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Hunter v. Etowah County Court Referral Program, LLC

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

March 30, 2018

RICKY L. HUNTER, et al., Plaintiffs,
v.
ETOWAH COUNTY COURT REFERRAL PROGRAM, LLC, et al., Defendants.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION AND PROCEDURAL HISTORY

         Plaintiffs[1] initiated this civil rights lawsuit and purported class action on July 1, 2013, against Defendants City of Attalla (the “City”), the Etowah County Court Referral Program, LLC (the “ECCRP”), and the ECCRP's Executive Director, Lenesha Zaner (“Ms. Zaner”).[2] (Brannon, Doc. 1). Plaintiffs have amended their complaint multiple times. The last version was filed on April 9, 2015. (Brannon, Docs. 22, 43, 45, 63). By virtue of the pro tanto stipulated dismissal entered on August 9, 2016 (doc. 43), Plaintiff Charles Cantrell is no longer a party to this action.

         Pending before the Court are the following motions:

○ Motion for Summary Judgment (doc. 66) filed by the City (the “City's Motion”) on May 22, 2017;
○ Motion for Summary Judgment (doc. 73) filed by the ECCRP and Ms. Zaner (the “ECCRP Defendants' Motion”) on May 25, 2017; and
○ Objection to Admissibility and Motion To Strike Declaration of Richard Rhea filed by Plaintiffs (the “Strike Motion”) on October 19, 2017.

         The Court has reviewed the parties' filings offered in support of and opposition to the motions. (Docs. 67-72, 74-76, 79-83, 87-89, 91). For the reasons set out below, the City's Motion is due to be granted in part and otherwise termed as moot. The ECCRP Defendants' Motion is due to be granted in part and otherwise denied or termed as moot. Finally, the Strike Motion is due to be termed as moot.

         II. STANDARDS

         A. Summary Judgment

         Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to ‘come forward with specific facts showing that there is a genuine issue for trial.'” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

         B. Evidentiary Rulings

         “All evidentiary decisions are reviewed under an abuse-of-discretion standard” without regard to the type of proof challenged. General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); id. at 143 (concluding that the Eleventh Circuit Court of Appeals committed reversible error “[i]n applying an overly ‘stringent' review to [the district court's experts' testimony] ruling [because] it failed to give the trial court the deference that is the hallmark of abuse-of-discretion review”). “An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment.” United States v. Estelan, 156 F. App'x 185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).

         Moreover, as the Eleventh Circuit has made clear, not every incorrect evidentiary ruling constitutes reversible error:

Auto-Owners' second argument is that it is entitled to a new trial on the basis of what it describes as a number of erroneous evidentiary rulings by the district court. Evidentiary rulings are also reviewed under an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497, 1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that certain errors were committed, the errors must have affected “substantial rights” in order to provide the basis for a new trial. See Fed. R. Evid. 103(a). “Error in the admission or exclusion of evidence is harmless if it does not affect the substantial rights of the parties.” Perry, 734 F.2d at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319 (11th Cir. 1988).

         Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore, even the existence of many evidentiary errors does not guarantee the party appealing a new trial. Instead, such erroneous rulings by a district court must “affect the substantial rights of the parties” for reversible error to occur.

         III. FACTUAL BACKGROUND [3]

         Both Plaintiffs have been convicted and/or pled guilty to misdemeanor offensives within the jurisdiction of the Attalla Municipal Court (the “AMC”). Plaintiffs' civil rights suit challenges Defendants' practices under a court referral program (the “CRP”) that the AMC ordered them to participate in as a requirement of their probation and a suspension of their sentences tied to their misdemeanor convictions.

         Plaintiffs have summarized their respective AMC and CRP proceedings (doc. 83 at 7-26 ¶¶ 1-105) as follows.[4]

         MR. LOYD

         On July 23, 2009, Mr. Loyd was sentenced by the AMC on a misdemeanor charge of public intoxication (MC09-0461). Mr. Loyd received a 60-day jail sentence, which was suspended, and was ordered to enroll in the CRP. Based upon the ECCRP records filed in the Brannon case that relate to Mr. Loyd, on September 22, 2009, the ECCRP issued a return to court form notifying Judge Kenneth Robertson of the AMC that Mr. Loyd had been terminated from the CRP with respect to AMC case number 09-461.[5] (Brannon, Doc. 165-3 at 6 (N.D. Ala. July 3, 2017)).[6] On March 1, 2011, the ECCRP call logs note that Mr. Loyd was supposed to re-enroll in the CRP, however, no AMC written order to that effect can be found. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Mr. Loyd was scheduled for an evaluation on March 14, 2011.

         On March 15, 2011, AMC records show that Mr. Loyd contacted the AMC to request his time for participation in the CRP run concurrent with an Etowah County case he had in front of Judge Rhea. The AMC set the matter for hearing on April 21, 2011.

         Throughout March, April and May, Mr. Loyd was doing well with the CRP requirements, showing up for drug tests, color-code screening, and paying his fees. There are no notes in the ECCRP call log indicating that he failed to show up or complete a requirement. However, on July 14, 2011, the ECCRP notes that Mr. Loyd “owes too much to test.”

         Because Mr. Loyd was sentenced on July 23, 2009, he maintains that the two-year statutory maximum period for probation and/or the CRP should have expired on July 23, 2011. There is no AMC record to indicate that his probation was revoked or that his probationary period was tolled for any reason. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Loyd's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF. Mr. Loyd continued to be subjected to the CRP requirements beyond July 23, 2011.

         On July 26, 2011, Mr. Loyd failed to show up for a color-code drug test. On August 1, 2011, Mr. Loyd paid his June and July color-code fees and late fees. On August 3, 2011, Mr. Loyd returned to the ECCRP for a color-code drug test. On August 16, 2011, Mr. Loyd came to the ECCRP for a color-code drug test.

         On August 24, 2011, the ECCRP called Mr. Loyd to report in by August 31, 2011, and pay $100 or he would be terminated from the CRP. There is no indication that he was notified in writing of this deadline. At the same time, the absence of a written notice does not mutually exclude an oral contact being made by the ECCRP. CAF. On August 30, 2011, Mr. Loyd returned to the ECCRP for monitoring. He paid monitoring fees, August color-code fees, and late fees. It is noted that he had a “bad attitude about fees.”

         On September 1, 2011, Mr. Loyd reported to the ECCRP for color-code testing. On September 12, 2011, Mr. Loyd was a no-show for a color-code drug test. On September 21, 2011, Mr. Loyd reported to the ECCRP for color-code testing. At this time, he claims to have started over in the CRP because of his failure to show up for drug testing on September 12, 2011. There is no record of a return to court form for the failure to show up for the drug test. There is no record of a AMC written order for Mr. Loyd's participation in the CRP to start over. At the same time, the absence of written order does not mutually exclude an oral order by the AMC. CAF. Finally, there is no indication that the ECCRP had ever started Mr. Loyd over previously due to his failure to show up for testing.

         On October 11, 2011, Mr. Loyd reported to the ECCRP for color-code screening but was not drug tested because he “owe[d] too much to test.” On October 24, 2011, Mr. Loyd reported to the ECCRP for color-code screening, but was not drug tested because he “owe[d] too much to test.” On November 2, 2011, Mr. Loyd was a no-show for color-code screening and was terminated from the CRP.

         On November 3, 2011, the ECCRP issued a return to court form notifying the AMC that Mr. Loyd failed to report for color-code screening on September 12, 2011, and November 2, 2011. The ECCRP also noted that he owed too much to test on October 11, 2011, and October 24, 2011. The form also requested that a warrant be issued for Mr. Loyd's arrest. The return to court form also referenced Mr. Loyd's no-show on September 12, 2011, but he had already started over on the CRP requirements and had reported to the ECCRP at least three times after that earlier no-show in September.

