Dunn et al v. Thomas et al

Filing 1486

PHASE 2A INVOLUNTARY-MEDICATION SETTLEMENT FINAL APPROVAL OPINION. Signed by Honorable Judge Myron H. Thompson on 11/27/2017. (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 INVOLUNTARY-MEDICATION SETTLEMENT
FINAL APPROVAL OPINION
I.

INTRODUCTION

This class-action lawsuit brought by a group of
seriously mentally ill prisoners in the custody of the
Alabama Department of Corrections (ADOC or Department)
is before the court on a promised opinion explaining
why,

in

partial

resolution

of

this

litigation,

it

previously approved a settlement of the group’s claims
challenging

the

Department’s

policies and procedures.

involuntary-medication

The

plaintiffs

in

this

phase,

Phase

2A,

of

the

lawsuit are a group of seriously mentally ill state
prisoners and the Alabama Disabilities Advocacy Program
(ADAP),

which

Alabama.

represents

The

mentally

defendants

are

ill

prisoners

ADOC

in

Commissioner

Jefferson Dunn and the ADOC Associate Commissioner of
Health Services Ruth Naglich, who are both sued in only
their official capacities.
The

plaintiffs

claim

that

the

Department’s

involuntary-medication policies and procedures deprive
prisoners of due process of law in violation of the
Fourteenth
§ 1983.

Amendment,

as

through

42

U.S.C.

See Fifth Amended Complaint (doc. no. 805) at

137–38.
Department’s
procedures:

Specifically,

requiring

they

contend

involuntary-medication
(1)

deny

involuntary-medication
by

enforced

them

to

be

policies

prisoners

orders

due

absent

a

the
and

subject

substantive

medicated

that

to

process
recent

finding of dangerousness; (2) deny prisoners subject to
involuntary-medication orders procedural due process by

2

failing

to

hearings

provide

and

them

other

with

protections

adequate
provided

notice
for

in

of
the

applicable regulation; and (3) deny prisoners who are
not

subject

substantive

to

and

involuntary-medication

procedural

due

process

by

orders
coercing

consent to take medications that they otherwise would
refuse.

The plaintiffs seek injunctive and declaratory

relief.

Jurisdiction is proper under 28 U.S.C. § 1331

(federal

question)

Following

months

and
of

§

1343(a)(3)

negotiations,

(civil

the

rights).

parties

have

bifurcated

for

court

the

settled these claims.
This

case

administrative
parties.
two

has

twice

convenience

been
of

the

and

In September 2015, this case was divided into

distinct

phases:

Phase

1,

which

involves

claims

under Title II of the Americans with Disabilities Act
(codified at 42 U.S.C. § 12131 et seq.) and § 504 of
the Rehabilitation Act of 1973 (codified at 29 U.S.C.
§ 794)

(both

of

which

statutes

are,

for

ease

of

reference, referred to as the ADA), but which claims

3

are

unrelated

to

mental

health;

involves all other claims.

and

Phase

2,

which

A year later, in September

2016, the court further bifurcated this case into Phase
2A, encompassing an Eighth Amendment claim related to
the treatment of prisoners with mental illness, an ADA
claim of prisoners with only mental disabilities, and
involuntary-medication claims; and Phase 2B, involving
Eighth Amendment claims related to medical and dental
care.

The court has already granted relief on several

of the plaintiffs’ claims.
In September 2016, the court approved a settlement
of the plaintiffs’ Phase 1 ADA claims for prisoners
with

physical

disabilities.

See

Dunn

v.

F.R.D. 652 (M.D. Ala. 2016) (Thompson, J.).
subsequently

entered

the

parties’

Dunn,

318

The court

settlement

as

a

consent decree.
In June 2017, the court found the Department liable
on

the

plaintiffs’

Phase

2A

Eighth

Amendment

claim.

See Braggs v. Dunn, -- F. Supp. 3d --, 2017 WL 2773833
(M.D. Ala. June 27, 2017) (Thompson, J.).

4

Based upon a

veritable

mountain

Department’s

of

evidence,

provision

“horrendously

of

the

court

mental-health

inadequate”

and

deficient under the Eighth Amendment.

found

care

to

the
be

constitutionally
Id. at *68.

In July 2017, the court approved a settlement of
the

plaintiffs’

Phase

2A

ADA

claim,

relating

to

prisoners with mental disabilities, see Braggs v. Dunn,
-- F.R.D. --, 2017 WL 3151261 (M.D. Ala. July 25, 2017)
(Thompson, J.), which resulted in the court entering a
consent decree.
The parties, with the able assistance of United
States Magistrate Judge John E. Ott, have now reached a
settlement

on

unaddressed

the

plaintiffs’

claims

for

involuntary-medication
previously

certified

Phase

claims.
a

class

involuntary-medication claims.

only

The
for

the

remaining
2A:

the

court

had

plaintiffs’

See Braggs v. Dunn, 317

F.R.D. 634 (M.D. Ala. 2016) (Thompson, J.).
The parties filed a joint motion for preliminary
approval

of

the

proposed

5

settlement

of

the

involuntary-medication claims.
joint

motion,

proposed

the

court

settlement.

