US v. State of Tenn.
| Decision Date | 06 November 1995 |
| Docket Number | No. 92-2062-M1.,92-2062-M1. |
| Citation | 925 F. Supp. 1292 |
| Parties | UNITED STATES of America, Plaintiff, v. STATE OF TENNESSEE, Don Sundquist, Governor of the State of Tennessee; Marjorie Nelle Cardwell, Commissioner, Tennessee Department of Mental Health and Mental Retardation; Max Jackson, Superintendent, Arlington Developmental Center, Defendants. People First of Tennessee, on behalf of its members, Carl Beard, by his next friend Wendy Kurland, Sandra Howard, by her next friend Elizabeth Henderson, Herman Walter Runions, by his next friend Sarah R. Todd, Harvey Richard Watson, by his next friend Jodie Wheeler, Clarence Wilson, by his next friend Wilma Williamson, Keith Collins, by his mother and next friend, Joyce Cisco, Stevelyn Danieal Tucker, by her parents and next friends, Carolyn and Steve Tucker, Parent-Guardian Association of Arlington Developmental Center, Intervenors. |
| Court | U.S. District Court — Western District of Tennessee |
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Verlin Hughes, William Maddox, Robert Bowman, Laurie Weinstein, U.S. Department of Justice, Special Litigation Section, Washington, D.C., for Plaintiff.
Earle Schwarz, Waring Cox, Memphis, TN, Edward Connette, Lesesne & Connette, Charlotte, NC, Jack Derryberry, Ward, Derryberry & Thompson, Nashville, TN, Judith Gran, Frank Laski, Public Interest Law Center of Philadelphia, Philadelphia, PA, William F. Sherman, Law Offices of William F. Sherman, Little Rock, AR, Kimberly Dean, Office of the Attorney General, Nashville, TN, Kathleen Maloy, Office of the Attorney General, Nashville, TN, for Defendants.
ORDER ON DEFENDANTS' COMPLIANCE WITH EMERGENCY PROVISIONS AND ON DEFENDANTS' MOTIONS TO FIND PARTIAL COMPLIANCE AND LIFT SANCTIONS
This case is before the Court for a determination regarding compliance by the State of Tennessee, Governor Sundquist, Commissioner Cardwell, and Superintendent Jackson with the provisions of the Emergency Order of June 30, 1995 (hereinafter "Emergency Order"), and the Preliminary Injunction of July 10, 1995 (hereinafter "Preliminary Injunction") (also hereinafter "Orders"). The question of compliance arises in the context of a contempt finding by the Court at a hearing on August 9, 1995, regarding five provisions of the Orders. Contempt Order, docketed August 24, 1995. Since that finding, defendants have filed two motions for a determination of partial or complete compliance as to four provisions of the Orders.
Because the context in which the Orders and the contempt finding arose is important for determining whether or not the defendants are now in compliance (i.e. have purged themselves of contempt), and because a discussion of the factual background of the contempt finding and a thorough discussion of the proof presented at a hearing on October 10-11, 1995, may be beneficial to all the parties in framing their future responses and to the defendants in conforming their conduct to achieve compliance, the matters before the Court will be discussed in some detail. Factors of importance in resolving the issues before the Court include: (1) the degree of participation by the State of Tennessee in formulating the remedial provisions, and (2) the effort (or lack of effort) demonstrated by the State of Tennessee in attempting to achieve the specific provisions of the Orders.
Set out below are: (1) how the case and this issue arose, (2) the State of Tennessee's history of noncompliance, (3) the applicable law, (4) the positions of the parties, the evidence presented on October 10, 1995, and the Court's findings regarding the effect of sanctions, and (5) the Court's findings regarding purgation of contempt, compliance/noncompliance with the remedial provisions of the Emergency Order and Preliminary Injunction, and appropriate future remedial sanctions.
