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McClendon v. City of Albuquerque

United States District Court, D. New Mexico

September 11, 2017

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


         In PLAINTIFFS' AND PLAINTIFF-INTERVENORS' JOINT MOTION FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER, Doc. Nos. 256 AND 1222-3, AND MEMORANDUM IN SUPPORT (Doc. No. 1247) (Joint Motion), Plaintiffs and Plaintiff Intervenors (Movants) ask the Court to order the County Defendants (the County or MDC)[1] to show cause why they are not in contempt of the Settlement Agreement approved by the Court on June 27, 2017[2] 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).

         On March 2, 2017, the Court allowed the American Federation of State, County and Municipal Employees Council 18, Local 2499, AFL-CIO, CLC (the Union) to intervene for purposes of addressing the Joint Motion. See AFSCME COUNCIL 18, LOCAL 2499'S BRIEF OPPOSING JOINT MOTION FOR ORDER TO SHOW CAUSE [DOC NO. 1247] (Doc. No. 1278). The Union represents a large majority of MDC's security employees.

         On June 13, 2017, the Court held an evidentiary hearing. At the end of the hearing, the Court asked Movants, the County, and the Union to file post-hearing briefs. See DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS' CLOSING ARGUMENT IN RESPONSE TO PLAINTIFFS' AND PLAINTIFF INTERVENORS' JOINT MOTION FOR ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF PURSUANT TO COURT ORDER DOC. NOS. 256 AND 1222-3 (Doc. No. 1315); PLAINTIFFS' AND PLAINTIFF INTERVENERS' POST-HEARING BRIEF REGARDING Doc. No. 1247 (Doc. No. 1316); and AFSCME COUNCIL 18, LOCAL 2499'S POST-HEARING BRIEF (Doc. No. 1317). The transcript of the hearing was filed on July 6, 2017. (See Doc. No. 1311) (Tr.).

         Movants argue that the County is violating certain provisions of the SETTLEMENT AGREEMENT (Doc. No. 1222-1) (SA) and CHECK-OUT AUDIT AGREEMENT No. 2: THE PROVISION OF MENTAL HEALTH SERVICES AT THE BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1222-3) (COA2). Specifically, Movants claim that the County is failing to provide the requisite training to security employees[3] 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, the ADA).


         A. Jurisdiction

         The Court retains the authority and jurisdiction to enforce its own orders. Spallone v. United States, 493 U.S. 265, 276 (1990). In other words, a federal court is “not reduced to issuing injunctions against [public officials] and hoping for compliance. Once issued, an injunction may be enforced.” Hutto v. Finney, 437 U.S. 678, 690 (1978). Moreover, the Court expressly retained jurisdiction to enforce the SA. (SA ¶ 20.)

         B. Civil Contempt

         The SA and COA2 are consent decrees, “that [are] subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992). A party to a consent decree that is aggrieved by the other's noncompliance may apply for an order to show cause why the noncompliant party should not be held in contempt. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381-82 (1994).

         After a court issues an order to show cause, a party may be held in contempt only if the movant establishes, by clear and convincing evidence, “that a valid court order existed, that the [party] had knowledge of the order, and that the [party] disobeyed the order.” Reliance Ins. Co. v. Mast Const. Co., 159 F.3d 1311, 1315 (10th Cir. 1998) (citation omitted). A party may avoid a finding of contempt if it demonstrates that it attempted compliance in good faith based on a reasonable interpretation of the order. See Braintree Labs., Inc. v. Nephro-Tech, Inc., 99 F.Supp.2d 1300, 1303 (D. Kan. 2000). Also, if the court finds that the party has taken all “reasonable steps and substantially complies with the court order, ” the court may decline to find civil contempt. Id.

Civil contempt . . . is a severe remedy which should be used only when necessary to sustain the authority of the court. NLRB v. Shurtenda Steaks, Inc., 424 F.2d 192, 194 (10th Cir. 1970). . . . The movant must establish that the alleged contemnor has not diligently attempted to comply in a reasonable manner with a court order. King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995). Technical or inadvertent violations of a court order do not support a finding of civil contempt. Universal Motor Oils Co. v. Amoco Oil Co., 743 F.Supp. 1484, 1487 (D. Kan. 1990).

T.Y. by Petty v. Bd. of Cty. Comm'rs of Cty. of Shawnee, 912 F.Supp. 1424, 1427-28 (D. Kan. 1996).

         C. Further Remedial Relief under the ADA

         Movants ask the Court to order additional remedial relief under the ADA. Specifically, Movants ask the Court to order MDC to allow only security employees with specialized training, skills, and temperament to work in special management units. See McNeil v. Guthrie, 945 F.2d 1163, 1165-66 (10th Cir. 1991) (finding that individuals who file suit complaining about unconstitutional prison conditions must seek relief through an ongoing prison-conditions class action).

