Dunn et al v. Thomas et al

Filing 1311

PHASE 2A ADA FINAL SETTLEMENT APPROVAL OPINION re 1290 PHASE 2A ADA FINAL SETTLEMENT APPROVAL ORDER. Signed by Honorable Judge Myron H. Thompson on 7/25/2017. (kh, )

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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. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:14cv601-MHT (WO) PHASE 2A ADA FINAL SETTLEMENT APPROVAL OPINION I. The individual INTRODUCTION plaintiffs in Phase 2A of this lawsuit are prisoners with serious mental illnesses in the custody of the defendants, the Alabama Department of Corrections (ADOC or the Commissioner, Jefferson Dunn. Advocacy Program (ADAP), Department) and its The Alabama Disabilities Alabama’s protection and advocacy organization for people with disabilities, is also a plaintiff. In this phase, the plaintiffs assert the claim that the Department is in violation of two statutes: Title II of the Americans with Disabilities Act, codified at 42 U.S.C. § 12131 Rehabilitation § 794. et Act of seq., 1973, and § codified 504 at of 29 the U.S.C. See Fifth Amended Complaint (doc. no. 805). For ease of reference, the court will refer to both statutes as the ADA. The plaintiffs claim that systemic deficiencies within the Department result in discrimination against, and the Department’s failure to accommodate, prisoners with mental disabilities. deficiencies include the failure to (1) These implement a system for identifying prisoners with disabilities; (2) institute a system for receiving accommodation requests and a grievance accommodations; procedure (3) appoint for ADA challenging denied coordinators; (4) adequately train personnel regarding the requirements of the ADA; (5) develop an ADA transition plan and corresponding architectural policies barriers and procedures; affecting 2 (6) prisoners remove with disabilities; such as those (7) provide auxiliary with and reasonable visual disabilities; aids and accommodations, and (8) services, enable those to with disabilities to access various types of programming and services. The plaintiffs declaratory relief. seek injunctive Jurisdiction is proper under 28 U.S.C. § 1331 and 28 U.S.C. § 1343. of negotiations, and the parties Following months have settled these contentions. This case administrative parties. has twice convenience been of bifurcated for court the the and In September 2015, this case was divided into two distinct phases, with the first phase, Phase 1, involving ADA claims unrelated to mental health and the second phase September bifurcated involving 2016, into Phase Phase all 2 of 2A, other claims. this case Then, was encompassing an in further Eighth Amendment claim related to the treatment of prisoners with mental illness, involuntary-medication claims, and an ADA claim of prisoners 3 with only mental disabilities; and Phase 2B, involving Eighth Amendment claims related to medical and dental care. The parties reached a settlement of the plaintiffs’ Phase 1 ADA claims disabilities. for prisoners with physical After an exhaustive approval process, the court approved the Phase 1 settlement agreement, see Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016), which resulted in a consent decree. During the Phase 2A trial, the parties, with the able assistance of United States Magistrate Judge John E. Ott of the United States District Court for Northern District of Alabama, reached a settlement of the remainder of the plaintiffs’ ADA claims: the Phase 2A ADA claim with only now before mental the court disabilities. concerning After a prisoners hearing, the court preliminarily approved the proposed Phase 2A ADA settlement agreement. In its preliminary approval order, the court provisionally certified a settlement class and established a procedure for providing putative class members with notice of the agreement and 4 an opportunity to object and submit comments on the agreement’s fairness. After receiving written comments from putative class members, the court held three days of fairness hearings. from a During the first two days, the court heard representative group of putative class members--selected by the court with the input of the parties--who had submitted agreement. During the comments third day, on the counsel proposed for the parties responded to various comments made by various witnesses and Additionally, other the questions court raised by considered the court. affidavits, submitted by ADAP, from experts in the mental-health field opining on the adequacy, fairness, and reasonableness of the agreement. After the hearing, the court entered an order granting final approval of the proposed phase 2A ADA settlement agreement and granted the parties’ request that their settlement agreement be entered as a consent decree. See Phase 2A ADA Final 5 Settlement Approval Order (doc. no. 1290). This opinion explains the court’s reasons for doing so. II. DESCRIPTION OF PROPOSED SETTLEMENT Broadly speaking, the agreement does two things: (1) it applies settlement the provisions agreement disabilities; and to (2) of it requires Phase with prisoners the only the 1 ADA mental Department to administer an adaptive-behavior and life-skills course for mentally disabled inmates. The settlement agreement applies the substantive provisions of the Phase 1 ADA settlement to prisoners with only mental disabilities. These include, most relevantly, requirements that the Department: conduct a self-assessment policies deadlines identify concerning communicate transition to and accommodations changes to disabled prisoners’ ability to create a access programs, listing plan, for necessary changes those for changes; disabled 6 and to be provide prisoners to made and reasonable access the programs offered by the Department; make individualized assessments of disabled prisoners housed in residential treatment and stabilization units to ensure that they have reasonable access to the Department’s programs; screen, test, prisoners track, for and periodically disabilities or changes re-evaluate in disability status; avoid increasing a prisoner’s security level solely based upon a disability; implement a procedure for receiving and processing prisoners’ requests for accommodations specified and forms, appeals of repositories denials, to submit including forms, and assistance for prisoners in completing and submitting forms; appoint facilities, as an ADA well coordinator as a for state-wide each of coordinator, its to handle ADA requests, process appeals, produce monthly reports, annual enhanced and ADA assess compliance; training training to to provide correctional ADA initial officers coordinators; create and and a quality-assurance program that includes audits of the identification of disabled 7 prisoners and of accommodation F.R.D. at being put requests 658–59. in and As place appeals. these for See provisions prisoners Dunn, are with 318 already physical disabilities, the practical effect of the settlement is primarily to make these provisions enforceable by prisoners with solely mental disabilities. In addition to the incorporation of these Phase 1 provisions, the parties agree to four closely related “Substantive Provisions,” which provide for the creation and administration of an adaptive-behavior and life-skills course for the settlement class. More specifically, these provisions include: Adaptive-Behavior Department will and Life-Skills provide Training: adaptive-behavior The and life-skills training for a period lasting no less than 181 consecutive calendar days to certain individuals. Frequency Department prisoners of will into an Provision enroll of Programming: appropriately adaptive-behavior and The identified life-skills training program within six months of identification. 8 Prisoners months, should except limitations. complete for the program individuals within with six profound An appropriately trained individual will lead the program. Finally, any prisoner who remains in the custody Department’s shall undergo a refresher course on the same topics every other year, so long as and until the prisoner returns to the level of functioning attained at the completion of the initial program. Transfer of Prisoners While They Are Enrolled in the Program: The Department will attempt to minimize the transfer of prisoners while they are enrolled in the adaptive-behavior and life-skills training program. If a prisoner is transferred during the course of a program, the sending and receiving institutions will work with the prisoner to mitigate any harm that may result from the transfer, including, assigning a case manager to the prisoner, enrolling the prisoner into courses the prisoner has not completed, and with the prisoner to discuss any remedial needs. 