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, )

If you are an inmate with a mental health condition, read this
notice.
Notice of Proposed Class Action Settlement
You may be affected by the settlement of mental health claims made under the
Americans with Disabilities Act (“ADA”) and under Section 504 of the Rehabilitation Act
(“Section 504”) in the lawsuit entitled Braggs v. Dunn, No. 2:14-cv-00601-MHT-TFM
(previously Dunn v. Dunn), in the United States District Court for the Middle District of
Alabama. This notice summarizes the claims included in this settlement and your rights
under the settlement agreement.
1. What issues in the lawsuit have been settled?
• Whether the ADOC has failed to make appropriate accommodations for people with
mental health disabilities in its policies and procedures, in violation of the ADA and
Section 504;
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Whether the ADOC has discriminated against inmates with mental health disabilities in the
provision of and access to programs, benefits, and services; and

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Whether the ADOC has failed to provide appropriate programming designed for persons
with intellectual disabilities in ADOC facilities.

The case involves other claims related to medical and mental health care that have not been
settled and that will be decided by the Court.
2. Who is affected by this settlement?
All class members are affected by this settlement. A class member is any current or future inmate
in the physical custody of the ADOC who has a disability as defined in the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B), relating to or arising from
mental disease, illness, or defect.
Under the ADA, disability is defined as, “a physical or mental impairment that substantially limits
one or more major life activities of such individual; a record of such an impairment; or being
regarded as having such an impairment.” 42 U.S.C. § 12102(1). This includes mobility, hearing or
vision impairments.
If you have any questions about how this settlement affects you, contact the Class Counsel listed
after question No. 6 on the third page of this notice.
3. What is the proposed settlement?
The Plaintiffs and the ADOC have reached a proposed settlement that would release the ADOC
from any further liability as to the mental health claims brought under the ADA by the plaintiff
class. If the court approves the settlement agreement, you may be prevented in the future from
bringing certain ADA mental health claims in federal court, because those claims were resolved by
the settlement agreement. You may be required to ask an arbitrator appointed by the court to
decide those claims, and you may not be able to appeal the arbitrator’s decision to the court.
The settlement agreement requires the ADOC to make numerous changes, all of which are
subject to Court approval, including the following:

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identifying, screening, and tracking inmates with mental health disabilities;
modifying the procedure for requesting disability-based accommodations;
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appointing ADA Coordinators for each facility and statewide;
ensuring that inmates with mental health disabilities have equal access to educational and
rehabilitative classes and programs;
offering life skills / adaptive behavior classes for inmates with intellectual disabilities;
putting in place procedures for requesting ADA accommodations and for appealing denials
of such requests; and
permitting the Alabama Disabilities Advocacy Program (“ADAP”) to monitor ADOC’s
compliance with the Settlement Agreement.

The settlement agreement requires the ADOC to pay fees to the court-approved monitor and
attorneys’ fees to the lawyers who represented the class members.
You have the right to learn more about the settlement agreement. A copy is available in your
prison law library. If there isn’t a library, the settlement agreement will be available in the area
where other inmate information is made available in your facility. If you are unable to visit the law
library or other area, you may request a copy of the settlement agreement from a correctional
officer or class counsel and one will be provided to you.
4. Who represents the inmates affected by the settlement?
The lawyers representing the inmates (“Class Counsel”) are Maria V. Morris of Southern Poverty
Law Center, 400 Washington Avenue, Montgomery, AL 36104 and William Van Der Pol, Jr. of the
Alabama Disabilities Advocacy Program, Box 870395, Tuscaloosa, AL 35487.
5. What are your options?
The United States District Court for the Middle District of Alabama has preliminarily approved the
settlement agreement but will hold a hearing to determine whether it is fair, reasonable, and
adequate at _________ on __________, 2017, at the United States Courthouse, One Church Street,
Montgomery, Alabama. If you wish to testify, say so on the comment form you submit. The court
will choose which inmates will be allowed to testify. The inmates who have been selected to testify
will speak to the court by videoconference from an ADOC facility, and will not appear in court in
person.
You have the right to make objections, comments or statements about the Settlement
Agreement through the following methods:
1.

You may complete a form called "Response to Proposed Class Action Settlement." If
you have not been provided with a copy of the Response form, you may get one
from the officer supervising your living area or in your facility's law library. As
discussed in the Response form, you must place your completed Response form in
the box labeled "ADA Mental Health Settlement Comment Box" located in the area
where your facility's inmate request box is located. If you do not have access to the
area where the ADA Mental Health Settlement Comment Box is located, you should
provide your completed Response form to the following, depending on your housing
assignment, who will place your comments in the ADA Mental Health Settlement
Comment Box:
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in Segregation Units, the forms will be collected by members of the
Institutional Segregation Review Board during normal rounds;
in the Infirmary, Mental Health Units, Stabilization Units, and Death Row,
the forms will be collected by the Captain who is responsible for those units;

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in Segregation Units/Holding Units at Work Release Facilities, the forms will
be collected by the Warden.

2.

You may also mail your completed response form to the following address: Clerk of
Court, U.S. District Court for the Middle District of Alabama, P.O. Box 711,
Montgomery, AL 36101-0711.

3.

You may use other paper to provide an objection, comment or statement about the
Settlement Agreement. If you do so, that paper MUST include the case name and
number (Braggs v Dunn, Case No. 2:14-cv-00601-MHT-TFM) at the top of the
page. You MUST also include your full legal name, AIS number, all objections,
comments or statements you wish to make and the reasons for them, and your
signature.

4.

You may submit supporting papers (such as briefs, written evidence, and
declarations) to your objection, comment, or statement about the Settlement
Agreement. However, do not send originals because those will not be returned to
you.

ANY OBJECTIONS, COMMENTS OR STATEMENTS MUST BE PLACED IN THE ADA MENTAL
HEALTH SETTLEMENT COMMENT BOX, PROVIDED TO THE RESPONSIBLE CORRECTIONAL
OFFICER OR POST MARKED NO LATER THAN _________, 2017, TO BE CONSIDERED.
Any objections, comments, or statements that do not comply with the rules and
deadlines listed in this Notice will not be heard or considered by the Court.
6. How can you get more information?
If you have any question about any information in this notice or if you want a copy of the
proposed settlement agreement, you may write or call the following offices of Class Counsel:
William Van Der Pol, Jr.
ALABAMA DISABILITIES ADVOCACY PROGRAM
Box 870395
Tuscaloosa, Alabama 35487
[phone]

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ADA Mental Health Settlement Questions
SOUTHERN POVERTY LAW CENTER
400 Washington Avenue
Montgomery, Alabama 36104
[phone]

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