Coleman, et al v. Schwarzenegger, et al

Filing 7602

STIPULATION and ORDER signed by Chief District Judge Kimberly J. Mueller on 8/1/2022 APPROVING Settlement of Plaintiff-in-intervenor Christopher Lipsey's Claim in intervention. (Mena-Sanchez, L)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 ERNEST GALVAN, State Bar No. 196065 Rosen Bien Galvan and Grunfeld LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 Telephone: (415) 433-6830 Fax: (415) 433-7104 Email: egalvan@rbgg.com Attorneys for Plaintiff ROB BONTA, State Bar No. 202668 Attorney General of California MONICA N. ANDERSON, State Bar No. 182970 Senior Assistant Attorney General DAMON MCCLAIN, State Bar No. 209508 Supervising Deputy Attorney General ELISE OWENS THORN, State Bar No. 145931 NAMRATA KOTWANI, State Bar No. 308741 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 510-4431 Fax: (415) 703-5843 E-mail: Namrata.Kotwani@doj.ca.gov Attorneys for Defendants SHAWNA L. BALLARD, State Bar No. 155188 KATE FALKENSTIEN, State Bar No. 313753 Reichman Jorgensen Lehman & Feldberg LLP 100 Marine Parkway, Suite 300 Redwood Shores, CA 94065 Telephone: (650) 623-1401 Fax: (650) 623-1449 Email: sballard@reichmanjorgensen.com kfalkenstien@reichmanjorgensen.com HANSON BRIDGETT LLP PAUL B. MELLO, State Bar No. 179755 SAMANTHA D. WOLFF, State Bar No. 240280 DAVID C. CASARRUBIAS, State Bar No. 321994 1676 N. California Boulevard, Suite 620 Walnut Creek, CA 94596 Telephone: (925) 746-8460 Fax: (925) 746-8490 E-mail: PMello@hansonbridgett.com Attorneys for Defendants BRIAN C. BARAN, State Bar No. 325939 Reichman Jorgensen Lehman & Feldberg LLP 1909 K St. NW, Suite 800 Washington, DC 20006 Telephone: (202) 894-7310 Fax: (650) 623-1449 Email: bbaran@reichmanjorgensen.com Attorneys for Plaintiff-Intervenor Christopher Lipsey 15 16 17 IN THE UNITED STATES DISTRICT COURT 18 FOR THE EASTERN DISTRICT OF CALIFORNIA 19 SACRAMENTO DIVISION 20 RALPH COLEMAN, et al., 21 22 23 24 25 v. GAVIN NEWSOM, et al., Case No. 2:90-cv-00520 KJM-DB (PC) Plaintiffs, STIPULATION AND ORDER APPROVING SETTLEMENT OF PLAINTIFF-INTERVENOR CHRISTOPHER LIPSEY’S CLAIM IN INTERVENTION Defendants. Judge: The Hon. Kimberly J. Mueller 26 27 28 1 Stip. and Order (2:90-cv-00520 KJM-DB (PC)) 1 On February 25, 2022, at the parties’ request, the Court referred the issues raised in Plaintiff- 2 Intervenor Christopher Lipsey’s (“Lipsey”) claim-in-intervention to Chief Magistrate Judge 3 Kendall Newman for mediation, which was conducted with input from the Special Master and his 4 suicide prevention expert. ECF No. 7478. On March 23, 2022, Lipsey and the California 5 Department of Corrections and Rehabilitation (“CDCR”) reached a settlement as to Lipsey’s claim- 6 in-intervention “subject to submission of documents and approval by [this Court].” Minutes, ECF 7 No. 7512. The Settlement and Release Agreement (“Agreement”) is attached hereto as Exhibit 1. 8 As directed by Chief Magistrate Judge Newman, see ECF No. 7512, the parties now request this 9 Court’s approval of the Agreement. 10 11 12 The parties therefore jointly request that the Court order as follows: 1. The Settlement and Release Agreement, a true and correct copy of which is attached as Exhibit 1 to this Stipulation, is approved. 13 2. Within fourteen days of the date that both (i) the Court has issued a final order 14 approving the Agreement, and (ii) “the settlement amount due under the Agreement 15 has been paid to Lipsey,” see Ex. 1, ¶ 14, CDCR and Lipsey shall file the voluntary 16 dismissal with prejudice of Lipsey’s complaint-in-intervention described in 17 Paragraph 14 of the Agreement. This Court’s jurisdiction over Lipsey’s claim-in- 18 intervention will terminate upon filing of that dismissal, except that the Court will 19 retain jurisdiction only to enforce the monetary settlement due to Lipsey under the 20 Agreement and to enforce his individual right to receive earplugs in segregated 21 housing units in accord with Paragraph 13(a) of the Agreement, and to enforce the 22 terms of Exhibit 1, Paragraph 13, as to the Coleman class. 23 24 25 26 27 28 2 Stip. and Order (2:90-cv-00520 KJM-DB (PC)) 1 IT IS SO STIPULATED. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Dated: July 29, 2022 /s/ Brian C. Baran REICHMAN JORGENSEN LEHMAN & FELDBERG LLP Shawna L. Ballard (SBN 155188) Kate Falkenstien (SBN 313753) 100 Marine Parkway, Suite 300 Redwood Shores, California 94065 Telephone: (650) 623-1401 Fax: (650) 623-1449 sballard@reichmanjorgensen.com REICHMAN JORGENSEN LEHMAN & FELDBERG LLP Brian C. Baran (SBN 325939) 1909 K St. NW, Suite 800 Washington, DC 20006 Telephone: (202) 894-7310 Fax: (650) 623-1449 bbaran@reichmanjorgensen.com Attorneys for Plaintiff-Intervenor Christopher Lipsey 16 /s/ Ernest Galvan (as authorized 7/27/22) 17 20 ROSEN BIEN GALVAN AND GRUNFELD LLP Ernest Galvan, State Bar No. 196065 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 Telephone: (415) 433-6830 Fax: (415) 433-7104 Email: egalvan@rbgg.com 21 Attorneys for Plaintiffs 18 19 Respectfully submitted, /s/ Namrata Kotwani (as authorized 7/29/22) ROB BONTA Attorney General of California DAMON MCCLAIN Supervising Deputy Attorney General NAMRATA KOTWANI Deputy Attorney General HANSON BRIDGETT LLP PAUL B. MELLO SAMANTHA D. WOLFF Attorneys for Defendants 22 23 24 IT IS SO ORDERED. Dated: August 1, 2022. 25 26 27 28 3 Stip. and Order (2:90-cv-00520 KJM-DB (PC)) Exhibit 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ROB BONTA, State Bar No. 202668 Attorney General of California MONICA N. ANDERSON, State Bar No. 182970 Senior Assistant Attorney General DAMON MCCLAIN, State Bar No. 209508 Supervising Deputy Attorney General ELISE OWENS THORN, State Bar No. 145931 NAMRATA KOTWANI, State Bar No. 308741 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 510-4431 Fax: (415) 703-5843 E-mail: Namrata.Kotwani@doj.ca.gov Attorneys for Defendants ERNEST GALVAN, State Bar No. 196065 Rosen Bien Galvan and Grunfeld LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 Telephone: (415) 433-6830 Fax: (415) 433-7104 Email: egalvan@rbgg.com Attorneys for Plaintiffs SHAWNA BALLARD, State Bar No. 155188 KATE FALKENSTIEN, State Bar No. 313753 Reichman Jorgensen Lehman & Feldberg LLP 100 Marine Parkway, Suite 300 Redwood Shores, CA 94065 Telephone: (650) 623-1401 Fax: (650) 623-1449 Email: sballard@reichmanjorgensen.com HANSON BRIDGETT LLP PAUL B. MELLO, State Bar No. 179755 SAMANTHA D. WOLFF, State Bar No. 240280 LAUREL E. O’CONNOR, State Bar No. 305478 DAVID C. CASARRUBIAS, State Bar No. 321994 1676 N. California Boulevard, Suite 620 Walnut Creek, CA 94596 Telephone: (925) 746-8460 Fax: (925) 746-8490 E-mail: PMello@hansonbridgett.com Attorneys for Defendants 15 BRIAN C. BARAN, State Bar No. 325939 Reichman Jorgensen Lehman & Feldberg LLP 1909 K St. NW, Suite 800 Washington, DC 20006 Telephone: (202) 894-7310 Fax: (650) 623-1449 Email: bbaran@reichmanjorgensen.com Attorneys for Plaintiff-Intervenor Christopher Lipsey IN THE UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF CALIFORNIA 17 SACRAMENTO DIVISION 18 19 20 21 22 23 24 25 Case No. 2:90-cv-00520 KJM-DB (PC) RALPH COLEMAN, et al., v. Plaintiffs, SETTLEMENT AND RELEASE AGREEMENT GAVIN NEWSOM, et al., Defendants. 26 27 28 1 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 This Settlement Agreement and Release (“Agreement”) concerns Plaintiff-Intervenor 2 Christopher Lipsey, Jr. (“Lipsey”) and the California Department of Corrections and 3 Rehabilitation (“CDCR”). Lipsey and CDCR shall be referred to as “the parties.” The parties 4 enter into this Agreement to address and settle Lipsey’s claims for damages, declaratory, and 5 injunctive relief regarding the Guard One electronic monitoring system. Defendant California 6 Department of Corrections and Rehabilitation (“CDCR”) installed Guard One in all segregated 7 housing units to monitor correctional officers’ compliance with court-ordered twice-hourly 8 security and welfare checks. Lipsey alleged that the use of Guard One violates his Eighth 9 Amendment rights under the U.S. Constitution because it creates noise during the night that 10 prevents him from sleeping. The Court allowed Lipsey to intervene in Coleman v. Newsom, 2:90- 11 CV-00520 KJM-DB (PC) (“Coleman”), on that basis. 12 I. 13 RECITALS 1. The purpose of this Agreement is to facilitate the settlement, dismissal with prejudice, 14 and release of any and all claims that were asserted, or which could have been asserted, with 15 respect to the facts giving rise to Lipsey’s complaint-in-intervention in Coleman, a lawsuit now 16 pending in the U.S. District Court for the Eastern District of California. 