The Arlington Developmental Center is a state operated, residential mental retardation facility housing 3831 developmentally disabled persons located in Arlington, Tennessee. ADC's population consists primarily of individuals currently assessed as severely or profoundly retarded or developmentally disabled, some of whom have associated physical handicaps, and mental or behavioral problems. ADC is an Intermediate Care Facility for the Mentally Retarded ("ICFMR"). The federal government pays sixty-six per cent of the costs of operation of this facility, with the State of Tennessee paying the remaining thirty-four per cent.2 Tr., Hr'g, April 10, 1995, at 153-154.
The United States and the State of Tennessee have been in dispute regarding conditions at ADC since 1990. In 1991, the United States Department of Justice ("DOJ"), as part of an investigation of possible statutory and constitutional violations concerning the resident population at ADC, issued a findings letter citing deficiencies to the State of Tennessee. The State of Tennessee refused to correct the deficiencies cited in the DOJ findings letter. On January 21, 1992, the United States filed this action against the State of Tennessee and Arlington Developmental Center, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. §§ 1997-1997j (1988).
The trial of this case took place over a two month period beginning on August 30, 1993. On November 22, 1993, the Court issued an oral opinion and, on February 18, 1994, filed Supplemental Findings of Fact. For the additional procedural and factual history of this case, see Contempt Order, docketed August 24, 1995, at 1-16. In the oral opinion and Supplemental Findings, the Court held that conditions at ADC were in violation of the rights of its residents under the United States Constitution. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).3
Concurrent with the oral ruling of November 22, 1993, the Court entered a preliminary injunction and established a schedule for submittal of a remedial plan by the State of Tennessee. As a result of that procedure, the United States and the State of Tennessee negotiated a plan to remedy the unconstitutional conditions at ADC. On September 2, 1994, the parties submitted a Stipulated Remedial Order to settle the case. As part of the settlement, the United States and the State of Tennessee agreed to the appointment of a Monitor to assist and oversee the State's compliance with the agreed-upon remedial plan. The Court, with the concurrence of both parties, appointed Linda R. O'Neall, Ph.D., to perform that function.4
The Remedial Plan negotiated by the State of Tennessee contains a "schedule of implementation" setting out the timeframes in which each of the remedial actions agreed to by the State was to be completed.5 A large number of items were to be commenced within the first ninety days of implementation of the plan. Accordingly, the Monitor conducted the First Semi-Annual Compliance Review at ADC from November 28, 1994, through December 2, 1994. Based on this review, the Monitor issued a compliance report to the parties on March 9, 1995. The report then went through a comment and response period and was ultimately the subject of a compliance hearing on April 10, 1995.
At the April 10, 1995, hearing, the Court determined that the State had achieved full compliance with only five of the sixty-five self-imposed deadlines within the first ninety day period. In anticipation of this finding of noncompliance, the State, after negotiation with the United States, proposed a "Plan of Correction" that was submitted to the Court as Exhibit 6 to the hearing of April 10, 1995. The introduction to the Plan of Correction submitted by the State of Tennessee provided as follows:
The Monitor's First Semi-Annual Compliance Review identified a number of areas in which the defendants have failed to achieve full compliance with the provisions of the Remedial Order, in particular, with respect to the areas of protection from harm, seizure management, and feeding/nutritional management. In order to appropriately prioritize and focus the corrective remedial measures to be taken by the defendants, the following Plan of Correction has been developed.
Plan of Correction, Ex. 6, Hr'g, April 10, 1995.
The Plan of Correction supplements the Stipulated Remedial Order and, like the Remedial Plan, also contains a schedule for completion of specific actions. For example, under the individual case management section relating to seizure management, nurses were to be assigned individual resident case-loads by no later than April 20, 1995. Additionally, under paragraph II.C. of the Plan of Correction, the State of Tennessee was to have 136 nursing positions "on staff" by July 1, 1995. Plan of Correction, Ex. 6, ¶ II.C., Hr'g, April 10, 1995. In that regard, the State made the following commitment:
Defendants will make ongoing efforts to fill these positions with Arlington nurse employees, rather than contract nurses.
Id. (emphasis supplied). At the April 10, 1995, hearing, Linda Ross, an Assistant Attorney General for the State, asked Gaye A. Hansen, the State Facilitator of the Remedial Order at ADC, the following clarifying question regarding paragraph "II.C.":
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