Dunn v. Dunn

• Decision Date: 27 January 2016
• Docket Number: CIVIL ACTION NO. 2:14cv601–MHT
• Citation: 163 F.Supp.3d 1196
• Parties: Joshua Dunn, et al., Plaintiffs, v. Jefferson S. Dunn, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

163 F.Supp.3d 1196

Joshua Dunn, et al., Plaintiffs,

v.Jefferson S. Dunn, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants.

CIVIL ACTION NO. 2:14cv601–MHT

United States District Court, M.D. Alabama, Northern Division.

Signed January 27, 2016

Andrew Philip Walsh, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, Brent L. Rosen, Baker Donelson Bearman Caldwell & Berkowitz PC, Montgomery, AL, James Patrick Hackney, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Alison Hardy, Corene Kendrick, Donald Specter, Rebekah B. Evenson, Sara Linda Norman, Berkeley, CA, Ebony Glenn Howard, Jack Richard Cohen, Latasha Lanette McCrary, Maria V. Morris, Rhonda C. Brownstein, Valentina Restrepo, Montgomery, AL, Miriam Fahsl Haskell, Miami, FL, for Plaintiffs.

Janine McKinnon McAdory, Mitesh Bansilal Shah, Bryan Arthur Coleman, Evan Patrick Moltz, Mitchell David Greggs, Maynard, Cooper & Gale, PC, John Eric Getty, Michael Leon Edwards, Susan Nettles Han, Balch & Bingham, LLP, Steven C. Corhern, Balch & Bingham, Birmingham, AL, William Richard Lunsford, Melissa K. Marler, Stephen C. Rogers, Maynard Cooper and Gale PC, Huntsville, AL, John Garland Smith, David Randall Boyd, Balch & Bingham LLP, Alyce Robertson Addison, Home Buliders Licensure Board, Anne Adams Hill, Elizabeth Anne Sees, Joseph Gordon Stewart, Jr., Alabama Dept. of Corrections, Montgomery, AL, for Defendants.

OPINION AND ORDER

Myron H. Thompson, UNITED STATES DISTRICT JUDGE

I. Introduction

The issue currently before the court in this prison-conditions case is whether the plaintiffs are entitled, under either Federal Rule of Evidence 501 (specifically as interpreted in Jaffee v. Redmond , 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) ) or the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. §§ 10801 -10807, to the production of quality-assurance documents by non-party MHM Correctional Services, Inc. (MHM).

One of the plaintiffs in this case is the Alabama Disabilities Advocacy Program (ADAP), which is the State's designated protection and advocacy system (P & A); the function of a P & A is to “protect and advocate the rights of individuals with mental illness [ ] and investigate incidents of abuse and neglect of individuals with mental illness....” 42 U.S.C.A. § 10803. The other plaintiffs are a group of Alabama prisoners, who seek to represent putative classes of other prisoners.

The defendants are the Alabama Department of Corrections (ADOC), ADOC Commissioner Jefferson S. Dunn, and ADOC Associate Commissioner for Health Services Ruth Naglich. MHM, which is not a party to this case, contracts with ADOC to provide mental-health care to prisoners in ADOC's custody.

As relevant here, the plaintiffs allege: that the defendants' mental-health-care system, as administered by MHM, is constitutionally inadequate and violates the Eighth Amendment's prohibition on cruel and unusual punishment; that the defendants, through MHM, involuntarily medicate mentally ill prisoners without providing the due process required by the Fourteenth Amendment; and that the defendants discriminate against mentally ill prisoners in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 -12134.

In the course of the discovery process, MHM has refused to produce a number of documents (a few hundred pages worth), with respect to which it has asserted an Alabama state-law ‘quality assurance’ (alternately referred to as ‘peer review’) privilege, as codified at 1975 Ala. Code § 22–21–8.¹ MHM has also—in the alternative—urged the court to recognize a similar federal common-law privilege.

The documents at issue, which the court has reviewed in camera, are grouped into three distinct categories by MHM but can all be characterized as audits. As described by MHM itself, in its briefing to this court and its proposal for its ADOC contract, these audits include “random samplings of clinician[s'] credentialing files, patient charts and meeting minutes as well as comparisons of contractually obligated service elements to actual services performed at the facilit[ies],” MHM Brief in Opposition (doc. no. 294) at 2 n.1, and also draw on “meetings with [ADOC], mental health, medical and security leadership; meetings with mental health line staff and correctional officers; ... and observation of actual clinical interventions,” MHM Proposal (doc. no. 301-1) at 10.

