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Hunter v. Beshear

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

January 25, 2018

DEMONTRAY HUNTER, et al., Plaintiffs,
v.
LYNN T. BESHEAR, in her official capacity as the Commissioner of the Alabama Department of Mental Health, Defendant.

          FINAL SETTLEMENT APPROVAL OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         The claim presented in this litigation is that the Alabama Department of Mental Health (ADMH) fails to provide timely competency mental-health evaluations and restoration treatments to pretrial detainees. The claim rests on the Due Process Clause of the Fourteenth Amendment, as enforced through 42 U.S.C. § 1983.

         The plaintiffs are pretrial detainees who have been found incompetent to stand trial and committed to the custody of the ADMH for competency restoration if possible; a pretrial detainee who may be incompetent and has been committed for an inpatient mental evaluation; and the Alabama Disabilities Advocacy Program (ADAP), Alabama's protection and advocacy organization for people with mental illness and disabilities. The defendant is the Commissioner of the ADMH, sued in her official capacity only.

         Briefly, plaintiffs claim that the ADMH fails to provide timely competency evaluations and restoration services because demand for those services exceeds the Department's capacity to provide them through the psychiatric hospitals it operates. They alleged that the pretrial detainees remained incarcerated in a county jail for up to eight months after a court order committing them to the Department for treatment or evaluation. They sought declaratory and injunctive relief. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights).

         The parties submitted a joint motion for preliminary approval of a settlement. The court granted preliminary approval; provisionally certified a putative plaintiff class; required notice to class members and their representatives; entertained objections and comments from the members and their representatives; and held a fairness hearing.

         For the reasons that follow, the court will grant final approval of the settlement and the parties' request to enter a consent decree.

         I. DESCRIPTION OF PROPOSED SETTLEMENT

         The settlement agreement runs some 43 pages. It provides for the following.

         Timely Provision of Court-Ordered Mental Evaluations and Competency Restoration Treatment: The ADMH is required to provide court-ordered mental evaluations and competency restoration treatment within specified time periods:

(1) Mental Evaluations: By 12 months after final approval, the Department must conduct both inpatient and outpatient mental evaluations within 45 calendar days of the date of ADMH's receipt of the circuit court order mandating the evaluation, and the clinician must submit a report with the findings from the evaluation to the circuit court within 45 days of conducting the evaluation. By 24 months after final approval, the time periods are reduced to 30 days.
(2) Competency Restoration Therapy and Treatment: By 12 months after final approval, the Department must admit persons found incompetent to stand trial and committed to its custody for treatment into an institution suitable for treatment within 45 days. By 24 months after final approval, the time period is reduced to 30 days.
(3) Order of Evaluations and Treatment: As a general rule, the Department will continue to provide services to those persons it is ordered to evaluate or treat based on the date of receipt of the court order. The agreement generally prohibits the Department from meeting the agreement's time periods by prioritizing, for admission into a state forensic hospital, persons who have been found incompetent to stand trial and ordered to receive treatment over persons who have been found not guilty by reason of insanity and ordered to receive inpatient psychiatric services. If, in exceptional circumstances, the Department ‘skips' persons found not guilty by reason of insanity to treat persons found incompetent, the skip will affect the Department's compliance rate. The agreement authorizes, but does not require, the Department to treat persons earlier than dictated by the date of receipt of court order (i.e., ‘line jumping').
(4) Substantial Compliance: The agreement defines the standard to determine whether the Department is in ‘substantial compliance' with the agreement. By 12 months after final approval, the average time period for the provision of inpatient and outpatient mental evaluations and competency restoration treatment must not exceed the applicable time frame by 20 %. For example, for a service that is to be provided within 45 days, the average time period must not exceed 54 days. By 24 months after final approval, the average time period may not exceed the applicable time frame by 12 %. For example, for a service that is to be provided within 30 days, the average time period must not exceed 34 days. This section also defines the treatment of, for the purposes of calculating the Department's average monthly compliance rate, and establishes a dispute resolution process, concerning individuals who are next in line to receive a service but are ‘skipped' by the Department because of an obstacle to providing the service at that time.

         Increase in Capacity: The ADMH will increase its bed capacity to provide court-ordered inpatient mental evaluations and competency restoration treatment. Within 24 months after final approval, the Department must add and operate 101 total new beds: 49 hospital forensic beds and 52 community forensic beds. Of those, 44 beds must be operational within 12 months after final approval (24 hospital forensic beds and 20 community beds). Five of the community forensic beds must be suitably located for registered sex offenders; all community forensic beds must be distributed in group homes throughout the State of no greater than 16 beds.

         Training: The Department will offer initial and periodic training to state circuit court personnel, county sheriffs, and members of the Alabama State Bar concerning the procedures for mental evaluations and competency-restoration treatment.

