KIRTAN KHALSA, Magistrate Judge.
THIS MATTER is before the Court on the following motions: (1) the Parties' Joint Motion for Final Approval of Revised Settlement Agreement (Doc. 3184), filed January 30, 2020; (2) the parties' Joint Motion and Memorandum of Law for Approval of a Modification to Paragraph 12 of the Revised Settlement Agreement (Doc. 3186), filed January 31, 2020; and, (3) the parties' Joint Motion for Final Approval of the Second Revised Settlement Agreement (Doc. 3200), filed February 10, 2020.
1. The Court has jurisdiction over the parties and the subject matter in this case.
2. This is a class action originally brought in 1977 alleging violations of the federal constitutional rights of certain inmates in the State of New Mexico's custody. By the parties' agreement, the Court entered an order on July 15, 1980, noting that the Plaintiff class had been certified under Federal Rule of Civil Procedure 23(b)(1) and (2), and redefining the class as: all those inmates who are now, or in the future may be, incarcerated in the Penitentiary of New Mexico at Santa Fe or at any maximum, close, or medium security facility open for operation by the State of New Mexico after June 12, 1980.
(Doc. 101 at 1; Doc. 405 at 1.)
3. After extensive litigation, on June 10, 1991, the parties entered into a settlement agreement resolving all then-pending motions. (Doc. 2851-3.) The Court issued an order ("1991 Consent Decree") adopting the parties' agreement on September 20, 1991. (Doc. 1748.) By July 16, 1999, all of the substantive requirements in the 1991 Consent Decree had been satisfied and vacated, except for certain restrictions on overcrowding. (Doc. 2851-1 at 3-4.) According to the decree, these overcrowding restrictions were to remain in place in perpetuity. (Doc. 2851-3 at 7, 19.)
4. The litigation was dormant from late 1999 to late 2015, when a class member revived it by filing pro se motions for an emergency injunction and a contempt order. (Docs. 2692, 2694.) Class counsel resumed active representation of the Plaintiff class, and on August 5, 2016, with the assistance of then-United States Chief Magistrate Judge Karen B. Molzen, the parties reached a settlement of the then pending disputes. (Doc. 2764.) The Court approved this settlement on August 31, 2016. (Doc. 2769.)
5. Almost a year later, on July 5, 2017, class counsel filed Plaintiffs' Motion for Declaratory, Injunctive, and Remedial Relief regarding Violations of the Court's Stipulated Orders, alleging that Defendants were violating the 1991 Consent Decree and the parties' 2016 settlement agreement. (Doc. 2837.) That motion remains pending, as do two additional motions for declaratory, injunctive, and remedial relief that class counsel later filed. (Docs. 2928, 2929.) The Plaintiff class has alleged ongoing violations of the Eighth and Fourteenth Amendments to the United States Constitution, including unreasonable risks to class members' health and safety due to overcrowding, violence, misclassification, disproportionate discipline, understaffing, environmental conditions including vermin and constitutionally inadequate bathroom facilities and plumbing, constitutionally inadequate healthcare, and failure to timely release inmates at prison facilities operated by the New Mexico Corrections Department ("NMCD"). (Doc. 3009 at 4-10.)
6. Defendants opposed Plaintiffs' motions. (Docs. 2851, 2976, 2977.) They also filed motions to dismiss seeking termination of all prospective relief and an automatic stay on December 5, 2018. (Docs. 3003, 3004.) However, Defendants subsequently withdrew these motions without prejudice to allow the parties to pursue settlement negotiations. (Doc. 3023.) The parties have conducted extensive investigation and discovery regarding the claims and defenses raised in their respective motions.
7. The parties participated in a settlement conference with United States Magistrate Judge Steven C. Yarbrough on February 25, 2019, March 29, 2019, and April 30, 2019. (Docs. 3029, 3034, 3040.) At a status conference on May 3, 2019, counsel advised the Court that the parties had reached a settlement in principle. (Doc. 3044.)
8. On June 3, 2019, the parties filed a Joint Motion for Preliminary Approval of Settlement Agreement. (Doc. 3047.) In the motion, the parties sought the Court's preliminary approval of a settlement agreement signed on May 14, 2019. (Id. at 1; see Doc. 3047-1.) The Court held a hearing on the motion on June 11, 2019, after which the parties conferred and clarified language in the agreement. (Docs. 3055, 3067.)
