McClendon, et al v. Albuquerque, City of, et al

Filing 1275

MEMORANDUM OPINION AND ORDER granting 1265 Joint MOTION Interim Order Regarding Access to the MDC re 754 Order by District Judge James A. Parker. (vv)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
JIMMY (BILLY) McCLENDON, et al.,
Plaintiffs,
vs.
Case No. 95 CV 024 JAP/ACT
CITY OF ALBUQUERQUE, et al.,
Defendants.
vs.

E.M., R.L., W.A., D.J., P.S., and N.W.,
on behalf of themselves and all others similarly situated,
Plaintiff-Intervenors.

MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION
FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC
In PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT MOTION FOR
ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE MDC (Doc. No.
1265) (Joint Motion), Plaintiffs and Plaintiff Intervenors ask the Court to order the County
Defendants to comply with the Court’s September 17, 2009 INTERIM ORDER REGARDING
ACCESS TO THE MDC (Doc. No. 754) (Interim Order). Specifically, Plaintiffs and Plaintiff
Intervenors seek an order requiring the County to produce reports that officials at the
Metropolitan Detention Center (MDC) provided to the Court’s medical care expert, Dr. Robert
Greifinger, during his April and November 2016 site visits. The County opposes the Joint
Motion. See COUNTY DEFENDANT’S RESPONSE TO PLAINTIFFS’ AND PLAINTIFF
INTERVENORS’ JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER
REGARDING ACCESS TO THE MDC (Doc. No. 1268) (Response). Plaintiffs and Plaintiff
Intervenors filed a reply brief. See REPLY IN SUPPORT OF PLAINTIFFS’ AND PLAINTIFF
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INTERVENORS’ JOINT MOTION FOR ENFORCEMENT OF INTERIM ORDER
REGARDING ACCESS TO THE MDC (Doc. No. 1270). Because the Joint Motion requests the
same type of records and documents that the Court previously ordered the County and its
medical provider to produce, the Court will grant the Joint Motion, subject to a confidentiality
order, if necessary.
I.

BACKGROUND
The MDC contracts with Correct Care Solutions (CCS) to provide medical and mental

health services to the inmates housed in the MDC. Under the December 7, 2011 ORDER
APPOINTING MANUEL ROMERO, ROBERT GREIFINGER, M.D., AND JEFFREY
METZNER, M.D. TO EVALUATE THE BERNALILLO COUNTY METROPOLITAN
DETENTION CENTER (Doc. No. 909), the Court authorized three experts in the areas of
medical care (Dr. Griefinger), mental health care (Dr. Metzner), and conditions of confinement
(Mr. Romero), to periodically evaluate the provision of services and the conditions of
confinement at the MDC to help the Court determine whether the County is complying with
federal law and the orders entered in this case.
On October 13, 2015, the Court entered a MEMORANDUM OPINION AND ORDER
GRANTING IN PART [AND] DENYING IN PART PLAINTIFF-INTERVENORS’
RENEWED OBJECTIONS TO MEMORANDUM OPINION AND ORDER ON JOINT
MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE
MDC (Doc. No. 1207) (Order on Renewed Objections). In the Order on Renewed Objections,
the Court ordered the County and its medical contractor, Correctional Healthcare Companies to
provide the following documents to Plaintiff Intervenors: (1) the Continuous Quality
Improvement and quality assurance reports; (2) the Mortality Review Reports; and (3) the

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Stellman Matrix, a report prepared by the County’s contract compliance officer, Dr. Roberta
Stellman. Counsel for Plaintiffs and Plaintiff Intervenors asked the County to produce the same
type of internal quality review documents that were shown to the Court’s medical expert, Dr.
Greifinger, during his April and November 2016 site visits. Counsel offered to provide a
stipulated order of confidentiality covering the requested documents. The County denied the
request. In his November 21, 2016 Report, Dr. Greifinger stated that he “read the mortality
reviews of the six inmates who died in custody since [his] last visit” and found them to be
“appropriately reflective and self-critical.” (Nov. Rep. at 7.) The Joint Motion states that all of
the mortality reviews have been withheld from counsel for Plaintiffs and Plaintiff Intervenors.
(See generally, Mot. at 4.) In November 2016, the County provided to counsel for the Plaintiffs
and Plaintiff Intervenors some internal quality assurance reports, which the County claimed were
the documents shared with Dr. Greifinger in connection with his November 2016 visit. However,
the County apparently is withholding the same types of documents referenced in Dr. Greifinger’s
April 2016 report. In addition, the County gave Dr. Greifinger several documents prepared by
Dr. Ron Shansky and Dr. Kenneth Ray, the County’s compliance contractors, that Plaintiffs’ and
Plaintiff Intervenors’ counsel state they have not seen.1
Counsel for Plaintiffs and Plaintiff Intervenors argue that they need all documents
reviewed by the Court’s experts to ensure that the County is giving the experts accurate
information. A complete set of documents provided to the Court’s experts is vital to counsel for
Plaintiffs and Plaintiff Intervenors in monitoring compliance with the Court’s extant orders as
incorporated into a recently-approved SETTLEMENT AGREEMENT (Doc. No. 1222-1) (the
Settlement Agreement). The Settlement Agreement requires the County to demonstrate initial

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The County had contracted with Drs. Shansky and Ray to provide compliance and sustainability monitoring
services regarding medical and other services at MDC.

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compliance with numerous standards outlined in three CHECK-OUT AUDIT AGREEMENTS
(Doc. Nos. 1222-2, 1222-3, 1222-4.). CHECK-OUT AUDIT AGREEMENT No. 1: THE
PROVISION OF MEDICAL SERVICES AT THE BERNALILLO COUNTY
METROPOLITAN DETENTION CENTER (Doc. No. 1222-2) (COA 1) requires the Court’s
medical expert, Dr. Greifinger, to make findings of fact addressing whether the MDC has
performed “definitive, specific, and measurable tasks” to accomplish substantial compliance with
numerous requirements regarding medical services at the MDC. CHECK-OUT AUDIT
AGREEMENT No. 2: THE PROVISION OF MENTAL HEALTH SERVICES AT THE
BERNALILLO COUNTY METROPOLITAN DETENTION CENTER (Doc. No. 1222-3)
(COA 2) requires the Court’s mental health expert, Dr. Metzner, to make findings of fact
addressing whether MDC has performed “definitive, specific, and measurable tasks” to
accomplish substantial compliance with numerous requirements regarding mental health services
at the MDC. CHECK-OUT AUDIT AGREEMENT No. 3: THE CONDITIONS OF
CONFINEMENT AT THE BERNALILLO COUNTY METROPOLITAN DETENTION
CENTER (Doc. No. 1222-4) (COA 3) requires the Court’s conditions of confinement expert, Mr.
Romero, to make findings of fact addressing whether MDC has performed “definitive, specific,
and measurable tasks” to accomplish substantial compliance with numerous requirements
regarding conditions of confinement at the MDC.
Over the past several years, the experts have visited MDC to observe the operations at
MDC, and each expert has produced detailed reports to the Court outlining MDC’s compliance
or non-compliance with the Court’s orders. Under the Settlement Agreement, the experts will
continue to play a central role in helping this Court to determine whether MDC is in compliance

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with the provisions of COA 1, COA 2, and COA 3. In the future, the experts will help the Court
to make findings that will lead to the successful conclusion of this case.
II.

DISCUSSION
The Court’s analysis in its Order on Renewed Objections applies to the Joint Motion.

Counsel for the class and subclass must have access to all reports, documents, and information
that MDC gives to the Court’s experts, even if the experts do not use the information in
preparing their reports. Access to internal quality reports and mortality reviews given to the
experts will ensure that Plaintiffs’ and Plaintiff Intervenors’ counsel are able to determine
whether the County is providing accurate and sufficient information to those experts. In addition,
counsel for the class and subclass must have access to the reports prepared by Drs. Shansky and
Ray that were given to Dr. Greifinger during his April 2016 and November 2016 site visits. In
the future, the County must give opposing counsel all reports that the County provides to any of
the experts.
The County maintains that the materials sought are protected from disclosure by the selfcritical analysis privilege and that forcing the County and its medical provider, CCS, to share this
information will “chill” their self-critical analysis. According to the County, “[i]t will be difficult
for CCS staff to be candid when they believe that these documents, which are intended to be
improvement tools, will be shared with opposing counsel and may be potentially used against
them in the future.” (Resp. at 2–3.) The County’s concerns are understandable, and some courts
have held that these types of analyses are protected by the privilege in medical malpractice cases.
See Weekoty v. United States, 30 F.Supp.2d 1343, 1345 (D.N.M. 1999) (recognizing privilege in
medical malpractice case). But see Zander v. Craig Hosp., 267 F.R.D. 653, 661 (D. Colo. 2010)
(citing Weekoty) (finding that “organic documents” which described hospital’s quality

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management functions were not privileged in a medical malpractice case). In the context of
prison reform, however, these types of quality assurance reports are not protected by the selfcritical analysis privilege. See Order on Renewed Objections at 11–14. The Court sees no reason
to change its previous conclusion that these types of documents are discoverable. See Bravo v.
Board of Commissioners for the County of Dona Ana, Case No. 08 CV 0010 WJ/KBM,
MEMORANDUM OPINION AND ORDER (Doc. No. 214) (D.N.M. Nov. 24, 2009) at 6
(unpublished). Moreover, even if the privilege were applicable in this case, Plaintiffs and
Plaintiff Intervenors may access the documents because the County and CCS waived their
privilege when they provided the documents to MDC personnel and to the Court’s experts.
The County also argues that Plaintiffs and Plaintiff Intervenors should not have access to
the reports prepared by Drs. Shansky and Ray because Dr. Greifinger did not use those reports in
his evaluation of medical care at the MDC. The County contends that the reports would not assist
Plaintiffs and Plaintiff Intervenors in evaluating Dr. Greifinger’s 2016 reports. However, it is not
the County’s duty to define what is useful to counsel for the Plaintiffs and Plaintiff Intervenors,
and these reports, if given to the Court’s expert, should be provided to opposing counsel. If the
County and CCS want to protect the confidentiality of these reports, the Court will enter a
stipulated order protecting that confidentiality, as it has in the past.
IT IS ORDERED that the PLAINTIFFS’ AND PLAINTIFF INTERVENORS’ JOINT
MOTION FOR ENFORCEMENT OF INTERIM ORDER REGARDING ACCESS TO THE
MDC (Doc. No. 1265) is granted.

SENIOR UNITED STATES DISTRICT JUDGE

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