IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, Plaintiff
STATE OF ARIZONA et al., Defendants.
On March 10, 1997, the United States initiated this
litigation alleging that Defendants were violating the
constitutional rights of inmates incarcerated in Arizona women's
prisons to be free from sexual misconduct and unlawful invasions
of privacy. While Defendants believe the United States'
Complaint had no basis in fact, to avoid the cost, inconvenience,
and uncertainty of trial, the parties have agreed to resolve this
litigation. Nothing contained in this Settlement Agreement is to
be construed as an admission that Defendants violated the
constitutional rights of any female inmate. This Settlement
Agreement incorporates and refers to those areas in which ADOC
will continue current policies and practices that are designed to
eliminate inappropriate staff-inmate behavior.
1. "ADOC" means the Arizona Department of Corrections.
2. "Inmate" means any female inmate incarcerated in ADOC.
3. "Staff" means correctional officers, maintenance
workers, kitchen workers, teachers, counselors, and any other
person with direct access to inmates, whether employed by ADOC or
some other entity.
4. "Management" means Director, Deputy Director, Warden,
Deputy Warden and/or Female Programs Administrator.
5. "DOJ" means the United States Department of Justice.
6. "Inappropriate staff-inmate behavior" means one or more
of the following: (a) sexual contact between inmates and staff;
(b) unprofessional conduct by staff, including overfamiliarity,
improper comments, and other acts prohibited by ADOC policies,
and (c) inappropriate invasions of "privacy" interests, as
7. "Serious sexual misconduct" means one or more of the
following: oral sexual contact, sexual intercourse, or any direct
or indirect touching, fondling or manipulating of any part of the
genitals, anus or female breast by any part of the body or by any
object or causing a person to engage in such contact.
8. "Privacy" means the interest of female inmates not to
be viewed by male staff while dressing, showering, or toileting
absent a legitimate security interest that cannot be reasonably
accomplished by female staff.
9. "Consult" means only provision of written and/or oral
comments to counsel.
III. ADOC POLICIES AND PROCEDURES
A. Policies And Procedures Regarding Misconduct ADOC will
obtain policies and procedures relating to inappropriate staff-inmate behavior from the Federal Bureau of Prisons, the Georgia
Department of Corrections, the National Institute of Corrections,
and other states that ADOC believes have comprehensive policies
and procedures relating to inappropriate staff-inmate behavior.
Where necessary, ADOC will revise its current policies and
procedures utilizing concepts and materials obtained from these
sources to ensure that its policies and procedures are simple,
direct, and explicitly define and prohibit inappropriate staff-inmate behavior. Prior to final adoption of any revised policy
and procedure, ADOC will provide DOJ with a reasonable
opportunity to review the proposed policy and procedure and to
consult with ADOC regarding the proposed policy and procedure.
B. Policies And Procedures Regarding This Settlement
Agreement (1) ADOC will revise as necessary its policies and
procedures to ensure that all of the provisions of this
Settlement Agreement are incorporated into ADOC policies and
procedures. (2) Prior to final adoption of any revised policy
and procedure, ADOC will provide DOJ with a reasonable
opportunity to review the proposed policy and procedure and to
consult with ADOC regarding the proposed policy and procedure.