9. The parties incorporated their clarifications into a Revised Settlement Agreement, which they executed on August 14, 2019. (Doc. 3067-1.) The parties then filed a second Joint Motion for Preliminary Approval of Settlement Agreement on August 21, 2019. (Doc. 3067.) In their August 21, 2019 motion, the parties sought the Court's preliminary approval of the Revised Settlement Agreement and represented that the revised agreement was "the operative version of the Settlement Agreement and . . . supersedes the May 14, 2019 version of the Agreement."
10. On August 28, 2019, the Court held a hearing on the parties' August 21, 2019 motion. (Docs. 3070, 3073.) At the hearing, counsel and NMCD Cabinet Secretary Alisha Tafoya Lucero made presentations and responded to the Court's questions regarding the parties' agreement. (Id.)
11. The Court entered an Order Granting Preliminary Approval of Class Action Settlement Agreement, and Approving and Directing the Issuance of Notice to Plaintiff Class Members ("Order Granting Preliminary Approval") on September 5, 2019. (Doc. 3072.) In its Order Granting Preliminary Approval, the Court preliminarily held that the Revised Settlement Agreement was fair, adequate, reasonable, and likely to meet the requirements of Federal Rule of Civil Procedure 23(e) and the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626. (Id. at 8.)
12. The Court also approved the Notice to Plaintiff Class Members ("Notice") attached to the Order Granting Preliminary Approval and found that it satisfied the requirements of Rule 23 and due process. (Id.; see Doc. 3072-2.) The Court directed Defendants to provide the Notice and Revised Settlement Agreement to class members by posting them in English and Spanish in the law library, general library, dining facilities, recreational facilities, and on a bulletin board in every unit in every NMCD facility in New Mexico, from September 24, 2019 through December 23, 2019. (Doc. 3072 at 8-9.) The Court further directed Defendants to provide the Notice and Revised Settlement Agreement to each inmate housed in any segregated housing unit between September 24, 2019 and December 23, 2019, in English or Spanish at the inmate's election. (Id. at 9.)
13. Defendants provided notice of the proposed settlement to the Plaintiff class as the Court directed, including at covered NMCD facilities operated by private contractors. (Docs. 3195, 3198.) Defendants monitored whether the Notice and Revised Settlement Agreement remained posted as prescribed during the objection period and, when inmates at the Guadalupe County Correctional Facility ("GCCF") removed some posted copies, replaced them reasonably promptly. (Id.) In fact, Defendants went beyond the Court's requirements to ensure that all class members at GCCF received notice of the proposed settlement, posting extra copies of the Notice and Revised Settlement Agreement in the required locations and placing these documents on an "inmate television systems information channel." (Id.)
14. In its Order Granting Preliminary Approval, the Court directed any class member who wished to object to the Revised Settlement Agreement to file his or her objections in writing by December 23, 2019 and directed Defendants to allow class members to submit timely objections free of charge. (Doc. 3072 at 9.)
15. Between September 12, 2019 and January 27, 2020, approximately 152 members of the Plaintiff class filed objections to the Revised Settlement Agreement.
16. The Court has also carefully reviewed and considered the objections that seven class members sent to class counsel between September 24, 2019 and December 23, 2019 and later directed counsel to file. (Doc. 3199.) Counsel filed these objections on February 10, 2020, but the Court deems them timely because they were sent to class counsel within the prescribed objection period. (See id.)
17. The objections to the proposed settlement take issue with: (a) the loss of the provision providing that certain overcrowding restrictions in the 1991 Consent Decree would remain in place in perpetuity; (b) the reduction of the required dimensions for dormitories and multiple occupancy cells from 60 to 50 square feet per inmate; (c) the reduction in total good time awarded for completion of the Residential Drug Abuse Program ("RDAP"); (d) the exclusion of some class members from the award of good time as remedial relief and the adequacy of this relief; (e) the proposed population reduction at the Otero County Prison Facility ("OCPF"), which objectors contend will not alleviate overcrowding at that facility; and, (f) class counsel's alleged collusion with Defendants' counsel in reaching the proposed settlement. (Doc. 3174 at 12.) In addition, there were several miscellaneous objections, including complaints about: the absence of photographic evidence of class members' living and sleeping space; lack of natural light; unregulated temperatures in the pods; absence of hooks for uniforms in cells; claimed medical injuries resulting from overcrowding; phone-to-inmate ratio; quality of the food; family visitation; availability and implementation of educational programs; mail services; absence of monetary compensation to class members; access to medical services and medical staff; staff behavior towards inmates; potential reduction of staff physical fitness standards; violations of the American with Disabilities Act for geriatric inmates; exclusion of serious violent offenders from eligibility for parole reduction recommendations; and, excessive wait times for the parole of sex offenders.
18. The parties filed a Joint Memorandum in Support of Final Court Approval of the Revised Settlement Agreement (Doc. 3174) on January 22, 2020, and the Parties' Joint Motion for Final Approval of Revised Settlement Agreement (Doc. 3184) on January 30, 2020.
19. On January 31, 2020, the parties filed a Joint Motion and Memorandum of Law for Approval of a Modification to Paragraph 12 of the Revised Settlement Agreement. (Doc. 3186.) In this motion the parties indicated that, after the Court entered its Order Granting Preliminary Approval, they agreed to modify Paragraph 12 of the Revised Settlement Agreement to state:
(Id. at 2; see also Doc. 3200-2 at 9.) According to the parties, after the Court preliminarily approved the Revised Settlement Agreement, they learned that an inmate's parole hearing is not scheduled until after NMCD submits the Parole Board Docket Form and Parole Plan to the Parole Board. (Doc. 3186 at 2-4.) As such, the parties realized, it would be meaningless to require NMCD to submit the Parole Board Docket Form and Parole Plan 30 days before the inmate's hearing date. (Id.) The change to which the parties agreed remedies this problem by using the inmate's projected release date, rather than a non-existent hearing date, to determine when NMCD must submit the Parole Board Docket Form and Parole Plan to the Parole Board. (Id.) The purpose of the change is to realize the parties' intent to ensure that parole planning for class members begins well in advance of their projected release dates, thereby reducing the number of class members serving in-house parole. (Id.)
20. Rule 23 does not specifically address whether a new notice to class members and a new objection period are required when parties agree to modify a class action settlement agreement. See generally Fed. R. Civ. P. 23(e). "Material alterations to a class settlement generally require a new round of notice to the class and a new Rule 23(e) hearing." Pearson v. Target Corp., 893 F.3d 980, 986 (7th Cir. 2018). However, courts have generally found that a second notice and objection period is not required if the agreed-upon modifications merely expand the rights of the class. For example, in In re Integra Realty Resources, Inc., 262 F.3d 1089 (10th Cir. 2001), the Tenth Circuit agreed that a modification allowing class members to opt out of a class action settlement did not require a second notice to class members, stating:
Id. at 1111. Similarly, in In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, 763 F. App'x 237 (3d Cir. 2019), the Third Circuit affirmed the district court's ruling that "supplemental, classwide notice of an amendment to a settlement agreement is required only where the amendment has a material adverse effect on the rights of class members." Id. at 241-42 (quotation marks omitted); see also, e.g., In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 330 (N.D. Cal. 2018) ("[W]hen the modification makes the settlement more valuable to the class, courts have routinely concluded that notice is unnecessary.") (citing cases); Keepseagle v. Vilsack, 102 F.Supp.3d 306, 313 (D.D.C. 2015) ("[A]n amendment [to a class action settlement agreement] requires supplemental notice only when it would have a material adverse effect on the rights of class members.") (quotation marks omitted); Harris v. Graddick, 615 F.Supp. 239, 244 (M.D. Ala.1985) ("Under these limited circumstances where the amendment is narrow and it is clearly apparent that the interests of the classes are not substantially impaired, the court is of the opinion that the notice already given is adequate and that additional notice is not required pursuant to Rule 23(e).").
21. The Court has carefully reviewed the parties' Joint Motion and Memorandum of Law for Approval of a Modification to Paragraph 12 of the Revised Settlement Agreement, including the attached Affidavit of Hope Salazar (Doc. 3186), as well as the Declaration of Cisco McSorley[,] Executive Director of the New Mexico Parole Board. (Doc. 3187.) The Court, having considered these documents and the parties' responses to the Court's inquiries at a hearing held on February 3, 2020, (Doc. 3195), and being otherwise fully advised in the premises, finds that the limited modification to Paragraph 12 to which the parties have agreed merely expands the rights of the members of the Plaintiff class and in no way impairs their interests. In particular, the Court is persuaded that the earlier parole planning the modification is intended to secure will not delay class members' timely release upon completion of their sentences and will in fact provide more time for the parties to address problems that could otherwise prevent class members from being paroled on schedule. The Court therefore finds that the modification to Paragraph 12 does not necessitate a new notice and objection period before the Court may finally approve the parties' proposed settlement.
