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
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.