Dunn v. Dunn

• Decision Date: 09 September 2016
• Docket Number: CIVIL ACTION NO 2:14cv601-MHT (WO)
• 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

JOSHUA DUNN, et al., Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner ofthe Alabama Department of Corrections, et al., Defendants.

CIVIL ACTION NO 2:14cv601-MHT (WO)

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

September 9, 2016

PHASE 1 FINAL SETTLEMENT APPROVAL OPINION AND ORDER

I. INTRODUCTION

The individual plaintiffs in Phase 1 of this lawsuit are 17 prisoners with disabilities in the custody of the defendants, the Alabama Department of Corrections (ADOC or the Department) and Commissioner Jefferson Dunn. The Alabama Disabilities Advocacy Program (ADAP), Alabama's protection and advocacy organization for people with disabilities, is also a plaintiff.

Plaintiffs alleged that the Department has violated Title II of the Americans with Disabilities Act (ADA), codified at 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794.¹ Briefly, plaintiffs contended that the Department lacks adequate systems for implementing its obligations under the ADA, and that this results in discrimination against and failure to accommodate prisoners with disabilities.² Specifically, plaintiffsalleged that the Department failed to (1) implement a system for identifying prisoners with disabilities; (2) institute a system for receiving accommodation requests and a grievance procedure for challenging denied accommodations; (3) appoint ADA coordinators; (4) adequately train personnel regarding the requirements of the ADA; (5) develop an ADA transition plan and corresponding policies and procedures; (6) remove architectural barriers affecting prisoners with disabilities; (7) provide reasonable accommodations, such as auxiliary and visual aids and services, to those with disabilities; and (8) enable those with disabilities to access various types of programming and services. Plaintiffs sought declaratory and injunctive relief. Jurisdiction isproper under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights).

In March 2016, almost two years after this case was filed and after extensive discovery, the parties submitted to the court a joint motion for preliminary approval of a settlement of the Phase 1 claims in this case. Their agreement lacked specificity; akin to an outline, it contained placeholders in the form of references to a "plan" that the parties intended to develop later. Concerned that it could not approve a settlement without scrutinizing its details--the "beef," as the court bluntly put it--the court ordered the parties to submit this plan.

Initially, it appeared that it would be impossible for the parties to reach agreement as to specifics; both they and the court prepared to go to trial. Meanwhile, they continued to negotiate, and wisely requested the assistance of United States Magistrate Judge John Ott, who generously volunteered--despite being from another district--to devote a tremendousamount of time to the task. After numerous lengthy mediation sessions, they reached a much more detailed settlement agreement.

The parties submitted this agreement to the court and, after a hearing, it entered an order granting preliminary approval and requiring the parties to provide notice to class members. See Phase 1 Preliminary Settlement Approval Order (doc. no. 532).

The preliminary approval order provisionally certified the putative Phase 1 class and established a procedure for providing notice of the proposed settlement agreement--and a reasonable opportunity to object or comment--to putative class members. Both the court's certification analysis and the notice procedure are discussed in greater detail below.

In addition to receiving written comments on the settlement from putative class members, the court held three fairness hearings. In the first two, it heard from a representative group of putative class members who had submitted comments on or objections to thesettlement agreement and who were selected by the court, with the input of the parties. Following these hearings, the court held a third fairness hearing at which counsel for the parties responded to the various comments and objections raised by these witnesses and other questions raised by the court.

For the reasons that follow, the court will grant final approval of the settlement and the parties' request to enter a consent decree.

II. DESCRIPTION OF PROPOSED SETTLEMENT

The settlement agreement runs some 78 pages. As a preliminary matter, it is predicated on--and defendants consent to--the certification of a settlement class defined as "any current or future inmate in the physical custody of ADOC who has a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. §705(9)(B), excluding those inmates whose disabilities relate solely to or arise solely from mental disease, illness,or defect." Am. and Restated Settl. Agmt. (doc. no. 518) at 4.

The settlement agreement addresses the following measures that the Alabama Department of Corrections will be required to take in order to ensure that it is in compliance with the ADA and the Rehabilitation Act:

Self-Assessment and Transition Plan: The Department will evaluate all facilities that house disabled prisoners, and identify necessary changes to facilities and policies concerning disabled prisoners' ability to communicate and access programs. The Department will create a transition plan, listing changes to be made and deadlines for those changes.

Programs: The Department will provide reasonable accommodations for disabled prisoners to access the programs offered by the Department.

Special Housing Units: The Department will make individualized assessments of disabled prisoners housed in residential treatment and stabilization units toensure that they have reasonable access to the Department's programs.

Identification and Tracking: An initial screening for disabilities will be performed within 12 hours of a prisoner's entering the Department's custody, and a physical examination will be administered within seven days of entry. The Department will test new prisoners for intellectual and developmental disabilities using certain tests and guidelines. Within about one year, all prisoners will receive testing for intellectual disabilities and physical examinations. The Department will track prisoners with disabilities through a new system-wide computer database. The Department will periodically re-evaluate prisoners for changes in disability status, and will do so anytime a prisoner is transferred among facilities.

Security Levels: In assigning security levels, the Department will not increase a prisoner's security level solely based upon a disability, but theDepartment will have discretion to lower a prisoner's security level based upon a disability.

Auxiliary Aids and Services: For prisoners with hearing and vision impairments, the Department will provide auxiliary aids and services including readers, materials in Braille, and teletype phones. Hearing-impaired prisoners will be assessed at least every three months to ensure their hearing aids are properly functioning, and any needed repairs or replacement batteries will be provided according to set deadlines. Sign-language interpreters will be provided for certain specified proceedings, such as intake interviews, health-care appointments, and disciplinary hearings, and other prisoners may serve as interpreters only with a hearing-impaired prisoner's consent and only on occasions not involving either medical care or a criminal investigation, or otherwise implicating a due-process right.

Emergencies: To evacuate disabled prisoners in the event of an emergency, the Department will designate responsible employees, create plans, and run drills.

Requests, Grievances, and Coordinators: The Department will implement a procedure for receiving and processing prisoners' requests for accommodations and appeals of denials, including specified forms, repositories to submit forms, and assistance for prisoners in completing and submitting forms. The Department will appoint an ADA coordinator for each of its facilities, as well as a state-wide coordinator, to handle ADA requests, process appeals, produce monthly reports, and assess compliance.

Training: The Department will provide initial and annual ADA training to correctional officers and enhanced training to ADA coordinators.

Quality Assurance: The Department will create a quality-assurance program that includes audits of the identification of disabled prisoners and of accommodation requests and appeals.

The agreement also contains the following provisions related to implementation:

Monitoring: ADAP will monitor the Department's compliance with the consent decree, and will be entitled to access relevant documents and to conduct interviews with prisoners and staff. ADAP will prepare quarterly reports on the Department's compliance containing written recommendations for any necessary changes, and the parties will meet and confer to address any reported deficiencies.

Dispute Resolution Process: Both the named plaintiffs and unnamed class members (either with or without representation by class counsel) must arbitrate claims that the Department is not in compliance with the consent decree. If the Department's alleged non-compliance impacts fewer than 12 prisoners, the arbitrator's decision will be final. If 12 or more prisoners are affected, the arbitrator's decision may be appealed to the court for review under an abuse-of-discretion standard.

Termination: After five years the Department may request termination of the consent decree, which will terminate after six years unless plaintiffs request and the court grants an extension.

Amendment: The parties may mutually amend the agreement. The parties agree to re-evaluate deadlines in the transition plan if Alabama passes legislation to construct new prison facilities.

Funding: The Department will make good-faith efforts to obtain necessary funding to comply with...