Ray et al v. Judicial Corrections Services Inc et al

Filing 626

MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/12/2017. (KAM)

FILED
2017 Sep-12 PM 04:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

GINA KAY RAY, et al.,
Plaintiffs,
v.
JUDICIAL CORRECTION SERVICES,
INC., et al.,
Defendants.

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Case No.: 2:12-cv-02819-RDP

MEMORANDUM OPINION
In the 19th century, American drinking establishments began offering free lunches to
their patrons. Of course, the practice was designed to attract drinking customers, who, while
they didn’t pay for lunch, surely paid for their beer. This led a wiser consumer to observe that
“there ain’t no such thing as a free lunch.” The phrase’s application carries beyond restaurants
and bars. It is a core economics principle. See Milton Friedman, There’s No Such Thing as a
Free Lunch (Open Court Publishing Co. 1975). In this case, Defendant Judicial Correction
Services, Inc. (“JCS”) offered something much more valuable than lunch to Alabama counties
and municipalities. It offered “free” supervision of probationers and “free” collection of fines
and court costs owed to courts. Moreover, it offered municipal courts throughout the state of
Alabama “free” document drafting and “free” intake services (to be provided, of course, after the
municipal court ruled upon a defendant’s charge and crafted a sentence that included probation
supervised by JCS). All of this, of course, at absolutely no cost to the counties, municipalities,
and municipal courts which hired JCS. Or, so they thought. As it turns out, the services were
provided without charge to the municipalities, but they were not free. In fact, the court is

reminded of a different quote attributed to the inimitable Will Rogers: “It’s not what you pay a
man, but what he costs you that counts.” AZ Quotes, http://www.azquotes.com/quote/249468
(last visited July 24, 2017).
I.

Introduction
The named Plaintiffs in this action were sentenced to probation by the City of

Childersburg Municipal Court (“Municipal Court”) because they did not pay fines or court costs
imposed by the Municipal Court on the date of sentencing. The Municipal Court directed
Plaintiffs to remit $35 to $45 a month to JCS on top of the fines and court costs they were
ordered to pay the court. Plaintiffs claim that they were not able to pay the fines and court costs,
there never was a proper indigency determination, and they are now before the court to remedy
alleged constitutional violations stemming from the probation procedures implemented by JCS
on behalf of the Municipal Court.
This case is before the court on: (1) Plaintiffs’ Motion for Partial Summary Judgment to
Declare the City of Childersburg’s (the “City”) “Probation” Practice with JCS Unconstitutional
as a Denial of Equal Protection (Doc. # 424); (2) Plaintiffs’ Motion for Partial Summary
Judgment Declaring the Contract between JCS & the City of Childersburg Void Ab Initio (Doc. #
426); (3) Plaintiffs’ Motion for Partial Summary Judgment to Declare Void Probation Based
Upon Non-Adjudicated Offenses and Blank Orders (Doc. # 545); (4) Defendants’ JCS and
Correctional Healthcare Companies, Inc. (“Correctional Healthcare”) Motion for Summary
Judgment on Claims Asserted by Gina Kay Ray (Doc. # 469); (5) Defendants’ JCS and
Correctional Healthcare Motion for Summary Judgment on Claims Asserted by Deunate Jews
(Doc. # 522); and (6) Defendants’ JCS and Correctional Healthcare Motion for Summary
Judgment on Claims Asserted by Plaintiffs Timothy Fugatt and Kristy Fugatt (Doc. # 535). The

2

parties have fully briefed the motions, and they are under submission. (See Docs. # 425, 427,
470, 472-75, 500-505, 510, 523, 530, 536, 544, 546, 550, 556, 567, 573, 575, 577-78, 588, 590,
596-97). The court held oral argument regarding these motions on July 24, 2017.
After careful review, and for the reasons explained below, the court concludes that
Plaintiffs’ motions for partial summary judgment are due to be denied. Defendant Correctional
Healthcare is due to be granted summary judgment on all claims. But, Defendant JCS is due to
be granted summary judgment in part and denied summary judgment in part, as discussed in
detail below.
II.

The Rule 56 Evidence and the Undisputed Facts
The facts set out in this opinion are gleaned from the parties’ submissions of facts

claimed to be undisputed, their respective responses to those submissions, and the court’s own
examination of the evidentiary record. All reasonable doubts about the facts have been resolved
in favor of the nonmoving party. See Info Sys. & Networks Corp. v. City of Atlanta, 281 F.3d
1220, 1224 (11th Cir. 2002). These are the “facts” for summary judgment purposes only. They
may not be the actual facts that could be established through live testimony at trial. See Cox v.
Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
A.

Procedural History

In their Fourth Amended and Restated Complaint, Plaintiffs allege that Defendant JCS
entered into a “joint policy and practice” with Alabama municipalities, such as the City, that
violated both their statutory and constitutional rights. (Doc. # 305 at ¶ 14). They state that JCS
implemented a “highly systemized and uniform” approach for providing services to
municipalities and municipal courts. (Id. at ¶ 16). Under the system described in the Fourth
Amended Complaint, Defendant JCS conducted “many administrative and judicial functions of

3

the municipal court.” (Id. at ¶ 18). As compensation for performing those functions, JCS
received a monthly probation fee of $35 to $45 a month and a set-up fee of $10, both of which
were included in the probation orders provided to the municipal court by JCS. (Id. at ¶¶ 21, 96).
Plaintiffs contend that the City unlawfully delegated “the collection of court fines,
costs[,] and private fees” to JCS. (Id. at ¶ 93). In a contract signed by the mayor, the City
purportedly bound the Municipal Court to establish a probation fee and a set-up fee in each
probation order. (Id. at ¶¶ 94, 99). Thereafter, JCS designated certain employees as “probation
officers” and allowed them to use a privately-issued badge to collect fees, fines, and court costs.
(Id. at ¶ 92). Under the alleged practices of the Municipal Court, every defendant who was
unable to immediately pay all fines and costs imposed by the court was placed on probation
under the supervision of JCS. (Id. at ¶¶ 97-98). “This [was] routinely done with no investigation
into the indigency of the individual or the reasons for their inability to pay the fine and costs.”
(Id. at ¶ 22).

Moreover, JCS’s employees allegedly threatened to revoke an individual’s

probation, increase the fines and costs owed by a probationer, or increase the jail time a
probationer faced if he or she was not able to pay JCS. (Id. at ¶ 110).
Plaintiffs present five claims for monetary damages against Defendants JCS, CHC
Companies, Inc. (“CHC Companies”),1 and Correct Care Solutions, LLC (“Correct Care”) under
42 U.S.C. § 1983, and also seek declaratory and injunctive relief. Plaintiffs first allege that JCS,
CHC Companies, and Correct Care violated their due process rights through the postadjudication supervision system provided to the Municipal Court.

(See id. at ¶¶ 89-119).

Plaintiffs point to several features of JCS’s policies and practices as violations of their due
process rights, including: (1) the incarceration of individuals for failing to pay fines, fees, and
1

CHC Companies was the corporation that purchased JCS in September 2011, not Correctional
Healthcare. Plaintiffs have not disputed at this stage that Defendant Correctional Healthcare is due to be granted
summary judgment.

4

costs owed (id. at ¶ 100); (2) the institution of charges against probationers for “failure to obey a
court order” (“FTOCO”) if the probationer could not pay the fines and fees owed to JCS and the
Municipal Court (id. at ¶ 101); (3) the issuance of arrest warrants for individuals based on
FTOCO charges (id. at ¶ 103); (4) JCS’s failure to determine whether the named Plaintiffs were
indigent or to determine why they could not pay the amounts owed, despite the fact that they
were indigent when FTOCO charges were instituted against them (id. at ¶¶ 103-04); (5) the
failure to conduct delinquency or probation hearings before incarceration (id. at ¶ 110); (6) the
imposition of fines, fees, and court costs exceeding the jurisdictional maximum of $500 for
municipal courts (id. at ¶ 111); (7) the imposition of terms of probation exceeding two years
(id.); and (8) the failure to provide “adequate notice of the nature of any lawful charge” (id. at
¶ 113). Moreover, Plaintiffs contend that JCS violated Plaintiff Jews’s due process rights by
collecting costs and fees from him when the charges against him had been dismissed by the
Municipal Court. (Id. at ¶ 118).
Second, Plaintiffs allege that JCS, CHC Companies, and Correct Care violated their
Fourth Amendment rights against unreasonable seizure by instituting a system under which
probationers were arrested and detained for failing to pay fines and fees. (Id. at ¶¶ 158-67).
They allege that JCS’s probation system deprived the Municipal Court’s probationers of a
judicial hearing to determine whether the probationers had willfully refused to pay fines and fees
owed to JCS and the Municipal Court. (Id. at ¶ 161). Moreover, they claim that JCS sought
arrest warrants against all named Plaintiffs when it knew that the Plaintiffs could not pay the
fines and fees imposed against them.

(Id. at ¶ 164).

According to the Fourth Amended

Complaint, all of the named Plaintiffs were arrested and detained pursuant to this
unconstitutional process implemented by JCS. (Id. at ¶ 166).

5

Third, Plaintiffs allege that JCS, CHC Companies, and Correct Care violated their Sixth
Amendment rights to counsel by implementing a policy or practice that “transformed” fines and
fees into indefinite imprisonment sentences without providing access to counsel. (Id. at ¶¶ 17993). They contend that JCS employees threatened the named Plaintiffs with imprisonment and
incarceration if they failed to pay the amounts owed to JCS and the Municipal Court on the
schedule set by JCS. (Id. at ¶ 186). When Plaintiffs were unable to pay the fines and fees owed,
JCS instituted FTOCO charges or probation violation charges in the Municipal Court. (Id. at
¶ 188). Although Plaintiffs faced a potential imprisonment sentence at that point, neither JCS
nor the City provided counsel to the probationers. (Id. at ¶ 189).
Fourth, Plaintiffs claim that JCS, CHC Companies, and Correct Care violated their
Eighth Amendment rights by imposing excessive fines and cruel and unusual punishment in
accordance with JCS’s probation system. (Id. at ¶¶ 211-26). According to the Plaintiffs, JCS
demanded more than the statutory maximum fine of $500 per charge from probationers. (Id. at
¶ 218). Moreover, JCS allegedly violated the Excessive Fines Clause of the Eighth Amendment
by imposing probation fees that far exceeded the initial fines and court costs ordered by the
Municipal Court. (Id. at ¶ 219). In some situations, JCS charged probationers six to fifteen
times the initial fine imposed by the Municipal Court through monthly probation fees. (Id.).
Plaintiffs also accuse JCS of incarcerating them for terms longer than those allowed under
Alabama Code § 15-18-62. (Id. at ¶ 221). In addition, JCS failed to account for $15 per day jail
credits that should have been applied to offset the fines owed. (Id. at ¶ 222).
Fifth, Plaintiffs assert that JCS, CHC Companies, and Correct Care denied them their
rights to equal protection by subjecting them to disparate treatment on the basis of wealth. (Id. at
¶¶ 242-55).

According to Plaintiffs, the probation scheme implemented by JCS and the

6

Municipal Court classified Municipal Court defendants on the basis of wealth because those
financially able to pay all fees and court costs were not placed on probation, whereas those who
could not pay the full amount owed were invariably placed on probation. (Id. at ¶¶ 247-48).
Plaintiffs insist that there was no rational state interest for the disparate classification. (Id. at
¶ 251). Indeed, according to Plaintiffs, the probation scheme violated Alabama statutory law that
required the Municipal Court “to uniformly process traffic infractions and penalties for
misdemeanors in accordance with specified maximum fines.” (Id. at ¶ 252). Thus, Plaintiffs
contend that JCS lacked authority “to charge additional fees to those who [could not] pay.” (Id.
at ¶ 253).
In the Fourth Amended Complaint’s count for declaratory and injunctive relief, Plaintiffs
request that the court declare the contract between JCS and the City (hereinafter the “JCS-City
Contract”) void ab initio because (1) the City lacked authority to bind its Municipal Court,
(2) the contract violated the separation of powers doctrine and other limitations on municipal
authority, and (3) the contract unlawfully invaded the judiciary’s authority over court
administration. (Id. at ¶¶ 267-76). Next, Plaintiffs request that the court “declare the actions of
[JCS, CHC Companies, Correct Care, and the City] under this contract to be unconstitutional
under the premises discussed above.” (Id. at ¶ 277). Plaintiffs ask the court to enter injunctions
prohibiting JCS, CHC Companies, and Correct Care from (1) committing the legal violations
described in the Fourth Amended Complaint, (2) “placing persons on probation for simple
fines,” (3) “assessing fines in excess of $500 and extending probation periods beyond 24
months,” and (4) “imprisoning indigent persons for failure to pay fines and fees.” (Id. at p. 6364). Plaintiffs’ count for declaratory and injunctive relief does not seek relief due to JCS
supervising probation for individuals with non-adjudicated offenses or blank probation orders.

7

(See id. at ¶¶ 267-84). Additionally, Plaintiffs’ requests for relief do not ask the court to award
restitutionary damages. (Id. at p. 63-64).
B.

Formation of the Relationship Between the City, the Municipal Court, and
JCS

On June 21, 2005, Childersburg’s City Council approved a proposal to replace its private
probation service with JCS. (Doc. # 421-7 at 2).2 The City Council’s minutes reported that
Judge Larry Ward and the Municipal Court’s clerk had recommended JCS.3 (Id.). Thereafter,
the City’s mayor and a JCS vice president signed the JCS-City Contract. (Doc. # 392-16 at 3).
The JCS-City Contract purported to include the Municipal Court as a party to that agreement.
(Id.). Moreover, the City’s mayor signed the contract on behalf of the “CITY/COURT OF
CHILDERSBURG, Alabama.” (Id.). But the Municipal Court’s judge did not sign the contract.
(See id.).
The JCS-City Contract required JCS to perform supervision for “all probated cases
sentenced by the [Municipal] Court,” including supervision of indigent probationers. (Id. at 4).
This contract also directed JCS to notify the Municipal Court of non-complying probationers.
(Id. at 5). It required JCS to maintain case files “with the terms and conditions of probation,
reporting dates, field contacts as they occur and . . . the amounts and dates of monies collected.”
(Id.). It allowed JCS to collect fines, restitution, and court costs on behalf of the Municipal
Court if directed to do so. (Id.). JCS agreed not to charge its standard probation fee to indigent
probationers. (Id. at 4). Furthermore, it agreed not to charge supervision fees to probationers
who paid their fines and court costs within a week of their sentencing hearing. (Id.). The JCS2

For ease of reference, this opinion refers to the page numbers of the parties’ briefs, the minuscript pages
in deposition transcripts, and the CM/ECF page numbers for all other exhibits, such as the City Council’s minutes
cited above.
3

The City’s former mayor, B.J. Meeks, also testified that Judge Ward and the magistrate had
recommended JCS. (Doc. # 392-9 at 52-53).

8

City Contract did not specify whether JCS was to send notice of court hearings to probationers.
(See id. at 4-5).
JCS also agreed not to charge the City or the Municipal Court for its services. (Id. at 6).
Instead, the JCS-City Contract purportedly obligated the Municipal Court to include certain fees
in “each Court Order.” (Id.). These fees included a $35.00 monthly probation fee and a $10.00
probation set-up fee. (Id.).
The mayor who signed the JCS-City Contract testified that JCS worked with the
Municipal Court, not the City, even though JCS had entered into a contract with the City. (Doc.
# 392-9 at 76). He claimed that Judge Ward had recommended JCS. (Id. at 45). But, Judge
Ward testified he was unaware of the JCS-City Contract until the date of his deposition and was
not able to say who would be authorized to bind the Municipal Court to such a contract.4 (Doc. #
392-5 at 10, 12). He denied any involvement in the contract’s formation. (Id. at 12-13). He also
denied recommending JCS to the City or its mayor. (Id. at 18, 42). Judge Ward conceded,
though, that he had worked with JCS in other municipal courts, including the municipal courts in
Harpersville, Lincoln, Gurley, and Stevenson, Alabama. (Id. at 18).
Contrary to JCS’s strenuous assertion,5 the Rule 56 record does not establish whether
Judge Ward approved the form documents produced by JCS employees, such as probation orders
and failure to report letters. Judge Ward refused to testify about whether the Municipal Court
had agreed to allow JCS to send threatening letters to probationers or whether he knew that JCS
was sending such letters to probationers. (See Doc. # 392-5 at 71-74). Although Colleen Ray
4

When Judge Ward testified in a similar state-court action, he confirmed his knowledge that JCS
supervised indigent probationers at no cost to the municipality or the probationer. (Doc. # 402-36 at 58). He agreed
that JCS had “a financial interest in getting as much money out of [probationers] as they [could].” (Id. at 90).
5

(See Doc. # 470 at 5) (stating, as an undisputed fact, that “[a]ll of the probation orders, petitions for
revocation, failure-to-report letters, and probation-violation letters in probation cases sentenced by the Childersburg
Municipal Court were drafted and implemented by JCS pursuant to the directives of the Childersburg municipal
judge”)

9

testified that JCS sent out such orders and letters at the direction of the Municipal Court, she
claimed that the Municipal Court would have approved the documents when it began to work
with JCS. (See Doc. # 471-4 at 284-85). Colleen Ray did not work at the Childersburg JCS
office in 2005, the year JCS began to supervise probationers for the Municipal Court and when
the form orders would have been approved by the court. (See Doc. # 471-3 at 41-42) (stating
that Colleen Ray was an office manager for JCS in Foley, Alabama from 2005 or 2006 to 2008).
Accordingly, the Rule 56 record reveals that Ray lacks personal knowledge of whether Judge
Ward approved the form documents used by JCS.6
In August 2014, after Judge Ward retired from the Municipal Court, the Municipal
Court’s judge established new policies and procedures for setting bail, ensuring defendants’ right
to counsel, imposing sentences when defendants failed to pay ordered fines and court costs,
ordering probation, and revoking probation. (See generally Doc. # 128-1). The City Council
terminated the JCS-City Contract in May 2015. (Doc. # 392-63 at 2).
C.

JCS’s Policies

JCS’s training manual indicates that JCS primarily concerned itself with enforcing the
financial penalties and fees imposed by the probation orders it supervised. For example, JCS
instructed its employees to schedule probationers’ appointments based on whether they had paid
the full monthly amount owed under the probation order. (Doc. # 402-2 at 72). The amount paid
to JCS determined whether an employee scheduled monthly, bi-weekly, or weekly probation
appointments. (Id.). Likewise, if a probationer failed to appear at a JCS appointment, JCS
6

In addition, Colleen Ray recalled that the municipal court judges orally approved the form documents.
(Doc. # 471-4 at 294). She could not recall whether JCS employees documented these oral approvals. (Id. at 294,
296).
For similar reasons to those discussed above, the court finds that Lisha Kidd lacks personal knowledge
concerning Judge Ward’s approval of the form documents. Kidd testified that the she used the form orders and
documents when supervising probationers pursuant to the court’s directions. (Doc. # 471-1 at 122). But, she was
not hired to work with JCS in Childersburg until approximately 2010. (See id. at 40-41).