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

         Dispute Resolution Process: The parties are to meet and confer to resolve any disputes that arise during the implementation and monitoring periods of the agreement. If the parties are unable to resolve the dispute, they will submit disputes to the magistrate judge, with appeal to the district court.

         Termination: The consent decree will terminate after three years unless either plaintiffs or the parties jointly request, and the court grants, an extension.

         Amendment: The parties may mutually amend the agreement in writing signed by the parties and approved by the court.

         Funding: The parties acknowledge that implementation of the agreement is subject to the availability and receipt of appropriated funds, but the lack of funding or third-party cooperation does not preclude the court from entering an order to achieve compliance. The Department and ADAP agree to make good-faith efforts to seek all necessary funding.

         Attorneys' Fees: Finally, the Department will pay plaintiffs' attorneys $ 275, 000 in fees and costs for services rendered through March 13, 2017. Thereafter, the Department will pay plaintiffs' attorneys additional fees of $ 275 per hour for services rendered through final approval, and $ 195 per hour for monitoring services rendered by attorneys (subject to caps).

         II. DISCUSSION

         Judicial policy favors the settlement of class-action cases. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). Nevertheless, the court retains an important role in evaluating and approving such settlements, pursuant to multiple provisions of Federal Rule of Civil Procedure 23. First, because the settlement contemplates the certification of a class, the court must determine whether the requirements of subparts (a) and (b) of the rule are met. Second, subpart (e) imposes both procedural and substantive requirements that must be satisfied before the court may approve a settlement that binds absent class members. Third, because the settlement includes an agreed-upon award of attorneys' fees and costs to plaintiffs' counsel, the court must determine their suitability for appointment as class counsel pursuant to subpart (g) and the reasonableness of the fee award reasonable pursuant to subpart (h).

         A. Class Certification: Rule 23(a) and (b)(2)

         The court previously granted provisional certification of a settlement class defined to include “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.” Preliminary Settlement Approval Order (doc. no. 67) at 2-3.

         Having considered the parties' post-settlement brief on this topic, the court now concludes that final certification of this settlement class is appropriate.

         In order for any certification motion to succeed, the putative class representatives must show that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). In addition, a class must clear one of three additional hurdles; because the named plaintiffs in this case seek certification of a Rule 23(b)(2) class, they must also show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). These requirements apply with “equal force” to uncontested certification of a class for purposes only of settlement. Austin v. Hopper, 15 F.Supp.2d 1210, 1224 (M.D. Ala. 1998) (Thompson, J.).

         Class certification also requires an examination of two preliminary hurdles, which will be considered first: standing and ascertainability.

         i. Standing

         “[A]ny analysis of class certification must begin with the issue of standing”; only once the court finds that the named plaintiffs have standing may it consider whether they have “representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). To show Article III standing, the named plaintiffs must show that they have been injured, that their injuries are fairly traceable to the defendant's conduct, and that a judgment in their favor would likely redress their injuries. See Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286 (11th Cir. 2010). The standing inquiry looks for the existence of a dispute at the beginning of the litigation, that is, at the time of filing the complaint. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003).

         The named pretrial-detainee plaintiffs clearly have standing to assert the claim in the complaint and now resolved in the settlement agreement.[1] Each is a pretrial detainee in the custody of the Department, and (allegedly) has been made to wait for admission to an ADMH-facility for a competency examination or competency restoration treatment for periods of time that are so substantial as to violate the Fourteenth Amendment. A judgment in plaintiffs' favor would have remedied these alleged violations, just as will this consent decree.

         ii. Clearly Defined and Ascertainable

         Class certification pursuant to Rule 23 has been construed to include an additional, implicit requirement that the class is “adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)). However, because Little reached that conclusion in the context of a subpart (b)(3) damages class, there is “serious reason to doubt that the judicially created ascertainability requirement applies to Rule 23(b)(2) [injunctive-relief] classes.” Braggs v. Dunn, 317 F.R.D. 634, 671 (M.D. Ala. 2016) (Thompson, J.).

         The court need not conclude whether the ascertainability requirement applies here, because even if the requirement did apply, the proposed class definition would satisfy it. The settlement class is limited to persons who have been charged with a crime, committed to the custody of ADMH for an inpatient mental evaluation or competency restoration treatment, and await evaluations while being detained in an Alabama city or county jail or ADOC facility. Accordingly, the class is ascertainable by reference to the circuit court orders committing criminal detainees to ADMH custody. See Strawser v. Strange, 307 F.R.D. 604, 611 (S.D. Ala. 2015) (Granade, J.) (finding that class is ascertainable where members can be identified by reference to applications for marriage licenses). No. further inquiry is required other than the review and application of objective criteria to these public records; this satisfies the ascertainable requirement.

         iii. Rule 23(a)

         1. Numerosity

         Rule 23(a)(1)'s requirement of numerosity is satisfied if joinder--the usual method of combining similar claims--would be impracticable. Although there is no strict threshold, classes containing more than 40 members are generally large enough to warrant certification. See, e.g., Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986); see also William B. Rubenstein, Newberg on Class Actions § 3.12 (5th ed.). “[P]laintiff[s] need not show the precise number of members in the class, ” given that the numerosity requirement is “less significant” where “class wide discrimination has been alleged.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983).