9 meeting Adaptive-Behavior Components: The and Department Life-Skills will provide Program an initial adaptive‑behavior and life‑skills training program that includes minutes 22 hours per of class, instruction, addressing the not to exceed following 90 general topics: (1) decision making; (2) stress management; (3) communication skill consequences; services; (5) (7) building; self-help; hygiene; (8) (6) (4) risk-taking accessing self-direction; prison and (9) prison rules. In addition to these substantive provisions, the settlement agreement contains the following implementation provisions, which were also included in the Phase 1 consent decree: Monitoring: compliance with ADAP the will monitor consent the decree, Department’s and will be entitled to access relevant documents and to conduct interviews with prisoners and staff. quarterly reports containing written on the Department’s recommendations 10 ADAP will prepare for any compliance necessary changes, and the parties will meet and confer to address any reported deficiencies. Dispute-Resolution Process: Both the named plaintiffs and unnamed class members (either with or without representation by class counsel) must arbitrate claims that the Department is not in compliance with the consent decree. non-compliance If impacts the fewer Department’s than 12 arbitrator’s decision will be final. alleged prisoners, the If 12 or more prisoners are affected, the arbitrator’s decision may be appealed to the court for review under an abuse-of-discretion standard. Termination: After five years, the Department may request termination of the consent decree, which will terminate after six years unless plaintiffs request, and the court grants, an extension. Amendment: agreement. The parties may mutually amend the The parties agree to re-evaluate deadlines in the transition plan if Alabama passes legislation to construct new prison facilities. 11 Funding: The Department will make good-faith efforts to obtain necessary funding to comply with the agreement. Attorneys’ Fees: Finally, the agreement states that the Department will pay plaintiffs’ attorneys $ 250,000.00 in fees and costs, as well as additional fees of $ 195.00 monitoring per services, hour and (subject fees for to caps) any for litigation necessary to enforce the resulting consent decree. Additionally, as in Phase 1, the parties agreed that no part prisoners. of the agreement applies to death-row The court previously dismissed “any claim initially brought in this action or remaining in Phase 2A or 2B of this action that ADOC fails to identify, track, and accommodate the intellectual disabilities of death row inmates.” Judgment Dismissing Claims Related to Prisoners on Death Row (doc. no. 925). Accordingly, the parties simply reiterate their intent to “remove from the asserted resolution under the of Acts the any 12 claims claim Plaintiffs concerning have the identification, tracking and accommodation of any intellectual disability of any current or future Inmate in the custody of ADOC under a death sentence ....” Proposed Phase 2A ADA Settlement Agreement (doc. no. 1100) at 12. Finally, the defendants agreement consent is to--the predicated on--and certification of a settlement class consisting of “any current or future inmate in the physical disability as defined 29 U.S.C. § 705(9)(B) custody in of ADOC reasons certification that relating follow, and final has 42 U.S.C. § 12102 to or mental disease, illness, or defect.” the who the arising Id. at 4. court approval of found the a and from For class agreement appropriate. III. Judicial actions. policy DISCUSSION favors the settlement of class Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). However, “the settlement process is 13 more susceptible than the adversarial process to certain types of abuse and, as a result, a court has a heavy, independent duty to ensure that the settlement is ‘fair, Wells, 686 (Thompson, adequate, F. J.) and Supp. reasonable.’” 1442, (citation 1444 Paradise (M.D. omitted). In Ala. v. 1988) addition to analyzing the fairness of the proposed agreement, the court must ensure that it is not illegal, or against public policy. See id. In approving this agreement, the court had to make four determinations. First, because the agreement was predicated upon class certification, the court had to determine whether the requirements of Federal Rules of Civil Procedure 23(a) and (b) were met. court assessed whether Rule 23(e)’s Second, the procedural and substantive protections, ensuring that the settlement class was given notice and an opportunity to comment on or object to the agreement, were satisfied. Third, because the proposed settlement included an award of attorneys’ fees to plaintiffs’ 14 counsel, Rule 23(h) required the court to find that such a fee award is “reasonable.” proposed Finally, settlement’s the court compliance evaluated with the the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626, which establishes certain prospective requirements relief in cases for affording involving prisons, including when that prospective relief takes the form of a court-enforceable settlement. See 18 U.S.C. § 3626(a)(1) & (c)(1). A. Class Certification: Rules 23(a) and (b) In its final approval order, the court certified a class of prisoners to which the agreement applies. Class certification is appropriate under Rule 23(a) if the putative class representatives can show that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative defenses of parties the are class; typical and 15 (4) of the the claims or representative parties will fairly and interests of the class.” adequately protect the Fed. R. Civ. P. 23(a). In addition to the Rule 23(a) requirements, a class action is maintainable only if it falls within one of three categories of cases set forth in Rule 23(b). Here, the plaintiffs sought certification under Rule 23(b)(2). To qualify under 23(b)(2), a plaintiff must show that “the party opposing the class has acted or refused to act on grounds that generally apply to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). This requirement applies whether or not the parties contest settlement approval. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620–22 (1997). Previously, settlement the class court defined provisionally to include “any certified current a or future inmate in the physical custody of the Alabama Department of Corrections who has a disability as defined in 42 U.S.C. § 12012 and 29 U.S.C. § 705(9)(B) 16 relating to or arising from mental disease, illness, or defect.” Phase 2A Preliminary Order (doc. no. 1205) at 2. parties’ joint settlement, certification statement the was court in Settlement Approval Having considered the support concluded appropriate for of that the proposed final purposes of class this settlement. The court notes that, in conducting this analysis, it had the benefit of briefing on a contested motion for class certification filed prior to settlement of the Phase 2A ADA claim.1 Although defendants no longer 1. After consideration of plaintiffs’ contested motion for class certification of the Phase 2 claims, the court granted class certification as to plaintiffs’ Phase 2A Eighth Amendment and involuntary-medication claims. See Braggs v. Dunn, 317 F.R.D. 634, 639 n.1 (M.D. Ala. 2016). However, the court specifically reserved ruling on class certification as to the plaintiffs’ remaining Phase 2A ADA and Phase 2B claims. See id. Accordingly, for purposes of approving this settlement, the court could not rely on its previous Phase 2A class-certification order. Instead, the court had to decide whether class certification is appropriate as to--and in light of the settlement of--these claims. Moreover, in a separate order and in light of this opinion, the court will deny the plaintiffs' motion for class certification as to their Phase 2A ADA claim as moot. 17 contest certification for purposes of and in light of this settlement, see Joint Motion for Preliminary Approval of Settlement (doc. no. 1175), the court has assured itself that, for the reasons discussed below, none of the against arguments class defendants certification previously warranted offered denial of certification for purposes of approving the settlement. 1. Standing “[A]ny analysis of class certification must begin with the issue of standing”; only if the court finds that the named plaintiffs have standing may it consider whether they have “representative capacity, as defined by Rule Griffin 23(a), v. 1987). to Dugger, “The assert 823 Supreme the F.2d Court rights 1476, has 1482 of others.” (11th explained Cir. that the ‘irreducible constitutional minimum’ of standing under Article III consists of three elements: an actual or imminent injury, Hollywood Mobile causation, Estates Ltd. 18 and v. redressability.” Seminole Tribe of Florida, 641 F.3d 1259, 1265 (11th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). The individual named plaintiffs clearly have standing to assert the ADA claim brought in Phase 2A and now prisoners resolved are in in the the instant custody of agreement.2 defendants, These have a mental disability that qualifies for the protection of the ADA, and claim they have been denied reasonable accommodations as a result procedures of defendants. of the policies and A judgment in plaintiffs’ favor would remedy these alleged violations, just as will the consent decree. Therefore, these plaintiffs have standing to proceed. 2. Not all of the plaintiffs named in the complaint raised a Phase 2A ADA claim. The following named plaintiffs did so, and are therefore named class representatives: Christopher Jackson, Brandon Johnson, Roger McCoy, Robert “Myniasha” Williams, and Quang Bui. The court has excluded from this list former plaintiff Jamie Wallace, who died before certification of the settlement class, but otherwise would have qualified. 19 2. Mootness In addition, the plaintiffs’ Phase 2A ADA claim is not moot. Mootness, like question of justiciability. standing, is a threshold See Harrell v. The Florida Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (noting that the three strands of justiciability are standing, ripeness, and mootness (citing Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998)). “Article III of the Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies,’ and an actual controversy complaint must is exist filed, but not only through at all the time stages of the the litigation.” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1975 (2016) (internal quotations and citations omitted). “A case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir. 1993). Before agreeing to settle, the Department had argued that certification of a Phase 2A ADA settlement 20 should not be granted because the Phase 2A ADA claim was moot; settlement prisoners, they contended covered all including disabilities--who that potential those the ADA are the focus of the Phase solely the 1 1 ADA for claims with However, agreement. Phase all mental Phase consent 2A decree expressly excludes inmates whose disabilities “relate solely to or aris[ing] illness, or defect.” no. 728) at 5. solely from mental disease, Phase 1 ADA Consent Decree (doc. Because prisoners with solely mental disabilities were expressly excluded from the Phase 1 consent decree--and nothing has changed with respect to the allegations of these prisoners--the claim of the proposed settlement class presented a live case or controversy against the Department, and their claim was not moot. 3. Rule 23(a) and (b)(2) In approving the Phase 2A settlement agreement, the court also found that the requirements of Rule 23(a) 21 and Rule 23(b)(2) have been satisfied and that class certification was appropriate. a. Numerosity Rule 23(a)(1)’s numerosity requirement is satisfied if joinder--the claims--would 23(a)(1). usual be method impractical. Although there is of See no combining Fed. similar R. strict Civ. P. numerical threshold, classes containing more than 40 members are generally found certification. adequate to warrant class See, e.g., Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009) (citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986)). Moreover, where “class wide discrimination has been alleged,” as is the case here, “plaintiff[s] need not show the precise number of members in the class,” as the numerosity requirement is “less significant.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983). Nevertheless, plaintiffs still must make “some showing, affording the district court the 22 means to class make a actually supported meets factual the finding numerosity that the requirement.” Vega, 564 F.3d at 1267 (emphasis original). In this case, the plaintiffs submitted evidence that, as of February 2016, there were 3,416 prisoners on the mental-health caseload. in Support Certification of See Memorandum of Law Plaintiffs’ (doc. no. 669) Motion at Monthly Report, February 2016)). 113 for Class (citing (MHM As discussed in the Phase 2A Eighth Amendment opinion, only prisoners with mental illnesses serious enough to require treatment are placed on the caseload. See Braggs v. Dunn, __ F. Supp. 3d __, 2017 WL 2773833 at *9 (M.D. Ala. June 27, 2017). Furthermore, as the court found during the Phase 2A Eighth Amendment trial, many prisoners with mental illness are not identified due to deficiencies in ADOC’s intake and referral systems; therefore, the number of prisoners likely higher. with serious See id. at *18–21. mental illness is While the mental illness of some of these individuals may not meet the 23 definition of disability under the ADA, it is safe to assume that well over 40 prisoners would so qualify. In sum, the settlement class is sufficiently numerous. Moreover, nature even of if a the class plaintiff were class--as small, in “the the fluid prison- litigation context--counsels in favor of certification of all present and future members.” Henderson v. Thomas, 289 F.R.D. 506, 510 (M.D. Ala. 2012) (Thompson, J.) (citing Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986), and Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981) (Freedman, J.)); see also Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993) certification concern to (Albritton, in cases prisoners J.) (noting involving is often issues “a that class of common common-sense approach,” “even when the potential class is small and somewhat undefined”). Based on the likely number of class members and the fluidity of the class, the court finds that joinder 24 would be impractical and that the plaintiff class is sufficiently numerous to warrant class certification. b. Rule 23(a)(2) Commonality requires plaintiffs seeking class certification to show that “there are questions of law or fact common 23(a)(2). to There the is no class.” Fed. requirement R. “that Civ. all P. ... question[s] of law or fact raised by the dispute be common.” Vega, 564 F.3d at 1268 (citation omitted). Instead, “[c]ommonality requires [only] that there be at least one issue whose resolution will affect all or a significant number of the putative class members.” Williams v. Mohawk Industries, Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (citing Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982) (footnote omitted)). Indeed, “even a single common question will do ....” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011) (alterations included; citations and quotations omitted). 25 In their pre-settlement opposition to plaintiffs’ motion for class certification, defendants had argued that commonality was lacking because the putative class was “expansive,” encompassing prisoners with a wide range of disabilities, and that plaintiffs sought to “challenge the violations.” entire Defendants panoply of possible Opposition to ADA Plaintiffs’ Motion for Class Certification (doc. no. 476) at 23. They argued that the plaintiffs’ claim was “not a single, homogenous claim,” except at “the highest level of abstraction,” but rather “many different ADA claims touching on many different ADA requirements that Plaintiffs[] ha[d] lumped together for purposes of this lawsuit.” Id. at 23. However, settlement as discussed approval at length opinion, in defendants’ objections on this basis were misguided. F.R.D. at 662–666. the Phase 1 former See Dunn, 318 It is not the denial of individual accommodations for those with mental disabilities--but rather the denial of a system 26 that would have the effect of others ensuring are that the appropriately prisoner plaintiffs accommodated--that was and the basis of plaintiffs’ claim of liability under the ADA. In other words, plaintiffs claimed that the Department has employed methods of administration that have the effect of discriminating against prisoners with disabilities, namely by: (1) employing no system or an inadequate system for identifying and tracking prisoners with disabilities; (2) employing no system or an inadequate system for prisoners to request accommodations and submit grievances regarding failure to accommodate; coordinators or (3) failing other to appoint administrators or train ADA responsible for oversight of compliance with the ADA; (4) failing to train staff regarding the requirements of the ADA; (5) failing to promulgate policies and procedures regarding the treatment of prisoners with disabilities; and (6) failing to draft a plan for identifying and addressing areas of non-compliance with the requirements of the ADA. These questions are common to the class, and 27 susceptible to common answers resolution of the litigation.” 350. Accordingly, the “apt to drive the Wal-Mart, 564 U.S. at commonality element of Rule 23(a) was met. c. Typicality Rule 23(a)(3) requires the named plaintiffs’ claim to be “typical of the claims or defenses of the class” as a whole. commonality whether a Fed. and R. Civ. typicality sufficient P. 23(a). inquiries nexus exists both between While the “focus the on legal claims of the named class representatives and those of individual class members[,] ... typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1278–79 (11th Cir. 2000). class representative’s claims are typical if A they “arise from the same event or pattern or practice and are based on the same legal theory” as the class claims taken as a whole. Williams, 568 F.3d at 1357 (citation 28 omitted); see In re Healthsouth Corp. Sec. Litig., 257 F.R.D. 260, 275 (N.D. Ala. 2009) (Bowdre, J.). In this case, the named plaintiffs’ claim satisfied the typicality requirement because it was identical to those of the settlement class as a whole: namely, that the Department employed methods of administration which resulted mental in discrimination disabilities. against prisoners Accordingly, the with typicality requirement was met. d. Adequacy of Representation Rule 23(a)(4) requires the court to find that the “representative parties will fairly and protect the interests of the class.” adequately This analysis “encompasses two separate inquiries: (1) whether any substantial conflicts representatives and of the interest class; exist and (2) between the whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted). 29 For a conflict to defeat class certification, it must be “fundamental,” such that “some party members claim to have been harmed by the same conduct that benefitted other members of the class.” Id. In this case, there was no conflict of interest between the named representatives and the class as a whole. Most of the reforms the settlement requires facially benefit all mentally disabled prisoners. For example, requiring ADOC to establish an ADA grievance procedure should benefit all prisoners with mental disabilities in seeking and receiving accommodations.3 Moreover, the development of a system that correctly 3. Indeed, evidence from the implementation of the Phase 1 consent decree, and to the extent applicable, the agreement at issue here--which went into effect through a temporary restraining order--shows that the reforms have already produced positive results. See Supplemental Brief Regarding the ADA Accommodation and Appeals Process (doc. no. 1268). According to the parties, 123 ADA requests for accommodations have been made across all facilities, 43 of which have been granted; 12 requests are still pending. In addition, 12 appeals have been made from denials of said requests; three of those resulted in an accommodation. In addition, ADAP conducted a qualitative review of these figures and found that only one denied request clearly should have been granted. 