Jones et al v. Gusman et al
Filing
465
ORDER APPROVING CONSENT JUDGMENT AND CERTIFYING SETTLEMENT CLASS re 101 Joint MOTION to Approve Consent Judgment, 145 MOTION to Certify Class. Signed by Judge Lance M Africk on 6/6/2013.(Reference: BOTH CASES)(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LASHAWN JONES ET AL.
CIVIL ACTION
No. 12-859
c/w 12-138
REF: BOTH CASES
VERSUS
MARLIN GUSMAN ET AL.
SECTION I
ORDER APPROVING CONSENT JUDGMENT AND
CERTIFYING SETTLEMENT CLASS
Before the Court is the joint motion1 for approval of the proposed consent judgment2 filed
by plaintiffs, LaShawn Jones et al. (“Class Plaintiffs”), intervenor plaintiff, the United States of
America (“United States”) (collectively, “Plaintiffs”), and defendant, the Orleans Parish Sheriff
(“Sheriff”). Also before the Court is the motion3 for certification of a settlement class filed by Class
Plaintiffs, which the United States and the Sheriff do not oppose. Third-party defendant, the City
of New Orleans (“City”), opposes approval of the proposed consent judgment and certification of
a settlement class.4 For the following reasons, the motions are GRANTED.
1
R. Doc. No. 101. Record citations are to Civil Action No. 12-859 unless otherwise noted.
2
Consent Judgment. Record citations to “Consent Judgment” are to the document filed on this date,
which incorporates the March 18, 2013 amendments discussed herein and grammatical and
typographical corrections listed in a separate filing.
3
R. Doc. No. 145.
4
E.g., R. Doc. No. 159.
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FACTUAL BACKGROUND
This lawsuit arises from the alleged unlawful conditions of confinement at Orleans Parish
Prison (“OPP”). Among other things, the lawsuit seeks to address deficiencies in safety and security,
medical and mental health care, environmental conditions, fire safety, and Spanish language services
at OPP. Inmates are currently housed in seven physical facilities that collectively comprise OPP,
namely, (1) the original OPP,5 (2) Conchetta, (3) Templeman Phase V, (4) the Temporary Detention
Center, (5) the Tents, (6) the Warren McDaniels Transitional Work Center, and (7) the Intake
Processing Center.6 The 600-800 inmates housed in the original OPP include youth inmates,
maximum security inmates, and inmates with medical issues.7 Conchetta houses 300-400 inmates,
including both youth and adult inmates, in six housing units.8 Templeman Phase V (“Templeman
V”) houses approximately 240 female inmates and inmates with mental health issues in nine
different units.9 The Temporary Detention Center houses approximately 400-500 inmates in four
units, each of which contains two dormitories.10 The Tents consist of eight windowless canvas tents,
supplied by the Federal Emergency Management Agency (“FEMA”) after Hurricane Katrina,11
5
This facility is also referred to as “Old Parish Prison.” E.g., Pl. Ex. 374, at 10; R. Doc. No. 405, at
26. The Court refers to this facility as the “original OPP” and to the seven facilities generally as
“OPP.”
6
Pl. Ex. 3; Pl. Ex. 374, at 7; Pl. Ex. 380.
7
Pl. Ex. 85; Pl. Ex. 370; Pl. Ex. 374, at 32; Pl. Ex. 380.
8
Pl. Ex. 88; Pl. Ex. 368; Pl. Ex. 374, at 13; Pl. Ex. 380.
9
Pl. Ex. 374, at 15; Pl. Ex. 380.
10
Pl. Ex. 374, at 16; Pl. Ex. 380.
11
R. Doc. No. 374, at 7.
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which collectively house approximately 500-600 inmates in a dormitory setting.12 Approximately
150 inmates may be present at the Intake Processing Center on a given day.13 Approximately 115
inmates may be present at the Warren McDaniels Transitional Work Center, also referred to as the
Broad Street work-release facility, on a given day.14
PROCEDURAL HISTORY
Although the conditions at OPP have long been the subject of litigation, this particular
lawsuit is the product of investigations and complaints arising in the past five years.15 In early 2008,
the Sheriff requested technical assistance from the National Institute of Corrections, a federal
agency, expressing particular concern as to OPP facilities’ staffing and emergency preparedness.16
After two outside consultants conducted a six-day site visit, they drafted a report examining
operations at OPP facilities, and focusing on staffing and emergency preparedness.17 They noted
12
Pl. Ex. 374, at 13-14; Pl. Ex. 380.
13
Pl. Ex. 380.
14
Pl. Ex. 380.
15
The litigation before the Court is separate from that in Hamilton v. Morial, which was ongoing for
approximately 40 years before that case was closed in 2008. See Hamilton Plaintiffs v. Williams
Plaintiffs, 147 F.3d 367, 368 (5th Cir. 1998) (“In 1969 a class action, Hamilton v. Schiro, was filed
in the Eastern District of Louisiana challenging conditions in the New Orleans Parish Prison. In
April 1970, the trial court found that the prison conditions were unconstitutional and issued a
remedial decree, including a prisoner population cap.”); see also Civil Action No. 69-2443, R. Doc.
No. 2007 (August 23, 2007) (dismissing plaintiffs’ claims without prejudice), adopted by Civil
Action No. 69-2443, R. Doc. No. 2041 (June 20, 2008) (“Magistrate Judge Chasez has done an
outstanding job through the years and all parties to this litigation were fortunate to have her preside
over this case. But this litigation has now run its natural course and the time has come to end it.”).
16
Pl. Ex. 3, at 3.
17
Pl. Ex. 3, at 6.
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OPP’s “pervasive and long standing problems,” which date back many years.18 The October 2008
report discussed some of the deficiencies alleged in this case and proposed general solutions.19
In September 2009, the United States, through the Department of Justice (“DOJ”), conducted
a site visit at OPP and issued a letter to the Sheriff, describing findings of unlawful conditions
related to inmate violence, staff use of force, mental health care, and environmental conditions.20 In
April 2012, DOJ issued a findings update letter to the Sheriff, reporting that unlawful conditions
persisted, notifying the Sheriff of discriminatory conditions not addressed in the previous letter, and
requesting that the Sheriff take immediate action.21
On January 18, 2012, three youth inmates, through their next friends, filed a sealed complaint
for injunctive and declaratory relief, alleging that unconstitutional conditions at OPP facilities
subjected them to substantial risks of bodily harm or death.22
On April 2, 2013, ten named OPP inmates (“Class Representatives”), seeking solely
injunctive relief, filed a complaint alleging that the Sheriff, the wardens of several OPP facilities,
OPP’s medical director, and its psychiatric director were violating OPP inmates’ Eighth and
18
Pl. Ex. 3, at 6.
19
E.g., Pl. Ex. 3, at 60-61 (“Current classification practices are inadequate and require substantial
improvements. . . . The Sheriff should request assistance from the National Institute of Corrections
to develop a comprehensive new approach to inmate behavior management, including the
development of a valid and effective system of inmate classification.”).
20
Pl. Ex. 1. DOJ issued a copy of the letter to Mayor Ray Nagin; T. Allen Usry, counsel for the
Sheriff; Penya Moses-Fields, City Attorney; and Jim Letten, United States Attorney for the Eastern
District of Louisiana.
21
Pl. Ex. 2. DOJ issued a copy of the letter to Mayor Mitch Landrieu; T. Allen Usry, counsel for the
Sheriff; Richard Cortizas, Acting City Attorney; and Jim Letten, United States Attorney for the
Eastern District of Louisiana.
22
Civil Action No. 12-138, R. Doc. No. 2.
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Fourteenth Amendment rights. Class Representatives specifically alleged that defendants fail to
provide constitutionally adequate medical care and mental health care.23 Class Representatives
further alleged that violent conditions of confinement subjected them to a substantial risk of serious
physical injury, to which defendants were deliberately indifferent.24 On the same day they filed their
complaint, Class Representatives filed a motion for certification of a class of plaintiffs consisting
of all current and future OPP inmates.25 The April 2 complaint was consolidated with the January
18 complaint.26 The Court refers to the class, including Class Representatives, as “Class Plaintiffs.”
Class Plaintiffs are represented by the Southern Poverty Law Center (“SPLC”).
Class Plaintiffs moved for a preliminary injunction, but discovery disputes delayed the
consideration of this motion.27 By September 21, 2012, however, the Court was advised that the
Sheriff intended to file a third-party complaint against the City, after which Class Plaintiffs would
file a motion for entry of a proposed consent judgment.28
On September 24, 2012, the United States moved to intervene in the April 2 lawsuit, stating
that such intervention would provide the most efficient resolution of Class Plaintiffs’ and the United
23
R. Doc. No. 1, at 36-37.
24
R. Doc. No. 1, at 37.
25
R. Doc. No. 2.
26
R. Doc. No. 13. Subsequent litigation has focused on the April 2 complaint. The named plaintiffs
in Civil Action No. 12-138, however, are parties to this settlement pursuant to its express terms and
implicitly as class members. See Consent Judgment, at 1.
27
E.g., R. Doc. No. 56.
28
R. Doc. No. 71.
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States’ overlapping concerns.29 The Court granted the United States’ unopposed motion.30 In its
complaint in intervention, the United States alleged that the Sheriff violates inmates’ Eighth and
Fourteenth Amendment rights by failing to protect inmates from harm, providing insufficient mental
health and medical care, and subjecting inmates to unconstitutional environmental conditions.31 The
United States also alleged that the Sheriff violates Title VI by unlawfully discriminating against
Latino inmates with limited English proficiency.32
On October 1, 2012, with leave of Court, the Sheriff filed two, substantively similar, thirdparty complaints against the City, one based on Class Plaintiffs’ claims and one based on the United
States’ claims.33 In each complaint, the Sheriff asserted that, “should judgment be rendered granting
any prospective relief against third-party plaintiff,” the Court should order the City of New Orleans
to pay the Sheriff “the full cost, as determined by the Court, of providing any prospective relief
ordered by this Court pursuant to 18 U.S.C. § 3626.”34
THE PROPOSED CONSENT JUDGMENT
On December 11, 2012, Class Plaintiffs, the United States, and the Sheriff moved for the
Court to approve a proposed consent judgment, notwithstanding the City’s decision to remain a
29
R. Doc. No. 68, at 3.
30
R. Doc. No. 69.
31
R. Doc. No. 70.
32
R. Doc. No. 70.
33
R. Doc. Nos. 75, 76.
34
R. Doc. Nos. 75, 76.
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nonparty to the agreement.35
The consent judgment is a 49-page agreement36 entered into by Class Plaintiffs, including
the named plaintiffs from each of the two consolidated cases, the United States, acting through DOJ,
and the Sheriff, in his official capacity.37 The consent judgment also functions as a settlement of
class members’ claims. According to the consent judgment:
The purpose of this Agreement is to address the constitutional
violations alleged in this matter, as well as the violations alleged in
the findings letter issued by the United States on September 11, 2009.
[OPP] is an integral part of the public safety system in New Orleans,
Louisiana. Through the provisions of this Agreement, the Parties seek
to ensure that the conditions in OPP protect the constitutional rights
of prisoners confined there. By ensuring that the conditions in OPP
are constitutional, the Sheriff will also provide for the safety of staff
and promote public safety in the community.38
The substantive provisions of the consent judgment are organized by subject matter:
protection from harm, mental health care, medical care, sanitation and environmental conditions,
fire safety, language assistance, and youthful prisoners. Each subject is divided into several
components, which address certain policies and practices. For example, mental health care is divided
into the following components: screening and assessment, treatment, counseling, suicide prevention
training program, suicide precautions, use of restraints, detoxification and training, medical and
mental health staffing, and risk management.39
35
R. Doc. No. 101.
36
This number does not include the cover page and table of contents, which constitute an additional
4 pages and are numbered separately.
37
Consent Judgment, at 1.
38
Consent Judgment, at 1.
39
Consent Judgment, at ii-iii.
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Within each subject and component, the substantive provisions are a mix of broad guidelines
and specific benchmarks. For example, under “screening and assessment” for mental health issues,
the consent judgment requires that the Orleans Parish Sheriff’s Office (“OPSO”) “[d]evelop and
implement an appropriate screening instrument that identifies mental health needs, and ensures
timely access to a mental health professional when presenting symptoms requiring such care.”40 In
particular, the consent judgment requires that inmates “with urgent mental health needs” receive an
assessment by a qualified mental health professional within 48 hours.41
With respect to oversight, the consent judgment provides that the parties to the agreement
“will jointly select a Monitor to oversee implementation of the Agreement,” with the Court resolving
selection disputes.42 Among other duties, the Monitor is responsible for providing the parties to the
agreement, the City, and the Court with periodic reports on the Sheriff’s compliance with the
consent judgment.43 The consent judgment provides that the Monitor will receive “full and
complete” access to OPP facilities, records, staff, and inmates.44
Separate from the appointment of a Monitor, the consent judgment obligates OPSO to “hire
and retain, or reassign a current OPSO employee for the duration of this Agreement, to serve as a
40
Consent Judgment, at 20.
41
Consent Judgment, at 20-21.
42
Consent Judgment, at 40-41. Monitor is defined to include “an individual and his or her team of
professionals.” Consent Judgment, at 3.
43
Consent Judgment, at 42. The consent judgment also requires the Sheriff to provide periodic
compliance reports to the Monitor, although the Monitor is “responsible for independently verifying
representations from [the Sheriff] regarding progress toward compliance, and examining supporting
documentation.” Consent Judgment, at 42.
44
Consent Judgment, at 41.
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full-time OPSO Compliance Coordinator.”45 According to the consent judgment:
At a minimum, the Compliance Coordinator will: coordinate OPSO’s
compliance and implementation activities; facilitate the provision of
data, documents, materials, and access to OPSO’s personnel to the
Monitor, SPLC, DOJ, and the public, as needed; ensure that all
documents and records are maintained as provided in this Agreement;
and assist in assigning compliance tasks to OPSO personnel, as
directed by the Sheriff or his or her designee.46
In addition, the Compliance Coordinator is responsible for collecting the information the Monitor
requires from OPSO.47
As to funding, the consent judgment sets forth a process by which the Court will “determine
the initial funding needed to ensure constitutional conditions of confinement at OPP, in accordance
with the terms of this Agreement, and the source(s) responsible for providing that funding at an
evidentiary hearing (‘funding trial’)” at which the parties to the agreement, as well as the City, shall
have the right to participate.48 After this time, the funding amount “may be adjusted” through a
process by which the Monitor attempts to resolve disagreements between the Sheriff and the City.49
If the Monitor is unable to do so within 45 days, the dispute is submitted to the Court.50
The Consent Judgment provides specific procedures with respect to enforcement. For
example, “if the Monitor, SPLC, or DOJ determines that Defendant has not made material progress
45
Consent Judgment, at 39.
46
Consent Judgment, at 39.
47
Consent Judgment, at 39.
48
Consent Judgment, at 38.
49
Consent Judgment, at 38.
50
Consent Judgment, at 38.
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toward Substantial Compliance with a significant obligation under the Agreement, and such failure
constitutes a violation of prisoners’ constitutional rights, SPLC or DOJ may initiate contempt or
enforcement proceedings against Defendant . . . .”51 Before taking such action, however, “SPLC or
DOJ shall give Defendant written notice of its intent to initiate such proceedings,” the parties shall
work in good faith to resolve the dispute, and “Defendant shall have 30 days from the date of such
notice to cure the failure . . . .”52 In the event of an emergency that poses “an immediate threat to the
health or safety of any prisoner or staff member at OPP, however, DOJ or SPLC may omit the notice
and cure requirements” and immediately pursue an enforcement proceeding.53
With respect to termination, the consent judgment provides that it “shall terminate when
Defendant has achieved Substantial Compliance with each provision of the Agreement and has
maintained Substantial Compliance with the Agreement for a period of two years.”54 As for
severability, if any consent judgment provision “is declared invalid for any reason by a court of
competent jurisdiction, said finding shall not affect the remaining provisions of the Agreement.”55
After Class Plaintiffs, the United States, and the Sheriff filed their motion for approval of the
consent judgment, briefing and conferences addressed the need for a fairness hearing.56 Ultimately,
it became clear that the City of New Orleans must also be given the opportunity to litigate the issue
51
Consent Judgment, at 43.
52
Consent Judgment, at 43.
53
Consent Judgment, at 43.
54
Consent Judgment, at 43.
55
Consent Judgment, at 44.
56
E.g., R. Doc. Nos. 113, 126.
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of whether the proposed consent judgment exceeds minimum constitutional standards, arguably
absolving the City of its funding obligation pursuant to state law and violating the Prison Litigation
Reform Act’s narrow tailoring requirement.57 Accordingly, the City was given the opportunity to
participate in the fairness hearing not just as an affected third party, but also as a party pursuant to
its status as a third-party defendant.58 In the interim, Class Plaintiffs filed an unopposed motion to
certify a settlement class, which superseded the original, presumably opposed, motion for class
certification.59
THE FAIRNESS HEARING
At a fairness hearing commencing on April 1, 2013, the Court considered whether the
proposed consent judgment was consistent with constitutional and statutory law and jurisprudence
such that it should be approved as between Class Plaintiffs, the United States, and the Sheriff.60 The
fairness hearing lasted four full days, and the parties introduced nearly 400 exhibits into evidence.61
Plaintiffs called four current and former OPP inmates, E.S., D.W., D.R., and A.S.62 Plaintiffs called
57
E.g., R. Doc. Nos. 107, 113.
58
E.g., R. Doc. No. 126.
59
R. Doc. No. 145; see also R. Doc. No. 2.
60
R. Doc. Nos. 384, 386, 389, 390.
61
The Court has provided record citations for its findings, but these citations are not exhaustive lists
of the evidence considered for a particular point. For example, the staggering level of violence at
OPP is evidenced by the testimony of the experts and inmates, the number of investigated assaults,
the high threshold required for such investigations, the records of hospital transports, and inmate
grievances.
62
These witnesses testified under their full names. As Katharine Schwartzmann, lead counsel for
Class Plaintiffs, summarized: “It has taken enormous bravery for the plaintiffs to come forward and
to tell the Court about their experiences. They have opened themselves up, their lives, their criminal
histories up to review, to scrutiny, to cross-examination, and . . . none of them stand to make a dollar
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four experts: Jeffrey Schwartz, an expert in “security and operations” of jails and prisons;63 Manuel
Romero, an expert in “jail administration, with a particular emphasis on security, staffing,
environmental conditions, food service and sanitation, fire conditions, and Limited English
Proficiency (“LEP”) services”;64 Dr. Bruce Gage, an expert in “correctional mental health care”;65
and Dr. Daphne Glindmeyer, an expert in “mental health and psychiatry, as well as juvenile mental
health in corrections.”66 Plaintiffs also called the twin sister of an inmate who committed suicide at
OPP while at the Intake Processing Center.67 The City called Andrew Kopplin, the City’s First
Deputy Mayor and Chief Administrative Officer.68 The Sheriff’s only witness was Sheriff Marlin
Gusman.69
The parties provided extensive briefing on the legal issues implicated by the pending motions
prior to the hearing.70 They also provided supplemental briefing after the hearing.71 In addition to
the evidence presented at the hearing, the Court considered approximately 150 public comments
out of this case.” R. Doc. No. 412, at 34.
63
R. Doc. No. 405, at 66.
64
R. Doc. No. 407, at 25.
65
R. Doc. No. 408, at 82.
66
R. Doc. No. 409, at 174-75.
67
R. Doc. No. 410, at 57-58.
68
R. Doc. No. 409, at 7.
69
R. Doc. No. 411, at 6.
70
E.g., R. Doc. Nos. 399, 416, 427.
71
E.g., R. Doc. Nos. 149, 197, 226-374, 387.
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submitted by both class members and non-class members.72 The Court addresses the motion for
approval of the consent judgment and the motion for certification of a settlement class in turn.
CONSENT JUDGMENT ANALYSIS
I. Standard of Law
Generally, before entering a consent judgment, also called a consent decree, courts must
decide whether it “represents a reasonable factual and legal determination based on the facts of
record, whether established by evidence, affidavit, or stipulation.” Williams v. City of New Orleans,
729 F.2d 1554, 1559 (5th Cir. 1984) (quoting United States v. City of Miami, 664 F.2d 435, 441 (5th
Cir. 1981)). Courts must also ascertain that the settlement is fair and that it does not violate the
Constitution, statutes, or jurisprudence. Id. (citing City of Miami, 664 F.2d at 441). “In assessing the
propriety of giving judicial imprimatur to the consent decree, the court must also consider the nature
of the litigation and the purposes to be served by the decree.” City of Miami, 664 F.2d at 441.
If a consent judgment potentially affects third parties, courts must carefully scrutinize it to
ensure that the effect “is neither unreasonable nor proscribed.” Williams, 729 F.2d at 1560 (quoting
City of Miami, 664 F.2d at 441). Courts must “safeguard the interests of those individuals who [are]
affected by the decree but were not represented in the negotiations.” Id.
Because the proposed consent judgment involves prospective relief with respect to prison
conditions, an additional level of review applies. The Prison Litigation Reform Act (“PLRA”)
provides:
Prospective relief in any civil action with respect to prison conditions
shall extend no further than necessary to correct the violation of the
Federal right of a particular plaintiff or plaintiffs. The court shall not
72
E.g., R. Doc. Nos. 138-40, 153-55, 159, 173, 177, 179, 219-23, 367.