(3) Defendants agree that policies and procedures adopted
pursuant to this Settlement Agreement will continue to be
implemented after the Complaint has been dismissed; provided,
however, that this provision is not intended to, nor does it,
prevent ADOC from changing its policies for purposes of
confronting issues that could arise in the future. (4) Within
three months of executing this Settlement Agreement, ADOC will
notify affected employees of the changes in policy and practice
and require each employee to verify that he or she is aware of
IV. PRE-EMPLOYMENT SCREENING
A. Current Non-Correctional Staff With Inmate Contact
Within six months of the execution of this Settlement Agreement,
ADOC will conduct background checks on all current non-corrections staff with inmate contact who have not already undergone background checks to determine whether they have been
convicted of or pled guilty or nolo contendere to any felony
charge either before or after their employment with ADOC. ADOC
will remove any staff that has been convicted of or pled guilty
or nolo contendere to any felony charge from contact with female
B. Future Correctional Staff ADOC will continue to
utilize at least the following measures prior to hiring
correctional staff: tests to assess personality to be scored by
a professional psychologist; fingerprints to be sent to the
Federal Bureau of Investigation; investigation of information in
background questionnaire including information about drivers
license number and record, past employment, past education,
references, criminal arrest and conviction record; National Crime
Information Center record check; law enforcement agency check of
agencies where applicant has lived; military discharge status;
investigation of whether applicant has ever worked in ADOC
prisons, and if so, whether they were the subject of
investigations and allegations of inappropriate staff-inmate
C. Future Non-Correctional Staff With Significant Inmate
Contact ADOC will utilize the same pre-employment screening
measures for non-correctional staff who will have significant
inmate contact as it does for correctional staff. If the non-correctional staff is employed by an entity other than ADOC, ADOC
will require the entity employing the non-correctional staff to
utilize those same pre-employment screening measures, and will
require that entity to demonstrate that each employee has passed
those measures. Non-correctional staff with significant inmate
contact means maintenance, kitchen, teaching, recreation,
medical, dental and mental health staff; investigators; contract
paralegals; off-site supervisors of work crews; substance abuse
counselors; chaplains; and volunteers.
V. STAFF TRAINING
A. Training Materials ADOC will obtain pre-service and
in-service training material relating to inappropriate staff-inmate behavior from the Federal Bureau of Prisons, the Georgia
Department of Corrections, the National Institute of Corrections,
and other states that ADOC believes have comprehensive pre-service and in-service training materials relating to inappropriate staff-inmate behavior. Where necessary, ADOC will
revise its current training materials utilizing concepts and
materials obtained from these sources so that it will have a
current, complete set of training materials relating to
inappropriate staff-inmate behavior. Prior to final adoption of
any new training materials, ADOC will provide DOJ with a
reasonable opportunity to review the proposed training materials
and to consult with ADOC regarding the proposed materials.
ADOC will revise its current training materials to
incorporate all of the provisions of this Settlement Agreement.
Prior to final adoption of any such revised training materials,
ADOC will provide DOJ with a reasonable opportunity to review the
proposed training materials and to consult with ADOC regarding
the proposed materials.
ADOC will create a video describing inappropriate staff-inmate behavior, how to report it, and the disciplinary action
staff will incur for engaging in inappropriate staff-inmate
behavior. ADOC will show the video to all current staff and all
staff hired after execution of this Settlement Agreement. ADOC
will enact a policy that all staff must acknowledge in writing
viewing of the video, and will place a copy of this statement in
their personnel files. This video will be shown yearly to all
staff during in-service training. Prior to final approval for a
staff training video, ADOC will provide DOJ with a reasonable
opportunity to review the video, and to consult with ADOC
regarding its contents.
B. Training Topics Regarding Inappropriate Staff-Inmate
Behavior ADOC will continue to include in both its pre-service
and in-service staff training, or will add to such training, at
least the following concepts: (1) identification of what
constitutes inappropriate staff-inmate behavior; (2) explanation
of how inmates are harmed by inappropriate staff-inmate behavior;
(3) description of how the security of the facility is
jeopardized by inappropriate staff-inmate behavior; (4) a
statement of the legal consequences of participating in
inappropriate staff-inmate behavior; (5) a description of how to
report inappropriate staff-inmate behavior, including when, how,
and to whom it should be reported, with emphasis on staffs'
obligation to monitor, observe, and report the behavior of other
staff regarding inappropriate staff-inmate behavior and
disciplinary consequences for failure to report; (6) instruction
on supervising, observing, and interacting with opposite gender
inmates; and (7) instruction on the privacy interests women
retain while incarcerated.
C. Routine Inservice Training Subsequent to this initial
in-service training, the Director of ADOC, after consultation
with the Female Programs Administrator (see Section VII(A)(3)(e)
below) and the Administrator for Staff Development and Training
Programs, will determine the number of hours of mandatory in-service training covering the topics described in Section V(B) to be required of all management, corrections officers, and non-correctional staff with inmate contact.