After attempting to mediate, see Order, Dunn v. Dunn , 2015 WL 4661318 (M.D.Ala. July 27, 2015) (Thompson, J.), the plaintiffs filed a motion to compel the production of these documents, arguing that state-law privileges do not apply in federal-question cases, that no federal common-law quality-assurance privilege exists in cases raising civil-rights claims, and that federal statutory law actually mandates the disclosure of the documents at issue to ADAP upon its request.

For the reasons that follow, the court concludes that the asserted privileges are inapplicable in this litigation, and will therefore order MHM to produce the documents at issue.²

II. State Statutory Law

All of the claims in this case were brought pursuant to federal, rather than state, law. Federal Rule of Evidence 501 therefore makes clear that federal common law (or a federal statute, if applicable)—not state law—“governs [this] claim of privilege.” 1975 Alabama Code § 22–21–8 has no direct bearing here. Cf . Marshall v. Planz , 145 F.Supp.2d 1258, 1273 (M.D.Ala.2001) (Thompson, J.) (recognizing that “Rule 501 no longer prevent [ed] the application of the state-law peer review privilege now that [all federal] claims ha[d] been dismissed on summary judgment”). Hence, the state-law privilege MHM claims is—as MHM essentially conceded during a telephonic hearing on this motion—not directly applicable.

II. Federal Common Law

MHM urges the court, however, to recognize an equivalent privilege under the federal common law.

A. Adkins

In Adkins v. Christie , 488 F.3d 1324, 1326–30 (11th Cir.2007), the Eleventh Circuit applied the test articulated in Jaffee , 518 U.S. at 8, 10–15, 116 S.Ct. 1923, in order to determine “whether to recognize the [‘medical peer review’] privilege in federal civil rights cases.” Although it noted that such a privilege has been implemented in every State,³ the court expressly declined to recognize a federal common-law peer-review privilege in civil-rights cases. Adkins , 488 F.3d at 1330. Indeed, “[i]t appears that every United States Court of Appeals that has addressed the issue of whether there is a federal medical peer review privilege has rejected the claim.” Jenkins v. DeKalb Cnty. , 242 F.R.D. 652, 659 (N.D.Ga.2007) (Thrash, J.). Although MHM attempts to distinguish Adkins , on the ground that it involved a claim of employment discrimination to which the peer-review evidence at issue was essential, this court disagrees; the Eleventh Circuit's reasoning is squarely applicable to this case.

As Adkins explained, the relevant factors under Jaffee are: “1) the needs of the public good; 2) whether the privilege is rooted in the imperative need for confidence and trust; 3) the evidentiary benefit of the denial of the privilege; and 4) consensus among the states.” 488 F.3d at 1328. Because the distinctions MHM attempts to draw relate only to the third and, to a lesser extent, the first factors, the court relies on the discussion of the second and fourth factors in Adkins without rehashing that analysis.

1. Evidentiary Value

MHM's first and most strident argument in support of its assertion of privilege is that the documents at issue here are of less evidentiary value than were the documents involved in Adkins , which were “critical” to proving that discrimination had occurred. 488 F.3d at 1329. But Adkins and Jaffee nowhere suggest that evidence over which a purported privilege is asserted must be essential to the claims of the party moving to compel production in order for a court to decline to recognize the privilege (indeed, it is impossible for a court to determine with certainty that any given piece of evidence is the linchpin of a case before hearing the rest of the evidence); rather, the relative value of the evidence is one factor to be considered. See Jaffee , 518 U.S. at 12, 116 S.Ct. 1923 (observing, in recognizing a psychotherapist-patient privilege, that “the likely evidentiary benefit that would result from the denial of the privilege is modest”).

Although the documents MHM seeks to withhold might not be essential to the plaintiffs' case, their evidentiary value is likely quite significant. These documents draw on source material otherwise unavailable to the plaintiffs, and will likely prove extremely important as they attempt to demonstrate that the defendants' policies and practices towards mentally ill prisoners evince deliberate indifference to their constitutional rights. Moreover, this evidence might well be valuable in determining whether to certify a class or classes and, if liability is proven, how to craft an effective remedy.

Contrary to MHM's assertion, the plaintiffs do not otherwise have access to some of the source materials on which the quality-assurance assessments in these documents were based; in particular, they draw on extensive conversations with medical, mental-health, and security staff that plaintiffs' counsel and their experts have not been permitted to conduct and observations of clinical interactions that they have not been allowed to make. See Plaintiffs' Brief in Support (doc. no. 301) at 4; see also Mediation Agreement Pertaining to Discovery (doc. no. 250-1) at 22 (“ADOC will provide an employee of ADOC or its contractors to answer questions any Plaintiffs' expert may have regarding the location or use of any item or portion of any ADOC facility that may be visited. ... ...