17 18 BACKGROUND AND PROCEDURAL POSTURE 2. Since May 9, 2014, CDCR requires officers to conduct twice-hourly welfare and 19 security checks for all inmates in Administrative Segregation Units (“ASUs”), Segregated 20 Housing Units (“SHUs”), and Condemned Units; the interval between checks should not exceed 21 35 minutes. (ECF No. 5259, at 14.) These checks are recorded using the Guard One system. 22 (Id.) In the Pelican Bay State Prison SHU, the frequency of the checks is reduced to hourly 23 during first watch. (ECF No. 5487.) 24 3. The correctional officers using Guard One carry a small metal wand or pipe that, 25 when touched to a metal button outside of each cell, electronically records that the officer has 26 checked that cell to confirm the security and welfare of the individuals in the cell. (ECF 27 No. 5259, at 14.) The data from the pipe is then downloaded into the Guard One software 28 2 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 program on a desktop computer in the housing unit by a supervisor, and is reviewed daily to 2 ensure compliance. (Id.) 3 4. On February 27, 2020, the Coleman court allowed Lipsey to intervene for the purpose 4 of resolving his claim that the “use of Guard One violates his Eighth Amendment right under the 5 U.S. Constitution because it creates noise during the night that prevents [him] from sleeping.” 6 (ECF No. 6487 at 3.) 7 5. The parties to this Agreement and their counsel recognize that, in the absence of an 8 approved settlement, they face lengthy and substantial litigation, including an evidentiary hearing 9 and potential appellate proceedings, all of which will consume time and resources and present the 10 parties with ongoing litigation risks and uncertainties. The parties wish to avoid these risks, 11 uncertainties, and consumption of time and resources through a settlement under the terms and 12 conditions of this Agreement. 13 6. The parties have conducted extensive negotiations to resolve Lipsey’s demands 14 related to CDCR’s use of Guard One, the court-ordered security and welfare checks, and noise 15 mitigation associated with such security and welfare checks. Those negotiations have been 16 undertaken at arm’s length and in good faith between Lipsey’s counsel, Coleman class counsel, 17 and high-ranking state officials and their counsel. The Coleman Special Master and his suicide 18 prevention expert also participated in the settlement negotiations. The parties have reached 19 agreement on statewide practices that CDCR will implement, as well as the payment of a 20 monetary sum to Lipsey, to settle Lipsey’s claim in intervention for declaratory and injunctive 21 relief. The parties freely, voluntarily, and knowingly, with the advice of counsel, enter into this 22 Agreement for that purpose. 23 7. In addition, Lipsey has agreed, upon receipt of the monetary amounts due under this 24 Agreement, to voluntarily dismiss with prejudice all his pending actions in federal and state court 25 and to withdraw administrative appeals that assert claims against CDCR and its employees, 26 including but not limited to Lipsey v. Kalil et al., 2:17-cv-01429-TLN-AC; Lipsey v. Reddy et al., 27 2:17-cv-01434-KJM-JDP; Lipsey v. Depovic et al., No. 1:18-cv-00767-LJO-JDP; and Lipsey v. 28 Norum et al., 2:18-cv-00362 KJM-DBP. 3 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 8. ACCORDINGLY, without any admission or concession by Defendants concerning 2 any alleged current and ongoing violations of a federal right, all claims arising from Lipsey’s 3 complaint-in-intervention in Coleman shall be finally and fully compromised, settled, and 4 released, subject to the terms and conditions of this Agreement, which the parties enter into 5 freely, voluntarily, knowingly, and with the advice of counsel. 6 II. 7 PARTIES 9. Plaintiff-Intervenor Lipsey is an inmate currently incarcerated at California State 8 Prison, Corcoran. He was allowed to intervene in Coleman for the purpose of litigating his claim 9 that the use of Guard One violates his Eighth Amendment rights under the U.S. Constitution 10 because it creates noise during the night that prevents him from sleeping. 11 10. The Plaintiffs in Coleman are prisoners with serious mental disorders who are now or 12 will be confined in a California state prison. Plaintiff-Intervenor Lipsey is a Coleman class 13 member. 14 11. Defendants in Coleman are the Governor of the State of California, Gavin Newsom; 15 CDCR Secretary, Kathleen Allison; CDCR Undersecretary, Dr. Diana Toche; CDCR Deputy 16 Director of the Statewide Mental Health Program, Dr. Amar Mehta; Director of the Department 17 of Finance for the State of California, Keeley Bosler; and the Director of the Department of State 18 Hospitals, Stephanie Clendenin. CDCR Secretary Allison was named as the defendant-in- 19 intervention by Lipsey. Each Defendant is a state official sued in their official capacity. 20 III. JURISDICTION AND VENUE 21 12. The Court has jurisdiction of this matter under 28 U.S.C. §§ 1331 and 1343. Venue is 22 proper under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to Plaintiffs’ 23 claims occurred in the Eastern District of California. 24 IV. 25 26 TERMS AND CONDITIONS 13. CDCR agrees to implement the following systemwide measures to address sleep deprivation issues associated with welfare checks in segregated housing units: 27 28 4 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 a. Provide earplugs to all persons housed in a segregated housing unit where 2 they are subject to welfare checks, without cost to these persons, as part of 3 their weekly supplies. 4 b. Issue a memorandum reiterating that, during security/welfare checks, 5 Guard One pipes are used only in silent mode during first watch; that the 6 Guard One pipe-button contact be performed without banging or 7 unnecessary noise; and that officers take all steps necessary and 8 appropriate to mitigate noise caused by officers’ gear during their first 9 watch rounds. 10 c. Conduct and document systemwide training to appropriate custody 11 officers and supervisors on the performance of welfare checks, including 12 but not limited to compliance with the policies in Paragraph 13.b above. 13 d. Ensure that housing unit custody supervisors are also trained on the 14 expectations for security and welfare checks, including the expectation 15 that they monitor their officers’ conduct during security and welfare 16 checks. The Special Master will monitor first watch welfare checks as 17 appropriate, including with regard to the requirements in Paragraph 13.b 18 above. 19 e. Investigate the remaining usable life of CDCR’s Guard One equipment 20 and software as well as current repair costs associated with the system in 21 order to gauge when a replacement will be necessary, and report the 22 results to Plaintiffs’ Counsel and the Special Master. 23 f. Investigate whether the Guard One report printouts can confirm whether a 24 silent pipe was used for the checks, or whether a printout can be developed 25 that so confirms. 26 g. Review the location of the Guard One buttons to determine which buttons 27 can be moved to minimize noise produced while still providing for 28 accurate welfare check confirmation. 5 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 It is Defendants’ intention that barring any reasonable delays in implementation, CDCR shall 2 complete its implementation of its obligations under this Paragraph within 90 days of the 3 execution of this Agreement. Defendants agree to communicate any delays in implementation 4 including, but not limited to, union notification issues, as soon as they become aware of such 5 delays. Lipsey assigns the right to enforce the systemwide measures described in this 6 Paragraph 13 to the Coleman Plaintiff class. Only Class Counsel for Coleman Plaintiffs may seek 7 enforcement for the systemwide measures described in this Paragraph 13 of this Agreement from 8 the Coleman Court, and this Court retains jurisdiction with respect to such enforcement. 9 Notwithstanding the foregoing, Lipsey retains the ability and right to enforce his individual 10 entitlement to receive earplugs in segregated housing units in accord with Paragraph 13(a). 11 14. Lipsey shall provide CDCR with a signed voluntary dismissal with prejudice of his 12 complaint-in-intervention in Coleman (Intervention Complaint) under Federal Rule of Civil 13 Procedure 41(a)(1)(A)(ii). Lipsey shall also provide CDCR with signed voluntary dismissals with 14 prejudice of his other pending actions as discussed in Paragraphs 7 and 15. These signed 15 dismissals (and the releases referenced in paragraph 15 relating thereto) shall be held by CDCR, 16 shall not be filed, and will have no force or effect until: (a) the Court issues a final order 17 approving this Agreement, and (b) the settlement amount due under the Agreement has been paid 18 to Lipsey. The Coleman Court’s jurisdiction over Lipsey’s claim-in-intervention will terminate 19 upon filing a dismissal, except that the Court shall retain jurisdiction only to enforce the monetary 20 settlement due to Lipsey under the Agreement and to enforce his individual right to receive 21 earplugs in segregated housing units in accord with Paragraph 13(a). 22 15. Lipsey shall sign a voluntary dismissal with prejudice of all pending actions against 23 CDCR or its employees that he has brought in federal or state court in their entirety, and 24 withdraw all pending administrative appeals alleging constitutional claims against CDCR or its 25 employees. Lipsey shall release and forever discharge CDCR and its employees from all pending 26 actions, causes of action, lawsuits, claims, administrative appeals alleging constitutional claims, 27 and demands of every kind and nature, including but not limited to Lipsey v. Kalil et al., 2:17-cv- 28 01429-TLN-AC; Lipsey v. Reddy et al., 2:17-cv-01434-KJM-JDP; Lipsey v. Depovic et al., No. 6 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 1:18-cv-00767-LJO-JDP; and Lipsey v. Norum et al., 2:18-cv-00362 KJM-DBP. This includes 2 releasing CDCR and its employees from all claims for damages, costs, expenses, and 3 compensation. CDCR and its employees are released from claims for any recovery for insurance 4 proceeds, personal injury, property damage, out-of-pocket expenses, loss of use, lost income, lost 5 profits, emotional distress, loss of enjoyment of life, loss of services, future damages, interest, 6 costs, attorney’s fees, punitive damages, or any other damages or expenses of any kind or 7 character whatsoever, whether based on tort, contract, or other theory of recovery, whether known 8 or unknown, whether directly or indirectly, caused by, connected with, resulting from, or arising 9 in any way out of pending actions brought by Lipsey against CDCR and its employees. The 10 dismissals and releases set forth in this paragraph shall be held by CDCR, shall not be filed, and 11 will have no force or effect until: (a) the Court issues a final order approving this Agreement, and 12 (b) the settlement amount due under the Agreement has been paid to Lipsey. 13 16. Lipsey shall cooperate fully in signing the stipulations for dismissal with prejudice for 14 the pending actions dismissed under and in accord with the terms of this Agreement, and any 15 other documents required to be signed to effectuate the dismissals of the pending actions. 16 Payment of the settlement proceeds to Lipsey under Paragraph 18 below shall be due only after 17 Lipsey delivers signed stipulations for dismissal to defense counsel, in accord with the terms of 18 this Agreement, of the actions against CDCR and its employees. 19 20 21 17. Lipsey reserves the right to bring administrative appeals and actions for any alleged violations of his constitutional or other rights that occur after the execution of this Agreement. 18. CDCR shall pay Lipsey Fifty-Thousand Dollars ($50,000.00). However, Lipsey 22 understands that CDCR is obligated by California Penal Code section 2085.8 to collect any 23 amounts owed by a prisoner under a restitution fine or order, including any administrative fees 24 related to such amounts. Such amounts and fees will be deducted from the settlement amount and 25 paid on Lipsey’s behalf as required by Penal Code section 2085.8. As of the date of this 26 Agreement, the amounts that are required to be deducted under California Penal Code section 27 2085.8 is $6,580.31, and CDCR is not aware of any further restitution fines or orders or 28 administrative fees that are presently being sought from Lipsey. If the settlement amount exceeds 7 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 the restitution amounts and fees, payment of the excess balance shall be made by check to 2 Lipsey’s inmate trust account. Lipsey further understands that CDCR is obligated to pay all 3 outstanding liens against Lipsey, known or unknown, if any, which amounts must be deducted 4 from the settlement amount and paid on Lipsey’s behalf to the lienholder(s); however, CDCR is 5 not aware of any such outstanding liens. 6 19. In consideration for the monetary and prospective relief provided for in this 7 Agreement, effective upon Court approval of this Agreement and payment of the settlement 8 amount described in this Agreement, Lipsey waives his right to seek attorneys’ fees and costs for 9 the matters settled and released in this Agreement, as identified in Paragraphs 7, 14, and 15. 10 11 Accordingly, none of the settlement amount is to be paid to Lipsey’s counsel. 20. Lipsey shall complete a Payee Data Form to enable payment and credit toward his 12 restitution obligations. Lipsey shall return the completed Payee Data Form to Defendants’ 13 counsel as soon as reasonably possible. 14 21. CDCR will make a good-faith and diligent effort to pay the settlement amount (minus 15 any restitution amounts, liens and fees) within 180 days from the date Lipsey delivers to 16 Defendants a signed copy of this Agreement, the notices of voluntary dismissals with prejudice 17 required under Paragraphs 14 and 15, and all of the required Payee Data Forms. Lipsey 18 understands that payment may be delayed by the lack of a State budget, a funding shortfall 19 despite a State budget, the processing efforts of the State Controller’s Office, and other events not 20 attributable to Defendants or CDCR but, in the event of any such delay, CDCR will continue to 21 make a good-faith and diligent effort to thereafter promptly pay the amounts due. 22 accrue on the settlement amount beginning on the day after the 180-day period and at the rate and 23 terms specified in 28 U.S.C. section 1961. 24 25 26 27 28 22. Interest shall No other monetary sum will be paid to Lipsey, or to his counsel related to Lipsey’s action in intervention or any of the actions referred to in Paragraphs 7 and 15. 23. Each party to the actions brought by Lipsey and resolved herein shall bear its own costs and attorney’s fees. 24. There are no other actions required on the part of CDCR or Defendants. 8 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 V. GENERAL RELEASE 25. 2 It is the intention of the parties in signing this Agreement that it shall be effective as a 3 full and final accord and satisfaction and release from all claims asserted in Lipsey’s complaint- 4 in-intervention in Coleman. By signing this Agreement, Lipsey (on his own behalf and on behalf 5 of his agents, attorneys, successors, assigns, heirs, descendants, executors, and representatives) 6 releases CDCR, Defendants, whether served or unserved, and any other past or current CDCR 7 employees and each of their principals, agents, attorneys, successors, assigns, heirs, descendants, 8 executors, representatives, partners, and associates from all claims, past, present and future, 9 known or unknown, that arise or could arise from the facts alleged in his complaint in 10 intervention. In addition, Lipsey releases CDCR and its employees, and Defendants from all 11 pending actions, causes of action, lawsuits, claims, administrative appeals alleging constitutional 12 claims, and demands of every kind and nature that he has brought prior to the execution of this 13 Agreement. 26. 14 15 In furtherance of this intention, the parties acknowledge that they are familiar with, and expressly waive, the provisions of California Civil Code section 1542, which states: 16 A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. 17 18 27. 19 This Agreement is the compromise of various disputed claims and shall not be treated 20 as an admission of liability by any of the parties for any purpose. The signature of or on behalf of 21 the respective parties does not indicate or acknowledge the validity or merits of any claim or 22 demand of the other party. 