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grant or approve any prospective relief unless the court finds that
such relief is narrowly drawn, extends no further than necessary 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.73
Through the PLRA, “Congress sought to curtail federal courts’ long-term involvement in prison
reform and halt federal courts from providing more than the constitutional minimum necessary to
remedy federal rights violations.” Frazar v. Ladd, 457 F.3d 432, 438 n. 19 (5th Cir. 2006) (citing
18 U.S.C. §§ 3626(a)(1)(A), (b)(3), (c)(1)). Compliance with the PLRA generally presents a higher
bar to approval of a consent judgment than that imposed by caselaw.74 The parties to the consent
judgment have stipulated that it complies with the PLRA,75 but the Court conducts an independent
inquiry.76
The U.S. Supreme Court addressed the PLRA’s narrow tailoring requirement in Brown v.
Plata, 131 S. Ct. 1910 (2011), a prisoner release order case. In that case, the Court explained:
“Narrow tailoring requires a fit between the remedy’s ends and the means chosen to accomplish
those ends. The scope of the remedy must be proportional to the scope of the violation, and the order
must extend no further than necessary to remedy the violation.” Plata, 131 S. Ct. at 1939-40
73
18 U.S.C. § 3626(a)(1)(A).
74
The Court remains mindful of the different standards, but concurrently addresses the constitutional
and statutory claims pursuant to both the jurisprudential standard and that set forth in the PLRA.
75
Consent Judgment, at 44.
76
The parties have not suggested the Court do otherwise. See R. Doc. No. 151, at 16 (arguing that
such a stipulation is insufficient); R. Doc. No. 156-2, at 2 (noting that “Plaintiffs will provide a
robust evidentiary record from which the Court can make the requisite findings under the [PLRA].
The Court need not rely on the PLRA stipulation . . . .”).
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(internal quotations and modification omitted) (quoting Bd. of Trustees v. Fox, 492 U.S. 469, 480
(1989)). Narrow tailoring does not require perfection. See Fox, 492 U.S. at 480 (Narrow tailoring
requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single
best disposition but one whose scope is in proportion to the interest served.”) (internal quotations
omitted). The Court must ensure that the relief provided in the proposed consent judgment is
narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is
the least intrusive means of doing so.
The Court must also “give substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the relief,” although the PLRA “does not require
the court to certify that its order has no possible adverse impact on the public.” § 3626(a)(1)(A);
Plata, 131 S. Ct. at 1941. “Whenever a court issues an order requiring the State to adjust its
incarceration and criminal justice policy, there is a risk that the order will have some adverse impact
on public safety in some sectors.” Plata, 131 S. Ct. at 1941. Accordingly, “[a] court is required to
consider the public safety consequences of its order and to structure, and monitor, its ruling in a way
that mitigates those consequences while still achieving an effective remedy of the constitutional
violation.” Id. at 1942.
II. Analysis
In asserting that conditions at OPP are unconstitutional, Plaintiffs face a high bar. To
demonstrate a violation of inmates’ constitutional rights, Plaintiffs must show a substantial risk of
serious harm to which prison officials were deliberately indifferent. Farmer v. Brennan, 511 U.S.
825, 834 (1994). Demonstrating deliberate indifference requires that prison officials must “both be
aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,
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and must also draw the inference.” Id. at 837. “[A] factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.” Gates v. Cook, 376 F.3d
323, 333 (5th Cir. 2004); see also Marsh v. Butler Cnty., 268 F.3d 1014, 1028 (11th Cir. 2001) (en
banc) (“Plaintiffs’ allegations that the County received many reports of the conditions but took no
remedial measures is sufficient to allege deliberate indifference to the substantial risk of serious
harm faced by inmates in the Jail.”).
Pretrial detainees and convicted prisoners “look to different constitutional provisions for
their respective rights to basic needs such as medical care and safety.” Hare v. City of Corinth, 74
F.3d 633, 639 (5th Cir. 1996) (en banc), rev’d on other grounds, 135 F.3d 320, 324 (5th Cir. 1998).
However, “no constitutionally relevant difference exists between the rights of pretrial detainees and
convicted prisoners to be secure in their basic human needs.” Id. at 647. Plaintiffs rely on the Eighth
Amendment standard for conditions of confinement.77 Because “a pretrial detainee’s due process
rights are said to be ‘at least as great as the Eighth Amendment protections available to a convicted
prisoner,’” this standard sets the minimal constitutional protections afforded to all OPP inmates. Id.
at 639 (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)); see also Alberti v.
Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986) (“Where dealing with the constitutionally rooted
duty of jailers to provide their prisoners reasonable protection from injury at the hands of fellow
inmates, we need not dwell on the differences in rights enjoyed by pre-trial detainees and convicted
persons or the maturation of prisoners’ rights in general.”) (quotation omitted).
The underlying constitutional violations alleged in this matter are systemic. As in Plata,
“[P]laintiffs do not base their case on deficiencies” that occurred “on any one occasion,” and the
77
E.g., R. Doc. No. 140, at 105.
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Court “has no occasion to consider” whether any individual deficiency would “violate the
Constitution . . . if considered in isolation.” 131 S. Ct. at 1925 n. 3. Rather, “Plaintiffs rely on
systemwide deficiencies” that allegedly subject inmates to a “substantial risk of serious harm” and
cause conditions in OPP “to fall below the evolving standard of decency that would mark the
progress of a maturing society.” Id.; see also Gates v. Cook, 376 F.3d at 333 (It is “important to note
that the inmate need not show that death or serious illness has occurred.”).
Specific examples of dysfunction at OPP are representative of systemic deficiencies. The
Court’s inquiry is not focused on whether any one of these examples demonstrates the violation of
a constitutional right. See Plata, 131 S. Ct. at 1925 n. 3; see also Alberti, 790 F.2d at 1225 (“We
need not determine whether any of these incidents individually constituted an Eighth Amendment
violation, for the evidence established that the totality of the circumstances in the jails were
condemnable.”). The Court must determine, however, whether the proposed consent judgment is
consistent with the PLRA.
“The Constitution does not mandate comfortable prisons, but neither does it permit inhumane
ones.” Gates v. Cook, 376 F.3d at 332. The Constitution requires that inmates receive adequate food,
clothing, shelter, medical care, and mental health care, and that detention facilities “take reasonable
measures to ensure the safety of the inmates.” Id. (citing Farmer, 511 U.S. at 832). The Fifth Circuit
has held that, with respect to conditions of confinement, even where “[e]ach factor separately, i.e.,
overcrowding dormitory barracks, lack of classification according to severity of offense, [] inmates
with weapons, lack of supervision by [] guards, absence of a procedure for confiscation of weapons,
may not rise to constitutional dimensions [], the effect of the totality of these circumstances [may
be] the infliction of punishment on inmates violative of the Eighth Amendment . . . .” Gates v.
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Collier, 501 F.2d 1291, 1309 (5th Cir. 1974). “Conditions of confinement may establish an Eighth
Amendment violation ‘in combination . . . only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need such as food, warmth, or exercise—for
example, a low cell temperature at night combined with a failure to issue blankets.” Gates v. Cook,
376 F.3d at 333 (quotation omitted). Remedying unconstitutional conditions of confinement is a
“necessarily aggregate endeavor, composed of multiple elements that work together to redress
violations of the law.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010).
These principles indicate that it is appropriate to consider the proposed consent judgment’s
provisions grouped according to subject matter. This approach recognizes the multiple
circumstances that have a “mutually enforcing effect” with respect to deficient conditions at OPP.
Additionally, it permits the Court to consider in the aggregate the proposed remedies relevant to
each underlying federal right. Accordingly, the Court will analyze the proposed consent judgment’s
provisions with respect to the following alleged deficiencies at OPP: (1) safety and security, (2)
medical care and mental health care, (3) environmental conditions, and (4) fire safety.78
A. Safety and Security
Manuel Romero, an expert in jail administration, with a particular emphasis on security,
staffing, and use of force,79 concluded that OPP is “totally dysfunctional in terms of overall
security,” and that it is an “unsafe facility for both staff and inmates.”80
78
In many cases, there is considerable overlap in the evidence relevant to different categories. For
example, OPP’s deficiencies in medication administration are relevant to inmate medical care,
inmate suicide, contraband practices, and inmate-on-inmate violence.
79
R. Doc. No. 407, at 25. Romero has evaluated and assessed “well over a hundred prisons and jails
in the United States.” R. Doc. No. 407, at 22.
80
R. Doc. No. 407, at 44.
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Jeffrey Schwartz, an expert in security and operations of jails and prisons, has worked with
more than 40 of the 50 state departments of corrections and toured hundreds of prisons and jails.81
He concluded that, in over 35 years of working with and reviewing jails and prisons, “OPP is the
worst jail I’ve ever seen,” and “it is likely the worst large city jail in the United States.”82 Schwartz
described an “extraordinary and horrific situation,”83 in which OPP is “plagued” by “suicides and
other in-custody deaths, rapes and other sexual assaults, stabbings, and severe beatings.”84
In 2012, OPP had over 600 transports to local emergency rooms for physical injuries, of
which far more than half were related to violence.85 A similarly sized jail in the Memphis, Tennessee
area had 7 emergency room transports related to violence in a comparable period of time.86 OPP’s
alarming levels of violence are directly attributable to numerous policies and practices that are
gravely deficient,87 including policies and practices associated with staffing and supervision,
contraband, classification, sexual assault, and training and accountability.
1. Staffing and Supervision
81
Schwartz founded a non-profit criminal justice training and consulting organization in 1972. Since
that time, he has worked with law enforcement and correctional agencies in the United States and
Canada. Pl. Ex. 372, at 1. Schwartz has evaluated and assessed approximately 300 prisons and jails.
R. Doc. No. 405, at 61-62.
82
R. Doc. No. 405, at 67-69; see also Pl. Ex. 372, at 5.
83
Pl. Ex. 372, at 69.
84
Pl. Ex. 372, at 11.
85
R. Doc. No. 405, at 77.
86
R. Doc. No. 405, at 78-77.
87
Pl. Ex. 374, at 16-17.
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Inadequate staffing is one of the most significant causes of the runaway violence at OPP.88
Schwartz concluded that OPP facilities “are the most poorly staffed correctional facilities I have ever
encountered.”89 Schwartz testified that while most correctional agencies might use the term
“understaffed” to indicate that perhaps 10% more staff are needed, OPP’s “realistic need” may be
at least 75% or 100% more staff.90 The Court questioned Schwartz as to how he reached these
estimates, and he replied that, after looking at a master roster and schedules, he tried to determine
“just roughly how many staff would it take just, not to fill all positions, but just to put a deputy every
shift in every tier. And that was my very rough estimate.”91 The original OPP, for example, often
operates with between 25-50% of its direct security posts unfilled.92 A single officer is sometimes
left responsible for supervising multiple floors of inmates.93 Shift after shift, across facilities,
security posts are left unstaffed.94
Even with an exceptionally low level of staffing, administrators prioritize staffing
nonsecurity posts before security posts, a practice opposite that used in most prisons and jails.95
Certain nonsecurity assignments may be staffed and operating in a relatively normal fashion, while
88
R. Doc. No. 412, at 38.
89
Pl. Ex. 372, at 8.
90
Pl. Ex. 372, at 8.
91
R. Doc. No. 405, at 78-79.
92
Pl. Ex. 85; Pl. Ex. 370.
93
Pl. Ex. 85; Pl. Ex. 370; Pl. Ex. 372, at 15; Pl. Ex. 374, at 11.
94
Pl. Ex. 372, at 16.
95
Pl. Ex. 372, at 9.
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staff are not present to patrol living units and common areas or to perform escort or transport
services.96
OPP does not maintain any policy or procedure with respect to minimum staffing levels
where, for example, staff may be required to work overtime to ensure that inmates are at least
minimally supervised.97 Watch commanders may be forced to schedule a shift with insufficient
officers, and merely “hope that nothing terrible happens.”98
The absence of staff at security posts means that staff members may not physically enter
housing units when doing routine security checks because OPP policy prohibits them from entering
housing units alone.99 It is a “rare occasion” for staff members conducting a security round to
“actually go in . . . and view all the inmates and view the cells and into the showers and the activity
areas.”100 The evidence indicates that security rounds are neither frequent enough nor thorough
enough to even minimally deter or detect inmate violence.101 Inmates “kick on the cell” or “take
something and ram it across the bars” with the hope that staff members will respond when assistance
is needed.102 As one inmate testified, this can take “30 minutes, maybe an hour, 40 minutes,
96
Pl. Ex. 372, at 9.
97
Pl. Ex. 372, at 15-16.
98
Pl. Ex. 372, at 15.
99
R. Doc. No. 407, at 71-73, 83; Pl. Ex. 374, at 11.
100
R. Doc. No. 407, at 71; Pl. Ex. 374, at 11-13.
101
Pl. Ex. 372, at 16-19; Pl. Ex. 374, at 10.
102
R. Doc. No. 406, at 113.
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whenever they get ready to come upstairs and see what’s going on.”103 The record is replete with
examples of inmate-on-inmate violence that demonstrate the manner in which a lack of supervision
permits such violence to flourish.
For instance, OPP records show that, on one particular evening, a deputy heard what he
believed to be inmates fighting on a tier, as well as statements like “stick your finger in his butt and
piss on him.”104 The deputy could not see what was going on, but he reported that he did not
investigate because OPP policy prohibits staff members from venturing onto the tiers alone.105 A
sergeant arrived “later in the night,” but there is no indication in the record that any OPP staff
member attempted to intervene at the time of the “altercation.”106
2. Contraband
Although the Court recognizes that possession of contraband in a correctional facility is not
necessarily unusual, OPP is plagued to a marked degree with contraband, including phones,
weapons, and drugs.107 Weapons, in particular, are “widespread and readily available to inmates.”108
Shanks are “rampant,” and the number of stabbings is “extremely high” and “very disturbing” for
103
R. Doc. No. 406, at 113.
104
Pl. Ex. 11; Pl. Ex. 374, at 11-12.
105
Pl. Ex. 11; Pl. Ex. 374, at 11-12; see also R. Doc. No. 407, at 71-72.
106
Pl. Ex. 11.
107
See Pl. Ex. 374, at 20, 23-24; City Ex. 13; R. Doc. No. 406, at 63; see also R. Doc. No. 411, at 82.
108
R. Doc. No. 405, at 86; see also R. Doc. No. 406, at 63, 161. The evidence shows that items like
mops, brooms, buckets, and coolers are frequently used in assaults. There is no effective system for
preventing inmates from using such items as weapons. See Pl. Ex. 372, at 21, 60.
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a facility the size of OPP.109 Inmates report having access to street drugs and contraband prescription
drugs.110 Despite repetitive problems with assaults and weapons, OPSO does not conduct regular
shakedowns in a manner that would minimize the presence of contraband.111 Compare Gates v.
Collier, 501 F.2d at 1308 (“Although many inmates possess weapons, there is no established
procedure for discovering and confiscating weapons, nor is possession of weapons reported or
punished.”).
Three videos, apparently filmed by inmates around the calendar year 2009112 and unearthed
the weekend before the fairness hearing, show inmates brandishing a loaded gun, using intravenous
drugs, gambling with handfuls of cash, displaying cell phones, drinking cans of beer, and cavorting
on Bourbon Street, having escaped OPP for an evening of leisure.113 These videos appear to have
been filmed at the now-closed House of Detention (“HOD”), in part to highlight the absence of
supervision and the poor environmental conditions.114 Whatever the history behind the videos,
inmates were able to blatantly engage in criminal conduct, which they literally announced was
occurring,115 without showing any concern for staff intervention. There was no suggestion that the
staff members responsible for supervising these inmates were ever identified, much less
109
Pl. Ex. 374, at 23-24, 24 n.6.
110
R. Doc. No. 406, at 63, 132-33.
111
Pl. Ex. 374, at 37.
112
R. Doc. No. 407, at 5.
113
City Ex. 13.
114
City Ex. 13 (“CNN, y’all gonna get first bid on this tape . . . Orleans Parish Prison exposed.”).
115
City Ex. 13 (“Pop me one of them beers open . . . Snort all that dope . . . .”).
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disciplined.116 The conduct in the video may have occurred several years ago, but the policies,
practices, and culture that enabled the outrageous conduct remain relevant.117
3. Classification
The failure to classify a substantial number of inmates risks “intermingling of inmates
convicted of aggravated violent crimes with those who are first offenders or convicted of nonviolent
crimes.” Gates v. Collier, 501 F.2d at 1308; see Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir.
1983) (“[F]ailure to control or separate prisoners who endanger the physical safety of other prisoners
can constitute cruel and unusual punishment.”). A functioning classification system ensures that
inmates are housed in a manner that increases the safety of inmates and staff by, for example,
identifying and separating inmates likely to be predators from inmates likely to be victims.118 In
conjunction with a lack of direct supervision, OPP’s utterly ineffective classification system is a
significant cause of the unprecedented levels of violence at OPP.119
On a sample date in December 2012, of the inmates who had proceeded past intake,
approximately 35% had not been classified in any manner.120 The unclassified inmates were
116
Romero testified that he would expect some staff involvement given the level of dysfunction. R.
Doc. No. 407, at 39-40. Such involvement would not be without precedent. In one documented
instance, a female staff member, who was engaged in a “romantic relationship” with an inmate,
warned the inmate to conceal a cell phone because of an upcoming shakedown. The staff member
also sent text messages to the same inmate on his cell phone both while she was on and off duty. The
staff member subsequently resigned. Pl. Ex. 58.
117
R. Doc. No. 407, at 35-36.
118
Pl. Ex. 372, at 12-14; Pl. Ex. 374, at 30-33; R. Doc. No. 407, at 46-47.
119
Pl. Ex. 372, at 14; R. Doc. No. 407, at 46-50, 53, 57-62.
120
Pl. Ex. 380; R. Doc. No. 406, at 82-85.
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“scattered across all of the facilities and in just about all of the tiers.”121 Of the approximately 2,400
inmates at OPP on that date, only one inmate was classified as a known victim and only four inmates
were classified as known predators, notwithstanding the staggering frequency of violence at OPP.122
Of the inmates who were classified, potential predators were mixed with potential victims, and high,
medium, and low security inmates were housed together, undermining the purpose of the
classification system.123 A sample four-person cell on the same date held a high security potential
predator, a high security nonpredator, a medium security nonpredator, and a low security
nonpredator.124 Schwartz testified that such housing should “not ever happen” because “it could be
explosive” given the “obvious potential” that “the two high security inmates, especially the one
that’s a potential predator, could be preying on the one that’s the lower security, or perhaps even on
the medium security.”125 See also Marsh, 268 F.3d at 1025 (“[P]retrial detainees were housed with
convicted inmates, nonviolent offenders with violent offenders, juveniles with adults, and mentally
ill persons with those in good mental health.”). OPP also does not effectively separate youth and
adult inmates.126
121
Pl. Ex. 380; R. Doc. No. 406, at 82-85.
122
Pl. Ex. 380; R. Doc. No. 405, at 83.
123
E.g., Pl. Ex. 380; R. Doc. No. 407, at 46-50, 53, 57-62. Staff members acknowledged to Romero
that correct placement of inmates was complicated by limitations associated with the number of beds
available for certain types of inmates. Accordingly, inmates may be placed where there is space
available, even if this placement is inconsistent with their classification. E.g., R. Doc. No. 407, at
53-54; see also Pl. Ex. 372, at 33 (noting that a juvenile requested a transfer because his roommate
“gets aggressive,” but deputies responded that “there is nowhere for him to go”).
124
R. Doc. No. 407, at 56-57.
125
R. Doc. No. 407, at 56-58.
126
Pl. Ex. 372, at 10; Pl. Ex. 378, at 41; see R. Doc. No. 1, at 35.
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Because OPP does not have an effective system for reclassification, inmates who have
violently assaulted other inmates may remain classified as “nonpredators.”127 The risk related to such
inaccurate information is compounded by the fact that an inmate’s disciplinary record does not
become part of his permanent record.128 Rather, an inmate receives a new disciplinary folder for each
OPP facility he stays in, and these folders do not follow the inmates during transfers.129 Facilities
do not always maintain an inmate’s disciplinary record once he leaves, and determining whether the
record was maintained requires a “time consuming search.”130 These practices indicate that staff
cannot rely on either an inmate’s classification or his disciplinary record when evaluating the
inmate’s risk of violence.131 The absence of such information plainly increases the risk of harm to
staff and to other inmates. Moreover, as discussed below, the classification process does not identify
or consider an inmate’s English proficiency.132
The importance of classification was illustrated by the following arc of one inmate’s violent
actions, which ultimately caused another inmate to suffer severe and permanent brain damage:
•
In August 2011, E.L., a 20-year-old male inmate, was observed repeatedly striking a 50year-old inmate in the face and back of the head in one of the Tents. The victim stated that
127
R. Doc. No. 405, at 83.
128
Pl. Ex. 372, at 49.
129
Pl. Ex. 372, at 49.
130
Pl. Ex. 372, at 49.
131
See R. Doc. No. 405, at 108 (“The same inmates who are a danger to other inmates are typically
the most dangerous inmates for staff.”); R. Doc. Nos. 228-29 (describing E.L.’s attacks on staff
members). The Court is not familiar with E.L.’s classification status, as he was apparently not
present at OPP on the date for which the classification census was sampled. See Pl. Ex. 380.
132
See R. Doc. No. 407, at 109, 112.
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E.L. “needed his medication.” E.L. was too “hostile and combative” to be interviewed about
the event, and he threw a large trash can at one deputy and spit on another deputy’s face. In
a separate incident, he threw a wet towel at a third deputy’s back, angry that she was moving
his belongings to another Tent in response to the assault.133
•
In September 2011, at HOD, E.L. began punching a 24-year-old inmate in the face because
the other inmate was using a toilet that E.L. wanted to use. He threw the inmate into the bars
of the cell hard enough to cause a head injury that required hospital treatment.134
•
In October 2011, another inmate requested to be moved to a different HOD tier because E.L.
was antagonizing him by throwing ice and water on him and attempting to fight him. The
grievance was denied because the inmate “had enemies” on the other side of the same tier,
and the record does not suggest the inmate was offered any relief.135
•
In December 2011, E.L. had been antagonizing a certain deputy at HOD. At some point, E.L.
was able to defeat the locking mechanism on his cell door, arm himself with a broken
broomstick, and attack the deputy, hitting him in the face with the broomstick and fracturing
his jaw. He also struck another deputy with the broomstick, possibly fracturing the deputy’s
hand.136
•
On June 18, 2012, K.M., a Templeman V inmate, reported via a sick call request that he had
133
Pl. Ex. 223; Pl. Ex. 225; Pl. Ex. 227.
134
Pl. Ex. 226.
135
Pl. Ex. 224.
136
Pl. Ex. 229.
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his “two teeth knocked out in a physical altercation on my tier.”137 On June 26, K.M.
reported the attack to the Special Operations Division (“SOD”) and identified E.L. as his
attacker.138 He stated that he had not come forward sooner because E.L. “bullies all the older
inmates,” and K.M. was scared for his life.139
•
On June 23, 2012, at Templeman V’s A-3 tier, a “step down psychiatric tier,”140 E.L.
punched T.S., a 65-year-old man, several times in the face hard enough to knock him
backwards. T.S. struck his head on a metal bench as he fell. A detective conducting a routine
security check discovered T.S. lying on the ground with a pool of blood around his head. The
punches and the strike to the back of the head caused T.S.’s brain to hemorrhage, resulting
in a permanent, nearly “brain dead” state.141
E.L., an aggressive and predatory inmate with a penchant for administering blows to the head and
face and for preying upon older inmates, ultimately caused T.S.’s severe and permanent brain
damage.
E.L.’s attacks, which occurred across a variety of prison facilities, illustrate that, in the
137
Pl. Ex. 246.
138
Pl. Ex. 230.
139
Pl. Ex. 230. The Court notes that there is no suggestion in the record that anyone investigated the
identity of K.M.’s assailant despite the fact that his sick call request expressly cited an altercation
as the source of his injuries. OPP does not utilize the data recorded by medical services to identify
acts of violence, and medical staff are not subject to any policy that would encourage them to report
injuries resulting from violence. Pl. Ex. 259, at 57-62; Pl. Ex. 372, at 56.
140
Pl. Ex. 371.
141
Pl. Ex. 222. E.L. subsequently trapped a deputy at Templeman V by grabbing his hand through
a cell door food slot, and punching him in the face. The deputy was routed to the hospital. Pl. Ex.
228.
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absence of adequate staffing and supervision, “even a low security housing unit with an
unsophisticated inmate population will sink toward the lowest common denominator.”142A lack of
staff supervision and a lack of effective inmate classification result in OPP’s most vulnerable
inmates, including the mentally ill and elderly, falling prey to OPP’s most dangerous inmates.143
4. Sexual Assault
OPP has an extraordinarily high level of rapes and sexual assaults, unprecedented in the
many facilities toured by Romero.144 However, the number of investigations into such conduct is
“minuscule.”145 A DOJ Review Panel (“Panel”) on prison rape selected OPP as a representative
high-incidence facility for discussion at a public hearing.146 The Panel was “deeply disturbed by the
apparent culture of violence at OPP.”147
142
Pl. Ex. 372, at 15. Staffing records for Templeman V were provided with respect to a period
ranging from May 2012 to December 2012. These records reflect that, more often than not, there
was no deputy even assigned to A-3, the tier on which T.S. was attacked. Pl. Ex. 371.
143
See also R. Doc. No. 405, at 82-83 (describing mentally ill and developmentally disabled inmates
as vulnerable); R. Doc. No. 406, at 153 (describing mentally ill or developmentally disabled inmate
forced to do “sexual dances”).“A substantial number of inmates on suicide watch” claim suicidality
to avoid disciplinary segregation. Pl. Ex. 372, at 50. “That produces a toxic stew of acute psychiatric
inmates, acute suicidal inmates and disciplinary segregation inmates. It is an accident waiting to
occur.” Pl. Ex. 372, at 50; see also Pl. Ex. 260, at 106-07 (OPP’s medical director estimates that at
least 90 percent of inmates who report being suicidal are not, in fact, suicidal).
144
Pl. Ex. 374, at 38.
145
R. Doc. No. 405, at 121.
146
Pl. Ex. 4, at 4. Although the Panel began with a focus on the now-closed South White Street Jail,
it shifted its focus to OPP operations as a whole. Pl. Ex. 4, at 73. The Panel acknowledged that the
shift in focus was, in part, related to the United States’ allegations underlying this lawsuit. Pl. Ex.
4, at 73. The Court is mindful of the relationship between the Panel’s report, follow-up measures,
and the United States’ complaint in intervention, and it has weighed the evidence accordingly.
147
Pl. Ex. 4, at 82.
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Calculating the incidence rate of sexual assault at OPP is difficult.148 The grievance logs for
July 20, 2012, through December 19, 2012, were missing entries.149 In October, the only full month
for which data is available, there were 30 grievances reporting sexual assault and no
investigations.150 The most investigations occurred in November, when there were two investigations
and 26 grievances reporting sexual assault, not including missing entries.151 OPP staff members have
a pattern of tolerating sexual misconduct, as demonstrated by the lack of repercussions for inmates
who engage in such misconduct in plain view of deputies.152
There is no consistent practice by which staff respond to inmate reports of sexual assault.153
While in some cases inmates are quickly assessed and treated, Schwartz testified that, in “far too
many cases, none of the right things happen.”154 Most often, nothing happens.155 “The standard used
by OPP investigators seems to be that, short of having forensic evidence in the form of DNA or
documented injury to a body orifice, there was no sexual misconduct.”156 Staff sometimes publicly
148
The Court does not rely on the sexual assault rate suggested by Plaintiffs, as its applicability to
current OPP facilities has not been established. See R. Doc. No. 416, at 42. In any case, however,
sexual assault at OPP is all too common, and in part directly attributable to the absence of inmate
supervision.
149
Pl. Ex. 353.
150
Pl. Ex. 353.
151
Pl. Ex. 353.
152
Pl. Ex. 374, at 38-41.
153
R. Doc. No. 405, at 112-13.
154
R. Doc. No. 405, at 113; see also Pl. Ex. 60.
155
Pl. Ex. 372, at 38.
156
Pl. Ex. 374, at 38.
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make derisive comments when an inmate reports a sexual assault, resulting in an announcement of
the victim’s status and a strong display of tolerance for sexual assault.157
A video admitted into evidence portrays an interview with an inmate who reported a sexual
assault.158 The inmate is “Mirandized,”159 repeatedly told that nothing happened,160 and further
informed that the absence of detectable physical injury one week after the alleged assault proved it
did not occur.161 Identifying false reports is a valid objective, but the testimony and other evidence
presented at the hearing suggest that the practices used to investigate sexual assaults have the effect
of discouraging bona fide reports, embarrassing inmates who come forward, and instilling in staff
and inmates the impression that such reports can be quickly discounted.162
E.S., a former OPP inmate, testified that, on a daily basis at the original OPP, he saw
violence, including “[f]ights, stabbings, people being sexually assaulted, just, you know, your
157
R. Doc. No. 405, at 112-13.
158
Pl. Ex. 5 (video and transcript).
159
See Pl. Ex. 5, at 54. According to Schwartz, it is common for OPP inmates who report sexual
assaults to be Mirandized. R. Doc. No. 405, at 115 (“Before hello or anything else, the first thing
that
the investigator does is to Mirandize the victim.”).
160
Pl. Ex. 5, at 41-42, 51.
161
Pl. Ex. 5, at 41-42, 51.
162
See R. Doc. No. 406, at 89. Schwartz asked staff members about inmates who report sexual
assaults. According to Schwartz, “nobody said every inmate is lying,” but staff suggested “most of
these inmates are fabricating,” to some extent. Schwartz also noted that “SOD staff continually
violate the most crucial principle of medical care and mental health care in jails[:] custody and
security staff may not act as gatekeepers for health or mental health services.” When SOD members
determine a sexual assault report is unfounded, they refuse to provide the inmate with even a
“cursory medical assessment.” Pl. Ex. 372, at 39.
-31-
average violence on the streets taken to the jailhouse.”163
One night, after the lights were turned out at 10:30 p.m., E.S. was attacked by a group of 1014 inmates.164 They ripped off his clothes and attempted to tie him up with pieces of string, but he
was able to break free.165 They then used a razor to cut strips of fabric from an inmate uniform.166
After they hog-tied E.S. with the fabric, they sexually assaulted him.167 E.S. testified that one inmate
“stuck his finger into my anal area,” another inmate “stuck a toothbrush into my anal area,” and
another inmate “actually stuck his tongue in my anal area.”168 The attackers “took toothpaste and put
it between my buttocks area.”169 Next, they tied a blanket around E.S.’s face and continued beating
him.170 E.S.’s gasps for air were worrisome enough that one inmate retrieved an “asthma puffer” for
him, although E.S. did not have asthma, but the beating continued.171 The inmates kicked E.S. in the
stomach and ribs and struck the back of his head with a mop and bucket.172
At some point, the assailants picked up E.S. and carried him to a new location at the back
of the dormitory, where they released him from the hog-tied position and tied him to a post, with his
163
R. Doc. No. 405, at 26-27.
164
R. Doc. No. 405, at 30.
165
R. Doc. No. 405, at 31.
166
R. Doc. No. 405, at 31.
167
R. Doc. No. 405, at 31-32.
168
R. Doc. No. 405, at 32.
169
R. Doc. No. 405, at 32.
170
R. Doc. No. 405, at 32.
171
R. Doc. No. 405, at 32-33.
172
R. Doc. No. 405, at 31, 33.
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back to the post.173 At this point, four to six inmates began punching him repeatedly.174 He was
subsequently untied and repositioned to face the post.175 The attackers threw hot water and possibly
urine on E.S., and beat him so severely with a mop stick that the skin was ripped from his back and
buttocks.176 E.S. was still naked.177 At some point during this phase of the attack, a guard performed
a routine check, but he did not walk far enough down the hall to notice E.S., naked, bound, and
beaten.178 E.S. reported that he did not cry out because he was certain that he would be killed if he
did so.179
In the final phase of the attack, the inmates fashioned “some type of thong, like a woman’s
thong” from strips of uniform fabric.180 They forced E.S. to put it on and, E.S. testified, in an attempt
to be “comical” or to “embarrass me or something in front of the dormitory . . . they made me dance.
I don’t even know how to dance. So I just basically was just moving my hands . . . If I would do
anything crazy I knew they were going to kill me for sure. There’s no doubt in my mind.”181 E.S.
173
R. Doc. No. 405, at 33-34.
174
R. Doc. No. 405, at 34.
175
R. Doc. No. 405, at 34.
176
R. Doc. No. 405, at 34-35.
177
R. Doc. No. 405, at 35.
178
R. Doc. No. 405, at 38-39. E.S. testified that he would have been “shocked” if the guard actually
walked down the tier but, had the guard done so, “[i]t would have probably saved me.” R. Doc. No.
405, at 41.
179
R. Doc. No. 405, at 39.
180
R. Doc. No. 405, at 36.
181
R. Doc. No. 405, at 36.
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reported that “90% of the crowd had knives in their hands visible.”182
After the episode in which the attackers made E.S. dance, they made him shower.183 They
forced him to sit in a mop bucket and “pushed it to the front of the shower, everybody laughing, ha,
ha, ha . . . .”184 E.S. indicated the assault lasted hours.185 While E.S.’s assault resulted in an
investigation, where OPP staff “brought the whole dorm down,” E.S. did not receive medical
treatment for nearly a year.186
E.S.’s testimony parallels a report by another inmate, A.A.,187 in which a group of inmates
tied A.A. to a bunk using strips of inmate clothing and then sexually assaulted him.188 After A.A.
reported the assault on January 4, 2012, SOD’s investigation included photographing A.A.’s wrist
abrasions, which a nurse confirmed were “consistent with [] having been tied up.”189 Another inmate,
whom A.A. identified as a witness, confirmed that he knew something was happening because
182
R. Doc. No. 405, at 36.
183
R. Doc. No. 405, at 36-37.
184
R. Doc. No. 405, at 37.
185
R. Doc. No. 405, at 37-38.
186
Additional details from E.S.’s testimony reveal other troubling circumstances surrounding his
assault, including that it may have been foreseeable and preventable as an act of retaliation against
E.S., organized by someone against whom E.S. was a witness in a criminal trial. R. Doc. No. 405,
at 47-48.
187
These initials are used for convenience. The inmate’s name has been obscured in the record,
although other identifying information is available.
188
The record suggests that this was one of two sexual assaults A.A. experienced at OPP. Pl. Ex. 324.
189
The abrasions were still visible on January 11, 2013. Pl. Ex. 324.
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inmates were going in and out of the area where A.A. was restrained.190 A.A. identified five attackers
using photographs of other inmates in the tier.191 A.A. was transferred to a mental health hospital
in Baton Rouge one week later, and the SOD investigation was closed.192
While the incident was referred to the office of the Orleans Parish District Attorney, that
office determined that “based on the circumstances and statements given, we would not likely
prosecute this case if an arrest was made.”193 Aside from this referral, there is no evidence that action
was taken to protect other inmates on the tier from the individuals who had forcibly bound and
sexually assaulted A.A.194 OPP’s practice of terminating a sexual assault investigation when a victim
leaves a facility permits sexual predators to continue to prey on other inmates.195
The Court reiterates that the details of the described assaults are not discussed because they
are brutal, although they are that, but because they are emblematic of systemic deficiencies in inmate
safety and security. See Alberti, 790 F.2d at 1225 (“We recite the incidents of violence and sexual
assault which follow not to exhaustively catalog conditions in the jails but to provide examples of
the nature of evidence presented at the hearings.”). As far as the Court is aware, no staff members
were identified, confronted, or otherwise held accountable for their absence during the nights in
190
Pl. Ex. 324. Schwartz’s testimony suggested this witness was a deputy. R. Doc. No. 405, at 11718. The Court discounts this suggestion as a likely misstatement because it is inconsistent with the
underlying evidence.
191
Pl. Ex. 324.
192
Pl. Ex. 324.
193
Pl. Ex. 324.
194
R. Doc. No. 405, at 118-19.
195
E.g., Pl. Ex. 67; R. Doc. No. 405, at 119. According to A.A., he was “not the only one being tied
up” and subjected to such attacks. Pl. Ex. 324.
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which E.S. and A.A. were assaulted.
5. Training and Accountability
Accountability systems are fundamental to prisoner and staff safety.196 Such systems include
use of force policies, investigations, incident reporting, and grievance procedures.197 Many, and
perhaps even most, of OPP’s accountability systems are ignored or directly contravened on a
“wholesale basis.”198The Court addresses in turn OPP’s grievance system, use of force policy and
investigations, and reliance on tier reps.
a. Grievance System
A grievance system permits inmates to make a written report to address anything from minor
complaints to sexual assaults.199 Grievances alert administrators to individual problems as well as
to potential patterns of problems.200
Grievances at OPP are sometimes effectively ignored because they are not addressed until
an inmate leaves, at which time they are closed.201 For example, in a February 17, 2011 grievance,
an inmate reported that he had been beaten and stabbed and that his fingers had been broken.202 The
196
Pl. Ex. 374, at 33.
197
Pl. Ex. 374, at 33.
198
Pl. Ex. 372, at 11.
199
R. Doc. No. 405, at 122-23.
200
R. Doc. No. 405, at 123.
201
R. Doc. No. 405, at 125-26.
202
Pl. Ex. 302; R. Doc. No. 405, at 123.
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inmate requested a transfer, stating that he feared for his life.203 The grievance was closed on March
1, when the inmate was discharged, but his transfer request and reports of assaults were never
addressed.204 In another instance, an inmate reported being beaten by deputies on October 25,
2011.205 He described knots on his head related to the beating and a sick call request that was
ignored.206 The grievance sought medical attention, and the inmate specifically requested x-rays of
his head.207 Approximately three months later, the grievance was closed because the inmate left
OPP.208 His sick call request—and allegations of staff misconduct—were apparently never
addressed.209 OPP staff suggested that, with respect to inmate-on-inmate violence, there is only an
investigation when an inmate requires stitches.210
The failure of OPP to address even emergency grievances in a timely manner is
inexplicable.211 Grievance procedures have improved in the last year but they still fall far short, and
the Court requires assurance that these improvements will continue.212
203
Pl. Ex. 302; R. Doc. No. 405, at 123.
204
Pl. Ex. 302; R. Doc. No. 405, at 123-24.
205
Pl. Ex. 305.
206
Pl. Ex. 305.
207
Pl. Ex. 305.
208
Pl. Ex. 305.
209
Pl. Ex. 305; R. Doc. No. 405, at 124.
210
Pl. Ex. 374, at 37.
211
R. Doc. No. 405, at 125-26.
212
Pl. Ex. 372, at 47.
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b. Use of Force & Investigations
OPP has deeply ingrained problems with respect to staff members’ uncontrolled use of force
on inmates.213 OPP’s investigative process for staff and prisoner misconduct fails to address, and is
itself part of, the many operational breakdowns in OPP’s accountability systems.214 As with any jail
or prison, use of force is a legitimate and “necessary component” of maintaining order at OPP.215
A use of force policy ensures that staff are aware of the level of force that is appropriate in a given
situation and provides guidance with respect to the use of force needed to avoid unnecessary
injuries.216
While OPP staff members report efforts to implement change, these efforts are in their
infancy.217 OPP’s use of force policy was rewritten somewhat recently, but it remains ineffective
because staff members are not familiar with it and supervisors do not hold staff members
accountable to the policy.218 In short, the policy is routinely ignored altogether.219 For example,
while the Internal Affairs Division (“IAD”) is charged with use of force investigations pursuant to
the new policy, SOD continues to handle such investigations.220 Similarly, while the new policy calls
213
Pl. Ex. 372, at 11, 40; Pl. Ex. 374, at 34.
214
Pl. Ex. 374, at 37.
215
Pl. Ex. 374, at 33.
216
R. Doc. No. 405, at 88.
217
Pl. Ex. 372, at 40; Pl. Ex. 374, at 34.
218
R. Doc. No. 405, at 87.
219
Pl. Ex. 372, at 28.
220
R. Doc. No. 405, at 92.
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for a use of force “review board,” there is no such board, despite the fact that the policy is more than
a year old.221
One of the most egregious allegations of use of force suggested that an officer ordered “hits”
on particular inmates, either by instructing a tier rep to arrange a hit or by placing the inmate in an
area where known enemies made violence likely.222 The same officer was later arrested after
punching an inmate, who additionally reported that the officer had threatened to have the inmate
assaulted.223 See Cantu v. Jones, 293 F.3d 839, 845 (5th Cir. 2002) (“The jury found that the
appellants essentially orchestrated the attack. This is in no way reasonable behavior for a prison
official.”). The same officer had previously been accused of punching a restrained inmate, but the
investigator did not question any of the witnesses, including the officer, about whether it occurred.224
Not surprisingly, given the absence of elicited evidence, the prior allegation had not been
sustained.225
As noted above, SOD investigates use of force reports, including reports of force by SOD
members.226 In at least one documented instance, the same officer who used force on an inmate
authored the report that determined such level of force was appropriate.227 Training records suggest
221
R. Doc. No. 406, at 87.
222
R. Doc. No. 405, at 101-02; Pl. Ex. 56.
223
R. Doc. No. 405, at 101-02; Pl. Ex. 56.
224
R. Doc. No. 405, at 102.
225
R. Doc. No. 405, at 102.
226
Pl. Ex. 372, at 40. Schwartz describes SOD as a tightly knit unit, which staff members perceive
as elite. Pl. Ex. 372, at 40.