10

directed its employees to “[r]eview the amount the [probationer] is behind on fines and fees” and
to “determine the amount to be brought to the next appointment” before trying to contact the
probationer by telephone. (Doc. # 402-3 at 10). JCS also required employees to review a report
of expiring probation cases so that probation did not expire before the probationer met “the court
ordered conditions” (which of course included, among other things, the condition to pay JCS’s
monthly supervision fee). (Doc. # 402-2 at 66). JCS’s Probation Tracker, a proprietary software
program used by JCS, also informed each probation officer, at the start of every work day, “the
amount of monies collected in fees since the beginning of the month [versus] the amount of
monies that should have been collected on cases assigned for the entire month.” (Id. at 37).
Probation Tracker calculated this percentage “daily in order to help keep track of progress of fee
collections during the month.” (Id.).
JCS employees filled out the probation orders for defendants placed on probation by
judges. (Id. at 14). JCS instructed its employees on how to calculate the monthly payments that
probationers should be directed to pay as follows:
Note that payments are not to be less than $135/$140/$145 monthly, unless a
specified amount is ordered by the Judge. Company policy is to try to never make
payments less than $85 per month. Add the amount of fines, court costs[,] and
restitution payments, divide that number by number of months the defendant has
been sentenced to probation minus one month. Take the amount derived and add
the monthly probation fee. Round the amount up to the nearest $5.
(Id.). JCS’s manual reminded its employees that a municipal court judge would determine the
length of the defendant’s probation. (Id.).
Under JCS’s policies, an employee generally requested a probation revocation hearing if
(1) a probationer missed three appointments, (2) a probationer missed one appointment and a
failure to report letter was returned to JCS in the mail, or (3) all phone numbers provided by the
probationer were disconnected or contained incorrect information. (Doc. # 402-3 at 23). JCS
11

instructed its employees to not request a warrant solely because a probationer owed fees. (Id.).
Moreover, it provided special instructions to obtain the address for a probationer whose mail had
been returned to JCS. (Id.). JCS told its employees to use Accurint to obtain a mailing address
for probationers whose letters were returned to the sender.7 (Id.).
JCS’s training manual instructed employees to tell probationers who appeared for a
revocation hearing that they needed to pay the amount owed for probation in full or the amount
they were directed to pay in an earlier letter to have the revocation hearing dismissed. (Doc. #
402-3 at 36). JCS allowed its employees to “determine an amount to dismiss the hearing” if the
probationer told the employee that he or she could not pay the full amount requested. (Id.). If
the JCS employee decided to not dismiss the revocation hearing, the employee was instructed to
“take the [probationer] before the Judge and let the Judge make a decision on the case.” (Id.).
JCS told its employees that they must be prepared to answer questions and make a
recommendation regarding the terms of revocation. (Id.). The sample recommendation given in
the manual included an imprisonment term and an amount to be paid before release. (Id.).
If a probationer supervised by JCS received another probationary sentence supervised by
JCS, JCS instructed its employees to place the new probation sentence on hold “until the current
[probation] case is paid in full.” (Doc. # 402-2 at 41). As its training manual explained:
If a defendant has more than one case in the same court, the second and
subsequent cases are to be placed on hold. Once the first case is paid in full, the
second case is to be made active the day the first case is paid in full. The
probation date on the admin. screen will be changed to the date the first case is
paid in full. Click on the calculate button and the [Probation Tracker] system will
update the number of months the defendant will be on probation. Once the
second case is paid in full, the above is to be followed for the third case, and so
on.

7

“Accurint is a website subscribed to by JCS that is available to use to look up a defendant and verify their
last address.” (Doc. # 402-4 at 44). JCS successfully found several probationers by using this service. (Id.). One
JCS employee handled all the requests for information from Accurint. (Id.).

12

(Doc. # 402-3 at 53). Moreover, if a probationer was sentenced to probation and supervised by
JCS in two or more jurisdictions, JCS only collected supervision fees for the first case initially.
(Id.). Once the individual paid off all fees in the first case, JCS began to collect supervision fees
in the second case. (Id.). JCS’s policies called for 70 percent of each payment to be applied to
fines and 30 percent to be applied to fees. (Id. at 44).
If a probation sentence expired but the probationer failed to complete the terms of
probation, JCS employees usually placed the probationer in an unsuccessful termination status.
(Id. at 47-48). However, if the probationer continued making payments after the expiration of
his or her probation term, JCS instructed its employees to keep the probation in an active status.
(Id. at 48). And, if the probationer completed the conditions of probation within a reasonable
time, JCS would ask a court to successfully terminate the probation. (Id.).
D.

JCS’s Services to the Municipal Court

Under the terms of the form probation order used by the Municipal Court, a defendant
sentenced to probation by the Municipal Court was obligated to report to a probation officer -employed by JCS -- as instructed. (See, e.g., Doc. # 471-12 at 2). A defendant was also required
to notify his or her probation officer whenever the defendant changed a residence or
employment. (Id.). A defendant was compelled to pay JCS $35 or $45 a month, as well as a $10
set-up fee. (See id.). Moreover, the defendant was directed to make monthly payments towards
the fines and costs owed to the Municipal Court. (See id.) (directing Plaintiff Ray to pay $145 a
month towards the $1,146 she owed to the court in August 2012). The Municipal Court also
could order a defendant to (1) make restitution payments, (2) complete a jail sentence, (3)
complete certain education programs, or (4) return to court at a later date to show completion of

13

an obligation. (See id.). The probation orders warned defendants about the Municipal Court’s
power to modify or revoke probation as follows:
The Court may at any time modify any conditions of your probation, change or
extend probation, discharge defendant[,] or revoke probation. You are subject to
arrest for violation of any condition imposed by this order, and your
probation may be revoked accordingly.
(Id.) (emphasis in original). When signing an order of probation, a defendant affirmed that he or
she had counsel or had “waived [the] right to counsel for all proceedings to this date.” (Id.).
According to JCS’s Childersburg office manager, Lisha Kidd, Judge Ward signed blank
court orders, and Kidd would fill them in based on the judge’s instructions. (Doc. # 471-1 at
105, 446-47).

JCS only provided probation services when probation was mandated by a

municipal court order. (Id. at 107). After Judge Ward had sentenced an individual to probation,
Kidd informed the probationer about the terms of probation in a separate room. (Id. at 122-23).
A probationer owed almost no fees to JCS if the court-ordered fines were paid within seven days
of sentencing. (Id. at 109, 121). Once JCS began charging probation fees, though, a probationer
could not end a probation sentence by merely paying off the fines originally imposed by the
Municipal Court. (Id. at 109-10). Kidd could not recall whether she had ever supervised any
probationer who had been declared indigent by the Municipal Court. (Id. at 231-32). However,
she asserted that JCS did not determine whether a probationer was indigent because that was not
its responsibility.8 (Id. at 232).
The parties dispute how Judge Ward instructed JCS employees on the terms to include in
the pre-signed orders. Both parties rely on testimony from Kidd regarding instructions placed on
sticky notes. (See Docs. # 470 at 5 & n. 13; 500 at 2). During her deposition, Kidd explained
that she would write oral instructions from Judge Ward to JCS in the written orders that had been
8

Colleen Ray also testified that JCS did not determine whether probationers it supervised were indigent,
although there was an indigent status indicator in its Probation Tracker software. (Doc. # 471-3 at 160-61).

14

pre-signed by him. (Doc. # 471-1 at 103-05). Additionally, when asked about discrepancies
between a fine issued by the Municipal Court and the record of that fine in JCS’s Probation
Tracker database, Kidd testified that she obtained the fine placed in Probation Tracker from a
sticky note a court magistrate attached to the court file. (Id. at 443-45). Although she scanned a
defendant’s probation order into Probation Tracker, she did not scan the Municipal Court’s order
on the charge or the sticky note with additional information into Probation Tracker. (Id. at 447).
Indeed, Kidd could not recall what happened to the sticky notes she relied on to determine the
fine amounts. (Id. at 511). Nor was she aware whether Probation Tracker had a function
allowing her to scan sticky notes into the electronic probation record. (See id. at 511-12). She
returned the sticky notes to the Municipal Court with the case file. (Id. at 512-13).
Kidd explained during her deposition that JCS employees sent delinquency letters to
probationers “as representative[s] of the Childersburg Municipal Court.” (See id. at 268-69).
She testified that the Municipal Court hired them to be “probation agents.” (Id. at 269). During
Judge Ward’s tenure with the Municipal Court, JCS employees drafted probation revocation
petitions if probationers had failed to comply with the terms of probation. (See id. at 123-24).
JCS informed the Municipal Court of the probationer’s payment history and missed
appointments. (Id. at 124). Then, JCS would select a date for a hearing and inform the
probationer of the hearing by mail “pursuant to the [Municipal Court].” (Id. at 127). A JCS
employee would determine whether the Municipal Court should hold a compliance hearing or a
revocation hearing, depending on whether the probationer had met his or her obligations. (Id. at
129-30).
JCS’s form revocation petitions informed the Municipal Court of the appointments a
probationer had missed and the amount owed to the City and to JCS. (See, e.g., Doc. # 537-1 at

15

2). JCS requested an arrest warrant from the Municipal Court “if necessary.” (See, e.g., id.).
The petitions included an order setting a hearing that purportedly was signed by the Municipal
Court’s judge or a Court magistrate. (See, e.g., id.). Some revocation-hearing orders informed
the probationer that the hearing could be cancelled if a payment was made.9 (See, e.g., id.). The
revocation-hearing orders suspended the probationer’s sentence “until a resolution [was]
decided.” (See, e.g., id.). JCS did not file the revocation petitions with the Municipal Court
before the scheduled revocation hearings, even though the revocation orders indicated that they
had been approved by the Municipal Court prior to the revocation hearing. (Doc. # 471-1 at
194).
JCS did send revocation petitions to probationers by mail. (Id. at 194). JCS also sent
notices to show cause to non-compliant probationers.10 (Id. at 197). A notice to show cause
would direct a probationer to appear at the Municipal Court and explain why he or she had failed
to pay the court-imposed fines and fees. (See, e.g., Doc. # 537-32 at 2). It warned a probationer
that an arrest warrant would be issued if he or she failed to appear at the hearing. (Id.). It
stipulated that the hearing could be cancelled if the probationer reported to JCS and paid a
certain amount. (Id.). These notices were not filed with the Municipal Court. (Doc. # 471-1 at
206). When letters or notices were returned to JCS’s office, Kidd sometimes attempted to locate
another address for the probationer by contacting the post office, contacting the Municipal Court,
or requesting an Accurint search. (Doc. # 471-31 at 7). JCS ceased to send notices of hearings
to probationers on behalf of the court four to six months before Kidd’s first deposition, which
9

Not all revocation-hearing orders included the option of cancelling the hearing by making a payment.
(See, e.g., Doc. # 524-9 at 2). In a deposition regarding the operation of another municipal court, Judge Ward
affirmed that JCS’s employees should not have the ability to determine how much a probationer needed to pay to
avoid a hearing before the sentencing court. (Doc. # 402-36 at 81).
10

JCS employees also prepared violation reports for the Municipal Court. (E.g., Doc. # 524-25 at 2). JCS
did not send these violation reports to the probationer. On at least one occasion, a JCS employee recommended
jailing a probationer until they paid what they owed. (Id.).

16

occurred in June 2014. (Doc. # 471-1 at 1, 126-27). Thus, JCS sent notices of revocation
hearings to probationers on behalf of the Municipal Court until after this suit commenced.
JCS did not conduct indigency determinations for probationers. (Doc. # 471-31 at 10). If
a probationer could not pay the fines and fees charged to her, Kidd would schedule a hearing
with the Municipal Court. (Id.). Kidd has stated that the Municipal Court provided “forms for
determining indigency.” (Id. at 11). Judge Ward has explained that he directed JCS to place
probationers on indigency status for probation if the probationer could not pay and he expected
JCS to “work with” such indigent probationers. (Doc. # 402-36 at 81). Moreover, he has
testified that the municipal courts he operated would dismiss a case if the probationer
“absolutely” could not pay the amounts owed. (Id.).
During revocation hearings, Kidd informed the judge about the probationer’s payment
history and the number of appointments missed. (Doc. # 471-1 at 123-24). She denies that she
ever recommended a disposition on any revocation petition during a revocation hearing. (Id. at
124). Although the length of revocation hearings varied, the longest revocation hearing Kidd
recalled at the Municipal Court lasted ten minutes. (Id. at 133).
If a petitioner failed to appear at a revocation hearing, the Municipal Court’s magistrate
often would issue a capias warrant. (See, e.g., Doc. # 471-26 at 2) (capias warrant issued after
Plaintiff Ray had failed to appear at a revocation hearing). The Municipal Court issued capias
warrants when a probationer had “failed to report, as ordered by the [Municipal] Court[,] on a
previous court date.” (Doc. # 471-1 at 312). Many of these warrants stated that a defendant had
been convicted of FTOCO charges. (See, e.g., Doc. # 471-26 at 2). (See also Doc. # 471-1 at
312-13) (explaining the failure to obey court order charge). The Municipal Court convicted a
probationer of this charge when the probationer failed to comply with an order directing

17

appearance at a hearing.

(Id. at 313).

According to the City’s attorneys, though, a City

employee searched through the City’s records and found no municipal ordinance criminalizing
failure to obey a court order.11 (Doc. # 402-35). The Municipal Court’s arrest warrants included
a cash bond that an arrestee had to pay to be released.12 (See, e.g., Doc. # 471-26 at 2). The Rule
56 record does not reveal (1) how FTOCO charges were initiated, (2) whether the Municipal
Court formally convicted defendants of FTOCO violations, (3) the sentences defendants received
for FTOCO convictions, and (4) whether those sentences included imprisonment terms.
Once a probationer failed to appear at a revocation hearing, a JCS employee placed the
probation sentence on warrant status in Probation Tracker. (Doc. # 471-1 at 272-73). JCS
employees did not confirm that a warrant had been issued before they changed a probationer’s
status from active to warrant. (Id. at 273). JCS’s involvement in the probationer’s case ceased
once the case entered warrant status. (Id. at 274). JCS did not charge probation supervision fees
while a probationer was in warrant status. (Id.). The probationer’s file stayed closed until a new
court date was set for the probationer or the probationer paid the amounts owed “in full directly
to the [Municipal] Court.” (Id.). In one case, though, the JCS probation file remained closed in
warrant status until May 2012, even though the probationer had been arrested in February 2012.
(Id. at 274-75) (discussing Timothy Fugatt’s probation sentence).
In some circumstances, a Municipal Court magistrate conducted a 72-hour hearing for a
probationer after he or she was arrested by City police. (See Doc. # 436-6 at 13) (describing a
72-hour hearing conducted at the Talladega County Jail for Johnny Norwood, Jr.). However,
11

Moreover, the arrest reports drafted by City police officers provide no citation to the ordinance arrestees
purportedly violated when failing to obey a court order, even though many of those reports cited other legal
provisions that the arrestee had violated. (See, e.g., Docs. # 392-36 at 2; 396-42 at 2; 392-57 at 2).
12

Misty Hepp, a magistrate for the Municipal Court, set that bail amount using a written schedule. (Doc. #
392-13 at 74-75). But, Hepp did not become a court clerk until September 2014, well after the warrants at issue in
this case were issued. (Id. at 27).

18

nothing in the Rule 56 record indicates that any of the named Plaintiffs received such a 72-hour
hearing, even though Plaintiffs Ray and Jews were imprisoned for more than 72 hours following
their arrests.13
E.

Probation of Plaintiffs Timothy and Kristy Fugatt

City police issued Kristy Fugatt two traffic tickets in November 2010 for driving with an
expired tag and an expired license. (Doc. # 392-66 at 14-15). Fugatt renewed her license (Doc.
# 392-6 at 105), and the Municipal Court only assessed court costs for each ticket, (Doc. # 39266 at 14-15). When Kristy Fugatt informed the Municipal Court judge that she could not pay the
full amount charged, he directed her to an intake area to “talk to JCS.” (Doc. # 392-6 at 105-07).
Fugatt signed an intake form stating that she would pay a certain amount. (Id. at 108-09). Fugatt
was placed on probation under JCS’s supervision. (See Doc. # 392-18 at 9) (stating that Kristy
Fugatt had been sentenced to 24 months’ probation in January 2011).
Timothy Fugatt received a traffic ticket in December 2010 for driving with an expired
vehicle tag. (Doc. # 392-66 at 11). The Municipal Court did not convict him of the traffic
offense but ordered him to pay court costs. (Id.). Timothy Fugatt testified that he had attempted
to inform the Municipal Court judge about his child’s terminal illness during the hearing but did
not get an opportunity to speak to the judge due to the speed of the proceedings. (Doc. # 392-7
at 74). Similar to his wife, the Municipal Court also sentenced Timothy Fugatt to 24 months’
probation under JCS’s supervision. (Doc. # 392-19 at 7).
In early 2011, JCS scheduled weekly probation appointments for the Fugatts; indeed, JCS
employees sometimes scheduled multiple appointments in one week if the Fugatts failed to show

13

According to Hepp, a Municipal Court magistrate, the Municipal Court began releasing imprisoned
probationers on their own recognizance in September 2014 if they had not paid bail when the 72-hour hearing
occurred. (Doc. # 392-14 at 120-21) (pages 415-16 of the deposition transcript). Hepp did not specifically testify
about the Municipal Court’s policies regarding 72-hour hearings before September 2014.

19

up at the office. (See Docs. # 537-24 at 7-8; 537-25 at 10-11). Timothy Fugatt told a JCS
employee in January 2011 that his child was terminally ill and that he could not make a payment
to JCS until he had received a tax refund. (Doc. # 537-25 at 9). The Fugatts did not appear at 11
of the 12 probation appointments scheduled by JCS in April, May, and June 2011.14 (See Docs. #
537-24 at 7-8; 537-25 at 10-11).
JCS issued revocation petitions for Kristy and Timothy Fugatt on June 28, 2011, which
comported with the form revocation petitions described above. (Docs. # 537-1 at 2; 537-2 at 2).
Timothy Fugatt’s revocation petition explained that he had failed to report to JCS for 16
scheduled appointments and had failed to pay $223 as ordered. (Doc. # 537-1 at 2). The
revocation petition explained that a payment of $223 would close his case. (Id.). It warned him
that a warrant would be issued if he failed to appear at the Municipal Court on August 11, 2011.
(Id.). Kristy Fugatt’s revocation petition averred that she had missed 17 scheduled appointments
and had failed to pay $371. (Doc. # 537-2 at 2). It explained that a payment of $371 would
close her case and that a warrant would be issued if she failed to appear at the probation
revocation hearing scheduled for August 11. (Id.). Timothy Fugatt testified that they likely

14

The parties dispute whether JCS employees mailed failure to report letters or delinquency letters to the
Fugatts. Defendants JCS and Correctional Healthcare assert that a JCS employee sent four failure to appear letters
and two delinquency letters to Plaintiffs Kristy Fugatt and Timothy Fugatt. (Doc. # 536 at 9) (citing Docs. # 537-26,
537-27, 537-28, and 537-29). Plaintiffs assert there is no evidence that the letters were placed in the mail. (Doc. #
567 at 7). And, Timothy Fugatt testified that he did not remember whether he received the letters. (Doc. # 537-19
at 108-09). The Probation Tracker records reveal that JCS employees sometimes noted in Probation Tracker when
they mailed some of the letters to the Fugatts. (See Doc. # 537-24 at 6) (note on April 25, 2011 that a JCS employee
was sending a failure to report letter). At other times, JCS employees placed a failure to report letter in the
Probation Tracker record without any notation or indication that the letter had been mailed to the probationer. (See
id.) (describing a failure to report letter written on May 24, 2011). Ultimately, the court finds that the dispute about
whether JCS mailed failure to report letters or delinquency letters does not concern a material issue of fact because
such a failure is not part of any cognizable due process claim.

