McClendon v. City of Albuquerque

JIMMY (BILLY) McCLENDON, et al., Plaintiffs, v. CITY OF ALBUQUERQUE, et al., Defendants. v. E.M., R.L., W.A., D.J., P.S., and N.W.,on behalf of themselves and all

others similarly situated, Plaintiff-Intervenors.

Case No. 95 CV 024 JAP/KBM

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

October 25, 2017

MEMORANDUM OPINION AND ORDER APPROVING SETTLEMENT AGREEMENT BETWEEN CLASS AND SUBCLASS AND THE CITY OF ALBUQUERQUE

The City of Albuquerque (City) and the Mayor of Albuquerque (together, City Defendants), Plaintiffs and Plaintiff Intervenors seek final approval of the SETTLEMENT AGREEMENT BETWEEN THE CITY DEFENDANTS, THE PLAINTIFF CLASS, AND THE PLAINTIFF INTERVENOR SUB CLASS (Doc. No. 1320) (the Settlement Agreement) that fully resolves a dispute over the treatment of class and subclass members by the Albuquerque Police Department (APD). On August 2, 2016, Plaintiff Intervenors, on behalf of the subclass of individuals with mental disabilities, asked the Court to issue an order requiring the City Defendants to show cause why they are not in violation of a 2001 consent decree entered in this case. See PLAINTIFF INTERVENORS' AMENDED MOTION FOR AN ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF REGARDING CITY DEFENDANTS (Doc. No. 1233) (Motion for Order to Show Cause). Plaintiff Intervenors also alleged that the City Defendants have allowed the APD to violate subclass members' rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.¹ On August 3, 2016, Plaintiffs, on behalf of the class of inmates housed at the Metropolitan Detention Center (MDC), filed a notice of joinder in the Motion for Order to Show Cause.

On November 9, 2016, after full briefing of the Motion for Order to Show Cause,² the Court entered a MEMORANDUM OPINION AND ORDER (Doc. No. 1245) requiring the City Defendants to appear and show cause as to whether they are in compliance with: (1) the SUPPLEMENTAL ORDER TO ENFORCE PREVIOUSLY ORDERED POPULATION LIMITS AT THE BCDC MAIN FACILITY (Doc. No. 319) (the 2001 Supplemental Order) requiring the City Defendants to "[p]rovide direction to law enforcement officials . . . to issue citations where appropriate and to use the 'walk through procedures,' rather than incarcerating individuals, where appropriate;" (2) the 2001 Supplemental Order requiring the City 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 and developmental disabilities;"³ and (3) the ADA with regard to detaining and arresting individuals with mental illnesses or developmental disabilities to sweep them from the streets. The Courtordered the parties to participate in limited discovery. After discovery was completed, the parties entered into settlement discussions with Special Master Alan C. Torgerson. The Settlement Agreement is the product of those discussions and the determined efforts of Special Master Torgerson.

On July 10, 2017, the Court granted preliminary approval of SETTLEMENT AGREEMENT BETWEEN THE CITY DEFENDANTS, THE PLAINTIFF CLASS, AND THE PLAINTIFF INTERVENOR SUB CLASS (Doc. No. 1312, Ex. A) (Settlement Agreement). See STIPULATED ORDER PRELIMINARILY APPROVING SETTLEMENT, REQUIRING NOTICE TO CLASS AND SUBCLASS MEMBERS, AND SETTING FAIRNESS HEARING (Doc. No. 1312).

On September 11, 2017, the Court held a hearing on final approval of the Settlement Agreement. Present at the hearing were counsel for the class, Mark Donatelli, Zach Ives, and Phil Davis, counsel for the subclass, Peter Cubra, Kelly Waterfall, and Ryan Villa, counsel for the City Defendants, Debra Moulton, and counsel for the County Defendants, Luis Robles, Taylor Rahn, and Kenneth Martinez.⁴ At the hearing, the parties supported their contention that the Settlement Agreement was fair, reasonable, and adequate, informed the Court on the fulfillment of the notice requirements, and addressed two objections to the Settlement Agreement. At the end of the hearing, the Court signed the Settlement Agreement (Doc. No. 1320) and asked Ms. Moulton to notify the Court when the City Council had approved the Settlement Agreement so that the Court could find that the Motion for Order to Show Cause had been finally resolved. In a letter dated October 4, 2017, Ms. Moulton advised the Court that theparties agreed that the Court's execution and filing of the Settlement Agreement (Doc. No. 1320) was sufficient to fully resolve the Motion for Order to Show Cause. Ms. Moulton then informed the Court that the City ordinances do not require approval of the Settlement Agreement by the City Council and that Ms. Moulton received all necessary approval prior to executing the Settlement Agreement on behalf of the City.

After considering the long history of this case, the Settlement Agreement, the objections, and the arguments of counsel for the class, subclass, the City Defendants, and the County Defendants, the Court will grant final approval of the Settlement Agreement.

I. STANDARD OF REVIEW

Under Rule 23,

(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.

(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.

. . .

(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.

Fed. R. Civ. P. 23(e).

The notice requirements of Rule 23 are designed to satisfy due process by providing class members the right to notice of settlement and a right to be heard. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173-74 (1974). Notice, therefore, "must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 174 (internal quotation marks omitted).

Under Rule 23(e)(2), a court may approve a settlement agreement as fair, reasonable, and adequate if the settlement agreement meets four criteria: (1) the settlement was fairly and honestly negotiated; (2) serious legal and factual questions place the litigation's outcome in doubt; (3) the immediate recovery is more valuable than the mere possibility of a more favorable outcome after further litigation; and (4) the parties believe the settlement is fair and reasonable. Tennille v. Western Union Co., 785 F.3d 422, 434 (10th Cir. 2015).

II. BACKGROUND

A. CONSENT DECREES

This class action lawsuit was brought in 1995 against the City Defendants and the County Defendants to address issues related to the overcrowding of the Bernalillo County jail system, consisting originally of the Bernalillo County Detention Center (BCDC) in downtown Albuquerque, New Mexico and later on, the newer Metropolitan Detention Center (MDC), now operated by the County. In addition to addressing the needs of the Plaintiff class, the Court certified a "sub-class of 'all persons with mental and/or developmental disabilities who are now, or in the future may be, detained at BCDC'. . ." ORDER CERTIFYING A CLASS (Doc. No. 257) at 2.

In the AMENDED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (CLASS ACTION) (Doc. No. 150) (Complaint in Intervention), the Plaintiff Intervenors' alleged inter alia that Defendants, in the administration of the APD, Bernalillo County Sheriffs' Office and the Bernalillo County Detention Center, violated Plaintiff Intervenors' rights under the Americans with Disabilities Act (ADA) by: 1) failing to establish a system for determining the mental health needs of arrestees; 2) failing to provide effective pre-trial release services for individuals with psychiatric illness or developmental disabilities(subclass members); 3) denying programs for subclass members in an integrated setting; and 4) failing to modify existing programs to avoid discrimination against subclass members. (Compl. in Interv. ¶¶ 79, 80, and 103.) The Plaintiff Intervenors also alleged that the APD was "more likely to bring persons with psychiatric, developmental or other mental health disorders to the BCDC for booking than they are similarly situated persons with [physical] medical conditions that are not psychiatric disorders or mental health disorders. Non-disabled citizens receive citations for the same alleged offenses. Police and deputies rarely use the option of transporting subclass members to the University of New Mexico Health Center, rather than to the jail." (Id. ¶ 125.) Plaintiff Intervenors alleged that "[p]ersons with psychiatric, developmental or other mental health disorders are more likely to be booked into the BCDC by BCDC staff than are similarly situated persons without such disorders. . . . [P]ersons with psychiatric disabilities that warrant psychiatric hospitalization do not [get it]." (Id. ¶ 126.) In the Prayer for Relief, the Plaintiff Intervenors asked the Court to "[d]eclare unlawful Defendants' policy and practice of denying Plaintiff Intervenors . . . needed therapeutic services[]" and to issue injunctive relief "directing Defendants to immediately propose and promptly implement a plan to: . . . 2. Divert all people needing and wanting in-patient treatment to an appropriate treatment facility. . . . 4. ensure that whenever possible, classmembers receive services in the setting that most integrates them into their communities . . . " (Id. p. 42.)

Since 1996, the Court has approved numerous settlement agreements involving the treatment of detainees at the BCDC and at the MDC. The settlements have addressed both the...