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Braggs v. Dunn

United States District Court, M.D. Alabama, Northern Division

July 25, 2017

EDWARD BRAGGS, et al., Plaintiffs,
JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants.




         The individual plaintiffs in Phase 2A of this lawsuit are prisoners with serious mental illnesses in the custody of the defendants, the Alabama Department of Corrections (ADOC or the Department) and its Commissioner, Jefferson Dunn. The Alabama Disabilities Advocacy Program (ADAP), Alabama's protection and advocacy organization for people with disabilities, is also a plaintiff.

         In this phase, the plaintiffs assert the claim that the Department is in violation of two statutes: Title II of the Americans with Disabilities Act, codified at 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794. See Fifth Amended Complaint (doc. no. 805). For ease of reference, the court will refer to both statutes as the ADA. The plaintiffs claim that systemic deficiencies within the Department result in discrimination against, and the Department's failure to accommodate, prisoners with mental disabilities. These deficiencies include the failure to (1) implement a system for identifying prisoners with disabilities; (2) institute a system for receiving accommodation requests and a grievance procedure for challenging denied accommodations; (3) appoint ADA coordinators; (4) adequately train personnel regarding the requirements of the ADA; (5) develop an ADA transition plan and corresponding policies and procedures; (6) remove architectural barriers affecting prisoners with disabilities; (7) provide reasonable accommodations, such as auxiliary and visual aids and services, to those with disabilities; and (8) enable those with disabilities to access various types of programming and services. The plaintiffs seek injunctive and declaratory relief. Jurisdiction is proper under 28 U.S.C. § 1331 and 28 U.S.C. § 1343. Following months of negotiations, the parties have settled these contentions.

         This case has twice been bifurcated for administrative convenience of the court and the parties. In September 2015, this case was divided into two distinct phases, with the first phase, Phase 1, involving ADA claims unrelated to mental health and the second phase involving all other claims. Then, in September 2016, Phase 2 of this case was further bifurcated into Phase 2A, encompassing an Eighth Amendment claim related to the treatment of prisoners with mental illness, involuntary-medication claims, and an ADA claim of prisoners with only mental disabilities; and Phase 2B, involving Eighth Amendment claims related to medical and dental care.

         The parties reached a settlement of the plaintiffs' Phase 1 ADA claims for prisoners with physical disabilities. After an exhaustive approval process, the court approved the Phase 1 settlement agreement, see Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016), which resulted in a consent decree.

         During the Phase 2A trial, the parties, with the able assistance of United States Magistrate Judge John E. Ott of the United States District Court for Northern District of Alabama, reached a settlement of the remainder of the plaintiffs' ADA claims: the Phase 2A ADA claim now before the court concerning prisoners with only mental disabilities. After a hearing, the court preliminarily approved the proposed Phase 2A ADA settlement agreement. In its preliminary approval order, the court provisionally certified a settlement class and established a procedure for providing putative class members with notice of the agreement and an opportunity to object and submit comments on the agreement's fairness.

         After receiving written comments from putative class members, the court held three days of fairness hearings. During the first two days, the court heard from a representative group of putative class members--selected by the court with the input of the parties--who had submitted comments on the proposed agreement. During the third day, counsel for the parties responded to various comments made by various witnesses and other questions raised by the court. Additionally, the court considered affidavits, submitted by ADAP, from experts in the mental-health field opining on the adequacy, fairness, and reasonableness of the agreement.

         After the hearing, the court entered an order granting final approval of the proposed phase 2A ADA settlement agreement and granted the parties' request that their settlement agreement be entered as a consent decree. See Phase 2A ADA Final Settlement Approval Order (doc. no. 1290). This opinion explains the court's reasons for doing so.


         Broadly speaking, the agreement does two things: (1) it applies the provisions of the Phase 1 ADA settlement agreement to prisoners with only mental disabilities; and (2) it requires the Department to administer an adaptive-behavior and life-skills course for mentally disabled inmates.

         The settlement agreement applies the substantive provisions of the Phase 1 ADA settlement to prisoners with only mental disabilities. These include, most relevantly, requirements that the Department: conduct a self-assessment to identify necessary changes to policies concerning disabled prisoners' ability to communicate and access programs, and create a transition plan, listing changes to be made and deadlines for those changes; provide reasonable accommodations for disabled prisoners to access the programs offered by the Department; make individualized assessments of disabled prisoners housed in residential treatment and stabilization units to ensure that they have reasonable access to the Department's programs; screen, test, track, and periodically re-evaluate prisoners for disabilities or changes in disability status; avoid increasing a prisoner's security level solely based upon a disability; implement a procedure for receiving and processing prisoners' requests for accommodations and appeals of denials, including specified forms, repositories to submit forms, and assistance for prisoners in completing and submitting forms; appoint an ADA coordinator for each of its facilities, as well as a state-wide coordinator, to handle ADA requests, process appeals, produce monthly reports, and assess compliance; provide initial and annual ADA training to correctional officers and enhanced training to ADA coordinators; create a quality-assurance program that includes audits of the identification of disabled prisoners and of accommodation requests and appeals. See Dunn, 318 F.R.D. at 658-59. As these provisions are already being put in place for prisoners with physical disabilities, the practical effect of the settlement is primarily to make these provisions enforceable by prisoners with solely mental disabilities.

