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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Scott Douglas Nordstrom,

Plaintiff,

v. 

Charles L. Ryan, Director of the Arizona 

Department of Corrections; James O’Neil 

Warden, ASPC Eyman; and Staci Fay,

Deputy Warden, Browning Unit,

Defendants.

No. CV15-02176-PHX-DGC

ORDER 

Before the Court is John E. Sansing’s motion to enforce a settlement agreement 

between Plaintiff Scott Nordstrom and Defendants Arizona Department of Corrections 

(“ADOC”) and others. Doc. 117. The motion is fully briefed, and oral argument has not 

been requested. For the following reasons, the Court will deny the motion.

I. Background.

In October 2015, Plaintiff Nordstrom, a death-sentenced inmate in state custody, 

brought an action against Defendants for violations of the Eighth and Fourteenth 

Amendments related to death row conditions. Doc. 1. Having already planned to make 

death row inmates eligible for reclassification to close-custody housing, ADOC settled 

with Plaintiff on March 3, 2017 (“the Settlement”). Doc. 39. The Settlement provided:

[ADOC will] eliminate the existing permanent classification of inmates with 

a death sentence to maximum custody units, and [] permit death row inmates 

to seek and obtain re-classification to close custody status based on the 
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criteria currently available to non-death sentenced maximum custody 

inmates[;]

Death sentenced inmates who are re-classified to close custody status may 

be housed as a group, rather than with non-death sentenced inmates, 

provided, however, that nothing herein shall alter existing protocols and 

procedures relating to protective custody assignments.

[The] conditions and restrictions of confinement, and quality of facilities, 

utilized for close custody housing for death sentenced inmates shall be 

equivalent to that of existing close custody housing facilities used for nondeath sentenced inmates.

***

Plaintiff’s current disciplinary record meets the criteria for reclassification to 

close custody and he shall be reclassified to such status and transferred to 

such housing upon adoption of the above referenced amendments, within one 

hundred twenty (120) days of this stipulation. Nothing in this stipulation 

shall be interpreted to require Plaintiff to remain classified as a close custody 

inmate if he no longer meets the requirements for close custody 

classification.

Id. at 2 ¶¶ 1-3, 6. Based on this settlement agreement, the Court dismissed Plaintiff’s

action, incorporated the Settlement terms in its order, and retained jurisdiction to enforce 

the agreement. Doc. 45.

In September 2018, Plaintiff Nordstrom filed a motion to enforce the settlement 

agreement, asserting that Defendants failed to provide other inmates with the “‘conditions 

and restrictions of confinement, and quality of facilities’ that are ‘equivalent to that of 

existing close custody housing facilities used for non-death sentenced inmates.’” Doc. 60 

at 5. The Court denied the motion, holding that Plaintiff Nordstrom could not seek relief 

on behalf of other inmates because he “did not bring this case as a class action, and the 

Settlement was only between Plaintiff and Defendant.” Doc. 72 at 6.

John E. Sansing has never been a party to this action, but nonetheless seeks relief 

under the Nordstrom settlement. He asserts that he qualifies for close custody status, and

that Defendants have breached the Settlement by denying him an interrelation phone call 
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with his wife on the basis of his death-sentenced status. Doc. 117 at 2. Sansing sought 

relief through ADOC’s grievance process, requesting that the policy be changed to allow 

all death-sentenced inmates to make and receive interrelation phone calls if they otherwise 

qualify based on their institutional risk score and custody status. Id. at 2. In response, 

ADOC scheduled the phone call between Sansing and his wife (who is also incarcerated) 

and stated that no further action would be taken to amend the policy. Doc. 117 at 16.

II. Jurisdiction.

“In general, ‘[e]nforcement of [a] settlement agreement . . . whether through award 

of damages or decree of specific performance, is more than just a continuation or renewal 

of the dismissed suit, and hence requires its own basis for jurisdiction.’” Alvarado v. Table 

Mountain Racheria, 508 F.3d 1008, 1017 (9th Cir. 2007) (quoting Kokkonen v. Guardian 

Life Ins. Co. of Am., 511 U.S. 375, 378 (1994)). But “a federal court has jurisdiction to 

enforce a settlement agreement in a dismissed case when the dismissal order incorporates 

the settlement terms, or the court has retained jurisdiction over the settlement contract” and 

a party alleges a violation of the settlement. Id. Under those circumstances, a breach of 

the agreement is a violation of the court’s order and the court has jurisdiction to enforce 

the agreement. Kokkonen, 511 U.S. at 381. Where an order grants relief to a nonparty, the 

Court may enforce the order using the same procedures available to a party. See Fed. R. 

