. •..!..1

IN THE L"NITED STATES DISTRICT COURT'.'

. ·1. •

.'

cb' " '"
FOR THE DISTRICT OF ~EW MEXICO t'1~~ \ 0 PM 4: 32

OO

AMBER RODRIGUEZ, on her own behalf and on behalf of a class of similarly situated persons,
Plaintiff, vs.

r-' ,-",; I' !\'.1.~__._ - ' .:"

··.c_, ~ ··.·:.·••.
-

..,....' .....

DOKA ANA COUNTY BOARD OF CO\1MISSIOt\ERS; Dona Ana County Juvenile Detention Center administrator CHRISTOPHER BARELA. in his individual and otlicial capacities; fornler Dona Ana County Juvenile Detention Center administrator DA VID WOOLEY, in his individual and ofticial capacitics; former Dona Ana County Juvenile Dctention Center administrator ALFONSO SOLIZ, in his individual and otlieial capacities, and fornler Dona Ana County Juvenile Detention Center acting administrator CHERYL ROACH. in her individual and oflicial capacities,

JURY TRIAL REQUESTED
JUOITH C. HERRERA
Robert H. Scott

Defendants.

CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL A~D CO~STITt;TIONAL RIGHTS A:-;D FOR DECLARATORY AND INJU:-;CTlYE RELIEF

Plainti ff Amber Rodriguez, by and through below·signed counsel, bring this Class Action

Complaint lor Damages for Violations of Civil and Constitutional Rights and for Declaratory and

Injunctive Relicfagainst Defendants Dona Ana County Board of Commissioners, Dona Ana

County Juvenile Detention Center (hereinafter "DACJDC") administrator Christopher Barela,

fonner DACJDC administrators David Wooley and Alfonso Soliz, and former acting administrator

Cheryl Roach (hereinafter "Defendants"). Plaintiff alleges against Defendants upon knowledge as

to hersc1fand all matters ofpuhlie record, and upon information and belief as to all other matters,

\

as follows: I.
JURlSDlCTlO=,/ AND VENUE 1. This Court has jurisdiction ovcr this action pursuant to 28 U.S.C'. *~ 1331 and 1343 (a)(3) and (4). The Court has jurisdiction over the state law claims pursuant to 28 LJ .S.c. ~ 1367. 2. Venue is proper in this Court pursuant to 28 V.S.c. § 1391(b).
II. PARTIES 3. Plaintiff Amber Rodriguez ("Plaintifr') is a residcnt of Las Cmces. New Mexico. Rodriguez brings this action on her own behalf and on behalf of a class of similarly situated persons. 4. Dcfendant Doiia Ana County Board of Commissioners ("Dona Ana County") is a
* political subdivision of the Statc ofl\:ew '\1exico. Pursuant to 4-46-1 ]\jMSA 1978. all suits or
procecdings against a county arc to he brought in the namc of the board of county commissioncrs of that county. At all times material hereto. Dona Ana County was a govcmmcntal entity and local puhlic body as those terms are defined in the ]\jew Mexico Tort Claims Act. §§ 41-4-3(8) and (C) NMSA 1978. as amcnded. At all times material hereto. Dona Ana County wa~ the employer and supervisor of the individually named Defendants. Pursuant to §§ 4-44-19, 4-62-1. 7-20E-19. 720E-21. 33-3-3 through 8. and 33-3-13 NMSA 1978. Dona Ana County had a statutory obligation to provide for the confinement of prisoners incarcerated under the county·sjurisdiction. Dona Ana County likewis~ had an obligation under these statutes to appropriate funds and otherwise provide the necessary funding to maintain and operate a facility for the incarceration of prisoners under the jurisdiction of the county.
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5. Defendant Christopher Barela ("Barcia"). upon information and belief, is now and at all times material hercto has been a resident ofDoiia Ana County. New Mexico. Since approximately December I L 2005. Barela has been the DACJDC administrator. having been duly appointed to the position by Dona Ana County. Between Febmary II. 2004, and August 23. 2004. and between August 23. 2005. and December 11,2005. Barela was one of two acting DACJDC administrators, having been duly appointed by Dona Ana County. In addition, at all times matcrial hereto, Barela was a law enforcement officer and public employee as those temlS are defined in the I\"ew Mexico Tort Claims Act, §§ 41-4-3(0) and (F) NMSA 1978. as amendcd, and was acting within the scope of his duties as well as under color of law. He is sued both personally and in his oflicial capacity. The allegations hercin which pertain to Barela relate to the period during which he was an acting or permanent DACJDC administrator.
6. Defendant David WooIcy ("Woolcy"), upon infomlation and belief. is now and at all times material hereto has been a resident of Dona Ana County. New Mexico. From August 23. 2004. to August 22, 2005. Wooley was the DACJDC administrator, having been duly appointed to the position by Dona Ana County. During the period Wooley was DACJDC administrator. he was a law enforcement officer and public. employee as those tcrms are defined in the New Mexico Tort
** Claims Act, 41-4-3(0) and (F) NMSA 1978, as amended. and was acting within the scope of
his duties as well as under color of law. He is sued both personally and in his official capacity. The allegations herein which pertain to Wooley relate to the period during which he was DACJDC administrator.
7. Defendant Alfonso Soliz ("Soliz"), upon infomlation and belief. is now and at all times material hereto has been a resident of Dona Ana County, ~ew \1cxico. Between 2{JOO and
3

February 10. 2004. Soliz was the DACJDC administrator, having been duly appointed to the position hy Dona Ana County. During the period Soliz was DAC.lDC administrator. he was a law enforcement oflicer and public employee as those terms are defined in the New Mexico Tort
** Claims Act, 41-4-3(D) and (F) NMSA 1978. as amended. and was acting within the scope of
his duties as well as under color oflaw. He is sued both personally and in his official capacity. The allegations herein which pertain to Soliz rclate to the period during which he was DAC.lDC. administrator.
8. Defendant Cheryl Roaeh ("RoaCh"), upon information and helief. is now and at all times material hereto has been a resident of DOi'ia Ana County. New Mexico. Between Fehruary 11.2004, and August 23. 2004, and between August 23. 2005 and December 11.2005. Roach was one of two acting DACJDC administrators. having been duly appointed by Dona Ana County. In addition. at all times material hereto, Roach was a law enforcement officer and public employee as
those ten11S are defined in the New Mexico Tort Claims Act. SS 41-4-3(D) and (F) NMSA 1978, as
amended. and was acting within the scope ofh~r duties as well as under color oflaw. She is sued hath personally and in her official capacity. The allegations herein which pertain to Roach rclatc to the period during which she was an acting DACJDC administrator.
9. Defendants Dona Ana County, Barela. Wooley. Soliz and Roach were responsible (or the screening, hiring. training, monitoring, supervision and disciplining of subordinate employees ofDACJDC, and were the authorities empowering DACJDC employees to incarcerate prisllTIcrs under the jurisdiction of Dona Ana County. Defendants Dona Ana County, Barela, Wooley. Soliz and Roach were directly responsible for the policy-making activities and the supervision of subordinate oflicers of DACJOe.
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10. Defendants Dona Ana County, Barcia, Wooley, Soliz and Roach, through their officials, agents, servants, and employees, were involved in and rcsponsible for all the acts hereinafter alleged. At all times material hereto, Defendants Dona Ana County, Barela, Wooley, Soliz and Roach, individually and/or acting through thcir agents, officers and employees, acted in concert with one another and pursuant to a common plan and objcctive, and each ofthc Defendants is responsible for the acts and omissions of the other Defendants, and their agents, officcrs and employees, as co-conspirators, under the doctrine of rcspondclIt superior, and under other doctrines of vicarious liability.
III. CLAIMS OF THE NAMED PLAINTIFF II. Paragraphs I through 10 above are incorporated herein hy reference as if fully sct forth in this paragraph. 12. Plaintiffis 19 years old. She lives in Las Cruccs, New Mexico. At the time of this incident, Plaintiff was 17 years old and attended Hatch Valley High School. Prior to July 28,2004, she had never been arrested in her life. 13. On July 28, 2004, Plaintiff was charged with transporting illegal aliens within the United States. She was taken to the DACJDC to he booked. Plaintiff was taken to a room and ordered to disrobe. She asked the ot1icer if that meant all her clothes. The officer replied that she had to take evcrything off. Plaintiff then removcd all her clothing as instmcted, leaving hcr completely naked in front of the guard. 14. While Plaintiff was naked, the officer visually examined her and ordered her to squat and cough. She complied. Nothing was found. 15. Defendants and their employees, agents and representatives had no valid reason for
5

conducting a strip search of Plaintiff. Nothing ill Plaintiffs history, nor the circumstances of her arrest. gave Defendants reasonable suspicion that a strip search of Plaintiff would result in the discovery of contraband or weapons. Rather. the strip search of Plainti ff was undertaken pursuant to a blanket and indiscriminate policy of strip searching detainees processed at the DACJDC, in violation of well-settled constitutional law and standards of correctional practice.
16. Plaintiff was shocked, repulsed. humiliated. ashamed and distraught at hcing subjectcd to this dcgrading and dehumanizing invasion of her privacy.
IV. CLASS ACTION ALLEGATlO:'llS 17. Paragraphs 1 through 16, abovc. are incorporated herein by reference as if fully set forth in this paragraph. 18. The strip search to which Plaintiff was subjected was perfol1ncd pursuant to the policies. practices and customs of Defendants of conducting strip searches of all incoming detainees. The searches complained ofhcrein were performed without regard to the nature of the alleged offenses for which Plaintiff and memhers of the class had heen detained, and without Defendants or their employees. agents and representatives having a reasonahle bcliefthat the Plaintiff or members of the class possessed weapons or contrahand. or that there existed facts supporting a reasonable bcliefthat the searches would produce contraband or weapons. 19. This civil action is brought by Plaintiff on her own behalf and on hehalf of a class of similarly situated persons. pursuant to Fed. R. Civ. P. 23. The class for which Plaintiff seeks ccrti fication is defined as follows: all persons who, in thc period from May 1G. 2003. to the present and continuing until this mattcr is adjudicated and the practices complained of herein cease, were detained and suhjected to a strip scarch and/or body cavity search at the Dona Ana
6

County Juvenile Detention Center pursuant to a policy. practice or custom of conducting strip searches on incoming detainees without individualized reasonahle suspicion that the search would lead to the discovery of contraband or weapons.
20. Plaintiffis a member of the class she seeks to represent. and has standing to hring this action because she was arrested and subjected to a strip search and/or visual body search at the DACJDC in the absence of a reasonable suspicion that the search would reveal the presence of contraband or weapons. as set forth in more detail above.
21. Pursuant to Fed. R. Civ. P. 23. Plaintiff. individually and on behalfofthe members of the class. seeks such relief as is just and equitahle. including hut not limited to:
(i) Complete disclosure of all information within the possession. custody or control of Defendants concerning. relating to or involving the searches complained of herein;
(ii) Judicial declaration that the searches complained of herein arc unlawful; (ii i) Issuance of a pern1anent injunction prohihiting Defendants from engaging in the searches complained of herein; and (iv) Judgment lor compensatory and punitive damages to the fullest extent allowahle by law from Defendants in favor of Plaintiff and the members of the class for personal and economic injury. and deprivation of statutory and/or common law rights resulting from Defendants' practices. 22. Plaintiff is not yet able to state precisely the size of the class. On information and belief. Plaintiff alleges that there often are more than 25 persons per month who are detained and booked into the DACJDC and subjected to the searches complained of herein as a result of Delcndants' policies. practices. and customs related to said searches. Thus. the class is sufficiently numerous that joinder of all members herein is impracticahle. The exact number of class memhers
7