227
R. Doc. No. 405, at 90-91; Pl. Ex. 275.
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that SOD members do not receive any in depth or specialized training relative to investigations.228
The training that OPSO staff members generally receive includes materials focused on police
investigations and car stops, but there is no indication of regular or in-service training relative to the
conduct of investigations in a jail or prison environment.229 OPP does not effectively track use of
force or reports of staff misconduct.230
c. Tier Reps
Tier representatives (“tier reps”) are inmates in charge of maintaining order on their tiers.231
OPP staff members report that tier reps help with communication and represent their living units
when inmates are given a say in decisionmaking.232 OPP inmates report that tier reps control phone
time, make decisions about inmate housing, and occasionally administer beatings to other inmates
at the behest of staff.233 Tier reps have the power to distribute food, including determining how much
food to distribute per serving and whether to dole out “seconds.”234 As Schwartz stated, “food is one
of the small number of ‘hot button’ items for almost all inmates,” so this kind of power can be “used
228
Pl. Ex. 372, at 40.
229
Pl. Ex. 372, at 40.
230
Pl. Ex. 372, at 40.
231
Pl. Ex 372, at 43; Pl. Ex. 374, at 17; R. Doc. No. 406, at 136-37. Although discussed in this
subsection, the use of tier reps is relevant to several aspects of inmate safety and security.
232
Pl. Ex. 372, at 43.
233
Pl. Ex. 372, at 43-44; Pl. Ex. 374, at 17. Public comments from inmates endorsing the proposed
consent judgment also discuss such “hits.” See, e.g., R. Doc. No. 240.
234
Pl. Ex. 372, at 43.
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to extort other inmates and also be a source of confrontation or violence.”235
Given the fundamental flaws in OPP’s classification system, predatory or aggressive inmates
may become tier reps.236 Testimony from D.R., an inmate sexually harassed and assaulted by a tier
rep, illustrates that tier reps have the opportunity to assault other inmates and to discourage reporting
of such assaults.237 D.R. testified that his tier rep, C.C., would “sometimes, early in the morning, take
the television from Cell 1 and turn it towards the shower and put the aerobics channel on so he could
go into the shower and masturbate.”238 One morning, C.C. ordered D.R. to get in the shower.239 C.C.
followed him, carrying a shank,240 and proceeded to sexually assault D.R.241 D.R. waited for
approximately one week to report the assault, because “I had to think of a way to get around the
immediate sergeants or officers that were in the building” so that the report would not reach C.C.
before D.R. could be transferred.242 Ultimately, after reporting the assault, D.R. was successful in
235
Pl. Ex. 372, at 43-44; Pl. Ex. 374, at 17; see also Pl. Exs. 43, 47, 55 (describing stabbings related
to food distribution); R. Doc. No. 406, at 138 (noting fights resulted from tier rep’s manipulation
of food distribution); R. Doc. No. 407, at 43.
236
See, e.g., Pl. Ex. 32; see also Pl. Ex. 372, at 44. This statement assumes that OPP would not
knowingly choose such inmates to be tier reps. But see Pl. Ex. 372, at 44 (“A male inmate casually
referred to the fact that the staff usually picked the person they perceived to be the toughest inmate
on the unit as the tier rep.”).
237
R. Doc. No. 406, at 136-42.
238
R. Doc. No. 406, at 138.
239
R. Doc. No. 406, at 138.
240
R. Doc. No. 406, at 138-39.
241
R. Doc. No. 406, at 139.
242
R. Doc. No. 406, at 141-42. In another instance, female inmates reported tier reps openly engaging
in sexual activities with other inmates, which an investigation confirmed. Pl. Ex. 374, at 18.
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his request to be transferred to another tier, although while on the “at risk” tier at Conchetta he
suffered an additional physical assault.243
At Conchetta, D.R. attempted to break up a fight because of a concern that another inmate
“was about to get really beat up.”244 Before he could reach the fight, “I felt someone strike me in the
back of the head . . . . I balled up on the ground and I felt blows to my forehead, to my back, and to
my legs.”245 After he reported the assault, D.R. cooperated by describing his attacker’s physical
appearance.246 SOD staff initially brought an individual to D.R. in order to determine if D.R. could
identify that individual as his attacker.247 D.R. testified that he believed that individual had been
physically assaulted by SOD in retaliation for the attack on D.R.248 The individual had blood around
his teeth and blood was also trickling from his mouth.249 D.R. informed SOD that the individual was
not his attacker, and D.R. was returned to the tier, notwithstanding the fact that his true attacker
remained on the tier.250 D.R. learned his assailant’s name at roll call the next morning, and reported
that discovery in a grievance.251 Although D.R. and the attacker were both moved, they were “moved
243
R. Doc. No. 406, at 142-43.
244
R. Doc. No. 406, at 143.
245
R. Doc. No. 406, at 143.
246
R. Doc. No. 406, at 144.
247
R. Doc. No. 406, at 145-46.
248
R. Doc. No. 406, at 145.
249
R. Doc. No. 406, at 145.
250
R. Doc. No. 406, at 146.
251
R. Doc. No. 406, at 146-47.
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together at the same time” and left alone together in a holding cell.252 D.R. reported “I was just
sitting there kind of on pins and needles, hoping that he didn’t realize exactly what was going on.”253
According to Romero, OPP has established an informal culture in which tier reps “make up
for deficient staffing realities to help supplement facility order, which is a dangerous and reckless
practice.”254 As Schwartz stated, the “use of tier reps is a corrupt practice,” in which it is “inevitable
that some of the tier reps will abuse their positions.”255 The risk of “arbitrary infliction” of “physical
and economic injury” is present whenever an inmate has “unchecked authority” over other inmates.
Gates v. Collier, 501 F.2d at 1307.
One especially troubling situation illustrates deficiencies associated with the use of tier reps,
but also broader deficiencies related to staff accountability. OPP records show that a high-ranking
male security officer regularly observed a female tier rep showering and escorted her to a private
office after hours for “prolonged periods of time.”256 His actions were reported and confirmed by
two staff members.257 Inmates also witnessed the shower viewings, as well as the private office
visits.258 Inmate witnesses reported that the tier rep would frequently engage in physical altercations
252
R. Doc. No. 406, at 147.
253
R. Doc. No. 406, at 147.
254
Pl. Ex. 374, at 19.
255
Pl. Ex. 372, at 44.
256
Pl. Ex. 26.
257
Pl. Ex. 26.
258
Pl. Ex. 26.
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with other inmates, but the tier rep was never included in the corresponding incident reports.259 The
inmate at issue reportedly said that the officer promised to transfer money into her account once she
left OPP for a new facility.260
Despite the witnessed sexual misconduct, the officer was permitted to resign, and there was
never an investigation because of “insufficient evidence, the lack of witnesses and the statements
taken.”261 The extent to which other staff members, including those tasked with supervising the
female inmates, knew of the conduct is unclear because of the lack of an investigation.262 This is not
the only documented instance of a staff member engaging in sexual conduct with an inmate.263 The
Court notes that, while not addressed in the sexual assault section of this opinion, sexual or romantic
“relationships” between staff members and inmates are never acceptable and are, at best, implicitly
coercive.
6. Conclusion
“It is well established that prison officials have a constitutional duty to protect prisoners from
violence at the hands of their fellow inmates.” Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006)
(citing Farmer, 511 U.S. at 832-33). The proposed consent judgment addresses the proven
deficiencies relative to inmates’ safety and security. For example, it requires OPSO to ensure
adequate staffing, regular security rounds, and direct supervision in units designed for this type of
259
Pl. Ex. 26.
260
Pl. Ex. 26.
261
Pl. Ex. 26. The same staff member was involved in an altercation with an inmate in which the staff
member admitted to using shackles to choke the inmate. Pl. Ex. 7.
262
Pl. Ex. 26.
263
See Pl. Ex. 41; Pl. Ex. 61.
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supervision.264 It also requires the development of a classification system that takes into account
factors including security needs, suicide risk, and risk of violence or self-harm.265 The proposed
consent judgment also requires that the classification system be updated to reflect an inmate’s
history at OPP.266 These provisions directly address OPP’s deficiencies with respect to inmate-oninmate violence, including sexual assault.
With respect to training and accountability, the consent judgment provides that OPSO “shall
develop, implement, and maintain comprehensive policies and procedures (in accordance with
generally accepted correctional standards) relating to the use of force” and shall “develop and
implement a single, uniform reporting system.”267 An “Early Intervention System” will document
and track staff members involved in use of force incidents.268 The consent judgment requires “timely
and thorough investigation of alleged staff misconduct, sexual assaults, and physical assaults of
prisoners resulting in serious injury.”269
OPP inmates are subject to an epidemic of violence.270 The operational and administrative
dysfunction of OPP’s accountability systems put staff members and inmates at risk on a daily basis.
Compare Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc) (“[C]onditions
264
Consent Judgment, at 12-13.
265
Consent Judgment, at 17-18.
266
Consent Judgment, at 18.
267
Consent Judgment, at 5.
268
Consent Judgment, at 10-11.
269
Consent Judgment, at 16.
270
Pl. Ex. 352, at 11.
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in a jail facility that allow prisoners ready access to weapons, fail to provide an ability to lock down
inmates, and fail to allow for surveillance of inmates pose a substantial risk of serious harm to
inmates.”). The Court concludes that with respect to safety and security, the proposed consent
judgment “represents a reasonable factual and legal determination based on the facts of record.”
Williams, 729 F.2d at 1559. Considering the evidence presented, the Court further concludes that
the consent judgment is narrowly drawn to remedy the violation of Plaintiffs’ federal rights, is the
least intrusive means of doing so, and extends no further than necessary. See Plata, 131 S. Ct. at
1939-40 (discussing § 3626(a)(1)).
B. Medical and Mental Health Care
During the course of the fairness hearing, the evidence, including credible witness testimony,
exposed stark, sometimes shocking, deficiencies in OPP’s medical and mental health care system.
Inmates with mental health issues are housed in deplorable conditions.271 Mental health units smell
strongly of feces, urine, and rotting organic matter.272 Several inmates had floors and walls smeared
with feces when Dr. Gage visited, and many cells had “evidence of the detritus of several days’ food
and utensils.”273 Compare Gates v. Cook, 376 F.3d at 338 (Living in “extremely filthy” cells with
“crusted fecal matter, urine, dried ejaculate, peeling and chipping paint, and old food particles on
the walls . . . would present a substantial risk of serious harm to inmates.”). Such unsanitary
271
R. Doc. No. 408, at 156-57.
272
Pl. Ex. 376, at 27.
273
R. Doc. No. 408, at 156; see Pl. Ex. 378, at 38 (describing individual with “psychotic symptoms”
“with approximately ten plates of molded rotten food lying on the unoccupied upper bunk,” in a
“dirty, malodorous” environment).
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conditions can cause or exacerbate illness.274 Moreover, “mental health units, including those
designed for suicide monitoring, were patently not suicide proof.”275
The consent judgment aims to remedy broad areas of medical and mental health care,
including intake services, access to care, medication, staffing, suicide prevention, and records. The
Court addresses each in turn.
1. Intake
At intake, prisoners with clear histories of self-harm, mental illness, or potential withdrawal
from prescribed or illicitly acquired substances are cleared for placement in the general population
without any medical or mental health consultation.276 Agitated inmates are shackled or chained to
an ordinary chair, which may permit them to manipulate their shackles or chains to cause selfharm.277
Dr. Bruce Gage, a correctional mental health care expert,278 has been the Chief of Psychiatry
for the Washington State Department of Corrections since 2008.279 He concluded that OPP’s mental
health services are largely inadequate “in all regards,” “from screening through assessment,
treatment, suicide policies and practices, restraint, medication, medical records, continuity of care,
274
Pl. Ex. 376, at 28.
275
Pl. Ex. 376, at 27.
276
Pl. Ex. 376, at 35.
277
Pl. Ex. 376, at 38; Pl. Ex. 378, at 31; R. Doc. No. 408, at 98-99.
278
R. Doc. No. 408, at 82.
279
Pl. Ex. 376. From 1993 to 2000, he was involved in a University of Washington/Department of
Corrections collaboration project that established an inpatient residential mental health program at
one of the prisons. R. Doc. No. 408, at 80. Between 1990 and 2008, Dr. Gage worked at Western
State Hospital in Lakewood, Washington, setting up continuity of care between jails and the state
hospital and consulting with jails on issues such as involuntary medication. R. Doc. No. 408, at 79;
see also Pl. Ex. 376.
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and access to care.”280
In his report, Dr. Gage stated that in several cases, including instances of inmate suicide, an
initial referral to psychiatry could have changed the outcome of the cases.281 For example, M.H.
committed suicide while still in the Intake Processing Center, notwithstanding that he had previously
reported ingesting crack cocaine and he had recently been hospitalized for suicidality.282 At intake,
he was wandering around, and “gravitated toward the exit doors,” but he was “herded back to the
seats” by staff members.283 Because he attempted to leave through an exit door, he was placed in an
isolation cell.284 In the isolation cell, he hung himself with his t-shirt.285 Dr. Gage testified that
M.H.’s death could have been prevented with proper mental health assessment and treatment.286
When asked by the Court whether his testimony reflected a “medical certainty,” Dr. Gage responded
affirmatively, testifying that an assessment would have, at a minimum, prevented the isolation that
facilitated M.H.’s suicide.287
T.W. provides a representative example with respect to the lack of intake screening and
follow-up psychiatric services.288 T.W. set her house on fire.289 After she was treated for burns at
280
R. Doc. No. 408, at 83.
281
Pl. Ex. 376, at 35.
282
R. Doc. No. 410, at 58-60; see also Pl. Ex. 80-2.
283
Pl. Ex. 80-2.
284
Pl. Ex. 80-2.
285
Pl. Ex. 80-2.
286
R. Doc. No. 408, at 110.
287
R. Doc. No. 408, at 110.
288
Pl. Ex. 376, at 20; see also Pl. Ex. 74.
289
Pl. Ex. 376, at 20; see also Pl. Ex. 74.
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Baton Rouge General Hospital, she was sent to OPP on September 7, 2012.290 At intake, she
described depression that had occurred within the last year and three prior suicide attempts.291 In
addition, her hospital records indicated that she carried a diagnosis of bipolar disorder and that she
was currently prescribed lithium and mirtazapine, an antidepressant.292 At intake, T.W. was ordered
pain medication and referred to psychiatry for “eval. for meds.”293 Despite this referral, T.W. was
apparently not given any access to psychiatric care until November 15, 2012.294 The events of that
date are unclear.295
On November 16, 2012, T.W. received a psychiatric chronic care treatment plan from an
OPP psychiatrist.296 While the plan notes T.W. felt suicidal because she missed her children, the plan
shows little awareness of her three previous suicide attempts, her prior diagnosis, or her prior
psychotropic medications.297 With respect to OPP’s psychiatry services, T.W. received no diagnosis
and no medications.298 When Dr. Gage visited in December 2012, T.W. reported auditory
hallucinations of “people out to get me,” to whom she sometimes talked back.299 She also spoke
about “people being sent to hurt her.”300 Other inmates said that T.W. paces a lot, cries a lot, and
290
Pl. Ex. 376, at 20.
291
Pl. Ex. 376, at 20.
292
Pl. Ex. 376, at 20.
293
Pl. Ex. 376, at 20.
294
Pl. Ex. 376, at 20.
295
Pl. Ex. 376, at 20; see also Pl. Ex. 74.
296
Pl. Ex. 376, at 20.
297
Pl. Ex. 376, at 20-21.
298
Pl. Ex. 376, at 21.
299
Pl. Ex. 376, at 21.
300
Pl. Ex. 376, at 21.
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“sleeps all day.”301 The record is devoid of evidence that T.W. received the mental health treatment
that was obviously needed while she was at OPP.
2. Access to Care & Treatment
After Dr. Gage reviewed the records provided, “[t]here was not one example of a thorough
psychiatric assessment by the OPP psychiatrist in any of the records and most were not even
minimally adequate.”302 None of the records included an assessment of suicide risk, rather, “this
portion of the assessment consisted in simply noting whether the person expressed suicidal ideation
or not. The same was true of homicidal ideation and consideration of danger to others in general.”303
This is consistent with the testimony of an inmate that the extent of psychiatric exams is often
limited to: “Are you suicidal or homicidal?”304
OPP has one full-time psychiatrist who works 40 hours per week.305 Inmates may wait weeks
or months for psychiatric appointments.306 With respect to emergency care during the day, the
psychiatrist is contacted and inmates are transferred to the mental health unit for suicide
monitoring.307 Accordingly, suicide tiers are the primary site of emergency services during the
day.308 After hours, the psychiatrist may sometimes be reached by telephone, but there is no mental
301
Pl. Ex. 376, at 21.
302
Pl. Ex. 376, at 37.
303
Pl. Ex. 376, at 37.
304
Pl. Ex. 376, at 32; R. Doc. No. 408, at 169. T.W. also told Dr. Gage, without being asked, that the
OPP psychiatrist sometimes asks her, “‘Are you suicidal or homicidal?’ and that’s it.” Pl. Ex. 376,
at 21.
305
R. Doc. No. 408, at 122-23; see also Pl. Ex. 259, at 102-03.
306
Pl. Ex. 312; Pl. Ex. 376, at 39-40; R. Doc. No. 405, at 124-25; R. Doc. No. 408, at 126-27.
307
Pl. Ex. 376, at 38.
308
Pl. Ex. 376, at 38.
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health provider actually on call or present at OPP facilities.309 An inmate who needs mental health
care after hours or on weekends will either be sent to the mental health unit for suicide watch or to
the emergency room.310 Inmates who harm themselves or who are suicidal are typically not seen
until the next working day, while those with less serious, but still urgent, complaints—including
suicidal ideation without a plan—are not seen for several days.311
The experiences of D.R. and R.S. illustrate compounding inadequacies in mental and medical
health care. D.R. testified as to the abhorrent conditions experienced by H.T., an inmate whom D.R.
testified “seemed partially handicapped and mentally handicapped also,” based on the “things he
would say,” “the way he got around,” and his inability to care for himself.312 H.T. utilized a
colostomy bag, and “[e]very morning his colostomy bag would come off and there would be feces
all in his cell and all over his jumper.”313 H.T. would leave the soiled jumper on the ground, “[a]nd
someone would have to go in [his cell] and get his jumper and bring it to the gate and set it down
and help him clean himself and somehow reattach the bag.”314 Other inmates, not staff members,
would assist H.T. by cleaning and reattaching his colostomy bag and carrying his soiled jumper to
the gate, where staff members would retrieve it.315 While this daily routine seems inconsistent with
basic care, perhaps more disturbing is that H.T. had to rely on other inmates’ compassion and
willingness to provide untrained nursing care to ensure he had an unsoiled jumper and an attached
309
Pl. Ex. 376, at 38.
310
Pl. Ex. 376, at 38; R. Doc. No. 408, at 114.
311
Pl. Ex. 376, at 39.
312
R. Doc. No. 405-06.
313
R. Doc. No. 406, at 408.
314
R. Doc. No. 406, at 148.
315
R. Doc. No. 406, at 148-150.
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colostomy bag.316According to D.R., who witnessed H.T.’s treatment for more than two months,
staff members who took roll call would, on a daily basis, see fecal matter that had spilled from the
colostomy bag into H.T.’s cell and sometimes see H.T., sitting in his bed nude or wrapped in a
towel.317 Yet this offensive routine continued, and some staff members even joked about it.318
Another inmate’s slow suicidal decline similarly illustrates the deficiencies with respect to
both medical and mental health care. R.S. came to OPP after a standoff with the police.319 R.S.
expressed “wanting the cops to kill him,” and an emergency room note describes suicidal ideation.320
OPP staff notes reflect that R.S. stated: “I don’t want to kill myself. I just wish I would die.”321While
on suicide watch, R.S. refused treatment, food, and water.322 He became profoundly dehydrated, for
which he was taken to the emergency room several times.323
R.S.’s extreme depression caused a “failure to thrive,” which Dr. Gage described as
occurring when people with severe depression or terminal illnesses stop eating and drinking,
resulting in dehydration complications, including urinary tract infections, and complications related
316
D.R. testified that he was not sure how other inmates reattached the bag. “I didn’t have the
stomach for it.” R. Doc. No. 406, at 148. The Court notes that the inmates who took it upon
themselves to care for H.T. were subject to the health risks potentially associated with direct
exposure to fecal matter. “Frequent exposure to the waste of other persons can certainly present
health hazards that constitute a serious risk of substantial harm.” Gates v. Cook, 376 F.3d at 341.
317
R. Doc. No. 406, at 150; see also Pl. Ex. 376, at 20 (describing instance in which a different
inmate was “not given his antipsychotic medication on at least one occasion because he was in a
towel rather than jail clothing”).
318
R. Doc. No. 406, at 150.
319
R. Doc. No. 408, at 150; Pl. Ex. 76-1.
320
Pl. Ex. 76-2.
321
Pl. Ex. 76-1.
322
Pl. Ex. 76-1.
323
R. Doc. No. 408, at 150.
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to inactivity, including pneumonia.324 Records document that medical staff observed R.S. refusing
food, while “saturated in urine and feces stating he can’t get up.”325 On another instance, staff
described him as “unwilling or unable to get up off of floor.”326 Records also show that R.S.