         In addition to the incorporation of these Phase 1 provisions, the parties agree to four closely related “Substantive Provisions, ” which provide for the creation and administration of an adaptive-behavior and life-skills course for the settlement class. More specifically, these provisions include:

         Adaptive-Behavior and Life-Skills Training:

         The Department will provide adaptive-behavior and life-skills training for a period lasting no less than 181 consecutive calendar days to certain individuals.

         Frequency of Provision of Programming:

         The Department will enroll appropriately identified prisoners into an adaptive-behavior and life-skills training program within six months of identification. Prisoners should complete the program within six months, except for individuals with profound limitations. An appropriately trained individual will lead the program. Finally, any prisoner who remains in the Department's custody shall undergo a refresher course on the same topics every other year, so long as and until the prisoner returns to the level of functioning attained at the completion of the initial program.

         Transfer of Prisoners While They Are Enrolled in the Program:

         The Department will attempt to minimize the transfer of prisoners while they are enrolled in the adaptive-behavior and life-skills training program. If a prisoner is transferred during the course of a program, the sending and receiving institutions will work with the prisoner to mitigate any harm that may result from the transfer, including, assigning a case manager to the prisoner, enrolling the prisoner into courses the prisoner has not completed, and meeting with the prisoner to discuss any remedial needs.

         Adaptive-Behavior and Life-Skills Program Components:

         The Department will provide an initial adaptive behavior and life skills training program that includes 22 hours of instruction, not to exceed 90 minutes per class, addressing the following general topics: (1) decision making; (2) stress management; (3) communication skill building; (4) risk-taking consequences; (5) self-help; (6) accessing prison services; (7) hygiene; (8) self-direction; and (9) prison rules.

         In addition to these substantive provisions, the settlement agreement contains the following implementation provisions, which were also included in the Phase 1 consent decree:


         ADAP will monitor the Department's compliance with the consent decree, and will be entitled to access relevant documents and to conduct interviews with prisoners and staff. ADAP will prepare quarterly reports on the Department's compliance containing written recommendations for any necessary changes, and the parties will meet and confer to address any reported deficiencies.

         Dispute-Resolution Process:

         Both the named plaintiffs and unnamed class members (either with or without representation by class counsel) must arbitrate claims that the Department is not in compliance with the consent decree. If the Department's alleged non-compliance impacts fewer than 12 prisoners, the arbitrator's decision will be final. If 12 or more prisoners are affected, the arbitrator's decision may be appealed to the court for review under an abuse-of-discretion standard.


         After five years, the Department may request termination of the consent decree, which will terminate after six years unless plaintiffs request, and the court grants, an extension.


         The parties may mutually amend the agreement. The parties agree to re-evaluate deadlines in the transition plan if Alabama passes legislation to construct new prison facilities.


         The Department will make good-faith efforts to obtain necessary funding to comply with the agreement.

         Attorneys' Fees:

         Finally, the agreement states that the Department will pay plaintiffs' attorneys $ 250, 000.00 in fees and costs, as well as additional fees of $ 195.00 per hour (subject to caps) for monitoring services, and fees for any litigation necessary to enforce the resulting consent decree.

         Additionally, as in Phase 1, the parties agreed that no part of the agreement applies to death-row prisoners. The court previously dismissed “any claim initially brought in this action or remaining in Phase 2A or 2B of this action that ADOC fails to identify, track, and accommodate the intellectual disabilities of death row inmates.” Judgment Dismissing Claims Related to Prisoners on Death Row (doc. no. 925). Accordingly, the parties simply reiterate their intent to “remove from the resolution of the claims Plaintiffs have asserted under the Acts any claim concerning the identification, tracking and accommodation of any intellectual disability of any current or future Inmate in the custody of ADOC under a death sentence ....” Proposed Phase 2A ADA Settlement Agreement (doc. no. 1100) at 12.

         Finally, the agreement is predicated on--and defendants consent to--the certification of a settlement class consisting of “any current or future inmate in the physical custody of ADOC who has a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B) relating to or arising from mental disease, illness, or defect.” Id. at 4. For the reasons that follow, the court found class certification and final approval of the agreement appropriate.


