I have practiced law since 1969. I am admitted to practice law in California

(1969) and New Mexico (1970). I am also admitted to practice before the United States District

Court, District of New Mexico; U.S. Court of Appeals, Tenth Circuit; U.S. Court of Appeals,

Ninth Circuit; and the United States Supreme Court.

3. I graduated from the University of California at Santa Barbara (B.A. Cum Laude

1966) and received my juris doctor from the University of California at Berkeley, Boalt Hall in

1969. Since 1969. I have maintained an active litigation practice. My firm and I specialize in major complex litigation, and I regularly appear before all levels of state and federal courts in

i

New Mexico and elsewhere. I have represented the State of New Mexico in State o/New Mexico

,J.;

,!~

ex. Rei. Tom Udall v. The American Tobacco, et ai, prosecuting the lawsuit against major

i-

,t

tobacco companies and was successful in obtaining a $1.16 billion settlement, the largest civil

I

I

settlement in the history of the State of New Mexico.

I

!

4. My previous finn and I were one of the counsel in In Re: Lease Oil Antitrust

Litigation (11), a class action in the United States District for the Southern District of Texas; a

L

global settlement of approximately $164.2 million was approved in that case. My previous finn

and I were also one of the counsel in In Re: New Mexico Vitamins Indirect Purchaser Antitrust

Litigation filed in the Second Judicial District Court in Bernalillo County. A nationwide class

was certified in the District of Columbia. a settlement was negotiated, and the New Mexico

District Court granted approval on April 19, 2002.

5. In addition, I am counsel in a number of class actions brought under the common

law and the New Mexico Unfair Practices Act against various life insurance companies on behalf

f
"

2

of a class of persons who purchased life insurance policies and who, by paying premiums on a

monthly basis, were paying premiums greater than the guaranteed annual premium specified in

their policies. Nationwide classes were certified as part of a settlement in many ofthese cases,

and in others, certification was granted by the court and the cases are still pending.

6. In addition to the complex cases set forth above, I have tried or settled numerous

litigation matters in New Mexico involving complex disputes against well-financed and

aggressively represented adversaries.

7. I also maintain an active mediation practice in which I have successfully mediated

numerous complex litigation matters involving multiple parties and complex issues of law and

fact, including class actions.

8. In connection with my litigation practice, I have been paid on both an hourly and

I,

contingent basis. Based on my litigation and mediation experience, I am familiar with fair and

reasonable rates for legal work in New Mexico and the amount of time reasonably necessary to

be invested in complex litigation matters.

9. I have been asked by Plaintiffs' counsel to express an opinion concerning the

Plaintiffs' request for approval of their attorneys fees and costs in this matter. In order to render

my opinion, I have reviewed the materials provided by Plaintiffs' counsel, including the

pleadings, the settlement agreement, the motion for fmal approval, the brief in support of

approval of attorneys fees and costs, and the affidavits in support of same. I have also reviewed

and am familiar with the attorneys fees in similar cases, and the law applicable to attorneys fees

awards.

I

10. A case such as this one is risky and time-consuming to bring to a successful

",.

3

resolution. Such a complex, difficult case can require thousands of hours of attorney and staff

time and, had plaintiffs' counsel lost at either the certification stage of the proceedings or at trial,

they would have received no compensation for all of their efforts. Moreover, a case of this type

against defendants with significant resources such as Defendant Management & Training

Corporation can require significant amounts of out-of-pocket expenses. Had plaintiffs not

prevailed, they would have lost their entire investment in the case. The knowledge that

substantial investments oftime and out-of-pocket costs would be required, with no guarantee of

reimbursement, also made this case very risky.

11. The settlement in this case represents an excellent result. Through the Plaintiffs'

efforts, an unconstitutional strip search policy at the Santa Fe County Detention Center was

,,,'"

abolished. In addition, the Plaintiffs secured a substantial settlement fund to compensate those

,i
L

i

individuals who were subjected to such unconstitutional strip searches. Given the nature of the
I

risk undertaken by Class Counsel and the very favorable result obtained in this case, Class

I

!

Counsel are entitled to be fully and fairly compensated for their efforts. This is particularly true

as the amount to be paid to Class Counsel will not reduce the amount to be paid to the Class

i

,I'

Members.

i,
t

12. It is my experience that in the vast majority of class action settlements in New

Mexico and elsewhere, attorneys fees are awarded based on a percentage of the recovery method.

This is the method consistently used by the District Court for the District of New Mexico, and

has also just been adopted by the New Mexico Court of Appeals. Under the percentage of

recovery method, it is typical to award attorneys fees in the range of 25% or more of the total

recovery (i.e., the total monetary benefit recovered for the benefit of the class, including attorneys

4

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fees, costs and claims administration expenses).

13. In this case, the Parties engaged in anns-length negotiations and agreed that the

Defendants would pay $2,000,000 for Plaintiffs' reasonable attorneys fees and costs, subject to

the Court's approval. In New Mexico, it is customary to charge clients gross receipts tax on
!
attorneys fees, and courts customarily award gross receipts tax in addition to attorneys fees. It is

my understanding that the Plaintiffs' reasonably incurred out-of-pocket expenses are

approximately $110,000. Thus, the agreed-upon payment of $2,000,000 breaks down to

$110,000 in costs, $1,756,098 in fees, and $133,902 in gross receipts tax.

;

14. In my opinion, the amount of fees and costs agreed upon by the Parties through

I

anTIs-length negotiations is very fair and reasonable and should be approved. The attorneys fee

i

represents approximately 21% of the total fund recovered for the benefit of the class

l

($8,500,000), which is on the very low end of commonly approved attorneys fees in similar class

action litigation.

15. I have also examined this fee as cross-checked against the Plaintiffs' lodestar. I

have reviewed the materials supplied by Plaintiffs' counsel and understand that the Plaintiffs'

raw lodestar (to date) is $539,225. Thus, the agreed-upon fee of$I,756,098 is equal to applying

a multiplier of approximately 3.26 to the raw lodestar. In my experience, multipliers in this

range are routinely approved in similar class action litigation and this further supports the

reasonableness of the requested attorneys fee.

16. With respect to the hourly rates used by Class Counsel for detennining the raw

lodestar, I am familiar with the range of rates charged by counsel who have the experience and

f

ability to take on such litigation. For New Mexico counsel, such rates range between $175 hour

1:

5

for associates to $375 per hour for more senior partners. I am familiar with the work product,

experience, reputation and competence of Class Counsel in this case. In my opinion, the rates

used by Class Counsel ($300 per hour for partners Robert R. Rothstein, Mark H. Donatelli and

,

John C. Bienvenu), their associates ($200 per hour) and their staff ($100 per hour for legal

, b-

assistants) for calculating the raw lodestar are fair and reasonable and fully justified, compared to

what comparable lawyers in this locality charge and receive for work of similar complexity.

17. In addition, in my opinion the amount of time required by Class Counsel to bring

this case to a successful resolution was reasonable and evidences an efficient and economical approach to this litigation, while at the same time giving due attention to the many complexities

~

of this case.

,I.

i-

18. I have also reviewed the SlliDITIary of costs incurred by Class Counsel on behalf of

L,

the Plaintiffs and the Class. I find these costs to be reasonable in amount. They should be fully

reimbursed.

19. I am familiar with the economic realities of practicing in a small law finn. It is

difficult and risky for a small law finn to take on large-scale litigation such as this, which

requires significant and sometimes overwhelming investment oftime and money, with no

certainty of recovery, and with payment received, if at all, many years after the work is begun.

Counsel who agree to take on such cases, especially those which clearly vindicate the public

interest as is true in this case, deserve to be fully and fairly compensated for their efforts. Such

compensation is not in any way a windfall, especially when compared to attorneys who are paid

on an hourly rate, on a monthly basis, with no risk whatsoever.

t

19. In sum, it is my opinion that the amount negotiated and agreed to by the Parties in

"

6

this case for fees and costs is consistent with the law, consistent with and even on the low end of fees awarded in similar cases, and is fair and reasonable and should be approved.
FURTHER AFFIANT SAYETH NAUGHT.

SUBSCRIBED AND SWORN TO before me thisO\~ay of November, 2006, at Santa
Fe, New Mexico.
~~ ot Pubhc

My commission expires:

r

I ,

l

i I , ,
I
r
u

7

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

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLIN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID SANDOVAL, KRISTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs, vs.

No. CIV 05 0036 BB/ACT

SANTA FE COUNTY BOARD OF COMMISSIONERS; MANAGEMENT & TRAINING CORPORATION; SANTA FE COUNTY SHERIFF GREG SOLANO, in his individual and official capacities; FORMER SANTA FE COUNTY SHERIFF RAYMOND L. SISNEROS, in his individual and official capacities; and KERRY DIXON, in his individual and official capacities,

Defendants.

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COUNTY CLASS ACTION STRIP SEARCH CASE

If you were strip searched at intake and booking at the Santa Fe County Detention Facility before you were arraigned between January 12, 2002 and July 6, 2006, you may be entitled to monetary compensation under a proposed class action settlement.

There is presently pending a lawsuit filed as a class action in the United States District Court, District of New Mexico. The parties have proposed a settlement that, if it receives final approval, after all appeals, will provide that certain persons subject to strip searches at the Santa Fe County Adult Detention Center will receive money. Records of the Santa Fe County Detention Facility show that you were booked into the facility during the relevant time period. To receive monetary compensation in this pending settlement, you must fill out and mail a claim form by November 6, 2006.

IF YOU WISH TO CLAIM MONETARY COMPENSATION, OBTAIN, FILL OUT AND MAIL THE CLAIM FORM AS SOON
AS POSSIBLE BUT NO LATER THAN NOVEMBER 6, 2006.

For more information, please read this notice.
PLEASE READ THIS ENTIRE NOTICE CAREFULLY. YOU MAY BE ENTITLED TO RECEIVE A PAYMENT.
There is now pending in the United States District Court, District of New Mexico, an action filed as a class action on behalf of persons allegedly illegally strip searched at the Santa Fe County Detention Facility between January 12, 2002 and July 6, 2006. A Stipulation of Settlement, approved preliminarily by the Court, defines the class included in this settlement as follows:
All pre-arraignment detainees who were subjected to a strip search upon booking and intake to the Santa Fe County Detention Facility during the Class Period (January 12, 2002 through July 6, 2006) without individualized reasonable suspicion that the search would lead to the discovery of contraband or weapons, not including persons arrested or booked on charges involving drugs, weapons or violence, substantially similar to those charges in Exhibit 3 to the Stipulation of Settlement.
You have received this Notice either because records of the Santa Fe County Detention Facility indicate that you may be in the class, or because you contacted the Claims Administrator. Whether or not you qualify as a class member will be based upon the records of the Santa Fe County Detention Facility. If these records do not contain your name and show you to be within the definition of the class, you will not qualify.
This Notice is to inform you that a settlement has been proposed in this action and that, as a potential class member, your rights may be affected by the settlement. This Notice also summarizes the terms and effect of the proposed settlement, what you can do to participate in it, how you may obtain money under the settlement, and what you must do if you choose to exclude yourself from the class.
SUMMARY OF THE CASE
On January 12, 2005, Plaintiffs Elizabeth Leyba, Natasha Apodaca, Nancy Ellin, Monica Garcia, Lucy M. Marquez, Mark Miller, Copper Perry, David Sandoval, Kristi Seibold, Russella Serna, and Kimberly Wright (“Plaintiffs”), on behalf of themselves and all persons similarly situated, filed a complaint in the above-captioned matter against Defendants Management & Training Corporation and Kerry Dixon, in his individual and official capacities (“MTC Defendants”), and Santa Fe County Board of Commissioners, Santa Fe County Sheriff Greg Solano, in his individual and official capacities, and former Santa Fe County Sheriff Raymond L. Sisneros, in his individual and official capacities (“Santa Fe County Defendants”), in which they challenged

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

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certain practices of Defendants including the strip search of certain detainees, and sought damages and declaratory and injunctive relief. Plaintiffs allege that they were unlawfully subjected to strip searches performed pursuant to the policies, practices and customs of Defendants of conducting strip searches of all incoming pre-arraignment detainees. Plaintiffs allege that these strip searches were performed without regard to the nature of the alleged offenses for which Plaintiffs had been arrested, and without Defendants having a reasonable belief that the Plaintiffs so searched possessed weapons or contraband, or that there existed facts supporting a reasonable belief that the searches would produce contraband or weapons.
Plaintiffs sought damages for civil rights violations under 42 U.S.C. § 1983, and for claims arising under the New Mexico Tort Claims Act and New Mexico common law. Plaintiffs additionally sought a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches without individualized reasonable suspicion. Plaintiffs brought this action on their own behalf and on behalf of a class of similarly situated individuals.
The MTC Defendants contend that the admissions search policies at the Santa Fe County Adult Detention Facility were reasonably related to legitimate penological interests in deterring the introduction of weapons, drugs and other contraband into the detention center. As such, Defendants submit that detention center policies are entitled to deference under the law, and that the policies should not be found to violate the Constitution or any state law. Defendants deny that all of the Plaintiffs were subject to strip searches upon admission to the detention center, and they deny that all pre-arraignment arrestees were strip searched during the period of time in question. Defendants further deny that searches of the Plaintiffs violated any state or federal statutory or common law.
The Santa Fe County Defendants deny any and all liability for their own acts and omissions and deny any liability for the acts and omissions by independent contractor MTC and MTC’s employees. The Santa Fe County Defendants contend that Count II fails to state a claim upon which relief can be granted under the New Mexico Tort Claims Act. In addition, Defendant Solano and Defendant Sisneros affirmatively assert that they had no role whatsoever in the formulation or implementation of MTC’s strip search policies and have no individual responsibility for any of the allegedly unconstitutional policies, practices or acts of the MTC Defendants, and they also assert qualified immunity as to the violations of 42 U.S.C. § 1983 alleged in the complaint.
In addition, Defendants assert that a class action is inappropriate and that the claim for injunctive relief is moot.
The Parties entered into extensive discovery which included exchange of documents, preparation of and responses to requests for production of documents, and depositions.

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SUMMARY OF THE PROPOSED TERMS
A Stipulation of Settlement (“Settlement”) was entered into after intensive negotiations between the parties, conducted with the assistance of a third party mediator. The Parties are requesting that the Court approve the Settlement.
A. Parties to the Settlement.
The Parties to the Settlement are the Plaintiffs, the MTC Defendants, and the Santa Fe County Defendants.
Class Counsel are Mark H. Donatelli, Robert R. Rothstein and John C. Bienvenu of the Law Offices of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, 1215 Paseo de Peralta, P.O. Box 8180, Santa Fe, NM 87504-8180.
B. Defendants Do Not Admit Any Liability.
Plaintiffs allege that the acts and/or omissions that are the subject of the claims covered by this action (strip searches) violated various state and federal laws. Defendants deny all allegations of wrongdoing and deny any liability to Plaintiffs or to any other class members. The Parties have agreed that, in order to avoid long and costly litigation, this controversy should be settled pursuant to the terms of the Settlement, subject to approval of the Court.
C. Monetary Terms of the Settlement.
The total settlement fund (not including the separate settlement funds allocated for claims administration expenses, as set forth below), which shall be used to pay all verified claims of Settlement Class Members (“SCMs”), administrative costs and attorneys’ fees, is up to $8,000,000 (Eight Million Dollars) (“Settlement Fund”). In addition, up to $500,000.00 will be paid by the Santa Fe County Defendants for all claims administration expenses. Within 30 days of preliminary approval by the United States District Court of the terms of the Stipulation of Settlement, Defendants will deposit the Settlement Fund in an interest-bearing Qualified Settlement Fund. Funds will be distributed to SCMs and their counsel pursuant to an agreed upon Plan of Allocation. If all funds deposited into the Settlement Fund are expended pursuant to the Plan of Allocation, then all interest earned on the Settlement Fund shall inure to the benefit of the Class. The Settlement Fund will be allocated as follows:
a. Subject to possible reduction in the funds available to SCMs, as provided in Paragraphs 29 and 30 of the Stipulation of Settlement, up to $5,529,750.00 (plus interest earned on the Settlement Fund, and any additional amounts allocated to the Settlement Fund) will be allocated to pay verified claims, pursuant to the Plan

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of Allocation (see below). If the total amount of verified claims exceeds this amount, or the amount reduced as provided in Paragraph 30 of the Settlement, the amount payable to SCMs for each claim shall be reduced proportionately so that the entire available amount in the Settlement Fund is paid out to SCMs. If the total amount paid to SCMs is less than $5,529,750.00, or some lesser amount pursuant to Paragraph 31 of the Settlement, the balance will be refunded to the Defendants;
b. $2,000,000.00 will be allocated to Plaintiffs’ attorneys’ fees, gross receipts tax on Plaintiffs’ attorneys fees, and litigation expenses incurred on behalf of Plaintiffs, subject to approval of the Court. Defendants agree not to contest Plaintiffs’ request for approval of this amount for fees, gross receipts tax, and litigation expenses. In the event the Court approves less than this amount, the balance remaining in the Settlement Fund will be added to the amount allocated to pay verified claims; and
c. $470,250.00 will be allocated equally among the class representative to acknowledge their participation and efforts in this lawsuit, separate and apart from any payment due for their individual claims as SCMs, subject to approval of the Court. Defendants agree not to contest Plaintiffs’ request for approval of this payments to class representatives. In the event the Court approves less than this amount, the balance remaining in the Settlement Fund will be added to the amount allocated to pay verified claims.
d. Separate and apart from the Settlement Fund, up to $500,000.00 will be paid by the Santa Fe County Defendants for all claims administration expenses. If the total amount of claims administration expenses incurred is more than $500,000, then the allocation to pay verified claims will be reduced and such overage of administrative costs shall be paid from the $5,529,750.00 allocated to the Settlement Fund. If the total amount of claims administration expenses incurred is less than $500,000, then the balance remaining will be returned to Santa Fe County.
e. The Settlement proposes the following Plan of Allocation:
A. All SCMs who were searched in the period January 12, 2002 through June 8, 2003 (“Period A”) and who submit verified claims shall be entitled to receive the following payments in full satisfaction of their claims, subject to the reduction factors listed below and a pro rata reduction as set forth in Paragraphs 29 and 30 of the Settlement:
1. $1,000 if he or she was strip searched one time during Period A;

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2. An additional $250 if he or she was strip searched two or more times during Period A;
3. An additional $250 if he or she has a documented history (as defined in Paragraph 8 of the Stipulation of Settlement) of being the prior victim of sexual abuse;
4. An additional $250 if he or she has significant physical deformities (as defined in Paragraph 14 of the Stipulation of Settlement) that were exposed as a consequence of any strip search in Period A;
5. An additional $250 if she was menstruating at the time of any strip search in Period A;
6. An additional $250 if he or she received documented (as defined in Paragraph 8 of the Stipulation of Settlement) formal counseling by a counselor or therapist or documented medical treatment because of any strip search in Period A, if the first counseling or medical session occurred within 60 days of the strip search; and
7. An additional $100 if he or she was touched on the breasts, genitals, or buttocks during any strip search in Period A.
Notwithstanding the foregoing, the maximum possible payment to an SCM who was strip searched during Period A is $2,250.
B. All SCMs who were searched in the period June 9, 2003 through November 17, 2004 (“Period B”) and who submit verified claims shall be entitled to receive the following payments in full satisfaction of their claims, subject to the reduction factors listed below and a pro rata reduction as set forth in Paragraphs 29 and 30 of the Settlement:
1. $2,200 if he or she was strip searched one time during Period B.
2. An additional $250 if he or she was strip searched two or more times during Period B;
3. An additional $250 if he or she has a documented history (as defined in Paragraph 8 of the Stipulation of Settlement) of being the prior victim of sexual abuse;

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

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4. An additional $250 if he or she has significant physical deformities (as defined in Paragraph 14 of the Stipulation of Settlement) that were exposed as a consequence of any strip search in Period B;
5. An additional $250 if she was menstruating at the time of any strip search in Period B;
6. An additional $250 if he or she received documented (as defined in Paragraph 8 of the Stipulation of Settlement) formal counseling by a counselor or therapist or documented medical treatment because of any strip search in Period B, if the first counseling or medical session occurred within 60 days of the strip search; and
7. An additional $100 if he or she was touched on the breasts, genitals, or buttocks during any strip search in Period B.
Notwithstanding the foregoing, the maximum possible payment to an SCM who was searched in Period B is $3,500.
C. All SCMs who were strip-searched in the period November 18, 2004 through July 6, 2006 (“Period C”) and who submit verified claims establishing that they were strip-searched without reasonable suspicion shall be entitled to receive the following payments in full satisfaction of their claims, subject to the reduction factors listed below and a pro rata reduction as set forth in Paragraphs 29 and 30 of the Settlement:
1. $1,000 if he or she was strip searched one time during Period C.
2. An additional $250 if he or she was strip searched two or more times during Period C;
3. An additional $250 if he or she has a documented history (as defined in Paragraph 8 of the Stipulation of Settlement) of being the prior victim of sexual abuse;
4. An additional $250 if he or she has significant physical deformities (as defined in Paragraph 14 of the Stipulation of Settlement) that were exposed as a consequence of any strip search in Period C;
5. An additional $250 if she was menstruating at the time of any strip search in Period C;

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6. An additional $250 if he or she received documented (as defined in Paragraph 8 of the Stipulation of Settlement) formal counseling by a counselor or therapist or documented medical treatment because of any strip search in Period A, if the first counseling or medical session occurred within 60 days of the strip search; and
7. An additional $100 if he or she was touched on the breasts, genitals, or buttocks during any strip search in Period C.
Notwithstanding the foregoing, the maximum possible payment to an SCM who was searched in Period C is $2,250.
D. An SCM who was subject to a search in more than one Class Period may claim only for one period.
E. Reduction Factors. The total award made to an SCM under Periods A, B or C, as defined above, shall be reduced as follows:
1. Incarceration in any state or federal prison at any time within five years before the first strip search in Periods A, B or C shall reduce the total award by 80%.
2. Conviction of a crime and incarceration for that conviction in any county or juvenile detention center within five years before the first strip search in Periods A, B or C shall reduce the total award by 80 %.
3. If the SCM makes material false statements on the Claim Form, the total award shall be reduced to zero.
F. For SCMs with more than one applicable reduction factor, as defined above, only the reduction factor with the largest applicable reduction percentage will apply.
G. SCMs who qualify for payment pursuant to the terms of the Stipulation of Settlement shall receive payments as soon as practicable after the Effective Date of the Settlement.
D. Strip Search Policy.
The MTC Defendants no longer operate the Santa Fe County Adult Detention Center. The Santa Fe County Defendants have agreed that they will no longer strip search pre-arraignment detainees without reasonable individualized suspicion that the strip search would be productive of contraband or weapons.

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E. Your Options as a Class Member.
1. You May Choose to be Bound by the Settlement.
To qualify for a payment you must send in a completed Claim Form to the Claims Administrator. If you receive a notice by First Class Mail, a Claim Form will be included in the notice package. You can also get a Claim Form by: (1) calling this toll free number: (866) 8548632; (2) visiting the website, www.santafestripsearch.com; or (3) writing the Claims Administrator at Leyba, et al. Strip Search Class Action, c/o Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670.
You have until November 6, 2006, to submit a claim or to opt-out of the Settlement.
Mail your completed Claim Form to Claims Administrator at Leyba, et al. Strip Search Class Action, c/o Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670.
Remember, if you do not submit a Claim Form, you cannot get a payment. If you submit a Claim Form, you will be bound by the Settlement and receive money (if you are a class member and all other conditions are met). If you do not submit a Claim Form but do not exclude yourself from the class (as explained in the next numbered paragraph), you will still be bound by the terms of the Settlement and dismissal entered in this case, but you will not receive any money.
By participating in this Settlement, or by doing nothing in response to this Notice, you will be waiving all your rights to all claims up to and including July 6, 2006, related to strip searches at the Santa Fe County Detention Facility.
2. You May Choose to Exclude Yourself From the Class.
You do not have to take part in the Settlement or be a member of the class. This is called “excluding” yourself. If you exclude yourself, you cannot get a payment and you cannot object to the Settlement. Any Court orders will not apply to you. To exclude yourself, you must sign an “Opt-Out Form” that states that you want to be excluded from Leyba, et al. v. Santa Fe County Board of Commissioners, et al., United States District Court, District of New Mexico, Case No. CIV–5-0036 BB/ACT. Opt-Out Forms are available from the Claims Administrator at Leyba, et al. Strip Search Class Action, c/o Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670, toll-free (866) 854-8632, www.santafestripsearch.com. Your OptOut Form must be mailed and postmarked before November 6, 2006 to the Claims Administrator at Leyba, et al. Strip Search Class Action, c/o Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670.

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

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If you do not follow these instructions properly, you will lose your right to exclude yourself. If you exclude yourself, you cannot get any money from the Settlement of this case and you cannot tell the Court you do not like the Settlement (which is called “objecting”). If you exclude yourself, you are no longer part of the class or the Settlement. But you can sue or be part of a different lawsuit about the claims in this case.
E. Fairness Hearing and Process for Objections. A Fairness Hearing will be held on December 8, 2006, at 10 a.m., at the United States District Court, Pete V. Domenici U.S. Courthouse, 333 Lomas Blvd. NW Suite 270, Albuquerque, New Mexico. If you are a class member and do not exclude yourself, you can tell the Court you do not like the Settlement or some part of it at this hearing. This is called objecting to the Settlement. For example, you can say you do not think that the Settlement is fair or adequate. The Court will consider your views.
To object, you must file with the Court a document that contains all of the following:
1. The name and title of the lawsuit (Leyba, et al. v. Santa Fe County Board of Commissioners, et al., United States District Court, District of New Mexico, Case No. CIV–5-0036 BB/ACT);
2. A statement of each objection you have and the facts that support the objections;
3. A description of any law or case supporting the objections;
4. A statement on whether or not you or your lawyer will ask to appear at the Fairness Hearing to talk about your objections, and, if so, how long you will need to present your objections; and
5. Copies of any documents you or your lawyer will present at the Fairness Hearing.
At the hearing on the proposed Settlement, the Court may schedule further hearings without further notice to the class. The matters considered at such future hearings may include, but shall not be limited to, further consideration of the fairness and adequacy of the proposed Settlement, consideration of the request for attorneys’ fees and reimbursement of costs and expenses to Class Counsel, and the form and entry of the final judgment of dismissal in the event the proposed Settlement is approved by the Court.
Individually, or through counsel, any class member has the right to object to the proposed Settlement as a whole, to the amount of attorneys’ fees and costs to Class counsel, or to any portion of either. ANY SUCH OBJECTIONS MUST BE FILED IN WRITING ON OR BEFORE NOVEMBER 6, 2006, IN THE UNITED STATES DISTRICT COURT, DISTRICT OF NEW MEXICO, PETE V. DOMENICI U.S. COURTHOUSE, 333 LOMAS BLVD. NW

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

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SUITE 270, ALBUQUERQUE, NEW MEXICO, ATTENTION: CLERK, RE LEBYA, ET AL V. SANTA FE COUNTY BOARD OF COMMISSIONERS, ET AL, UNITED STATES DISTRICT COURT, DISTRICT OF NEW MEXICO, CASE NO. CIV-05-0036 BB/ACT).
If you wish to appear and present your objections at the Fairness Hearing, you must also submit a Notice of Intention to Appear that identifies the case, contains your name and address, and explains the reason the appearance is desired. The Notice of Intention to Appear and any objections must be filed with the Court on or before November 6, 2006. You may be represented by your own attorney. If you are represented by an attorney at the hearing, his or her name, address and telephone number must be included in the Notice of Intention to Appear as well. A copy of the Statement of Objection and/or Notice of Intention to Appear must also be mailed to: Leyba Class Counsel, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, P.O. Box 8180, Santa Fe, NM 87504-8180; P. Scott Eaton, Eaton Law Office, P.O. Box 25305, Albuquerque, NM 87125-5305; Kurt Wihl/Gary J. Van Luchene, Keleher & McLeod, P.A., P.O. Box AA, Albuquerque, NM 87103; and Michael Dickman, P.O. Box 549, Santa Fe, NM 87504.
F. How to Obtain Further Information.
DO NOT TELEPHONE OR WRITE TO THE COURT OR COURT CLERK FOR INFORMATION REGARDING THE PROPOSED CLASS SETTLEMENT. For additional information regarding the Settlement and Claim Form, or to request a copy of the Settlement Agreement, Claim Form or Opt-Out Form, you should contact the Claims Administrator at Leyba, et al. Strip Search Class Action, c/o Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670. You may also check the Claims Administrator’s website at www.santafestripsearch.com, or call toll-free (866) 854-8632. You may also obtain detailed information about the case by examining the court file located in the office of the Clerk of the United States District Court, District of New Mexico, Pete V. Domenici U.S. Courthouse, 333 Lomas Blvd. NW Suite 270, Albuquerque, New Mexico.
G. Court Approval.
Although the Court has reviewed the proposed Settlement and granted preliminary approval, no decision as to final approval has been, or will be, reached by the Court until the Fairness Hearing. This Notice does not indicate that the Court has given final approval to the Settlement.

Dated: July 24, 2006

The Honorable Bruce D. Black United States District Judge

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

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 FILED
UNITED STATES DISTRICT COURT
IN THE UNITED STATES DISTRICT co~~QUERQUE, NEW MEXICO

FOR THE !)!STRICT OF NEW MEXICO

JUl 24 2006

ELIZABETH LEYRA, NATASHA APODACA, NANCY ELLlN, MONICA GARCIA, LUCY M. IvlARQUEZ, MARK • MILLER, COPPER PERRY, DAVID SANDOVAL, KRISTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, on their own behalf and 011 behalf of a class of similarly situated persons,

MATTHEW J. DYKMAN
CLE~K

Plaintiffs,
VS.
No. CIV-05-0036 BB/ACT

SANTA FE COUNTY HOARD OF COMl'vIlSSIONERS; IvlANAGEMENT & TRAlNING CORPORATION; SANTA FE COUNT)" SHERIFF GREG SOLANO, in his individual and official capacities; FORMER SANTA FE COUNTY SHERifF RAYMOND L. SISNEROS, in his indi vidual and oflicial capacities; and KERRY DIXON. in his individual ,md official capacities.

Defendants.

ORnER GRANTING PRELIMINARY APPROVAL OJ<- SETTLEMENT AGREEMENT AND AI'PROVING
THE FORM AND MANNER 01" NOTICE

THIS MATTER came before the Court upon the Joint Unopposed Motion of

Plaintiffs Elizabeth Leyba, Natasha Apodaca, Nancy Ellin, Monica Garcia, Lucy M.

Marquez, Mark Miller. Copper Perry, David Sandoval, Kristi Seibold, Russella Sema,

and Kimberly Wright (collectively "'Namcd PlaintitTs"): Defendants Managemcnt &

Training Corporation and Kerry Dixon ("MTC Defendants"); and Santa Fe County Board

ofCommissiollers, Santa Fe County SherifI Greg Solano. and Former Santa Fe County

Exhibit B

.."; 'P.
,
Sheriff Raymond L. Sisneros, ("Santa Fe County Defendains") (hereinafter collectiycly referred to as "tI;e Partics") for preliminary approval of the Stipulation of Settlement ("Settlement Agreement") entered into by the Parties. Th~ Court has considered the facts and legal authorities set forth in the Partics' Joint Unopposed Motion for Preliminary Approval, has reviewed the terms of the Settlement Agrcement, and has determined that there is good cause for preliminary appru\"al. Thereti.,rc. .'
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: I. The COllrt preliminarily approves the Settlement Agreement as fuir, n:asonable, and adequate. Neither this prciiminary order of approval nor the Settlement Agreement is a finding or an admission by Defendants of any liability or wrongdoing whatsoev.:T. 2. Thc Court concludes that (I) the Settlement Class (as that krm is defined in the Settlement Agrecment) is so numerous that joinder of all members is impracticable, (2) there are questions of law and fact common to the Settlement Class, (3) the claims of the Named Plaintiffs are typical of the claims of the Settlement Class, (4) the Named Plaintiffs will/uidy and adequately protect the interests of the Settlement Class, (5) the qucstions of law and fact common to the mcmbers of the Settlement Clas~ predominate over any questions aftecting only individual members, and (6) a class action is superior to other available methods for the jilirand efJkient adjudication of this controversy. 3. Pursuant to Fcd. R. Civ. P. 23 and the Settlemcnt Agreement, the Court hereby certili~s a Settlement Class as that term is defined in the Settlement Agreement.

4. The Court appoints Named Plaintiffs Elizabeth Leyba, Natasha Apodaca,

Nancy Ellin, Monica Garcia, Lucy Ivl. Marquez, Mark Miller, Copper Perry, David

Sandoval. Kristi Seibold, Russella Serna, and Kimberly Wright as Class Representatives.

5. The Court appoints Mark H. Donatelli, Robert R. Rothstein and John C.

Bienvenu or Rothstein. Donatelli. Hughes. Dahlstrom. Schocnhurg. & Bienvenu. LLP as

Class Counsel.

6. The Court approves thc Administrator, as that term is defined in thc

Settlement Agreement, to be stipulated to by the Parties or to be determined by further

order of the Court, and authorizes the Administrator to perfonll those duties as defined in

the Settlement Agreemcnt.

7. The Court approves the Noti.::e of Class Action and Proposed Settlement

in the [onll attached 1<) the Settlemcnt Agreement as Exhibit 2. The Court approves the

Claim Form attached to the Settlement Agrecment as Exhibit I". The Court approves the

Opt-Out Form attached to the Settlement Agreement as Exhibit 5.

8. Within thirty (30) days of the entry of this Order, the Defendants shall

provide to the Administrator and Class Counsel the "Database" as that term is defined in

the Settlement Agreement, and shall transmit by wire tnll1sfer or certitied funds thc

Settlelm,nt Fund and the amount of administrative expenses (as defined in Paragraph 30

of the Settlement Agreement) to the Administrator or the Administrator's designee for

deposit in an interest-bearing qualified settlement fund.

9.

The Administrator is directed to mail the Notice of Class Action and

Claim Fom1 (,'Notice Package") to all members of the Settlement Class as set forth in the

Settlement Agreement. The Administrator is further directed to publish the Notice as set

forth in the Settlement Agreement, and to ensure that announcements are made on the

radio as set tl1rth in the Settlement Agreement.

10. Sueh dissemination of the Notice of Class Action is the best notice

practicable under the circumst<mces. within the meaning of Rule 23(c)(2)(8), Federal

Rules or Civil Procedure.

Ii / 1:2 C(, Ii--1:.

II. Tho: Court will conduct a Final Approval I-tearing on /0:101111'1 [at least

one hundred thirty five (135) days after Preliminary Approval) to determine whether the

Settlement Agreement should be finally approved as fair, reasonable, and adequate to the

Settlement Class, and whether judgment should be entered accordingly.

12. AnySetllcment Class mcmber who so desires may object to the proposed

settlement, or the proposed form of Final Approval, provided that the Class member

rdrains troll1 opting out of the Settlement Class and otherwise complies with the

procedures descrihed in the Notice of Class Action and Proposed Settlement.

13. The Final Approval Hearing may he continued or adjourned by order of

thc Court without fUl1her notice to the Class.

14. If the Settlement Agreement is finally approved by the Court, then upon

the occurrence of the efTcctivc date, all Setlicmcnt Class members who do not timely

exclude thcmselves from the Settlement Class-whether or not they file a timely and

valid Claim Form, or any claim at all-will be barrcd and enjoined from asserting any of

the claims released in the Settlement Agreement, will conclusively be decmed to have released ~U1y and all such claims, and will be subject to and bound by the provisions of

the Settlement Agreement and the Final Judgment.

15. I Intil the Court finally determines whether the Settlement Agreement should he approved. no memher of the Settlement Class who has not timely and validly opted out of the se.tticmcnt may commence or prosecute any action or proceeding in any forum asserting any of the claims that are the subject of the Settlement Agreement.
IT IS SO ORDERED.
_ - DATED: ._--_..

 
 I;-J THF I p\ITFD STATES DISTRICT COl..!RT FOR TI-IF: DISTRICT OF 1\L\\- f\lLXI( '0

EI.I 1/\ HETI-II EYH:\, f\iATASIIA AI'ODAC\_ NA'JCY '" LlN_ \1O:\IC/\ (iARCI\, fllCY f\1. :-'IARQllf:], MARK 1\111 .LER, (,OI'I'I'R PERRY, DA VID SANDO\'AI., KRISTI Sl.'IHOLD, RLSSELI.A SERl\A, and KIf\IBFRI Y WRIGHT,
or on tht'ir own behalf and on bC'half a class of
similarly situakd r~rsons,
PlaintitTs,
\'S.
SAl\TA FE CUl.l\TY BOARD OF ('()f\ 11\IISSIONLRS; 1--IANA(iEMFNT 8: TRAII\I"J(j (,ORPURATlOI\: S.-\NTA 1·1: COl iN'll SHLRIIT GREG SOI..-\I\(), in hi, individual and nl'licial capacities: I'ORMLR SANTA FL COUNTY SHERII·l R.\ Yi\10ND I.. SISNLROS, in his individual and ol'licial capacities: and KERR Y DI\O"J_ in his individual and ofticial ('apacities,
Defendants_

JUL - b {flU6

MATTHEW J. DYKMAN

CLERK

'

1\0, CIV-05-0036 BIVACT

,JOINT ll!'lOPPOSED MOTIO!'l fOR PRELIMINARY API'ROVAL OF CLASS ACTION SETTLEMENT AGREEMENT I'laintilTs Eli/,akth Leyba, Natasha Apodaca, l\ancy [llin. Monica Garcia. I.ucy M. :-'Iarqul'z, "brk 1--li"~r. ('opp~r PCITY, David Sandoval. Kristi Seibold, Russella Scrna, and Kimb~rly Wright (collecti\'CI) "Namcd Plaintiffs" or "PlaintiITs") indi\'idually and on behalf of the settlement cfa,;s dl'1incd herein; IktCndants Managc'ment & Training Cllrporation anJ K~rry Dixon. in his individual and otl-icialc'apacities ("MT(, Defendants"); and Santa I'e Coullty
-1--

Board ofCommissiollers. Santa Fe (",urlty SheritTGreg Solano. in his indi\ iuual and ollieial capacitks. and ronner Santa Fe ('ounty Sheriff Raymond I.. Sisnerns. in his individual and official capacities ("Santa Fe County Ddendunts") (hcl"l:inafter c()lkctiwl~ rl'lern:d to as "the Parties"). by and thrnugh their respedive counsel. jllintly moh' the Court to gnUlt pr.:liminary approval oj" a Stipulation of Sdtklllent ("Sl'nkmcnt Agreement") that has bet'nncgotiated and rl'ached by the Parties as a propnsed compiete resolution of this class action easc'. A copy of the Settlemcnt Agr.:ement is attached hcrdo as Exhibit :\. Spc'cilically. til.: Parties rt:qucst the Court to cnter an Onkr. in the form attached hereto as T'xhihit B: (1) preliminarily approving thl' ScI! kmt'llt Agre':lII.:nt: (2) cllnditillnally certifying the Class: (3) "PPllinting t--;alllcd I'laintifis as Class Repr.:sc'ntatives; (4) appointing e(lunsel for th\.' Nall1<'d I'laintins as ('Iass Counsel: (5) approving the Il>rln and manner of the Notice to be S\.'l1t to Class ~ lembt'rs and a Summary I\otice t(l be publishc'd in v'lrious nc'wspapcrs conct'rning the Settlement Agn:ement; I (6) apprll\'ing thl.' tl>rlns oL and setting dc'adlines for submission oL claim forms. c'xclusi(ln requests ("opt (luts") and objl'clions:' and (7) setting a dak for a t(lrlllal fairness hearing.
This nllltion \\"ill explain tht' l'ircumstances and krms of the settlement. and thl.' legal grounds supporting its preliminary approval.
I A Copy oflhc pn..Jp0sl:"d f\t)ticc is atta<:hed as Exhihit 2 to the SetllclTlem Agn.:"f..'IllClll. A Cop~ of the Claim Form is altachL'd as Exhibit I to the Sc-ttICIllt:'llt .'\!!n.:t>Illl:"Ilt.
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I. INTRODUCTION A. The Action On January 1~. 2005. Plaintiffs liled a lawsuit against th<: ~nl' rkfl'ndants and the Santa h' ('(HlIlt)' Dekndants. captionc'd J.eyha ~l (//. ", S,IIIi<1 h· ( '''"111,1' fluar,!"n ·Ullllllissiolll'rs. t'l ,d.. "10, CI\,-(J~-()036 BIJf:1.CT (the ·'Adion"). Thl' Adinn "as brought Oil behalf,'fthe Named Plaintil1's and all nth.:r perStlllS similarly situated. l'laintills allegl' that th.:y were unlawfully subjected to strip search.:s performed pursuant to the policies. practices and customs (If Defendants nf c,'nducting strip searches of all incoming pre-arraignment detainees. without individualized reasonable bcliefthat the detainees possessed wenpnns. drugs or contraband. In the Al,tion. Plaintitls sought damages Illr civil rights violations under 42 U.S,c. § 1983. and fllr claims 'lrising under the New Mexico Tort Claims Act and New Mexico common la\\', Plaintit"ls additillllally sllught a judgment declaring that Defendants must cease the actiliti<:s (kscribl'd hereill anJ l'l~ioining lktenJants ti'om any lurth<:r strip seardles without indiviJualiz.ed r<:asonablc suspicion, The Delendants generally deny the claims in the Action. The t\1TC Defendants c,lIlt<:nd that th<: admissions sl'arch policks at the Santa Fe Cl)Unty Adult Detention C.:ntcr '\ere reasonably rd,lIed to legitimate penological interests in deterring the introdudion of weapons. drugs and other L"Ontraband into the detention center. As such. Detendants suhmit that detcntion cent<:r policil's are entitled to deferenc.: under the law. and that the policies should not be I()und to "i,,"'te the C()J]stituti()n or any stat<: law, Defendants deny that all "fth<: I'laintif'is wer<: suhj<:ct to strip s<:arches upon admission to the detention center. and they deny that all pre-
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arraignment detainees w~rc strip searched during the period of timl' in question. Dekndants further deny that searches "fth~ Plaintiffs \'iolakd any state or federal statutory or cummon I,m.
The Santa Fe County Deli.'ndants deny any and alliiahility 1('Jr their own acts and omissions and deny any liability tl)r the acts and omissi,'ns by indcpcndent contractor M1'C and 1\I1'("s emplo).:cs. The Santa Fe County Dekndants contend that Count II fails to state a claim upon which relief can he granted under the New !I'kxicn Tort Claims Act. In addition, Dekndant Solano and Delc-ndal1l Sisneros affirmatively assert that they had no role whatsoc\'er in the l(lfI11Ulatioll or imple-mcntation of MTCs strip search policies and hah' no individual rcsponsihility or liahility Illr any of the alleg.:dly unconstitutional policies, pmctices or acts of
the MTC Del,,'ndants, and they also asscrt qualified imillunity as tLl the \'iolations of4~ l}.S.c. S
IQin alkgcd in the l'<lIllplaint. In addition. Defendants asscrt that a class action is inappropriall' and that the claim for injunctivc relief' is moot.
I\onethekss, while denying any liability, the Dekndants consider it desirable and in their inh.'rests that thc Action he dismissc,d on the knns sd tllrth in the Sl'ttlemcnt Agrccm<:nt in order [(l avoid filflhcr expense, inC<lm'enience. and distracti,"l. and to avoid protracted litigation.
R} entc'ring into the Scltl<:l1lcnt Agreement and taking actions pursuant tll it, the Parties dn not conccde that any particular allegations, claims or dl'fi:nsc's in the Action haw merit. Acwrdingly. whik Delendantsjoin in this motion Illr preliminary approval ofthc' Seltil'll1cnt Agreement and requcst thal the Court enter the accompanying Order. this motion does not l'llnstitutc an admission of any liability or of the propriety of class action treatment of this litigation in the event that the Court does not preliminarily Ilr finally approve the Settlement or if
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such appl"oval is "wrturnl'u on appeal. In the event that linal approval is not "htained and tht' Settit'l11ent Ag.l"eement d"es not bcull11e dTectivc, IIothing in this Tlwtion llr the ucc,lI11punying settlL'ment pleadings may he used Illl" any purpose in further litigation of the claims of the Named Plainti ffs or of any nf thl' putative Class \1cmhl'rs that they seek tn I"l'present. Simi larly, even if the Settlement :\gl"eelllent is linally approved ,md heeoilles ctfective, none of the assertions Illade in this motion ,II" in any of thl' accompanying settlement pk'adings constitute,s or should be deemed an admission by any of the Defendants in any litigatilln commenced by any putative class memher who llpts out of the Settlement or by any person who does not meet the criteria Illr inclusion in the Class,
B. Summ8n of the Settlement Terms Alier exchanging. disco\'Cry. the Parties entered into the arms-length settlement nl'gotiations that culminated in the Settlement Agreeml'nt. tinder the Si.,ttlemcnt Agreement. the Parties han, stipulated that thl' Action should be certilil'd as;1 class action undel" Fl'd,R,Civ.P. 23. The Partics agl"l'C' that the \1TC Deflondants will pay up to S~ mill ion (the "Settlement Fund") in compensation I,ll" the Settlement Class (as that tefm is ddinc'd in the Settlemcnt Agreement). jilr payment ofineentin~ compensation for each Named Plaintin: and for Plaintil1';' reasonable attorneys' kes and costs. In addition. the Santa Fe County Dd(.'ndants will pa;' an additi,)nal amount up 1<) :£StlO.OOO Il)l' claims administration expenses. The settkml'nt will constitute a full and complete adjudication of the claims. rights and obligations llfthe Parties and the Class with respect to the nwtters alleged in the Action and as further set fOl"th in thl' Settlement Agrl'l'ment. The Partics belie\'e that they have craned a fair. reasonable and adequate settlement ofthl' claims
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at issue in this ,·ase. and one that \\'arrants the (,ourfs preliminary appm\'ttl.

II, FACTlIAL BACKGROllND RELEVANT TO I'RELIMINARY API'ROVAL

A, HisloP' of This Litigation

The Aclinn \\as tiled on January 12,2005. l3etwc','n January ~()05 and N(}vembcr 2005,

the Parties eng,lgc'" in ,'xtensh'c disco,·ery. including the' cxclmngc of "oluminous doculll,'nts,

inspection oftlw detenti'lil center facility and dtpositillns oflill ek\'en Named Plaintiffs.

individually named Defendants Kerry Dixon and Greg Solmw, and other correctionalllllicers

and otlicials. In addition. the Plaintitfs obtained and llllaly/d thl' \'oluminow; database

1Tl1lintained h~ thc' Defendants li)r all persons hooked into the detention center during thl' relevant

class period (num hering in c'xcess of 31.000 individual hookings).

In mid-:::005, the Parties agreed to enter into settlemcnt disl'ussions. The Parties engaged

in six days of lIlcdiation sessions with r('tired United Stales District Judge Raul A. Rllllirez of

Sacramt'n\(l. Calitilnlia. S"t' Af1idavit of Attorney John C. lliel1\'enu. tiled separately.

Additionally, tIll' Parties engaged in a number or additional sessions among COllnsd fm the

Parties. Arms-kngth settlt'ment negotiations continuc"" through June ~OO(i whell the attached

Sc'ttlcment Agreement was f'inally reached.

B. The Settlement Terms

The terllls of the settlemcnt are flllly described in the Settlement Agreement. and arc

sUlllmarized as follows.

/.

CertijiCtltiOIl ofthe Class

The Seukment Class is deJined in the Settlement Agreement as all pre-arraignmcnt

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detainees who were subjected to a strip search upon b(lokint; and intake tll the Santa h' County

Detention Facility bel\wcn January 12. 2()0~ and thc dale' "t' the SL'tticlllcnt AgrL'L'ment. TherL'

arc appmximatciy 13.0()O Settlement Class membcrs. See Hiemcnu Allida"i!. The Partil's agm:
that the Action should he conditionally certilkd as a class adilllI unlkr Fed.R.Civ.P. n.

2.

fl.folletary Reliefto Seltlemelll C/u.u MemberI

n.

Pllyml.'nts to the Settlement ("hiSS

The Settlement Agreement provides that the r-.nc Defendants I\'ill deposit a Settlement

Fund of $8.0(Jo.Oon intl> all interest-earning qualified sdtiement fund account within thirty days

ofth.: dak ofprdiminary approval. The Claims Administrator will pay put of the Settlement

Fund to each Settk'lllent Class member who submits a valid and timd~ Claim Form a Settlement

Payment calculatt'd for that Settlement Class member under the proposed Plan of Allocation

lattached tLl the Sl'ttkment Agreement as Exhibit 4). Those payments range from a minimum llf

~LOO() to a maximum of$3.500. In the event that the tl>tal amlnmt "fverilled claims exceeds

thL' amount :l\'ai lable in the Settlement Fund. the <1mlnlIlt payable- til L'ach Sdtkment Class

mc:mber will be re:duccd propllrtionatcly. In the event that the: total allloun( of verified claims is

k'ss than the: alllllunt <l\'ailahle in the Settlement Fund. the balancL' \\'ill be rc1imded to the:

Dekndants.

b. Incentive Payments

Under the Settle-ment Agreement. the Class Representatives will be eligible to receive

compensation I"r their contribution to the investigation and prosccution of this casco in addition

to the amounts to whieh they arc entitled under the Plan ,,1' AlIol":ltioll. The Parties have agreed

that $470.250 of the Se:ttkme:nt fund will be allocated t,'>r this purpllse. subject to approval of the

Court. represcnting $42.750 pc:r Class Representative.

7

c. Equitable Relief The Partil's ha\"(~ stipulatl'd and agreed that the strip search policies at thl' Santa Fe County Detention Cent,'r m:re changed as a n:sult of I'laintiil's' and Plaintills' eounsd's eil(lrts preceding ancl during this lawsuit. and that the requl'st lilr equitable relief was thereby rendered

d.

Attorneys' Fce~ and Costs

Thl' Parties havc stipulated and agreed that $2.000.000 oCthe Settlement Fund will he

allocall'd to Plaintifk athlr!1eys' fees. gross receipts tax on fees. and litigation expenses. SUhjl'ct

to approval of the COLlrt.

c. Release of Claims
or All Plaill1i ris and Scttkment Class members wl](l do not opt out the sdtlement will

rckaSl' the lkkndants hOIll any and all claims whii:h arc based up(ln ,lr could be based Upllll or

arise from the t:l<:ts alleged in the Action.

f.

Notice and Opt-Out "rocedurcs

The Settklllent Agreement provides for a detailed Notice to be sent by mail to all

Settlement Class lIlLolllbers inli)flning them (in English and Spanish) lIftheir rights under the

Settlement :\gn;c"lllcnt. and Illr a summary Notice (in Fnglish and Spanish) to be published in

lncal newspapers inl()[fnin~ Scttlement Class mcmhers of thl' settit'mellt and directing them III

Sllllrces of additional inllmnation. In addition. announccments summarizing the settlement are to

be madc: in l'nglish and Spanish on thrl'c local radio stations.

The Settkmcnt Agreement provides that Settlement Class memhers have two optinns 1(11'

responding to tht' I\:(ltice. A Settlement Class member may (1) remain a Settlement ('lass

member and he .:-ligihk to suhmit a Claim FornI, or (2) request c\c1usion frelm the Settkment

8

Class nnd opt ,.ut. Settlement Class members who requc'st c'\<:iusioll from the Settlement Class and opt out wiilnot hc' dt'c'llIed to havc released the Defendants jj'om any claims and lIlay pursue' any claims they llIay have against the lJefendants. but will n,.t rccciw any payments trom the Settlement Fund. Settlement Class members who do nothing "'ill be dl'cmed to have released their claims. hut will nut rccci"c ,my payments from the Sclticmcnt I'tmd. Settkmcnt Class mcmbers willi suhmit Claim Forms will be eligible to rccci"e paymC'nts rmm the Settlement Fund as detcnnined under the Plan or Allocation.
Scttkmcnt Class members who do not opt-out may alsll present objections to the Court at the llnal fairness hearing.
Ill, ARGUMENT A, The Settlement Agreement Merits )'reliminllrv Arpro\'lll Prdimin:lry appro\'al of a proposed settlement is part of a two-step pmcess required bell.rc a cbss adilln can be settled. See MallllaUi)rCIIIIII'/exl.itig{/tilJl1. FiliiI'll! (hereinafter "Malllla!") ~ 21.632 (Fed . .Iud. Ctf. 2004). In considering prdiminary appfll\'~1. COlllts make a preliminary c'Yaluation ufthe fnirnl'ss of the sdtlement. '"\Vherc' thl: proplIsed settlement appc'ars to bl' the product or serious. inllJrmed. non-collusive negotiations. has no ob\'i,)us defieic'ncies. does not impropl:riy gmnt preferential treatment to class rc'presentatin;s or scgments of the class
and t~llls within the range ofpossiblc approval. preliminary appn.yal is granted:' 111 1'e NASDAQ tl!arkct-J!aka.1 ..llltitrust I.itig. 176 F.R.D. 99, 102 (S.D.1\.\·. 1<)<)7): sec a/so .\1allll<l/ § 21.632.
"Once prl:liminary approval is bestowed. the second step ,.ftlle process ensues: notice is given to
the l'iass members 101' the terms of tht' proposed settlelllc'nt and <Ii' a hcaring I at which class
Illembers and the s'"'tlling partic's may be heard with rcspec't Il' linal court apprl.val." V.'ISDAQ. 9

17(, F.RD. at 1112: ,\/(/1111<1/ at ~§ 21.633-34. In ,(lnsidering whl'ther to grant a motion for preliminary appro\'al of ~I proposed
settkment agreement. the Court utilizes a "thrcshold inquiry" intended merely t(l re\'eal ,onspicuous Lkkcts. See 1/1 re Illler-Op Hip !'/'{}sllU:si.l' liuhilil,l' Ulig.. 204 F.R.D. DO. 337-3R 11\.1>. Ohio 20(1). Illtim~ltely. ofclHlrse. befor~ a sc(tlcmcnt can be finally approwd. the Court must detennint' that a settlement is fair. reasonable and adcLjuatc. See .Iolles \'. :Vlldear P!Jam/(I(:l. 111('" 741 F.2d 322. 324 1101" ('ir. 1984). At the prdilllimu-y apprL""ll stage. howl'wr. the Court should evaluate. based on thl' terms of the Settlement Agreement. the contents of the record. and the ,onlrolling legal authority whether "the proposed scttlement is sutticiently reasonable. a(lequale'. j~lir. and consistent with the requirements of J-'eu.R.Civ.P. 23 to warrant notice ... to the class Illembers and a fairness hearing." ,\'('e Mllrl'IIS \'. 1':(/11.. Del"l ufRel'l!III1t'. 20() F,RD. SOl}. 5 PI D. han. 211(2).
Consilkring the issul's. evidence. and nature of the scttlcl11elll negotiations. preliminary approval is appropriate in this case. First. thl' proposed settlement is thl' product of serious. inj(mn.:d. non-e"llusi\'l' negotiations. The settlement negotiations lastcd man" months. were <tlhwsarial in nMurc. and invoh'cd numerous parties "'ith varying interests. The Parties l'ngagl'd
in a sl'ries l>I nKdiations with the assistance 01 a highly experienced mediator. rctir<!d United
Staks District Judge Raul Ramirez. beginning in Septembl'r 2005 ant.! continuing through
December 2005. and then continued negotiations through a number 01 additional sessions
amongst counsel through June 2006. See Bienvenu Affida\'it. Thus. the course of settlement negotiatil1ns rises \\'ell above the threshold for preliminary approval.
Second. ihe terms of the Settlement Agreement are fair. reasonable. and adequate to resol\'l' the dispLllt'. Liabilily \vas hotly contestee!. Both sides de\'t'loped evidence to support
](j

tlH:ir claims and dl'fen~cs. Plaintilfs believe their class would have becn "ertilicd. Defendants are eLJually con\'incc'd the) would have defeated c1as~ cc'rtilication and ,,'(luld have occn allowed to dd~nd the c.iaillls on un indiL"idual basis. All Parties predil'tcd protracted litigation. Most cnurts. in considering approval nf a class action settlement, Il()te the ad"untages of avoiding lengthy and expensive litigati(lIl. See, e.g" C/,IS.I I'I£lillli/i' r ('ity 01.\(,(/111<" 955 F.2d 126X, 127/l (9th CiT. 19(2)( recognizing "the strong judicial plllicy that lavors sL'ttlcments, particularly where compit'x class al'lion Iitigation is concemed"): 1f'£I1d 1'. II 'O!t.i'(JIl {Ill re (,'Ilitet! Sillies Oil alld (i£ls Lilig. i. % 7 F.2d 4~<), 493 (II th CiT. 1(92) ("Complex litigation ... can occup)' a court's docket li.>r years on end, depicting the resourcc's orthe parties and the taxpayers while rentkring meaningful relief increasingly dusivc"). The Parties here recogni/,ed the advantages of settlement on:r continued litigation.
Thc' Scllkmc'nt Fund established here is a IIlcaningliri o.:netit to Sclllenll'nt Class members. Plaintitf"- 1:L1UnsL'i, who are experienced in this typc of litigation, belie\'c the Class ml'mbers' chances of obtaining better results oy continuing the litigati,)n or by pursuing separate claims arc unc.:rtain at best. Sec Ilicnvenu Aftida\'it. Sel' also /)lIlwi/l1(' 1'. .Iollll l/<IIlL'ock Mill. 1i/1'11ls. ('u., 177 F.R.D. 54, (iC) (D, Mass. 1997) (appl'llling settlclllc:nt agrec'ment and noting that sc'ttle'ment "pl'll\'ides class members with timely rdicf"'itllllut haying to risk the uncertainty of ,lutwme, duration, and expt'nse inherent in continuing the litigation").
Finally, the Sl'Itlell1cnt Agreement does not grant unduly preferential treatment of class represl'ntatiws or segments of the class. NASDAQ, 176 F.R.D, at 102. In this instance, through lH1n-collusivc: nc'gotiation, the Parties have agreed that the Sdtlelll.:nt Agreement should include incentive awards to the Class RcpresentatiYes. The Plaintitfs suomit that the proposed incentive ammb ar.: re,ts\lnabk and are intended to recognize the signiticant timc' and efllms expended by
II

thc' Class Reprc'sentativc's on hehalf of the Class and the risks that they undertook in bringing the lawsuit. 11l)!,-.u'1 l'. The ('Ii"" ('Ii/a Co.. ::!OO F,R.D, 685, (N4 (N.D. Ga. 20() I j("'Courts routinely appro"e- incentiw awards t" compensate named plaintilfs Itlr thc' services they provide and the risks they incurred dming the course of the class action litigation'" «(/IIOlill)! In re Soulhem Ohio ('O''I"<'<1iollo/ F,/('ilil.r. 175 F.I{D. ::!70, 272 (S.D, Ohi,' 1997)). Thc Class [{cpresentati\"('s l'0ntriruted substantial time and energy in support (If the acti,'n. including c-xtensive participation in discovery, l"lSC strategy, case management and mediation. 1'''11 I ",,"ken \'. .'It/"l1lic Riehli!!'" ('0 .. <)01 F. Supp. ~94, 2l)l) (N,D, Cal. 1995) (in considering an incentive award. the court may consider the risk tll the class representatives. both finaneial and otherwise: the- pl'rsonal di rticulties encountered by the class representatives: tilt' amount of timc and em,rt spcnt on litigation: the duration (If the litigation: and thc' personal henL'lit- or lack thereof -l'njoyed by the dass rcpre~entati\'e as a [(:,sult llfthe litigation). Gi\'en thc:ir I:\.lntributions thwughout the iitigati(lll. Plaintiffs eontmd that the individual payments are r"asonable and nllt excessive. (f bl!!r<llll. ~O() F.RD. at ()£)4 (approving $300,000 inccntiw award to each named plaintiff). Thl' Defendants have agrcc'd to neither oppose nor support thc' amounts proposed III he paid (0 the Class Rcpresentutiws as :111 incentiw.
II, TIIC' Court Should Appoint Class Represcntatin's and Class Counsel and Conditionally Certify the Class
The instant case. \\'hieh alleges that the Defendants' praeticl's affected a large group of individual detainc'es at the Santa h County Detention ('c'nter, is exactly the sort or dispute that Fcd.R.Civ.P. 2~ is design.:J to remedy. For thM reason. the Parties urge the Court to appoint Class ReprcsentHtives and Class Counsel, and to conditionallycl'rtiry the Class under Rule 21. Courts haw regularly el'rtilied classes ofa similar nature, Set' C.g 1,!rdiji' 1'. Kllox ('011111.1', 365 FJd I (I" ('ir. 211il4) (upholding certitication ofc.lass ofarn:'stees challenging Cllunties' alleged
12

p(llicics nJ'conducting rllutine strip searches of all pre-arraignllll!nt dctainl't:'s): 1Ilih(ll'lk 1'. Sf.

('mix ('(Il1l11y. Wi.l. ~Il) F.R.D, 607 (W,O. Wis. ~il().1) (certifying dass ofpasnns stripsearchl'd

at county jail): Mad ,'. SII(I;,lk C·(llInty. 191 F.R.D. 16 (D, Mass. 2()OO) (certifying class oJ'pre-

arraignmcnt kmak' detainc'es challenging county's pulie)" of rOUlinl! subjecting female prearrai~nlllent (ktainecs to strip scardles without indi\·iJuali".cd rcasnnahlc su,picion). l3ecause

Plaintiffs mcet all the technical rl'quirements of Ruk 23. and because it is hlir and etlicient to

resolvl! all the daillls together. the Court should conditiunall) n:rtify the Class in this case.

I,

U,e ('ourl Should Appoilll Ih" Class R(!f1r".~e/llalh'e,~ allti Class COUI/sel

This ~11Iti(ln seeks appointnll'nt of Named Plaintiffs I'lizabcth I.c'yba. Natasha Apodaca.

I\anc) Lllin. tvf<lnica Ciarcia, l.ucy M. Marquez. ivlark \lillcr. C(lppcr Pc'rr),. David Sandoval.

Kristi Seibold. Russelln Serna. ,Uld Kimherly \\'righl as Class Rc'pn:scntatives. All ofthesl!

Named Plaintiffs arc' appropriatc Class Representativc's because they were subjet't to the: salll~

policies and practicl'S that allegedly violatl'd the rights of the Class Il\clllnc'rs. furthermore, all of

thc'sc Plainti ffs haw aell!d in thl' best illlerest of the ('lass and none of these Plaintifls has a

conilictllf interest which would predude him or hc'r from serving a;; a representative of the

Class.

This t'.-tlltion also seeks appointment of Mal-].; I I. Dpnatdli. Robert R. Rnthstdn and John

C. RicnYe!lu of Rllthskin. Donatelli. Hughes. Dahlstrom. Sdlllcnnurg & Bienvenu. LLl' as Class

Counscl. These lawyers arc experienced in the areas nf civil rights law and class action

litigation. and Iwnc has any coniliet of interest which would preclude him from serving as Class

Counsel. ;'\11 of thesc' lawyers have been invo!v'ed inthc litigation Irolllthe time the lawsuit was

tiled. and all participated in the nc'gotiations that kd Illthc' Selticment Agreement.

13

2.

Tlte Proposed Settlement Cla,I'.\" Meet,! tlte Requirement,I' of Rule 23(11)

A dass must have the following prerequisites in (lnkr to he certified under Fed. R. Civ,

1',2)(a): .•( 1) thl' l'1ass is silnumerous that joinder ofallml'mbers is impracticahle. (2) there are

qucs(ions of law (}r fact cOll1mon to thi.' class. (3) the claims or ddenst's of (he rl'rrl'sentative

parties arc typical of the daims or def'cnses of (he class. and 14) the rL'prcscntativc parties will

('Iirly and adequately protect the interests of the class," See LOfJ<'= \'. ('ily a/S"II/a Fe. :'.06

F,R,!), 285. 288 (/),N,1\1. 2(02)(certifying settlemL'n( class): red, R, Ci\, 1', 23(<1), Here the

I'flIposed Class clearly satisfies all ofthc Rule 23(a) reljuiremL'lIts,

a. The ('Jass Is So NumerollS thllt .Joinder Is Impracticable

The Settlement Class in this case is estimated to include approximately 13.000

individuals, Se<' Ilienvcnu Aflida\'it. Joindcr of s() many individual meIllbers \\'()uld be

irnpr;lcticahlc. and accllrdingly this Court should find that the nUIllerosity reljuirL'nH.!nt of Ruk 23(a) is satistied in this case, See I 1-1, Newherg & /\, ('onte. Nell'hug (III Class ACliolls ~3:5. at

246 (4th. ed, 20(2)(in nwst cases whl're class size numbers in thL' hundreds. numerosity is not an

issue ).

h. There Are Questions of Law lind Fuct Common to the CIass

The wnullonality rL'ljuirement is met ifrlaintilTs' grievances share a common question of

law nr fact. l.(ll'<'~. 206 f,R.D, at 288. "Commonality requires only a single issue common tn

the class, and thL' fact that the claims of individual class mL'mbL'rs may diner f.lclually should rwt

prcciude ccrtilication under Rule 23(h )(2) of a claim seeking the aprl ication of a common

p(llicy," ld at 289 (internal quotations marks & citations omilled): see "ls(I "Jt/alllsoll I'. Bmr(,lI. 0o )- )- ['' ,'~d' 8 \<)(). . (l·76' ( IU· tli (.". rr. IC. J88· ).,

The daims on behalf of the Class hefore the Court share numerous common questions of

14

Itlct and law. Most importantly, the case is dominatcd ny tht' hlctual and kgal questiolls of

whether the DL'ft'ndants' polidcs and procedures with rcspt'ct to strip searches of pre-

arraignment detaillces yiolated the rights of the Scttklllc'nt ('lass Illcmncrs. [{csolving these

questions would depcnd in large part upon evidence that \\'ould apply to the Settlement Class as a

wh()lc. Thus, the Ruk 23(a)(2) commonality rcquircmcllI is satisfied.

c.

Plaintiffs' Claims Are T~·"iclll of the Settlement Class and

Then' Are No Conflil'ts

The prclposed Class Representatives present claims that arl' typiutl of Ihosl' of the

Settlement Class. ",\ ... plaintiffs claim is typical if it ariscs h'olll the same evcnt or practice or

coursc or ('()nduct that gin's rise to the claims of llthcr class Illcmners and if his or her claims arc'

based (In the Slime legal theory." r"l'<'z. 206 F.R.D. at ~R9 (internal quotatit,n marks & citations

omitted); .1'('<' ,;/.1'0 III I'C AmericlIll Mt'JicaI5:rs(~III.\. IIl£'.. 75 FJd 1069. 1OH2 (6th Cif. 1996)

teilillg Nt'll'/J<'I'R on ('/<1.1'.1' A('/iolls §3.1 J. at 3-76 (Jd. cd. 1992)).

In this casc'. t'adl (If thc propllsed Class Reprl'scntati\'cs claims that he or she was strip

sc'ardll'ci in yiolation of his or her rights. S~e ('om pI. ~~ ~2-(,1.). Thesc' claim, arc also hrought

on nehalf orthe Setticmc'nt (,bss. See Comp!. ~~ 71-73. The C\lmplaint alleges that the Namcd

Plaintiffs' claims arisc ,'ut o(the same events. practices and courSe' of conduct that giw rise to

the class-wide injur) at issue. See Compl. at ~~' 71-73. As such. it is maniICst that the typicality

requirement is mcL

d. The Class Representativcs HlIvc Fairly and Adequately Protected the Interests of thl' Settlement Class

Thc purpose of the adl'quaey of representation requirement is to "protect the legal rights

of ahsent class mcmhers." rOl'ez. 206 F.R.D. at 289 (inkrnal quotatiollmarb & citation (lmittcci): sec' <1/.1'0 f.:irkl'<lll'it'k r, .I. (', 1I1'<1dtimi & CII.. 827 I'.:~d 71 X. 721 tIl til Cif. 1(87). "In

15

order tll adl'qu:ltdy re[1rcsent the class. two rcquirellll'nts llIust bc' met: ( I ) the class

r("[1res("lltati\'C' must not have interests antagonistic to Ihosl' of tile class. and (2) the attorneys

representing the class must be l]ualilicd. expcriclK"l!d. and genl!rally able to conduct thc proposed

litigation:' I.()l'l"::. 206 F.R.D. at 289-9; see a/so Retired ('hiCllgo ['o/ice ilsS'11 \'. ('ity of" Chic·ago. 7 F ..1d 5X... 598 (7lh Cir. 199.1); C/"(}~S 1". ;\,,,./ Trust Uti' /IIS. Co.. '5~ r.2d 1026,10:11

(6th Cir. 19771.

Thl! tirst rl!quirel1ll!nt. an absence of any con1licts bd\\"c'cn til(" Class Representatiws ~U1d thc' Settlement Class. is satislied becausc both the Class Repn:sentati\"l.~s and the Settlemcnt Class

mc'mbers allegc' they haw bl'en harmed by tht: Defendants' allegedly unlawltll pradiees.

BC'causc' all Class Representati\"\·:s and the Se(tlcmcllll"las, r-ilembers haw allegedly sufl"erc'd

harm as a rl!,ult l,rthe Defendants' practices, there art: nl' antagonistiC' or con1licting in«"rests

that ",(mId prc'vent the Class Representatives from sat(-guanling thc rights of absent Settlement

Class 111 ("Ill ber". The ,("con<l req uir("ment i, al so met. Counsel I,w th~ PIainti ffs arc qlI,lI ilied and

experienced in class action and civil rights litigation. Bil'nvcnll At1idm·il. Class Counsd have

diligently pursucd this casc' on behalf of the Named I'laintifis and absent Settlement Class

members and ,Ir(" continuing to do so. Thus, the adequacy requirement is IIIC(.

}.

Thl' Propo.I"I'(1 Settlement Class Sati.ljie,1 thl! Rule 23(/1) Requirl!lIIellt.l·

Once the Court tinds that the prerequisites or Rule ~3( a) arl! satisJied. the Court must

di.'tc:rmine \\"hdher or not the action is maintainable as a class action undcr onc' or mor(" pnJ\'I.S.IOns 01'Ru IC' ~"_,(I1). ,C'1(,(" e.g., ,"}enter l', (T.. ,en. iI,f'u. f(},-s <. .orp.. )n.~'_I-''..:t..l C_l1 l • =-,~_c,)·6( ·th( ..II'.

IlJ7(,). Courts ha\"<: c'cTti lied class actions under both Rules 23(h )(2) and (b)( -,) when both

monetary compensation and equitable relief are at issuc. Se£', c.g. Jlu/ski \'. (i/eich, 318 fJd

16

l!37 (9th ('ir. ;:>()W): S<'II/<'I" ... (;('1/. Mu/o!"s COl]).. 53;:> 1-.2d 511 (6th ('ir. IlJ76). As the claims here satisl) the requirements of noth Rule 23( b)( 2) and (b)(3). the Court should certify the Class.
a. Rule 2.'(11)(2) Certification Is Appropriate Certitication i, appropriate under Rule 23(h)(2) where the defendant has "acted or refused to 3d on grounds generally applicahle tll the class. thereh) making appropriate final injullcti\'" relkfor Cllrresponding dedaratory relicf\\'ith respect to the class as a whole." Fed. R. Civ. P. 23(h)(2): Man'us \'. A:all., DI!f' 'I (,{RewlluL'. 206 F.R.D. SOQ. 513 (I), l\:an. 2(02). This ,'ase involves a class of individuals who claim that they were unlawfully strip searched pursuant tt) a blanket ptllicy. See Compl. "~ 68. 71. This is pre'cisely the type or case wherc certificatitln under Rule 23Ib)(.2) is apprtlprialC. Sec ;\larcIIs. 206 I-.R.l), at 513 (tinding certilication appropriate under Rule 23(b)(2) where defendant had allegedly violatcd the law "in a manner that is generally applieablc tl> the cIass"): IVi(jiJll)!. \'. Nt'III-..t-( ·<'IIla. 111<'.. No. OO-CV-6XO. 20UI WI. 17()5093. at *7-S (S.D. Ill. Dc'e. 27. 2(01),
b. Rule 23(b)(3) Certification Is Appropriate Class certitication under Rule 23(b)(3) is appropriate when "questions of/a\\" or fact common to the memhers of Ihe' class predominate" and "a e1ass action is supe'rior tll othcr a\"ailahk mcth"ds" of adjudicating the controversy. Fed. R. Ci\', P. 23(h)(3): lI'il/img. 2001 \VL 17')5093. at *7-8. l-Ie're.l'laintitTs· claims are properly ~e'rtilied unde'r Rule 23(b)(3) becaUSe' Plaintiffs sa(istY both the "predominance" and the "superiority" requirements. To satisfY the predoillinance requirements. Plaintilfs must show that one or Illore common issucs predominate o\w indi\'idual issues and that one trial of common issues is superior III conducting literally hundreds or thousands ofscparatc trials. See Fed. R. ('iv. P. 23(b)(3). The primary purpose of Ruk 23(b)(3) is 10 pWl110te efliciency and to take all\'antage "fthe l'C,)nomy that results Irom
17

jointly adjudicating a large number of claims that share lllle nr more common questions. Sa Fed. R. ('iy. P. D Advisory Committ<:e l\otes. 1966 Am~ndmcnts: .I'~~ al.lo Sialing ,', 1'~lsic(!1 ('helllicul (·orf'.. R55 F.2d l1X8. 1196 (6"1l Cif. 1988) tgoal ofRuic 23(h)(31 is ""to achieve the economies o/" time. efi',rt. and expense").
""Cllmmun issues predominat~ within the meaning of Rul~ 2-,(h)(1) \\"h~n they constitute Q signiticant part "fthe litigation:' Wiltrlllg, 2001 \';"1. 17<)50<).1 at *8: we "Iso Jenkins ,', R"YlIlc.lrk Inc/ustries, Inl.',. 71>2 F.2d 468, 472 (5th Cir. 19Xhl. The predlllllinancc requirement addresses eflicienc: by making certain that class wide iSSUl'S outweigh individual issues. S~C Sh'rling. 855 F.2d at 1197. The claims in the Actioll arc has<!d Oil what I'laintilTs allege to he a singk courSi.' o/" ClInducl: the Defendants' unconstitutional policy of strip searching all prearraiglllllc'nt d<:tain~cs without individualiz<:d reasonable suspicion. Thus. I'laintifis t:lce a common s~t of tilctual and kgal issues and a common cause of injury that predominates over individual questilllls.
Since all Selliement Class memhers have the right tll llpt out o/" thl' sl.'ltil-menL there is nothing that prevents any plaintiffti'llm continuing to prosecute his or h,'r claim lilr monetary rdicfindividually. Sl'e, c.g.. III re Inter-Of' IIiI' Prosthe,Ii.1 nih, !.itig. ~tH r.R.D. 330. 347 ('-J.D. Ohio 20Ul): red. R. ('iv. P. 23(h)(3)(A). Further. the rc1icfpro\'idcd in the Settlement Agreement would not he availahle in the absence of the class treatment. Sec Hip P/'()slh~sis. 204 F.R.D. at 347-4R.
C. The Court Should Approve the Proposed Settlement Notices and Authorize Their Dissemination
"[1]n any proceeding [that] is to he accorded tinality.'· dUl' prllCl'SS requires that intereskd parties he provided with ""notice reasonably calculated. under. .. the circumstances. to apprise [them] of the pendl'Ill'y of'the action and am)rd them an llppurtunity to present their objections."
18

,\/111/,,"<, \'. (, '<'111. 11£lIl(l1'('r Balik & Trusl Co., 339 I IX 306,314 (1<)50). The notice must I:>c reasl1nal:>Iy c:akulated t" reach interested parties and \\'here thL' namL'S and address of the
intL'rested parties arc kn,Hm. due process requires maikd r1<ltic~s. /d, at ~ 1~-J 'i; /)1';lI/ius \'. •\!Jrilll ( 'o/'p .. 419 r.3d <)3) ( \(ItI' Cif. 20(5).
The contents of class notice must "'fairly apprise the. , , members or the dass or thc'
krillS of the pn1p"sed sL'ttlemc'nt and of the opticllls that arc l'pL'n to them in "onllL'l'tion with
Ithe1proct'edings. '" .\/m 'H'£l11 \'. ['arker & ['ar.I"".\' Pelr"/CU/II ( '0.. 67 F.3d lOn, J079 (1d Cif.
1995) (quoting Jl'l'illhL'l'gt'l' \'. K~lldri('k, 698 F.2d 61. 70 (2d Cir. 1982»). Class notice is sufficient if it "may he understood by the average ... clas, member." 111 rl' Nissall Molor ('o/'p. Alllilrusl Lilig. ))~ l.~d IOSIC 1104 (5th Cif. 1997): s,',' ,liso ( hun'hil/ !'iI/age 1..1.. ('. \'. Gell. Ell'e.. 3(,[ r.~d 5(,(i. ) 75 1'1'" Cir. 20(4)1 "Notice is satist'lctory iI' it gcnerally (kscribes tlK' terms
of the sdtkll1ent in suflicient detail to alert those with adversc viewpoints to investigak and III come forward and be heard.")(internal quotation marks 8:. citation omith:d).
llere, the proposL'd notices and their method of dissemination meet these requiremC'nts. The proposed notices clearly and concisely in!lJflll Settlement Class m~mhcrs of all the relenmt aspects of the litigati(ln: (a) the Class definition and statement or claims: (h) the litigation history: (c) the terms llf th.: Settlement Agreement: (d) the binding d1'ed of any j IIdgrm:nt approying th..: Settkm<'nt (In thnse who do not opt out; (<:l the right to object tLl the Settlement and thL' prnl'cLillre 1<.>1' doing so: (g) whom to contact III "blain additil1nal information regarding the Settlement or the Ii ligation: (h) the amount of compensation requcsted for the Class Rl'presentativt:s to cllmpensate them lor their services to the Class: and (il the amount requested Illr reasonahlc attorneys' fees and costs, Thus. the notiL'es prL\\'ide all the information neccssary )llr Settil:ment ( 'lass members ((l make an informed decision \\'ilh respect ((l whether to remain in
19

(Or "pt (lut of the Selliement Class or whether to ohjectl(l lh,' proPOSL'U SL'ltil'IIlL'nt. Furthcr,

deli\'ery hy lirsl class mail to the Setticment Class mL'mhl'rs' last known addresses is designed 10

reach lhe mcmbL'rs in thc most expeditious and economical way. In addition. summary not icc of

the Settlement" ill he published in local newspapers and will he hr"adcaslllll thrce local radio

stations in order 10 nolil\- Selliement Class memhers \\'I1\l arc' n(ll nolilicd <.>1' lhL' Scttkmcnt

thnlugh l)tht.!'T IlICans.