“experienced an episode of incontinence, requiring his cell mate to clean him up.”327 Despite his
refusal of basic sustenance, documented suicidality, and repeated hospitalizations, the Court has
been provided with no evidence that OPP authorities undertook efforts that would facilitate and
permit them to involuntarily treat R.S.328
OPP staff observed and documented R.S.’s decline. He was seen daily by nurses and eight
times by physicians.329 Nonetheless, R.S. died of urosepsis and pneumonia while still on suicide
watch.330 It is egregious that R.S. died after announcing his passive suicidality331 and after spending
days refusing food and lying on the floor, with no effort to provide involuntary treatment or
otherwise actively intervene in R.S.’s slow suicide.332 However, the internal OPP mortality report
concluded that the standard of care was met, emphasizing that R.S. refused treatment.333
Dr. Daphne Glindmeyer, an expert in mental health and psychiatry and juvenile mental
324
R. Doc. No. 408, at 151.
325
Pl. Ex. 76-1.
326
Pl. Ex. 76-1.
327
Pl. Ex. 76-2.
328
R. Doc. No. 408, at 150-51.
329
Pl. Ex. 76-2.
330
R. Doc. No. 408, at 150-51.
331
See Pl. Ex. 167 (defining, in OPP’s suicide lecture materials, “passive suicidality” as “wanting
to be dead”).
332
R. Doc. No. 408, at 151.
333
Pl. Ex. 76-2.
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health in corrections,334 is the medical director for Assertive Community Treatment, a program that
provides in-home care to individuals with “chronic persistent severe mental illness.”335
Dr. Glindmeyer conducted a site visit at the unit housing youth inmates.336 The population
of youth inmates at the time was approximately 24, and these inmates ranged from approximately
14 years old to 18 years old.337 Just over half of the youth inmates were housed in protective custody
because of issues including prior sexual assault.338 Those in protective custody were confined for
23 hours per day.339 Youth inmates and staff advised Dr. Glindmeyer to see a youth inmate who had
symptoms including “bizarre behavior” and a history of suicidal ideation.340 Although the inmate
had been seen by a psychiatrist ten months earlier, he received no diagnosis for his apparent mood
disorder and he was not receiving any medication or treatment.341 Dr. Glindmeyer persuasively
opined that his treatment or lack thereof was worsening his condition,342 and his isolation was
increasing his risk of suicide.343
334
R. Doc. No. 409, at 174-75.
335
R. Doc. No. 409, at 174. For approximately the last nine years, she has also served as a consent
judgment compliance monitor with respect to mental health care in Mississippi’s juvenile
correctional facilities. Pl. Ex. 379, at 4-5. She has previously served as the Director of Psychiatry
for Louisiana State University Health Science Center’s Juvenile Corrections Program. Pl. Ex. 379,
at 5.
336
R. Doc. No. 409, at 213.
337
R. Doc. No. 409, at 213.
338
R. Doc. No. 410, at 7; see also Pl. Ex. 378, at 41-42.
339
Pl. Ex. 378, at 42, 45; R. Doc. No. 410, at 11-12.
340
R. Doc. No. 410, at 13-14.
341
R. Doc. No. 410, at 14.
342
R. Doc. No. 410, at 15.
343
R. Doc. No. 410, at 15.
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3. Medication
Even where records demonstrated that medications are provided by agencies such as
hospitals, and even when that fact is documented through reputable sources of information in the
record, psychotropic medications are frequently discontinued at OPP.344
At intake, psychotropic medications are stopped approximately 75-80% of the time, with
some OPP treatment providers refusing to order them in any circumstance.345 While there are
legitimate concerns associated with the potential abuse of such medications, the wholesale
discontinuation of all medications creates a risk that inmates will deteriorate psychiatrically, develop
a discontinuation syndrome, or experience withdrawal, all of which can cause unnecessary pain and
suffering.346 Moreover, the abrupt discontinuation of psychotropic medication can increase the
likelihood of suicide and assault and worsen inmates’ long-term prognosis.347
a. Detoxification and Withdrawal
OPP inmates who require a detoxification protocol are not consistently identified or
effectively treated. For example, C.F.’s intake questionnaire indicates that she was taking 2
milligrams of a benzodiazepine, Xanax, four times daily, an amount and frequency which Dr.
Glindmeyer characterized as “a lot,” pursuant to a prescription to treat her mental illness.348 At
intake, C.F. specifically identified the pharmacy that filled her prescriptions and the hospital where
344
R. Doc. No. 408, at 102.
345
R. Doc. No. 408, at 101, 114-16.
346
R. Doc. No. 408, at 101-02.
347
R. Doc. No. 408, at 101-02; R. Doc. No. 408, at 102-03. As Schwartz noted, cessation of
medication may be “logical if there was a reliable system for reassessing those inmates at a
predetermined time, and if inmates could reliably get to sick call.” Pl. Ex. 372, at 25-26. The
evidence demonstrates that there are no such reliable systems in place.
348
R. Doc. No. 409, at 185; see also Pl. Ex. 180.
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she received mental health treatment.349 OPP discontinued the benzodiazepine.350 C.F. was monitored
for only five days, despite the fact that benzodiazepine withdrawal can occur up to ten days after
cessation of use.351 During those five days, her vital signs would occasionally meet the criteria for
providing detoxification medication; sometimes such medication was provided, sometimes it was
not.352
During Dr. Glindmeyer’s visit on December 20, 2012, she observed C.F. “screaming very
loudly” that she “needed to go to a wedding and that she had a baby in her tubes and they needed
to come cut it out right away.”353 Staff and other inmates indicated C.F. had been in that state or a
similar state for several days prior to Dr. Glindmeyer’s site visit.354 Dr. Glindmeyer spoke with C.F.,
who was “extremely paranoid,” “screaming, cursing,” and “very agitated.”355 Dr. Glindmeyer took
C.F.’s pulse, and found it to be “over a hundred. And her skin was just wet. Clammy.”356 C.F. was
experiencing delirium tremens, which Dr. Glindmeyer testified, is “very, very dangerous with a
relatively high risk of mortality.”357 Given the severity of the situation, Dr. Glindmeyer reported her
concerns directly to nursing staff, who then reportedly routed C.F. to the emergency room.358 A
subsequent review of C.F.’s records showed that her delirium or psychosis was never noted before
349
R. Doc. No. 409, at 185-86; see also Pl. Ex. 180.
350
Pl. Ex. 378, at 36-37.
351
R. Doc. No. 409, at 189-90.
352
R. Doc. No. 409, at 190; see also Pl. Ex. 378, at 37; Pl. Ex. 180.
353
Pl. Ex. 378, at 37; R. Doc. No. 409, at 191.
354
Pl. Ex. 378, at 37; R. Doc. No. 409, at 191.
355
R. Doc. No. 409, at 191.
356
R. Doc. No. 409, at 191.
357
R. Doc. No. 409, at 192.
358
R. Doc. No. 409, at 192.
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Dr. Glindmeyer’s visit.359 She had received no medication, despite the fact that staff and inmates
indicated she had been in this disturbing, “obviously acutely ill,” state for days.360 Dr. Glindmeyer
persuasively attributed C.F.’s state to OPP’s detoxification protocol.361 Gates v. Cook, 376 F.3d at
343 (noting “testimony that prisoners seldom see medical staff and that monitoring of medication
was sporadic, with prisoners potentially being prescribed the wrong medication or no medication
for long periods of time, potentially leading to extremely dangerous physical side effects or
psychotic breakdowns”).362
b. Untreated Mental Illness
OPP does not provide appropriate treatment to mentally ill inmates, even when they pose a
danger to themselves or others. For example, S.T.363 entered OPP in November 2012, but he was
subsequently routed to the emergency room several times in a seven-day period.364 The behavior that
led to these visits generally included “climbing on ceiling and pulling light fixtures, throwing tile,
spreading feces on windows,” and “swinging from light fixtures.”365 S.T. reported auditory
hallucinations.366 At one point, S.T. was found “naked in his cell, with abrasions and signs of
359
Pl. Ex. 378, at 22.
360
Pl. Ex. 378, at 22. R. Doc. No. 409, at 191.
361
R. Doc. No. 409, at 192.
362
Dr. Gage’s report suggests that he witnessed C.F. being removed for evaluation, but his
subsequent review of her records showed no evidence of any such evaluation or hospitalization. Pl.
Ex. 376, at 48.
363
The initials of this inmate are actually T.S., but they are not used here so as to avoid conflation
with the other T.S., who was attacked by E.L.
364
Pl. Ex. 73.
365
Pl. Ex. 73.
366
Pl. Ex. 73.
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trauma.”367 An emergency room physician noted that S.T. would be discharged and “can follow up
with psychiatry in jail, as it certainly appears that he will require medication to decrease his
disruptive behavior.”368 When Dr. Gage observed S.T. in December 2012, “[h]e was mute and hid
himself under a blanket, refusing to speak to me.”369 Dr. Glindmeyer also observed S.T. on two
occasions in December 2012.370 “On the first observation, he declined to speak,” and he was lying
on a mattress on the floor, with a “flat affect, slow movements, and poor eye contact.”371 Staff
members reported that he had a history of refusing to eat.372 On the second observation, S.T.
demonstrated psychomotor retardation, moving in slow motion.373 He spoke softly and slowly, and
his affect remained flat.374 Despite S.T.’s persistently bizarre behavior, OPP records reflect that the
only psychotropic medication OPP ever provided to S.T. was a single emergency dose of an
antipsychotic medication.375 In short, S.T. remained symptomatic and untreated.376
Another inmate, R.C., was transferred to the mental health unit on November 27, 2012, less
than a week after arriving at OPP.377 The record indicates this transfer may have been related to a
prior history of schizophrenia and ongoing suicidal and homicidal ideation, which included
367
Pl. Ex. 73.
368
Pl. Ex. 73.
369
Pl. Ex. 376, at 19.
370
Pl. Ex. 378, at 15.
371
Pl. Ex. 378, at 15.
372
Pl. Ex. 378, at 15.
373
Pl. Ex. 378, at 15.
374
Pl. Ex. 378, at 15.
375
Pl. Ex. 376, at 19; Pl. Ex. 378, at 16.
376
Pl. Ex. 376, at 19; Pl. Ex. 378, at 15-16.
377
Pl. Ex. 91.
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statements such as “I feel people are trying to kill me . . . I’ll hurt somebody [by] cutting their throat
off.”378 An OPP medical doctor, who was not part of the mental health care team, documented R.C.
as “being extremely belligerent and bizarre, thinking that [the doctor] will harm him” and “soiled
in stool.”379 The doctor noted that R.C. had a history of psychiatric issues and “defer[red] to psych.
for further management of psychosis, before dealing w/ medical issues.”380 When Dr. Gage toured
the facility in mid-December, R.C. was “overtly responding to internal stimuli (indicative of
hallucinations),” talking to people who were not there, and otherwise acting “grossly psychotic.”381
Dr. Gage later saw R.C. “lying under the bed, lying in his own excrement,” with “shards of tile . . .
arrayed on the sill of the window in plain sight.”382 R.C. later ingested the shards of tile.383
According to Dr. Gage, R.C. was “simply allowed to languish in psychosis, untreated,” despite the
fact that evidence of psychosis was documented in R.C.’s record by other physicians.384
4. Staffing
As with security and safety, OPP’s severe deficiencies in mental health and medical care are
378
R. Doc. No. 376, at 16; R. Doc. No. 408, at 160-61; see also Pl. Ex. 91. R.C. submitted a sick call
request on November 26, 2012, stating, “I would like to receive my medicine that helps to keep my
mind calm. I was being housed at Allen Correctional Facility. I was taking Haldol and Benadryl.
Thank you & God Bless.” Pl. Ex. 91. The timing of this request suggests it may have been
associated with his transfer.
379
R. Doc. No. 408, at 160-61; see also Pl. Ex. 376, at 15; Pl. Ex. 91.
380
Pl. Ex. 91.
381
Pl. Ex. 376, at 15; R. Doc. No. 408, at 161.
382
R. Doc. No. 408, at 161.
383
R. Doc. No. 408, at 161.
384
Pl. Ex. 376, at 43. Dr. Gage described R.C. as someone who “would have readily qualified for
involuntary treatment with antipsychotics.” R. Doc. No. 408, at 161. In his report, Dr. Gage detailed
numerous additional examples of inmates at OPP who were left untreated. See Pl. Ex. 376, at 9-27.
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largely attributable to dramatically insufficient staffing.385 Dr. Glindmeyer concluded that OPP’s
mental health staffing is “woefully inadequate.”386 There is one psychiatrist and one social worker
for approximately 2,500 inmates.387 According to Dr. Gage, OPP needs at least one additional
psychiatrist or psychiatric prescriber to meet minimum standards.388 Nurses report that there is no
time to provide any formal mental health treatment, and that they engage in minimal contact usually
only in the context of mandatory evaluations.389 Given the number of inmates and the number of
nurses, it is impossible for the nurses to adequately evaluate and chart patients, administer
medications, respond to emergencies, provide suicide monitoring, gather sick call information, and
provide basic nursing services.390
The Court questioned Dr. Gage as to certain statements in his report characterizing the
relationship between staff and inmates at OPP.
THE COURT: You have a statement in your report which states,
“There’s a general pattern of reckless and callous disregard for the
suffering and treatment needs of the mentally ill and chemically
dependent in OPP.” That’s a very strong statement. Do you want to
explain that at all?
THE WITNESS: Well, I would stand by that. I guess that would be
the first thing that I would say. I mean, I’ve seen a number of jails
and I have not seen conditions as deplorable as I have seen in this
jail, and I have not seen such absence of mental health services in the
385
Pl. Ex. 376, at 29.
386
R. Doc. No. 409, at 196. Dr. Glindmeyer also testified that youth inmates seem to be controlled
by another youth inmate, as opposed to by the deputies. This youth inmate was physically the largest
inmate, and the other youth inmates appeared to wait for his acquiescence before responding to Dr.
Glindmeyer’s questions. R. Doc. No. 410, at 8-9.
387
Pl. Ex. 376, at 29.
388
R. Doc. No. 408, at 132.
389
Pl. Ex. 376, at 42.
390
Pl. Ex. 376, at 29.
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context of just abysmal physical environments and the kind of failure
to monitor people and so on that I was speaking about. It was just
more dramatic than I have ever seen in any other institution.391
While the Sheriff and City have suggested that an inmate population reduction may occur in just a
few months, the evidence suggests that OPP has inadequate staffing to treat even a reduced
population.392
5. Suicide Prevention
According to Dr. Gage, “[OPP] records and interviews with staff and inmates demonstrate
a level of disregard and disrespect on the part of most staff towards the mentally and chemically
dependent” that is made plain by the conditions on the residential mental health unit and “especially
the approach to suicide monitoring.”393 The evidence supports this characterization.
Suicide assessments at OPP are cursory and repetitive. Psychiatric contact with inmates is
extremely brief, generally lasting less than five minutes.394 OPP policy requires that staff members
monitor inmates on suicide watch at all times.395 But the staffing deficiencies and physical structures
of OPP facilities make it nearly impossible to conduct adequate assessments and to directly observe
inmates on suicide watch.396 Those written assessments that are actually completed are perfunctory,
and some appear to have been filled out in advance.397 OPP does not have any suicide proof cells,
and records demonstrate that inmates on suicide watch have access to medications that can be used
391
R. Doc. No. 408, at 186-187.
392
R. Doc. No. 408, at 187.
393
Pl. Ex. 376, at 50.
394
Pl. Ex. 376, at 45.
395
R. Doc. No. 408, at 171.
396
Pl. Ex. 376, at 45.
397
Pl. Ex. 376, at 46.
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to overdose.398 Staff and inmates on the suicide watch unit could not recall the last time cells were
searched for contraband, and there was no log of any such searches.399
On the suicide watch tier, records demonstrate that significant self-harm events were not
listed as “sentinel events” that would trigger staff review.400 These events included “head banging
severe enough to require sutures,” swallowing pills, chemicals, and pieces of tile, and “countless
episodes of tying cloth around necks, sometimes anchored to objects.”401 Inmates who commit
suicide are sometimes not discovered for quite some time.402 Compare Plata, 131 S. Ct. at 1934
(noting that “prison staff did not even learn of [an inmate’s death] for several hours”).
OPP staff members’ ignorance of cut-down tools is particularly alarming. A cut-down tool
is a type of knife “made to cut through layers of something that has been fashioned as a rope,” such
as the “thick material that uniforms are made of.”403 Suicide is a leading cause of death in
correctional settings,404 and approximately 95% of suicides in jails and prisons are committed by
hanging.405 Cutting someone down without a cut-down tool may take more time, decreasing the
chance of survival.406 Virtually none of OPP’s staff, including the staff members responsible for
suicide watch, could locate cut-down tools when the experts visited.407
398
See also Pl. Ex. 378, at 23.
399
Pl. Ex. 376, at 45-46.
400
Pl. Ex. 376, at 47.
401
Pl. Ex. 376, at 47.
402
Pl. Ex. 376, at 30; see e.g., Pl. Ex. 78; Pl. Ex. 81.
403
R. Doc. No. 406, at 85.
404
E.g., R. Doc. No. 410, at 46.
405
R. Doc. No. 406, at 85-86.
406
R. Doc. No. 406, at 85-86.
407
R. Doc. No. 406, at 86; R. Doc. No. 408, at 159.
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6. Records
Dr. Gage testified, and the Court has observed firsthand in connection with its own review,
that record keeping at OPP is very poor.408 For example, while medical forms may be reasonably
constructed, they are often left blank or incomplete or are simply not present in inmates’ medical
records.409 These are not mere clerical oversights. In numerous instances, inmates are sent to the
emergency room, but there is no indication in the inmates’ medical records regarding the outcome
of their visits.410
Notes are undated, misdated, unsigned, and otherwise deficient.411 There is a consistent
pattern of incompletion.412 The serious deficiencies in record keeping make it difficult to
comprehensively assess the quality of care at OPP and to render emergency care to inmates.413
Moreover, the absence of consistent medication administration records contributes to the risk of
overprescription, overdose, contraband trade, and inmate-on-inmate violence.414
7. Conclusion
The Court has reviewed the voluminous evidence regarding medical and mental health care
at OPP and the measures in the amended proposed consent judgment that the signatories agree are
408
R. Doc. No. 408, at 89, 94.
409
Pl. Ex. 376, at 30.
410
Pl. Ex. 376, at 31.
411
R. Doc. No. 409, at 100.
412
R. Doc. No. 409, at 100.
413
R. Doc. No. 408, at 179-80.
414
R. Doc. No. 408, at 177-78; see Pl. Ex. 376, at 34-35; Pl. Ex. 378, at 23. An inmate on suicide
watch showed Schwartz a large bag of pills and a cup full of pills, totaling approximately 75 pills,
which he had been stockpiling. Pl. Ex. 372, at 24-25. Schwartz reported the situation to OPP’s
medical director. Pl. Ex. 372, at 25.
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necessary to address deficiencies. The evidence presented was largely targeted towards deficiencies
in mental health care, although the evidence also shows deficiencies in non-mental health care
treatment, in particular sick call requests, medication administration, and emergency room visits,
that relate to the risk of suicide, violence, and contraband trade.415 The evidence presented shows
that a lack of treatment altogether, rather than inadequate treatment, contributes to severe
deficiencies in medical and mental health care at OPP.416
The consent judgment directly addresses OPP’s deficiencies with respect to medical and
mental health care. For example, it requires that an inmate’s risk of suicide or other self-harm be
evaluated within eight hours of arriving at OPP and it prohibits placing inmates in isolation who
have not been screened.417 It requires that an inmate receive a mental health assessment no later than
the next working day following an “adverse triggering event,” such as a suicide attempt or selfinjury.418 It also requires that “psychotropic medications are administered in a clinically appropriate
manner as to prevent misuse, overdose, theft, or violence related to the medication.”419
“Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate
medical care. A prison that deprives inmates of basic sustenance, including adequate medical care,
is incompatible with the concept of human dignity and has no place in civilized society.” Plata, 131
S. Ct. at 1928. OPP’s deficiencies with respect to medical and mental health care are widespread,
and the deficiencies with respect to mental health care are particularly obvious and pervasive. Dr.
415
R. Doc. No. 410, at 52-53.
416
Pl. Ex. 376, at 50.
417
Consent Judgment, at 20.
418
Consent Judgment, at 21.
419
Consent Judgment, at 22, 30.
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Gage testified that OPP’s absence of mental health services is “dramatic” when compared to any
other institution he has seen.420 Considering the allegations of system-wide constitutional violations
and the evidence presented of “complex and intractable” deficiencies, the Court concludes that the
“scope of the remedy” presented in the proposed consent judgment is “proportional to the scope of
the violation.” Id. at 1937, 1940. The consent judgment provisions on mental and medical health
care are necessary to remedy the violation of federal rights, and they are the least intrusive means
of doing so. See id.
C. Environmental Conditions
OPP facilities are in a state of disrepair.421 Ventilation throughout OPP facilities is very
poor, in part because inmates plug the vents.422 Rusted and poorly secured fixtures can be used to
create and conceal weapons.423 Inmates, including inmates on suicide watch, have easy access to
shards of broken tile, which may be ingested, thrown, or used as a weapon.424 Compare Marsh, 268
F.3d at 1027 (“The structure of the Jail was so dilapidated that inmates could fashion weapons from
pieces of the building.”). Old locks in disrepair allow inmates to lock and unlock their cells at will.425
Compare id. (“[L]ocks on the doors to cells did not work, preventing inmates from being locked
down.”). Many toilets, sinks, and showers are not functional.426 Sewage seeps into cells, including
420
R. Doc. No. 408, at 187.
421
R. Doc. No. 407, at 98.
422
R. Doc. No. 407, at 100.
423
R. Doc. No. 407, at 98, 101; see Pl. Ex. 374, at 45.
424
E.g., Pl. Ex. 90; Pl. Ex. 374, at 46.
425
Pl. Ex. 372, at 55.
426
R. Doc. No. 407, at 98.
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cells where inmates eat.427 Compare Gates v. Cook, 376 F.3d at 341 (“[E]xposure to human waste
‘evokes both the health concerns emphasized in Farmer and the more general standards of dignity
embodied in the Eighth Amendment.’”) (quoting DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.
2001)). The acute psychiatric unit’s showers have large amounts of black mold on the ceilings and
walls.428 Clouds of gnats have resulted in an increased incidence of skin problems.429 Cells housing
mentally ill inmates have feces spread on the walls.430 Inmates, including inmates on the acute
psychiatric unit, sometimes sleep on the floor or on bare steel bunks because they are not given
mattresses.431
OPP’s environmental conditions pose a security risk, and this risk endangers the lives of staff
members and inmates, while also endangering the community through potential escapes.432 OPP’s
environmental conditions also create a health hazard for staff members and inmates. See Alberti v.
Sheriff of Harris Cnty., 937 F.2d 984, 1000-01 (5th Cir. 1991) (observing that “problems with the
jails’ plumbing, ventilation, fire safety, supplies, food service, and medical care” could “weigh in
favor” of a finding of deliberate indifference). The consent judgment addresses these risks by
requiring, for example, that OPP adequately install and maintain fixtures and that OPP’s food
service staff, including inmates, receive training on food safety.433 The Court has closely reviewed
427
Pl. Ex. 372, at 54; R. Doc. No. 412, at 26-27; City Ex. 13; see also R. Doc. No. 407, at 45
(unsanitary conditions portrayed in City Ex. 13 persist).
428
Pl. Ex. 372, at 54.
429
Pl. Ex. 372, at 56; Several inmate letters described showers with “leech like” or “slug like”
creatures, which one inmate described as “gnats before they transform.” E.g., R. Doc. Nos. 274, 294.
430
R. Doc. No. 409, at 103-04.
431
Pl. Ex. 372, at 26-27.
432
Pl. Ex. 372, at 56; Pl. Ex. 374, at 47.
433
Consent Judgment at 31-32.
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the measures in the proposed consent judgment, and finds them narrowly drawn and no more
intrusive than necessary to remedy the violation of inmates’ constitutional rights.
D. Fire Safety
With respect to fire safety, Romero observed fire hazards, including electrical sockets that
had been “burnt out, perhaps by inmates tampering with them . . . to ignite something.”434 Romero
reported that staff members were unable to locate emergency exit keys in a timely manner, if at
all.435 A key control program is “foundational to jail security,”436 but there is no reliable key control
program at OPP.437 According to Romero, “[s]taff and prisoners reported that emergency doors are
frequently locked with shackles because during power outages, these doors pop open.”438 At the time
of Romero’s visit, the fire alarm system for the last three months at several facilities had consisted
of a “fire watch,” in which a person walked through units looking for fire hazards or signs of fire.439
In September 2012, the Louisiana State Fire Marshal’s office and the New Orleans Fire Department
conducted a joint surprise inspection.440 The OPP staff member assigned to the fire watch had, by
10:30 a.m., filled out the fire watch check log for the entire day.441
434
R. Doc. No. 407, at 102-03.
435
Romero requested that staff members locate an emergency key for one of the housing units. Staff
members located a key within about ten minutes, but it was the wrong key. A key located after an
hour worked for one door but not for another. Ultimately, Romero concluded that the keys were kept
in the warden’s office, but the warden is only there during the day and the keys are not otherwise
available to staff. Romero suspected the locks had been sabotaged by inmates. R. Doc. No. 407, at
104-07.
436
Pl. Ex. 374, at 21.
437
Pl. Ex. 372, at 21, 45.
438
Pl. Ex. 374, at 46.
439
R. Doc. No. 407, at 103-04.
440
Pl. Ex. 62.
441
Pl. Ex. 62. The staff member was suspended for 5 days.
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The inability of staff to operate emergency exits is deeply worrisome and poses the type of
problem that could result in a large-scale catastrophic fire event with many fatalities.442 While the
Sheriff’s testimony suggested that improvements have been made in recent months, the proposed
consent judgment will ensure that such improvements remain consistent.443 For example, the consent
judgment requires that fire equipment be maintained and inspected quarterly and that staff be trained
in the use of emergency keys.444 In conjunction with the presence of contraband, including lighters445
and “stingers,”446 the dysfunctional emergency exit system, and the inadequate supervision at OPP,
fire related issues pose a risk to the security and safety of inmates and staff. The remedies in the
proposed consent judgment with respect to fire safety are narrowly drawn to remedy the violation
of the federal rights addressed herein, and they are no more intrusive than necessary to do so.
III. Statutory Rights
The United States alleges that OPP discriminates against Limited English Proficiency
(“LEP”)447 inmates by failing to provide LEP inmates with meaningful access to OPP’s intake,
processing, housing, medical, and other services.448
442
E.g., R. Doc. No. 405, at 137; see also Pl. Ex. 372, at 44-46.
443
R. Doc. No. 441, at 87-88.
444
Consent Judgment, at 34.
445
R. Doc. No. 405, at 86.
446
Stingers are constructed by cutting a live electrical wire with a shank and attaching a washer to
the end of the wire. Inmates use stingers to heat up food. R. Doc. No. 406, at 101-02.
447
Limited English Proficiency (“LEP”) characterizes individuals who cannot speak, write, or
understand the English language such that their ability to communicate is limited. R. Doc. No. 407,
at 108.
448
R. Doc. No. 70, at 12. While conditions at OPP appear obviously inconsistent with the Prison
Rape Elimination Act (“PREA”), PREA is not one of Plaintiffs’ underlying causes of action. See,
e.g., Ball v. Beckworth, No. 11-37, 2011 WL 4375806, at *4 (D. Mont. Aug. 31, 2011). Nonetheless,
the parties appear to agree that the consent judgment should be tailored to remedy PREA violations.
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Section 601 of Title VI of the Civil Rights Act of 1964 provides that “No person in the
United States shall, on the ground of race, color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” See also N.Y. Urban League, Inc. v. New York, 71 F.3d 1031,
1036 (2d Cir. 1995); United States v. Maricopa Cnty., Ariz., No. 12-00981, 2012 WL 6742314 (D.
Ariz. Dec. 12, 2012). “[L]ongstanding case law, federal regulations and agency interpretation of
those regulations hold language-based discrimination constitutes a form of national origin
discrimination under Title VI.” Maricopa Cnty., 2012 WL 6742314, at *4.
A policy guidance document issued by DOJ states that an entity’s obligation with respect to
a particular service can be evaluated through an “individualized assessment that balances the
following four factors: (1) [t]he number or proportion of LEP persons eligible to be served or likely
to be encountered by the program or grantee; (2) the frequency with which LEP individuals come
in contact with the program; (3) the nature and importance of the program, activity, or service
provided by the program to people’s lives; and (4) the resources available to the grantee/recipient
and costs.” Dep’t of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title
VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient
Persons, 67 Fed. Reg. 4145501, 41459 (June 18, 2002); see also Maricopa Cnty., 2012 WL
6742314, at *4 (“DOJ coordinates government-wide compliance with Title VI and its interpretation
Compare R. Doc. No. 416, at 48 (filing by Plaintiffs, asserting: “The proposed Consent Judgment’s
remedies regarding sexual abuse and sexual assault are the minimum necessary to correct OPP’s
PREA-related deficiencies.”); R. Doc. No. 154, at 8 (suggesting that the consent judgment is not
narrowly tailored to remedy PREA violations). The Court concludes that the consent judgment is
narrowly drawn with respect to constitutional standards. To the extent PREA standards are relevant,
the consent judgment is PLRA compliant with respect to those standards as well. In any case, the
only statutory right before the Court arises under Title VI.
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of Title VI is entitled to special deference.”) (citations omitted).
While OPP has LEP inmates,449 OPP has virtually no services for LEP inmates.450 This
creates problems with respect to classification, medical treatment, and emergency situations.451 See
67 Fed. Reg. at 41469-70. At intake, LEP inmates sign forms and other documents without knowing
their contents.452 Staff members informed Romero that they have a “catch phrase type book,” but
they were unable to locate it after searching for 20 minutes.453 The number of LEP inmates is
unknown because OPP does not keep a record, whether through intake classification or through
some other process, of inmates that do not speak English.454
OPP also does not keep a record or otherwise identify staff members who are bilingual.455
Romero was informed that only one staff member at intake speaks Spanish.456 Accordingly, when
that officer is not on duty, there is no one to communicate with Spanish-speaking inmates.457 While
other inmates may provide translation services in some circumstances, in “many circumstances”
such an arrangement fails to comply with Title VI and its implementing regulations because of
issues relative to confidentiality and physical safety. See 67 Fed. Reg. 4145501 at 41462 (“[O]ther
inmates . . . are not competent to provide quality and accurate interpretations.”).
449
R. Doc. No. 407, at 109.
450
R. Doc. No. 407, at 112-13.
451
R. Doc. No. 407, at 108-11.
452
R. Doc. No. 407, at 110; see also R. Doc. No. 81-1, at 11 (English translation of declaration
describing inability to obtain medical care because of language barrier).
453
R. Doc. No. 407, at 111.
454
R. Doc. No. 407, at 109, 112.
455
R. Doc. No. 407, at 113.
456
R. Doc. No. 407, at 113.
457
R. Doc. No. 407, at 113.
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The proposed consent judgment provides for language assistance policies and procedures
that will ensure compliance with Title VI. It requires, for example, that OPP provide Spanish
translations of vital documents, including sick call forms and inmate handbooks, and that an
appropriate number of bilingual staff members be available for translation or interpretation.458 There
is little doubt that the proposed consent judgment’s provisions addressing LEP inmates are narrowly
drawn to remedy the violation of inmates’ rights pursuant to Title VI, and the provisions are no more
intrusive than necessary.459
IV. Objections to Approval
The City has raised several objections to the proposed consent judgment. “A party potentially
prejudiced by a decree has a right to a judicial determination of the merits of its objection.” City of
Miami, 664 F.2d at 447. However, “[c]omplete accord on all issues []is not indispensable to the
entry of [a consent judgment].” Id. at 440. In “multiparty litigation, two parties may resolve all of
the issues that do not affect a third party, ask the court to include only this settlement in a consent
decree, and submit to the court for adjudication the remaining issues, disputed between them and
the third party.” Id.
Although its legal arguments have been elusive at times, the City’s overarching objection
is that the consent judgment has an unreasonable and proscribed effect on third parties as a result
of the consent judgment’s funding provision, its unknown costs, its indirect effect on public safety,
and its allegedly collusive history. The City also contends that the consent judgment extends further
than necessary, in violation of the PLRA and state law. Finally, the City challenges particular
458
Consent Judgment, at 36-37.
459
E.g., Pl. Ex. 374, at 49-50.
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provisions that require the Sheriff to “continue to” take certain actions and, relatedly, contends that
the consent judgment cannot be approved absent a plainly worded concession of liability on the part
of the Sheriff.
A. Provision-by-Provision Approach
The City asserts that the Court must examine the proposed consent judgment “provision by
provision,” making particularized findings that a federal right has been violated and injunctive relief
is narrowly drawn and necessary with respect to each and every provision. In support of this
argument, the City cites cases addressing the termination of consent judgments.460 But the Fifth
Circuit has rejected such reliance on “provision-by-provision” cases as “misplaced” because the
statutory subsection addressing termination of a consent decree, § 3626(b)(3), “on its face requires
such written findings. Conversely, [§ 3626(a)(1)], which applies to the approval of prospective
relief, does not.” Gates v. Cook, 376 F.3d at 336 n.8 (distinguishing Castillo v. Cameron Cnty., 238
F.3d 339, 351 (5th Cir. 2001)). Because this case involves § 3626(a)(1), no such approach is
required here.
Nonetheless, the Court has taken great care to compare the evidence in support of the alleged
violations of federal rights to the remedial provisions proposed in the consent judgment. Moreover,
the City received the opportunity to challenge specific provisions of the consent judgment, ensuring
they received even greater scrutiny.461 Although not required to do so, the Court has carefully
combed through the consent judgment and concludes that its provisions are narrowly drawn to
remedy the violation of inmates’ federal rights in light of the evidence presented at the fairness
460
R. Doc. No. 427, at 11 (citing Cason v. Seckinger, 231 F.3d 777, 785 (11th Cir. 2000)).
461
E.g., R. Doc. No. 126, at 3.
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hearing.
B. Effect on Third Parties
1. Funding Provision
The City argues that the proposed consent judgment’s funding provision, Section V, has an
impermissible effect on third parties. The City initially contended that Section V “impermissibly
infringes on the City’s rights as a non-party,” by permitting “the Sheriff, the Plaintiff Inmates, and
the Civil Rights Division [to] decide what is the appropriate level for funding for the Sheriff’s office
without affording the City an opportunity to be heard or a means to even have an evidentiary
hearing.”462 In response, the parties to the consent judgment amended it “to ensure (a) that the City
can fully participate in all proceedings relating to the funding and cost of implementing the Proposed
Consent Judgment, and (b) that the City will receive complete information regarding compliance
and conditions at OPP.”463 The City now contends that the Sheriff and Plaintiffs “took it upon
themselves to ‘resolve the concerns of . . . the City’” through the amendments.464 In doing so, the
City argues, they inserted amendments which impermissibly “obligate the City to certain actions to
which the City does not consent.”465 The City additionally argues that the amendments interfere with
the City’s preparation of a balanced budget.466
For the sake of clarity, all of the amendments to the proposed consent judgment are set forth
below. Deletions are indicated through stricken text and insertions are underlined.
462
R. Doc. No. 153, at 7; see also R. Doc. No. 427, at 9-10.
463
See R. Doc. No. 183, at 1-2.
464
R. Doc. No. 219, at 1 (quoting R. Doc. No. 183).
465
R. Doc. No. 219, at 2.
466
R. Doc. No. 219, at 3-4.
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V. FUNDING
A. The Court shall determine the initial funding needed to ensure
constitutional conditions of confinement at OPP, in accordance with
the terms of this Agreement, and the source(s) responsible for
providing that funding at an evidentiary hearing (“funding trial”).
Defendant, third-party Defendant City of New Orleans (“City”), and
Plaintiffs shall have the right to participate fully in the funding trial,
including producing expert testimony and analysis regarding the cost
of implementing this Agreement.
A.B. Defendant shall be responsible for implementation of this
Agreement upon a definitive judgment with regard to such initial
funding for this Agreement.
B.C. Once the funding is determined pursuant to Paragraph A, the
funding amount thereafter may be adjusted on an annual basis to
account for changes in the size of the prisoner population, inflation,
or other operating costs. If the PartiesDefendant and the City are
unable to agree upon such adjustments to the annual budget, the
Monitor will intervene and resolve the dispute. If the Monitor cannot
resolve the dispute within 45 days, the dispute will be submitted to
the district judge for resolution. Defendant, the City, and Plaintiffs
The Parties agree to work in good faith to determine available cost
savings measures that may result from the ongoing implementation
of this Agreement or otherwise.
C.D. Defendant will provide an annual budget for the expenditure of
the funds for operation of OPP and an annual audited financial
statement to the Monitor, the City, and the PartiesPlaintiffs. The
Monitor will assist in conducting oversight to ensure that funds for
implementing this Agreement are allocated to achieve compliance
with this Agreement.
IX. MONITORING
F. Monitor Distribution of OPSO Documents, Reports, and
Assessments: Within seven days of receipt, the Monitor shall
distribute all OPSO assessments and reports to SPLC, and DOJ, and
the City. The Monitor also shall provide any OPSO
compliance-related documents within seven days to DOJ, and SPLC,
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and the City upon request.467
The City specifically objects to the amendments because they “require the City to subject
itself to the ‘assistance’ of the Monitor to set funding levels for the Sheriff’s office.”468 But if the
City does not want to participate in a process in which the Monitor resolves disputes, it need not do
so. While the funding provision now expressly includes the City, the Sheriff, and the Plaintiffs in
the funding decisionmaking process, this modification merely provides the City with “the right,”
rather than the obligation, “to participate” in the Monitor’s dispute resolution. Ultimately, “[i]f the
Monitor cannot resolve the dispute within 45 days, the dispute will be submitted to the district judge
for resolution.”469 Nothing in the cited provision permits the Sheriff and Plaintiffs to impose any
obligation upon the City without a hearing.
The City also objects on the basis that it cannot be required to appear in Court to settle
funding disputes. There is a pending third-party complaint against the City. This claim and the law
defining the relationship between the City and the Sheriff, including any funding obligations, are
the source of any such requirement.
2. Effect on Public Safety Funding
The City next contends that the proposed consent judgment requires a “diversion of funds”
467
R. Doc. No. 183-2. Although the City did not object to the amendment of the monitoring
provision, the Court includes it because it is relevant to the Court’s determination that additional
notice to the class members was not required. The City has also not objected to the provision
requiring that it “work in good faith to determine available cost saving measures.” See City of
Miami, 664 F.2d at 442-44 (noting which provisions had been objected to by a third party); id. at
444 (The district court’s “approval of the decree, insofar as it affected [the parties] and, patently,
insofar as it is not objected to by the [third party] must be affirmed.”).
468
R. Doc. No. 219, at 3.
469
R. Doc. No. 183-2, at 1.
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that will adversely affect public safety and the welfare of the citizens of New Orleans who are not
inmates at OPP.470
First Deputy Mayor Andrew Kopplin testified relative to the effects that the proposed
consent judgment could have on the City’s budget. Because the cost of implementing the proposed
consent judgment and the party responsible for paying any additional costs have not yet been
determined, the Court permitted the City to offer testimony regarding the effect that a price tag of
$22.5 million would have on the City’s budget, should the City be required to pay such costs in full.
Kopplin stated that the $22.5 million figure was based on a request from the Sheriff.471
It is important to emphasize that, at this stage of the proceedings, the Court does not know
whether any additional revenue is needed to ensure that OPP inmates are afforded the full
protections of the Constitution and Title VI. The Court has not yet heard argument on the City’s
state law funding obligation or heard evidence relative to the funds available to the Sheriff and the
Sheriff’s spending of any such funds. Determining whether the City has an additional funding
obligation and the amount of any such obligation is impossible at this stage. Accordingly, the Court
will assume, for the sake of argument, that the City could be obligated to spend an additional $22.5
million on implementation of the consent judgment.
Kopplin testified that either significant layoffs and furloughs or a drastic reduction in the
number of police officers and fire department employees available to respond to public emergencies
would be necessary if the City was forced to spend an additional $22.5 million to remedy the
470
R. Doc. No. 153, at 4.
471
R. Doc. No. 409, at 15.
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conditions at OPP.472 Such measures, Kopplin concluded “would put all of the citizens of the City
at risk.”473
The PLRA requires courts to “give substantial weight to any adverse impact on public
safety” caused by the entry of a consent judgment. 18 U.S.C. § 3626(a)(1). Plaintiffs assert that
legislative history and caselaw demonstrate that this requirement is oriented towards the more direct
effects on public safety associated with prisoner release orders and population caps.474 See, e.g.,
Plata, 131 S. Ct. at 1941-42. The Court has considered the “difficult and sensitive” question of the
proposed consent judgment’s effect on public safety, especially insofar as it may indirectly lead to
decreased services in other areas. Id. at 1942.
The Court is well aware of New Orleans’ high homicide rate475 and budgetary constraints,476
but the evidence shows that violent crime is endemic within OPP as well. See id. at 1942. OPP
inmates, and particularly inmates with mental health issues, leave the facility more damaged, and
perhaps more dangerous, than when they arrived.477 Compare id. Experts opined that OPP poses
“clear and present dangers” of “life and death proportions” with respect to suicide and inmate
472
R. Doc. No. 409, at 17-19.
473
R. Doc. No. 409, at 19.
474
R. Doc. No. 179, at 6.
475
R. Doc. No. 412, at 62.
476
E.g., R. Doc. No. 409, at 17-18.
477
As counsel for the Sheriff articulated, “it’s meant to be a jail. It’s not a hospital, it’s not a mental
health ward, but that’s what’s coming into the jail more and more because all the health services are
being cut everywhere else. So they are dumping them at the Sheriff’s doorstep.” R. Doc. No. 412,
at 45; see also 42 U.S.C.A. § 15601(3) (“America’s jails and prisons house more mentally ill
individuals than all of the Nation’s psychiatric hospitals combined. As many as 16 percent of
inmates in State prisons and jails, and 7 percent of Federal inmates, suffer from mental illness.”).
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violence, and the risk of a tragic fire is unacceptable.478 Inmate escapes are not uncommon, and the
prospect of armed inmates, whether outside or inside prison walls, is alarming.479 The evidence
shows that OPP itself presents a public safety crisis, which endangers inmates, staff, and the
community at large.480
The Court concludes that, even were it to give substantial weight to the public safety issues
outside OPP, ignore the public safety issues inside OPP, and assume that the consent judgment will
cost the City an additional $22.5 million, the proposed consent judgment complies with the PLRA.
