Dunn et al v. Thomas et al

Filing 1205

PHASE 2A OPINION AND ORDER PRELIMINARILY APPROVING ADA MENTAL HEALTH SETTLEMENT AGREEMENT: Pursuant to Federal Rule of Civil Procedure 23(e), the parties jointly move the court to grant preliminary approval to their proposed ADA mental health settle ment agreement in Phase 2A of this litigation; to approve the form of notice to class members of the proposed settlement agreement (attached as Exhibit A); to approve the form for objecting to or commenting on the proposed settlement agreement (attac hed as Exhibit B); and to approve the process for distributing these documents and collecting comments, as further set out below. It is therefore ORDERED that the joint motions for preliminary approval (doc. nos. 1175 and 1197 ) are granted as follows: 1. The proposed settlement agreement (doc. no. 1100 ) is preliminarily approved; final approval will be subject to a hearing and review by this court of any objections to or comments about the agreements terms submitted by class members, an d to the courts resolution of certain outstanding issues identified in open court at a hearing held on February 16, 2017, and set for briefing below. 2. An injunctive-relief settlement class, defined as any current or future inmate in the physical cu stody of the Alabama Department of Corrections who has a disability as defined, as further set out. 3. The Southern Poverty Law Center, the Alabama Disabilities Advocacy Program, and Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, are appointed a s class counsel to represent the settlement class under Rule 23(g). 4. The Alabama Department of Corrections (ADOC) is to provide notice of the proposed settlement agreement as outlined below by March 6, 2017, and to collect comments from class membe rs as further outlined below by the submission deadline of April 5, 2017, as further set out. 5. By no later than May 1, 2017, the parties are to confirm in written filings with the court the following agreement, stipulated to during a hearing held i n open court on February 16, 2017: This Agreement does not represent a settlement of all potential current and future claims that prisoners may bring under the ADA or Rehabilitation Acts. 6. By no later than May 1, 2017, the parties are to file pre-h earing briefs, both summarizing by topic and responding to the objections to and comments on the proposed settlement agreement that have been submitted by class members. These briefs must include citations to the page numbers on which any referenced objections or comments appear in the docketed compilations of responses. 7. By no later than May 1, 2017, the Alabama Disabilities Advocacy Program (ADAP) will file a brief concerning the reasonableness of the proposed settlement agreement, which wil l include one or more expert opinions addressing the adequacy of the settlement. 8. A fairness hearing is set for 10:00 a.m. on June 2, 2017, in Courtroom 2FMJ of the Frank M. Johnson Jr. United States Courthouse Complex, One Church Street, Montgomer y, Alabama. 9. After receiving objections and comments from class members, the court will determine from whom it intends to hear oral testimony. This testimony will be heard by videoconference from various ADOC facilities. Signed by Honorable Judge Myron H. Thompson on 2/22/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(furn: AG, Calendar)(kh, )

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)

PHASE 2A OPINION AND ORDER PRELIMINARILY APPROVING
ADA MENTAL HEALTH SETTLEMENT AGREEMENT
Pursuant to Federal Rule of Civil Procedure 23(e),
the parties jointly move the court to grant preliminary
approval to their proposed ADA mental health settlement
agreement in Phase 2A of this litigation; to approve
the form of notice to class members of the proposed
settlement

agreement

(attached

as

Exhibit

A);

to

approve the form for objecting to or commenting on the
proposed settlement agreement (attached as Exhibit B);
and

to

approve

the

process

for

distributing

these

documents and collecting comments, as further set out
below.

Based on the entire record before the court,

the court finds as follows:
First, the court finds that the proposed settlement
agreement should be preliminarily approved, that notice
should be provided to interested parties, and that a
fairness hearing should be conducted.
The

court

further

finds

it

appropriate

to

provisionally certify a Rule 23(b)(2) injunctive-relief
settlement
inmate

class

composed

the

physical

in

Department

of

of

“any

current

custody
who

Corrections

of
a

has

or

the

future
Alabama

disability

as

defined in 42 U.S.C. § 12012 and 29 U.S.C. § 705(9)(B)
relating to or arising from mental disease, illness, or
defect.”

For reasons to be articulated in a final

decision regarding whether to approve the settlement,
the court preliminarily finds that the settlement class
meets

the

commonality,

requirements

of

Rule

typicality,

representation--as

well

as
2

and
the

23(a)--numerosity,
adequacy

requirement

of

of
Rule

23(b)(2) that the issues involved “apply generally to
the class,” such that “relief is appropriate respecting
the class as a whole.”

The court preliminarily finds

that plaintiffs’ counsel in this case can capably serve
as and should be appointed class counsel, based on the
factors outlined in Rule 23(g).
Finally,

the

court

finds

that

the

notice

and

comment forms attached as exhibits to this order, and
the process for distributing and collecting these forms
outlined

below,

and--together

constitute

with

below--opportunity

the
to

sufficient

fairness
be

heard

notice

hearing
on

the

of

described
proposed

settlement agreement, as is required by due process and
Rule 23(e).
It is therefore ORDERED that the joint motions for
preliminary

approval

(doc.

nos.