         On November 17, 2011, the AMC issued a Notice of Return to Court and set a court date of January 19, 2012. On January 19, 2012, Mr. Loyd was found in “Contempt/CRO”[7] and ordered to serve 5 days in jail. The AMC also ordered Mr. Loyd to re-enroll in the CRP upon his release. Mr. Loyd was set to be released from jail on January 24, 2012, but was actually released on January 26, 2012, “per Captain Higgins.” Thus, Mr. Loyd actually served seven days in jail rather than five.

         On February 3, 2012, the ECCRP issued a return to court form notifying the AMC that Mr. Loyd failed to re-enroll in the CRP after his release from Attalla City Jail. The form also requested a warrant to be issued for his arrest. On this same date, Mr. Loyd also was noted as terminated in MIDAS.[8] Although the AMC ordered Mr. Loyd to re-enroll in the CRP upon his release, there was no deadline by which to do so. At the same time, the absence of a written order does not mutually exclude an oral order indicating a deadline. CAF. There is also no indication that Mr. Loyd was given any written notice that he had a deadline to enroll or that he was about to be terminated from the CRP.

         On March 20, 2012, a new case management plan was submitted for Mr. Loyd, but it was designated as for his Gadsden Municipal Court (“GMC”) case. Mr. Loyd was shown as active in MIDAS for his GMC case as well.

         On March 26, 2012, Mr. Loyd called the ECCRP. On March 27, 2012, Mr. Loyd reported to the ECCRP, received drug testing pursuant to color-code screening, signed a new case management plan, and scheduled a new evaluation for April 12, 2012. It is also noted that Mr. Loyd owed $110 in back fees. After Mr. Loyd was terminated on February 3, 2012, there was is no written record of any AMC order for him to re-enroll in the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Also, the record lacks any evidence of a written order from the AMC indicating that Mr. Loyd's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF.

         On April 4, 2012, the ECCRP contact log notes that Mr. Loyd did not show up for a color-code drug test. On April 12, 2012, Mr. Loyd's GMC case was closed per written order.

         On April 13, 2012, the ECCRP issued a return to court form notifying the AMC that Mr. Loyd failed to report in for an evaluation on April 12, 2012, that he failed to report for color-code testing on April 4, 2012, and that he failed to pay fees. The form also requested the AMC to set a show cause hearing.

         It should be noted that Mr. Loyd was terminated from the CRP on February 3, 2012, and there is no record of any court order for him to re-enroll in the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Additionally, the record lacks any evidence of a written order from the AMC indicating that Mr. Loyd's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF. There is also no record of the missed evaluation on April 12, 2012, in the ECCRP contact logs.

         On May 11, 2012, the AMC issued a Notice of Return to Court and set a court date for June 14, 2012. On July 2, 2012, a complaint was filed against Mr. Loyd for Failure To Appear on June 14, 2012. The complaint was signed by the City. On that same date, an Alias Warrant for Arrest for Failure of Defendant To Appear was entered by a magistrate. The warrant and the complaint signed by the City have corresponding warrant numbers.

         On September 29, 2012, the Alias Warrant was stamped as cleared by Circuit Court Judge Millican. Mr. Loyd hired an attorney, Eddy Cunningham, as a result of the warrant. On October 11, 2012, Mr. Loyd was released from the CRP per AMC order.

         As noted above, Mr. Loyd was sentenced on July 23, 2009. Mr. Loyd maintains that the statutory maximum period for probation, the suspended sentence, and/or the CRP requirements should have expired on July 23, 2011. After this statutory maximum period had expired, Mr. Loyd continued to be subjected to the CRP requirements for more than a year-until October 11, 2012-when he was released from the CRP and his AMC case was closed.

         After October 11, 2012, [9] Mr. Loyd was scheduled for at least one monitoring session, called by the ECCRP at least twice, color-coded at least eleven times, and returned to court at least three times. Mr. Loyd was also charged drug-testing fees, monitoring fees, and/or late fees at least twice during this time. Mr. Loyd maintains that he was also incarcerated for at least seven days as a direct result of his failure or inability to comply with the CRP requirements after the statutory maximum period had expired.

         Mr. Loyd had at least one complaint and warrant sworn out against him by the City that directly stemmed from his inability or failure to comply with the CRP requirements beyond the statutory maximum. He was never arrested as a result of that complaint or warrant, but he was required to hire an attorney to represent him in that matter and have the warrant recalled.

         Mr. Loyd maintains that the ECCRP was actively and knowingly pursuing him for fees and failures under the CRP during a period of time that he should have been terminated from it and not been ordered by the AMC to re-start or re-enroll.

         MR. HUNTER

         On March 29, 2007, Mr. Hunter was sentenced by the AMC on a misdemeanor charge of unlawful possession of drug paraphernalia (MC07-0143). He was sentenced to a 60-day jail sentence, which was suspended, and ordered to enroll in the CRP.

         On April 16, 2007, Mr. Hunter enrolled in the CRP and received a case management plan that required twelve months of monitoring, color-code screening and attending two self-help meetings (AA) a week. On April 22, 2008, the ECCRP re-started Mr. Hunter on his CRP requirements because he had failed to attend the requisite number of AA meetings and, as a result, he received a new case management plan. Mr. Hunter points out that he was testing clean and paying, the only issue was that he lacked AA meetings. At the same time, attendance at AA meetings was one of the requirements of his suspended sentence ordered by the AMC. CAF.

         There is no written order from the AMC to re-start Mr. Hunter on the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. There also is no indication that the ECCRP made a written report to the AMC about Mr. Hunter's failure to attend the required AA meetings. At the same time, the absence of a written communication does not mutually exclude an oral contact being made by the ECCRP. CAF.

         On May 11, 2008, Mr. Hunter completed level one of the CRP and received a certificate of completion. There are no issues noted for Mr. Hunter throughout the rest of 2008.

         On February 23, 2009, a DHR worker called the ECCRP to inform it that Mr. Hunter had a positive drug test. The contact logs note that the “case worker will instruct [Mr. Hunter] to report.” It also notes that Mr. Hunter was supposed to report on February 27, 2009. However, there is no written indication that Mr. Hunter was made aware of this deadline to report. At the same time, the absence of a written communication does not mutually exclude an oral contact being made by the ECCRP. CAF.

         On March 2, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for required monitoring sessions in January and February. The form also requested that a warrant be issued for Mr. Hunter's arrest. However, there is no written indication in the ECCRP contact logs that Mr. Hunter was scheduled for a monitoring session or that he failed to attend a monitoring session.

         On March 8, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for March 19, 2009. On March 19, 2009, the AMC ordered Mr. Hunter to re-enroll in the CRP. The ECCRP notes that Mr. Hunter was supposed to “return to complete CRO, ” however the AMC records actually do not order Mr. Hunter to “complete” the CRP, just re-enroll.

         Because Mr. Hunter was sentenced on March 29, 2007, he maintains that the two-year statutory maximum period for probation, suspended sentence, and/or the CRP should have expired on March 29, 2009. There is no AMC written record indicating that his probation was revoked or that his probationary period was tolled for any reason. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Hunter's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF. Mr. Hunter continued to be subjected to the CRP requirements beyond March 29, 2009.

         On March 30, 2009, the ECCRP noted in the contact logs that, if Mr. Hunter did not report in by March 31, 2009, he would be terminated. Although the AMC did order Mr. Hunter to re-enroll in the CRP, there is no written record from the AMC reflecting a deadline by which to do so. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Also, there is no written evidence confirming that Mr. Hunter was made aware of the March 31, 2009, deadline. At the same time, the absence of a written communication does not mutually exclude an oral contact being made by the ECCRP. CAF.

         On April 1, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to make contact and re-enter the CRP. The form also requested that a warrant for his arrest be issued. On the same day, the ECCRP changed Mr. Hunter's status to “terminated.” Also on April 1, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for April 23, 2009.

