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Ray v. Judicial Correction Services, Inc.

United States District Court, N.D. Alabama, Southern Division

September 12, 2017

GINA KAY RAY, et al., Plaintiffs,
v.
JUDICIAL CORRECTION SERVICES, INC., et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.

         In the 19th century, American drinking establishments began offering free lunches to their patrons. Of course, the practice was designed to attract drinking customers, who, while they didn't pay for lunch, surely paid for their beer. This led a wiser consumer to observe that “there ain't no such thing as a free lunch.” The phrase's application carries beyond restaurants and bars. It is a core economics principle. See Milton Friedman, There's No Such Thing as a Free Lunch (Open Court Publishing Co. 1975). In this case, Defendant Judicial Correction Services, Inc. (“JCS”) offered something much more valuable than lunch to Alabama counties and municipalities. It offered “free” supervision of probationers and “free” collection of fines and court costs owed to courts. Moreover, it offered municipal courts throughout the state of Alabama “free” document drafting and “free” intake services (to be provided, of course, after the municipal court ruled upon a defendant's charge and crafted a sentence that included probation supervised by JCS). All of this, of course, at absolutely no cost to the counties, municipalities, and municipal courts which hired JCS. Or, so they thought. As it turns out, the services were provided without charge to the municipalities, but they were not free. In fact, the court is reminded of a different quote attributed to the inimitable Will Rogers: “It's not what you pay a man, but what he costs you that counts.” AZ Quotes, http://www.azquotes.com/quote/249468 (last visited July 24, 2017).

         I. Introduction

         The named Plaintiffs in this action were sentenced to probation by the City of Childersburg Municipal Court (“Municipal Court”) because they did not pay fines or court costs imposed by the Municipal Court on the date of sentencing. The Municipal Court directed Plaintiffs to remit $35 to $45 a month to JCS on top of the fines and court costs they were ordered to pay the court. Plaintiffs claim that they were not able to pay the fines and court costs, there never was a proper indigency determination, and they are now before the court to remedy alleged constitutional violations stemming from the probation procedures implemented by JCS on behalf of the Municipal Court.

         This case is before the court on: (1) Plaintiffs' Motion for Partial Summary Judgment to Declare the City of Childersburg's (the “City”) “Probation” Practice with JCS Unconstitutional as a Denial of Equal Protection (Doc. # 424); (2) Plaintiffs' Motion for Partial Summary Judgment Declaring the Contract between JCS & the City of Childersburg Void Ab Initio (Doc. # 426); (3) Plaintiffs' Motion for Partial Summary Judgment to Declare Void Probation Based Upon Non-Adjudicated Offenses and Blank Orders (Doc. # 545); (4) Defendants' JCS and Correctional Healthcare Companies, Inc. (“Correctional Healthcare”) Motion for Summary Judgment on Claims Asserted by Gina Kay Ray (Doc. # 469); (5) Defendants' JCS and Correctional Healthcare Motion for Summary Judgment on Claims Asserted by Deunate Jews (Doc. # 522); and (6) Defendants' JCS and Correctional Healthcare Motion for Summary Judgment on Claims Asserted by Plaintiffs Timothy Fugatt and Kristy Fugatt (Doc. # 535). The parties have fully briefed the motions, and they are under submission. (See Docs. # 425, 427, 470, 472-75, 500-505, 510, 523, 530, 536, 544, 546, 550, 556, 567, 573, 575, 577-78, 588, 590, 596-97). The court held oral argument regarding these motions on July 24, 2017.

         After careful review, and for the reasons explained below, the court concludes that Plaintiffs' motions for partial summary judgment are due to be denied. Defendant Correctional Healthcare is due to be granted summary judgment on all claims. But, Defendant JCS is due to be granted summary judgment in part and denied summary judgment in part, as discussed in detail below.

         II. The Rule 56 Evidence and the Undisputed Facts

The facts set out in this opinion are gleaned from the parties' submissions of facts claimed to be undisputed, their respective responses to those submissions, and the court's own examination of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary judgment purposes only. They may not be the actual facts that could be established through live testimony at trial. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

         A. Procedural History

         In their Fourth Amended and Restated Complaint, Plaintiffs allege that Defendant JCS entered into a “joint policy and practice” with Alabama municipalities, such as the City, that violated both their statutory and constitutional rights. (Doc. # 305 at ¶ 14). They state that JCS implemented a “highly systemized and uniform” approach for providing services to municipalities and municipal courts. (Id. at ¶ 16). Under the system described in the Fourth Amended Complaint, Defendant JCS conducted “many administrative and judicial functions of the municipal court.” (Id. at ¶ 18). As compensation for performing those functions, JCS received a monthly probation fee of $35 to $45 a month and a set-up fee of $10, both of which were included in the probation orders provided to the municipal court by JCS. (Id. at ¶¶ 21, 96).

         Plaintiffs contend that the City unlawfully delegated “the collection of court fines, costs[, ] and private fees” to JCS. (Id. at ¶ 93). In a contract signed by the mayor, the City purportedly bound the Municipal Court to establish a probation fee and a set-up fee in each probation order. (Id. at ¶¶ 94, 99). Thereafter, JCS designated certain employees as “probation officers” and allowed them to use a privately-issued badge to collect fees, fines, and court costs. (Id. at ¶ 92). Under the alleged practices of the Municipal Court, every defendant who was unable to immediately pay all fines and costs imposed by the court was placed on probation under the supervision of JCS. (Id. at ¶¶ 97-98). “This [was] routinely done with no investigation into the indigency of the individual or the reasons for their inability to pay the fine and costs.” (Id. at ¶ 22). Moreover, JCS's employees allegedly threatened to revoke an individual's probation, increase the fines and costs owed by a probationer, or increase the jail time a probationer faced if he or she was not able to pay JCS. (Id. at ¶ 110).