23 VI. 24 SUCCESSORS AND ASSIGNS 28. This Agreement shall be binding on the parties and their respective officers, agents, 25 administrators, successors, assignees, heirs, executors, trustees, attorneys, consultants, and any 26 committee or arrangement of creditors organized with respect to the affairs of any such party. 27 28 29. Plaintiff-Intervenor Lipsey represents that he owns the interests, rights, and claims that are the subject matter of this Agreement. 9 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 1 2 VII. REPRESENTATIONS AND WARRANTIES 30. Court approval. If this Agreement is not approved by the Court in the form executed 3 by the parties, the parties shall be restored to their respective positions in the action as of the date 4 on which the Agreement was entered, the terms and provisions of this Agreement shall have no 5 force and effect, and this Agreement shall not be used in this action or in any proceeding for any 6 purpose, and the litigation of this action would resume as if there had been no settlement. 7 31. No other consideration. The consideration recited in this Agreement is the only 8 consideration for this Agreement, and no representations, promises, or inducements have been 9 made to the parties, or any of their representatives, other than those set forth in this Agreement. 10 32. Execution in counterpart. This Agreement may be executed simultaneously in one or 11 more counterparts, each of which shall be deemed an original, but all of which together shall 12 constitute one and the same instrument. 13 33. Execution of further documents. Each party to this Agreement shall complete, 14 execute or cause to be executed such further and other documents as are needed to carry out the 15 expressed intent and purpose of this Agreement. 16 34. Entire agreement. This Agreement constitutes a single, integrated agreement 17 expressing the entire agreement of the parties, and there are no other agreements, written or oral, 18 express or implied, between the parties, except as set forth in this Agreement. 19 35. No oral modifications or waiver. No supplement, modification, or amendment to this 20 Agreement shall be binding unless executed in writing by all the parties. No waiver of any 21 provision of this Agreement shall be binding unless executed in writing by the party making the 22 waiver. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a 23 waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing 24 waiver. 25 36. Governing law. Unless expressly stated otherwise in this Agreement, the terms, 26 conditions, and provisions of this Agreement are governed by and interpreted under California 27 state law. 28 10 Settlement Agreement & Release (2:90-cv-00520 KJM-DB (PC)) 37. 1 Severabilitv. Should any provision of this Agreement be held invalid or illegal, such 2 illegality shall not invalidate the whole of this Agreement, but the Agreement shall be construed J as 4 construed and enforced accordin gly. if it did not contain the illegal paft, and the rights and obligations of the parties shall be 5 6 The undersigned agree to the above: 7 By: Christopher Lipsey, Jr. 8 9 10 B)',- Dated: JaredLozano Deputy Director, Facility Support 11 Division of Adult lnstitutions California Department of Corrections and Rehabilitation t2 13 Approved as t4 lsl Namratct Kotwani 15 t6 ICHMAN JOAGSNSUI'T LLP & FPT1ssl88) Shawna L. Ballard ( Kate Falkenstien (SBN 313753) 100 Marine Parkway, Suite 300 Redwood Shores, California 94065 HMAN t7 18 ROe BONT,{ Attornev General of California D.rH,toN McCr..lrN Supervising Deputy Attorney General Narrnalr Korw,qNt t9 Telephone: (650) 623-1401 Fax: (650) 623-1449 Deputy Attorney General 20 sball ard@reichmanj orgensen. com At 2l REICHMAN JoRcBNSPN 22 Brian C. Baran (SBN 325939) 1909 K St. Nw, Suite 800 Washington, DC 20006 Telephone : (202) 89 4 -7 3 I 0 Fax: (650) 623-1449 23 24 o rn eys Jit r D eJb n dctn t,s LssvaN & FerossRc LLP bb ar an@r eichm anj or gen s en. c om 25 Attorneys fo r 26 t P I aint iff Inte rv enor HANSON BRIDGETT LLP Parr B. N,{ut-t-o Sert.rx tun D. Wot rr D,rvtn C. Cas.,rRtuRtas -11 t o nte1,s .fit r D e.fb n dant s Christopher Lipsey 27 28 Seltlen.rcnt .,\ greetnetrt & Iieleasc (2 :90-cr'-00520 K.I\{-DB (PC)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?