will bc ascertained tbrough appropriate discovery, from rccords maintained by Defcndants and their agents.
13. Questions oflaw and fact are common to thc claims of Plaintiff and the members of the class, including but not limited to (I) whether DACJDC officers routinely subjcct pcrsons arrested to strip searches and/or body cavity searches; (2) whcther persons are subjected to strip searchcs and/or body cavity searches in the absence of any reasonable suspicion, based on speci fic and articulable facts, to believe any particular detainee has concealed drugs, weapons, and or contraband; (3) whethcr the strip searches arc conducted in an area of privacy so that the searchcs cannot be observed by persons not participating in the scarchcs; (4) whethcr DACJDC officers may lawfully perform strip searches and/or body cavity searches without reasonable suspicion, based on specific and articulable facts, to believe any particular detaince has concealed drugs. weapons or contraband; (5) whethcr strip searches and/or body cavity searches lllay lawfully be conductcd in areas wherc the search can be observed by peoplc not participating in the search; and (6) whether or not Dcfendants' strip search policy and procedure is in accordance with the State and Federal Constitutions.
24. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respcct to the class as a whole.
25. There is a well-defined community of interest amongst members of the class. Thc claims of the named Plaintiff are typical of the claims of the members of the class. The factual bases of Defendants' misconduct are common to all class members and reprcsent a common policy, practice and/or custom of blanket strip searches of detainees without r~asollable suspicion.
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Morcover, PlaintitTs claims arc based on the same legal theories as those of the class members. 26. The named Plaintiff will fairly and adequately protect the interests of the class.
Plaintifris committed to prosecuting this action, and she has retained competcnt counsel experienced in civil litigation of this nature. Moreover, the interests of Plaintiff are coincident with. and not antagonistic to, those of the other members of the class.
27. The common questions of law and fact herein predominate over questions affecting any individual class member, and class action treatment provides a superior mdhod for the fair and cfficient adjudication or the controversy.
28. At all times relevant to thc acts allegcd hercin, and as to every cause of action assertcd, Defendants acted traudulently, oppressively, maliciously, and in knowing and conscious disregard of Plaintiffs rights and thc rights of class members, as outlined herein.
V.
FIRST CAUSE OF ACTION (Civil Rights Violations Under 42 U.S.c. § 1983) 29. Plainti rf incorporates by rcference into her first cause of action the allegations of paragraphs I through 28 above. as fully as irrealleged and set tarth herein. 30. The above-described acts and omissions of Defendants were unreasonable. shocking to the conscience. and were committed intentionally. maliciously. willfully and/or with reckless or deliberate indifference, and in violation orthe following clearly established constitutional rights or which a reasonable person would have been aware: (a) Plaintiffs and class members' Fourth Amendment rights to be free from unreasonable searches and seizurcs; and (b) Plaintiffs and class members' Eighth Amcndmcnt rights to be free from cruel and
9

unusual punishment and/or Fourtccnth Amendment rights to substantive and procedural due process, and to privacy. 31. The above-described acts and omissions of Defendants were motivated by evil motive and intent, and involved recklessness and callous indifference to Plaintiff and class members' federally protected rights, justifying an award of punitive damages. 32. Prior to the acts and omissions alleged herein, Defendants rai led to properly create, adopt, inculcate and ensure compliancc with appropriate policies and procedures for corrections officers and supervisory personnel employed by them; failed to propcrly train, monitor, supervise and discipline corrections officers and supervisory pcrsonnel employed by thcm, and failed to otherwise institute and ensure compliance with adequate procedures and policies that would protect the rights of Plaintiff and class membcr~. These acts and omissions were direct and proximate causes ofthc injuries complained of by Plaintiffhcrcin. as set forth below. 33. Defendants Dona Ana County, Barela. Wooley. Soliz and/or Roach maintained a custom or policy which pcmlittcd or condoned the foregoing violations of Plaintiffs and class members' constitutional rights. 34. Thc acts and omissions of the Defendants as set forth above were undertaken under color of state law and operated to deprivc Plaintiff and the members of the class of their federal rights. Defendants Barela, Woolcy, Soliz and Roach are liahle in their individual and official capacities for damages proximately caused by these acts and omissions. Plaintiff is also entitled to injunctive relief against the Defendants, including a pemlanent injunction prohibiting Defendants from engaging in the unlawful practices and procedures complained of herein. 35. As a direct and proximate cause of Defendants' violations of her constitutional
10

rights. Plaintiff and memhers of the class suffered damages as set forth below. VI.
SECOND CAUSE OF ACTION (Claims Arising Under the New Mexico Tort Claims Act) 36. Plainti ff incorporates by reference into her second cause of action the allegations of paragraphs I through 35 ahove. as fully as if realleged and set forth herein. 37. The conduct of Dcfendants. described above. resulted in personal injury and bodily injury to Plaintiff and members of the class resulting from assault. battery, false imprisonment. and/or deprivation of rights. privileges or immunity secured by the Constitution and laws of the United States and f',;cw Mexico. 38. Defendants Barela, Wooley. Soliz and Roach. as supervisors ofDACJDC officers. had the duty in any activity actually undertaken by them to exercise for the saf(:!y of others that care ordinarily exercised by a reasonable, prudent and qualified law enforcement supervisor in light of the nature of what was heing done. In addition, Defendants Barela, Wooley. Soliz and Roach had a duty to properly screen. hire. train. monitor, supervise and/or discipline employees of DACJDC. Deftmdants Barela, Wooley. Soliz and Roach knew or reasonably should have known of the information described ahove. 39. Defendants Barela. Wooley. Soliz and Roach breached the foregoing duties hy failing to properly screen. hire. train. monitor, supervise and/or discipline employees of DACJDC, and by failing to adopt and ensure compliance with appropriate policies, practices. and customs. hy failing to implement appropriate supplemental training. by failing to appropriately discipline subordinate officers, and by failing to take other appropriate and usual supervisory actions to correct the problems and to prevent the ham1 which resulted to Plaintiff and memhers of the class
11

as a result of the misconduct of Defendants. described above. 40. Dona Ana County is the governmental entity which had immcdiate supervisory
responsihility over the actions of employees of the DACmc, including but not limited to Defcndants Barela. Woolcy. Soliz and Roach. Therefore. Dona Ana County is jointly and severally liable for all injuries and damages caused by the negligence of any of its officials or cmployees under the doctrine of vicarious liability.
41. The conduct of Defendants was a direct and proximate calise of the injuries and damages to Plaintiff and members of the class as set forth below.
42. All of the acts or omissions which constitute the basis for liability herein come within the scope of the waivers ofiml1lllnity contained within the New Mexico Tort Claims Act.
43. To the extcnt required. Dcfendants have received written notice of the claims contained herein in compliance with the New Mexico Tort Claims Act. ~41-4-16(A)-(C) I\'MSA 1978, as amended.
44. As a direct and proximate calise of Defendants' conduct. Plaintiff and members of the class suffered damages as sci forth below.
VII. THIRD CAUSE OF ACTION (Declaratory and Injunctin Relief) 45. Plaintiff incorporates by reference into her third cause of action the allegations of paragraphs I through 44 above, as fully as ifrealleged and set forth herein. 46. Plaintiff. on behalf of herself and the members ofthc class. seeks a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searchcs without individualizcd reasonable suspicion.
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47. The constitutional violations alleged herein arise from official policies, practices and/or customs sanctioned by Defendants. The ham1 which the Plaintiff and the members of the class have sustained are directly traceable to these officially sanctioned policies, practices, and/or customs.
48. Plaintiff and members of the class do not have a plain, adequate, speedy. or complete remedy at law to address the wrongs alleged in this Complaint. and they will suffer irreparable injury as a result of Defendants' misconduct unless injunctive and declaratory reliefis granted. Plaintiff and members of the class are in real and immediate danger of sustaining future, direct injury as a result of Dcfendants' official policies. practices and customs that are ongoing at the time of this suit.
49. No cognizable burden will be placed on Defendants by requiring that no strip searches be undertaken without individualized reasonable suspicion. The public interest would be greatly enhanced by enforcement of policies and practices which adhere to the requirements of the state and federal Constitutions. Absent injunctive relief. there is no guarantee that the Defendants will cease their illegal policies. practices and customs as alleged herein.
50. By reason of the foregoing, Plaintiff and members of the class are entitled to declaratory and injunctive relief as set forth above.
VIll. DAMAGES 51. Paragraphs I through 50. above. are incorporated herein by reference as if fully set forth in this paragraph. 52. As a direct and proximate result of the wrongful and unlawful actions of
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Defendants. described ahove, Plainti ff and the members of the class were injured and have suffered and continue to suffer damages. including but not limited to distress. anguish. suffering, humiliation. deprivation of constitutional rights. and other incidental, consequential. and special damages.
53. Defendants' acts and omissions. as set forth herein. were malicious, reckless. wanton. oppressive. and/or fraudulent. justifying an award of punitive damages against the individually named Defendants in their personal capacities. for the purpose of punishment and to deter others from the commission of like offenses.
WHEREFORE. Plaintiff, on behalf of herself and the members of the class represented
herein, respectfully prays for and demands judgment against the Defendants as follows:
(a) For jUdgment against Defendants for compensatory damages. special damages, consequcntial damages and incidental damages under any or all of the causes of action. in an amount to he determined at the trial of this cause;
(b) For judgment dcclaring the rights of the parties; (c) For injunctive relief; (d) For reasonahle attorneys' fees and costs incurred herein; (e) For pre-judgment and post-judgment interest in amounts to he determined according
to law; (I) For an award of punitive and exemplary damages, in an amount to he detenllined at
the trial of this cause; and (g) For such other and further relief as the Court deems just and proper.
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JURY TRIAL REQUEST

COMES :-.lOW Plaintin: by and through her counsel, helow-listed, on her own behalf and

on behalf of a class of similarly situated persons, and herehy demands trial by jury pursuant to the

temls and conditions of Fed.R.Civ.P. 38 in regard to all issues in the ahove-referenced cause.

Respectfully submitted,

LILLEY LA W OFFICES
'L'11,~ t-i
By: MiChael W. Lilley Jess R. Lilley Marc A. Lilley 1014 S. Main Las Cruces, NM 88005 (505) 524-7809 (505) 526-2462 (fax)

ROTHSTEIK DONATELLI, HUGHES,

DAHLSTROM, SCHOENBLRG & BIENVDIU.

LLP

J b By:

( ~.:~ ~

Mark 11. Donatelli

j

Rohert R. Rothstein

John C. Bienvenu

Post Office Box 8180

Santa Fe, New Mexico 87504-8180

(505) 988-8004

(505) 982-0307 (fax)

Attomeys for Plain/iffand the Class

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 </s> . ------------Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 1 of 38

c
I

IN THE UNITED STATES DISTRICT COURT

I

FOR THE DISTRICT OF NEW MEXICO

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JESUS LIRA, BEN GARCIA, GRACIELA MARTINEZ, STEPHEN CULLER, CYNTHIA ARCHER, FREDERICK GARCIA and DOUGLAS BEIDLER, on their own behalf and on behalf of a class or similarly situated persons,

Plaintiffs,

vs.

No. CIV 06-0179 WPJ/WPL

l

DONA ANA COUNTY BOARD OF

COMMISSIONERS; Dona Ana County Detention Center administrator CHRISTOPHER

f

BARELA, in his individual and official capacities;

former Dona Ana County Detention Center

administrator DAVID WOOLEY, in his

individual and official capacities; former

Dona Ana County Detention Center

administrator ALFONSO SOLIZ, in his

individual and official capacities, and former

Dona Ana County Detention Center acting

administrator CHERYL ROACH, in her individual and official capacities.

'' ' '
i

I

Defendants.

"F
~

Consolidated with

AMBER RODRIGUEZ, on her own behalf and on behalf of a class of similarly situated persons,

Plaintiff, vs.

No. CIV-06-416 JH/CEG

DONA ANA COUNTY BOARD OF COMMISSIONERS; Doiia Ana County Juvenile Detention Center administrator CHRISTOPHER BARELA, in his individual and official capacities; former Dofia Ana

EXHIBIT "A"

--------~~~~~~~~~~
Case 1:06-cv-00179-WJ-WPL Document 46-2

Filed 11/25/2007 Page 2 of 38

~

County Juvenile Detention Center administrator DAVID WOOLEY, in his

I

individual and official capacities; former

I

Do:iia Ana County Juvenile Detention Center administrator ALFONSO SOLIZ, in his

!'

individual and official capacities, and former

Dofia Ana County Juvenile Detention Center

acting administrator CHERYL ROACH, in her

individual and official capacities,

Defendants.

AMENDED STIPULATION OF SETTLEMENT

l

Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer,

~

Frederick Garcia, and Douglas Beidler (hereinafter "Adult Plaintiffs"), individually and on

I

behalf of the adult settlement class defined herein, Plaintiff Amber Rodriguez (hereinafter,

1.

"Juvenile Plaintiff'), individually and on behalf of the juvenile settlement class defined herein;

and Defendants Dona Ana County Board of Commissioners, Dona Ana County Detention Center

I
:·

(hereinafter "DACDC") administrator Christopher Barela, former DACDC administrators David

i

Wooley and Alfonso Soliz, and former acting administrator Cheryl Roach (hereinafter

~

"Defendants") (Adult Plaintiffs, Juvenile Plaintiff and Defendants are hereinafter collectively

f

referred to as "the Parties"), by and through their respective counsel, hereby enter into the

following Amended Stipulation of Settlement ("Amended Stipulation of Settlement" or

''Agreement").

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---~~~-~ - - - - - - - - - - - - Case 1:06-cv-00179-WJ-WPL Document 46-2

Filed 11/25/2007 Page 3 of 38

f.
l '

I

I.

!

RECITALS

I

!