         Plaintiffs present five claims for monetary damages against Defendants JCS, CHC Companies, Inc. (“CHC Companies”), [1] and Correct Care Solutions, LLC (“Correct Care”) under 42 U.S.C. § 1983, and also seek declaratory and injunctive relief. Plaintiffs first allege that JCS, CHC Companies, and Correct Care violated their due process rights through the post-adjudication supervision system provided to the Municipal Court. (See Id. at ¶¶ 89-119). Plaintiffs point to several features of JCS's policies and practices as violations of their due process rights, including: (1) the incarceration of individuals for failing to pay fines, fees, and costs owed (id. at ¶ 100); (2) the institution of charges against probationers for “failure to obey a court order” (“FTOCO”) if the probationer could not pay the fines and fees owed to JCS and the Municipal Court (id. at ¶ 101); (3) the issuance of arrest warrants for individuals based on FTOCO charges (id. at ¶ 103); (4) JCS's failure to determine whether the named Plaintiffs were indigent or to determine why they could not pay the amounts owed, despite the fact that they were indigent when FTOCO charges were instituted against them (id. at ¶¶ 103-04); (5) the failure to conduct delinquency or probation hearings before incarceration (id. at ¶ 110); (6) the imposition of fines, fees, and court costs exceeding the jurisdictional maximum of $500 for municipal courts (id. at ¶ 111); (7) the imposition of terms of probation exceeding two years (id.); and (8) the failure to provide “adequate notice of the nature of any lawful charge” (id. at ¶ 113). Moreover, Plaintiffs contend that JCS violated Plaintiff Jews's due process rights by collecting costs and fees from him when the charges against him had been dismissed by the Municipal Court. (Id. at ¶ 118).

         Second, Plaintiffs allege that JCS, CHC Companies, and Correct Care violated their Fourth Amendment rights against unreasonable seizure by instituting a system under which probationers were arrested and detained for failing to pay fines and fees. (Id. at ¶¶ 158-67). They allege that JCS's probation system deprived the Municipal Court's probationers of a judicial hearing to determine whether the probationers had willfully refused to pay fines and fees owed to JCS and the Municipal Court. (Id. at ¶ 161). Moreover, they claim that JCS sought arrest warrants against all named Plaintiffs when it knew that the Plaintiffs could not pay the fines and fees imposed against them. (Id. at ¶ 164). According to the Fourth Amended Complaint, all of the named Plaintiffs were arrested and detained pursuant to this unconstitutional process implemented by JCS. (Id. at ¶ 166).

         Third, Plaintiffs allege that JCS, CHC Companies, and Correct Care violated their Sixth Amendment rights to counsel by implementing a policy or practice that “transformed” fines and fees into indefinite imprisonment sentences without providing access to counsel. (Id. at ¶¶ 179-93). They contend that JCS employees threatened the named Plaintiffs with imprisonment and incarceration if they failed to pay the amounts owed to JCS and the Municipal Court on the schedule set by JCS. (Id. at ¶ 186). When Plaintiffs were unable to pay the fines and fees owed, JCS instituted FTOCO charges or probation violation charges in the Municipal Court. (Id. at ¶ 188). Although Plaintiffs faced a potential imprisonment sentence at that point, neither JCS nor the City provided counsel to the probationers. (Id. at ¶ 189).

         Fourth, Plaintiffs claim that JCS, CHC Companies, and Correct Care violated their Eighth Amendment rights by imposing excessive fines and cruel and unusual punishment in accordance with JCS's probation system. (Id. at ¶¶ 211-26). According to the Plaintiffs, JCS demanded more than the statutory maximum fine of $500 per charge from probationers. (Id. at ¶ 218). Moreover, JCS allegedly violated the Excessive Fines Clause of the Eighth Amendment by imposing probation fees that far exceeded the initial fines and court costs ordered by the Municipal Court. (Id. at ¶ 219). In some situations, JCS charged probationers six to fifteen times the initial fine imposed by the Municipal Court through monthly probation fees. (Id.). Plaintiffs also accuse JCS of incarcerating them for terms longer than those allowed under Alabama Code § 15-18-62. (Id. at ¶ 221). In addition, JCS failed to account for $15 per day jail credits that should have been applied to offset the fines owed. (Id. at ¶ 222).

         Fifth, Plaintiffs assert that JCS, CHC Companies, and Correct Care denied them their rights to equal protection by subjecting them to disparate treatment on the basis of wealth. (Id. at ¶¶ 242-55). According to Plaintiffs, the probation scheme implemented by JCS and the Municipal Court classified Municipal Court defendants on the basis of wealth because those financially able to pay all fees and court costs were not placed on probation, whereas those who could not pay the full amount owed were invariably placed on probation. (Id. at ¶¶ 247-48). Plaintiffs insist that there was no rational state interest for the disparate classification. (Id. at ¶ 251). Indeed, according to Plaintiffs, the probation scheme violated Alabama statutory law that required the Municipal Court “to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines.” (Id. at ¶ 252). Thus, Plaintiffs contend that JCS lacked authority “to charge additional fees to those who [could not] pay.” (Id. at ¶ 253).

         In the Fourth Amended Complaint's count for declaratory and injunctive relief, Plaintiffs request that the court declare the contract between JCS and the City (hereinafter the “JCS-City Contract”) void ab initio because (1) the City lacked authority to bind its Municipal Court, (2) the contract violated the separation of powers doctrine and other limitations on municipal authority, and (3) the contract unlawfully invaded the judiciary's authority over court administration. (Id. at ¶¶ 267-76). Next, Plaintiffs request that the court “declare the actions of [JCS, CHC Companies, Correct Care, and the City] under this contract to be unconstitutional under the premises discussed above.” (Id. at ¶ 277). Plaintiffs ask the court to enter injunctions prohibiting JCS, CHC Companies, and Correct Care from (1) committing the legal violations described in the Fourth Amended Complaint, (2) “placing persons on probation for simple fines, ” (3) “assessing fines in excess of $500 and extending probation periods beyond 24 months, ” and (4) “imprisoning indigent persons for failure to pay fines and fees.” (Id. at p. 63-64). Plaintiffs' count for declaratory and injunctive relief does not seek relief due to JCS supervising probation for individuals with non-adjudicated offenses or blank probation orders. (See Id. at ¶¶ 267-84). Additionally, Plaintiffs' requests for relief do not ask the court to award restitutionary damages. (Id. at p. 63-64).

