Dan McKibben, et al. v. John McMahon, et al.
Alternative Lifestyle Tank ("ALT") Settlement
Case No. 14-2171-JGB-SP

Frequently Asked Questions - Original Class

 

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  • This lawsuit challenged the treatment of gay, bisexual and transgender (“GBT”) inmates who were housed in the ALT. The lawsuit claimed that GBT inmates were discriminated against in various ways, including, among other things, that GBT inmates 1) were automatically placed in the ALT if they self-identified as GBT; 2) would have been at risk for their safety if admitted to the general population as openly GBT inmates because the San Bernardino County Sheriff’s Department did not have plans or programs to ensure their safety; 3) had no or inadequate PREA programs in place to protect GBT inmates or address particular vulnerabilities of GBT inmates placed in the general population; 4) were limited in their time-out-of-cell generally to an hour and a half per day, and often less, in contrast to similarly situated (by classification or sentencing status) general population inmates; 5) were denied the same work opportunities that were provided to similarly situated (by classification or sentencing status) general population inmates; 6) were denied the same programming opportunities* that were provided to similarly situated (by classification or sentencing status) general population inmates; and 7) were denied a comparable range of religious services to those available to the general population.


    *Programming opportunities include classes in anger management, thinking for change, living skills, parenting skills, substance abuse prevention, GED preparation, high school diploma, literacy, automobile mechanics, bakery occupations, culinary/reading enrichment, computer skills, HVAC training, fire camp vocational training, employment readiness, and re-entry services.

  • You are a member of the Damages Class if you were housed in the ALT between October 22, 2012 and March 31, 2018. The extent of your compensation is based on a formula that weighs various conditions that applied to ALT residents. It is described further in FAQ 7 below. Whether you are a Class Member is determined solely from the records of the San Bernardino County Sheriff’s Department.

  • You have a right to know about a proposed Settlement of this class action lawsuit and about all your options before the Court decides whether to give final approval to the Settlement. Your rights may be affected by this lawsuit.

    This information is being sent to everyone who has been determined to be a member of the class based upon the last known address available from the San Bernardino County Sheriff’s Department records, and is otherwise being publicized to reach Class Members.

    The Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible and how to file a claim.

    The Court in charge of the case is the United States District Court for the Central District of California, located in Riverside, California. The case is known as McKibben, et al. v. McMahon, et al., Case No. 14-2171-JGB-SP. The people who brought the case are called Plaintiffs, and the people they sued are called Defendants. The Judge is The Honorable Jesus Bernal.

  • In a class action, one or more persons, called the Class Representative(s), sue on behalf of a group of people who have similar claims – the Class Members. One court then resolves the issues for all Class Members, except for those who exclude themselves from the class.

  • The Court rejected the Defendants’ motion to dismiss the case, after which the parties began to discuss a possible settlement and to engage in discovery. With the help of a retired judge who acted as a mediator, there were settlement discussions over many months. Because, when the case was filed, the primary concern of the people who represented the class (present or former ALT inmates) was to change the conditions of the ALT, that was the focus of discussion for several months. After that, the parties turned to discussion of compensation for the Class Representatives and the Class Members, and to attorney’s fees (all of which are paid by Defendants).

    Instead of continuing the litigation, both sides have agreed to a Settlement. That way, both sides are able to avoid the risks and costs of a trial regarding the injunctive relief and damages to which Class Members may be entitled, or an appeal from any such decisions by a court; the case can be resolved immediately; and the benefits of the Settlement can be made immediately available to the Class Members. The Class Representatives and their attorneys think that the proposed Settlement is fair to the Class Members and the parties in the case, and think that the terms of the Settlement are a fair, reasonable and adequate resolution of this matter.

  • The Court has approved lawyers (called “Class Counsel”) to collectively represent you. These are the lawyers who have been handling the lawsuit for the past four years. You will not be asked to pay your own personal money for the services these attorneys and their staff have provided you in litigating this case and negotiating this Settlement. Instead, the lawyers will be paid separately by the Defendants, after approval by the Court, as described further below. Only Class Counsel may act on behalf of the class. However, that rule of law does not prevent you from hiring your own lawyer to advise you personally about your rights, options or obligations as a Class Member in this lawsuit. If you want to be represented by your own lawyer, you may hire one at your own expense.

  • The Settlement has three parts – injunctive relief (changes to how the ALT and the San Bernardino County jails operate in the treatment of GBT inmates); payment of compensation to the Class Representatives and the Class Members; and attorney’s fees. We briefly describe each below.

    1. Injunctive Relief

    The injunctive relief is extensive and difficult to summarize. The full agreement is posted on the Important Documents page. It changes the name of the ALT to the GBTI (Gay Bisexual Transgender Intersex) Unit. It establishes a PREA (“Prison Rape Elimination Act”)-GBTI Committee that includes classification, programming and social work personnel that will make individualized determinations regarding housing, programming and work opportunities for GBTI inmates after conferring with them. It provides guidelines for housing, classification, work and programming options for GBTI inmates and for equal tier time for the GBTI Unit as for general population inmates. It establishes training guidelines for personnel on GBTI issues and for GBTI inmates regarding their rights. It addresses particular issues related to transgender inmates. It provides that Class Counsel will be consulted on the policies to be implemented and for reports and monitoring of the Agreement for three years.

    1. Damages to the Class

    The total damages to the class (which has 655 individuals in it) is $950,000, which will be placed in a class fund overseen by a professional Class Administrator.

    From this, the costs of class administration (estimated at $40,000 or less), the experts/consultants retained by Plaintiffs and the mediation costs (combined approximately $37,000) will be deducted.

    Plaintiffs’ counsel are proposing payment of special compensation to the 15 Class Representatives of a total of $60,500 (in individual amounts between $2,000-$5,500) for their roles in bringing and advancing the case.

    After payment of the foregoing, approximately $812,500 (it could vary somewhat depending on the final accounting of costs) will be divided among the Class Members who file Timely Claims, based on a formula approved by the Court. Under the formula, Class Members will receive a certain number of points for each incarceration day based on the person’s status during that day (pre-sentenced or sentenced, work eligibility and classification) and the overall conditions in the ALT on that day. Each Class Member’s total points represent the sum of their daily points. The total points for each Class Member will then be added together, from which the Class Member’s share of the recovery will be determined. Because it is anticipated that not all Class Members will make Timely Claims, a claiming Class Member’s share will be based on that Class Member’s share of the total points for Class Members who made Timely Claims (and not on eligible Class Members). This has the effect of increasing the amount awarded to claiming Class Members.

    If 328 people file Timely Claims, then the average recovery would exceed $2,400. However, because how much any claiming class members receives is based on the formula, individual damages will vary greatly, depending first on the length of time spent in the ALT and secondarily on other factors.

    No claiming individual Class Member will receive less than $40 or more than $10,000 regardless of the amount above or below those figures due them under the formula, not including the special compensation for Class Representatives explained above.

    1. Attorney’s Fees and Litigation Costs

    The Court will be asked to award Plaintiffs’ counsel $1,100,000 in statutory attorney’s fees and litigation costs (excluding the expert/consultant and mediation costs), such that Defendants would pay these fees and costs. This figure is a substantial discount from the fees that would otherwise have been claimed (separate from compensation to Class Members) because Plaintiffs’ counsel considered the injunctive relief a model. These fees must ultimately be approved by the Court after satisfying itself they are reasonable and fair.

  • As long as you filed an approved claim within the time set by the Court, and you qualify as a Class Member, you will be entitled to receive compensation based on the formula described above. The methodology for determining the share of the Settlement Fund for each Class Member filing a timely claim is described in FAQ 7.

    The full description of the proposed system to determine how much damages each Damages Class Member will receive is contained in the parties’ Settlement Agreement, which is available on the Important Documents page.

  • If you wish to receive money from the Settlement, you must complete and submit a Claim Form. The deadline to submit a Claim Form was January 7, 2019 and has passed.

  • If you are not sure whether you are included in the class, call 1-844-877-5925 or write to:

    ALT Settlement
    c/o JND Legal Administration
    P.O. Box 91307
    Seattle, WA 98111

    Determinations of whether you are or are not a Class Member will be based exclusively on the records of the San Bernardino County Sheriff’s Department.

  • At the Fairness Hearing, the Court awarded Class Counsel $1,100,000. You will not be asked personally to pay any attorneys’ fees to Class Counsel. Only if you hire your own lawyer to represent you personally would you have to pay an attorney any fees.

  • If you do not want to be a member of the class, or if you want to be able to file your own lawsuit, or be part of a different lawsuit against the Defendants raising the claims involved in this lawsuit, then you must take steps to get out of the class. This is called “excluding yourself” from, and sometimes is referred to as “opting out” of, the class.

    If the number of exclusions exceeds ten (10) but is less than 25, the County is entitled to a credit against the Settlement based on the amount that each exclusion was due under the initial class distribution formula. If the number of exclusions exceeds 25, the County may rescind (walk away from) the Settlement or receive the foregoing credits for all excluding Class Members.

  • The deadline to exclude yourself from the Settlement was January 7, 2019 and has passed.

  • As part of the Settlement, you release the claims covered by this lawsuit in exchange for the money you will receive if you do not exclude yourself from the class. The Proposed Final Order of Approval and Settlement (which you may view on the Important Documents page) describes the legal claims against the Defendants you will give up by staying in the class (that is, if you do not exclude yourself as described in FAQ 13). The Released Claims include all claims, demands, causes of action, whether class, individual or otherwise in nature, damages whenever incurred, liabilities of any nature whatsoever, including costs, expenses, penalties and attorneys’ fees, that were or could have been asserted in the complaint based on the facts alleged, specifically for the conditions and treatment, including discriminatory treatment, in the ALT during the time covered by this Settlement. These Released Claims include any other related complaints, grievances, and/or claims, whether judicial or administrative, and whether actually filed or available. Released Claims do not include any other claim(s) that a Plaintiff or member of the classes may have against Defendants for conduct not covered by this Settlement (for example, a claim for an incident of use of force unrelated to this suit).

  • The deadline to object to the Settlement was January 7, 2019 and has passed.

  • Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the class. If you object and the Court rejects your objection, you remain a member of the class and will be bound by any outcome of the case, and entitled to payment under the Settlement if you make a claim. Excluding yourself is telling the Court that you do not want to be part of the class. If you exclude yourself, you have no basis to object because the case no longer affects you.

  • The Court held the Fairness Hearing for February 11, 2019, at 9:00 a.m. (PST) in the United States District Courthouse for the Central District of California, 3470 Twelfth Street Riverside, CA 92501-3801. At this Hearing, Judge Bernal considered whether the Settlement is fair, reasonable and adequate, and determined the amount of attorneys’ fees and costs to be awarded. If there were any objections, the Court considered and ruled on them. You may have spoken at the Hearing, but only if you submitted your comments or objections as provided in the question above entitled “If I Do Not Like The Settlement Or Object To The Attorneys’ Fees, How Do I Tell The Court?” (See FAQ 15).

    Since this Hearing, the Settlement was amended. The Court granted final approval of the amended Settlement on July 30, 2019.

  • No. You may have attended the Hearing, but you were not required to. Class Counsel answered any questions the Court had. However, you may have come if you chose, at your own expense. If you sent a written objection, you may, but did not have to, come to Court to talk about it. As long as you properly submitted your written objection, the Court considered it. You may also have paid your own lawyer to attend, but that also was not necessary.

  • You could not have been heard unless you submitted your comments or objections as provided in the question above entitled “If I Do Not Like The Settlement Or Object To The Attorneys’ Fees, How Do I Tell The Court?” (See FAQ 15) and stated in your submission that you wished to be heard. You could not speak at the Hearing if you excluded yourself. If you submitted an objection, the Court decided whether or not to hear from you verbally as well.

  • If you do nothing, your rights will be affected. You will be bound by the terms of the Settlement and you will be agreeing to a release of the claims that are contained in the Settlement. However, if you do not file a claim, you will not be entitled to any money from the Settlement even though you will be bound by it.

  • No money will be paid until after the settlement funds are deposited with the Settlement Administrator, which will only occur after all possibilities of appeal are completed. After that it may two months, and possibly more, to process the claims and send the money to the Class Members. If you filed a claim and do not receive money within six months after July 19, 2019, check this website or contact the Settlement Administrator by either calling 1-844-877-5925 or writing to:

    ALT Settlement
    c/o JND Legal Administration
    P.O. Box 91307
    Seattle, WA 98111

    We strongly recommend that you keep a copy of your Claim Form.

  • The Court approved the amended Settlement on July 30, 2019.

  • For more information, you can go to the Important Documents page to see the complete Settlement documents in the case and a copy of the Motion for Award of Attorneys’ Fees and Costs when it is filed. In the event that any description in the Notice of the terms in the Settlement documents conflict with the actual terms of the Settlement documents, the terms of the Settlement documents control.

    You may also call the Settlement Administrator toll-free at 1-844-877-5925.

For More Information

Visit this website often to get the most up-to-date information.

Mail

ALT Settlement
c/o JND Legal Administration
PO Box 91307
Seattle, WA 98111