Petition for Writ of Certiorari — Maricopa County Sheriff's Office v. United States (No. 06-85)

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Sugeme Court US.

a

pny 06-85 JUL 18 2006

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

o—

MARICOPA COUNTY SHERIFF'S OFFICE,

JOE ARPAIO, THE DULY ELECTED

SHERIFF OF MARICOPA COUNTY, et al.,

Petitioners,

v

U.S. DISTRICT COURT FOR

THE DISTRICT OF ARIZONA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

.

DENNIS I. WILENCHIK, Esq. MICHELE M. LAFRATE, Esq.

WILENCHIK & BARTNESS, PC. IAFRATE & ASSOCIATES

2810 North Third Street 649 North Second Avenue

Phoenix, Arizona 85004 Phoenix, Arizona 85003

(602) 606-2810 (602) 234-9775

Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Whether the Ninth Circuit erred in declining jurisdic-

tion as to Petitioners’ Writ of Mandamus where the

District Court has failed to make a ruling upon Peti-

tioners’ Motion to Terminate this litigation pursuant

to 18 U.S.C. § 3626, which has been pending since

September 25, 2001, and where the same statute re-

quires a prompt ruling on such a motion.

Whether the Ninth Circuit erred in declining jurisdic-

tion as to Petitioners’ Writ of Mandamus where the

District Court has failed to terminate this litigation

pursuant to 18 U.S.C. § 3626, and where the same

statute specifies that prospective relief related to jail

operations that were in existence when the statute

was enacted becomes terminable no later than April

26, 1998.

ii

LIST OF PARTIES

In addition to those listed in the caption, Petitioners,

Defendants in the underlying action, include the Maricopa

County (Arizona) Board of Supervisors, which includes

supervisors Fulton Brock, Don Stapley, Andrew Kunasek,

Max W. Wilson, and Mary Rose Wilcox. Some of the Peti-

tioners have replaced former parties to this lawsuit by

virtue of elections during the course of this litigation.

Accordingly, some documents in the Appendix to this Writ

may refer to parties who no longer hold office in Arizona.

Respondent is the United States District Court for the

District of Arizona.

Real Parties in Interest are pretrial detainees in the

Maricopa County jails and include named class members

Damian Hart, Michael G. McKane and Bartholomew L.

Trumble, who are no longer in custody of the Maricopa

County jails.

ili

TABLE OF CONTENTS

Page

Questions Presented for Review................c.ccceseeees be i

Sih i PCD ca disises cin tases ecctctinhcbcssccchipainicninse ii

NESE Pak eo eiiicinkdidtiareamnnniiniene Vv

CI TIRE Sickest cade Adticniiicinaciiccsedepsnepuoks 1

I ioc cane bdniciadsdndcdaitdsonubadeundststethcelscanmsauanted 1

UOT FOUTS a sci iicsavicsaicsncecibiceste tisaciuniops eens 1

RO OE Si iisivniccncecnideiahcotcldebiintpstetuttincwissicain 2

Reasons for Granting the Writ .,.................ccccseeceseeeee 3

5. : FR IGIE iii ctcccccticiinnsiicmnideianian 3

Il. The Ninth Circuit Erred in Denying Peti-

tioners’ Writ of Mandamus Where the Dis-

trict Court has not “Promptly” Ruled upon

Petitioners’ Motion to Terminate.................... 4

III. The Ninth Circuit Erred in Ignoring the

Clear Intent of Congress in Denying -Peti-

tioners’ Writ of Mandamus......................:eeeees 7

REE LEELA ERT, OES RIS OR NS LS MR ES 1)

TABLE OF CONTENTS - Continued

Appendix

April 19, 2006 Order of the United £.ates Court of

Appeals for the Ninth Circuit, No. 06-70678.......... App. 1

January 25, 2001 Memorandum of the United

States Court of Appeals for the Ninth Circuit,

Fs Re scssirstaicsenndsnnridieniapssiinidewsddaurcheiinentseteteit App. 2

Amended Judgment, filed January 10, 1995.............. App. 4

May 19, 2006 Order of the United States Court of

Appeals for the Ninth Circuit, No. 06-70678........ App. 35

BO EF MEes. 0 UIE ccecenctuseddbadehsiiccinbsvecictctsieoeaideadasicasead: App. 36

TABLE OF AUTHORITIES

Page

CASES

Benjamin v. Jacobson, 172 F.3d 144 (2nd Cir. 1999).......... 6

Berwanger v. Cottey, 178 F.3d 834 (7th Cir. 1999).............. 5

Bieregu v. Ashcroft, 259 F.Supp.2d 342 (D.NJ.

EE icditilstdainane citi ada Ga diana 7

Blissett v. Casey, 969 F.Supp. 118 (N.D.N.Y. 1997)..........-. 7

Chase v. Peay, 286 F.Supp.2d 523 (D.Md. 2003)................. 7

Gilmore v. California, 220 F.3d 987 (9th Cir. 2000) ... 3, 4, 6

In re Scott, 163 F.3d 282 (5th Cir. 1998)..............ccccceeceeeee 5

Miller v. French, 530 US. 327 (2000) .....:.cccecccesecsonesvesseseses 8

Sinclair Refining Co. v. Atkinson, 370 U.S. 195

CINE oi apscnescootiie’ b 045 soiuscbaiicnssvaaasias bye aciosmenntabiindamiivedenstoatos 9

U.S. v. Al-Marri, 239 F Supp.2d 366 (S.D.N.Y. 2002)......... 7

Will v. United States, 389 U.S. 90 (1967)............. ccc eee seco ee 3

STATUTES AND CONGRESSIONAL MATERIALS

De ree inaio tees ccescadiiasatacdebedsaciwahcoudskedscientachaleeoaeketes 2

1B UBC, FOC2C). noe ce ss ssacseesennses iduceaiaen 2,3

BI re; BS CE rice cdicensiesa si isdnicisdadaminasdi tics 4,5

BE TITS, FS ARAM vcncsererstesacccntéceonsacodessashenccents 3, 5

Rs IED betas casaskniseteedsdncctiacep cavicicetslo daddies 4

Bee ere IN ihe toh cctidesctcediovecervractercdidd ainaeetsiaeins 4

ae es We pees Soi pedro aden 3, 4,5

TABLE OF AUTHORITIES — Continued

Page

a Ses OF Se ies tnescvvieesenedecisndbontiuuvicediinlaberressoncawacias 6

ete eI Mieiic hits siinthnsbutnsindcsncuinsseuscedaceglbiiginuemansaonn 9

Se A: We MIEN ED venvivstisvonaeicensastede asicnadovddaecaeentaouanpecioeces 1

es Ae BN ies in isasn nsiscscusnpbbdievenaistorsuvamsstollawenieedaearuiieas 9

Prison Litigation Reform Act, Pub.L. No. 104-134,

BO I iia cis uns wiidiikccsenpriietetbbiosinipsccumineat passim

142 ConG. REc. $3704 (daily ed. April 19, 1996)

(statement of Sen. Abraham) ...................::c:ssesseeeseeeeeseees 8

H.R. ConF. REP. No. 105-405 (1997)............006. soar onnairtenie 4

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a Writ of Certio-

rari to review the United States Court of Appeals for the

Ninth Circuit’s denial of Petitioners’ Writ of Mandamus.

€

OPINIONS BELOW

There was no formal opinion of the District Court. No

opinion was rendered by the United States Court of

Appeals for the Ninth Circuit. The Ninth Circuit’s Order

denying Petitioners’ Writ of Mandamus and the Ninth

Circuit’s Order denying Petitioners’ Motion for Reconsid-

eration are respectively set forth at App. 1 and App. 35.

+

- JURISDICTION

The Order of the United States Court of Appeals for

the Ninth Circuit denying Petitioners’ Writ of Mandamus

was filed on April 19, 2006. On May 19, 2006, the Ninth

Circuit denied Petitioners’ Motion for Reconsideration of

the April 19, 2006, Order. This Petition for a Writ of

Certiorari is being filed within the prescribed 90-day

period after April 19, 2006. Jurisdiction is conferred on

this Court by 28 U.S.C. § 1254(1).

+

STATUTORY PROVISIONS

This case involves the Prison Litigation Reform Act,

Pub.L. No. 104-134, 110 Stat. 1321-66 (the “PLRA”). The

2

specific statute involved is 18 U.S.C. § 3626, which is set

forth at App. 36.

STATEMENT OF CASE

A group of pretrial detainees held in the Maricopa

County, Arizona jail system initiated this institutional

reform class action in 1977, alleging violations of their

constitutional rights. In March 1981, the parties entered

into a consent decree that addressed and regulated various

aspects of Maricopa County jail operations as they applied

to pretrial detainees (“1981 Judgment”). The 1981 Judg-

ment, as supplemented by certain subsequent amend-

ments, additions and supplemental stipulations, continued

to govern certain aspects of the Maricopa County jail

operations until it was superseded by another consent

decree entered pursuant to stipulation of the parties on

January 10, 1995 (“1995 Judgment”). By its terms, the

1995 Judgment superseded the 1981 Judgment, and all

subsequent amendments, additions and supplemental

stipulations relating thereto, and was designed to control

the future direction of this action. The 1995 Judgment

imposed certain obligations on the Maricopa County

Sheriff’s Office and the Maricopa County Board of Super-

visors, and established certain goals with respect to the

operation of the Maricopa County jail system.