After a hearing on the

preliminarily

In

its

approved

preliminary

the

approval

order, the court established a procedure for providing
class

members

opportunity

with

to

notice

object

of

and

the

submit

agreement

and

comments

on

an
the

agreement’s fairness.
After

receiving

written

comments

from

class

members, the court held two days of fairness hearings
in August 2017.

During the first day, the court heard

from a representative group of class members--selected
by

the

court

with

input

of

the

parties--who

submitted comments on the proposed agreement.

had

During

the second day, counsel for the parties responded to
various witnesses’ comments and questions raised by the
court.
After

the

fairness

hearings,

September

6,

2017,

entered

approval

of

the

Proposed

Medication

Settlement

an

order

Phase

Agreement

6

the

court,

granting
2A

and

on

final

Involuntary
granted

the

parties’ request to enter their settlement agreement as
a consent decree.

This opinion discusses the court’s

reasons for doing so.

II.

DESCRIPTION OF PROPOSED SETTLEMENT

Generally
designed

to

speaking,
address

all

the

proposed

disputed

settlement

issues

related

is
to

involuntarily medicating ADOC inmates and remedy all
claims
include

arising
all

from

that

procedural

process.
and

It

is

substantive

meant

to

due-process

claims. See Proposed Phase 2A Involuntary Medication
Settlement Agreement (doc. no. 1248-1) at 5.
The

agreement

includes

the

following

eight

substantive provisions:
Revised

Involuntary-Medication

Regulation:

The

Commissioner agrees to adopt and implement the revised
Administrative
Department’s

Regulation

(AR)

621,

involuntary-medication

which

is

regulation.

the
The

revised regulation contains the following provisions,
in relevant part: (1) a policy against threatening or

7

coercing prisoners to accept psychotropic medications;
(2)

a

requirement

document

whether

likelihood
others

of

that

there

is

serious

when

a

Department
current

physical

deciding

involuntary-medication

the

to

harm

and

and

substantial
self

or

prisoner

on

an

a

(3)

towards

a

place

order;

consider

requirement

that

the Involuntary Medication Review Committee find that
involuntary-medication is in the patient’s best medical
interest

before

deciding

to

issue

an

involuntary-medication order; (4) a policy requiring an
independent

and

knowledgeable

advisor

to

review

involuntary-medication orders and assist prisoners in
challenging
where

an

adverse

appropriate;

(5) the

involuntary-medication
providers
treatment;

who
and

were
(6)

involuntary-medication

review
not

a

creation
board,

involved

requirement

order,

of

consisting

in

the

that

a

an
of

patient’s
patient

be

afforded an opportunity to be unmedicated for 30 days
if on an involuntary-medication order for 180 days.

8

Dismissal of Claims: The parties agree, and jointly
move,

to

dismiss

plaintiff

Quang

Bui’s

claims

with

prejudice.
No Admission of Liability: The parties submit that
the agreement may not be construed as an admission of
liability

against

Commissioner

Dunn,

Associate

Commissioner Ruth Naglich or the Department.

Moreover,

nothing in the agreement is to be construed as evidence
of

liability

as

to

any

claim

or

case

against

the

Libraries:

The

Department or any of its officials.
Placement

of

Agreement

in

Law

Department agrees to place the agreement, including the
revised involuntary-medication regulation, in the law
library of every major correctional facility.
Provision

of

Mental-Health

Records

to

ADAP:

The

Department will provide information and documentation
to ADAP for review on a monthly basis for 24 months,
including

(1)

a

roster

involuntary-medication
mental-health,

or

of

orders;

other

all
and

records

9

prisoners

(2)

all

on

medical,

concerning

the

Department’s

involuntary-medication

pertaining

to

up

to

four

proceedings
prisoners

on

involuntary-medication orders.
Collaborative Oversight: ADAP may then prepare and
submit a monthly report to the Department regarding the
Department’s

compliance

with

this

agreement

and

the

revised involuntary-medication regulation, including by
providing any recommendations it believes necessary to
ensure the Department is in substantial compliance with
the

agreement

regulation.

or

the

revised

involuntary-medication

The Department may object, comment on, or

provide a remedial plan to any suggestions contained in
ADAP’s monthly report.
Attorneys’ Fees and Expenses: The Department will
pay the plaintiffs’ attorneys $ 230,000.00 in fees and
costs.

This agreement, unlike the parties’ settlements

of the plaintiffs’ ADA claims, does not provide for
additional

fees

for

monitoring

services

or

fees

associated with any litigation necessary to enforce the
agreement or any resulting consent decree.