         The Tenth Circuit Court of Appeals explained,

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. This provision extends to discrimination against inmates detained in a county jail. See Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).

Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007). Discrimination under the ADA may include failure to make reasonable accommodations to the needs of a disabled person. See Tennessee v. Lane, 541 U.S. 509, 531 (2004) (stating that Congress recognized “that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion” or discrimination). The “ADA thus not only prohibits public entities from discriminating against the disabled, it also prohibits public entities from excluding the disabled from participating in or benefitting from a public program, activity, or service ‘solely by reason of disability.'” Romero v. Bd. of Cty. Commissioners for the Cty. of Curry, 202 F.Supp.3d 1223, 1265 (D.N.M. 2016) (emphasis in original) (citations omitted). Thus, if a detention facility provides programs for inmates, such as mental health treatment or educational programs, it must do so on non-discriminatory terms. Robertson, 500 F.3d at 1199.

         In Robertson, the Tenth Circuit reversed the dismissal of an ADA claim brought by a hearing-impaired inmate who was not provided a hearing aid that would have allowed him to participate in his probable cause hearing. Id. at 1199. Even though the inmate's attorney represented him at the hearing and even though the charges against the inmate were dismissed, the Tenth Circuit determined that summary judgment dismissing the inmate's ADA claim was inappropriate:

Because Mr. Robertson was detained at a facility that permits detainees to attend their probable cause hearings, Mr. Robertson was eligible to participate in this program. . . . Even though his presence was not required, because the facility makes the activity available to detainees in general, it must do so on nondiscriminatory terms. . . . Furthermore, . . . he was denied the ability to participate in his probable cause hearing to the same extent as non-disabled individuals.

Id. (citations omitted). The same is true for mentally disabled inmates. If a detention facility consistently denies mentally disabled inmates the benefits of therapeutic programs, by subjecting them to excessive force or excessive lockdowns for behavior that is a result of their disability, the detention facility may violate the ADA. Cf. Jones v. Smith, 109 F. App'x 304, 309 (10th Cir. 2004) (holding that while the inmate's work assignment may have been the product of incompetence or personal spite, the inmate's ADA claim failed because he did not allege that his assignment to medically inappropriate work was done because of his disability).


         A. Settlement Agreement and the Check-Out Audit Agreements

         The SA incorporates three Check-Out Audit Agreements (Doc. Nos. 1222-2, 1222-3, and 1222-4). The Check-Out Audit Agreements outline “definitive, specific, and measurable tasks to be accomplished in order to achieve substantial compliance” in each area covered. Check-Out Audit Agreement No. 1 (COA1) governs medical services. As stated, COA2 governs mental health services. Check-Out Audit Agreement No. 3 (COA3) governs general conditions of confinement. Each Check-Out Audit Agreement provides: “the parties understand and agree that this Agreement incorporates (but does not supersede) all extant orders and agreements.” (COA 1, 2, and 3 at p. 1.)[4]

         Movants complain that the County is violating ¶ G of COA2, which requires the Court's mental health expert Dr. Jeffrey Metzner to determine whether MDC sufficiently trains its security employees to work with special management inmates:

G. Basic Mental Health Training
1) Whether MDC provides adequate pre-service and annual in-service basic training to Qualified Medical and Mental Health Staff and security staff that addresses mental health needs. MDC will provide no less than forty (40) hours of specialized training.
2) Whether MDC provides adequate specialized training for all security staff on specialized mental health units.

         (COA 2 at p. 15.) COA2 also requires Dr. Metzner to determine (1) whether MDC provides “adequate care for inmates' serious mental health needs”; (2) whether MDC mental health care staff and security staff communicate sufficiently about special management inmates; and (3) whether MDC follows a proactive program of care for special management inmates. (COA2 at 16-22.) COA2 incorporates an ORDER (Doc. No. 256) (the 1996 ORDER), that states in relevant part,

security staff shall receive training regarding the identification of symptoms of mental or developmental disabilities and regarding appropriate methods for dealing with residents with mental or developmental disabilities. Correctional officers who work in . . . units in which people with mental or developmental disabilities are congregated shall receive specialized training to adequately prepare them for working with people with mental or developmental disabilities. The specialized training shall be no less than 40 hours.

(Id. at 12.)

         In 2011, the MDC established a 40-hour mental health training program in its cadet academy; therefore, as to security employees hired after 2011, the MDC has complied with the “pre-service” training requirement of COA2 ¶ G. (County Post-Hrg Brief Ex. A (Doc. No. 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 ...

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