In April 1998, Petitioners moved for the termination

of this case and the 1995 Judgment for the first time based

upon the decree termination provisions of the PLRA, 18

U.S.C. § 3626(b). The District Court thereafter, in Septem-

ber 1998, entered its Order denying Petitioners’ Motion to

Terminate. In October 1998, Petitioners filed their Notice

of Appeal with the Ninth Circuit, appealing the District

Court’s Order denying Petitioners’ Motion to Terminate. In

January 2001, the Ninth Circuit filed its Memorandum -

Disposition, which remanded this case for further proceed-

ings consistent with Gilmore v. California, 220 F.3d 987

(9th Cir. 2000).’

In September 2001, the Petitioners renewed their

Motion to Terminate this litigation. To date, the District

Court has not ruled on Petitioners’ Motion to Terminate

even though 18 U.S.C. § 3626(e)(1) requires the District

Court to issue a “prompt” ruling, and the PLRA makes

clear that the statutory life of the 1995 Judgment expired

on April 26, 1998, pursuant to U.S.C. § 3626(b)(1)(A)(iii).

On February 6, 2006, Petitioners filed a Writ of Manda-

mus with the Ninth Circuit, which was denied by a panel

of the Ninth Circuit on April 19, 2006. Petitioners respect-

fully request that a Writ of Certiorari issue to review the

Ninth Circuit’s denial of Petitioners’ Writ of Mandamus.

a

REASONS FOR GRANTING THE WRIT

I. Introduction

Petitioners concede that the remedy of mandamus is a

drastic one, which should only be used in extraordinary

situations. Will v. United States, 389 U.S. 90, 95 (1967).

However, it is equally true that, pursuant to 18 U.S.C.

§ 3626(e)(1), the District Court was to act “promptly” in

ruling on Petitioners’ Motion to Terminate, which was filed

* The Court’s Memorandum Disposition, attached hereto at App. 2,

mistakenly referred to 18 U.S.C. § 3626(b) as 18 U.S.C. § 3526(b).

4

on September 25, 2001. In 1997, Congress amended the

PLRA to provide that “[m]andamus shall lie to remedy any

failure to issue a prompt ruling on such a motion,” in order

“to make clear that mandamus relief is available to compel

the court to issue a ruling on a pending motion....” 18

U.S.C. § 3626(e)(1); H.R. Conr. REP. No. 105-405, at 133

(1997). Therefore, the Ninth Circuit erred in denying

Petitioners’ Writ of Mandamus because, to date, the

District Court has not yet ruled upon Petitioners’ Motion

to Terminate, even though it has beén pending since

September 25, 2001.

II. The Ninth Circuit Erred in Denying Petition-

ers’ Writ of Mandamus Where the District

Court has not “Promptly” Ruled upon Petition-

ers’ Motion to Terminate.

Congress enacted the PLRA on April 26, 1996, with

the clear intent of terminating prospective relief in prison

condition cases such as this one. Pursuant to 18 U.S.C.

§ 3626(b)(1), any prospective relief becomes terminable

with respect to existing prospective relief orders, at the

latest, two years after the imposition of the PLRA. This

section is subject to the court making written findings that

there exists current and ongoing constitutional violations,

as outlined in 18 U.S.C. § 3626(b)(3). Furthermore, any

“prospective relief” that exceeds the constitutional mini-

mum must be terminated immediately regardless of when

it was granted. 18 U.S.C. § 3626(b)(2); see also, Gilmore v.

California, 220 F.3d 987, 999 (9th Cir. 2000) (Prospective

relief “that exceeds the constitutional minimum must be

terminated regardless of when it was granted”). The re-

quirements of the 1995 Judgment, which is set forth at App. 4,

exceed the requirements of the Constitution. Nevertheless,

5

because the parties are past the two-year presumptive

limit of the PLRA pursuant to 18 U.S.C. § 3626(b)(1), there

is no need to discuss the specific provisions of the 1995

Judgment. However, it is critical that the District Court

has not found any current and ongoing violations in the

Maricopa County jails that would preclude the termina-

tion of the prospective relief. There have not been any

evidentiary hearings in this matter since January 22,

2004.

The statutory life of the 1995 Judgment - two (2)

years from enactment of the PLRA - expired on April 26,

1998. 18 U.S.C. § 3626(b)(1)(A)Giii). As of that date, 18

U.S.C. § 3626(b)(1) requires termination “upon motion of

any party.” Pursuant to 18 U.S.C. § 3626(e)(1), the District

Court was to act promptly in ruling upon Petitioners’

Motion to Terminate. Here, Petitioners’ Motion was filed

on Septembér- 25, 2001, but the District Court has not

ruled. Other jurisdictions have recognized the intent of

Congress in terminating cases such as this one. In a

similar case interpreting the PLRA, the Court of Appeals

for the Seventh Circuit determined that, under the PLRA,

the District Court erred by letting more than a year pass

without action on a motion to terminate prospective relief,

and then terminating the decree without making any

findings. Berwanger v. Cottey, 178 F.3d 834 (7th Cir. 1999);

see also, In re Scott, 163 F.3d 282 (5th Cir. 1998) (finding

that where sixteen months passed since the Court’s last

ruling and the District Court still had not yet ruled on the

defendants’ motion to terminate the litigation under the

PLRA, the Court was inclined to grant the writ of manda-

mus and order the District Court to rule instanter, but did

not because the District Court scheduled its evidentiary

hearing). Here, the Ninth Circuit remanded this case to

6

the District Court on January 25, 2001 with instructions

to follow Gilmore v. California, 220 F.3d 987 (9th Cir.

2000).? However, to date, the District Court has not made

any progress in terminating this litigation, contrary to the

clear and unambiguous instructions of the United States

Court of Appeals for the Ninth Circuit and Congress.

Although 18 U.S.C. § 3626(e)(2) mandates that the

provisions of the 1995 Judgment are stayed, Petitioners

have been harmed in numerous ways. The past five years

have been marked by an unending and costly fishing

expedition by Real Parties in Interest in an attempt to

discover constitutional violations at the Maricopa County

jails. Real Parties in Interest seek discovery related to

current jail conditions, even though, in evaluating Peti-

tioners’ pending Motion to Terminate, the District Court

must examine the jail conditions “as of the time termina-

tion is sought.” Gilmore v. California, 220 F.3d 987, 1010

(9th Cir. 2000) citing Benjamin v. Jacobson, 172 F.3d 144,

166 (2nd Cir. 1999). New jails have opened in Maricopa

County since Petitioners filed their renewed Motion to

Terminate in 2001, and, if the District Court prolongs this

matter much further, more new jails will open and some

existing jails will be renovated or closed. Petitioners also

have been harmed by continued attorneys’ fees for defense,

in addition to attorneys’ fees for Real Parties in Interest.’

From a practical point of view, Real Parties in Interest’s

attorneys have no financial incentive to agree to end this

case, given that attorneys’ fees are being subsidized by

* The Ninth Circuit’s January 25, 2001 Memorandum is set forth

at App. 2.

* Pursuant to a District Court Order, Petitioners must pay attorneys’

fees incurred by attorney Theodore C. Jarvi.

7

Petitioners, and that they may be able to seek discovery in

this case for use in other cases.

As part of Petitioners’ Writ of Mandamus, Petitioners

alternatively sought a status conference and an order from

the District Court outlining a specific plan to terminate

this litigation as soon as possible. Petitioners’ request was

reasonable in light of the fact that the District Court was

“to issue a prompt ruling” on Petitioners’ Motion to Termi-

nate, which has been pending for almost five years. How-

ever, the Ninth Circuit denied Petitioners’ Writ of

Mandamus. In its Order, the Ninth Circuit reasoned that

“(t]he district court held a status conference in the above-

referenced case on March 13,_2006.” App. 1. However,

while this may be true, the District Court did not address

any of the relief sought by Petitioners in their Writ of

Mandamus at the status conference, and the District

Court did not outline a specific plan to terminate this

litigation.

Ill. The Ninth Circuit Erred in Ignoring the Clear

Intent of Congress in Denying Petitioners’ Writ

of Mandamus.

The PLRA’s primary focus is-to promote administra-

tive redress, filter out groundless and frivolous claims, and

foster better prepared litigation of claims aired in court.

Chase v. Peay, 286 F.Supp.2d 523, 530 (D.Md. 2003), aff’d,

98 Fed.Appx. 253 (4th Cir. 2004); see also, Bieregu uv.

Ashcroft, 259 F.Supp.2d 342, 345-46 (D.N.J. 2003); U.S. v.

Al-Marri, 239 F.Supp.2d 366, 367 (S.D.N.Y. 2002), aff’d,

360 F.3d 707 (7th Cir. 2004), cert. denied, 543 U.S. 809

(2004); Blissett v. Casey, 969 F.Supp. 118 (N.D.N.Y. 1997).

8

Senator Abraham, one of the PLRA’s sponsors, ex-

plained the purpose of the PLRA as follows:

We would also provide that any party can seek to

have a court decree ended after two years, and

that the court will order it enred unless there is

still a constitutional violation that needs to be

corrected. As a result, no longer will prison ad-

ministration be turned over to Federal judges for

the indefinite future for the slightest reason. No

longer will public safety be jeopardized by capri-

cious judicial prison caps. And no longer will the

taxpayers be socked for enormous, unnecessary

bills to pay for all this.

Instead, the States will be able to run prisons as

they see fit unless there is a constitutional viola-

tion. If there is, a narrowly tailored order to cor-

rect the violation may be entered.

This is a balanced set of proposals, allowing-the

courts to step in where they are needed, but puts

an end to unnecessary judicial intervention and

micro management of our prison system we see

too often. d :

142 Conca. REc. $3704 (daily ed. April 19, 1996) (statement

of Sen. Abraham).

The constitutionality of the PLRA has been litigated

and upheld, and the Court must fully return the admini-

stration and operation of the jails to Maricopa County

pursuant to the PLRA, as intended by Congress. “[W]here

Congress has made its intent clear, ‘we must give effect to

that intent.’” Miller v. French, 530 U.S. 327, 336 (2000)

(holding that automatic stay provision of the PLRA does

not permit district courts to exercise their equitable

authority to suspend operation of stay and does not violate

9

separation of powers principles), citing Sinclair Refining

Co. v. Atkinson, 370 U.S. 195, 215 (1962). Terminating this

litigation is necessary to comply with the PLRA’s purpose

of avoiding the entanglement of federal courts in prison

litigation beyond that minimum which is necessary to

vindicate federal rights. Terminating the instant litigation

does not burden a pretrial detainee’s fundamental right of

access to the courts. The PLRA allows a detainee access to

the courts once he or she exhausts his or her administra-

tive remedies. 42 U.S.C. § 1997e(a); see also, 18 U.S.C.

—§ 3626(g)(2) (“the term ‘civil action with respect to prison

conditions’... does not include habeas corpus proceedings

challenging the fact or duration of confinement in

prison.”). The PLRA addresses the government’s interest

in curtailing interference by the federal courts in the

administration of prisons, and the Court must now termi-

nate this litigation to fulfill the intent of Congress.

+

CONCLUSION

With all due respect to the United States Court of

Appeals for the Ninth Circuit and the District Court, these

courts failed to enforce the clear terms of the PLRA, at a

great expense to the parties involved and the taxpayers of

Maricopa County, Arizona. After nearly thirty (30) years,

this case must end. Petitioners have no other adequate

means to terminate this case because the District Court

has not yet ruled on their Motion to Terminate, even

though it was filed nearly five (5) years ago. For the

10

reasons set forth above, it is respectfully submitted that

this petition for certiorari be granted.

Respectfully submitted,

DENNIS I. WILENCHIK, Esq. MICHELE M. IAFRATE, Esq.

WILENCHIK & BARTNESS, P.C. _IAFRATE & ASSOCIATES

2810 North Third Street 649 North Second Avenue

Phoenix, Arizona 85004 Phoenix, Arizona 85003

(602) 606-2810 (602) 234-9775

Counsel of Record

Attorneys for Petitioners

App. 1

UNITED STATES COURT OF APPEALS ~—

FOR THE NINTH CIRCUIT

In re: MARICOPA COUNTY

SHERIFF'S OFFICE; et al.

MARICOPA COUNTY

SHERIFF'S OFFICE; et al.,

Petitioners,

v.

UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF ARIZONA,

Respondent,

DAMIAN HART; et al.

Real Parties in Interest.

to. 06-70678

D.C. No.

CV-77-00479-EHC

District of Arizona,

Phoenix

ORDER

(Filed Apr. 19, 2006)

Before: KOZINSKI, RYMER and PAEZ, Circuit Judges.

The district court held a

status conference in the

above-referenced case on March 13, 2006. Because peti-

tioners have not demonstrated that this case warrants the

intervention of this court by m

eans of the extraordinary

remedy of mandamus, the petition is denied. See Bauman

v. United States Dist. Court, 557

F.2d 650 (9th Cir. 1977).

App. 2

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAMIAN HART; )

MICHAEL G. MCKANE; )

BARTHOLOMEW L. TRUMBLE, ) No. 98-16995

Plaintiffs-Appellees, D.C. No.

va CV-77-00479-EHC

JOE ARPAIO,** the duly ) MEMORANDUM*

Elected Sheriff of Maricopa ) (Filed Jan. 25, 2001)

County; HENRY H. HAWS;

GEORGE CAMPBELL;

BOB CORBIN; HAWLEY

ATKINSON; ED PASTOR;

Defendants-Appellants.

i i i i

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge Presiding

Submitted Dec. 9, 1999***

Submission Vacated and Deferred December 21, 1999

2submitted January 23, 2001

San Francisco, California

* This disposition is not appropriate *; »» “lication and may not

be cited to or by the courts of this circuit ex «.« as provided by 9th Cir.

R. 36-3.

** Joe Arpaio is substituted: for his predecessor Tom Agnos

pursuant to Federal Rule of Appellate Procedure 43(c)(1).

*** The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34(a)(2).

App. 3

Before: BROWNING, RYMER, and KLEINFELD, Circuit

Judges.

Maricopa County and Sheriff Joe Arpaio appeal the

district court’s order refusing to terminate a consent

decree in accordance with the provisions of the Prison

Litigation Reform Act (PLRA), 18 U.S.C. § 3526(b). The

district court relied on the panel opinion in Taylor v.

United States, 143 F.3d 1178 (9th Cir. 1998). However, that

opinion was subsequently withdrawn. 158 F.3d 1059 (9th

Cir. 1998). Since then, three decisions pertinent to the

issues raised on appeal have been rendered: Miller v.

French, 120 S.Ct. 2246 (2000); Taylor v. United States, 181

F.3d 1017 (9th Cir. 1999) (en banc); and Gilmore v. Cali-

fornia, 220 F.3d 987 (9th Cir. 2000). Gilmore holds that

§ 3526(b) is not unconstitutional, and it controls this

appeal on that issue.

Although Hart argues that the amended judgment in

this case is similar to the judgment in Juylor, we disagree.

The judgment here imposes extensive obligations on the

County, provides for on-going compliance, monitoring and

reporting, and establishes enforcement mechanisms includ-

ing ultimately by the court. For this reason the constitution-

ality of § 3526(b) is not moot as it was in 7uylor.

Accordingly, we reverse the district court’s order and

remand for further proceedings consistent with Gilmore.’

REVERSED AND REMANDED.

* In light of this disposition, the motions by the United States to

intervene and by the County for remand are moot.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

DAMIAN HART, et al., —)

Be to )

Plaintiis, ) No. CIV-77-479 PHX-EHC-MS

™ ) AMENDED JUDGMENT

SHERIFF JERRY HILL, ?

) (Filed Jan. 10, 1995)

)

Defendants. )

et al.,

Pursuant to stipulation of the parties, and good cause

appearing therefore, the Court enters the following

Amended Judgment. It is the intent of the Court that this

Amended Judgment supersede the initial Judgment

entered in this action on or about March 27, 1981, and all

subsequent amendments, additions and supplemental

stipulations relating thereto, including, without limitation,

the Judgment (pursuant to Supplemental Stipulation

Regarding Medical, Recreational Equipment, Razor

Blades, Noise Control and Dayroom Access) entered on

November 12, 1982 and the Stipulation Regarding Modifi-

cation of Final Judgment which was granted preliminary

approval on December 27, 1984. It is further the intent of

the Court that, upon entry of this Amended Judgment, the

obligation of defendants to provide periodic reports to the

United Slates District Court for the District of Arizona

regarding the operation of the Maricopa County jail

system (hereinafter “the jails” or “the jail system”) shall

terminate; provided, however, that nothing in this

Amended Judgment shall be construed so as to reduce or

eliminate reporting requirements set forth herein or to deny

plaintiffs access to the Court, by appropriate post-judgment

App. 5

petition filed by plaintiffs subject to the dispute resolution

provision in paragraph 116, in the event of a material

violation by one or more of the defendants of any term or

provision of this Amended Judgment.

THEREFORE, IT IS ORDERED, ADJUDGED

AND DECREED, as follows:

1. This Amended Judgment is entered pursuant to a

stipulation of the parties. No other agreement among the

parties exists as of the date of this Amended Judgment

with respect to the subject matter hereof. No party to this

Amended Judgment shall assert or rely upon the terms of

any prior agreement or judgment in any subsequent

proceedings involving the parties to, and subject matter of,

this Amended Judgment.

2. The provisions, conditions and procedures con-

tained herein have been negotiated by the parties and do

not represent a judicial determination of any consti‘ ution-

ally mandated standards applicable to the jails.

3. Upon entry of this Amended Judgment, the

Court’s monitoring of conditions within the jails and the

periodic reporting responsibilities of the defendants to the

Court shall terminate. The Court shall retain jurisdiction

of the parties and of this action solely for the purpose of

enforcing compliance with the terms and conditions of this

Amended Judgment.

4. This Amended Judgment shall apply only to

pretrial detainees held in the jails, and shall apply both to

the existing jail facilities and to future jail facilities,

unless expressly noted to the contrary herein. All pretrial

detainees shall be entitled to the rights and privileges

App. 6

granted in this Amended Judgment whether they are

segregated or housed with sentenced inmates.

5. This Judgment applies to all defendants and their

successors in office.

6. All provisions of this Amended Judvment shall be

immediately implemented, except those prvuvisions, if any,

with specific later implementation dates, which provisions

shall be implemented on or before the specified implemen-

tation date.

ae, 4 Except as otherwise expressly provided herein,

the Sheriff and the Maricopa County Board of Supervisors

reserve all of their respective rights, privileges, discretion

and prerogatives conferred on them by law with regard to

the operation, maintenance, management and/or admini-

stration of the jails.

8. The parties acknowledge that, under current

caselaw, it is unconstitutional to incarcerate pretrial

detainees for the purpose of punishment.

Population/Housing Limitations

9. Through the operation, management and funding

of the jails, defendants shall endeavor to achieve, in good

faith and as expeditiously as possible, and to maintain the

following population limitation and inmate housing goals:

A. For any cell at the First Avenue Jail facility

(previously referred to as “Central Jail”) used to

house a pretrial detainee, there shall be no more

than three inmates in any eight-person cell; no

more than two inmates in any four-person cell;

and no more than one inmate in any one or two

person cell. For the purpose of determining the

App. 7

capacity of an individual cell, the parties agree to

abide by the cell size designations reflected in the

floor plans for the First Avenue Jail facility at-

tached as Exhibit “A”.

No pretrial detainee housed in the Towers, Madi-

son, Durango, Avondale (Southwest), Estrella, and

Mesa (Southeast) jail facilities shall be housed in

a cell containing more than one other inmate.

The total number of inmates housed in any

dormitory in the Estrella jail used_to house pre-

trial detainees shall not exceed 100.

Pretrial detainees shall be incarcerated in jail

cells or dormitories and shall not be housed in a

dayroom or any other temporary housing facility

of any kind.

Pro per inmates representing themselves on

criminal charges, who have demonstrated a le-

gitimate need to collect and maintain voluminous

legal documents, will be housed alone, provided

sufficient cell space is available.

Double bunking of pretrial detainees may only

occur in cells (i) with two permanent bunks “and

(ii) with access to a dayroom in which no inmate

beds are located.

The defendants agree that the maximum popula-

tion goal, not including any tent or other tempo-

rary housing facility, within any facility being

used to house pretrial detainees shall be as fol-

lows:

FACILITY MAXIMUM POPULATION GOAL

First Avenue 417

Madison 1905

Durango 872

App. 8

Avondale 56

Towers 720

- Estrella 880

Southeast 60

The parties recognize that developing alternatives to

incarceration of pretrial detainees is an element of reduc-

ing jail population, and that the reduction of the popula-

tion of pretrial detainees in the jail system, where there is

no threat to public safety, is a goal of this Amended Judg-

ment.

10. - The defendants agree to make good faith efforts,

within their respective powers, to achieve the pretrial

detainee housing goals set forth above. When a pretrial

detainee is presented to the Sheriff by a competent author-

ity for confinement in the jails and the jail population

levels, the requirements of the inmate classification

system, and/or the maintenance of internal order or

security within the jail system prohibit the Sheriff from

housing that pretrial detainee in accordance with the

population goals in this Amended Judgment, the Sheriff

shall promptly notify in writing the Maricopa County

Board of Supervisors or its designee (which shall be the

Justice and Law enforcement Agency of the Maricopa

County Manager’s Office pending further written notice)

and the authorized representative of the plaintiff-class, if

any, of that population/housing situation. The Sheriff will

also report to the Board or its designee whenever the total

system wide inmate population, not including tents or

other temporary housing facilities, exceeds 95% of the

system wide jail capacity. The Board or its designee shall

meet on an emergency basis to evaluate the situation and

recommend corrective action.

App. 9

11. Even when in compliance with the population

limitation and inmate housing goals set forth in this

Amended Judgment, defendants shall endeavor to house,

in any cell, the lowest number of pretrial detainees possi-

ble in light of all relevant circumstances, including the

requirements of the inmate classification system and the

internal order and security of the jail system.

12. As of the date of this Amended Judgment, the

Maricopa County Board of Supervisors has implemented a

multi-element inmate population reduction program (the

“Board’s program”). The primary purpose of this program

is to meet the population goals set out in this Amended

Judgment. A summary of the Board’s program and a

description of its objectives, which may be amended and

supplemented from time to time, is attached to this

Amended Judgment as Exhibit “B.” Within their statutory

responsibilities, each of the defendants shall participate in

and commit themselves to the success of this program.

13. In conjunction with the adoption and implemen-

tation of the Board’s program, the Board has established,

under the auspices of the Justice and Law Enforcement

Agency of the County Manager’s Office, a jail population

management group (“JPMG”) to monitor the progress of

the Board’s program in achieving its goals and to other-

wise identify and address issues relating to the size of the

inmate population incarcerated in the jails.

14. Counsel for plaintiffs (or his designee or succes-

sor, or the designee of his successor) shall have permanent

observer status on the JPMG, and shall be entitled to

receive notices of all meetings; to receive reasonable

advance notice of any proposed material change in the

App. 10

Board’s program; and to personally attend and participate

at all meetings of the JPMG.

15. For so long as the JPMG or any equivalent

organization is in existence, the Justice and Law Enforce-

ment Agency of the Maricopa County Manager’s Office

shall prepare, on not less than an annual basis, a detailed

report to the JPMG (the “Annual Report”), including

among other matters:

A. county jail population data for the preceding

twelve (12) months;

B. a comparison of population statistics for the

preceding twelve (12) months with data for each of

the previous three (3) years;

C. a summary of all implemented, abandoned,

completed and planned Board program elements; and

D. a documented summary (including empirical

analysis when practicable and meaningful) of the suc-

cess or lack of success of each Board program element

during the preceding twelve (12) months.

E. a detailed inventory of the then current ca-

pacity of each of the housing units of the jails.

A copy of the Annual Report shall be delivered to counsel

for the plaintiff-class, if any.

Davroom Access

16. Pretrial detainees at the First Avenue Jail

facility shall have access to a dayroom during the hours of

8:00 a.m. to 10:30 p.m., exclusive of counts, clean-up of the

dayroom and times during which the inmates are in

App. 11

transit, subject to the transit requirements of paragraph

17.

17. Pretrial detainees at the First Avenue Jail

facility shall be provided dayroom/cell transit at least

three times during waking hcurs, in addition to meal

ingress and egress.

18. Pretrial detainees, at jail facilities other than

First Avenue, including those opened subsequent to the

effective date of this Amended Judgment which utilize a

dayroom arrangement, shall be provided complete freedom

of access between cell and dayroom during waking hours,

at least sixteen hours each day. For those facilities not

utilizing a dayroom arrangement, pretrial detainees shall

be provided equivalent access to resources and free space

as in dayrooms. Before pretrial detainees are placed in any

facility plan without a dayroom arrangement, the defen-

dants shall provide counsel for the plaintiff class, if any, a

detailed summary of the proposed housing arrangement

including the availability of resources and free space.

19. Pretrial detainees at all jail facilities shall have

access to a television, tables and benches sufficient for the

number of persons who will be utilizing each dayroom.

Defendants shall also provide small games such as check-

ers, chess, etc. in each dayroom.

20. Pretrial detainees confined in special manage-

ment in any jail facility may be denied access to a dayroom

if they pose a special security risk necessitating segrega-

tion from the general population.

App. 12

Natural Light and Windows;

Artificial Lighting; Temperature

21. Defendants shall provide pretrial detainees with

lighting at least sufficient to prevent eye fatigue and eye

strain, in all housing and activity areas.

22. Defendants shall assure that lights are dimmed

sufficiently during sleeping hours to allow pretrial detain-

ees to sleep without interference.

23. Defendants shall provide pretrial detainees with

heating and cooling systems and all equipment and

structures necessary to provide healthful and comfortable

living conditions.

Noise

24. Defendants shall provide pretrial detainees with

living areas with acoustics that ensure noise levels that do

not interfere with normal human activities.

Access to Reading Materials

25. A pretrial detainee shall be permitted to possess

three books, five magazines, and one daily newspaper in

his/her cell excepting materials, the primary subject

matter of which is the manufacture and use of weapons,

explosives, escape or disturbance techniques, and/or which

are obscene as defined by the United States Supreme

Court. If the material is available to the public at a news-

stand or public library, then absent some special circum-

stance wherein censorship is necessary in order to

maintain institutional security or preserve internal order

and discipline, such materials shall not be censored.

App. 13

26. Each pretrial detainee shall have available a

wide variety of books from which to choose, and shall have

available access to a general library through a book cart

delivery system.

—_—

27. - Defendants shall make available a reasonable

variety of books and magazines written in the Spanish

language for those pretrial detainees who converse in that

language.

- 28. Defendants shall assure that books available to

pretrial detainees for purchase and through the library,

include a reasonable number of books at an adult reading

level, of interest to adults.

Access to Religious Services

29. Pretrial detainees shall be provided the opportu-

nity to participate in at least one (1) weekly religious

service. Upon request, reasonable efforts will be made by

the jail administration to accommodate a pretrial de-

tainee’s particular faith.

30. Defendants shall provide adequate space, oppor-

tunity and assistance to pretrial detainees who wish to

attend religious services at the jail.

31. Defendants shall provide pretrial detainees with

the opportunity to meet with the clergy. Such meetings

will be provided on the same basis as attorney visits

provided the clergy has obtained all necessary access

clearance from the Sheriffs Office. Such access clearance

will not be withheld without good cause which shall be

communicated in writing to the applicant.

App. 14

Mail

32. Privileged outgoing mail, that is, mail to public

officials, attorneys, the Courts, and the press, shall not be

opened or otherwise interfered with; such mail may be

opened and inspected in the presence of the pretrial

detainee upon good cause shown by clear and convincing

evidence of a security breach. Such mail shall not be read,

subject to the requirements of the Fourth Amendment. If

such requirements are satisfied by the acquisition of a

warrant based upon probable cause, then the privileged

outgoing mail in question may be searched and seized.

33. Privileged incoming mail, that is, mail from

public officials, attorneys, the Courts, and the press, may

be opened or inspected in the presence of the pretrial

detainee to whom the material is addressed; such inspec-

tion is limited to locating contraband. Detention personnel

may not read or censor the enclosed letter except upon

compliance with the requirements of the Fourth Amend-

ment as described above in the preceding paragraph. If

such requirements are met, then the incoming mail in

question may be searched and seized. A record shall be

maintained of all mail so read, indicating the pretrial

detainee to whom eddressed, the date read, and the officer

conducting the inspection, with a copy of the warrant

attached thereto.

34. Non-privileged mail, whether incoming or

outgoing, may be opened and inspected out of the pretrial

detainee’s presence, but not read by detention personnel

except for good cause. The record requirement as described

in the preceding paragraph shall also apply to mail read

pursuant to this paragraph, with the exception that no

App. 15

warrant need be attached. Furthermore, if this non-

privileged mail is to be censored, prior appropriate notice

and opportunity to be heard on the matter shall be given

the author, and the decision regarding this matter shall be

made by a disinterested party, one not involved in the

initial determination.

35. Writing materials, including envelopes, paper,

pencils, and five stamps per week shall be provided to any

pretrial detainee who has insufficient funds in his inmate

fund account to purchase the same in reasonable quanti-

ties.

36. Defendants shall allow pretrial detainees to

purchase a daily newspaper through a subscription with

the local newspaper and/or by mail. Further, defendants

shall permit pretrial detainees to receive soft-covered

books, magazines and newspapers through the mail from

publishers, provided that defendants shall be entitled to

inspect such materials for contraband. ;

37. Defendants shall be permitted to terminate

newspaper privileges, books, or magazines to any pretrial

detainee who misuses a newspaper, book, or magazine by

causing a fire, security problem, or toilet stoppage in the

jails. Written records shall be maintained of any loss of

privileges as heretofore set forth.

Telephone Privileges

38. Pretrial detainees housed in facilities existing at

the time of this Amended Judgment shall be permitted

access to a telephone for at least ten minutes a day, ex-

cluding delays caused by equipment malfunctions or

deficiencies. In any week, the access periods allowed to

App. 16

each pretrial detainee shall include daytime and evening

hours. This access may be provided through charge-a-call

telephones.

39. Defendants shall ensure calls by pretrial detain-

ees as needed to legal counsel. If such legal counsel’s office

refuses collect calls, then pretrial detainees shall be

afforded the use of a free telephone. When not using the

charge-a-cal]l telephone, a log of legal calls will be main-

tained, and the Sheriffs Office shall undertake such other

steps as are reasonably necessary in an effort to ensure

fair distribution of telephone access to all pretrial detain-

ees.

Clothes and Towels

40. Defendants shall provide pretrial detainees with

at least two changes of underwear per week, one change of

outer garments and bedding per week, three towel

changes per week, and one blanket change per month.

41. Defendants shall assure that pretrial detainees

are not forced to wear dirty clothes to court.

42. Defendants shall provide each and every pretrial

detainee with bedding sufficient to provide reasonable

sleeping, comfort.

Sanitation, Safety, Hygiene and Toilet Facilities

43. Defendants shall provide a fire protection service

sufficient to assure the safety of staff, pretrial detainees

and visitors at the jails and a system of fire inspection and

testing of equipment by local fire officials at least every

three months. Defendants shall assure that all jails

App. 17

comply with the current fire safety code promulgated by

the National Fire Protection Association.

44. Defendants shall assure that all jail facilities are

inspected monthly by the Maricopa County Department of

Health Services, Bureau of Environmental Health, in

accordance with the policies and procedures established by

that agency.

45. Defendants shall provide for the prompt removal

of pretrial detainees from cells with inoperable toilets and

sinks to a place where such facilities are available.

46. Defendants shall provide pretrial detainees with

sufficient, safe cleaning supplies to enable pretrial detain-

ees to properly clean their cells. Defendants shall assure

that cells, including but not limited to medical isolation

cells, are properly cleaned and sanitized prior to occupancy

by pretrial detainees.

47. Defendants shall maintain a written plan for

daily housekeeping and regular maintenance of the jail.

Defendants shall provide toilets, showers, and sinks to

pretrial detainees that are in good repair and can be

cleaned properly.

48. Defendants shall provide for the sanitary storage

and daily removal of garbage in the jail facilities.

49. Dividing walls will be constructed to provide

privacy during use of toilet facilities in each multiple

occupancy cell and dayroom.

50. Defendants shall provide each pretrial detainee

with a clean razor and will provide replacement blades as

needed.

App. 18

Access to Law Library

51. A pretrial detainee representing himself or

herself on criminal charges or in a pending or prospective

habeas corpus or civil rights action shall be entitled to

meaningful access to legal materials as necessary to

perform the particular research involved. If legal research

materials are not contained in the law library and are

required for the foregoing purpose, the law clerks will

obtain copies thereof and provide them to the pretrial

detainee in a timely manner.

52. Defendants shall ensure that no pretrial de-

tainee seeking judicial relief shall be subject to reprisals or

penalties because of a decision to seek such relief.

53. Defendants shall provide pretrial detainees with

facilities and staff necessary to ensure confidential contact

with attorneys and their authorized representatives.

54. Defendants shall provide detainees access to the

assistance of a law clerk with necessary legal experience

(paralegal, legal or law clerk) to assist detainees with legal

problems available five days per week within twenty-four

hours of request.

55. Legal wr ng materials, including envelopes,

papers, pencils, and postage. shall be provided to any pretrial

detainee who has insufficient funds in his inmate fund

account to purchase the same in reasonable quantities.

Medical, Dental And Psychiatric Care

56. Defendants shall provide a receiving screening of

each pretrial detainee, prior to placement of any pretrial

detainee in the general population. The screening will be

App. 19

sufficient to identify and begin necessary segregation, and

treatment of those with mental or physical illness and

injury; to provide necessary medication without interrup-

tion; to recognize, segregate, and treat those with commu-

nicable diseases; to provide medically necessary special

diets; and to recognize and provide necessary services to

the physically handicapped.

57. All pretrial detainees confined in the jails shall

have access to medical services and facilities which con-

form to the standards designated as “essential” by the

National Commission on Correctional Health Care

(“NCCHC”) Standards for Health Services in Jails, as

amended from time to time. When necessary, pretrial

detainees confined in jail facilities which lack such ser-

vices shall be transferred to another jail or other location

where such services or health care facilities can be pro-

vided or shall otherwise be provided with appropriate

alternative on-site medical services.

58. Defendants shall assure that all policies, proce-

dures, and programs instituted pursuant to the preceding

paragraph are fully implemented and that each pretrial

detainee is provided health services in conformity with

such policies, procedures, and programs.

59. A copy of all then-current Correctional Health

Services policies, procedures and programs shall be made

available to plaintiffs’ counsel for inspection and/or copy-

ing upon reasonable request.

60. Defendants shall ensure that orders by the

responsible health care authority and its qualified health

care personnel are not interfered with or overridden by

security staff.

App. 20

61. Defendants shall ensure that the pretrial detain-

ees’ prescription medications are provided without inter-

ruption where medically prescribed by correctional

medical staff.

62. Defendants shall maintain unit dose records of

all psychiatric and narcotic prescription medications

administered to pretrial detainees. All other prescription

medications shall be recorded in the pretrial detainees’

medical records indicating the type and amount of medica-

tion dispensed and the date.

63. Defendants shall provide written notice to each

and every pretrial detainee upon admission to the jail of

the procedures necessary to obtain medical attention, in

the Spanish and English language.

64. Defendants shall provide a monitoring system by

which pretrial detainees may be assured that sick call

requests are delivered to the responsible health care

-authority and its qualified health care personnel in a

timely manner by security staff and that written re-

sponses from health care personnel to pretrial detainees

are also handled in a timely manner.

65. Defendants shall provide delousing procedures at

the jails, which procedures, when utilized, shall be safe

and effective.

66. Defendants shall provide emergency transporta-

tion service to an appropriate hospital or medical facility,

without unreasonable delay, when needed.

67. Defendants shall provide sufficient equipment to

provide emergency medical treatment to the pretrial

detainees at the jails when needed.

App. 21

68. When deemed necessary by the correctional

medical staff, defendants shall provide facilities for pre-

trial detainees who are suffering from severe withdrawal

symptoms due to drug and alcohol addiction separate from

the general detainee population.

69. Defendants shall provide prétrial detainees with

dental care in cases of emergency.