Civ. P. 71. Because the Court’s order in this case incorporated the terms of the Settlement 

and retained jurisdiction (Doc. 45), the Court has jurisdiction to hear Sansing’s motion to 

enforce the Settlement if the order grants him relief as a nonparty. 

III. Legal Standard.

In Arizona, “settlement agreements, including determinations as to the validity and 

scope of release terms, are governed by general contract principles.” Emmons v. Sup. Ct. 

for Cty. of Maricopa, 968 P.2d 582, 585 (Ariz. Ct. App. 1998); Knudsen v. C.I.R., 793 F.3d 

1030, 1035 (9th Cir. 2015); see Adams v. Johns-Manville Corp., 876 F.2d 702, 709 (9th 

Cir. 1989) (a motion to enforce a settlement agreement is essentially “an action to 

specifically enforce a contract”). Interpretation of a contract is generally a matter of law,
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see Powell v. Washburn, 125 P.3d 373, 375 (Ariz. 2006), but whether a party has breached 

the contract is a question for the trier of fact, see Walter v. F.J. Simmons, 818 P.2d 214, 

218-19 (Ariz. Ct. App. 1991).

IV. Standing.

Defendants argue that Sansing lacks standing and cite to the Court’s previous order

finding that seven death-sentenced inmates lacked third-party standing to enforce the 

Settlement. Doc. 110. The seven inmates affected by that order asserted standing under 

Rule 71 and the Ninth Circuit’s decision in Hook v. Ariz. Dep’t of Corr., 972 F.2d 1012, 

1014 (9th Cir. 1992). Id. at 4. Sansing does not assert standing on those bases, but he does 

state that he is a beneficiary to the Settlement. Doc. 117 at 1.

For a person to obtain relief as a third-party beneficiary of a contract in Arizona, the 

intent to benefit the person must be found in the contract itself. Norton v. First Fed. 

Savings, 624 P.2d 854, 856 (1981) (citing Irwin v. Murphey, 302 P.2d 534 (1956)). The 

contemplated benefit must be both intentional and direct. Id. It is not enough that a 

contract may operate to a person’s benefit – it “must appear that the parties intended to 

recognize the [person] as the primary party in interest and as privy to the promise.” 

Sherman v. First Am. Title Ins., 38 P.3d 1229, 1232 (Ariz. Ct. App. 2002) (citation omitted) 

(emphasis in original); Tanner Cos. v. Ins. Mktg. Servs., Inc., 743 P.2d 951, 953 (Ariz. Ct. 

App. 1987) (stating a party may not recover as a third party beneficiary “if it is merely an 

incidental beneficiary . . . rather than one for whose express benefit the [contract] was 

made”). Whether a person is an incidental or direct beneficiary is a question of contract 

construction for the Court. Maganas v. Northroup, 663 P.2d 565, 567 (1983).

The Court cannot conclude that the parties to the Settlement intended to recognize 

Sansing as the primary party in interest and as privy to the Settlement. Sherman, 38 P.3d 

at 1232. The contract does not name Sansing or indicate that he is an intended direct 

beneficiary, and Plaintiff Nordstrom did not bring this case as a class action or as a suit on 

behalf of other inmates. Further, the Court did not enter a consent decree after finding
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broad constitutional or statutory violations; the Court simply accepted a settlement 

negotiated between the parties to this case.

The Settlement specifically provides relief for Plaintiff Nordstrom, who clearly was

the primary party in interest and the recipient of the Settlement guarantee. Basurto v. Utah 

Const. & Mining Co., 485 P.2d 859, 863 (Ariz. Ct. App. 1971). Sansing is an incidental 

beneficiary, not a primary party in interest and privy to the Settlement.

V. Conclusion.

Sansing does not have standing as an intended third-party beneficiary to enforce the 

Settlement, and the Court will deny his motion. Nothing in the Court’s order should be 

construed as ruling on the merits of Sansing’s allegations of unequal treatment, which, if 

viable, must be asserted in a separate lawsuit.1

IT IS ORDERED that the motion to enforce the settlement (Doc. 117) is denied. 

Dated this 1st day of October, 2019.

 

1 Defendants also assert that even if Sansing had standing to enforce the agreement, 

his claim is moot because ADOC granted his request for an interrelation phone call. 

Docs. 117 at 16, 118. The Court disagrees because Sansing is seeking amendment to the 

policy on interrelation phone calls, not the ability to make one call. Doc. 117 at 1-3.