20

would not have received the revocation petitions because their house had been foreclosed upon.15
(Doc. # 537-19 at 111).
The Municipal Court held revocation hearings for Kristy and Timothy Fugatt on August
11, 2011, but neither of them appeared at the hearings. (Docs. # 537-24 at 5-6; 537-25 at 7).
The Municipal Court issued warrants against them both in August 2011. (Id.). Both August
2011 arrest warrants stated that the Fugatts had been convicted of failure to obey a court order.
(Docs. # 537-33 at 2; 537-34 at 2). Timothy Fugatt’s warrant required him to pay $540 as a cash
bond in order to be released. (Doc. # 537-33 at 2). Kristy Fugatt’s warrant required her to pay a
cash bond of $688. (Doc. # 537-34 at 2).
A City police officer arrested the Fugatts on February 26, 2012. (Docs. # 537-36 at 2-3;
537-38 at 2-3); (Docs. # 402-27 at 3; 402-28 at 3) (Timothy and Kristy Fugatt testifying that the
officer arrested both of them on that date). The Fugatts were taken to the City’s police station
and placed in a holding cell. (Docs. # 402-27 at 3; 402-28 at 3). City police released them on
February 26th after they had paid $900 for a cash bond. (Id.).
JCS’s records indicate that in May 2012 the Municipal Court reinstated the Fugatts’
probation sentences. (Docs. # 537-24 at 5; 537-25 at 7). The Municipal Court issued a new
probation order against Timothy Fugatt based upon the FTOCO offense on April 26, 2012.
(Doc. # 537-3 at 2). This probation sentence ended on April 26, 2014. (Id.). Although the
15

The parties dispute whether the revocation petitions and related notices to show cause were mailed to
Plaintiffs Kristy and Timothy Fugatt. Defendants state that a JCS employee mailed the petitions to the Fugatts along
with notices to show cause. (Doc. # 536 at 9). They cite a notice to show cause in the Rule 56 record, which
instructed Kristy Fugatt “to appear in [the Municipal] Court on August 11, 2011 . . . to explain why you have failed
to pay fine and costs as ordered by this court.” (Doc. # 537-32 at 2). Plaintiffs dispute that the petitions and notices
to show cause were mailed to them. (Doc. # 567 at 8). In support, they note that (1) the Fugatts do not recall
receiving the documents, and (2) the notice to show cause was unsigned and undated. (Doc. # 537-32 at 2).
Notably, on several occasions, JCS employees recorded in the Probation Tracker record when documents were
mailed to a probationer, but they did not note on the Fugatts’ probation records that the June 2011 revocation
petitions had been placed in the mail. (See, e.g., Doc. # 537-24 at 6). Given the parties’ dispute about this issue, the
court has not accepted (for purposes of Rule 56) JCS’s statement that it mailed the revocation petitions and notices
to show cause to the Fugatts in August 2011.

21

Municipal Court actually issued a new probation order for a different offense, JCS’s records state
that the court reinstated Timothy Fugatt’s probation for the expired tag offense adjudicated in
January 2011. (Doc. # 537-24 at 5). JCS also recalculated the probation date for that offense
from January 2011 to May 1, 2014.16 (Id.). Similarly, the Municipal Court also reinitiated Kristy
Fugatt’s earlier probation sentence and added a $317 warrant fee.

(Doc. # 537-4 at 2).

Moreover, the Municipal Court fined Kristy Fugatt $168 for a speeding offense. (Id.). The Rule
56 record does not indicate whether she received the speeding ticket for which she was fined.
JCS placed Kristy Fugatt’s May 2012 probation sentence on hold. (Doc. # 537-41 at 2). JCS
prepared revocation petitions and notices to show cause against Kristy and Timothy Fugatt in
August 2012. (See Docs. # 537-24 at 4; 537-25 at 5). Timothy Fugatt called JCS on August 28,
2012 and confirmed that he had received the paperwork that was mailed to him. (Doc. # 537-24
at 4). A JCS employee told him that he could report to JCS on August 31 or September 7, but he
did not show up to JCS’s office on either of those dates. (See id.).
The Municipal Court cancelled revocation hearings concerning the Fugatts on September
13, 2012. (Docs. # 537-24 at 4; 537-25 at 5). According to Kidd’s notes in Probation Tracker,
Timothy Fugatt called her and demanded a new court date because he believed the revocation
hearings were set for 1:30 P.M. (Doc. # 537-24 at 4). He spoke with a Municipal Court
employee before calling JCS, but the employee told him that JCS was responsible for deciding
whether to set a new court date. (Id.). Kidd generated new revocation petitions and notices to
show cause and mailed them to the Fugatts on September 19. (See Docs. # 537-24 at 4; 537-25
at 5).

16

The Rule 56 record does not indicate whether JCS created a separate Probation Tracker entry for the
probation sentence Timothy Fugatt received in April 2012.

22

The Fugatts appeared before the Municipal Court on October 11, 2012. (See Doc. # 53724 at 4). They explained their financial situation to Judge Ward, who commented that they were
“using [their] son as an excuse not to pay for [their] fines.” (Doc. # 537-23 at 234). They filled
out a hardship form to explain their financial situation, and JCS agreed to “waive the fees after
[the Fugatts] paid $200.” (Id. at 235). JCS also agreed that the Fugatts could report to a
probation officer in Sylacauga, Alabama because they were being required “to drive to
Childersburg every four days even if [they] couldn’t pay anything.” (Id. at 236). But, Timothy
Fugatt called Kidd on October 31, 2012 and informed her that he could not make the payment
because he had to pay approximately $1500 for other bills. (Doc. # 537-24 at 3). Kidd contacted
a Municipal Court magistrate about the issue, and the Municipal Court mailed subpoenas for the
Fugatts to appear on November 7. (Docs. # 537-24 at 3; 537-25 at 4-5). The Municipal Court
issued warrants against the Fugatts in November 2012 after they failed to appear in court. (Docs.
# 537-24 at 3; 537-25 at 4).
Timothy Fugatt appeared at the Municipal Court in December 2012 and agreed to pay
$100 towards the amounts his wife and he owed. (Doc. # 537-24 at 3). He told the court that he
would pay the fines off with a tax refund. (Id.). The Municipal Court then reinstated the
Fugatts’ probation sentences in January 2013. (Docs. # 537-24 at 3; 537-25 at 4). JCS placed
Kristy Fugatt’s probation sentence on unsupervised status in January 2013, after JCS and the
Municipal Court had been informed of the present lawsuit. (Doc. # 537-25 at 4). It placed
Timothy Fugatt’s probation sentence on hold in February 2013 after consulting with a magistrate
at the Municipal Court. (Doc. # 537-24 at 3). Ultimately, the Municipal Court terminated the
Fugatts’ probation sentences on November 1, 2014, during the pendency of this action. (See
Doc. # 537-25 at 4).

23

F.

Probation of Plaintiff Deunate Jews

Plaintiff Jews was charged with harassment in 2008. (See Doc. # 392-27 at 2). The
Municipal Court dismissed the harassment charge against Jews in January 2009, subject to
conditions that Jews (1) pay court costs to the Municipal Court and (2) avoid contact with the
complainant. (Id.). During a deposition, Jews claimed that he had contested the Municipal
Court’s authority to impose court costs against him when the criminal charge against him had
been dismissed. (Doc. # 524-5 at 50). Judge Ward responded that he would “lock [Jews] up”
unless he signed a probation order. (Id. at 50-51). Jews did not ask Judge Ward any more
questions because he believed that the judge would imprison him if he “said any little thing.”
(Id. at 51). Jews was unable to pay the assessed court costs on the date of the hearing. (Id. at
52).
After signing a probation order, Jews advised a JCS employee that he would not report to
JCS’s probation office because the Municipal Court had forced him to sign the probation order.
(Id. at 56). He informed the JCS employee that he would not pay the imposed court costs
because his case had been dismissed. (Id. at 59). Moreover, he provided JCS the address for his
uncle’s residence, rather than his own address. (Id. at 60). He submitted this address to JCS
because he did not plan to pay what the Municipal Court had directed him to pay. (Id. at 60-61).
Consequently, Jews did not receive a letter that JCS sent to him on January 27, 2009. (Id. at 5960).
The Municipal Court held a revocation hearing in Jews’s case on February 12, 2009, but
Jews did not appear at the hearing.17 (Doc. # 524-22 at 6). The Municipal Court’s magistrate

17

The parties dispute whether JCS provided Jews prior notice of the revocation hearings scheduled with
the Municipal Court. Jews’s Probation Tracker record does not indicate whether JCS employees sent the revocation
petitions and notices to show cause to him. (See Doc. # 524-22 at 6). In contrast, as discussed above, Kidd
occasionally noted in Probation Tracker when she mailed documents to the Fugatts. Given the parties’ dispute

24

issued a capias warrant against Jews on February 17, 2009 for failure to obey a court order.
(Doc. # 392-35 at 2). The warrant directed Jews to pay a bond of $487 to be released. (Id.).
Jews was arrested in September 2009. (Doc. # 392-36 at 3). In October 2009, the Municipal
Court reinstated Jews’s probation sentence and charged him a $317 warrant fee. 18 (Doc. # 52422 at 6). The Court’s probation order sentenced Jews to probation for FTOCO. (Doc. # 524-6 at
2). Jews was released from the Talladega County Jail on October 22, 2009. (Doc. # 382-11 at
65).
JCS petitioned the Municipal Court to revoke Jews’s probation again in December 2009.
(Doc. # 524-22 at 5). The Municipal Court held a revocation hearing in January 2010, and Jews
did not appear at the hearing. (Id.). A magistrate issued another capias warrant against Jews
based on a conviction for FTOCO. (Doc. # 392-45 at 2). This arrest warrant increased his bond
amount to $935. (Id.). City police arrested Jews on August 18, 2010. (Doc. # 392-46 at 2). On
September 9, 2010, the Municipal Court fined Jews $317 for the failure-to-obey offense and
reinstated his probation. (Doc. # 392-38 at 2). Hepp again authorized Jews’s release from the
Talladega County Jail on September 9th. (Doc. # 382-11 at 67).
In November 2010, JCS filed another revocation petition against Jews. (Doc. # 524-22
at 5). Jews did not appear at the Municipal Court’s December 2010 revocation hearing in his
case.

(Id.). The Municipal Court issued another capias warrant against Jews based on a

conviction for FTOCO, and he was arrested on January 10, 2011. (Doc. # 392-50 at 2-3). A
City employee, Misty Hepp, authorized Jews’s release from jail on January 14, 2011, after a

regarding whether JCS mailed the revocation petitions and notices to show cause to Plaintiffs, the court has not
accepted Defendants’ averments (for purposes of Rule 56) that JCS employees mailed these notices.
18

The Municipal Court issued a separate probation order for Jews on this date. (Doc. # 392-37 at 2). But
JCS’s records indicate that the court merely reinstated his prior probation term. (Doc. # 524-22 at 6).

25

$500 bond had been paid on his behalf. (Doc. # 392-51 at 2). The Municipal Court reinstated
Jews’s probation sentence in March 2011 and charged him a $317 warrant fee. (Doc. # 524-22
at 5).
In May 2011, JCS again petitioned the Municipal Court to revoke Jews’s probation.
(Doc. # 392-54 at 2). The revocation petition asserted that Jews owed $773 to close his case.
(Id.). A JCS employee and Judge Ward signed the petition, but the City’s prosecutor did not sign
it. (Id.). Yet again, Jews did not appear at a revocation hearing in June 2011. (Doc. # 524-22 at
4). On June 10, 2011, the Municipal Court’s magistrate issued another warrant against Jews
based on a conviction for failure to obey a court order. (Doc. # 392-56 at 2). This warrant
required Jews to pay $1,090 in bail to be released. (Id.). A City officer arrested Jews in
February 2012 after detaining him to check for outstanding warrants. (Doc. # 392-57 at 2-3).
Jews fled from the officer and was detained for resisting arrest and failure to obey a court order.
(Id.).
According to Jews’s Probation Tracker records, during a March 2012 hearing, the
Municipal Court reinstated Jews’s probation. (Doc. # 524-22 at 4). The Court issued another
probation order for the resisting arrest and FTOCO charges. (Doc. # 392-58 at 2). This order
recounted fines of $717 for resisting arrest and $1,090 for FTOCO. (Id.). And, it placed Jews on
probation until March 8, 2014. (Id.). The City’s police department released Jews from jail on
March 8, 2012. (Doc. # 382-12 at 13). In May 2012, JCS recalculated Jews’s probation
expiration date for the 2009 probation order stemming from the harassment charges. (Doc. #
524-22 at 4). It stated that his probation on that charge actually was due to end on March 9,
2014. (Id.).

26

In June 2012, JCS requested that the Municipal Court revoke Jews’s probation. (Doc. #
524-22 at 3). The revocation petition was not signed by a JCS employee, and the order directing
a hearing was not signed by the Municipal Court’s judge. (Doc. # 392-59 at 2). The Municipal
Court held a revocation hearing in August 2012; again, Jews did not attend that hearing. (Doc. #
524-22 at 3).

According to JCS’s probation records, the probation sentence entered warrant

status on August 10, 2012. (Id. at 2). The Municipal Court ultimately terminated Jews’s
probation sentence in December 2014, during the pendency of this action. (Doc. # 382 at 114).
G.

Probation of Plaintiff Gina Kay Ray

In June 2010, a City officer ticketed Ray for driving with a suspended license and without
proof of insurance. (Doc. # 423-4 at 2). Ray pled guilty to both charges during a Municipal
Court hearing on August 12, 2010. (Id. at 3). Ray testified that a public defender attended the
hearing, but she (Ray) did not believe that an attorney would assist her with a traffic ticket.
(Doc. # 471-7 at 38-39). Ray does not think that Judge Ward identified the public defender
during the hearing. (Id. at 39). Judge Ward imposed a three-day suspended imprisonment term
for each conviction, along with a 24-month probationary sentence. (Doc. # 423-4 at 3). Ray was
unable to recall whether Judge Ward mentioned the suspended imprisonment term during the
hearing. (Doc. # 471-7 at 43-44). Judge Ward fined Ray $400 for each traffic offense, imposed
$198 in court costs for the suspended license offense, and imposed $148 in court costs for the no
insurance offense. (Doc. # 423-4 at 3).
According to JCS’s probation records, JCS prepared a revocation petition against Ray on
September 20, 2010.19 (Doc. # 423-11 at 8). The revocation petition contained in the Rule 56
record was not signed by the probation officer or the Municipal Court’s judge. (See Doc. # 42319

As with Plaintiff Jews, Plaintiff Ray’s Probation Tracker records do not indicate whether JCS mailed the
September 2010 revocation petition to her. (See Doc. # 423-11 at 8). But, her Probation Tracker records state that
Kidd mailed petitions and notices to Ray in January 2012 and August 2012. (Id. at 3-4).

27

8 at 2). The Municipal Court held a revocation hearing on October 14, 2010, which Ray
attended. (Doc. # 423-11 at 8). JCS issued another revocation petition on December 30, 2010,
based on Ray’s failure to attend probation sessions, pay assessed court fines and fees, and pay
probation fees. (Doc. # 423-14 at 2). The Municipal Court held a revocation hearing for Ray on
January 13, 2011, but she failed to appear. (Doc. # 423-11 at 7). Consequently, on January 18,
2011, the Municipal Court’s magistrate issued a capias warrant premised upon a FTOCO
conviction. (Doc. # 423-15 at 2). The warrant provided for a bond of $1,353. (Id.).
Ray was arrested on January 19, 2011. (See Doc. # 455-5). She remained in the
Talladega County Jail until February 10, 2011. (See id.). The Municipal Court reinstated Ray’s
probation on February 10, 2011, and imposed a $317 warrant fee. (Doc. # 423-17 at 2). In June
2011, a City officer ticketed Ray for driving with an expired tag and a revoked license. (Doc. #
423-31 at 2). Ray pled guilty to both offenses in July 2011. (Id. at 3). The Municipal Court
imposed 5-day suspended imprisonment sentences, 24 months of probation, fines totaling $500,
and court costs totaling $346 for the two convictions. (Id.). In August 2011, Ray was again
charged with driving with a revoked license and an expired tag. (Doc. # 423-28 at 2). As with
her earlier tickets, the Municipal Court imposed a 5-day suspended imprisonment sentence for
the expired-tag offense, 24 months of probation for the expired-tag offense, fines totaling $500,
and court costs totaling $346. (Id. at 3).
On January 4, 2012, a JCS employee found that Ray had violated her probation because
she owed the City $1,008 in fines and costs and JCS $433 in fees.20 (Doc. # 423-11 at 4). The
20

The parties dispute whether JCS sought to revoke Ray’s probation in January 2012 based on her failure
to attend scheduled probation appointments. Plaintiffs state that Ray “attended over 20 JCS appointments” and had
paid over $3,000 towards her probation obligations. (Doc. # 454 at 6). Defendants state that a JCS employee relied
on Ray’s failure to attend scheduled appointments to support a revocation petition. (Doc. # 470 at 14). JCS’s
probation records for Ray suggest that its request to revoke her probation was based solely on the amount she owed,
as the probation notes did not mention Ray’s failure to appear at scheduled meetings as a rationale for revoking her
probation. (Doc. # 423-11 at 4) (“THE DEF IS IN VIOLATION OF PROBATION DUE TO OUTSTANDING

28

Municipal Court held a revocation hearing on February 9, 2012 that Ray did not attend. (Id.).
Thus, the Municipal Court’s magistrate issued a capias warrant against Ray for FTOCO. (Doc. #
423-23 at 2). The warrant provided a bail amount of $3,173. (Id.). On April 21, 2012, City
police officers detained Ray because they suspected that she had an active warrant. (Doc. # 42324 at 2-3). She fled from the officers in her car until she was blocked in by traffic. (Id. at 3).
The officers issued her tickets for driving with an expired tag, driving with a revoked license,
and attempted escape. (Doc. # 423-27 at 2, 4).
Ray was held in jail from April 21, 2012 to May 1, 2012 on the charge of FTOCO. (Doc.
# 455-7). On April 26, 2012, the Municipal Court reinstated Ray’s probation and imposed a
$317 warrant fee. (Doc. # 423-25 at 2). The court’s probation order stated that Ray owed
$3,173 in costs. (Id.). The order stated that Ray could not be released from jail until $300 had
been paid on her behalf. (Id.). Ray was released from jail on May 1, 2012 after someone paid
the $300. (Doc. # 471-7 at 149).
In June 2012, Ray pled guilty to driving with an expired tag, driving with a revoked
license, and attempting to escape. (Doc. # 423-27 at 3, 5). The Municipal Court sentenced Ray
to a 5 day suspended incarceration sentence, along with 24 months’ probation, for each
conviction. (Id.). It fined her $400 for driving with a revoked license, $400 for attempting to
flee, and $100 for driving with an expired tag. (Id.). It also imposed a total of $444.00 in court
costs against Ray. (Id.).
JCS again requested that the Municipal Court revoke Ray’s probation in August 2012 due
to the outstanding fines and fees she owed to JCS and the City. (Doc. # 423-11 at 3). The
Municipal Court held a revocation hearing in September 2012 and issued a warrant against Ray
[FEES AND FINES] TO THE CITY OF 1008.00/$433.00 JCS FEES, TOTALING $1441.00.”). At a minimum,
there is a genuine factual dispute as to JCS’s asserted reason for seeking a revocation hearing against Ray in January
2012.

29

after she had failed to appear at the hearing. (Id.). Ray’s probation sentence was terminated by
court order on November 1, 2014. (Doc. # 422 at 11).
III.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file -- designate specific facts showing that there is a genuine issue for trial.
Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.
Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.

30

When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson
teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the
complaint; instead, as the party bearing the burden of proof at trial, she must come forward with
at least some evidence to support each element essential to her case at trial. See Anderson, 477
U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not
rest upon the mere allegations or denials of [her] pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477
U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents
a sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).

31

IV.

Analysis
The court addresses the parties’ summary judgment arguments below.
A.