70. Defendants shall arrange for and obtain written

evaluations of health care services within the jails by

independent persons, organizations or agencies experi-

enced in evaluating such services, which evaluations shall

utilize generally accepted standards for correctional

facilities as described by the NCCHC. Reports shall be

obtained based upon the regular review schedule (cur-

rently one every three years) of the NCCHC or other

independent reviewing agency; provided, however, that an

annual, interim internally-prepared report shall be pro-

vided to the attorney for the plaintiff class, if any, at the

same time that such report is provided to the independent

review organization.

Intake Areas

71. Defendants shall continuously monitor condi-

tions, including the population of pretrial detainees, in the

designated intake areas. Defendants shall formulate,

adopt and implement programs designed to reduce over-

crowding and improve conditions for pretrial detainees in

the intake areas and to reduce the time of incarceration in

the intake areas.

72. With respect to the intake areas, defendants

shall adopt the following goals:

App. 22

A. No pretrial detainee shall be incarcerated in an

intake area for more than forty-eight (48) hours;

B. Pretrial detainees in the intake areas shall have

access to toilet and wash basin facilities;

C. Pretrial detainees incarcerated in an intake area

for twenty-four (24) continuous hours shall be pro-

vided with a blanket and a bed or mattress on

which to sleep.

D. Defendants shall ensure that a report reflecting

the length of stay of pretrial detainees in the in-

take area is generated by the Sheriff and made

available to counsel for the plaintiff class, if any,

upon implementation of the Sheriff’s LEJIS 2.0

computer system, or by January 1, 1995, which

ever occurs first.

Mechanical Restraints and Segregation

73. It shall be normal procedure to use mechanical

restraints when transporting a pretrial detainee from

place to place outside the facility. Mechanical restraints

may be otherwise used only when reasonably necessary in

the following instances:

A. When transporting a pretrial detainee from place

to place inside the facility, between facilities, or to

and/or from court.

B. When the past history and present behavior or

apparent emotional state of the pretrial detainee

creates a likelihood that bodily injury to any per-

son or escape by the pretrial detainee will occur.

C. When licensed medical personnel so advise, to

prevent the pretrial detainee from attempting

App. 23

suicide or inflicting serious physical injury upon

himself/herself or others.

74. When mechanical restraints are deemed neces-

sary, the shift supervisor may order their use in accor-

dance with conditions a, b, and c in the preceding

Paragraph. In cases arising under conditions b and c, the

shift supervisor shall report the reasons for use of re-

straints in writing. This report shall be submitted to the

facility administrator or the highest ranking officer

available who shall review it within twenty-four hours

after restraints are first used. Medical personnel shall

regularly check those placed in restraints under conditions

b and c.

75. Defendants shall ensure that no pretrial de-

tainee placed in physical restraints shall be left without

adequate supervision and shall be released for bathroom

privileges as necessary.

76. Except as provided for in paragraph 73, Defen-

dants shall not physically restrain a pretrial detainee

except during extreme emergencies, and then only with

soft leather restraints with the exception that pretrial

detainees may be restrained with steel handcuffs and/or

leg irons for the time it takes to locate soft leather re-

straints and substitute them.

77. Defendants shall provide special management

pretrial detainees with living conditions and privileges

equal to those available to the general detainee population

with exceptions justified only by clear and substantial

evidence, in writing.

78. Defendants shall provide all pretrial detainees in

special management a toilet and sink in their cell.

App. 24

79. Defendants shall provide that the status of

pretrial detainees in special management is reviewed by a

classification officer or other authorized body at least

every seven days the first two months and at least every

thirty days thereafter.

80. Defendants shall provide that admission to the

administrative segregation unit for purposes of protective

custody is made only where there is substantial evidence

that protective custody is warranted, or unless the pretrial

detainee provides written consent to such confinement.

81. Defendants shall provide that where a pretrial

detainee consents to administrative segregation, the

pretrial detainee may at any lime request assignment to

the general detainee population, and such request shall be

granted, unless there is substantial evidence to show that

protective custody in the unit is absolutely necessary.

82. Defendants shall provide that wherever a pre-

trial detainee in special management is deprived of any

‘usually authorized item or activity, a report of the action is

made and forwarded to the facility administrator.

83. Defendants shall provide that all pretrial detain-

ees in special management are provided basic personal

items for use in their cells, unless there is imminent

danger that a pretrial detainee will destroy any item or

inflict self-injury or injury to others.

Recreation Time Outside

84. Except for pretrial detainees in special manage-

ment and those who do not desire outdoor recreation,

App. 25

pretrial detainees shall be allowed one hour per day six

days per week in the outdoor exercise areas with reason-

able space for physical activities and a reasonable variety

of recréation and exercise equipment for use by the pre-

trial detainees, such as basketball, volleyball, table tennis,

other equipment, so that inmates may engage in physical

activities during their outdoor recreation period. At the

First Avenue jail, the one hour shall not include transit

time.

85. Pretrial detainees in special management shall

be entitled to the same outdoor exercise rights as in

paragraph 84, above, provided, however, that pretrial

detainees reasonably classified as a special security risk

shall be provided exercise as practicable.

86. Pretrial detainees in holding areas for less than

seventy-two hours and pretrial detainees whose medical

condition will not permit, need not be provided exercise.

This paragraph shall not be interpreted as to deny handi-

capped pretrial detainees the same outdoor exercise rights _

is in paragraph 84 above.

Inmate Classification

87. Defendants shall provide a sufficient number of

classification counselor personnel, sufficiently educated

and trained in the behavioral and/or social sciences and

ensure that each incoming pretrial detainee, not released

R.O.R. or on bail, shall be promptly interviewed, coun-

seled, and oriented to jail rules and regulations and

promptly classified, managed and housed according to

mental and physical limitations, aggressiveness, youth,

sexual preference, substances abuse, severity of the

App. 26

alleged crime, susceptibility to assault, and recent escape

history. Defendants shall further provide twenty-four hour

visual monitoring by a detention officer from time of

arrival until classification procedures are completed.

88. Male inmates shall not be housed with female

inmates. Adult pretrial detainees shall not be housed with

juveniles. In addition, classification decisions shall be

based upon but not limited to the following factors: (a)

offense; (b) criminal history; (c) personal and social his-

tory; (d) observed behavior; (e) institutional behavior; (f)

recent escape history; (g) substance abuse; (h) suicidal

tendencies.

89. Different types of pretrial detainees shall be

separated with the objectives of ensuring their safety, the

safety of other pretrial detainees, the security of the

facility and protection of the public. Every good faith effort

shall be undertaken to identify mentally unstable and

violent inmates. These inmates shall be separated from

the general population and each other whenever such

action is necessary to achieve the objectives set forth in

this paragraph.

90. In classifying pretrial detainees, defendants will

not unlawfully discriminate on the basis of race, color,

national origin, age, sex or physical or mental handicap.

Review of classification decisions shall be conducted on a

timely basis and adjustments made as necessary in each

individual case.

App. 27

, Visitation

91. Pretrial detainees shall be permitted three one-

half hour visits per week, excluding transit time. Visiting

hours shall include afternoons, evenings and weekends.

92. The Sheriff shall develop policies and procedures

governing visitation, including ensured visitation by

mirsors. Such_ policies and procedures shall provide for

special visits, specify hours of visitation and reasonable

restrictions on who may visit.

93. Pretrial detainees may have two visitors at any

one time counting as one visit.

94. Contact visitation shall be provided to pretrial

detainees who are classified as medium or lesser security

risks, where such visitation can be accomplished without

creating security risks. Contact visitation shall not be

unreasonably withheld.

Food

95. Defendants shall provide food to pretrial detain-

ees that meets or exceeds the dietary allowances as stated

in the Department of Agriculture’s Guide to Daily Food

Choices.

96. Defendants shall ensure that all food services

personnel including inmates assigned to food service work

comp., with applicable state and local laws and regula-

tions.

97. Defendants shall ensure that all inmates as-

signed to food service work are carefully screened and in

good health and free from communicable disease and open

infected wounds.

App. 28

98. Defendants shall provide reasonable, nutritiozal

substitutions for pretrial detainees who are prohibited

from eating certain foods due to established religious

beliefs that demand they adhere to dietary practices or

because they are vegetarians.

99. Defendants shall ensure that all inmates as-

signed to food service work are issued clean clothes and

are given physical examinations on a reasonable schedule

prior to and during food service work.

100. Meals for the restricted population shall be

served in their respective cells, if necessary, due to special

security risks. All other pretrial detainees shall be fed in

dining areas separate from their cells.

101. Pretrial detainees who do not wish to eat shall

not be required to lock out of their cells to dining areas.

Staff Members, Training and Screening

102. Defendants shall assure that each pretrial

detainee is visually observed by detention officers in a

manner and frequency that complies with the guidelines

contained in the Manual of Standards for Adult Local

Detention Facilities, Commission on Accreditation. Ameri-

can Correction Association, December 1977.

103. Defendants shall assure that detention officers

are in a position to respond promptly to calls for help by

pretrial detainees.

104. Defendants shall assure that written reports

are recorded and statistics are compiled, of all instances

of inmate or officer abuse, injuries, violence, assaults,

sexual assaults, suicides, deaths and inmate riots and

App. 29

demonstrations, in a manner conducive to informed access

by the Court.

105. Defendants shall provide compulsory screening

of all detention officers, by a psychiatrist or psychologist,

to determine mental and emotional suitability for custo-

dial work, at least equivalent in scope to psychological

screening given to Maricopa County Deputy Sheriff

applicants.

