Case: McClendon v. City of Albuquerque

On January 10, 1995, detainees at the Bernalillo County Detention Center (BCDC) in Albuquerque, New Mexico filed this class-action lawsuit in the United States District Court for the District of New Mexico. Represented by private counsel, the plaintiffs sued the BCDC under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), alleging that gross overcrowding and racial discrimination at the jail violated the First, Fourth, Fifth, Eighth, Thirteenth, and Fourteenth Amendments along with 18 U.S.C. §§ 242, 245, the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. § 3766), the State and Local Fiscal Assistance Act of 1972 (31 U.S.C. § 1242), the Public Works Employment Act of 1976 (42 U.S.C. § 6727), and various federal regulations. They sought injunctive and declaratory relief; on February 16, 1995, they moved for a preliminary injunction enjoining the operation of the BCDC in its present condition.

The parties engaged in abbreviated discovery related to overcrowding in preparation for a hearing on the preliminary injunction. A day before the hearing, District Judge Martha Vazquez made an unannounced visit to the jail, where she observed, among other things, prisoners sleeping on the floor on mattresses and a strong smell of urine coming from some cells. On August 23, 1995, she granted the plaintiffs’ motion for a preliminary injunction requiring the jail to reduce its population. From the start, the jail had conceded that crowding was a problem, and the preliminary injunction largely adopted the jail’s own population reduction proposal. (Because the jail was cooperative, and because the jail could qualify for additional funding if it avoided a ruling that conditions at the jail were unconstitutional, the court opted not to find conditions unconstitutional, but rather deferred that determination for a later time.) The injunction included a schedule of decreasing population caps for the BCDC, and detailed conditions concerning daily operation of the facility. The order also required that any detainee with a psychological impairment must be housed separately from the general population until a qualified mental health professional issued a written report stating that they could safely live in the general population.

On September 7, 1995, the parties entered into a settlement agreement, which the district court approved. The agreement converted the preliminary injunction into a permanent injunction and, among other things, required the jail to comply with its own existing policies regarding medical, dental and psychological services and access to a reasonably current law library. The defendants also stipulated to certification of a class defined as the "present and future residents of BCDC." The district court retained jurisdiction to enforce or modify the injunction.

One day prior, on September 6, 1995, lawyers working for the New Mexico Protection & Advocacy System and the American Civil Liberties Union moved to intervene on behalf of a proposed subclass of all present and future residents of the BCDC with mental and/or developmental disabilities. On October 26, 1995, the district court granted “limited intervention” to the plaintiff-intervenors. Intervention was limited to matters “before the court by virtue of the original Plaintiffs’ Complaint.”

On November 22, 1995, the plaintiff-intervenors filed an amended complaint on behalf of the proposed subclass. It alleged that the jail was discriminating against people with disabilities, in violation of the Constitution, the Americans with Disabilities Act (42 U.S.C. §§ 12111 et seq.), and § 504 of the Rehabilitation Act. They also alleged violations of the equal protection rights of female class members, and violations of procedural due process, the right of access to courts, and the Eighth Amendment.

In early 1996, in an effort to meet the population caps imposed by the September 7, 1995 settlement agreement, the defendants started housing prisoners in makeshift off-site facilities while a new, enlarged facility was under construction. On March 22, 1996, the court ordered that before using an interim facility to house prisoners, the defendants must allow the plaintiffs’ counsel to tour the proposed facility. The defendants appealed this order; the Tenth Circuit granted a stay pending appeal on April 2, 1996. 79 F.3d 1014. Ultimately, the Tenth Circuit dismissed the appeal as moot on November 15, 1996. 100 F.3d 863. (In the meantime, the defendants had completed the new facility, so they were no longer using interim holding sites.)

The Prison Litigation Reform Act (42 U.S.C. § 1997e) became effective in April 1996. This statute imposed detailed requirements on federal courts when hearing challenges to conditions in jails and prisons, and it allowed for the termination of certain types of court orders which were issued prior to the enactment of the statute. The defendants moved to terminate the orders that the district court had issued in this case; under the PLRA, the court then had 30 days to make findings of unconstitutional behavior by the defendants, or the court’s prior orders would be automatically stayed until the court made such findings. (The district court had, of course, deferred ruling on the constitutionality of the defendants’ behavior in order to preserve access to funding that was supposed to help the defendants improve conditions at the jail.) On October 29, 1996, the court held that the automatic stay provision of the PLRA was unconstitutional, as a violation of the constitutional principle of separation of powers (the court’s reasoning was later abrogated by the Supreme Court in Miller v. French). The previous orders were therefore not automatically stayed, and the court proceeded to consider whether to issue the PLRA-required findings in response to the defendants’ motion to terminate the prior orders. 29 F. Supp. 2d 1267.

The defendants’ motion was finally resolved on January 10, 1997, when the court approved two settlement agreements and adopted them as consent decrees. In the first of these two decrees (the “PLRA Order”), the court found (as required by the PLRA) that prisoners’ federal rights had been violated by the jail. The court required the jail to implement remedial measures designed to address the needs of inmates with mental illness and/or mental disabilities, particularly with regard to diagnosis and medical treatment. These consent decrees resulted in dismissal with prejudice of all the plaintiffs’ claims, except for the female class members’ claims regarding equal protection and access to courts. The court retained jurisdiction to enforce the agreements.