Plaintiffs’ Claims for Declaratory and Injunctive Relief

Defendants initially argue that Plaintiffs lack standing to seek the declaratory and
injunctive relief requested in the Fourth Amended Complaint. (Doc. # 470 at 44). They claim
that standing no longer exists for the declaratory and injunctive relief sought because (1) the
JCS-City Contract has been terminated, (2) JCS no longer operates in the state of Alabama, (3)
the Municipal Court has adopted new policies and procedures addressing the alleged procedural
deficiencies in this action, and (4) the Municipal Court has appointed new personnel. (Id.).
Thus, according to Defendants, Plaintiffs cannot show that the conduct of which they complain
will occur in the future. (Id. at 45).
Plaintiffs respond that the court should adopt its ruling on the requests for declaratory and
injunctive relief in a case related to this one. (Doc. # 500 at 45) (referencing Woods, et al. v. City
of Columbiana, et al., Case No. 2:15-cv-00493-RDP, Docs. # 88 & 89). In Woods, the court
dismissed the plaintiffs’ requests for declaratory and injunctive relief “based upon future harm”
without prejudice, “subject to repleading if [JCS] reenters business in the state of Alabama.”
(Case No. 2:15-cv-00493-RDP, Doc. # 88). The court explained during a hearing in that case
that the plaintiffs could seek a ruling on whether a contract between JCS and a municipal
defendant was void from its inception, to the extent that such a ruling was relevant to a legal
claim. (Id., Doc. # 89 at 18). But, the court declined to allow plaintiffs to seek a declaratory
judgment that the contract was void and unenforceable because the parties had agreed that the
contract at issue was no longer in place and that JCS no longer operated in the state of Alabama.
(Id.).

32

To establish standing for injunctive relief, a plaintiff must show “a real and immediate—
as opposed to a merely conjectural or hypothetical—threat of future injury.” Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir. 2013) (emphasis in original) (quoting Shotz
v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001), and Wooden v. Bd. of Regents of Univ. Sys. of
Ga., 247 F.3d 1262, 1284 (11th Cir. 2001)). A plaintiff seeking declaratory relief from a federal
court also must show “a reasonable expectation that the injury they have suffered will continue
or will be repeated in the future.” Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342,
1347 (11th Cir. 1999). A party’s Article III standing to bring suit is determined by whether it
had standing at the time of filing. Focus on the Family v. Pinellas Suncoast Transit Auth., 344
F.3d 1263, 1275 (11th Cir. 2003). In this case, the court has already concluded that Plaintiffs
had standing to seek prospective injunctive relief at the time this suit was filed in 2012. (See
Doc. # 67 at 25-26). Thus, Defendants’ request to dismiss the declaratory and injunctive counts
for lack of standing is due to be denied.
Mootness addresses justiciability concerns arising from factual changes that occur after a
case’s filing. “[M]ootness can be described as the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commencement of the litigation (standing) must
continue throughout its existence (mootness).” Strickland v. Alexander, 772 F.3d 876, 887 (11th
Cir. 2014) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
189 (2000)). Defendants JCS and Correctional Healthcare appear to rely on JCS’s voluntary
cessation of operation in Alabama to justify mooting the claims for declaratory and injunctive
relief.21 “It is well settled that ‘a defendant's voluntary cessation of a challenged practice does

21

The Rule 56 record does not conclusively demonstrate whether JCS’s decision to stop operations in the
state of Alabama was voluntary or involuntary. JCS involuntarily ceased operations in Childersburg because the
city council terminated the JCS-City Contract. (Doc. # 392-63 at 2). But, JCS has not explained why it ceased
operations in other Alabama jurisdictions.

33

not deprive a federal court of its power to determine the legality of the practice.’” Friends of the
Earth, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289
(1982)). Nevertheless, a case may be moot due to a private defendant’s voluntary cessation of
conduct “if subsequent events [make] it absolutely clear that the allegedly wrongful behavior
[cannot] reasonably be expected to recur.” Id. (quoting United States v. Concentrated Phosphate
Export Ass’n, 393 U.S. 199, 203 (1968)).
Here, Plaintiffs have asked the court to extend the mootness decision rendered in a
related case to the present case.

The court concludes that this request is appropriate.

Accordingly, the court concludes that the requests for declaratory and injunctive relief in
Plaintiffs’ Fourth Amended Complaint are due to be dismissed without prejudice as moot,
subject to repleading if Defendant JCS reenters business in the state of Alabama. To be clear,
this ruling does not prevent Plaintiffs from seeking to support a damages claim by asking the
court to rule that particular conduct was illegal.

Indeed, the court addresses all three of

Plaintiffs’ partial summary judgment motions, which request such rulings, below.
B.

Analysis of Plaintiffs’ Damages Claims

Plaintiffs present three issues on which they believe they are entitled to summary
judgment. First, they argue that the court should summarily declare JCS’s probation supervision
practices for the Municipal Court as unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment. (See generally Doc. # 425). Second, they argue that the court should
declare the JCS-City Contract to be void from its inception. (See generally Doc. # 427). Third,
they claim that the court should declare void any probation sentence initiated by a blank order or
premised upon an offense that was not adjudicated by the Municipal Court’s judge. (See
generally Doc. # 545).

34

Defendants JCS and Correctional Healthcare present a number of reasons why they
contend they are entitled to summary judgment. The court begins its analysis by discussing the
general defenses presented to the § 1983 claims at the core of this case. Because none of those
defenses resolve all of the § 1983 claims, the court will also discuss whether Plaintiffs have
presented a triable § 1983 claim based on a due process, Fourth Amendment, Sixth Amendment,
Eighth Amendment, or equal protection violation. Next, the court will address whether Plaintiffs
have presented a triable § 1983 conspiracy claim. Finally, the court will discuss Plaintiffs’
partial summary judgment motion, which seeks to declare the JCS-City Contract void.
1.

Quasi-Judicial Immunity

Defendant JCS argues that it is entitled to “absolute quasi-judicial immunity” because it
followed orders and directives from the Municipal Court when it performed functions relating to
Plaintiffs’ judicial proceedings. (Doc. # 470 at 28). JCS insists that the Municipal Court
directed JCS employees to draft and promulgate all of the documents at issue in this case,
including probation orders, petitions for revocation, failure-to-report letters, and probationviolation letters. (Id. at 30-31). Moreover, it claims that the Municipal Court instructed or
requested its employees to enforce the conditions of probation mandated by the court. (Id. at
33).

It emphasizes that Alabama law permitted JCS employees to seek reports from

probationers, issue written reports to the Municipal Court, use suitable methods to improve
probationers’ conduct, and initiate probation revocation proceedings. (Id. at 33-34).
Plaintiffs contend that JCS has mischaracterized the debt collection functions it
performed for the City as “probation services.” (Doc. # 500 at 36). They argue that JCS
performed administrative functions, rather than judicial functions, because (1) its employees
operated a “highly systemic post-adjudication collection system,” (2) the documents sent to

35

probationers were form documents provided by JCS, (3) none of the documents sent by JCS
were filed in court records, and (4) JCS marketed its services to municipalities as fine collection
services. (Id. at 37-38). Plaintiffs further emphasize that the Municipal Court’s judge signed
blank probation orders prior to any adjudication, JCS employees filled in those probation orders,
and JCS employees often included fines levied years earlier against the probationer in later
probation orders. (Id. at 38). And, they insist that JCS employees exceeded the authority
provided to probation officers because they threatened to imprison probationers who failed to
pay on time and manipulated payments made by probationers to prolong probation terms. (Id. at
39-40).
As outlined above, the parties’ briefs have focused on whether JCS’s employees
committed or assisted in adjudicative acts. But, the quasi-judicial immunity question ultimately
turns on a more fundamental inquiry: whether a private corporation can seek quasi-judicial
immunity from § 1983 claims premised upon policies or customs that caused its employees to
violate individuals’ constitutional rights.
“Absolute quasi-judicial immunity derives from absolute immunity.” Roland v. Phillips,
19 F.3d 552, 555 (11th Cir. 1994). Under this immunity doctrine, “[n]onjudicial officials are
encompassed by a judge’s absolute immunity when their official duties ‘have an integral
relationship with the judicial process.’” Id. (quoting Ashbrook v. Hoffman, 617 F.2d 474, 476
(7th Cir. 1980)). To receive quasi-judicial immunity, an official must act within the scope of his
or her authority.

Id.

Courts review whether a nonjudicial official receives quasi-judicial

immunity “through a functional analysis of the action taken by the official in relation to the
judicial process.” Id. (emphasis in original).

36

As several courts have explained, quasi-judicial immunity is a defense to individual
capacity § 1983 suits, but not official capacity suits. VanHorn v. Oelschlager, 502 F.3d 775, 779
(8th Cir. 2007) (holding that commissioners for the Nebraska State Racing Commission could
not receive quasi-judicial immunity in their official capacities); Alkire v. Irving, 330 F.3d 802,
810-11 (6th Cir. 2003) (explaining that a sheriff and county judge could not claim quasi-judicial
or qualified immunity for official-capacity § 1983 claims); Dotzel v. Ashbridge, 438 F.3d 320,
327 & n. 5 (3d Cir. 2006) (explaining, in a footnote, that official capacity claims against
members of a township’s board of supervisors are not subject to quasi-judicial immunity, even
though the board members were entitled to quasi-judicial immunity in their individual
capacities). When a private corporate entity contracts with a public entity to offer functions
“traditionally within the exclusive prerogative of the state[,] . . . it becomes the functional
equivalent of [a] municipality.” Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997). In other
words, a suit against such a corporate entity is an official capacity suit. See Kentucky v. Graham,
473 U.S. 159, 165-67 (1985) (explaining that an official capacity § 1983 suit is one “against an
entity of which an officer is an agent” and that personal immunity defenses are unavailable in
such suits). Because Plaintiffs are not suing Defendants JCS or Correctional Healthcare in an
individual capacity, Defendants cannot seek quasi-judicial immunity.22 Cf. Swann v. S. Health
Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004) (explaining that the rationale against
immunity for municipalities “is applicable in § 1983 suits against non-governmental entities not

22

The Middle District of Tennessee recently concluded -- in an analogous action against a for-profit
probation servicer and other defendants -- that for-profit corporations are not entitled to claim the defense of quasijudicial immunity because (1) courts generally have declined to extend immunity to private contractors, (2) the
public interest is not served by extending immunity to for-profit entities, and (3) the corporation is not equivalent to
the employee of the corporation who performs a task integral to the judicial process. Rodriguez v. Providence Cmty.
Corr., Inc., 191 F. Supp. 3d 758, 767-68 (M.D. Tenn. 2016).

37

entitled to qualified immunity”), overruled on other grounds as explained in Randall v. Scott,
610 F.3d 701, 709-10 (11th Cir. 2010).23
Indeed, both the Fourth Amended Complaint and the summary judgment briefs
demonstrate that this action is an official capacity suit. Plaintiffs allege in their Fourth Amended
Complaint that JCS established a “highly systemized and uniform” policy for collecting court
fines, costs, and fees during their performance of delegated administrative and judicial functions.
(See Doc. # 305 at ¶¶ 16, 18). Moreover, Plaintiffs’ operative complaint explains that JCS’s
uniform system (i.e., its policy or practice) caused Municipal Court defendants and probationers
to suffer the constitutional violations at issue in this action. (Id. at ¶¶ 97, 161, 181, 218, 223,
246-48). Additionally, Defendants JCS and Correctional Healthcare rely on Buckner and Monell
v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), to argue that
Plaintiffs need to prove that a custom or policy caused the constitutional violations. In response,
Plaintiffs have pointed to evidence that JCS instituted a system that was such a custom or policy.
(Doc. # 500 at 43-45). From these allegations and arguments, the court concludes that this is an
official capacity suit against JCS and Correctional Healthcare, subject to the elements for such
suits identified in Monell.
By way of their pleadings, which have joined the issues in this case, the parties have
picked the rules of this game, and quasi-judicial immunity appears nowhere in those rules.
Therefore, Defendants’ request for quasi-judicial immunity is due to be denied.

23

In Swann, the parties agreed that a private corporate defendant was not eligible to receive qualified
immunity. 388 F.3d at 837.

38

2.

Qualified Immunity

Defendants JCS and Correctional Healthcare have requested qualified immunity from
Plaintiffs’ § 1983 claims. (Doc. # 523 at 28-30). They claim that JCS’s employees conducted
court-appointed tasks as part of their discretionary functions. (Id. at 28-29). Additionally, they
assert that JCS’s employees acted within their lawful powers as probation officers. (Id. at 29).
Finally, they claim that the named Plaintiffs, such as Plaintiff Jews, have not presented a
violation of any clearly established constitutional right.

(Id.).

For example, JCS and

Correctional Healthcare state that no clearly established law required JCS to provide an
indigency hearing to a probationer under its supervision. (Id.). Nor was it clearly established
that JCS violated Plaintiff Jews’s rights by sending him notice of a revocation hearing through
first-class mail. (Id.). In a footnote, JCS and Correctional Healthcare summarily aver that
private entities are eligible to receive qualified immunity. (Id. at 28 n. 171).
Plaintiffs respond that JCS is not entitled to claim qualified immunity because it was
operating as a private, for-profit company under a contract with the City. (Doc. # 530 at 37-38).
Moreover, Plaintiffs insist that JCS and its employees violated Plaintiffs’ clearly established
constitutional rights. (Id. at 38). For example, they contend that JCS violated Plaintiff Jews’s
clearly established rights by providing no notice at all before initiating probation revocation
proceedings in the Municipal Court. (Id.).
As with Defendants’ quasi-judicial immunity claim, a threshold issue is whether JCS and
Correctional Healthcare are entitled to even assert a qualified immunity defense. The Eleventh
Circuit has provided a clear answer to this question: Private corporations that enter contracts to
provide traditionally public services are functionally equivalent to municipalities for purposes of
§ 1983 suits, Buckner, 116 F.3d at 452, and, like municipalities, they are not entitled to claim

39

qualified immunity. See Swann, 388 F.3d at 837. Therefore, Defendants’ claim that they are
entitled to qualified immunity is due to be denied.
3.

Rooker-Feldman Doctrine

JCS and Correctional Healthcare argue that the court should grant summary judgment on
the basis of the Rooker-Feldman doctrine because Plaintiffs are attacking the validity of the
Municipal Court’s orders and judgments. (Doc. # 470 at 37-38). According to Defendants,
Plaintiffs’ claims center on the obligations directed in the probation orders and the arrest
warrants issued by the Municipal Court. (Id.).
Plaintiffs respond that they are not challenging the Municipal Court’s adjudication of the
charges against them. (Doc. # 500 at 41-42). Rather, they contest the unconstitutional conduct
resulting from the probation sentences they received because of their “inability to pay
immediately.” (Id. at 42).
“The Rooker-Feldman doctrine places limits on the subject-matter jurisdiction of federal
district courts and courts of appeal over certain matters related to previous state court litigation.”
Cormier v. Horkan, 397 F. App’x 550, 552 (11th Cir. 2010) (quoting Goodman ex rel. Goodman
v. Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001)). The Rooker-Feldman doctrine provides that
federal district courts lack authority to review “final judgments of a state court.” Lozman v. City
of Riviera Beach, Fla., 713 F.3d 1066, 1072 (11th Cir. 2013) (quoting Nicholson v. Shafe, 558
F.3d 1266, 1271 (11th Cir. 2009)). This narrow doctrine forecloses federal review of “cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
See also id. at 293 (describing the “paradigm situation” for Rooker-Feldman preclusion as one

40

where a plaintiff seeks “to undo the [state-court] judgment in its favor”). According to the
Supreme Court, Rooker-Feldman does not prevent a party from litigating a matter previously
litigated in a state court proceeding. Id. at 293. Indeed, the Supreme Court has expressly
recognized that state-law preclusion, rather than Rooker-Feldman preclusion, should be
considered when analyzing an independent claim from that raised in a state court that “denies a
legal conclusion that a state court has reached in a case to which [the plaintiff] was a party.” Id.
(quoting GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)).
Nevertheless, after Exxon Mobil, the Rooker-Feldman doctrine continues to bar “federal
court jurisdiction where the issue before the federal court [is] ‘inextricably intertwined’ with the
state court judgment so that (1) the success of the federal claim would ‘effectively nullify’ the
state court judgment, or that (2) the federal claim would succeed ‘only to the extent that the state
court wrongly decided the issues.’” Alvarez v. Att’y Gen. of Fla., 679 F.3d 1257, 1262-63 (11th
Cir. 2012) (explaining that the inextricably intertwined standard continues to apply after the
Supreme Court’s narrowing of the Rooker-Feldman doctrine in Exxon Mobil and Lance v.
Dennis, 546 U.S. 459 (2006)) (quoting Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009)).
In Alvarez, the Eleventh Circuit held that the Rooker-Feldman doctrine barred a state prisoner
from challenging a state court’s denial of post-trial DNA testing through a § 1983 claim.
Alvarez, 679 F.3d at 1263. It distinguished Alvarez’s as-applied challenge to the state court’s
handling of his particular motion for post-trial testing from a § 1983 challenge to a state’s DNA
access statute, which would not be barred by the Rooker-Feldman doctrine. Id. (distinguishing
Alvarez’s case from the § 1983 action considered by the Supreme Court in Skinner v. Switzer,
562 U.S. 521 (2011)).

41

The Rooker-Feldman doctrine does not apply in situations where the plaintiff lacked a
“reasonable opportunity to raise his federal claim in state proceedings.” Powell v. Powell, 80
F.3d 464, 467 (11th Cir. 1996). For example, a plaintiff’s Takings Clause claim against a
government entity for a regulatory taking is not barred by Rooker-Feldman due to the plaintiff’s
appeal of the initial regulatory decision because the plaintiff cannot raise a Takings Clause claim
until the regulatory decision denying the property interest is final. Agripost, Inc. v. Miami-Dade
Cty., ex rel. Manager, 195 F.3d 1225, 1233 (11th Cir. 1999).
Here, by and large, Plaintiffs’ § 1983 claims do not challenge the probation orders or
sentences imposed by the Municipal Court.

Rather, they are challenging the policies and

practices of JCS that reportedly caused constitutional violations to occur during JCS’s
supervision of them. Properly understood, Plaintiffs’ § 1983 claims in the Fourth Amended
Complaint do not ask the court to undo the orders or sentences issued by the Municipal Court.
Rather, they request that JCS and other Defendants be required to pay damages for constitutional
violations allegedly caused by the administration of those orders and judgments. See Powers v.
Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 606 (6th Cir. 2007) (explaining that
“[a]ssertions of injury that do not implicate state-court judgments are beyond the purview of the
Rooker-Feldman doctrine”); Figueroa v. Merscorp, Inc., 766 F. Supp. 2d 1305, 1317 (S.D. Fla.
2011) (explaining that the Supreme Court in Feldman dismissed the plaintiffs’ action because
“the plaintiffs’ waiver petitions were judicial in nature and not legislative, ministerial, or
administrative”).
For purposes of the Rooker-Feldman issue, this case is similar to Powers, where the
plaintiffs sued a public defender’s office for violating their constitutional rights by instituting a
custom or policy of not asking for indigency hearings. 501 F.3d at 597. The Powers court did

42

not apply Rooker-Feldman even though the claims at issue implicitly criticized a state trial
court’s failure to conduct indigency hearings not requested by public defense attorneys.
Likewise, Plaintiffs claim here that JCS and its employees violated their constitutional rights by
instituting customs or policies that caused constitutional violations. Cf. Arthur v. JP Morgan
Chase Bank, NA, 569 F. App’x 669, 675 (11th Cir. 2014) (holding that the Rooker-Feldman
doctrine did not bar plaintiffs from seeking money damages for fraud related to the generation of
foreclosure-related documents). And, those claims are not foreclosed merely because Plaintiffs
implicitly criticize the Municipal Court for failing to prevent certain constitutional violations.
Cf. Exxon Mobil, 544 U.S. at 293 (affirming that a state-court loser may file an independent
claim asking a federal court to reach a different legal conclusion from that reached in the statecourt action). For these reasons, Defendants’ request to dismiss all § 1983 claims on the basis of
Rooker-Feldman preclusion is due to be denied.
Defendants insist that Plaintiffs’ claims are inextricably intertwined with the Municipal
Court judgments entered against them. But, many of Plaintiffs’ claims, such as the due process,
Fourth Amendment, and Sixth Amendment claims, concern either JCS’s administration (or, more
accurately, maladministration) of the probation orders or the Municipal Court’s actions
committed before issuing probation orders or arrest warrants. These claims do not ask the court
to find that the Municipal Court made an incorrect legal ruling. Rather, they ask the court to find
either that JCS administrated the orders in violation of Plaintiffs’ constitutional rights or that the
Municipal Court used unconstitutional procedures. Simply put, a claim challenging actions
taken in the course of obtaining a judgment or order or in execution of that judgment or order can
be distinct from a challenge to the judgment or order. See Brokaw v. Weaver, 305 F.3d 660, 66566 (7th Cir. 2002) (quoting Holloway v. Brush, 220 F.3d 767, 779 (6th Cir. 2000)).

43

Plaintiffs’ Eighth Amendment and equal protection claims present a more plausible
Rooker-Feldman issue. Plaintiffs allege in their Fourth Amended Complaint that JCS violated
their Eighth Amendment rights by charging probation supervision fees far in excess of the $500
maximum that should have applied. (See Doc. # 305 at ¶¶ 211-26). The Municipal Court,
however, imposed the indefinite monthly supervision fees on Plaintiffs when it sentenced them
to probation. Thus, Plaintiffs’ Eighth Amendment challenge to the fees exceeding $500 is
inextricably intertwined with the Municipal Court’s orders.

Likewise, Plaintiffs’ equal

protection challenge, which alleges that JCS participated in a joint practice whereby the
Municipal Court improperly sentenced individuals who were too poor to pay their fines to
probation, inextricably contests the probation sentences themselves, rather than the Municipal
Court’s procedures. Plaintiffs allege that Defendants violated their equal protection rights by
placing them on probation once they could not immediately pay the amounts owed to the
Municipal Court. (See Doc. # 425 at 10) (“JCS and Childersburg violated the doctrine of equal
protection by requiring individuals who could not immediately pay their fines and court costs to
be placed on JCS probation and forced to pay additional money to JCS.”). Clearly, Plaintiffs
were “placed” on probation by the court’s probation orders. Consequently, their equal protection
claims are inextricably intertwined with the orders themselves, as Plaintiffs could only succeed
on the equal protection claims to the extent that the Municipal Court unconstitutionally
sentenced them to probation.
Having said that, the court is uncertain whether Plaintiffs’ Eighth Amendment and equal
protection claims are barred by the Rooker-Feldman doctrine because it is unclear whether
Plaintiffs had an opportunity to raise Eighth Amendment or equal protection challenges to their
probation sentences.

Alabama law grants a defendant a right to appeal a municipal court’s

44

decision if the defendant is convicted of an offense. Ala. R. Crim. P. 30.1(a). But, three of the
four Plaintiffs -- Kristy Fugatt, Timothy Fugatt, and Jews -- were not convicted of an offense
before the Municipal Court initially sentenced them to probation. (See Docs. # 392-27 at 2; 39266 at 11, 14-15). Thus, it appears that these three Plaintiffs lacked any ability to directly appeal
the initial probation orders. And, because they were not convicted of criminal offenses during
their initial Municipal Court proceedings, they could not have sought post-conviction review in
an Alabama state court. Ala. R. Crim. P. 32.1. Accordingly, the court finds that Plaintiffs
Timothy Fugatt, Kristy Fugatt, and Jews lacked a reasonable opportunity to raise these
constitutional claims in their state proceedings. As such, the Rooker-Feldman doctrine does not
bar these Plaintiffs’ Eighth Amendment or equal protection claims.24 Powell, 80 F.3d at 467.
One of Plaintiffs’ motions for partial summary judgment necessarily falls within the
scope of Rooker-Feldman preclusion.

Plaintiffs have asked the court to declare certain

Municipal Court orders void, including probation orders that lack an underlying offense
adjudication and unsigned probation orders.25 (See Doc. # 546 at 17-19, 21-22). Defendants
respond that this motion is barred by the Rooker-Feldman doctrine. (Docs. # 573 at 14-16; 575
at 9-11). The court agrees. To the extent Plaintiffs ask the court to declare Municipal Court
probation orders void, Plaintiffs’ motion for partial summary judgment is barred by the RookerFeldman doctrine. See Arthur, 569 F. App’x at 677 (holding that plaintiffs’ request to declare a
24

The Rooker-Feldman doctrine does appear to bar Plaintiff Ray’s Eighth Amendment and equal
protection claims against all Defendants because those claims are inextricably intertwined with her probation order,
and she had an opportunity to contest the constitutionality of her probation order in her state proceedings through a
direct appeal to the circuit court. Having said that, and in any event, Plaintiff Ray’s Eighth Amendment and equal
protection claims fail on the merits, for the reasons explained below.
25

Specifically, Plaintiffs’ motion for partial summary judgment asks the court to declare “that all blank
orders showing no adjudication of an offense to be void and that all JCS probations based thereon or on those
without probation orders to be without effect and therefore void.” (Doc. # 545 at 1). Although the court finds that
the motion is not barred to the extent it challenges JCS’s administration of probation cases unsupported by any court
order, the named Plaintiffs lack standing to present that particular claim because the Municipal Court issued
probation orders with respect to each of them.

45

state-court judgment “null and void” was barred by the Rooker-Feldman doctrine); Drees v.
Ferguson, 396 F. App’x 656, 657-58 (11th Cir. 2010) (holding that a plaintiff’s request for a
district court to declare a state-court judgment void due to “corruption of the judicial process”
was barred by Rooker-Feldman). Plaintiffs insist that the court should consider their request
because Rooker-Feldman does not apply to situations where no judgment, conviction, or
adjudication occurred. (See Doc. # 597 at 4-5). But this argument misses the mark in the
context of Plaintiffs’ summary judgment motion: If there is no actual state-court judgment, what
exactly is the court being asked to declare void? Thus, Plaintiffs’ partial motion for summary
judgment (Doc. # 545) is due to be denied to the extent it seeks to void Municipal Court
probation orders.
4.

Heck v. Humphrey and the Availability of Habeas Relief

In their motion for summary judgment, Defendants JCS and Correctional Healthcare
reiterate that Plaintiffs’ claims are barred by the Supreme Court’s holding in Heck v. Humphrey,
512 U.S. 477 (1994). (Doc. # 470 at 39-41). According to Defendants, Plaintiff Ray was in
custody during her term of probation because the Municipal Court had sentenced her to a
suspended term of imprisonment. (Id. at 39-40). Moreover, they insist that Plaintiff Ray alleges
she was subjected to significant restraints on her liberty because she reportedly was “hounded”
by JCS employees and sometimes required to report weekly to the JCS office. (Id. at 40).
Plaintiffs respond by simply noting that Ray was not in custody during her probation stint
with JCS (Doc. # 500 at 43), and Defendants have not cited Alabama law to support the
argument that Ray was in custody during her probationary sentence. (Id.). They also reiterate
their argument that the JCS policies and practices should be classified as a “collection service”
rather than a private probation service. (Id.). Finally, they contend that a writ of habeas corpus

46

is not the sole relief available to Ray (and the other named Plaintiffs) in this action because their
claims would not necessarily demonstrate the invalidity of the Municipal Court’s orders. (See
id.).
In Heck v. Humphrey, the Supreme Court held that “when a state prisoner seeks damages
in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.” 512 U.S. at 487. Indeed, a “state prisoner may not maintain an action
under [ ] § 1983 if the direct or indirect effect of granting relief would be to invalidate the state
sentence he is serving.” Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Ginsburg, J., concurring).
Heck’s so-called “favorable-termination” rule is intended to promote “finality and consistency,”
upholding “the hoary principle that civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments.” Heck, 512 U.S. at 485-86. The favorabletermination rule ensures that “state prisoners use only habeas corpus (or similar state) remedies
when they seek to invalidate the duration of their confinement—either directly through an
injunction compelling speedier release or indirectly through a judicial determination that
necessarily implies the unlawfulness of the State’s custody.”26 Wilkinson v. Dotson, 544 U.S. 74,
81 (2005) (emphasis in original).

26

As already noted, three of the named Plaintiffs (Jews, Kristy Fugatt, and Timothy Fugatt) would have
been unable to obtain state court review of constitutional issues related to their initial probation orders and sentences
because they were not convicted of any particular offense. A municipal court defendant only has the right to appeal
to a circuit court if “convicted of an offense.” Ala. R. Crim. P. 30.1(a). Likewise, a defendant must be convicted of
a criminal offense to file a post-conviction motion in Alabama courts. Ala. R. Crim. P. 32.1 (limiting the postconviction motion to “any defendant who has been convicted of a criminal offense”). Plaintiffs Jews, Kristy Fugatt,
and Timothy Fugatt were not convicted of criminal offenses when the Municipal Court placed them on probation for
failure to pay fines and/or court costs. Thus, by asserting that these Plaintiffs were in custody and thus should have
sought habeas review, Defendants JCS and Correctional Healthcare essentially argue that they should have filed a 28
U.S.C. § 2254 petition without obtaining any state court review whatsoever. The court harbors substantial doubts
that the Eleventh Circuit would look favorably upon such an expansion of the habeas remedy under § 2254. See

47

The Eleventh Circuit has limited Heck’s rule from applying to actions where (1) a
plaintiff is not in custody and (2) that plaintiff does not seek relief that implies the invalidity of
his conviction. Morrow v. Fed. Bureau of Prisons, 610 F.3d 1271, 1272 (11th Cir. 2010).
Moreover, the Morrow opinion recognized that Heck does not bar cases where a plaintiff was not
in custody for a sufficient period of time to obtain habeas relief. Id. (“This case is one in which
the alleged length of unlawful imprisonment—10 days—is obviously of a duration that a petition
for habeas relief could not have been filed and granted while Plaintiff was unlawfully in
custody.”). A concurrence in Morrow noted that several courts have discerned an exception to
Heck where a plaintiff is no longer in custody and is precluded from obtaining habeas relief. Id.
at 1273 (Anderson, J., concurring specially) (citing Powers, 501 F.3d at 603; Nonnette v. Small,
316 F.3d 872, 878 (9th Cir. 2002); and Leather v. Eyck, 180 F.3d 420, 423-24 (2d Cir. 1999)).
Here, for reasons similar to those explained in the court’s Memorandum Opinion denying
JCS’s motion to dismiss (Doc. # 67 at 13-14), Heck continues to be inapplicable to this case.
This suit challenges the procedures used by JCS to supervise Plaintiffs’ probation, not the
substantive correctness of the criminal judgments or sentences. As such, it is within the category
of “purely procedural” actions not barred by Heck. See Harden v. Pataki, 320 F.3d 1289, 1295
(11th Cir. 2003). With the exception of the partial summary judgment motion seeking to declare
unsigned probation orders void and some requests for declaratory and injunctive relief (that are
now moot), Plaintiffs have not asked the court to invalidate any Municipal Court order, reduce
the length of their custody, or address the substantive validity of any criminal judgment. Nor
have they filed a type of § 1983 claim that implicitly challenges their guilt for a substantive
offense (such as a false arrest claim). As the named Plaintiffs are no longer in custody and do

Duvallon v. Florida, 691 F.2d 483 (11th Cir. 1982) (holding that the imposition of a fine was insufficient to place a
petitioner in custody for purposes of § 2254).

48

not seek to invalidate -- explicitly or implicitly -- any convictions or sentences, the claims in this
suit are not barred by Heck.
5.

Plaintiffs’ Due Process Claims

Before turning to the specific due process claims asserted by Plaintiffs, the court notes
that throughout their summary judgment briefs, Defendants JCS and Correctional Healthcare
insist that they did not commit the conduct underlying Plaintiffs’ due process claims. With
regard to Plaintiff Ray, they argue that the Municipal Court imposed a suspended imprisonment
sentence along with each of Ray’s probation sentences. (Doc. # 470 at 18). With regard to all
Plaintiffs, these Defendants insist that JCS did not issue arrest warrants based on FTOCO
charges; rather, it was the Municipal Court’s magistrate that issued the warrants. (E.g., id. at 19).
And, Defendants JCS and Correctional Healthcare claim that the Municipal Court determined the
amount that a probationer had to pay to be released from jail. (Id.). They contend that the
Municipal Court ordered all of the fines and fees the named Plaintiffs were required to pay. (Id.
at 20-21).

Likewise, they insist that the Municipal Court tolled the Plaintiffs’ probation

sentences for significant periods of time. (Docs. # 470 at 21; 523 at 20; 536 at 18). They also
claim that the Municipal Court changed Jews’s, Kristy Fugatt’s, and Timothy Fugatt’s initial
probation sentences through later orders. (Docs. # 523 at 20; 536 at 18).
JCS and Correctional Healthcare deny that JCS’s threats to Jews, Kristy Fugatt, or
Timothy Fugatt violated any due process rights because those communications accurately
informed them of the risks they faced by not complying with the terms of probation. 27 (Docs. #
523 at 21; 536 at 19). They assert that the probation supervision fees which benefitted JCS did
not exceed any statutory cap because the statutory cap in Alabama Code § 13A-5-12(a)(3) only

27

These Defendants further deny violating Plaintiff Jews’s due process rights through any threat because
Jews “testified unequivocally that he never received those letters and documents.” (Doc. # 523 at 21).

49

concerns fines. (E.g., Doc. # 470 at 22-23). JCS and Correctional Healthcare further contend
that, even if the probation fees were considered fines, they did not violate any due process right
because (1) the violation of a state statute does not automatically qualify as a constitutional
violation, and (2) the supervision fees were not grossly excessive. (Id. at 23-24). JCS and
Correctional Healthcare argue that the Municipal Court was responsible for making any
indigency determination. (Id. at 24-25). Moreover, they insist that Plaintiffs received revocation
hearings and notice of the charges against them before they were incarcerated. (Id. at 25).
Plaintiffs respond that the Rule 56 record supports a finding that constitutional violations
occurred as alleged in the Fourth Amended Complaint. For example, they assert that JCS
submitted a revocation petition against Plaintiff Ray in which it represented that she needed to
pay $1,036 to have her probation closed. (Doc. # 500 at 19). Although JCS claimed to have
provided notice to her, there is an issue of fact regarding whether she received notice of the
revocation hearing scheduled by JCS. (Id. at 19, 22). Then, after JCS had requested an arrest
warrant, the City issued an arrest warrant -- based upon a reported FTOCO conviction -- that
obligated Plaintiff Ray to pay over $1,300 to be released from jail. (Id. at 19).
Plaintiffs contend that JCS’s policies should not be considered probation services because
it actually operated as a “collection system.”

(Id. at 22).

According to Plaintiffs, “[t]he

undisputed evidence shows that, pursuant to the joint scheme of JCS and the City, [Plaintiff] Ray
was repeatedly jailed when she did not pay and was then kept in jail until the sooner of 1) a court
date or 2) defendants getting paid.” (Id. at 23). Moreover, they contend that JCS drafted and
supplied orders that charged Plaintiffs fees unauthorized by Alabama law. (Id. at 25). And, they
insist that JCS cooperated with the City to extend probationers’ sentences beyond two years’
probation. (Id. at 25-26). They contend that JCS’s failure to provide notice of hearings to them

50

violated their due process rights. (Id. at 26-27). Finally, they insist that JCS deprived them of
due process by instituting a scheme that failed to provide them revocation hearings or contempt
hearings. (Id. at 27).
As discussed in further detail above, the Fourth Amended Complaint alleged that several
features of JCS’s probation practices violated Plaintiffs’ due process rights. The court will
discuss each of them separately below after outlining the basic legal principles governing
Plaintiffs’ Monell claims under § 1983.
a.

Legal Principles of § 1983 Claims Pursuant to Monell

As already noted, when a private entity contracts to perform a traditional function
exclusively within the state’s prerogative, “it becomes the functional equivalent of the
municipality.”

Buckner, 116 F.3d at 452.

A municipality is liable under § 1983 when a

municipal employee or agent undertakes an action in “execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.” Monell, 436 U.S. at 694. “[A] municipality cannot be held liable
under § 1983 on a respondeat superior theory.” Id. at 691. A plaintiff may establish the
existence of a municipal “policy” by identifying “(1) an officially promulgated [municipal]
policy or (2) an unofficial custom or practice of the [municipality] shown through the repeated
acts of a final policymaker.” Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003)
(en banc).
To present a viable § 1983 claim against a municipality (or private entity), a plaintiff
must show that a municipal policy or custom was the “moving force” behind an injury. Bd. of
Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997). This causation element
of a Section 1983 claim is easier to prove when the entity’s action itself violates the Constitution.

51

Id. at 404. But, when a plaintiff’s claim relies on a facially lawful policy or custom causing a
constitutional violation, a court must apply a rigorous standard of causation to avoid imposing
respondeat superior liability on a municipality. Id. at 405.
For these and other reasons, the court cannot apply a strict “but for” causation standard
when reviewing whether a facially valid municipal policy or custom caused a constitutional
violation by others. McDowell v. Brown, 392 F.3d 1283, 1292 (11th Cir. 2004). A plaintiff
cannot hold a municipality liable for a constitutional violation merely because its custom or
policy made it more likely that a constitutional violation would occur. Id. (citing Brown, 520
U.S. at 411).

Indeed, as the Sixth Circuit has explained, a court must determine that a

defendant’s act was a proximate cause of the ultimate constitutional violation in order for it to be
considered a moving force. Powers, 501 F.3d at 608. Applying this framework in Powers, the
Sixth Circuit discussed situations where a judicial act constitutes a superseding cause that severs
the chain of liability begun by another state actor’s conduct. Id. at 610. A judicial act generally
severs the chain of liability where a judge misapplies the law after another state actor has
informed the judge of all the material facts. Id. A judicial act generally does not sever the chain
of liability, though, if the other state actor misrepresents or omits material facts. Id.
b.

Incarcerating Probationers for Mere Failure to Pay Amounts
Owed to JCS and the Municipal Court and Failure to Conduct
Indigency Determinations

“The Due Process Clause of the Fourteenth Amendment imposes procedural and
substantive limits on the revocation of the conditional liberty created by probation.” Black v.
Romano, 471 U.S. 606, 610 (1985). In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme
Court established a substantive limit on when courts may revoke probation for a probationer’s
failure to pay fines or restitution. Black, 471 U.S. at 611. The Bearden opinion requires a court

52

conducting a revocation hearing to ask a probationer why he or she failed to pay a fine or
restitution ordered as a condition of probation. Bearden, 461 U.S. at 672. On the one hand,“[i]f
the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to
acquire the resources to pay, the court may revoke probation and sentence the defendant to
imprisonment within the authorized range of its sentencing authority.” Id. On the other hand,
“[i]f the probationer could not pay despite sufficient bona fide efforts to acquire the resources to
do so, the court must consider alternate measures of punishment other than imprisonment.” Id.
Here, the court finds no custom or policy attributable to JCS that was a moving force
behind the named Plaintiffs’ failure to receive a full revocation hearing before arrest warrants
were issued on FTOCO charges.

Indeed, JCS directed its employees to request probation

revocation hearings when a probationer’s mail was returned to the JCS office, a probationer
missed three appointments, or a probationer failed to respond to all communications. (Doc. #
402-3 at 23). The Rule 56 record shows that JCS employees in Childersburg sought probation
revocation hearings when Plaintiffs failed to show up for probation appointments. Plaintiffs
claim that JCS employees (rather than Municipal Court employees) were responsible for seeking
warrants based on FTOCO charges, thereby bypassing the revocation hearing required under
Bearden. However, Plaintiffs have not pointed to any evidence in the Rule 56 record showing
that JCS employees were responsible for this chicanery. Nor have Plaintiffs pointed to a JCS
custom or policy of using non-existent legal charges to avoid Bearden hearings. Therefore,
Plaintiffs have not presented a triable § 1983 claim against JCS based on this alleged due process
violation.
Similarly, Plaintiffs have not presented a JCS custom or policy that was a moving force
behind the Municipal Court’s failures to determine Plaintiffs’ indigency. Alabama law directs a

53

court to consider a defendant’s financial resources and ability to pay a fine when determining
whether to impose a fine. Ala. R. Crim. P. 26.11(b). And, if a probationer breaches the terms of
probation by not paying fines, costs, restitution, or other assessments, it is a court, not a
probation officer, that “must inquire into the probationer’s financial status and determine
whether the probationer is indigent.” Ala. R. Crim. P. 27.5(a). Plaintiff Timothy Fugatt’s
testimony indicates that the Municipal Court often did not offer defendants an opportunity to
explain their indigency during the fast-paced court proceedings. (See Doc. # 537-19 at 74).
JCS’s employees understood, though, that indigency determinations were to be conducted by the
Municipal Court.

