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Settlement Agreement And Release


This Settlement Agreement and Release (hereinafter "Settlement Agreement") is made and entered into between and among: (1) RANDOLPH 0. SMITH, IDOC #78905 (hereinafter "Smith") and BRENT REINKE. JOHANNA SMITH, and the IDAHO DEPARTMENT OF

CORRECTION, as the real party in interest,  together  with  their  heirs,  personal representatives, employees, successors, and assigns (hereinafter collectively "IDOC") for the purpose of settling  all claims or potential  claims that  are the  subject of Smith v. Reinke, et al.,

U.S. District Court of Idaho Case No. 12-CV-00030-BLW (hereinafter "Action"). Smith and IDOC are collectively referred to as "the Parties."


NOW THEREFORE, in consideration of the agreements and covenants contained in this Settlement Agreement, it is hereby understood and agreed by and between the Parties hereto as follows:




A. On January 23, 2012, Smith filed his Complaint  for  Declaratory  and  Injunctive  Relief in the Action against IDOC, alleging violations  of  the  Americans  with  Disabilities  Act  of  1990, as amended, 42 U.S.C. § 12101 et seq. and the  Rehabilitation  Act  of  1973, as amended, 29 U.S.C. § 701 et seq.


B. On February 17, 2012, IDOC filed its Answer and Demand for Jury Trial, disputing Smith's allegations and has continued to defend the Action.


C. The Parties desire to finally and fully resolve all claims and allegations that are the subject of the Action and that otherwise arise out of the Action.




1.0      Release And Discharge


1.1 IDOC will provide Smith access to a videophone, including Video Relay Service ("VRS") capabilities, no later than January 7, 2015. Such a videophone will allow Smith to communicate telephonically with other deaf/hearing impaired individuals as well as with hearing individuals through the use of VRS. Prior to Smith being provided access to the videophone, IDOC will ensure that Smith is provided with hands-on training as to the use of the videophone by a videophone vendor representative. IDOC will also ensure that designated IDOC staff members are adequately trained in the use and operation of the videophone technology by a videophone vendor  representative.


1.2 Initially, the videophone will be connected to IDOC's network. Because of technical limitations on IDOC's network, including bandwidth capacity, connection speed, and related concerns, access to the videophone will be limited to non-peak hours; which are generally 5:00 p.m. to 9:00 p.m. (MST) Monday through Friday and 9:00 a.m. to 9:00 p.m.



(MST) Saturday and Sunday. These hours are subject to modification based on the safety and security needs of the institution.


1.3 Initially, the videophone will be located in a staff office in Smith's regular housing unit, which is currently Unit 11 at the Idaho State Correctional Institution (“ISCI"). Smith will request to use the videophone by submitting a request to unit staff at least 24 hours in advance, indicating the name and the telephone number of the individual(s) he wishes to call. Smith will be allowed up to forty-five (45) minutes of videophone access per scheduled time, subject to the conditions set forth in paragraph 1.2. Smith will be allowed to schedule multiple calls during the times in which access to the videophone is provided, as set forth in paragraph 1.2, and subject to the conditions set forth in this paragraph and paragraph 1.2. This means that the scheduled call(s) may have an aggregate duration of up to forty-five (45) minutes and may only be made during the times in which access to the videophone is provided, as set forth in paragraph l.2. In the instances when Smith's call is not answered by the party he is trying to reach, Smith will be allowed to make at least two (2) more attempts to make that call, as long as the calls can be made during the times in which access to the videophone is provided, as set forth in this paragraph, and in paragraph 1.2.


1.4 IDOC is currently in the process of implementing a kiosk based video telephone system at ISCI through its contracted vendor, Centurylink. Once the Centurylink network is in place and operational, the videophone will be switched from the IDOC network to the Centurylink network, which should eliminate the technical limitations referenced in paragraph 1.2, above. The videophone will be switched to the Ccnturylink network between January 15th and January 19th 2015. At that time Smith will still be required to schedule his access to the videophone in the staff office as set forth in paragraphs 1.2 and 1.3.


1.5 Once the Centurylink kiosks are installed and operational with video telephone capabilities in the ISCI housing unit dayrooms, the videophone will be relocated to the dayroom or other location in Smith's regular housing unit. IDOC expects for that to take place no later than June 15, 2015. At that time, Smith will be allowed access to the videophone during the same times and for the same duration as other offenders are allowed for the telephones and video telephones through the Centurylink kiosks in that housing unit.