On March 7, 2006, Adult Plaintiffs, on behalf of themselves and all persons similarly

I

situated, filed a complaint in the above-captioned matter in which they challenged certain

practices of Defendants including the strip search of certain detainees, and sought damages and

declaratory and injunctive relief. Adult Plaintiffs allege that they were each unlawfully

subjected to a strip search performed pursuant to the policies, practices and customs of

l

Defendants of conducting strip searches of all incoming pre-arraignment detainees at the Doiia

f

Ana County Adult Detention Center ("DACDC"). Adult Plaintiffs allege that these strip

searches were performed without regard to the nature of the alleged offenses for which Adult

Plaintiffs had been arrested, and without Defendants having a reasonable belief that the Adult

Plaintiffs possessed weapons or contraband, or that there existed facts supporting a reasonable

belief that the search would produce contraband or weapons.

!-

On May 16,2006, Juvenile Plaintiff, on behalfofherselfand all persons similarly

i

F

situated, filed a complaint in the above-captioned matter in which she challenged certain

l..
~

practices of Defendants including the strip search of certain detainees, and sought damages and

declaratory and injunctive relief. Juvenile Plaintiff alleged that she was unlawfully subjected to
a strip search performed pursuant to the policies, practices and customs of Defendants of

conducting strip searches of all incoming pre-arraignment detainees at the Doiia Ana County

Juvenile Detention Center ("DACJDC"). Juvenile Plaintiff alleges that this strip search was

perfonned without regard to the nature of the alleged offenses for which Juvenile Plaintiff had