(See Doc. # 471-31 at 10-11) (testimony by Kidd that indigency

determinations were to be conducted by the Municipal Court). JCS’s training manual also
explained that a court would determine whether a defendant was indigent at sentencing. (Doc. #
402-3 at 47). To be sure, JCS stood to benefit financially if the Municipal Court declared fewer
probationers to be indigent, as it would not be obligated to supervise those indigent probationers
without payment of fees or costs – by the probationers themselves. But, Plaintiffs have not
shown that JCS instituted a policy or custom that prevented the Municipal Court from
performing indigency determinations (or that made such determinations less likely to occur, for
that matter). Therefore, Defendants are due to be granted summary judgment on Plaintiffs’ claim
that they violated Plaintiffs’ due process rights by preventing Plaintiffs from receiving indigency
hearings at the sentencing stage or the revocation stage.
c.

Instituting FTOCO Charges Against Probationers and Issuing
Arrest Warrants Purportedly Based on FTOCO Charges

After careful review, the court concludes that this due process claim is more properly
analyzed as a Fourth Amendment claim as it challenges the arrest and pretrial detention of
Plaintiffs pursuant to arrest warrants. The Supreme Court recently held that the standards and
54

procedures governing arrest and pretrial detention arise from the Fourth Amendment. Manuel v.
City of Joliet, Ill., 137 S. Ct. 911, 914-15, 919 (2017). Indeed, the Supreme Court has declined
to extend substantive due process rights to address the right “to be free from criminal prosecution
except upon probable cause,” which is protected by the Fourth Amendment. See Albright v.
Oliver, 510 U.S. 266, 268 (1994). The court will address this claim in the Fourth Amendment
discussion below.
d.

Failure to Provide Adequate Notice of Probation Revocation
Hearings

The Supreme Court has mandated that, before a defendant subject to probation has his
probation revoked, the defendant must receive a preliminary and final revocation hearing. See
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). “At the preliminary hearing, a probationer or
parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to
appear and to present evidence in his own behalf, a conditional right to confront adverse
witnesses, an independent decisionmaker, and a written report of the hearing.” Id. The Eleventh
Circuit has clarified that “a person facing revocation of supervised release is entitled to written
notice of the alleged violation or violations and disclosure of the evidence against him.” United
States v. Jackson, 568 F. App’x 655, 658 (11th Cir. 2014) (citing Fed. R. Crim. P. 32.1(b)(2)).
Alabama’s criminal procedure rules provide that a defendant should receive notice of hearings
“by delivering or by mailing copies to their last known addresses, or, if no address is known, by
leaving copies with the clerk of the court.” Ala. R. Crim. P. 34.4.
Here, with regard to many of the revocation petitions, Plaintiffs have presented a genuine
factual question concerning whether JCS mailed the notices to them in accordance with Alabama
Rule of Criminal Procedure 34.4. Plaintiffs have denied that they received written notice of the
revocation hearings by mail. (See Docs. # 500 at 9-10; 530 at 4-6; 567 at 7-8). And, JCS
55

employees failed to note in the Probation Tracker system whether they mailed most of the
revocation petitions at issue in this case (even though they noted in Probation Tracker that
revocation petitions had been sent in other situations, including twice involving the Fugatts).
Moreover, while Plaintiff Ray’s Probation Tracker records show that letters mailed to her in
September 2010 and November 2010 were returned to JCS, the Probation Tracker does not state
whether the December 2010 revocation petition was mailed to Plaintiff Ray or whether it was
returned to JCS. (See Doc. # 423-11 at 7-8). From this evidence, a reasonable jury could
conclude that JCS failed to provide written notice of the alleged probation violations and the
revocation hearings to Plaintiffs Ray, Jews, Kristy Fugatt, and Timothy Fugatt unless its
employees noted in Probation Tracker that the documents were mailed.
Having said that, the court concludes that no reasonable jury could find that JCS
instituted a policy or custom that was the moving force behind any due process violation
concerning the failures to provide notice. Indeed, JCS’s training manual instructed employees to
mail probation revocation petitions, along with probation violation letters, to the probationer.
(Doc. # 402-3 at 31). Moreover, the manual directed that if mail sent to a probationer by JCS
was returned, JCS employees were to “run Accurint and mail the revocation information to the
address obtained through Accurint.” (Id. at 23). Plaintiffs have not pointed to another official
custom or policy that could be considered a moving factor for any of these particular due process
violations. Nor have they claimed that a final policymaker was responsible for failing to send
written notice of the revocation hearings. Because Plaintiffs have failed to provide evidence
from which a reasonable jury could find a JCS custom or policy to be the moving force behind
their failure to receive written notice of probation revocation hearings, Defendants are due to be
granted summary judgment on this claim.

56

e.

Imposing Fines and/or Fees Exceeding the Statutory Maximum

Plaintiffs have not clearly argued whether their due process claim concerning fines and
fees exceeding the statutory maximum is a procedural due process claim or substantive due
process claim. Regardless, Plaintiffs’ due process claim regarding the fines and fees enforced by
the Municipal Court rests on the premise that those fines and fees exceeded the applicable
statutory maximum. (See Doc. # 305 at ¶ 111) (complaining that JCS’s customs and policies
resulted in “court costs, fines and fees which exceed the jurisdictional maximum of $500 for
municipal courts). Contrary to Plaintiffs’ assertions, the court finds this issue of state law far
from clear.
An Alabama municipal court may require a probationer to pay “the fine and costs
imposed or such portions thereof as the judge may determine.” Ala. Code § 12-14-13(d)(7). The
Alabama Rules of Criminal Procedure explain that a sentencing court has broad discretion to
determine the conditions of probation.

Ala. R. Crim. P. 27.1, Editors’ Notes, Committee

Comments. Those conditions must be included in the written probation order. Ala. R. Crim. P.
27.1. Alabama law mandates that a probationer supervised by the Board of Pardons and Paroles
pay $40 per month toward the cost of supervision if he or she has an income. Ala. Code. § 1522-2(a)(1). For a violation of municipal ordinances, the maximum fine is $500. Ala. Code § 1145-9(b).
Plaintiffs have not identified -- and the court’s independent research has not found -- a
statutory limit on probation supervision fees to private corporations under Alabama law. Indeed,
Alabama law allows a court wide discretion to determine the conditions of probation, and those
conditions may include costs imposed on the probationer. Ala. Code § 12-14-13(d)(7); Ala. R.
Crim. P. 27.1, Editors’ Notes, Committee Comments. Indeed, if supervised by the Board of

57

Pardons and Paroles, a probationer must pay $40 a month, which is in effect similar to the
supervision fee that was charged by JCS. Ala. Code. § 15-22-2(a)(1). Although the court has
not found an Alabama statute expressly permitting state courts to order probation fees paid to
private corporations, it also has not found a statute expressly limiting a municipal court’s wide
discretion to determine probation conditions.
Plaintiffs’ due process challenge to the fines and fees enforced by JCS heavily relies on
the fine limitation in Alabama Code § 11-45-9(b). This argument finds some support in Wilkins
v. Dan Haggerty & Associates, Inc., 672 So. 2d 507 (Ala. 1995). There, the Alabama Supreme
Court considered whether a municipal court could impose delinquent fees on defendants who
had failed to answer the charges against them. Id. at 510. The Alabama Supreme Court held that
a municipal court could impose the delinquent fees as increases to the scheduled fines for the
offense. Id. In doing so, it expressly recognized that the delinquent fees did not exceed the
jurisdictional limit for municipal court fines. Id. Although the court recognizes a plausible
analogy between the delinquent fees in Wilkins and the supervision fees at issue in this case, this
case is nevertheless distinguishable from Wilkins because the fines in Wilkins were added to the
defendants’ sentences long after adjudication. See id. (concluding that the judge was authorized
to increase the fines after giving many defendants years to respond to the charges against them in
municipal court).

Thus, Wilkins does not foreclose a municipal court from exercising the

authority to impose supervision fees in addition to a fine, pursuant to its wide discretion to
determine conditions of probation.
Ultimately, the court is not convinced that Plaintiffs can present a triable procedural or
substantive due process claim premised on the fines and fees enforced by JCS. To show a
violation of procedural due process, a plaintiff must present “(1) a deprivation of a

58

constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionallyinadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). Here, Plaintiffs
have not explained how the state provided constitutionally-inadequate process to them as a
remedy for any statutory violations stemming from the excessive probation fees. Although
neither JCS nor the Municipal Court provided pre-deprivation hearings before charging the
monthly probation fees, the state can satisfy due process by providing adequate post-deprivation
remedies when pre-deprivation hearings are not feasible. Watkins v. Israel, 661 F. App’x 608,
610 (11th Cir. 2016). “A post-deprivation remedy is adequate when it is capable of fully
compensating the deprived individual.” Id.
Plaintiffs have not addressed whether post-deprivation remedies were available to them
under Alabama law to obtain refunds, restitution, or disgorgement from JCS. Moreover, the
government’s interest in sharing supervision costs with probationers would be undermined by
requiring pre-deprivation hearings before collection of small probation fees. See id at 610-11
(holding that a plaintiff failed to allege constitutionally-inadequate process for seizing uniform
and subsistence fees because his prison provided a post-deprivation grievance process, the
prison’s policy was a ministerial charge that posed a small risk of erroneous deprivation, and predeprivation hearings would have harmed the government’s interest). Because Plaintiffs have
failed to show that they received constitutionally-inadequate process when JCS charged them
monthly probation supervision fees, they have not presented a triable procedural due process
claim regarding the supervision fees.28
28

To the extent that Plaintiffs’ due process claim challenges the Municipal Court’s imposition of warrant
fees for FTOCO charges, the court finds no triable procedural due process claim because Plaintiffs received predeprivation hearings before the Municipal Court imposed the warrant fees. The Municipal Court imposed the
warrant fees when the Plaintiffs appeared before the court and were placed back on probation following an arrest.
(See, e.g., Doc. # 537-4 at 2). Although it appears that the Municipal Court deducted the warrant fees from the cash
bonds paid by incarcerated probationers, it also appears that the court provided Plaintiffs an opportunity to be heard
before formally imposing the warrant fees.

59

Plaintiffs cannot present a triable substantive due process claim based on the imposition
of fines and fees because this claim rests on executive acts that do not shock the conscience.29
Plaintiffs’ claimed right to be free from fines or fees above the statutory maximum created by
Alabama law plainly asserts a state-created right, rather than a federally-created right. “Where a
person’s state-created rights are infringed by a ‘legislative act,’ the substantive component of the
Due Process Clause generally protects that person from arbitrary and irrational governmental
action.” Kentner v. City of Sanibel, 750 F.3d 1274, 1279-80 (11th Cir. 2014). Legislative acts,
such as laws and broad executive regulations, generally apply to a larger segment of society and
involve policymaking rather than administrative applications.

Id. at 1280.

In contrast,

“[e]xecutive acts typically arise from the ministerial or administrative activities of the executive
branch and characteristically apply to a limited number of people, often to only one.” Id. Such
executive acts only present a substantive due process violation if they shock the conscience. Cty.
of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). “Determinations of what is egregious
conduct must not be made in the glow of hindsight; decisions made by a government actor must
be egregious—that is, shock the conscience—at the time the government actor made the
decision.” Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir. 2003)
(emphasis omitted).
Here, Plaintiffs argue that the imposition of the aggregate fines and fees against them
violated their due process rights because the fines and fees exceeded the applicable statutory
maximum. But, this conduct cannot be said to shock the conscience when it was unclear at the
time whether the probation supervision fees violated Alabama state law. Even if the probation

29

Of course, the Fourteenth Amendment’s Due Process Clause protects certain fundamental rights created
by the Constitution. Cf. Kentner v. City of Sanibel, 750 F.3d 1274, 1279 (11th Cir. 2014). Plaintiffs have not
pointed to any fundamental right infringed by JCS’s and the Municipal Court’s conduct concerning monetary fines
and fees.

60

supervision fees violated Alabama law (a particularly uncertain proposition for the reasons
explained above), the Supreme Court has clearly held that “errors of state law do not
automatically become violations of due process.” Rivera v. Illinois, 556 U.S. 148, 160 (2009).
Moreover, the Municipal Court imposed the indeterminate probation supervision fees in its
probation orders, and Plaintiffs offer no authority whatsoever to support the proposition that a
court’s mistake of law on an undecided issue can be enough to shock the conscience. This court
cannot say that the fees ordered by the Municipal Court and charged by JCS shocked the
conscience when Alabama law requires probationers to pay a substantially similar fee to the
Board of Pardons and Paroles. Ala. Code. § 15-22-2(a)(1). Therefore, Plaintiffs’ due process
claim based on the imposition of fines and fees allegedly exceeding the statutory maximum
cannot proceed under a procedural due process theory or a substantive due process theory.
f.

Imposing Probation Sentences Exceeding the Statutory
Maximum

As with Plaintiffs’ due process challenge to the fines and fees administered by JCS, it is
unclear whether they challenge JCS’s administration of the probation sentences as a violation of
procedural or substantive due process. With regard to substantive due process, Plaintiffs would
have to show that the administration of their probation sentences shocked the conscience in order
to establish a triable due process claim, since the imposition and administration of those
sentences is an executive act. Cf. Lewis, 523 U.S. at 846-47. As this claim ultimately rests on
violations of state law, and Plaintiffs have not identified analogous authority where a court found
the administration of sentences to constitute conduct that shocks the conscience, the court
concludes that Defendants are entitled to summary judgment on any substantive due process
claim arising from the allegedly unlawful extension of probation sentences past the two year
statutory maximum.
61

The procedural due process issues presented by this claim are more interesting. In
binding precedent, the former Fifth Circuit held that the “extension of a non-custodial period of
supervision to a term within the statutory limits (does not) implicate a liberty interest sufficient
to require a preextension hearing as a constitutionally commanded right.” United States v.
Cornwell, 625 F.2d 686, 688 (5th Cir. 1980) (internal quotation omitted). Plaintiffs’ due process
claim, though, does not rest on an extension of probation sentences to the statutory maximum.
Rather, it rests on extending probation sentences beyond the statutory maximum.

In the

analogous context of parole, the Second Circuit has held that “[u]nder both the due-process
clause and state law, an inmate has a liberty interest in being released upon the expiration of his
maximum term of imprisonment.” Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647,
653 (2d Cir. 1993). Likewise, a defendant sentenced to probation has a liberty interest in being
released at the end of his or her probation sentence, which is a significant imposition on his or
her liberty. In Calhoun, the Second Circuit explained that a defendant’s liberty interest in release
from confinement meant that he could not be deprived of such release without due process.
Calhoun, 999 F.2d at 653.
Here, a reasonable jury could find that JCS unconstitutionally extended Plaintiffs
Timothy Fugatt’s and Deunate Jews’s probation sentences beyond the statutory maximum
without providing any notice to Plaintiffs of the extension or any opportunity for a hearing.
JCS’s own records reflect that it extended these two Plaintiffs’ probation sentences for earlier
charges by 24 months when the Municipal Court actually issued probation orders in different
cases. (See Docs. # 524-22 at 4; 537-24 at 5). Nothing in the Rule 56 record indicates that JCS
employees informed Timothy Fugatt or Jews of these modifications to their 2009 and 2011
probation sentences. Nor does the record reflect that the Municipal Court agreed to these

62

modifications. Indeed, JCS extended the probation term for Timothy Fugatt’s 2011 sentence five
days beyond the probation term approved by the Municipal Court in the April 26, 2012 order.
(Compare Doc. # 537-24 at 5 with Doc. # 537-3 at 2).
Defendants’ arguments that, as a matter of law, they did not violate these Plaintiffs’ due
process rights are unavailing. JCS contends that Plaintiffs’ probation terms were “changed by
the later probation orders of the Childersburg Municipal Court,” but a jury could reach a
different finding regarding the Municipal Court’s orders. (Doc. # 523 at 20). The Municipal
Court issued new probation orders for distinct charges. And, JCS justified its recalculation of the
probation dates by asserting that the Municipal Court had reinstated its earlier probation
sentences, not based on the new and distinct probation orders.
JCS also argues that Plaintiffs suffered no constitutional harm because the Municipal
Court tolled the probation sentences when the revocation petitions were initiated, such that their
probation terms were not in effect for more than two years. (See Doc. # 523 at 20) (asserting that
these orders from the Municipal Court tolled Jews’s probation sentence for 28 months). This
argument would be more compelling if the Rule 56 record showed that JCS employees in
Childersburg tried to calculate how much time elapsed between the initiation of probation and
the revocation order(s) tolling probation. But, a reasonable jury could find from the summary
judgment record that JCS invariably recalculated probation following purported reinstatements
by extending the sentence 24 months from the reinstatement date. Because Timothy Fugatt and
Jews had served time toward those probation sentences, the invariable 24 month extensions
caused their probation sentences to exceed the applicable two year statutory maximum. Ala.
Code § 12-14-13(a). A probationer is entitled to due process protections for such an extension,
and JCS granted Timothy Fugatt and Jews no due process in its administrative recalculations.

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Finally, a reasonable jury could find that JCS’s customs and policies were the moving
force behind the constitutional harm Plaintiffs Timothy Fugatt and Deunate Jews suffered. JCS
directed its employees that, if a court imposed multiple probation sentences on a particular
defendant, the employee should place the later probation sentence on hold until the defendant
completed paying all amounts owed on the first case. (Doc. # 402-3 at 53). If a defendant
completed payments for one case, then JCS would activate the second probation sentence and
calculate the number of months that the probationer would be supervised. (Id.). Moreover,
JCS’s probation reinstatement policies let employees choose the amount of time left on a
probationer’s sentence. (See Doc. # 402-3 at 43) (instructing employees to enter a reinstatement
into Probation Tracker by changing the probation date, entering the number of months and days
left on probation, and calculating the new date). These JCS policies instructed employees to
extend the length of probation cases until all amounts owed were paid, prevented probation terms
from running consecutively, and granted considerable discretion to JCS employees to determine
the amount of time left on a reinstated probation case. Accordingly, a reasonable jury could find
that JCS’s case handling customs and policies -- rather than the conduct of its employees -- was
the moving force behind the procedural due process violations Timothy Fugatt and Deunate Jews
suffered.30 Defendants’ motion to dismiss this due process claim is due to be denied.
6.

Plaintiffs’ Fourth Amendment Claims

Defendants JCS and Correctional Healthcare deny that they violated Plaintiffs’ Fourth
Amendment rights. They note that Plaintiff Ray received a suspended imprisonment sentence
when she initially was placed on probation. (Doc. # 470 at 18). They insist that no record
evidence supports Plaintiffs’ claims that JCS issued their arrest warrants.

30

(See id. at 19).

Neither of these due process claims is barred by the two year statute of limitations for § 1983 claims.
JCS unlawfully extended Jews’s probation sentence in March 2012 and Fugatt’s probation sentence in May 2012.

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Moreover, the Municipal Court controlled the calculation of bail amounts that Plaintiffs needed
to pay to be released from custody. (See id. at 19-20) (explaining that a JCS employee attempted
to assist Plaintiff Ray and have her released from jail, but a Municipal Court employee insisted
on payment of the bond).
Plaintiffs respond that JCS requested that the City issue arrest warrants for FTOCO
charges, even though no formal FTOCO charges were filed with the Municipal Court, no
hearings were held on the charges, and no convictions were entered for the charges. (E.g., Doc.
# 500 at 22). They further argue that FTOCO charges were “concocted . . . by the City under the
JCS system to enforce the extortion threats of JCS.” (Id. at 23). Because of these arrest
warrants, Plaintiffs claim that they were arrested and held until they paid the cash bail or until the
Municipal Court held its once-monthly court date. (Id.).
Properly read, Plaintiffs’ Fourth Amendment claims either present a false arrest or
malicious prosecution action against JCS.

The court will begin its analysis of the Fourth

Amendment claims by discussing false arrest claims based on unlawful procurement of an arrest
warrant. “In Malley v. Briggs, the Supreme Court established that even if a magistrate approves
an arrest warrant, the officer who applied for the warrant may be liable for violating the
Constitution if the evidence presented to the magistrate was insufficient to establish probable
cause.” Carter v. Gore, 557 F. App’x 904, 908 (11th Cir. 2014) (citing Malley v. Briggs, 475
U.S. 335, 345 (1986)). For example, an officer may be held liable for violating the Fourth
Amendment if he or she proffers an affidavit for a warrant that lacks a basis for a belief that the
suspect violated the law and an affirmative statement that the officer has personal knowledge of

65

the circumstances of the alleged crime.31 Id. at 908-09 (discussing Kelly v. Curtis, 21 F.3d 1544,
1555 (11th Cir. 1994), and Garmon v. Lumpkin Cty., 878 F.2d 1406, 1408-09 (11th Cir. 1989)).
The flaw in Plaintiffs’ Fourth Amendment false arrest claims is that the JCS employees
responsible for issuing the revocation petitions had probable cause to believe Plaintiffs
committed the probation violations reported to the Court. The record reveals that Municipal
Court magistrates issued arrest warrants against the named Plaintiffs after they had failed to
appear before the Municipal Court at scheduled revocation hearings. Before those hearings, JCS
employees drafted probation revocation petitions against the Plaintiffs, which were submitted to
the Municipal Court on the date of the hearings. When viewed in the light most favorable to
Plaintiffs, these revocation petitions can be analogized to applications for arrest warrants because
JCS asked the Municipal Court to issue an arrest warrant, if necessary. (See, e.g., Doc. # 537-1
at 2). Having said that, JCS employees had probable cause to believe that Plaintiffs had failed to
appear to scheduled appointments and had failed to keep up with their monetary probation
conditions. And, JCS employees affirmed in the revocation petitions that they had investigated
the named Plaintiffs.

(See, e.g., Doc. # 537-1 at 2) (“Based on the investigation of the

undersigned and the information received therefrom, your Petitioner verily believes that the
Defendant has violated one or more of the written conditions of probation . . . .”). Therefore,
JCS employees did not violate Plaintiffs’ Fourth Amendment rights by submitting revocation
petitions that asked the Municipal Court to issue arrest warrants if necessary.
The Rule 56 record does not reveal whether any JCS employee requested issuance of the
arrest warrants on FTOCO charges. There is no arrest warrant application from a JCS employee

31

The court understands that generally when a plaintiff brings such a false arrest claim against an
individual officer, the plaintiff must show that the officer lacked arguable probable cause because an officer sued in
his or her individual capacity is entitled to assert qualified immunity. See Carter, 557 F. App’x at 908-09. But,
here, Defendants are not entitled to seek qualified immunity because they are being sued in their official capacities.

66

seeking an arrest warrant on FTOCO charges. Nor is there a transcript of the Municipal Court
hearings indicating whether JCS asked for the arrest warrants, a prosecutor asked for the arrest
warrants, or the Municipal Court decided to issue the warrants sua sponte. Thus, the court
cannot say that JCS or its employees applied for the FTOCO arrest warrants issued by the
Municipal Court. Accordingly, Plaintiffs’ false arrest claims premised on those warrants fail,
and Defendants are entitled to summary judgment on any false arrest claim in the Fourth
Amended Complaint.
Likewise, Plaintiffs have not established any triable issue related to their malicious
prosecution claims. “To establish a federal malicious prosecution claim under § 1983, a plaintiff
must prove (1) the elements of the common law tort of malicious prosecution, and (2) a violation
of her Fourth Amendment right to be free from unreasonable seizures.” Kingsland v. City of
Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). The elements for a malicious prosecution claim
include: (1) “a criminal prosecution instituted or continued by the present defendant”; (2) “with
malice and without probable cause”; (3) “that terminated in the plaintiff accused’s favor”; and
(4) “caused damage to the plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir.
2003). Plaintiffs have not established the third element: that the FTOCO charges instituted
against them were terminated in their favor. Indeed, the FTOCO charges against Plaintiffs
Timothy Fugatt and Jews were not terminated in their favor, as these Plaintiffs were sentenced
by the Municipal Court to probation for FTOCO. (See, e.g., Docs. # 524-6 at 2; 537-3 at 2). As
for Plaintiffs Ray and Kristy Fugatt, nothing in the Rule 56 record shows that the FTOCO
charges were terminated in their favor. Because a reasonable jury could not find from the Rule
56 record that the allegedly unlawful FTOCO charges were terminated in Plaintiffs’ favor,

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Defendants are also entitled to summary judgment for any Fourth Amendment malicious
prosecution claim in the Fourth Amended Complaint.
7.

Plaintiffs’ Sixth Amendment Claims

Defendants JCS and Correctional Healthcare argue that JCS did not deny the named
Plaintiffs any right to counsel. (E.g., Doc. # 470 at 27-28). They assert they are entitled to
summary judgment for this claim for two reasons. First, they claim that the Municipal Court was
solely responsible for appointing counsel if necessary. (Id. at 27). Second, they contend that
Plaintiffs were not entitled to counsel during their revocation proceedings because they did not
request counsel and their revocation proceedings did not present complex, difficult, or disputed
probation violations. (Id. at 27-28).
Plaintiffs respond that JCS participated in a joint system with the City that violated their
constitutional rights. (E.g., Doc. # 500 at 21). Pursuant to this scheme, JCS provided pre-printed
probation orders that stated a petitioner had waived his or her right to counsel. (Id. at 23).
Because of this statement in the form probation orders, Plaintiffs insist that JCS endeavored “to
avoid the intrusion of legal counsel.” (Id.). Plaintiffs also argue that the Supreme Court’s ruling
in Alabama v. Shelton, 535 U.S. 654 (2002), required that they receive assistance from appointed
counsel before being incarcerated. (Id. at 24). Moreover, they contend that the identity of the
party formally responsible for conducting indigency hearings is irrelevant because the financial
relationship created by the JCS-City Contract relied on directing probationers to pay for JCS’s
supervision services. (See id. at 24-25).
In circumstances similar to those presented by Plaintiff Ray, the Supreme Court has held
that a defendant’s Sixth Amendment right to appointed counsel is applicable when she is
sentenced to a suspended term of imprisonment and a probationary sentence.

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Alabama v.

Shelton, 535 U.S. 654, 662 (2002). The Supreme Court observed that a defendant imprisoned for
a probation violation in such a circumstance is incarcerated for the underlying crime, not for the
probation violation. Id. The Supreme Court declined to consider whether a probationer with a
suspended imprisonment sentence imposed without the assistance of counsel could be sent to jail
following a contempt proceeding where the probationer received the assistance of counsel. See
id. at 672-74. It also declined to review whether such a probationer could be sent to jail
following a probation revocation hearing where the probationer was represented by counsel
because revocation hearings in Alabama at that time did not afford the probationer a right to
counsel and did not allow a probationer to contest the underlying conviction. Id. at 666-67.
A defendant may waive the Sixth Amendment right to counsel if the waiver is voluntary,
knowing, and intelligent. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). “The defendant may
waive the right whether or not he is already represented by counsel; the decision to waive need
not itself be counseled.” Id. In the context of a post-arrest interrogation, a defendant may
knowingly and intelligently waive the right to counsel after he receives a Miranda warning. Id.
at 786-87. But, when a defendant seeks to waive the right to counsel closer to a trial, a court
should conduct a more rigorous, searching, and formal examination to ensure that the waiver is
voluntary, knowing, and intelligent. United States v. Kimball, 291 F.3d 726, 730 (11th Cir.
2002).

Such an examination -- commonly called a Faretta hearing -- should inform the

defendant about the nature of the charges, the possible punishments, basic trial procedure, and
the risks of representing himself or herself. Id.
Here, the record indicates that Plaintiff Ray’s Sixth Amendment rights might have been
violated when the Municipal Court imposed her suspended imprisonment sentences. Ray’s
testimony indicates that she did not receive a warning about her right to counsel from Judge

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Ward before being sentenced to suspended imprisonment terms (see Doc. # 471-7 at 39), much
less the detailed disclosures provided in a Faretta hearing. Defendants JCS and Correctional
Healthcare argue that she affirmed her waiver of the right to counsel when she signed a probation
order, but her probation order does not contain any explanation of her right to counsel.
Therefore, under Shelton, Plaintiff Ray’s Sixth Amendment rights might have been violated.
Likewise, Plaintiff Timothy Fugatt’s, Kristy Fugatt’s, and Jews’s Sixth Amendment
rights might have been violated by the Municipal Court because they were imprisoned without
being afforded counsel. These Plaintiffs did not receive any suspended imprisonment sentence
during their initial hearings before the Municipal Court, so they would not have been entitled to
the appointment of counsel at that stage. But, these Plaintiffs were entitled to representation by
counsel before being imprisoned for a criminal offense – whether that offense was contempt or a
“failure to obey a court order.” Argersinger v. Hamlin, 407 U.S. 25, 38 (1972). Alternatively, to
the extent it could be said that the Municipal Court deferred imposing an imprisonment sentence
against Plaintiffs Jews, Kristy Fugatt, and Timothy Fugatt subject to probation, these Plaintiffs
were entitled to counsel at the revocation hearing where the imprisonment sentence was
imposed. See Mempa v. Ray, 389 U.S. 128, 137 (1967).
Having said that, the court cannot find in the Rule 56 record a custom or practice by JCS
that was a moving force behind the Sixth Amendment violations presented in Plaintiffs’ Fourth
Amended Complaint. First, the JCS-City Contract did not foreclose the Municipal Court from
providing counsel to individuals it sentenced to suspended or actual imprisonment.
generally Doc. # 392-16).

(See

Indeed, the JCS-City Contract says nothing at all regarding a

defendant’s or probationer’s right to counsel. (See generally id.). Likewise, the training manual
in the Rule 56 record contains no JCS custom or policy regarding a probationer’s right to

70

counsel. (See generally Docs. # 402-2, 402-3, & 402-4). This omission is not surprising because
it is the duty of a court imposing a term of imprisonment -- not a probation officer supervising
the defendant -- to appoint counsel for the defendant. Cf. Ala. R. Crim. P. 6.1, Editors’ Notes,
Committee Comments (“Of necessity, this [the right to counsel] will require that the judge
determine before trial that, regardless of the evidence presented, the maximum punishment will
not include incarceration.”).

Accordingly, if Plaintiffs suffered a violation of their Sixth

Amendment rights, the Municipal Court -- not JCS -- committed the violation.
Plaintiffs point to the form probation orders as proof that JCS had a policy or custom of
avoiding the appointment of counsel. (E.g., Doc. # 500 at 23). That argument misses the mark.
The pre-printed probation orders asserted that a probationer had counsel or had waived counsel
“for all proceedings to this date.” (E.g., Doc. # 471-21 at 2). The court interprets this as an
acknowledgment of the prior conduct of the Municipal Court, not as a statement of JCS’s intent
to shut out counsel. Significantly, the probation orders are silent about whether a probationer
waived her right to counsel for future proceedings. As such, the court cannot conclude that these
provisions in the probation orders evince a JCS custom or policy of denying probationers the
right to counsel. Because the court cannot identify any policy or custom from JCS that was a
moving force behind the Sixth Amendment violations discussed in the Fourth Amended
Complaint, Defendants JCS and Correctional Healthcare are due to be granted summary
judgment on this claim.
8.

Plaintiffs’ Eighth Amendment Claims

In their motions for summary judgment, Defendants JCS and Correctional Healthcare
argue that the Municipal Court did not impose any fine or fee that exceeded a statutory
maximum. (Doc. # 470 at 22). In particular, they claim that probation supervision fees, like

71

court costs, were not a part of any fine imposed by the Municipal Court. (Id. at 23). Moreover,
they argue that in advancing these claims Plaintiffs conflate a violation of state law with a
violation of the Eighth Amendment. (See id. at 23 & n. 154). Indeed, according to Defendants,
the probation fees were not excessive fines under the Eighth Amendment because (1) they were
not financial penalties for a criminal offense and (2) they were not grossly disproportionate to the
offenses at issue. (Id. at 23-24).
Plaintiffs respond that, to the extent JCS’s probation fees are considered fines, they
exceeded the $500 statutory limit. (Doc. # 500 at 29). They note that probation supervision fees
are not addressed in the Alabama statute authorizing municipal courts to sentence defendants to
probation. (Id. at 30) (discussing Alabama Code § 12-14-13). Moreover, they claim that JCS
should not have been entitled to obtain probation supervision fees because its employees were
not qualified to serve as probation officers. (See id. at 31-32).
The Eighth Amendment prohibits courts from imposing “excessive fines.” U.S. Const.
amend. VIII. Its Excessive Fines Clause “limits the government’s power to extract payments,
whether in cash or in kind, ‘as punishment for some offense.’” Austin v. United States, 509 U.S.
602, 609-10 (1993) (emphasis omitted) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 265 (1989)). In an opinion addressing whether civil punitive
damages awards are subject to the Excessive Fines Clause, the Supreme Court explained that
“the Excessive Fines Clause was intended to limit only those fines directly imposed by, and
payable to, the government.” Browning-Ferris, 492 U.S. at 268 (emphasis added). See also
Coleman v. Watt, 40 F.3d 255, 263 (8th Cir. 1994) (defining a “fine” as “a payment extracted by
the government and payable to the government”). The Supreme Court’s statement of law in
Browning-Ferris conclusively resolves Plaintiffs’ Excessive Fines Clause claim. Because the

72

probation supervision fees were paid to a private corporation, not the government, they are not
subject to the Excessive Fines Clause. Therefore, Defendants are entitled to summary judgment
on Plaintiffs’ excessive fines claim.
Likewise, Plaintiffs’ challenge to the length of their incarceration terms under the Cruel
and Unusual Punishments Clause of the Eighth Amendment is a non-starter. The Cruel and
Unusual Punishments Clause “[‘]encompasses a narrow proportionality principle’ that applies to
non-capital sentences.” United States v. Farley, 607 F.3d 1294, 1340 (11th Cir. 2010) (quoting
Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring)). “The Eighth
Amendment does not require strict proportionality between crime and sentence. Rather, it
forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1341
(quoting Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)). Unless a defendant’s sentence
is grossly disproportionate to his or her offense, the court need not compare the sentence to those
received in other jurisdictions for similar offenses. Id. at 1342 (“Without an initial judgment that
a sentence is grossly disproportionate to a crime, comparative analysis of sentences has no role to
play.”). Here, the named Plaintiffs were incarcerated between one day and eighty days32 for not
appearing before the Municipal Court at scheduled hearings. Although the Plaintiffs were
incarcerated for non-violent and relatively harmless conduct, the relatively short duration of the
incarceration terms Plaintiffs suffered through were not grossly disproportionate to the conduct
at issue. Accordingly, Defendants are due to be granted summary judgment for Plaintiffs’ Eighth
Amendment claims.

32

Plaintiffs Kristy and Timothy Fugatt were released from custody when they paid cash bonds on the date
of their arrests. (Docs. # 402-27 at 3; 402-28 at 3). Plaintiff Jews spent eighty days in jail during four separate
stints. (See Doc. # 530 at 22).

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9.

Plaintiffs’ Equal Protection Claims

Both Plaintiffs and Defendants seek summary judgment for the equal protection claims.
In one of their motions for partial summary judgment, Plaintiffs assert that JCS’s probation
practices violated their equal protection rights because poor defendants in the City’s Municipal
Court were forced to pay more in fines and fees simply because they were poor. (Doc. # 425 at
10). Plaintiffs claim that the Municipal Court’s probation procedure, as implemented by JCS,
determined the punishment a defendant received by his or her wealth status. (Id. at 11).
Defendant JCS contends that the Municipal Court did not violate the Equal Protection
Clause by placing Plaintiffs on probation when they needed to pay assessed fines and fees over
time. (Doc. # 473 at 8-9). JCS insists that Plaintiffs have not pointed to the JCS custom or
policy that violated their equal protection rights. (See id. at 9-10). JCS also questions whether
Plaintiffs actually were in fact indigent. (Id. at 10-11). Moreover, according to JCS, Plaintiffs
were incarcerated for failing to appear before the Municipal Court, not for failing to pay amounts
owed to the Municipal Court. (Id. at 11-12). In opposing Plaintiffs’ Rule 56 motion, JCS argues
that Plaintiffs have conceded the existence of factual disputes about JCS’s custom or policy. (Id.
at 15-16). Finally, according to JCS, Plaintiffs have not addressed the rational basis standard that
applies to wealth-based disparities. (Id. at 16-17).
In their motions for summary judgment, Defendants JCS and Correctional Healthcare
argue that the named Plaintiffs did not suffer the constitutional harms alleged in the Fourth
Amended Complaint. They reiterate that the named Plaintiffs were incarcerated for failing to
appear as ordered by the Municipal Court, not for failing to pay fines due to indigency. (E.g.,
Doc. # 470 at 19). Moreover, they claim that the named Plaintiffs received revocation hearings
and that their probation sentences were never formally revoked. (Id. at 25). Plaintiffs also

74

reiterate in their opposition briefs that the imposition of monthly probation fees violated their
equal protection rights. (E.g., Doc. # 500 at 17).
A court violates a defendant’s equal protection rights if it incarcerates that defendant
solely because he or she lacks the resources to pay a fine or restitution. United States v. Plate,
839 F.3d 950, 955-56 (11th Cir. 2016). In Williams v. Illinois, 399 U.S. 235, 243 (1970), the
Supreme Court held that a court “may not constitutionally imprison beyond the maximum
duration fixed by statute a defendant who is financially unable to pay a fine.” The Williams
opinion vacated a judgment that required a defendant sentenced to the maximum imprisonment
term to remain in jail “to ‘work off’ the monetary obligations [from a $500 fine] at the rate of $5
per day.” Id. at 236, 245. The Williams Court explained, though, that a state “is not powerless to
enforce judgments against those financially unable to pay a fine.” Id. at 244. In a footnote, it
referred to the appellant’s argument that a state could, consistent with the Equal Protection
Clause, “impose a parole requirement on an indigent that he do specified work during the day to
satisfy the fine.” Id. at 244 n. 21.
In Tate v. Short, 401 U.S. 395, 398 (1971), the Supreme Court held that a court may not
subject a defendant to imprisonment “solely because of his indigency.” There, the Supreme
Court addressed whether a court could subject an indigent defendant to imprisonment for unpaid
traffic fines where the state law did not allow an imprisonment sentence for the traffic offenses.
See id. at 396-97. The Court indicated in a footnote that a state could, consistent with the Equal
Protection Clause, direct a defendant to pay a fine in installments.

See id. at 400 n. 5.

Ultimately, the Tate opinion reversed the state court’s judgment that the imprisonment sentence
was constitutional. Id. at 397, 401.