10

Disposition of Claims: The parties also agree that
the settlement fully resolves the plaintiffs’ “Third
Cause of Action: Deprivation of Due Process Prior to
Involuntarily Medicating Prisoners” claims in the Fifth
Amended

Complaint.

As

a

result,

no

member

of

the

certified settlement class may bring a claim that the
revised

involuntary-medication

prisoners

of

settlement term.
plaintiff

Bui

procedural

regulation

due

process

deprives

during

the

Finally, the parties agree that named
will

not

to

assert

a

substantive

due-process claim seeking prospective injunctive relief
against

the

Department

concerning

its

revised

involuntary-medication regulation.
In addition to these substantive provisions, the
agreement

contains

the

following

“Other

Terms

and

Conditions:”
No Monetary Compensation: Nothing in the agreement
imposes any obligation to provide any form of monetary
payment

to

any

current

or

within the Department.

11

future

prisoners

housed

No Appeal: The parties have agreed to waive the
right to appeal the imposition of the agreement.
Court’s
agree

Retention

that,

agreement,

after

the

of

Jurisdiction:

the

court

court’s

will

The

approval

retain

parties
of

the

jurisdiction

to

enforce it.
Expiration of Agreement: The agreement shall expire
at 12:00 p.m. on September 6, 2019, two years after the
court entered its final approval order.
No Waiver of Privilege: The parties agree that the
agreement does not constitute a waiver, now or in the
future, of any applicable privilege provided by law.
Stipulation

relating

to

the

PLRA:

Although

discussed in greater detail below, the parties agree,
and

jointly

stipulate,

that

this

agreement

fully

complies with the requirements of the Prison Litigation
Reform Act (PLRA), 18 U.S.C.

§ 3626(a).

Dispute-Resolution Process: Prior to seeking review
before

this

court,

the

parties

agree

to

submit

any

claims relating to the Department’s compliance with the

12

terms

of

the

agreement

involuntary-medication

or
to

regulation

the

revised

mediation

before

United States Magistrate Judge John E. Ott.
Modification of Agreement: The parties may mutually
agree to amend the agreement.

Otherwise, the parties

may not seek to amend or modify this agreement, except
to extend the term of the agreement beyond two years.
Duty to Hire: The Department is under no obligation
to

hire

additional

employees

as

a

result

of

the

agreement, except that the Department must ensure its
compliance

with

the

revised

involuntary-medication

regulation.
Other:

Finally,

the

parties

agree

that

the

agreement does not--and is not intended to--violate any
preexisting
extent
under

court

possible,
the

laws

order
the

of

in

this

agreement

the

State

case;
shall

of

that,
be

to

the

interpreted

Alabama;

that

any

invalid provision shall be severable from the remainder
of

the

agreement;

that

the

agreement

represents

the

entire understanding and agreement between the parties;

13

and that all signatures on the agreement constitute an
effective signature to the agreement as a whole.
After

an

exhaustive

notice

and

comment

period,

followed by a series of fairness hearings, and upon
consideration

of

all

the

evidence

presented

in

this

case related to the Department’s involuntary-medication
policies and procedures, the court was satisfied that
the

parties

proposed

settlement

represented

a

fair,

adequate, and reasonable settlement for purposes of the
plaintiffs’ involuntary-medication claims.

III.
Judicial
actions.

policy

favors

more

the

settlement

of

class

See Bennett v. Behring Corp., 737 F.2d 982,

986 (11th Cir. 1984).
is

DISCUSSION

susceptible

However, “the settlement process
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

adequate,
F.

Supp.

and

reasonable.’”

1442,

14

1444

(M.D.

Paradise
Ala.

v.

1988)

(Thompson,

J.)

(citation

omitted).

In

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
three

determinations.

whether

the

First,

procedural

and

the

court

substantive

assessed

protections

provided by Rule 23(e) of the Federal Rules of Civil
Procedure were satisfied.

Second, because the proposed

settlement included an award of attorneys’ fees to the
plaintiffs’ counsel, Rule 23(h) required the court to
determine whether such a fee award was “reasonable.”
Finally, the court evaluated the proposed settlement’s
compliance

with

the

PLRA,

which

establishes

certain

requirements for affording prospective relief in cases
involving
relief

prisons,

takes

settlement.

A.

the

including
form

of

when
a

that

prospective

court-enforceable

See 18 U.S.C. § 3626(a)(1) & (c)(1).

