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, )

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 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