         On April 23, 2009, the AMC found Mr. Hunter in “Contempt/CRO” and ordered him to 60 “mandatory days” in jail. His original release date was set for June 21, 2009. However, that release date was struck through and a release date of May 1, 2009, was given with a new court date of June 4, 2009.

         On May 1, 2009, a phone call is noted in MIDAS that Mr. Hunter was told to report on May 4, 2009, and sign back up with the CRP. There is no written order from the AMC ordering Mr. Hunter to re-enroll with the CRP upon his release from jail. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Hunter's obligation to complete the CRP was no longer a condition of his suspended sentence for his misdemeanor case. CAF. On May 11, 2009, a phone call is noted in MIDAS that Mr. Hunter was told to report by 4:00 p.m. that day or he would be terminated.

         On May 13, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to re-enroll with the CRP as instructed by the AMC on May 1, 2009. There is no written record of the AMC ordering Mr. Hunter to re-enroll with the CRP on that date. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF.

         On June 4, 2009, the AMC ordered Mr. Hunter to re-enroll in the CRP and indicated that he would get “jail next time.” The AMC also set him for a CRP review on December 10, 2009. The ECCRP notes in its contact logs that Mr. Hunter was given a 5-day suspended sentence, ordered to re-enroll in the CRP, and told to report by June 5, 2009. On June 5, 2009, Mr Hunter reported to the ECCRP and was scheduled for a new evaluation. It was noted that “when [Mr. Hunter] completes meetings, will complete him then per [court].”

         On June 22, 2009, Mr. Hunter was called and scheduled for a new evaluation on July 8, 2009. He was told to bring $80 on that date.

         On July 8, 2009, the ECCRP called Mr. Hunter and got two wrong telephone numbers. On July 9, 2009, Mr. Hunter reported to the ECCRP for an evaluation. He was screened for drugs and tested positive. Mr. Hunter was given a new evaluation and signed a new case management plan. This new plan gave him a “goal date” of August 27, 2010-more than a year away-for completing the CRP.

         On July 31, 2009, August 4, 2009, and August 11, 2009, Mr. Hunter was a no-show for color-code screening. On August 11, 2009, Mr. Hunter was terminated from the CRP. There is no written evidence indicating that Mr. Hunter was given notice that he was about to be terminated from the CRP.

         On August 12, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for three color-code drug tests. On August 19, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for September 24, 2009. On September 24, 2009, the AMC noted to issue an alias writ. However, the AMC entered a note the next day to hold off on issuing the alias writ until October 8, 2009, as Mr. Hunter had contacted the AMC with an explanation that he had missed his court date because he was injured at work and was in the emergency room.

         On October 8, 2009, the AMC ordered Mr. Hunter to re-enroll in the CRP. The ECCRP notes that Mr. Hunter was ordered to re-enroll in the CRP and was supposed to report by October 13, 2009. There is no written record from the AMC imposing a deadline on Mr. Hunter by which to report to the ECCRP and re-enroll. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF.

         On October 19, 2009, the ECCRP noted that Mr. Hunter had not called or reported in and terminated him from the CRP. Again, there is no written order from the AMC making Mr. Hunter aware of any deadline by which he was supposed to report to the ECCRP and re-enroll in the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. There also is no written evidence indicating that he was notified of his imminent termination from the CRP.

         On October 19, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to re-enroll in the CRP. On October 21, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for November 19, 2009. Mr. Hunter missed the show cause setting. CAF.

         Subsequently, a complaint was filed against him for Failure To Appear in Court on November 19, 2009. That complaint was signed by the City. On January 11, 2010, an Alias Warrant of Arrest for Failure of Defendant To Appear was issued by a magistrate. Both the warrant and the complaint signed by the City have corresponding warrant numbers. On February 19, 2010, Mr. Hunter was arrested on the Failure To Appear. The arrest record references the same warrant number that the complaint signed by the City and the Alias Warrant contain.

