Dunn et al v. Thomas et al

Filing 1009

PHASE 2A ADAP SUMMARY JUDGMENT OPINION. Signed by Honorable Judge Myron H. Thompson on 11/25/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2A ADAP SUMMARY JUDGMENT OPINION
The

plaintiffs

in

this

putative

class-action

lawsuit are dozens of state prisoners and the Alabama
Disabilities Advocacy Program (ADAP).

The defendants

are officials of the Alabama Department of Corrections
(ADOC): the Commissioner and the Associate Commissioner
of Health Services.1

They are sued in their official

capacities only.
1. ADOC itself is also a party, but with respect
to only claims under the Americans with Disabilities
Act (ADA), codified at 42 U.S.C. § 12131 et seq., and
(continued...)

In Phase 2A of this case, with which this opinion
is

concerned,

ADAP

and

a

subset

of

individual

plaintiffs assert the following mental-health claims:
constitutionally inadequate mental-health treatment in
Alabama

prison

without

due

facilities

process.

and

They

involuntary

rely

on

the

medication
Eighth

and

Fourteenth Amendments, as enforced through 42 U.S.C.
§ 1983.
relief.

Plaintiffs

seek

declaratory

and

injunctive

Jurisdiction is proper under 28 U.S.C. § 1331

(federal question) and § 1343 (civil rights).2

§ 504 of the Rehabilitation Act of 1973, codified at 29
U.S.C. § 794, which are nearly settled and therefore
not discussed in this opinion. See Joint Status Report
(doc. no. 968) at 968 (“Plaintiffs and Defendants ADOC
have agreed in substance to a settlement that resolves
the Phase 2A ADA issues.
These parties continue to
work to resolve the Plaintiffs’ claims for attorneys
and monitoring fees for these issues.”). To the extent
that the parties are not successful in reaching a final
resolution of these claims, they have reserved them for
later adjudication. See Phase 2 Order on Remaining ADA
Claims (doc. no. 981).
2. This case has twice been bifurcated for the
administrative convenience of the court and the
parties.
The claims in Phase 1, which the parties
settled with a consent decree approved by the court,
involved ADA claims alleging discrimination on the
(continued...)
2

The

issue

before

the

court

is

whether

ADAP

has

associational standing to bring the mental-health care
claims at issue in Phase 2A of this case.3

The court

concludes that it does.

basis
of
and
non-accommodation
of
physical
disabilities. See Dunn v. Dunn, -- F.R.D. --, 2016 WL
4718216 (M.D. Ala. Sept. 9, 2016) (Thompson, J.). The
claims in Phase 2B, which are set to go to trial after
the Phase 2A claims (should they survive summary
judgment), involve Eighth Amendment claims related to
medical and dental care.
3. ADAP itself has been a plaintiff in this case
since its outset.
During the course of litigation of
Phase 1 (concerning discrimination against and failure
to accommodate prisoners with physical disabilities),
the court sought clarification as to the precise basis
for ADAP’s standing--that is, whether it was claiming
organizational standing, associational standing, or
both.
In response, ADAP represented that it was
asserting both. It was unnecessary to resolve whether
ADAP had adequately pled associational standing at the
time, because the parties settled Phase 1. In order to
ensure that the basis of ADAP’s asserted standing was
squarely
presented,
for
purposes
of
defendants’
response and for adjudication, the court instructed
ADAP to seek leave to amend the complaint to clarify
the bases for its standing (in advance both of the
deadline for amendments and the Phase 2 briefing), and
leave was granted. Dunn v. Dunn, 2016 WL 4169157 (M.D.
Ala. Aug. 5, 2016) (Thompson, J.). Although defendants
were offered the opportunity to conduct additional
discovery regarding standing, id. at *3, they declined
to do so.
3

I.
ADAP’s

claims

Background

are

systemic

and

prospective

in

nature: It contends not that any particular prisoner’s
rights

were

violated

defendants’
continue
prisoners

in

policies

to
who

and

violate
have

the

past,

practices

the

but

instead

violate

constitutional

serious

mental

that

and

will

rights

illness,

both

of
by

creating a substantial risk of serious harm to them and
by denying them due process.
While

defendants

have

sought

summary

judgment,

their summary-judgment motion does not mention ADAP,
but

focuses

individual

exclusively

prisoners.4

on
The

ADAP’s
court

co-plaintiffs,

issued

an

order

informing the parties that it would, sua sponte, “raise
for

disposition

on

summary

judgment

the

issue

of

4. In defendants’ motion for summary judgment,
they specify that they are requesting “judgment as a
matter of law as to the claims of Named Plaintiffs.”
Motion for Summary Judgment (doc. no. 768) at 2. In a
footnote, defendants expressly define the phrase “Named
(continued...)
4

whether plaintiff Alabama Disabilities Advocacy Program
...

has

associational

standing

with

respect

to

any,

some, or all of the claims to be litigated during Phase
2 of this case.

See Celotex Corp. v. Catrett, 477 U.S.

317, 326 (1986) (recognizing that district courts have
the

authority

to

raise

issues

for

disposition

on

summary judgment sua sponte, so long as the parties are
on notice that they must come forward with any and all
pertinent

evidence).”

Phase

2

Briefing

Order

on

Associational Standing (doc. no. 724) at 1-2.
The court further ordered ADAP to “file a brief
affirmatively setting forth the basis for its asserted
associational standing and explaining the scope of this
standing”; the brief was “to discuss any relevant case
law and any evidence [ADAP] believes is pertinent to
its assertion of standing,” and required defendants,
“[i]f

[they]

wish

to

contest”

ADAP’s

associational

standing, to “do so in the context of their summary

Plaintiffs”
by
listing
every
individual
plaintiff, but not ADAP. Id. at 2 n.2.
5

prisoner

judgment motion.”

Id. at 2.

See Wright & Miller, 10A

Fed. Prac. & Proc. Civ. § 2720.1 (4th ed.) (“[I]f the
court determines to enter summary judgment on a ground
not presented or argued by the parties, the failure to
give the losing party an opportunity to defend against
that

ground

provides

a

ground

for

reversal.

Conversely, as now expressly recognized by Rule 56(f),
if

the

parties

are

provided

with

an

opportunity

to

address the court's alternative ground, then summary
judgment may properly be entered.”).
Having been placed on notice that the court would
consider resolving the issue of associational standing
on

summary

judgment,

the

parties

filed

briefs

as

directed, and the court has considered the arguments
and evidence put forward.
below,

pursuant

to

For the reasons explained

Federal

Rule

of

Civil

Procedure

56(f), the court will grant summary judgment to ADAP on
the

issue

of

associational

standing,

and,

as

ADAP

requested, “uphold its associational standing to bring

6

its claims” in Phase 2A of this case.

Pl. ADAP’s Br.

on Associational Standing (doc. no. 754) at 25.

II.

Summary Judgment Standard

Summary judgment, which can be granted not only as
to a claim or defense but also as to any “part” of a
claim or defense, is appropriate under Federal Rule of
Civil Procedure 56(a) if “there is no genuine dispute
as to any material fact” and one party “is entitled to
judgment

as

evidence--not

a

matter

assertions

of
in

dispute of material fact.
The

evidence

is

to

be

law.”

Only

pleadings--can

record

create

a

Fed. R. Civ. P. 56(c)(1).
viewed

in

the

light

most

favorable to the party against which summary judgment
is being sought or considered.

Coleman v. Smith, 828

F.2d 714, 717 (11th Cir. 1987).

III.
ADAP,

the

Associational Standing
State’s

protection

and

advocacy

organization (P&A), contends that it has associational

7

standing

to

litigate

claims

that

are,

in

essence,

identical to those the individual plaintiffs endeavor
to bring on behalf of the plaintiff classes.5

The court

agrees for the following reasons.

5. ADAP is not only representing itself as an
association but also serving as counsel to the
individual named plaintiffs who represent the putative
plaintiff
class
or
classes.
Notably,
“class
certification under Rule 23 and associational standing
are evaluated on two different rubrics,” and an
organization may well have associational standing even
if the requirements of Rule 23 could not be met.
See
Bhd. of Maint. of Way Emps. Div. of Int'l Bhd. of
Teamsters v. Ind. Harbor Belt R.R. Co., 20 F. Supp. 3d
686, 691 (N.D. Ind. 2014) (Simon, J.). Defendants also
argue, relying on Access 4 All, Inc. v. Trump Int’l
Hotel & Tower Condo., 458 F. Supp. 2d 160, 172-73
(S.D.N.Y. 2006) (Karas, J.), that, even if ADAP does
have standing to bring claims that are coextensive with
those brought by the putative plaintiff class or
classes, it should be denied prudential standing
because its claims would be duplicative. This argument
holds no water.
Since ADAP’s claims mirror those of
the class or classes, and ADAP also represents the
individual named plaintiffs, defendants will hardly be
put to any extra trouble defending against both.
If
defendants did not contest that the individual named
plaintiffs
can
proceed
on
their
claims
(both
individually and as a class or classes), ADAP would
presumably feel no need to continue to assert its own
standing, essentially in the alternative.
ADAP also asserts organizational standing pursuant
to Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982),
(continued...)
8

The Protection and Advocacy for Individuals with
Mental

Illness

litigation

to

Act

(PAIMI)

address

authorizes

systemic

P&As

problems

treatment of people with mental illness.6

to
in

bring
the

Specifically,

42 U.S.C. § 10805(a)(1)(B) authorizes P&As to “pursue
administrative, legal, or other appropriate remedies to
ensure the protection of the rights of individuals with
mental illness who are receiving care or treatment in
the State”; meanwhile, § 10805(a)(1)(B) authorizes P&As
to “pursue administrative, legal, and other remedies on

and Georgia Latino Alliance for Human Rights v.
Governor of Ga., 691 F.3d 1250, 1257 (11th Cir. 2012).
See Fifth Am. Compl. (doc. no. 805) at 24 (“Prior to
commencement of this lawsuit, ADAP spent significant
time and resources advocating on behalf of prisoners
with disabilities [including mental illness] in ADOC
custody, monitoring and investigating the treatment and
accommodation of prisoners with disabilities in ADOC
custody. ADAP’s prelitigation efforts and expenditures
of recourse were necessitated by the ADOC policies and
practices challenged, which policies and practices
serve to frustrate and perceptibly impair ADAP’s
advocacy efforts and its ability to accomplish the
statutory purposes for which it was created.”).
The
court need not address this alternative basis for
standing at this time.

9

behalf of an individual ... with mental illness” under
certain circumstances.

As many courts have explained,

and as many others have recognized in the course of
finding
behalf

that
of

P&As

have

identifiable

standing
groups

of

to

bring

claims

similarly

on

situated

constituents, “PAIMI authorizes [P&As] to pursue claims
for system-wide change” under subsection (a)(1)(B), in
addition to claims on behalf of individuals pursuant to
subsection (a)(1)(C).

Univ. Legal Servs., Inc. v. St.

Elizabeth’s Hosp., 2005 WL 3275915, at *5 (D.D.C. July
22, 2005) (Hogan, J.); see also Brown v. Stone, 66 F.
Supp.

2d

412,

425

(E.D.N.Y.

1999)

(Block,

J.)

(“Essentially, subdivision B is apparently designed to
address

systemic

issues

multiple individuals.

affecting

...

the

rights

of

By contrast, subdivision C

addresses the rights of particular individuals, and is
significantly
omitted)).

more
As

the

restrictive....”
court

explained

in

(citations
Brown,

“if

6. Oddly, the case law sometimes refers to this
statute with the acronym PAMII.
10

Congress merely intended for state [P&A] systems to act
as

advocates

on

behalf

of

[specific]

mentally

[ill]

individuals, it would not have included (a)(1)(B) in
the statute in addition to (a)(1)(C).”

Id. at 425

(E.D.N.Y. 1999) (Block, J.) (citation omitted).

“Given

‘the broad remedial purposes of the Act,’” the court in
Brown

concluded,

the

bring

claims

behalf

on

plaintiff
of

P&A

“a

had

standing

particular

group

to
of

individuals” it had “identified,” not by name but by
what amounted to a description of a class: “all those”
indigent patients in state psychiatric hospitals being
assessed

full

charges

for

their

care

based

on

the

defendants’ policy of charging for care any patients
who sued for injuries arising out of their psychiatric
treatment.

Id.

(quoting

Rubenstein

v.

Benedictine

Hosp., 790 F. Supp. 396, 409 (N.D.N.Y. 1992) (Cholakis,
J.)).
Of

course,

in

addition

to

this

statutory

authorization to bring actions on behalf of mentally
ill individuals, ADAP must also have standing to sue

11

under Article III.