22. On February 3, 2020, four attorneys for the Plaintiff class filed declarations regarding their work on this case.
(Doc. 3190 at 4; Doc. 3192 at 3.) In this manner, counsel identified the problems class members were seeking to remedy and "used this information to formulate the settlement demands" they made. (Doc. 3190 at 4-5; Doc. 3192 at 3-4.) "The relief [class counsel] obtained was directly informed by what [class members] had told [them]." (Doc. 3190 at 5; Doc. 3192 at 5; Doc. 3194 at 3-4.) Class counsel also received letters from and spoke with "numerous class members" regarding the Revised Settlement Agreement during the objection period. (Doc. 3190 at 6; Doc. 3192 at 5-6.) Many class members expressed their approval of the proposed settlement, and "the sentiment of the hundreds of class members with whom [class counsel] met" at the OCPF and Southern New Mexico Correctional Facility ("SNMCF") "was overwhelmingly favorable to the [Revised Settlement Agreement]."
23. The pleadings filed by class members Alison Comstock and Ronaele Sanchez corroborate counsel's declarations, stating that: (a) class members "collab[o]rated together to state [their] disagree[ment] with the way [they] were housed"; (b) the litigation was a "team effort"; and, (c) Ms. Comstock and Ms. Sanchez "completely agree" with the terms of the proposed settlement. (Docs. 3109, 3110.) Also, during a tour of Springer Correctional Center ("SCC") with counsel for both sides in April 2018, the undersigned observed some of class counsel's communications with numerous class members, the substance of which clearly evinced ongoing and extensive contacts. (See Doc. 2923.)
24. The Court held a hearing on the parties' Joint Memorandum in Support of Final Court Approval of the Revised Settlement Agreement (Doc. 3174) and Parties' Joint Motion for Final Approval of Revised Settlement Agreement (Doc. 3184) on February 3, 2020. (Doc. 3195.) At this hearing, counsel and Secretary Tafoya Lucero made presentations and responded to the Court's questions regarding the proposed settlement.
25. At the hearing, the parties agreed to modify the Revised Settlement Agreement in two respects. First, the parties agreed that Paragraph 1(d)(ii)(3) should state:
(Doc. 3200-2 at 6.) The purpose of this modification is not to change the meaning of Paragraph 1(d)(ii)(3), but rather to eliminate an unintended ambiguity to which some class members objected. (See, e.g., Doc. 3129 at 4-5; Doc. 3131 at 4-5.) On its face, this minor modification merely expands the rights of the Plaintiff class and in no way impairs its interests. The Court therefore finds that the modification to Paragraph 1(d)(ii)(3) does not necessitate a new notice and objection period before the Court may finally approve the proposed settlement. In re Integra Realty Res., Inc., 262 F.3d at 1111; In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prods. Liab. Litig., 763 F. App'x at 241-42; In re Anthem, Inc. Data Breach Litig., 327 F.R.D. at 330; Keepseagle, 102 F. Supp. 3d at 313; Harris, 615 F. Supp. at 244.
26. Second, the parties agreed that, in addition to eligible inmates at Northwest New Mexico Correctional Facility ("NWNMCF"), SCC, and Western New Mexico Correctional Facility ("WNMCF"), eligible inmates at OCPF should receive the remedial relief provided for in Paragraph 17 of the parties' agreement.
(Id.) Many OCPF inmates objected to the Revised Settlement Agreement because it excluded them from receiving this remedial relief. (See, e.g., Docs. 3199-1 to 3199-3.) The parties' agreement to modify Paragraph 17 addresses these objectors' concerns. The modification confers a benefit that the proposed settlement previously lacked, and as such operates solely to expand the rights of the Plaintiff class. The Court therefore finds that the modification to Paragraph 17 does not necessitate a new notice and objection period before the Court may finally approve the proposed settlement. In re Integra Realty Res., Inc., 262 F.3d at 1111; In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prods. Liab. Litig., 763 F. App'x at 241-42; In re Anthem, Inc. Data Breach Litig., 327 F.R.D. at 330; Keepseagle, 102 F. Supp. 3d at 313; Harris, 615 F. Supp. at 244.
27. At the February 3, 2020 hearing, the Court took the Parties' Joint Motion for Final Approval of Revised Settlement Agreement (Doc. 3184) and Joint Motion and Memorandum of Law for Approval of a Modification to Paragraph 12 of the Revised Settlement Agreement (Doc. 3186) under advisement pending the filing of a superseding joint motion requesting final approval of the Revised Settlement Agreement with the agreed-upon modifications to Paragraphs 1(d)(ii)(3), 12, and 17.
28. The parties filed their Joint Motion for Final Approval of the Second Revised Settlement Agreement on February 10, 2020. (Doc. 3200.) In this motion, the parties jointly ask the Court to finally approve the parties' Second Revised Settlement Agreement, which incorporates the modifications to Paragraphs 1(d)(ii)(3), 12, and 17 described above.
29. The Court finds that the Second Revised Settlement Agreement should be finally approved under the standards set forth in Rule 23(e) and the PLRA, and makes the following findings in this regard:
30. The Court has scrupulously considered all of the objections to the proposed settlement filed in this case and finds that none of them are sufficient to undermine the settlement's fairness, adequacy, and reasonableness. The Court has already addressed: (a) the loss of the provision providing that certain overcrowding restrictions in the 1991 Consent Decree would remain in place in perpetuity; (b) the reduction of the required dimensions for dormitories and multiple occupancy cells from 60 to 50 square feet per inmate; and, (c) the reduction in total good time awarded for completion of the RDAP. For the reasons discussed above, these terms do not vitiate the fairness, reasonableness, or adequacy of the proposed settlement. The bulk of the objections regarding the adequacy of the proposed settlement's remedial relief concern the exclusion of class members housed at OCPF from being eligible to receive a remedial good time award. However, as modified in the Second Revised Settlement Agreement, Paragraph 17 strikes a proper balance between preserving public safety and providing reasonable remedial relief. The proposed settlement is a compromise, as are all settlements. The relief class counsel successfully negotiated is fully adequate to protect the legitimate interests of class members and inures to the benefit of the greatest number of class members impacted by the unconstitutional conditions at issue without compromising public safety or imposing impracticable or impossible burdens on NMCD. And, the Court specifically finds that class counsel in no way colluded with Defendants or defense counsel in reaching the proposed settlement and that challenges to the adequacy of their representation are entirely without merit. None of the objections warrant disapproval of the proposed settlement and the Court will therefore overrule them.
31. The Court has determined that it is in the parties' best interests and furthers the ends of justice for this Court to approve the Second Revised Settlement Agreement. For these reasons, IT IS HEREBY ORDERED as follows:
A. The Court APPROVES the Second Revised Settlement Agreement (Doc. 3200-1) as fair, adequate, reasonable, and meeting all of the requirements of Rule 23(e) and the PLRA;
B. The objections to the proposed settlement filed by members of the Plaintiff class are not well taken and are hereby OVERRULED;
C. The Second Revised Settlement Agreement is ADOPTED as an Order of this Court and SUPERSEDES all consent decrees previously entered in this case, (see Doc. 3200-1 at 14 ¶ 29);
D. The parties' Joint Motion for Final Approval of the Second Revised Settlement Agreement (Doc. 3200) is GRANTED;
E. The Parties' Joint Motion for Final Approval of Revised Settlement Agreement (Doc. 3184) and Joint Motion and Memorandum of Law for Approval of a Modification to Paragraph 12 of the Revised Settlement Agreement (Doc. 3186) are DENIED AS MOOT;
F. In light of the fact that the Second Revised Settlement Agreement "constitutes the entire set of obligations and duties necessary for Defendants' full release from this litigation and all attendant Court orders in both the Duran and Klatt lawsuits," (Doc. 3200-1 at 14 ¶ 29), the following motions are also DENIED AS MOOT: (1) Plaintiffs' Motion for Declaratory, Injunctive, and Remedial Relief Regarding Violations of the Court's Stipulated Orders (Doc. 2837); (2) Plaintiffs' Motion for Declaratory, Injunctive and Remedial Relief at Northwestern New Mexico Correctional Facility (Doc. 2928); and, (3) Plaintiffs' Motion for Declaratory, Injunctive, and Remedial Relief Regarding Violations of the 1991 Settlement Agreement at Western New Mexico Correctional Facility (Doc. 2929);
G. Counsel are to confer with one another regarding the most expeditious and effective way to provide objectors with the Second Revised Settlement Agreement and this Order.
H. Counsel are to confer with one another regarding the most expeditious and effective way to provide all other class members with the Second Revised Settlement Agreement.
IT IS SO ORDERED.
(Doc. 3200-2 at 1.) These changes simply reflect the most recent procedural history of the proposed settlement and do not alter class members' rights in any way. As such, they do not necessitate a new notice and objection period.