3

--------------- --Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 4 of 38
been arrested, and without Defendants having a reasonable belief that Juvenile Plaintiff possessed weapons or contraband, or that there existed facts supporting a reasonable belief that the search would produce contraband or weapons.
Adult Plaintiffs and Juvenile Plaintiff sought damages for civil rights violations under 42 U.S.C. § 1983, and for claims arising under the New Mexico Tort Claims Act. Adult Plaintiffs and Juvenile Plaintiff additionally sought a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches without individualized reasonable suspicion. Adult Plaintiffs and Juvenile Plaintiff brought these actions on their own behalf and on behalf of classes of similarly situated individuals.
Defendants contend that not all incoming pre-arraignment detainees were subjected to strip searches. Defendants further contend that the admissions search policies at the DACDC and the DACIDC were and are reasonably related to legitimate penological interests in deterring the introduction of weapons, drugs and other contraband into the detention center. Defendants submit that the detention center policies are entitled to deference under the law, and that the policies should not be found to violate the Constitution or any state law. Defendants further deny that the searches of Adult Plaintiffs or Juvenile Plaintiff violated any state or federal law.
The Parties entered into the voluntary exchange of all relevant infonnation pertaining to the claims raised herein.
On May 14 and 15,2007, the Parties engaged in two days of mediation sessions with experienced mediator Nancy Lesser. On October 16, 2007, the Parties engaged in a mediation session with United States Magistrate Judge Carmen E. Garza and United States Magistrate
4

~~~--

. . ---------------~~---

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007

Page 5 of 38

Judge Leslie C. Smith. Following these mediations and continued negotiations among the

Parties, the Parties arrived at this agreed Amended Stipulation of Settlement which, subject to

the approval of the Court, settles this action in lhe manner and upon the terms set forth below and fully resolves the dispute.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, as follows:

II.

DEFINITIONS

1. "Administrator" means a claims administrator as appointed by the Court to review

and determine the validity and amount of claims submitted by Settlement Class Members ("SCMs"), according to the procedures set forth herein. All parties concur that, subject to

approval by the Court, the firm of Gilardi & Co., L.L.C. of San Rafael, CA, should serve as the

Administrator.

:

2. The "Bar Date" is the date established by the Court by which any SCM who

·~

wishes to receive payment pursuant to the Amended Stipulation of Settlement must file his/her
'
Claim Form(s), objections to this Amended Stipulation of Settlement, or request to be excluded

from the class (opt-out).

3. "Charge List" means the list of charges attached hereto as Exhibit "4".

4. The "Claim Form" is the fonn required to be used to make a claim for payment under this settlement. A copy of the proposed Claim Form is attached as Exhibit" l."

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----------- - - - - - - - - Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 6 of 38

5. "Class Counsel" means, collectively, Robert R. Rothstein, John C. Bienvenu and

~' '

Mark H. Donatelli of the Law Offices of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg

I

'

& Bienvenu; LLP; and Michael W. Lilley, Jess R. Lilley, and Marc A Lilley of the Lilley Law

Offices.

6. The "Class Notice" means the notice in a form substantially similar to that

atlached hereto as Exhibit "2" (Notice by Mail), and the summary notice substantially in the

form attached hereto as Exhibit "3" to be published in newspapers identified in Paragraph 50

herein, and posted in the DACDC and DACJDC and announced on radio as referenced in

Paragraph 51 herein.

7. The "Class Period" is March 7, 2003 through March 7, 2006 for the Adult

Settlement Class, and May 16, 2003 through May 16, 2006 for the Juvenile Settlement Class.

8. The "Database" is the information to be provided in hard copy and/or electronic

fonn by the Defendants to the Administrator and Class Counsel no later than the later of thirty

!

(30) days from the Parties' selection of the Administrator or thirty (30) days from the date the

,_

I'

United States District Court grants preliminary approval of the terms of this Amended

[
''

Stipulation of Settlement. The Database includes, to the extent practicable, the name, last known

addresses, date of birth, Social Security Number, date(s) of arrest and charges of all SCMs

arrested during the Class Period; date(s) ofbooking(s), housing(s) and first appearance(s) of each

member of the class. The Database shall not be provided by the Administrator or Class Counsel

to any parties or to any SCMs.

6

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 7 of 38

9. The "Effective Date" means the date upon which a judgment entered by the Court approving the Amended Stipulation of Settlement becomes final. The judgment will be deemed final only upon expiration of the time to appeal or, if a Notice of Appeal is filed, upon dismissal

of the appeal or exhaustion of all appeals and petitions for writs of certiorari. 10. "Non-VDW Offense" means an offense not listed on the Charge List (Exhibit

"4").

11. "VDW Offense means an offense which appears on the Charge List (Exhibit "4"). 12. An "Opt-Out" is any potential Settlement Class Member who files a timely

I

request for exclusion as specified in Paragraph 44.

I

13. "Released Persons" means Defendants and their affiliates, subsidiaries,

predecessors, successors, and/or assigns, together with past, present, and future officials, employees, representatives, attorneys and/or agents of the Dona Ana County Board of

Commissioners, DACDC, DACJDC, Christopher Barela, David Wooley, Alfonso Soliz, and Cheryl Roach or any of them. "Released Persons" also includes any and all insurance carriers, or

risk pools, for the Released Persons. 14. A "Settlement Class Member" ("SCM") means any member of the Adult
Settlement Class or Juvenile Settlement Class including representatives, successors and assigns,

who does not file a valid and timely Request for Exclusion as provided in Paragraph 44 ofthis

Amended Stipulation of Settlement. 15. "Adult Settlement Class" means all persons arrested on a non-VDW Offense who

were strip searched during the Class Period at DACDC prior to arraignment. "Juvenile

7

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 8 of 38

Settlement Class" means all persons arrested on a non-VDW Offense who were strip searched

i

during the Class Period at DACJDC prior to arraignment.

I

' '

16. "Strip search" means a search conducted upon intake and booking by a

corrections officer in which the person was required to remove all of his or her clothing,

including underwear, in the presence of the corrections officer.

17. "Verified claims" means claims that are made in writing on the Claim Forms and

'

that are signed under oath by the SCM. If the SCM is under the age of 18 at the time of signing,

l

the Claim Form must be signed by a parent or guardian.

~

18. This Amended Stipulation of Settlement is for settlement purposes only, and

I

i
neither the fact of, nor any provision contained in this Amended Stipulation of Settlement or its

exhibits, nor any action taken hereunder shall constitute, be construed as, or be admissible in

evidence as any admission of the validity of any claim or any fact alleged by Plaintiffs or SCMs

in these actions or in any other pending or future action or of any wrongdoing, fault, violation of

law, or liability of any kind on the part of Defendants or admission by Defendants of any claim

or allegation made in this action or in any other action, nor as an admission by any of the

Plaintiffs, SCMs or Class Counsel of the validity of any fact or defense asserted against them in

this action or in any other action. Defendants deny all allegations of wrongdoing and deny any

liability to Plaintiffs or to any other class members. The Parties have agreed that, in order to

avoid long and costly litigation, this controversy should be settled pursuant to the terms of this

.

Amended Stipulation of Settlement, subject to the approval of the Court.

•
F

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8

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 9 of 38

III.

TERMS AND EFFECT OF AMENDED STIPULATION OF SETTLEMENT

19. The Parties agree solely for the purposes of this settlement and implementation

that the within action shall proceed as a class action, with the Adult Settlement Class and

Juvenile Settlement Class as defined in Paragraph 15, and that attorneys for the Class are Class

Counsel defined in Paragraph 5; but if such settlement fails to be approved or otherwise fails of

;

consummation, then this Amended Stipulation of Settlement is hereby withdrawn.

l

20. SCMs who comply with the requirements set forth in this Amended Stipulation of

Settlement will be paid specified sums determined by the process set forth herein in full

'I

satisfaction of all claims.

21. The Parties hereto stipulate and agree that the strip search policies at the DACDC

and the DACJDC were changed as a result of Plaintiffs' and Class Counsel's efforts preceding

and during this lawsuit and that the request for equitable relief was thereby rendered moot.

22. The Amended Stipulation of Settlement, as of the Effective Date, resolves in full

all claims against the Released Persons by all of the SCMs, including the named Plaintiffs,

involving violation oflaw or constitutional rights, including their Fourth Amendment rights,

their Fourteenth Amendment rights, or of any other federal, state or local law, regulation, duty,

or obligation which are based upon or could be based upon or arise from the facts alleged in the

lawsuits. When the Amended Stipulation of Settlement is final, as of the Effective Date, all
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SCMs, including the named Plaintiffs, hereby release all such claims.

9

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 10 of 38

23. The Parties agree that the Court, by preliminarily approving the Amended

Stipulation ofSeltlement, will be certifying the classes as defined in Paragraph 15, as the

Settlement Classes, subject to final approval of the Settlement at the fairness hearing and that the

Court shall retain exclusive and continuing jurisdiction of the action, Parties, SCMs, and the

Administrator to interpret and enforce the terms, conditions and obligations under this

Agreement.

I

24. As of the Effective Date of this Amended Stipulation of Settlement, the SCMs,

l

including the named Plaintiffs, hereby waive any and all rights to pursue, initiate, prosecute, or

f

commence any action or proceeding before any court, administrative agency or other tribunal, or

to file any complaint with regard to acts of commission or omission by the Released Persons

I

respecting such SCMs with respect to any strip search by Defendants that occurred during the

Class Period.

25. This Amended Stipulation of Settlement together with its exhibits contains all the

terms and conditions agreed upon by the Parties hereto regarding the subject matter of the instant

proceeding, and no oral agreement entered into at any time nor any written agreement entered

into prior to the execution of this Stipulation shall be deemed to exist, or to bind the Parties

hereto, or to vary the terms and conditions contained herein, except as expressly provided herein.

26. Each SCM shall be deemed to have submitted to the jurisdiction of the Court.

27. No Opt-Out shall share in any monetary benefits provided by this Amended

I '

Stipulation of Settlement.

' '

28. This settlement is subject to and conditioned upon the final approval of this

10

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 11 of 38
Amended Stipulation of Settlement and the issuance of the final order and judgment of dismissal by the Court, providing the below specified relief, which relief shall be pursuant to the terms and conditions of this Amended Stipulation of Settlement and the Parties' performance of their continuing rights and obligations hereunder. The order and judgment will be deemed final only upon expiration of the time to appeal, or if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writs of certiorari. Such final order and judgment shall:
a. Dismiss with prejudice all claims in the actions as to the Released Persons including all claims for damages, declaratory and injunctive relief, attorneys' fees and costs;
b. Order that all SCMs are enjoined from asserting against any Released Person, any and all claims which the SCMs had, has, or may have in the future arising out of the facts alleged in the Complaints;
c. Release each Released Person from the claims which any SCM has, had or may have in the future, against such Released Person arising out of the facts alleged in the Complaints;
d. Determine that this Amended Stipulation of Settlement is entered into in good faith, is reasonable, fair and adequate, and in the best interest of the Classes; and
e. Reserve the Court's continuing and exclusive jurisdiction over the Parties to this Amended Stipulation of Settlement, including Defendants and SCMs, to administer, supervise, construe and enforce the Amended
II

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 12 of 38

Stipulation of Settlement in accordance with the terms for the mutual

benefit of all the Parties.

29. The Parties will take all necessary and appropriate steps to obtain preliminary

approval of the Amended Stipulation of Settlement, final approval ofthe Settlement, and

dismissal of the actions with prejudice. If the Court finally approves this Amended Stipulation

of Settlement, and if there is an appeal from such decision, Defendants will not oppose Plaintiffs'

efforts to defend the Amended Stipulation of Settlement.

IV.

RESOLUTION AND PAYMENT OF CLAIMS FOR DAMAGES

30. The settlement amount, which shall be used to pay all verified claims of SCMs,

administrative costs, incentive bonuses to Class Representatives, and attorneys' fees and costs, is

$5.300,000.00 (Five Million Three Hundred Thousand Dollars) ("Settlement Fund"). The

Settlement Fund will be distributed as follows, subject to approval of the Court:

a. $200,000.00 will be allocated for payment to Adult Plaintiffs and Juvenile

I,.

Plaintiff collectively to acknowledge their participation and efforts in

t'
'

these lawsuits in securing damages for personal injury for SCMs. This

amount is separate and apart from any payment due for their individual

claims as SCMs and shall be paid within ten days of the Effective Date.

Defendants agree not to contest Plaintiffs' request for approval of this

payment to Plaintiffs. In the event the Court approves less than this

12

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 13 of 38

l

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amount, the difference will be added to the amount allocated to pay

' ~

verified claims.

b. $1,666,667.00 will be allocated for payment of Plaintiffs' attorneys' fees,

I::

'

gross receipts tax on Plaintiffs' attorneys' fees, and Plaintiffs' litigation

expenses and costs through the date that this settlement becomes final, to

be paid within ten days of the Effective Date. Defendants agree not to

contest Plaintiffs' request for approval ofthis amount for fees, gross receipts tax, and litigation expenses. In the event the Court approves less

~

than this amount, the balance remaining in the Settlement Fund will be
I

added to the amount allocated to pay verified claims.

!

c. Actual costs of claims administration, providing notice to the Class, and

processing and administering the Settlement ofSCMs' claims will be paid