         B. Formation of the Relationship Between the City, the Municipal Court, and JCS

         On June 21, 2005, Childersburg's City Council approved a proposal to replace its private probation service with JCS. (Doc. # 421-7 at 2).[2] The City Council's minutes reported that Judge Larry Ward and the Municipal Court's clerk had recommended JCS.[3] (Id.). Thereafter, the City's mayor and a JCS vice president signed the JCS-City Contract. (Doc. # 392-16 at 3). The JCS-City Contract purported to include the Municipal Court as a party to that agreement. (Id.). Moreover, the City's mayor signed the contract on behalf of the “CITY/COURT OF CHILDERSBURG, Alabama.” (Id.). But the Municipal Court's judge did not sign the contract. (See id.).

         The JCS-City Contract required JCS to perform supervision for “all probated cases sentenced by the [Municipal] Court, ” including supervision of indigent probationers. (Id. at 4). This contract also directed JCS to notify the Municipal Court of non-complying probationers. (Id. at 5). It required JCS to maintain case files “with the terms and conditions of probation, reporting dates, field contacts as they occur and . . . the amounts and dates of monies collected.” (Id.). It allowed JCS to collect fines, restitution, and court costs on behalf of the Municipal Court if directed to do so. (Id.). JCS agreed not to charge its standard probation fee to indigent probationers. (Id. at 4). Furthermore, it agreed not to charge supervision fees to probationers who paid their fines and court costs within a week of their sentencing hearing. (Id.). The JCS- City Contract did not specify whether JCS was to send notice of court hearings to probationers. (See Id. at 4-5).

         JCS also agreed not to charge the City or the Municipal Court for its services. (Id. at 6). Instead, the JCS-City Contract purportedly obligated the Municipal Court to include certain fees in “each Court Order.” (Id.). These fees included a $35.00 monthly probation fee and a $10.00 probation set-up fee. (Id.).

         The mayor who signed the JCS-City Contract testified that JCS worked with the Municipal Court, not the City, even though JCS had entered into a contract with the City. (Doc. # 392-9 at 76). He claimed that Judge Ward had recommended JCS. (Id. at 45). But, Judge Ward testified he was unaware of the JCS-City Contract until the date of his deposition and was not able to say who would be authorized to bind the Municipal Court to such a contract.[4] (Doc. # 392-5 at 10, 12). He denied any involvement in the contract's formation. (Id. at 12-13). He also denied recommending JCS to the City or its mayor. (Id. at 18, 42). Judge Ward conceded, though, that he had worked with JCS in other municipal courts, including the municipal courts in Harpersville, Lincoln, Gurley, and Stevenson, Alabama. (Id. at 18).

         Contrary to JCS's strenuous assertion, [5] the Rule 56 record does not establish whether Judge Ward approved the form documents produced by JCS employees, such as probation orders and failure to report letters. Judge Ward refused to testify about whether the Municipal Court had agreed to allow JCS to send threatening letters to probationers or whether he knew that JCS was sending such letters to probationers. (See Doc. # 392-5 at 71-74). Although Colleen Ray testified that JCS sent out such orders and letters at the direction of the Municipal Court, she claimed that the Municipal Court would have approved the documents when it began to work with JCS. (See Doc. # 471-4 at 284-85). Colleen Ray did not work at the Childersburg JCS office in 2005, the year JCS began to supervise probationers for the Municipal Court and when the form orders would have been approved by the court. (See Doc. # 471-3 at 41-42) (stating that Colleen Ray was an office manager for JCS in Foley, Alabama from 2005 or 2006 to 2008). Accordingly, the Rule 56 record reveals that Ray lacks personal knowledge of whether Judge Ward approved the form documents used by JCS.[6]

         In August 2014, after Judge Ward retired from the Municipal Court, the Municipal Court's judge established new policies and procedures for setting bail, ensuring defendants' right to counsel, imposing sentences when defendants failed to pay ordered fines and court costs, ordering probation, and revoking probation. (See generally Doc. # 128-1). The City Council terminated the JCS-City Contract in May 2015. (Doc. # 392-63 at 2).

         C. JCS's Policies

         JCS's training manual indicates that JCS primarily concerned itself with enforcing the financial penalties and fees imposed by the probation orders it supervised. For example, JCS instructed its employees to schedule probationers' appointments based on whether they had paid the full monthly amount owed under the probation order. (Doc. # 402-2 at 72). The amount paid to JCS determined whether an employee scheduled monthly, bi-weekly, or weekly probation appointments. (Id.). Likewise, if a probationer failed to appear at a JCS appointment, JCS directed its employees to “[r]eview the amount the [probationer] is behind on fines and fees” and to “determine the amount to be brought to the next appointment” before trying to contact the probationer by telephone. (Doc. # 402-3 at 10). JCS also required employees to review a report of expiring probation cases so that probation did not expire before the probationer met “the court ordered conditions” (which of course included, among other things, the condition to pay JCS's monthly supervision fee). (Doc. # 402-2 at 66). JCS's Probation Tracker, a proprietary software program used by JCS, also informed each probation officer, at the start of every work day, “the amount of monies collected in fees since the beginning of the month [versus] the amount of monies that should have been collected on cases assigned for the entire month.” (Id. at 37). Probation Tracker calculated this percentage “daily in order to help keep track of progress of fee collections during the month.” (Id.).

         JCS employees filled out the probation orders for defendants placed on probation by judges. (Id. at 14). JCS instructed its employees on how to calculate the monthly payments that probationers should be directed to pay as follows:

Note that payments are not to be less than $135/$140/$145 monthly, unless a specified amount is ordered by the Judge. Company policy is to try to never make payments less than $85 per month. Add the amount of fines, court costs[, ] and restitution payments, divide that number by number of months the defendant has been sentenced to probation minus one month. Take the amount derived and add the monthly probation fee. Round the amount up to the nearest $5.

(Id.). JCS's manual reminded its employees that a municipal court judge would determine the length of the defendant's probation. (Id.).

         Under JCS's policies, an employee generally requested a probation revocation hearing if (1) a probationer missed three appointments, (2) a probationer missed one appointment and a failure to report letter was returned to JCS in the mail, or (3) all phone numbers provided by the probationer were disconnected or contained incorrect information. (Doc. # 402-3 at 23). JCS instructed its employees to not request a warrant solely because a probationer owed fees. (Id.). Moreover, it provided special instructions to obtain the address for a probationer whose mail had been returned to JCS. (Id.). JCS told its employees to use Accurint to obtain a mailing address for probationers whose letters were returned to the sender.[7] (Id.).