Between 1997 and 2003 the County made efforts to reduce the jail population, but the BCDC remained overcrowded. In September 2000, the court entered an order finding that the jail had been in violation of the PLRA Order’s population cap for eleven of the preceding twelve months, with the population at times approaching the dangerously high levels that had led to the 1995 injunction. The court ordered the jail to comply with the PLRA Order, and to consider and implement other measures to reduce the BCDC population.

The defendants responded by constructing a new facility, the Metropolitan Detention Center (MDC), which was completed in the summer of 2003. By June 17, 2003, all detainees housed at the BCDC had been transferred to the MDC. On July 11, 2003, the court ruled that the previous orders now applied to the MDC, and that the court had continuing jurisdiction to enforce those orders. 272 F. Supp. 2d 1250.

On October 10, 2003, the city and county moved to vacate the PLRA Order under Federal Rules of Civil Procedure 60(b)(5) and (6). They also asked the court to reconsider its decision to exercise jurisdiction over the MDC, arguing that the PLRA Order had been directed at the BCDC, and should not be applied to the MDC.

In 2005, while that motion was pending, the parties entered into two additional settlement agreements, which the court adopted. The defendants had signed an Intergovernmental Agreement with the federal government, agreeing to use the now-vacated BCDC (renamed the Regional Corrections Center or RCC) to house federal prisoners. The plaintiffs agreed that since the city and county were not responsible for the federal prisoners housed at the now-RCC, that jail would no longer be covered by this litigation. However, the plaintiffs later discovered that under the Intergovernmental Agreement, the city and county had actually assumed certain responsibilities for prisoner welfare at the RCC. In light of the defendants’ misrepresentation, the plaintiffs asked the court to withdraw its approval for the 2005 agreement, and to reassume jurisdiction over the RCC. The court did so on March 31, 2009, concluding that the inmates at the RCC were potential class members because the county had maintained operational control over the facility. In withdrawing its approval of the 2005 settlement agreement, the court gave the plaintiffs the option to rescind that agreement, which they did the following month (April 2009). The defendants appealed this decision to the Tenth Circuit.

They also moved to disqualify Judge Vazquez. In their April 21, 2009 motion to disqualify, the defendants alleged that Judge Vazquez had had ex parte communications regarding this case with several people. They also alleged that Judge Vazquez’s sister-in-law had been incarcerated at the MDC multiple times, most recently in March 2009, shortly before the withdrawal of the 2005 settlement agreement.

Judge Vazquez recused herself from the case on May 18, 2009, and the case was reassigned to Judge James A. Parker the following day. In her order of recusal, Judge Vazquez accused the County of maliciously misrepresenting facts in order to gain a tactical advantage in the litigation; their motion, she explained, was filed because they disagreed with her March 31, 2009 order, not because there was any reason for her to recuse. “The County’s Motion is a blatant attempt to malign and discredit the Court in an effort to achieve its objective of having this Court removed from the present case.” Regarding the defendants’ allegations that she had had ex parte communications, she wrote that the defendants’ counsel “either lacks a basic understanding of this common legal principle, or knowingly misuses the phrase to incite distrust in this Court’s impartiality. Either explanation is unacceptable for a licensed attorney obligated to uphold the New Mexico Rules of Professional Conduct.” The County’s failure to file the motion 2 years earlier, and instead to wait to file it immediately after it received a disfavor able ruling from the court, was evidence that the County was unethically abusing recusal for tactical advantage. Still, she found that the County had succeeded in making it appear that she was not impartial, and she therefore granted the motion for recusal.

Nearly two years later, on January 12, 2011, the Tenth Circuit (Judge Neil Gorsuch) ruled that the defendants could not bring an interlocutory appeal because the withdrawal of the settlement agreement was not a final decision within the meaning of 28 U.S.C. § 1291. 630 F.3d 1288.

On December 7, 2011, the court appointed three experts and asked them to evaluate conditions at the MDC in the areas listed in the 2005 settlement agreements.

On February 26, 2013, after receiving reports from the three experts on conditions at the MDC, which had become dangerously overcrowded, the court ordered the city and the county to appear and show cause why the MDC should not cease “[h]ousing female residents, who have not been classified or who have different classifications, in the same Segregation housing unit.” On the day of that hearing, the parties agreed to alter the conditions for female inmates at the MDC. This pattern repeated itself in a May settlement agreement that required the county to draft a plan addressing a host of issues, ranging from double-celling to out-of-cell time, and to implement the plan before September 1, 2013.

The court referred to the February and May agreements as the 2013 Stipulated Orders. On July 24, 2013, the court issued another order to show cause, requiring the county to show how it had complied with the 2013 Stipulated Orders. At a hearing on August 8, 2013, it became clear that the county had failed to comply with the 2013 Stipulated Orders in several areas; on August 19, the plaintiffs asked the court to find the defendants in contempt.

