Dunn et al v. Thomas et al

Filing 1354

PHASE 2A INVOLUNTARY MEDICATION CONSENT DECREE. Signed by Honorable Judge Myron H. Thompson on 9/6/2017. (Attachments: # 1 Administrative Regulation 621)(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 INVOLUNTARY MEDICATION CONSENT DECREE
This matter having come before the court on the
Joint Motion for Approval of the Parties’ Settlement
Agreement
having

and

ordered

Entry
the

of

Stipulated

provision

of

Order;

adequate

the

court

notice

to

members of the plaintiff class of the terms of this
order,

having

received

and

considered

the

written

objections from members of the plaintiff class related
to the contents of this order, having held a fairness
hearing

on

August

23,

2017,

having

reviewed

the

filings, documents, orders and/or admissible evidence

which are currently filed of record with the court, and
having
parties

considered
and

arguments

other

the

the

premises

of

counsel

herein;

and

for

the

for

the

reasons to be set forth in a separate opinion, it is
ORDERED, ADJUDGED, and DECREED as follows:
1.

Notice Pursuant to Rule 23(e)(1). Reasonable

notice of the proposed settlement was provided to the
plaintiff class in the manner directed by the court by
separate order.
then

afforded

objections

an

to

settlement.

Members of the plaintiff class were
opportunity

the

court

to

submit

concerning

comments
the

and

proposed

A fairness hearing pursuant to Fed. R.

Civ. P. 23(e)(2) was held on August 23, 2017, at which
the court heard arguments and testimony.
2.

Rule

23(e)(2)

Findings.

The

court,

having

considered the arguments and testimony at the hearing,
the comments submitted by class members, and the entire
record in this case, concludes that the settlement is
fair, reasonable, and adequate.

2

3.

Revised

Involuntary

Medication

Policy.

Pursuant to the terms and conditions of this order
and

the

Department

process
of

identified

Corrections

herein,

("ADOC")

will

the

Alabama

implement

a

revised policy and practice regarding the involuntary
medication of inmates with mental illnesses.

The court

finds the revisions in the applicable Administrative
Regulation (“AR”) No. 621, if fully implemented, extend
no further than necessary to resolve the violations of
federal due process rights alleged by Quang Bui, the
Alabama Disabilities Advocacy Program (“ADAP”), and the
plaintiff class in the third cause of action in the
fifth amended complaint, including, but not limited to,
plaintiffs’ allegations that:
a. The ADOC failed to afford due process to those
inmates

who

were

subject

to

involuntary

medication proceedings while in ADOC custody.
(See Fifth Amended Complaint (doc. no. 805));

3

b. The ADOC’s prior involuntary medication process
“f[e]ll far short of what due process requires”
(doc. no. 805, ¶ 4);
c. The ADOC and its mental health vendor allegedly
maintained a “policy and practice of medicating
mentally
without

ill

prisoners

providing

against

due

process

their
to

will

determine

whether the individuals can be forced to take
medication” (doc. no. 805, ¶ 190);
d. “The widespread and pervasive practice is that
many prisoners in ADOC custody are denied due
process” (doc. no. 805, ¶ 453);
e. The ADOC allegedly violated the “due process
rights

[of

prisoners

in

its

custody]

by

involuntarily medicating prisoners in violation
of

the

Fourteenth

Amendment

to

the

U.S.

Constitution” (doc. no. 805, ¶ 453);
f. The

ADOC’s

failed

to

protections

involuntary

include

medication

the
to

found
4

necessary
be

due

process
process

constitutional

in

Washington v. Harper, 494 U.S. 210 (1999) (doc.
no. 888, at 162-163); and
g. “Plaintiffs Bui, Hartley, Dillard, Terrell, and
McCoy’s due process rights have been violated
by

Defendants’

providing

policies

either

and

practices

constitutionally

of

inadequate

due process or no process at all with regard to
involuntary medication” (doc. no. 888, p. 164).
A

true

and

correct

copy

of

the

revised

Involuntary

Medication policy, AR 621, is attached as Exhibit 1
hereto.
4.

Dismissal

Claim.

Pursuant

settlement

of
to

agreement

Bui’s
the

Involuntary

provision

(doc.

no.

in

Medication

the

1248-1)

parties’
for

the

dismissal with prejudice of any and all claims asserted
by Bui regarding the involuntary medication policies
and/or

practices,

these

claims

are

dismissed

with

prejudice.
5.

No

Admission

of

Liability.

Nothing

in

the

parties’ settlement agreement (the “Agreement”) or this
5

order will be construed as an admission by the ADOC,
Commissioner Dunn, or Associate Commissioner Naglich of
the

violation

of

any

law.

To

the

contrary,

ADOC,

Commissioner Dunn, and Associate Commissioner Naglich
deny

every

material

allegation

of

the

complaint,

as

amended, in this case and deny any liability to the
plaintiffs.

Neither

the

Agreement

nor

this

order

constitute, nor will be construed as, an admission or
evidence of any act or omission of any kind.

Nothing

in the Agreement or this order will be used for any
purpose

outside

of

the

above-captioned

matter

or

against the ADOC and/or any of its officials, officers,
representatives, agents or employees.

Nothing in the

Agreement or this order will be construed to require
ADOC to do more than what is required by law within the
Eleventh Circuit.

Nothing herein shall be considered

as evidence or an admission of any kind to be utilized
and/or relied upon by the court in its evaluation of
liability as to any other claim asserted in the fifth

6

amended complaint or any subsequent evaluation by the
court of any proposed remedial scheme.
6.

Provision of Mental Health Records to ADAP.
a. Starting on the fifth day of the second month
after

final

approval

of

the

Agreement,

ADOC

shall provide to ADAP a roster of all inmates
who participated in an involuntary medication
hearing, whether initial or renewal during the
prior

month.

following

The

roster

information:

shall

(i)

the

include
name

of

the
each

inmate, (ii) each inmate’s AIS #, (iii) each
inmate’s current facility assignment as of the
date

of

(iv)

the

inmate,

the

involuntary

current
(v)

DSM-V

the

name

medication
diagnosis
of

the

hearing,
for

each

medication

administered on an involuntary basis for each
inmate, and (vi) whether the subject hearing
was

a

inmate.

“new”

or

“renewed”

request

for

each

Within five days of production of said

roster, plaintiffs’ counsel may designate up to
7

four inmates whose mental health records shall
be produced by ADOC to ADAP.

Within 14 days of

receipt of notification, ADOC shall provide the
following

documents

from

the

four

inmates’

medical and mental health records:
(1)

all

documents

Involuntary
connection

reviewed

with

the

the

Committee

Medication

by

in

prior

month’s

involuntary medication hearing for each of
the four inmates;
(2)

all

Involuntary

documents

generated

Medication

by

Committee

the

or

any

appeal therefrom with regard to the prior
month’s involuntary medication hearings for
each of the four inmates;
(3)

the

involuntary

notices

of

medication

the

most

hearings

recent

issued

to

the four inmates;
(4)

any notices issued to the four inmates

regarding

the

opportunity
8

to

appeal

the

decision

regarding

their

most

recent

involuntary medication proceedings;
(5)

the

decision
four

documents
upon

inmates

any

containing

appeal

regarding

from

the

the
any

prior

final
of

the

month’s

involuntary medication proceedings; and
(6)

any other documents provided to any of

the

four

inmates

by

the

Involuntary

Medication Committee or regarding the prior
month’s involuntary medication hearings.
In

addition

to

the

foregoing,

the

ADOC

will

also

produce for each of the four selected inmates the last
seven months of their medical records included in the
records tabbed as: Mental Health, IVM, Orders and Labs
and the current Master Problem List.
b. ADAP may prepare and submit to ADOC a written,
monthly report regarding ADOC’s efforts to meet
the requirements of the Agreement, specifically
its efforts to comply with the revised AR 621.
See Ex. 1.

Any such report shall be limited to
9

ADOC’s efforts to comply with the Agreement.
Under no circumstances shall the Agreement or
this

order

be

construed

as

granting

and/or

permitting ADAP the authority to oversee and/or
review

anything

other

than

compliance with the Agreement.

the

ADOC’s

ADAP’s review

and reporting shall be limited to oversight of
the

ADOC’s

compliance

Administrative

with

the

revised

No.

621

attached

Regulation

hereto as Exhibit 1.

Each monthly report may

indicate all areas in which the ADOC is, or is
not,

in

substantial

Agreement.
to

the

record.

compliance

with

the

This monthly report may be provided
Commissioner

via

his

counsel

of

If ADAP believes that ADOC is not in

substantial

compliance

with

the

terms

and

provisions of the Agreement or this order, ADAP
may provide written recommendations of actions
that

it

believes

necessary

to

achieve

substantial compliance with the terms of the
10

provision or provisions.
30

days

to

objections,

ADOC will then have

provide

or

written

remedial

comments,

action

response to the monthly report.

plans

in

In the event

of any disagreement among the parties related
to any remedial actions, the parties will meet
and confer within 10 days of ADOC’s written
response

to

attempt

to

resolve

any

such

disagreement.
c. The provision of records as set forth in this
provision will continue under these terms from
the

date

of

this

order

months thereafter.

for

a

period

of

24

For this 24-month period,

neither ADAP nor plaintiffs’ counsel will be
compensated

for

their

compensation

found

under

services
¶

7

beyond

infra

the

entitled

“Attorneys’ Fees and Expenses,” except for any
attorneys’ fees necessary to enforce the terms
of this order in a court proceeding in which
the court determines the plaintiffs prevail or
11

the parties agree to the payment of attorneys’
fees accrued in the course of such proceedings.
d. ADAP, their counsel and any monitor conducting
this review, shall be bound by any protective
or

court

orders

entered

in

this

action

to

protect the confidentiality of inmate records
and sensitive security information.
7.

Attorneys’

Fees

Expenses.1

and

The

Alabama

Department of Corrections shall remit to counsel for
plaintiffs

payment

in

the

amount

of

Two

Hundred

Thirty-Thousand and 0/100 Dollars ($ 230,000.00), which
shall

constitute

payment

for

any

and

all

attorneys’

fees and expenses incurred, charged and/or otherwise
generated by counsel for the Plaintiff IVM Class from
the

inception

of

the

conclusion of this matter.

action

through

the

final

The parties further agree

that the above-referenced sum shall be paid by the ADOC
no later than 60 days from the date of this order and
1. The court has independently evaluated the
reasonableness of the attorneys’ fees and expenses
agreed upon by the parties, and as will be explained in
a separate opinion, finds the fees reasonable.
12

that

such

payment

shall

be

Southern Poverty Law Center.”

made

payable

to

“The

The parties acknowledge

and agree that the payments reflected in this paragraph
constitute payment in full for any and all attorneys’
fees and expenses claimed by Bui, ADAP and/or any other
party to the litigation for the claims resolved herein.
Excluding the payment of attorneys’ fees and expenses
provided

herein

and

any

attorneys’

fees

or

expenses

recoverable in any action to enforce the terms of the
Agreement or this order, Bui, ADAP and their respective
counsel

voluntarily,

completely

and

unconditionally

waive any and all right to seek the recovery of any
monies of any kind from any defendant in this action
for

any

and

all

attorneys’

fees

and/or

expenses

incurred, charged and/or otherwise generated by counsel
for

the

Plaintiff

IVM

Class

after

the

date

Agreement for the claims resolved herein.

of

the

Moreover,

nothing in the Agreement or this order requires ADOC to
remit

payment

attorneys’

fees

to

any

party

inconsistent
13

for
with

the
the

recovery

of

limitations

imposed under the Prison Litigation Reform Act or the
restrictions imposed within the United States District
Court for the Middle District of Alabama.
8.

Resolution

Claims.

of

All

Involuntary

Medication

In exchange for the promises, covenants, terms

and conditions set forth in the parties’ Agreement and
described herein, the IVM Class, Bui and ADAP agreed
that

this

order

resolves

any

and

all

claims

for

prospective injunctive relief which were asserted in
the “Third Cause of Action: Deprivation of Due Process
Prior

to

Involuntarily

fifth

amended

complaint

Medicating
(doc.

Prisoners”

no.

805)

of

and/or

the

which

could have been raised in this action related to the
process of involuntarily medicating any individual in
the custody of the ADOC.

As such, no member of the IVM

Class shall assert any procedural due process claims
seeking

prospective

injunctive

relief

under

the

Fourteenth Amendment against the Alabama Department of
Corrections,

the

ADOC

Commissioner

in

his

official

capacity, the ADOC Associate Commissioner for Health
14

Services in her official capacity, the ADOC’s agents,
employees, representatives, vendors and/or contractors
of

any

kind

during

the

term

of

this

Agreement.

Furthermore, Bui shall not assert any substantive due
process
under

claims

the

seeking

Fourteenth

prospective
Amendment

injunctive

against

the

relief
Alabama

Department of Corrections, the ADOC Commissioner in his
official capacity, the ADOC Associate Commissioner for
Health Services in her official capacity, the ADOC’s
agents,

employees,

contractors

of

representatives,

any

kind

during

vendors

the

term

and/or
of

the

Placement of Agreement in Law Libraries.

The

Agreement and this order.
9.

ADOC will place a copy of the parties’ Agreement in the
law library at every ADOC facility where one exists.
10. No

Monetary

Compensation.

Excluding

the

payment of attorneys’ fees and costs to counsel for the
plaintiff class in this action, nothing contained in
this

order

obligation

creates,
of

any

mandates

defendant,
15

or
the

constitutes
State

of

any

Alabama

and/or

the

Alabama

compensate,
payment

pay

of

currently

Department

or

any

otherwise

kind

housed

or

to

any

housed

of

Corrections

provide

inmate
in

any

monetary

formerly

the

to

housed,

future

in

any

correctional facility operated by or at the direction
of the Alabama Department of Corrections.
nothing

in

this

order

creates

any

Moreover,

basis

for

any

purported or actual class member to seek any financial
recovery

or

defendant,

monetary

the

State

benefit
of

of

Alabama

any

kind

and/or

from

the

any

Alabama

Department of Corrections.
11. No Appeal.

All parties have waived all rights

to seek any appeal from and/or appellate review of this
order.
12. Court’s Retention of Jurisdiction to Enforce
the Order.
court

for

Upon the entry of this order, the clerk of
the

United

States

District

Court

for

the

Middle District of Alabama is to administratively close
the

involuntary

fifth

amended

medication

complaint,

claim,

in
16

this

Count
case

III
in

a

in

the

manner

consistent
States
Alabama,

with

the

District
but

normal

Court

the

court

procedures

for

the

shall

of

Middle

the

United
of

jurisdiction

retain

District

to

enforce this order.
13. Expiration of Order.

Unless otherwise agreed

in writing by the parties or extended by order of the
court or unless a motion to extend the term of this
order is then pending, this order shall expire by its
own terms at 12:00 p.m. (Central Daylight Savings Time)
on

September

pending

6,

motion

2019.

In

identified

the

above

event
(as

that

of

any

such

September

6,

2019) is denied, this order shall expire on the date on
which such motion is denied by the court.
14. No Waiver of Privilege.

Nothing in this order

or undertaken pursuant to this order constitutes or is
intended

to

constitute

a

waiver

of

any

applicable

privilege of any kind.
15. Findings Pursuant to 18 U.S.C. § 3626(a).

The

court specifically finds that the prospective relief in
this order is narrowly drawn, extends no further than
17

necessary to correct the violations of federal rights
as alleged by the plaintiff class in the third cause of
action, alleging substantive and procedural due process
violations in the involuntary medication of mentally
ill prisoners, in the fifth amended complaint, is the
least

intrusive

violations,

means

and

will

necessary

not

have

an

to

correct

adverse

these

impact

on

public safety or the operation of a criminal justice
system.

Accordingly,

this

order

complies

in

all

respects with the provisions of 18 U.S.C. § 3626(a).
16. Dispute
dispute
final

Resolution.
to

related
stipulated

between

the

In
and

the

terms

order

parties,

and/or
the

the

event

of

conditions

any

parties

final
shall

any

of

any

agreement
submit

to

mediation before United States Magistrate Judge John E.
Ott prior to filing any document with the court related
to the alleged matters which are the subject of the
dispute.
motion

To the extent that any party files any such
or

submitting

pleading
the

matter

with
to

the

court

mediation,
18

without
any

such

first
filing

shall

be

dismissed

without

prejudice

pending

the

outcome of mediation.
17. No Additional Employment Obligations. Nothing
in

the

parties’

Agreement

or

this

order

shall

be

construed in any way as creating any obligation of any
kind upon any defendant, the State of Alabama or the
Alabama
and/or

Department
employ

any

of

Corrections

consultant,

to

hire,

advisor,

retain

correctional

officer, medical professional or other individuals of
any kind.
negate

any

Nothing in this paragraph shall excuse or
obligation

of

the

ADOC

to

comply

with

Administrative Regulation 621.
18. No Violation of any Other Applicable Orders.
Nothing

in

obligation

this
or

order

is

requirement

intended

which

would

to

create

result

in

any
the

violation of any other currently existing order entered
by a court of competent jurisdiction.
DONE, this the 6th day of September, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE