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Aclf of Delaware v. Department of Correction

United States District Court, Third Circuit

October 23, 2013

ACLF OF DELAWARE, Plaintiff,
v.
DEPARTMENT OF CORRECTION, STATE OF DELAWARE, Defendants.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Presently before the court in this prisoner civil rights action is the Motion to Compel Enforcement of Order and Agreement brought by plaintiff, American Civil Liberties Union Foundation of Delaware ("ACLF"). (D.I. 124) Defendants Department of Correction ("DOC") and the Baylor Womens' Correctional Institution ("BWCI" and, together with DOC, "State Defendants") oppose ACLF's motion. (D.I. 125) For the following reasons, I recommend that the court grant in part and deny in part ACLF's motion to compel.

II. BACKGROUND

Michelle Bloothoofd, a former inmate at BWCI, initiated the instant prisoner civil rights action on March 17, 2009, alleging that she was forcibly sexually assaulted by a former correctional officer on October 12, 2008 while she was an inmate at BWCI. (D.I. 2) On August 18, 2011, the parties mediated the dispute before a Magistrate Judge of this court. The Order and Agreement (the "Order") is the product of lengthy and industrious efforts by the parties to resolve the litigation and set a course to prevent similar incidents in the future. (D.I. 123) The stated goal of the Order was to require that DOC establish policies regarding the prevention of sexual abuse within one year of the Order's execution. ( Id. at 1) The court entered the Order on September 19, 2011.

The State Defendants failed to achieve full compliance with the Order within the one-year time frame. (D.I. 124 at 2; D.I. 125 at 7-8) The parties exchanged communications to discuss plans for compliance through December 2012, and agreed upon several extensions of time. (Ex. 57) However, DOC failed to respond to subsequent communications from ACLF in January and February 2013. (Exs. 58-60) As a result, ACLF filed the instant Motion to Compel Enforcement of Order and Agreement on February 27, 2013. (D.I. 124) ACLF cited twenty-six instances of non-compliance with the Order. (D.I. 137)

On July 23, 2013, the court entered an order referring the instant matter to the undersigned Magistrate Judge for purposes of determining whether: "(a) plaintiffs expectations are reasonable and consistent with the intent of the order; and (b) defendant is in substantial compliance with the order or working diligently, reasonably and in good faith toward that end." (D.I. 132)

III. DISCUSSION

A. Substantial Compliance and Reasonableness of ACLF's Expectations

To demonstrate substantial compliance, a party must show that it "(1) has taken all reasonable steps to comply with the court order at issue, and (2) has violated the order in a manner that is merely technical' or inadvertent.'" F. T C. v. Lane Labs-USA, Inc., 624 F.3d 575, 589 (3d Cir. 2010) (quoting Robin Woods, 28 F.3d at 399). ACLF concedes that the State Defendants have made significant progress toward achieving compliance with the requirements of the Order as a whole. (10/8/13 Tr. at 111:23-112:2; 74:2-4) However, the State Defendants have not yet taken all reasonable steps to comply with several of the Order's requirements.

Compliance with the remaining requirements of the Order is important to fulfill the Order's intention. The overarching purpose of the Order, as set forth in its opening paragraph, is the "prevention of sexual abuse." (D.I. 123 at 1) The comprehensive list of detailed requirements aims to achieve this goal by both eliminating opportunities for abuse to occur and holding prison officials and employees accountable for following proper procedures. The State Defendants agreed to the requirements of the Order, and agreed to achieve full compliance within one year, when they executed the Order on September 16, 2011. ( Id. at 21)

The recommendations below are made in view of the language and purpose of the Order, as well as the State Defendants' agreement and consent to be bound by the Order. The recommended disposition on each disputed paragraph is reflected in the subsequent chart.

LANGUAGE OF ORDER RECOMMENDED DISPOSITION Paragraph 1 - Zero Tolerance of Sexual The State Defendants have substantially complied Abuse policy and introductory paragraph with this provision. ACLF claims that § IV.F. of of Order: DOC PREA Policy 8.60 (the "DOC PREA Policy")[1] is deficient in that it fails to incorporate DOC shall be deemed to have accepted, and the § IV.A definition of "sexual relations in a will comply with, the following policies detention facility" among the listed definitions of regarding the prevention of sexual abuse, "sexual abuse" in § IV.F. The Order requires the which includes any sexual activity between adoption of a written Zero Tolerance of Sexual any employee of DOC or DOC contractor or Abuse policy, which has been done. Section vendor... and any inmate V.C.1.a. of the DOC PREA Policy provides that "[t]here is Zero-Tolerance for any type of sexual 1. Adopt and enforce a written Zero abuse between offenders and staff." The policy Tolerance of Sexual Abuse policy, which defines "sexual abuse" to include "[s]exual abuse shall include SA [sexual abuse] prevention, of an inmate, detainee, or resident by a staff detection, and response policies and member, contractor, or volunteer... with or procedures and which shall be applicable to without consent of the inmate, detainee, or all DOC correctional institutions. DOC resident." DOC PREA ...


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