On April 25, 2014, the county filed a motion to terminate some of the court’s prior orders under the Prison Litigation Reform Act. On May 12, 2014, the court entered an order incorporating many of the provisions of prior orders and also requiring the county to create an Emergency Population Management Plan in cooperation with the Criminal Justice Review Commission (CJRC) to ensure that the population at the MDC remained at or under 1,950. The order contained provisions for the court’s experts to resolve disputes over implementation of the order’s requirements.

On September 23, 2014, the court ordered three experts to evaluate the conditions of confinement at the MDC and to determine whether the county was in compliance with each provision of the previous orders.

At a status conference on March 10, 2015, the court asked the parties to develop a plan for disengagement of court oversight and for eventual dismissal of the lawsuit. The parties worked with Special Master Alan C. Torgerson (who before his retirement had been the Magistrate Judge assigned to this case) to develop a settlement agreement that would bring the litigation to an end while ensuring that positive changes in conditions at the MDC would become permanent.

After months of negotiations with the Special Master, the parties submitted a settlement agreement, and the court granted final approval on June 27, 2016. This agreement described eight domains in which the county was required to meet specified standards:

1. Medical Services
2. Mental Health Services
3. Operations Group A
4. Operations Group B
5. Population Management
6. Housing and Segregation
7. Sexual Misconduct
8. Use of Force and Internal Investigations

Under the settlement agreement, once the court found the County in initial compliance with the relevant set of requirements, the County would then “self-monitor” for an additional court-specified period of time. While self-monitoring, the County was required to submit quarterly reports to the appropriate expert monitor and to counsel for the plaintiffs. At the conclusion of the self-monitoring period, the experts would conduct a “Check-Out Audit” and make a finding of compliance using standards detailed in each Check-Out Agreement. Based on the county’s reports and on the experts’ proposed findings, the court would vacate its order as to that particular domain.

Finally, once the County demonstrated substantial compliance with all eight of the domains, the court would enter a permanent injunction containing the following provisions:

1. the population of the MDC would be limited to the operational capacity of the MDC (which at the time was 1,950);
2. no inmates would be triple-celled;
3. no inmates would sleep in day rooms, except for detoxification units;
4. high-risk or security-threat inmates or inmates requiring segregation would not be double-celled with other inmates unless determined to be compatible;
5. segregated inmates who were in protective custody or new intakes could be double-celled if it was determined that they were low risk and compatible; and
6. unclassified inmates would not be housed with segregated inmates.

On November 30, 2016, the plaintiffs and the plaintiff-intervenors filed a joint motion seeking an order requiring employees in the RCC’s medical unit to complete a specialized competency-based training. They also sought to have employees without necessary specialized skills transferred out of the unit. In the same motion, they asked the court to hold a show-cause hearing regarding compliance with some of the court’s previous orders. The court granted this motion, and ordered the jail to demonstrate that it was in compliance with the following:

1. The court’s 2001 Supplemental Order, which required the city to give “direction to law enforcement officials under the control of the City…to issue citations where appropriate and to use the ‘walk through procedures,’ rather than incarcerating individuals, where appropriate.”
2. Another provision of the 2001 Supplemental Order, which required the city and county to “schedule a meeting or meetings concerning the provision of mental health services in Bernalillo County…to plan how to implement an effective jail diversion program for persons with psychiatric or developmental disabilities.”
3. The ADA and the Rehabilitation Act, with regard to detaining and arresting individuals with mental illnesses or developmental disabilities as a means of removing them from the streets.

On September 11, 2017, the court denied the motion for further remedial relief and decided not to hold the defendants in contempt. Despite the MDC’s training deficiencies and its hesitation when faced with allegations of abuse, the court believed that there was not yet sufficient evidence to hold the county in contempt. The court did state that the county would have to improve the MDC’s mental health services before the court would find substantial compliance as required by the settlement.

On that same day, the court granted final approval of another settlement agreement, this time between the city, the plaintiff class, and the plaintiff-intervenor subclass. This settlement was not directly related to conditions at the jail, but instead required the city and county to revise their arrest procedures. Specifically, the defendants agreed to issue a special order directing police officers to issue citations wherever appropriate, and directing that individuals alleged to have committed non-violent misdemeanor offenses not be arrested unless circumstances required an arrest. The defendants also agreed to pay $80,000 in attorneys' fees.

Following the death of one of the experts, Manuel Romero, in November 2017, the court on February 5 appointed Margo Frasier as a replacement. The court asked Ms. Frasier to evaluate whether the MDC was in compliance with the standards described in the Check-Out Audit agreement. The court instructed Ms. Frasier to: prepare her first report by August 31, 2018; prepare her second report by February 28, 2019; and then to continue preparing subsequent reports at six-month intervals.

Between December 2019 and February 2020, the court found the defendants to be in initial substantial compliance with 3 of the 8 domains described in the 2016 settlement agreement. For those 3 domains, the court-ordered self-monitoring periods will end between August 31, 2020 and August 19, 2021.

As of August 6, 2020, the defendants continue to work toward initial substantial compliance in the remaining 5 domains.