United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
PLAINTIFFS' AND PLAINTIFF-INTERVENORS' JOINT MOTION
FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF
PURSUANT TO COURT ORDER, Doc. Nos. 256 AND 1222-3, AND
MEMORANDUM IN SUPPORT (Doc. No. 1247) (Joint Motion),
Plaintiffs and Plaintiff Intervenors (Movants) ask the Court
to order the County Defendants (the County or
to show cause why they are not in contempt of the Settlement
Agreement approved by the Court on June 27,
and other orders of the Court. Movants also ask the Court to
order additional remedial relief. The County opposes the
Joint Motion. See DEFENDANT BERNALILLO COUNTY BOARD
OF COMMISSIONER'S RESPONSE TO PLAINTIFFS' AND
PLAINTIFF INTERVENORS' JOINT MOTION FOR ORDER TO SHOW
CAUSE AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT
ORDER, Doc. Nos. 256 AND 1222-3, AND MEMORANDUM IN SUPPORT
(Doc. No. 1256) (Response). Movants filed a reply brief.
See PLAINTIFFS' AND PLAINTIFF-INTERVENORS'
REPLY TO RESPONSE TO MOTION FOR ORDER TO SHOW CAUSE, ETC.,
DOC. NO. 1247 (Doc. No. 1261) (Reply).
March 2, 2017, the Court allowed the American Federation of
State, County and Municipal Employees Council 18, Local 2499,
AFL-CIO, CLC (the Union) to intervene for purposes of
addressing the Joint Motion. See AFSCME COUNCIL 18,
LOCAL 2499'S BRIEF OPPOSING JOINT MOTION FOR ORDER TO
SHOW CAUSE [DOC NO. 1247] (Doc. No. 1278). The Union
represents a large majority of MDC's security employees.
13, 2017, the Court held an evidentiary hearing. At the end
of the hearing, the Court asked Movants, the County, and the
Union to file post-hearing briefs. See DEFENDANT
BERNALILLO COUNTY BOARD OF COMMISSIONERS' CLOSING
ARGUMENT IN RESPONSE TO PLAINTIFFS' AND PLAINTIFF
INTERVENORS' JOINT MOTION FOR ORDER TO SHOW CAUSE AND FOR
FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER DOC. NOS. 256
AND 1222-3 (Doc. No. 1315); PLAINTIFFS' AND PLAINTIFF
INTERVENERS' POST-HEARING BRIEF REGARDING Doc. No. 1247
(Doc. No. 1316); and AFSCME COUNCIL 18, LOCAL 2499'S
POST-HEARING BRIEF (Doc. No. 1317). The transcript of the
hearing was filed on July 6, 2017. (See Doc. No.
argue that the County is violating certain provisions of the
SETTLEMENT AGREEMENT (Doc. No. 1222-1) (SA) and CHECK-OUT
AUDIT AGREEMENT No. 2: THE PROVISION OF MENTAL HEALTH
SERVICES AT THE BERNALILLO COUNTY METROPOLITAN DETENTION
CENTER (Doc. No. 1222-3) (COA2). Specifically, Movants claim
that the County is failing to provide the requisite training
to security employees who work in units where inmates with
mental illness and mental disabilities (special management
inmates) are housed (special management units). Movants argue
that under the 2015 Collective Bargaining Agreement (CBA)
with the Union, the County must allow MDC security employees,
who do not have the necessary training or specialized skills,
to bid according to seniority into positions in special
management units. Movants further assert that when those
security employees are accused of misconduct, MDC does not
reassign them and timely investigate the allegations of
misconduct. Movants contend that by failing to train,
supervise, and reassign security employees, the County
violates COA2 and the Court's orders. In addition,
Movants assert these failures violate the Americans with
Disabilities Act, 42 U.S.C. § 12132 and Section 504 of
the Rehabilitation Act, 29 U.S.C. § 794 (RA) (together,
STANDARD OF REVIEW
Court retains the authority and jurisdiction to enforce its
own orders. Spallone v. United States, 493 U.S. 265,
276 (1990). In other words, a federal court is “not
reduced to issuing injunctions against [public officials] and
hoping for compliance. Once issued, an injunction may be
enforced.” Hutto v. Finney, 437 U.S. 678, 690
(1978). Moreover, the Court expressly retained jurisdiction
to enforce the SA. (SA ¶ 20.)
and COA2 are consent decrees, “that [are] subject to
the rules generally applicable to other judgments and
decrees.” Rufo v. Inmates of Suffolk County
Jail, 502 U.S. 367, 378 (1992). A party to a consent
decree that is aggrieved by the other's noncompliance may
apply for an order to show cause why the noncompliant party
should not be held in contempt. Kokkonen v. Guardian Life
Ins. Co. of America, 511 U.S. 375, 381-82 (1994).
court issues an order to show cause, a party may be held in
contempt only if the movant establishes, by clear and
convincing evidence, “that a valid court order existed,
that the [party] had knowledge of the order, and that the
[party] disobeyed the order.” Reliance Ins. Co. v.
Mast Const. Co., 159 F.3d 1311, 1315 (10th Cir. 1998)
(citation omitted). A party may avoid a finding of contempt
if it demonstrates that it attempted compliance in good faith
based on a reasonable interpretation of the order. See
Braintree Labs., Inc. v. Nephro-Tech, Inc., 99 F.Supp.2d
1300, 1303 (D. Kan. 2000). Also, if the court finds that the
party has taken all “reasonable steps and substantially
complies with the court order, ” the court may decline
to find civil contempt. Id.
Civil contempt . . . is a severe remedy which should be used
only when necessary to sustain the authority of the court.
NLRB v. Shurtenda Steaks, Inc., 424 F.2d 192, 194
(10th Cir. 1970). . . . The movant must establish that the
alleged contemnor has not diligently attempted to comply in a
reasonable manner with a court order. King v. Allied
Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995).
Technical or inadvertent violations of a court order do not
support a finding of civil contempt. Universal Motor Oils
Co. v. Amoco Oil Co., 743 F.Supp. 1484, 1487 (D. Kan.
T.Y. by Petty v. Bd. of Cty. Comm'rs of Cty. of
Shawnee, 912 F.Supp. 1424, 1427-28 (D. Kan. 1996).
Further Remedial Relief under the ADA
ask the Court to order additional remedial relief under the
ADA. Specifically, Movants ask the Court to order MDC to
allow only security employees with specialized training,
skills, and temperament to work in special management units.
See McNeil v. Guthrie, 945 F.2d 1163, 1165-66 (10th
Cir. 1991) (finding that individuals who file suit
complaining about unconstitutional prison conditions must
seek relief through an ongoing prison-conditions class
Tenth Circuit Court of Appeals explained,
Title II of the ADA provides that “no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. This provision extends
to discrimination against inmates detained in a county jail.
See Penn. Dep't of Corr. v. Yeskey, 524 U.S.
206, 210 (1998).
Robertson v. Las Animas Cty. Sheriff's
Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007).
Discrimination under the ADA may include failure to make
reasonable accommodations to the needs of a disabled person.
See Tennessee v. Lane, 541 U.S. 509, 531 (2004)
(stating that Congress recognized “that failure to
accommodate persons with disabilities will often have the
same practical effect as outright exclusion” or
discrimination). The “ADA thus not only prohibits
public entities from discriminating against the disabled, it
also prohibits public entities from excluding the
disabled from participating in or benefitting from a
public program, activity, or service ‘solely by reason
of disability.'” Romero v. Bd. of Cty.
Commissioners for the Cty. of Curry, 202
F.Supp.3d 1223, 1265 (D.N.M. 2016) (emphasis in original)
(citations omitted). Thus, if a detention facility provides
programs for inmates, such as mental health treatment or
educational programs, it must do so on non-discriminatory
terms. Robertson, 500 F.3d at 1199.
