Dunn et al v. Thomas et al

Filing 1124

TEMPORARY RESTRAINING ORDER REGARDING SETTLEMENT OF PHASE 2A MENTAL HEALTH ADA CLAIMS: ORDER, JUDGMENT and DECREE of the Court that the parties' 1123 Joint MOTION for Temporary Restraining Order is granted, as further set out in order; furt her ORDERING, by the agreement of the parties as expressed in open court on 1/19/2017, that this temporary restraining order will remain in effect until the court finally approves or rejects the parties' Settlement Agreement concerning mental health claims arising under the Americans with Disabilities Act and 504 of the Rehabilitation Act of 1973. Signed by Honorable Judge Myron H. Thompson on 1/19/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

EDWARD BRAGGS, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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

TEMPORARY RESTRAINING ORDER REGARDING
SETTLEMENT OF PHASE 2A MENTAL HEALTH ADA CLAIMS
This matter is before the Court on The Parties’ Joint Motion for a Temporary
Restraining Order. After considering the evidence and arguments submitted by the
Parties, the Court hereby rules as follows:
1.

This Court has jurisdiction over the Parties and over the subject matter

of this action. Venue is proper in this Court.
2.

On January 11, 2017, the Parties mutually agreed to the “Settlement

Agreement Concerning Mental Health Claims Arising Under the Americans with
Disabilities Act and § 504 of the Rehabilitation Act of 1973.” (See Doc. 1100, the
“Agreement.”)

3.

Section III.1. of the Agreement provides that:

“At the time of execution of this Agreement, some of the Parties are
engaged in the trial of that portion of this Lawsuit denominated as
Phase 2A. The Parties recognize that the trial of Phase 2A likely
prevents them and the Court from completing, in an expeditious
manner, the necessary preliminary and final approval filings, hearings
and the like concerning this ADA Mental Health Settlement
Agreement. Accordingly, the Parties consent to entry of a Temporary
Restraining Order that requires the implantation of the requirements
Section V. “Substantive Provisions” of this ADA Mental Health
Settlement Agreement.”
4.

In accordance with that provision, the Parties jointly moved for a

temporary restraining order implementing Section V. of the Agreement. Section
V. of the Agreement is incorporated as if fully set forth herein, along with any other
provision of the Agreement necessary so that all inmates covered by the
Agreement are provided with the services and benefits detailed in Section V.
during the pendency of the Court’s preliminary and final approval of that
Agreement.
5.

Based upon a review of the documents presented to this Court, the

Court finds that sufficient cause exists to grant the Parties’ motion.
6.

Specifically, this Court finds that:

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(i)

The Plaintiffs are in imminent danger of suffering irreparable injury
unless this Court enters a temporary restraining order requiring the
implementation of Section V. of the Agreement;

(ii)

The Plaintiffs have no other adequate remedy at law, and require an
injunction;

(iii)

The Plaintiffs appear likely to succeed on the merits of their claims
covered by the Agreement;

(iv)

The balance of equities weighs in favor of immediately implementing
Section V. of the Agreement because the Parties have already agreed
to its implementation; and

(v)

There will be no adverse effect on the public interest – and indeed,
that the public interest will be served – by requiring the
implementation of Section V. of the Agreement.

(vi)

Based on the joint agreement of the Parties and the Court’s
independent assessment, the prospective relief contained in the
Amended Agreement is narrowly drawn, extends no further than
necessary to correct the violation of a Federal right, and is the least
intrusive means necessary to correct the violation of a Federal right.

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Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court that the
parties’ joint motion (doc. no. 1123) for temporary restraining order is granted as
follows:
1.

The Alabama Department of Corrections (“ADOC”) shall immediately

proceed with the implementation of the requirements of Section V. of the
“Settlement Agreement Concerning Mental Health Claims Arising Under the
Americans with Disabilities Act and § 504 of the Rehabilitation Act of 1973.”
2.