The Supreme Court has articulated a

three-part test for determining whether an organization
has

associational

standing

to

sue

on

behalf

of

its

members: “an association has standing to bring suit on
behalf

of

otherwise

its

members
standing

have

when:
to

(a) its

sue

in

members

their

own

would
right;

(b) the interests it seeks to protect are germane to
the organization’s purpose; and (c) neither the claim
asserted

nor

the

relief

requested

requires

the

participation of individual members in the lawsuit.”
Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333,
343 (1977).
test

are

Although the first two prongs of the Hunt

constitutional

requirements,

the

third

is

merely prudential and may be eliminated by Congress.
United Food & Commercial Workers Union v. Brown Grp.,
Inc., 517 U.S. 544, 555-58 (1996).
The Eleventh Circuit has squarely held that P&As
may sue on behalf of the constituents they serve just
“like a more traditional association may sue on behalf
of its members.”

Doe v. Stincer, 175 F.3d 879, 885-86

12

(11th Cir. 1999).
that

meets

In so doing, it explained that a P&A

PAIMI’s

requirements,

despite

not

having

members in a formal sense, functions as a membership
organization, and can have associational standing to
represent its constituents.
P&As are required under PAIMI to have a governing
board

and

advisory

percentages

of

council

individuals

that
or

include
family

specified

members

of

individuals who receive or have received mental-health
care;

to

provide

the

public

with

an

opportunity

to

comment on its activities and priorities; and to have a
grievance

system

See id. at 886.
not

disputed,

for

clients

and

potential

clients.

ADAP has shown, and defendants have

that

ADAP

meets

these

requirements

of

PAIMI and functions as a membership organization for
purposes of asserting associational standing on behalf
of its constituents, Alabamians with mental illness.

13

Defendants do claim,7 however, that ADAP has not
demonstrated that it was appropriately designated as
the P&A that the “State shall have in effect,” per 42
U.S.C. § 15043(a).8

This is a remarkable argument, in

7. Notably, defendants, in their brief, do not go
so far as to say that ADAP is not the State’s P&A; they
merely challenge the adequacy of the evidence it has
put forward to demonstrate that it was designated as
such. Accordingly, defendants do not suggest that any
other organization is instead the P&A, or, for that
matter, that Alabama does not have a P&A. They also do
not dispute that ADAP has proven that it receives,
through the State, the federal funds that the State is
authorized to collect only if it has a P&A.
In fact,
defendants have not presented any evidence creating a
factual dispute regarding ADAP’s P&A status; instead,
they assert that a P&A must be created by a state
executive or legislative action.
8. P&As have obtained their statutory mandates
through a series of statutes expanding their purview to
cover additional forms of disabilities.
Therefore,
considerable cross-referencing is required.
42 U.S.C.
§ 10805(a)(1)(B) authorizes “a system established in a
State under section 10803 of this title” to litigate on
behalf of individuals with mental illness; § 10803
explains that an “eligible system[]” that receives a
federal allotment is to “establish and administer [a]
system ... to protect and advocate the rights of
individuals with mental illness”; § 10802(2) defines
the term “eligible system” to mean “the system
established in a State to protect and advocate the
rights of persons with developmental disabilities under
subtitle C of the Developmental Disabilities Assistance
(continued...)
14

light of the fact that both this court and the Eleventh
Circuit have expressly recognized ADAP as Alabama’s P&A
for over two decades.

Indeed, in Stincer itself, 175

F.3d at 883, the court of appeals cited its affirmation
of

this

court’s

decision

in

Alabama

Disabilities

Advocacy Program v. J.S. Tarwater Developmental Center,
97

F.3d

492,

495

(11th

Cir.

1996)

(“The

Advocacy

Program is the federally mandated and funded P&A system
Alabama

has

established

pursuant

to

42

U.S.C.

§ 6042(a)(1).”), aff’g 894 F. Supp. 424, 426-27 (M.D.
Ala. 1995) (Thompson, J.).

See also Ala. Disabilities

Advocacy Program v. SafetyNet Youthcare, Inc., 65 F.
Supp. 3d 1312, 1321-22 (S.D. Ala. 2014) (Granade, J.),
on reconsideration in other part, 2015 WL 566946 (S.D.
Ala. Feb. 11, 2015); Ala. Disabilities Advocacy Program
v. Wood, 584 F. Supp. 2d 1314, 1315 (M.D. Ala. 2008)

and Bill of Rights Act of 2000”; § 15043, in turn, says
that in order to receive a federal allotment, a “State
shall have in effect a system to protect and advocate
the
rights
of
individuals
with
developmental
disabilities.”
15

(Thompson, J.).

These repeated judicial findings alone

probably suffice to make this argument a nonstarter.
In addition, defendants’ argument is based on a
faulty

premise.

They

contend

Wallace’s

1976

designation

Alabama’s

Legal

Aid

implement

a

communication

P&A
was

Clinic
was

not

that

of

Governor

the

as

of

organization

the

University

to

inadequate,

labeled

as

George

an

because
executive

his
order

and, in any event, he was not empowered to create a
state agency by executive order.

The rub is this:

There is no need for a P&A to be a state agency or
indeed a creation of the State.

A State need only

“have in effect” a P&A, not create one.

Moreover,

defendants have pointed to no state law requiring any
particular executive or legislative action in order to
designate
authorized

a
to

preexisting
serve

organization

functions

monies appropriated by Congress.
other

States

were

created

16

by

outlined

as

the

and

one

receive

Although some P&As in
statute

or

executive

order, the manner of designation employed in Alabama
was also entirely permissible.
Finally, at multiple prior points in the course of
this very case, defendants have recognized ADAP as the
State’s P&A.
ADAP

In advance of filing this litigation,

investigated

the

treatment

of

prisoners

with

disabilities and mental illness in ADOC prisons across
the

State;

during

investigation,

and

ADAP,

in

along

order
with

to

facilitate

plaintiffs’

this

counsel,

the Southern Poverty Law Center (SPLC), entered into a
“Memorandum of Understanding” with ADOC.

This document

clearly reflects the State’s understanding that ADAP is
the State’s P&A.
appreciates

the

It states that ADOC “recognizes and
mission

of

the

Alabama

Disabilities

Advocacy Program and its desire to assist and advocate
for individuals in institutions who are identified as
mentally ill and/or developmentally disabled.”
of Understanding (doc. no. 754-10) at 2.
the

memorandum

assisting

ADAP

recognizes
in

carrying

17

that
out

its

Memo.

Furthermore,

SPLC--which

was

functions--“may

request copies of inmate records,” and that “[t]hese
will

be

supplied

in

accordance

with

the

applicable

authorization required by or granted under 42 U.S.C.
§ 10805 or 42 U.S.C. § 15043.”

Id.

These statutory

provisions authorize P&As--and only them--to access the
records of their constituents.

By entering into this

agreement, ADOC necessarily recognized that ADAP was
the State’s P&A.
Additionally, when the court asked defendants for
their position as to whether a guardian ad litem should
be appointed to represent the interests of a subset of
the Phase 1 settlement class at the fairness hearing,
the State expressed in writing its belief that this was
unnecessary, explaining as follows: “[O]ne of the Phase
1 Plaintiffs is [ADAP].

As stated in the complaint,

the Amended Agreement and elsewhere in the record, ADAP
is the duly authorized protection and advocacy agency
in the state of Alabama for disabled persons.

Given

its unique position in this regard, ADOC believes that
ADAP

will

adequately

represent

18

and

protect

the

interests of all putative class members....”
Resp.

(doc.

no.

531)

at

1-2.

In

Notice of

light

of

the

foregoing, defendants’ argument that ADAP is not the
State’s P&A is meritless.
That

sideshow

application

of

the

behind

it,

the

first

prong

of

court

turns

to

Hunt--whether

the

association’s members would otherwise have standing to
sue

in

their

own

right.

In

Stincer,

the

Eleventh

Circuit explained that all a representative entity must
do under Hunt’s first prong is to show “that one of its
members

or

constituents

has

suffered

an

injury

that

would allow it to bring suit in its own right”; one
constituent

is

enough,

and

he

or

she

additional constituents) need not be named.

(and

any

175 F.3d

at 884-85; see also id. at 882 (explaining that this is
a

requirement

“standing”).

that
Hence,

the

member

ADAP

has

or

constituent

plainly

satisfied

have
the

first Hunt prong with respect to the Eighth Amendment
and due-process claims the individual named plaintiffs
have standing--as recognized in the court’s separate

19

summary-judgment

opinion--to

bring,

because

the

individual named plaintiffs are constituents of ADAP on
whose behalf it has brought precisely the same claims
they have brought on their own behalves.9
Furthermore, even were there no individual named
plaintiffs in the case (either as class representatives
or as individual plaintiffs), ADAP would have standing
to bring these claims.

Stincer requires only that a

P&A show that it has one constituent with standing to

9. Defendants argue that ADAP has not satisfied
Hunt’s first prong because the named plaintiffs have
not exhausted available administrative remedies.
A
failure to exhaust does not impact standing because
standing is jurisdictional, while the PLRA’s exhaustion
requirement, the Supreme Court and Eleventh Circuit
have explained, is not. See Woodford v. Ngo, 548 U.S.
81, 101 (2006) (“[It is] clear that the PLRA exhaustion
requirement is not jurisdictional.”); Bryant v. Rich,
530 F.3d 1368, 1374 & n.10 (11th Cir. 2008) (same).
Thus, even if defendants were correct (as discussed in
the separate opinion on summary judgment with respect
to the individual named plaintiffs, they are not) that
the individual named plaintiffs had failed to exhaust
available administrative remedies, and were therefore
barred from bringing their claims by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), this
failure to exhaust would have no effect on these
plaintiffs’ standing, and would therefore be irrelevant
(continued...)
20

bring the claim--not that an individual named plaintiff
in the case has standing to bring the claim.

(Indeed,

there need not be any plaintiff other than the P&A;
this

is

the

very

crux

of

associational

standing.)

Although not required to do so, plaintiffs have in fact
identified,

through

their

experts’

reports,

a

significant number of particular prisoners other than
the

individual

ill--and

are

named

plaintiffs

therefore

who

constituents

of

are

mentally

ADAP

and

who

together have been subjected to each of the policies
and

practices

being

challenged

here.

Because

this

expert evidence demonstrates that at least one mentally
ill prisoner has been directly exposed to and affected
by each of these policies and practices, it further
undergirds

the

constituents

court’s

with

conclusion

standing

to

bring

that
its

ADAP
claims,

has
and

thus that ADAP has satisfied the first prong of Hunt.

to their
standing.

ability

to

support

21

ADAP’s

associational

Further, plaintiffs’ experts’ systemic evidence of
the risk of harm to mentally ill prisoners would alone,
even

absent

their

identification

of

individual

prisoners, be sufficient to meet Hunt’s first prong;
the Eleventh Circuit has explained that, at least when
seeking relief from a prospective harm, associations
need only show the high likelihood of the existence of
a member who will be harmed by the challenged policy or
practice, but need not identify any particular member
with

such

standing.

(“[U]nder

Article

See
III’s

Stincer,

175

at

884

doctrines

established

F.3d

of

representational standing, we have never held that a
party suing as a representative must specifically name
the individual on whose behalf the suit is brought and
we decline to create such a requirement in PAMII.”).
Thus,

for

example,

in

Fla.

State

Conference

of

N.A.A.C.P. v. Browning, 522 F.3d 1153, 1160 (11th Cir.
2008),

the

associational

court

held

that

standing

two
to

organizations
challenge

had
a

voter-registration law because, although they could not

22

identify a specific member who would be injured, it was
highly likely that one of their members would be.
also

id.

at

prospective,

1160
we

organizational

(“When

have

plaintiffs

the

alleged

not

required

name

names

See

harm
that

because

is
the

every

member faces a probability of harm in the near and
definite future.”); id. at 1163 (“[P]robabilistic harm
is enough injury in fact to confer ... standing in the
undemanding Article III sense.

...

requirements

standing,

plaintiffs

of

need

associational
to

establish

is

that

To satisfy the

at

all
least

that
one

member faces a realistic danger [of being harmed by the
challenged policy].”

(citation and internal quotation

marks omitted)); see also Arcia v. Fla. Sec'y of State,
772

F.3d

1335,

1342

(11th

Cir.

2014)

(describing

Browning as recognizing that associations with a large
number of constituents can show associational standing
based on the high probability that at least one of them
will suffer an injury).

23

Defendants do not dispute that ADAP satisfies the
second

Hunt

prong--that

the

interests

ADAP

seeks

to

protect in the lawsuit are germane to its purpose--with
good reason.

ADAP has been entrusted by Congress with

the protection of and advocacy for the interests at
issue in this litigation.

See Stincer, 175 F.3d at 884

(“The very purpose of [the enabling statutes) was to
confer standing on protection and advocacy systems ...
as representative bodies charged with the authority to
protect

and

litigate

the

[disabilities].”).
protecting

rights

One

people

with

of

of

individuals

ADAP’s

mental

priorities

illness

housed

with
is
in

institutional settings (including prisons) from abuse
and neglect.
can

bring

statutes,

In serving this advocacy function, ADAP

claims
but

not

also

only

pursuant

pursuant

constitutional provisions.

to

to

other

its

enabling

statutes

and

See Ind. Prot. & Advocacy

Servs. Comm’n v. Comm’r, Ind. Dep’t of Corr., 642 F.
Supp.

2d

872,

874

(S.D.

Ind.

2009)

(Hamilton,

J.)

(Eighth Amendment, ADA, and Rehabilitation Act claims);

24

Stincer, 175 F.3d at 880 (ADA); N.J. Prot. & Advocacy,
Inc. v. Davy, 2005 WL 2416962, at *4 (D.N.J. Sept. 30,
2005) (Chesler, J.) (due process); Or. Advocacy Ctr. v.
Mink,

322

F.3d

1101,

1105

(9th

Cir.

2003)

(due

process); Aiken v. Nixon, 236 F. Supp. 2d 211, 220-21
(N.D.N.Y. 2002) (McAvoy, J.) (Fourth Amendment, ADA,
and Rehabilitation Act); Unzueta v. Schalansky, 2002 WL
1334854, at *3 (D. Kan. May 23, 2002) (Rogers, J.) (due
process); Risinger v. Concannon, 117 F. Supp. 2d 61, 64
(D. Me. 2000) (Carter, J.) (unspecified civil rights
claims brought pursuant to § 1983); Brown, 66 F. Supp.
2d

at

416

(First

Amendment

and

equal

protection);

Rubenstein, 790 F. Supp. at 398 (due process and equal
protection); Goldstein v. Coughlin, 83 F.R.D. 613, 614
(W.D.N.Y. 1979) (Curtin, J.) (Rehabilitation Act and
unspecified constitutional claims).
As for Hunt’s prudential third prong--that neither
the claim asserted nor the relief requested requires
the

participation

lawsuit--the

of

Eleventh

individual
Circuit

25

members
appears

in
to

the
have

recognized
squarely

in

Stincer,

held,

authority

that

to

pursue

and

other

Congress,
legal

by

courts

have

granting

remedies

to

since

P&As

the

ensure

the

protection of those with disabilities, abrogated this
requirement.10
1110-12,

the

In Oregon Advocacy Center, 322 F.3d at
court

discussed

at

endorsed, the reasoning of Stincer.

some

length,

and

Then, it concluded

that Congress had, by passing statutes that “explicitly
authorize[] [P&As] to bring suit on behalf of their
constituents,”
prong.

abrogated

Hunt’s

third,

prudential

Id. at 1113 (reasoning based on United Food,

517 U.S. at 548-49, in which the Supreme Court held
that Congress, “by specifically authorizing the union
to sue for its members’ damages,” had “without doubt”
abrogated the third prong of Hunt).

Numerous other

10. In Stincer, the court explained that the third
prong could be abrogated by Congress, and, in not
addressing it further, suggested that the plaintiff P&A
would not need to meet it.
175 F.3d at 882-83.
However, because the court remanded the case after
finding that the record did not yet establish that the
P&A had met Hunt’s first prong, Stincer did not
(continued...)
26

district courts have reached the same conclusion.

See

Ind. Prot. & Advocacy Servs. Comm’n, 642 F. Supp. 2d at
878;

Joseph

(E.D.N.Y.

S.

2008)

v.

Hogan,

(Cogan,

561

J.);

F.
N.J.

Supp.

2d

Prot.

&

280,

307

Advocacy,

Inc., 2005 WL 2416962, at *2; Univ. Legal Servs., Inc.,
2005 WL 3275915, at *4; Unzueta, 2002 WL 1334854, at
*3; Pa. Prot. & Advocacy, Inc. v. Houston, 136 F. Supp.
2d

353,

364-65

(E.D.

Pa.

2001)

(Antwerpen,

J.);

Risinger, 117 F. Supp. 2d at 68-70.
This is not to say that the claims ADAP has brought
could not satisfy Hunt’s third prong--that they do not
required the participation of individual constituents
in

the

litigation.

Indeed,

ADAP’s

claims

would

generally pass that test, for much the same reason that
they present common questions suitable for class-wide
resolution.
relief

Because

throughout

ADAP

the

seeks

prison

uniform
system

injunctive

rather

than

individualized relief, and because its most critical

explicitly and conclusively hold that the third prong
does not apply to P&As.
27

evidence

consists

testimony

of

employees,

and

of

expert

documentary

deposition

providers

mental-health

testimony,

and

evidence

such

as

ADOC
medical

records and audits, the participation of any particular
prisoner in the litigation is unnecessary.

See Univ.

Legal Servs., 2005 WL 3275915, at *5 (“[R]ather than
seeking

individualized

relief,

ULS

seeks

injunctive

remedies that would bring institution-wide relief for
its

constituents.

presenting

evidence

ULS
of

could
its

meet

claims

its
of

burden

by

institutional

neglect and other problems through the use of medical
records, audits, depositions of Defendants, expert and
fact witness testimony, and other relevant documents
and

written

discovery.

The

mere

need

to

show

individualized harm to the patients is not enough to
offend

Hunt’s

third

prong

without

a

clear

need

for

their direct participation in the litigation itself.”).
The fact that the assessments and treatments ADAP
contends will be improved by the systemic reforms they
seek will necessarily be individualized does not mean

28

that the participation of individual constituents would
be required.

In Joseph S., a case litigated in the

Eastern District of New York, an advocacy organization
and two individual named plaintiffs brought ADA claims
on behalf of mentally ill persons in highly restrictive
nursing homes.
plaintiffs

“Although the injunctive relief that

[sought]

would,

individualized

evaluations

mental

could

illness

if

of

granted,

whether

appropriately

require

persons

receive

with

care

and

treatment in a setting more integrated than a nursing
home,” the court found that Hunt’s third requirement
would be met because “these individualized assessments
would be completed by defendants, not the court,” such
that

the

participation

of

individual

litigation would not be required.

members

in

the

561 F. Supp. 2d at

308-09 (relying on Int’l Union, United Auto., Aerospace
& Agric. Implement Workers of Am. v. Brock, 477 U.S.
274 (1986)); see also id. at 308 (explaining that “the
fact

that

participation

required--for

example,

by
to

29

some

individuals

demonstrate

the

may

be

general

manner

in

which

individuals

defendants

discharged

fail

from

to

ensure

psychiatric

that

wards

or

hospitals are properly screened before they are placed
in

nursing

homes--is

not

fatal

to

associational

standing”).

IV.
Defendants
argument
exhaust

the

raised

Exhaustion
for

contention

administrative

the

that

first

ADAP

remedies

time

itself

before

at

oral

failed

filing

to

suit.

Because exhaustion does not go to standing, the court
will

not

resolve

this

issue

on

summary

judgment.

Instead, the court will briefly explain why the current
record

strongly

suggests

that

ADAP

has

adequately

exhausted.11

11. Defendants’ argument that ADAP would lack
associational
standing
if
the
individual
named
plaintiffs had failed to exhaust has been dispatched
with above. See supra n.9.
30

PAIMI explicitly addresses the issue of exhaustion
by P&As prior to the initiation of legal action in 42
U.S.C. § 10807, which provides:
“(a) Prior to instituting any legal action in a
Federal or State court on behalf of an
individual with mental illness, an eligible
system ... shall exhaust in a timely manner all
administrative remedies where appropriate. If,
in pursuing administrative remedies, the system
... determines that any matter with respect to
such individual will not be resolved within a
reasonable time, the system ... may pursue
alternative remedies, including the initiation
of a legal action.
“(b) Subsection (a) of this section does not
apply to any legal action instituted to prevent
or eliminate imminent serious harm to an
individual with mental illness.”
There is very little case law interpreting this
provision,

but

what

does

exist

makes

clear

that

§ 10807’s requirement is not a strict one.

In Gonzalez

v.

Fla.

Martinez,

756

F.

Supp.

1533

(S.D.

1991)

(Nesbitt, J.), a court in this circuit discussed at
some

length

appropriate.”

the

meaning

of

the

phrase

“where

Recognizing that the plain language was

not illuminating, the court turned to the legislative
history of the provision:
31

“It is the belief of the Committee that
conciliation, negotiation, mediation and other
administrative procedures can work effectively
in providing protection and advocacy of the
mentally ill, especially because litigation in
most instances is costly and time consuming.
The Committee recognizes the experience of the
[P&A] System in implementing such negotiation
and mediation on behalf of persons with
disabilities, as well as the system’s use of
other administrative remedies in lieu of
litigation.
The Committee further notes that
only 5 percent of [P&A] cases in 1984 have
resulted in court action.
The Committee
intends that the [P&A] System in its new role
as the eligible protection and advocacy system
for mentally ill persons under this Act should
continue
the
non-litigative
approach
to
advocacy and dispute resolution and urges the
continued use of administrative and alternative
remedies prior to the initiation of a legal
action.
“It is not the intention of the Committee that
the administrative remedies must be pursued for
an unreasonable duration, but rather that
whenever possible there should be timely and
reasonable
attempts
made
to
mediate
and
negotiate appropriate administrative remedies.
If the pursuit of administrative remedies has
not solved any matter within a reasonable time,
the eligible system may pursue alternative
remedies, including the initiation of a legal
action.”
Id. at 1537-38 (quoting S. Rep. No. 109, 99th Cong., 2d
Sess., reprinted in 1986 U.S.C.C.A.N. 1361, 1371); see
also id. at 1538 (quoting H.R. Conf. Rep. No. 576, 99th
32

Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 1377,
1382-83 (“The conferees recognize ... that exhaustion
of administrative remedies may delay action on behalf
of

mentally

ill

individuals

and

have

authorized

the

system to proceed with legal action when unreasonable
delays exist.

If legal action is initiated, courts

retain their prerogative to determine that the issues
are

not

ripe

and

to

remand

the

matter

for

further

administrative consideration.”)).
The

Gonzalez

court

then

went

on

to

reject

the

argument by defendants that § 10807 requires exhaustion
of

all

would

administrative
“prove

remedies,

adequate

not

under

only
the

those

that

traditional

judicially-created exhaustion doctrine,” and the court
noted that the discussion of the court’s “prerogative”
in the House Report supports the conclusion that courts
retain “substantial discretion” in determining whether
a P&A has adequately exhausted.

Id. at 1539; see also

Mich. Prot. & Advocacy Serv., Inc. v. Evans, 2010 WL
3906259, at *3 (E.D. Mich. Sept. 30, 2010) (Hood, J.)

33

(agreeing).
state

The court concluded, moreover, that the

statutory

should

have

remedies

defendants

exhausted--such

as

argued

filing

the

P&A

individual

grievances--were not “adequate to provide relief for
the type of egregious, systemic abuse that [the P&A]
alleges.”

Gonzalez, 756 F. Supp. at 1538 (applying the

exhaustion

doctrine

set

out

in

Patsy

v.

Fla.

Int’l

Univ., 634 F.2d 900 (5th Cir. 1981)).
Another

court

has

characterized

§ 10807

as

“impos[ing] a limited obligation on a [P&A] to make
some efforts to pursue administrative remedies before
filing suit.”

Mich. Prot. & Advocacy Serv., Inc. v.

Flint Cmty. Sch., 146 F. Supp. 3d 897, 905 (E.D. Mich.
2015)

(Lawson,

defendants

were

J.);

see

unable

or

also

id.

at

unwilling,

906
on

(“The

repeated

occasions, to complete any satisfactory response to the
plaintiff’s ... requests in a timely manner, and they
therefore forfeited any right they had to handle the
resulting ... disputes with the plaintiff exclusively
through

administrative

channels.”);

34

Prot.

&

Advocacy

for

Persons

Supp.

2d

with

303,

Disabilities

313

(D.

Conn.

v.

Armstrong,

2003)

266

(Squatrito,

F.
J.)

(concluding that the P&A had satisfied the exhaustion
requirement

by

“attempt[ing]

to

request”

the

relief

sought in the litigation, which the defendant “declined
to provide”); Advocacy Ctr. v. Stalder, 128 F. Supp. 2d
358, 365 (M.D. La. 1999) (Parker, J.) (same).
Therefore, it appears that the pretrial efforts of
ADAP to bring its claims to the attention of defendants
and

seek

to

resolve

them

without

litigation

were

sufficient to satisfy § 10807.
On April 9, 2014, a couple of months before this
lawsuit was filed, ADAP and the SPLC sent the ADOC
Commissioner

a

letter

reporting

the

results

lengthy investigation they had conducted.12

of

a

As noted in

the letter, this investigation included interviews with
dozens

of

prisoners,

facility

inspections

throughout

12. The Commissioner at the time was Kim Thomas,
not
Jefferson
Dunn.
Because
this
is
an
official-capacity suit, they are treated as one and the
same.
35

ADOC’s major institutions, and reviews of thousands of
pages of medical records, policies, contracts, reports,
and

other

asserted
provided

documents.
that

The

Alabama’s

constitutionally

authors

prisoners
adequate

of

the

were

letter

not

being

mental-health

care

because of a shortage of mental-health professionals
and a regular failure to adequately diagnose and treat
mentally ill prisoners.
The

letter

pointed

to

evidence

regarding

understaffing, including the following: There were just
6.2 psychiatrists for the entire prison system, which
left

11,000

prisoners--including

mental-health

caseload--in

a

psychiatric staffing at all.
3.5

psychologists

system--roughly
1970s,

when

the

half

were
the

level

of

1,166

facility

cited

to

the

fact

no

It also noted that only

employed
ratio

in

that

the

existed

mental-health

that

the

with

the

prison
in

the

staffing

was

found to be unconstitutionally inadequate.
also

on

overall

The letter
level

of

mental-health staffing present in ADOC facilities was

36

significantly lower than the minimum level set by ADOC
in its request for proposals.
The

letter

also

under-identifying

asserted

prisoners

that

with

ADOC

mental

was

illness,

especially those with severe mental illnesses.
conclusion,

the

letter

made

clear,

was

based

This
on

a

comparison of ADOC statistics to those found in a 2006
Department

of

Justice

study;

ADAP

and

SPLC

also

identified 853 prisoners who, in light of ADOC’s own
documentation of their mental illness, should have been
classified as in need of more intensive mental-health
treatment.

They further reported their findings that

only 9 % of prisoners received psychotropic medication,
that many of those prisoners had almost no interaction
with the prescribing professionals, that prisoners were
taken

off

their

medications

and

the

mental-health

caseload despite still needing treatment and despite
continued

self-injury

prisoners

entering

and

custody

suicide
faced

attempts,
long

delays

that
in

receiving medication, that less effective medications

37

were prescribed to save money, and that a shortage of
custodial

staff

caused

medication

delivery

to

be

delayed, skipped, and performed incorrectly.
The letter also explained that, according to an
ADOC report, more than 30 prisoners whom mental-health
staff had diagnosed as having a serious mental illness
were

housed

in

the

general

population

in

facilities

with few mental-health staff (including 7 in a facility
with

no

psychiatric

prisoners,

who

were

staffing
housed

in

at

all);

that

residential

270

treatment

units due to their serious mental illnesses, received
only cursory psychotherapy; and that prisoners who were
acutely psychotic and a danger to themselves received
little treatment besides being placed in a suicide cell
where, once a day, a mental-health provider would stop
by

for

less

than

five

minutes.

The

letter

also

addressed ADOC’s practice of providing razor blades to
suicidal

prisoners,

including

those

housed

in

the

residential treatment units and those with a documented
history of suicide attempts.

38

Finally,
provide

the

due

letter

process

described

when

ADOC’s

involuntarily

prisoners with mental illness.

failure

to

medicating

The authors discussed

30 prisoners suffering from mild impairment in mental
functioning

who

they

contended

were

unjustifiably

subject to involuntary-medication orders.
As

James

testified,

“The

identification
remedied.”

Tucker,

ADAP’s

demand

of

the

Executive

letter

issues

that

Director,

conveyed
needed

to

Tucker Depo. (doc. no. 754-1) at 175.

an
be
The

letter explained that while its authors were “ready to
fully

litigate

this

matter

in

federal

court,”

they

“believe[d] that it would in the best interests of all
parties

at

this

time

to

resolve

these

violations

through a stipulated injunction,” and requested that
defendant “let [them] know whether [they were] willing
to enter into discussion regarding how to resolve the
issues presented below.”
2.

Letter (doc. no. 754-11) at

Because, as Tucker put it, there was not “a meeting

of the minds about how both sides might work together

39

to

achieve

lawsuit.

a

resolution,”

plaintiffs

filed

this

Tucker Depo. (doc. no. 754-1) at 175.13

The current record reflects that ADAP attempted to
resolve the issues identified in the letter informally,
but that it “determine[d]”14 that they would “not be
resolved

within

a

reasonable

time.”

42

U.S.C.

§ 10807(a).
Moreover, in light of the fact that this lawsuit
was

initiated

to

challenge

a

system

of

inadequate

mental-health care that plaintiffs contend, and have

13. Although ADAP and plaintiffs’ counsel did have
a meeting with the Commissioner in late May 2014,
before the suit was filed, and defendants assert in
their
answer
that
plaintiffs’
counsel
did
not
“express[] any concerns over the ‘urgency’ of the
issues discussed, and, in fact, refused to provide any
meaningful information in order to address concerns
raised because of their commitment to instituting this
action,” there is no evidence in the current record in
support of this contention.
Defs’ Answer (doc. no.
834) at 34-35.
Indeed, their position appears to be
belied by the detailed nature of the 26-page letter,
which concludes by expressing the view that “the
concerns in this letter are serious issues and should
be resolved in the most expeditious and effective way.”
Letter (doc. no. 754-11) at 27.
40

offered

evidence

to

show,

causes

mentally

ill

prisoners

on

example,

they

challenge

inadequacies

including

access

by

a

serious

daily

suicidal

harm

to

basis--as
in

one

crisis

care

to

razor

prisoners

blades--the court further note that the record strongly
suggests

that

ADAP

was

exempt

requirement

pursuant

to

allows

immediate

filing,

the

42

from

U.S.C.

the

exhaustion

§ 10807(b),

without

any

which

attempt

at

exhaustion, of “any legal action instituted to prevent
or eliminate imminent serious harm to a mentally ill
individual.”
The

PLRA’s

exhaustion

requirement,

hand, does not apply to P&As.

on

the

other

As the Eleventh Circuit

as explained, the plain language of 42 U.S.C. § 1997e
reveals

the

scope

of

its

applicability:

exhaustion by “a prisoner.”

it

requires

“Prisoner” is defined in

42 U.S.C. 1997e(h) to mean “any person incarcerated or
detained in any facility who is accused of, convicted

14. The plain text of the provision merely requires
that the P&A make such a “determin[ation],” not that it
(continued...)
41

of,

sentenced

for,

or

adjudicated

violations of criminal law.”

delinquent

for,

Jackson v. State Bd. of

Pardons & Paroles, 331 F.3d 790, 795 (11th Cir. 2003).
As this court has previously explained in another case
brought by ADAP, “[t]he provisions respecting prisoner
suits ... do not apply because ADAP is clearly not a
‘prisoner’
‘person’

under
and

detained.”

the

has

statute.

...

neither

been

ADAP

is

not

incarcerated

a

nor

Ala. Disabilities Advocacy Program, 584 F.

Supp. 2d at 1316.
This accords with the sensible conclusions reached
by

a

number

guardians

of

therefore

155,

other

prisoners

not

requirement.
App’x

of

subject

courts
are

that

not

to

the

estates

“prisoners”

the

PLRA’s

and

and
are

exhaustion

See Tretter v. Pa. Dep’t of Corr., 558 F.
157–58

(3d

Cir.

2014)

(administrator

of

prisoner’s estate); Anderson v. Cty. of Salem, 2010 WL
3081070,

at

(administrator

*2
of

(D.N.J.

Aug.

prisoner’s

2010)

estate);

be an objectively reasonable one.
42

5,

(Bumb,

Torres-Rios

J.)
v.

Pereira-Castillo,

545

2007)

J.)

(Besosa,

estate);

Netters

v.

F.

Supp.

2d

204,

(administrator
Tenn.

Dep’t

of

206

of

(D.P.R.

prisoner’s

Corr.,

2005

WL

2113587, at *3 n.3 (W.D. Tenn. Aug. 30, 2005) (Mays,
J.)

(guardians

of

prisoner’s

minor

next-of-kin);

Rivera-Rodriguez v. Pereira-Castillo, 2005 WL 290160,
at

*6

(D.P.R.

Jan.

31,

2005)

(Delgado-Colon,

M.J.)

(guardians of minor prisoner).15
A couple of additional points bear mention.

First,

as a practical matter, there is no evidence in the
current record to suggest that ADAP would be able to
submit a grievance to MHM on behalf of a prisoner; in

15. The Supreme Court held in Jones v. Bock that
the PLRA’s requirement of exhaustion does not create a
total exhaustion rule, wherein the failure of a
prisoner to exhaust one claim would bar him from
bringing other, exhausted claims. 549 U.S. 199, 220-21
(2007).
Courts have concluded, by analogy to Jones,
that
the
PLRA’s
exhaustion
requirement
is
not
applicable to the claims of non-prisoners brought
alongside those of prisoners.
See Apanovich v. Taft,
2006 WL 2077040, at *4 (S.D. Ohio July 21, 2006) (King,
M.J.); Arsberry v. Illinois, 244 F.3d 558, 561-62 (7th
Cir. 2001) (concluding that the failure of prisoner
plaintiffs to exhaust their administrative remedies did
(continued...)
43

that

very

ADAP.

concrete

sense,

it

is

not

“available”

to

Second, it would conflict with ADAP’s statutory

purpose and the associational standing doctrine just
discussed to allow ADAP to bring claims only on behalf
of

prisoners

who

administrative

had

grievance

available to exhaust).
essential
with

role

in

themselves
process

(assuming

one

an
were

This is because P&As have an

advocating

disabilities,

exhausted

whether

on

behalf

mental

or

of

prisoners

physical,

that

render it difficult or impossible for them to advocate
for themselves.

Although the court has not found and

need not find that the individual named plaintiffs in
this

case

would

necessarily

be

incapable

of

filing

grievances, common sense dictates that some severely
mentally

ill

prisoners

will

be

unable

to

do

so.

Moreover, the Eleventh Circuit’s associational standing
case

law

prospective

recognizes
injunctive

not “dispose
plaintiffs).

of”

the

that

an

relief

claims

44

association
need

of

not

the

seeking

necessarily

non-prisoner

identify any particular constituent to show that one
has

standing.

If

particular

prisoner

expected

to

the
by

exhaust

P&A
name,
a

need
it

not

identify

certainly

particular

cannot

any
be

prisoner’s

administrative remedies prior to filing suit.

V.

Conclusion

Finally, the court pauses to note that litigation
of the claims in this case by ADAP is not merely an
alternative,

but

in

significant

ways

preferable,

to

litigation solely by the individual named plaintiffs.
Review of the individual named plaintiffs’ depositions
and other record evidence reveals that, although many
of

them

are

difficulties

quite
with

lucid,

some

communication,

clearly

experience

whether

due

to

intellectual disabilities, symptoms of mental illness,
or a combination.

In passing PAIMI, and in authorizing

P&As to engage in legal advocacy on behalf of mentally
ill

constituents,

Congress

recognized

that

these

constituents’ impairments will often make it difficult

45

for

them

to

recognize,

understand,

articulate,

and

advocate for their own rights.

See Stincer, 175 F.3d

at

PAMII

884

(“The

standing

on

very

protection

representative
protect

and

purpose

bodies

litigate

and

of

advocacy

charged
the

with

rights

was

to

systems

the

of

confer
...

as

authority

to

individuals

with

mental illness.”); see also S. Rep. No. 100-454, 100th
Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 3217,
3227

(discussing

the

PAIMI

Amendments

Act

of

1988)

(“Informing a mentally ill individual of his or her
rights

is

advocacy

a

critical

system.

expectation

that

function
It

the

is

of

a

protection

also

system

the

will

communicate

and

Committee’s
this

information to and respond to questions by mentally ill
individuals

in

an

appropriate,

meaningful,

and

effective manner, taking into consideration the nature
and

severity

of

the

particular

disability.”).

46

individual’s

***
An appropriate summary judgment in favor of ADAP
with respect to its associational standing to bring the
Phase

2A

claims

in

this

case

will

be

entered,

and

ADAP’s Phase 2A claims will proceed to trial
DONE, this the 25th day of November, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE