GUMM v. JACOBS et al

Filing 253

***VACATED*** SETTLEMENT ORDER (Final Approval of Class Action Settlement). The Clerk of the Court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. The Clerk of the Court shall issue a writ of injunction. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/6/2019. (kat) Text Modified on 5/6/2019 (kat). Modified on 5/6/2019 (ggs).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

TIMOTHY GUMM,
ROBERT WATKINS,
Plaintiffs,
v.
BENJAMIN FORD et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:15-CV-41 (MTT)

FINAL APPROVAL ORDER
The parties reached and the Court preliminarily approved, pursuant to Rule 23(e)
of the Federal Rules of Civil Procedure, a class action Settlement Agreement resolving
the claims for injunctive and declaratory relief in this case. (See Preliminary Approval
Order (Doc. 210).) After granting preliminary certification of the settlement class,
appointing Plaintiffs’ counsel as class counsel, granting preliminary approval of the
Settlement Agreement, and approving a process for giving notice to the class, the Court
received objections and comments from class members and held a final fairness
hearing on April 30, 2019. For the reasons below, and those set forth in the Court’s
preliminary approval order, the Court now grants final certification of the settlement
class and final approval of the Settlement Agreement, and, at the joint request of the
parties, adopts the Settlement Agreement by incorporation as the order of the Court.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Timothy Gumm brought this action under 42 U.S.C. § 1983 challenging
conditions and practices at the Special Management Unit (“SMU”) at Georgia Diagnostic

& Classification Prison (“Georgia Diagnostic”). (Doc. 1.) The Court appointed attorney
Sarah Geraghty of the Southern Center for Human Rights to represent Plaintiff Gumm.
(Doc. 70.) After the parties engaged in several months of discovery, Plaintiff Gumm
filed an amended complaint in March 2017 (Doc. 73), asserting claims for declaratory
and injunctive relief on behalf of a putative class of all prisoners who are or will be held
in the SMU. The class claims were brought under the Fourteenth Amendment’s Due
Process Clause and Eighth Amendment’s Cruel and Unusual Punishments Clause.
The complaint alleged that confinement in the SMU created a substantial risk of serious
harm to prisoners, and that prisoners were held in the SMU for years without meaningful
procedural safeguards. The complaint sought classwide injunctive relief to remedy
unconstitutional review procedures and conditions of confinement in the SMU. In May
2018, Gumm filed a further amended complaint naming SMU prisoners Robert Watkins
and Johnny Mack Brown as additional plaintiffs and class representatives. (Doc. 140.)
Plaintiff Watkins is presently assigned to the SMU. Plaintiff Brown was subsequently
transferred to the Georgia Diagnostic STEP Unit and has been voluntarily dismissed
from this action. (Docs. 202; 209.)
The parties engaged in a lengthy discovery process, as well as settlement
discussions over the course of approximately 18 months. The negotiations were
conducted at arm’s length by parties and attorneys familiar with the evidence. In
December 2018, the parties reached an agreement to certify a settlement class and
settle the injunctive and declaratory relief claims raised in this case. (Doc. 207-1.) This
agreement provides SMU prisoners four hours per day of out-of-cell time, improved
conditions, guidelines for prisoners with mental illness, more robust procedural

2

safeguards, and limits on who may be assigned to the SMU and the duration that they
may be held there.
II. DISCUSSION
In weighing final approval of a class settlement, the Court’s role is to determine
whether the settlement, taken as a whole, is “fair, adequate and reasonable and . . . not
the product of collusion between the parties.” Bennett v. Behring Corp., 737 F.2d 982,
986 (11th Cir. 1984) (internal quotation marks and citations omitted). The factors the
Court must consider are set forth in Federal Rule of Civil Procedure 23(e)(2). All but
one of these factors—opposition to the settlement—were addressed in the Court’s
preliminary approval order; that analysis will not be repeated here. (See Doc. 210 at
5-14.) However, the Court will expand on its previous discussion of six issues relevant
to the propriety of approval: (1) the Settlement Agreement’s compliance with the
requirements of the Prison Litigation Reform Act; (2) the adequacy of notice to class
members; (3) the objections and comments submitted by class members; (4) the views
of class counsel; (5) the proposed attorneys’ fee award, see Rule 23(e)(2)(C)(iii), and
agreements required to be identified under Rule 23(e)(3), see Rule 23(e)(2)(C)(iv); and
finally, (6) the views of the Court.
The Court also concludes that the settlement class preliminarily certified should
be finally certified for settlement purposes under Federal Rule of Civil Procedure
23(b)(2), for the reasons set forth in the Court’s preliminary approval order. (See Doc.
210 at 3-5.) This class is defined as “all persons who are or in the future will be
assigned to the facility currently known as the Special Management Unit at Georgia
Diagnostic & Classification Prison, or who are or in the future will be assigned to the

3

Tier III Program.”
A.

Compliance of the Settlement Agreement with the PLRA’s NeedNarrowness-Intrusiveness Requirements

The Prison Litigation Reform Act (PLRA) generally mandates that prospective
relief orders in prison conditions cases “shall extend no further than necessary to
correct the violation of the Federal right of a particular plaintiff or plaintiffs,” and requires
that courts entering them “find[] that such relief is narrowly drawn, extends no further
than necessary to correct the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right.” 18 U.S.C. §
3626(a)(1)(A); see also 18 U.S.C. § 3626(c)(1) (applying these requirements to consent
decrees). Together, these requirements are commonly referred to as the
“need-narrowness-intrusiveness” requirements.
In Cason v. Seckinger, the Eleventh Circuit addressed the sort of findings courts
are required to make with respect to the need-narrowness-intrusiveness requirements
where the parties dispute whether these requirements are met. 231 F.3d 777 (11th Cir.
2000). Cason involved a contested motion by defendant prison officials to terminate a
consent order under 18 U.S.C. § 3626(b), which provides a right to terminate
prospective relief in certain circumstances if the need-narrowness-intrusiveness
requirements are not satisfied. Cason, 231 F.3d at 781; see 18 U.S.C. § 3626(b)(3)
(providing that prospective relief “shall not terminate if the court makes written findings
based on the record that prospective relief remains necessary to correct a current and
ongoing violation of the Federal right, extends no further than necessary to correct the
violation of the Federal right, and that the prospective relief is narrowly drawn and the
least intrusive means to correct the violation”). The Cason panel read § 3626(b)(3) as

4

generally “requiring particularized findings, on a provision-by-provision basis, that each
requirement imposed by the consent decrees satisfies the need-narrownessintrusiveness criteria.” 231 F.3d at 785. Where the parties disagree on whether those
criteria are satisfied, “[i]t is not enough to simply state in conclusory fashion that the
requirements of the consent decrees satisfy those criteria. Particularized findings,
analysis, and explanations should be made as to the application of each criteria to each
requirement imposed by the consent decrees.” 1 Id.
Cason went on to recognize, however, that the provision-by-provision,
particularized-finding requirement does not apply where the parties have agreed that
the PLRA’s need-narrowness-intrusiveness requirements are satisfied. See Cason, 231
F.3d at 785 n. 8. Specifically, a district court may rely on the parties’ “concessions” and
“stipulations” concerning those criteria, just as it would any other undisputed facts. Id.
Thus, when defendants expressly concede that the PLRA’s
need-narrowness-intrusiveness requirements are met, the Court need not enter the
particularized findings that are otherwise required. See id. (“Of course, we do not mean
to suggest that the district court must conduct an evidentiary hearing about or enter
particularized findings concerning any facts or factors about which there is not dispute.
The parties are free to make any concessions or enter into any stipulations they deem
appropriate.”). Here, Defendants have not only consented to entry of the Settlement
Agreement as an order but have also expressly stipulated (Doc. 207 at 15-16; 207-1 at

1

The Eleventh Circuit later held that Cason’s particularized-finding requirement applies not just to
termination but also to entry of prospective relief under 18 U.S.C. § 3626(a). See United States v. Sec’y,
Fla. Dep’t of Corr., 778 F.3d 1223, 1228 (11th Cir. 2015) (involving contested motion for preliminary
injunction sought by United States in case challenging Florida’s failure to provide kosher meals to
prisoners).

5

6) that the Settlement Agreement satisfies the various requirements of the PLRA,
including the need-narrowness-intrusiveness requirements. 2 Therefore, particularized
findings are not required. See Dunn v. Dunn, 318 F.R.D. 652, 682 (M.D. Ala. 2016);
Laube v. Campbell, 333 F. Supp. 2d 1234, 1239 (M.D. Ala. 2004); see also Martinez v.
Maketa, 2011 WL 2222129, at *1 (D. Colo. June 7, 2011) (entering a prospective relief
order after observing that “Plaintiffs and Defendant jointly stipulate that the Court should
make the findings required for prospective relief under 18 U.S.C. § 3626(a)(1)(A)”); cf.
Thomas v. Bryant, 614 F.3d 1288, 1323 & n.33 (11th Cir. 2010) (holding defendant
prison officials could waive challenge to district court’s failure to make particularized
findings by failing to raise issue in district court or on appeal).
The Court has nevertheless conducted an independent review of the record in
this case and assessed the core terms of the Settlement Agreement in light of that
record. The Court independently finds that the provisions of the Settlement Agreement
satisfy the PLRA’s requirements for the following additional reasons.
1.

Settlement Terms

Plaintiffs challenged the conditions of confinement in the SMU and the
procedures that kept them there. (Doc. 140 ¶¶ 1-13, 36-223.) Plaintiffs alleged that the
SMU’s conditions constituted solitary confinement, which was defined as 22 or more

2 See Settlement Agreement (Doc. 207-1 at 6) (“The Parties agree that the prospective relief set forth in
this Agreement satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A) in that the relief is narrowly drawn,
extends no further than necessary to correct the alleged violations of those federal rights as asserted by
Plaintiffs in the Third Amended Complaint, and is the least intrusive means necessary to correct the
violations of federal rights. The relief set forth in this Agreement will not have an adverse impact on
public safety or the operation of the criminal justice system, not will it require or permit government
officials to exceed their authority under state or local law, or otherwise violate state or local law.”); see
also Motion for Preliminary Approval (Doc. 207 at 15-16) (“expressly stipulat[ing]” that the Settlement
Agreement satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A) and (a)(1)(B), and does not constitute
a “prisoner release order” within the meaning of § 3626(a)(3)).

6

hours per day in a cell without meaningful human contact. (Id. ¶ 200.) Plaintiffs further
alleged that their solitary confinement presented a substantial risk of serious
psychological harm to the Plaintiffs and class members, in violation of the Eighth
Amendment (id. ¶¶ 201-16), and that procedures for placing prisoners in the SMU were
arbitrary in violation of the Fourteenth Amendment Due Process Clause (id. ¶¶ 101-99).
Defendants stipulate that the Settlement Agreement is “the least intrusive means
necessary to correct the violations of federal rights” alleged by Plaintiffs. (Doc. 201-1 ¶
7.) 3 In addition, there is evidence in the record supporting Plaintiffs’ allegations. (See,
e.g., Doc. 142; Docs. 154-4 to 154-29; Docs. 161-4 to 161-8; Docs. 167 to 167-8; Docs.
168 to 168-3.)
As discussed in greater detail below, the Court finds that the prospective relief
provided in the Settlement Agreement is necessary to prevent violations of prisoners’
constitutional rights in this case, is narrowly tailored and extends no further than
necessary to correct those violations, and constitutes the least intrusive means of
ensuring compliance with minimal constitutional requirements. As an initial matter,
Cason’s requirement of “particularized” and “provision-by-provision” findings, 231 F.3d
at 785, allows for some flexibility in light of the circumstances of each case. Where the

3 See Morales Feliciano v. Calderon Serra, 300 F. Supp. 2d 321, 334 (D.P.R. 2004) (“The very fact that
the defendants chose to join the plaintiffs in selecting this remedy would seem to mean—and must be
taken to mean—that they understood it to be precisely tailored to the needs of the occasion, that it is
narrowly drawn and least intrusive—in fact not intrusive at all.”), aff’d, 378 F.3d 42, 54-56 (1st Cir. 2004),
cert. denied, 543 U.S. 1054 (2005); Little v. Shelby Cty., 2003 WL 23846734, at *2 (W.D. Tenn. Mar. 25,
2003) (“Clearly, the least intrusive means in this case is that advocated by the parties themselves and
determined by the parties . . . as being in the interest of both inmate and public safety.”). Furthermore,
Defendants amended their standard operating procedures, which now mirror many of the provisions of
the settlement agreement. As a number of courts have recognized, this too weighs strongly in favor of a
finding that the PLRA’s need-narrowness-intrusiveness is satisfied. See Thomas v. Bryant, 614 F.3d
1288, 1325 (11th Cir. 2010) (citing use of defendants’ existing policies in formulating relief as evidence of
non-intrusiveness).

7

parties dispute whether relief is appropriate under § 3626, a district court ordinarily
holds an evidentiary hearing, creates a record, and makes factual findings. See Loyd v.
Alabama Dep’t of Corr., 176 F.3d 1336, 1342 (11th Cir. 1999). In this case, however,
the parties have chosen to resolve the case without further proceedings. Although the
stage at which this litigation was resolved limits the record available for the Court to
consider in making need-narrowness-intrusiveness findings, the Eleventh Circuit has
recognized that a district court applying § 3626(a) should “discuss those factors and
enter findings that are as specific to the case as the circumstances permit.” Johnson v.
Breeden, 280 F.3d 1308, 1326 (11th Cir. 2002). Therefore, the Court concludes that it
need not hold an evidentiary hearing or require the parties to expend time and
resources on presenting evidence. See generally Williams v. First Nat’l Bank, 216 U.S.
582, 595 (1910) (“Compromises of disputed claims are favored by the courts.”); Cotton
v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (“Particularly in class action suits, there
is an overriding public interest in favor of settlement.”). The Court will instead make
findings “as specific to the case as the circumstances permit,” recognizing that “there
may not be much to say” about certain matters in light of the limited record available to
the Court. See Johnson, 280 F.3d at 1326.
Making the findings required by § 3626 “requires a degree of judgment.” See
Brown v. Plata, 563 U.S. 493, 538 (2011). And even under the limitations imposed by
the PLRA, “[c]ourts have substantial flexibility when making these judgments.” Id. To
determine whether a remedial provision is “narrowly drawn” and “extends no further
than necessary,” 18 U.S.C. § 3626(a)(1)(A), courts assess the “fit between the remedy’s
ends and the means chosen to accomplish those ends.” Brown, 563 U.S. at 531

8

(quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989))
(internal alterations and quotation marks omitted). The necessity and narrow-tailoring
requirements forbid orders that “unnecessarily reach out” to fix problems other than
those that violate federal law. Id. Rather, the “scope of the remedy must be
proportional to the scope of the violation, and the order must extend no further than
necessary to remedy the violation.” Id. Similarly, the requirement that the relief ordered
be “the least intrusive means necessary,” 18 U.S.C. § 3626(a)(1)(A), aims to ensure
that the relief ordered “does not excessively impede upon the [prison system’s] internal
administration,” see Thomas v. Bryant, 614 F.3d 1288, 1325 (11th Cir. 2010). The least
intrusive orders will tend to be those that track a prison system’s “current policy” and
leave discretion to prison officials in implementing the ordered relief. Id.
In determining the permissible scope of relief, a court must consider what relief
would be sufficient “to adequately protect future class members” from harm. Plata, 563
U.S. at 532. A remedial order narrowly tailored to preventing future violations of certain
class members’ federal rights is not overbroad even though its “collateral effects” may
improve conditions for prisoners generally. Id. at 531 (holding order requiring release of
prisoners to ensure timely medical care for class members was not overbroad, even
though the order would benefit prisoners outside of the plaintiff class by, among other
things, reducing prison violence and prompting parole reform).
a.

Out-of-Cell Time

Paragraphs 11 to 18 of the Settlement Agreement provide that class members
will ordinarily receive a minimum of four hours out-of-cell time per day, Monday through
Friday, subject to specified limitations and conditions. The Settlement Agreement does

9

not require that class members be permitted to leave their cells on weekends. Out-ofcell time may be cancelled if required by “unanticipated security or safety
considerations.” (Doc. 207-1 ¶ 12.) It also may be cancelled for up to 14 days, on an
individualized basis, as punishment for certain disciplinary offenses. (Doc. 207-1 ¶ 16.)
When it occurs, the out-of-cell time contemplated by the Settlement Agreement occurs
under regimented and secure conditions. One hour of out-of-cell time occurs in “the
outdoor recreation cages.” (Doc. 207-1 ¶ 12.) The record shows that those cages are
single-person enclosures that appear to be secure and austere. (See Doc. 159-1 at 1516 (photographs of the outdoor cages).) Three hours of out-of-cell time will occur “using
restraint tables.” (Doc. 207-1 ¶ 12.) Restraint tables ensure the “safety of staff and
inmates” by limiting a prisoner’s “ability to stand and move around.” (Myrick Decl. (Doc.
171-2) ¶ 10.) Prisoners may voluntarily decline out-of-cell time. (Doc. 207-1 ¶ 17.)
Prisoners denied out-of-cell time as punishment will be visited by a mental health
counselor on non-holiday weekdays. (Doc. 207-1 ¶ 16.) The Settlement Agreement
also provides ancillary provisions requiring Defendants to document out-of-cell time,
address failures to provide out-of-cell time, and provide sufficient staff to comply with
the Settlement Agreement’s provisions. (Doc. 207-1 ¶¶ 13-14, 17-18.)
The Court finds that the out-of-cell time provisions are narrowly tailored and
extend no further than necessary to prevent an unconstitutional “risk of psychological
harm” to the class members. See Thomas v. Bryant, 614 F.3d 1288, 1315 (11th Cir.
2010) (recognizing risk of psychological harm can violate Eighth Amendment). The
Settlement Agreement provides for 20 hours per week of total out-of-cell time.
Moreover, the out-of-cell time provided under the Settlement Agreement occurs under

10

highly secure conditions and is subject to cancellation by prison officials in cases of
emergency or unforeseen circumstances. Prison officials also are permitted to punish
prisoners with up to 14 days of deprivation of out-of-cell time under certain conditions,
which is consistent with evidence in the record suggesting that solitary confinement in
excess of 15 days is considered harmful. (Doc. 159-1 ¶ 108.) The provision for daily
mental health counselor contacts with class members on yard restriction is necessary
and narrowly tailored to ensuring that mentally vulnerable class members are identified.
The ancillary provisions concerning out-of-cell time also are narrowly tailored and
necessary to prevent violations of Plaintiffs’ rights. The provision for staffing is
necessary to ensure that the Settlement Agreement is implemented, and there is
evidence that understaffing has limited out-of-cell time in the recent past. (See Doc.
239 at 3 (acknowledging class members’ complaints that understaffing diminishes outof-cell time).) Provisions for documenting out-of-cell time are necessary and narrowly
tailored to ensuring that the Settlement Agreement is implemented. Finally, given that
prison officials expressly consented to these provisions, the Court cannot find that there
is a less intrusive means of protecting the class members’ federal rights.
In short, the out-of-cell provisions protect the class members’ rights while
ensuring that Defendants’ ability to run a safe and secure facility is not compromised.
Accordingly, the Court finds that the out-of-cell time provisions are necessary, are
narrowly drawn, and intrude no further than necessary.
b.

Activities, Programs, and Privileges

Paragraphs 19 to 27 of the Settlement Agreement provide that class members
will have access to certain activities and privileges. The Settlement Agreement

11

provides that class members will have operable computer tablets called “GOAL
devices.” (Doc. 207-1 ¶ 20.) These devices have multiple functions, the most important
of which for present purposes are educational materials, games, books, and similar
activities. (Myrick Decl. (Doc. 171-2) ¶ 10; Doc. 171-2 at 6-10 (informational materials
concerning GOAL devices).) The Settlement Agreement further provides that class
members may request materials from the Georgia Diagnostic library, and will have
access to mobile book carts on a weekly basis. (Doc. 207-1 ¶ 19.) Within six months of
the December 21, 2018, date that the parties entered the Settlement Agreement,
Defendants are to provide class members “the opportunity to participate in at least 120
minutes per week of out-of-cell programming or classes.” (Doc. 207-1 ¶ 22.) Prisoners
also will have access to “approved” religious materials, and religious services “at the
discretion of the [SMU] Superintendent.” (Doc. 207-1 ¶ 27.) Class members will have
the privileges listed in Georgia Department of Corrections Standard Operating
Procedure No. 209.09 (Doc. 207-1 ¶ 26), which allows class members certain personal
property, visitation, telephone calls, access to commissary goods, showers three times
per week, and assorted other conditions. 4
The Court finds that each of these provisions is a necessary correlate of the outof-cell time provisions. Evidence in the record suggests that “enforced idleness and
inactivity” contributes to the psychological harm associated with solitary confinement.
(Doc. 159-1 ¶ 92.) The Court finds that the provisions for GOAL devices, books,
programming, religious services, and related conditions are necessary and narrowly

4 See Ga. Dep’t of Corr., Policy No. 209.09 Attach. 6 (Mar. 14, 2019), available at
https://www.powerdms.com/public/GADOC/documents/512955 (last visited Apr. 24, 2019).

12

tailored to preventing the serious psychological harm allegedly caused by solitary
confinement and extend no further than necessary to prevent violations of the class
members’ federal rights. The Court cannot find that there is a less intrusive alternative
to the parties’ proposal, given that prison officials have consented to these specific
provisions. Ancillary provisions concerning GOAL devices, books, and programming
are likewise necessary and narrowly tailored to ensuring that the principal provisions are
implemented.
Accordingly, the provisions concerning activities, programs, and privileges are
necessary, are narrowly drawn, and intrude no further than necessary.
c.

In-Cell Conditions of Confinement

Paragraphs 28 to 43 of the Settlement Agreement address general living
conditions, including food, cell furnishings, and sanitation. Class members are required
to have the same type and amount of food as prisoners in the general population, and
substitute meals if provided to the general population or medically indicated. (Doc. 2071 ¶¶ 28-29.) The SMU must maintain the highest possible standards of cleanliness,
sanitation, and safety. (Doc. 207-1 ¶ 31.) Cells must be single-occupancy and must be
equipped like general population cells. (Doc. 207-1 ¶¶ 32-33.) Class members must be
provided medication, clothing, and property as provided in the privilege chart attached
to Georgia Department of Corrections Standard Operating Procedure 209.09, “unless
there is imminent danger that an inmate will destroy an item or induce self-injury.” (Doc.
207-1 ¶ 34.) Class members must also be provided hygiene items, laundry and
barbering services, opportunities to clean their cells on the same basis as prisoners in
general population, and the opportunity to shower and shave three times per week.

13

(Doc. 207-1 ¶¶ 35-38.) Class members will have the services of a counselor. (Doc.
207-1 ¶ 39.) Sliding covers over cell windows will remain open “unless articulable
security or safety considerations dictate otherwise.” (Doc. 207-1 ¶ 40.) Class members
may not be held in cells lacking exterior windows unless they damage the windows in
their standard cells, must have operable electric lights in their cells, and cannot be
placed in cells that are constantly lit unless requested by a class member or “necessary
for the safety and security of an inmate.” (Doc. 207-1 ¶¶ 41-43.)
The Court finds that these provisions, which principally concern the conditions in
which class members live while confined to their cells, address general living conditions
consistent with constitutional principles. Although the Settlement Agreement provides
for out-of-cell time and activities, the class members will continue to spend many hours
of their time in their cells. It is thus necessary that class members be provided
minimally adequate living conditions—including food, sanitation, hygiene items, clothing,
and other basic needs—during the time that they are held in those cells. See Hamm v.
DeKalb Cty., 774 F.2d 1567, 1573 (11th Cir. 1985). The Court finds that these
provisions are narrowly tailored, extend no further than necessary, and are the least
intrusive means available to correct violations of class members’ federal rights. Most of
these provisions are taken verbatim or nearly verbatim from the current policies of the
Georgia Department of Corrections, 5 which is strong evidence that the provisions are
appropriately narrow and nonintrusive. See Thomas v. Bryant, 614 F.3d 1288, 1325
(11th Cir. 2010) (holding injunction satisfied § 3626(a) where “the district court borrowed
language from the DOC’s current policy”).

5

See, e.g., Ga. Dep’t of Corr., Policy No. 209.09, Special Mgmt. Unit—Tier III Program (Mar. 14, 2019),
available at https://www.powerdms.com/public/GADOC/documents/105973 (last visited Apr. 24, 2019).

14

Accordingly, the Court finds that the provisions concerning in-cell conditions of
confinement are necessary, are narrowly drawn, and intrude no further than necessary.
d.

Assignment, Periodic Review, and Duration of
Confinement

Paragraphs 44 to 56 establish a general 24-month limit on confinement in the
SMU and procedures for assignment to the SMU and review while held in the SMU. A
multi-level procedure governs assignment. (Doc. 207-1 ¶ 48.) Upon assignment to the
SMU, class members will be provided “a detailed Offender Management Plan setting
out individualized goals for the inmate and explaining the steps that the inmate must
take to qualify for a transfer.” (Doc. 207-1 ¶ 53.) Class members will be reviewed every
60 or 90 days under a multi-level procedure to determine whether they will progress
through the program phases or transfer to a different facility. (Doc. 207-1 ¶ 54.)
Assignment and periodic review hearings will be accompanied by out-of-cell mental
health evaluations “to determine whether the inmate is, by reason of mental illness or
disability, precluded from being placed in or remaining in the Tier III program.” (Doc.
207-1 ¶ 49.) In addition, officers and staff members assigned to the SMU will be trained
in recognizing and responding to signs of mental illness and suicidal ideation. (Doc.
207-1 ¶ 52.) Class members will not be returned to the lowest two program phases—
Phase 1 (E-Wing) and Phase 2 (F-Wing)—unless they engage in conduct “that would
satisfy one of the criteria for assignment to the SMU.” (Doc. 207-1 ¶ 55.) Class
members will not be held in the SMU for more than 24 months unless they volunteer to
remain there or meet one of six enumerated categories. (Doc. 207-1 ¶ 44.) Prisoners
held beyond 24 months will be reviewed quarterly by a panel composed of the Director
of Field Operations, the Statewide Mental Health Director, the Statewide Medical

15

Director, and a member of the Office of Legal Services. (Doc. 207-1 ¶ 45.) When they
are transferred from the SMU, class members “will be placed in either a Segregation
Transition Education Program (STEP) or Specialized Mental Health Treatment Unit
(SMHTU).” (Doc. 207-1 ¶ 56.)6 Beginning when a class member is within 12 months of
being released from prison, the committee reviewing the class member will consider
placing him in the STEP program, the reasons for denying placement in the STEP
program will be documented, and an Assistant Commissioner will review that decision.
(Doc. 207-1 ¶ 46.)
The Court finds that the limitations on assignment to and duration of confinement
in the SMU, and the procedures for reviewing class members held in the SMU, are
narrowly drawn, extend no further than necessary to correct the violations alleged by
Plaintiffs, and are the least intrusive means necessary to correct those violations.
Taken as a whole, the Settlement Agreement’s provisions concerning assignment and
review, and limitations on holding prisoners in the SMU and in certain wings, are
necessary and narrowly tailored to correcting the alleged due process violations. The
review procedures provided in the Settlement Agreement largely incorporate the
procedures required under Defendants’ own policies; the Settlement Agreement will
simply ensure that those procedures are followed in practice. See Thomas, 614 F.3d at
1325. Modifications to the assignment criteria, special review for class members

6

See Ga. Dep’t of Corr., Policy No. 209.55, Special Mgmt. Unit—Tier III Segregated Transition Education
Program (Tier III STEP) (Apr. 25, 2019) (providing for at least four hours per day of out-of-cell time, group
activities, and the same privileges as general population), available at
https://www.powerdms.com/public/GADOC/documents/536189 (last visited Apr. 26, 2019); Ga. Dep’t of
Corr., Policy No. 508.23, Specialized Mental Health Treatment Units (Apr. 27, 2018) (providing for at least
20 hours per week of out-of-cell time and therapeutic activities), available at
https://www.powerdms.com/public/GADOC/documents/196628 (last visited Apr. 26, 2019)

16

approaching their release dates, limitations on how long certain class members may be
held in the SMU, and limitations on when class members may be required to return to
the SMU’s most restrictive phases, are narrowly addressed to remedying alleged
abuses in assigning prisoners to the SMU for questionable reasons and keeping them
there indefinitely. (See Doc. 140 ¶¶ 188-91; Doc. 159-1 ¶¶ 39-45.) For class members
held in the SMU beyond 24 months, quarterly review of their continued detention by a
panel of senior prison officials is necessary to ensure that persons held in the SMU
long-term are held there for appropriate reasons while still giving prison officials the
discretion and flexibility to make decisions about whom to release. Finally, the
provisions for periodic mental health evaluations of class members, treatment for class
members who are decompensating, and training for officers in responding to signs of
mental illness are necessary so that that class members with serious mental health
concerns are identified, assessed, and treated. (See Doc. 159-1 ¶¶ 46-89.) The
Settlement Agreement provides that class members who mentally decompensate in the
SMU will be transferred to an appropriate treatment facility, as determined by prison
officials. These agreed-upon provisions reflect the parties’ mutual goal of ensuring that
prisoners with a mental health designation of Level III or above are not housed in the
SMU. (Doc. 207-1 ¶ 49.)
Together, these provisions put in place a structure to provide that class members
are appropriately considered for advancement through and transfer from the SMU. The
Settlement Agreement specifies certain criteria but leaves the application of the criteria
to individual class members in the hands of prison administrators. These provisions
address the concerns about prolonged and indefinite confinement in isolation raised by

17

Plaintiffs but are narrowly drawn and do not unnecessarily constrain Defendants’
decisionmaking authority.
Accordingly, the Court finds that the provisions concerning assignment, periodic
review, and duration of confinement to the SMU are necessary, are narrowly drawn, and
intrude no further than necessary.
e.

Provisions for Monitoring and Implementation

Paragraphs 57 to 80 of the Settlement Agreement provide for monitoring and
implementation of the agreement’s substantive terms. The principal terms in that regard
provide for monitoring meetings between the parties approximately every nine months
(Doc. 207-1 ¶ 57), limited access to records (Doc. 207-1 ¶¶ 58-60), annual on-site visits
to the SMU by class counsel (Doc. 207-1 ¶ 61), notice and training for officers and staff
members (Doc. 207-1 ¶ 62), and confidential meetings and communications between
class counsel and the class members (Doc. 207-1 ¶¶ 63-64). The Court finds that these
provisions are narrowly drawn, extend no further than necessary to correct the
violations alleged by Plaintiffs, and are the least intrusive means necessary to correct
those violations. Many of the obligations imposed by the Settlement Agreement with
respect to records and communications by class members with class counsel are
comparable to obligations already imposed on Defendants and the Georgia Department
of Corrections by law (when responding to a public records request). See, e.g.,
O.C.G.A. § 50-18-71(a) (providing that public records are generally available for public
inspection and copying); Ga. Comp. R. & Regs. § 125-3-4.07(a) (providing for
confidential attorney-client visits in state prisons). Regarding the provisions for
meetings, site visits, and training of officers and staff, the Settlement Agreement’s

18

provisions are plainly narrowly tailored and no more intrusive than necessary to ensure
that Defendants’ subordinates are aware of their obligations and that class counsel can
perform their role in monitoring compliance on behalf of their clients. The Court notes
that the Settlement Agreement also includes a meeting and conferral requirement, so as
to ensure that Defendants are given the opportunity to resolve potential concerns
without court intervention if possible. (Doc. 207-1 ¶ 65.) Some process for verifying
compliance is of course necessary and is commonplace in institutional reform orders of
this sort; a process designed to ensure that the Defendants are made aware of any
alleged issues of non-compliance before Plaintiffs resort to adversarial contempt
proceedings is reasonable and nonintrusive.
Accordingly, the Court finds that the provisions concerning monitoring and
implementation are necessary, are narrowly drawn, and intrude no further than
necessary.
2.

Impact of the Settlement Agreement on Public Safety

Neither the parties nor the Court has identified “any adverse impact on public
safety or the operation of a criminal justice system caused by the relief” provided in the
Settlement Agreement. 18 U.S.C. § 3626(a)(1)(A). The terms of this agreement will
allow Defendants to continue to place prisoners in a secure setting when necessary.
In sum, the parties stipulate, and the Court concludes, that the Settlement
Agreement meets the requirements of 18 U.S.C. § 3626(a)(1)(A). 7

7 The parties have also expressly stipulated, and the Court finds based upon that stipulation and upon its
own independent review, that the terms of the settlement agreement do not “require[] or permit[] a
government official to exceed his or her authority under State or local law” within the meaning of 18
U.S.C. § 3626(a)(1)(B), and do not constitute a “prisoner release order” within the meaning of 18 U.S.C. §
3626(a)(3). The parties have also expressly stipulated, and the Court finds based upon that stipulation
and upon its own independent review, that the PLRA’s termination provision, 18 U.S.C. § 3626(b)(1)(A)

19

B.

Notice to Class Members

The Court must ensure that notice has been provided to class members in
compliance with Federal Rule of Civil Procedure 23(e)(1). Per the Court’s preliminary
approval order, the parties were required to provide notice and a copy of the Settlement
Agreement directly to every current class member—that is, every person currently
assigned to the Tier III Program and confined in the SMU. (See Preliminary Approval
Order (Doc. 210) at 15.) Such individual delivery clearly constitutes adequate notice
under Rule 23(e)(1). See, e.g., Dunn, 318 F.R.D. at 668 (concluding that notice was
adequate when prisoners confined in cells rather than dormitories were individually
“hand-delivered” notice forms). Defendants have filed forms with the Court indicating
whether each class member acknowledged or refused to acknowledge receipt of the
settlement documents. (See Acknowledgement of Notice of Proposed Class (Doc.
217).) The parties agree that the class notice process was carried out as set forth in the
Court’s Preliminary Approval Order. The Court concludes that notice to the class
members satisfies the requirements of Federal Rule of Civil Procedure 23(c)(2) and
23(e)(1).
C.

Objections to the Settlement Agreement

In determining whether a class settlement should be approved, “the reaction of
the class is an important factor.” Lipuma v. American Express Co., 406 F. Supp. 2d
1298, 1324 (S.D. Fla. 2005). The Court received objections or comments from 14
individual class members. (Docs. 218 to 235.) The parties submitted pre-hearing briefs

(providing that prospective relief “shall be terminable upon the motion of any part or intervener . . . 2 years
after the date the court granted or approved the prospective relief . . .”), is subject to waiver and has been
waived by Defendants. See Dunn v. Dunn, 318 F.R.D. 652, 682 (M.D. Ala. 2016); Depriest v. Walnut
Grove Corr. Auth., 2015 WL 3795020, at *6 (S.D. Miss. June 10, 2015).

20

summarizing and responding to these filings. (Docs. 237, 239.) As the parties point
out, the class members almost entirely address concerns with the Defendants’ alleged
failures so far to implement some of the Settlement Agreement’s terms—particularly
those regarding out-of-cell time (and the staffing required to facilitate it), certain
conditions of confinement, and procedures for placement and retention in the SMU.
The objectors do not take issue with the terms themselves; they simply ask that they be
complied with.
For example, many class members complain that due to short staffing, inmates
are denied the out-of-cell time required by the Settlement Agreement: specifically,
Gitters (Doc. 220 at 2), Wilcox (Doc. 221 at 1-2), Shepard (Doc. 223 at 2-3), Zavala
(Doc. 224 at 1-2 (alleging that “certain inmates are being placed on 5-man escorts . . .
and then deprived out-of-cell time with the excuse that there is not enough staff”));
Jackson (Doc. 226 at 1), Carter (Doc. 231 at 1)); Young (Doc. 232 at 5), and Scott (Doc.
234 at 1). These concerns are heightened on E-Wing, which objectors allege has lower
priority for recreation than other dormitories. However, these objections do not
challenge the Settlement Agreement, but rather allege the Defendants are not
complying with the Agreement. Specifically, the Agreement requires not only a certain
amount of out-cell recreation, but also sufficient staffing to carry out the agreement.
Doc. 207-1 ¶¶ 12, 18; see Doc. 252 at 15-16 (“I assume from [the Defendants’]
perspective it is understood that insufficient resources or staffing or funding is not an
excuse or reason for not complying with the agreement?” [Defendants’ counsel:] “Yes,
sir, that’s correct.”). Similarly, some class members complain there is no programming
or library access for class members in E-Wing (Docs. 224 at 2; 231 at 1; 234 at 1).

21

However, the Settlement Agreement requires programming and library access, Doc.
207-1 ¶¶ 19-22, and E-Wing is not exempted. Accordingly, these objections do not
challenge the Agreement itself. 8
Some objectors argue the Agreement could have done more for class members.
For instance, Waseem Daker and Jeffrey Bourassa 9 both argue the agreement is
inadequate unless it provides for access to the law library. Docs. 218 at 26; 227 at 8.
Class counsel responded by noting that the objection does “not fall within the scope of
the substance of this lawsuit,” and both Class counsel and Defendants’ counsel agreed
there is nothing in the Settlement Agreement which would preclude a Tier III inmate
from “pursuing a remedy based upon insufficient or inadequate access to legal
materials[.]” Doc. 252 at 17-18. The issue of access to the law library is, therefore,
beyond the scope of the Agreement. Daker and Bourassa also objected to Paragraph
44 of the Agreement, which allows the Defendants to keep class members in the SMU
for longer than 24 months if they meet certain narrow criteria. Daker and Bourassa
argue the exceptions to the 24-month cap on duration of confinement in the SMU allow
the Defendants excessive discretion in keeping class members in the SMU. Docs. 218
at 14-15; 227 at 14-15. However, the Agreement also provides a panel for quarterly

8 Class counsel’s pre-hearing brief also addresses additional objections which relate not to the terms of
the Agreement, but to alleged deficiencies in the Defendants’ compliance with the Agreement. See
generally Doc. 237.
9 The Defendants contend Daker is not a class member, because he is a Tier II inmate. Doc. 239 at 5-6.
Actually, virtually everybody is a potential future class member because of the possibility, however slight,
that they could be assigned to Tier III during the next three years. Bourassa, for example, is currently in
federal custody, and although, as a practical matter, he may never return to the Georgia Diagnostic and
Classification Prison, and may not be assigned to Tier III even if he is, he is still a potential future class
member. However, Daker’s prolific arguments concerning conditions of confinement on Tier II are
beyond the scope of this Settlement Agreement and this case, and the Agreement will not resolve any
claims Daker may have regarding Tier II. Accordingly, his objections relating to Tier II are not relevant,
but even considering them, nothing in Daker’s Tier II-related objections at all impacts the Court’s finding
that the Settlement Agreement provides fair, adequate, and reasonable relief for the class members.

22

placement review for class members kept in the SMU for longer than 24 months. Doc.
207-1 ¶ 45. Class counsel argue that “the provisions in question were the subject of
extended and difficult negotiation by class counsel with Defendants; they represent a
cabining of Defendants’ authority to place inmates in the SMU and a significant limiting
of their ability to retain them there for longer than two years[.]” Doc. 237 at 12. The
Court agrees and notes further that a 24-month cap with limited exceptions is a
substantial improvement and confers a considerable benefit to the class. The Court
finds that the provisions limiting the circumstances in which a class member may be
held in the SMU for longer than 24 months are a fair, adequate, and reasonable
outcome for the class members.
Bourassa also objects to Paragraph 40, which requires the “sliding covers
attached to cell-door windows [to] remain open at all times, unless articulable security or
safety considerations dictate otherwise.” Doc. 207-1 at 13. Bourassa argues that
closed covers “further[] no legitimate penological interest.” Doc. 227 at 11. Again, on
this point the Agreement represents a negotiated compromise after “a protracted back
and forth” between the parties. Doc. 252 at 19. It represents a considered balance
between the Class’s interests and the Defendants’ interest in security, and the
Settlement Agreement itself prohibits closed covers in the absence of any security
interest.
Similarly, Shepard objects to the use of “restraint tables” during indoor out-of-cell
recreation time. Doc. 223 at 2. During the three hours per weekday of indoor out-of-cell
recreation time secured by the Settlement Agreement, the Defendants allow class
members who wish to leave their cell to sit at a table to which they are handcuffed for

23

security. Doc. 252 at 25. The Defendants purchased these tables during settlement
negotiations to allow Tier III inmates to have social interaction in a secure setting in the
common area. Id. Although Shepard objects that the tables “mak[e] it impossible to
read a book, write a letter, or even scratch an itch” and inhibit inmate self-defense, the
Court, after reviewing photographs of these tables, finds that the tables are a
reasonable solution to provide inmates with increased social interaction, thereby
reducing the harms associated with prolonged isolation, while maintaining prison
security. Id.
Tavares Harris raises concerns that Paragraph 14 of the Agreement, which
imposes heightened notice requirements on the Defendants when the out-of-cell time
secured by Paragraph 12 is cancelled or shortened for three or more consecutive days,
is too lenient, and he argues the period to trigger heightened notice obligations should
be shortened to two or more consecutive days. Doc. 229 at 1. However, Paragraph 12
still requires a minimum of four hours of out-of-cell time per day, Monday through
Friday, and the Court finds those requirements, along with the Agreement’s other
provisions for ensuring compliance, are a favorable outcome for the class members.
Harris also alleged the Defendants denied that Paragraph 14 applied to the E-Wing
dormitory, Doc. 229 at 2, but the Defendants’ counsel has acknowledged that
Paragraph 14 does apply to E-Wing. Doc. 252 at 24. Accordingly, the application of
Paragraph 14 to E-Wing is an issue not of the terms of the Agreement, but of
compliance.
Harris also raises concerns about Paragraph 16, which requires that prison staff
may use denial of out-of-cell time as a punishment only when an inmate has committed

24

a disciplinary offense of “Great” or higher severity level, and that inmates placed on
such a restriction must be visited daily, excluding weekends and holidays, by a mental
health counselor, and that the visit must be documented in the inmate’s mental health
file. Harris argues that the Defendants have violated that provision and that the
Agreement should require greater accountability for any such denials. However, the
Court finds that the Agreement’s restrictions on the Defendants’ use of denial of out-ofcell time as a punishment, the counselor requirement, and the existing provisions for
monitoring and compliance represent a fair, adequate, and reasonable outcome for the
class members.
Other objections challenging the terms of the Settlement Agreement similarly
discuss how the Agreement could theoretically have been drafted to provide even more
benefits to class members; however, none of the objections in any way undermine the
Court’s conclusion that Class counsel, through hard-fought negotiation, procured a
Settlement Agreement which “provides adequate substantive relief for the class
members and treats class members equitably.” Doc. 210 at 7.
The parties contend that the objectors’ concerns do not detract from the fairness
or adequacy of the Settlement Agreement. Indeed, the fact that class members seek
effectuation of the Settlement Agreement’s terms shows that they understand the terms
to provide significant benefits. The agreement contemplates that its terms will be
incorporated into an order of this Court, will remain in effect for three years, and will be
monitored and, if necessary, enforced through motions practice by class counsel. The
Court understands that the parties have been in communication regarding the
objections, and that some instances of alleged non-compliance have been addressed.

25

Many class members, therefore, understand the Agreement to provide significant
benefits and emphasize their hope that the Defendants comply with it, and none of the
class members’ objections to the terms of the Agreement undermine the Court’s
conclusion that the Agreement is a fair, adequate, and reasonable resolution of the
class members’ claims.
D.

Judgment of Class Counsel on the Adequacy of the Settlement

In considering a proposed class settlement, the Court “may rely upon the
judgment of experienced counsel for the parties. . . . Absent fraud, collusion, or the like,
the district court ‘should be hesitant to substitute its own judgment for that of counsel.’”
Nelson v. Mead Johnson & Johnson Co., 484 F. App’x 429, 434 (11th Cir. 2012)
(quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). Here, class counsel
have extensive experience litigating and settling conditions of confinement cases and
strongly endorse the Settlement Agreement as appropriate. This factor therefore
weighs in favor of approval.
E.

Attorneys’ Fees and Costs and Other Agreements

In compliance with the Court’s preliminary approval order (Doc. 210 at 12-13),
the parties have conferred regarding attorneys’ fees and costs. They reached a
negotiated agreement that attorneys’ fees and costs should be paid by Defendants to
class counsel in the amount of $425,000. Plaintiffs thereafter filed an uncontested fee
petition seeking an award of such fees in compliance with Federal Rule of Civil
Procedure 23(h). (Doc. 241.) The parties have moved the Court for leave to notify
class members of the proposed fee award and give them an opportunity to object to it. 10

10

Class members were notified that the parties would attempt to negotiate attorneys’ fees following
preliminary approval of the Settlement Agreement, and were made aware that the Settlement Agreement

26

(Doc. 242.) The Court granted the motion, ordered that notice be given to the class
members regarding Plaintiffs’ motion for attorneys’ fees, and provided a reasonable
opportunity for class members to object. (Doc. 251.) Because the fee award was
negotiated only following the parties’ entry into the Settlement Agreement, and because
the parties agree that the Settlement Agreement stands regardless of whether or not the
Court grants the fee petition, the Court finds that nothing in Plaintiffs’ request for
attorneys’ fees undermines the fairness or adequacy of the Settlement Agreement. See
Fed. R. Civ. P. 23(e)(2)(C)(iii). The fee petition will be resolved pursuant to a separate
order.
The Court further notes that the parties have filed a notice of agreements
required to be identified under Federal Rule of Civil Procedure 23(e)(3), in compliance
with Rule 23(e)(2)(C)(iv). (Doc. 243.) Therein, the parties inform the Court that an
agreement has been reached regarding modest incentive awards for the named
plaintiffs, and that a separate and unrelated settlement has been reached with Plaintiff
Gumm disposing of his alleged damages claims. The parties note that the amounts of
these awards were negotiated after the parties reached the class Settlement Agreement
and did not affect the terms of that agreement. (See Doc. 243 at 1-2.) The Court
therefore concludes that these monetary agreements do not undermine the fairness,
adequacy, or reasonableness of the injunctive-relief class Settlement Agreement.

provides for the ongoing payment of fees to class counsel for post-settlement work. See Notice (Doc.
207-2 at 2) (“The Settlement Agreement . . . also states that the Defendants will pay the attorneys’ fees of
the lawyers for the class, in an amount to be negotiated.”); Settlement Agreement (Doc. 207-1 at 24)
(setting forth in detail the process for negotiation regarding a retrospective attorneys’ fee award, and
providing for prospective payment of attorneys’ fees for monitoring of—and, if necessary, enforcement of
compliance with—the Settlement Agreement).

27

F.

Court’s Assessment

“Finally, with the above considerations in mind, the court should itself [finally]
assess whether the settlement agreement is fair, adequate, and reasonable.” Gaddis v.
Campbell, 301 F. Supp. 2d 1310, 1316 (M.D. Ala. 2004) (citation and internal quotation
marks omitted). Based on a review of the Settlement Agreement and of the entire
record in this case, and based on the analysis of the Rule 23(e) factors set forth in the
Court’s preliminary approval Order and in this Order, the Court concludes that the
Settlement Agreement is fair, adequate, and reasonable, should be approved, and
should be adopted as an Order of the Court. The Court finds that this settlement,
reached after extensive discovery and arms-length negotiations by the parties,
represents an appropriate and desirable resolution of this case; it substantially affords to
class members the relief Plaintiffs sought regarding conditions and placement and
retention in the SMU, without the cost and uncertainty of further litigation. Because
Defendants were involved in crafting and agreed to the provisions of the Settlement
Agreement, the Court expects that they will successfully implement those terms, to the
benefit of the class members.
III. JUDGMENT AND PERMANENT INJUNCTION
For the foregoing reasons, the Court will grant final approval of the settlement
and incorporate it as an order of the Court. 11 In accordance with foregoing opinion and
findings, it is the ORDER, JUDGMENT, and DECREE of the Court as follows:

11

Note that although the Settlement Agreement has been attached to this opinion as an appendix, it is
incorporated as the order of the Court. The parties expressly stipulate and the Court finds that this order
complies with Federal Rule of Civil Procedure 65(d)(1). See Williams v. City of Dothan, Ala., 818 F.2d
775, 761 (11th Cir. 1987).

28

(1)

A settlement class is certified, consisting of “all persons who are or in the

future will be assigned to the facility currently known as the Special Management Unit at
Georgia Diagnostic & Classification Prison, or who are or in the future will be assigned
to the Tier III Program,” under Federal Rules of Civil Procedure 23(a) and (b)(2);
(2)

The objections to the proposed settlement filed by class members in

response to the notice to the class are overruled;
(3)

The parties’ request to adopt the Settlement Agreement is granted;

(4)

The terms of the Settlement Agreement, which is attached as an appendix

to this judgment, are incorporated as the order of this Court;
(5)

In accordance with the terms of the Settlement Agreement, the Court

retains jurisdiction to enforce the agreement during its term;
(6)

Defendants in their official capacities, their officers, agents, servants, and

employees, and those persons in active concert or participation with them who receive
actual notice of this injunction by personal service or otherwise, are each enjoined from
failing to comply with the terms of the Settlement Agreement; and
(7)

The Settlement Agreement shall expire, in accordance with its terms,

three years from the date of entry of this Order.
In order to provide class members with notice of the final disposition of this
lawsuit, it is further ORDERED that, within 14 days from the date of this judgment,
Defendants shall cause to be provided to class members notice of the final disposition
of this lawsuit by delivering to each class member this judgment and the accompanying
memorandum opinion issued this date.

29

The Clerk of the Court is DIRECTED to enter this document on the civil docket as
a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
The Clerk of the Court shall issue a writ of injunction.
SO ORDERED, this the 6th day of May, 2019.

S/Marc. T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

30