         Judicial policy favors the settlement of class actions. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). However, “the settlement process is more susceptible than the adversarial process to certain types of abuse and, as a result, a court has a heavy, independent duty to ensure that the settlement is ‘fair, adequate, and reasonable.'” Paradise v. Wells, 686 F.Supp. 1442, 1444 (M.D. Ala. 1988) (Thompson, J.) (citation omitted). In addition to analyzing the fairness of the proposed agreement, the court must ensure that it is not illegal, or against public policy. See id.

         In approving this agreement, the court had to make four determinations. First, because the agreement was predicated upon class certification, the court had to determine whether the requirements of Federal Rules of Civil Procedure 23(a) and (b) were met. Second, the court assessed whether Rule 23(e)'s procedural and substantive protections, ensuring that the settlement class was given notice and an opportunity to comment on or object to the agreement, were satisfied. Third, because the proposed settlement included an award of attorneys' fees to plaintiffs' counsel, Rule 23(h) required the court to find that such a fee award is “reasonable.” Finally, the court evaluated the proposed settlement's compliance with the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626, which establishes certain requirements for affording prospective relief in cases involving prisons, including when that prospective relief takes the form of a court-enforceable settlement. See 18 U.S.C. § 3626(a)(1) & (c)(1).

         A. Class Certification: Rules 23(a) and (b)

         In its final approval order, the court certified a class of prisoners to which the agreement applies. Class certification is appropriate under Rule 23(a) if the putative class representatives can show that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a).

         In addition to the Rule 23(a) requirements, a class action is maintainable only if it falls within one of three categories of cases set forth in Rule 23(b). Here, the plaintiffs sought certification under Rule 23(b)(2). To qualify under 23(b)(2), a plaintiff must show that “the party opposing the class has acted or refused to act on grounds that generally apply to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). This requirement applies whether or not the parties contest settlement approval. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620-22 (1997).

         Previously, the court provisionally certified a settlement class defined to include “any current or future inmate in the physical custody of the Alabama Department of Corrections who has a disability as defined in 42 U.S.C. § 12012 and 29 U.S.C. § 705(9)(B) relating to or arising from mental disease, illness, or defect.” Phase 2A Preliminary Settlement Approval Order (doc. no. 1205) at 2. Having considered the parties' joint statement in support of the proposed settlement, the court concluded that final class certification was appropriate for purposes of this settlement.

         The court notes that, in conducting this analysis, it had the benefit of briefing on a contested motion for class certification filed prior to settlement of the Phase 2A ADA claim.[1] Although defendants no longer contest certification for purposes of and in light of this settlement, see Joint Motion for Preliminary Approval of Settlement (doc. no. 1175), the court has assured itself that, for the reasons discussed below, none of the arguments defendants previously offered against class certification warranted denial of certification for purposes of approving the settlement.

         1. Standing

         “[A]ny analysis of class certification must begin with the issue of standing”; only if the court finds that the named plaintiffs have standing may it consider whether they have “representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). “The Supreme Court has explained that the ‘irreducible constitutional minimum' of standing under Article III consists of three elements: an actual or imminent injury, causation, and redressability.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of Florida, 641 F.3d 1259, 1265 (11th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

         The individual named plaintiffs clearly have standing to assert the ADA claim brought in Phase 2A and now resolved in the instant agreement.[2] These prisoners are in the custody of defendants, have a mental disability that qualifies for the protection of the ADA, and claim they have been denied reasonable accommodations as a result of the policies and procedures of defendants. A judgment in plaintiffs' favor would remedy these alleged violations, just as will the consent decree. Therefore, these plaintiffs have standing to proceed.

         2. Mootness

         In addition, the plaintiffs' Phase 2A ADA claim is not moot. Mootness, like standing, is a threshold question of justiciability. See Harrell v. The Florida Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (noting that the three strands of justiciability are standing, ripeness, and mootness (citing Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998)). “Article III of the Constitution limits federal courts to deciding ‘Cases' and ‘Controversies, ' and an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Kingdomware Techs., Inc. v. United States, 136 S.Ct. 1969, 1975 (2016) (internal quotations and citations omitted). “A case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir. 1993).

         Before agreeing to settle, the Department had argued that certification of a Phase 2A ADA settlement should not be granted because the Phase 2A ADA claim was moot; they contended that the Phase 1 ADA settlement covered all potential ADA claims for all prisoners, including those with solely mental disabilities--who are the focus of the Phase 2A agreement. However, the Phase 1 consent decree expressly excludes inmates whose disabilities “relate solely to or aris[ing] solely from mental disease, illness, or defect.” Phase 1 ADA Consent Decree (doc. no. 728) at 5. Because prisoners with solely mental disabilities were expressly excluded from the Phase 1 consent decree--and nothing has ...

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