Notwithstanding this conclusion, the Sheriff’s funding claim will be subject to a rigorous
examination through two hearings, and any future funding claims will be addressed through a
process that includes the participation of the City and, potentially, the Court. The consent judgment,
and the Court’s approach to its approval, are structured in a manner designed to minimize any
indirect adverse effects on public safety. See § 3626(a)(1).
3. Cost & Taxes
Related to its argument that the proposed consent judgment’s implementation costs will draw
resources from other areas of public safety, the City argues that it cannot afford the consent
judgment. In particular, the City argues, “any increase in funding to the Sheriff[’s] Office inevitably
478
R. Doc. No. 405, at 135-37.
479
Schwartz testified that, while the videos portraying inmates armed with a loaded gun, gambling,
using intravenous drugs, and freely exiting and entering OPP to wander Bourbon Street are several
years old, “my concern is that some of that could reoccur or is reoccurring” such that inmates could
be endangering the non-incarcerated residents of New Orleans. R. Doc. No. 412, at 32.
480
R. Doc. No. 412, at 42; R. Doc. No. 407, at 44 (“The security failures of the jail extend to the
community.”); Pl. Ex. 372, at 5 (OPP facilities are “significantly more dangerous for staff than most
jails, and for no good reason.”).
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will require the City to increase taxes imposed against the citizens of the City of New Orleans.”481
Even assuming that the City will have to provide additional revenue in the future to implement the
consent judgment, a finding that the Court does not make at this juncture, “[i]t is well established
that inadequate funding will not excuse the perpetuation of unconstitutional conditions of
confinement, nor will an allegedly contrary duty at state law.” Smith v. Sullivan, 611 F.2d 1039,
1043-44 (5th Cir. 1980) (internal citations omitted). “That it may be inconvenient or more expensive
for the [local government] to run its prison in a constitutional fashion is neither a defense to this
action or a ground for modification of the judgment rendered in this case.” Gates v. Collier, 501 F.2d
at 1322.
The City has had the opportunity to put forth evidence that the conditions at OPP meet
constitutional muster or that the proposed consent judgment extends farther than constitutionally
necessary. The City has not presented any evidence, including expert testimony, showing that
conditions at OPP do not violate the Constitution or Title VI. The City has also not offered evidence
with respect to an alternative, less costly or less intrusive, approach to remedying conditions at OPP.
See Armstrong, 622 F.3d at 1071.
The Court anticipates that staffing will be one of the greatest costs associated with the
proposed consent judgment. When it comes to staffing levels, the consent judgment provides the
City with continuing opportunities to put forth evidence regarding the staffing and salaries needed
to run a facility that meets constitutional and statutory requirements, including the PLRA. The
uncontroverted evidence, however, is that some increase in staffing is necessary to ensure that
481
R. Doc. No. 153, at 5.
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conditions at OPP meet constitutional minimum requirements.482
The City’s proposed finding of law that “[t]he Court may not approve a proposed consent
decree that results in the raising of taxes” is disingenuous.483 The City cites 18 U.S.C.
§ 3626(a)(1)(C), but that statute provides: “Nothing in this section shall be construed to authorize
the courts, in exercising their remedial powers, to order the construction of prisons or the raising of
taxes.” The Court has no intention of ordering the City, the Sheriff, or any other political entity, for
that matter, to raise taxes or to construct yet another facility. To the extent our elected political
leaders intend to house inmates at OPP facilities, however, these facilities must meet constitutional
and statutory minimum requirements.
4. Negotiating History
The City argues that the parties have colluded in drafting a consent judgment that fails to
recognize the Sheriff’s revenue streams and that treats the City as “an unlimited bank account for
the benefit of the inmates and the Sheriff.”484 The City appears to suggest that the Sheriff and
Plaintiffs colluded by leaving the City out of the process while drafting a consent judgment that is
broader and more expensive than necessary to remedy the conditions at OPP.485
The City describes as “unorthodox” the legislative landscape in which the City must finance
482
See, e.g., R. Doc. No. 412, at 38.
483
R. Doc. No. 153, at 6; R. Doc. No. 427, at 11.
484
R. Doc. No. 151, at 14-15.
485
In Williams, the Fifth Circuit observed that “the district court had to bear the full responsibility
in this case to safeguard the interests of those individuals who were affected by the decree but were
not represented in the negotiations.” 729 F.2d at 1560. The Court has not interpreted Williams to
indicate that the City’s participation in negotiations excuses the Court from its “full responsibility”
to safeguard the City’s interests as a third party.
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a jail which is run by the Sheriff.486 The literature suggests that such arrangements are not
uncommon. E.g., Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and
Prison Court Orders, 81 N.Y.U. L. Rev. 550, 562-63 (2006). Whether or not common, however, this
financial relationship could incentivize sheriffs to seek out broad, expensive consent judgments.487
The Court has been vigilant about ensuring compliance with the PLRA, however, and the City has
assisted through its vigorous adversarial participation in this process. Nonetheless, at this stage, the
City has not identified ways in which the proposed consent judgment’s objectives—namely,
compliance with the Constitution—could be obtained for a lesser cost, and the expert testimony was
persuasive that the remedies included in the consent judgment are the minimum necessary to remedy
conditions at OPP.
The City also objects to the Plaintiffs’ characterization of its role in negotiating the proposed
consent judgment. Plaintiffs have asserted: “Since November 2011, the Sheriff and the City
participated in negotiations to formulate a comprehensive remedy to [] unlawful conditions.”488 The
City responds that it “did not participate in negotiations to formulate what is termed a
comprehensive remedy for alleged unlawful conditions.”489 However, the record shows that
attorneys for the City actively participated in the negotiations.
After the Sheriff filed his two third-party complaints, the Court was advised that all parties,
including the City, were prepared to enter into an interim consent judgment, subject to a dispute over
486
R. Doc. No. 159, at 2.
487
See Schlanger, 81 N.Y.U. L. Rev. at 562-63, 623 (noting “not so very hard fought” litigation
involving sheriffs).
488
R. Doc. No. 140, at 2.
489
R. Doc. No. 154, at 6.
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the cost and funding of the interim consent judgment’s reforms.490 An October 12 filing by Plaintiffs
shows that the parties, including the City, had been successful in reaching “agreement on all of the
substantive provisions in the proposed Settlement Agreement,” with the exception of an interim
funding amount to “be in effect until completion of a staffing analysis.”491 The accuracy of this filing
was confirmed at an October 15 status conference, in which the City Attorney at the time, Richard
Cortizas, and the current City Attorney, Sharonda Williams, participated.492 The Court was advised
by counsel for all parties that:
[T]here is no dispute with respect to those portions of the proposed
consent judgment detailing unconstitutional conditions at Orleans
Parish prison facilities as well as efforts that need to be undertaken
to ensure that prison facilities satisfy constitutional standards. There
is also no dispute that the City of New Orleans is responsible for
funding those efforts that must be undertaken, pursuant to the
proposed consent judgment, to remedy existing conditions. The only
remaining issue before the Court is the level of interim and
permanent funding required to remedy the unconstitutional
conditions.493
The Court specifically confirmed the substance of this paragraph with counsel at the status
conference. The confirmation was obtained through querying counsel for each party and receiving
individual verbal affirmation that the parties were ready to sign the agreement.
Counsel were ordered to appear in person at the next status conference, ostensibly to provide
490
See R. Doc. Nos. 77, 81.
491
R. Doc. No. 81; see also R. Doc. No. 156-6 (May 31, 2012 email from the City’s then-Chief of
Litigation, Sharonda Williams, to counsel for the United States and the Sheriff) (“I made some
proposed edits to the last version that was circulated. Please see attached.”); R. Doc. No. 156-7 (July
11, 2012 email from the City’s then-Chief of Litigation, Sharonda Williams, to counsel for the
United States and Sheriff) (“See [] my redline of the most recent draft.”).
492
R. Doc. No. 82 (listing participants).
493
R. Doc. No. 82.
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the Court with the signed consent judgment, which would permit future development of the interim
funding amount, and to discuss the appointment of a special master.494 At the conference,
notwithstanding numerous express assertions to the contrary by the City’s counsel, the Mayor of the
City of New Orleans announced that he was unwilling to sign any such agreement.495 The Mayor
advised the Court that when he signed the New Orleans Police Department (“NOPD”) consent
decree, the City was unaware that it was facing additional, significant revenue requests in connection
with the OPP litigation.496 Despite the persistent and skilled efforts of retired Judge Terry Q.
Alarcon, who put in countless hours free of charge to facilitate negotiations, the parties could not
reach an agreement.497
To be clear, the City’s negotiations with respect to the consent judgment carry no weight
whatsoever in the Court’s analysis of the proposed consent judgment outside of its collusion
analysis. The City had the right to refuse to sign the proposed consent judgment at any point,
notwithstanding its prior apparent willingness to agree to the proposed reforms subject to a future
resolution of the cost and funding dispute. The point of recounting this litigation history is to
identify the persuasive evidence, including the procedural history of the case, that contradicts the
City’s argument that it was left out of the negotiations process.
494
R. Doc. No. 82.
495
R. Doc. No. 86; see also R. Doc. No. 92.
496
Another section of the Court has rejected this assertion. See United States v. City of New Orleans,
No. 12-1924, 2013 WL 2351266, at *10 (E.D. La. May 23, 2013) (Morgan, J.) (“The City’s
argument that it had no knowledge of the potential cost ramifications for the OPP Consent Decree
at the time it signed the NOPD Consent Decree is patently false. At least as early as July 19, 2012,
several days before the City signed the NOPD Consent Decree on July 24, 2012, the City was on
notice that the Sheriff intended to request ‘$22.5 million of “new” estimated costs’ that would ‘bring
the total budget for OPP to $45 million’ for 2013.”) (modifications omitted).
497
See R. Doc. No. 86.
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C. Louisiana Rev. Stat. Ann. § 15:738
The City argues that the proposed consent judgment is inconsistent with La. Rev. Stat. Ann.
§ 15:738, which provides:
No incarcerated state prisoner, whether before trial, during trial or on
appeal, or after final conviction, who is housed in any jail, prison,
correctional facility, juvenile institution, temporary holding center,
or detention facility within the state shall have a standard of living
above that required by the constitutions of the United States and the
state of Louisiana, as ordered or interpreted by the appropriate courts
of last resort, or by the standards set by the American Correctional
Association. It is the intention of this legislature that, to the extent
permitted by law, no inmate shall have a standard of living better
than the state poverty level. Citizens should not be worse off
economically and living in conditions that are below those granted to
inmates whose living standards are being paid for and subsidized by
the hard-working and law-abiding people of the state of Louisiana.
At the fairness hearing and in its briefing, the City makes much of the fact that the proposed
consent judgment would provide inmates with medical and mental health care to an extent that
exceeds that provided to certain non-incarcerated citizens.498
No one disputes that La. Rev. Stat. § 15:738 does not negate constitutional minimum
standards. Moreover, the parties are well aware that governments carry a special responsibility for
those in their custody. “To incarcerate, society takes from prisoners the means to provide for their
own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A
prison’s failure to provide sustenance for inmates may actually produce physical torture or a
lingering death.” Plata, 131 S. Ct. at 1928 (quotation omitted). The Court notes that the statute’s
reliance on American Correctional Association standards implicates a higher level of care in some
498
E.g., R. Doc. No. 412, at 53-54; R. Doc. No. 427, at 16.
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situations than that required by the Constitution.499
The City argues, however, that in evaluating what the Constitution requires, the Court should
take into account the unfortunate living conditions experienced by some impoverished nonincarcerated citizens of Louisiana.500 While constitutional standards reflect “the evolving standards
of decency that mark the progress of a maturing society,” Plata, 131 S. Ct. at 1925 n. 3 (quoting
Farmer, 511 U.S. at 834), the Court has never before heard it argued that constitutional standards
vary depending on the poverty level existing in the state or community in which one lives. As
counsel for Class Plaintiffs highlighted during closing statements, such an interpretation has the
effect of affording lessened constitutional protections to citizens of Louisiana.501 The law does not
support this argument. A state’s inability or unwillingness to provide certain services to its nonincarcerated citizens does not excuse it from the constitutional obligation to provide basic care to
those in its custody.
D. Specific Provisions
Because the nature of the City’s objections to the proposed consent judgment remained
amorphous even as the fairness hearing was imminent, the Court ordered the City to clarify its
position: “The City shall identify with particularity the provisions of the proposed consent decree
that it is challenging.”502
499
R. Doc. No. 407, at 32 (“In terms of the American Correctional Association, it does take it up to
a little bit higher level because they have other things in those standards that go beyond the minimal
required to operate a safe jail.”).
500
R. Doc. No. 412, at 54.
501
R. Doc. No. 412, at 39-40.
502
R. Doc. No. 126, at 3 (emphasis in original). In the same order, the Court ensured the City was
on notice of its obligation to argue at the fairness hearing any state-law funding defenses related to
the overbreadth of the proposed consent judgment or the constitutionality of the conditions at OPP.
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In response, the City identified the funding provisions and fourteen substantive provisions
beginning with the phrase “continue to.”503 The City did not argue that these fourteen provisions
extended further than constitutionally required, but rather argued that they were unnecessary because
they “obligate the Sheriff merely to ‘continue’ to follow policies and procedures that he has already
implemented according to the language of the proposed Consent Decree.”504 “It cannot be reasonably
argued,” the City contends, that these provisions are “‘narrowly drawn,’ if they simply order the
Sheriff to continue to do what he already does.”505 Plaintiffs respond that the “continue to” language
is “the product of extensive negotiations, during which the Sheriff represented, without verification,
that improvements had been made in certain areas.”506
The Court has carefully examined the “continue to” provisions to which the City objects.
These provisions address direct supervision and rounds; detection of contraband; inmate
classification; grievances; training for special populations, including inmates with mental health
issues; and building maintenance. The evidence was compelling that OPP suffers from serious
deficiencies in these areas such that the consent judgment’s provisions are narrowly drawn, are
necessary to remedy the violation of a federal right, and are the least intrusive means of doing so.
Moreover, even if the Sheriff’s good faith efforts have resulted in recent changes, the
proposed consent judgment remains necessary. The Fifth Circuit observed in Gates v. Cook, with
respect to a state correctional department: “It is well settled that a defendant’s voluntary cessation
The purpose of this approach was to avoid having to call the same expert witnesses and hear the
same testimony at the funding hearing.
503
R. Doc. No. 153, at 8-11.
504
R. Doc. No. 153, at 8.
505
R. Doc. No. 159, at 19.
506
R. Doc. No. 156-2, at 6.
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of a challenged practice does not deprive a federal court of its power to determine the legality of the
practice. . . . The fact that many of these conditions have persisted for years despite MDOC’s
purported efforts leads us to likewise conclude that MDOC has not met the heavy burden of showing
that its voluntary conduct has mooted any of the issues presented here.” 376 F.3d at 337; see also
Gates v. Collier, 501 F.2d at 1321 (“Changes made by defendants after suit is filed do not remove
the necessity for injunctive relief, for practices may be reinstated as swiftly as they were
suspended.”). A defendant’s assurance that it is “already on the path towards compliance is
insufficient to moot the issue.” Gates v. Cook, 376 F.3d at 343-42. According to Schwartz, “almost
all of [the] problems given to OPSO in writing” in the 2008 National Institute of Corrections report
“remain unmitigated today.”507
The Court permitted the parties to add record citations to their proposed findings of fact and
conclusions of law after the hearing.508 The City did so, but it also attempted to “revise” its proposed
findings of fact and conclusions of law to introduce arguments that were not raised when the City
responded to the Court’s order to “identify with particularity the provisions of the proposed consent
decree that it is challenging.”509 In the same paragraph, the Court expressly stated that “[d]efenses
related to the constitutionality of existing conditions or the overbreadth of the proposed consent
decree that are not raised shall be deemed waived.”510 While not expressly invited, the Court
welcomes the City’s additional citations to legal authority.511 The Court mentions only briefly those
507
Pl. Ex. 372, at 20.
508
R. Doc. No. 391.
509
R. Doc. No. 126, at 3; R. Doc. No. 395.
510
R. Doc. No. 126, at 3.
511
See, e.g., R. Doc. No. 427, at 14.
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arguments that were not raised until weeks after the hearing and that are, accordingly, waived.
For example, in its proposed conclusions of law, the City challenges as overbroad the
provision stating that the consent judgment shall “terminate when the [Sheriff] has achieved
substantial compliance with each provision of the Agreement and [has] maintained Substantial
Compliance with the Agreement for a period of two years.”512 Because the City did not raise this
argument until several weeks after the hearing, opposing counsel did not have an opportunity to
address it. Nonetheless, in light of the evidence of longstanding deficiencies at OPP facilities arising
from deep-rooted and systemic weaknesses, the Court finds the two-year provision narrowly drawn
and otherwise compliant with the PLRA.
The City additionally raises a new challenge to the failure to define “substantial compliance”
with objective, quantifiable targets.513 The consent judgment defines substantial compliance as
“compliance with most or all components of the relevant provision of the Agreement.”514 In light
of the components of the proposed consent judgment, which include both general guidelines and
specific baseline requirements, and the evidence admitted at the hearing, the Court concludes that
this objection is without merit. See also M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 848 (5th
Cir. 2012) (“Named Plaintiffs must make an effort to give content to what it would mean to provide
adequate or appropriate levels of services, so that final injunctive relief may be crafted to describe
in reasonable detail the acts required.”) (quotation and modification omitted).
512
R. Doc. No. 427, at 14 (citing R. Doc. No. 101-3, at 43).
513
R. Doc. No. 427, at 14-15.
514
Consent Judgment, at 9.
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E. Admission of Liability
The City contends that “[u]nless [the Sheriff] admits to operating an unconstitutional facility,
[] the decree is overly broad.”515 In particular, the City demands that the Sheriff provide a “plainlyworded and straightforward admission of ‘deliberate indifference.’”516 Some inmates, including one
of the Class Representatives, similarly contend that the proposed consent judgment is inadequate
because it does not require an admission of liability from the Sheriff or a finding to that effect.517
While the Court is aware of the fact that the City and certain inmates may be dissatisfied with
a ruling that does not require a plain admission of liability, this is an inherent part of a settlement,
as opposed to a matter litigated through a full trial. By choosing to enter into a consent judgment,
the parties may “avoid the collateral effects of adjudicated guilt. United States v. City of Jackson,
519 F.2d 1147, 1152 n. 9 (5th Cir. 1979) (quoted in City of Miami, 664 F.2d at 441-42).
In the consent judgment, Class Plaintiffs, the United States, and the Sheriff stipulate that the
consent judgment “complies in all respects with the provisions of 18 U.S.C. § 3626(a)” and,
specifically, “that the prospective relief in this Agreement is narrowly drawn, extends no further than
necessary to correct the violations of the federal rights as alleged by Plaintiffs in the Complaints,
is the least intrusive means necessary to correct these violations, and will not have an adverse impact
on public safety or the operation of a criminal justice system. . . . Any admission made for purposes
of this Agreement is not admissible if presented by Third Parties in another proceeding.”518
“The requirements for the entry of relief in 18 U.S.C. § 3626(a)(1) may appear in some
515
R. Doc. No. 405, at 21.
516
R. Doc. No. 159, at 23.
517
E.g., R. Doc. No. 229, at 4-7; R. Doc. No. 237, at 2.
518
Consent Judgment, at 44.
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tension with any attempt by defendants to continue to deny legal liability while agreeing to the entry
of the relief sought by plaintiffs.” Elizabeth Alexander, Getting to Yes in a PLRA World, 30 Pace
L. Rev. 1672, 1684 (2010). Neither the PLRA nor caselaw requires a plainly worded concession of
liability, and the Sheriff’s stipulation with respect to the consent judgment parallels the language in
the PLRA. The Court must focus on whether the proposed relief complies with the Constitution,
statutory law, including the PLRA, and jurisprudence. Whether the Sheriff’s stipulation amounts to
a “cryptic” concession is not the Court’s concern. See Margo Schlanger, Plata v. Brown and
Realignment: Jails, Prisons, Courts, and Politics, 48 Harv. C.R.-C.L. L. Rev. 165, 173-74 (2013);
see also H.R. Rep. No. 104-21, at 24 n.2 (1995).
IV. Public Comments
The Court invited the general public, as well as OPP inmate class members, to comment on
the proposed consent judgment. The Court received numerous public comments from individuals
who are not incarcerated. Virtually every comment endorsed the proposed consent judgment.