         The parties submitted evidence, in the form of waiting-list records for the ADMH's Taylor Hardin Secure Medical Facility, indicating that, as of April 27, 2017, there were 32 current class members. See Joint Statement Ex. A (doc. no. 77-1). The parties also represented that they identified two additional current class members, bringing the total number to 34. See Joint Statement (doc. no. 72) at 15.

         The number of current class members is supplemented by an additional number of future class members. The “fluid nature of a plaintiff class--as in the prison-litigation context--counsels in favor of certification of all present and future members.” Henderson v. Thomas, 289 F.R.D. 506, 510 (M.D. Ala. 2012) (Thompson, J.).

         In this case, future class members include hundreds of people who have already been charged with a crime and who are awaiting an outpatient mental examination. Approximately 28 % of persons ordered to receive such examinations will be found incompetent to stand trial and committed to the Department's custody for competency restoration treatment. See Ex. E, Simpler Dep. (doc. no. 77-6) at 93:10-21. In addition, some persons who undergo outpatient examinations can be expected to be ordered to undergo a more comprehensive inpatient examination where necessary for a court to make a final determination as to that person's competency. See Ala. R. Crim. P. 11.3(c)(3) (authorizing inpatient examinations if the initial “examiner reports that confinement for evaluation is indispensable to a clinically valid diagnosis and report”). Future class members also include those who will later be charged with a crime and ordered to undergo an inpatient mental evaluation or competency-restoration treatment during the pendency of the agreement. The future class members will easily bring the number of total class members to well in excess of 100.

         In light of the evidentiary showing that there are at least--and probably quite substantially more than--100 current class members, and in light of precedent making clear that it is appropriate in this context to consider future and as-yet-unidentifiable class members in determining whether joinder is impracticable or indeed impossible, the court finds that the class meets the numerosity requirement of subpart (a)(1) of Rule 23.

         2. Commonality

         Subpart (a)(2) of Rule 23 requires plaintiffs seeking class certification to show that “there are questions of law or fact common to the class.” In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court explained that class members must have “suffered the same injury. ... [T]his does not mean merely that they have all suffered a violation of the same provision of law. ... [Rather, ] [t]heir claims must depend upon a common contention ... [which] must be of such a nature that it is capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. What matters to class certification ... is not the raising of common ‘questions'--even in droves--but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. at 350 (citation and internal quotation marks omitted). In short, commonality requires a showing that there is “some glue” holding the claims together. Id. at 352.

         Plaintiffs seeking to demonstrate commonality under subpart (a)(2) need not show that common questions “predominate” over individual questions as required under Rule 23(b)(3); indeed, “even a single common question will do, ” provided there are not “[d]issimilarities within the proposed class” that “have the potential to impede the generation of common answers.” Wal-Mart, 564 U.S. at 359, 351 (citations and alterations omitted).

         The named pretrial detainees have raised a single claim on behalf of the class: whether the ADMH's failure to provide inpatient mental-health services to the class in a timely manner, combined with the class members' detention in a jail or prison, violates their rights under the Due Process Clause of the Fourteenth Amendment.

         The class members experience the constitutional harm in somewhat divergent ways. Some class members have already been found incompetent and are awaiting inpatient treatment to restore them to competency; others are awaiting an inpatient examination to determine whether they are incompetent. Moreover, class members are detained in various city and county jails spread throughout Alabama, and therefore experience the harm--the delayed receipt of inpatient mental-health services--in different settings. However, the commonality requirement may be satisfied “even if some factual differences concerning treatment” are present. In re Checking Account Overdraft Litigation, 307 F.R.D. 656, 668 (S.D. Fla. 2015) (King, J.).

         Despite these factual distinctions, a classwide proceeding would have “generate[d] common answers apt to drive the resolution of the litigation, ” Wal-Mart, 564 U.S. at 350 (citation and internal quotation marks omitted); principally, the proceeding would have answered the factual questions of whether the Department has failed to provide court-ordered inpatient mental-health services to detainees committed to its custody for that purpose in a constitutionally permissible period of time; and, if so, it would resolve the sole legal question, namely whether that failure violates class members' due-process rights. Plaintiffs not only alleged in their complaint that this failure violated the Due Process Clause; they presented evidence to show as much in support of their motion for a preliminary injunction. While the court would of course have had to weigh this evidence against ...


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