from the Settlement Fund. Invoices for services provided by the

'~~

Administrator shall be approved first by Class Counsel and then by

Defendants' counsel, and then paid by check from the Settlement Fund.

d. The balance of the Settlement Fund, after payment of all amounts

enumerated above, will be distributed, pro-rata as described in Paragraph

33 below, among the SCMs who timely file qualifying Claim Forms, as

soon as practicable after the Effective Date.

31. By November 13, 2007, Defendants will transmit by wire transfer or certified

funds $5,000,000.00 (Five Million Dollars) to the Administrator or the Administrator's designee

13

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 14 of 38

l
'

for deposit in an interest-bearing qualified settlement fund ("QSF") , and within 30 days of

~

preliminary approval by the United States District Court of the tenns of this Amended

I
Stipulation of Settlement, Defendants will transmit by wire transfer or certified funds the balance

of$300,000 (Three Hundred Thousand Dollars) to the Administrator or the Administrator's

designee for deposit in the QSF, and all interest earned on the Settlement Fund shall inure to the

benefit of the SCMs.

32. The Parties agree to make an application to the Court to appoint the Administrator

an officer of the Court for the purpose of implementing the terms of this Amended Stipulation of

Settlement. The Administrator shall be subject to judicial immunity to the fullest extent

permitted by law. The Administrator shall be subject to the jurisdiction of the Court with respect

to any dispute arising between the Administrator and the Parties regarding the implementation of

the terms and conditions of the administration agreement.

V.
PROCEDURES FOR RECEIVING PAYMENT UNDER THIS AMENDED STIPULATION OF SETTLEMENT

l

1:

33. All SCMs who were strip searched during the Class Period, prior to arraignment,

' -

at the DACDC following arrests on a Non-VDW Offense, and all SCMs who were strip searched

during the Juvenile Class Period, prior to arraignment, at the DACJDC following arrests on a

Non-VDW Offense, shall be entitled to receive a pro-rata share of the funds allocated for

payment of SCM claims, with up to a maximum of two searches during the Class Period being

counted as separate claims. This two search maximum shall apply regardless of whether the

14

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 15 of 38
SCM has more than two searches as a juvenile, as an adult or in any combination of the two. Payment shall be in full satisfaction of each and every claim of such SCMs.
34. If the Administrator receives Claim Forms identifying information substantially different from that on the Database so that the Administrator is unable to determine if the persons submitting the Claim Forms are SCMs or are otherwise entitled to payment, the Administrator shall forward copies of the Claim Forms to Defendants' counsel and Class Counsel who shall consult in an attempt to agree on the eligibility of the questioned claimants to receive payments. If Defendants' counsel and Class Counsel cannot agree, the Administrator will notify the claimant(s) that additional information must be submitted to be postmarked or received within 14 days to substantiate their eligibility. If information is submitted, the Administrator will be responsible for making the determination of eligibility. If no information is received, the claimant(s) will be excluded.
35. If the Administrator receives Claim Forms from persons whom it cannot locate on the Database, it will the notify the persons submitting the Claim Forms that they are not on the Database and request that such persons submit information to substantiate their eligibility to be postmarked or received within 14 days. If no further information is timely provided, the claimants will be ineligible. If further information is provided, the Administrator will determine eligibility.
36. The Parties expressly agree that the funds paid herein are not for economic damages or for punitive damages but are attributable to damages on account of alleged personal injuries, including but not limited to bodily injury, mental and emotional dislress, and pain and
15

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 16 of 38

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suffering, arising from an occurrence, within the meaning of§ 104(a)(2) of the Internal Revenue

Code of 1986, as amended.

37. Any SCM who fails to submit a Claim Form completed in accordance with the

I

instructions contained therein by the Bar Date or any other Court mandated extension, shall be

i

forever barred from receiving any payment pursuant to the Amended Stipulation of Settlement.

Such SCM shall in all other respects be bound by all of the terms of the Amended Stipulation of

Settlement, and the judgment entered herein, including but not limited to the release of all

Released Persons of all claims resolved herein.

38. To receive payment, an SCM shall be required to submit to the Administrator an

executed Claim Form signed under penalty of perjury with questions completed in accordance

with the instructions provided. If the SCM is under the age of 18 at the time of signing, the

Claim Form shall also be signed by a parent or guardian. All Claim Forms must be submitted by

the Bar Date unless such period is extended by order of the Court.

,' ,
~~

!

39. The Claim Form shall be submitted by first class mail and shall be deemed

~

submitted upon the date of the postmark thereon or the date of receipl, whichever is earlier.

~

r

40. SCMs who submit valid and timely claims and whose names appear on the

'

Database will be paid by mail at the address specified on the Claim Form as soon as practicable

after the Effective Date.

41. The Administrator shall determine whether or not a person who has submitted a

Claim Form is an SCM and shall reject claims by persons who are not SCMs. The Administrator will determine the dollar amount of each payment to an eligible SCM based upon the

16

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 17 of 38

I

Administrator's review of the SCMs' responses to questions on the Claim Form, the number of

I'
!

claims and the funds available in the settlement fund.

!

42. If either the Defendants or Class Counsel contests a claim on the ground of fraud

or administrative error, the contesting party will notify the other party, the Administrator and the

claimant. The other party and/or the claimant will have 10 days within which to respond to the

notice. After the deadline for response, the contesting party will submit any remaining issue to

the District Court in accordance with local motion practice. The decision of the Dislrict Court

will be final and unappealable. The contesting party will have the burden of proof.

43 For any Claim Form that the Administrator determines to be invalid or incorrect,

the Administrator will provide written notice to the SCM that will include procedures and time

limits for seeking reconsideration of the Administrator's determination. If the SCM timely and

properly contests the Administrator's determination of the validity or correctness of the Claim

Form, the Administrator will reconsider the Claim Form and make a second determination. If

I

I

the Administrator determines a second time that the Claim Fonn is invalid or incorrect the

Administrator will notify the SCM of his or her right to appeal to the District Court within thirty

I,.
'

days of notice of the Administrator's second determination. The District Court's written

decision on appeal from the Administrator's second determination will be final and

unappealable.

17

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 18 of 38
VI. EXCLUSION FROM THE SETTLEMENT CLASSES 44. Any potential SCM who wishes to be excluded from the Settlement Classes must submit a request to be excluded from the class in the form attached hereto as Exhibit "511 to the Administrator, so that it is postmarked or otherwise delivered on or before the Bar Date or as the Court may otherwise direct. 45. Any potential SCM who does not timely file a Request for Exclusion shall conclusively be deemed to have become an SCM and to be bound by this Amended Stipulation of Settlement and all subsequent proceedings, orders and judgments herein. 46. Any SCM who does not elect to be excluded from the Settlement Classes may, but need not, enter an appearance through his or her own attorney.
47. The Administrator will report all Opt-Out elections to all counsel upon receipt,
and will determine and report to counsel for the Parties not later than ten (10) days after the Bar Date the total number of timely and valid Opt-Out elections. If the total number of potential SCMs submitting timely and valid Opt-Out elections equals or exceeds the number stated in a separate confidential letter [more than 55 potential SCMs], then the Defendants, in their sole discretion, may rescind their acceptance of this Agreement, in which case the Agreement will be rendered null and void and of no effect. To exercise this right of rescission, the Defendants must serve on the Administrator and Class Counsel a written notice of rescission not later than thirty (30) days after the Administrator serves counsel for the Defendants with its totals of valid and timely Opt-Out elections received. In the event the Defendants validly and timely exercise their
18

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 19 of 38

right of rescission, the funds deposited by Defendants pursuant to Paragraph 31 herein, together

I

with any interest earned thereon, will be returned to Defendants, less any expenses, fees and

I

;

costs incurred by the Administrator.

VII.

OBJECTING TO THE PROPOSED SETTLEMENT

48. Any SCM who does not elect to be excluded from the Settlement Classes may,

but need not, submit comments or objections to the proposed settlement. The Court will enter an

l

appropriate order setting forth the procedure for SCMs to submit comments or objections to the

~

proposed settlement.

;L,.

VIII.

NOTICE

49. Notice to SCMs shall be by first class mail, postage prepaid, to all individuals

whose addresses are on record in the Database and any other databases and records maintained

by Defendants or to such other, better addressees identified by the Administrator, and by

publication and broadcast as set forth below. All notices and infonnation provided to SCMs

shall be in English and Spanish.

50. The Administrator shall cause to be published in English and Spanish languages,

in three newspapers to be determined by the Parties in consultation with the Administrator, twice

a week in each of six consecutive weeks, notices in a form substantially similar to that attached

hereto as Exhibit 3, describing this settlement, the claims procedure and the procedure to object

F,.
i. '

19

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 20 of 38

and/or to Opt-Out of the settlement. Notices in a form substantially similar to that attached

hereto as Exhibit 3 shall also be posted in the DACDC and the DACJDC.

51. Announcements summarizing the proposed settlement in English and Spanish

will be made on four radio stations to be determined by the Parties in consultation with the

Administrator, seven times during a week, during six successive weeks.

IX.

ADMINISTRATIVE COSTS

52. All reasonable costs incurred in the administration of this Amended Stipulation of

Settlement, including but not limited to the fees of the Administrator, costs of disseminating

I
!

notice to SCMs, costs of receiving and evaluating claims, and any additional administration fees,

will be paid from the Settlement Fund. Following preliminary Court approval ofthe Amended

Stipulation of Settlement, the Administrator shall submit monthly invoices to Class Counsel and

Counsel for the Defendants for services rendered and for expense reimbursement. All invoices

!-

will indicate the dates upon which services were performed, the titles of the employees performing the services, the number of hours worked by each such employee for each date, the

I'

hourly rate for each such employee, and the total fee for the services performed. The hourly

'

rates shall be in accordance with the agreement between the Parties and the Claims

Administrator.

X.

DISPUTE RESOLUTION
;;
53. The Parties may bring an issue directly before the District Court when exigent

20

-

-~---~~~~~~~~-----------

Case 1:06-cv-00179-WJ-WPL Document 46-2

Filed 11/25/2007 Page 21 of 38

i-

j·

facts or circumstances require immediate District Court action to prevent a serious violation of

i'
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the terms of this Agreement, which otherwise would be without meaningful remedy.

!

XI.

GOVERNING LAW

54. This Agreement will be subject to, governed by, and construed and enforced

pursuant to the laws of New Mexico.

i

XII.

l

ENTIRE AGREEMENT

f

55. The terms of this Agreement and its attachments are the exclusive and final

I•

expression of all agreements by Adult Plaintiffs, Juvenile Plaintiff, and Defendants with respect

to full and final settlement of this matter, but the Agreement does not, and is not intended to,

constitute the entirety of agreements among the Defendants and their respective insurers. The

Parties have entered into this Agreement based solely upon its terms and not in reliance upon any

r

I

j

representations or promises other than those contained in this Agreement. The terms of this

~

Agreement may not be contradicted either by evidence of any prior or contemporaneous

[

agreement or by the use of any form of extrinsic evidence whatsoever in any judicial,

administrative, or other legal proceeding involving this Agreement.
Dated: _ _._1-'-'1{i-"::>-.o""'-'["-o7.!._~

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 22 of 38

ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP
By:~~ Roberti.ROthStciil John C. Bienvenu Mark H. Donatelli P.O. Box 8180 1215 Paseo de Peralta Santa Fe, New Mexico 87504,8180 (505) 988-8004
Attorneys for Adult Plaintiffs and Juvenile Plaintiff

LILLEY LAW OFFICES
By: JIW1!fl~;.
Michael W. Lilley Jess R. Lilley Marc A. Lilley 1014 S. Main
Las Cruces, NM 88005 (505) 524-7809
Attorneys for Adult Plaintiffs and Juvenile Plaintiff

i
"

CARRILLO LAW, LLC

I

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By: =--,--,----cc~~~-­
Raul A. Carrillo, Jr. P.O. Box457 93 7 E. Lohman Ave. Las Cruces, NM 88001

Attorneys for Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach

22

NOV-20-200l[TUE) IS' 54 0013
Case 1:06-cv-00179-WJ-WPL Document 46-2

(FAX)5056471463
Filed 11/25/2007

Page 23 ofP30803/003

ROTIISTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP

By:
=R-ob~crt-~- ll~R~o-~~t~eill~---------

John C. Bienvenu

Mark H. Donatelli

P.O.Box 8180

1215 Paseo de Peralta

Santa Fe, New Mexico 87504-8180

(505) 988-8004
Attorneysfor Adult Plaintiffs and Juvenile Plaintiff
LILLEY LAW OFFICES

I
l

By:

!

_ ~M~ic~h-a~cl~W~.~L~ill~c-y ______ Jess ll Lilley

I.,,

Marc A. Lilley

1014 S. Maill

Las Cruces, NM 88005

(505) 524-7809

Attorneysfor Adult Plaintiffs and Juvenile Plaintiff

By: ::-#.~~~~c__
ul A. Canillo, Jr. P.O.Box457 937 E. Lohman Ave. Las Cruces, NM 88001
Attorneysfor Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 24 of 38
I

D,P.A.

I'

Alformysfor Defendants Dona Ana County Board of Commissioners, Christopher Barela, David Wooley, Alfonso Soliz and Cheryl Roach
S:\JBien\'l:nu\6639\Amende~ Sectltm~t Ooxumcnlli\Amcn~cd S1ipuluion ofScUicmenl wpd

'

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Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 25 of 38

CLAIM FORM

DONA ANA COUNTY DETENTION CENTER STRIP SEARCH LAWSUIT
CLASS ACTION CLAIM FORM
(LIRA V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL., consolidated with RODRIGUEZ V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO CASE NO. CIV 06-0179 WPJ/WPL AND NO. CIV-06-416 JH/CEG

FILL OUT TffiS FORM IF:

YOU WERE ARRESTED FOR ANY CHARGE NOT INVOLVING

VIOLENCE, DRUGS OR WEAPONS AND WERE STRIP SEARCHED AT

