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Hunter v. Beshear

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

January 25, 2018

DEMONTRAY HUNTER, by and through his next friend, Rena Hunter; RUSSELL D. SENN, by and through his next friend, Irene Senn; TRAVIS S. PARKS, by and through his next friend, Catherine Young; VANDARIUS S. DARNELL, by and through his next friend, Bambi Darnell; FRANK WHITE, JR., by and through his next friend, Linda White; MARCUS JACKSON, by and through his next friend Michael P. Hanle; TIMOTHY D. MOUNT, by and through his next friend, Dorothy Sullivan; HENRY P. MCGHEE, by and through his next friend, Barbara Hardy, individually and on behalf of all others similarly situated; and the ALABAMA DISABILITIES ADVOCACY PROGRAM, Plaintiffs,
v.
LYNN BESHEAR, in her official capacity as Commissioner of the Alabama Department of Mental Health, Defendant.

          CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

          Myron H. Thompson, UNITED STATES DISTRICT JUDGE

         CONSENT DECREE

         I. INTRODUCTION

         1. On September 30, 2016, three of the individually-named Plaintiffs filed the above- styled action (the “Lawsuit”) against Defendant James V. Perdue, in his official capacity as Commissioner of the Alabama Department of Mental Health (“the ADMH Commissioner”), challenging the AMDH Commissioner's failure to comply with the Due Process Clause of the Fourteenth Amendment to the United States Constitution with respect to his alleged failure to provide court-ordered Mental Evaluations and Competency Restoration Treatment to Plaintiffs. Commissioner Lynn Beshear was substituted as Defendant in July 2017.

         2. On December 23, 2016, the eight individually-named Plaintiffs and Plaintiff Alabama Disabilities Advocacy Program (“ADAP”) (collectively, “Plaintiffs”), filed their First Amended Complaint against the ADMH Commissioner in his official capacity challenging his alleged failure to comply with the Due Process Clause of the Fourteenth Amendment to the United States Constitution with respect to his provision of court-ordered Inpatient Mental Evaluations and Competency Restoration Treatment to the individually-named Plaintiffs and the putative class of similarly situated persons represented by the individually-named Plaintiffs, and Plaintiff ADAP's constituents (whose claims it is asserting as a Plaintiff in this action).

         3. The individually-named Plaintiffs, on behalf of themselves and all others similarly situated, Plaintiff ADAP, and the ADMH Commissioner engaged in mediation designed to resolve the claims asserted in the Lawsuit. The Parties believe that they have reached a resolution of the claims asserted in the Lawsuit and that, in order to avoid protracted, costly and uncertain litigation, it is in their respective best interests to resolve the issues to be tried in the Lawsuit.

         4. Accordingly, the Parties, by and through their respective counsel, jointly stipulate and agree to the following provisions to resolve the Lawsuit.

         II. PARTIES, PURPOSE, AND INTENT

         1. Plaintiffs are suing Defendant Beshear in her official capacity as Commissioner of ADMH, the state agency charged under Alabama law and by relevant state circuit court orders with the provision of Outpatient and Inpatient Mental Evaluations to those suspected of being Incompetent to Stand Trial and Competency Restoration Treatment to persons found Incompetent to Stand Trial in Alabama.

         2. The individually-named Plaintiffs and putative class members in the Lawsuit have been or are currently, and may in the future be incarcerated in an Alabama city or county jail awaiting receipt of court-ordered Outpatient Mental Evaluations, Inpatient Mental Evaluations, or Competency Restoration Treatment to be provided by or on behalf of the ADMH Commissioner.

         3. Plaintiff ADAP is the duly authorized disabilities protection and advocacy agency in the State of Alabama under the nation's federally-funded protection and advocacy system. Cf. Doe v. Stincer, 175 F.3d 879, 883 (11th Cir. 1999); Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, 97 F.3d 492, 495 (11th Cir. 1996), aff'g 894 F.Supp. 424, 426-27 (M.D. Ala. 1995); Dunn v. Dunn, No. 2:14-cv-00601-MHT-TFM, 2016 U.S. Dist. LEXIS 166251 (Nov. 25, 2016); Alabama Disabilities Advocacy Program v. SafetyNet Youthcare, Inc., 65 F.Supp.3d 1312, 1321-22 (S.D. Ala. 2014), on reconsideration in another part, 2015 U.S. Dist. LEXIS 16343 (S.D. Ala. Feb. 22, 2015); Alabama Disabilities Advocacy Program v. Wood, 584 F.Supp.2d 1314, 1315 (M.D. Ala. 2008).

         4. The individually-named Plaintiffs, the Class, as defined herein, and Plaintiff ADAP are collectively referred to herein as “Plaintiffs.”

         5. The Plaintiffs and Defendant Beshear are collectively referred to herein as the “Parties.”

         6. The purposes of this Settlement Agreement (the “Agreement”) are to (1) specify certain administrative and procedural changes to the provision of Outpatient Mental Evaluations, Inpatient Mental Evaluations and Competency Restoration Treatment by the ADMH Commissioner to ensure compliance with constitutional requirements for same; (2) to outline a plan for the implementation of such changes; and (3) to settle and resolve all claims that were or were required to have been asserted in the Lawsuit.

         7. The Parties stipulate that nothing in this Agreement will be used for any purpose outside of the above-captioned action or against the ADMH Commissioner in any other litigation that has been or may be filed against him. Nothing in this Agreement will be construed to require the ADMH Commissioner to do more than what is specified in the Agreement or otherwise required by the United States Constitution, federal law, or Alabama law including, but not limited to, Rule 11 of the Alabama Rules of Criminal Procedure, with respect to the provision of court-ordered Mental Evaluations and Competency Restoration Treatment to persons charged with a criminal offense in Alabama.

         8. Nothing in this Agreement shall be construed as an admission of liability by the ADMH Commissioner. To the contrary, the ADMH Commissioner denies every material allegation of the Complaint, as amended, as specifically set forth in his Answers to the Complaint and First Amended Complaint.

         9. The Parties believe that this Agreement is fair, reasonable, and adequate to protect the interests of all Parties concerning the issues addressed herein. The Parties jointly file this Agreement with the Court and ask the Court to issue an order approving this Agreement as final. The Parties believe that compliance with this Agreement by the ADMH Commissioner will meet the ADMH Commissioner's obligations under United States Constitution with respect to the timelines of mental evaluations and competency restoration treatment. In the event that this Agreement is not approved by the Court such that it settles and resolves, on a class basis and, with respect to Plaintiff ADAP, all claims asserted in the Lawsuit, the Parties retain all of their pre-settlement litigation rights and defenses, including the individually-named Plaintiffs' right to seek class certification and Plaintiff ADAP's right to seek a ruling certifying its standing for all purposes relevant to the litigation of the Lawsuit and all defenses of the Commissioner, including mootness of the Plaintiffs' claims, standing of each Plaintiff, objections to certification of any class and others. Additionally, the Parties shall return to the status quo ante in the Lawsuit as if the Parties had not entered into this Agreement. Any discussions, offers, or negotiations associated with this Agreement will not be discoverable or offered into evidence or used in the Lawsuit or any other action or proceeding for any purpose, without prejudice to the individually-named Plaintiffs' right to seek class certification and Defendant Beshear's right to oppose class certification. In such event, all Parties will stand in the same position as if the Agreement had not been negotiated, made or filed with the Court.

         III. STIPULATION REGARDING CLASS ACTION FOR PURPOSES OF SETTLEMENT

         1. For purposes of defining the class of persons intended to benefit from the Parties' Agreement, the ADMH Commissioner stipulates to the class of persons under Fed.R.Civ.P. 23(b)(2) to whom the administrative, structural, and procedural changes specified in Section VI below apply as follows:

         a. All persons who have been, or will be during the period that this Agreement remains in effect, charged with a crime, within the meaning of Rule 1.4(b) of the Alabama Rules of Criminal Procedure, in a court of competent jurisdiction in the State of Alabama, and detained in an Alabama city or county jail or Alabama Department of Corrections facility while awaiting a court-ordered Mental Evaluation or court-ordered Competency Restoration Treatment;

         i. For whom a Circuit Court has determined that reasonable grounds exist for a mental examination into the person's competency to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed the person to the custody of ADMH under Rule 11.3 of the Alabama Rules of Criminal Procedure by court order for an inpatient evaluation, whether or not the court's order references any provision of law in so ordering; or

         ii. Who is found incompetent to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed to the custody of ADMH under Rule 11.6 of the Alabama Rules of Criminal Procedure by court order for Competency Restoration Therapy, whether or not the court's order references any provision of law in so ordering.

         IV. STIPULATION REGARDING STANDING FOR PURPOSES OF SETTLEMENT

         1. For purposes of this Agreement only, the ADMH Commissioner does not contest that Plaintiff ADAP has standing in the Lawsuit to assert due process claims on behalf of persons within the State of Alabama with a mental illness and/or intellectual disability who have been charged with a criminal offense, ordered to receive an Outpatient Mental Evaluation, Inpatient Mental Evaluation, or Competency Restoration Treatment, and who await the provision of that treatment in an Alabama city or county jail or an Alabama Department of Corrections facility.

         V. DEFINITIONS

         1. “ADMH Commissioner” means Defendant Lynn Beshear, acting in his official capacity as Commissioner of the Alabama Department of Mental Health, together with his successors, in his administration and supervision of the Alabama Department of Mental Health.

         2. “Agreement” means this Settlement Agreement and any eventual Consent Decree entered by the Court that results, refers, or relates to the terms and conditions of this Settlement Agreement.

         3. “Alabama Department of Mental Health” or “ADMH” means the state agency charged with providing Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment to the persons defined in Sections III and IV above pursuant to relevant Alabama circuit court orders, Alabama Rule of Criminal Procedure 11, and, generally, Alabama Code Section 22-50-2.

         4. “Calendar Days” means all days, except where the last day of any relevant time period falls on a federal holiday observed by the United States District Court for the Middle District of Alabama, and then the next day that is not a Sunday.

         5. “Competency Restoration Treatment” means psychiatric therapy, treatment, medication, and/or education designed to restore a criminal defendant found incompetent to stand trial to competency as defined in Alabama Rule of Criminal Procedure 11.1, that is ordered by an Alabama circuit court pursuant to Alabama Rule of Criminal Procedure 11.6 or other applicable legal provision.

         6. “Final Approval” means approval of this Settlement Agreement by the Court by a final and appealable order.

         7. “Hospital Forensic Bed” means a duly licensed and certified bed in a state psychiatric hospital or contracted bed in an inpatient hospital or hospital-like setting. These beds may be provided through a contract between ADMH and a third-party provider, such as a Community Mental Health Center or designated Mental Health Center as provided by Ala. Code §§ 15-16-61(5), 22-51-1, et seq., 22-56-5 and 22-52-90(1).

         8. “Community Forensic Bed” means a duly licensed and certified bed in a community setting with up to sixteen (16) beds where the community service is managed and delivered by ADMH or by a community mental health provider through a contract with ADMH. A Community Forensic Bed may not be located on the grounds of any existing state hospital.

         9. “Incarcerated Person” means a person who has been arrested and charged with a criminal offense in a court of competent jurisdiction in Alabama who is incarcerated in an Alabama city or county jail or an Alabama Department of Corrections facility.

         10. “Incompetent to Stand Trial” means a finding by an Alabama Circuit Court or other court of competent jurisdiction that the individual found incompetent is unable to assist in the preparation of his or her defense as defined in Alabama Rule of Criminal Procedure 11.1 or comparable statute.

         11. “Inpatient Mental Evaluation” means a mental evaluation conducted within a state psychiatric hospital or comparable hospital-like facility into which the person being evaluated has been admitted for that purpose, and that is conducted by competent and adequately trained clinical personnel, including at a Community Mental Health Center.

         12. “Licensure and Certification Standards” means those standards for the construction and operation of facilities that provide mental health care to persons in the State of Alabama which are set forth in the Alabama Administrative Code Section 580, et seq. or designated mental health facility by ADMH.

         13. “Outpatient Mental Evaluation” means a mental evaluation conducted within the confines of a city or county jail or an Alabama Department of Corrections facility or within a therapeutic setting not requiring the admission and retention of the person being evaluated, and that is conducted by competent and adequately trained clinical personnel, in accordance with applicable professional standards.

         14. “Registered Sex Offender” means an individual convicted of an offense, which under Alabama law requires his or her registration in the Sex Offender Registry. An individual charged with an offense that, if convicted, would be required to register as a sex offender is not a Registered Sex Offender for purposes of this Agreement.

         15. “Substantial Compliance” means adhering to any plans or methods implemented by the ADMH Commissioner so as to comply with the terms of this Agreement. Isolated, acute, non-substantive or immaterial deviations from the terms of this Agreement or from any plans or methods implemented by the ADMH Commissioner so as to comply with the terms of this Agreement will not prevent a finding of Substantial Compliance, provided that the ADMH Commissioner can demonstrate that he has: (A) implemented a system or systems (i) for assuring compliance, and (ii) for taking corrective measures in response to instances of non-compliance; and (B) instituted policies, practices, and resources that are capable of durable and sustained compliance. For purposes of the termination of this Agreement as provided in Section X below, however, Substantial Compliance requires that the ADMH Commissioner provide court-ordered Outpatient and Inpatient Mental Evaluations and Competency Restoration Treatment within the time frames specified in Sections VI.1.A through VI.1.E based on an average monthly compliance rate defined below in Section VI.

         VI. SUBSTANTIVE PROVISIONS

         1. Timely Provision of Court-Ordered Mental Evaluations and Competency Restoration Treatment.

         The ADMH Commissioner, by and through ADMH, will provide court-ordered Mental Evaluations and Competency Restoration Treatment within the time periods specified in Subsections VI.1.A through VI.1.E below.

         A. Outpatient Mental Evaluations of Incarcerated Persons.

         i. By twelve (12) months after Final Approval of this Agreement, Outpatient Mental Evaluations of persons who are incarcerated at the time that a court orders that they be evaluated shall be conducted within forty-five (45) calendar days of the date of ADMH's receipt of the order for such evaluation by the circuit court issuing such order, subject to the protocol for the ADMH Commissioner's obtaining such order set forth in Appendix A. The clinician performing such Outpatient Mental Evaluation shall submit a report containing the ...


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