D. Pre-employment Training ADOC will include at least
sixteen hours of pre-employment training covering the topics
described in Section V(B) above for all newly hired management
and corrections officers, and eight hours of pre-employment
training covering the same topics for non-correctional staff with
inmate contact. The parties disagree as to whether ADOC has in
the past provided sixteen hours of preemployment training
covering those topics.
VI. INMATE EDUCATION
A. Reception As part of inmates' orientation process,
ADOC will provide inmates with both written (see Section VI(B)
below) and oral information concerning at least the following
concepts: (1) identification of what constitutes inappropriate
staff-inmate behavior; (2) a statement that ADOC prohibits
inappropriate staff-inmate behavior; (3) a statement of the
consequences of participating in inappropriate staff-inmate
behavior; (4) a description of how to report inappropriate staff-inmate behavior, including when, how, and to whom it should be reported; (5) a statement on the consequences of reporting
misconduct as a victim and as a witness, including assurances of
confidentiality and non-retaliation, and that investigatory
detention differs in significant respects from punitive detention
(see Section VII(A)(3)(b)-(d) below); (6) information on the
rules regarding interacting with opposite gender staff; (7)
information concerning the privacy interests women retain while
incarcerated; and (8) the name and address of the Female Programs
Administrator to whom inmates may report inappropriate behavior.
ADOC will provide non-English speaking inmates with both
oral and written translations of at least the information set
forth in Section VI(A) above.
B. Inmate Handbook The information set forth in Section
VI(A) above shall be provided in the inmate handbook.
C. High Visibility Reminders ADOC will post in all inmate
living areas, and in other areas (such as work, recreation, and
dining) in which inmates spend significant time, signs that
remind readers of ADOC's prohibition of inappropriate staff-inmate behavior.
VII. FACILITATION AND ENCOURAGEMENT OF INMATE AND STAFF REPORTING
OF ALLEGATIONS OF INAPPROPRIATE STAFF-INMATE BEHAVIOR
A. Inmate Reporting ADOC will take all reasonable
measures to encourage inmates to report inappropriate staff-inmate behavior, and to reduce fear of reporting inappropriate staff-inmate behavior, including, but not limited to, the
following. The parties disagree as to whether ADOC has in the
past taken all reasonable measures to encourage inmate reporting
of inappropriate staff-inmate behavior.
1. Verbal reporting ADOC will continue its practice
of allowing inmates to orally report inappropriate staff-inmate
behavior, and will respond to such oral allegations as it would a
2. Grievances/Kites/Letters ADOC will continue to
encourage inmates who allege to have suffered from inappropriate
staff-inmate behavior to report such allegations through
grievances, kites or letters.
3. Minimization of Deterrents to Reporting
a. Limits on Investigative Detention Inmates
will continue to be confined for investigative detention a
maximum of thirty days, unless extension is authorized by the
Deputy Director of Prison Operations, for exigent circumstances.
b. Conditions of Investigative Detention ADOC
management will take all reasonable measures to make conditions
of investigative detention as similar to regular housing as
possible. ADOC will minimize the restrictions on the conditions
of investigative detentions, including, but not limited to,
allowance of property pursuant to policy, out-of-cell time, non-inmate visitation, mail and phone calls. The parties disagree as to whether ADOC has in the past taken all reasonable measures to
make conditions of investigative detention as similar as possible
to regular housing.
c. Confidentiality ADOC will take all
reasonable steps to ensure the confidentiality of inmates who
report inappropriate staff-inmate behavior, including, but not
limited to, warnings not to discuss investigations, and
disciplinary action if the confidentiality of an investigation is
compromised intentionally by an inmate.
d. Prohibition of Retaliation Against Inmates
ADOC will continue to prohibit retaliation by staff or inmates
against inmates who report inappropriate staff-inmate behavior by
maintaining its policy of investigating reports of retaliation and by continuing to allow inmates to present retaliation as a defense in disciplinary violation proceedings.