         Mr. Hunter's arrest for Failure To Appear led to a new charge and case number. (MC10-0083). He was found guilty of Failure To Appear on March 25, 2010, and was ordered to re-enroll in the CRP. He was also set for a CRP review on September 23, 2010.

         On March 31, 2010, Mr. Hunter was called and informed to report to the CRP by April 5, 2010. There is no written record that confirms that this was a deadline set by the AMC. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF.

         On April 5, 2010, Mr. Hunter reported to the ECCRP, he was color-coded and the ECCRP noted that he still needed 156 self-help meetings. On April 7, 2010, Mr. Hunter had a positive color-code drug test. The ECCRP noted that he owed $60 in monitoring fees plus drug-testing and late fees by April 9, 2010.

         On April 14, 2010, April 23, 2010 and May 11, 2010, Mr. Hunter did not report in for color-code drug tests. On May 11, 2010, the ECCRP terminated him. There is no written evidence indicating that Mr. Hunter was made aware that termination was imminent prior to actually being terminated.

         On May 12, 2010, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for three color-code drug tests. The form also requested that a warrant be issued for his arrest. Also on May 12, 2010, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for June 10, 2010.

         On June 10, 2010, the ECCRP noted that Mr. Hunter did not appear for his scheduled court date. On June 14, 2010, the AMC issued a new Notice To Show Cause for Failure To Attend the CRP and set a court date for June 24, 2010.

         On June 24, 2010, Mr. Hunter was found in “Contempt/CRO” and given a “mandatory” 120 days in jail. He was further required to re-enroll in the CRP upon his release from jail. His release date was set on October 28, 2010.

         On July 29, 2010, the AMC noted that Mr. Hunter was released from jail after serving 35 of his 120 days for contempt. A CRP review was set for September 23, 2010. Mr. Hunter hired attorney Danny Bone who spoke with the AMC judge and got Mr. Hunter released from jail early.

         On July 29, 2010, the ECCRP noted that Mr. Hunter had been released from jail and if he did not report to it by August 6, 2010, he would be terminated. There is no written record from the AMC setting this deadline for Mr. Hunter to report to the ECCRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. There also is no written evidence indicating that Mr. Hunter was made aware of this deadline by which he must report in or be terminated.

         On August 6, 2010, Mr. Hunter was terminated from the CRP. The ECCRP noted that a printed return to court form was issued but a copy of it does not appear in the records produced. Mr. Hunter's termination is not reflected in the ECCRP call log either.

         On August 9, 2010, Mr. Hunter reported to the ECCRP. At this time, he was placed back on color-code screening and an evaluation was scheduled for August 24, 2010. Mr. Hunter made payments for drug-testing and rescheduling fees at this time as well. Mr. Hunter had previously been terminated on August 6, 2010, and there is no written order from the AMC to re-enroll after that termination. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Hunter's obligation to complete the CRP was no longer a condition of his suspended sentence for his misdemeanor cases. CAF.

         On August 12, 2010, Mr. Hunter did not report for a color-code drug test. The ECCRP noted that he had “one more chance.” There is no written evidence indicating that Mr. Hunter was made aware that he only had “one more chance.” On August 24, 2010, Mr. Hunter reported to the ECCRP and his evaluation was rescheduled for September 9, 2010.

         On September 7, 2010, Mr. Hunter failed to report for a color-code drug test. The ECCRP noted that he would be terminated when he did not show up for his evaluation. There is no written evidence indicating that Mr. Hunter was notified of his imminent termination.

         On September 20, 2010, Mr. Hunter failed to report for a color-code drug test and was terminated. On the same day, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for two evaluations and three color-code drug tests.

         On September 23, 2010, Mr. Hunter was set for a CRP review but failed to show up. On October 18, 2010, the AMC issued a Notice To Show Cause for Failure To Attend the CR[P] and set a court date for November 4, 2010. Mr. Hunter failed to appear for his scheduled court date. A complaint was filed against Mr. Hunter for Failure To Appear in Court on November 4, 2010. That complaint was signed by the City.