         JCS's training manual instructed employees to tell probationers who appeared for a revocation hearing that they needed to pay the amount owed for probation in full or the amount they were directed to pay in an earlier letter to have the revocation hearing dismissed. (Doc. # 402-3 at 36). JCS allowed its employees to “determine an amount to dismiss the hearing” if the probationer told the employee that he or she could not pay the full amount requested. (Id.). If the JCS employee decided to not dismiss the revocation hearing, the employee was instructed to “take the [probationer] before the Judge and let the Judge make a decision on the case.” (Id.). JCS told its employees that they must be prepared to answer questions and make a recommendation regarding the terms of revocation. (Id.). The sample recommendation given in the manual included an imprisonment term and an amount to be paid before release. (Id.).

         If a probationer supervised by JCS received another probationary sentence supervised by JCS, JCS instructed its employees to place the new probation sentence on hold “until the current [probation] case is paid in full.” (Doc. # 402-2 at 41). As its training manual explained:

If a defendant has more than one case in the same court, the second and subsequent cases are to be placed on hold. Once the first case is paid in full, the second case is to be made active the day the first case is paid in full. The probation date on the admin. screen will be changed to the date the first case is paid in full. Click on the calculate button and the [Probation Tracker] system will update the number of months the defendant will be on probation. Once the second case is paid in full, the above is to be followed for the third case, and so on.

(Doc. # 402-3 at 53). Moreover, if a probationer was sentenced to probation and supervised by JCS in two or more jurisdictions, JCS only collected supervision fees for the first case initially. (Id.). Once the individual paid off all fees in the first case, JCS began to collect supervision fees in the second case. (Id.). JCS's policies called for 70 percent of each payment to be applied to fines and 30 percent to be applied to fees. (Id. at 44).

         If a probation sentence expired but the probationer failed to complete the terms of probation, JCS employees usually placed the probationer in an unsuccessful termination status. (Id. at 47-48). However, if the probationer continued making payments after the expiration of his or her probation term, JCS instructed its employees to keep the probation in an active status. (Id. at 48). And, if the probationer completed the conditions of probation within a reasonable time, JCS would ask a court to successfully terminate the probation. (Id.).

         D. JCS's Services to the Municipal Court

         Under the terms of the form probation order used by the Municipal Court, a defendant sentenced to probation by the Municipal Court was obligated to report to a probation officer --employed by JCS -- as instructed. (See, e.g., Doc. # 471-12 at 2). A defendant was also required to notify his or her probation officer whenever the defendant changed a residence or employment. (Id.). A defendant was compelled to pay JCS $35 or $45 a month, as well as a $10 set-up fee. (See id.). Moreover, the defendant was directed to make monthly payments towards the fines and costs owed to the Municipal Court. (See id.) (directing Plaintiff Ray to pay $145 a month towards the $1, 146 she owed to the court in August 2012). The Municipal Court also could order a defendant to (1) make restitution payments, (2) complete a jail sentence, (3) complete certain education programs, or (4) return to court at a later date to show completion of an obligation. (See id.). The probation orders warned defendants about the Municipal Court's power to modify or revoke probation as follows:

The Court may at any time modify any conditions of your probation, change or extend probation, discharge defendant[, ] or revoke probation. You are subject to arrest for violation of any condition imposed by this order, and your probation may be revoked accordingly.

(Id.) (emphasis in original). When signing an order of probation, a defendant affirmed that he or she had counsel or had “waived [the] right to counsel for all proceedings to this date.” (Id.).

         According to JCS's Childersburg office manager, Lisha Kidd, Judge Ward signed blank court orders, and Kidd would fill them in based on the judge's instructions. (Doc. # 471-1 at 105, 446-47). JCS only provided probation services when probation was mandated by a municipal court order. (Id. at 107). After Judge Ward had sentenced an individual to probation, Kidd informed the probationer about the terms of probation in a separate room. (Id. at 122-23). A probationer owed almost no fees to JCS if the court-ordered fines were paid within seven days of sentencing. (Id. at 109, 121). Once JCS began charging probation fees, though, a probationer could not end a probation sentence by merely paying off the fines originally imposed by the Municipal Court. (Id. at 109-10). Kidd could not recall whether she had ever supervised any probationer who had been declared indigent by the Municipal Court. (Id. at 231-32). However, she asserted that JCS did not determine whether a probationer was indigent because that was not its responsibility.[8] (Id. at 232).

         The parties dispute how Judge Ward instructed JCS employees on the terms to include in the pre-signed orders. Both parties rely on testimony from Kidd regarding instructions placed on sticky notes. (See Docs. # 470 at 5 & n. 13; 500 at 2). During her deposition, Kidd explained that she would write oral instructions from Judge Ward to JCS in the written orders that had been pre-signed by him. (Doc. # 471-1 at 103-05). Additionally, when asked about discrepancies between a fine issued by the Municipal Court and the record of that fine in JCS's Probation Tracker database, Kidd testified that she obtained the fine placed in Probation Tracker from a sticky note a court magistrate attached to the court file. (Id. at 443-45). Although she scanned a defendant's probation order into Probation Tracker, she did not scan the Municipal Court's order on the charge or the sticky note with additional information into Probation Tracker. (Id. at 447). Indeed, Kidd could not recall what happened to the sticky notes she relied on to determine the fine amounts. (Id. at 511). Nor was she aware whether Probation Tracker had a function allowing her to scan sticky notes into the electronic probation record. (See Id. at 511-12). She returned the sticky notes to the Municipal Court with the case file. (Id. at 512-13).

         Kidd explained during her deposition that JCS employees sent delinquency letters to probationers “as representative[s] of the Childersburg Municipal Court.” (See Id. at 268-69). She testified that the Municipal Court hired them to be “probation agents.” (Id. at 269). During Judge Ward's tenure with the Municipal Court, JCS employees drafted probation revocation petitions if probationers had failed to comply with the terms of probation. (See Id. at 123-24). JCS informed the Municipal Court of the probationer's payment history and missed appointments. (Id. at 124). Then, JCS would select a date for a hearing and inform the probationer of the hearing by mail “pursuant to the [Municipal Court].” (Id. at 127). A JCS employee would determine whether the Municipal Court should hold a compliance hearing or a revocation hearing, depending on whether the probationer had met his or her obligations. (Id. at 129-30).