Regarding the provisions of the Phase 1 Settlement Agreement, ADOC

shall apply the provisions of the Phase 1 Consent Decree (Doc. 728) to the class of
Inmates defined by Section II.4. of the ADA Mental Health Settlement Agreement
(Doc. 1100) unless expressly indicated otherwise therein, provided however that
the provisions of the Phase 1 Consent Decree (Doc. 728) shall not apply to inmates
sentenced to death (“death row inmates”) to the extent their claims were “carved
out” of the Phase 1 Settlement Agreement and Consent Decree as expressed in
the Parties’ Joint Stipulation Concerning Revised Intellectual Testing of Death Row
Inmates (Doc. 709), the Court’s Phase 1 Final Settlement Approval Order and
Opinion (Doc. 727 at 66-69), the Joint Stipulation of Dismissal without Prejudice
of Claims Brought on Behalf of Death Row Inmates Concerning Intellectual

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Disability Issues (Doc. 911), and the Court’s Judgment Dismissing Claims related to
Prisoners on Death Row (Doc. 925).
3.

Regarding the provisions of the Adaptive Behavior/Life Skills Training:
i.

Adaptive Behavior/Life Skills Training. ADOC shall provide
Adaptive Behavior/Life Skills Training for the following
individuals who are in ADOC’s physical custody for a period of
no less than 181 consecutive calendar days:
a.

b.

Any Inmate who meets the IQ prong and the Adaptive
Behavior prong as defined under the Phase I Consent
Decree, but who does not meet the “age of onset”
requirement of the DSM-V. This shall include Inmates
who have developed a medical condition which
substantially affects mental cognition and adaptive skills
consistent with the standard set forth under the Phase 1
Consent Decree and whose primary care physician’s
assessment concludes that such programming will be
beneficial to the Inmate. In that instance, the Inmate’s
primary care physician will prescribe programming
specific to the Inmate’s needs and abilities; or

c.
ii.

Any Inmate who is diagnosed as having an Intellectual
Disability pursuant to the testing protocol described in
the Phase 1 Consent Decree; or

Any other Inmate whom ADOC determines would
substantially benefit from such training.

Frequency of Provision of Programming.
a.

Within six (6) months of identification of an Inmate
meeting any of the above criteria, ADOC shall enroll an

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Inmate meeting the criteria described above into the
“Adaptive Behavior/Life Skills Training Program” (the
"Program") as described herein. All reasonable and
necessary accommodations will be afforded such Inmate
consistent with the terms of the Phase I Consent Decree
and the Acts. Routinely, all such topics contained within
the Program shall be completed within six (6) calendar
months of enrollment, The time for completion may be
extended where a specific Inmate has such profound
limitations such that he or she cannot participate in the
Program at the same pace as other Inmates within the
Program. If such were to occur, ADOC will evaluate and
modify the Program on an individual basis for such
Inmate to ensure that such Inmate is able to receive the
fundamental portions of the information.
b.

The Program will be provided to Inmates regardless of
their security classification. The Program may be
provided by ADOC Psychological Associates or similarly
situated and trained individuals employed by ADOC or
any third party contractor (collectively or individually, the
“Instructor”). The number of Inmates enrolled in a
particular ADOC facility’s Program will be small enough to
ensure meaningful participation by affected Inmates, but
in no event shall be greater than twenty (20) Inmates per
class.

c.

Thereafter, every other year, any such Inmates who
remain within ADOC’s physical custody shall undergo a
refresher class covering the topics in the Program. The
refresher course may be a repeat of the entire Program
that had been provided (updated as appropriate) or an
abbreviated version of such program so long as the

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abbreviated version returns the Inmate to the level of
functioning he or she had attained at the completion of
the initial Program.
iii.

Transfer of Inmates While They are Enrolled in the Program.
a.

ADOC will attempt to minimize the transfer of Inmates
while they are actively participating in the Program. If
ADOC determines that an Inmate needs to be
transferred to another ADOC facility while the Inmate is
enrolled in the Program, then the sending institution
will, within seven (7) working days of transfer, discuss in
person, telephonically, or by email, with the receiving
institution the current status, issues, and mental health
needs of the transferring Inmate.

b.

Inmates will be assigned a Case Manager at their
assigned institution. This person’s responsibility will be
to evaluate and review what Program courses, if any, the
Inmate has not completed. The Case Manager will enroll
the Inmate into any Program courses the Inmate has not
completed. The Case Manager will meet with the Inmate
a minimum of once per year to assess remedial needs.
Transfer of an Inmate will not constitute a reason, on its
own, for a failure to complete the Program within the
allotted six (6) month period as described herein.

c.

iv.

Adaptive Behavior/Life Skill Programming Components.
a.

The initial Program shall be at least twenty-two (22) hours
in total duration. Inmates will be provided instruction
concerning the topics included within the Program in
classes not to exceed ninety (90) minutes each. The
Instructor of a class must assess whether participating
Inmates have fully understood the materials presented in
that class. If an Inmate is unable to understand and retain

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the information provided during a class, appropriate
steps must be taken to solve this issue, to include
providing the Inmate with additional classes. Any
additional class required as a result shall not count
against the twenty-two (22) hour period.
b.

The following general topics and areas must be included
within the Program:
A.

Decision Making. The Program must include a
topic to teach Inmates how to make good
decisions, to identify skills and strategies to be
employed in making such decisions, the existence,
identity, and method to secure assistance when
appropriate in making good decisions. The topic
will cover how to avoid becoming a victim or being
inappropriately influenced by other Inmates.

B.

Stress Management. The Program will address this
topic in order to alleviate and minimize stress
within the prison context. This topic will be
designed specifically for Inmates with limited
cognitive abilities.

C.

Communication Skill Building. This topic will
consist of direct training regarding each method by
which an Inmate may secure an accommodation,
medical and mental health care, access to
programming to include educational, vocational,
and rehabilitative, other programming such as
recreational, religious, and leisure (such as
commissary). It also will include training on how an
Inmate can stay informed about current
regulations and any changes within the facility
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where the Inmate is housed. This topic must
include a discussion of the Prison Rape Elimination
Act (“PREA”) and ADOC procedures for notifying
the ADOC of a violation.
D.

Risk Taking Consequences. This topic shall consist
of modules outlining various common forms of risk
taking activities and a practical discussion of the
consequences of such actions. It shall include a
discussion of drug usage, sexual activity, and
violation of facility rules and regulations.

E.

Self Help. This topic shall include a discussion of
available methods by which an Inmate may
develop necessary skills to become an independent
self-advocate.

F.

Accessing Prison Services. This topic should be
taught in conjunction with “Communication Skill
Building,” Section V.5(b)(iii), supra, and will consist
of an overview of all available prison services both
within the ADOC system generally and within the
prison in which the Inmate is housed and how to
access such available services.

G.

Hygiene. This topic is designed to teach basic
hygiene and the medical and social reasons for
proper hygiene. Additional subtopics will address
healthy living, such as diet, diabetic issues, and
weight.

H.

Self-Direction. This topic shall include a discussion
and strategy designed to encourage an Inmate to
make positive decisions and positively seek
educational, vocational, and rehabilitative
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programming. The programming shall actively
encourage Inmates to make the best use of their
time, and to actively seek appropriate outlets,
rather than merely pass the time, while within the
custody of ADOC.
I.

4.

Prison Rules. This topic shall include an in-depth
review of prison rules to ensure than Inmates are
aware of the existence and consequence for
violation prison rules and regulations.

Further, the Parties shall implement any other provision of the

Agreement necessary so that all inmates covered by the Agreement are provided
with the services and benefits detailed in Section V. during the pendency of the
Court’s preliminary and final approval of the Agreement.
It is further ORDERED, by the agreement of the parties as expressed in open
court on January 19, 2017, that this temporary restraining order will remain in
effect until the court finally approves or rejects the parties’ Settlement Agreement
Concerning Mental Health Claims Arising Under the Americans with Disabilities Act
and § 504 of the Rehabilitation Act of 1973.
DONE, this the 19th day of January, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE