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

Filing 1470

ORDER by Magistrate Judge Karen B. Molzen granting 1435 Joint Motion for Enforcement of the Interim Order Regarding Access to the MDC filed by Plaintiffs and Plaintiff-Intervenors. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JIMMY (BILLY) McCLENDON, et al.
Plaintiffs,
v.

CIV 95-0024 JB/KBM

CITY OF ALBUQUERQUE, et al.,
Defendants,
E.M., R.L. W.A. D.J., P.S. and
N.W. on behalf of themselves and
all other similarly situated,
Plaintiff-Intervenors.

ORDER ON JOINT MOTION FOR ENFORCEMENT
OF THE INTERIM ORDER REGARDING ACCESS TO THE MDC
THIS MATTER is before the Court on the opposed Joint Motion for Enforcement
of the Interim Order Regarding Access to the MDC filed by Plaintiffs and PlaintiffIntervenors (jointly “Plaintiffs”) on July 23, 2021 (Doc. 1435). The Court has reviewed
the Motion, Defendant’s Brief in Opposition (Doc. 1451), Movants’ Reply Brief
(Doc. 1463), and all exhibits attached to those documents. For the reasons set forth
below, the Motion will be granted.
Background
Plaintiffs brought this class action lawsuit in 1995 to address conditions of
confinement in the Bernalillo County jail system, initially the Bernalillo County Detention
Center (“BCDC”) in downtown Albuquerque, New Mexico and later on, the Metropolitan

Detention Center (“MDC”). The case is now governed by the Settlement Agreement and
its three Check-Out Audit Agreements approved by Senior Judge James A. Parker on
June 27, 2016. Doc. 1225. Those agreements are found on the Court’s docket as
Doc. 1222-1 through Doc. 1222-4.
In the Settlement Agreement, the parties set out eight subjects (“Domains”) for
monitoring and settled on a method to demonstrate initial compliance for each of the
eight domains that are set out in the Check-Out Audit Agreements. Specifically, “[a]t the
completion of the self-monitoring period, the [Court-appointed] experts must conduct
‘Check-Out Audits’ as to each domain and make a finding of compliance, partial
compliance, or non-compliance using the standards set out in each Check-Out Audit
Agreement.” Doc. 1225 at 15.
The requirements for compliance with the general conditions of confinement are
set forth in Check-Out Audit Agreement 3. Doc. 1222-4 at 24-25 (covering all conditions
of confinement except those relating to the provision of medical and mental health
services). The instant Motion implicates Check-Out Audit Agreement 3’s Domain 7
requirements that address “Sexual Misconduct.” Doc. 1222-4 at 24-25.
Also implicated is the so-called “Interim Access Order” located at Doc. No. 754.
In 2009, a dispute arose as to the level of access Plaintiffs’ counsel should have to the
MDC facility and its records in monitoring Defendants’ efforts to comply with the
Settlement Agreement. See Doc. 731.Then-assigned referred Magistrate Judge Alan C.
Torgerson (who now serves as the special master in this case) resolved the issues with
his entry of the Interim Access Order on September 27, 2009. Doc. 754. In response to
Plaintiffs’ objections to the Judge Torgerson’s Order, Judge James A. Parker upheld its

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terms as enforceable. He expressly found that the Interim Access Order clarified the
language “reasonable and unimpeded” used by previously-presiding District Judge
Martha Vazquez in her July 2003 Order as allowing reasonable restrictions on access to
the MDC facility and its records. Doc. 768 at 15-16.
Analysis
The parties agree that Check-Out Audit Agreement 3 sets forth the agreed-upon
requirements to demonstrate compliance for addressing “Sexual Misconduct.” That
portion of the Check-Out Audit Agreement 3 provides in pertinent part:
I. Sexual Misconduct
1) Whether MDC has developed and adequately implements policies,
protocols, trainings, and audits consistent with the requirements of
the Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601, et seq.
2) Whether MDC’s policies and protocols adequately address the
prevention, detection, reporting, and investigation of sexual abuse,
sexual harassment, and sexual touching.
3) Whether MDC’s policies and protocols adequately address the
collection of data regarding sexual abuse (including inmate-on inmate
and staff-on-inmate sexual abuse), sexual harassment, and sexual
touching.
4) Whether MDC adequately protects inmates from sexual abuse, sexual
harassment, and sexual touching.
Doc.1222-4 at 24-25. Plaintiffs contend that they need access to all MDC reports
alleging violations of the Prison Rape Elimination Act (“PREA”) to properly
assess whether Defendants are complying with these obligations as to Domain 7
in the Settlement Agreement.
Apparently, Plaintiffs are permitted periodic review of only those PREA reports
that have been given to Margo Frasier, the Court’s general conditions expert. Thus,
Plaintiffs have no access to reports which contain allegations that Defendants determine
are “non-PREA” incidents See e.g., Doc. 1463 at Exs.1 & 2. Plaintiffs insist that

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production of these reports is essential to confirm that “Defendants are not misidentifying
as non-PREA patterns of sexual harassment that do implicate PREA and require
compliance with PREA’s regulations for inmate safety.” Doc. 1463 at 4.
In support of access to such documents, Plaintiffs rely on Paragraph 13 of the
Interim Access Order which provides:
Every quarter, on a date to be agreed on by the parties, … defendants …
will produce documentation regarding mutually agreed subjects, including
defendants’ logs regarding use of force, use of mace, and other incidents.
Defendants will produce that data from the computer system defendants
use to keep track of such information. If there is a disagreement about
what is to be produced, the matter will be submitted to the U.S. Magistrate
Judge for decision. 1
Doc. 754 ¶ 13 (emphasis added)]. Plaintiffs assert that the emphasized phrase “and
other incidents” includes all allegations in a report asserted as violative of the PREA
despite an ultimate finding by MDC that the allegations fall outside the mandates of the
PREA.
Defendants maintain that “[t]his Court has never held Plaintiffs must be given all
documents that are relevant to compliance with a Court provision, but instead only
those are necessary for Plaintiffs’ monitoring.” Doc. 1451 at 4 (emphasis in original).
With this proposition, the Court agrees. Thus, the question presented: are the requested
PREA documents merely relevant to compliance or are they necessary for Plaintiffs’
counsel to monitor and assess compliance with the check-out audit requirements for
Domain 7?

The Court agrees with Plaintiffs that “Domain 7 – like all other domains described in the
Settlement Agreement and in [Check-Out Agreement 3] – is a ‘mutually agreed subject,’ and
PREA reports are ‘documentation regarding’ that subject.” Doc. 1463 at 2. Thus, as the
currently-referred magistrate judge, I am authorized to decide the issue at hand, and I do not
believe Defendants take a contrary position.
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The Court finds that if reports containing allegations involving sexual harassment
or other prohibited conduct under the PREA are sometimes improperly closed as “nonPREA” incidents, this constitutes information clearly needed by counsel to fulfill their
monitoring obligations to the Class. Plaintiffs persuasively argue that they require
access to all PREA reports in assessing “whether the facility’s investigations themselves
are deficient, or whether investigators are misapplying PREA’s standard of proof. In that
sense, it is the unsubstantiated reports (and the non-PREA determinations) that are
most informative.” Doc. 1463 at 5.
Moreover, Defendants fail to show undue burden in producing all PREA reports
alleging violations occurring within the MDC facility. Based on Defendants’
representations to the Court, this would require production of approximately 50 PREA
reports and non-PREA determinations per quarter, all of which exist in an electronic
database. Finally, the Court finds unavailing Defendants’ “size of the fishbowl”
arguments relating to increased compensation to Plaintiffs’ counsel for document
review.
Wherefore,
IT IS HEREBY ORDERED that Defendants provide access to Plaintiffs’ counsel
of all reports containing allegations of violations of the PREA within the MDC facility.

________________________________________
UNITED STATES MAGISTRATE JUDGE

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