Robertson, the Tenth Circuit reversed the dismissal
of an ADA claim brought by a hearing-impaired inmate who was
not provided a hearing aid that would have allowed him to
participate in his probable cause hearing. Id. at
1199. Even though the inmate's attorney represented him
at the hearing and even though the charges against the inmate
were dismissed, the Tenth Circuit determined that summary
judgment dismissing the inmate's ADA claim was
Because Mr. Robertson was detained at a facility that permits
detainees to attend their probable cause hearings, Mr.
Robertson was eligible to participate in this program. . . .
Even though his presence was not required, because the
facility makes the activity available to detainees in
general, it must do so on nondiscriminatory terms. . . .
Furthermore, . . . he was denied the ability to participate
in his probable cause hearing to the same extent as
Id. (citations omitted). The same is true for
mentally disabled inmates. If a detention facility
consistently denies mentally disabled inmates the benefits of
therapeutic programs, by subjecting them to excessive force
or excessive lockdowns for behavior that is a result of their
disability, the detention facility may violate the ADA.
Cf. Jones v. Smith, 109 F. App'x 304, 309 (10th
Cir. 2004) (holding that while the inmate's work
assignment may have been the product of incompetence or
personal spite, the inmate's ADA claim failed because he
did not allege that his assignment to medically inappropriate
work was done because of his disability).
Settlement Agreement and the Check-Out Audit Agreements
incorporates three Check-Out Audit Agreements (Doc. Nos.
1222-2, 1222-3, and 1222-4). The Check-Out Audit Agreements
outline “definitive, specific, and measurable tasks to
be accomplished in order to achieve substantial
compliance” in each area covered. Check-Out Audit
Agreement No. 1 (COA1) governs medical services. As stated,
COA2 governs mental health services. Check-Out Audit
Agreement No. 3 (COA3) governs general conditions of
confinement. Each Check-Out Audit Agreement provides:
“the parties understand and agree that this Agreement
incorporates (but does not supersede) all extant orders and
agreements.” (COA 1, 2, and 3 at p. 1.)
complain that the County is violating ¶ G of COA2, which
requires the Court's mental health expert Dr. Jeffrey
Metzner to determine whether MDC sufficiently trains its
security employees to work with special management inmates:
G. Basic Mental Health Training
1) Whether MDC provides adequate pre-service and annual
in-service basic training to Qualified Medical and Mental
Health Staff and security staff that addresses mental health
needs. MDC will provide no less than forty (40) hours of
2) Whether MDC provides adequate specialized training for all
security staff on specialized mental health units.
at p. 15.) COA2 also requires Dr. Metzner to determine (1)
whether MDC provides “adequate care for inmates'
serious mental health needs”; (2) whether MDC mental
health care staff and security staff communicate sufficiently
about special management inmates; and (3) whether MDC follows
a proactive program of care for special management inmates.
(COA2 at 16-22.) COA2 incorporates an ORDER (Doc. No. 256)
(the 1996 ORDER), that states in relevant part,
security staff shall receive training regarding the
identification of symptoms of mental or developmental
disabilities and regarding appropriate methods for dealing
with residents with mental or developmental disabilities.
Correctional officers who work in . . . units in which people
with mental or developmental disabilities are congregated
shall receive specialized training to adequately prepare them
for working with people with mental or developmental
disabilities. The specialized training shall be no less than
(Id. at 12.)
2011, the MDC established a 40-hour mental health training
program in its cadet academy; therefore, as to security
employees hired after 2011, the MDC has complied with the
“pre-service” training requirement of COA2 ¶
G. (County Post-Hrg Brief Ex. A (Doc. No. 1315-1)). However,
about half of the security employees eligible to work in
special management units have not received the 40 hours of
basic mental health training. (Tr. 72:25-74:5; County
Post-Hrg Brief Ex. A at 2.) MDC offers 8 hours of