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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 policy, § IV.F.8-16. shall take steps to advise all personnel of the These definitions are consistent with the policy. definition of "sexual relations in a detention facility." ACLF stresses that the inmates must be aware that "even unforced sex is absolutely prohibited by DOC." The DOC PREA Policy is substantially compliant with the prohibition of

consensual and non-consensual sexual activity in the prison. Sections IV.A., IV.F., and V.C.1.a of the DOC PREA Policy, read as a whole, do not suggest exceptions to the Zero Tolerance policy for any type of sexual activity. Paragraph 4(a)(iii) - Reporting Sexual Following the testimony presented at the oral Abuse: argument on October 8, 2013, counsel for ACLF indicated that this paragraph is no longer in BWCI will provide multiple internal ways dispute. for inmates to easily, privately, and securely report SA, retaliation by other inmates or staff for reporting SA, and staff neglect or violation of responsibilities that may have contributed to an incident of SA. This will include at least one way for inmates to report the abuse to an entity office outside of BWCI.... The multiple internal ways shall include the following: iii. Calling a toll free number... Paragraph 4(a)(iii) - Reporting Sexual The State Defendants are not in compliance with Abuse: this requirement. Paragraph 12 of the Warden's affidavit describes weekly meetings, but does not iii. All calls to the toll free number shall be identify a log in which calls made to the toll free recorded in a log, and a copy of the log shall number are recorded. (Ex. 1 at ¶ 12) The be sent to the PREA coordinator on a December 24, 2012 letter states that "[t]he hotline monthly basis. messages are not logged, " and an investigation log for a particular incident is only opened "[i]f the message warrants an investigation." (Ex. 57 at¶ 6) The evidence cited by the State Defendants reflects that investigators respond to hotline messages on a regular basis, but this does not reflect substantial compliance with the requirements of the Order. By executing the Order, the State Defendants specifically agreed to maintain a written log of hotline messages.

Paragraph 5 - Protection against Counsel for ACLF indicated that the portion of Retaliation this paragraph regarding housing changes to protect women who report abuse from retaliation DOC will protect all inmates and staff who is compliant in light of the DOC Sexual Assault report sexual abuse or cooperate with sexual Response Plan adopted in September 2013. abuse investigations from retaliation by However, ACLF objects to the elimination of the other inmates or staff. DOC will employ 90-day monitoring requirement for inmates who multiple protection measures, such as have made reports determined by DOC to be housing changes or transfers for inmate "unfounded." victims or abusers, removal of alleged staff or inmate abusers from contact with victims, The State Defendants have failed to comply with and emotional support services for inmates the remaining requirements of this paragraph. or staff who fear retaliation for reporting The Order provides that "DOC will protect all sexual abuse or cooperating with inmates and staff who report sexual abuse... investigations. DOC will monitor the from retaliation by other inmates or staff." conduct and/or treatment of inmates or staff However, the DOC PREA Policy provides that who have reported sexual abuse or "the obligation will terminate if the allegation is cooperated with investigations, including determined to be unfounded." (Ex. 32 at§ any inmate disciplinary reports, housing, or V.C.6.g) Although the State Defendants allege program changes, for at least 90 days that it is consistent with PREA regulations, this following their report or cooperation to see exception is inconsistent with the language of the if there are changes that may suggest Order. By consenting to the Order, the State possible retaliation by inmates or staff. As Defendants agreed that "the PREA standards will part of its efforts to determine if retaliation not be used to materially alter any provision of has occurred, DOC will follow up with the this order and Agreement." (D.I. 123, Ex. A at¶ inmate. When retaliation is confirmed, 45(b)) The State Defendants did not raise any DOC shall immediately take steps to protect conflict between the PREA regulations and the the inmate or staff member. terms of the Order within the 90-day period set forth in the Order. ( Id. , D.I. 140 at 3 n.1) The intent of the Order is to protect all reporters of sexual abuse against retaliation. For example, there may be an instance where one inmate discloses an incident to another inmate, who then reports it. There should be protection for the reporting inmate and the alleged victim of abuse, even if the report is later determined to be "unfounded." Paragraph 6 - Third-party reporting: The State Defendants have failed to comply with the requirements of this paragraph. Paragraph 6 DOC will receive and investigate all third-party requires that written notifications be sent to third-party complaints of sexual abuse, and will complainants, but the State Defendants have maintain records of the disposition of such produced no written evidence to show complaints. DOC will acknowledge receipt compliance. Moreover, at oral argument, the of the third party complaint, in writing to the Warden testified that written notifications are sent third-party complainant, and will tell the to third-party complainants only when the

