United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
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).
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.
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.
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.
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).
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).
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).
present five claims for monetary damages against Defendants
JCS, CHC Companies, Inc. (“CHC Companies”),
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).
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).
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).
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).
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).
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).
Formation of the Relationship Between the City, the Municipal
Court, and JCS
21, 2005, Childersburg's City Council approved a proposal
to replace its private probation service with JCS. (Doc. #
421-7 at 2). The City Council's minutes reported
that Judge Larry Ward and the Municipal Court's clerk had
recommended JCS. (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.).
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).
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.
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. (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).
to JCS's strenuous assertion,  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.
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).
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.”
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
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.).
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. (Id.).
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.).
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).
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.).
JCS's Services to the Municipal Court
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.).
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. (Id. at 232).
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).
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).
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. (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).
send revocation petitions to probationers by mail.
(Id. at 194). JCS also sent notices to show cause to
non-compliant probationers. (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.
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.).
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).
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. (Doc. # 402-35). The Municipal
Court's arrest warrants included a cash bond that an
arrestee had to pay to be released. (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.
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).
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
Probation of Plaintiffs Timothy and Kristy Fugatt
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).
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).
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. (See Docs. # 537-24
at 7-8; 537-25 at 10-11).
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.(Doc. # 537-19
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).
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.).
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.
(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.).
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
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).
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).
Probation of Plaintiff Deunate Jews
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).
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).
Municipal Court held a revocation hearing in Jews's case
on February 12, 2009, but Jews did not appear at the
hearing. (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. (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
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).
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).
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.
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,
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).
Probation of Plaintiff Gina Kay Ray
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).
to JCS's probation records, JCS prepared a revocation
petition against Ray on September 20, 2010. (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.).
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).
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. (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).
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).
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.).
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).