O. The Court Should Schedule a Fairness Hearing and Appro\'C the Proposed Schedule for the Mailing of Settlement Notices, the Return of Opt-Outs, and the Filing of Objections

The Parties propllsc the fi:lllowing sl.!qucncL' of c\'L'nls and deadlilK's. assuming thc Court

grants this Motion t,'r Prelilllinary Appro\'al:

r'vlailing of "Iotice Package to Class: 45 days alkr preliminary approval.

Optlllll deadlinc:

45 days alicr mailing of Notice Package.

Objections to sdtlclllcnt:

45 days alkr llIailing llf NoticL' Package.

J:airnt'SS Ilc'aring:

At least I ~~ days alkr preliminary appro\'al.

Claims DeadlinL':

30 days afier final approval hearing.

IV. CONCLlISJON fm the I<lrcgoing rcasons, the Parties respectfully request that thc Court issue its Order. substantially in the I()rm attached hereto as Exhibit B. (1) Preliminarily approving the Settlemenl :\greement: (2) C\lIldilitlnally certifying the proposed Settkmcnt Class: (3) .\pp<)inting I\ameu Plainliris as Class Represenlalives:
"'lI' (4) ApP<linling ,ounsel Named Plaintins herein as Class ('<lunse!:
(5) Aprl\l\'ing the form and manner of Noliee to be senl to Sellicment Class
20

1\ kmhl'rs and Summary Notice to he puhlished in various newspapers in accordance with the Settlement Agreement: (6) . \ppro\'ing the forms for. and setting dl'adlines with respect to. claims. opt outs. and ohjections: and (7) Setting a date' for a formal fairness hearing.
Respectfully suhmittl'd, ROTHSTEII\. DO'JATFI.I.I, IlllGI I[S. DAIILSTROM. SCIIOFNBliRG & J3IENVENL LLP Mark I I. Donatelli Rohert R. Rothstein John C. Bienvenu Post Office Box XIXO
·e, N texico ,87504-8180
21

EATON LAW m~, P.C.
By: ~fA;.2cJL P. Scott Eaton P. O. Box 25305 Albuquerque, NM 87125-5305 (505) 243-1486 Attorneys for Defendants MfC and Dixon
22

D,P.A. By:~~~1J;f
rl W. ary J. Van Lu ene .0. Drawer AA Albuquerque, NM 87103 (505) 346-4646 Attorneys/or De/endant MrC
,
i
I
;
I
23

HY:U~laA ' LA\V.O~F1CEOI-\11~
P.O. Box 549 Santa Fe. NYI R7~()4 (50S) 989-'l360
A/I orney fi" [)ej2I1dall/s Sail/a F.: COlll1ly
BUllrd olCommi.lsiulI(,/'.\. Cireg So/allu alld Ra)'mond.! Sislleros
24

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

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLIN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID SANDOVAL, KRISTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, 011 their own behalf alld on behalf of a class of similarly sitllated perSOIlS,

Plaintiffs,

VS.

No. CI\'-OS-0036 BB/ACT

SANTA H COUNTY BOARD OF COMMISSIONERS; MANAGEMENT & TRAINING CORPORATION; SANTA H COUNTY SHERIFF GREG SOLANO, in his individual and official capacities; FORMER SANTA FE COUNTY SHERIFF RAYMOND L. SISNEROS, in his individllal and official capacities; and KERRY DIXON, in his indh'idual alld official capacities,

Defendants.

STIPULATION OF SETTLEMENT

Plaintiffs Elizabeth Leyba, Natasha Apodaca. Nancy Ellin. Monica Garcia, Lucy

M. Marquez, Mark Miller. Copper Perry, David SandovaL Kristi Seibold, Russella Serna.

and Kimberly Wright ("PlaintifTs"), individually and on behalf of the settlement class

defined herein; Def~ndants Management & Training Corporation and Kerry Dixon, in his

individual and oflicial capacities ("MTe Defendants"); and Santa Fe County Board of

Commissioners. Santa Fe County Sheriff Greg Solano, in his individual and official

capacities, and Former Santa Fe County Sheriff Raymond L. Sisneros, in his individual

and oflicial capacities ("Santa Fe County Defendants") (hereinafter collectively referred

Exhibit A

to as "the Parties"), by and through their respective counsel, hereby submit the following Stipulation of Settlement ("Stipulation of Settlement").
I. RECITALS On January 12.2005, Plaintiffs. on behalfllfthemselves and all persons similarly situated, Ii led a complaint in the above-captioned matn.'r in which they ~hallenged certain practices of Defendants including the strip search of certain detainees, and sought damages and declaratory and injunctive relief. Plaintiffs allege that they were unlawfully subjected to strip searches performed pursuant to the policies, practices and customs of Defendants of conducting strip searches of all in('oming pre-arraignment detainees. Plaintiffs allege that these strip searches were performed without regard to the nature of the alleged otIcnses for which Plaintiffs had been arrested. and without Defendants having a reasonable belief that the Plaintiffs so searched possessed weapons or contraband, or that there existed facts supporting a reasonable belief that the searches would produce contraband or weapons. Plaintif(~ sought damages for civil rights \'iolations under 42 U.S.c. § 1983, and for claims arising under the New Mexico Tort Claims Act and l'ew Mexico comlllon law. Plaintiffs additionally sought a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any fUl1her strip searches without individualized reasonable suspicion. PlaintitYs brought this action on their own behalf and on behalfofa class of similarly situated individuals. The MTC Defendants contend that the admissions search policies at the Santa Fe County Adult Detention Center were and arc reasonably related to legitimate penological
-2-

interests in deterring the introduction of weapons. drugs and other contraband into the detention center. As such, Defendants submit that detention ccnter policies are entitled to deference under thc law, and that the policies should not be found to violate the Constitution or any state law. Defendants deny that all of the PlaintifTs were subject to strip scarches upon admission to the detention center. and they deny that all prearraignmcnt detainees were strip searched during the period oftimc in question. Defendants further deny that scarches of the Plaintiff, violatcd any state or federal statutory or common law.
Thc Santa Fe County Defendants deny any and all liability fur their own acts and omissions and deny any liability for the acts and olllissions by indcpcndent contractor MTC and MTC's employees. The Santa Fe County Defendants contend that Count II fails to state a claim upon which relief can be granted undcr the Ncw Mexico Tort Claims Act. In addition, Defendant Solano and Defendant Sisncros affinnativcly asscrt that they had no role whatsoever in the formulation or implemcntation ofMTC's strip search policies and have no individual responsibility or liability for any of the alkgedly unconstitutional policies, practices or acts of the MTC Defendants, and they also asscrt qualificd imlllunity as to the violations of 42 U.S.c. ~ 1993 alleged in the complaint. In addition, Defendants assert that a elass action is inappropriate and that the claim for injunctive relicf is moot.
The Partics entercd into extensive discovery which included cxchangc of documents, preparation of and responses to requests fiJr production of documents, and depositions.
-3-

The Parties engaged in six days of mediation sessions with retired United States District Judge Raul A. Ramirez of Sacramento, California, and additional sessions among counsel for the Parties, after which they agreed to this Stipulation of Settlement which. subject to the approval of the Court, settles this action in the manner and upon the tenllS set forth below and fully resolves the dispute.
NOW, THEREFORE, IT IS HEREBY STIPUI.ATED AND AGREED, by and between the Parties, as follows:
n.
DEFINITIO:'llS I. "Administrator" means a claims administrator as appointed by the Court to review and determine the validity and amount of claims submitted by Settlement Class Members ("SCMs"), according to the procedures set forth herein. 2. The "Bar Date" is the date established by the Court by whieh any SCM who wisht:s to receive payment pursuant to the Stipulation of Settlement must file his/her Claim Form(s), objections to this Stipulation of Settlement, or request to be excluded from the class (opt-out). 3. The "Claim Form" is the fonn required to be used to make a claim for pa}1llent under this settlement. A copy of the proposed Claim Form is attached as Exhibit" I." 4. "Class Counsel" means, Mark H. Donatelli, Robert R. Rothstein and John C. Bienvenu orthe Law Offices of Rothstein, Donatelli, Hughes, Dahlstrom, Sehoenburg & Bienvenu, LLP. 5. The "Class Notice" means the notice in a form substantially similar to that
-4-

attached hereto as Exhibit "2" (Notice by Mail); such other summary notice(s) to be published in newspapers identified in Paragraph 47 herein, and posted in the Santa Fe County Detention Facility and radio as referenced in Paragraph 4S herein.
6. The "Class Period" is January 12, 20U2, through the date of this Agreement.
7. The "Database" is the infornlation to be provided in hard copy and/or electronic form by the Defendants to the Administrator und Class Counsel no later than thirty (30) days from the date the United States District Court grants preliminary approval of the terms of this Stipulation of Settlement which includes, to the extent practicable, the name, last known addresses, date of birth, Social Security Number, date(s) of arrest and charges of all SCMs arrested during the Class Period: date(s) ofbooking(s), housing(s) and first appearance(s) of each member of the duss. The Database shall not be provided by the Administrator or Class Counsel to any parties, or to any SCMs.
8. "Documented" or "documented history" mean the original documents or true and correct copies of original documents. Documents required to prove a history of sexual abuse are reports from law enforcement agencies and/or reports prepared by govcrnmental agencies, healthcare providers or mental hcalth counselors. Documents required to prove formal counseling or medical treatmcnt are records prepared by hcalthcare providers at or near the time of the services that were provided, but in no event produced more than 30 days after the time that serviccs were provided.
9. The "Effective Date" means the date upon whieh ajudgment entered by the Court approving the Stipulation of Settlement becomes final. The judgment will be
-5-

deemed final only upon expiration of the time to appeal or, if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writs of certiorari.
10. An "Opt-Out" is any potential Settlement Class Member who files a timely request for exclusion as specified in Paragraph 41.
II. "Released Persons" means the Defendants and their at1iliates. suhsidiaries, predecessors, successors, and/or assigns, together with past, present, and future officials. employees, representatives, attorneys and/or agents of the Santa Fe County Board of Commissioners, Management & Training Corporation. Santa Fe County Sheritl" Greg Solano, Former Santa Fe County Sheriff Raymond L. Sisneros, and Kerry Dixon, or any of them. "Released Persons" also includes any and all insurance carriers lor the Released Persons.
12. A "Settlement Class Member" ("SCM") means any member oftbe Settlement Class including representatives, SUCCCSStlrS and assigns, who does not file a valid and timely Request tor Exclusion as provided in Paragraph 41 oftbis Stipulation of Settlement.
13. "Settlement Class" means all pre-arraignment detainees who were subjected to a strip search upon booking and intake to the Santa Fe County Detention Facility during the Class Period without individualized reasonable suspicion that the search would lead to the discovery of contraband or weapons, not including persons arrested or booked on charges involving drugs, weapons or violence, substantially similar to those charges provided as examples in Exhibit 3 hereto.
-6-

14. "Significant physical deformities" means a significant disfigurcment of the

body that would otherwise be hidden by clothing, such as a missing limb or body part or

substantial scarring.

15. "Strip search" means a search conducted upon intakt: and booking by a

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

including underwear, in the presence of the corrections officer.

16.

"Verified claims" means claims that are made in writing on tht: Claim

Forms and that arc signed undt:r oath by the SCM.

17.

This Stipulation of Scttlement is for settlt:mcnt purposes only, and neithcr

the fact of. nor any provision contained in this Stipulation of Settlement or its exhibits.

nor any action taken hereunder shall constitute, be wnstrued as. or be admissible in

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

SCMs in this action or in any other pending or future al'lion or of any wrongdoing. fault.

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

Defendants of any claim or allegation made in this action or in any other action, nor as an

admission by any of the Plaintiffs, SCMs or Class Counsel of the validity of any fact or

defense asserted against them in this action or in any otht:r action. Defendants deny all

allegations of wrongdoing and deny any liability to Plaintiffs or to any other class

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

controversy should be settled pursuant to the terms of this Stipulation of Settlemt:nt.

subject to the approval of the Court.

-7-

III.

TERMS AND EFFECT OF STIPULATION OF SETTLEMENT

18.

The parties agree solely for the purposes of this settlement and

implementation that the within action shall procccd as a class action, with the Settlement

Class as detined in Paragraph 13, and that attorneys for the Class an: Class Counsel

defined in Paragraph 4; but if such settlement fails to be approved or otherwise fails of

consummation. thcn this Stipulation of Settlement is hereby withdrawn.

19.

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

Settlement will be paid specified sums detennined by the proccss sct forth hcrein in full

satisfaction of all claims.

20.

Thc parties hcreto stipulate and agree that thc strip search policies at the

Santa Fc County Detention Ccnter werc changed as a result of Plaintiffs' and Plaintiffs'

counsel's ct1i)rts prcceding and during this lawsuit and that the rC4uest for e4uitabk relief

was thereby rcndercd moot.

21.

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

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

involving violation of law or constitutional rights. including their I"ourth Amendment

rights, their Fourtccnth Amcndment rights, or of any other federal, state or local law.

regulation, duty. or obligation which are based upon or could be based upon or arise from

the facts alleged in the lawsuit. When the Stipulation ofSettlcment is final. as ofthc

Effective Date, all SCMs, including the named Plaintiffs. hereby release all such claims.

22.

The Parties agree that the Court, by preliminarily approving the

Stipulation of Settlement, will be certifying the class as defined in Paragraph 13. as the

-8-

Settlement Class, subject to final approval of the Scttlemcnt at the fairness hearing and

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

SCMs, and the Administrator to interpret and enforce the terms, conditions and

obligations under this agreement.

23.

As of the Effective Date of this StipUlation of Settlement, the SCMs,

including the namcd Plaintiffs, hereby waive any and all rights to pursue, initiate,

prosecute, or commcnce any action or proceeding before any court, administrative

agency or other tribunal, or to tile any complaint with regard to acts of commission or

omission by the Rclcased Persons respecting such SCMs with respect to any strip search

by Defendants that occurred during the Class Period.

24.

This Stipulation of Settlement togcther with its exhibits contains all the

terms and conditions agrced upon by the Pal1ics hen:to regarding the subject matter of the

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

agreement entered into prior to the execution of this Stipulation shall be deemcd to exist,

or to bind the Parties hereto, or to vary the tenns and conditions contained hcrein, except

as expressly provided herein.

25.

Each SCM shall be deemed to have submitted to the jurisdiction of the

Court.

26.

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

StipUlation of Settlement.

27.

This agreement is subject to and conditioned upon the final approval of

this Stipulation of Settlement and the issuance of thc final order and judgment of

dismissal by the Court, providing the below specified relief; which relicf shall be

-9-

pursuant to the terms and conditions of this Stipulation of Settlement and the Parties'

perionnancc of their continuing rights and obligations hereunder. The ordcr and

judgment will be deemed final only upon expiration of the time to appeal, or if a l\otice

of Appeal is filed. upon exhaustion of all appeals and petitions for writs of certiorari.

Such final order and judgment shall:

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

including all claims for declaratory and injunctive relief;

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

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

future arising out of the facts alleged in the Complaint;

c. Release each Released Person from the l'iuims which any SCM has. had or

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

facts alleged in the Complaint;

d. Detennine that this StipUlation of Sdtlel11cnt is entered into in good faith,

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

e. Reserve the COUrl'S continuing and cxclusive jurisdiction over the Parties

to this StipUlation of Settlement, including Defendants and SCMs, to

administer, supervise, construe and enforce the Stipulation of Sel1lement

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

28.

The Parties will take all necessary and appropriate steps to obtain

preliminary approval of the Stipulation of Settlement. final approval of the Sel1lemcnt,

and dismissal of the action with prejUdice. If the Court finally approves this Stipulation

-10-

of Settlemcnt, and if therc is an appeal from such d~cision, the Defendants will not

opposc Plaintiffs' efforts to defend the Stipulation or Settlement.

IV.

RESOLUTlO~ AND PAYMENT OF CLAIMS FOR DAMAGES

29.

The total settlement fund (not including thc separate scttlcment funds

allocatcd filr claims administration expenses, as s~t forth below), which shall bc used to

pay all verified claims of SCMs as calculated pursuant to Exhibit "4" and attorncys' fecs.

is $8,000,000 (Eight Million Dollars) ("Settlcment Fund"). Within 30 days of

preliminary approval by thc United States District Court of the tcnns of this Stipulation

of Settlemcnt, Dcfendants will transmit by wire transr~r or celtitied funds the Settlemcnt

Fund and the amount for administrative expenses, as defincd in Paragraph 30, below, to

the Claims Administrator or the Claims Administrator's designee lor dcposit in an

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

shall inurc to thc benefit of the Class and the individually named Plaintiffs. The

Settlemcnt Fund will bc allocatcd as follows:

a.

Up to 55,529,750.00, plus interest earned on the Scttlemcnt Fund, and any

additional amounts allocated to the Settlement Fund pursuant to Paragraph 29b and 29c

below, will bc allocatcd to pay vcrified claims, pursuant to the Plan of Allocation

attached hereto as Exhibit 4. Trthe total amount of verified claims cxceeds this amount,

or the amount reduced as provided in Paragraph 30, belo\\', whichevcr is lowcr, the

amount payable to SCMs for cach claim shall be reduced proportionately so that the

entirc available amount in thc Settlement Fund is paid out to SCMs. lfthe total amount

requircd to bc paid to SCMs pursuant to the allol'ation provided in Exhibit 4 is less than

-11-

$5,529,750.00, or some lesser amount pursuant to Paragraph 30 below, the balance will

be refunded to the MTC Defendants.

b. S2,OOO,OOO.00 will be allocated to Plaintiffs' attorneys' fees, gross receipts

tax on Plaintiffs' attorneys fees, and litigation expcnses incurred on behalf of Plaintifl's,

subject to approval of the Court. Defendants agree not to contest Plaintiffs' request for

approval of this amount for fees, gross receipts tax, and litigation expenses. In the cvent

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

will be added to the amount allocated to pay verified claims;

c. $470,250.00 will be allocated equally among the class representatives to

acknowledge their participation and efforts in this lawsuit in securing damages for

personal injury for SCMs, subject to approval of the Court. This amount is separate and

apart Ii-om any payment due for their individual claims as SCMs. Defendants agree not

to contest Plaintitl's' request for approval of these pa)111ents to class representatives. In

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

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

30.

Up to S500,OOO (five Hundred Thousand Dollars) will be paid by the

Santa Fe County Defendants for all claims administration costs. If the total amount of

claims administration expenses incurred is more than S500,OOO, then the allocation to pay

verified claims will be reduced and such overage of administrative costs shall be paid

from the $5,529,750.00 allocated pursuant to Paragraph 29a above. If the total amount of

claims administration expenses incurred is less than $500,000, then the balance

remaining will be returned to Santa Fe County. The selection of the Administrator and

the terms and conditions of the administration agrccmcnt shall be subject to mutual

-12-

approval by counsel for the Plaintiffs, the MTC Defendants. and the Santa Fe County

Defendants. but all parties shall cooperate in good faith.

31.

The Parties agree to make an application to the Court to appoint the

Administrator an officer of the Court for the purpose of implementing the tenns of this

Stipulation of Settlement. The Administrator shall he subject to judicial immunity to the

fullest extent permitted by law. The Adl11inistratllr shall be subject to the jurisdiction of

the Court with respect to any dispute arising between the Administrator and the Parties

regarding the implcmt:ntatilln orthe terms and conditions of the administration

agreement.
v.

PROCEDURES FOR RECEIVING PAYI\1ENT UNDER THIS STlPULAnON OF SETTLEMENT

32.

Following final approval of this Stipulation ofSettlcment by the Court and

exhaustion of all appeOils so as to affirm the Court's approval of this Stipulation of

Settlement, all SCMs who timely submit verifit:d claims, which have not been disallowed

pursuant to objections made pursuant to Paragraph 39 below, shall be entitled to receive

payment as set forth in the Plan of Allocation attached hereto as Exhibit 4. subject tll a

pro rata reduction as set forth in Paragraphs 29 and 30, above.

33.

The Parties expressly agree that the funds paid herein arc not for economic

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

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

pain and suffering. arising from an occurrence. within the meaning of § 104(a)(2) of the

Intemal Revenue Code of 1986. as amended..

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34.

Any SCM who fails to submit a Claim Fonn completed in accordance

with the instructions contained therein by the Bar Date or any other COUIt mandated

extension, shall be forever barred from receiving any payment pursuant to the Stipulation

of So:ttlement. Such SCM shall in all other respects be bound by all of the tcnns of the

Stipulation of Settlement, and the judgment entered herein. including but not limited to

the release of all Released Persons of all claims resolved herein.

35.

To receive payment, an SCM shall be required to submit to the Claims

Administrator an executed Claim Form signed under penalty of perjury with questions

completed in accordance with the instructions provided. All Claim Forms must be

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

36.

The Claim Fonn shall be submitkd by first class mail and shall be deemed

submitted upon the date of the postmark thereon.

37.

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

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

practicable ancr the Effective Date.

3H.

The Administrator shall determine whether or not a person who has

submitted a Claim Form is an SCM and shall reject claims by persons who arc not SCMs.

The Administrator will determine the dollar amount of each payment to an eligible SCM

based upon the Administrator's review of the SCMs' responses to questions on the Claim

form.

39.

If either the Defendants or Class Counsel contests a claim on the ground

of fraud or administrative error, the contesting party will notify the other party, the

Administrator and the claimant. The other party andlor the claimant will have 10 days

-14-

within which to respond to the notice. After the deadline for response. the contesting

party will submit any remaining issue to the District Court in accordance with local

motion practice. The decision of the District Court will be linal and unappealable. The

contesting party will have the burden of proof

40.

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

incorrect, the Administrator will provide written Illltice to the SCM that will include

procedures and time limits for seeking reconsideration of the Administrator's

determination. If the SCM timely and properly contests the Administrator's

determination of the validity or correctness of the Claim Form. the Administrator will

reconsider the Claim Form and make a second detCl111ination. If the Administrator

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

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

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

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

VI.

EXCLUSION FROM THE SETTLEMENT CLASS

41.

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

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

5 to the Administrator, so that it is postmarked or othef\vise delivered on or before the

Bar Date or as the Court may otheIWise direct.

42.

Any potential SCM who does not timely file a Request for Exclusion shall

conclusively be deemed to have become an SCM and to be bound by this Stipulation of

Settlement and all subsequent proceedings, orders and judgments herein.

-15-

43.

Any SCM who does not eject to be excluded from the Settlement Class

may, but need not, enter an appearance through his or her own attomey. SCMs who do

not enter an appearance will be represented by Class Counscl.

44.

The Administrator will report all Opt-Out dections to all counsel upon

receipt, and will determine and report to counsel for the Parties not later than ten (10)

days aftcr the Bar Datc the total number oftimcly and \'alid Opt-Out dections. lfthe

total number of potential SCMs submitting timely and valid Opt-Out elections equals or

exceeds the number stated in a separate confidential letter, thcn the Defendants, in their

sole discretion, may rescind their acceptance of this Agrl'ement, in which case the

Agrcement will be rendered null and void and ofnl> etlcct. To exercise this right of

rescission, the Defendants must serve the Administrator and Class Counsd a written

notice of rescission not later than thirty (30) days after the Administrator serves counsel

for the Defendants with its totals of valid and timely Opt-Out ejections received. In the

event the Defendants validly and timely exercise their right of rescission, the funds

deposited by Defendants pursuant to Paragraph 29 herein, together with any interest

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

by the Administrator. Such expenses, fees and costs sh,lll be paid by the MTC

Defcndants and the Santa fe County Defendants 50/50, unless otherwise agreed by the

Defendants.

VII.

OBJECTING TO THE PROPOSED SETTLEMENT

45.

Any SCM who does not elect to be excluded from the Settlement Class

may, but need not, submit comments or objections to the proposed settlement. The Court

-16-

will enter an appropriate order setting forth the procedure for SCMs to submit comments

or objections to the proposed settlement.

VIII. NOTICE

46.

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

individuals whose addresses arc on record in the Database and any other databases and

records maintained by Defendants or to such other. bctter addressees identified by the

Administrator, and by publication and broadcast as set forth below. All notil'cs and

information provided to SCMs shall be in English and Spanish.

47.

Tht: Administrator shall cause to be published in English and Spanish

languages. in the Sal/tu Fe New Mexican. the Albuquerque! Joul"I/al alld the Rio Grullde

SUIl, newspapers once a week in each of two const:cutive weeks notices in a form and

manner agreed to by the Parties describing this settlement, the claims procedure and the

procedure to object andior to Opt-Out of the settlement. Notices in a fonn to be agrt:ed to

by the parties shall alsu be posted in the Santa Fe County Adult Detention Center. If the

Partics cannot agree, the Court will detennine the content of the published notice.

48.

Announcements summarizing the proposed settlement in English and

Spanish will be made on the following radio stations three times during a week, during

two successive weeks: KKOB-AM, KRST-FM, and KDCE-AM.

IX. ADMINISTRATI\'E COSTS

49.

Following preliminary Court approval oflhe Stipulation of Settlement, the

Administrator shall submit monthly invoices to Counsel for the Santa Fe County

Defendants, with copies to Counsel for the Parties, for services rendered and for expense

-17-

rcimbursement, unless the administrative agrecmcnt provides for paymcnt of a fixed or

lump sum to the Administrator. All invoices will indicate the dates upon whidl services

were performcd, the titles ofthc employees pcrforming the services, the numbcr of hours

worked by each title of each date, the hourly ratc 1<>1" each such title, and the total fee for

the services performcd. Thc hourly rates shall be in accordancc with the agr.:ement

betwcen the Parties and the Claims Administrator.

IX. DISPUTE RESOLlITIO;\l

50.

Thc Parties may bring an issuc direo.:tly before thc District Cuurt when

cxigent facts or circumstances rcquire immediate Distrid Court action to prevent a

serious violation of the terms of this Agreement, which otherwise would be without

meaningful remedy.

X.
GOVERNING LAW

51.

This Agrecment will be subject to. guverned by. and construed and

enforced pursuant to the laws of New Mcxico.

XI. ENTIRE AGnEEMENT

52.

The tenns of this Agreement and its attachmcnts are the exclusive and

final expression of all agreements by the Plaintiffs and Ddendants with respcct to full

and final settlemcnt of this mattcr, but the Agreement does not, and is not intended to,

constitutc the entirety of agrecments among the Defendants and thcir respective insurers.

The Parties have entered into this Agreement based solcly upon its terms and not in

reliancc upon any representations or promises other than those contained in this

Agrccment. Thc terms ufthis Agrecment may not be c'untradictcd either by cvidence of

-18-

any prior or contemporaneous agreement or by the use of any form of extrinsic evidence

whatsoever in any judicial, administrative, or other Icgal proceeding involving this

Agreemcnt.
Dated:~-J_~b

ROTHSTEIN, DONATELLI, HUGHES,

D

TROrv:1I0ENBURG & BIEl\VENU, LLP

Mar . Donatelli John C. Bienvenu P.O. Box 8180 1215 Paseo de Peralta Santa Fe, N~w Mexico 87504-8180 (505) 988-8004 Attorneys/or Plainl!/Jv

-19-

BY:~ru~ EATON LAW OFF~j' P.C. P. Scott Eaton P. O. Box 25305 Albuquerque, NM 87125-5305 (505) 243-1486 Allorneys!o,. Defond,mls MTC and Dixon
-20-

~ ,

r

I

'IA"'\M-', P.A.

i

Attorneysfor Defendant MTe

,
-21-

LAW OFFICI· (IF 1111('1
By:J!r-~ Michael Dickllla 1'.0. Box 54'1 Santa Fe. :'-J\1 X7504 (505) 989-'1360

EL DICKMAN

:1l1orneylill' Defelldw/ls ,\'<I/1/el Fe ('oUllly Board (?(( 'ommissitJllf..'rs. Cireg ,"olano lIl1d Raymond.f Si.\'I1t'l'Os

-22-

SANTA FE STRIP SEARCH LAWSUIT CLASS ACTION CLAIM FORM

LEYHA, l't al., v. SANTA FE BOARD OF COMMISSIONERS, l't al.

tlNITED STATES DISTRICT COURT FOR THE OlSTRICT OJ<' NEW MEXICO
No. ClV-05-0036 BH/ACT

F11.L our TIllS FORM IF I'm; WERE STRIP SEARCIIED AT INTA"-E AND ROOJ..:ING

AT THE SA:-.JTA FE COUNTY ADlJLT DETENTION CF:-.JTER BEFORE yO! r WERT-

ARRAIGNFD BETWEEN JANUARY 12,2002, AND

_ _ _ .. _

(ARRAIG1\I\IFC'JT MEANS TilE INITIAL APPEARANCF IlEFOKE A JUDCH' EITHER BY

VIDH) CONFERI'NC[ I~ TilL DETENTION FACII.lT't OR IN COURT AT WHICH A

PLI':\ IS Ll\:TI:RFD TO Till: CIIARGES AND AT WIII(,11 CONDITIONS OF RELEASE

ARL DISClISSFD.) AI.L. MFrvlBERS OF THIS CI.ASS WllO QllAI ,1FY ~lA Y RFCFIVE A

MOI\FTARY AWARD.

You must completc and submit this claim form no latcr than

, to qualify

for payment from settlement of the class action strip sean'h case against Santa Fe Counl~·.

l\1ana~emcnt & Training Corporation, and the othC'r namcd Ildendants. I f ~'nu dn nol

return a completed claim form b~' the due date you will rccein 1\0 MONEY rrom the

settlcmcnt.

CLASS ACTION CLAIM FORM

.. _"laIl1~

. - -...---

AddrC'ss

City, State, Zip ('ode

_ - ..

... - ._----- - - -

PIWllC #: (__ _ __ .__

:\\1 Drhw's I.icense No.

Sodal Security Number: _ ... _ _ _.... _ _ __

Date of Birth:

(,ender:

\1ale FC'mak

Exhibit 1

* • * * • * * * * * * * * * *
Answer l'aeh llf the Illilowing questiuns hy placing a check in the "'yes" _ ur '"nu"_ hox at the end ,)1' the question. If you chl'ck "yes" as the answer to any question and it is n:questt:lL yllU 1\1\ 1ST suhmit an explanalitlll, desniption of the circumstances. photographs. medical \'crilicatilln, \\ ilness stateml!nts. or such other documentation necessary to support your answer. If you do not proyi,k the requeslt'd I!xplanation. dcscriptillll or documentation. your "yes" answ.:r will ht: disr.:garded.
I)LEASt<: PRI~T YOUR A~SWERS C'LEARL Y
CAUTION .... TilESI' ANSWERS ARE GIVEN \ INDER PFNAT.TY OF PERJURY. ANY MATI·RIAI. ),ALSI STAT[~IEl\TS WILL RESUlT IN A DENIAL 0)' TilT' CLAIM.
I. WelT yllU strip searched during intake and booking at th.: Santa Fe Cnunty Adult Detention Center belilfc arraignment at any time bel\\'.:.:n January 12.2002. and
'I

YES 0

NU 0

If so. stak th.: (btl' (,f each tim.: that you IV!.'re slrip-s.:arch.:d during intake and b o o k i n g . _ __ _......_ __

If you answered '"y.:s" to thl' aboye. ,Ir you arc unsure ,,1' ti,e datl'. pleas.: continue 10 ans\\'er the
ljul'stions belo\\·.

Note: Not all persons strip searched at th.: Sanla Fe (\,unty Adult Detention Center during Ihe

class period (January 12. 20m to __ .

. ._J \\'ill he entitled 1(1 payment. If you we're

charged with a crime' il1\'ol\'ing drugs. weapons. or violellce suhstantially similar to those

chareges pro\'i,kd as examples in Fxhihit 3 of the StipUlation of Settlement. fiJr instance. you

ma) not he entitkd to payment under this settlement.

~, • Do you ha"1! a hishlry of bt'ing the prior victim of st'xual ahuse that is doculllt?ntL'd in any reC<lrcis (I/" courts, law <:nforet!nlL'nt agl!ncies or medicalllr healthcare pnl\"idcrs'" If so, please explain this history bdow, and pro\'ide the following d"Cllnwlts: original or truL' and correl'l eopics o/" reports trom law entill'cement agencies andior rcp(lrts prepared by gon!rlll1H;'ntal agencies, healthcare providers, or mental health care pro\'idcrs,

YES 0

NO 0

Explanation: __.

-" • Did you hayc any sig.niflcant physical deformities that \\cre L'xposL'd as a conseyuenL'c of any strip sean:h, such as a missing limb or hody part or suhstantial sl'arring, that w(luld otherwise be hidden by cl,'thing" If so, describe the physical deformity in detail and/(lr suhmit a plhliLlgraph,

Yl'S 0

NO 0

Explunati(ln:

4, 'Ir~Oll arc temale_ '\crc you mcnstruating at the tinK' ofthc strip scmch':'

ITS 0

NO 0

5,' Did you receive documented formal counseling by a counselor or therapist or doeumcnted medical treatment hecause of any strip search, within 60 days follnwing. the strip seardr'? 1/"50, pleasc' l'xplain this counseling or medical treatment bdow, and provide the following documents: original or true and correct copies of records prepared hy h~althcare providers at or lIear the time o/"tllL' sen'ices that were provided (if the records wcre prl'parcd 1I11lrL' thall 30 days after thL' time that services \\we proyided, they will not be considered),

YES 0

NO 0

The name. address and telephone numheT(s) of the Cllunse\elr(s). (herapist(s) or medical care pwyickr( s). til<: dates elf the yisits and the treatment rl·cei,·ed ,Ire as follows:

6. *\\·cre you t('uched hy a correL'lions .,nicer on the hrl'asts. genitals or huttocks during, the st!'arl'h':'

'ITS 0

1\0 0

If so. descrihe c('l11pktely. including, a description of the corrections oHicer. the manner of touching,. and the I.,.:ation in the I'lcility wherl' you were when the touching occurred:

7.* Were you an inl11ate in any slate or ((:deral ddention ccnter or prison at any timl' within tive years hefore your lirst strip sl'arch upon intakl' and hOllking at the Santa Fe County Adult Detl'nti"n l'enle(:'

YES 0

1\:( ) 0

S' Were you an inmate in any county. city or juvenile dl'lc'ntion 1;lcility alkr heing cnIl\·iL'ted of a crime at any timc within tive Yl'ars helllrc your first strip search upon intake and honking at the Santa Fe Coullty Adult Detention Cl'nter'.'

YES 0

NO 0

• If you ans\\·l'n:d "yes' to any of these questions you may h.: contacted and asked to pro,·ide further infl>rInutilln.

A;\Y MATERIAl. FALSE STATEMENT WILL RESllLT IN DE:'oIIAL OF YOUR CLAIM,

I DFCLARt' {INDER PENALTY OF PERJURY UNDER TilL I.AWS OF TilE STAIT OF NEW MEXICO TI IAT TI IE ABOVE IS TRUE AND ('( lRRICT,
DATFD:

The inlimnati(ln given here is private. and will be used only lill' purposes of evaluating and

administering yllllr claim, Your inllJrmation may he reviewed by attorneys for any of the parties

I'llI' ae-curacy, Yl'rification nfclaims may involve review ofY<ll'" fcderal. statl' and county

dCkntilln rec()rds, The infonnatil)n will not be released ttl thl' puhlk, DO NOT CAI.L OR

WRITE TO TI II: ("LUU': OF THE COURT FOR INFOR~L\TIUN RI'CiARDING TI IF

PROPOSED CLASS SETTLEMENT, If you havc any 'IlIcsti()ns ahl)nt this lawsuit. writt: to the

Claims Administrator

or \'isit the wehsitl' at

TillS CLAIM FORM MlJST BE SIGNED AND )~ETlIRNED WITH A )'OSTMARK 1\0

LATER THAN

. {:se the enelosed return

cnn:I,)pc and mail thc compi<:ted claim form and any slIp]l()rting inl()fIuation to:

If YOII nred assist:lI1er in completing this form, please fccl the to contact the Administrator lcontad information} or Plaintiffs' Class Counsel, Rothstein, Donatelli, Hughes, Dahlstl"Om, Schocnberg and llicnH'nu, LLI', 12151'1Isctl de Peralta. Santa Fc, New Mexico 117501; hleph()Ill' (505) 91111-8004; Facsimilc (505) 982-0.'117.
If )'011 qualify for payment and you would lik" )'our settlement check mailed to an address other than that on the first page of the Claim Form. pruvide it here: (Addrcss if different) to which settlement check shuuld b,' mailed: l'Iame or c/u Stn'ct Addre-s- s - (o-r~I- 'u- st~O~f~fi~c- e - R- ox-)- __-_-_-_- _- __--- -,--_- _- __-_-_-_- __-_-_-_- _- __-_-_-_- _- __-_-_-_- _- __-_-_-City____________________, Statc____ Zip Code________

IN THE UNITED STATJ<:S DISTIUCT COURT FOI{ TIn: IlISTRICT OF ~EW MEXICO
ELIZABFTH LEYBA. NATASIIA APOJ)ACA. NANCY ELUN. MONICA GAIKIA. LUCY M. MA){QUEZ. MARK ;\lILLER. COPI'ER PERRY. J)A VII> SANDOVAL. IffiISTI SEIBOLD. RllSSELLA SERNA. and KIMBERLY WRIGIIT. on their own behalf and on behalf of a class of similarl)' situated persons.

Plaintiffs.
YS.
SANTA FE ('()lINTY BOARD OF COMMISSIONERS; MAlIiAGB1ENT & TRAllIilNG CORI'O){ATION; SANTA FE ('OliNTY SHERIFF GREG SOLAlIiO. in his individual and official capacities; FORI\1F,R SAlIiTA FE COUNTY SIIERU'F RAY;\10l'iD L. SISNlmOS. ill his individual Ulld official capacities; and K~:RRY DIXON. ill his indh'idual and official capacities.

No. C1V 05 0036 DB/ACT

J)cfelldants.

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COlINTY CLASS ACTION STRIP SEARCH CASE

IfplU were strip searched M intake and booking at the Santa Fe County Detention I'acilit)' before you were arraigned between January 12,2002 and _ _• you rna),' be entitled to mOlleta,)" compensation undl'" a proposed class action settll'ml.'nt.

Then: is prl'sently pending a lawsuit filed as a class action in th~ United Stat~s Distrid Courl.

Distri,t of)\~\\" Mexico, The parties have proposed a selliemcntthat. ifit rL'ceiH's tinal

appro\a!. atkr all appeals. will provide that certain perSllns suhject to strip scarch~s at the Santa
re Fe (\)Ullty Adult Detention Center will receive money, Rewrds orthe Santa County

DelL'ntion I'acility show that you \\"er~ booked into the lill'ilit~ during tht' rcle\'anttirne pL'riod,

To recei\"c monetary C()mp~nsati(ln in this pending settlement. you must fill out and mllil II

claim form by

, 2006.

II' YOU WISH TO CLAIM MONETARY COMPENSATION,

OBTAIN, FILL OlIT AND MAIL THE CLAIM FORM AS SOON

AS POSSIBl.E B(:T NO LATER THAN

,2(l(l(•.

Exhibit 2

For more inl()rmation, pleas~ rl'ad this notic~,
PLEASE READ THIS ENTIRE ~OTICE CAH,EFULLY. YUtl MAY BE ENTITLED TO RECEIVE A l'AYMENT.
Ther~ is no\\' pending in the l.,:nited States District C(lurt. DisLrkt 01' I\e\\' :o...1cxico, an ill:tion likd as ,[ dass action on behal I' of p~rsons allegedly illegally stri p sean.:hed at the Santa l'e Count) Detention Facility between January 12.2002 and _, ___ ,\ StipulaLion of Settlement. approved preliminarily by the Court. defines the class inclulkd in this settlement as t()llows:
A II pre-arraignment deLainees who ,,'cn: subjected Lo a strip search upon booking and intake to the Santa h' CounLY Detention Facility during the Class Period [January 12, 2002 Lh['(lugh ,,__ J \\'ithout individualized reasonable suspicilln that the sean.:h would kad to the discovery of contraband or weapons, not induding pl'rsons arresLed or booked on charges in\'ulying drugs, weapons l)r \'iolcnee, substantially similar to those chargcs arc prll\-ided as examples in ExhibiL 3 to the Stipulation \)1' Selllelllenl.
You have n?ceiYed this NOLice either becaust! records ufthe Santa Fe County Detention Facility indicate that you lllay be in the dass. or because you contacted the Claims Administrator. WheLher or not :'ou l/uali(y as a class member will be hased UPlHl the rct'oTds of the Santa Fe ('ounLy Detention Fadlity, II'Lhese rCl'ords do not contain y"UT nalJ]e and sho\\' you to be within the udinition "I' the dass. you "'ill not qualify_
This Noticl' is Lo inform you that a settlement has be'en pr\Jposcd in this action and that. as a potential dass Illemher. your rights may be alTet'ted by the seLLk-lllcnl. This I\Niee also sUlllmarizes the terms and d1,xt l)rthe proposed settlemcnt. ",haL you can do \<) parLicipate in it. ho\\' you may ohLain money under the settlement, and what Y"u must do if you choose to exclude yourself {hUll thl' dass,
SUMMARY OF THE CASE
On January 12.2005. Plaintiffs Elizabeth Leyba. Natasha :\p\lliaca. Nancy Ellin. r-.lonica (jarcia. Lucy r-.1. Marquez. Mark Miller. ('opper Perry. David Sando\'aL Kristi Seibold. Russdla Serna. and I\.imberly Wright (,'Plaintill's"). on behalf ofthemsel,cs and all pl'rsons similarly situilLed. tikd a complain! in the above-captioned matter against Ikfe'ndanLs t\lanagement & Training Corporation and Kerry Dixon. in his individual and official capacities ("MTC Defendants")_ and Santa fe County Hoard of Commissioners. Santa fe County Sheriff (jreg Solano. in his individual and oflicial capacities. and former Santa Fe ('ounty Sheri tT RaYllJond 1.. Sisneros. in his inlliYidual and official capacities ("Santa Fe County lkkndanls"). in whieh they challenged

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 2 OF

l'L'rtain practicL's uf DeJi:ndants including the strip search of L'Crtain detainees, and sllught damagcs and lkdaratory and injunctiYe relief Plaintiffs allcgc that the) Wl're uul(m-[ully suhjected to strip sean:hes performed pursuant to thc policies, practices and customs of Dctendants (lfconduCling strip sL'archcs of all incoming pre-arraignment detainees. Plaintil'tS al kge that these strip searches \Wrl' performcd without regard to thL' nature of thL' alleged offenses till' which Plaintiffs had bCL'n arrested. and without Defendants having a rl'asonablc belief that the Plaintitfs so searched possessed weapons or contraband. or that therl' existed J:lCts supporting a reasonable bdief that the searches would produce contraband or weapons.
Plaintitfs sllught damages for ci\'il rights violations under 41 ll.S.C. § 1983. and for claims arising undcr th" New ML'xico Tort Claims Act and Nc\\ t\-kxico common law. Plaintiffs addilionally sought a judgllll'nt declaring that Defendants lTIust ceasc the activities describcd herein and enjoining Defendants from any further strip search.:s without indi\'idualized reasonahk suspicion. PlaintifJs brought this action on th':;r nwn hehalf and on hehalf of a class of similarly situated indiyiduals.
The i\!TC Dl'fendallts contL'nd that thl' admissions search pulicies at the Santa Fe County Adult IktenliclIl Facility were reasonably related to legitimate I'l'noklgical inten:sts in deterring thL' introduction of WL'apons. drugs and othcr contraband intn thc detention center. As such. Defendants submit that ddention center policies arc entiticd tu deference under the law. and that the policies sll(luld not he found to violate the Constitution or any statc law. Ikfendants dcny that aIlllftlle Plaintiffs were subje.:ttl) strip seiLrches upon admissi,'n to the ddl'nti,'n center. and they deny that all pre-arraignmL'nt arrestees were strip searched during the period oftilm: in question. Deil'mlants furthL'r deny that searches ofthL'l'laintifis violakd any state or felkral statuh1ry or C\lmn1()n law.
Thc Santa Fc County Defendants den)" any and all liahility li'II' their own acts and omissions and deny any liabilit) Illr thl' acts ami omissions by independent contractor MTC and MTCs employel's. The Santa Fe County Defcndants contend that Count II lilils tu state a claim npUll which relid call be granted under the New Mexico Tort Claims Act. In addition. Defcndant Solano and Del,:ndant Sisneros afJirmativcly assert that they had no mIL: whatsoeycr in the formulation (lr implementation of 1\·1TC"s strip search policil's and have no individual respLlnsibility for any ,'fthe allcgedly unconstitutional p,)licies. practices or aets ofthc MTC DeJendants. and they also assert qualitied immunity as to the violations 01'42 U.S.c. § 1'183 alleged in thl' complaint.
In addition. Defendants assert that a class action is inappropriate and that thl' claim for injunctive relief is moot.
rhe Parties entert'd intll extensive discovery which included L'xchange of documents. prcparati<.111 of and n:spllllSCS to requests Ii)r production of documents. and depositions.

NOTICE OF PROPOSED SETTLEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 3 OF

SUMMARY OF THE PROPOSED TERMS

A Stipulation of Settlement (""SelliL'mcnf') was enterc'd into alkr intensive IH:gotiations between the parties. c<lIIducted with the assistance of a third party mediator. The Parties arlO requesting that the Court approve the Selliemenl.

A. Parties t() the Settlement.

The Parties te> the Seltkment arc the Plaintiffs. the ~rrc Deil'ndants. and the Santa Fe County Deti:ndants.

Class Counsd are Mark II. Donatelli. Robert R. Rothstein and Jclhn C. Hien\'cnu of the I.a\\ Offices of Rothstein. Donatdli. Hughes. Dahlstrom, Schoenburg & Bicm't'nu. Ll.P. 1215 f'aseo (k Peralta. P.O. Box 81 IW. Santa Fe. NM 87504·8180.

B. Defendants Do Not Admit Any Liability.

Plaintim allege that the acts andior omissions that arc the sub,iect of the claims cover<:'d by this action (strip searches) \'iolated \'arious state and federall,ms. Del""ndants d<:ny all allegations of
\\Tl)ngdoin!,! and lkny any liability to Plaintiffs or w any other class members. The Partie's ha\'e
agreed thaI. in order to aY(lid long and costly litigation. this l'ontro,ersy should be setlkd pursuant to the terms of the Settlement. subjcct to appr<),;11 "fthe Court.

C. l\1onctan- Terms of the Settlement.

The total settlement fund (not including the separate sellil'mcnt ti.mds allocated for claims administration expenscs. as set j,)rth below). which shall be used to pay all veri lied claims of SCMs. administrative costs and attorneys' fees. is up to $R.(I()(J.O()(J tI:ight Million Dollars} (""Settlement Fund""). Jn addition. up to $500.000.00 will be paid hy the Santa Fe Coullty Dekndants J,)r all claims administration expenses. Within 30 days of preliminary approval by the I !nitcd States District Court of the terms of the Stipulation of Settlement. Defendants will deposit the Settlement Fund and the amount for administrative' expenses in an interest-bearing qualilkd selllcmcnt fund. Funds will be distributed to SCMs and their counsel pursuant (0 an agreed upon Plan of Allocation. If all funds deposited into thl' Sclllement Fund are' expmded pursuant h) the Plan of AI!.)cation. then all interest earned on the Settlement Fund shall inure to the' bend!t of the Class. The Settlement Fund will be allocated as j(llh)\\s:

a.

SlIbject to possible reduction in the funds available to SOds. as provided in

I'aragmphs 29 lind JO of the StipUlation of Settle-ment. lip to $5.529.750.00 (plus

interest eanll'd on the Settlement Fund. and any additional amounts allocated to

the Settlement Fund) will he allocated to pay \wilied daims. pursuant to the Plan

NOTICf OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 4 OF

of Allocation (sce helow). If the total amount ol'\'eri lied claims exceeds this amount. or the amount reduced as pro\'id~d in Paragraph 30 of thl' Scttkml'nt, the <lnlllunt payahle to SCl'vis for each claim shall he rl'duced proportionatl'iy so that the entire anlilahlc <unount in the Settlement Fund is paid out to SCMs. If the total amount paid to SCMs is less than $5.529.750.00. or so OIl' lessl'r amount pursuant III Paragraph 31 of the Settlement. the halanee will he rdimJed to thl' I k-kndants:

h. $2,OUO,OOO.OO will be allocated to Plaintiils' attorneys' kes, grllss receipts tax on I'laintills' attorneys fees, and litigation exp(,I1ses incurred on hehalf of I'laintil1s, suhject hI approval of the Court. Dd'endants agree not to contest Plaintiffs' request for appro\'al of this amount for kl'S, gross receipts tax, and litigation ex penses. In the event the Court approves less than this amount, the balance rl'maining in the Settlement Fund will be added to the amount allocatcd to pay writied claims: and

c.

$470,250.00 will be allocated equally anlllIlg the class representative to

adnll\\'lcdge their participation and efl(,rts in this lawsuit. Sl'pamtc and apal1li'om

any payment due j(,r thc:ir individual claims as SCMs. suhject to apprllVal of the

COUl'l. Dekndants agree not to contest Plaintiffs' request for approval of this

paymcnts to class repn;'sentativcs. In the ewnt the ('ourt appro\'es less than this

amount. the balance remaining in the Scttlemcnt Fund will he added to the

aml\unt allocated to pay \'Critkd claims.

d.

S('paratc and apart Ii'om the Settlement Fund, up to $SOO,OOO.Ot) will he paid hy

thc Santa Fe County Defendants jilr all claims administration ('xpensl·s. If thl'

tntal amount of claims administration cxpenses incurred is nwrL' than $500,OO(J,

then the allocation to pay verified claims "'ill bL' reduced and such overage of

administrative costs shall be paid from the $5.529,75U.(JO alklcated to the

Settil'ment Fund. Irthc total amount of claims administration expenses incurred

is less than $500,000, then the balance remaining will he returned to Santa Fe

County.

c.

Thc Settle-ment rroposes the following Plan nf Allocation:

A. All SCMs who were searched in the period January 12,2002 through Junl' R, 20t)3 ("Period A") and who submit veritied claims shall be entitled to rccciYe the ll)llowing payments in full satisfaction of their claims, subject to the reduction 1(lctnrs listed helow and a pro rata rl'duction as set forth in Paragraphs 29 and 30 ofthl' Settlement:

I. $1,000 if h,' or she was strip searched one tim," during Pcrind A:

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 5 OF

An additional $250 ifhe or she \v<IS strip sl'urched two or more times during Period i\;

3.

An additional $250 ifhe or she has a do~umented history (as detincd in

Paragraph S of the Stipulation llfSeniement) ofheing thl' prior victimllf

sexual aOUSt':

4.

An additional $250 iI" he or she has signi liL"am physi~al dl'fnrmities (as

defined in Paragraph 14 of the Stipulation ofScnkmenl) that were

expnsi.'d as a consequence of any strip search in Period A;

5.

An additillnal $250 if she was nlL'nstruating at the' time of any strip sear~h

in Period A;

6.

An additi,)(]al $250 if he or she rc~ei\"Cd dllcumenkd (as defined in

Paragraph 8 elf the' Stipulation 01" Settkmen!) I(JI"Illall·Ollnseling by a

counselor or therapist or documented medical treatment hccause of any

strip search in Period A. if the' tirst ~,'unsding elr medical session OCCUlTed

within 60 days of the strip search; and

7.

An additional S I00 if he or she ,,",IS t(luehed on the breasts. genitals. or

huttoeks during any strip search in Period !\.

Notwithstanding the l\.lregl1ing. the maximum pllssihk payment to ,U1 SCt-1 who was strip searched during Period A is $2,250.

B. All SCMs who wen: searched in the period June 9. 2003 through ]\io\"cmher 17.2005 ("'Period ROO) and who submit veritied claims shall he entitled to receive the Illilowing payments in full satisfaction of their claims. subject to the reduction j'lctors listed hctow and a pro rata reduction as set Ilmh in Paragraphs 2<) and 30 of the Settlcment:

I.

$2.200 if he or Sill' was strip searched one timc during Pc'riod H.

An additillllal $25U ifhe or she ,,·as strip searched t\HI or more times during Period H;

3.

An additional $250 ifhe or she has a docuillented history (as ddin\!d in

Paragraph 8 of the Stipulation of Sett kmen!) of heing the' prior \ictim 01"

sexual ahnsc;

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 6 OF

.t.

An additional $~50 ifhe or she has significant physical del(>nnitie~ (as

detined in Paragraph 14 of thl' Stipulatilln llf Settlement) that were

cxposed as a consequence of any strip search in Period A:

5. An additional $250 ifshe was menstruating at thc time of any strip search in Period A:

tl.

An additional 5250 ifhc or shc recein'd dllL'llInentcd (as delinl'd in

Paragraph 8 ofthc Stipulation ofScttkmen1) i(lrmal ellunseling hy a

counsdor or therapist Of doeumenteJ meJical treatment hecause or any

strip search in Period A, if the first l'llLlllseling or medical session occurred

within 60 days of the strip search: and

7.

An additional $100 ifhe or she was touched on the breasts, genitals, Llr

huttLlcks during any strip search in Period A.

J\otwithstanding thl' t(lregoing. the maximum pllssihk payml'nt to an SCi\·! who was searched in Period B is $3,500.

c.

All SC~·ls who were strip-searchl'd in the period ]\io\'ember 18. 2(J0.t

through the date of the Sdtlelllent ("I'l'fiod C') and \VI]() submit verified claims establishing that

they were strip-searched without rl'asonablc suspicion shall he entitled to n:cei\'t' the i(lilowing

payml'nts in Itlll satisi[lction of thl'ir claims, subject tll the rl'Juctioll t[lctors listed below and a

pro ratu rc:ducti'"1 as Sl't forth ill Paragraphs ~9 and 3D oj" the Settlement:

I. S 1.000 if he or she was strip searched (lnl' tilllc during Pc'riod l".

An additional S~50 ifhe or she was strip sc:arched two or more times dUfing Period C:

An additional $~50 ifhe or she has a docllmented history (as deiinrd in Paragraph Rof the Stipulation of Settkment) ofhcing the prior victim of sexual abuse:

.t.

An additional $250 ifhe or she has signiticant physical deJ(lfInities (as

dctined in Paragraph 14 of the Stipulation oj" Settlement) that were

exposed as a consequence of any strip search in Pcrind A:

5.

An additional $250 if she was mc:nstruating at the time of any strip search

in Period A:

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 7 OF

ti,

An additional $~50 ifhe or she rl'cl'iwd do.:umented (as defined in

Paragraph I; of the StipUlation of Settlement) formal counseling oy a

counselor Ill' therapist or do<:umcnted mcdi<:al treatment bc.:ause of any

strip sl'arch in Period A. if the first .:ounseling or medical scssion occurrcd

within 60 days of the strip search: and

7, An additillJ1<11 $100 ifhe or she \\'as touchl'd on the orcasts. gl'nitals. or blltlO.:ks dming any strip sear.:h in Period A.

Nllt\\'ithstanding the ti'>rv'going. the maximum pllssibk payment to an SCI.,.,! who was searched in Period Cis $2.250,

D. An Set.,,! who was suhject to a search in nllJre than nne Class Pc'riod may claim only for one period,

F. Reduction Factors, The total award madl' to an SC1I! under Periods A. I3 or C. as definl'd aom e. shall be reduced as follows:

I,

Incar<:cration ill any state or lederal prison at ,UlY timc within li\'c years

berore the lirst strip search in Perillds A. Illlr C shall reduce the total

award by 8()~o,

COl1\'ietion of a crime (md incarl'l'ratilln for that <:on\'iction in any county or ju\'Cnile detention center within liw years hefi.)rc the first strip search in Periods A. R or C shall reduce the total award hy 80 ~'o.

, ,

Il' the SC\'!makes material false statements on the Claim Form. the total

award shall he reduced to zero,

r,

For SCMs \\'ith more than one applicable reducti,)Il thctor. as defined abo\'e. only

the reduction lilctor with the largest applicabk reduction pen;entagc will apply.

G, S(,Ms wll\) quality tor payment pursuant tn thl' tt'fms of the Stipulation of Scttlement shall recciw payments as soon as pra<:tkablc alh:r the I:ftecti\'e Date or the Settlement.

D. Strip Search PoIic\',

The MTC De1endants no longer operate the Santa Fe County Adult Detention Center. The Santa Fe County Defendants havc agreed that they will no l<lnger strip search pre-arraignment detainees with,nlt reasonahle indi\'idualized suspicion that the strip search would he producti\'e of l'ontrahand or weapons,

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 8 OF

E. Your Options as a Class Member.

I.

You Mil\" Choose to be Bound by the Settlement.

To qualify for a payment you must send in a clllJlpleted Claim Form to the Claims ,\dministrator. If you !'ec('i\'l~ a not icc by First Class Mail. a Claim Form will be included in the notice package. YcHI can also g<:l a Claim Form by: (I) calling this toll tree number: 1800Numb,:!,J: I~) \'isiting the website. [website]: or (3) \\'riting the C1aillls Administrator at Leybll, et al. Strip Search Class Action, clo Claims Administrator, Iname and address!.

'1'011 have until

. ~006. to submit a c.lainl or to opt-out orthe Settlement.

Mail your completed Claim FOl'm to Claims Administrator at Le\'bll, 4:'t al. Strip Search Class Action, clo Claims Administrator, (name and address!.

Reml'mbcr. if yl1U do not submit a Claim FornI. you cannnt gd a paym.:nt. If you submit a Claim Form. you will be bound by thl' Settlement and rceci vc IIIlllley til' you al'': a dass member and ali other conditi()ns arc III':\). If YOII do not submit a Claim 1'01"111 but do not exclude yourself ti'OIl1 the .:lass !"s cxplained in the next paragraph), you will still bc bound by thl' terms of the Settlement and dismissal cnter.:d in this case, but you \I'illnot recei\'e any money.

By partkipating in this Scttknwnt. or by doing nothing in respllnse to this Notice. you will be wai\'ing all y()ur rights to all claims up to and including __. __ __. _. 2()06. related to strip
scarches at th~ Santa Fl' County Dc,tention Facility.

2. Yuu May Choose to Exclude Yourself From the Class.

y'(HI do not have to take part in the Sctll.:mem or h,' a IIIl'mb.:r of the class, This is called "excluding" yourself. If you exdudc ),OUfSCIJ: you c.aJlnut get a payment and you cannot object to the Settklll.:nt. Any Court orders will not apply to you. To exclude yourself: you must sign all "Opt-Out Form" that states that you want to be excluded fhllll Leyha. '" <II. \'. Sail/a Fi! COUII/)' Board o(ColI/lIlissimlt'l".\, eI al. United States District Court. District of ]\jew Mexico, Case 1\0. elV 5-00J6 BBiACT. Opt-Out Forms arc a\'ailabl.: from th.: Claims Administrator at 1address. mil-free' lIumner. wcbsiteJ. Your Opt-Out Forlll must bl'mailed and postmarked before
._. __ '_'. _ to the Claims Administrator at Leyba, et al. Strip Search Class Action, c/o Claims Administrator, (name and address!.

If you do not foliow thes.: imtructions properly, you will lose your right w exclude yourself. If
yllU l'.xclmk YllurselC you cannot get any money from thl' SetilemL'nt of this case and YOII cannot tell th", Courl you do not like th", Selllcml'nt (which is calkd "objL'ding··). If you exdw.k Ylllll'sciL YOIl are no longer part of the class or the Settlement. Bill you can sue or be part llf a dilfcrent lawsuit ~lbout the claims in this casco

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 9 OF

E. Fairness Hearing and Process for Objections. /\ Fairness I1e'lring. will be held on . _ ._. 2006. at ._. .n1.. at the United States District C<HlrL Pete V. l)omcnici L:.S. Clllirthouse. 333 Lomas Blvd. l\'N Suite nU. Albuqucrquc.l\:ew Mc:xico. Iryou arc a class member and dll not exclude yourself you can tdl the Court Y"U do not like the Sctllement or some part of it at this hearing. This is called objecting to the Settle'ment. Filr example. you can say you do not think that the St'ltkment is fair or adequate. The ('ourt will consider your ,·iL'ws.

To ()hject. you must send a ktter to the Court that contains all of thc following:

I.

The name and title orthe lawsuit (L~yh<l. <"I <I/. l". Sa/lill Fe (·0/1111)' Hoar,/ (It"

( ·ol/1l1lissio/lt'l"s. <'I (//.. United States District Court. District of New Mexico. Case

,"0. ("IV5-0U36 I3B/ACT):

2. /\ statement of each objection you have and the facts that support the objections:

3.

;\ dt'scription orany law or case supporting tht' ohjec:tions:

4. :\ statement on whether or not you ,lr your la"·)"l'r wi II ask to appear at the Fairness Ilearing to talk about your objcctions. and. if so, ho\\" long )"<lU \\"illnced to present your objections: and

5. Cnpies pf any documents you or your la\\ yer will present at the Fairness llearing.

At the hearing on th.: prllposed Settlcmt'nt. thr Court may scht'dule further hearings witllllut further noti~\! ((l the class. The matters considered at such future h~arings may include. but shall ntlt be limikd 1<1. furth~r consideration orthe fllirness and adequacy "~ethe proposed Settlement. ~onsideration nf the request tor attorneys' fees and reimbursemcnt of costs and expenses tn Class Coullsd. and th~ t;·,rm anu entry of the final judgment or dismissal in the ~vent the proposed Settlement is appnm~d hy the Court.

Indi,·idually. or thmugh counsel. any class member has the right to object to the proposed Settlement as a whnlc. to the amount of attorneys' fees and costs to Class coullsel. or to any portion ofeithef. ANY Sl'CH OBJECTIONS MUST BE FlI.ED IN WRITING ON OR BHORI' ..__ .____. 2006, IN TI-IE UNITED STATES DISTRICT COURT, DISTRICT 0'· NEW MEXICO. PETE V. DOMEI'<ICI {i.S. COURTIIOUSI:. 33.1 LOMAS flL VD. l\W SUITJ~ 27U. Al.BlJQliFRQUL NEW MEXICO, ATTENTION: CLERK. RF LEB'{A,I·r AI V. SANT/\ Fl' COl ;l\:n' BOARD OF COMMISSIONERS. FT AL. UNITED STAlES DISTRICT COURT. DISTRICT OF l\:EW MEXICO, CASF NO. CIV-05-0036 BBfACTj.

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION

PAGE 10 OF

II' you ,,·ish to appcar and present your objections at the fairness Hearing. you must also

suhmit a Notice ofintcntion to Appear that idcntilks the casco contains your name ami

address. and .:xplains the reason the appearance is desirc(\. The' ~otice llf Intcntion to

Appear and any ohje'ctions must he filcd with the Court 1m or bc'lur.: _

. 2006.

Yt.lU may bl' represented by your own attorney. If you arc represented by an attornl'Y at

the 11L'aring. his or her nam.:. addrl'ss and telephone number must be included in the

Notice (If Intention to Appear as wei\. A copy "fthe Statcm.:nt "fObjection and/or

Notiee of Intention tll Appear must also be mailed tll: L.:yba Class Counsd, Rothstein.

Donatdli. Hughes. DahlstTOm. Sl'hoenburg & Bienyenu. U .P. 1'.0. Box 8180. Santa Fe.

NM X75tJ4-XUW: P. Scott Eaton. Faton Law OfliCL'. 1'.0. Box ~5~05. Alhuqucrqul', NI\I

87125-5.'(15: Kurt Wihl/(iary J. Van Luehene, Kelc'ha & Mcl.eod. 1'./\.. 1'.0. Box AA.

,\lhuljuerqlle. N1\1871tJJ: and Michael Dickman.P.(). Lh,X 549. S;mta Fe. NM 87504.

F. How to Obtain Further Information.

DO NOT TELEPHONE OR WIUTE TO THE COl)RT OR COURT CLEltK FOR INFORMATION REGARDING THE PROPOSED CLASS SETTU~MENT. For
additional inlimnation regarding the Settlement and Claim i'orlll. llr tn ri.'quest a copy of thi.' Settknwnt Agreement. Claim Form or Class C(lUIlSd's ,\ppliL'ation for Attorneys' Fees. you should contact thl' Claims Administrator at LeYba, et al. Strip Sc-arch Class Action, c/o Claims Administrator, Iname and addressl. ·You lIlay also check thl' Claims Administrator" s website at Iwebsite]. or call IXOO IlllInberl. You may also ohtain
- lie-tailed inltlTlnation ahout the case b.y exaI11inin~ the court till: located in the "mcc of the:
Clerk of the United States District Court, District of '\C\\ \1exico. Pete V. I)omenid {I.S. Cllllrthnuse..133 I.omas Blvd. N\V Suite 270. Albllljul'rque. Ne\\ ~lexiL-o.

G. Court Approyal.

Although the Court has rcyiewcd the proposed Settlement and granted preliminary approval. IlO decision as to tinal approval has been. or will be. reached by the Court until the Fairness Hearing. This Notice docs not indicate that the Court has given linal appnwal to thc Settlement.

Dated:

NOTICE OF PROPOSED SETILEMENT OF SANTA FE COUNTY STRIP SEARCH CLASS ACTION 110F

PAGE

LIST OF EXAMPLE OFFENSES INVOLVING DRUGS, WEAPONS OR VIOLENCF, (Exhibit 3 to Stipulation of Settlement)
Chargc's inYolying drugs, weapons Of Yiokn~l' means thl' f()llowing ())' suhstantially similar New 1\kxico statutory, ledl'ml. trihal. andior lo~al otlenses:
DRUG OHENSES

Page I of4

Exhibit 3

WEAPONS OHENSES Page 2 of4

CRIMES OF VIOLENCE Page 3 of 4

Page 4 of 4

PLAN OF ALLOCATION CFxhihit 4 to Stipulation ofSc'tllell1enli

Suhject to Jinal ("()urt approval and exhaustion of all appeals so as to aflirll1 that Court appr",·al:

:\.

all SCMs who were searched in the pt'riod JanWlr) 12.2002 through June~. 2(1)3

("Pericld A·') and who submit ,·erificd claims shall be entitled t" receive the Illllowing paYIlll'nts

in full satisfaction ofthdr claims. subkl't to the rcduL'linn Jill'tllrs liskd undcr Paragraph t:: and a

pnl rata rcductitln as sd forth in Paragraphs 29 and 311 "I" th,' Stipulation (If Sdtkment:

I.

S1.1)00 if he or she was strip scarcJlL'd on,' time during Pc'rind :'\:

,
An additional $250 ifhc or Shl' was strip searched two or more times during Pc'riod A:

:1.

An additional $250 ifhe or she has a documented history (as defined in

Paragraph 8 of the Stipulation of Sctlkmcnt) of being the prior victim of

sexual abuse:

4.

An additional $250 ifhe or she has signiticant physieal deJ(lrmities (as

detined in Paragraph 14 of the Stipulation "f Scttlemcnt) that wer,'

exposed as a consequence of any strip search in Peril.ld A:

5.

An additional $250 if she was mcnstruating at the time of any strip scarch

in Period A:

{I.

An additional $250 ifhe or she rt'c,'iwd documented (as defined in

Paragraph 8 of the Stipulation of Sl'ttkm,'n1) /ilTlnalcLlunsding by a

counsdor or therapist or docmnenlL'd ll1t'dieal tn:atmen( hecause of any

strip search in Period A. if the firs( CIlllllsding (lr mcdical sessi(ln OCClIITl'd

within 60 days of the strip search:

7

..'\n additional $100 ifhe or she was ttluched on the brcasts. genitals. or

huttocks during any strip searl'll in I\'riod ,\

l\'otwithstanding the foregoing. the maximum possibk payment to an SCI\I who was strip
scarched during l'criod :\ is $2.250.

H. All SCMs who were searched in the period Junc 9. 200J through l\'owmher 17. 20()4. (··Peri(ld B") and who submit verified claims shall be entitled to rect'il'e the J(lllo\\ing payllll'nts in full satisfaction of their claims. suhject tn the r('duL"liLlI1 n,ct(lrs listl'd under
Paragraph 1-: and it pro rata reduction as set forth in Paragraphs 29 and 30 ofthc' Stipulation of
Settkment:

I.

$2.200 if he or she \,as strip seardled nil" tinl<' during l'cri(ld 13.

Exhibit 4

"

An additional $250 ifhe or she \\as strip searched two or mon: times

during Pl'riod B:

~.

An additional $250 ifhe or she has a documented historv (as ddined in

Paragraph g of the Stipulation of SdtJement) of h<:ing the prior victim of

sexual abuse':

4. An additil.nal $250 if he or she has signi licant physical ddllllllities (as dcfino:d in Paragraph 14 of the StipUlation of So:ttkment) that were o:xposed as a consequence of any strip search in Period B:

~.

An additional $250 ifshe was menstruating at the' time l.fany strip search

in Period B:

b.

An additional $250 ir he or she received documented (as defined in

Paragraph 8 of the Stipulation of Settlemen() formal wunsding by a

counselor or therapist or documented medical treatment because of any

strip sc-aJ"ch in Pc-riod B, if the first counseling or medical session occurred

within (.1/ days of the strip search:

7. An additional $100 ifhe or she' was touched on the breasts. genitals. or buttocks during any strip search in Period R.

Notwithstanding the foregoing. the maximum pl.ssiblc payment hl an SCM who was searched ill Perilld B is $3.500.

C

All SCMs who were strip-searched in the' period November 18,2004 through the

Date of the Stipulation ofSetticment ("Period C") and who submit \"L'rified claims establishing

that the'), were strip-so:archcd without reasonable suspi~ion shall bc- entitled to receive the

following paYIllCllts in full satisJilction of their claims. subject to the reduction factors listed

under Paragraph D and a pro rata reduction as set !I)rth ill Paragraphs 29 and 30 of the Stipulation

(If Settkment:

I. $1.000 ifhe or she was strip searched one time during Perilld C.

An additional $250 if he or she was strip searched two or mon: times during Period C:

3. An additional $250 ifhe or she has a clocumt'nted history (as dctined in Paragraph 8 of th.: Stipulation of Sdtkment) of being the prior victim of sexual abuse:

4.

An additional $250 ifhe or she has significant physical defi.>nnities (as

ddined in Paragraph 14 of the Stipulation ofSellicmi.'nt) that wen:

cxposed as a consequence of any strip search in Period C:

5.

An additional $250 if she was menstruating at the time of any strip search

in Period C:

6. An additional $250 ifhe or sht' received documentcd (as defined in Pamgraph 8 of the Stipulation o/" Seltklllcn1) i(lI"Inal counseling by a counselor or therapist or documented Illcdicaltreatment because o/" any strip st'arch in Period C. if the first wunscling or medical session occurred within 60 days of the strip search:

7.

An additional $100 if he or sht' was touched on the breasts, genitals, l)r

bUllocks during any strip search in Period C.

Notwithstanding the foregoing. the maximum possible paymt:nt to an SCM who was searched in Peri(ld C is $2.250.

I). An SC!v1 wllll \\'as subjected to a search in nH.lre than one Class Period lIIay make a claim tl)r a search or st'arches that occurred in only ont' peril)d.

E. Reduction Factors. The total award madt' to an SCM under Periods 1\. B or C. as ddined abow. shall he n:ducc'd as follows:

I. Incarceration in any state or federal prison at any time within tin: years hefore the first strip search in Periods A. nor (' shall reduce the total award by 80%. COllviction of a crime and incarcerati()n t()r that COllvictioll in any county pr juvenile Jetention center within fivc years beforc the first strip seareh in Periods ;\. B or C shall reduce thc totnl award by SO''··;).

3. II" the SCM makes material fillse stalt'mcnts on the Claim Form. the total award shall be reduced to zero.

F. h)r ServIs with more than one applicahle reduction t:lctor. as defined in Paragraph I.... only the reduction factor with the largest applicahle reduction percentage will apply.

3

OPT-OUT FORM

SANTA FE STRIP SEARCH LAWSUIT LEYBA, ct al., \. SANTA FE BOARD OF COMMISSIONERS, et al.

UNITED STATES DISTRICT COl.JRT FOR THE DISTRICT OF NEW MEXICO
No. CIV-05-0036 BB/ACT

IN ORDIR TO EXCLFDE YOURSELF FRO:-'1 Till' SETTLEMFNT Cl.ASS THAT liAS BEEN CERTIFIf:'D IN THIS PROCEEDING, YOU MUST S{jBI'vlIT THIS OPT-OUT FOIUvl SO THAT IT IS POSTrvlARKU) OR OTHER WIS!' DLLlVFRED NO LATER THAN ._____145 DAYS AFTI'R NOTICF WAS MAILEIJJ.

IJi THIS OI'T-OllT FORM IS TIMELY ANI) I)ROI'ERLY SUHMITTlm, THEN YOl: WILL BE EXCLUJ)EJ) FROM THE SETTLEMENT CLASS ANI) YOli WILL NOT BE ENTITLE I) TO AIliY BENF,FITS lINDER THE SETTLEMENT AGREEMF,NT, YOU WILL NOT HE ENTITLED TO OBJECT TO THE SETTLEMEl'iT AGREEMENT, ANI) Y()(; WILL :-'OT BE BOtJl'W HY TilE RELEASE OF CLAIMS SET FORTH IN THE SETTLE.l\-tENT AGREEMI<:NT AND SlIMMARIZ~:D IN THE NOTICE 01. I'IWPOSED SETTLEMENT 01' SANTA FE COlINTY CLASS ACTION STRIJ> SEARCII CASE.

Before electing to l'pt-out and excludl' yourself from tht' Sc,ttleme"nt Class, you should n:ad the enclosed Notice" of I'n,pos.:d Sdtlcment of Santa Fe County ('lass Actillll Strip S('arch Case" III umkrstanu the .:n~ct of either opting out of the Settlement Class or not opting outllfthe Settlement Class. You haw the right to confer with Plaintiffs' Class Counselor counsel of your own choosing. h.:ll1re executing this Opt-Out Form. If you have any qucstions regarding the effect of opting out of the Settlement Class or not opting out of the Scttleml'nt Class. or need any further infnrmation or assistan~l', pleasl' contact the Claims Administrator [address. website'. tollliw numbt"rj (lr Plaintiffs' Class CounseL Rothstein. Donatelli, IIugh.:s. Dahlstrom. Schoenburg & Bienvenu, '- '- P. 1215 Pasco de Peralta, Santa Fl'. I\ew Mexi~o. 8750 I. telephone 505-0RSSOO.'. "ll'simile 505-9S2-03(l7.

INSTRlICTIONS:

1. QuestillllS 1-6 ofthl' Sworn Affidavit below must bc ,ms\wred.

')

The Opt-Out Form must be signed under pl!nalty nf p.:rjury.

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

postmarked or oth.:rwisc delivered no latcr than

145 days alier this Fonn was

mailedJ:

Administrator

Exhibit 5

4. After submitting the completed Opt-Out Form. you may be- required to submit additional prooL induding a photocopy of your passport. hirth c~rtifi~ate. or other identifying docum.:nt.

SWORN AHIDAVlT

SlATE OF

) ss.

Co\;NTY OF

)

I. My name is:
(first)

(middlr) (last)

My home- addrc'ss is:

J.

My kkphone- number (including area code) is:

(ewning)

4. My Social Security number is:

5.

My date or birth is:

(,. I WANT TO BE EXCLlIDED FROM THE SETTLEME:'<IT CLASS CERTIFIED

IN THIS PROCEEDING AND FROM ALL BENEFITS OTHERWISE AVAILABLE TO

ME UNDER THE SETTLEMF:NT:

Yes

CHUIFICATION UNDER PENALTY 01' I)[IUURY
I hercb) aftirm and declare under penalty of pc~iury that I have read and understand the contents of this Opt-Out Form and the Notice of Proposed Settlement of Santa Fe County Class Action Strip Search Case, the statements made in this Opt-Out 1'Ol1n arc true and correct. and I am over the age lJfeightcen (18) and am of sound mind. I UNDERSTAND THAT I3Y SIGNING TIllS OPT-OPT FORM I WILL NOT BF ENTITl.ED TO THE BJ::NEFITS OF TI IE SFITI.EMFI\T A(iRFFMENT.

Signature

. _ - - _ . __.. ...-
Type or print name

._"-'
Date

1:\ T1IF tl:\ITED STATFS DISTRICT coun
FOR TilE DISTRICT OF t\L\\' MI:XICO

ELIZABETH I.EYHA. ;..JATASHA APODACA. t\A:--JC'Y ELI.II\. MOt\ICA GARCIA. l.lICY M. MARQlIEZ. MARK
•MII.I.ER. COPPER PERRY. DAVID
SA:--JDOVAL. I\.RIST I SLIIlOI.D. RlISSELLA SI'Rt\A. and I\.IMBERI.Y \VRIGIIT. (In their o\\'n hehal rand ,'n hehalf of a c.Iass of silllilarl~ situated persllns.

Plaintiffs.
,"s.
S,\t\TA IT COl.I;..JTY BOARD or
CO\I\lISSIOt\I·RS: t\J..\:--JAGE\1EI\I &. TRAI;..JIt\G CORI'ORATlOI\: SAt\TA FL COl ':--JTY SIIERIF!' GREG SOLAt\O. in his indi\idual and official capacities: FORMER SANTA FE COUl'T'{ SIILRI!'F In '{MOI\D L. SISNEROS. in his individual and llfticial capac'ities: and I\.ERRY DIXOt\. in his indi\idual and llflicialc·apacities.

No. ('IV-U5-0W6 BB!ACT

Defendants.

ORDEI~ GRANTING PRELlMIl\Aln' AI'I>ROVAL OF SF:TTLF:MF:NT AGREEMENT Al\D APPROVING
TilE FORM A"I1l MANNER OF 'iOTtO:

TI-IIS t\IATTFR came hefore the Court upon the Joint Unopposed Mlltion llf

Plaintiffs Uizahcth Leyha_ Natasha Apodaca. Nancy Ellin. Monica Garcia. Lucy M.

t\larquo. t\lark Miller. Copper Perry. David Sandll\aL I\.risti Sci hold. Russdla Serna.

and I\.imherly \I/right (collectively "Named Plaintiffs"): Lkfendants Management &

Training. Corpnration and Kerry Dixon ("MTC rkfendants"): and Santa Fe ('ounty Board

of (\lllllllissioncrs_ Santa J-'e County Sheriff Greg Sellano. and i-'llrmer Santa Fe County

Exhibit B

Sh~rilT Raymond L. Sisncros, (,'Santa Fe County Ikll:ndunts') thcn:inalier collc'cti vdy
rekrrcd to as "the Parties") tllr preliminary appronll ,,1' th~ Stipulation of Sl,ttkment
t"S~ttkm~nt Agreement") l'ntcred into by thl- Parties. Thc' Court has considered the facts and kgal authorities Sc't forth in the Parties' Joint \ InoPP(lsc'U Motion Illr Preliminary Approval. has rc'\'ic-wc'd the terms ofthl' Settlement Agreement. and has determined that there is good cause Il)r preliminary approval. Therdllre,
IT IS IIf'RFBY ORDERED, ADJUDGED A'\ID DITREED THAT: I. The Court preliminarily approves the Settlement Agreement as lair. reasonahlc'. and adequate. I\cithc'r this preliminary order of approval nor the Settlement Agreement is a finding or an admission hy Dekndants of any liability (lr wf()ngdoing
whatsoc\"er. The Court c'(lneludes that (1 ) th~ Sc,ttkment Class (as that term is ddined
in the Settlemc'nt :\grccment) is Sll numerous that joinuc'r of all memners is impracticahk, (2) there are questions of law and fact common to the Settkment Class, (3) the elaims of the "lamed Plaintiffs are typical of the claims of the Sdtkment Class, (4) the '\lamed Plainti ITs will filirly and ad~4uatdy protect the interests of the Settlement Class. t5) the
questions f,r law and lact C(lmmon to the members of the Settlement Class pr~dllminate
<l\wany <juesti<lns an;:cting only individual mc'lllh~rs. and t6) a class action is supcrior to other t\\'ailable mcthods for the lair and efficient adjudication nfthis contw\·wsy.
3. Pursuant to red. R. Civ. P. 23 and tht' Seukment Agreemcnt. the Court hereby certifics a Settlement Class as that term is cit-lined in the Settlel1l~llt Agreement.

4.

Th.: Court appoints \lruned Plaintitl, Flizaheth I.~yba. Natasha Apodaca.

Nanc~ Fllin. r-.lonica (jarcia. l.ucy \1. Y1arquez. r-.lark r-.liller. Copp~r Perry. David

Sandoval. Kristi Seihold. Russella Serna. and Kimb.:rI~ Wright as Class R~prescntati\·~s.

5.

Th~ Court appoints Y1ark II. Donatdli. Rohcrt R. Rothst~in and .lllhn C.

Bienv~nullf Rothstein. Donatelli. I Iughes. Dahistrolll. Sdlllenburg. & Bienvenu. LLP as

Class Counsel.

6.

The Court appmv~s the Administrator. as that t~rm is delined in thl'

S~ttkm.:nt Agre~IJl~nt. to he stipulated to hy the Panil·' or to he dl'lamined hy furthl'r

mder of the ("tHlrt, and authoriZc's thc Administrator to pcrll>nn thosc duties as ddin~d in

the Sdtklll~nt Agrc~lIlent.

7.

The Court approves the ]\;otice or Class Action and Proposed Seukm~nt

in the limn allached to the Seuklllcnt Agreement as Lxhibit 2. The Court approv~s the

Claim Form attached to the Sdtkment Agreem~1l1 as Exhibit I. The Court approves the

Opt-Out Form allachl'd to the Seuklllcnt Agreem~nt as Lxhihit 5.

x.

Within thirty (~O) days of the entry (If this Order. the Ikti:ndants shall

provid~ t(1 the Administrator and Class Counsel the "Database" as that term is ddined in

the Settlement Agr~ement. and shall transmit by wire transkr or c~rtiliec.l func.ls thl'

S~ttlement Func.l anc.l th.: amount of ac.lministrative expcns~s (as deli ned inl'aragraph 30

of the SeUicml'1l1 Agr.:cment) to the Administrator or thl' Administrator's d.:signee lor

depllsit in an int.:rest-bearing qualitied settlement fund.

,).

TI1l' ,\dministrator is directed to mail the I\()tic~ ofUass Action and

Claim Fl)rm ("I\(ltic.: Package'") to all members "rthl· Settlement Class as set I,)rth in the

S~ttkment ..\grl'l'l11ent. The Aclministrator is further dirl'l·t~d to puhlish thl' \lntice as sl'l

()rth in the S~ttkrnl'nt Agr~~rnl'l1l, and to ensur.: that alllllHIJ1Ceml'nts arl' mad~ on the

radio as set Illrth in the Sellkmmt Agreement,

10, Sudl dissemination or the Notice (If ('\ass Action is the hest notiel' practicable under the l'irl'umstanet's, within the m~aning nl' Ruk 1J( l')( ~)( B), Fed.:ral

Rules orCi\'il Procedure,

II, The Court will conduct a Final Appn)\'all karing on

._lat least

()nl' hundred thirty ti\'C ( 135) days atier Preliminary ,\ppnl\allt() det~nllint' whl'ther the

Sellleml'nt Agreement slwuld be linally approwd as tair. reasonahle. and adequatl' to the

Sl,ttlcment Class, and whether judgment should be cntl'red accordingly,

12, Any Settlement Class member who so desir~s may ohjl'l't to the proposed

sClllt'm~nL or the prnpoSl'd 1(>rIll ()r Final Appnl\al. pnwidcd that the ('lass memher

rdi'ains ,'rom optin!! out ofthl' Sellicll1l'nt Class and othL'l'\\'isl' complies with the pmcedun:s desl'rihed in the I\otice of Class Action and Proposed Sellll'm~nt.

13, The Final Approval Hearing may he l'llntinued or adjourl1l:d hy nrder of

the Court \\ithout furthl'r n()tice to th~ Class,

14, If thl' Settlement Agreement is linall) appro\'l'd hy thl' Court, then upon

the l.ll'l'urn:nce ()rthe l'ffl'etiw date, all Settlement Class memhers \\hn do not timely

e~c1ude themseh'es from the Selli<:mcnt Class---whether or not they fik a timdy and

",did Claim I'llI'm, (lr any claim at all-will be barred and l'njoined li'om asserting any nf

the claims rekased in the Settlement Agrl'cment, will el.Hlclusivdy h~ ,kcmed to have rekased any and all slich claims, and will be subject t" and bound by th~ provisions llf

thl' Settlement Agreement and the Final Judgment,

15. (Intil the Court tinally detcffilines \I hdher thl' Sellkm~nt Agreement

should he apprllved. nll member of the Settlement ('Iass who has not timely and \'alidly

opted out of the settl~ml'nt may commence or pmsecute any action or proceeding in any

I")rum asserting any of the claims that are thc suhjl,~t of the Settlement Agreement.

IT IS SO ORDERI:D.

Dt\ TI:D:

C.S. DISTRICT COl.'RT .lll)(il:

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

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLIN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID SANDOVAL, KRISTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, on their own behalf and on behalf of a class of similarly situated persons,
Plaintiffs, vs.
SANTA FE COUNTY BOARD OF COMMISSIONERS; MANAGEMENT & TRAINING CORPORATION; SANTA FE COUNTY SHERIFF GREG SOLANO, in his individual and official capacities; FORMER SANTA FE COUNTY SHERIFF RAYMOND L. SISNEROS, in his individual and official capacities; and KERRY DIXON, in his individual and official capacities,
Defendants.

No. CIV-05-0036 BB/ACT

JOINT UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT Plaintiffs and Class Representatives Elizabeth Leyba, Natasha Apodaca, Nancy Ellin, Monica Garcia, Lucy M. Marquez, Mark Miller, Copper Perry, David Sandoval, Kristi Seibold, Russella Serna, and Kimberly Wright (“Plaintiffs” or “Class Representatives”) individually and on behalf of the settlement class defined herein; Defendants Management & Training Corporation and Kerry Dixon, in his individual and official capacities (“MTC Defendants”); and
−1−

Santa Fe County Board of Commissioners, Santa Fe County Sheriff Greg Solano, in his individual and official capacities, and Former Santa Fe County Sheriff Raymond L. Sisneros, in his individual and official capacities (“Santa Fe County Defendants”) (hereinafter collectively referred to as “the Parties”), by and through their respective counsel, jointly move the Court to grant final approval of the Parties’ settlement of this class action case. As grounds for this motion, the Parties state as follows:
I. BACKGROUND AND SUMMARY On January 12, 2005, Plaintiffs filed this lawsuit against the MTC Defendants and the Santa Fe County Defendants (the “Action”). The Action was brought on behalf of the Named Plaintiffs and all other persons similarly situated. Plaintiffs allege that they were unlawfully subjected to strip searches performed pursuant to the policies, practices and customs of Defendants of conducting strip searches of all incoming pre-arraignment detainees, without individualized reasonable belief that the detainees possessed weapons, drugs or contraband. In the Action, Plaintiffs sought damages for civil rights violations under 42 U.S.C. § 1983, and for claims arising under the New Mexico Tort Claims Act and New Mexico common law. Plaintiffs additionally sought a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches without individualized reasonable suspicion. The Defendants generally deny the claims in the Action. The MTC Defendants contend that the admissions search policies at the Santa Fe County Adult Detention Center were reasonably related to legitimate penological interests in deterring the introduction of weapons,
−2−

drugs and other contraband into the detention center. As such, Defendants submit that detention center policies are entitled to deference under the law, and that the policies should not be found to violate the Constitution or any state law. Defendants deny that all of the Plaintiffs were subject to strip searches upon admission to the detention center, and they deny that all prearraignment detainees were strip searched during the period of time in question. Defendants further deny that searches of the Plaintiffs violated any state or federal statutory or common law.
The Santa Fe County Defendants deny any and all liability for their own acts and omissions and deny any liability for the acts and omissions by independent contractor MTC and MTC’s employees. The Santa Fe County Defendants contend that Count II fails to state a claim upon which relief can be granted under the New Mexico Tort Claims Act. In addition, Defendant Solano and Defendant Sisneros affirmatively assert that they had no role whatsoever in the formulation or implementation of MTC’s strip search policies and have no individual responsibility or liability for any of the allegedly unconstitutional policies, practices or acts of the MTC Defendants, and they also assert qualified immunity as to the violations of 42 U.S.C. § 1983 alleged in the complaint. In addition, Defendants assert that a class action is inappropriate and that the claim for injunctive relief is moot.
Nonetheless, while denying any liability, the Defendants consider it desirable and in their interests that the Action be dismissed on the terms set forth in the Settlement Agreement in order to avoid further expense, inconvenience, and distraction, and to avoid protracted litigation.
After extensive discovery and investigation, numerous mediation sessions, and many hours of negotiations directly between counsel, the Parties agreed to settle these cases. On July
−3−

24, 2006, this Court entered an Order certifying the class, appointing the Class Representatives,
appointing Class Counsel, and granting preliminary approval of the Parties’ Settlement
Agreement. After obtaining the Court’s preliminary approval, the Parties appointed a Claims
Administrator who has carried out the claims administration process in accordance with the
Settlement Agreement and the Court’s July 24, 2006 Order. With the claims administration
process nearly complete, the Parties now seek the Court’s final approval of their settlement so
that the Claims Administrator may distribute the settlement funds to Class members in
accordance with the Settlement Allocation Plan.
At this point, then, the Parties request that the Court enter an Order:
1. Dismissing with prejudice all claim s in the Action as to th e Released Persons as defined in the Settlem ent Agreement including all claim s for declaratory and injunctive relief;
2. Ordering that all Settlem ent Class Members as defined in the Settlement Agreement (“SCMs”) are en joined from asserting agains t any Released Person, any and all claim s that the SCMs had, has, or may have in the f uture arising out of the facts alleged in th e Complaint;
3. Releasing each Released Person fro m the claims which any SCM has, had or m ay have in the future, against such Released Perso n arising out of the facts alleged in the Complaint;
4. Determining that the Settlem ent Agreement is entered into in good faith, is reasonable, fair and adequate , and in th e best in terest of the Class;
5. Ordering that no person m ay assert any claim against the Class Representatives, Class Counsel, or Claims Administrator based on the distribution of the Settlem ent Fund made substantially in accordance with the Settlement Agreement and/or the orders of the Court; and
−4−

6. Reserving the Court’s continuing a nd exclusive jurisdiction over the Parties to the Settlement Agreement, including Defendants and SCMs, to administer, supervise, constru e and enforce the Settlem ent Agreement in accordan ce with its te rms for the mutual benefit of all the Parties.
Additionally, Class Representatives and Cl ass Counsel respectfu lly request that the Court approve payment fort hwith of the attorneys fees, costs and incentive payments as set forth in the Stipulation of Settlement. Defendants do not oppose these requests.
II. FACTUAL BACKGROUND RELEVANT TO FINAL APPROVAL A. History of This Litigation The Action was filed on January 12, 2005. Between January 2005 and November 2005, the Parties engaged in extensive discovery, including the exchange of voluminous documents, inspection of the detention center facility and depositions of all eleven Named Plaintiffs, individually named Defendants Kerry Dixon and Greg Solano, and other correctional officers and officials. In addition, the Plaintiffs obtained and analyzed the voluminous database maintained by the Defendants for all persons booked into the detention center during the relevant class period (numbering in excess of 31,000 individual bookings). In mid-2005, the Parties agreed to enter into settlement discussions. The Parties engaged in six days of mediation sessions with retired United States District Judge Raul A. Ramirez of Sacramento, California. See Affidavit of John C. Bienvenu, filed separately, ¶ 9. Additionally, the Parties engaged in a number of additional sessions among counsel for the Parties. Id. Armslength settlement negotiations continued through June 2006 when the Settlement Agreement was finally reached. Id.
−5−

B. The Settlement Terms The terms of the settlement are fully described in the Settlement Agreement, and are summarized as follows.
1. Monetary Relief to Settlement Class Members a. Payments to the Settlement Class
Pursuant to the terms of the Settlement Agreement, the MTC Defendants have deposited the sum of $8,000,000 into an interest-earning qualified settlement fund account (“Settlement Fund”) in compensation for the Settlement Class (as that term is defined in the Settlement Agreement), for payment of incentive compensation for each Named Plaintiff, and for Plaintiffs’ reasonable attorneys’ fees and costs. In addition, the Santa Fe County Defendants will pay an additional amount up to $500,000 for claims administration expenses. Thus, the total settlement fund created for the benefit of the class (“Total Settlement Fund”) is $8,500,000.
The Claims Administrator will pay out of the Settlement Fund to each Settlement Class member who submits a valid and timely Claim Form a Settlement Payment calculated for that Settlement Class member under the proposed Plan of Allocation (attached to the Settlement Agreement as Exhibit 4). Those payments range from a minimum of $2001 to a maximum of $3,500. In the event that the total amount of verified claims exceeds the amount available in the Settlement Fund, the amount payable to each Settlement Class member will be reduced proportionately. In the event that the total amount of verified claims is less than the amount available in the Settlement Fund, the balance will be refunded to the Defendants.
As of November 29, 2006, approximately 3,402 individuals had filed Claim Forms. See
1 In the Parties’ motion for preliminary approval, the minimum amount was incorrectly stated as $1,000. That is the correct minimum base amount, but several factors (relating to previous incarceration) can result in an 80% reduction of the base amount, thus making the minimum possible payment equal to $200.
6

Affidavit of Mark Patton, filed separately, ¶ 13. Class members had until November 27, 2006 to

submit Claim Forms. Assuming that several hundred additional Class members submitted timely

Claim Forms and are entitled to payment from the Settlement Fund, it is estimated by Class

Counsel that the total amount of claims to be paid is more than $4,000,000 but somewhat less

than the amount of $5,529,750 allocated for payment of claims. Bienvenu Aff., ¶ 26.

b.

Incentive Payments

Under the Settlement Agreement, the Parties have agreed that the Class Representatives

are eligible to receive compensation for their contribution to the investigation and prosecution of

this case, in addition to the amounts to which they are entitled under the Plan of Allocation. The

Parties have agreed that $470,250 of the Settlement Fund will be allocated for this purpose,

subject to approval of the Court, representing $42,750 per Class Representative.

c. Equitable Relief

The Parties have stipulated and agreed that the strip search policies at the Santa Fe

County Detention Center were changed as a result of Plaintiffs’ and Plaintiffs’ counsel’s efforts

preceding and during this lawsuit, and that the request for equitable relief was thereby rendered

moot.

d.

Attorneys’ Fees and Costs

The Parties have stipulated and agreed that $2,000,000 of the Settlement Fund will be

allocated to Plaintiffs’ attorneys fees, gross receipts tax on fees, and litigation expenses, subject

to approval of the Court.

e.

Release of Claims

All Plaintiffs and Settlement Class members who do not opt out of the settlement will

release the Defendants from any and all claims which are based upon or could be based upon or

7

arise from the facts alleged in the Action. C. Class Notice and Settlement Administration On July 24, 2006, this Court granted the Partie s’ Joint Motion for Preliminary Approval
of Class Action Settlem ent Agreement. In that Order, the Court (1) pr eliminarily approved the Settlement Agreement; (2) certified the Class under Fed.R.Civ.P. 23; (3) appointed Nam ed Plaintiffs Elizabeth Leyba, Natasha Apodaca, Nancy Ellin, Monica G arcia, Lucy M. Marquez , Mark Miller, Copper P erry, David Sandoval, Kristi Seibold, Ru ssella Serna, and Kim berly Wright as Class Representatives; (4) appointed Mark H. Donatelli, Robert R. Rothstein and John C. Bienvenu of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg, & Bienvenu, LLP as Class Counsel; (5) approved the form and manner of the Notice to be sent to Class Members and a Summary Notice to be published in various news papers concerning the Settlement Agreement; (6) approved the form s of, and set deadlines fo r submission of, claim forms, exclusion requests (“opt outs”) and objections; and (7) set for December 8, 2006 a hear ing for final approval of the settlement.
The Settlement Agreem ent preliminarily approved by the C ourt provided for a deta iled Notice Package to be se nt to all Class m embers informing them of their rights under the Settlement Agreement, for a Summary Not ice to be published in local newspapers, for advertisements to be placed on local radio statio ns, and for notices to be posted at the Santa Fe County Detention Center. Counsel for the Parties retained Settlement Services, Inc. (“SSI”) as Claims Administrator to carry out the duties of mailing the Notice Package and publishing the Summary Notice in the newspapers . The Defendants provided SSI with a database containing the names and last known addresses for all poten tial Class m embers. After receipt of the database from the Defendants, SSI began the notice and claims administration process.
8

In accordance with the Settlem ent Agreement and the Court’s Ju ly 24, 2006 Order, the Claims Administrator mailed the Court-approved Notice Package to over 19,000 potential class members. Patton Aff., ¶ 7. SSI also cause d to be published the Court-approved Summ ary Notice as d irected in the Court’s o rder of preliminary approval, and placed annou ncements on numerous radio stations, in both English and Spanish. Id. at ¶¶ 8, 9. Furtherm ore, SSI created an interactive website to provide infor mation to and answer questions from potential Class Members, and further provided a toll free number to call with questions. Id. at ¶¶ 5, 6. Class Counsel also fielded thousands of calls from and to Class Members and answered their questions about the terms of the settlement. Bienvenu Aff., ¶ 26.
To date, more than 3, 400 individuals have submitted Claim Forms to SSI; th ree individuals have f iled Opt-Out Fo rms; and no individuals have sub mitted Objections to the settlement. Patton Aff., ¶¶ 13, 14. As noted above, the deadline for filing Claim Forms was November 27, 2006, a nd the Parties anticipate th at SSI will receive additional Claim Forms submitted prior to that deadline.
III. THE COURT SHOULD GRANT FINAL APPROVAL OF THE SETTLEMENT
A. Adequate Notice Has Been Provided to the Class and the Terms of the Settlement are Fair, Reasonable and Adequate
Settlement of a class action requires the Cour t’s approval. Rule 23(e) (“A class action shall not be dism issed or com promised without the approval of the co urt, and no tice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs”). The law generally favor s the settlem ent of com plex class actions. Entr. Energy Corp. v. Columbia Gas Transmission C orp., 137 F.R.D. 240, 242 n.1 (S.D. Ohio 1991); see also 4A Conte & Newberg, Newberg on Class Actions , §11.41 (4th ed. 2002). The Court
9

should approve a class action settle ment if the settlem ent is “fai r, reasonable and adequate.” Rule 23(e)(1)(C); In re Sprint Corp. ERISA Litig. , 443 F. S upp. 2d 1249, 1256 (D. Kan. 2006). See also Bailey v. Great Lakes Canning, Inc. , 908 F.2d 38, 42 (6 th Cir. 1990); Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10 th Cir. 1984); In re Rio Hair N aturalizer Prods. Liab. Litig., No. MDL 1055, 1996 W L 780512, at *11 (E.D. Mich. Dec. 20, 1996) ( citing Manual for Complex Litigation, §30.42 (3d ed. 1995)). The Court’s main concern in evaluating a class action settlement is to ensure that the rights of passive class m embers are not jeopardized by the proposed settlement. In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d at 1255 ( citing Amchem Prods., Inc. v. Winsor, 521 U.S. 591, 623 (1997)).
There are three steps on the road to final a pproval of a class action settlem ent: first, the Court must preliminarily approve the proposed settlement; second, members of the class must be given proper notice of the proposed settlement; and third, after holding a hearing, the Court must give its final approval to the settlement. Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir. 1983); Enter. Energy Corp., 137 F.R.D. at 245; In re Dun & Bradstreet Credit Servs. Customer Litig. , 130 F.R.D. 366, 369 (S.D. Ohio 1990). T he Court granted prelim inary approval of the settlement in its July 24, 2006 Orde r. Thus, the Court m ust at this point determ ine whether the Parties provided proper notice of the settlem ent to the C lass and whether the term s of the settlement are fair, reasonable and adequate.
1. Proper Notice Has Been Provided to the Class “[I]n any proceeding [that] is to be accorded finality,” due process requires that interested parties be provided with “notice reasonably calc ulated, under… the circum stances, to apprise [them] of the pendency of the action and afford t hem an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co ., 339 U.S. 306, 314 (1950). The notice m ust be
10

reasonably calculated to reach interested par ties and where the nam es and addresses of the interested parties are known, due process requires mailed notices. Id. at 318-19; Dejulius v. New England Health Care Employee Pension Fund , 429 F.3d 935 (10 th Cir. 2005) The contents of the class notice m ust ‘“fairly apprise the . . . m embers of the class of the term s of the proposed settlement and of the options that are open to them in connection with [the] proceedings. ”’ Maywalt v. Parker & Parsley Petroleum Co. , 67 F.3d 1072, 1079 (2d Cir. 1995) ( quoting Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir. 1982)). C lass notice is sufficient if it “m ay be understood by the average… class m ember.” Hitt v. Nissan Motor Co. Ltd. (In re Nissan Motor Corp. Antitrust Litig.), 552 F.2d 1088, 1104 (5th Cir. 1997); see also Churchill Village L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9 th Cir. 2004) (“Notice is satisfactor y if it generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard”) (internal quotation marks & citation omitted).
Here, the Notice and S ummary Notice and th eir method of dissem ination meet these requirements. The Notice and Summary Notice clearly and concisely informed Class members of all the re levant aspects of the litigation: (1) the Class definition and statement of claims; (2) the litigation history; (3) the terms of the Settlement Agreement; (4) how the settlement proceeds will be allo cated; (5) the am ount of com pensation requested for the Class Representatives to compensate them for their services to the Cla ss; (6) the am ount of attorneys’ fees and costs which may be awarded to Class Counsel; (7) th e binding effect of any judgm ent approving the settlement on those who do not opt out; (8) the right to object to the Settlement and the procedure for doing so; and (9) whom to contact to obtain additional information regarding the Settlement or the litigation. The notices pr ovide all the inform ation necessary for Class m embers to make
11

an informed decision with respe ct to whether to re main in or opt out of the Class or whether to object to the proposed settlement.
The method of providing notice to potential Class m embers also com plies with the requirements of due process. The Claim s Administrator mailed the Court-appro ved Notice Package to over 19,000 potential class m embers. Patton Aff., ¶ 7. The Claims Administrator also caused the Summary Notice to be published in several newspapers, som e with local and some with statewide circulation, and placed announcements in local radio stations. Patton Aff., ¶¶ 8, 9. The Claim s Administrator further created an interactive website to provide inf ormation to and answer questions of potential Class Members, and provided a toll free number to call with questions. Id. at ¶¶ 5, 6. Class Counsel also fielde d thousands of calls from and to Class Members and answered their questions about the terms of the settlement. Bienvenu Aff., ¶ 26.
In summary, the Court should hold that th e notice requirements of Rule 23 and the due process clause have been met in the present case.
2. The Settlement is Fair, Reasonable and Adequate The Tenth Circuit has established four non- exclusive factors which this Court must consider in evaluating whether th e Parties’ s ettlement in this cas e is fair, reas onable and adequate: (a) whether the propos ed settlement was fairly and honestly nego tiated; (b) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (c) whether the value of an imm ediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (d) the judgm ent of the parties that the settlement is fair and reasonable. Rutter & Wilbanks Corp. v. Shell Oil Co. , 314 F.3d 1180, 1188 (10 th Cir. 2002) (internal quotation marks & citation omitted); In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d
12

1249, 1256 (D. Kan. 2006).2

In considering whether to grant final appr oval, the Court cannot modify the proposed

settlement, but must approve or disapprove the proposed settlement “as a whole” in relation to all

of those concerned. See Evans v. Jeff D. , 475 U.S. 717, 727 (1986); Walsh v. Great At. & Pac.

Tea Co., Inc., 726 F.2d 956, 965 (3d Cir. 1983); In re Rio Hair Naturalizer Prod s. Liab. Litig.,

1996 WL 780516 *11 (“The touchstone for final approva l is the effect on the class as a whole in

light of the particular circumstances.”(emphasis omitted)). The Court e xamines the settlem ent

“in its entirety and not as isolated com ponents.” Enter. Energy C orp. v. Columbia Gas

Transmission Corp., 137 F.R.D at 246. Also, the Court is not “to determine the merits of the

controversy or the factual underpinning of the legal authorities advanced by the parties.”

Williams v. Vukovich, 720 F.2d 909, 921. See also Armstrong v. Bd. of Sh. Dirs. , 616 F.2d 305, 314-15 (7th Cir. 1980), overruled on other grounds by Felzen v. Andreas , 134 F.3d 873 (7 th Cir.

1998). To do so would defeat the purposes of

the settlem ent, which include avoiding a

determination of sharply contested issues and disp ensing with expensive and wasteful litigation.

Levin v. Miss. River Corp., 59 F.R.D. 353 (S.D.N.Y. 1973), aff’d mem., 486 F.2d 1398 (2d Cir.

1973).

Examination of the Tenth Circuit’s factors confirms that the settlement in the present case

is fair, reasonable and adequate.

a. The Proposed Settlement was Fairly and Honestly Negotiated

The first factor the Court must consider is whether the proposed settlement was fairly and

2 Courts in other circuits utilize similar factors, such as (1) the Plaintiffs’ likelihood of ultimate success on the merits balanced against the amount and form of relief offered in settlement; (2) the complexity, expense and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the judgment of experienced trial counsel; (5) the nature of the negotiations; (6)the objections raised by the class members; and (7) the public interest. See Enter. Energy Corp., 137 F.R.D. at 245; In re Dun & Bradstreet Credit Litig., 130 F.R.D. 366, 371 (citing Williams, 720 F.2d at 922); Thompson v. Midwest Found. Indep. Physicians Ass’n, 124 F.R.D. 154, 157 (S.D. Ohio 1988).
13

honestly negotiated. Rutter & Wilbanks Corp. v. Shell Oil Co. , 314 F.3d 1180, 1188 10 th Cir. 2002); In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d 1249, 1256 (D. Kan. 2006). In evaluating the propriety of a pr oposed settlement, courts ha ve frequently focused on the negotiating process by which the settlement was reached to determine whether that process was genuinely adversarial. See e.g., Weinberger v. Kendrick , 698 F.2d 61, 74 (2d Cir. 1982), cert. denied, 464 U.S. 818 (1983).
In the present case, settlem ent negotiations were only undertaken after the Parties engaged in extensive discovery and voluntary disc losure of all relevant background information. The Parties exchanged all relev ant documents including training materials, written policies, jail records, and the voluminous computer files for all bookings during the class period. In addition , the Defendants deposed each of the nam ed Plaintiffs, and the Plaintiffs deposed the warden and former warden, the jail monitor, the county sheri ff, and correctional and tr aining officers. The Parties had sufficiently developed the facts in the action to fully analyze the pro and cons of settlement. See Levell v. Monsanto Research Corp. , 191 F.R.D. 543, 550 (S.D. Ohio 2000); Collier v. Montgomery County Hous. Auth. , 192 F.R.D. 176, 184 (E.D. Pa. 2000); Bryant v. Universal Servs., No. CIV. A. 99-2944, 2000 WL 680258 at 3 (E.D. La. May 24, 2000); In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139, 146 (E.D.N.Y. 2000).
Settlement negotiations were leng thy, involved, and complex. Multip le separate mediation sessions were facilita ted by re tired United Sta tes District Judge Raul R amirez, who has special expertise in the m ediation of cla ss action suits involving allegedly unco nstitutional strip search polices and practices. In addition, th e Parties participated in num erous unmediated meetings between counsel, and m any telephone conversations and email exchanges am ong counsel. T he settlement negotiations lasted m any months, were adversarial in nature, and
14

involved numerous parties with varying interest s. Settlem ent negotiations were hard-fought, arms-length, and contentious at tim es. Clearly, the settlement negotiations were adversarial in nature. See In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d at 1260 (finding that settlem ent negotiations, although conducted at an early stage of litigation, were fa ir and honest, thus supporting final approval). The first factor weighs in favor of final approval.
b. Serious Questions of Law and Fact Place the Ultimate Outcome in Doubt
The second factor the Court m ust consider is whether serious questions of law and fact place the ultimate outcome of this case in doubt. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002); In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d 1249, 1260-61 (D. Kan. 2006). W hile Plaintiffs firmly believe they have meritorious claims on the m erits, Plaintiffs also acknowledge that all complex cases such as this one confront numerous hurdles on their way to a success ful outcome in the case. First and foremost, Plaintiffs always face a significant burden in obtaining cla ss certification. Second, if class certification is denied or limited, Plaintiffs would be faced with pros ecuting scores o f individual cases. Th e time and resources required to prosecute m ore than a hand ful of individual cases w ould be immense. On the other hand, if class certification is obtaine d, there still rem ains the difficulty burden of proving class-wide liability, and the possibility that individual damage cases must still b e brought. Again, such serious questions of law a nd fact would have placed the ultim ate outcome of the action in doubt. See In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d at 1260-61 (finding that serious questions of law and fact regarding plaintiffs’ claims placed the ultimate outcome in doubt and weighed in favor of final approval). This factor also weighs in favor of final approval.
15

c. The Value of Immediate Recovery Outweighs the Mere

Possibility

of Future Relief After Protracted and Expensive

Litigation

The third factor to be considered by the Court is the value of i mmediate recovery under

the proposed settlement versus the mere possibility of future relief after protracted and expensive litigation. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1130, 1188 (10th Cir. 2002); In re

Sprint Corp. ERISA Litig., 443 F. Supp. 2d 1249, 1261 (D. Kan. 2006) There can be no doubt

whatsoever that if the P arties had not reached an agreement to settle the action, litig ation in this

case would have been exceedingly difficult, expensive and lengthy. After the Court ruled on the

difficult class certification issues , the Parties would have p roceeded to additional d iscovery on

the merits, which they anticipate would have lasted several years at least. Due to the complexity

of the issues, the large am ount of m oney at st ake, and the num ber of attorneys and experts

involved in these cases, trem endous resources would have been expended trying these cases,

either collectively or individuall y. And as noted above, the ultim ate outcome of this case was

uncertain due to disputed questions of law and fact.

By settling this case and providing $8.5 million for the benefit of the Class m embers, all

Parties have averted m any of the risks of pro ceeding with litigation. Each Class m ember who

files a valid claim is enti tled to receive a m inimum of $200 and a m aximum of $3,500

(depending on a number of individualized factors, including the tim e period in which the search

took place, whether the Class m ember had been previously incarcerated, and whether individual

exacerbating factors were present). Thus, the se ttlement provides a meaningful financial benefit

to Class members.

In addition, as a direct result of Plain tiffs’ and Class Counsel’s efforts precedin g and

during this lawsuit, the strip search policies at the Santa Fe County Detention Center were

16

changed. Plaintiffs’ request for inju nctive relief was thereby rendered moot because Plaintiffs’

aims were achieved.

Of course, resolution of th e action provides a benefit to the Defendants as well. It

removes the risk of a significant ju ry award against the Defendants, and operates to reduce the

continued accrual of attorneys’ fees and costs on all sides. R esolution of the action will save the

Parties and the Court a trem endous amount of time and money, while providing meaningful

benefit to the Class. This factor also weighs in favor of final approval. In re Sprint Corp. ERISA

Litig., 443 F. Supp. 2d at 1261 (uncertainty o f result and certainty o f additional expense to

litigate claims weighs heavily in favor of approval); see also Levell v. Monsanto Research Corp.,

191 F.R.D. 543, 550 (S.D. Ohio 2000); Collier v. Montgomery Housing Auth. , 192 F.R.D. 176,

184 (E.D. Pa. 2000); Bryant v. Universal Servs. , 2000 WL 680258, at *3 (E.D. La. 2000); In re

Holocaust Victim Assets Litig., 105 F. Supp.2d at 146.

d. The Parties and Their Counsel Believe the Settlement Is Fair

and

Reasonable

The fourth factor the Court must consider is whether the Parties and their counsel believe

the settlement is fair and reasonable. Rutter & Wilbanks Corp. v. Shell Oil Co. , 314 F.3d 1180, 1188 (10th Cir. 2002); In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d 1249, 1261-62 (D. Kan.

2006). First and foremost, the Class Representatives believe this settlement is in the best interest

of the Class. See Affidavit of E lizabeth Leyba, file d separately, ¶¶ 9-12. These Class

Representatives have been intim ately involved in the action from the beginning through

settlement. They f irmly believe that, given the m eaningful benefits provided by the settlement

and the risks associated with continued litigation, the settlement is fair and reasonable. Id.

Counsel for the Parties hold the same belief. All of the Parties’ attorneys are experienced

trial attorneys. It is the collective judgm ent of counsel for the Parties that settlement of the 17

action in accordance with the terms set forth in the Settlement Agreement is fair, reasonable and preferable to continued litigation. The Court “s hould keep in m ind the unique ability of class and defense counsel to assess poten tial risks and rewards o f litigation [and] a presum ption of fairness, adequacy and reasonableness m ay attach to a class settlem ent reached in arm ’s-length negotiations between experienced, capable counsel after meaningful discovery.” See Cotton v. Hinton, 559 F.2d. 1326, 1330 (5 th Cir. 1977). Som e courts ev en hold that the Court should “defer to the judgment of experienced counsel who has competently evaluated the strength of his proofs.” See Levell v. Monsanto research C orp., 191 F.R.D. 543, 557 (S.D. Ohio 2000); Williams v. Vukovich, 720 F.2d 909, 922 (6th Cir. 1983). This factor also weighs in favor of final approval. In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d at 1261 (opinion of the parties’ counsel supports final approval of class action settlement).
For all these reasons, the Court should hold th at the Parties provided proper notice of the settlement to the Class and that the term s of the Parties ’ Settlement Agreement are f air, reasonable and adequate.
B. Plaintiffs’ Request for Attorneys’ Fees, Costs and Incentive Payments is Fair and Reasonable and Should be Approved
The Parties have agreed that $2,000,000 of the Settlement Fund will be allocated to Plaintiffs’ attorneys’ fees, gross receipts tax on fees, and litigation expenses, subject to approval of the Court. In addition, the Parties have agreed that the Class Representatives are eligible to receive compensation for their contribution to the investigation and prosecution of this case, in addition to the amounts to which they are entitled under the Plan of Allocation. The Parties have agreed that $470,250 of the Settlement Fund will be allocated for this purpose, subject to approval of the Court, representing $42,750 per Class Representative.
18

As fully set forth in Plaintiffs’ Memorandum in Support of Approval of Reasonable Attorneys Fees, Costs and Incentive Payments, filed separately, these payments are fair, reasonable, supported by law, and should be approved.
C. The Absence of Any Objections Supports Final Approval Class members were fully inform ed of all aspects of the proposed settlem ent, including the amount of the settlem ent fund, the allocation form ula, the am ount to be requested for attorneys’ fees and costs, and the amount to be requested for incentive paym ents to the Class Representatives. Class members were provided with an opportunity to object to the terms of the settlement. Not one objection was received by any Class members. Patton Aff., ¶ 14. The fact that no class mem ber has objected to the settlement is a stron g indication of a settlement’s fairness. Newberg, §11.48. In the present case, it is revealing that, despite the issuance of the Notice Package to m ore than 19,000 potential Class m embers, none filed objections to the settlem ent. By c ontrast, more than 3,40 0 individuals have sub mitted Claim Forms without objection to date, and three individuals have chosen to opt out of the settlem ent. See Stoetzner v. U.S. Steel Corp. , 897 F.2d 115, 188-19 (3d Cir. 1990) (objections of 29 class members out of a settlement class of 281 (over ten percent) “strongly favors settlement); Boyd v. Bechtel Corp., 485 F.Supp. 610, 624 (N.D. Cal. 1979) (o bjections from 16% of class was “persuasive” that settlement was adequate). The Parties submit that, given the absence of any objections in the present case, the Court should grant final approve the settlement.
IV. CONCLUSION For the foregoing reasons, the Parties respectfully request that the Court issue its Order: 1. Dismissing with pre judice all claims in th e Action as to the Released Persons as defined in the Settlem ent Agreement including all claim s for declaratory an d injunctive relief;
19

2. Ordering that all Settlement Class Members as defined in the Settlem ent Agreement (“SCMs”) are enjoined from asserting ag ainst any Released Person, any and all claims that the SCMs had, has, or m ay have in the f uture arising ou t of the f acts alleged in the Complaint;

3. Releasing each Released Person fr om the claims which a ny SCM ha s, had or may have in the future, against such Released Person arising out of the facts alleged in the Complaint;

4. Determining that the Settlem ent Agreement is entered into in go od faith, is reasonable, fair and adequate, and in the best interest of the Class;

5. Ordering that no person may assert any claim against the Class Representatives, Class Counsel, or Claim s Administrator based on the distribution of the Settlem ent Fund made substantially in accordance with the Settlement Agreement and/or the orders of the Court; and

6. Reserving the Court’s continuing and exclus ive jurisdiction over the Parties to the Settlement Agreement, including Defendants and SCMs, to adm inister, supervise, construe and enforce the Settlement Agreement in accordance with its terms for the mutual benefit of all the Parties.

Additionally, Class Representatives and Cl ass Counsel respectfu lly request that

the Court approve payment fort hwith of the attorneys fees, costs and incentive payments

as set forth in the Stipulation of Settlement. Defendants do not oppose these requests.

Respectf

ully submitted,

ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP Mark H. Donatelli Robert R. Rothstein John C. Bienvenu Post Office Box 8180 Santa Fe, New Mexico 87504-8180

By:SS//John Bienvenu electronically signed 12/1/06__ Attorneys for Plaintiffs

20

EATON LAW OFFICE, P.C. By: Approved 12/01/06_________
P. Scott Eaton P. O. Box 25305 Albuquerque, NM 87125-5305 (505) 243-1486 Attorneys for Defendants MTC and Dixon
KELEHER & McLEOD, P.A. By: Approved 12/01/06___________
Kurt Wihl Gary J. Van Luchene P.O. Drawer AA Albuquerque, NM 87103 (505) 346-4646 Attorneys for Defendant MTC
Approved 11/29/06 ___________ Michael Dickman P.O. Box 549 Santa Fe, NM 87504 (505) 989-9360 Attorney for Defendants Santa Fe County Board of Commissioners, Greg Solano and Raymond J. Sisneros
21

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

ELIZABETH LEYBA. NATASHA APODACA. NANCY ELLIN. MONICA GARCIA. LUCY M. MARQUEZ. MARK MILLER. COPPER PERRY. DAVID SANDOV AI.. KRISTI SEIBOLD. RUSSELLA SERNA, and KIMBERLY WRIGHT. on their own behalf and on behalf of a class of similarly situated persons.

a SEP 2 2006
MATTHEW J. Dy/{. CLERK .,

Plaintiffs.
vs.
No. CJV-05-0036 BBiACT

SANTA FE COUNTY BOARD OF COMMISSIONERS; MANAGEMENT AND TRAINING CORPORATION; SANTA FE COUNTY SHERIFF GREG SOLA:"JO. in his individual and official capacities: FORMER SANTA FE COUNTY SHERIFF RAYMOND L. SISNEROS. in his individual (md official capacities; and KERRY DIXON. in his individual and official capacities,

Defendants.

STIPULATED ORDER AMENDING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT AND THE FORM AND MANNER OF NOTICE

THIS MATTER came before the Court upon the Joint Unopposed Motion ("Joint

Motil,"") of Plaintiffs Elizabeth Leyba, Natasha Apodaca, NWICY Ell in, Monica Garcia.

Lucy M. Marquez. Mark Miller, Copper Perry, David Sandoval. Kristi Seibold, Russella

Serna. and Kimberly Wright; Defendants Management & Training Corporation and

Kerry Dixon; and Defendants Santa Fe County Board of Commissioners. Santa Fe

Coullty Sheriff Greg Solano, and Former Santa Fe County Sheriff Raymond L. Sisneros,

for entry of an order amending the Order Granting Preliminary Approval of Settlement

Agreement and Approving the Fonn and Manner of Notice [Doc. No. 45]. The Court has

considered the matter and has determined that there is good cause for entry of this order.

Therefore,

IT IS HEREBY ORDERED THAT:

I. The Cour1 approves the proposed modification of the Claim Form in the

form atta(,hed to the Joint Motion as Exhibit I.

2.

The Court approves the proposed modification of the Notice ofCla~s

Action and Proposed Settlement in the fonn attached to the Joint Motion as Exhibit 2.

3. The Court approves the Summary Notice in the form attached to the Joint

Motion as Exhibit 3. The Court further approves the following publication schedule for

the Summary Notice;

a. Albuquerque Journal: 917/06 (Thursday) and 9/13/06

(Wednesday);

b. Rio Grande Sun: 9/7/06 (Thursday) and 9114/06 (Thursday); and

c. Santa Fe New Mexican: 917106 (Thursday) and 9115/06 (Friday).

4. The Court approves the text of the radio announcements in the foml

attached to the Joint Motion as Exhibit 4. The Court further approves the tollowing

schedule and radio stations for the radio announcements:

a. KABQ-FM (English and Spanish versions): three times per week

for two successive weeks, beginning the week of September 4,

2006;

b. KDCF-AM (English and Spanish versions): three times per week for two successive weeks. beginning the week of September 4, 2006;
c. KKSS-FM (English version): three times per week for two successive weeks. beginning the week of September 4. 2006; and
d. KJFA-FM (Spanish version): three times per week for two successive weeks. beginning [he week of September 4. 2006.
5. TIle Coun approves the following deadlines for filing Claim Forms, OptOut Fonns and Oqjections:
a. Claim Forms: postmarked or received no later than Novembel' 6. 2006 (60 days after initial mailing of the Notice Package);
b. Opt-Out Fonns: postmarked or received no later than November 6, 20()6 (60 days after initial mailing ,,[the Notice Package);
c. O\:>jcctions: postmarked Of received no later than November 6. 2006 (60 days after initial mailing oUlte Notice Package).
IT IS SO ORDERED.
DATED: .'LL':i..· (~C
Submitted. Approved and Stipulated by:
Rohen R. Rothstein Mark II. Donatelli John C. Bienvenu Attorneys For Plaintiffs

Michael Dickman Attorney for Santa Fe County Defendants
_-----_. ::-:,---_._... ..
P. Scot! Eaton Attorney for Defendants MTC and Dixon
Kun Wihl Gary J. Van Luchene Attorneys for Defendant MTC

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

ELIZABETH LEYBA, et al.,

Plaintiffs,

vs.

No.

CIV-05-0036 BB/ACT

SANTA FE COUNTY BOARD OF COMMISSIONERS; et al.,

Defendants.

Memorandum in Support of Approval of Reasonable Attorneys Fees, Costs and Incentive Payments

I. INTRODUCTION

As set forth in the Joint Unopposed Motion for Final Approval of Class Action

Settlement Agreement, the Plaintiffs, the MTC Defendants and the Santa Fe County Defendants

(the “Parties”) have agreed that $2,000,000 of the Settlement Fund will be allocated to Plaintiffs’

attorneys’ fees, gross receipts tax on fees, and litigation expenses, subject to approval of the

Court. This amount breaks down as follows: attorneys fees: $1,756,098; gross receipts tax on

fees: $133,902; litigation expenses: $110,000. In addition, the Parties have agreed that

$470,250 of the Settlement Fund, representing $42,750 per Class Representative, will be

allocated to incentive payments to the Class Representatives for their contribution to the

investigation and prosecution of this case.

As demonstrated below, and as supported by the separately submitted Affidavits of Paul

Bardacke, John C. Bienvenu, Robert R. Rothstein, Mark H. Donatelli and Elizabeth Leyba, these

amounts are consistent with well-settled federal law governing the determination of reasonable

attorneys’ fees and incentive payments in class action litigation. The amount sought for fees is

supported by every method used to analyze an award of fees: (1) it is less than the standard “bench-mark” common fund recovery of 25 – 30 % approved by federal courts in New Mexico and across the nation; (2) it is less than a market-replicating contingency fee recovery of 33.33 – 40 %; and (3) when cross-checked by a lodestar analysis, it results in a multiplier of 3.26, which is well within the range of commonly approved multipliers in similar litigation. The incentive payments are similarly supported by the law and facts. For all these reasons, the Plaintiffs respectfully request that the Court approve the Parties’ agreed-upon allocation formula.
II. BACKGROUND FACTS A. The course of the litigation Plaintiffs filed this lawsuit on January 12, 2005, on behalf of themselves and all other persons similarly situated, alleging that they were unlawfully subjected to strip searches performed pursuant to the policies, practices and customs of Defendants of conducting strip searches of all incoming pre-arraignment detainees without individualized reasonable suspicion. All the Defendants denied Plaintiffs’ claims. The MTC Defendants contended that the admissions search policies at the Santa Fe County Adult Detention Center were reasonably related to legitimate penological interests in deterring the introduction of weapons, drugs and other contraband into the detention center and were entitled to deference under the law, and that the policies should not be found to violate the Constitution or any state law. The MTC Defendants denied that all of the Plaintiffs were subject to strip searches upon admission to the detention center, and they denied that all pre-arraignment detainees were strip searched during the period of time in question. The MTC Defendants further denied that searches of the Plaintiffs violated any state or federal statutory or common law.
2

The Santa Fe County Defendants filed a separate answer, similarly denying any and all liability for their own acts and omissions and denying any liability for the acts and omissions by independent contractor MTC and MTC’s employees. The Santa Fe County Defendants contended that the Plaintiffs’ claims failed to state a claim upon which relief can be granted under the New Mexico Tort Claims Act. In addition, Defendant Solano and Defendant Sisneros affirmatively asserted that they had no role whatsoever in the formulation or implementation of MTC’s strip search policies and have no individual responsibility or liability for any of the allegedly unconstitutional policies, practices or acts of the MTC Defendants, and they also asserted qualified immunity.
Between January 2005 and November 2005, the Parties engaged in extensive discovery, including the exchange of voluminous documents, inspection of the detention center facility, and depositions of all eleven named Plaintiffs, Defendants Kerry Dixon and Greg Solano, and other correctional officers and officials. In addition, the Plaintiffs obtained and analyzed the voluminous database maintained by the Defendants for all persons booked into the detention center during the relevant class period (numbering in excess of 31,000 individual bookings).
B. The course of settlement negotiations In mid-2005, the Parties agreed to enter into settlement discussions. The Parties engaged in six days of mediation sessions with retired United States District Judge Raul A. Ramirez of Sacramento, California. See Affidavit of Attorney John C. Bienvenu, filed separately, ¶ 9. Additionally, the Parties engaged in a number of additional sessions among counsel for the Parties. Arms-length, contentious, and non-collusive settlement negotiations continued through June 2006 when the Settlement Agreement was finally reached.
3

From the very beginning of these negotiations, Plaintiffs made it clear that they would not simultaneously discuss settlement of the class recovery and attorneys’ fees, but instead would only address the issue of attorneys fees after reaching agreement on all other terms for the benefit of the class. Bienvenu Aff., ¶ 10. This approach is not mandated, but is preferable under certain circumstances to avoid any possibility of a conflict of interest. See e.g. In re Prudential Ins. Co. of America Sales Practices Litig., 962 F.Supp. 572, 577 (D.N.J. 1997) (divorcing discussion of attorneys fees from negotiation of relief provided to class is preferred procedure as it “obviate[s] the danger or an actual or apparent conflict of interest on the part of class counsel”); In re Mfrs. Life Ins.Co. Premium Litig., No. 1109, 96-CV-230 BTM (AJB), 1998 WL 1993385, at *6, *10 (S.D. Cal. Dec. 21, 1998) (noting the importance of “carefully avoid[ing] the discouraged practice of simultaneous negotiation of fees and the merits” and encouraging the practice of “secur[ing] attorneys’ fees and expenses without dipping into the class’s recovery”); MANUAL FOR COMPLEX LITIGATION (FOURTH), § 21.7 (separate negotiation of the class settlement before an agreement on fees is generally preferable).
The terms of the settlement are summarized as follows: 1. Monetary Relief to Settlement Class Members a. Payments to the Settlement Class
Pursuant to the terms of the Settlement Agreement, the MTC Defendants have deposited the sum of $8,000,000 into an interest-earning qualified settlement fund account (“Settlement Fund”) for payments to Class members, for payments of incentive compensation for each Class Representative, and for Plaintiffs’ reasonable attorneys’ fees and costs. In addition, the Santa Fe
4

County Defendants agreed to pay an additional amount up to $500,000 for claims administration expenses. Thus, the total settlement fund created for the benefit of the class is $8,500,000.
The Claims Administrator will pay out of the Settlement Fund to each Settlement Class member who submits a valid and timely Claim Form a Settlement Payment calculated for that Settlement Class member under the proposed Plan of Allocation (attached to the Settlement Agreement as Exhibit 4). Those payments range from a minimum of $200 to a maximum of $3,500. The Parties have agreed that the amount allocated for payment of claims is $5,529,750. In the event that the total amount of verified claims exceeds the amount available in the Settlement Fund, the amount payable to each Settlement Class member will be reduced proportionately. In the event that the total amount of verified claims is less than the amount available in the Settlement Fund, the balance will be refunded to the MTC Defendants.
b. Incentive Payments Under the Settlement Agreement, the Parties have agreed that the Class Representatives are eligible to receive compensation for their contribution to the investigation and prosecution of this case, in addition to the amounts to which they are entitled under the Plan of Allocation. The Parties have agreed that $470,250 of the Settlement Fund will be allocated for this purpose, subject to approval of the Court, representing $42,750 per Class Representative.
c. Attorneys’ Fees, Gross Receipts Tax and Costs The Parties have agreed that $2,000,000 of the Settlement Fund will be allocated to Plaintiffs’ attorneys fees, gross receipts tax on fees, and litigation expenses, subject to approval of the Court. Litigation expenses incurred by Plaintiffs through November 27, 2006 are approximately $110,000. Bienvenu Aff., ¶ 19. Thus, the amount to be allocated to Plaintiffs’
5

attorneys fees is $1,756,098, and the amount to be allocated to gross receipts tax on Plaintiffs’ attorneys fees is $133,902 (at the current Santa Fe rate of 7.625%).
2. Equitable Relief The Parties have stipulated and agreed that the strip search policies at the Santa Fe County Detention Center were changed as a result of Plaintiffs’ and Class Counsel’s efforts preceding and during this lawsuit. C. Claims Administration 19,927 notice and claim form packages were sent to potential Class Members on September 7, 2006. In addition, information regarding the settlement agreement was published in the Albuquerque Journal, the Santa Fe New Mexican, and the Rio Grande Sun, in both English and Spanish. Announcements were also made in English and Spanish on KABQ, KDCE, KKSS, and KJFA. A website and toll-free telephone number were established to provide further information to potential Class Members. See, Affidavit of Mark Patton, filed separately, ¶¶ 5-12. In addition, Class Counsel undertook extensive outreach efforts in an effort to locate potential Class Members and inform them of the settlement and the procedure for filing claims. Class Counsel developed a database to track contacts with all potential Class Members. Class Counsel hired staff dedicated to making telephone and in-person contacts with potential Class Members. Class Counsel mailed thousands of additional notice packages and claim forms to potential Class Members. Class Counsel published additional advertisements in various newspapers, and placed additional radio advertisements in a number of radio stations in Santa Fe and Rio Arriba Counties. Class Counsel invested many hundreds of hours in staff time and
6

approximately $60,000 in these outreach efforts. Class Counsel believe that these efforts directly resulted in doubling or tripling the number of Claim Forms received. Bienvenu Aff., ¶ 26.
As of November 29, 2006, 3,402 individuals had filed Claim Forms. No Class Members objected to the settlement; three individuals opted out of the settlement. Class Counsel estimate that the total amount of claims to be paid will be greater than $4,000,000, but somewhat less than the amount allocated for payment of claims ($5,529,750). Bienvenu Aff., ¶ 27.
The balance remaining in the Settlement Fund after payment of claims will revert to the MTC Defendants. The amounts allocated to attorneys fees, costs and incentive payments, then, will not reduce or otherwise affect the recovery to the Class Members who have filed claims, but instead will in effect be paid directly by the Defendants, as agreed by the Parties.
III. THE PARTIES’ ALLOCATION OF ATTORNEYS FEES AND COSTS IS FAIR AND REASONABLE AND SHOULD BE APPROVED
Two methods may be utilized to determine reasonable attorneys’ fees: (1) the percentage of the fund method (awarding fees based on a reasonable percentage of the overall recovery); and (2) the lodestar method (determining fees based on the hours worked, multiplied by a reasonable hourly rate and adjusted as appropriate by a multiplier). As set forth below, federal courts, including the Tenth Circuit Court of Appeals, have expressed a decided preference for the percentage of the fund method, and in the absence of any agreement to the contrary, that is presumptively the method to be used in determining a reasonable fee. Under either approach, however, the fee agreed upon by the Parties in the present case is reasonable.
A. The percentage of recovery method of awarding attorneys fees is the preferred method in common fund cases
The Tenth Circuit has observed that despite advantages and disadvantages to the lodestar
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and percentage of the fund methodologies, the “recent trend has been toward utilizing the percentage method in common fund cases.” Gottlieb v. Barry, 43 F.3d 474, 482 (10th Cir. 1994); see also Rosenbaum v. MacAllister, 64 F.3d 1439, 1445 (10th Cir. 1995) (“[w]e have recently implied ‘a preference for the percentage of the fund’ method in common fund cases”); MANUAL FOR COMPLEX LITIGATION (FOURTH), § 14.121 (the vast majority of courts of appeals now permit or direct district courts to use the percentage-fee method in common-fund cases).
In 1985, the Third Circuit Task Force studied this issue and recommended that in common fund cases, fees should be based on the percentage-of-the-fund method and not on the lodestar method, finding numerous problems with use of the lodestar method in common fund cases. Court Awarded Attorneys’ Fees: Report of the Third Circuit Task Force, 108 F.R.D. 237, 255 (1986). The lodestar method has been criticized by courts, commentators, and members of the bar because it is difficult to apply, time-consuming to administer, inconsistent in result, and creates an inherent incentive to prolong litigation. MANUAL FOR COMPLEX LITIGATION, supra, §14.121; Ramah Navajo Chapter v. Babbitt, 50 F. Supp. 2d 1091, 1108 (D.N.M. 1999).
After reviewing criticisms of the lodestar method and the findings of the Third Circuit Task Force, the Eleventh Circuit announced that the percentage of the fund, as opposed to the lodestar, would apply to all common fund cases. Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991). The District of Columbia Circuit has followed suit, finding that the percentage-of-the-fund method is preferred as it rewards prompt and efficient resolution of class action litigation, while the lodestar approach’s reliance on attorney work hours conversely encourages inefficiency and resistance to prompt settlement. Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1268 (D.C.Cir. 1993). The D.C. Circuit further found that “a percentage-of-the-fund
8

approach more accurately reflects the economics of litigation practice . . . and most closely approximates the manner in which attorneys are compensated in the marketplace for these types of cases.” Id. at 1269 (citations omitted); see also, HIRSCH & DIANE, FED. JUDICIAL CTR., AWARDING ATTORNEYS’ FEES AND MANAGING FEE LITIGATION 65 (noting that the percentage method “ensure[s] that the fee award will simulate the marketplace, since most common fund cases are the kinds of cases normally taken on a contingency fee basis, with counsel promised a percentage of any recovery”).
The percentage of the fund method is an appropriate method for determining reasonable fees even in the settlement of class actions involving fee-shifting statutes. See e.g., Staton v. Boeing Co., 327 F.3d 938, 967-68 (9th Cir. 2003) (common fund principles apply where a feeshifting case settles before judgment); Brytus v. Spang & Co., 203 F.3d 238, 246-47 (3rd Cir. 2000) (common fund fees are appropriate in both settled and litigated cases where statutory fees are available); Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) (approving fees based on common fund rather than statutory principles, even where statutory fees were available).
B. Twenty-one percent of the common fund falls well within the normal range of fee awards in common fund settlements
In calculating the percentage, it is appropriate to compare the fee to the total amount recovered for the benefit of the class, even if some of the fund ultimately reverts to the Defendants because some class members choose not to claim their share. Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) (attorneys fees must be based on the value of the entire common fund, even if some beneficiaries make no claim); accord, Waters v. Intern. Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999); Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir. 1997). It is also appropriate to include the amount of the attorneys fees in the
9

common fund when calculating the proper percentage. See MANUAL FOR COMPLEX LITIGATION, supra, § 21.7 (proper calculation of settlement benefits includes all fee amounts paid by defendant in addition to class relief.) Thus, the $1.75 million fee agreed upon by the Parties represents 20.6% of the $8,500,000 common fund recovered for the benefit of the class.
A leading commentator on class action litigation concluded as of 1992 that “no general rule” can be articulated as to what is a reasonable percentage of a common fund, but “[u]sually fifty percent of the fund is the upper limit on a reasonable fee award . . . though somewhat larger percentages are not unprecedented.” 3 NEWBERG & CONTE, NEWBERG ON CLASS ACTIONS § 14.03 (3d ed. 1992). Most courts that have surveyed fee awards in common fund settlements have reached similar conclusions. See e.g., Brown v. Phillips Petroleum Co., 838 F.2d 451, 455 (10th Cir. 1988) (surveying cases in which the percentage fee awarded ranged between 22% and 37.3%); Swedish Hosp. Corp., 1 F.3d at 1272 (surveying cases and observing that common fund awards typically range between 20 and 30%); Camden I Condominium Ass’n, 946 F.2d at 774 (a majority of common fund class action fee awards fall between 20 and 30%); In re Activision Securities Litigation, 723 F. Supp. 1373, 1377 (N.D.Cal. 1989) (surveying cases and finding average award of 30%); In re Warner Communications Sec. Litig., 618 F. Supp. 735, 749-50 (S.D.N.Y. 1985) (surveying cases with percentage fee awards averaging 30.6%, and finding that traditionally courts have awarded fees in the 20 to 50% range in class actions); In re Dun & Bradstreet Credit Services Customer Litig., 130 F.R.D. 366, 372 (S.D. Ohio 1990) (fee awards in common fund cases generally range from 20 to 50% of the common fund created); Manual for Complex Litigation, supra, §14.121(attorneys fees awarded in common funds are often between 25% and 30% of the fund).
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Some courts refer to 25% of the fund as a “benchmark” award, to be adjusted upwards or downwards based on the circumstances. See e.g. Ramah Navajo Chapter, 50 F. Supp. 2d at 1108. Factors to be considered in adjusting this benchmark include the twelve factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), discussed below. See e.g., Ramah Navajo Chapter, 50 F. Supp. 2d at 1108 (applying Johnson factors); Vizcaino v. Microsoft, 290 F.3d 1043 (9th Cir. 2002) (applying similar factors). Other courts refer to higher “benchmarks.” See e.g., In re Activision, 723 F. Supp. at 1377 (reviewing numerous cases to conclude that “in most recent cases the benchmark award is closer to 30%”).
Regardless of which benchmark or method is used, courts typically approve fee awards at the higher end of the scale in an approximation of typical contingency fees in non-class actions of one-third or higher. See e.g., In re Combustion, Inc., 968 F.Supp. 1116 (W.D.La. 1997) (noting that courts have awarded percentages in common fund cases of approximately one-third contingency fee, and awarding fees of $45,952,560, representing 36% of settlement fund); Shaw v. Toshiba America Info. Sys., Inc., 91 F. Supp. 2d 942, 972 (E.D.Tex. 2000) (observing that attorneys fees of 25 to 33.33% have been routinely awarded in class actions; citing empirical studies showing that, regardless whether percentage method or lodestar method is used, fee awards in class actions average around one-third of recovery); In re Sumitomo Copper Litig., 74 F. Supp. 2d 393 (S.D.N.Y. 1999) (awarding fees in excess of $32,000,000, representing 27.5% of the fund); In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (awarding 33% of the common fund as attorneys fees due to the complexity of the issues and the risks); Cullen v. Whitman Medical Corp., 197 F.R.D. 136, 150 (E. D. Pa. 2000) (awarding fees of 33.33% as consistent with other recent cases awarding the same or more from the common fund); Uselton v.
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Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 853 (10th Cir. 1993) (awarding fees of

29% of common fund); In re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166 (E.D.Pa.

2000) (finding fees of 30%, or $32,404,744.33, to be appropriate measure despite large amount of settlement); Waters v Intern. Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) (adjusting

30% “benchmark” upward and finding appropriate percentage of the fund to be 33.33%).

Federal courts within the Tenth Circuit, including the District of New Mexico, have

consistently approved class action fee amounts that are in accord with these percentages:

$

In re Boston Chicken, Inc., Sec. Lit., 2006 WL 2338188 (D. Colo. 2006) ($6.5

million fee, representing 28% of fund);

$

Millsap v. McDonnell Douglas Corp., 2003 WL 21277124 (N.D. Okla. 2003)

($8.75 million fee, representing 25% of fund);

$

Ramah Navajo Chapter v. Norton, 250 F. Supp. 2d 1303 (D.N.M. 2002) ($5.8

million fee, representing 20% of fund);

$

Law v. National Collegiate Athletic Ass’n, 108 F. Supp. 2d 1193 (D. Kan. 2000)

($18.2 million fee, representing 33.4% of fund);

$

In re Horizon/CMS Healthcare Corp. Sec. Lit., 3 F. Supp. 2d 1208 (D.N.M. 1998)

($4.2 million fee, representing 20% of fund);

$

Feerer v. Amoco Production Co., Civ. No. 95-012 JC/WWD (D.N.M. 1998)

($20.54 million fee, representing 29.5% of fund);

$

In re Storage Technology Sec. Lit., No. 92-V-750 (D. Colo. 1995) ($16.5 million

fee, representing 30% of fund);

$

Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994) ($10.8 million fee, representing

24.5% of fund);

$

Fuss, et al., v. Diagnostek, et al., No. 92-1274 JC/WWD (D.N.M. 1994) ($5

million fee, representing 31.2% of fund);

$

In re United Tel., Inc., Sec. Lit., 1994 WL 326007 (D. Kan. 1994) ($9.33 million

fee, representing 33.33% of fund);

12

$

Cimarron Pipeline Const., Inc., v. Nat’l Council on Compensation Insurance,

1993 WL 355466 (W.D. Okla. 1993) ($11.77 million fee, representing 33.33% of

fund);

$

Uselton v. Commercial Lovelace Motor Freight, 9 F.3d 849 (10th Cir. 1993)

($507,500 fee, representing 29% of fund);

$

In re Public Service Company of New Mexico, 1992 WL 278452 (S.D. Cal. 1992)

(litigated in part in New Mexico federal court) ($10.5 million fee, representing

33% of fund).

State Courts in New Mexico, relying on federal precedent, have also consistently

approved fees in this same range:

$

In re New Mexico Indirect Purchasers: Microsoft Corporation Antitrust

Litigation, 2006-NMCA-____ (affirming $6.1 million fee award, representing

25% of fund);

$

Dichter v. BP America Production Co., No. D-0101-CV-2000-01620 (Judge

Vigil, First Jud. Dist., 5/12/06) ($7 million fee, representing 24.5% of fund);

$

Berry v. Federal Kemper Life Ass. Co., No. D-0101-CV-2000-2602 (Judge Hall,

First Jud. Dist., 6/2/06) ($4.77 million fee, representing 25% of fund);

$

Mareau v. Regents of the University of California, No. SF-96-2430(c) (Judge

Hall, First Jud. Dist., 01/25/02) ($2.66 million fee, representing 25% of fund).

C. Twenty-one percent is consistent with the market rate as reflected by the contingent fee agreements negotiated with the Plaintiffs

As the authorities cited above demonstrate, the agreed-upon fee of 20.6% of the common

fund is at the lowest end of the percentage recoveries routinely approved by federal and state

court judges in New Mexico and across the nation. See also, Affidavit of Paul Bardacke, filed

separately, ¶¶ 12-14. A 20.6% fee is also well below the 33.33% contingency fee negotiated

between the Plaintiffs and Class Counsel. Bienvenu Aff., ¶ 22. Judge Posner of the Seventh

Circuit has stated that in awarding attorneys fees to class counsel, courts should attempt to

13

replicate the market rate. Matter of Cont’l Illinois Sec. Litig., 962 F.2d 566, 568 (7th Cir. 1992) (in awarding fees, courts should “determine what the lawyer would receive if he were selling his services in the market rather than being paid by court order.”) Thus if the market rate is a contingent fee percentage of recovery, “class counsel are entitled to the fee they would have received had they handled a similar suit on a contingent fee basis, with a similar outcome, for a paying client.” Id. at 572; see also Ikon, 194 F.R.D. at 193 (holding that, in setting the percentage to be awarded from a common fund, the court may consider the percentage likely to have been negotiated between private parties in a similar case). Here, the requested fee is equivalent to or below the market rate, and it is extremely unlikely that any rational private lawyer would have taken this case for less than a one-third contingency fee. Cf. Millsap v. McDonnell Douglas Corp., 2003 WL 21277124, *6 (N.D.Okla. May 28, 2003) (NO. 94-CV633-H(M)) (market rate of one-third set forth in contingency fee agreement informs determination of reasonable percentage to be awarded from the common fund as attorneys’ fees, leading court to determine that 25% of total recovery – or $8.75 million – is a proper and even conservative percentage of the fund to be awarded to Class Counsel).
D. Application of the Johnson factors confirms the reasonableness of a twenty-one percent attorneys fee
Although the percentage method is now the predominant method used by virtually all courts in common fund cases, courts often verify the reasonableness of the percentage fee awarded by analyzing class counsel’s work under the specific factors set forth in Johnson, and adopted by the Tenth Circuit in Brown. See Brown, 838 F.2d at 454. The Johnson factors enable the trial court to articulate specific reasons for a finding that the percentage fee awarded is fair and reasonable. Uselton, 9 F.3d at 853. The Johnson factors also enable the court to
14

determine whether any “benchmark” being applied should be adjusted upwards or downwards. Ramah Navajo Chapter, 50 F.Supp. 2d at 1108 (applying Johnson factors); Vizcaino, 290 F.3d at 1048-51 (applying similar factors). In common fund cases, however, primary consideration is given to the results obtained. Brown, 838 F.2d at 456.
The twelve factors evaluated under the Johnson test include: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.
Rarely are all of these factors applicable, and the weight to be given to each factor varies. In a common fund case, the greatest weight is to be given to the monetary results achieved. In fact, the monetary results may be considered “decisive.” Brown, 838 F.2d at 456. The time and labor involved is a “relevant” factor, but should be assigned a lesser weight than the monetary results achieved, risks undertaken, and other factors that “predominate.” Id.
1. The time and labor required By the time this litigation is concluded, it will have lasted well over two years. Class Counsel have managed and funded this case for its entirety. This case required, and continues to require, a substantial amount of dedicated time and labor. As of the date of this brief, Class Counsel has reasonably expended the following hours on this litigation:
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TIMEKEEPER
RRR MHD JCB JD JLS SJF FTA BJ RAM LES JC JB MB

TOTAL HOURS
356 238 805 .5 21 25 70 24 137 89 659
8 8 2,441

(Bienvenu Aff., ¶ 17.)

HOURLY RATE $300.00 $300.00 $300.00 $200.00 $200.00 $200.00 $200.00 $100.00 $100.00 $100.00 $100.00 $75.00 $75.00 TOTAL

TOTAL
$106,800 $71,400
$241,500 $100
$4,200 $5,000 $14,000 $2,400 $13,700 $8,900 $65,900 $5,100
$225 $539,225

In addition, Class Counsel continues to commit significant time and labor to the

administration of the settlement, for which no additional compensation will be received. This

future time and labor is likely to be substantial, including legal services to be rendered in

connection with the distribution process, and ongoing communications with Plaintiffs and the

members of the class. Bienvenu Aff., ¶ 17.

Also to be taken into consideration is the future time and labor which would have been

required if settlements had not been reached. See e.g., Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376-77 (9th Cir. 1993) (taking into consideration the future time which class counsel

committed to carrying through the conclusion of litigation by trial and appeal). Otherwise, Class

Counsel would be penalized for the efficient resolution of these claims by settlement. See also,

Manual for Complex Litigation, supra, §14.121 (“one purpose of the percentage method is to

16

encourage early settlements by not penalizing efficient counsel, thus ensuring that competent counsel continue to be willing to undertake risky, complex and novel litigation”).
Class Counsel faced many obstacles and took major risks in handling this litigation on a contingency basis. To restrict Class Counsel to the hourly rates they customarily charge for noncontingent work, where payment is assured, would deprive them of any financial incentive to accept complex contingent fee cases that may produce nothing. Taking into account the amount of time invested in this case to date, the time that will be invested in the future, and the time saved by successfully settling these claims, the requested fee is fair and reasonable.
2. The novelty and difficulty of the questions By accepting this case, Class Counsel took on issues of law and fact that were complex, challenging, and hotly contested. Such complex cases require more time and effort on the attorneys’ part and the attorneys should be appropriately compensated for accepting the challenge. Johnson, 488 F.2d at 718. In the face of these novel and difficult questions of fact and law, Class Counsel negotiated settlements on behalf of the Class that provide concrete and substantial benefits. Class Counsel’s acceptance of the challenge posed by these issues supports the fees requested. 3. The skill requisite to perform the legal service properly This case presented a complex, challenging set of factual and legal issues that required counsel with special skills in the difficult areas of large scale class action litigation and civil rights law. Class Counsel are among the few attorneys in this locality with the skills, experience and expertise in these areas necessary to succeed in performing these services. Bienvenu Aff., ¶¶ 5-7. For this additional reason, the requested fee is fully justified.
17

4. The preclusion of other employment by the attorneys due to acceptance of the case A review of the number of hours invested in this litigation by Class Counsel demonstrates that other employment was precluded. The total number of attorney hours invested to date is over 1,500 hours. This equates to a year of full-time legal employment on this one case alone. The affidavits also establish that other employment was in fact foregone due to the time constraints of this litigation. Bienvenu Aff., ¶ 24. 5. The customary fee The customary fee in a case such as this (outside the context of a class action) is the contingent fee arrangement wherein counsel receives a percentage – 33.33% in this case – of the recovery, if any, and no fee if there is no recovery. Bienvenu Aff., ¶ 21. In the class action context, the customary fee is established by the common fund doctrine as discussed above, in the range of 25 - 33.33% (or more) of the recovery. Thus, the requested fee is well within the customary fee in a case such as this. 6. Whether the fee is fixed or contingent Class Counsel undertook significant financial risk in accepting this case on a contingency basis. The risk undertaken by Class Counsel is second only to the result achieved in assessing the performance of counsel for purposes of the fee award. As one court stated:
In evaluating the services rendered in this case, appropriate consideration must be given to the risks assumed by plaintiffs’ counsel in undertaking the litigation. The prospects of success were by no means certain at the outset, and indeed, the chances of success were highly speculative and problematical. In re King Resources Co. Sec. Litig., 420 F.Supp. 610, 636-37 (D.Colo. 1976). Class Counsel would be paid absolutely nothing unless the class was successful in
18

obtaining monetary relief by trial or settlement. In addition, even if there was a recovery, the extent of Class Counsel’s compensation would depend directly on the amount of any monetary benefits obtained.
Class Counsel have devoted more than two years to this litigation. They have invested thousands of hours of attorney and staff time and advanced over $100,000 in litigation expenses, without any compensation. Bienvenu Aff., ¶¶ 16-20. Though not required to do so, Class Counsel advanced these expenses on behalf of the Class, knowing that in a case such as this the expenses were prohibitive for the Class Representatives. Class Counsel’s investment has meant not only that they risked non-payment for the years that they devoted to this case and loss of the money advanced, but they also accepted a significant “lost opportunity cost” from other work that could not be taken because of the demands of this complex case. Bienvenu Aff., ¶ 19.
In addition, Class Counsel’s investment to date represents only a portion of the total risk of non-payment that Class Counsel undertook by accepting the case. If settlement had not been reached, the remaining discovery, motions briefing and hearings, and pre-trial preparation would have consumed many more months and more likely years of additional time devoted exclusively to this litigation by Class Counsel. Trial of this case would have required many months, involving numerous lawyers, staff support, experts, witnesses, exhibits and demonstrative aids. All of these future costs are part of the financial risk that Class Counsel assumed when they agreed to take this case on a contingency basis.
7. Time limitations imposed by the client or the circumstances The settlement achieved by Class Counsel, if approved, will avoid years of protracted litigation that lay ahead if this settlement had not been reached. This settlement avoids the
19

lengthy discovery and pre-trial proceedings yet to be completed. The settlement avoids the delay and uncertain outcome of the trial itself. Finally, the settlement avoids appeals on the merits that may have been taken following trial. Class Counsel’s avoidance of these delays in favor of prompt cash payments to class members supports the fee award requested.
8. The amount involved and the results obtained The monetary result obtained is the most important factor in determining the reasonableness of class counsel’s fee request. See Brown, 838 F.2d at 456. Here, Class Counsel obtained significant monetary benefits for the class members. Unlike many class action settlements that provide little if any actual monetary benefits to the class members, the settlements reached herein provide real and substantial monetary recovery to the class. The amounts expected to be allocated to individual class members are equal to or greater than those obtained in other such class action suits, and comparable to the awards that have been obtained in similar cases through individual lawsuits. In short, the monetary results obtained for the class is substantial and noteworthy, fully supporting the requested fee award. Bardacke Aff., ¶¶ 11-19. 9. The experience, reputation, and ability of the attorneys This factor is intended to reward counsel for devoting the talent, experience and specialization needed to successfully try a complex class action case. Johnson, 488 F.2d at 71819. Here, Class Counsel included attorneys with extensive experience in complex civil litigation, civil rights, and class actions. (Bienvenu Aff., ¶¶ 4-7; Rothstein Aff., ¶¶ 2-4; Donatelli Aff., ¶¶ 2-5. Class Counsel’s dedication of their expertise to this litigation, and the skill required to obtain the substantial settlement fund created for class members, supports the requested fee.
20

10. The “undesirability” of the case This litigation presented difficulties that would make it undesirable to most lawyers. First, the MTC Defendants are well-funded and well-insured, enabling them to hire the best defense counsel available, who are then allowed to defend the litigation with no expense spared. Second, the human resources required to properly handle litigation of this magnitude are significant. Many firms simply would not be able to keep up with the necessary document and witness investigation and review, wide array of legal research, and the sheer procedural complexities of such a class action Third, this litigation required thousands of hours of attorney and staff time and more than two years of litigation to date. Few attorneys are willing to accept a difficult case of this type when it requires foregoing other employment and the lost opportunity cost that comes with such lengthy litigation. Fourth, this case required the out-of-pocket expenditure of over one hundred thousand dollars in litigation expenses. The case could not proceed without advancing these costs, and such costs were essential to the success achieved. Fifth, this case could only be pursued on a contingency basis, as the Plaintiffs did not have the resources to hire counsel on an hourly fee basis. Because of the complexity and difficulty of the litigation, any attorney contemplating undertaking this case on a contingency basis faced the prospect of no recovery for the money, manpower, and time that would be invested. Class Counsel were willing to accept this case on behalf of the Plaintiffs and the members of the Class notwithstanding these factors. The undesirability of the case further supports the fee award requested. 11. The nature and length of the professional relationship with the client This factor is meant to reflect any discounted rate that a lawyer might ordinarily charge to
21

a long-standing client from whom the lawyer might expect continued or repeat business. Johnson, 488 F. 2d at 719. Here, Class Counsel had no previous relationship with the class or the class representatives. Thus, no discount should be applied to the requested award.
12. Awards in similar cases A review of fee awards in other class action lawsuits establishes that a 20.6% fee is well within the range of such awards, and in fact is on the low end of such awards. See, supra, Part III.B. This final factor therefore also confirms the reasonableness of the requested award. E. Application of the lodestar method also confirms the
reasonableness of the percentage fee Some courts have used the lodestar/multiplier method instead of the Johnson test as a “cross-check” to confirm the reasonableness of a percentage fee award. See e.g., In re Immunex Sec. Litig., 864 F.Supp. 142, 142-143 (W.D.Wash. 1994) (lodestar method used as a “crosscheck” in affirming 30% fee award). Application of the “multiplier” part of the lodestar test typically involves a review of the same factors evaluated under the Johnson test, including the results achieved, the risks undertaken by class counsel, and the skill and quality of the representation. See e.g., Sumitomo, 74 F. Supp. 2d at 398. In this case, use of the lodestar method would result in the same fee award as use of the percentage method. As of the date of this brief, the raw lodestar in this case is $539,225 (not including gross receipts tax).1 Bienvenu Aff., ¶ 17. Thus, a fee of 20.6% of the common fund, or $1,756,098, is equivalent to applying a multiplier of 3.26 to the raw lodestar. This multiplier is well within the
1 Class Counsel’s billing records will be made available for the Court’s in camera inspection upon request.
22

range commonly applied in other class actions, and further establishes the reasonableness of the

requested fee. See, 1 CONTE, ATTORNEY FEE AWARDS § 2.06 at 39 (1993) (multipliers of 5-10

are common); 3 NEWBERG ON CLASS ACTIONS § 14.03 (multipliers ranging from one to four

“frequently are awarded in common fund cases,” and citing multipliers of five and ten in “large” common fund cases); In re Miniscribe Corp., 309 F.3d 1234, 1245 (10th Cir. 2002) (approving

multiplier of 2.57 as supported in other lodestar multiplier cases); Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 123 (2nd Cir. 2005) (approving multiplier of 3.5, resulting in a fee of

$220,290,160.42, and noting that such a multiplier “has been deemed reasonable under

analogous circumstances”); Vizcaino, 290 F.3d at 1051 (approving multiplier of 3.65, resulting in

fee of $27,127,000); Roberts v. Texaco, Inc., 979 F. Supp. 185, 198 (S.D.N.Y. 1997) (applying

multiplier of 5.5, resulting in fee of $19,154,144.62); In re NASDAQ Market-Makers Antitrust

Litig., 187 F.R.D. 465, 489 (S.D.N.Y. 1998) (“A multiplier of 3.97 is not unreasonable in this

type of case”).

Federal and state courts in New Mexico have approved similar multipliers; e.g.:

$

Feerer v. Amoco Production Co., Civ. No. 95-012 JC/WWD (D.N.M. 1998)

($20.54 million fee, representing multiplier of 4.27);

$

In re New Mexico Indirect Purchasers: Microsoft Corporation Antitrust

Litigation, 2006-NMCA-____ (affirming $6.1 million fee award, representing

multiplier of 3.0);

$

Berry v. Federal Kemper Life Ass. Co., No. D-0101-CV-2000-2602 (Judge Hall,

First Jud. Dist., 6/2/06) ($4.77 million fee, representing multiplier of 2.38);

$

Dichter v. BP America Production Co., No. D-0101-CV-2000-01620 (Judge

Vigil, First Jud. Dist., 5/12/06) ($7 million fee, representing multiplier of 10.17).

In sum, application of the lodestar method also confirms that a fee representing 20.6% of

23

the common fund is fair and reasonable. See also In re Activision, 723 F.Supp. at 1377
(surveying cases and concluding that “nearly all common fund awards range around 30% even
after thorough application of either the lodestar or [Johnson] method.”)
F. Gross receipts tax is properly added to the amount of attorneys’ fees under New Mexico law
New Mexico imposes gross receipts tax on services. It is customary for gross receipts tax
to be added to any fee for attorneys’ services rendered, whether on an hourly fee basis or a
contingency fee basis. Accordingly, gross receipts tax of 7.625 % is properly added to the
amount of attorneys’ fees. See Ramah Navajo Chapter, 50 F. Supp. 2d at 1109 (awarding New
Mexico gross receipts tax on award of fees in class action common fund).
G. Plaintiffs’ necessary and reasonably incurred litigation expenses are properly reimbursed
It is well-settled that class counsel are entitled to an award of their litigation expenses
reasonably and necessarily incurred:
Lawyers whose efforts succeed in creating a common fund for the benefit of a class are entitled not only to reasonable fees, but also to recover . . . expenses reasonable in amount, that were necessary to bring the action to a climax.
NEWBERG ON CLASS ACTIONS at § 14.03. To date, Class Counsel and Plaintiffs have incurred
costs in the total amount of approximately $110,000, summarized as follows:

AMOUNT

DESCRIPTION OF COSTS

$1,535.29 Electronic Research

$938.36 Long Distance and Conference Calling

$469.97 Postage and Federal Express

$4,177.75 Document Reproduction

$159.00 Facsimiles

$10,056.52 Court Reporters and Videographers

24

$1,659.77 Food and Travel $4150.00 Filing Fees $22,453.76 Mediation $28,448.29 Claims Administration/Outreach $3,500.00 Expert Witness $33,000.00 Outstanding Claims Administration/Outreach
(estimated) $110,548.71 TOTAL
Bienvenu Aff., ¶¶ 19-20. These costs were reasonably and necessarily incurred in the successful prosecution of this
lawsuit and are properly reimbursed in full. IV. THE PROPOSED INCENTIVE PAYMENTS ARE FAIR AND REASONABLE AND SHOULD BE APPROVED Class representative incentive awards are intended to recognize the significant time and
efforts expended by the class representatives on behalf of the class and the risks that they undertook in bringing a lawsuit. Ingram v. The Coca Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001)(awarding incentive awards of $300,000 to each plaintiff and holding that “courts routinely approve incentive awards to compensate named plaintiffs for the services they provide and the risks they incurred during the course of the class action litigation” (quoting In re Southern Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)); see also, Huguley v. Gen. Motors Corp., 128 F.R.D. 81, 85 (E.D. Mich. 1989) (“Named plaintiffs and witnesses are entitled to more consideration than class members generally because of the onerous burden of litigation that they have borne.”). In considering incentive awards, the Court may consider the risk to the class representatives, financial and otherwise; the personal difficulties encountered by the class representatives; the amount of time and effort spent on litigation; the duration of the litigation;
25

and the personal benefit—or lack thereof—enjoyed by the class representative as a result of the litigation. Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995).
In the present case, these factors weigh in favor of the agreed-upon incentive awards for the Class Representatives. They were all willing to allow their names to appear on the Complaint, which all parties knew would receive significant publicity. They made personal sacrifices in order to pursue this case on behalf of the Class. Each of the Class Representatives had particularly strong individual cases that would likely have resulted in significant awards if these cases had been pursued individually. Instead, the Class Representatives chose to pursue a recovery that, while less beneficial to them, provided a benefit to thousands of others. Affidavit of Elizabeth Leyba, filed separately, ¶¶ 3-11; Bienvenu Aff., ¶ 25; Rothstein Aff., ¶ 7; Donatelli Aff., ¶ 10.
The Class Representatives were required to submit to depositions and other public scrutiny into embarrassing details of their personal lives, including their arrests. In addition, they collectively spent hundreds of hours reviewing information provided in discovery, providing information to Class Counsel, participating in depositions, answering written discovery, attending mediations, and assisting Class Counsel in countless other ways in the pursuit and eventual settlement of this case. Leyba Aff., ¶¶ 3-11; Bienvenu Aff., ¶ 25; Rothstein Aff., ¶ 7; Donatelli Aff., ¶ 10.
In sum, given the circumstances presented in this case and the work performed by the Class Representatives on behalf of the class, the requested incentive award of $42,750 for each Class Representative is reasonable and should be approved.
26

V. THE ABSENCE OF OBJECTIONS SUPPORTS THE REASONABLENESS OF THE AGREED-UPON ALLOCATION
Notices of the settlement were sent by first class mail to over 19,000 potential class members, informing them of the details of the Settlement Agreement, including the proposed allocation of attorneys fees, costs and incentive payments. No class members objected to any aspect of the Settlement Agreement. Patton Aff., ¶ 14. That no objections were received strongly supports the reasonableness of the agreed-upon allocation. In re Linerboard Antitrust Litig., 2004 WL 1221350, *5 (E.D.Pa. June 2, 2004) (No. MDL 1261, Civ.A. 98-5055, Civ.A. 99-1000, Civ.A. 99-1341) (“The absence of objections supports approval of the Fee Petition”) (and citing holding of In re Cell Pathways, Inc., Sec. Litig., II, 2002 U.S. Dist. LEXIS 18359 (E.D.Pa. September 23, 2003) that existence of only one objection shows class does not object to thirty percent requested by attorneys and supports approval of fee petition). Similarly, the fact that not one class member out of the 19,000 to whom notices were given objected to the amount of the incentive awards provides further indication that the members of the Class readily appreciate the risk and sacrifice undertaken by the Class Representatives.
In addition, the amount of the attorneys fees and incentive payments was the outcome of lengthy negotiations with the Defendants, who ultimately must pay these awards. That the parties who bear these expenses do not object further demonstrates that these amounts are fair and reasonable.
VI. CONCLUSION For all the foregoing reasons, Plaintiffs respectfully request that the Court approve the Parties agreed-upon allocation of attorneys fees, costs and incentive payments.
27

Robert John ROTHSTEI DAHL Post Santa (505)

Respectfully submitted,
Mark H. Donatelli R. Rothstein
C. Bienvenu N, DONATELLI, HUGHES,
STROM, SCHOENBURG & BIENVENU, LLP Office Box 8180 Fe, New Mexico 87504-8180 988-8004
Attorneys for the Plaintiffs and the Class
By: SS//John C. Bienvenu electronically signed 12/1/06

CERTIFICATE OF SERVICE I hereby certify that on this _1st ___ day of December, 2006, I caused to be delivered a

true and correct copy of the foregoing on the following counsel by U.S. mail, postage prepaid:

P. Scott Eaton, Esq.

Eaton & Krehbiel, P.C.

PO Box 25305

Keleher

Albuquerque, New Mexico 87125-5305

Albuquerque,

Kurt Wihl, Esq. Gary J. Van Luchene, Esq.
and McLeod, P.A. PO Box AA
New Mexico 87103-1626

Michael Dickman, Esq. PO Box 549 Santa Fe, New Mexico 87504-0549 Fax: 505-992-8170

_Electronically signed 12-1-06 John C. Bienvenu

28

 
 I LED IN THE UNITED STATES DISTRICT CClliJ}fEO!T ATES DISTAICTCOUAT FOR THE DISTRICT OF NEW MEXICb'LBUQUEAQUE, NEW MEXICO .

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLlN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID SANDOVAL, KRlSTI SEIBOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, on their own behalf and on behalfofa class of similarly situated persons,

DEC U8 2UUti
MATTHEW J, DYKMAN
SbERK

Plaintiffs,
VS.
No. CIV-05-0036 BB/ACT

SANTA FE COUNTY BOARD OF COMMISSIONERS; MANAGEMENT & TRAINING CORPORATION; SANTA FE COUNTY SHERIFF GREG SOLANO, in his individual and official capacities; FORMER SANTA FE COUNTY SHERlFF RA YMOND L. SISNEROS, in his individual and official capacities; and KERRY DIXON, in his individual and official capacities,

Defendants.

FINAL JUDGMENT OF DISMISSAL AND ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT

THIS MATTER came before the Court upon the Joint Unopposed Motion of

Plaintiffs and Class Representatives Elizaheth Leyba, Natasha Apodaca, Nancy ElIin,

Monica Garcia, Lucy M. Marquez, Mark Miller, Copper Perry, David Sandoval, Kristi

Seibold, Russella Sema, and Kimberly Wright (collectively "PlaintifTs" or "Class

Representatives"); Defendants Management & Training Corporation and Kerry Dixon

t"MTC Defendants"); and Santa Fe County Board of Commissioners, Santa Fe County

Sheriff Greg Solano, and Former Santa Fe County Sheriff Raymond L. Sisneros, ("Santa

Fe County Defendants") (hereinafter collectively referred to as "the Parties") For final approval of the Stipulation of Settlement ("Settlement Agreement") entered into by the Parties. The Court has considered the facts and legal authorities set forth in the Parties' Joint Unopposed Motion for Final Approval of Class Action Settlement Agreement. the Memorandum in Support of Approval of Reasonable Attorneys Fees, Costs and Incentive Payments, and the affidavits submitted in support thereof; has reviewed the terms of the Settlement Agreement; has considered the matters presented to the Court at the Final Fairness Hearing held on December 8, 2006; and has determined that there is good cause for final approval of the Settlement Agreement and entry of this Order. Therefore,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: I. The notice provided to Class Members of the Settlement Agreement was the best notice practicable under the circumstances, within the meaning of Rule 23(c)(2)(B), Federal Rules of Civil Procedure. 2. No objections were received by any Class Member to the Settlement Agreement. Three members of the Class opted out. 3. The Court concludes that the Settlement Agreement was entered into in good faith, is'reasonable, fair and adequate, and in the best interest of the Class, and should be and hereby is approved. 4. All claims in the Action as to the Released Persons as defined in the Settlement Agreement, including all claims for declaratory and injunctive relief, should be and hereby arc dismissed with prejudice. 5. All Settlement Class Members as defined in the Settlement Agreement ("SCMs") are enjoined from asserting against any Released Person, any and all claims

that the SCMs had. has or may have in the future arising out of the facts alleged in the

Complaint.

6. Each Released Person is released from the claims which any SCM has.

had or may have in the future. against such Released Person arising out of the facts

alleged in the Complaint.

7. No person may assert any claim against the Class Representatives, Class

Counsel, or Claims Administrator based on the distribution of the Settlement Fund made

substantially in accordance with the Settlement Agreement and/or the orders of the Court.

8. Payments to Class Members shall be made as soon as practicable pursuant

to the fonnula and procedure set forth in the Settlement Agreement.

9. Class Counsel are awarded reasonable attorneys fees, costs and gross

receipts in the total amount of $2.000,000, to be paid forthwith from the settlement fund.

10. Class Representatives are awarded incentive payments in the amount of

$42,750 per Class Representative, in addition to whatever payments to which they are

cntitled as Class Members. to be paid forthwith from the settlement fund.

II. The Court reserves continuing and exclusive jurisdiction over the Parties

to the Settlement Agreement, including Defendants and SCMs, to administer. supervise,

constme and enforce the Settlement Agreement in accordance with its terms for the

mutual benefit of all the Parties.

IT IS SO ORDERED.

- t - DATED:/1.

oC

~6gQD~J~AQ U.S. DISTRICT COURT JUDGE

· .
Submittcd and Approved by:
SS// John C. Bicnvcnu clcctronically signed 12/1/06 Robert R. Rothstein Mark H. Donatelli John C. Bienvcnu Attorneys for Plaintiffs
Telephonically approvcd 12/1 /06 Michael Dickman Attorney for Santa Fc County Defendants
Telephonicallyapprovcd 1211 /06 P. Scott Eaton Attorney for Defendants MTC and Dixon
Telephonicallyapproved 12/1/06 Kurt Wihi Gary J. Van Luchcne Attorneys for Defendant MTC

 
 Case 6:05-cv-00036-BB-ACT Document 49-1 Filed 09/18/06 Page 1 of 7

IF YOU WERE STRIP SEARCHED AT INTAKE AND BOOKING AT THE SANTA FE COUNTY DETENTION FACILITY BEFORE YOU WERE ARRAIGNED BETWEEN JANUARY 12, 2002 AND JULY 6, 2006, A PROPOSED CLASS ACTION SETTLEMENT MAY AFFECT YOUR RIGHTS.

PLEASE READ THIS NOTICE CAREFULLY.

A proposed settlement has been reached in a class action lawsuit pending in the United

i

States District Court for the District ofNew Mexico, LEYBA, et al. v. SANTA FE

COUNTY BOARD OF COUNTY COMMISSIONERS, et al., Cause No. CIV-05-0036

BBIACT. This class action lawsuit was filed on behalf of persons allegedly illegally strip

searched at the Santa Fe County Detention Facility between January 12, 2002 and July 6,

2006. The Court has ordered that notice be sent to all potential class members.

This is only a summary notice; a more detailed Notice of Proposed Settlement of Santa Fe County Class Action Strip Search Case ("Notice") may be obtained by calling toll-free (866) 854-8632 or writing to Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670 or by visiting the following website: www.santafestripsearch.com.

WHAT IS THE LAWSUIT ABOUT?

This lawsuit alleges claims against Defendants Management & Training Corporation and Kerry Dixon ("MTC Defendants"), and Santa Fe County Board of County
Commissioners, Santa Fe County Sheriff Greg Solano, and Former Santa Fe County Sheriff Raymond L. Sisneros ("Santa Fe County Defendants") for unlawful strip searches of the Plaintiffs and other pre-arraignment detainees who were subjected to a strip search upon booking and intake to the Santa Fe County Detention Facility during the Class Period (from January 12, 2002 to July 6, 2006) without individualized suspicion that the search would lead to the discovery of contraband or weapons, not including persons arrested or booked on charges involving drugs, weapons or violence. The Defendants dispute these allegations and deny any liability, but are prepared to settle the litigation solely to compromise disputed claims and to avoid further expense, inconvenience and uncertainty of litigation.

WHAT ARE THE TERMS OF THE SETTLEMENT?

Exhibit 3

Case 6:05-cv-00036-BB-ACT Document 49-1 Filed 09/18/06 Page 2 of 7
The Settlement Agreement provides that the MTC Defendants will deposit $8,000,000 (Eight Million Dollars) into an interest-bearing Settlement Fund. The following amounts will be paid out of the Settlement Fund, subject to final approval of the Court: (a) payments to Settlement Class members who submit valid and timely Claim Forms, calculated under the Plan of Allocation; (b) payments to the Class Representatives to acknowledge their participation·and efforts in this lawsuit; and (c) payments for Plaintiffs' attorneys' fees, gross receipts tax on Plaintiffs' attorneys' fees, and litigation expenses incurred on behalf of Plaintiffs. In the event that there are funds remaining in the Settlement Fund after these payments are made, such funds will be returned to the MTC Defendants.
The Settlement Agreement provides that the Santa Fe County Defendants will pay up to $500,000 (Five Hundred Thousand Dollars) for all claims administration expenses.
The MTC Defendants no longer operate the Santa Fe County Detention Facility. The Santa Fe County Defendants have agreed that they will no longer strip search prearraignment detainees without individualized reasonable suspicion that the strip search would be productive of contraband or weapons.
i
A detailed description of the settlement is contained in the Notice. The complete terms of the proposed settlement are also set forth in the Settlement Agreement, which may be inspected during normal business hours at the office of the Clerk of the United States District Court for the District of New Mexico, 333 Lomas Blvd. NW, Albuquerque, NM. The Court has given its preliminary approval to the proposed settlement described above.
SETTLEMENT HEARING
A hearing on final approval of the proposed settlement will be held on December 8, 2006, beginning at 10:00 a.m. at the United States District Court for the District of New Mexico, 120 South Federal Place, Santa Fe, New Mexico. At the hearing, the Court will consider, among other things, whether the proposed settlement should b~ given final approval as fair, reasonable and adequate.
WHAT ARE YOUR RIGHTS AND OPTIONS?
A. YOU MAY REMAIN A CLASS MEMBER AND SUBMIT A CLAIM FORM: If you do not request exclusion from the Class by timely opting out ofthe Class, you will be deemed included within the Class and you will be deemed to have released the Defendants and others from all claims described in the Settlement Agreement and in the Notice (the "Released Claims"). In order to be eligible to receive monetary compensation under the proposed settlement, you must complete a Claim Form return it so that it is postmarked or delivered no later than November 6, 2006. Claim forms may be obtained by calling toll-free (866) 8548632 or by visiting the following website: www.santafestripsearch.com.

Case 6:05-cv-00036-BB-ACT Document 49-1 Filed 09/18/06 Page 3 of 7
B. YOU MAY REQUEST EXCLUSION FROM THE CLASS AND OPT OUT: If you do not wish to be bound by the terms of the proposed Settlement, you may exclude yourself or "opt-out" ofthis lawsuit. To do so, you must submit a completed Opt-Out Form to the Claims Administrator so that it is postmarked or otherwise delivered no later than October 23, 2006. Opt-Out Forms may be obtained by calling toll-free (866) 854-8632 or by visiting the following website: www.santafestripsearch.com. If you request exclusion from the Class in this manner, you will not share in the proposed settlement, you will not be entitled to object to the proposed settlement, you will not be bound by any final judgment under the proposed settlement, and you may pursue any claims you may have against the Defendants at your own expense.
FOR MORE INFORMATION
Complete information about your rights as a Class Member, the settlement approval process, how to make a claim for part of the Settlement Fund, and important dates and deadlines is available in the Notice. To obtain a copy: CALL: toll-free (866) 854-8632, OR WRITE: Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670 OR VISIT: www.santafestripsearch.com
You may also address any inquiry in writing to Class Counsel at the following address:
ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP Attn: Mark H. Donatelli, Robert R. Rothstein, John C. Bienvenu P.O. Box 8180 Santa Fe, NM 87504-8180 505-988-8004
Please Do Not Contact the Court or the Clerk's Office for Information.
By Order of the United States District Court for The District ofNew Mexico.
Dated: July 24, 2006
The Honorable Bruce D. Black, United States District Judge

Case 6:05-cv-00036-BB-ACT Document 49-1 Filed 09/18/06 Page 4 of 7
SI USTED FUE SOMETIDO A UN REGISTRO DESNUDO AL SER ARRESTADO Y ADMITIDO A LA INSTALACION DE DETENCION DEL CONDADO DE SANTA FE ANTES DE SU EMPLAZAMIENTO ENTRE EL 12 DE ENERO DE 2002 Y EL 6 DE JULIO DE 2006, UN ACUERDO DE LIQUIDACION PROPUESTO EN UNA DEMANDA COLECTIVA PODRiA AFECTAR SUS DERECHOS.
SIRVASE LEER ESTE AVISO DETENIDAMENTE.
Se ha llegado a un acuerdo de liquidaci6n propuesto en una demanda colectiva que se encuentra pendiente en el Tribunal de Distrito de Estados Unidos para el Distrito de New Mexico, titulada LEYBA, et al. v. SANTA FE COUNTY BOARD OF COUNTY COMMISSIONERS, et al., Causa No. CIV-05-0036 BBIACT. Esta demanda colectiva fue presentada a nombre de personas que alegadamente fueron sometidas ilegalmente a registros desnudos en la Instalaci6n de Detenci6n del Condado de Santa Fe entre el12 de enero de 2002 y el 6 de julio de 2006. El Tribunal ha ordenado que se envie un aviso a todos los posibles miembros de la clase.
Este es s6lo un aviso resumido; se puede obtener un Aviso de Acuerdo de Liquidaci6n Propuesto en el Caso de la Demanda Colectiva por Registro Desnudo del Condado de Santa Fe ("Aviso") mas detallado llamando sin cargo al (866) 854-8632, escribiendo a Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670 o visitando el siguiente sitio web: www.santafestripsearch.com.
;,A QUE SE DEBE LA DEMANDA?
En esta demanda se alegan reclamaciones contra los Demandados Management & Training Corporation y Kerry Dixon ("Demandados de MTC") y la Junta de Comisionados del Condado del Condado de Santa Fe, el Alguacil del Condado de Santa Fe Greg Solano y el Sheriffprevio del Condado de Santa Fe Raymond L. Sisneros ("Demandados del Condado de Santa Fe") por realizar registros desnudos ilegales a los Demandantes y otros detenidos previo al emplazamiento, quienes fueron sometidos a registros desnudos al ser arrestados y admitidos a la Instalaci6n de Detenci6n del

Case 6:05-cv-00036-BB-ACT Document 49-1 Filed 09/18/06 Page 5 of 7

Condado de Santa Fe durante el Periodo de la Clase (del 12 de enero de 2002 al 6 de julio de 2006) sin ninguna sospecha individualizada de que el registro conduciria al descubrimiento de contrabando o armas, no incluyendo a personas arrestadas o admitidas por cargos que involucraban drogas, armas o violencia. Los Demandantes disputan estas alegaciones y niegan responsabilidad civil alguna, pero estan preparados a liquidar el litigio U.nicamente para transar las reclamaciones disputadas y evitar gastos adicionales, inconveniencias y la incertidumbre dellitigio.

;,CUALES SON LOS TERMINOS DEL ACUERDO DE LIQUIDACION?

El Acuerdo de Liquidaci6n dispone que los Demandados de MTC depositen $8,000,000 (Ocho Millones de D6lares) en un Fondo de Liquidaci6n que devengue intereses. Los siguientes montos se pagaran del Fondo de Liquidaci6n, sujeto ala aprobaci6n definitiva del Tribunal: (a) pagosa los miembros de Ia Clase de Liquidaci6n que presenten Formularios de Reclamaci6n validos y de forma oportuna, calculados de acuerdo con el Plan de Asignaci6n; (b) pagos a los Representantes de Ia Clase para reconocer su participaci6n y sus esfuerzos en esta demanda; y (c) pagos por honorarios de abogados de los Demandantes, impuestos por recibos brutos sobre los honorarios de abogados de los Demandantes y gastos dellitigio incurridos a nombre de los Demandantes. En caso de que queden fondos restantes en el Fondo de Liquidaci6n despues de hacerse estos pagos, dichos fondos se devolveran a los Demandados de MTC.

El Acuerdo de Liquidaci6n dispone que los Demandados del Condado de Santa Fe paguen hasta $500,000 (Quinientos Mil D6lares) por todos los gastos de administraci6n de las reclamaciones.

Los Demandados de MTC ya no operan Ia Instalaci6n de Detenci6n del Condado de

Santa Fe. Los Demandados del Condado de Santa Fe han convenido en que ya no

realizaran registros desnudos a los detenidos previo al emplazamiento sin una sospecha

razonable individualizada de que el registro desnudo producini contrabando o armas.

Este Aviso contiene una descripci6n detallada de Ia liquidaci6n. Los terminos completos de Ia liquidaci6n propuesta tambien se estipulan en el Acuerdo de Liquidaci6n, el cual

i
I

puede ser examinado durante el horario regular de trabajo en el despacho del Secretario

del Tribunal de Distrito de Estados Unidos para el Distrito de New Mexico, ubicado en

333 Lomas Blvd. NW, Albuquerque, NM. El Tribunal ha dado su aprobaci6n preliminar

a Ia liquidaci6n propuesta descrita anteriormente.

AUDIENCIA DE LIQUIDACION

Una audiencia con respecto ala aprobaci6n definitiva de Ia liquidaci6n propuesta tendra Iugar el 8 de diciembre de 2006, comenzando a Ia 10:00 a.m., en el Tribunal de Distrito de Estados Unidos para el Distrito de New Mexico, en 120 South Federal Place, Santa Fe, New Mexico. En Ia audiencia, el Tribunal considerara, entre otras cosas, si a la liquidaci6n propuesta se le debe dar Ia aprobaci6n definitiva por ser justa, razonable y adecuada.

Case 6:05-cv-00036-BB-ACT Document 49-1 Filed 09/18/06 Page 6 of 7

;,CUALES SON SUS DERECHOS Y OPCIONES?

A. USTED PUEDE PERMANECER COMO MIEMBRO DE LA CLASE Y PRESENTAR UN FORMULARIO DE RECLAMACION: Si no solicita Ia exclusion de Ia Clase optando oportunamente por ser excluido de Ia Clase, se considerani que esta incluido en la Clase y se considerani que ha exonerado a los Demandados y a otros de todas las reclamaciones que se describen en el Acuerdo de Liquidacion y en el Aviso (las "Reclamaciones Exoneradas"). Para ser elegible para recibir compensacion monetaria bajo el acuerdo de liquidacion propuesto, usted debe llenar un Formulario de Reclamacion y devolverlo de manera que tenga matasellos o se entregue a mas tardar el 6 de noviembre de 2006. Los formularios de reclamacion pueden obtenerse llamando sin cargo al (866) 854-8632 o visitando el siguiente sitio web: www.santafestripsearch.com.

B. USTED PUEDE SOLICITAR LA EXCLUSION DE LA CLASE Y OPTAR POR SER EXCLUIDO: Si no desea quedar obligado por los terminos de Ia Liquidacion propuesta, puede excluirse u optar por ser excluido de esta demanda. Para hacerlo, debera presentar un Formulario de Exclusion lleno al Administrador de Reclamaciones de manera que tenga matasellos o se entregue de otro modo a mas tardar el23 de octubre de 2006. Los Formularios de Exclusion pueden obtenerse llamando sin cargo al (866) 854-8632 o visitando el siguiente sitio web: www.santafestripsearch.com. Si solicita ser excluido de Ia Clase de esta manera, no compartira en Ia liquidacion propuesta, no tendra derecho a objetar a la liquidacion propuesta, no quedara obligado a cualquier sentencia definitiva bajo Ia liquidacion propuesta y podra presentar cualesquiera reclamaciones que tenga contra los Demandados corriendo usted con sus propios gastos.

PARA OBTENER MAS INFORMACION

En el Aviso se proporciona informacion completa acerca de sus derechos como Miembro de la Clase, el proceso de aprobacion de Ia liquidacion, como presentar una reclamacion para una parte del Fondo de Liquidacion y las fechas importantes y fechas limites. Para obtener una copia, LLAME sin cargo al: (866) 854-8632, 0 ESCRIBA a: Claims Administrator, Post Office Box 670, Tallahassee, FL 323020670, 0 VISITE: www.santafestripsearch.com.

Tambien puede dirigir cualquier pregunta por escrito al Abogado de Ia Clase a Ia siguiente direccion:

ROTHSTEIN, DONATELLI, HUGHES,

DAHLSTROM, SCHOENBURG & BIENVENU, LLP Attn: Mark H. Donatelli, Robert R. Rothstein, John C. Bienvenu

l
t

P.O. Box 8180

Santa Fe, NM 87504-8180

Case 6:05-cv-00036-BB-ACT Document 49-1 Filed 09/18/06 Page 7 of 7
505-988-8004 Nose comunique con el Tribunal ni con el Despacho del Secretario del Tribunal para solicitar informacion. Por Orden del Tribunal de Distrito de Estados Unidos para el Distrito de New Mexico. Fechado el: 24 de julio de 2006 El Honorable Bruce D. Black, Juez de Distrito de Estados Unidos
i

 
 Case 1:05-cv-01772-JFM Document 13 Filed 06/24/08 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
VB.
THE STATE OF MARYLAND,

Def

s.

c 1 No.
1 05-cv-01772
JOINT MOTION TO AMEND THE MODIFIED ORDER OF CONDITIONAL DISMISSAL

On

ted States

of Justice and

the State of

a settlement

all

ions of civil

s violat

at the Balt

Juvenile Justice Center ("BCJJC"). On

23, 2007,

States s

taneous fil

rst

a

Ci t

sent case as well as a

Mot

s Settlement

to

R. Civ. P. 41 (a) (2).

al measures to

emented at BCJJC to

es H. Hi

, Jr. S

("Hi

Facili ( "CYF") , was

luded as an

to

t

Court s

a Modified Order of

t

invo

the

the Chelt

Youth

t to the Jo

Motion

This

e

Dismissal on

24,

2007.

Case 1:05-cv-01772-JFM Document 13 Filed 06/24/08 Page 2 of 4

t States

Justice

State of

i with

Amended

Settlement

s

CYF,

so

1

red to

lement certain

ies have ent

, att

as

s a Se t 1,

at BCJJC.

Settlement

letes

CYF

Settlement

ext

l

li of certa

sions at BCJJC

one year. In

t

ies

CYF from

smiss

t.

ies

s the Second

Settlement

to

and

ace

June

29, 2005

17, 2007 settlement

s.

Ac

, the

States

the De

s move

s

e Court to

its

f

of Condit onal

t at

fi

2-

Case 1:05-cv-01772-JFM Document 13 Filed 06/24/08 Page 3 of 4

DATED

8

June, 008.

Respect

tt

FOR THE UNITED STATES:

GRACE CHUNG BECKER At

8

8

SHANETTA Y. CUTLAR
f Sect

Sect

COREY M. SANDERS

Justice

(202) 514-6253 (202) 514-0212 (

.gov

-3

Case 1:05-cv-01772-JFM Document 13 Filed 06/24/08 Page 4 of 4

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 1 of 21

Sec

t Sta s of

ica

ti s at

stice

ilities

l Fil

c l W JFM 05 CV 1772

t States

District Court

s ct of

June 30, 2005; As

17, 2007 and June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 2 of 21

I. INTRODUCTION
A. On

United States notified State of

to

st

e

t

( "Chel

in

s

c.
letter

1 Jr. 1

Center ("BCJJC") 1

State

re

le
e the Unit
to BCJJC on June 30,

June 12 1 2003 1

1 I
tours

1 9 1 2004,

t States

42 U.S.C. § 1997 (a) (1),

Cheltenham and

1

juveniles its letter

s of the State's

States is

BCJLTC,

ch

same way.

June 29, 2005, as

tions it has BCJJC.

1 of 19 17, 2007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 3 of 21
!! )
F. At the

G.
on-site tants. At
States
H. S

States'

June 29, 2005, as

2 of 19
17, 2007 and June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 4 of 21

2009.
J. In
substantial
the cit zens of
ilities. K. The
to

the satisfact areas of
, as a consequence, sions of until June 29,

it

tions at to
State at act

role of

eve constituti

const

consistent

ch the DOJ is fi

N. After June 29, 2008, the

shall

y to 1

at

sions of

s

June 29, 2005, as

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 5 of 21

II. DEFINITIONS

In

s

, the foll

definitions

A. "BCJJC" means the

Center l

at 300 North

Street, Balt

any facili

lt to

ace or

ili

Justice and, and

A-1. "

t

locat at 11001

B. "DJS" means ces.

c. "DOJ" means
s

t
t States t States

le of Justice,

D. "

Date" means

last

whi

s

counsel or a

E. "The

ili

means, unless

context

se

cl

l ts, BCJJC.

center, is est

an

Facilities

to COMAR 10.24.07.02(3),

ili or

States.

F. "IEP" means

the I

s

u.s.c. §§ 1400-1490,

G. "Inc l t to" or "

not to."

June 29, 2005, as

4 of 19 17, 2007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 6 of 21

H. "

ement" means to

achieve actual fulfillment

ate tra

I. "OI.A" means ces' fice of Invest

ffectuate new measures to

K. "Sec

l

room.

means

L. "

acement of a

of

le

or its successor.

self-

s

one

a

M. "State" means

le

contractors

s,

N.

\\

Precaut

or measures to

al.
BCJJC III. SUBSTANTIVE REMEDIAL
A. IN GENERAL

of

and the

and

successors,

of watch,

truct

the

lls

assessment of mast

les resi

at

measures

June 29, 2005, as

5 of 19 17, 2007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 7 of 21

to

B. PROTECTION FROM HARM CHELTENHAM AND HICKEY - DELETED

B-1. PROTECTION FROM HARM - BCJJC

i. l t ect from

Youth-on-Youth assure

The State are

ate

The State
De-

to assess June 29 1 200 1 as

6 of 19 17, 2007

low June 3 1 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 8 of 21

ces!

DELETED

C. SUICIDE PREVENTION - CHELTENHAM AND HICKEY - DELETED

C-1. SUICIDE PREVENTION - BCJJC

i.

ementat

e measures to

Prevention i are

State

1 take all

s

its Suici

DELETED

iii. ir

of Self Harm - DELETED

d. June 29, 2005, as

on

on

on

of

ions; and

circumstances all
f

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 9 of 21

DELETED

i.

- DELETED

D. MENTAL HEALTH - CHELTENHAM AND HICKEY - DELETED

D-1. MENTAL HEALTH - BCJJC - DELETED

E. MEDICAL CARE - CHELTENHAM AND HICKEY - DELETED

F. SPECIAL EDUCATION- CHELTENHAM AND HICKEY - DELETED

F-1. SPECIAL EDUCATION - BCJJC

State

ll
DELETED

Parent,

1
C.F.R.

an IEP

ces,

rements

IEP process. Ment

l

of IEPs

June 29, 2005, as

e Involvement -

State

f

34

the illness.
June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 10 of 21

Goals terms.

ectives

l

stat

istic

v. Staff

DELETED

G. FIRE SAFETY CHELTENHAM AND HICKEY - DELETED

IV. COMPLIANCE AND

ASSURANCE - DELETED

V. MONITORING AND ENFORCEMENT

scret t

contract

must Neither

June 29, 2005, as

9 of 19 17, 2007

upon June 3, 008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 11 of 21

Team.

ic contracts execut

s, se costs
If a to sect

ies agree to in Sect

June 29, 005, as

10 of 19 17, 2007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 12 of 21

D.

tations on

sclosures

as necessary to Team

not matters

June 29, 2005, as

19 007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 13 of 21

F. Team's
the
VI. REPORTING

in AND RIGHT OF ACCESS

iance wi

e
l s

June 29, 200 , as

12

19

17, 2007 and June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 14 of 21

D. Because Soc not

will Team. all
of

VII. IMPLEMENTATION AND TERMINATION

D. June 29, 2005, as

1 measures

iance wi

s

1 constitute
11 of

entire

ir

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 15 of 21

If the DOJ

G. June 29, 2005, as

United States State reserves
c recession,
19 17, 2007 and June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 16 of 21

1

the event

ic

war.

K. exercise

es.

current invest

to CRIPA

t

measures or

rements

the in

June 9, 2005, as

15

19

17, 007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 17 of 21

State

l

oversee

0. i.

ion
29, 2009.

no
iance The ier than the th facili
e

b.
iance l not constitute
June 9, 2005, as

16 of 19 17, 2007 and June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 18 of 21

any stat

R. Non-Ret constitute a t St

to
See 42 u.s.c. §
I.f
s

June 29, 2005, as

17

19

17, 2007

June 3, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 19 of 21 FOR THE STATE:

Governor State

DONALD W. DEVORE e
FOR LEGAL

Date ces
ENCY:

T. Assistant State

Date

June 9, 2005, as

18 19 17, 2007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 20 of 21

FOR 'I'HE STATE:
MARTIN O'MALLEY Governor Stat of

Date

ces APPROVED FOR LEGAL SUFFICIENCY:
ROBERT T. Assistant State of

18 of 19

June 9, 2005, as amended

17, 20

June 1 2008

Case 1:05-cv-01772-JFM Document 13-1 Filed 06/24/08 Page 21 of 21

FOR THE UNITED STATES:

Date:

Section

Date: Date:

Justice
Section NW

Date:

June 9, 2005, as

19

19

17, 2007

June 23, 2008

Case 1:05-cv-01772-JFM Document 13-2 Filed 06/24/08 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

UNITED STATES OF AMERICA, iff,
vs. THE STATE OF MARYLAND,
Defendants.

1 No. 1:05-cv-01772
SECOND MODIFIED ORDER OF CONDITIONAL DISMISSAL

Pl

iff,

t States of

ca,

De

S,

State of

erests of

all concerned

ies can t be

ext

durat

of certain

sions of the Amended Settlement

at

t

le Justice Center, a

facili

le

Service l and

sions of t

i

e to the

es H. Hi

, Jr.

and

("CYF").

so

that

iance with the

Settlement

has

at

facili

endents of these

ilit s

smissed

as

from the First

tion of

these

to

lit

ies

ent

a

Settlement

, att

Case 1:05-cv-01772-JFM Document 13-2 Filed 06/24/08 Page 2 of 2

to

ir Jo

Mot

to Amend

Modified

of Conditi

ssal, to settle

s matter

s Court to

its

fi

of

ti

ssal.

revi

the Joint Mot

and

cause shown;

T IS HEREBY ORDERED

s case shall

on

s

Court's inact

s case

1

s

on June 29,

2009 or

ier

State

s

iance wi

terms

Settlement

s Court

11 reta j

ct

case until ei

June 29, 2009

or such

ier time as

State

substant

iance

terms of

Settlement

and

t

s of

CYF

1

ate

DATED

s

I 2008.

J.

Motz

st ct

-2

 
 Case 1:05-cv-01772-JFM Document 18 Filed 06/25/09 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
vs. THE STATE OF MARYLAND, et al.,
Defendants.

) Civil No.

)

1:05-cv-01772

)

)

)

)

) JOINT MOTION TO

) AMEND THE SECOND

) MODIFIED ORDER OF

) CONDITIONAL DISMISSAL

)

)

)

)

)

)

)

On June 23, 2008, the United States Department of Justice and the State of Maryland (“State”) reached a settlement agreement (“Second Amended Settlement Agreement”) concerning allegations of civil rights violations at the Baltimore City Juvenile Justice Center (“BCJJC”). On June 23, 2008, the United States filed a Joint Motion to Amend the Modified Order of Conditional Dismissal pursuant to Fed. R. Civ. P. 41(a)(2). The Second Amended Settlement Agreement was included as an exhibit to the Joint Motion to Amend the Order of Conditional Dismissal. This Honorable Court signed a Second Modified Order of Conditional Dismissal on June 26, 2008.
The United States Department of Justice and the State of Maryland have agreed that the State has complied with certain

Case 1:05-cv-01772-JFM Document 18 Filed 06/25/09 Page 2 of 4 provisions of the Second Amended Settlement Agreement, but that additional time will be required to fully implement certain other agreement provisions. Accordingly, the parties have entered into a Third Amended Settlement Agreement, attached as Exhibit 1, which deletes certain provisions of the agreement, and extends the applicability of certain provisions for two years. The parties intend the Third Amended Settlement Agreement to supercede and replace the June 29, 2005, the May 17, 2007, and the June 23, 2008 settlement agreements.
Accordingly, the United States and the Defendants move this Honorable Court to amend its Second Modified Order of Conditional Dismissal by adopting the attached Proposed Third Modified Order of Conditional Dismissal.
-2-

Case 1:05-cv-01772-JFM Document 18 Filed 06/25/09 Page 3 of 4
DATED this 25th day of June, 2009.
Respectfully submitted, FOR THE UNITED STATES: LORETTA KING Acting Assistant Attorney General Civil Rights Division SHANETTA Y. CUTLAR Chief Special Litigation Section
______/s/_____________________ DANIEL H. WEISS Deputy Chief Special Litigation Section Bar Number 08096 JOSHUA DELANEY REGINA M. JANSEN Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Daniel.Weiss@usdoj.gov Joshua.Delaney@usdoj.gov Regina.Jansen@usdoj.gov (202) 514-6255 (202) 514-0212(fax)
-3-

Case 1:05-cv-01772-JFM Document 18 Filed 06/25/09 Page 4 of 4 FOR THE STATE OF MARYLAND: ________/s/________________ KARL A. POTHIER Assistant Attorney General Bar Number 23,568 120 W. Fayette Street, 5th Floor Baltimore, Maryland 21201 PothierK.djs.state.md.us (410) 230-3135 (410) 230-8787 (fax)
-4-

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Case 1:05-cv-01772-JFM Document 18-2 Filed 06/25/09 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
vs. THE STATE OF MARYLAND, et al.,
Defendants.

) Civil No.

)

1:05-cv-01772

)

)

)

)

) THIRD MODIFIED

) ORDER OF CONDITIONAL

) DISMISSAL

)

)

)

)

)

Plaintiff, the United States of America, and Defendants, the State of Maryland (“State”), et al., have determined that the interests of all concerned parties can best be served by extending the duration of certain provisions of the Second Amended Settlement Agreement at the Baltimore City Juvenile Justice Center, a facility operated by the Maryland Department of Juvenile Services. In recognition of these interests and to avoid adversarial litigation, the parties have entered into a Third Amended Settlement Agreement, attached to their Joint Motion to Amend the Second Modified Order of Conditional Dismissal, to settle this matter and have moved this Court to amend its Second Modified Order of Conditional Dismissal.

Case 1:05-cv-01772-JFM Document 18-2 Filed 06/25/09 Page 2 of 2 Having reviewed the Joint Motion and for good cause shown;
IT IS HEREBY ORDERED that this case shall be placed on this Court’s inactive docket; this case shall be dismissed on June 29, 2011 or earlier if the State reaches substantial compliance with the terms of the Third Amended Settlement Agreement; and this Court will retain jurisdiction over the case until either June 29, 2011 or such earlier time as the State achieves substantial compliance with the terms of the Third Amended Settlement Agreement.
DATED this ____ day of ________, 2009.
J. Frederick Motz United States District Judge
-2-

 
 Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 1 of 9
APPEAL,REFER,TERMED
U.S. District Court District of New Mexico − Version 6.0 (Santa Fe) CIVIL DOCKET FOR CASE #: 6:05−cv−00036−BB−ACT

Leyba, et al v. Santa Fe County, et al Assigned to: District Judge Bruce D. Black Referred to: Magistrate Judge Alan C. Torgerson Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 01/12/2005 Date Terminated: 12/08/2006 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Elizabeth Leyba

represented by John C. Bienvenu The Rothstein Law Firm 1215 Paseo de Peralta P.O. Box 8180 Santa Fe, NM 87504 505−988−8004 Fax: 505−982−0307 Email: jbienvenu@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli Rothstein Law Firm 1215 Paseo de Peralta Santa Fe, NM 87501 505−988−8004 Fax: 505−982−0307 Email: mhd@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein Rothstein Law Firm P.O. Box 8180 1215 Paseo de Peralta Santa Fe, NM 87504−8180 505−988−8004 Fax: 505−982−0307 Email: rrothstein@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Natasha Apodaca

represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Nancy Ellin

represented by

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 2 of 9

John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Monica Garcia

represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Lucy M Marquez

represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Mark Miller

represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 3 of 9

Plaintiff Copper Perry
Plaintiff David Sandoval
Plaintiff Kristi Seibold
Plaintiff Russella Serna

represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein (See above for address) LEAD ATTORNEY

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 4 of 9

ATTORNEY TO BE NOTICED

Plaintiff
Kimberly Wright on their own behalf and on behalf of a class of similarly situated persons

represented by John C. Bienvenu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Appellant Sharon Fried
Appellant Dale A. Richman

represented by Sharon Fried 551 West Cordova Road #512 Santa Fe, NM 87505 PRO SE
represented by Dale A. Richman 1228 Osage Ave. Santa Fe, NM 87505 505−204−0683 PRO SE

V. Defendant Santa Fe County Board of Commissioners
Defendant Management &Training Corporation

represented by Grace Philips Santa Fe County Attorney's Office PO Box 276 Santa Fe, NM 87504−0276 (505) 986−6279 Fax: 986−6362 TERMINATED: 03/03/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Dickman PO Box 549 Santa Fe, NM 87504 (505) 989−9360 Fax: (505) 992−8170 Email: mikedickman@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary J. Van Luchene Keleher &McLeod, PA PO Box AA Albuquerque, NM 87103

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 5 of 9

505−346−4646 Fax: 505−346−1370 Email: gvl@keleher−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kurt Wihl P.O. Box AA Albuquerque, NM 87103 (505) 346−46464 Fax: (505) 346−1370 Email: kw@keleher−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

P. Scott Eaton PO Box 25305 Albuquerque, NM 87125−5305 505−243−1486 Fax: 505−842−0485 Email: pseaton@eatonlaw−nm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Greg Solano Santa Fe County Sheriff, in his individual and official capacities

represented by Grace Philips (See above for address) TERMINATED: 03/03/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Dickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Raymond L Sisneros Former Santa Fe County Sheriff, in his individual and official capacities

represented by Grace Philips (See above for address) TERMINATED: 03/03/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Dickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kerry Dixon in his individual and official capacities

represented by P. Scott Eaton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/12/2005
01/12/2005

# Docket Text
1 CLASS ACTION COMPLAINT FOR DAMAGES (5 Summons(es) issued) (referred to Magistrate Judge Alan C. Torgerson) (mjr) (Additional attachment(s) added on 8/14/2012: # 1 Civil Cover Sheet) (kg). (Entered: 01/13/2005)
FILING FEE PAID: on 1/12/05 in the amount of $150.00, receipt #: 504969. (mjr) (Entered: 01/13/2005)

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 6 of 9

01/12/2005 01/18/2005 01/25/2005 01/25/2005 01/25/2005 01/25/2005 01/25/2005 01/26/2005 02/03/2005 02/09/2005 02/18/2005 02/24/2005
02/28/2005 03/06/2005 03/16/2005
03/21/2005 03/29/2005 03/29/2005 04/04/2005 04/06/2005 04/06/2005
04/08/2005 04/18/2005

LETTER to counsel re; consent forms (mjr) (Entered: 01/13/2005)
2 ENTRY OF APPEARANCE for defts Management &Training &Kerry Dixon by P. Scott Eaton* (dmw) (Entered: 01/18/2005)
3 RETURN OF SERVICE executed upon deft Management &Training on 1/14/05 (mjr) (kg). (Entered: 01/25/2005)
4 RETURN OF SERVICE executed upon deft Kerry Dixon on 1/13/05 (mjr) (kg). (Entered: 01/25/2005)
5 RETURN OF SERVICE executed upon deft Santa Fe County on 1/13/05 (mjr) (kg). (Entered: 01/25/2005)
6 RETURN OF SERVICE executed upon deft Greg Solano on 1/13/05 (mjr) (kg). (Entered: 01/25/2005)
7 NOTICE by pltfs of refusal to consent to proceed before Magistrate Judge Don J. Svet (mjr) (Entered: 01/25/2005)
8 MINUTE ORDER: Case reassigned from Magistrate Judge Don J. Svet to District Judge Bruce D. Black (cc: all counsel) (mjr) (Entered: 01/26/2005)
9 ANSWER by Management &Training &Kerry Dixon [1−1]* (dmw) (Entered: 02/03/2005)
10 ENTRY OF APPEARANCE for deft Management &Train by Kurt Wihl, Gary J. Van Luchene (jrm) (Entered: 02/10/2005)
11 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by deft Raymond L Sisneros on 2/18/05 (td) (Entered: 02/18/2005)
12 ENTRY OF APPEARANCE for defts Santa Fe County Board of Commissioners, Greg Solano, &Raymond L Sisneros by Michael Dickman &Grace Philips (td) (Entered: 02/25/2005)
13 ANSWER to complaint by defts Santa Fe County, Greg Solano &Raymond L Sisneros [1−1] (pz) (Entered: 03/01/2005)
14 NOTICE by defendant Management &Training of Rule 7.1 disclosure statement* (dmw) (Entered: 03/07/2005)
15 INITIAL SCHEDULING ORDER by Magistrate Judge Alan C. Torgerson Rule 16 scheduling conference set for 4/14/05 at 2:00 pm; provisional discovery plan and IPTR due on 4/4/05 (cc: all counsel*) (sl) (Entered: 03/16/2005)
16 NOTICE/CONSENT by movant John Murray of consent to be a member of the class (td) (Entered: 03/21/2005)
17 CERTIFICATE of service by defts of initial disclosures to counsel on 3/29/05 (td) (Entered: 03/29/2005)
18 ERRATA/NOTICE OF CORRECTIONS by Santa Fe County, Greg Solano &Raymond L Sisneros to Answer [13−1] (td) (Entered: 03/29/2005)
19 PROVISIONAL DISCOVERY PLAN by the parties* (kd) (Entered: 04/04/2005)
20 CERTIFICATE of service by plaintiff of initial disclosures to counsel on 4/6/05 * (vv) (Entered: 04/06/2005)
21 ORDER by District Judge Bruce D. Black striking the qualified immunity portion of the third defense by defts MTC &Dixon in their answer [9−1] (cc: all counsel) (dmw) (Entered: 04/06/2005)
22 CERTIFICATE by defendant Management &Training Corp of service of initial disclosures to counsel on 4/7/05 (dmw) (Entered: 04/08/2005)
23 CLERK'S MINUTES: before Magistrate Judge Alan C. Torgerson Rule 16 scheduling conference held 4/14/05 * (pr) (Entered: 04/19/2005)

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 7 of 9

04/18/2005
04/25/2005 04/27/2005
08/09/2005 08/10/2005 10/17/2005 12/19/2005 12/21/2005 02/27/2006 03/02/2006 03/03/2006 03/03/2006 05/03/2006 05/31/2006 06/05/2006 06/19/2006 06/23/2006 07/06/2006 07/06/2006 07/06/2006

24 ORDER by Magistrate Judge Alan C. Torgerson adopting Attys' Provisional Discovery Plan w/changes and setting case management deadlines as follows: Discovery cutoff is 4/14/06; Motion Filing cutoff is 5/19/06; Pretrial order ddl is 8/18/06 (cc: all counsel*) (pr) (Entered: 04/19/2005)
25 CERTIFICATE by defendant Management &Training of service of first interrogatories &request for production to counsel on 4/25/05 (dmw) (Entered: 04/26/2005)
26 INITIAL PRE−TRIAL REPORT by District Judge Bruce D. Black and Magistrate Judge Alan C. Torgerson; Discovery set for 4/14/06; mtn filing ddl set for 5/19/06; proposed pretrial order due 8/18/06; pretrial conference set for 1:30 pm on 9/21/06; jury trial set for 9:00 am on 10/2/06; Estimated # of Trial Days: unable to estimate; Chances of Settlement: unknown (cc: all counsel) (dmw) (Entered: 04/27/2005)
69 Letter by Kurt Wihl (kg) (Entered: 08/14/2012)
27 STIPULATED CONFIDENTIALITY ORDER by District Judge Bruce D. Black as described herein (cc: all counsel) (vv) (Entered: 08/10/2005)
28 ORDER by Magistrate Judge Alan C. Torgerson amending case management deadlines Discovery cutoff 5/31/06; Motion Filing cutoff 6/30/06; Pretrial order ddl 8/18/06 (cc: all counsel*) (dmw) (Entered: 10/18/2005)
29 JOINT MOTION to stay proceedings until 2/28/06 * (dmw) (Entered: 12/20/2005)
30 ORDER by Magistrate Judge Alan C. Torgerson granting joint motion to stay proceedings until 2/28/06 [29−1] (cc: all counsel) (dmw) (Entered: 12/21/2005)
31 UNOPPOSED MOTION by defts Raymond L Sisneros, Greg Solano &Santa Fe County to withdraw attorney Grace Philips for defts Raymond L Sisneros, Greg Solano &Santa Fe County (pz) (Entered: 02/28/2006)
32 JOINT MOTION by all parties to stay proceedings * (ln) (Entered: 03/02/2006)
33 ORDER by Magistrate Judge Alan C. Torgerson granting joint motion to stay proceedings until 05/01/06 [32−1] (cc: all counsel) (ln) (Additional attachment(s) added on 8/14/2012: # 1 Envelope) (kg). (Entered: 03/03/2006)
34 ORDER by District Judge Bruce D. Black granting mtn to withdraw attorney Grace Philips for defts Raymond L Sisneros, Greg Solano &Santa Fe County [31−1] (cc: all counsel)* (jm) (Entered: 03/03/2006)
35 ORDER by Magistrate Judge Alan C. Torgerson that the parties have reached a settlement, closing documents are due 05/31/06 to Judge Black, as further described herein (cc: all counsel*) (ln) (Entered: 05/03/2006)
36 ORDER by Magistrate Judge Alan C. Torgerson that parties were instructed to submit their closing documentation by 06/23/06 to Judge Black, as further described herein (cc: all counsel*) (ln) (Entered: 05/31/2006)
37 NOTICE by Santa Fe County defts of counsel's non−availability 6/26/06 thru 7/7/06 (pz) (Entered: 06/06/2006)
38 NOTICE by John Murray of change of address (ln) (Entered: 06/20/2006)
39 ORDER by Magistrate Judge Alan C. Torgerson that parties to submit settlement documents by 7/10/06 to Judge Black; Status Conference set for 7/10/06 @ 10:00 a.m. (cc: all counsel*) (pr) (Entered: 06/23/2006)
40 JOINT UNOPPOSED MOTION for order for preliminary approval of class action settlement agreement (pz) (Entered: 07/06/2006)
41 AFFIDAVIT of John C Bienvenu regarding joint unopposed motion for order for preliminary approval of class action settlement agreement [40−1] (pz) (Entered: 07/06/2006)
42 CERTIFICATE of service by pltfs of Joint Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement &Affidavit of John C Bienvenu to counsel on 7/6/06 (pz) (Entered: 07/06/2006)

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 8 of 9

07/10/2006
07/19/2006 07/24/2006 08/14/2006 08/28/2006 09/18/2006 09/18/2006 09/20/2006 11/02/2006 11/03/2006 11/03/2006 12/01/2006 12/01/2006 12/01/2006 12/01/2006 12/01/2006 12/01/2006 12/01/2006 12/04/2006

43 NOTICE of hearing by the direction of Judge Bruce D. Black setting hearing on mtn for order for preliminary approval of class action settlement agreement [40−1] @ 10:30 am on 7/19/06 in Albuquerque, NM (cc: all counsel)* (jm) (Entered: 07/11/2006)
44 CLERK'S MINUTES: before District Judge Bruce D. Black re: motion for order for preliminary approval of class action settlement agreement [40−1] ; hearing held 7/19/06 C/R: J. Bean* (ln) Modified on 07/20/2006 (Entered: 07/19/2006)
45 ORDER by District Judge Bruce D. Black granting joint unopposed motion for preliminary approval of class action settlement agreement and approving the form and manner of notice [40−1] (cc: all counsel) (ln) (Entered: 07/24/2006)
46 STIPULATED ORDER by District Judge Bruce D. Black appointing Settlement Services, Inc. of Tallahassee, Florida as class settlement administrator (cc: all counsel) (ln) (Entered: 08/14/2006)
47 STIPULATED ORDER by District Judge Bruce D. Black modifying the procedures related to payment of claims administration costs (cc: all counsel) (mjr) (Entered: 08/28/2006)
48 JOINT UNOPPOSED MOTION by parties for order for entry of stipulated order amending preliminary approval of settlement agreement and the form and manner of notice * (ln) (Entered: 09/18/2006)
49 SUPPLEMENT re motion for order for entry of stipulated order amending preliminary approval of settlement agreement and the form and manner of notice [48−1]* (ln) (Entered: 09/18/2006)
50 ORDER by District Judge Bruce D. Black granting the joint motion for order for entry of stipulated order amending approval of settlement agreement and the form and manner of notice [48−1] (cc: all counsel) (mjr) (Entered: 09/20/2006)
51 MOTION by pltf for extension of deadline for submission of claim forms * (ln) (Entered: 11/02/2006)
52 ORDER by District Judge Bruce D. Black granting pltfs' mtn for extension of deadline for submission of claim forms until 11/27/06 [51−1] (cc: all counsel) (td) (Entered: 11/03/2006)
53 RESPONSE by deft Management &Training Corporation and Kerry Dixon to pltfs' motion for entry of order extending deadline for submission of claim forms [51−1]* (ln) (Entered: 11/06/2006)
54 JOINT MOTION for final approval of class action settlement * (dmw) (Entered: 12/01/2006)
55 MEMORANDUM by plaintiffs in support of motion for final approval of class action settlement (approval of reasonable attorneys fees, costs &incentive payments) [54−1]* (dmw) (Entered: 12/01/2006)
56 AFFIDAVIT of John C Bienvenu in support of joint motion for final approval of class action settlement [54−1]* (dmw) (Entered: 12/01/2006)
57 AFFIDAVIT of Robert R Rothstein in support of joint motion for final approval of class action settlement [54−1]* (dmw) (Entered: 12/01/2006)
58 AFFIDAVIT of Elizabeth Leyba in support of joint motion for final approval of class action settlement [54−1] (dmw) (Entered: 12/01/2006)
59 AFFIDAVIT of Mark Patton in support of joint motion for final approval of class action settlement [54−1]* (dmw) (Entered: 12/01/2006)
60 AFFIDAVIT of Paul Bardacke in support of motion for final approval of class action settlement (approval of attorneys fees &costs) [54−1]* (dmw) (Entered: 12/01/2006)
61 NOTICE by District Judge Black relocating the 12/08/06 hearing at 10:00 am to USDC Rio Grande courtroom, in Albuquerque, NM* (ln) (Entered: 12/04/2006)

Case: 6:05-cv-36 As of: 07/25/2013 03:40 PM MDT 9 of 9

12/04/2006 12/08/2006
12/11/2006 09/25/2007 09/28/2007 12/21/2007

62 AFFIDAVIT of Mark H. Donatelli in support of joint motion for final approval of class action settlement [54−1]* (ln) (Entered: 12/04/2006)
63 FINAL JUDGMENT: by District Judge Bruce D. Black granting joint unopposed motion for final approval of class action settlement [54−1] dismissing case (cc: all counsel) (ln) (Entered: 12/08/2006)
64 CLERK'S MINUTES: before District Judge Bruce D. Black re final settlement approval C/R: J. Bean (*) (ln) (Entered: 12/11/2006)
66 NOTICE OF APPEAL to the district court from the judgment or final order of the case administrator by Dale A. Richman. (mjr) (Entered: 10/19/2007)
65 NOTICE OF APPEAL of the claims decision by the claims administrators pursuant to the settlement agreement by Sharon Fried. (mjr) (Entered: 10/19/2007)
68 NOTICE OF WITHDRAWAL OF DOCUMENT as to 65 Notice of Appeal by Sharon Fried (mjr) (Entered: 12/21/2007)

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ELIZABETH LEYBA, NATASHA APODACA, NANCY ELLIN, MONICA GARCIA, LUCY M. MARQUEZ, MARK MILLER, COPPER PERRY, DAVID SANDOVAL, KRISTI SEmOLD, RUSSELLA SERNA, and KIMBERLY WRIGHT, on their own behalf and on behalf ofa class of similarly situated persons,

Plaintiffs,

vs.

No. CN-05-0036 BB/ACT

SANTA FE COUNTY BOARD OF

COMMISSIONERS; MANAGEMENT

AND TRAINING CORPORATION;

SANTA FE COUNTY SHERIFF GREG

I

SOLANO, in his individual and official

f

capacities; FORMER SANTA FE COUNTY

, ,

SHERIFF RAYMOND L. SISNEROS, in his

I

individual and official capacities; and KERRY

i.

DIXON, in his individual and official capacities,

I

Defendants.

AFFIDAVIT OF MARK H. DONATELLI IN SUPPORT OF JOINT UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT AND APPROVAL OF ATTORNEYS FEES, COSTS AND INCENTIVE PAYMENTS
STATEOFNEWMEXICO) ) ss:
COUNTY OF SANTA FE )
MARK H. DONATELLI, being first duly sworn upon his oath, deposes and states as
follows:
1. This Affidavit is submitted in support of the Joint Unopposed Motion for Final
Approval of Class Action Settlement Agreement and Memorandum in Support of Approval of

Attorneys Fees, Costs and Incentive Payments. The facts set forth herein are true of my own

personal knowledge and I am competent to testify thereto.

2. I have been licensed in the State of New Mexico since 1976. I am licensed in

federal court in the district of New Mexico, the district of Arizona and in the Tenth Circuit Court

of Appeals. I am a New Mexico Board of Legal Specialization recognized specialist in criminal

law. I have been listed in the Best Lawyers in America since 1989. I have a Martindale Hubbell

AV rating. I am a partner at Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu,

LLP.

3. My admission dates to federal courts are: District of New Mexico May 23, 1983,

Tenth Circuit Court of Appeals September 21, 1990 and District of Arizona July 8, 1991. 4. Since 1983, I have served as counsel for the Plaintiff Class in the New Mexico

I,,-

prison conditions lawsuit, Duran v. Johnson. In addition, I have been counsel of record in dozens

of civil rights actions against private corrections companies, the State of New Mexico, counties

and municipalities involving prisons and jails.

,

5. In addition to this case, I am counsel of record for the plaintiffs in the following

~

class action lawsuits: Lira, et aT. v. Dona Ana County Board o/Commissioners, ef al., No. CIV

06-0179 WPJIWPL (co-lead counsel) and Rodriguez v. Dona Ana County Boord of

Commissioners, et 01., No. CIV 06-0416 JHlRHS (co-lead counsel).

6. The pertinent facts regarding this litigation are set forth in the Affidavit of John C.

Bienvenu and are incorporated herein by reference. My current billing rates vary depending on

the type of doing; i.e., whether I am representing privately retained criminal defense clients, or

~

court-appointed clients, or representing plaintiffs or defendants in civil litigation matters. For

I!

2

complex civil litigation matters on behalf of a private client, my current billing rate is $300 per
,

hour. To my knowledge, this rate is consistent with what other similarly experienced attorneys

r

charge in this locality. In this case. fee agreements were entered into with each of the named

!

Plaintiffs, providing we would be entitled to 33 113% of any recovery (plus gross receipts tax),

r

l-

but would receive no compensation in the event no recovery was obtained.

I

8. This case was hard-fought, difficult, and time-consuming, and we devoted

substantial resources to this litigation without any assurance that there would be any recovery at

all. The settlement that we were able to obtain with the Defendants represents one of the best

settlements that has ever been attained in similar litigation. It is especially significant to me that

as a direct result of our efforts, the unconstitutional strip search policies in place at the Santa Fe

County Detention Facility were abolished, and have since been completely revised.

I "

9. It is my considered opinion that the settlement fund established here is a very

meaningful benefit to the members of the class, that the change in policies effected by this

I

lawsuit is an extremely significant benefit to the community, and that the average class member's

chances of obtaining better results by continuing the litigation or by pursuing separate claims

would be uncertain at best.

10. I am familiar with the dedication and effort put into this case by the Class

Representatives. They worked tirelessly and selflessly on behalf of the absent class members.

They always put the interests of the class ahead of their own interests. They fully deserve the

incentive payments that were agreed to by the Defendants.

t
3

FURTHER AFFIANT SAYETH NAUGHT.
SUBSCRIBED AND SWORN TO before me this~ day of December, 2006, at Santa Fe, New Mexico. My commission expires:
,i~
::
, , , i
t,
4

 
 SANTA FE STRIP SEARCH LAW SUIT CLASS ACTION CLAIM FORM
LEYBA, et al., v. SANTA FE BOARD OF COMMISSIONERS, et al.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
No. CIV-05-0036 BB/ACT
FILL OUT THIS FORM IF YOU WERE STRIP SEARCHED AT INTAKE AND BOOKING AT THE SANTA FE COUNTY ADULT DETENTION CENTER BEFORE YOU WERE ARRAIGNED BETWEEN JANUARY 12, 2002, AND JULY 6, 2006. (ARRAIGNMENT MEANS THE INITIAL APPEARANCE BEFORE A JUDGE EITHER BY VIDEO CONFERENCE IN THE DETENTION FACILITY OR IN COURT AT WHICH A PLEA IS ENTERED TO THE CHARGES AND AT WHICH CONDITIONS OF RELEASE ARE DISCUSSED.) ALL MEMBERS OF THIS CLASS WHO QUALIFY MAY RECEIVE A MONETARY AWARD.
You must complete and submit this claim form no later than November 27, 2006 to qualify for payment from settlement of the class action strip search case against Santa Fe County, Management & Training Corporation, and the other named Defendants. If you do not return a completed claim form by the due date you will receive NO MONEY from the settlement.
CLASS ACTION CLAIM FORM

___________________________________________________________________________________________
Name

____________________________________________________________________

Address

(Apt. #)

____________________________________________________________________

City

State

Zip Code

Phone Number: (_____)__________________________________

Alternate Phone Number: (_____)__________________________

NM Driver’s License No. _________________________________

Social Security Number: ___________-_________-________________

Date of Birth: ________________________________

Gender:

Male_____ Female_____

Please list all other names, Social Security Numbers, and dates of birth you may have used at intake and booking:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

* * * * * * * * * * * * * * *

INSTRUCTIONS: Answer each of the following questions by placing a check in the “yes” or “no” box at the end of the question. If you check “yes” as the answer to any question and it is requested, you MUST submit an explanation, description of the circumstances, photographs, medical verification, witness statements, or other such documentation necessary to support your answer. If you do not provide the requested explanation, description or documentation, your “yes” answer will be disregarded.

PLEASE PRINT YOUR ANSWERS CLEARLY

CAUTION: THESE ANSWERS ARE GIVEN UNDER PENALTY OF PERJURY. ANY MATERIAL FALSE STATEMENTS WILL RESULT IN A DENIAL OF THE CLAIM.

* * * * * * * * * * * * * * *

1. Were you strip searched during intake and booking at the Santa Fe County Adult Detention Center before arraignment at any time between January 12, 2002, and July 6, 2006?

YES 

NO 

If so, state the date of each time that you were strip-searched during intake and booking.

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

2

If you answered “yes” to the above, or if you are unsure of the date (in other words, if you were strip searched but you are unsure whether or not it happened between January 12, 2002 and July 6, 2006), please continue to answer the questions below.

2. * Do you have a history of being the prior victim of sexual abuse that is documented in any records of courts, law enforcement agencies or medical or healthcare providers? If so, please explain this history below, and provide the following documents: original or true and correct copies of reports from law enforcement agencies and/or reports prepared by governmental agencies, healthcare providers, or mental health care providers.

YES 

NO 

Explanation: __________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

3. *Did you have any significant physical deformities that were exposed as a consequence of any strip search, such as a missing limb or body part or substantial scarring, that would otherwise be hidden by clothing? If so, describe the physical deformity in detail and/or submit a photograph.

YES 

NO 

Explanation: __________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

3

4. *If you are female, were you menstruating at the time of the strip search?

YES 

NO 

If you were strip searched more than one time, provide the date(s) of the strip search(es) that took place when you were menstruating: ___________________________________________________________________________

______________________________________________________________________________

5. * Did you receive documented formal counseling by a counselor or therapist or documented medical treatment because of any strip search, within 60 days following the strip search? If so, please explain this counseling or medical treatment below, and provide the following documents: original or true and correct copies of records prepared by healthcare providers at or near the time of the services that were provided (if the records were prepared more than 30 days after the time that services were provided, they will not be considered).

YES 

NO 

The name, address and telephone number(s) of the counselor(s), therapist(s) or medical care provider(s), the dates of the visits and the treatment received are as follows:

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

6. *Were you touched by a corrections officer on the breasts, genitals or buttocks during the search?

YES 

NO 

If so, describe completely, including a description of the corrections officer, the manner of touching, and the date(s) and location in the facility where you were when the touching occurred:

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

4

7.* Were you an inmate in any state or federal detention center or prison at any time within five years before your first strip search upon intake and booking at the Santa Fe County Adult Detention Center?

YES 

NO 

8.* Were you an inmate in any county, city or juvenile detention facility after being convicted of a crime at any time within five years before your first strip search upon intake and booking at the Santa Fe County Adult Detention Center?

YES 

NO 

* If you answered “yes” to any of these questions you may be contacted and asked to provide further information.

ANY MATERIAL FALSE STATEMENT WILL RESULT IN DENIAL OF YOUR CLAIM.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF NEW MEXICO THAT THE ABOVE IS TRUE AND CORRECT.
DATED: _______________________
SIGNATURE:____________________________________

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Note: Not all persons strip searched at the Santa Fe County Adult Detention Center during the class period (January 12, 2002 to July 6, 2006) will be entitled to payment. If you were charged with a crime involving drugs, weapons, or violence substantially similar to those charges provided as examples in Exhibit 3 of the Stipulation of Settlement, for instance, you may not be entitled to payment under this settlement.
The information given here is private, and will be used only for purposes of evaluating and administering your claim. Your information may be reviewed by attorneys for any of the parties for accuracy. Verification of claims may involve review of your federal, state and county detention records. The information will not be released to the public. DO NOT CALL OR WRITE TO THE CLERK OF THE COURT FOR INFORMATION REGARDING THE PROPOSED CLASS SETTLEMENT. If you have any questions about this lawsuit, write to the Claims Administrator, Post Office Box 670, Tallahassee, FL 32302-0670, or visit the website at www.santafestripsearch.com.
THIS CLAIM FORM MUST BE SIGNED AND RETURNED WITH A POSTMARK NO LATER THAN NOVEMBER 27, 2006. Use the enclosed return envelope and mail the completed claim form and any supporting information to:
CLAIMS ADMINISTRATOR Post Office Box 670 Tallahassee, FL 32302-0670
If you need assistance in completing this form, please feel free to contact the Administrator Post Office Box 670, Tallahassee, FL 32302-0670, at toll-free (866) 854-8632, or Plaintiffs’ Class Counsel, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenberg and Bienvenu, LLP, 1215 Paseo de Peralta, Santa Fe, New Mexico 87501; Telephone (505) 988-8004; Facsimile (505) 982-0307.
If you qualify for payment and you would like your settlement check mailed to an address other than that on the first page of the Claim Form, provide it here:
Name or c/o_____________________________________________________________
Street Address (or Post Office Box)_________________________________________
City_________________________________, State_______ Zip Code______________
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