third party complainant, in writing, when allegations are substantiated. (10/8/13 Tr. at the investigation has been completed. DOC 30: 15-24) This is inconsistent with the Order, will publicly distribute information on how which does not limit the written notifications to to report sexual abuse on behalf of an substantiated cases. inmate. Paragraph 7 - Staff and facility head The State Defendants have failed to substantially reporting duties: comply with the requirements of this paragraph. ACLF correctly argues that substantial All staff members are required to report compliance would be achieved if§ V.C.6.g is immediately to the PREA Coordinator and removed. Section V.C.6 of the DOC PREA DOC Internal Affairs any knowledge, Policy is intended to effectuate the reporting suspicion, or information they receive requirements of paragraph 7 of the Order. regarding... (b) retaliation against inmates Subparagraph g of § V.C.6, which states that or staff who reported alleged SA;.... "[t]he Department's obligation to monitor will Except as prohibited by law or by any terminate if the allegation is determined to be collective bargaining agreement, the reports, unfounded, " relates to monitoring, not reporting including the reporting staff member's sexual abuse. To leave it in the policy would identity, will be confidential. generate confusion and an inconsistency with the requirement in paragraph 5 of the Order for monitoring all sex abuse cases. Once subparagraph g is removed, the State Defendants will be in substantial compliance. Section V.C.6.b, which requires "all staff to report immediately any retaliation against staff or offenders that may report such an incident of sexual abuse, " substantially complies with paragraph 7 of the Order. Paragraph 10(a) - Responding to The State Defendants have failed to substantially Assertions of Sexual Abuse or Retaliation comply with the requirements of this paragraph. for Reporting SA: It is undisputed that the PREA policies do not require delivery of sexual abuse complaints and a. Immediately upon receipt of a grievance reports to the PREA Coordinator. The State that asserts SA, retaliation by other inmates Defendants rely on the testimony of Warden or staff for reporting SA, or staff neglect or Caple to show compliance with this provision. violation of responsibilities that may have (10/8/13 Tr. at 9:20-48:25) Absent a written contributed to an incident of SA, the Inmate policy, there are no reasonable means to ensure Grievance Chair shall deliver a copy of the continuing substantial compliance with paragraph grievance to the PREA Coordinator. Upon 10(a) of the Order. Receipt of an SA Complaint, the person who receives it shall deliver a copy to the PREA As Warden Caple testified, written policies are Coordinator. Upon preparation of an SA "important because it gives staff a guideline, " and Report, the person who prepares it shall although the guideline "is not an end all, be all, " deliver it to the PREA Coordinator. they are important for staff to know what they Transmittal of the foregoing documents to have to do. (10/8/13 Tr. at 12:4-19) Counsel for the PREA Coordinator may be made the State Defendants also acknowledged that, "we

electronically. The PREA Coordinator shall put [certain requirements] in writing to reflect, so enter all of the foregoing grievances, SA everybody understands what needs to be done." Complaints, and SA Reports into a log. (10/8113 Tr. at 91:1-3) A written policy would help eliminate uncertainty or confusion among staff members and would hold officials and staff accountable for ensuring compliance.[2] Inclusion of this requirement in a written policy would be consistent with the intent of the Order and would be a simple way to resolve the dispute. Paragraph 10(b) - Responding to Counsel for ACLF indicated that this paragraph is Assertions of Sexual Abuse or Retaliation no longer in dispute in light of the DOC PREA for Reporting SA: policy adopted on September 24, 2013. b. Within 24 hours of receipt by the Inmate Grievance Chair or the PREA Coordinator, a copy of any grievance relating to claims of SA, retaliation by other inmates or staff for reporting SA, or staff neglect or violation of responsibilities that may have contributed to an incident of SA, shall be delivered to the PREA Coordinator and to DOC Internal Affairs. Paragraph 13 - Duty to investigate: The State Defendants have failed to substantially comply with this paragraph of the Order. DOC will... notify alleged victims in Ensuring that investigations are completed and writing of investigation outcomes and any victims are informed is mandated under the disciplinary or criminal sanctions, regardless Order. As previously noted in the discussion of of the source of the allegation. All Paragraph 10(a), supra, the State Defendants investigations will be carried through to a acknowledged the importance of written policies final determination by DOC regardless of during oral argument. A written policy would whether the allegation is substantiated or not help eliminate uncertainty or confusion among substantiated, or the alleged abuser or victim staff members and would hold officials and staff

remains at the facility. accountable for ensuring compliance. Inclusion in a written policy would be consistent with the intent of the Order and would be a simple way to resolve the dispute. See supra n.2. Paragraph 14(b) - Criminal The State Defendants substantially comply with investigations and DOC Critical Incident this paragraph of the Order. Section V.C.7.b of Review: the DOC PREA Policy provides that, "[w]here allegations are referred for criminal investigations b. Where there is evidence of conduct that by the Delaware State Police, the Department may constitute a crime, the Delaware State shall ensure that the cases are referred promptly, Police or local police agency will be and that a designated staff representative follows contacted to assume the investigation. the case until it is determined to be substantiated, When outside law enforcement agencies unsubstantiated, or unfounded." Section V.C.2.d investigate sexual abuse, DOC will keep of the DOC PREA Policy provides that "[t]he abreast of the investigation and cooperate Department shall conduct an administrative with outside investigators. At the and/or criminal investigation for each allegation conclusion of the DSP investigation, DOC of sexual abuse." will review the findings and determine if further action is necessary. Paragraph 14(c) - Criminal The State Defendants have substantially complied investigations and DOC Critical Incident with this requirement. Section V.C.10 of the Review: DOC PREA Policy states that DOC "shall conduct a sexual abuse incident review at the c. All allegations of SA will be critically conclusion of every sexual abuse investigation, reviewed, and all reviews will be pursued within 30 days, including where the allegation has until a full investigation has been not been substantiated." ACLF alleges that the completed, whether or not DOC determines requirement is not met because the DOC PREA that the allegation is unsubstantiated. Policy adds the qualifier, "unless the allegation has been determined to be unfounded." Paragraph 14(c) only addresses substantiated and unsubstantiated cases. It does not set forth any requirements regarding how the State Defendants must address unfounded cases. As a practical matter, no beneficial goal consistent with protection against sexual abuse is likely to be advanced by requiring critical reviews of unfounded reports. Paragraph 14(d) - Criminal The State Defendants have failed to substantially investigations and DOC Critical Incident comply with this requirement. Section V.C.10.a Review: of the DOC PREA Policy only requires that the critical review period be initiated within 30 days d. Critical review will be initiated and of the conclusion of the investigation, with no completed within the timeframes established timeframe set for completion. The DOC Sexual by the highest ranking facility official, and Abuse Response Plan provides that, "[u]pon the highest ranking official must approve completion of the investigation, the Warden will the final critical review. ensure that a sexual abuse incident review team

meets, within 30 days of the investigation being completed, to discuss the case." Again, this meets the requirement for establishing a timeframe in which to initiate critical review, but there is no timeframe for completing critical review. The requirement for approval by the Warden is sufficiently met. The Sexual Assault/Critical Incident Review form[3] requires signatures from the Warden "or Designee." This indicates that, before the critical review is considered complete, approval by the Warden is required. Paragraph 15(a) - Administrative Counsel for ACLF indicated that this paragraph is investigations: no longer in dispute in light of the Guidelines and Strategic Plan (the "Guidelines").[4] (D.I. 140 at 2) a. An investigative protocol shall be developed. It shall provide for involvement of the mental health staff that includes providing support to the women participating in the investigation; Paragraph 15(c) - Administrative The State Defendants are not in compliance with investigations: this requirement of the Order. The DOC PREA Policy and Guidelines do not include a c. Administrative investigations will be requirement of written reports of the documented in written reports that include a investigations. This is not in keeping with the description of the physical and testimonial Order. The parties conducting administrative evidence and the reasoning behind investigations must be made aware that a written credibility assessments. report of the investigation is required. The State Defendants have described their "practice" of submission of an incident report on a database. (10/8113 Tr. at 51: 1-20) However, to ensure consistent compliance with this practice, as required by the Order, it should be incorporated in a written policy. Paragraph 15(d) - Administrative Counsel for ACLF indicated that this paragraph is investigations: no longer in dispute in light of the DOC PREA policy adopted on September 24, 2013. d. Allegations of sexual abuse shall be determined to be substantiated if supported by a preponderance of the evidence.

Paragraph 15(e) - Administrative Following the testimony presented at the oral investigations: argument on October 8, 2013, counsel for ACLF indicated that this paragraph is no longer in e. BWCI/DOC shall provide regular PREA dispute. training to all investigators that covers: (a) an overview of PREA including investigative national standards; (b) an overview of best practices in investigating sexual abuse in custodial settings;... (d) a study of the actual case examples; the role of medical and mental health in the investigative process; (f) investigative techniques for investigating sexual abuse to include evidence collection;... and (h) the dynamics of post-traumatic stress on the facts of investigations; Paragraph 15(f) - Administrative Following the testimony presented at the oral investigations: argument on October 8, 2013, counsel for ACLF indicated that this paragraph is no longer in DOC shall exercise its good faith efforts to dispute. insure that all investigators regularly attend a nationally recognized training program in Investigating Sexual Misconduct. Paragraph 17 - Agreements with outside The State Defendants have substantially complied public entities and community service with this requirement of the Order, but additional providers: follow-up is needed. As of the oral argument held on October 8, 2013, the State Defendants did not DOC will also maintain agreements with have a fully executed contract with a service community service providers to: (1) provide provider. However, the testimony reflects that inmates with confidential emotional support steps are being taken to execute a contract. services related to sexual abuse; and (2) help (10/8/13 Tr. at 38:8-19) victims of sexual abuse during their transition from incarceration to the community.

Paragraph 18 - Grievance Protocols: The State Defendants are not in compliance with this requirement of the Order. The Order requires b. The procedures for instituting grievances that the grievance procedures be included in the and appealing from adverse grievance Inmate Handbook.[5] Including the information in decisions shall be (1) included in the Inmate a PowerPoint presentation shown to inmates Manual.... during orientation fails to satisfy the requirements of the Order. Inclusion in the Inmate Handbook would enable the inmates to refer back to the procedures as needed. The PowerPoint presentation does not satisfy that goal. Paragraph 20(b) - Precautionary The State Defendants have substantially complied Actions: with this requirement of the Order, but additional follow-up is needed. DOC has not yet installed DOC and BWCI shall take the following the cameras, but the testimony at the oral steps to address security concerns at BWCI: argument on October 8, 2013 reflects that steps b. Use and install cameras to monitor the are being taken to install the cameras. (10/8/13 units, and install sufficient cameras so that Tr. at 39:10-40:1) Specifically, the wiring and camera surveillance will allow posted staff installation of the conduit is complete, but the members to see the housing units, kitchen installation of the cameras is scheduled for mid-November. and common areas accessed by inmates. Paragraph 20(h) - Precautionary The State Defendants have failed to substantially Actions: comply with this requirement, despite the efforts to adjust staff schedules described by Warden DOC and BWCI shall take the following Caple in her testimony. (10/8/13 Tr. at 40:9-42:10) steps to address security concerns at BWCI: The cited lack of funding does not excuse non-compliance after the fact. The adequacy of h. Staffing shall be adjusted in an effort to staff and funding are issues the State Defendants ensure that no employee shall, without being were bound to analyze at the time the Order was accompanied by a second employee, enter a negotiated and adopted. cell containing a single inmate when the other inmates and staff have left the proximity of the inmate being supervised, with the exception of exigent circumstances for inmate protection or institutional security concerns where there is no reasonable opportunity for the employee to be accompanied by a second employee; Paragraph 34 - Access to emergency Counsel for ACLF indicated that this paragraph is medical and mental health services: no longer in dispute in light of the DOC PREA policy adopted on September 24, 2013. Victims of sexual abuse will have timely, unimpeded access to... crisis intervention services, the nature and scope of which are

determined by medical and mental health practitioners according to their professional judgment. Treatment services must be provided free of charge to the victim and regardless of whether the victim names the abuser. If no qualified medical or mental health practitioners are on duty at the time a report of recent abuse is made, security staff first responders will take preliminary steps to protect the victim and immediately notify the appropriate medical and mental health practitioners. Paragraph 35 - Ongoing medical and The State Defendants have substantially complied mental health care for sexual abuse with this requirement of the Order. Section victims and sex offenders: V.C.9.b provides that, if the initial screenings "indicate that an offender has previously DOC will conduct a mental health perpetrated sexual abuse, whether it occurred in evaluation of all known sex offenders and an institutional setting or in the community, staff provide treatment, as deemed necessary by shall ensure that the offender is offered a follow-up qualified mental health practitioners. meeting with a mental health practitioner...." ACLF suggests that adding the sentence "The treatment deemed necessary by a qualified mental health practitioner shall be provided to the offender" to § V.C.9.b will cure the deficiency. The DOC PREA Policy is sufficient to meet the "substantial compliance" standard in this instance because it provides for treatment "as deemed necessary by qualified mental health practitioners." Paragraph 36 - Data collection: Following the testimony presented at the oral argument on October 8, 2013, counsel for ACLF DOC will collect accurate, uniform data for indicated that this paragraph is no longer in every reported incident of sexual abuse dispute. ("Sexual Abuse Data") using a standardized instrument and set of definitions. DOC will aggregate the incident-based sexual abuse data at least annually. The incident-based data collected will include, at a minimum, the data necessary to answer all questions, as required by federal PREA regulations. Data will be obtained from multiple sources, including reports, investigation files, and sexual abuse incident reviews. Paragraph 38 - Sexual abuse incident The State Defendants are not in substantial reviews: compliance with this requirement. The Order requires that incidents of sexual abuse be

DOC will treat all instances of sexual abuse examined by upper management officials, but the as critical incidents to be examined by a Sexual Assault Response Plan[6] does not require team of upper management officials, with the involvement of upper management officials. input from line supervisors, investigators, The Warden's responsibility to make sure that and medical/mental health practitioners. DOC staff meets to discuss the case is insufficient The review team will evaluate each incident to meet the requirements of the Order to establish of sexual abuse to identify any policy, a "team of upper management officials" to training, or other issues related to the evaluate each incident. The fact that a written incident that indicate a need to change policy exists, but falls short of the Order's policy or practice to better prevent, detect, requirements, supports the fact that the State and/or respond to incidents of sexual abuse. Defendants are not in compliance with the Order. The review team will also consider whether The written policy contained in the Sexual incidents were motivated by racial or other Assault Response Plan should be modified to group dynamics at the facility. When reflect the requirements of paragraph 38 of the incidents are determined to be motivated by Order. racial or other group dynamics, upper management officials will immediately notify the Warden of BWCI and begin taking steps to rectify those underlying problems. The review team will prepare a report of its findings and recommendations for improvement and submit it to the Warden. When problems or needs are identified, DOC must take effective corrective action. Paragraph 40 - Data storage, publication, Following the testimony presented at the oral and destruction: argument on October 8, 2013, counsel for ACLF indicated that this paragraph is no longer in DOC will ensure that the collected Sexual dispute. Abuse Data are properly stored, securely retained, and protected. DOC will make all aggregated sexual abuse data, from facilities under its direct control and those with which it contracts, readily available to the public at least annually through its Web site or through other means. Before making aggregated sexual abuse data publicly available, DOC will remove all personal identifiers from the data. DOC will maintain sexual abuse data for at least 10 years after the date of its initial collection unless Federal, State, or local law allows for the disposal of official information in less than 10 years.

B. Diligence, Reasonableness, and Good Faith

ACLF has failed to meet the heavy burden of showing that the conduct of the State Defendants constitutes bad faith. See Buddy's Plant Plus Corp. v. Centimark Corp., 2012 WL 5254910, at *3 (W.D. Pa. Oct. 24, 2012) ("Questionable practices or conduct on counsel's part by failing to communicate' with the court or opposing counsel does not rise to the level of bad faith.'" (quoting Ciocca v. B.J's Wholesale Club, Inc., 2011 WL 3563560, at *5 (E.D. Pa. Aug. 12, 2011)). The State Defendants have made significant efforts toward achieving compliance with the Order as a whole. Although the State Defendants' efforts fall short of full compliance for the reasons previously stated, the court cannot conclude that the State Defendants' failure to achieve substantial compliance on certain specified requirements amounts to bad faith. ACLF acknowledged that the State Defendants have put a great deal of effort into achieving compliance (10/8/13 Tr. at 111:23-112:2; 74:2-4), and addressed the issue of good faith only as a secondary matter in accordance with the court's referral order, emphasizing that its primary concern was obtaining the State Defendants' full compliance with the court's Order ( Id. at 71:22-72:1; 73:24-74:1). The evidence before the court supports a conclusion that any apparent lapses in responsiveness by the State Defendants stemmed from the parties' different interpretations of the ongoing communications and meetings, rather than a deliberate attempt by the State Defendants to avoid compliance with the Order. ( Id. at 75:16-19)

IV. CONCLUSION

For the foregoing reasons, I recommend that the court grant in part and deny in part ACLF's motion to compel as follows:

A. The motion to compel should be granted as it pertains to paragraphs 4(a)(iii), 5, 6, 7, 10(a), 13, 14(d), 15(c), 18, 20(h), and 38 of the Order.

B. The motion to compel should be denied as it pertains to paragraphs 1, 10(b), 14(b), 14(c), 15(a), 15(d), 15(e), 15(f), 17, 20(b), 34, 35, 36, and 40 of the Order.

C. The State Defendants shall be given sixty (60) days from the date of this Report and Recommendation to comply with the remaining provisions of the Order.

D. Upon completion of the PREA audit, the State Defendants shall provide copies of the audit report to the court and to ACLF.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed.R.Civ.P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed.R.Civ.P. 72(b)(2). The objections and responses to the objections are limited to ten (10) pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F.App'x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

The parties are directed to the court's Standing Order in Non-ProSe Matters for Objections Filed Under Fed.R.Civ.P. 72, dated November 16, 2009, a copy of which is available on the court's website, www.ded.uscourts.gov.


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