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Here, the court concludes that Plaintiffs have not presented a triable equal protection
violation. Plaintiffs’ equal protection claim does not fall within the scope of Williams or Tate
because the Municipal Court did not sentence Plaintiffs to imprisonment due to their inability to
pay fines or court costs.33 Rather, the Municipal Court sentenced them to probation. Neither
Williams nor Tate prohibit a court from imposing a different form of sentence on a defendant
unable to pay a fine than one able to pay a fine. Indeed, the Williams opinion indicated in a
footnote that a court could constitutionally direct an indigent defendant to perform community
service in lieu of paying a fine, whereas it presumably would not sentence a defendant able to
pay a fine to community service. See 399 U.S. at 244 n. 21. The court finds that the Equal
Protection Clause, as interpreted by the Supreme Court in Williams and Tate, did not prohibit the
Municipal Court from sentencing the named Plaintiffs to probation because they were unable to
pay fines.
Moreover, Plaintiffs have not shown a basis for a reasonable jury to find that the
Municipal Court sentenced them to imprisonment following the revocation hearings solely
because of their wealth. The Rule 56 record shows that JCS also relied on Plaintiffs’ nonattendance at scheduled probation appointments to justify the revocation petitions. And, the
Rule 56 record provides little, if any, indication of what the Municipal Court considered during
the revocation hearings that Plaintiffs did not attend. The record only shows that the Municipal

33

This case is also distinguishable from United States v. Flowers, 946 F. Supp. 2d 1295 (M.D. Ala. 2013),
which Plaintiffs rely upon in their partial summary judgment motion. In Flowers, the government requested that the
district court imprison a convicted defendant, instead of placing her in home confinement, because the defendant’s
indigency prevented her from paying for the cost of monitoring. Id. at 1296. The district court in Flowers
concluded that sentencing the defendant to imprisonment because she was unable to pay for monitoring raised
“serious constitutional concerns.” See id. at 1300-01. This conclusion is fully in line with Williams and Tate
because the defendant essentially faced imprisonment solely due to her inability to pay a particular fee. Here, in
contrast, Plaintiffs complain that the Municipal Court placed them in a collection scheme (or probation system)
because of their wealth, not that the Municipal Court sentenced them to imprisonment because of their wealth. The
Rule 56 record shows that the Municipal Court subjected Plaintiffs to imprisonment after they had failed to show up
at probation appointments, in addition to not paying amounts owed to JCS and the Municipal Court.

76

Court’s magistrate issued arrest warrants for FTOCO after such revocation hearings, and
Plaintiffs have not demonstrated a relationship between FTOCO charges and their wealth. While
the FTOCO charges might well have lacked a basis in law, they suggest that the Municipal Court
imprisoned Plaintiffs for their perceived failure to appear, rather than their poverty. In any event,
as discussed above, there is insufficient Rule 56 evidence to show that JCS played a significant
enough role in procuring warrants on FTOCO charges. For these reasons, Plaintiffs’ motion for
partial summary judgment on their equal protection claim is due to be denied, and all Defendants
are entitled to summary judgment on Plaintiffs’ equal protection claim.
10.

Plaintiffs’ § 1983 Conspiracy Claim

Plaintiffs asserted during oral argument that they could obtain relief under § 1983 based
on a conspiracy claim directed at JCS and the Municipal Court. (See Doc. # 620 at 79-82, 8687). Defendants responded that a § 1983 conspiracy claim could be viable “if the judge and the
private party get together and say -- you know, violate these people’s rights and so I can profit
off of them.” (Id. at 40). But, Defendants insisted that the record lacks evidence demonstrating
“any relationship there between Judge Ward and JCS.” (Id.).
“Conspiracy is not itself a constitutional tort under § 1983.” Lacey v. Maricopa Cty., 693
F.3d 896, 935 (9th Cir. 2012) (en banc). “It does not enlarge the nature of the claims asserted by
the plaintiff, as there must always be an underlying constitutional violation. Conspiracy may,
however, enlarge the pool of responsible defendants by demonstrating their causal connections to
the violation; the fact of the conspiracy may make a party liable for the unconstitutional actions
of the party with whom he has conspired.” Id.
A plaintiff can present a § 1983 conspiracy claim “by showing a conspiracy existed that
resulted in the actual denial of some underlying constitutional right.” Grider v. City of Auburn,

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Ala., 618 F.3d 1240, 1260 (11th Cir. 2010). To establish such a conspiracy, a plaintiff must
show that (1) the parties “reached an understanding” to deny a plaintiff his or her federal rights,
and (2) the actions committed by the parties pursuant to the conspiracy actually impinged upon a
plaintiff’s federal rights. Id. (quoting Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.
1990)).

Importantly, a plaintiff may prove the existence of a § 1983 conspiracy through

circumstantial evidence. Id. Such an agreement may be inferred from the parties’ relationship,
their overt acts, their concert of action, and the totality of their conduct. Am. Fed. of Labor &
Congress of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1192 (11th Cir. 2011). Indeed, a
jury may infer the existence of an agreement from evidence that the conspirators committed acts
that are unlikely to have been taken in the absence of such an agreement.

Mendocino

Environmental Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301 (9th Cir. 1999).
For example, in Newsome v. Lee County, Alabama, 431 F. Supp. 2d 1189, 1202-03 (M.D.
Ala. 2006), the plaintiff claimed that a prison official and inmates had conspired to deprive her of
her Fourteenth Amendment rights by committing a sexual assault against her. The court found
an agreement between the official and the inmates to violate the plaintiff’s rights because (1) the
officer placed the victim in the jail cell with the inmates, (2) the officer provided condoms to the
inmates, and (3) the officer observed the resulting sexual assault without intervening. Id.
a.

Existence of an Agreement to Infringe Constitutional Rights

Here, Plaintiffs have shown that a reasonable jury could find a conspiracy entered into by
Defendant JCS and the Municipal Court to violate their constitutional rights, in violation of §
1983. Plaintiffs have presented the following circumstantial evidence from which an agreement
to violate their constitutional rights may be inferred. First, the City’s former mayor, who signed
the JCS-City Contract, testified that Judge Ward recommended JCS to the City. (Doc. # 392-9 at

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45). The City Council’s minutes also reflect Judge Ward’s recommendation. (Doc. # 421-7 at
2). Judge Ward has confirmed that he worked with JCS employees in other cities. (See Doc. #
392-5 at 18). From this evidence, a juror could find that a relationship existed between Judge
Ward and JCS and that the relationship existed before JCS commenced operations for the
Municipal Court in 2005.34 Moreover, a juror could find that Judge Ward advocated for the City
to hire JCS.
Second, the Municipal Court’s judge consistently placed defendants on probation
supervised by JCS -- which required the individuals to pay additional fees -- when those
defendants could not pay the fines and costs owed to the Municipal Court. Moreover, the
Municipal Court’s judge consistently failed to consider defendants’ indigency when they
complained to the court that they could not pay the imposed fines and fees. According to
Plaintiffs Timothy and Kristy Fugatt, they informed the court of their inability to pay, but the
Municipal Court judge placed them on probation without further discussion. (See Docs. # 392-6
at 105-07; 392-7 at 74). Judge Ward has acknowledged JCS’s financial interest in supervising an
increasing number of paid probationers. (Doc. # 402-36 at 90). And, under the JCS-City
Contract, JCS’s financial interests would be harmed by the Municipal Court declaring a
probationer indigent, as JCS would be obligated to supervise the defendant’s probation for free.
(See Doc. # 392-16 at 4). In light of the financial incentive to not declare defendants indigent, a
juror could view Judge Ward’s consistent failure to conduct indigency determinations as
circumstantial evidence of an agreement between his court and JCS to not address probationers’
indigency before imposing additional probation supervision fees.
34

Indeed, JCS’s counsel claimed at oral argument that the Municipal Court’s judge should be considered
JCS’s ultimate decisionmaker with regard to conduct JCS conducted pursuant to the Municipal Court’s orders.
(Doc. # 620 at 25). The Municipal Court’s judge may not be considered JCS’s final decisionmaker, but this
argument nevertheless underlines the close working association between JCS’s employees and the Municipal
Court’s judge.

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Third, the Municipal Court consistently issued arrest warrants for failure-to-appear or
FTOCO “convictions” after JCS reported probationers to the court. Defendant JCS has insisted
that the Municipal Court was solely responsible for these FTOCO warrants. However, JCS
employees requested the issuance of arrest warrants in the probation revocation petitions
submitted to the Municipal Court on the date of the hearings. And, the magistrate’s reported
statement to Timothy Fugatt -- that JCS decided the schedule for probation revocations -- belies
JCS’s argument that it merely followed the Municipal Court’s orders with regard to probation
issues.35 (Doc. # 537-24 at 4). It is not disputed that JCS employees were present at the
revocation hearings where the named Plaintiffs failed to appear. Nor is it disputed that JCS
asked the Municipal Court to issue arrest warrants -- if necessary -- in the revocation petitions.
There is sufficient Rule 56 evidence that this conduct was concerted (i.e., conduct agreed upon
between JCS employees and Municipal Court employees, including the Municipal Court’s
judge). Therefore, a reasonable juror could infer an agreement to issue arrest warrants for
FTOCO charges -- unsupported by any statutory authority -- in lieu of conducting the indigency
hearings required by both Bearden and Alabama law.
b.

Constitutional Violations Caused by Agreement between JCS
and the Municipal Court

Plaintiffs have presented at least two kinds of constitutional violations that reasonably
could have been caused by an unlawful conspiracy between JCS and the Municipal Court. First,
the named Plaintiffs suffered constitutional violations caused by the purported agreement when
the Municipal Court effectively revoked their probation sentences and issued arrest warrants
against them without conducting any indigency determination. Second, the named Plaintiffs’

35

Similarly, JCS’s “following orders” defense is also belied by its independent recalculation of the
probation sentences issued by the Municipal Court following arrests.

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Sixth Amendment rights were violated when they were denied the assistance of counsel before
being imprisoned for criminal offenses.
The Rule 56 record indicates that the Municipal Court denied Plaintiffs any opportunity
to explain their indigency or their inability to pay the fines and fees imposed by the Municipal
Court before effectively revoking Plaintiffs’ probation sentences.

JCS issued revocation

petitions against all of the named Plaintiffs based, in part, on their failures to pay amounts owed
to JCS and the Municipal Court. (See, e.g., Doc. # 471-15 at 2). From Timothy Fugatt’s
testimony, a jury could find that the Municipal Court failed to consider indigency before placing
Plaintiffs and others on probation following the adjudication of criminal charges. (Doc. # 392-7
at 74). And, the record contains no evidence showing that the Municipal Court considered the
reasons for Plaintiffs’ failures to pay before issuing the arrest warrants at issue in this case.
Since FTOCO charges were not based on an actual municipal ordinance and the warrants were
issued after revocation hearings, a jury could reasonably find the FTOCO warrants to be, in
practical effect, probation revocations. Accordingly, Plaintiffs have presented triable Bearden
due process violations that arguably were caused by the agreement between JCS and the
Municipal Court described above.
Defendants argue that the Municipal Court issued the arrest warrants because the named
Plaintiffs failed to appear at the relevant revocation hearings. (See, e.g., Doc. # 620 at 24).
And, certainly, based upon the Rule 56 record, a fact-finder could reasonably find that the
Municipal Court issued the arrest warrants because of Plaintiffs’ failures to appear, rather than
their failures to pay. But, in light of the evidence that JCS sought revocation due to Plaintiffs’
failures to pay and that the Municipal Court failed to consider Plaintiffs’ indigency before

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effectively revoking their probationary sentences, this is an issue for trial, not summary
judgment.
Moreover, the Rule 56 record reasonably indicates that the Municipal Court denied all of
the named Plaintiffs appointed counsel before imprisoning them for criminal offenses.
According to Plaintiff Ray’s testimony, the Municipal Court did not inform her of the right to
counsel before imposing her suspended imprisonment sentences. (See Doc. # 471-7 at 38-39).
No evidence available to the court suggests that Plaintiff Ray made a knowing and voluntary
waiver of her right to counsel before receiving the suspended imprisonment sentences. Thus,
under Alabama v. Shelton, the Municipal Court violated Ray’s right to counsel before imposing
the suspended imprisonment sentences. See Shelton, 535 U.S. at 662. Moreover, in light of the
printed acknowledgment of waiver of counsel in the probation forms used by JCS, a reasonable
juror could find that an agreement between the Municipal Court and JCS was in place and caused
the Municipal Court’s constitutional violation. Accordingly, Plaintiff Ray has presented a triable
§ 1983 conspiracy claim for the Municipal Court’s denial of her right to counsel during the
proceedings where she received suspended imprisonment sentences.36
Likewise, Plaintiffs Jews, Timothy Fugatt, and Kristy Fugatt have presented a triable §
1983 conspiracy claim based on the Municipal Court’s failures to appoint them counsel or obtain
valid waivers. As discussed above, a reasonable jury could find that the FTOCO warrants
constituted effective revocations of probation. And, although the Municipal Court did not
formally sentence Jews, Timothy Fugatt, or Kristy Fugatt to a suspended imprisonment sentence,

36

Plaintiff Ray’s Sixth Amendment claim is not barred by the two-year statute of limitations. At a
minimum, Plaintiff suffered a Sixth Amendment violation in June 2011 when the Municipal Court imposed
suspended imprisonment sentences following her 2011 arrest without appointing counsel or obtaining a valid waiver
of the right to counsel. (See Doc. # 423-31 at 2). City officers arrested and detained Ray following the issuance of
this suspended imprisonment sentence. (Doc. # 423-24 at 2-3).

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the Municipal Court effectively sentenced them to imprisonment based upon its revocation of the
probationary sentences they had received. Alabama law states that probation suspends execution
of a sentence, see Ala. Code § 12-14-13(a), and it defies logic, fact, and law to revoke probation
if there is no underlying imprisonment sentence to execute. The court concludes that, at a
minimum, Plaintiffs Jews, Timothy Fugatt, and Kristy Fugatt should have received the assistance
of appointed counsel or validly waived their right to counsel before the Municipal Court revoked
their probation sentences through the FTOCO warrants. Cf. Shelton, 535 U.S. at 662. The
Municipal Court denied them this constitutional right, and a jury could find that the denial was
caused by the agreement it entered with JCS. Accordingly, Plaintiffs are entitled to proceed to
trial on these § 1983 conspiracy claims.37
c.

The City is Not a Party to the § 1983 Conspiracy

Plaintiffs have argued at length that they have put forth substantial evidence that the City
is a part of the joint scheme involving JCS and the Municipal Court. (See, e.g., Doc. # 500 at
27). The court disagrees. While the City’s mayor signed the JCS-City Contract, the Rule 56
record does not show any continuing involvement of the City’s decisionmakers in the Municipal
Court’s actions or the private probation services that are at issue. Indeed, the City’s former
mayor testified that JCS worked with the Municipal Court, not the City. (Doc. # 392-9 at 76).
The court does not dispute Plaintiffs’ argument that the City financially benefited from JCS’s
avaricious conduct. But, there is insufficient evidence in the summary judgment record to
suggest that the City agreed with JCS (or anyone else) to violate probationers’ constitutional
rights. Therefore, the court maintains its view that the City is entitled to summary judgment on
all claims.
37

Plaintiff Jews’s Sixth Amendment § 1983 conspiracy claim is not barred by the statute of limitations,
either. The Municipal Court arguably violated Jews’s Sixth Amendment rights when it revoked his probation in
December 2010. (Doc. # 392-50 at 2-3). That revocation occurred within the two year limitations period.

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11.

Plaintiffs’ Partial Motion for Summary Judgment to Declare the JCSCity Contract Void Ab Initio

Plaintiffs claim that the JCS-City Contract is due to be declared void for four reasons.
First, they argue that the contract unlawfully bound the Municipal Court. (Doc. # 427 at 8-13).
Second, they argue that the contract is void for illegal consideration because it relied on
probation supervision fees imposed in violation of due process and equal protection to obtain
JCS’s services. (Id. at 13). Third, they argue that the contract violates the Alabama Constitution
because the City did not solicit competitive bids. (Id. at 14-18). Finally, they argue that the JCSCity Contract unlawfully required probationers to pay fees unauthorized by state statute and
caused poor defendants to not be treated uniformly. (Id. at 18-22). Plaintiffs further contend
that, because the JCS-City Contract was void ab initio, JCS should be directed to pay restitution
to the innocent probationers required to pay fees. (Id. at 22).
Defendant JCS responds, in relevant part, that the court should not consider this summary
judgment motion because it denied Plaintiffs leave to add the theory to their Third Amended
Complaint. (Doc. # 472 at 6-7). Before it was dismissed as a Defendant from this action, the
City argued that Plaintiffs’ summary judgment motion raised claims concerning the JCS-City
Contract found nowhere in the Fourth Amended Complaint. (Doc. # 475 at 8). And, the City
observed that the Fourth Amended Complaint lacked a claim for restitutionary relief. (Id. at 89). The court agrees with the City.
A plaintiff may not raise a claim for the first time through an argument in a summary
judgment brief. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004).
A plaintiff wishing to assert a new claim must amend the complaint pursuant to Federal Rule of
Civil Procedure 15(a). Id. at 1315. In Gilmour, the Eleventh Circuit held that a plaintiff could
not argue a contractual breach of duty claim for the first time at the summary judgment stage
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where her complaint had raised claims of negligent misrepresentation, promissory estoppel, bad
faith, infliction of emotional distress, and tortious interference with a contract. See id. at 131415.
Here, Plaintiffs’ summary judgment motion seeking to declare the JCS-City Contract
void ab initio is either moot or an improper addendum to the Fourth Amended Complaint. That
is, to the extent Plaintiffs seek a declaratory judgment that the JCS-City Contract was void ab
initio, their summary judgment motion is due to be denied as moot because the JCS-City
Contract has been terminated by the City Council.38 (Doc. # 392-63 at 2). And, to the extent
Plaintiffs seek restitution from JCS, their summary judgment motion is due to be denied because
they did not allege in the Fourth Amended Complaint that they were entitled to restitution for
monies paid pursuant to a void contract. Plaintiffs have not argued in their summary judgment
motion that a decision on the legality of the JCS-City Contract would advance any of their other
claims against the remaining Defendants.

For these reasons, Plaintiffs’ partial motion for

summary judgment to declare the JCS-City contract void is due to be denied.
VI.

Conclusion
For the reasons explained above, the court concludes that:
1.

Plaintiffs’ motion for partial summary judgment to declare JCS’s probation
practice a denial of equal protection (Doc. # 424) is due to be denied.

2.

Plaintiffs’ motion for partial summary judgment to declare the JCS-City Contract
void ab initio (Doc. # 426) is due to be denied.

3.

Plaintiffs’ motion for partial summary judgment to declare probation based upon
non-adjudicated offenses and blank orders void (Doc. # 545) is due to be denied.

4.

Defendant Correctional Healthcare is due to be granted summary judgment.

38

As explained earlier in this case, Plaintiffs have not (and cannot) show that the conduct authorized by the
JCS-City Contract is likely to recur. The Municipal Court has adopted new probation and probation revocation
policies, the City has terminated its contract with JCS, and JCS no longer operates in the state of Alabama.

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5.

Plaintiffs’ requests for declaratory and injunctive relief are due to be dismissed
without prejudice as moot, subject to repleading if Defendant JCS reenters
business in the state of Alabama.

6.

Defendant JCS’s motions for summary judgment (Docs. # 469, 522, 535) are due
to be granted in part and denied in part. Defendant JCS is due to be granted
summary judgment on Counts Three, Seven, and Nine of the Fourth Amended
Complaint. Defendant JCS is also due to be granted summary judgment for
Plaintiffs’ due process claim, except for the claim that it violated Plaintiffs’
procedural due process rights by extending their probation sentences beyond the
statutory maximum without affording due process. Defendant JCS is due to be
denied summary judgment for Plaintiffs’ § 1983 conspiracy claims in part, as
described above.

An order consistent with this memorandum opinion will be entered.
DONE and ORDERED this September 12, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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