1175

and

1197)

are

agreement

(doc.

no.

granted as follows:
1. The

proposed

settlement

1100) is preliminarily approved; final approval
will be subject to a hearing and review by this
3

court of any objections to or comments about
the

agreement’s

members,

and

terms

to

the

submitted
court’s

by

class

resolution

of

certain outstanding issues identified in open
court at a hearing held on February 16, 2017,
and set for briefing below.
2. An injunctive-relief settlement class, defined
as

“any

current

or

future

inmate

in

the

physical custody of the Alabama Department of
Corrections who has a disability as defined in
42

U.S.C.

relating

§ 12012
to

or

and

arising

29

U.S.C.

from

§ 705(9)(B)

mental

disease,

illness, or defect,” is provisionally certified
under Federal Rule of Civil Procedure 23(a) and
(b)(2).
3. The Southern Poverty Law Center, the Alabama
Disabilities

Advocacy

Program,

and

Baker,

Donelson, Bearman, Caldwell & Berkowitz, PC,
are appointed as class counsel to represent the
settlement class under Rule 23(g).
4

4. The Alabama Department of Corrections (ADOC) is
to provide notice of the proposed settlement
agreement as outlined below by March 6, 2017,
and to collect comments from class members as
further

outlined

below

by

the

submission

deadline of April 5, 2017.
a. As

a

preliminary

matter,

the

proposed

settlement agreement (doc. no. 1100) and
notice and comment forms (Exhibits A and
B) are to be translated into Spanish, and
printed in both Braille and large print,
and these alternative format documents are
to be distributed to each ADOC facility
prior

to

documents

March
need

6,
not

2017.
be

Although

posted

in

any

alternative format, any individual inmate
known

to

officers

or
to

believed

read

vision-impaired

only
must

by

correctional

Spanish
be

or

to

be

provided

individual copies of both the notice and
5

comment

forms

in

an

appropriate

alternative format, and must be provided
the

agreement

itself

in

an

appropriate

alternative format upon request.
inmate

who

illiterate

is
or

illiterate
reads

only

As to an

or

partially

Spanish

or

is

vision-impaired and has difficulty reading
any of the different format documents or
has

difficulty

writing,

if

that

inmate

requests that the forms or the agreement
itself be read to him or her, or requests
assistance in completing a comment form,
this request must be promptly accommodated
by ADOC.
b. Copies
agreement

of

the

are

to

proposed
be

made

settlement

available

for

inmates to review in the law library of
each ADOC prison or work-release facility
or,

for

facilities

that

have

no

law

library, in the area where information for
6

inmates is made available.
copy

is

to

be

made

At least one

available

per

100

inmates housed in any particular facility.
c. A

copy

copy,

(including
as

an

alternative

appropriate)

settlement

agreement

of

is

to

format

the

proposed

be

provided

promptly upon request to any inmate who is
not authorized or able to access the law
library or other area where copies of the
agreement are being made available.
d. For

inmates

prison

or

housed

in

work-release

dorms

at

ADOC’s

facilities,

the

notice form is to be posted in each of the
libraries and dorms of these facilities,
wherever

information

ordinarily posted.

for

inmates

is

Sufficient copies of

the comment form are to be made available
to

inmates

housed

in

dorms

in

their

facilities’ libraries and in their shift
commanders’ offices.
7

e. Any

inmate

whose

housing

assignment

is

other than a dorm is to be provided, by
hand delivery: (1) a copy of the notice
form, (2) a copy of the comment form, and
(3)

a

letter-sized

envelope.

A

correctional officer employed by ADOC is
to distribute these papers.

ADOC is to

maintain a roster that indicates, by name
and AIS number, each inmate to whom these
forms have been distributed.

Inmates are

to sign this roster upon receipt of the
forms; in the event that an inmate refuses
to

sign

or

rejects

the

forms,

the

distributing officer is to note this on
the roster.
f. ADOC

is

notice
comment

to
and
by

announcement,

inform

all

inmates

opportunity
means

of

to

made

be

to
a

of

the

object

or

weekly
during

oral

morning

count each Monday of the comment period,
8

as

follows:

“Attention.

There

is

a

proposed settlement of the Braggs v. Dunn
Americans

with

Disabilities

that affects all inmates.

Act

lawsuit

You have until

April 5, 2017, to provide written comments
about that settlement.

You can review the

proposed settlement agreement in the law
library [for facilities that have no law
library, specify alternate location].

If

you are not able to access the law library
[for facilities that have no law library,
specify alternate location], a copy of the
agreement will be provided to you if you
request one from a correctional officer.
By

April

written

5,

2017,

comments

you

in

should

the

ADA

place

all

Settlement

Comment Box, located next to the inmate
request slip box.

If you need a copy of

the comment form, you can get one from the
correctional

officer
9

supervising

your

living area or from the law library.
you

cannot

access

the

ADA

If

Settlement

Comment Box, you should ask a correctional
officer

to

have

your

comment

form

collected and placed in the comment box.”
g. At

each

ADOC

facility,
“ADA

a

prison

secured

Settlement

or

box

work-release

clearly

Comment

Box”

labeled

is

to

be

placed adjacent to the box where inmate
request slips are collected.
be

a

securely

taped

This box may

cardboard

box,

and

must be of sufficient size to accommodate
all

comment

forms

that

are

submitted.

This box is to be used exclusively for the
collection of comment forms.
h. Inmates

who

within

a

place

are

facility

their

allowed
are

comment

designated comment box.

to

to

move

around

be

allowed

to

forms

in

the

Comment forms are

to be collected from those inmates who do
10

not

have

freedom

of

movement

within

a

facility as follows, with records of the
inmates

from

whom

forms

have

been

collected to be maintained on rosters by
those responsible for the collection:
i. In segregation units, the forms are to
be

collected

by

members

of

the

Institutional Segregation Review Board
during normal rounds and deposited in
the comment box.
ii. In

mental-health

units

and

stabilization units, the forms are to
be collected by the Captains who are
responsible

for

those

units

and

deposited in the comment box.
iii. In segregation units or holding units
at work-release facilities, the forms
are to be collected by the Wardens of
those facilities and deposited in the
comment box.
11

i. The

Warden

of

each

ADOC

facility

is

to

certify in writing that the facility has
complied

with

the

above

requirements

regarding the provision of notice and the
collection of forms, and that all comment
boxes

have

been

transmitted

to

ADOC’s

general counsel as required below.
j. On the 20th day of the comment period, the
Warden at each facility is to transmit to
the office of ADOC’s general counsel the
comment

box(es)

immediately

at

replace

the
the

facility,
comment

and

box(es)

with a box or boxes of the same design and
labeling as the box replaced.

At the end

of the final day of the comment period,
the Warden at each facility is to transmit
the

replacement

comment

box(es)

to

the

boxes

is

office of ADOC’s general counsel.
k. After

each

received

by

set

of

ADOC’s
12

comment
general

counsel,

counsel

for

ADOC

will

promptly

arrange

with class counsel a time for the parties
to meet at the headquarters of defendant
Alabama

Department

of

Corrections

in

Montgomery, Alabama, in order to confirm
that

comment

boxes

from

all

ADOC

facilities have been received and to open
those

boxes.

A

representative

of

the

clerk of court for the Middle District of
Alabama
boxes

will
are

be

in

opened

attendance
and

will

when

the

personally

transport all contents of the boxes to the
courthouse

for

processing

pursuant

to

Section 4(l).
l. Each of these two sets of comments is to
be

scanned

by

the

clerk

of

docketed as a single filing.
time

as

these

comments

court

and

At the same

are

docketed,

comments received by the clerk of court by
mail by that date are also to be compiled
13

and docketed.
any

Finally, on April 21, 2017,

additional

comments

received

by

the

clerk of court by mail are to be compiled
and docketed.
retain

the

comments,

The clerk of court is to
original

whether

copies

submitted

to

of

all

comment

boxes or by mail.
i. To

be

clear,

five

compilations

of

comments are to be docketed and marked
as follows:
1. First round of comments submitted
to comment boxes.
2. First round of comments submitted
by mail.
3. Second round of comments submitted
to comment boxes.
4. Second round of comments submitted
by mail.
5. Third round of comments submitted
by mail.
14

5. By no later than May 1, 2017, the parties are
to confirm in written filings with the court
the following agreement, stipulated to during a
hearing

held

in

open

2017:

This

Agreement

court
does

on
not

February

16,

represent

a

settlement of all potential current and future
claims that prisoners may bring under the ADA
or Rehabilitation Acts.
6. By no later than May 1, 2017, the parties are
to file pre-hearing briefs, both summarizing by
topic and responding to the objections to and
comments on the proposed settlement agreement
that

have

been

submitted

by

class

members.

These briefs must include citations to the page
numbers on which any referenced objections or
comments appear in the docketed compilations of
responses.
7. By

no

later

than

May

1,

2017,

the

Alabama

Disabilities Advocacy Program (ADAP) will file
a brief concerning the reasonableness of the
15

proposed

settlement

agreement,

which

will

include one or more expert opinions addressing
the adequacy of the settlement.
8. A fairness hearing is set for 10:00 a.m. on
June 2, 2017, in Courtroom 2FMJ of the Frank M.
Johnson Jr. United States Courthouse Complex,
One

Church

Street,

Montgomery,

Alabama.

At

this hearing, counsel for both parties must be
prepared

to

respond

to

the

objections

and

comments made by class members, as well as to
the court’s concerns as outlined above.
9. After receiving objections and comments from
class members, the court will determine from
whom it intends to hear oral testimony.

This

testimony will be heard by videoconference from
various ADOC facilities.
a. By no later than May 5, 2017, the parties
are

to

file

with

the

court

their

suggestions as to which inmates the court
should hear testify. The parties are to
16

consult with the clerk of court about and
file

under

seal

a

joint

proposal

as

to

arrangements for videoconferencing.
b. By no later than May 10, 2017, the court
will

inform

members

the

will

parties

testify,

and

which

class

which

dates

during the week of May 30, 2017, the court
will hear testimony.
c. By no later than May 12, 2016, the parties
are to file a list of which class members
will testify from which facilities.
DONE, this the 22nd day of February, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

17