Settlement Approval: Rule 23(e)

15

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 class action settlement only if
it determines that the settlement is “fair, adequate,
and

reasonable

and

is

between the parties.”
1330

(5th

Cir.

not

the

product

of

collusion

Cotton v. Hinton, 559 F.2d 1326,

1977).1

In

determining

whether

the

settlement is fair, adequate, and reasonable, courts
must

determine

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,

333 F. Supp. 2d 1234, 1238 (M.D. Ala. 2004) (Thompson,
J.).

1. 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.
16

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 to or make comments about it.
The

court’s

parties’

order

proposed

preliminarily

settlement

approving

contained

the

specific

procedures for the Department to give notice to members
of

the

order

certified
also

involuntary-medication

required

the

Department

approved notice and comment forms.
included

a

description

involuntary-medication

claims;

of
a

class.
to

The

distribute

The notice form
the

plaintiffs’

definition

of

the

certified settlement class; a list of the revisions to

17

the involuntary-medication regulation; an indication of
ADAP’s role in monitoring the Department’s compliance
with

the

agreement;

notice

of

the

provision

for

attorneys’ fees to the plaintiffs’ counsel; directions
for providing questions or comments on the agreement
and the revised involuntary-medication regulation; an
announcement of the fairness hearings; and instructions
for prisoners to exercise their right to object to or
comment
form

about

allowed

the

proposed

respondents

to

settlement.
select

The

from

a

comment
list

of

general topics at issue, and to indicate whether they
wished to testify about the agreement at a fairness
hearing.
The

notice

form

was

posted

in

the

law

library,

dining areas, and mental-health office waiting areas of
each ADOC or work-release facility.
placed

next

treatment

to

unit

the

shower

(RTU)

or

area
in

prisoners housed in those units.

18

Notice forms were

in
the

each

residential

infirmaries

for

In addition, notice

forms

were

hand

delivered

to

prisoners

on

the

mental-health caseload in those units.
The notice form was also placed in each living unit
in the open RTUs at Tutwiler, Bullock, and Donaldson
correctional facilities.
the

comment

provided

form,

and

hand

A copy of the notice form,

to

by

a

pre-addressed

prisoners

in

envelope
the

were

Intensive

Stabilization Units, closed RTUs, semi-open RTUs, or
crisis cells.

Finally, copies of the agreement were

provided upon request to any prisoner lacking access to
those areas where notices were located.
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.
A copy of a comment form was to be provided along
with a copy of the notice form.

The Department was

required to keep a roster, by name and AIS number, of
all prisoners who had received notice of the agreement.

19

After distributing the notice and comment forms, the
Department collected prisoner comments.
also

given

the

option

to

submit

Prisoners were

comments

by

mail

directly to the clerk of court.
Notice of the proposed agreement was posted by June
2, 2017, and prisoners were given until July 17, 2017,
to submit comments.
prisoner

comments

The court received more than 200
by

mail

or

from

the

facilities

themselves, which were thereafter docketed for review.

2. Objections and Comments
a.

Prisoner Comments

Prisoners raised a variety of issues relating to
the

proposed

submitted

to

settlement
the

agreement

court.2

in

Moreover,

their
based

comments
on

the

2. To the extent possible, the court construed
prisoners’ comments as referencing the agreement.
However, the court found that only 23 prisoners
provided objections or comments that were directly
relevant
to
the
agreement
or
revised
involuntary-medication regulation.
The court had to
disregard 197 comment forms because they were either
incomplete or blank, provided no reason for circling a
particular
(pre-identified)
comment
topic,
were
20

suggestions of counsel and the court’s own review of
the relevant prisoner comments, the court selected 12
prisoners to testify during fairness hearings conducted
on

August

23,

2017.

The

hearing

were

conducted

by

videoconference due to the impracticability of visiting
a large number of prisons or having prisoners appear
in-person in court .
The relevant comments and testimony fell into five
loosely

defined

categories:

(1)

concerns

about

the

Department using coercion to obtain consent to medicate
prisoners;

(2)

suggested

involuntary-medication

revisions

regulation;

to
(3)

the

revised

doubts

about

ADAP’s role in monitoring the Department; (4) requests
related

to

procedures
order.

attorneys’
for

fees;

terminating

and
an

(5)

concerns

about

involuntary-medication

Each of these categories is discussed below.

Coercion: Five prisoners expressed concerns that
the

Department

might

use

the

revised

involuntary-medication regulation to coerce prisoners:
indecipherable, or were
agreement, as a whole.

otherwise

21

irrelevant

to

the

either that the Department might coerce prisoners to
take their medication involuntarily by means other than
the

involuntary-medication

Department

might

use

procedure;
the

or

that

the

involuntary-medication

procedure as a punitive measure to get prisoners to
conform to certain behavior.
The

revised

involuntary-medication

regulation

directly addresses these concerns, and in several ways.
On the first page of the revised regulation, it states:
“In no instance shall an inmate be threatened ... with
the use of force or a threat of disciplinary actions
such as segregation, loss of privileges, or loss of
good time, as a means to coerce the inmate to accept
psychotropic

medications ....”

Proposed

Phase

2A

Involuntary Medication Settlement Agreement (doc. no.
1248-1) at 44. It further, unequivocally, states: “The
use of involuntary-medication as a punitive measure is
strictly prohibited.”
found

these

Id. at 47.

prisoners’

concerns

22

Therefore, the court
to

be

groundless

in

light

of

the

terms

of

the

revised

involuntary-medication regulation.
Revision
prisoners

to

made

the

Administrative

suggested

Regulation:

revisions

to

the

revised

involuntary-medication

regulation.

remarked

involuntary-medication

should

that

not

(some)

automatically

expire

after

Three

One

prisoner

six

orders

months

or

that (some) prisoners should not automatically be taken
off of their involuntary-medication regimen, if they
still

need

suggested

their
that

medications.
the

Two

revised

other

prisoners

involuntary-medication

regulation should not require prisoners to be taken off
of their involuntary-medication orders “cold turkey” in
all cases.

These concerns, however, are addressed in

the revised involuntary-medication regulation.
First,

the

revised

involuntary-medication

regulation does not mandate that all prisoners be taken
off
of

their

involuntary-medication

circumstances,

after

six

regimens,

months.

regardless

Instead,

the

regulation provides, in Section O, that: “Continuation

23

of the authorization for involuntary-medication will be
re-evaluated

after

the

initial

180-day

order

to

continue to involuntarily medicate the inmate ....

An

inmate will be given a thirty (30) day respite at the
completion

of

the

initial

involuntarily medicate.”
Second,

the

180

day

order

to

Id. at 49.

revised

involuntary-medication

regulation does not require prisoners to be taken off
their

medication

‘cold

turkey.’

The

regulation

provides, in relevant part, that during the period of
respite between involuntary-medication orders, “Should
an inmate ... show signs of deterioration in his/her
mental health, the treating psychiatrist may order a
continuation

of

the

authorization

for

involuntary

medication for a second 180-day interval.” Id. at 50.
And, as is the case for any prisoner, the decision to
involuntarily medicate a prisoner must be accompanied
by

a

“[s]tatement

that

the

administration

of

the

contemplated psychotropic medication is in the inmate’s
best medical interest.”

Id. at 46.

24

Accordingly, the

revised

involuntary-medication

regulation

already

addresses these proposed revisions, and the objections
on those bases were not well founded.
Monitoring: Monitoring was the most frequent topic
of

the

relevant

comments

about

the

agreement:

eight

prisoners commented about ADAP’s ability to monitor the
Department’s compliance with their own administrative
regulation

effectively

and

made

suggestions

for

improving the monitoring services provided for in the
agreement.

One comment, characteristic of the requests

for improved monitoring, states, “ADOC does not go by
polic[ies] already implemented and will not go by this
Administrative

Regulation.”

Others

state

that

monitoring should use an “element of surprise,” or that
monitoring

services

independent

should

third-party

be

provided

monitoring

by

group.

an
The

agreement addresses each of these concerns.
As

the

Regarding
provides

parties

Inmate
for

note

in

Comments,

extensive

their

the

Submission

settlement

monitoring

25

Joint

for

a

agreement
two-year

period.

As

a

part

of

the

arrangement,

ADAP

is

permitted to review four prisoners’ records that are
subject

to

involuntary-medication

month of the agreement.
report

to

ADOC

orders

during

each

ADAP can also submit a monthly

regarding

ADOC’s

compliance,

and

the

court retains jurisdiction to enforce the agreement.
See Joint Submission Regarding Inmate Comments (doc.
no.

1317)

at

arrangement,

2.

the

In
court

light

of

found

the

that

monitoring

the

agreement

sufficiently addresses the prisoners’ concerns.
Attorneys’
specifically
agreement.
are

the

Fees:

to

the

Two

prisoners

attorneys’

fee

objected

provision

of

the

Both prisoners claimed that, because they
“victims”

of

the

alleged

deficient

involuntary-medication

procedures,

they

constitutionally

compensation

are

for

the

also

policies

entitled

pain

and

to

and

monetary

suffering

they

experienced under the former regulation.
However,
comments

for

as

the

both

court
the

has

Phase

26

remarked
1

and

on

Phase

similar
2A

ADA

settlements,

although

the

court

understands

that

commenters alleging past harms may feel that they are
entitled to damages, the plaintiffs here have sought
only injunctive relief for their claims.

Moreover, an

unnamed class member cannot be precluded from bringing
a claim for monetary damages stemming from the same
policies or procedures challenged in this class action,
since the class representatives sought only injunctive
or declaratory relief.
1024,

1031

Therefore,

(11th

See Fortner v. Thomas, 983 F.2d

Cir.

prisoners

1993)

who

wish

(collecting
to

seek

cases).
monetary

compensation for violations of due process under the
former

involuntary-medication

policies

or

procedures

are not foreclosed from doing so by the agreement.
Terminating

an

Involuntary-Medication

Order:

Finally, four prisoners complained generally that they
had been on involuntary-medication orders for prolonged
periods of time.
on

an

another

One prisoner claimed that he has been

involuntary-medication
claimed

that

he

27

order
has

for

six

been

years;
on

an

involuntary-medication
almost 20 years.

order,

without

reprieve,

for

Construed as a complaint that the

revised involuntary-medication regulation should allow
prisoners

to

come

off

their

involuntary-medication

order, under certain circumstances, after the initial
involuntary-medication
that

the

revised

order

lapses,

the

court

involuntary-medication

found

regulation

addresses this concern as well.
Section
regulation

P

of

the

addresses

revised
the

involuntary-medication

concerns

raised

in

these

comments, as it provides that the procedures set in
place
before

by

the

the

new

regulation

continuation

of

must

an

be

complied

with

involuntary-medication

order that has been in place for at least 365 days of
the

past

16

months.

Proposed

Phase

2A

Involuntary

Medication Settlement Agreement (doc. no. 1248-1) at
50.
Those

procedures

documentation
involuntarily;

of

the

require,

among

need

medicate

evidence

to

that

28

other
a

alternatives

things:
prisoner
to

or

attempts at treatment other than involuntary-medication
are

or

would

Involuntary

be

futile;

Medication

an

Review

evaluation

Committee

to

by

the

determine

whether involuntarily medicating a prisoner is in the
prisoner’s best medical interest; an opportunity for
the

prisoner

to

present

involuntary-medication
majority
Committee,

of

the

evidence

regimen;

a

Involuntary

including

the

vote

against

decision
Medication

of

the

by

an
a

Review

psychiatrist;

documentation explaining the reasons for the decision
to initiate the involuntary-medication order; and an
opportunity for the prisoner, with the assistance of an
independent advisor, to appeal an adverse involuntarymedication order.

Id. at 46–49. Therefore, because of

the safeguards set in place by the new policies, the
prisoners’ concerns are unfounded.
Conclusion:

After

a

careful

review

of

all

the

comments and objections filed by class members and the
testimony of prisoners at the fairness hearings, the
court

found

that

none

of

29

the

prisoners’

comments

seriously

called

into

question

the

fairness

of

the

agreement, in whole or in part.

b. Views of Class Counsel
In
members,
counsel.

addition
the

to

court

considering
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 resolution of the
plaintiffs’ Phase 2A involuntary-medication claims.

At

the fairness hearing on August 24, 2017, counsel argued
that the agreement was “rigorously negotiated” and was
“reached through a great deal of hard work on a variety
of

disputed

issues.”

Counsel

firmly

believed

this

settlement was advantageous to the certified class and
complied with the requirements of Washington v. Harper,
494 U.S. 210, 235 (1990).

30

Additionally,

before

the

fairness

hearing,

the

court requested supplemental briefing on “whether the
revised Administrative Regulation 621 creates an avenue
for

judicial

review

of

an

adverse

involuntary

medication order” and “if the regulation does create an
avenue for judicial review, how it does so.”

Phase 2A

Involuntary Medication Settlement Agreement Preliminary
Approval Order (doc. no. 1253) at 10–11.
In

the

parties’

parties’

stated

joint

that

brief

the

in

response,

“Revised

the

Administrative

Regulation 621 (the ‘Regulation’) contains an avenue
for

judicial

review

of

involuntary-medication order.

an

adverse

Specifically, Section J

of the ‘Procedures’ section of the Regulation provides
that ‘[t]he inmate shall be informed of the right to
appeal

any

decision

to

a

court

of

appropriate

jurisdiction.’ An adverse involuntary medication order
falls

squarely

within

‘any

decision’

that

appealed to a court of competent jurisdiction.”
Brief

Regarding

Judicial

31

Review

of

an

may

be

Joint
Adverse

Involuntary

Medication

Order

(doc.

no.

1318)

at

1–2

(internal citations omitted).
The parties further stated that a prisoner may seek
judicial review in state court through a petition for a
writ of habeas corpus or in federal court by asserting
a

claim

under

42

U.S.C.

§ 1983,

noting

that

the

internal administrative appeal process for appealing an
adverse

involuntary-medication

order

constitutes

the

administrative remedy that must be exhausted under the
PLRA in order to pursue a § 1983 claim.
Accordingly,
contained

an

consistent

the

court

avenue

with

the

for

found

that

judicial

requirements

Id. at 2–3.
the

agreement

review
of

that

Harper.

is
See

Harper, 494 U.S. at 216 (noting that an “inmate may
seek judicial review of a committee decision in state
court

by

means

of

a

personal

restraint

petition

or

extraordinary writ”).
As
provides

to
an

the

second

avenue

for

question--how
judicial

the

regulation

review--the

parties

stated that, “A prisoner will be informed of the right

32

to

judicial

review

in

the

Notice

of

Medication Hearing (ADOC Form MH-029).”
Regarding

Judicial

Review

of

an

Involuntary
Joint Brief

Adverse

Involuntary

Medication Order (doc. no. 1318) at 3, which “informs a
prisoner subject to an adverse involuntary medication
order of the right ‘[t]o seek judicial review in a
court of appropriate jurisdiction if the administrative
appeal is denied.’”

Id.

This, too, is sufficient and

consistent with the requirements of Harper.
Upon consideration of the views of class counsel,
the court found that nothing addressed by the parties
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 proposed settlement agreement is fair, adequate,
and reasonable.

See Fed. R. Civ. P. 23(e).

In making

that determination, the court considered a variety of

33

“[r]elevant

factors”,

including

“the

stage

in

the

proceedings; the plaintiffs’ likelihood of success at
trial

[on

the

remaining

issues];

the

complexity,

expense, and likely duration of the lawsuit; and the
range of possible recovery.”

Laube, 333 F. Supp. 2d at

1246.
The

substantive

provisions

of

the

agreement

represent a highly favorable result for the plaintiff
class.

The plaintiffs in this case alleged that the

Department’s
procedures
requires.”
3.

involuntary-medication
“f[e]ll

far

short

of

policies

what

due

and

process

Fifth Amended Complaint (doc. no. 805) at

The agreement essentially gives the class all of

the remedies the plaintiffs sought at the outset of
this litigation.

Notably, even if the plaintiffs had

proceeded to and prevailed at trial on their Phase 2A
involuntary-medication claims, the parties would have
still been confronted with the task of fashioning a
revised Administrative Regulation.

34

Any such regulation

would

likely

have

closely

resembled

the

revised

regulation attached to the settlement agreement.
Accordingly, upon an independent review of prisoner
comments

and

the

views

of

class

counsel,

the

court

found the agreement to represent a fair, adequate, and
reasonable

settlement

of

the

plaintiffs’

involuntary-medication claims.

B.

Attorneys’ Fees: 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) the parties filed a motion for attorneys’ fees; (2)
the

class

members

must

be

given

notice

and

an

opportunity to object to the motion; and (3) the court
must find that the award sought is reasonable.

35

See id.

The

settlement

Department

will

agreement
pay

the

provides

that

plaintiffs’

the

counsel

$ 230,000.00 in fees and costs, which include any and
all costs associated with or generated by class counsel
in

initiating

and

litigating

the

plaintiffs’

involuntary-medication claims and fees associated with
ADAP’s role in monitoring the Department’s compliance
with the agreement.

See Proposed Phase 2A Involuntary

Medication Settlement Agreement (doc. no. 1248-1) at
28–29.
Because

the

provision

the

proposed

included

in

received

notice

of

the

of

attorneys’

settlement,

plaintiffs’

fees

class

class

was

members

attorneys’

request for attorneys’ fees during the comment period.
Two prisoners objected to the fee provision; however,
as mentioned previously, these prisoners merely argued
that the provision of fees to class counsel was unfair,
given the fact that they were not also being awarded
monetary

damages.

But

again,

because

the

agreement

does not foreclose the opportunity for class members to

36

seek

monetary

because

the

damages

for

plaintiffs

individual

have

sought

claims,

only

and

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
obligation to assess its reasonableness, in order to
guard against the risk that class counsel might agree
to

enter

into

a

settlement

less

favorable

to

their

clients in exchange for inappropriately high fees.
Piambino

v.

Bailey,

757

F.2d

1112,

1144

(11th

See
Cir.

1985) (“When the class attorneys succeed in reaping a
golden harvest of fees in a case involving a relatively
small

recovery,

profession

are

the

judicial

disparaged.

system
...

and

The

the

legal

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

37

that

lawyers

have

managed

to

perpetuate

their influence with the judiciary.
their

own

integrity,

profession,
important

and
that

the

integrity

the

courts

...

For the sake of

integrity

the

through

of

of

Rule

should

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).
To determine whether an attorneys’ fee award 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

38

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;

professional

(11)

the

nature

relationship

and

with

length

the

of

the

client;

and

request,

the

(12) awards in similar cases.
In

support

of

the

attorneys’

fee

plaintiffs’ counsel submitted evidence that they have
incurred, or will incur, approximately $ 230,000.00 in
litigation

expenses

on

the

Phase

2A

involuntary-medication claims and fees associated with
ADAP’s role in monitoring the Department’s compliance
with the agreement and revised involuntary-medication
regulation.

See Plaintiffs’ Motion for Attorneys’ Fees

(doc. no. 1346).

The plaintiffs’ counsel expended over

476.3 total hours of billable time on this portion of

39

the case as of the date of signing the settlement and
“significant

time

for

almost

signing the agreement.
determine

the

exact

four

Id. at 3.

number

of

(4)

months”

after

It is impossible to

hours

that

ADAP

will

spend monitoring the implementation of the new policies
under the settlement agreement after final settlement
approval
parties

and

jointly

represents
kind.
during

during

a

agree

the

fairness

settlement

that

reasonable

Moreover,
the

the

the

fee

hearings

but

$ 230,000.00

for

parties

term,

request

litigation

agreed
that

on

the

the

of

the

this

record

request

for

attorneys’ fees was reasonable.
After considering the Johnson factors, the court
found that the fee was reasonable and no adjustment of
the

lodestar

claims,

figure

which

have

extraordinarily
current

and

large

future

involuntary-medication
achieved

a

remedial

was

warranted.

been

ongoing

in

scope;

prisoners
orders;
order

40

that

These
since

they

settled

2014,

concern

on

and

subject

and

they

sought

mandates

a

are
both
to
and

dramatic

transformation in the way the Department treats such
prisoners.

The

range

of

complex

legal

and

factual

questions presented by the plaintiffs’ claims, and the
amount

of

time

the

plaintiffs’

attorneys

reasonably

spent both in preparing these claims for trial and in
negotiating

and

securing

approval

of

the

settlement

agreement, warrant the sizeable fee award.

C.

PLRA

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
than necessary to correct the violation of the Federal
right, and is the least intrusive means necessary to
correct

the

the

Federal

18 U.S.C. § 3626(a)(1)(A).

In

conducting

“need-narrowness-intrusiveness”

inquiry,

required

weight

to

violation

“give

of

substantial

to

a

right.”
this

court

any

is

adverse

impact on public safety or the operation of a criminal
justice system caused by the relief.”

41

Id.

While

the

requirement

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

proposed

settlement satisfies the need-narrowness-intrusiveness
requirements of 18 U.S.C. § 3626(a)(1)(A).
Phase

2A

(doc.

no.

Involuntary
1248-1)

Medication

at

12.

Settlement

Based

on

the

Proposed
Agreement
court’s

independent review of the agreement, the court agreed.
The

court

further

found--and

the

parties

stipulated--that the settlement agreement will not have
an adverse effect on public safety or the operation of
the

criminal

justice

system.

42

See

18 U.S.C.

§ 3626(a)(1)(A).

To the contrary, once the Department

implements

the

involuntary-medication

agreed-upon
regulation,

revised

prisoners

will

be

afforded more notice and given an increased opportunity
to challenge an adverse involuntary-medication order.
Furthermore, the documentation that the Department is
required

to

maintain

involuntary-medication

will

ensure

decisions

process they are due.

that

afford

reviews

prisoners

of
the

And, finally, the Department

will retain the ability to use involuntary-medication
orders

to

treat

prisoners

who

truly

need

to

be

medicated without their consent.
In

addition,

prospective
years

relief

after

court

the

PLRA’s

order

requirement

must

approval

(or

terminate
one

year

that

any

within

two

after

the

court’s denial of termination of a prospective relief
order)
As

is satisfied.

explained

terminate

two

See 18 U.S.C. § 3626(b)(1)(A).

previously,
years

the

after

settlement.

43

the

agreement
court

is

set

approved

to
the

Moreover, the requirements for appointing a special
master in a prison case, see 18 U.S.C. § 3626(f), are
inapplicable

here.

The

parties

agreed

to

the

appointment of United States Magistrate Judge John E.
Ott to serve as a mediator, not a special master, for
any “dispute related to the terms and conditions of ...
this

Agreement.”

Proposed

Phase

2A

Involuntary

Medication Settlement Agreement (doc. no. 1248-1) at
13.

Finally, to the extent 18 U.S.C. § 3626(f) may

still be applicable, the parties have expressly waived
the right to challenge Judge Ott’s decision or this
settlement on that basis.
In sum, the court is satisfied that its entry of a
consent decree is in full compliance with the PLRA.

IV.
In

Washington

recognized
liberty

v.

CONCLUSION
Harper,

that

prisoners

interest

in

the

possess
avoiding

Supreme
“a
the

Court

significant
unwanted

administration of anti-psychotic drugs under the Due

44

Process Clause of the Fourteenth Amendment.”
at 221–22.
recognized

494 U.S.

Nevertheless, the Court has consistently
the

need

to

balance

its

“longstanding

adherence to the principle that inmates retain at least
some constitutional rights despite incarceration with
the

recognition

that

prison

authorities

are

best

equipped to make difficult decisions regarding prison
administration.”
The

Id. at 223–24.

parties’

settlement

reflects

towards balancing those interests.

a

commitment

It also represents

years of dedication towards ensuring compliance with
the

dictates

of

the

Constitution.

The

court

understands both parties’ investment in this process to
be genuine, and commends them for it.
The

court

also,

again,

recognizes

the

important

role played by prisoners, who, in this context, are
subject

to

the

Department’s

involuntary-medication

regime, as well as the numerous prisoners who submitted
comments, for their advocacy on behalf of themselves
and others.

45

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, the

court is convinced that this agreement would not have
been possible.
For all of the above reasons, the court approved
and adopted, as its own partial final judgment, the
parties'

settlement

of

the

plaintiffs'

involuntary-medication claims.
DONE, this the 27th day of November, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

46