1.6 Should Smith be relocated to another regular housing unit or to another ]DOC facility during his incarceration for a period exceeding thirty (30) days, IDOC agrees that he will continue to be provided access to a videophone at his new housing unit, during the same times and for the same duration as other offenders are allowed for telephones and video telephones through the Centurylink kiosks in that housing unit. Relocation of the videophone will occur within forty-five (45) days from the date of Smith's transfer to another regular housing unit or to another IDOC facility. In the event Smith is temporarily relocated to another housing unit or IDOC facility for less than thirty (30) days, IDOC agrees to provide Smith reasonable access to a videophone during the duration of Smith's temporary relocation. Such reasonable access shall mean up to two (2) hours of scheduled videophone access per week for the duration of Smith's temporary relocation, subject to modification based on the safety and security needs of the institution.


1.7 Smith's videophone privileges will be subject to the same IDOC regulations regarding the use of telephones and Centurylink kiosks.  Smith's use of the videophone will be free of charge to him while on the IDOC network. However, upon implementation of the video telephone capabilities on the Centurylink kiosks, Plaintiff may be subject to usage charges equivalent to other offenders, to the extent permitted by law. Calls made through VRS shall be at no cost, per FCC guidelines.


1.8 IDOC will work with the videophone vendor to ensure that the videophone equipment, provided as a result of this Settlement Agreement, is in working order at all times. Should the videophone equipment become damaged by any persons inside the IDOC facility, [DOC agrees to work with the vendor to secure a replacement videophone, if necessary, so that access to a videophone may continue to be provided. IDOC staff shall attempt to resolve complaints about any malfunctioning videophone equipment within a reasonable time of receiving that complaint. For purposes of this Settlement Agreement, a reasonable time shall consist of no more than fifteen (15) days from the date the complaint is received. Such complaints shall be submitted in writing to the facility Administrative Support Manager, or other individual designated by the facility head, using an offender concern form.


1.9 The Parties will jointly stipulate to dismissal of this action with prejudice once the following conditions have been met:


(1) the videophone has been installed and is functional pursuant to the parameters established by the vendor;

(2) Smith has been trained from the vendor's representative on how to use the videophone; and

(3) Smith is able to successfully complete one (1) videophone call directly to another videophone and one ( 1 ) videophone call through the use of VRS.


2.0 No Admission Or Acquiescence


This Settlement Agreement represents a compromise and settlement of disputed claims and an effort to avoid litigation expenses. This Settlement Agreement and the fact of settlement of the Parties' claims, including all negotiations, discussions, and proceedings connected with it, leading up to the settlement, as well as any action taken to carry out the terms of the settlement, shall not constitute any admission of liability on the part of IDOC, or give rise to any presumption or inference of any violation of any statute or law or of any fault, wrongdoing, or liability whatsoever.


3.0 Attorneys' Fees And Costs


IDOC agrees and promises to pay the sum of Thirty-Five Thousand and 00/100 Dollars ($35,000.00), payable to Smith's attorneys, Disability Rights Idaho, as reimbursement for their reasonable attorneys' fees and costs incurred in the prosecution of this Action. By agreeing to reimburse Smith's attorneys for their attorneys’ fees and costs,  IDOC does not


acknowledge or concede that Smith is a prevailing party or is otherwise entitled to an award of attorneys' fees and costs in connection with the Action.


4.0 Representations   And Warranties


4.1        Each Party warrants and represents to the other that its execution of this Settlement Agreement has been duly authorized by all necessary corporate or other action by such Party.


4.2  Each Party warrants that it has all requisite legal rights necessary to grant the release and covenants and any other rights granted in this Settlement Agreement.


4.3 Each individual who executes this Settlement Agreement on behalf of any Party represents and warrants that he or she does so with the knowledge and express approval and authorization of the Party on whose behalf that person executes this Settlement Agreement.


4.4 The Parties acknowledge that they have had ample opportunity to consult with their attorneys prior to execution of this Settlement Agreement. They further acknowledge that they knowingly and voluntarily decided to sign and enter into this Settlement Agreement.


4.5 The enforceability of this Settlement Agreement is not affected by the provisions of any other agreement to which any Party is a party and will not, to the knowledge of any Party, conflict with any provision of any law or regulation to which such Party is subject.


5.0 Warranty Of Capacity To Execute Agreement


Each Party represents and warrants that such Party is the sole and lawful owner of all right, title, and interest in and to every claim or other matter which each such Party purports to release herein, and that such Party has the sole right and exclusive authority to enter into this Settlement Agreement and has not assigned, transferred or encumbered, or purported to assign, transfer, or encumber, voluntarily or involuntarily, to any person or entity that is not a party to this Settlement Agreement, all or any portion of the claims, obligations, or rights covered by this Settlement Agreement.


6.0 Full Satisfaction


Without limiting in any manner the generality of the foregoing release, Smith further expressly acknowledges and agrees that the full release of all claims provided above applies to all claims that in any way arise out of the alleged facts set forth in Smith's Complaint filed in this Action on or before the date of the execution this Settlement Agreement, whether known or unknown, suspected or unsuspected, fixed or contingent, asserted or unasserted, except as otherwise provided herein.



7.0 Governing Law And Construction


7.1 This Settlement Agreement shall be construed and interpreted in accordance with  the laws of the State of Idaho.


7.2 The Parties further agree that the Idaho Fourth Judicial District Court of Ada County, Idaho shall have personal and subject matter jurisdiction over any action brought to enforce this Settlement Agreement.


7.3 Prior to either Party bringing an action to enforce this Settlement Agreement, as provided by paragraph 7.2, above, that Party shall provide written notice to the other Party setting forth the specific details of the alleged breach. Within ten (10) business days of receipt of the notice of breach, the Parties shall meet and confer in an effort to resolve the alleged breach of the Settlement Agreement. If the alleged breach of the Settlement Agreement cannot be cured within thirty (30) business days of the receipt of the notice of the breach, either Party may then bring an action to enforce this Settlement Agreement. Either party who brings such an enforcement action and who ultimately obtains a judgment against the other party for a breach of this Settlement Agreement will be entitled to petition the court for attorney fees and costs pursuant lo court rules and applicable law.


7.4 This Settlement Agreement is the result of negotiations between the Parties, each of which has had the opportunity to be represented and advised by competent counsel. The language contained in, or not contained in, previous drafts of this Settlement Agreement shall have no bearing upon the proper interpretation of this Settlement Agreement. This Settlement Agreement shall be construed and interpreted to effectuate the intent of the Parties, which is to provide, through this Settlement Agreement, for a complete resolution of any and all of Smith's claims arising out of the alleged facts set forth in Smith's Complaint filed in this Action existing on or before the date of the execution of this Settlement Agreement.



8.0 Entire Agreement And Successors In Interest


This Settlement Agreement contains the entire agreement and understanding between the Parties with regard to the matters contained herein and shall be binding upon, enforceable against, and inure to the benefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each Party. Each Party has a duty to so inform any such successor in interest. This Settlement Agreement, as well as any documents contemplated to effectuate this Settlement Agreement, is a fully integrated document, containing the entire understanding among the Parties, and supersedes and integrates any and all prior representations, agreements, and understandings of the Parties, whether oral or written, related to such subject matter.


No amendment to, modification of, or a waiver of any provisions of this Settlement Agreement shall be effective unless: (a) all Parties to the Settlement Agreement agree in writing to the amendment, modification, or waiver; and (b) the amendment, modification, or waiver is in writing.



9.0 Severability


In the event that a court determines that any portion of this Settlement Agreement is unenforceable, such provision will be severed from this Settlement Agreement and all other provisions will remain valid and enforceable, provided however that if the severance of any such provision materially alters the rights or obligations of the Parties hereunder, the Parties will attempt, through reasonable, good faith negotiations, to agree upon such other amendments to this Settlement Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.


10.0 Recitals


The Recitals set forth herein are incorporated as a part of this Settlement Agreement.

The Parties agree that the covenants set forth herein are contractual and not mere recitals.


11.0 Counterparts and Headings


11.1 This Settlement Agreement may be executed in two or more identical counterparts, all of which constitute one and the same Agreement. Facsimile or other electronically transmitted signatures on this Settlement Agreement are deemed to have the same force and effect as original signatures.


11.2 The headings in this Settlement Agreement are for convenience and shall not expand, modify, limit, or define the rest of this Agreement.


12.0 Effectiveness


This Settlement Agreement shall become effective upon the date of execution by the last Party to execute the Settlement Agreement.





Idaho Department of Correction


Signature: [Signature]

Jeff Zmuda, Chief, IDOC Division of Prisons


Dated this 16th day of January, 2015.


State of Idaho


County of Ada


[Seal Stamp]


Subscribed and Sword before me this 16th day of January, 2015.



Notary Public

My Commission Expires: 5/9/2017











Signature: [Signature]

Randolph O. Smith, Plaintiff


Dated this 16 day of January, 2015.


State of Idaho

County of Ada


Subscribed and Sword before me the 16 day of January, 2015.


[Notary Seal]




Notary Public

My Commission Expires: Oct. 23, 2015




The AVID Prison Project is a collaboration between The Arizona Center for Disability Law, Disability Law Colorado, The Advocacy Center of Louisiana, Disability Rights New York, Protection and Advocacy for People with Disabilities of South Carolina, Disability Rights Texas, Disability Rights Washington and The National Disability Rights Network.