The Court heard from a broad cross section of the community.519 Community groups, law
professors, and religious leaders similarly described the necessity and urgency of injunctive relief.520
The public comments consistently expressed that conditions at OPP have been deficient, to say the
least, for a very long time. The Chief District Defender for Orleans Parish and the Louisiana Public
Defender Board wrote to express support for the proposed consent judgment and express their
concern for the safety of OPP staff members and inmates.521 Family members of incarcerated
519
R. Doc. Nos. 327, 329.
520
R. Doc. Nos. 264, 320, 325.
521
R. Doc. Nos. 256, 319, 322.
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individuals, including individuals who died in OPP, implored the Court to enter an order approving
the consent judgment,522 describing as “shocking and offensive” the City’s characterization of
Plaintiffs’ suit as seeking “steaks and cognac” for inmates.523 The public comments also expressed
the opinion that politicians, including the Sheriff of Orleans Parish and the Mayor of New Orleans,
have failed and will continue to fail to take action absent court approval of the consent judgment.524
The consent judgment represents a reasonable factual and legal determination based on the
extensive factual record. It is fair and consistent with the Constitution, statutes, including the PLRA,
and jurisprudence. Its effect on third parties is not unreasonable or proscribed. Having concluded
that the consent judgment is overwhelmingly supported by the evidence, including OPP records and
persuasive trial testimony, the Court turns to the determination of whether the consent judgment is
additionally a fair, adequate, and reasonable class settlement.
CLASS SETTLEMENT ANALYSIS
Class Plaintiffs have filed an unopposed motion525 for certification of a settlement class
consisting of all people who are currently or will be incarcerated at the Orleans Parish Prison.”526
522
E.g., R. Doc. Nos. 238, 251-54, 373.
523
See R. Doc. No. 159, at 14 (“While the City does not question that constitutional standards must
be satisfied, the federal Courts, like the Legislature, have recognized that serving steaks and cognac
to inmates is not a constitutional entitlement.”); R. Doc. No. 250, at 2 (“We are not asking for
‘steaks and cognac.’ We are asking that the over 2,000 people who continue to be held in the
Orleans Parish jail be held in a safe, secure, and humane environment, with appropriate medical and
mental health services and conditions fit for human habitation.”).
524
E.g., R. Doc. No. 241; R. Doc. No. 250, at 2-3; R. Doc. No. 260; R. Doc. No. 331.
525
R. Doc. No. 145.
526
R. Doc. No. 145-1, at 6-7; see also R. Doc. No. 1, at 11; Consent Judgment, at 1. The City
contends that the other parties have “marginalized” the City, such that “the City is not in a position
to address” the certification issue. The City contends, however, that “it is inordinate, and tantamount
to overkill, to certify a class in this case.” R. Doc. No. 159, at 8-9.
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The terms of the proposed settlement, which is the same document as the consent judgment, have
already been discussed.
I. Standard of Law
When determining whether to certify a settlement class, courts must determine whether the
requirements for certification are met and whether the settlement is fair, adequate, and reasonable,
especially insofar as it affects inmates who are not named plaintiffs in the lawsuit.
Rule 23(a) of the Federal Rules of Civil Procedure permits certification of a plaintiff class
only if four requirements are met: (1) the class is so numerous that joinder of all members is
impracticable (“numerosity”); (2) there are questions of law or fact common to the class
(“commonality”); (3) the claims or defenses of the representative plaintiffs are typical of the claims
or defenses of the class (“typicality”); and (4) the representative plaintiffs will fairly and adequately
protect the interests of the class (“representation”). Although courts need not consider the likely
difficulties in managing a class action when considering a settlement class, courts must be cognizant
when considering the other factors that there will not be a “later opportunity for class adjustments.”
In re OCA, No. 05-265, 2008 WL 4681369, at *6 (E.D. La. Oct. 17, 2008) (Vance, J.) (citing
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). “The existence of a settlement class
may even ‘warrant more, not less, caution on the question of certification.’” Id. (quoting Amchem,
521 U.S. at 620).
Class certification is appropriate when a “rigorous analysis” confirms that the requirements
of Rule 23(a) are met. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Courts must
“look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable
substantive law in order to make a meaningful determination of certification issues.’” M.D. ex rel.
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Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012) (quoting McManus v. Fleetwood Enters.,
Inc., 320 F.3d 545, 548 (5th Cir. 2003)). Certification also requires that a class meets the
requirements of one of the subsections in Rule 23(b).
Plaintiffs seek certification pursuant to Rule 23(b)(2), which applies where a defendant has
“acted or refused to act on grounds that apply generally to the class” such that injunctive or
declaratory relief is appropriate. “Rule 23(b)(2) was created to facilitate civil rights class actions.”
Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 (4th Cir. 2006) (citation omitted). “The key
to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the
notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class
members or as to none of them.’” Dukes, 131 S. Ct. at 2557 (quoting Richard Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). The claims at issue
present a paradigmatic case for Rule 23(b)(2) relief. If an individual plaintiff successfully brought
a lawsuit raising the systemic claims at issue here, the injunctive relief sought, “as a practical matter,
would be dispositive of the interests of the other members not parties to the individual adjudications
or would substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P.
23(b)(2).
If certification requirements are met, the Court must still determine whether to approve the
settlement. As a threshold matter, the Court looks to whether notice was provided “in a reasonable
manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e). With
respect to the substance of the settlement, the Court inquires whether the settlement is fair, adequate,
and reasonable pursuant to Rule 23(e). The Fifth Circuit has advised courts to consider six factors
in making this assessment: “(1) the existence of fraud or collusion behind the settlement; (2) the
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complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the
amount of discovery completed; (4) the probability of plaintiffs’ success on the merits; (5) the range
of possible recovery; and (6) the opinions of class counsel, class representatives, and absent class
members.” Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004) (citing Parker v. Anderson, 667
F.2d 1204, 1209 (5th Cir. 1982)).
II. Certification Analysis
A. Numerosity
“To satisfy the numerosity prong, ‘a plaintiff must ordinarily demonstrate some evidence or
reasonable estimate of the number of purported class members.’” Pederson v. La. State Univ., 213
F.3d 858, 868 (5th Cir. 2000) (quoting Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038
(5th Cir. 1981)). OPP has approximately 2,500 inmates,527 and joinder of these inmates would be
impracticable, weighing in favor of certification. Moreover, the population is constantly in flux.
“[T]he fact that the class includes unknown, unnamed future members also weighs in favor of
certification.” Id. at 868 n. 11.
B. Commonality
The common questions of law or fact required by Rule 23(a)(2) must be able to “generate
common answers apt to drive the resolution of the litigation.” Dukes, 131 S. Ct. at 2551 (quoting
Nagareda, 84 N.Y.U. L. Rev. at 132. “Before and after Wal-Mart, courts have certified classes of
incarcerated persons challenging specific, written, acknowledged, official policies.” Mathis v. GEO
Grp., No. 08-CT-21, 2012 WL 600865, at *6 (E.D.N.C. Feb. 23, 2012) (citing cases). In M.D. ex
rel. Stukenberg, the Fifth Circuit expressly disagreed with the proposition that a policy must injure
527
Pl. Ex. 380.
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each class member to provide the foundation for class wide relief. 675 F.3d at 847-48. “Rather, the
class claims could conceivably be based on an allegation that the [defendant] engages in a pattern
or practice of agency action or inaction—including a failure to correct a structural deficiency within
the agency, such as insufficient staffing—‘with respect to the class,’ so long as the declaratory or
injunctive relief ‘settling the legality of the [defendant’s] behavior with respect to the class as a
whole is appropriate.’”Id. (quoting R. 23(b)(2)(1966 Amendments advisory committee note)). The
Court considers each of the Plaintiff Class’s claims to determine whether the commonality
requirement is met.528
The mere incantation of the words “systemic violation” does not justify class certification.
See id. at 844. For example, in M.D. ex rel. Stukenberg, plaintiffs alleged systemic violations of
substantive due process, which defendants contended were not capable of resolution because they
required an individualized “shocks the conscience” inquiry. Id. at 843. Here, however, Class
Plaintiffs present claims that are susceptible to common answers. See Logory v. Cnty. of
Susquehanna, 277 F.R.D. 135, 143 (M.D. Pa. 2011) (“Unlike Dukes, where commonality was
destroyed where there was no ‘common mode of exercising discretion that pervade[d] the entire
company,’ here there is a solid [prison] policy that applied directly to all potential class members.”)
(quoting Dukes, 131 S. Ct. at 2554).
The claims, defenses, relevant facts, and applicable substantive law demonstrate that
certification is warranted with respect to Class Plaintiffs’ Eighth and Fourteenth Amendment
protection from harm claims. Whether certain conditions at OPP either by themselves, or through
528
The Court need not address the Title VI claim brought by the United States because Class
Plaintiffs alleged only constitutional claims.
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a “mutually enforcing effect,” put inmates at a substantial risk of harm is amenable to a common
answer. See Gates v. Cook, 376 F.3d at 333. Plaintiffs have identified practices with respect to
staffing, contraband, supervision, and classification, for example, that uniformly create a substantial
risk of harm for all class members.529 See M.D. ex rel. Stukenberg, 675 F.3d at 848 & n. 7
(suggesting that staffing levels are the type of condition that is generally applicable to a class of
plaintiffs); see also Gates, 376 F.3d at 333. Similarly, whether OPP officials have been deliberately
indifferent to any such risk can be demonstrated in a manner that is applicable to all class members.
The facts and law also demonstrate that Class Plaintiffs’ Eighth and Fourteenth Amendment
medical and mental health care claims warrant certification.530 These claims do not allege
“amorphous” systemic deficiencies. Compare M.D. ex rel. Stukenberg, 675 F.3d at 844. Class
Plaintiffs have identified “discrete and particularized practices” including, for example, medication
and suicide prevention practices, as well as staffing inadequacies, that are mutually enforcing causes
of OPP’s deficient conditions.531 Compare id. at 844. Accordingly, a class action is an appropriate
vehicle for these claims.
C. Typicality
The typicality inquiry “focuses on the similarity between the named plaintiffs’ legal and
remedial theories and the theories of those whom they purport to represent.” Stirman v. Exxon Corp.,
280 F.3d 554, 562 (5th Cir. 2002). Typicality is established where “the class representative’s claims
529
The Court notes that this case involves a single administrative entity responsible for multiple
facilities. The evidence shows that the proposed consent judgment’s relief is appropriately applied
to all seven facilities.
530
As discussed above, the details relevant to Plaintiffs’ medical and mental health care claims, and
the associated remedies, largely overlap. Accordingly, the Court considers the two claims together.
531
R. Doc. No. 1, at 2-3.
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have the same essential characteristics of those of the putative class.” Id. Here, Class
Representatives consist of both pre- and post-trial detainees, and they present legal and remedial
theories common to the class members. Compare Hawkins v. Comparet-Cassani, 251 F.3d 1230,
1238 (9th Cir. 2001). While class members’ experiences at OPP may differ, “the claims arise from
a similar course of conduct and share the same legal theory” and, therefore, “factual differences will
not defeat typicality” in this case. Stirman, 280 F.3d at 562 (quotation omitted).
D. Adequacy of Representation
“Rule 23(a)’s adequacy requirement encompasses class representatives, their counsel, and
the relationship between the two.” Id. at 563 (quotation omitted). Class Representatives and class
counsel have demonstrated that they will fairly and adequately protect the interests of the class. The
Court is satisfied with the “zeal and competence” of class counsel and “the willingness and ability
of the representatives to take an active role in and control the litigation.”532 Id. (quotation omitted).
III. Settlement Analysis
A. Notice
Rule 23(e) requires that class members be notified of a settlement, but notice “need only
satisfy the broad reasonableness standards imposed by due process.” In re Katrina Canal Breaches
Litig., 628 F.3d 185, 197 (5th Cir. 2010) (internal quotations and citation omitted). Due process is
satisfied if the notice provides class members with the “information reasonably necessary for them
to make a decision whether to object to the settlement.” Id.
The Court approved a procedure in which a notice document and copy of the consent
532
E.g., R. Doc. Nos. 229, 235-37.
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judgment were distributed to all inmates at OPP on a given date.533 In addition, 50 copies of the
notice were posted in common areas in the seven OPP facilities, indicating how inmates could obtain
a full copy of the consent judgment.534 An abbreviated notice also ran in The Times-Picayune on two
different days and it was also posted on the newspaper’s website, NOLA.com.535 The abbreviated
notice was posted by the Court on its website, as well as on class counsel’s website, DOJ’s website,
and the Sheriff’s website.536 The City was also invited to post a copy on its website. The Court finds
these procedures easily satisfy Rule 23(e)’s requirements by providing class members with more
than enough information to determine whether the settlement is objectionable.
The Court previously determined that the amendments to the proposed consent judgment did
not require new notice. The Court ruled, “the amendments do not alter the original Proposed Consent
Judgment’s substance or effect in a manner that would require new briefing before the April 1, 2013
fairness hearing or a revised class notice.”537 After reviewing the parties’ supplemental briefing,538
the Court remains convinced that no additional notice was necessary. The minor modifications with
respect to the City, described supra, did not impair class members’ rights even indirectly, and the
modifications certainly did not constitute a material change with respect to the class members. See,
e.g., In re Baby Products Antitrust Litig., 708 F.3d 163, 175 n. 10, 182 (3d Cir. 2013) (supplemental
notice required only if settlement is “materially altered”); In re Integra Realty Res., Inc., 262 F.3d
533
See R. Doc. No. 129; 131.
534
See R. Doc. No. 129.
535
See R. Doc. No. 129.
536
See R. Doc. No. 129.
537
R. Doc. No. 213.
538
E.g., R. Doc. Nos. 395, 399.
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1089, 1111 (10th Cir. 2001) (no additional notice needed where amendment “merely expanded the
rights of class members”).
B. Fraud or Collusion
The consent judgment is the product of a protracted period of litigation between Class
Plaintiffs, DOJ, the Sheriff, and the City.539 The relief offered in the consent judgment demonstrates
that SPLC has been unwavering in fulfilling its obligations to Class Plaintiffs. For these reasons, as
well as those discussed above with respect to the City’s participation in the process, the Court is
satisfied that the consent judgment is not tainted by fraud or collusion.
C. Complexity, Expense, and Duration of Litigation
Class Plaintiffs observe that the expenses associated with this case are high because
demonstrating deliberate indifference would require “significant statistical, anecdotal, and expert
evidence.”540 While Class Plaintiffs further believe that they have obtained such evidence, they
accurately acknowledge that a failure to settle the case would require a protracted motions practice
and potential appeals that would delay the relief requested.541 Such delays would prolong Class
Plaintiffs’ exposure to the safety risks at OPP, weighing in favor of settlement.
D. Stage of the Proceedings
With respect to the stage of the proceedings, including the depositions and expert reports
completed, this case has progressed to a marked degree. Class counsel notes that four staff paralegal
investigators, as well as multiple law clerks and interns, have spent “thousands of hours
539
See R. Doc. No. 138, at 8; R. Doc. No. 411, at 22-23.
540
R. Doc. No. 138, at 9.
541
R. Doc. No. 138, at 9.
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documenting conditions in the jail by interviewing people housed there.”542 “There has not been a
single point, in the last year and a half of this litigation, that Plaintiffs stopped doing client intake,
responding to calls from the jail, and gathering evidence.”543
The City asserts that an absence of evidence at the fairness hearing supporting class
certification and settlement prohibits the Court from certifying the settlement class and approving
the settlement.544 This argument is flawed because the Court never indicated that it required an
evidentiary hearing for class certification and because the evidence presented at the fairness hearing
was directly relevant to the certification and class settlement inquiry. Moreover, the evidence
presented at the hearing was consistent with the evidence presented prior to the hearing, including
the declarations submitted by class counsel.545
E. Plaintiffs’ Probability of Success & Possible Recovery
The Court concludes that Class Plaintiffs’ probability of success and the possible recovery
associated with success supports approval of the consent judgment. As discussed with respect to the
PLRA’s narrow tailoring inquiry, the Court concludes that the remedies set forth in the consent
judgment address the allegations in Class Plaintiffs’ complaint. Moreover, class counsel notes that
the injunctive relief addressed in areas relevant to the United States’ complaint in intervention will
provide an additional benefit to many class members.546
The City contends that the Court should consider “a defendant’s financial condition when
542
R. Doc. No. 138, at 11 (citing R. Doc. No. 138-1).
543
R. Doc. No. 138, at 11 (citing R. Doc. No. 138-1).
544
R. Doc. No. 427, at 8.
545
E.g., R. Doc. No. 137-4.
546
R. Doc. No. 138, at 11.
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deciding whether to approve a class action settlement.”547 In light of the evidence presented at trial,
neither the City’s nor the Sheriff’s financial condition defeats the class settlement. Moreover, the
cases cited by the City are not persuasive in the context of a class action solely for injunctive
relief.548
F. Opinions of Class Counsel, Class Representatives, and Absent Class Members
The opinions of class counsel strongly support entry of the proposed consent judgment.549
The Court has received many comments from class members in support of the proposed consent
judgment. Inmates’ comments describe numerous deficiencies, including poor environmental
conditions, inadequate staffing and absent staff members, classification and housing problems, illicit
drug use, sexual assault and other violence, staff use of excessive force, and inadequate medical and
mental health care, including inadequate suicide prevention.550 Although many inmates wrote solely
about the current conditions at OPP,551 those inmates that commented on the proposed settlement
were generally positive.552 Some inmates objected to the lack of financial compensation,553 but the
proposed consent judgment does not limit the ability of inmates to bring claims for damages and the
complaint never sought such damages.554
547
R. Doc. No. 427, at 8.
548
See Cody v. Hillard, 88 F. Supp. 2d 1049, 1059 (D.S.D. 2000) (“This factor is not particularly
important in the present case because the action is not for monetary damages.”).
549
E.g., R. Doc. No. 138.
550
E.g., R. Doc. Nos. 227, 229, 269,270, 274, 275-76, 334, 353.
551
E.g., R. Doc. No. 235.
552
E.g., R. Doc. No. 227 (generally approving of proposed consent judgment, but noting concerns
about noncompliance).
553
E.g., R. Doc. No. 228.
554
R. Doc. No. 1, at 37.
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One recurrent objection is that the proposed consent judgment does not go far enough
because the Sheriff’s compliance will be in appearance only, while the deficient conditions at OPP
will persist or worsen.555 Some class members assert that the Sheriff will present a facade of
compliance during visits by experts or the Court, but not engage in substantive change.556 These
objectors ask for the Monitor to be “in house” or “on hand at all times within the jail” to ensure
compliance.557 One of the Class Representatives objects on the basis that the proposed consent
judgment “reads like a Standard Policy []Book issued by the Fed. Bureau of Prisons, La. Dept. of
Corrections, and American Correctional Association (ACA),” and fails to set forth “specific details”
on correcting the underlying problems.558
The Fifth Circuit’s “jurisprudence [] makes clear that a settlement can be approved despite
opposition from class members, including named plaintiffs.” Ayers, 358 F.3d at 373. The proposed
consent judgment “gives OPP officials discretion in establishing the details of facility-specific
policies designed to address constitutional infirmities,” but it also creates “concrete, baseline
requirements.”559 Freeman v. Berge, 68 F. App’x 738, 742-43 (7th Cir. 2003) (“[I]f defendants have
not lived up to their end of the bargain, [] inmates’ remedy is to enforce the agreement, not attack
it.”). The Court is aware that in other cases, whether because of inability or unwillingness to comply,
prison administrators have failed to implement consent judgments. Should this happen, appropriate
555
E.g., R. Doc. Nos. 227, 229. While some inmates appear to no longer reside at OPP, the Court will
address their contentions as objections without ruling on class standing.
556
R. Doc. No. 229.
557
E.g., R. Doc. No. 227.
558
R. Doc. No. 229, at 10.
559
R. Doc. No. 140, at 123.
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measures will be considered.560 At this point, however, these objections do not preclude approval
of the class settlement.
The Court finds that the proposed class satisfies the numerosity, typicality, commonality, and
adequacy of representation requirements set forth in Rule 23(a) and additionally meets the
requirements for certification pursuant to Rule 23(b)(2). Moreover, the proposed settlement fulfills
the requirements associated with Rule 23(e). Accordingly, the Court certifies the class, defined as
“all people who are currently or will be incarcerated at the Orleans Parish Prison,” and approves the
class settlement.
CONCLUSION
Whether “budget shortfalls, a lack of political will in favor of reform,” and/or other factors
are responsible for OPP’s deficiencies, these deficiencies must be remedied. Plata, 131 S. Ct. at
1936. Such conditions “are rarely susceptible of simple or straightforward solutions,” but the
consent judgment presents a narrowly drawn yet comprehensive means of ensuring the protection
of inmates’ federal rights. Id.
The federal rights at issue here, particularly with respect to the Constitution, establish
minimum standards rather than ideals to which a correctional institution may aspire. These minimum
standards are nonnegotiable. The Constitution guarantees that inmates, including convicted inmates
and pretrial detainees who are presumed innocent, receive certain minimum levels of medical care
and mental health care. It also guarantees that inmates will not be subject to a substantial risk of
physical injury, sexual assault, or death to which officials are deliberately indifferent. The Court
finds that the proposed consent judgment is the only way to overcome the years of stagnation that
560
See, e.g., R. Doc. No. 392.
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have permitted OPP to remain an indelible stain on the community, and it will ensure that OPP
inmates are treated in a manner that does not offend contemporary notions of human decency. After
carefully considering the tremendous amount of evidence, the parties’ arguments, including the
City’s objections, and the law, the Court concludes that the consent judgment should be approved.
IT IS ORDERED that the motions are GRANTED.
New Orleans, Louisiana, June 6, 2013.
_____________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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