30 identifies inmates with mental disabilities will serve to benefit all inmates with mental disabilities. See Ass’n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457, 464 (S.D. Fla. 2002) (Gold, J.) (“The requested injunctive relief will provide substantially equal benefits and relief to all members of the class through increased removal of While some accessibility physical class and and the communication members may not coordinated barriers.”). qualify for the adaptive-behavior and life-skills course,4 this is not a fundamental conflict serious enough to undermine the settlement. In addition, the court was convinced that the named representatives and their counsel would adequately 4. The settlement provides that the adaptive‑behavior and life‑skills training program will be available to prisoners diagnosed with an intellectual disability; prisoners who meet the IQ and adaptive-behavior requirements defined under the Phase 1 consent decree, but who do not meet the “age of onset” requirement of the DSM-V; and prisoners who ADOC determines would “substantially benefit” from the program. See Proposed Phase 2A ADA Settlement Agreement (doc. no. 1100) at 13. 31 represent the settlement class. “The vigor with which [] [their] named representative[s] and counsel will pursue the class claim[] is assessed by considering the competency of counsel and the pursuing further litigation.” rationale for not Id. (citing Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985)). “The adequate representation requirement involves questions of whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation, and of whether plaintiffs have interests antagonistic to those of the Griffin, 755 F.2d at 1533. rest of the class.” Plaintiffs’ counsel have significant experience in the prosecution of cases such as this one and have vigorously prosecuted this case. Additionally, further plaintiffs’ litigation substantial reforms is rationale solid: through the for they not have settlement, pursuing obtained and the court sees no reason to believe that they would have obtained more relief by prolonging 32 the litigation. Accordingly, the court found that the adequacy-of-representation prong is satisfied. 4. Rule 23(b)(2) A class action is maintainable under Rule 23(b)(2) if (1) the party opposing the class has acted or refused to act on grounds that apply generally to the class and (2) final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Holmes (11th v. See Fed. R. Civ. P. 23(b)(2); see also Continental Cir. primarily 1983) to Can Co., (“Subsection facilitate 705 F.2d (b)(2) civil rights 1144, 1155 was ‘intended class actions, where the class representatives typically sought broad injunctive relief against discriminatory practices.” (citation omitted)). “Rule 23(b)(2) has been liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities, as well as claims for violations of the ADA and Rehabilitation 33 Act.” Bumgarner v. NCDOC, 276 F.R.D. 452, 457–58 (E.D.N.C. 2011) (Boyle, J.); see also Wright & Miller, 7AA Fed. Prac. & Proc. Civ. § 1776 (3d ed.) (explaining that “the class suit is uniquely cases, appropriate which generally procedure involve in an civil-rights allegation of discrimination against a group as well as the violation of rights of particular individuals”). As previously explained in the commonality discussion, liability in this case is premised on the notion that ADOC’s policies and procedures result in systematic discrimination against the members of the settlement class because of their mental disabilities. ADOC’s actions--or refusals generally to the class. in the form respecting the of a class act--thus apply In addition, injunctive relief consent as to a decree whole. is appropriate Therefore, class certification pursuant to Rule 23(b)(2) is appropriate. 34 B. Settlement Approval: Rule 23(e) Under Rule 23(e), the settlement of a class action requires court approval. Fed. R. Civ. P. 23(e)(1)(A). The court may approve a settlement that is binding on a class only if it determines that the settlement is “fair, adequate, and reasonable and is not the product of collusion between the parties.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977).5 This review is “essential to ensure adequate representation of class members who have settlement.” Fed. committee's note. must determine not participated R. Civ. P. in shaping 23(e) the advisory In reviewing a settlement, courts whether notice to the class was adequate, Fed. R. Civ. P. 23(e)(1), and must examine comments and objections from class members as well as the opinion of class counsel. See Laube v. Campbell, 5. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 35 333 F. Supp. 2d 1234, 1238 (M.D. Ala. 2004) (Thompson, J.). 1. Notice to Class Members Rule 23(e) requires that notice to the class be provided “in a reasonable manner to all class members who would be bound by the proposal.” 23(e). are Fed. R. Civ. P. “The court must ensure that all class members informed of the agreement[] and opportunity to voice their objections.” have Laube, 333 F. Supp. 2d at 1240; Fed. R. Civ. P. 23(e)(1). case, class members were the In this provided adequate opportunities to learn about the proposed settlement and offer objections or make comments about it. The court’s agreement order contained preliminarily specific approving procedures for the the Department to give notice of the proposed agreement to members of the provisionally certified class and distribute an approved notice and comment form. notice form included a description 36 of the to The case, a definition of the class, a list of the provisions of the settlement preclusive agreement, effects, and an notice concerning attorneys’ fees. included directions indication for of the of its agreement Additionally, the notice obtaining a copy of the agreement, contact information for class counsel, along with an invitation for prisoners to inquire about the settlement, an announcement of the fairness hearing, and instructions for prisoners to exercise their right to comment about or object to the settlement. The comment form allowed respondents to select from a list of general topics at issue, and to indicate whether they wished to testify at a fairness hearing. The notice form was posted in each dormitory and library within the prison system, and copies of the comment form were made available in the libraries and shift commanders’ offices. Copies of the agreement were made available for viewing in the law library or another location within each facility and were provided upon request to any prisoner lacking access to that 37 location. Prisoners who were not housed in dormitories were hand-delivered a copy of the notice and comment forms and a announcements pre-stamped also envelope. notified all Weekly prisoners of oral the settlement and opportunity to comment or object. The notice proposed and agreement comment were forms made and available Spanish, Braille, and in large print. prisoners were to receive copies assistance in of the English, Upon request, in reading the documents and in writing comments. During the comment period, a weekly announcement was made in every housing unit in each ADOC facility, informing inmates about the proposed settlement and reminding inmates of the date by which any comments were required to be filed.6 6. The Department was required to read the following announcement every Monday morning for the duration of the comment period: “Attention. There is a proposed settlement of the Braggs v. Dunn Americans with Disabilities Act lawsuit that affects all inmates. 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 38 Secure and clearly labeled comment boxes were placed in each facility for prisoners to submit comment forms, and the Department’s collect comment freedom of comment boxes forms movement and from within forms staff was prisoners their were required lacking facilities. transmitted to to the The the Department’s general counsel, and a representative of the clerk of court met with the parties to open the comment boxes. Prisoners were also given the option to submit comments by mail directly to the clerk of court. Notice of the proposed agreement was posted by March 6, 2017, and prisoners were given until April 5, 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 5, 2017, you should place all written comments in the ADA 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 supervising your living area or from the law library. If you cannot access the ADA Settlement Comment Box, you should ask a correctional officer to have your comment form collected and placed in the comment box.” Phase 2A ADA Settlement Agreement Preliminary Approval Order (doc. no. 1205) at 9–10. 39 2017, to submit comments. Comments received by mail after this date were also docketed. More than one hundred prisoners submitted comments or objections to the proposed agreement. While far fewer prisoners submitted comments during the Phase 2A ADA settlement comment period than during the Phase 1 ADA settlement comment period,7 the court is satisfied with the number of comments submitted during this phase, because much of the agreement substantive is provisions merely an from the incorporation of Phase consent 1 ADA the decree, which many members of the Phase 2A settlement class previously had an opportunity to comment on. One matter concerning the submission of comments warrants additional discussion. court received a letter On May 12, 2017, the apparently signed by eight prisoners housed at Donaldson Correctional Facility’s segregation unit. The signatory prisoners requested an update on the status of Phase 2 of this lawsuit. Of 7. Over 550 prisoners commented during the Phase 1 settlement approval process. See Dunn, 318 F.R.D. at 669. 40 particular concern were a couple of statements suggesting that prisoners in segregation at Donaldson Correctional Facility had not received any notice, whatsoever, of the status of this lawsuit. The court subsequently ordered the parties to investigate the allegations stated in the letter, and to file a joint report of their findings. The parties filed a joint report of their findings and reported that the prisoners had received sufficient notice. In the report, counsel for the parties contended that many of the prisoners who signed the letter either refused to view the settlement or provide comments on it when give an opportunity to do so. The Department was required to maintain records of its distribution of the notice of settlement to prisoners in segregation units. The parties attached records to their joint report showing the prisoners’ names, identification and bed numbers, the correctional date, officer, a signature and a box of marked a witness “Received paperwork, refused to sign” for each of the signatory 41 prisoners court of the received Donaldson, that letter. four Additionally, comments facility must have the prisoners from because at complied to some extent with the notice and comment procedure provided for in the court’s preliminary settlement approval order. Finally, during their investigation into allegations contained in the letter, ADAP was given the opportunity to interview prisoners to the letter. each of the signatory During the fairness hearing, ADAP's counsel reported that they were satisfied that these prisoners had in fact been given an opportunity to view and provide comments on the settlement agreement. And, moreover, any complaints they had were irrelevant to reasons, within the ADOC the agreement. court is satisfied were given For each that adequate the notice of prisoners and opportunity to comment on the proposed agreement. 42 these an 2. Objections and Comments a. Prisoners who Prisoner Comments submitted comments to the court raised a range of issues, many of which were relevant; some of which were not.8 Out of the relevant comments received, the court heard testimony from 13 prisoners during fairness hearings conducted over the course of two days--partially in person at the federal courthouse, and partially by videoconference (due to the impracticality prisons). of visiting a large number of Prisoners were selected primarily based on the substance of their comments. 8. While a few comments were completely unrelated to this lawsuit, many prisoners wrote about legal claims brought in this lawsuit but which were not the subject of the current agreement. Specifically, many prisoners wrote about receiving inadequate health care. Counsel estimate that “[a]pproximately forty-seven (47) inmates submitted comments ... relating to an individualized medical or mental health issue--e.g., a request for specific medical treatment.” Joint Statement in Support of Proposed Settlement (doc. no. 1243) at 19. 43 Of the directly pertinent comments and testimony, the vast majority expressed discontent with existing prison conditions, rather than with the adequacy or fairness of the agreement or of any specific provision of it. Indeed, agreement.9 many expressed support for the Generally, the relevant comments fell into four loosely defined categories, including: (1) access to programs, process, and (2) (4) determinations. identification, housing Each and of (3) related these the grievance security-level categories will be discussed further below. Access to Programs: Eight prisoners commented on the need for access to programs consistent with the adaptive-behavior and life-skills provided for in the agreement. training program Some prisoners stated 9. To the extent possible, the court construed each comment as referring to the agreement. After a careful review of each comment, the court assigned it to one or more categories based upon the substance of the comment itself. Nevertheless, the court had to disregard 27 comment forms because they were either incomplete or blank, provided no reason for circling a particular (pre-identified) comment topic, or were indecipherable or otherwise irrelevant to the agreement. 44 directly that they would benefit from access to the program provided for in the agreement. Others noted that access to the program would be beneficial to them for coping within with ADOC their and for disabilities their overall while imprisoned rehabilitation. Finally, some prisoners complained that they have never had access to any programs because of their disabilities and submitted that such access would be beneficial. As mentioned earlier, the agreement provides that the adaptive-behavior and life-skills training program for prisoners with mental disabilities must include a variety of courses; be completed within a six-month period, unless an extension is otherwise necessary; be taught by trained individuals; be small enough to ensure “meaningful participation by affected inmates”; and be repeated periodically to ensure competence in program courses. Agreement (doc. See Proposed Phase 2A ADA Settlement no. 1100) at 14. These conditions should ensure that the program will be beneficial to 45 prisoners who mentioned previously, topics are as enrolled decision the in it. courses making, Furthermore, will cover stress as such management, communication skill building, risk-taking consequences, self-help, accessing prison services, hygiene, self-direction, and prison rules; these topics should assist prisoners in coping with the conditions of their confinement, and outside of prison. Finally, from the those help rehabilitate them for life See id. at 16–17. prisoners adaptive-behavior who and would most life-skills benefit training program should have access to it under the terms of the agreement. The agreement provides that the following categories program: of prisoners prisoners disability; will diagnosed prisoners who be with meet enrolled an in the intellectual the IQ and adaptive-behavior requirements defined under the Phase 1 consent decree, but who do not meet the “age of onset” requirement of the DSM-V; and prisoners who ADOC 46 determines program. would “substantially benefit” from the See id. at 13. Identification: Identification was the most frequent topic of relevant comments on the agreement: 11 prisoners commented on the procedures identifying inmates with disabilities. for Some commented favorably about the added requirements for identifying prisoners with disabilities, saying it would be beneficial because it would assist the Department in providing disabled prisoners with appropriate treatment, care, and accommodations and, more broadly, that it would protect prisoners from harm. Other prisoners commented that the identification process should include training for Department staff to recognize and respond to prisoners with disabilities. These prisoners complained that their disabilities are frequently ignored by Department staff. They further complained that many disabled prisoners had received disciplinaries for stimuli--reactions their which reactions resulted 47 from to their certain mental disabilities. The agreement addresses these complaints to the extent that it requires ADOC officials and staff to be trained to recognize prisoners with disabilities and to provide accommodations where appropriate. Specifically, the agreement provides--by incorporation of the Phase 1 consent decree--that “ADOC will provide initial and periodic training concerning the provisions and requirements of the ADA to both security staff ... and ADA Coordinators.” Phase 1 ADA Consent Decree (doc. no. 728) at 55–57. Some prisoners commented that the Department should consider a prisoner’s mental-health history, including any mental-health records, in making a determination about whether disability. a prisoner has a mental-health The agreement covers this concern, because it requires the Department to consider any previously identified disabilities when prisoners for disabilities. the Department screens Id. at 27. Some commenters suggested that prisoners should be identified not only as they enter the prison system, 48 but also after exposure to the prison system, to determine whether such exposure has had any effect on their mental health or disability status. agreement addresses these concerns as well. that “ADOC evaluate will and continue test Inmates to It states periodically for The screen, disabilities while Inmates are in ADOC’s custody to ensure that any change in an Inmate’s disability status is identified, treated and accommodated.” prisoner is Id. at 32. found to have a Additionally, if a disability that was previously undiagnosed, or if a disability, previously known, is discovered to have materially changed, “ADOC will take all necessary steps to determine whether, and to what extent, accommodated.” that disability may be reasonably Id. at 34. Grievance Process: Seven prisoners commented about the grievance process. Some complained that there is no procedure for seeking an ADA accommodation. Others commented that, under the agreement, were they to make a formal request for an accommodation, they would not 49 be guaranteed to receive a response from any Department employee--much less an accommodation. Prisoners also complained that the grievance process takes too long. Each of these concerns is addressed in the agreement. The agreement establishes a grievance procedure for each ADOC facility. “Effective February 1, 2017, any Inmate who has, or believes he or she has, a disability as defined by Accommodations concerning the and Requests Acts pursue for may make Appeals Requests for of decisions Accommodations.” Proposed Phase 2A ADA Settlement Agreement (doc. no. 1100) at 46. The agreement further provides for the appointment of an ADA coordinator who is required to “receive and respond to all ADA Request Forms for that facility or transmit ADA appeals to the Statewide ADA Coordinator.” Phase 1 ADA Consent Decree (doc. no. 728) at 48–54. Finally, the agreement contains strict deadlines for responding to prisoner requests for accommodations. The agreement states: “Facility ADA Coordinators will, 50 upon receipt [of a request for accommodation or other ADA form], determine immediately whether review a request all ADA requests concerns an to urgent situation. In the event of an urgent situation, the Facility ADA Coordinator will respond to the request in writing and provide, if required, the requested accommodation within three (3) days of receipt of the request, not including weekends and holidays. In all other situations, the Facility ADA Coordinator will respond to the request in writing within ten (10) days of receipt of the request, not including weekends or holidays.” Id. at 51. Housing and Related Security-Level Determinations: Ten prisoners commented on the procedures for housing and security-level determinations. Many of these complaints centered on the concern that prisoners with disabilities are at a higher risk of abuse, mistreatment, or violence from other prisoners because of their increased disabilities. risk--and They any 51 claimed resulting that this injuries--is discrimination against these prisoners on the basis of disability. Other prisoners complained that they have been denied transfers to facilities or to areas within their current facilities because of their disabilities. They suggested the agreement should weigh factors other than their disability in making housing or security-level determinations. In some ways, these concerns are addressed by added procedures that identify prisoners with disabilities, as previously discussed, and by those provisions that require the Department to accommodate prisoners with disabilities. procedures with concerning disabilities disabilities their Indeed, to in the the contains identification order facilities individualized agreement to assign that needs.” are of “new inmates inmates with appropriate Phase 1 ADA for Consent Decree (doc. no. 728) at 19. The agreement also has provisions that prevent denial facilities or programs disability. If the the because Department 52 of of access a restricts to person’s access to programming for prisoners housed in the residential treatment units or stabilization units of a particular prison, “ADOC must conduct an individualized assessment as to why such programming would pose a risk to the Inmate or others, or why the Inmate’s current mental health status precludes being able to meaningfully participate in the [adaptive-behavior and life-skills training] Program.” agreement Id. provides that at 25. the Furthermore, Department will security levels without regard to disability. the assign See id. at 36. Other Objections: Finally, prisoners made several other objections, including objections to the quality-assurance plan, the monitoring provisions, and the provision complained treatment for that, attorneys’ although he as an accommodation disabilities, he is comment on the not quality fees. had for improving. of One been his prisoner receiving mental-health Construed accommodations as he a is receiving for his mental-health disabilities, the court 53 finds that this concern is addressed in the agreement. The agreement provides for a quality-assurance program to ensure that the Department is meeting its legal obligations under the ADA on a continuing basis. Next, four prisoners commented on the inability of prisoners to ensure with of the all that the provisions Department in the will comply agreement. The agreement, however, provides a monitoring mechanism to ensure that parties the have independent Department agreed monitor is to allow to in ensure compliance. ADAP to that serve the The as an Department complies with the settlement terms. Finally, one prisoner objected specifically to the attorneys’ prisoner fee provision complained that of it the is agreement. not fair for The the attorneys to receive significant compensation for their services but for the prisoners, who have suffered disability discrimination, to receive nothing by way of monetary compensation. Prisoners voiced this concern during the Phase 1 settlement approval process as well. 54 There, the court explained that commenters understands that, although alleging the past court harms may feel that they are entitled to damages, the plaintiffs here have claims. sought only injunctive relief for their Moreover, an unnamed class member cannot be precluded from bringing a claim for damages stemming from the same conditions challenged in the class action if the class representatives sought only injunctive or declaratory relief. 1024, 1031 Therefore, (11th See Fortner v. Thomas, 983 F.2d Cir. prisoners compensation for 1993) who wish violations of (collecting to seek the cases). monetary ADA are not all the members, the foreclosed from doing so by the settlement. Conclusion: comments court and was After a objections satisfied careful filed that by none review class of of the prisoners’ comments called into serious question the fairness of the agreement, in whole or in part. 55 b. Comments from ADAP The court considered appointing a guardian ad litem to advocate for the interests of the unnamed class members who, due to cognitive and communication-related disabilities, are incapable of understanding the terms of the settlement intelligible during the agreement comments Phase 1 or on However, them. settlement of approval submitting as it did process, the court found that ADAP, which has a federal mandate to advocate for and ensure the protection of disabled Alabamians, was best situated to voice the concerns of these class members. The court therefore instructed ADAP to file a brief discussing whether the settlement agreement was a fair, adequate, and reasonable resolution of the clams of class members with mental disabilities. The court further requested ADAP to supplement its brief with one or more expert opinions addressing the fairness of the agreement to ensure that the basis of ADAP’s opinions reliable. 56 were sufficiently ADAP filed a brief in support of the agreement. In it, ADAP submitted the opinions of two experts in the mental-health field: Dr. Robert Babcock, a licensed psychologist and Board Certified Behavioral Analysis; and Dr. Timothy Stone, a licensed psychiatrist and Medical Director of the Chilton-Shelby Mental Health Center. See ADAP’s Submission of Independent Expert Opinions in Support of Proposed Settlement (doc. no. 1244). Both experts were given access to the Phase 1 and Phase 2A ADA settlement agreements. both Dr. scholarly Babcock sources and in Dr. Stone reaching Additionally, consulted their overall fairness of the agreement. opinions outside on the After a thorough review, ADAP, along with Dr. Babcock and Dr. Stone, found the reasonable. agreement to be fair, adequate, and See Affidavit of Robert A. Babcock, Ph.D., BCBA-D (doc. no. 1244-3) at 15; Affidavit of Timothy Stone, M.D. (doc. no. 1244-4) at 3. 57 c. View of Class Counsel In addition members, the counsel. to considering court considered the the views of class opinion of class Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1215 (5th Cir. 1978); Gaddis v. Campbell, 301 F. Supp. 2d 1310, 1315 (M.D. Ala. 2004) (Thompson, J.). Class counsel contended that the proposed agreement was a fair, adequate, and reasonable plaintiffs’ Phase 2A ADA claim. the “Settlement arm’s-length, negotiations vigorously Agreement serious, between prosecuted resolution Counsel submitted that is the informed and knowledgeable and of defended product non-collusive counsel this of who have litigation.” Joint Motion for Preliminary Approval (doc. no. 1175) at 2. Moreover, counsel pointed out that the terms of this agreement are similar (indeed, they are to a large extent identical) to the terms of the Phase 1 consent decree that this court earlier approved and that the relief contemplated by the agreement is extensive. 58 Before the requested fairness supplemental processes established accommodations or hearing, however, briefing in the appealing on court whether agreement denials the of for the seeking requests for accommodations are meaningfully available to prisoners with mental disabilities. The parties filed a joint supplemental brief with regard to this question. In their brief, the parties state that the joint duties of ADOC (with its identification, referral, and reporting duties) oversight and duties) ADAP (with create a its accounting system of and shared responsibility over prisoners with mental disabilities to ensure benefits that of they the have meaningful agreement. The access agreement to the provides mechanisms for ADOC to identify prisoners with mental disabilities, including training to provides that “facilities, records, ADOC employees. ADAP will documents, inmates, by and have providing The 59 agreement reasonable staff, other additional access procedures, similar further to logs, informational sources in order to ensure [] compliance.” Consent Decree (doc. no. 728) at 69. ADOC is not in substantial Phase 1 ADA If ADAP finds compliance with the agreement, then ADAP may provide recommendations for bringing ADOC into compliance with the terms of the Phase 1 consent Additionally, decree ADAP can or the review agreement. ADA Id. accommodation requests submitted to ADOC and decisions made on those requests. If ADAP finds that prisoners with mental-health disabilities are not taking advantage of these procedures at either level, ADAP may notify ADOC of its findings and suggest ways to accommodation and grievance procedures. that works, ADAP can initiate improve the Or, if none of the arbitration proceedings on behalf of particular prisoners or bring an action before the court to modify the agreement as a whole. Upon consideration of the comments and objections from class members, as well as the views of ADAP, independent experts, and class counsel, the court found 60 that none of the comments seriously called into question the fairness, adequacy, or reasonableness of the agreement. 3. Court's Assessment Based on the evidence and argument presented by the parties and class members, the court determined that the Phase 2A reasonable. factors ADA settlement is fair, adequate, See Fed. R. Civ. P. 23(e). include plaintiffs’ the stage likelihood in of the “Relevant proceedings; success and at trial the [on remaining issues]; the complexity, expense, and likely duration of recovery.” The the lawsuit; and the range of possible Laube, 333 F. Supp. 2d at 1246. substantive provisions of the agreement represent a highly favorable result for the plaintiff class. Plaintiffs challenged the Department’s treatment of disabled prisoners at a systemic level. They argued that the Department’s policies and procedures were grossly inadequate to ensure compliance 61 with the policies ADA and and that, because procedures, of these prisoners inadequate were being discriminated against on the basis of disability. The Phase 2A ADA agreement, in conjunction with the Phase 1 agreement, essentially gives the class all of the ADA remedies plaintiffs sought at the outset of this litigation. Notably, even if plaintiffs had proceeded to and prevailed at trial on their Phase 2A ADA claim, the parties would have still been confronted with the task of fashioning a remedial plan. Any such plan would likely have closely resembled that contained in the Phase 2A ADA settlement agreement with which the court was presented. Moreover, because systemic changes are involved (for example, the creation and implementation of a new computer system, and assessment and training of tens of thousands of people), it would not have been feasible to order significantly more rapid compliance than is contemplated in the agreement. If anything, settlement means more quickly. 62 that change will come During and shortly approval hearing, concerns regarding settlement intended parties to process agreement; first, significant any of the the the Phase second, aspects whether during into and, preliminary particular incorporate into the expressed court two agreement: entered approval the following the the parties stipulations Phase the 1 settlement ADA settlement the 2A whether of agreement represented a settlement of all potential current and future claims that prisoners could bring under the ADA. a. Phase 1 Stipulations The first question the court had was whether, and if so which, stipulations entered into during the Phase 1 ADA settlement incorporated approval into the agreement. The stipulations during process, 560, including 563, 575, parties the those 576, process Phase were 2A entered Phase found 638, 63 1 meant ADA into a 696, number of approval documents 709, be settlement settlement in to numbers and 719. Accordingly, during the preliminary approval hearing, the court asked the parties whether they intended to incorporate all or some of these stipulations into the agreement. The parties filed a joint notice with the court, stating that all but one stipulation, document number 709, from the Phase 1 consent decree were intended to be incorporated agreement. Joint into of Phase 2A ADA settlement The parties stipulate that the “‘Phase 1 Stipulation Testing the Death Concerning Row Revised (‘Joint Inmates’ Intellectual Stipulation’) does not apply to the Settlement Agreement before the Court. (Doc. 709).” Joint Notice (doc. no. 1197) at 2. The parties further confirmed that, “Nothing in the Phase 2 ADA Settlement Agreement presently before the Court ... relates to testing of inmates on death row for intellectual disabilities,” as the court has dismissed all claims relating to prisoners sentenced to death. Joint Settlement Statement (doc. no. in 1243) 64 Support at 2 of n.1. the The Proposed parties affirmed that all other stipulations from Phase 1 of this case, between the Phase 1 preliminary approval hearing and the entry of the Phase 1 consent decree, apply to the Phase 2A ADA agreement. Id. As a result, the following stipulations from Phase 1 were incorporated into the agreement and consent decree: document numbers 560, 563, 575, 576, 638, 696, and 719. The Department will not be required to change its practices regarding the testing of death-row prisoners for intellectual disabilities. b. Individual Claims The court requested an additional stipulation that the agreement does not represent a settlement of all potential current and future claims that prisoners may bring under the ADA. The court wanted to make clear that individual prisoners may still bring claims for discrimination remedy outside under of the the ADA if they protections agreement. 65 are seeking provided in a the As mentioned confusion about previously, what claim there had plaintiffs been were some actually asserting under the ADA. The Department argued that the “not plaintiffs’ claim was a single, homogenous claim,” except at “the highest level of abstraction,” but rather “many different ADA claims touching on many different lumped ADA requirements together for that purposes Plaintiffs[] of this ha[d] lawsuit.” Defendants Opposition to Plaintiffs’ Motion for Class Certification (doc. no. 476) at 23-24. Plaintiffs responded individual that accommodations liability in they under this are the case not ADA; is seeking instead, the notion the basis that of ADOC’s policies and procedures result in systematic disability discrimination against the plaintiff class. Accordingly, the court requested a specific stipulation from the parties as to whether prisoners could still maintain a cause of action under the individualized disability discrimination. 66 ADA for any The parties filed a stipulation that provides that there in fact “could be claims arising under the [ADA] or [the Rehabilitation Act] ... which may not be covered by the terms of the Phase 2A ... Settlement Agreement.” Stipulation Settlement Agreement original). The Concerning (doc. parties no. ADA 1239) further Mental at 2 Health (emphasis stipulated that prisoners are not required to submit individual claims to the dispute-resolution settlement agreement, process unless they outlined are in seeking enforce the terms of the agreement itself. the to However, if a prisoner seeks to file an individual claim, he or she cannot use moreover, the must agreement separately in the comply new with lawsuit all of and, the procedural prerequisites provided under the PLRA and under any other applicable law. See id. Finally, the stipulation provides that ADOC shall not be limited by the agreement in asserting any defenses it may wish to assert in any future litigation concerning falling outside the scope of this agreement. 67 claims C. Class Counsel and Fees: Rules 23(g) and (h) 1. Rule 23(g) Rule 23(g) requires the court to appoint (and also to assess the suitability serve as) class counsel. to consider “(i) the of plaintiffs’ counsel to The rule requires the court work counsel has done in identifying or investigating potential claims in the action; actions, claims (ii) counsel’s other experience complex asserted in litigation, the in handling and action; the (iii) class types of counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). Before appointing them as class counsel, the court must conclude that plaintiffs’ counsel will “fairly interests of the class.” In this case, and adequately represent the Fed. R. Civ. P. 23(g)(4). lawyers for the plaintiff class include lawyers affiliated with the Southern Poverty Law Center, ADAP, and the law firm of Baker, Donelson, 68 Bearman, Caldwell & Berkowitz. from the firm Zarzaur, In addition, lawyers Mujumdar, and Debrosse have represented the interests of ADAP in this litigation.10 As during the Phase 1 settlement approval proceedings, the court found that plaintiffs’ counsel have fairly and adequately represented the interests of the Phase 2A ADA plaintiff class. The court echoes the observations it expressed during Phase 1, see Dunn, 318 F.R.D. at 680, and finds that the lawyers for the plaintiff class have devoted an enormous amount of time identifying, developing, and pursuing the claim for the plaintiff class; that they have substantial experience and knowledge in litigating class actions of this sort; and, finally, that they have shown great dedication to representing the interests of the plaintiff class. court, therefore, appointed plaintiffs’ counsel The as counsel for the Phase 2A ADA settlement class. 10. As was the case during Phase 1, counsel from the firm Zarzaur, Mujumdar, and Debrosse have not been named as class counsel because they represent only ADAP. However, the court understands that they are due to receive a portion of the attorneys’ fees discussed below. 