         JCS's form revocation petitions informed the Municipal Court of the appointments a probationer had missed and the amount owed to the City and to JCS. (See, e.g., Doc. # 537-1 at 2). JCS requested an arrest warrant from the Municipal Court “if necessary.” (See, e.g., id.). The petitions included an order setting a hearing that purportedly was signed by the Municipal Court's judge or a Court magistrate. (See, e.g., id.). Some revocation-hearing orders informed the probationer that the hearing could be cancelled if a payment was made.[9] (See, e.g., id.). The revocation-hearing orders suspended the probationer's sentence “until a resolution [was] decided.” (See, e.g., id.). JCS did not file the revocation petitions with the Municipal Court before the scheduled revocation hearings, even though the revocation orders indicated that they had been approved by the Municipal Court prior to the revocation hearing. (Doc. # 471-1 at 194).

         JCS did send revocation petitions to probationers by mail. (Id. at 194). JCS also sent notices to show cause to non-compliant probationers.[10] (Id. at 197). A notice to show cause would direct a probationer to appear at the Municipal Court and explain why he or she had failed to pay the court-imposed fines and fees. (See, e.g., Doc. # 537-32 at 2). It warned a probationer that an arrest warrant would be issued if he or she failed to appear at the hearing. (Id.). It stipulated that the hearing could be cancelled if the probationer reported to JCS and paid a certain amount. (Id.). These notices were not filed with the Municipal Court. (Doc. # 471-1 at 206). When letters or notices were returned to JCS's office, Kidd sometimes attempted to locate another address for the probationer by contacting the post office, contacting the Municipal Court, or requesting an Accurint search. (Doc. # 471-31 at 7). JCS ceased to send notices of hearings to probationers on behalf of the court four to six months before Kidd's first deposition, which occurred in June 2014. (Doc. # 471-1 at 1, 126-27). Thus, JCS sent notices of revocation hearings to probationers on behalf of the Municipal Court until after this suit commenced.

         JCS did not conduct indigency determinations for probationers. (Doc. # 471-31 at 10). If a probationer could not pay the fines and fees charged to her, Kidd would schedule a hearing with the Municipal Court. (Id.). Kidd has stated that the Municipal Court provided “forms for determining indigency.” (Id. at 11). Judge Ward has explained that he directed JCS to place probationers on indigency status for probation if the probationer could not pay and he expected JCS to “work with” such indigent probationers. (Doc. # 402-36 at 81). Moreover, he has testified that the municipal courts he operated would dismiss a case if the probationer “absolutely” could not pay the amounts owed. (Id.).

         During revocation hearings, Kidd informed the judge about the probationer's payment history and the number of appointments missed. (Doc. # 471-1 at 123-24). She denies that she ever recommended a disposition on any revocation petition during a revocation hearing. (Id. at 124). Although the length of revocation hearings varied, the longest revocation hearing Kidd recalled at the Municipal Court lasted ten minutes. (Id. at 133).

         If a petitioner failed to appear at a revocation hearing, the Municipal Court's magistrate often would issue a capias warrant. (See, e.g., Doc. # 471-26 at 2) (capias warrant issued after Plaintiff Ray had failed to appear at a revocation hearing). The Municipal Court issued capias warrants when a probationer had “failed to report, as ordered by the [Municipal] Court[, ] on a previous court date.” (Doc. # 471-1 at 312). Many of these warrants stated that a defendant had been convicted of FTOCO charges. (See, e.g., Doc. # 471-26 at 2). (See also Doc. # 471-1 at 312-13) (explaining the failure to obey court order charge). The Municipal Court convicted a probationer of this charge when the probationer failed to comply with an order directing appearance at a hearing. (Id. at 313). According to the City's attorneys, though, a City employee searched through the City's records and found no municipal ordinance criminalizing failure to obey a court order.[11] (Doc. # 402-35). The Municipal Court's arrest warrants included a cash bond that an arrestee had to pay to be released.[12] (See, e.g., Doc. # 471-26 at 2). The Rule 56 record does not reveal (1) how FTOCO charges were initiated, (2) whether the Municipal Court formally convicted defendants of FTOCO violations, (3) the sentences defendants received for FTOCO convictions, and (4) whether those sentences included imprisonment terms.

         Once a probationer failed to appear at a revocation hearing, a JCS employee placed the probation sentence on warrant status in Probation Tracker. (Doc. # 471-1 at 272-73). JCS employees did not confirm that a warrant had been issued before they changed a probationer's status from active to warrant. (Id. at 273). JCS's involvement in the probationer's case ceased once the case entered warrant status. (Id. at 274). JCS did not charge probation supervision fees while a probationer was in warrant status. (Id.). The probationer's file stayed closed until a new court date was set for the probationer or the probationer paid the amounts owed “in full directly to the [Municipal] Court.” (Id.). In one case, though, the JCS probation file remained closed in warrant status until May 2012, even though the probationer had been arrested in February 2012. (Id. at 274-75) (discussing Timothy Fugatt's probation sentence).

         In some circumstances, a Municipal Court magistrate conducted a 72-hour hearing for a probationer after he or she was arrested by City police. (See Doc. # 436-6 at 13) (describing a 72-hour hearing conducted at the Talladega County Jail for Johnny Norwood, Jr.). However, nothing in the Rule 56 record indicates that any of the named Plaintiffs received such a 72-hour hearing, even though Plaintiffs Ray and Jews were imprisoned for more than 72 hours following their arrests.[13]

         E. Probation of Plaintiffs Timothy and Kristy Fugatt

         City police issued Kristy Fugatt two traffic tickets in November 2010 for driving with an expired tag and an expired license. (Doc. # 392-66 at 14-15). Fugatt renewed her license (Doc. # 392-6 at 105), and the Municipal Court only assessed court costs for each ticket, (Doc. # 392-66 at 14-15). When Kristy Fugatt informed the Municipal Court judge that she could not pay the full amount charged, he directed her to an intake area to “talk to JCS.” (Doc. # 392-6 at 105-07). Fugatt signed an intake form stating that she would pay a certain amount. (Id. at 108-09). Fugatt was placed on probation under JCS's supervision. (See Doc. # 392-18 at 9) (stating that Kristy Fugatt had been sentenced to 24 months' probation in January 2011).

         Timothy Fugatt received a traffic ticket in December 2010 for driving with an expired vehicle tag. (Doc. # 392-66 at 11). The Municipal Court did not convict him of the traffic offense but ordered him to pay court costs. (Id.). Timothy Fugatt testified that he had attempted to inform the Municipal Court judge about his child's terminal illness during the hearing but did not get an opportunity to speak to the judge due to the speed of the proceedings. (Doc. # 392-7 at 74). Similar to his wife, the Municipal Court also sentenced Timothy Fugatt to 24 months' probation under JCS's supervision. (Doc. # 392-19 at 7).

         In early 2011, JCS scheduled weekly probation appointments for the Fugatts; indeed, JCS employees sometimes scheduled multiple appointments in one week if the Fugatts failed to show up at the office. (See Docs. # 537-24 at 7-8; 537-25 at 10-11). Timothy Fugatt told a JCS employee in January 2011 that his child was terminally ill and that he could not make a payment to JCS until he had received a tax refund. (Doc. # 537-25 at 9). The Fugatts did not appear at 11 of the 12 probation appointments scheduled by JCS in April, May, and June 2011.[14] (See Docs. # 537-24 at 7-8; 537-25 at 10-11).

         JCS issued revocation petitions for Kristy and Timothy Fugatt on June 28, 2011, which comported with the form revocation petitions described above. (Docs. # 537-1 at 2; 537-2 at 2). Timothy Fugatt's revocation petition explained that he had failed to report to JCS for 16 scheduled appointments and had failed to pay $223 as ordered. (Doc. # 537-1 at 2). The revocation petition explained that a payment of $223 would close his case. (Id.). It warned him that a warrant would be issued if he failed to appear at the Municipal Court on August 11, 2011. (Id.). Kristy Fugatt's revocation petition averred that she had missed 17 scheduled appointments and had failed to pay $371. (Doc. # 537-2 at 2). It explained that a payment of $371 would close her case and that a warrant would be issued if she failed to appear at the probation revocation hearing scheduled for August 11. (Id.). Timothy Fugatt testified that they likely would not have received the revocation petitions because their house had been foreclosed upon.[15](Doc. # 537-19 at 111).

         The Municipal Court held revocation hearings for Kristy and Timothy Fugatt on August 11, 2011, but neither of them appeared at the hearings. (Docs. # 537-24 at 5-6; 537-25 at 7). The Municipal Court issued warrants against them both in August 2011. (Id.). Both August 2011 arrest warrants stated that the Fugatts had been convicted of failure to obey a court order. (Docs. # 537-33 at 2; 537-34 at 2). Timothy Fugatt's warrant required him to pay $540 as a cash bond in order to be released. (Doc. # 537-33 at 2). Kristy Fugatt's warrant required her to pay a cash bond of $688. (Doc. # 537-34 at 2).

         A City police officer arrested the Fugatts on February 26, 2012. (Docs. # 537-36 at 2-3; 537-38 at 2-3); (Docs. # 402-27 at 3; 402-28 at 3) (Timothy and Kristy Fugatt testifying that the officer arrested both of them on that date). The Fugatts were taken to the City's police station and placed in a holding cell. (Docs. # 402-27 at 3; 402-28 at 3). City police released them on February 26th after they had paid $900 for a cash bond. (Id.).

         JCS's records indicate that in May 2012 the Municipal Court reinstated the Fugatts' probation sentences. (Docs. # 537-24 at 5; 537-25 at 7). The Municipal Court issued a new probation order against Timothy Fugatt based upon the FTOCO offense on April 26, 2012. (Doc. # 537-3 at 2). This probation sentence ended on April 26, 2014. (Id.). Although the Municipal Court actually issued a new probation order for a different offense, JCS's records state that the court reinstated Timothy Fugatt's probation for the expired tag offense adjudicated in January 2011. (Doc. # 537-24 at 5). JCS also recalculated the probation date for that offense from January 2011 to May 1, 2014.[16] (Id.). Similarly, the Municipal Court also reinitiated Kristy Fugatt's earlier probation sentence and added a $317 warrant fee. (Doc. # 537-4 at 2). Moreover, the Municipal Court fined Kristy Fugatt $168 for a speeding offense. (Id.). The Rule 56 record does not indicate whether she received the speeding ticket for which she was fined. JCS placed Kristy Fugatt's May 2012 probation sentence on hold. (Doc. # 537-41 at 2). JCS prepared revocation petitions and notices to show cause against Kristy and Timothy Fugatt in August 2012. (See Docs. # 537-24 at 4; 537-25 at 5). Timothy Fugatt called JCS on August 28, 2012 and confirmed that he had received the paperwork that was mailed to him. (Doc. # 537-24 at 4). A JCS employee told him that he could report to JCS on August 31 or September 7, but he did not show up to JCS's office on either of those dates. (See id.).

         The Municipal Court cancelled revocation hearings concerning the Fugatts on September 13, 2012. (Docs. # 537-24 at 4; 537-25 at 5). According to Kidd's notes in Probation Tracker, Timothy Fugatt called her and demanded a new court date because he believed the revocation hearings were set for 1:30 P.M. (Doc. # 537-24 at 4). He spoke with a Municipal Court employee before calling JCS, but the employee told him that JCS was responsible for deciding whether to set a new court date. (Id.). Kidd generated new revocation petitions and notices to show cause and mailed them to the Fugatts on September 19. (See Docs. # 537-24 at 4; 537-25 at 5).

         The Fugatts appeared before the Municipal Court on October 11, 2012. (See Doc. # 537-24 at 4). They explained their financial situation to Judge Ward, who commented that they were “using [their] son as an excuse not to pay for [their] fines.” (Doc. # 537-23 at 234). They filled out a hardship form to explain their financial situation, and JCS agreed to “waive the fees after [the Fugatts] paid $200.” (Id. at 235). JCS also agreed that the Fugatts could report to a probation officer in Sylacauga, Alabama because they were being required “to drive to Childersburg every four days even if [they] couldn't pay anything.” (Id. at 236). But, Timothy Fugatt called Kidd on October 31, 2012 and informed her that he could not make the payment because he had to pay approximately $1500 for other bills. (Doc. # 537-24 at 3). Kidd contacted a Municipal Court magistrate about the issue, and the Municipal Court mailed subpoenas for the Fugatts to appear on November 7. (Docs. # 537-24 at 3; 537-25 at 4-5). The Municipal Court issued warrants against the Fugatts in November 2012 after they failed to appear in court. (Docs. # 537-24 at 3; 537-25 at 4).

         Timothy Fugatt appeared at the Municipal Court in December 2012 and agreed to pay $100 towards the amounts his wife and he owed. (Doc. # 537-24 at 3). He told the court that he would pay the fines off with a tax refund. (Id.). The Municipal Court then reinstated the Fugatts' probation sentences in January 2013. (Docs. # 537-24 at 3; 537-25 at 4). JCS placed Kristy Fugatt's probation sentence on unsupervised status in January 2013, after JCS and the Municipal Court had been informed of the present lawsuit. (Doc. # 537-25 at 4). It placed Timothy Fugatt's probation sentence on hold in February 2013 after consulting with a magistrate at the Municipal Court. (Doc. # 537-24 at 3). Ultimately, the Municipal Court terminated the Fugatts' probation sentences on November 1, 2014, during the pendency of this action. (See Doc. # 537-25 at 4).

         F. Probation of Plaintiff Deunate Jews

         Plaintiff Jews was charged with harassment in 2008. (See Doc. # 392-27 at 2). The Municipal Court dismissed the harassment charge against Jews in January 2009, subject to conditions that Jews (1) pay court costs to the Municipal Court and (2) avoid contact with the complainant. (Id.). During a deposition, Jews claimed that he had contested the Municipal Court's authority to impose court costs against him when the criminal charge against him had been dismissed. (Doc. # 524-5 at 50). Judge Ward responded that he would “lock [Jews] up” unless he signed a probation order. (Id. at 50-51). Jews did not ask Judge Ward any more questions because he believed that the judge would imprison him if he “said any little thing.” (Id. at 51). Jews was unable to pay the assessed court costs on the date of the hearing. (Id. at 52).

         After signing a probation order, Jews advised a JCS employee that he would not report to JCS's probation office because the Municipal Court had forced him to sign the probation order. (Id. at 56). He informed the JCS employee that he would not pay the imposed court costs because his case had been dismissed. (Id. at 59). Moreover, he provided JCS the address for his uncle's residence, rather than his own address. (Id. at 60). He submitted this address to JCS because he did not plan to pay what the Municipal Court had directed him to pay. (Id. at 60-61). Consequently, Jews did not receive a letter that JCS sent to him on January 27, 2009. (Id. at 59-60).

         The Municipal Court held a revocation hearing in Jews's case on February 12, 2009, but Jews did not appear at the hearing.[17] (Doc. # 524-22 at 6). The Municipal Court's magistrate issued a capias warrant against Jews on February 17, 2009 for failure to obey a court order. (Doc. # 392-35 at 2). The warrant directed Jews to pay a bond of $487 to be released. (Id.). Jews was arrested in September 2009. (Doc. # 392-36 at 3). In October 2009, the Municipal Court reinstated Jews's probation sentence and charged him a $317 warrant fee.[18] (Doc. # 524-22 at 6). The Court's probation order sentenced Jews to probation for FTOCO. (Doc. # 524-6 at 2). Jews was released from the Talladega County Jail on October 22, 2009. (Doc. # 382-11 at 65).

         JCS petitioned the Municipal Court to revoke Jews's probation again in December 2009. (Doc. # 524-22 at 5). The Municipal Court held a revocation hearing in January 2010, and Jews did not appear at the hearing. (Id.). A magistrate issued another capias warrant against Jews based on a conviction for FTOCO. (Doc. # 392-45 at 2). This arrest warrant increased his bond amount to $935. (Id.). City police arrested Jews on August 18, 2010. (Doc. # 392-46 at 2). On September 9, 2010, the Municipal Court fined Jews $317 for the failure-to-obey offense and reinstated his probation. (Doc. # 392-38 at 2). Hepp again authorized Jews's release from the Talladega County Jail on September 9th. (Doc. # 382-11 at 67).

         In November 2010, JCS filed another revocation petition against Jews. (Doc. # 524-22 at 5). Jews did not appear at the Municipal Court's December 2010 revocation hearing in his case. (Id.). The Municipal Court issued another capias warrant against Jews based on a conviction for FTOCO, and he was arrested on January 10, 2011. (Doc. # 392-50 at 2-3). A City employee, Misty Hepp, authorized Jews's release from jail on January 14, 2011, after a $500 bond had been paid on his behalf. (Doc. # 392-51 at 2). The Municipal Court reinstated Jews's probation sentence in March 2011 and charged him a $317 warrant fee. (Doc. # 524-22 at 5).

         In May 2011, JCS again petitioned the Municipal Court to revoke Jews's probation. (Doc. # 392-54 at 2). The revocation petition asserted that Jews owed $773 to close his case. (Id.). A JCS employee and Judge Ward signed the petition, but the City's prosecutor did not sign it. (Id.). Yet again, Jews did not appear at a revocation hearing in June 2011. (Doc. # 524-22 at 4). On June 10, 2011, the Municipal Court's magistrate issued another warrant against Jews based on a conviction for failure to obey a court order. (Doc. # 392-56 at 2). This warrant required Jews to pay $1, 090 in bail to be released. (Id.). A City officer arrested Jews in February 2012 after detaining him to check for outstanding warrants. (Doc. # 392-57 at 2-3). Jews fled from the officer and was detained for resisting arrest and failure to obey a court order. (Id.).

         According to Jews's Probation Tracker records, during a March 2012 hearing, the Municipal Court reinstated Jews's probation. (Doc. # 524-22 at 4). The Court issued another probation order for the resisting arrest and FTOCO charges. (Doc. # 392-58 at 2). This order recounted fines of $717 for resisting arrest and $1, 090 for FTOCO. (Id.). And, it placed Jews on probation until March 8, 2014. (Id.). The City's police department released Jews from jail on March 8, 2012. (Doc. # 382-12 at 13). In May 2012, JCS recalculated Jews's probation expiration date for the 2009 probation order stemming from the harassment charges. (Doc. # 524-22 at 4). It stated that his probation on that charge actually was due to end on March 9, 2014. (Id.).

         In June 2012, JCS requested that the Municipal Court revoke Jews's probation. (Doc. # 524-22 at 3). The revocation petition was not signed by a JCS employee, and the order directing a hearing was not signed by the Municipal Court's judge. (Doc. # 392-59 at 2). The Municipal Court held a revocation hearing in August 2012; again, Jews did not attend that hearing. (Doc. # 524-22 at 3). According to JCS's probation records, the probation sentence entered warrant status on August 10, 2012. (Id. at 2). The Municipal Court ultimately terminated Jews's probation sentence in December 2014, during the pendency of this action. (Doc. # 382 at 114).

         G. Probation of Plaintiff Gina Kay Ray

         In June 2010, a City officer ticketed Ray for driving with a suspended license and without proof of insurance. (Doc. # 423-4 at 2). Ray pled guilty to both charges during a Municipal Court hearing on August 12, 2010. (Id. at 3). Ray testified that a public defender attended the hearing, but she (Ray) did not believe that an attorney would assist her with a traffic ticket. (Doc. # 471-7 at 38-39). Ray does not think that Judge Ward identified the public defender during the hearing. (Id. at 39). Judge Ward imposed a three-day suspended imprisonment term for each conviction, along with a 24-month probationary sentence. (Doc. # 423-4 at 3). Ray was unable to recall whether Judge Ward mentioned the suspended imprisonment term during the hearing. (Doc. # 471-7 at 43-44). Judge Ward fined Ray $400 for each traffic offense, imposed $198 in court costs for the suspended license offense, and imposed $148 in court costs for the no insurance offense. (Doc. # 423-4 at 3).

         According to JCS's probation records, JCS prepared a revocation petition against Ray on September 20, 2010.[19] (Doc. # 423-11 at 8). The revocation petition contained in the Rule 56 record was not signed by the probation officer or the Municipal Court's judge. (See Doc. # 423- 8 at 2). The Municipal Court held a revocation hearing on October 14, 2010, which Ray attended. (Doc. # 423-11 at 8). JCS issued another revocation petition on December 30, 2010, based on Ray's failure to attend probation sessions, pay assessed court fines and fees, and pay probation fees. (Doc. # 423-14 at 2). The Municipal Court held a revocation hearing for Ray on January 13, 2011, but she failed to appear. (Doc. # 423-11 at 7). Consequently, on January 18, 2011, the Municipal Court's magistrate issued a capias warrant premised upon a FTOCO conviction. (Doc. # 423-15 at 2). The warrant provided for a bond of $1, 353. (Id.).

         Ray was arrested on January 19, 2011. (See Doc. # 455-5). She remained in the Talladega County Jail until February 10, 2011. (See id.). The Municipal Court reinstated Ray's probation on February 10, 2011, and imposed a $317 warrant fee. (Doc. # 423-17 at 2). In June 2011, a City officer ticketed Ray for driving with an expired tag and a revoked license. (Doc. # 423-31 at 2). Ray pled guilty to both offenses in July 2011. (Id. at 3). The Municipal Court imposed 5-day suspended imprisonment sentences, 24 months of probation, fines totaling $500, and court costs totaling $346 for the two convictions. (Id.). In August 2011, Ray was again charged with driving with a revoked license and an expired tag. (Doc. # 423-28 at 2). As with her earlier tickets, the Municipal Court imposed a 5-day suspended imprisonment sentence for the expired-tag offense, 24 months of probation for the expired-tag offense, fines totaling $500, and court costs totaling $346. (Id. at 3).

         On January 4, 2012, a JCS employee found that Ray had violated her probation because she owed the City $1, 008 in fines and costs and JCS $433 in fees.[20] (Doc. # 423-11 at 4). The Municipal Court held a revocation hearing on February 9, 2012 that Ray did not attend. (Id.). Thus, the Municipal Court's magistrate issued a capias warrant against Ray for FTOCO. (Doc. # 423-23 at 2). The warrant provided a bail amount of $3, 173. (Id.). On April 21, 2012, City police officers detained Ray because they suspected that she had an active warrant. (Doc. # 423-24 at 2-3). She fled from the officers in her car until she was blocked in by traffic. (Id. at 3). The officers issued her tickets for driving with an expired tag, driving with a revoked license, and attempted escape. (Doc. # 423-27 at 2, 4).

         Ray was held in jail from April 21, 2012 to May 1, 2012 on the charge of FTOCO. (Doc. # 455-7). On April 26, 2012, the Municipal Court reinstated Ray's probation and imposed a $317 warrant fee. (Doc. # 423-25 at 2). The court's probation order stated that Ray owed $3, 173 in costs. (Id.). The order stated that Ray could not be released from jail until $300 had been paid on her behalf. (Id.). Ray was released from jail on May 1, 2012 after someone paid the $300. (Doc. # 471-7 at 149).

         In June 2012, Ray pled guilty to driving with an expired tag, driving with a revoked license, and attempting to escape. (Doc. # 423-27 at 3, 5). The Municipal Court sentenced Ray to a 5 day suspended incarceration sentence, along with 24 months' probation, for each conviction. (Id.). It fined her $400 for driving with a revoked license, $400 for attempting to flee, and $100 for driving with an expired tag. (Id.). It also imposed a total of $444.00 in court costs against Ray. (Id.).

         JCS again requested that the Municipal Court revoke Ray's probation in August 2012 due to the outstanding fines and fees she owed to JCS and the City. (Doc. # 423-11 at 3). The Municipal Court held a revocation hearing in September 2012 and issued a warrant against Ray after she had failed to appear at the hearing. (Id.). Ray's probation sentence was terminated by court order on November 1, 2014. (Doc. # 422 at 11).

         III. Summary ...


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