Case 2:12-cv-00859-LMA-MBN Document 1292 Filed 07/13/20 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
___________________________________
)
LASHAWN JONES, ET AL,
)
Plaintiffs; and
)
UNITED STATES OF AMERICA
)
Plaintiffs in Intervention
)
)
v.
)
)
MARLIN N. GUSMAN, ET AL,
)
Defendants
)
___________________________________ )
)
MARLIN N. GUSMAN,
)
Third-Party Plaintiff
)
)
v.
)
)
THE CITY OF NEW ORLEANS,
)
Third-Party Defendant
)
____________________________________)

Civil Action No. 2:12-cv-00859
Section I, Division 5
Judge Lance M. Africk
Magistrate Judge Michael B. North

UNITED STATES AND PLAINTIFF CLASS’ RESPONSE TO
SHERIFF’S MOTION TO TERMINATE THE STIPULATED ORDER
FOR APPOINTMENT OF INDEPENDENT JAIL COMPLIANCE DIRECTOR
NOW INTO COURT, through undersigned counsel, come the United States and the
Plaintiff Class (hereinafter “Plaintiffs”) who submit this response to Defendant Orleans Parish
Sheriff Marlin Gusman’s Motion to Terminate the Stipulated Order for Appointment of
Independent Jail Compliance Director.1 For the reasons detailed below, Plaintiffs do not dispute
that sufficient “material progress with substantial compliance”2 with the Consent Judgment has

ECF No. 1274, with memorandum in support at ECF No. 1274-1. The Sheriff’s motion also sought the termination
of the consent judgment in its entirety. However, the Court dismissed that portion of the motion without prejudice.
ECF No. 1280.
2
ECF No. 1082.
1

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been achieved, meriting the termination of the Compliance Directorship. However, Plaintiffs
contest the Sheriff’s assertion that the Orleans Parish Sheriff’s Office (“OPSO”) has achieved full
compliance with the Consent Judgment3 and assert that there are current and ongoing violations of
class members’ constitutional rights which warrant the continued enforcement of the Consent
Judgment.
I.

Stipulated Order for Appointment of Independent Jail Compliance Director
This litigation was filed by prisoners in the custody of the OPSO in April 2012,4 alleging

harm and unconstitutional conditions of their confinement. The Sheriff, along with the Plaintiff
Class and the Plaintiff in Intervention United States, agreed to a Consent Judgment, which was
approved and entered by this Court in June 2013.5 In entering the Consent Judgment, this Court
ensured that the relief it provided was narrowly drawn, extended no further than necessary to
correct the violations of federal rights, and was the least intrusive means of doing so, as required
by the Prison Litigation Reform Act, 18 U.S.C. § 3626.6
In April 2016, Plaintiffs sought an order to show cause why the Sheriff should not be held
in contempt and for appointment of a receiver to implement the Consent Judgment.7 Plaintiffs
contended that, although the Consent Judgment had been in place for years, the Sheriff remained
seriously non-compliant with numerous provisions that impact the safety and health of the people
imprisoned in the Orleans Parish jail. Further, Plaintiffs argued that as the Sheriff was not making
adequate progress toward compliance, significant enforcement measures were necessary to
accelerate the pace of reform. The Sheriff opposed Plaintiffs’ motion, but subsequently agreed to

3

ECF Nos. 1274 and 1274-1.
ECF No. 1.
5
ECF No. 466.
6
See ECF No. 465.
7
ECF No. 1009.
4

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a settlement where an Independent Jail Compliance Director was appointed. The Compliance
Director has the final authority to operate the jail and was charged with doing so in a manner to
achieve timely, substantial compliance with the provisions of the Consent Judgment.8 This Court
entered the stipulated order on June 21, 2016.
II.

Material Progress with Substantial Compliance
As provided by the Stipulated Order, the Sheriff may file a motion to terminate the

Compliance Directorship “on the basis that the Compliance Director has enabled the Orleans
Parish Jail to achieve material progress with substantial compliance” with the Consent Judgment.9
Consistent with this provision, on May 27, 2020, the Sheriff moved this Court to terminate the
compliance directorship.
The Sheriff’s motion describes the improvements in substantial compliance ratings that
have occurred between Monitors’ Report No. 5,10 based on the February 2016 tour, and Monitors’
Report No. 11,11 based on the September 2019 tour.12 The Monitors had determined that only 10
of the 173 provisions of the Consent Judgment were in substantial compliance at the time of entry
of the Stipulated Order and the appointment of the Compliance Director. But as of their most
recent, filed report, the Monitors determined that 103 provisions were in substantial compliance.13
This improvement constitutes sufficient material progress towards substantial compliance.14

8

ECF No. 1082.
ECF No. 1082 at 15, § E.2.
10
ECF No. 996.
11
ECF No. 1259.
12
ECF No. 1274-1 at 42-43.
13
See ECF No. 1259, Report No. 11 of the Independent Monitors, at 6, Table 1 – Summary of Compliance – All
Compliance Reports.
14
Plaintiffs’ acknowledgment of material progress toward substantial compliance with provisions of the Consent
Judgment does not underestimate the reforms still needed to prevent ongoing harm to Plaintiff Class members, as
outlined in Section III. Important provisions of the Stipulated Order have not been achieved during the years of the
Compliance Directorship, including effective training on and full implementation of required policies, as well as the
development of quality assurance and auditing systems to effectively self-evaluate OPSO’s performance and to correct
deficiencies. See ECF No. 1082 at 3, 6-8. The termination of the Compliance Directorship should not substantially
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III.

Ongoing Harm and Rights Violations
This Court dismissed the Sheriff’s motion to terminate the Consent Judgment without

prejudice.15 As such, Plaintiffs’ response does not address that request for relief. But as the Sheriff
argues that “OPSO is in Substantial Compliance with the Consent Decree”16 as part of his request
to terminate the Compliance Directorship, Plaintiffs must record their opposition to the Sheriff’s
assertion.
In support of his motion, the Sheriff relies on the following assertion: “OPSO is in
Substantial Compliance with the Consent Decree, which warrants termination of the entirety of
the Consent Decree. Thus, at a minimum OPSO has achieved material progress with Substantial
Compliance . . . , which satisfies the standard necessary to terminate the Stipulated Agreement
under Section E(2).”17 Plaintiffs dispute the Sheriff’s representation that OPSO is in substantial
compliance with the Consent Judgment, and contend that there is ongoing harm and violations of
prisoners’ constitutional rights. The Court-appointed Monitors’ reports also confirm that OPSO
has not achieved substantial compliance with significant provisions of the Consent Judgment, that
only minimal progress has been made in some areas, and that significant work remains to be done
on crucial issues such as staffing, training, reporting, reducing violence and the necessity to use
force, and improving medical and mental health care.18
The language of the Stipulated Order specifically provides that the Sheriff, following any
termination of the Compliance Directorship, remains subject to the terms of the Consent Judgment

alter OPSO’s work related to these provisions, as they remain essential to full achievement of substantial compliance
with the Consent Judgment and to sustaining those reforms.
15
ECF No. 1280.
16
ECF No. 1274-1 at 42.
17
ECF No. 1274-1 at 42 (emphasis in original).
18
See, e.g., Report No. 11 of the Independent Monitors, ECF No. 1259 at 5. At the time of filing, Report No. 12 of
the Independent Monitors is in draft form, but has been reviewed by the parties.

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and the requirements for achieving substantial compliance with all provisions.19 Thus, the
Stipulated Order provides for the Sheriff to remain under the supervision of this Court, with
assistance from the Monitors, to ensure the jail continues to improve, with the ultimate goal of
maintaining a constitutionally-run facility.
IV.

Conclusion
While OPSO still has not reached substantial compliance with key components of the

Consent Judgment and serious risks to members of the Plaintiff Class remain, Plaintiffs concur
that the limited and negotiated standard of “material progress” with substantial compliance with
the provisions of the Consent Judgment has been achieved, and therefore do not oppose
termination of the Compliance Directorship. As operational control of the Orleans Parish jail
returns to the Sheriff, under the continued oversight of the Monitors and the authority of this Court,
OPSO must continue to work towards substantial and sustainable compliance pursuant to the terms
of the Consent Judgment and the requirements of the Constitution.

19

ECF No. 1082 at 15-16.

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FOR THE UNITED STATES:
PETER G. STRASSER
U.S. Attorney
Eastern District of Louisiana

ERIC S. DREIBAND
Assistant Attorney General
Civil Rights Division
STEVEN H. ROSENBAUM
Chief
Special Litigation Section

/s/ Theodore Carter III
THEODORE CARTER III,
(IL 6188964)
Assistant United States Attorney
U.S. Attorney’s Office
Eastern District of Louisiana
650 Poydras Street, Suite 1600
New Orleans, LA 70130

s/ George Eppsteiner
KERRY KRENTLER DEAN,
(DC 474260)
Acting Special Counsel (T.A.)
GEORGE EPPSTEINER (NC 42812)
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Telephone: (202) 305-4044
george.eppsteiner@usdoj.gov

FOR THE PLAINTIFF CLASS:
s/ Emily Washington
EMILY WASHINGTON, LSBN 34143
ELIZABETH CUMMING, LSBN 31685
ERIC FOLEY, LSBN 34199
MacArthur Justice Center
4400 S. Carrollton Avenue
New Orleans, LA 70119
(504) 620-2259
emily.washington@macarthurjustice.org

Date: July 13, 2020

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