69 2. Rule 23(h) Rule 23(h) provides that, “In a class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). To award attorneys’ fees, however, a court must ensure that the parties have complied with the following procedures: (1) a claim for an award of attorneys’ fees must be made by motion; (2) the class members must be given notice and an opportunity to object to the motion; and (3) the court reasonable. must find that the award sought is See id. The agreement provides that the Department will pay plaintiffs’ counsel $ 250,000.00 in fees and costs, as well as additional fees of $ 195.00 per hour (subject to caps) for monitoring services and fees for any litigation necessary to enforce the resulting consent decree, but only if the court 70 finds the litigation necessary and that plaintiffs’ counsel attempted to resolve the issue informally, without litigation. Because agreement, this class provision members was included in the notice of the received plaintiff class attorneys’ request for attorneys’ fees during the comment period. One prisoner objected to the fee provision; however, as mentioned previously, the prisoner merely argued that the provision of fees to class counsel was unfair, given the fact that prisoners were not also being awarded monetary damages. But again, because the agreement does not foreclose the opportunity for class members to seek monetary damages for individual claims, and because the plaintiffs have sought only injunctive relief and not damages in this case, this concern is unfounded. Nevertheless, even when both sides agree to an award of attorneys’ fees, the court has an independent responsibility to assess its reasonableness, in order to guard agree to against enter the into risk a that class settlement 71 less counsel might favorable to their fees. clients in exchange for inappropriately high See Piambino v. Bailey, 757 F.2d 1112, 1144 (11th Cir. 1985) (“When the class attorneys succeed in reaping a golden harvest of fees in a case involving a relatively small recovery, the judicial system and the legal profession are disparaged. ... The practice of awarding attorneys' fees is one that has been delicate, embarrassing and disturbing for the courts .... This embarrassment is rooted in the fact that the bitterest complaints [about the legal profession] from laymen [are directed at] the windfall fees and featherbedding that lawyers have managed to perpetuate through ... their influence with the judiciary. For the sake of their own profession, important integrity, and that the integrity the integrity the courts of should of Rule the 23, avoid legal it is awarding windfall fees and that they should likewise avoid every appearance of having done so.”) (citations and internal quotations omitted). 72 To determine whether an attorneys’ fee arrangement is reasonable, the court uses the lodestar method. It does so by multiplying the number of hours reasonably expended by a reasonable hourly rate, see Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988), and then considering whether an upward or downward adjustment is warranted in light of the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). Those factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature 73 and length of the professional relationship with the client; and (12) awards in similar cases. In support plaintiffs’ of the counsel attorneys’ submitted fee evidence agreement, that they incurred approximately $ 243,000 in litigation expenses on the expended Phase 2A over ADA 900 claim. hours portion of the case. of Plaintiffs’ billable time counsel on this The $ 243,000 request represents a blended rate of $ 264.00 per hour, which the parties jointly agree represents a reasonable hourly rate for litigation of this kind. Moreover, the parties agreed on the record during the fairness hearings that the request for attorneys’ fees was reasonable. After considering the Johnson factors, the court finds that the fee is reasonable and no downward adjustment of the lodestar figure is warranted. This settled claim, which has been ongoing since 2014, is extraordinarily large in scope; it concerns both current and future prisoners with mental disabilities at all state prison facilities, 74 and it sought and achieved a remedial order that mandates a dramatic transformation in the way that the Department treats such prisoners. The range of complex legal and factual questions presented by the plaintiffs’ claim, and the amount of time plaintiffs’ attorneys spent both in preparing this claim for trial and in negotiating and securing approval of the settlement agreement, warrant the sizeable fee award. Finally, the court notes that class counsel sought these fees pursuant to the fee provisions contained in the ADA (42 U.S.C. § 12205) and the Rehabilitation Act (29 U.S.C. § 794a), so their award is not limited by the PLRA’s restrictions on attorneys’ fees in prison litigation, which apply only to cases in which the attorneys’ fees are authorized under 42 U.S.C. § 1988. D. Prison Litigation Reform Act The PLRA provides that a “court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further 75 than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the 18 U.S.C. § violation of the 3623(a)(1)(A). In Federal conducting ‘need-narrowness-intrusiveness’ inquiry, required weight to “give substantial right.” a to this court any is adverse impact on public safety or the operation of a criminal justice system caused by the relief.” While the requirement Id. to engage in a need-narrowness-intrusiveness analysis must be met in some circumstances, “[t]he parties are free to make any concessions or enter into any stipulations they deem appropriate” when submitting an initial settlement to the court, and the court does not need to “conduct an evidentiary hearing about or enter particularized findings concerning any facts or factors about which there is not dispute.” Cason v. Seckinger, 231 F.3d 777, 785 n.8 (11th Cir. 2000). Here, the parties agreed that the consent decree satisfies the need-narrowness-intrusiveness 76 requirements of 18 U.S.C. § 3626(a)(1)(A). Based on the court’s independent review of the agreement, the court agrees. The court stipulate--that further the finds--and consent the decree parties will not again have an adverse effect on public safety or the operation of the criminal justice § 3626(a)(1)(A). system. Once the See Department 18 U.S.C. fulfills its obligations under the agreement and prisoners are able to access accommodations for their mental disabilities, those prisoners will be significantly better able to access and benefit from the range of programming during their incarceration. with increased prisoners training with of mental staff, services and Furthermore, identification disabilities, and of a quality-assurance process in place, the Department will better be able to ensure the safe operation of the prison system and the safety of those prisoners. In addition, prospective relief the PLRA’s order must 77 requirement terminate that any within two years after court approval (or one year after the court’s denial of termination of a prospective relief order), see 18 requirements U.S.C. for § 3626(b)(1)(A), appointing a special and master the in a prison case, see 18 U.S.C. § 3626(f), are inapplicable here. First, the termination deadlines are inapplicable--as they are inapplicable for the Phase 1 consent decree--because the defendants have waived their right to seek termination of the consent decree until five years after the date of final approval. Second, the court has not appointed a special master, but rather an arbitrator--United States Magistrate Judge John E. Ott--pursuant to the consent decree. The parties is not arbitrator, and stipulate applicable have in to any the case that 18 U.S.C. appointment expressly of § an waived 3626(f) the right to challenge his decision or the consent decree on this basis. 78 In sum, the court is satisfied that its entry of the consent decree is in full compliance with the PLRA. IV. CONCLUSION “Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Brown v. Plata, 563 U.S. 493, 511 (2011). However, when as here the policies and procedures of a prison system result in systemic discrimination against those with disabilities--especially those with mental disabilities, who are less likely than ordinary persons (not to mention prisoners) to be able protect their own interests--courts may not allow that discrimination to continue simply to avoid any intrusion into the realm of prison administration. See also id. (referring to the to court’s obligations remedy violations under the Eighth Amendment). 79 constitutional As was settlement the of case the during Phase Phase 2A ADA 1, the claim parties’ reflects the Alabama Department of Corrections’ commitment to making manifest the rights of disabled prisoners in its custody; it represents the shouldering of significant responsibility, and presents an equally significant opportunity, by delineating a years’ long process of ensuring compliance disability law. with the dictates of federal The court understands the Department’s investment in this process to be genuine, and commends it for it. The court also, again, recognizes the important role played by prisoners with mental disabilities in bringing this litigation, and commends both the named plaintiffs, submitted as well comments, as for the their numerous advocacy prisoners on behalf who of both themselves and others. Finally, the court would like to extend a special thank you for the tireless efforts of United States Magistrate Judge John E. Ott. Without his efforts--and, 80 indeed, much of his time--the court is convinced that this agreement would not have been possible. DONE, this the 25th day of July, 2017. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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