Dunn et al v. Thomas et al

Filing 1253

PHASE 2A OPINION AND ORDER PRELIMINARILY APPROVING INVOLUNTARY MEDICATION SETTLEMENT AGREEMENT: Pursuant to Federal Rule of Civil Procedure 23(e), the parties jointly move the court to grant preliminary approval of their proposed Involuntary Medicati on Settlement Agreement in Phase 2A of this litigation; to approve the form of notice to class members of the proposed settlement agreement ("notice form") (attached as Exhibit A); to approve the form for objecting to or commenting on the p roposed settlement agreement ("comment form") (attached as Exhibit B); and to approve the process for providing notice and collecting comments from interested parties, as further set out. Based on the entire record before the court, the cou rt 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 app ropriate to provisionally certify a Rule 23(b)(2) injunctive-relief settlement class composed of "all persons with a serious mental health disorder or illness who are now, or will in the future be subject to defendants' formal involuntary m edication policies and practices." 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 requirements of Rule 23(a)-- numerosity, commonal ity, typicality, and adequacy of representation--as well as the requirement 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 pre liminarily 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 th is order, and that the process for distributing and collecting these forms outlined below, constitute sufficient notice of and--together with the fairness hearing described below--opportunity to be heard on the proposed settlement agreement, as is re quired by due process and Rule 23(e). It is therefore ORDERED that the joint motion for preliminary approval and notice of proposed settlement (doc. nos. 1248 ) is granted as follows, as further set out. A fairness hearing is set for 10:00 a.m. on A ugust 23, 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, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 5/11/2017. (Attachments: # 1 Notice of Proposed Class Action Settlement About Involuntary Medication, # 2 Response to Proposed Class Action Settlement)(furn: calendar, AG)(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
INVOLUNTARY MEDICATION SETTLEMENT AGREEMENT
Pursuant to Federal Rule of Civil Procedure 23(e),
the parties jointly move the court to grant preliminary
approval

of

their

proposed

Involuntary

Medication

Settlement Agreement in Phase 2A of this litigation; to
approve the form of notice to class members of the
proposed settlement agreement (“notice form”) (attached
as Exhibit A); to approve the form for objecting to or
commenting
(“comment

on
form”)

the

proposed

(attached

as

settlement
Exhibit

B);

agreement
and

to

approve the process for providing notice and collecting
comments from interested parties, 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

class

composed

of

“all

persons

with

a

serious mental health disorder or illness who are now,
or will in the future be subject to defendants’ formal
involuntary

medication

policies

and

practices.”

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
requirements

of

Rule

23(a)--numerosity,

commonality,

typicality, and adequacy of representation--as well as
the

requirement

of

Rule

23(b)(2)
2

that

the

issues

involved

“apply

generally

appropriate

to

the

class,”

respecting

the

such

class

that

“relief

is

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
that the process for distributing and collecting these
forms outlined below, constitute sufficient notice of
and--together

with

below--opportunity

the
to

fairness
be

hearing

heard

on

the

described
proposed

settlement agreement, as is required by due process and
Rule 23(e).
It is therefore ORDERED that the joint motion for
preliminary approval and notice of proposed settlement
(doc. nos. 1248) is granted as follows:
1. The

proposed

1248-1)

is

approval

will

settlement

agreement

preliminarily
be

subject
3

(doc.

approved;
to

a

no.

final

hearing

and

review by this court of any objections to or
comments about the agreement’s terms submitted
by class members, and to the court’s resolution
of certain outstanding issues identified in a
telephone conference held on May 9, 2017, and
set for briefing below.
2. An injunctive-relief settlement class, defined
as “all persons with a serious mental health
disorder or illness who are now, or will in the
future

be

subject

to

defendants’

formal

involuntary medication policies and practices”
is provisionally certified under Federal Rule
of Civil Procedure 23(a) and 23(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. The Alabama Department of Corrections (ADOC) is
to provide notice of the proposed settlement
4

agreement as outlined below by June 2, 2017,
and to collect comments from class members as
further

outlined

below

by

the

submission

deadline of July 17, 2017 (referred to herein
as the “comment period”).
a. As

a

preliminary

matter,

the

proposed

settlement agreement (doc. no. 1248-1) 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 June 2, 2017.
documents

need

not

be

Although posted
provided

in

any

alternative format, any individual inmate
with mental illness known to or believed
to

read

only

vision-impaired

Spanish
must

or
be

to

be

provided

individual copies of both the notice and
comment

forms
5

in

an

appropriate

alternative format, and must be provided
the

agreement

itself

in

an

appropriate

alternative format upon request.

As to an

inmate

who

with

mental

illness

is

illiterate or partially illiterate as to
English

or

reads

only

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. For the duration of the comment period,
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
6

that

have

no

law

library, in the area where information for
inmates is made available.
copy

is

to

be

made

At least one

available

per

250

inmates housed in any particular facility.
c. A

copy

copy,

(including
as

settlement

an

alternative

appropriate)
agreement

of

is

format

the

to

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. Copies of the notice form are to be made
available
dining

for

areas

inmates
and

to

review

mental

health

in

the

office

waiting areas of every major facility for
the duration of the comment period.
e. For inmates housed in Restricted Housing
Units and infirmaries, the notice form is
to be posted next to the shower area, and
shall be delivered by hand to every inmate
7

housed in a restrictive housing unit who
is

on

the

mental

health

caseload

on

or

before June 2, 2017.
f. The notice form shall be posted for the
duration
living

of

the

unit

Treatment

comment

in

the

Units

period

Open

(RTU)

in

each

Residential

at

Tutwiler,

Bullock, and Donaldson.
g. The

notice

form,

a

copy

of

the

comment

form, and a pre-addressed envelope bearing
the

identifier

“LEGAL

MAIL”

shall

be

distributed by hand to every inmate housed
in an Intensive Stabilization Unit, Closed
RTU, Semi-Open RTU, or in a crisis cell on
or

before

June

2,

2017.

A

correctional

officer employed by ADOC is to distribute
these

papers.

roster

that

ADOC

indicates,

is

to

by

maintain

name

and

a

AIS

number, each inmate to whom these forms
have

been

distributed.
8

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.
h. The comment form shall be distributed with
the notice form to all inmates receiving
the

notice

form

by

hand

delivery.

It

shall be provided on request to all other
inmates

by

the

mental

health

staff

and

shall be available in the mental health
offices of the major facilities.
i. A mailed submission of the comment form by
any

inmate

current
legal

shall

monthly

mail

items

not

count

limitation
per

towards
of

inmate,

two
nor

the
(2)

shall

postage be charged to the inmate.
j. ADOC will reasonably cooperate in making
arrangements to provide class members the

9

opportunity

to

meet

with

class

counsel

during the week of July 31, 2017.
k. Comments received by the clerk of court
which

are

mailed

on

or

before

July

17,

2017 are compiled and docketed in a single
docket

entry.

retain

the

The

clerk

original

of

court

copies

is

of

to
all

comments.
5. By no later than August 7, 2017, the parties
shall file briefs with the court addressing the
following

issues:

(1)

whether

the

revised

Administrative Regulation 621 creates an avenue
for judicial review of an adverse involuntary
medication

order,

see,

e.g.,

Washington

v.

Harper, 494 U.S. 210, 235 (1990) (finding no
violation
prisoner

of
could

procedural
obtain

due

judicial

process
review

where
of

an

involuntary medication order and where process
created sufficient record to allow for review);
(2) if the regulation does create an avenue for
10

judicial review, how it does so; (3) if it does
not create an avenue for judicial review, why
it does not do so.
6. By no later than August 7, 2017, the parties
are

to

file

summarizing

pre-hearing

by

objections

to

topic
and

and

briefs,

responding

comments

on

the

both
to

the

proposed

settlement agreement that have been submitted
by class members.
citations

to

the

These briefs must include
page

numbers

on

which

any

referenced objections or comments appear in the
docketed compilations of comments.
7. A fairness hearing is set for 10:00 a.m. on
August 23, 2017, in Courtroom 2FMJ of the Frank
M.

Johnson

Jr.

United

One

Alabama.

At this hearing, counsel for both
must

be

Street,

Courthouse

Complex,

parties

Church

States

prepared

to

Montgomery,

respond

to

the

objections and comments made by class members,

11

as well as to the court’s concerns as outlined
above.
8. 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

August

9,

2017,

the

parties are to file with the court their
suggestions as to which inmates the court
should hear testimony. The parties are to
consult with the clerk of court and file
under

seal

a

joint

proposal

as

to

2017,

the

arrangements for videoconferencing.
b. By

no

later

than

August

11,

court will inform the parties which class
members

the

court

would

like

to

hear

testimony, and which dates during the week
of August 21, 2017, the court will hear
testimony.
12

c. By

no

later

than

August

16,

2016,

the

parties are to file a list of which class
members are willing to testify and from
which facilities.
DONE, this the 11th day of May, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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