e. Female Programs Administrator ADOC will
appoint a Female Programs Administrator, who will be based at
Central Office. Inmates will be permitted to write the Female
Programs Administrator in confidence about allegations of
inappropriate staff-inmate behavior; such confidentiality,
however, will not preclude ADOC investigations of inmate
allegations. Information about the Female Programs Administrator
will be provided to inmates at orientation and in the inmate
handbook. The Female Programs Administrator will have
appropriate experience and training necessary to address
inappropriate staff-inmate behavior in women's prisons, including
but not limited to the training identified in Section VIII(A)
below. The Female Programs Administrator will conduct frequent
random interviews of inmates regarding, at a minimum,
inappropriate staff-inmate behavior. These interviews will be
documented and the interview notes preserved. The Female Program
Administrator will have the authority to request a criminal or
administrative investigation of any allegations of inappropriate
B. Staff Reporting ADOC will continue to take all
reasonable measures to encourage staff to report inappropriate
staff-inmate behavior, and to reduce fear of reporting
inappropriate staff-inmate behavior, including, but not limited
to the following:
1. Confidentiality ADOC will continue to ensure the
confidentiality of staff who report inappropriate staff-inmate
behavior, including, but not necessarily limited to, warnings not
to discuss investigations, and disciplinary action if the
confidentiality of an investigation is compromised intentionally
by an employee.
2. Prohibition of Retaliation Against Staff ADOC
will continue to prohibit retaliation by staff against staff who
report inappropriate staff-inmate behavior.
VIII. INVESTIGATION OF ALLEGATIONS OF INAPPROPRIATE STAFF-INMATE BEHAVIOR
A. Investigator Training ADOC investigators will receive
training specific to conducting inappropriate staff-inmate
behavior investigations in a prison setting. Investigators will
continue to have on-the-job investigative experience regarding
general investigations techniques.
B. Temporary Transfer of Employee ADOC will continue its
practice of removing staff accused of serious sexual misconduct
from all contact with female inmates pending the outcome of the
investigation. ADOC will revise its policies to reflect this
C. Timely Investigations Absent unusual circumstances,
ADOC will complete investigations of allegations of inappropriate
staff-inmate behavior within 30 days of receipt of the
allegation. The investigator must document in writing the
reasons why an investigation cannot be completed in 30 days, and
that document will be reviewed by ADOC investigative management.
The parties disagree as to whether in the past ADOC has
consistently completed investigations in thirty days.
D. Complete, Effective, And Unbiased Investigations
1. Interviewing Witnesses ADOC will interview all
potential witnesses in inappropriate staff-inmate behavior
investigations, and will actively seek out potential witnesses by
interviewing inmates who live or work with the alleged victim and
staff who work with the alleged suspect. Inmate witnesses will
be interviewed for equal lengths of time when that is necessary
to eliminate the perception that some inmates were more
cooperative with the authorities than others. The parties
disagree as to whether in the past ADOC has consistently
interviewed all potential witnesses.
2. Following Leads ADOC will interview all persons
named as possible witnesses, victims, or suspects, by other
witnesses, victims, or suspects in inappropriate staff-inmate
behavior investigations. The parties disagree as to whether in
the past ADOC has consistently followed all investigative leads.
3. Polygraphs ADOC will continue to routinely offer
inmates and staff the opportunity of polygraph examinations to
support their contentions.
4. Search For Past Conduct ADOC will ensure that
every inappropriate staff-inmate behavior investigation includes
a search for past investigations concerning inappropriate staff-inmate behavior, whether or not sustained, against the alleged perpetrator, and that investigators include previous
investigations or discipline related to inappropriate staff-inmate behavior in their investigation of current allegations. Gathering this information will be the final step in the investigative process before forwarding findings to the approving authority or prosecutor.
5. Continuation Of Investigations and Other Inquiries
Following an Employee's Resignation ADOC will continue its
practice of continuing criminal investigations of inappropriate
staff-inmate behavior even after an employee resigns. When an
employee resigns during the course of an administrative
investigation of inappropriate staff-inmate behavior, ADOC
wardens and deputy wardens will have the discretion to continue
an inquiry into whether there are sufficient administrative
concerns (e.g., an interest in determining the full scope of any
inappropriate conduct, or an interest in determining whether the
alleged inappropriate conduct has systemic implications that
should be considered by ADOC) that warrant a continued inquiry
into the subject matter of the investigation. ADOC wardens and
deputy wardens will have the discretion to discuss any
information obtained from administrative investigations in which
the staff member resigned in the Post-Incident Management Review
meetings described at IX(G) below.
E. Inference Regarding Staff Members Who Resign While
Under Investigation The resignation of a staff member while that
staff member is under investigation for inappropriate staff-inmate behavior shall be considered an admission that the staff member did in fact engage in the inappropriate behavior unless
there is credible evidence to the contrary, and shall prevent
that staff from being rehired by ADOC.
F. Mandatory Staff Participation In Investigations ADOC
will discipline (up to and including dismissal) staff who are
accused of sexual misconduct and who refuse to cooperate with an
G. Response to Allegations Arising In This Lawsuit ADOC
will continue or begin to investigate all allegations of sexual
misconduct and invasions to privacy set forth in the expert
reports and exhibits to expert reports in this case, or in
depositions in this case.
IX. PROACTIVE SEARCH FOR AND APPROACH TO INAPPROPRIATE STAFF-INMATE BEHAVIOR
A. Minimization of One on One Situations ADOC will
implement a new policy that requires male staff to notify their
supervisor when they will be alone in a secluded area with a
female inmate and require the supervisor to be responsible for
monitoring the situation. Existing policy will include language
to the effect that staff shall minimize the situation where a
female inmate and male staff are alone together. The following
exceptions apply to this provision: emergencies, medical care,
counseling, questioning during investigations, and reporting of
confidential information. This provision will be satisfied if
one staff is in the presence of two or more inmates.
B. Minimization of Access to Secluded Areas ADOC will
undertake an examination of its female facilities to determine
inmate and staff access to secluded areas conducive to
inappropriate staff-inmate behavior. ADOC will take all
reasonable measures to eliminate access to secluded areas that is
not necessary for the operation of those facilities.
C. Monitoring For Secluded Areas ADOC will increase the
monitoring of secluded areas that are necessary for female
facility operations by ensuring that supervisors conduct rounds
of secluded areas at routine intervals not to exceed one hour
D. Random Inmate Interviews By Female Programs
Administrator As discussed above, the Female Programs
Administrator will conduct random, periodic, confidential, and
private interviews with inmates and staff, regarding, at a
minimum, inappropriate staff-inmate behavior. These interviews
will be documented and interview notes preserved consistent with
the state's records retention schedule. Nothing in this
provision shall be interpreted to mean that the Female Programs
Administrator can not, in order to initiate or assist in an
investigation of inappropriate staff-inmate behavior, share with
ADOC investigators and management information obtained by the
Administrator in random inmate and staff interviews.
E. Creation of Inappropriate Staff-Inmate Behavior Files
ADOC will maintain its central data base storing information
concerning inappropriate staff-inmate behavior, consisting of
investigations, whether substantiated or not. The data base will
continue to be searchable by, at a minimum, inmate and staff
name, and by type of inappropriate staff-inmate behavior.
Investigators, management and personnel officers will have access
to this data base. The data base will be queried prior to
accepting staff transfers or re-hires.
F. Automatic Review Of Employees Who Are The Subject Of
Multiple Allegations Using the data base described in Section
IX(E) above, ADOC will create a tracking system of inappropriate
staff-inmate behavior allegations against staff that allows ADOC
to know when a staff person has been the subject of more than two
inappropriate staff-inmate behavior allegations within the past
five years. ADOC will conduct a quarterly search of the data
base. All staff who are shown in a quarterly review to have been
the subject of more than two inappropriate staff-inmate behavior
allegations within the past five years shall be the subject of a
management review during which appropriate action will be taken
regarding the employee, including, but not limited to, the
following options: a meeting with supervisors, a referral to an
employee assistance program, retraining, or reassignment to a
different facility. Quarterly reviews and all action taken
pursuant to this paragraph will be documented.
G. Post-Incident Management Review ADOC management will
conduct semi-annual meetings, which will include the Female
Programs Administrator, to discuss substantiated incidents of
inappropriate staff-inmate behavior and how they could have been
avoided. Significant information resulting from such review will
be considered for inclusion in ADOC training materials.
X. RESPONSE TO SUBSTANTIATED MISCONDUCT
A. Staff Discipline Staff who resign in lieu of
termination during an inappropriate staff-inmate behavior
investigation will not be eligible for rehire. The parties
disagree as to whether ADOC has consistently in the past made
such staff ineligible for rehire after two years. ADOC will
continue its policy that progressive discipline will not be
allowed in serious substantiated sexual misconduct cases. ADOC
will continue to investigate and take disciplinary action against
any staff member who had knowledge of substantiated inappropriate
staff-inmate behavior and failed to report it.
B. Inmate Psychological Services ADOC will offer
psychological services to any inmate involved or alleged to have
been involved in inappropriate staff-inmate behavior with staff,
to assist in recovering from the misconduct and to protect them
from future incidents of misconduct.
XI. INMATE PRIVACY WHILE DRESSING, SHOWERING, AND TOILETING
A. Showers and Dressing At Manzanita ADOC will, in its
sole discretion, at the ASPC-Tucson, Manzanita Unit, either (a)
install privacy screens in the toilet and shower areas, or (b)
schedule two daily fifteen-minute time periods for inmates to
shower and/or dress. During these designated time periods, ADOC
will make its best efforts to have only female staff monitoring
the shower and dormitory areas, absent exigent circumstances, so
that inmates who are concerned about showering and/or dressing
when male staff are present, may have the opportunity to shower
and/or dress under the supervision of female staff. Nothing in
this provision shall affect equal employment opportunity rights.
B. Knock And Announce Policies ADOC will emphasize
appropriate cross-gender supervision in pre-service and in-service training. Correctional officers will be trained that absent exigent circumstances and reasonable suspicion of
inappropriate behavior, male officers will, in ADOC's view, as a
courtesy, announce their presence into areas where inmates could
be in a state of undress.
XII. SPECIAL PROTECTIONS FOR JUVENILES AND PERSONS WITH MENTAL
ILLNESS OR MENTAL RETARDATION
ADOC will provide special protections for juvenile inmates
and inmates with mental illness or mental retardation, including but not limited to, the following: (a) ADOC will continue its current staffing policies regarding juvenile inmates and inmates
confined in the Flamenco Mental Health Unit; (b) special emphasis
on random inmate interviews by the Female Programs Administrator
of such inmates; (c) training for all staff regarding the
identification and particular vulnerability to inappropriate
staff-inmate behavior of such inmates; and (d) the Female
Programs Administrator will assess the feasibility of eliminating
situations in which such inmates can be alone with staff.
XIII. SCREENING OF INMATES REGARDING PAST HISTORIES OF
PHYSICAL OR SEXUAL ABUSE
ADOC will continue to have trained mental health
professionals conduct adequate screening of all current and new
inmates regarding pre-incarceration histories of physical and/or
sexual abuse, and will ensure that such inmates are provided
mental health services upon their request so that they may
minimize the likelihood that they will become victims of
inappropriate staff-inmate behavior.
XIV. QUALITY ASSURANCE PROGRAM
ADOC will establish a quality assurance program to assess
regularly (a) the background investigation process to screen ADOC
and non-ADOC employees with inmate contact; (b) inmate
understanding of the rules and regulations governing
inappropriate staff-inmate behavior, how to report misconduct and
privacy violations, and the consequences of reporting; and (c)
the competency of inappropriate staff-inmate behavior
investigations, including compliance with policy. ADOC will
continue to review on a quarterly basis, its pre-service and in-service training programs.
XV. MONITORING OF SETTLEMENT AGREEMENT, TIME FRAME FOR
SUBSTANTIAL COMPLIANCE, AND TERMINATION OF THE LITIGATION
A. Conditional Dismissal Under Rule 41(a) Upon execution
of this Settlement Agreement, the parties will jointly move the
Court for entry of an Order conditionally dismissing this action,
pursuant to Fed. R. Civ. P. 41(a)(2), conditional upon Defendants
achieving substantial compliance with its terms, and will attach
this Settlement Agreement to such motion. The motion will
request that the case be placed on the Court's inactive docket,
though the Court shall retain jurisdiction over the case until a
B. Reactivation Of Litigation If Defendants fail to
achieve substantial compliance with the terms of this Settlement
Agreement within the time frames and under the conditions listed
below, the United States may file a motion to restore this case
to the Court's active docket for purposes of litigating the
allegations in the Complaint. However, the United States
reserves the right to file a motion to restore this case to the
Court's active docket for purposes of litigating the allegations
in the Complaint at any time if it believes that defendants are
not making a good faith effort to substantially comply with the
Settlement Agreement. Plaintiff shall give defense counsel 14
calendar day written notice before the filing of such motion.
C. Monitoring And Time Frames For Compliance DOJ and a
jointly agreed on expert, who must be selected and contracted
with before this Settlement Agreement is executed, will have
reasonable access to female inmates and staff, ADOC documents,
information relating to implementation of this Settlement
Agreement, and to allegations of inappropriate staff-inmate
behavior for the purpose of monitoring Defendants' implementation
of the Settlement Agreement. The parties will equally fund the
joint expert's activities.
No more than one DOJ attorney, one ADOC attorney, and the
joint expert will conduct initial on-site compliance monitoring
tours of ADOC female facilities approximately three months after
execution of this Settlement Agreement. Neither DOJ nor the
joint expert shall add provisions or expand the scope of this
Settlement Agreement in any manner. Within 30 days of the end of
the initial compliance tour, the joint expert shall inform the
parties in writing of his or her opinion of Defendants'
compliance with each of the terms of this Settlement Agreement,
including identifying any deficiencies in compliance.
No more than one DOJ attorney, one ADOC attorney, and the
joint expert will conduct a second on-site compliance monitoring
tour of ADOC female facilities approximately six months after
execution of this Settlement Agreement. Within 30 days of the
end of the second compliance tour, the joint expert shall inform
the parties in writing of his or her opinion of Defendants'
compliance with the terms of this Settlement Agreement, including
identifying any deficiencies in compliance. If the joint expert
determines that Defendants have substantially complied with each
of the terms of the Settlement Agreement, the parties will file a
stipulation to dismiss containing the following language: "The
United States agrees that dismissal of this action is
appropriate. There is no pattern or practice of Defendants
violating female inmates' constitutional rights to be free from
sexually inappropriate behavior and unnecessary invasions of
privacy. The Arizona Department of Corrections remains committed
to eliminating inappropriate staff-inmate behavior."
If necessary, no more than one DOJ attorney, one ADOC
attorney, and the joint expert shall conduct a third compliance
tour approximately nine months after execution of this Settlement
Agreement. Within 30 days of the end of the third compliance tour, the joint expert shall inform the parties in writing of his or her opinion of Defendants' compliance with each of the terms
of this Settlement Agreement, including whether any deficiencies
in compliance identified by the joint expert after the second
compliance tour have been remedied. If the joint expert
determines that Defendants have not substantially complied with
the Settlement Agreement, DOJ may file a motion to restore the
case to the Court's active docket for purposes of litigating the
allegations in the Complaint, and Defendants agree not to contest
such motion. Neither DOJ nor the Defendants shall file a motion
or suit for specific performance of the Settlement Agreement.
However, if the joint expert determines Defendants have
substantially complied with the Settlement Agreement, consistent
with the time lines set forth above, the parties will file a
stipulation to dismiss containing the above-quoted language.
D. Substantial Compliance "Substantial compliance" with
the terms of the Settlement Agreement will fully satisfy the
Settlement Agreement. Isolated and unintentional incidents will
not constitute noncompliance.
In the event this action goes to trial, nothing contained in
this Settlement Agreement will be introduced as evidence.
FOR THE PLAINTIFF:
JOSE DE JESUS RIVERA BILL LANN LEE
United States Attorney Acting Assistant
District of Arizona Attorney General
Civil Rights Division
STEVEN H. ROSENBAUM
Special Litigation Section
BOB BARTELS MELLIE NELSON
Special Assistant MARK MASLING
United States Attorney SHELLEY JACKSON
College of Law CHRISTY LOPEZ
Arizona State University Special Litigation Section
Tempe, Arizona 85287 Civil Rights Division
(602) 965-7053 U.S. Department of Justice
P.O. Box 66400
Washington, D.C. 20035-6400
FOR THE DEFENDANTS:
WILLIAM C. WILDER JAMES R. MORROW
Assistant Attorneys General Arizona Attorney
1275 West Washington
Phoenix, Arizona 85007 (602) 542-7632