Kelly v. Wengler

• Decision Date: 23 May 2016
• Docket Number: 14–35199.,Nos. 13–35972,s. 13–35972
• Citation: 822 F.3d 1085
• Parties: Joshua KELLY; Jose Pina; Andrew Ibarra; Ray Barrios; Randy Enzminger; Michael Miera; Prisoner A; Prisoner F, Individually and on behalf of a class of all other persons similarly situated, Plaintiffs–Appellees, v. Timothy WENGLER; Corrections Corporation of America, Inc., Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

822 F.3d 1085

Joshua KELLY; Jose Pina; Andrew Ibarra; Ray Barrios; Randy Enzminger; Michael Miera; Prisoner A; Prisoner F, Individually and on behalf of a class of all other persons similarly situated, Plaintiffs–Appellees
v.
Timothy WENGLER; Corrections Corporation of America, Inc., Defendants–Appellants.

Nos. 13–35972
14–35199.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 13, 2015.
Filed May 23, 2016.

822 F.3d 1090

Nicholas D. Acedo (argued), Daniel P. Struck, Tara B. Zoellner, Struck Wienecke & Love, P.L.C., Chandler, AZ, for Defendants–Appellants.

Stephen L. Pevar (argued), American Civil Liberties Union Foundation, Hartford, CT; Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, ID, for Plaintiffs–Appellees.

822 F.3d 1091

Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and CLAUDIA WILKEN,^* Senior District Judge.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs–Appellees (“Plaintiffs”) brought a putative class action in the District of Idaho under 42 U.S.C. § 1983 against Defendants–Appellants Timothy Wengler and the Corrections Corporation of America, Inc. (collectively “CCA”), alleging that CCA staffed the Idaho Corrections Center (“ICC”) with an inadequate number of security guards, in deliberate indifference to the health and safety of prisoners. The parties settled, and CCA agreed to staff ICC with a specified number of security personnel. The district court dismissed the case with prejudice, incorporating the parties' settlement agreement into its dismissal order.

After learning that staffing reports at ICC had been falsified over a seven-month post-settlement period, Plaintiffs moved the district court to hold CCA in contempt for violating the dismissal order. After a two-day hearing, the district court found CCA in contempt, ordered remedial measures, and awarded Plaintiffs attorney's fees and costs. CCA challenges various aspects of the district court's orders, including the award of attorney's fees. We affirm.

I. Background

A. Initial Suit and Settlement

ICC is a state-owned prison in Kuna, Idaho. When this suit was filed in April 2011, CCA operated ICC under a contract with the Idaho Department of Corrections (“IDOC”). Plaintiffs' complaint alleged CCA failed to hire an adequate number of security guards and, as a result, ICC staff failed to protect inmates from assault by other inmates. The complaint alleged CCA was deliberately indifferent to the safety and health of ICC inmates in violation of the Eighth Amendment. Plaintiffs requested declaratory relief and an injunction ordering, inter alia, that CCA hire an adequate number of security personnel.

In September 2011, the parties met with a judicial mediator, District Judge David O. Carter of the Central District of California. They reached a settlement after three days of negotiation. In a signed settlement agreement, CCA agreed to comply with the staffing requirements contained in its contract with IDOC. CCA also agreed to provide three additional officers, known as the “Warden's Crew,” whom the warden could use in his discretion to enhance security. The parties signed a stipulation for dismissal. The stipulation incorporated the settlement agreement, which was attached as an exhibit to the stipulation. District Judge Edward J. Lodge of the District of Idaho signed an order on September 20, 2011, dismissing the case with prejudice. His order explicitly incorporated the parties' stipulation.

B. Order to Show Cause

Between December 2012 and January 2013, CCA and IDOC received reports that staffing records at ICC had been falsified during the post-settlement period. IDOC initiated an audit of ICC's staffing records, and CCA hired an investigator. On April 11, 2013, IDOC issued a press release, stating that CCA's employees had falsified staffing records to represent that

822 F.3d 1092

correctional officers were staffing mandatory security posts when, in fact, those posts had been vacant for a total of nearly 4,800 hours during a seven-month period in 2012. That same day, CCA issued its own press release stating there were “some inaccuracies” in its staffing records.

In June 2013, Plaintiffs moved in the district court for an order to show cause (“OSC”) why CCA should not be held in contempt for violating the court's dismissal order. The district court referred the motion to Judge Carter, sitting by special designation in the District of Idaho. CCA opposed the motion, partly on the ground that the district court did not have jurisdiction to enforce the settlement agreement. The district court held it had jurisdiction to enforce the settlement agreement and issued the requested OSC.

C. Contempt Order

After a two-day hearing, the district court entered an order on September 16, 2013, holding CCA in contempt and ordering remedial measures. The order was entered almost exactly two years after the entry of the order dismissing the suit and incorporating the settlement agreement.

The district court found CCA had materially breached the settlement agreement and, indeed, that there was “serious doubt” whether CCA had ever substantially complied with it. The court relied in part on CCA's own investigative report, which indicated that from April to October 2012 approximately 4,800 mandatory post hours had been left vacant. The reported 4,800–hour figure included only night-shift hours during that seven-month period. In addition, evidence presented at the hearing showed vacancies had occurred during day-shifts over the period covered by the report, and additional vacancies had occurred after that period. For example, with respect to vacancies during the period covered by the report, ICC Warden (and Defendant) Timothy Wengler testified that CCA's investigation revealed roughly 150 vacant day-shift hours in May 2012 and 300 vacant day-shift hours in June 2012. IDOC official Timothy Higgins testified that IDOC had received reports from inmates at ICC that “the only time there was ... full staffing was when our monitors were there.” Higgins testified, with respect to vacancies after the period covered by the report, that daily staffing reports showed vacant mandatory post hours at ICC for June and July 2013 ranged from 18 to 41 hours per day.

The district court found further that CCA had “compelling reasons to regularly and thoroughly check that” it was in compliance, and that it knew or should have known it was in material breach of the settlement agreement. Before the parties executed the settlement agreement, multiple sources had informed the warden and assistant wardens at ICC that the facility was experiencing acute staffing shortages, and indications of ICC's staffing difficulties continued even after the parties entered into the settlement agreement. According to CCA's internal investigative report, members of ICC's senior management were aware of acute personnel shortages in the post-settlement period, during the spring, summer, and fall of 2012. The report was corroborated by several witnesses who testified they informed CCA officials, including Warden Wengler, about staffing shortages.

Finally, the district court found CCA had not taken all reasonable steps to comply with the settlement agreement. For example, Higgins testified that CCA's reports of shift rosters indicated whether a post was covered by two or more employees but did not indicate the hours worked by each employee. This manner of reporting made it difficult to determine whether an employee was reported as having been

822 F.3d 1093

simultaneously posted at more than one post (“double posted”). Warden Wengler, Assistant Warden Thomas Kessler, and Managing Director Kevin Myers testified that they neither checked for vacancies nor reviewed staffing records to ensure that the prison was fully staffed.

CCA eventually took a number of steps to ensure compliance with the settlement agreement, but it did so only after there had been an investigation into its staffing and recordkeeping. After the investigation, CCA implemented a “corrective action plan” including hiring more guards, maintaining more detailed staffing records, comparing staffing rosters with actual staffing, maintaining open lines of communication about potential staffing difficulties, and reviewing incidents resulting in vacancies. The district court found CCA should have taken these measures before the investigation.

The district court ordered several remedial measures. The settlement agreement was supposed to last for only two years, but the court extended it for another two years. The court appointed an independent monitor, to be paid by CCA. Finally, the court established a fine schedule. Under the schedule, CCA would be required to pay $100 for each hour that a mandatory post was left vacant in excess of twelve hours in any calendar month. The court indicated it would increase the amount of the fines, if $100 per hour proved insufficient to compel compliance. In the end, the court never imposed fines for noncompliance. The court declined to impose several remedies requested by Plaintiffs, including ordering CCA to discipline more of its...