         On November 29, 2010, an Alias Warrant for Arrest for Failure of Defendant To Appear was issued by a magistrate. Both the warrant and the complaint signed by the City have corresponding warrant numbers. On August 20, 2011, Mr. Hunter was arrested on the Failure To Appear. The arrest record references a warrant issued on the same date as the Alias Warrant above dated November 29, 2010.

         Mr. Hunter's second arrest for Failure To Appear led to a new charge and case number (MC11-0646). Mr. Hunter hired attorney Eddy Cunningham to represent him on this third misdemeanor case. Apparently, Mr. Hunter failed to appear in court on September 22, 2011, because on October 12, 2011, a complaint was filed against him for Failure To Appear in Court on September 22, 2011. The complaint is signed by the City.

         On October 12, 2011, an Alias Warrant of Arrest for Failure of Defendant To Appear was issued by a magistrate. Both the complaint and the warrant reference the same warrant number. The Alias Warrant was cleared by Ramos on May 4, 2012, and recalled on May 7, 2012. The underlying case for which this warrant was issued, the Failure To Appear in MC11-0646, was dismissed on July 12, 2012.

         On May 5, 2015, Mr. Hunter's misdemeanor case(s) and obligation to complete the CRP were closed. Mr. Hunter was sentenced in his first misdemeanor case on March 29, 2007. Mr. Hunter was sentenced in his second misdemeanor case on March 25, 2010.

         Mr. Hunter claims that the statutory maximum period for probation, the suspended sentence, and/or completing the CRP should have expired on March 29, 2009. Mr. Hunter continued to be subjected to ECCRP requirements until May 5, 2015, when his misdemeanor case(s) were closed. After March 29, 2009, Mr. Hunter was scheduled for at least one evaluation, called by the ECCRP at least three times, required to report to the ECCRP at least three times, color-coded at least twelve times, and returned to court at least six times. Mr. Hunter was also charged drug-testing fees, monitoring fees, and/or late fees at least five times. Mr. Hunter also claims that he was incarcerated for at least forty-three days as a direct result of his failure or inability to comply with the CRP requirements after the statutory maximum period had expired.

         Mr. Hunter had three complaints and warrants sworn out against him by the City that directly stemmed from his inability or failure to comply with the CRP requirements. He was arrested twice as a result of those complaints and warrants, received two new charges and cases against him, and had to hire an attorney to represent him in those matters.

         IV. PRELIMINARY ISSUES

         Before turning to an analysis of the pending motions, the Court will first determine those claims that remain in this severed action.

         Plaintiffs' Relevant Claims

         Plaintiffs' third amended and restated complaint has 21 separate counts (asserting both federal and state law claims), 359 paragraphs, and 97 pages. (See generally Brannon, Doc. 63 (N.D. Ala. Apr. 9, 2015)). Because this case was originally part of the Brannon lawsuit, some of the counts included in the operative complaint are beyond the scope of the City's Motion and the ECCRP Defendants' Motion as they relate only to the City of Gadsden, a non-party in this case. The non-applicable counts are Counts Two, Five, Eight, Eleven, Fourteen, and Eighteen. Those counts which remain pertinent here are summarized below:

         Plaintiffs' Constitutional Counts[10]

◘ Count One-Denial of Due Process by the ECCRP and/or Ms. Zaner in her Personal Capacity Applicable to All Plaintiffs (Brannon, doc. 63 at 39-43 ¶¶ 129-142);[11][12]
◘ Count Three-Denial of Due Process by the City Applicable to Plaintiffs Hunter and Loyd (id. at 46-49 ¶¶ 155-166);[13]
◘ Count Four-Violation of the Fourth Amendment by ECCRP and/or Ms. Zaner in her Personal Capacity Applicable to All Plaintiffs (id. at 49-52 ¶¶ 167-178);
◘ Count Six-Violation of the Fourth Amendment by the City Applicable to Plaintiffs Hunter and Loyd (id. at ...

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