106. Defendants shall ensure that all new detention

officers receive a basic training, course consisting of not

less than forty hours prior to being assigned to any deten-

tion-related duty.

107. Defendants shall ensure that ongoing training

be proviaed continuously during employment of all deten-

tion officers to sharpen their skills, reinforce their knowl-

edge and understanding of the fundamentals of their jobs,

and familiarize them with new developments in the field

and new policies and procedures of the institution, in a

reasonable manner. Said training shall include, but not be

limited to the following: (a) security procedures; (b) super-

vision of inmates; (c) report writing; (d) significant legal

issues; (e) inmate rules and regulations; (f) grievance and

disciplinary procedures; (g) rights and responsibilities of

inmates; (h) fire and emergency procedures; (i) first aid; (j)

human relations and communications skills; (k) crisis

intervention; (1) special needs of minorities, females and

handicapped inmates; (m) recognition of the signs and

symptoms of mental illness and mental retardation; (n)

recognition of the signs and symptoms. of chemical de-

pendency; and (0) problem-solving and guidance. The basic

forty hour training shall include the foregoing listed

subjects. ;

App. 30

Facilities for the Handicapped

108. Defendants shall house handicapped pretrial

detainees in a manner which reasonably provides for their

safety and security and housing units shall be reasonably

accessible to and usable by them. Cells shall include assist

bars in toilet areas and shower areas and ramps

Disciplinary Policy and Procedures

109. In exercise of his or her right to discipline

inmates, the Sheriff shall maintain a system of prohibi-

tions, penalties and corrective measures that deal with

conduct which causes or threatens to cause harm to self or

others or otherwise violates institutional rules.

110. These disciplinary procedures shall be designed

to achieve the following objectives:

A. To ensure that disciplinary action is taken only at

such times and to such a degree as is necessary to

regulate all inmate behavior within acceptable

limits.

B. To control inmate behavior in an impartial and

consistent manner.

C. To ensure that disciplinary action is not capricious

or retaliatory.

D. To define and grade offenses in order to limit

official discretion in punishment and to give fair

warning to the inmate of prohibited conduct and

the consequences of engaging in it.

E. To prescribe penalties which are proportionate to

the seriousness of the offense, including restitu-

tion, where appropriate.

App. 31

F. To safeguard conduct that is without guilt from

condemnation.

111. Procedural due process, when required by law

for disciplinary proceedings, shall include the following

elements:

A. Written notice of the charges shall be given to an

inmate at least twenty-four hours prior to a hear-

ing thereon. The notice of charges shall include

the date and time of the hearing.

B. Disciplinary hearings shall be conducted within

twenty-four to seventy-two hours, excluding week-

ends or holidays, from the time the inmate receives

written notice of the charges.

C. The hearing shall be conducted by an impartial

individual or board.

D. Inmates shall be allowed to call witnesses and

present documentary evidence in their defense if

permitting them to do so will not jeopardize insti-

tutional safety or correctional goals.

E. In actions where the inmate is illiterate or non-

English speaking, or unusually complex issues ex-

ist, a staff member shall be assigned to assist the

inmate.

F. The findings of the board shail be in writing,

stating the basis for its decision and the sanctions

imposed.

G. Areview process for appeals.

H. The disciplinary procedures shall be reviewed

annually and updated by the Custody Bureau

Commander and his staff to ensure that they re-

main appropriate and continue to contribute to

the effective operation of the jails.

App. 32

Inmate Grievance Policy and Procedures

112. The Sheriff shall maintain an inmate grievance

procedure to provide a prompt administrative response to

the complaints of pretrial detainees. Such procedures shall

include the following elements:

A. A method whereby all inmates may promptly

communicate concerns to the administration.

B. A prompt investigation of complaints.

C. A written response to complaints within specific

reasonable time periods.

D. Areview by an impartial individual or board.

E. Grievance procedures shall be reviewed annually

by the Sheriff and updated to ensure that they

remain appropriate and continue to contribute to

the effective operation of the jails.

Reports and Record Keeping

113. Any time defendants invoke the security over-

ride provision of this Amended Judgment or any emer-

gency exception to any requirement or limitation set forth

in this Amended Judgment, defendants shall promptly

provide w:itten notice to counsel for the plaintiff-class, if

any, identifying the nature-and scope of the deviation and

establishing, an end date for the deviation. If the end date

is not met, another notice must be provided with the

similar information and a new end date.

114. Defendants agree to provide counsel for the

plaintiff-class, if any, the following information on a

quarterly basis: (1) jail population statistics for each

facility for the preceding period; (2) health inspection

App. 33

reports for the preceding period; (3) Custody Bureau

statistics reflecting incidents reported during the preced-

ing period; (4) copies of the Inmate Services Division’s

monthly reports; (5) any summary notice of satisfaction of

Department of Agriculture nutritional requirements; (6) -

all security overrides issued during the preceding period;

and (7) reports of the fire inspectors. The defendants also

agree to make good faith efforts to respond to reasonable

requests for additional information from counsel for the

plaintiff-class.

Security Override

115. When required by unusual circumstances

affecting institutional order or security, the rights and

privileges of pretrial detainees under this Amended

Judgment regarding dayroom access, lighting, access to

reading materials, access to religious services, mail,

telephone privileges, clothes and towels, sanitation and

safety, access to the law library, medical care, mechanical

restraints, recreation time outside, classification, visita-

tion and the limitations upon inmate housing and popula-

tion set forth herein may be suspended, restricted, denied

or withheld for such time as the unusual circumstances

continue to exist. However, the provisions of this para-

graph shall not preclude any pretrial detainee from

challenging the validity of any such restrictions, suspen-

sion or deprivation in an appropriate grievance, discipli-

nary, or legal proceeding.

Dispute Resolution

116. In the event of a dispute regarding the scope or

meaning of any provision of this Amended Judgment, or

App. 34

the compliance of any party with any provision of this

Amended Judgment, the parties shall meet and confer in

an effort to resolve such dispute. In the absence of agree-

ment on the subject, the parties shall submit their differ-

ences to non-binding mediation before a person selected by

the chief judge of the federal district court in the State of

Arizona. No application for order to show cause or other

request for an Order of the District Court relating to

enforcement of this Amended Judgment may be filed

unless it is accompanied by a certificate from the selected

mediator certifying that, after personal consultation and

good faith efforts, the parties have been unable to resolve

the dispute. Said certificate shall be accompanied by a

report of the mediator summarizing the dispute, and

setting out the mediator’s recommended resolution, if any.

DATED this 9th day of January, 1995

/s/ Earl H. Carroll

United States District Court Judge

[Exhibits Omitted In Printing]

App. 35

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: MARICOPA COUNTY

SHERIFF'S OFFICE; et al.

MARICOPA COUNTY

SHERIFF'S OFFICE; et al.,

Petitioners,

v.

UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF ARIZONA,

Respondent,

DAMIAN HART; et al.,

Real Parties in Interest.

No. 06-70678

D.C. No.

CV-77-00479-EHC

District of Arizona,

Phoenix

ORDER

(Filed May 19, 2006)

Before: KOZINSKI, RYMER and PAEZ, Circuit Judges.

The motion for reconsideration is denied. See 9th Cir.

R. 27-10.

No further filings shall be accepted in this closed case.

(a)

App. 36

18 U.S.C. § 3626

Requirements for relief. -

(1) Prospective relief. - (A) Prospective relief in

any civil action with respect to prison conditions shall

extend no further than necessary to correct the viola-

tion of the Federal right of a particular plaintiff or

plaintiffs. The court shall not grant or approve any

prospective relief unless the court finds that such re-

lief is narrowly drawn, extends no further than neces-

sary to correct the violation of the Federal right, and

is the least intrusive means necessary to correct the

violation of the Federal right. The court shall give

substantial weight to any adverse impact on public

safety or the operation of a criminal justice system

caused by the relief.

(B) The court shall not order any prospective relief

that requires or permits a government official to ex-

ceed his or her authority under State or local law or

otherwise violates State or local law, unless —

(i) Federal law requires such relief to be or-

dered in violation of State or local law;

(ii) the relief is nec..ssary to correct the viola-

tion of a Federal right; and

(iii) no other relief will correct the violation of

the Federal right.

(C) Nothing in this section shall be construed to au-

thorize the courts, in exercising their remedial pow-

ers, to order the construction of prisons or the raising

of taxes, or to repeal or detract from otherwise appli-

cable limitations on the remedial powers of the courts.

(2) Preliminary injunctive relief. — In any civil

action with respect to prison conditions, to the extent

otherwise authorized by law, the court may enter a

App. 37

temporary restraining order or an order for prelimi-

nary injunctive relief. Preliminary injunctive relief

must be narrowly drawn, extend no further than nec-

essary to correct the harm the court finds requires

preliminary relief, and be the least intrusive means

necessary to correct that harm. The court shall give

substantial weight to any adverse impact on public

safety or the operation of a criminal justice system

caused by the preliminary relief and shall respect the

principles of comity set out in paragraph (1)B) in tai-

loring any preliminary relief. Preliminary injunctive

relief shall automatically expire on the date that is 90

days after its entry, unless the court makes the find-

ings required under subsection (a)(1) for the entry of

prospective relief and makes the order final before the

expiration of the 90-day period.