THE DONA ANA COUNTY DETENTION CENTER IN LAS CRUCES,

NEW MEXICO, PRIOR TO ARRAIGNMENT, ON OR BETWEEN MARCH

7, 2003 AND MARCH 7, 2006, OR YOU WERE ARRESTED FOR ANY

CHARGE NOT INVOLVING VIOLENCE, DRUGS OR WEAPONS AND WERE STRIP SEARCHED AT THE DONA ANA COUNTY JUVENILE

l

DETENTION CENTER IN LAS CRUCES, NEW MEXICO, PRIOR TO

ARRAIGNMENT, ON OR BETWEEN MAY 16, 2003 AND MAY 16,2006.

You must complete and submit this claim form no later than

, to qualify for payment from settlement of this class action strip

'

search case against Dona Aila County and others. If you do not return a completed claim form by the due date you will receive no monev

from the seulement.

Please enter your correct name, and address here if it does not appear to the left.

Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Address:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

I .

Please provide the following information: Phone Number: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ New Mexico Driver's License No.:_ _ _ _ _ _ _ _ _ _ _ _ _ __ Social Security Number:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ DateofBinh:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

ANSWER THESE QUESTIONS

Yes No

\Vere you arrested and strip searched, prior to arraignment, at

the Dona Aiia Count~· Detention Center in Las Cruces, New iVIexico,

at any time on or between March 7, 2003 and March 7. 2006?

0

0

Exhibit 1

ClASS ACTIOS CLAI.'I fORM

p,\GE I 0~ ~

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 26 of 38

\\'ere you arrested and strip searched, prior to arraignment, at
the Dona Ana County Juvenile Detention Center in Las Cruces,
New i\'Icxico, at anv. time on or between MaY. 16, 2003 and
""lay 16, 2006'?

Yes No

0

0

If you answered "yes" to one of the above, or if you are unsure of the date, please read the rest of the Claim Form.

Note: Not all persons strip searched at the Dona Aiia County Detention Center during the adult class period (March 7, 2003, to March 7, 2006) or at the Dona Aii.a County Juvenile Detention Center during the juvenile class period (May 16, 2003, to May 16, 2006) will be entitled to payment. If you were charged with a crime involving drugs, weapons or violence, you will not be entitled to payment. Eligibility will be based on records maintained by Dona Aiia County. Use the rerum envelope (or any other envelope) and mail the completed claim form to: Class Claim Administrator: Dotia A11a Collllty Strip Scorch Class Action, c/o Claims Adminislrator, _(addrcssJ _ __

I DECLARE UNDER PENALTY TRUE AND CORRECT.

OF

PERJURY

UNDER

THE

LAWS

OF

THE

STATE

OF

NEW

MEXICO

THAT

THE

ABOVE

IS

DATED; _______________

SIGNATURE'---------------------------------------

IF YOU ARE UNDER THE AGE OF 18ATTHETIMEOF SIGNING THIS FORM MUST ALSO BE SIGNED BY A PARENT OR GUARDIAN.

DATED; ________________

SPRIIG NTNORATTYPUE R NAEM:E':"f:"N.WE==================

The infonnation given here is private and will remain confidential. If you have any questions about this lawsuit, write to the Claims

Administrator at Doiia Ana Cowzly Strip Search Class Action, c/o Claims Administrator, _[address]

[toll-free phone

number] or visit the website at _.l[_,w,;oh,.s.,;l!!1e]L__ _ __

THIS CLAIM FOR.\1 \llJST BE SIC~ED .\'\D RETl'R~ED WITH A I'OST.\1..\.RK ~0 LATER ·1 H.-\,'\

If you would like your settlement check mailed to an address other than that on the first page of the Claim Form, provide it here: Address, if different, to which settlement check should be mailed:

Cl.ASS ACTIOS CL\N fOR~I

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 27 of 38

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASES

If you were arrested and strip searched at Dofia Ana County Detention Center before your arraignment on or between March 7, 2003 and March 7, 2006 or at the
Dofia Ana County Juvenile Detention Center in Las Cruces, New Mexico before your arraignment on or between May 16, 2003, and May 16, 2006,
you may be entitled to compensation under a class action settlement.

There are presently pending two consolidated lawsuits filed as class actions in the United States District Court

for the District ofNew Mexico. The parties have proposed a Settlement which, if it receives final approval, will

provide that certain persons subject to pre-arraignment strip searches at the Dalla Ana County Detention Center

or lhe Doiia Ana County Juvenile Detention Center in Las Cruces, New Mexico will receive money. Records of the Doiia Ana County Detention Center show that you may have been subjected to a strip search after an arrest and before your arraignment. To receive monetary compensation in this pending Settlement, you must fill out

and mail a Claim Form.

If You Wish lo ClaimJ\'IOJH.'I;Iry Compensation,

;

Obtain. 1-'ill out and Mail the Claim Form as Soon as Possible hut No Later than

t

For more information, please read this notice. PLEASE READ THIS ENTIRE NOTICE CAREFULLY.

~

YOU MAY BE ENTITLED TO RECEIVE A SUBSTANTIAL PAYMENT.

)

There are now pending in the United States District Court for the District of New Mexico, two consolidated actions filed as class actions on behalf of persons allegedly illegally strip searched by employees at the Doiia Ana County Detention Center on or between March 7, 2003, and March 7, 2006 and at the Doii.a Ana County Juvenile Detention Center on or between May 16, 2003 and May 16, 2006. A Stipulation of Settlement, approved preliminarily by the Court, defines the Class as follows:

All persons arrested on charges not in\"O(\"ing violence, drugs or weapons, on or he tween i\lan:h 7, 2003. and i\"larch 7, 2()1)6, who wen' strip searched at the Dotia Ana County Detl'lltion Center prior to arntignment. and ;.Ill
persons arrested on charges not in,·olving \"iolcnce, drugs or weapons, on or between i\hy 16, 2003 lliHI ''hl~' 16, 2006. who were strip searched a1 the Doiia Ana County .Ju\"enile Detention Center prior to arraigment.

You have received this Notice either because Dofia Ana County Adult or Juvenile Detention Center records indicate that you may be in the Class or because you contacted the Claims Administrator. Whether or not you qualify as a Class member will be based upon information you submit in your Claim Form and records maintained by Doiia Ana County Adult or Juvenile Detention Center. If Detention Center records do not contain your name and show you to be within the definition of the Class, you will not qualify.

This Notice is to inform you that a settlement has been proposed in this action and that, as a potential Class

',~.

member, your rights may be affected by the Settlement. This Notice also summarizes the terms and effect of

the proposed Settlement, what you can do to participate in it, how you may obtain money under the Settlement

and what you must do if you choose to exclude yourself from the Classes.

Exhibit 2

NOTICE OF PROPOSED SETILEMENTOF CLASS ACTION STRIP SEARCH CASE

Page 1 ol5

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 28 of 38 SUMMARY OF THE PROPOSED TERMS
A Settlement Agreement (Settlement) was entered into after intensive negotiations between the parties, conducted with the assistance of a third party mediator. The Parties are requesting that the Court approve the Settlement.

A. Parties to the Settlement.

The parties to the Settlement are the Plaintiffs named in Lira, eta/. v. Doiia Ana County Board of Commissioners, et al., United States District Court for the District of New Mexico, Case No. CIV 06w0 179 WPJ/WPL, consolidated with Rodriguez v. Doiia County Board ofCommissioners, et al., No. CIV 06-0416 JH/CEG, filed on behalf of themselves and the Class, and various Defendants including Dofia Ana County Board of Commissioners and named individual employees. Counsel for the Class are Robert R. Rothstein, John C. Bienvenu and Mark H. Donatelli, of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Post Office Box 8180, 1215 Paseo de Peralta, Santa Fe, New Mexico 87504-8180; and Michael W. Lilley, Jess R. Lilley, and Marc A. Lilley, of the Lilley Law Offices, 1014 S. Main St., Las Cruces, New Mexico, 88005-2919.

B. Defendants Do Not Admit Any Liability

l

Plaintiffs allege that the acts and/or omissions which are the subject of the claims covered by this action (strip searches) violated various state and federal laws. Defendants deny all allegations of wrongdoing and deny any liabilily to Plaintiffs or to any other Class members. The parties have agreed that, in order to avoid long and costly litigation, this controversy should be settled pursuant to the terms of the Settlement as described in this Notice, subject to the approval of the Court.

!
I•
li
I,",

C. Monetary Terms of Settlement

I. Payment of Claims
i
Defendants shall pay $5,300,000.00 (Five Million Three Hundred Thousand Dollars) under the terms of the Settlement which will be referred to as the Class Fund.

The Class Fund will be used to pay the claims submitted and the claims of the representative Plaintiffs, the expenses of the Claims Administrator, and attorneys' fees and costs of$1,666,667.00, subject to approval of the Court.

2. Pavment to Representative Plaintiffs

Under the terms of the Settlement, representative Plaintiffs Jesus Lira, Ben Garcia, Graciela Martinez, Stephen Culler, Cynthia Archer, Frederick Garcia, Douglas Beidle and Amber Rodriguez, will each receive an amount of$25,000.00, in addition to whatever amounts they are entitled to as class members, subject to approval of the Court.

3. Pavment to Class Members Who File Claims Money for the Class will be paid on the following basis:

"
";,"",,

All of the Claim Forms received by the Bar Date will be reviewed and compared to the database of all eligible claimants. Those Claim Forms which qualify for payment will be counted and the amount of money available for satisfaction of individual claims submitted by Class members will be divided by the total number of claims which qualify for payment and each claimant will
NOTICE OF PROPOS EO SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

Page 2 ol5

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 29 of 38 receive his or her pro-rata share of the Settlement. All persons who were arrested on charges not involving violence, drugs or weapons, as defined in Exhibit 4 to the Stipulation of Settlement, on or between March 7, 2003, to March 7, 2006, who were strip searched at the Dofia Ana County Detention Center in Las Cruces, New Mexico, prior to arraignment, and all persons who were arrested on charges not involving violence, drugs or weapons, as defined in Exhibit 4 to the Stipulation of Settlement, on or between May 16, 2003, to May 16,2006, who were strip searched at the Doiia Ana County Juvenile Detention Center in Las Cruces, New Mexico, prior to arraignment, and who submit valid claim forms will be entitled to receive compensation under this Settlement. Read the rest of this Notice to find out how to get a Claim Form.
D. Strip Search Policy

Effective , 2006, lhe Dofla Ana County Detention Center and the Dofia Ana County Juvenile Detention Center implemented a strip search policy under which pre-arraignment detainees charged with offenses not involving violence, drugs or weapons will not be strip searched upon admission without reasonable suspicion that a strip search would be productive of contraband or weapons. The strip search policy implemented on _ _, is not challenged in this lawsuit.

E. Your Options as a Class Member

l

1. Be Bound by and Participate in the Settlement.

!

To qualify for a payment, you must send in a completed Claim Fonn, signed under penalty of perjury, to the Claims Administrator. If you receive a notice by First Class Mail, a Claim Form will be included in

I
!'

the notice package. You can also get a Claim Form by: (1) calling this toll free number:

[toll free

numberl

; (2) visiting the website

[website]

; or (3) writing the Claims

Administrator at: Dorza A1Ja County Strip Search Class Action, c/o Claims Administrator,

'
'

[address].

You have until , to submit a claim or to opt -out of the Settlement.

Mail your completed Claim Form to: Doiia Ana County Strip Search Class Action, c/o Claims

i

Administrator, _[address]_.

i

F.

Remember, if you do not submit a Claim Form, you cannot get a payment. Ifyou submit a Claim Form,

~

you will be bound by the Settlement and receive money (if you are a Class member). If you do not

' "

submit a Claim Fonn but do not exclude yourself from the Class (as explained in the next paragraph),

you will be bound by the tenns of the Settlement and dismissal entered in this case, but you will not

receive any money.

By participating in this Settlement you will be waiving all your rights to all claims up to and including March 7, 2006 (for adults) and May 16,2006 (for juveniles), related to strip searches at Dofia Ana County Detention Center and the Dofia Ana County Juvenile Detention Center in Las Cruces, New Mexico, even those of which you are not presently aware. 2. Exclude Yourself From the Class

You do not have to take part in the Settlement or be a member of the Class. This is called excluding yourself. If you exclude yourself, you cannot get a payment and you cannot object to the Settlement. Any Court orders will not apply to you. To exclude yourself, you must sign an Opt-Out Form that states that you want to be excluded from Lira v. Doiia Ana County, et at., United States District Court for the District of New Mexico, Case No. CIV 06-0179 WPJ/WPL and Rodriguez v. Dofia Ana County, et al.,

NOTICE OF PROPOSED SETTI.EMENT OF CLASS ACTION STRIP SEARCH CASE

Page J or~

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 30 of 38 United States District Court for the District ofNew Mexico, Case No. CIV 06-416 JH/CEG. Your OptOut Form must be mailed and postmarked before _ _, to: D01ia Ana County Strip Search Class Action, c/o Claims Administrator, _ _[address]_.

If you do not follow these instructions properly, you will lose your right to exclude yourself. If you exclude yourself, you cannot get any money from the Settlement of this case and you cannot tell th.e Court you do not like the Settlement (which is called objecting). If you exclude yourself, you are no longer part of the Class or the Settlement, but you can sue or be part of a different lawsuit about your claims.

F. Fairness Hearing and Process for Objections.

A Fairness Hearing will be held on _ _, at _ _.m., at the United States District Court for the District of

New Mexico,

,

, New Mexico. If you are a Class member and do

not exclude yourself, you can tell the Court you do not like the Settlement or some part of it at this hearing. This

is called objecting to the Settlement. For example, you can say you do not think the Settlement is fair or

adequate. The Court will consider your views.

At the Fairness Hearing, the Court may schedule further hearings without further notice to the Classes. The matters considered at such future hearings may include, but shall not be limited to, further consideration of the fairness and adequacy of the proposed Settlement, the determination of the Settlement of individual claims filed by Class members, consideration of the request for attorneys' fees and reimbursement of costs and expenses to Class Counsel, and the form and entry of the final judgment of dismissal in the event the proposed Settlement is approved by the Court.

Individually, or through counsel, any Class member has the right to object to the proposed Settlement as a

whole, to the amount of attorneys' fees and costs of Class Counsel, or to any portion of either. ANY SUCH

OBJECTIONS MUST BE FILED IN WRJTING ON OR BEFORE DISTRJCT COURT, DISTRJCT OF NEW MEXICO, 333 LOMAS

- -, N. W.,

IN THE UNITED STATES ALBUQUERQUE, NEW MEXICO

87102, ATTENTION: CLERK, RE: LIRA V. DONA ANA COUNTY BOARD OF COMMISSIONERS, ET AL., CASE NO. CV 05-0179 WPJ/WPL. If you wish to appear and present your objections at the Fairness Hearing,

,1,'.

you must also submit a Notice of Intention to Appear that identifies the case, contains your name and address,

and explains the reason the appearance is desired. The Notice oflntention to Appear and any objections must

be filed with the Court on or before _ _. You may be represented by your own attorney. If you are to be

represented by an attorney at the hearing, his or her name, address and telephone number must be included in

the Notice oflntention to Appear as well.

A copy of the Statement of Objection and/or Notice of Intention to Appear must also be mailed to: Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Post Office Box 8180, 1215 Paseo de Peralta, Santa Fe, NM 87504-8180, Attention: Robert R. Rothstein/John C. Bienvenu/Mark H. Donatelli; Lilley Law Offices, 1014 S. Main, Las Cruces, NM 88005,Attention: Michael W. Lilley/Jess R. Lilley/Marc Lilley; and Carrillo Law, LLC, P.O. Box 457,437 E. Lohman Ave., Las Cruces, NM 88001, Attention: Raul A. Carrillo, Jr.; and Keleher & McLeod, P.A., Post Office Box AA, Albuquerque, NM 87I 03, Attention: Kurt Wihl.

G. How to Obtain Further Information

For additional information regarding the Settlement and Claim Form, or a copy of the Settlement Agreement,

r"I'

Claim Form or Class Counsel's Application for Attorneys' Fees, you or your counsel should contact: D01ia Ana

Couuty Strip Search Class Action, c/o Claims Administrator, [address]. You may also check the Class

Administrator's website at

[website]

or call

[toll free number]

__. You may also obtain detailed information about the case by examining the Court file located in the office

of the Clerk of the United New Mexico 87102.

States

District

Court

for

the

District

of

New

Mexico,

333

Lomas

N.W.,

Albuquerque,

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CA.SE

Pngo 4 or 4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 31 of 38

H. Court Approval

Although the Court has reviewed the proposed Settlement, no decision has been, or will be, reached by the Court, until the Fairness Hearing. This Notice does not indicate that the Court has approved the Settlement.

Dated: _ _ _ _ __

William P. Johnson United States District Judge

''

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

Pogo5of~

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 32 of 38

IF YOU WERE STRIP SEARCHED AT THE DONA ANA COUNTY DETENTION CENTER PRIOR TO YOUR ARRAIGNMENT ON OR BETWEEN MARCH 7, 2003 AND MARCH 7, 2006
OR AT THE DONA ANA COUNTYJUVENILE DETENTION CENTER PRIOR TO YOUR ARRAIGNMENT ON OR BETWEEN MAY 16,2003 AND MAY 16, 2006, YOU MAY BE ENTITLED TO
A SUBSTANTIAL PAYMENT UNDER A CLASS ACTION SETTLEMENT

There is a proposed Settlement of two consolidated Class Action lawsuits, Ura v. and Rodriguez v. Do1ia Ana County Board of Commissioner, eta/., pending in the

Dol1a Ana County Board of Commissioners, ala/., United States District Court for the District of New

Mexico. The lawsuits concern the strip search policy and practices at the Doi'ia Ana County Detention Center and the Ooi'ia Ana

County Juvenile Detention Center in Las Cruces, New Mexico.

What Is the Litigation About? Plainliffs alleged that Defendants violated various federal and stale laws by strip searching certain pe113ons at the Dofia Ana County Detention Center between March 7, 2003 and March 7, 2006 or at the Doi'ia Ana County Juvenile Detention Center in Las Cruces, New Mexico, between May 16, 2003, and May 16. 2006.

Who Is Involved? You may be a member of the Settlement Class if you were strip searched at the Dofia Ana County Detention Center in Las Cruces, New Mexico, prior to arraignment between March 7, 2003, and March 7, 2006, or if you were strip searched at the Doila Ana County Juvenile Detention Center in Las Cruces, New Mexico, prior to arraignment between May 16, 2003, and May 16, 2006. To see if you may qualify for a payment you should check the website or call the loll free number below.

What are the Terms? The total settlement in this case is $5,300,000.00. Altha conclusion of the Claims Period, the amount available for payment of claims will be divided by the number of qualifying claims StJbmitled.

Class Counsel will apply to the Court for an attorneys' fee and cost award of $1.666,667.00. The eight representative Plaintiffs will apply for awards of $25,000 each. Actual costs incurred by the Claims Administrator will be paid from the settlement.

For more information or to receive a claim form, consult the website or call the loll free number below.

What are My Legal Rights? If you wish to share in the Settlement Fund you must file a claim as discussed below. If the Court approves the Proposed Settlement, you will receive a payment if you qualify. You will also be bound by all of the Court's orders. This means you will drop and release any claims you may have against the Defendants covered by this Settlement.

If you wish to participate in this settlement you must complete a Claim Form. You can get a Claim Form by contacting the Claims Administrator, in writing, at the address given below, or by calling the loll free number. Claim Forms must be signed under penalty of perjury and returned to the Claims Administrator post-marl<ed no later than _ _.

If you do not wish to be a member of the Settlement Classes, you must sign an Opt-Out Form as outlined in the Stipulation of Settlement and Notice which you can download from the website or get from the Claims Administrator. Your Opt-Out Form must be signed, under penalty of perjury, and returned to the Claims Administrator post-marked no later than _ _.

When Will the Settlement be Approved?

The United States District Court for the District of New Mexico will hold a Fairness Hearing to decide if the proposed settlement is

fair, reasonable and adequate at _.m. on

, allhe United States District Court, Courtroom of Judge William P.

Johnson,

. At the hearing the Court will also consider whether Class

Counsel's request for attorneys' fees and costs is fair, reasonable, and adequate.

If you remain a member of the Settlement Classes you or your counsel have the right to appear before the Court and to object to the

Setllement. However, In order to object, notice. Objections must be filed with the

you must file a written Court by ___.

objection,

as

ouUined

in

the

Stipulation

of

Settlement

and

long

form

FOR INFORMATION ON THE PROPOSED SETTLEMENT, YOUR RIGHTS, AND A COPY OF THE NOTICE:

VISIT: ---'["'w"e"'b"'s"lle!<J]'------ Call: _ _J.[t.,o.,ll_,f,_,re,.e'-'n.!lu!!m!J!b"'e"r.cl_ _ __ or Write: Doi'ia Ana County Strip Search Class Action, c/o Claims Administrator, [address]

PLEASE DO NOT CALL THE COURT

Exhibit 3

I

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 33 of 38
LIST OF EXAMPLE OFFENSES INVOLVING DRUGS, WEAPONS OR VIOLENCE
Charges involving drugs, weapons or violence means the following or substantially similar New Mexico statutory, federal, tribal, and/or local offenses, including juvenile offenses based on the same statutes:

§ 30-3!-20 Trafficking controlled substances; violation

§ 30-3!-21 Distribution to a minor

I§ 30-31-22 '§ 30-31-23

Controlled or counterfeit substances; distribution prohibited Controlled substances; possession prohibited

§ 30-3!-24 _§_ 30-31-25

Controlled substances; violations of administrative provisions Controlled substances; orohibited acts

§ 30-31-25.1 Possession, delivery or manufacture of drug paraphernalia prohibited; exceptions

§ 30-31-41 § 30-31A-4

Anabolic steroids; possession; distribution; penalties; notice Manufacture, distribution [or possession] of imitation controlled

substance.

§ 30-3!A-5 Sale to a minor

§ 30-3!A-6 § 30-3!B-I

Possession with intent to distribute an imitation controlled substance New Mexico Drug Precursor Act

30-3!B-12 Drug precursors; prohibited acts; penalties

§ 30-28-1

Attempt to commit a felony (if involving the preceding offenses)

I

§ 30-28-2

Conspiracy (if involving the preceding offenses)

li

§ 30-28-3

Criminal solicitation (if involving the preceding offenses)

I'
I

Exhibit 4 Page I of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 34 of 38

NMSA 1978,
I §30-7-2
I §30-7-2.1
L§ 30-7-2.2
' § 30-7-2.4
I §30-7-3
I §30-7-4
L§ 30-7-s
§ 30-7-6
c.§_30-7-7
I §30-7-8 I§ 30-7-12
! § 30-7-13 § 30-7-16
1 § 30-7-19 I §30-7-19.1
§ 30-7-20 § 30-28-1
I § 30-28-2
§ 30-28-3

Unlawful Carrying of a Deadly Weapon
Unlawful Carrying of a Deadly Weapon on School Premises Unlawful Possession of a Handgun Unlawful Carrying of Firearm on University Premises Unlawful Carrying of Firearm in Liquor Establishment Negligent Use of a Deadly Weapon Da~rous Use of Explosives Negligent Use of Explosives Unlawful Sale, Possession, or Transportation of Explosives Unlawful Possession of Switchblade Bus Crimes
Weapon on a Bus
Felon in Possession Possession of Explosives Possession of Explosive or Incendiary Device Hoax Bomb Attempt to commit a felonv (if involving the preceding_offenses) Conspiracy (if involving the preceding offenses) Criminal solicitation (if involvinl!: the preceding offense~

I
'

.
"

Page 2 of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 35 of 38

I§NMSA 1978, Murder 30-2-1
I ~ 30-2-1 (A) First Degree Murder

§ 30-2-I(B)
I § 30-2-3
I § 30-2-3(A)

Second Degree Murder Manslaughter Voluntary Manslaughter

§ 30-2-3(8) lnvolunt~ry Manslal:!ghter

§ 30-3-2

Aggravated Assault

§ 30-3-3

Assault w/intent to commit violent felony (incl. murder, mayhem, CSP, robberv and bur~)

§ 30-3-5

Aggravated Battery

1 § 30-3-7
I § 30-3-8
§ 30-3-8(A)

Iniury_to Pregnant Woman Shooting at dwelling place or at or from vehicle Shootil1g_at dwelling place

§ 30-3-8(8) Shooting at or from vehicle

§ 30-3-9

Assault/Battery on School Personnel

§ 30-3-9.1 Assault/Battery on Sports Official

§ 30-3-13 § 30-3-14 § 30-3-15 § 30-3-16 § 30-3A-3.1

Aggravated Assault on a Household Member Aggravated Assault on HHM w/ intent to commit violent felony Battery_~gainst a Household Member Aggravated Battery Against a Household Member
Aggravated Stalking

§30-4-1

Kidnapping

I

§ 30-6-

Child Abuse

I '

l(D)(2)

30-6A-3 30-6A-4 30-9-11

Sexual Exploitation of Children Sexual E;g>loitation of Children by Prostitution Criminal Sexual Penetration

i

§30-9-12

Criminal Sexual Contact

' '

§ 30-9-13

Criminal Sexual Contact of a Minor

§30-16-2

Robbery

§ 30-16-4

Aggravated Burglary

_§30-17-S(A) Arson

§30-17-6 Aggravated Arson

§ 30-20-2

Public affray

§30-20-11 Dueling

§ 30-20-16 § 30-20A-3 § 30-21-1

Bomb scares unlawful · fAntiterrorism Actl Unlawful acts; penalty Sabotage

§ 30-22-1.1
I § 30-22-11

Aggravated fleeing a law enforcement officer Assisting escape

§ 30-22-12 Furnishing articles for prisoner's esc~

Page3 of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 36 of 38

I § 30-22-16 I§ 30-22-17

Possession of deadly weapon or explosive by prisoner Assault by prisoner

§ 30-22-21 Assault upon peace officer

§ 30-22-22 Aggravated assault upon peace officer

I § 30-22-23 I § 30-22-24

Assault with intent to commit violent felony upon peace officer Battery upon peace officer

I § 30-22-25 . § 30-22-26 I § 30-22-27

Aggravated battery upon peace officer Assisting in assault upon peace officer Disarming a peace officer

§ 30-24-

Bribery or intimidation of a witness; retaliation against a witness

3(A)(2)(3) &

(B)

1 § 30-28-1
Li30-28-2

Attempt to commit a felony {involving the preceding offenses)
Conspiracy (if involving the Q!"CCeding offenses

. § 30-28-3

Criminal solicitation (if involving the preceding offenses

§ 30-47-4

Abuse of a resident; criminal Q_enalties

t

!

I I
L
'

Page 4 of4

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 37 of 38

OPT-OUT FORM

DONA ANA COUNTY STRIP SEARCH LAW SUITS LIRA v. DONA ANA COUNTY BOARD OF COMMISSIONERS, et al. RODRIGUEZ v. DONA ANA COUNTY BOARD OF COMMISSIONERS, et
al.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
No. CIV 06-0179 WPJ/WPL and No. CIV 06-0416 JH/CEG

IN ORDER TO EXCLUDE YOURSELF FROM THE SETTLEMENT CLASSES

THAT HAVE BEEN CERTIFIED IN THIS PROCEEDING, YOU MUST SUBMIT THIS OPT·

OUT FORM SO THAT THAN _ _ __

IT

IS

POSTMARKED

OR

OTHERWISE

DELIVERED

NO

LATER

IF TillS OPT-OUT FORM IS TIMELY AND PROPERLY SUBMITTED, THEN YOU WILL BE EXCLUDED FROM THE SETTLEMENT CLASSES AND YOU WILL NOT BE ENTITLED TO ANY BENEFITS UNDER THE SETTLEMENT AGREEMENT, YOU WILL NOT BE ENTITLED TO OBJECT TO THE SETTLEMENT AGREEMENT, AND YOU WILL NOT BE BOUND BY THE RELEASE OF CLAIMS SET FORTH IN THE SETTLEMENT AGREEMENT AND SUMMARIZED IN THE NOTICE OF PROPOSED SETTLEMENT OF DONA ANA COUNTY CLASS ACTION STRIP SEARCH CASE.

Before electing to opt-out and exclude yourself from the Settlement Classes, you should read the enclosed Notice of Proposed Settlement ofDoiia Ana County Class Action Strip Search Case to understand the effect of either opting out of the Settlement Classes or not opting out of the Settlement Classes. You have the right to confer with Plaintiffs' Class Counsel or counsel of your own choosing, before executing this Opt-Out Form. If you have any questions regarding the effect of opting out of the Settlement Classes or not opting out of the Settlement Classes, or need any further information or assistance, please contact the Claims Administrator [address, website, toll-free number].
INSTRUCTIONS:

I. Questions 1-6 of the Sworn Affidavit below must be answered.

2.

The Opt-Out Form must be signed under penalty of perjury. If you are under 18 at the

time of signing the Form must also be signed by a parent or guardian.

3. The completed Opt-Out Form must be sent to the following address so that it is

postmarked or otherwise delivered no later than

Administrator

[ADDRESS]

Exhibit 5

Case 1:06-cv-00179-WJ-WPL Document 46-2 Filed 11/25/2007 Page 38 of 38

4. After submitting the completed Opt-Out Form, you may be required to submit additional proof, including a photocopy of your passport, birth certificate, or other identifying document.

STATE OF _ _ _ __ ) ) ss.
COUNTY OF _ _ __ )

SWORN AFFIDAVIT

I. My name is: ---;;:c-:;---o-c-;-;cc-:---;;~:--------

(first)

(middle) (last)

2. My home address is:

l

~

3. My telephone number (including area code) is: _ _ _ _ _ _ (day) _ _ _ __

I

(evening)

4. My Social Security number is: - - - - - - - - - - - -

5. My date of birth is: - - - - - - - - - -

6. I WANT TO BE EXCLUDED FROM THE SETTLEMENT CLASSES

CERTIFIED IN THIS PROCEEDING AND FROM ALL BENEFITS OTHERWISE

AVAILABLE TO ME UNDER THE SETTLEMENT:

Yes

CERTIFICATION UNDER PENALTY OF PERJURY I hereby affirm and declare under penalty of perjury that I have read and understand the contents of this Opt-Out Form and the Notice of Proposed Settlement of Dona Ana County Class Action Strip Search Case, the statements made in this Opt-Out Form are true and correct, and I am over the age of eighteen (18) and am of sound mind. I UNDERSTAND THAT BY SIGNING THIS OPT-OUT FORM I WILL NOT BE ENTITLED TO THE BENEFITS OF THE SETTLEMENT AGREEMENT.

Signature

Type or print name

Date

I am presently under the age of 18 and this Form is being signed by my parent or guardian.

Signature

Type or print name

Date

 </s> Case 1:06-cv-00179-WJ-WPL Document 66 Filed 04/08/11 Page 1 of 5

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

JESUS LIRA, BEN GARCIA, GRACIELA MARTINEZ, STEPHEN CULLER, CYNTHIA ARCHER, FREDERICK GARCIA and DOUGLAS BEIDLER, on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs,

vs.

Case No. CIV-06-0179 WPJ/WPL

DONA ANA COUNTY BOARD OF COMMISSIONERS; Dona Ana County Detention Center administrator CHRISTOPHER BARELA, in his individual and official capacities; former Dona Ana County Detention Center administrator DAVID WOOLEY, in his individual and official capacities; former Dona Ana County Detention Center administrator ALFONSO SOLIZ, in his individual and official capacities, and former Dona Ana County Detention Center acting administrator CHERYL ROACH, in her individual and official capacities,

Defendants.

JOINT MOTION FOR APPROVAL OF FINAL DISTRIBUTION OF SETTLEMENT PROCEEDS

COME NOW the parties hereto, by and through their respective counsel, below-listed,

and jointly move this Court for the entry of an order approving the final distribution of the

remaining proceeds resulting from the settlement of the above-referenced cause. In support

thereof, the parties jointly state:

Case 1:06-cv-00179-WJ-WPL Document 66 Filed 04/08/11 Page 2 of 5
1. On May 20, 2008, this Court entered its Final Judgment of Dismissal and Order Granting Final Approval of Settlement Agreement [Doc. No. 62]. That document gave final approval to the settlement agreement between the parties and authorized payments to be made to class members pursuant to the formula agreed to between the parties in the stipulation of settlement.
2. The claims administrator has now fully administered the fund and made distributions in accordance with the stipulation of settlement.
3. After payment of all verified claims, payment of attorney’s fees and costs incurred by class counsel, and payment of all costs of claims administration, there remains a balance in the fund of $22,009.99. This amount is primarily the result of checks to settlement class members which, despite repeated efforts of the claims administrator, were never negotiated and have become void.
4. The stipulation and other settlement documents do not address how leftover funds are to be disposed of. The parties are in agreement that, under the doctrine of cy pres, and subject to Court approval, it would be appropriate to disburse such amounts to a nonprofit entity1. Such a procedure has been utilized and approved in other class action
1 The doctrine of cy pres allows the Court to authorize the distribution of unclaimed charitable funds so that they are put to their next best use in keeping with the law and the intent of the plaintiffs’ claims in a class action. Cook v. Rockwell International Corp., 564 F. Supp. 2d 1189, 1222 (D. Colo. 2008). Although the Tenth Circuit has never formally addressed the cy pres doctrine, there is precedent for this approach. Id.; See Brewer v. S. Union Co., No. 83-F-1174 1987 U.S. Dist. Lexus 15940, * 7-18 (D. Colo. Aug. 13, 1987); Ponca Tribe v. Continental Carbon Co., 2009 WL. 28396508 at 5 (W. D. Okla. 2009).
-2-

Case 1:06-cv-00179-WJ-WPL Document 66 Filed 04/08/11 Page 3 of 5
litigation, including this Court’s order, the strip search class action in Allison v. Lincoln County Board of Commissioners, et al., USDC DNM No. CV 05-881 WPJ/WDS [Doc. No. 68], as well as by other judges of this district, including Torres v. Valencia County Board of Commissioners, et al., USDC DNM No. CV 07-0328 MCA/WDS [Doc No. 78] and Shannon v. Hidalgo County Board of Commissioners, et al, USDC DNM No. CV 08-0369 JH/LFG [Doc. No. 37].
5. The parties, having investigated appropriate recipients, jointly propose that the balance left in the account be distributed in equal shares of $11,004.99 each to (1) the Mesilla Valley Community of Hope (“MVCH”) and (2) the Community Foundation of Southern New Mexico (“CFSNM”).
6. MVCH is a 501(C)(3) tax exempt non-profit entity which has as its mission to provide a variety of services to the homeless of Dona Ana County, including finding lodging, laundry services, arranging counseling, obtaining identification, providing free legal services and emergency financial support. Attached hereto as Exhibit 1 is a description of the structure, programs and accomplishments of MVCH, as well as its executive and administrative staff.
7. CFSNM is also a 501(C) (3) tax exempt non-profit entity which has its mission ensuring that the people of Southern New Mexico have access to quality healthcare close to home. Attached hereto as Exhibit 2 is a description of the structure, programs and accomplishments of CFSNM, as well as its executive and administrative staff.
-3-

Case 1:06-cv-00179-WJ-WPL Document 66 Filed 04/08/11 Page 4 of 5
8. The parties jointly seek the Court’s approval of this proposed distribution of the remaining funds in the settlement account. After such distribution, all funds will be completely accounted for in connection with this settlement.
WHEREFORE, for all of the foregoing reasons, the parties hereto jointly propose that the Court enter its order approving the distribution of the remaining balance in the settlement account as set forth above.
Respectfully submitted, ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP By: Electronically Signed 4/8/11
Robert R. Rothstein John C. Bienvenu Mark H. Donatelli 1215 Paseo de Peralta P.O. Box 8180 Santa Fe, New Mexico 87504-8180 (505) 988-8004 LILLEY LAW OFFICES By: Electronically Signed 4/8/11 Michael W. Lilley Jess R. Lilley Marc A. Lilley 1014 So. Main Street Las Cruces, NM 88005-2919 (505) 524-7809 Attorneys for Plaintiffs and the Class
-4-

Case 1:06-cv-00179-WJ-WPL Document 66 Filed 04/08/11 Page 5 of 5
CARRILLO LAW FIRM, PC By: Electronically Signed 4/8/11
Raul A. Carrillo, Jr. P.O. Box 457 Las Cruces, NM 88004-0457 (575) 647-3200 KELEHER & MCLEOD, PA By: Electronically Signed 4/8/11 Kurt Wihl P.O. Box AA Albuquerque, NM 87103-1626 (505) 346-9128 Attorneys for Defendants
S:\Bob\6639\Pleadings\Motion for Final Dist.wpd
-5-

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CSSTAY, DISC, MTNDDL, REFER
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:06-cv-00416-JCH-CG

Rodriguez v. Dona Ana County Comm, et al Assigned to: District Judge Judith C. Herrera Referred to: Magistrate Judge Carmen E. Garza Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff
Amber Rodriguez on her own behalf and on behalf of a class of similarly situated persons

Date Filed: 05/16/2006 Jury Demand: y Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jess R. Lilley Lilley Law Office 1014 S. Main St. Las Cruces, NM 88005 (505) 524-7809 Fax: (505) 526-2642 Email: jlilley@zianet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Bienvenu The Rothstein Law Firm 1215 Paseo de Peralta P.O. Box 8180 Santa Fe, NM 87504 505-988-8004 Fax: 505-982-0307 Email: jbienvenu@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc Lilley Lilley Law Offices 1014 S Main Las Cruces, NM 88005 (505) 524-7809 Email: mlilley@zianet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H Donatelli Rothstein Law Firm P.O. Box 8180 1215 Paseo de Peralta Santa Fe, NM 87504-8180 505-988-8004

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V. Defendant Dona Ana County Commissioners, Board of
Defendant
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Fax: 505-982-0307 Email: mhd@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Lilley Lilley Law Offices 1014 S Main St. Las Cruces, NM 88005 (505) 524-7809 Fax: (505) 526-2642 Email: lilley@zianet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Rothstein Rothstein Law Firm P.O. Box 8180 1215 Paseo de Peralta Santa Fe, NM 87504-8180 505-988-8004 Fax: 505-982-0307 Email: rrr@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister Narvaez Law Firm, P.A. P.O. Box 25967 Albuquerque, NM 87125-0967 505-248-0500 Fax: 505-247-1344 Email: nwerkmeister@narvaezlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raul A. Carrillo, Jr. P.O. Box 457 Las Cruces, NM 88004 (505) 647-3200 Fax: (505) 647-1463 Email: carrillolaw@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Christopher Barela Dona Ana County Juvenile Detention Center Administrator
Defendant David Wooley Former Dona Ana County Juvenile Detention Center Administrator
Defendant Alfonso Soliz Former Dona Ana County Juvenile Detention Center Administrator
Defendant Cheryl Roach Former Dona Ana County Juvenile Detention Center Acting Administrator, In Their individual and Official Capacities

represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H. Nicole Werkmeister (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raul A. Carrillo, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/16/2006

#

Docket Text

1 COMPLAINT (0 Summons(es) issued) (referred to Magistrate Judge Robert H. Scott) (yc) (Entered: 05/17/2006)

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05/16/2006 06/14/2006 06/14/2006 07/12/2006 07/26/2006
07/26/2006
08/29/2006 08/31/2006 09/01/2006 09/12/2006 09/15/2006
09/18/2006 09/25/2006 10/05/2006 10/05/2006 10/05/2006
10/05/2006 10/06/2006

FILING FEE PAID: on 5/16/06 in the amount of $350.00, receipt #: 209587. (yc) (Entered: 05/17/2006)
2 ENTRY OF APPEARANCE for defts by Raul A. Carrillo Jr. & H. Nicole Werkmeister (nc) (Entered: 06/15/2006)
3 ACCEPTANCE OF SERVICE by defendants on 6/14/06 (dmw) (Entered: 06/15/2006)
4 REQUEST for status conference by plaintiff (yc) (Entered: 07/12/2006)
5 ORDER by Magistrate Judge Robert H. Scott denying parties request for stay [4-1]; defts may file an answer or responsive pleading by 08/31/06 Rule 16 scheduling conference set for 10/02/06 at 2:00 pm (cc: all counsel*) (ln) Modified on 07/28/2006 (Entered: 07/26/2006)
6 INITIAL SCHEDULING ORDER by Magistrate Judge Robert H. Scott Rule 16 scheduling conference set on 10/02/06 at 2:00 pm; provisional discovery plan and IPTR due 09/25/06 (cc: all counsel*) (ln) (Entered: 07/26/2006)
7 ORDER by Magistrate Judge Robert H. Scott Rule 16 scheduling conference set for 10/02/06 is vacated (cc: all counsel*) (ln) (Entered: 08/29/2006)
8 ANSWER by defendants [1-1] (dmw) (Entered: 09/01/2006)
9 MINUTE ORDER: Case referred from Magistrate Judge Scott to Magistrate Judge Carmen E. Garza (cc: all counsel)* (dmw) (Entered: 09/01/2006)
10 PROVISIONAL DISCOVERY PLAN by the parties* (ln) (Entered: 09/12/2006)
11 ORDER by Magistrate Judge Carmen E. Garza Telephonic Rule 16 initial scheduling conference is rescheduled for 10/03/06 at 1:30 pm (cc: all counsel*) (ln) (Entered: 09/15/2006)
12 NOTICE of change of address by defts' attorney Raul Carrillo (ln) (Entered: 09/18/2006)
13 CERTIFICATE OF SERVICE by pltf re Initial Disclosures to defts on 09/25/06* (ln) (Entered: 09/25/2006)
14 CLERK'S MINUTES: before Magistrate Judge Carmen E. Garza Telephonic Rule 16 scheduling conference held on 10/03/06 * (ln) (Entered: 10/05/2006)
15 ORDER by Magistrate Judge Carmen E. Garza Telephonic Status conference set for 01/09/07 at 1:30 pm (cc: all counsel*) (ln) (Entered: 10/05/2006)
16 ORDER by Magistrate Judge Carmen E. Garza adopting provisional discovery plan [10-1] Discovery cutoff 05/31/07; Motion Filing cutoff 06/30/07; Pretrial order ddl 08/29/07; Status hearing set for 01/09/07 at 1:30 pm (cc: all counsel*) (ln) (Entered: 10/05/2006)
17 CERTIFICATE of service by defts of their initial disclosures were mailed to opposing counsel on 10/5/06 (yc) (Entered: 10/05/2006)
18 INITIAL PRE-TRIAL REPORT by District Judge Judith C. Herrera and Magistrate Judge Carmen E. Garza; Discovery set for 5/31/07; mtn filing ddl set for 6/30/07; proposed pretrial order due 8/29/07; pretrial conference set for

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12/26/2006 01/10/2007
02/27/2007
02/28/2007 05/03/2007 05/03/2007 05/08/2007 06/08/2007
06/25/2007 06/25/2007

11/1/07 at 2:00 pm; jury trial set for 11/13/07 at 9:00 am; Estimated # of Trial Days: minimum of 3 wks.; Chances of Settlement: unknown (cc: all counsel) (ln) Modified on 10/17/2006 (Entered: 10/06/2006)
19 ORDER by Magistrate Judge Carmen E. Garza , Case stayed through February 28, 2007 re [19-2] (cc: all counsel) (rlc) (Entered: 12/26/2006)
20 Clerk's Minutes for proceedings held before Judge Carmen E. Garza : Status Conference held on 1/09/2007. (Court Reporter none.) (Castle-Diaz, Tracy) (Entered: 01/10/2007)
21 NOTICE of Telephonic Status Conference: Status Conference set for 2/28/2007 01:30 PM in Las Cruces - Judge Carmen E. Garza Chambers before Magistrate Judge Carmen E. Garza. (Castle-Diaz, Tracy) (Entered: 02/27/2007)
22 Clerk's Minutes for proceedings held before Judge Carmen E. Garza : Status Conference held on 2/28/2007. (Castle-Diaz, Tracy) (Entered: 02/28/2007)
23 Unopposed MOTION to Stay Continuation by Dona Ana County Commissioners, Board of. (Carrillo, Raul) (Entered: 05/03/2007)
24 NOTICE by Dona Ana County Commissioners, Board of Change of Law Firm Name (Carrillo, Raul) (Entered: 05/03/2007)
25 ORDER by Judge Judith C. Herrera granting 23 Motion to Stay (ln) (Entered: 05/08/2007)
26 ORDER by Judge Carmen E. Garza Status Conference set for 6/22/2007 10:30 AM in Las Cruces - Judge Carmen E. Garza Chambers before Magistrate Judge Carmen E. Garza. (tc) (Entered: 06/08/2007)
27 Clerk's Minutes for proceedings held before Judge Carmen E. Garza : Status Conference held on 6/22/2007. (tc) (Entered: 06/25/2007)
28 ORDER by Judge Carmen E. Garza Telephonic Status Conference set for 7/23/2007 02:00 PM in Las Cruces - Judge Carmen E. Garza Chambers before Magistrate Judge Carmen E. Garza. (tc) (Entered: 06/25/2007)

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[CONTENT] May 16, 2006 | 42 | the U.S. District Court | New Mexico ||| County | Juvenile Detention Center | the Juvenile Detention Center ||| Fourth | the U.S. Constitution |||  ||| Detention Center ||| the District Court | Judith C. Herrera ||| Plaintiff | Dona Ana County |||  ||| Lira v. Dona Ana County |||  ||| November 21, 2007 | William Johnson | Lira ||| Amended Stipulation of Settlement | Defendants | $5.3 million ||| Adult Settlement Class | between March 7, 2003 and March 7, 2006 | Dona Ana ||| Juvenile Settlement | May 16, 2003 | May 16, 2006 | the Dona Ana Juvenile Detention Center ||| approximately 11,000 ||| $1,200 to $2,400 ||| 200,000 | 25,000 ||| 1,666,667 ||| Johnson | December 20, 2007 ||| May 20, 2008 | Johnson ||| 2011 | two ||| about $22,000 |||  [SUMMARY] On May 16, 2006  a juvenile detainee filed a class action civil rights suit under 42 U.S.C. § 1983 in the U.S. District Court for the District of New Mexico, challenging the strip search policy of the Dona Ana County Juvenile Detention Center.  Plaintiff alleged that the County and officials in charge of Juvenile Detention Center had a blanket policy of strip searching all pre-arraignment detainees upon their arrival at the Juvenile Detention Center, regardless of the offense charged, or whether there was any suspicion that the detainee possessed weapons or contraband.  The plaintiff, who was strip searched pursuant to this policy, alleged that that the policy violated the Fourth and Fourteenth Amendments to the U.S. Constitution.  Plaintiff sought compensatory and punitive damages, declaratory and injunctive relief, as well as class certification.  The County and Detention Center officials generally denied the allegations.

Shortly after the suit was filed, the District Court (Judge Judith C. Herrera) stayed the proceedings at the request of the parties so that they could pursue settlement negotiations.  Plaintiff's attorney had filed a similar class action on behalf of adult detainees that were strip searched at the Dona Ana County.  See JC-NM-0004: Lira v. Dona Ana County.  Negotiations were conducted on both the adult and juvenile cases.  On November 21, 2007, Judge William Johnson consolidated both cases, designating Lira as the lead case.

Shortly after the consolidation, the parties filed an Amended Stipulation of Settlement, under which the Defendants agreed to pay $5.3 million to resolve all class claims.  The stipulated Adult Settlement Class included all detainees who were strip searched between March 7, 2003 and March 7, 2006 at the Dona Ana County Jail prior to arraignment.  The stipulated Juvenile Settlement class included all detainees who were strip searched between May 16, 2003 and May 16, 2006 at the Dona Ana Juvenile Detention Center.  It was estimated that there were approximately 11,000 class members.  Individual claims were to be paid per an agreed upon distribution formula, with the range of expected pay-outs per individual claimant was estimated at $1,200 to $2,400. Representative plaintiffs would receive a total $200,000 or $25,000 per class representative.  $1,666,667 of the settlement fund was allocated for attorneys' fees.

Judge Johnson preliminarily approved the settlement on December 20, 2007. 

On May 20, 2008, the district court (Judge Johnson) issued a final approval of the settlement and a final judgment of dismissal in the case.  In 2011, the parties filed a Joint Motion to allow disbursement of remaining funds to two non-profit entities.  Although most of the funds had been successfully distributed, about $22,000 remained for claimants the administrator could not reach.  The court granted the motion.  