(3) Prisoner release order. - (A) In any civil ac-

tion with respect to prison conditions, no court shall

enter a prisoner release order unless —

(i) a court has previously entered an order for

less intrusive relief that has failed to remedy the

deprivation of the Federal right sought to be

remedied through the prisoner release order; and

(ii) the defendant has had a reasonable amount

of time to comply with the previous court orders.

(B) In any civil action in Federal court with respect

to prison conditions, a prisoner release order shall be

entered only by a three-judge court in accordance

with section 2284 of title 28, if the requirements of

subparagraph (E) have been met.

(C) A party seeking a prisoner release order in Fed-

eral court shall file with any request for such relief, a

request for a three-judge court and materials suffi-

cient to demonstrate that the requirements of sub-

paragraph (A) have been met.

(b)

App. 38

(D) If the requirements under subparagraph (A)

have been met, a Federal judge before whom a civil

action with respect to prison conditions is pending

who believes that a prison release order should be

considered may sua sponte request the convening of a

three-judge court to determine whether a prisoner re-

lease order should be entered.

(E) The three-judge court shall enter a prisuner re-

lease order only if the court finds by clear and con-

vincing evidence that —

(i) crowding is the primary cause of the viola-

tion of a Federal right; and

(ii) no other relief will remedy the violation of

the Federal right.

(F) Any State or local official including a legislator

or unit of government whose jurisdiction or function

includes the appropriation of funds for the construc-

tion, operation, or maintenance of prison facilities, or

the prosecution or custody of persons who may be re-

leased from, or not admitted to, a prison as a result of

a prisoner release order shall have standing to oppose

the imposition or continuation in effect of such relief

and to seek termination of such relief, and shall have

the right to intervene in any proceeding relating to

such relief.

Termination of relief. -

(1) Termination of prospective relief. - (A) In

any civil action with respect to prison conditions in

which prospective relief is ordered, such relief shall be

terminable upon the motion of any party or inter-

vener —

(i) 2 years after the date the court granted or

approved the prospective relief;

App. 39

(ii) 1 year after the date the court has entered

an order denying termination of prospective re-

lief under this paragraph; or

(iii) in the case of an order issued on or before

the date of enactment of the Prison Litigation

Reform Act, 2 years after such date of enactment.

(B) Nothing in this section shall prevent the parties

from agreeing to terminate or modify relief before the

relief is terminated under subparagraph (A).

(2) Immediate termination of prospective re-

lief. — In any civil action with respect to prison condi-

tions, a defendant or intervener shall be entitled to

the immediate termination of any prospective relief if

the relief was approved or granted in the absence of a

finding by the court that the relief is narrowly drawn,

extends no further than necessary to correct the vio-

lation of the Federal right. and is the least intrusive

means necessary to correct the violation of the Fed-

eral right.

(3) Limitation. — Prospective relief shall not termi-

nate if the court makes written findings based on the

record that prospective relief remains necessary to

correct a current and ongoing violation of the Federal

right, extends no furtner than necessary to correct the

violation of the Federal right, and that the prospec-

tive relief is narrowly drawn and the least intrusive

means to correct the violation.

(4) Termination or modification of relief. —

Nothing in this section shall prevent any party or

intervener from seeking modification or termination

before the relief is terminable under paragraph (1) or

(2), to the extent that modification or termination

would otherwise be legally permissible.

App. 40

(c) Settlements. -

(1) Consent decrees. — In any civil action with re-

spect to prison conditions, the court shall not enter or

approve a consent decree unless it complies with the

limitations on relief set forth in subsection (a).

(2) Private settlement agreements. - (A) Noth-

ing in this section shall preclude parties from enter-

ing into a private settlement agreement that does not

comply with the limitations on relief set forth in subsec-

tion (a), if the terms of that agreement are not subject to

court enforcement other than the reinstatement of the

civil proceeding that the agreement settled.

(B) Nothing in this section shall preclude any party

claiming that a private settlement agreement has

been breached from seeking in State court any rem-

edy available under State law.

(d) State law remedies. —- The limitations on remedies

in this section shall not apply to relief entered by a State

court based solely upon claims arising under State law.

(e) Procedure for motions affecting prospective

relief. -

(1) Generally. — The court shall promptly rule on

any motion to modify or terminate prospective relief

in a civil action with respect to prison conditions.

Mandamus shall lie to remedy any failure to issue a

prompt ruling on such a motion. ‘

(2) Automatic stay. —- Any motion to modify or ter-

minate prospective relief made under subsection (b)

shall operate as a stay during the period —

(A)(i) beginning on the 30th day after such mo-

tion is filed, in the case of a motion made under

paragraph (1) or (2) of subsection (b); or

(f)

App. 41

(ii) beginning on the 180th day after such mo-

tion is filed, in the case of a motion made under

any other law; and

(B) ending on the date the court enters a final

order ruling on the motion.

(3) Postponement of automatic stay. — The court

may postpone the effective date of an automatic stay

specified in subsection (e)(2)(A) for not more than 60 -

days for good cause. No postponement shall be per-

missible because of general congestion of the court’s

calendar.

(4) Order blocking the automatic stay. — Any

order staying, suspending, delaying, or barring the

operation of the automatic stay described in para-

graph (2) (other than an order to postpone the effec-

tive date of the automatic stay under paragraph (3))

shall be treated as an order refusing to dissolve or

modify an injunction and shall be appealable pursu-

ant to section 1292(a)(1) of title 28, United States

Code, regardless of how the order is styled or whether

the order is termed a preliminary or a final ruling.

- —

Special masters. -

(1) Im general. - (A) In any civil action in a Fed-

eral court with respect to prison conditions, the court

may appoint a special master who shall be disinter-

ested and objective and who will give due regard to

the public safety, to conduct hearings on the record

and prepare proposed findings of fact.

(B) The court shall appoint a special master under

this subsection during the remedial phase of the ac-

tion only upon a finding that the remedial phase will

be sufficiently complex to warrant the appointment.

App. 42

(2) Appointment. - (A) If the court determines

that the appointment of a special master is necessary,

the court shall request that the defendant institution

and the plaintiff each submit a list of not more than 5

persons to serve as a special master.

(B) Each party shall have the opportunity to remove

up to 3 persons from the opposing party’s list.

(C) The court shall select the master from the per-

sons remaining on the list after the operation of sub-

paragraph (B).

(3) Interlocutory appeal. — Any party shall have

the right to an interlocutory appeal of the judge’s se-

lection of the special master under this subsection, on

the ground of partiality.

(4) Compensation. — The compensation to be al-

lowed to a special master under this section shall be

based on an hourly rate not greater than the hourly

rate established under section 3006A for payment of

court-appointed counsel, plus costs reasonably in-

curred by the special master. Such compensation and

costs shall be paid with funds appropriated to the Ju-

diciary.

(5) Regular review of appointment. — In any

civil action with respect to prison conditions in which

a special master is appointed under this subsection,

the court shall review the appointment of the special

master every 6 months to determine whether the ser-

vices of the special master continue to be required

under paragraph (1). In no event shall the appoint-

ment of a special master extend beyond the termina-

tion of the relief.

(6) Limitations on powers and duties. — A spe-

cial master appointed under this subsection —

App. 43

(A) may be authorized by a court to conduct

hearings and prepare proposed findings of fact,

which shall be made on the record;

(B) shall not make any findings or communica-

tions ex parte;

(C) may be authorized by a court to assist in

the development of remedial plans; and

(D) may be removed at any time, but shall be

relieved of the appointment upon the termination

of relief. ‘

(g) Definitions. — As used in this section —

(1) the term “consent decree” means any relief en-

tered by the court that is based in whole or in part

upon the consent or acquiescence of the parties but

does not include private settlements;

(2) the term “civil action with respect to prison con-

ditions” means any civil proceeding arising under

Federal law with respect to the conditions of confine-

ment or the effects of actions by government officials

on the lives of persons confined in prison, but does not

include habeas corpus proceedings challenging the

fact or duration of confinement in prison;

(3) the term “prisoner” means any person subject to

incarceration, detention, or admission to any facility

who is accused of, convicted of, sentenced for, or adju-

dicated delinquent for, violations of criminal law or

the terms and conditions of parole, probation, pretrial

release, or diversionary program;

(4) the term “prisoner release order” includes any

order, including a temporary restraining order or pre-

liminary injunctive relief, that has the purpose or ef-

fect of reducing or limiting the prison population, or

App. 44

that directs the release from or nonadmission of pris-

oners to a prison;

(5) the term “prison” means any Federal, State, or

local facility that incarcerates or detains juveniles or

adults accused of, convicted of, sentenced for, or adju-

dicated delinquent for, violations of criminal law;

(6) the term “private settlement agreement” means

an agreement entered into among the parties that is

not subject to judicial enforcement other than the re-

instatement of the civil proceeding that the agree-

ment settled;

(7) the term “prospective relief” means all relief

other than compensatory monetary damages;

(8) the term “special master” means any person ap-

pointed by a Federal court pursuant to Rule 53 of the

Federal Rules of Civil Procedure or pursuant to any

inherent power of the court to exercise the powers of a

master, regardless of the title or description given by

the court; and

(9) the term “relief” means all relief in any form

that may be granted or approved by the court, and in-

cludes consent decrees but does not include private

settlement agreements.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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